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Municipal - Ontario Land Tribunal. Casa Loma Residents Association v. 555 Davenport Holdings Ltd.
In Casa Loma Residents Association v. 555 Davenport Holdings Ltd. (Div Court, 2024) the Divisional Court held a case conference where the appellant/applicant filed for both an appeal [under s.24(1) of the Ontario Land Tribunal Act, 2021] and a JR (under the relatively new doctrine of Yatar), here of an OLT decision.
Here the court comments on OLT appeals:[4] Appeals from the Ontario Land Tribunal to this court are limited. Subsection 24 (1) of the Ontario Land Tribunal Act, 2021, SO 2021, c 4, Sch 6, provides that a person who wishes to appeal a decision of the board requires permission or leave to appeal. If leave to appeal is granted, an appeal is then available but only on a question of law. Many statutes limit appeals to questions of law alone. But there are very few administrative tribunals in Ontario whose decisions are protected from appeal by a leave to appeal requirement.
[5] In my view, the Ontario Land Tribunal Act, 2021 reflects a legislative determination that this specialized tribunal is to have the final word on complex issues of fact-based policy that are typically before it. Of course this is subject to the normal principles of judicial review that apply generally as discussed in Yatar and in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. . Township of Oro-Medonte v. Oro-Medonte Association for Responsible STRS
In Township of Oro-Medonte v. Oro-Medonte Association for Responsible STRS (Div Court, 2024) the Divisional Court dismissed an appeal (filed with leave) of a ruling of the Ontario Land Tribunal (OLT), which itself repealed an amending bylaw to a municipality's zoning by-law. The issue of concern was "disruptive short-term rentals" (Airbnbs).
These quotes set out the nature of an OLT appeal:D. Nature of the Appeal to the Ontario Land Tribunal
[19] An appeal to the Tribunal is not a review of the Township’s decision. It is a de novo hearing. The Tribunal must consider the Township’s decision and the information that was before council when it passed the by-law but can consider additional evidence as well.
[20] The Tribunal also has an independent public interest mandate. The Tribunal must look beyond the dispute between the parties and consider whether the by-law under appeal is in the public interest: Ottawa (City) v. Minto Communities Inc. (2009), 2009 CanLII 65802 (ON SCDC), 313 D.L.R. (4th) 419 (Div. Ct.), at para. 30 (per Aston J.). The public interest includes considerations of public health and safety, welfare and convenience to the public: Cloverdale Shopping Centre Ltd. et al. v. Township of Etobicoke, 1966 CanLII 205 (ON CA), [1966] 2 O.R. 439 (C.A.) at paras. 16-17, Planning Act, ss. 2(h) and 2(o). In fulfilling its public interest mandate, the Tribunal is entitled to consider the history, nature and purpose of the by-law. The Tribunal can also consider any interim control by-laws enacted while the by-law was under consideration and any studies that informed council’s decision to understand the issue the Township was trying to address. . Township of Oro-Medonte v. Oro-Medonte Association for Responsible STRS
In Township of Oro-Medonte v. Oro-Medonte Association for Responsible STRS (Div Court, 2024) the Divisional Court considered the SOR for a Divisional Court appeal from the OLT (which requires leave):B. Standard of Review
[6] A decision of the Ontario Land Tribunal can only be appealed with leave to the Divisional Court on a question of law: Ontario Land Tribunal Act, 2021, S.O. 2021, chap. 4, s. 24. Because this is a statutory appeal, the appellate standards of review apply. And because the appeal is limited to a question of law, the appellate standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. . South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al.
In South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al. (Div Court, 2023) the Divisional Court considers a test for leave to appeal, here under the appeal provisions of s.24 of the Ontario Land Tribunal Act:... The test for leave to appeal requires a party to satisfy the court that there is reason to doubt the correctness of the Tribunal’s decision about the question of law. The question of law must also be of sufficient “general or public importance” to merit the attention of the Divisional Court: North Elgin Centre Inc. v. City of Richmond Hill, 2023 ONSC 1123, 40 M.P.L.R. (6th) 239 (Div. Ct.), at para. 7. . 2541005 Ontario Ltd. v. Oro-Medonte (Township)
In 2541005 Ontario Ltd. v. Oro-Medonte (Township) (Div Court, 2023) the Divisional Court considered a motion for statutory leave to appeal, here brought under the s.24(1) of the Ontario Land Tribunal Act, 2021 against a 'review decision' of the Ontario Land Tribunal (OLT) (the 'review decision' was only to procedurally require a review (para 16), not the substantive review result).
The respondents argued that the (administrative) order challenged was interlocutory and that consequently an appeal (if leave was granted) would be premature. The single-judge of the Divisional Court nonetheless held, with extended reasoning (see paras 21-32), that the review decision and order was final, this despite the fact that the review had not yet been substantively decided:[29] Having considered the entirety of the circumstances, it is the view of this court that the Review Decision of the Chair, in this case, is not an interlocutory decision, but rather a final decision, that set aside the Hearing Decision, on its merits, and directed a rehearing of the appeals before the Tribunal. While this court accepts a rehearing has not yet occurred, this Review Decision goes to the very heart of the matter. It overturned a lengthy Tribunal Hearing on its merits. This is analogous to a situation where the Court of Appeal quashes an acquittal and orders a new trial. Just because the new trial is pending, does not change the final nature of the Court of Appeal decision. While the new trial is pending, a party can apply for leave to appeal to the Supreme Court of Canada. This Review Decision is not related to a procedural or collateral issue. Section 24(1) is clear – an order or decision of the Tribunal may be appealed to the Divisional Court, with leave, on a question of law. The review proceedings resulted in both a Decision and an Order that went to the very foundation of this entire matter. The review proceedings did, most certainly, dispose of a substantive issue in the proceedings. . Corporation of the Municipality of Strathroy-Caradoc v Corporation of the Township of Adelaide Metcalfe
In Corporation of the Municipality of Strathroy-Caradoc v Corporation of the Township of Adelaide Metcalfe (Div Court, 2023) the Divisional Court considered an appeal [brought with leave under Ontario Land Tribunal Act, s. 24] from an OLT arbitral decision, the issue being the OLT's jurisdiction to resolve a contractual dispute between two neighbouring municipalities.
In these quotes the court reviews the statutory provisions that apply to this matter, and resolves that the OLT lacks such jurisdiction when the disputed contract terminates:[9] Subsection 20(1) of the Municipal Act 2001, S.O. 2001, c. 25, provides for the sharing of services across municipal boundaries. Under that provision, a municipality “may enter into an agreement with one or more municipalities ... to jointly provide, for their joint benefit, any matter which all of them have the power to provide within their own boundaries.”
[10] After extensive negotiations for over three years, Strathroy-Caradoc and Adelaide Metcalfe entered into a written agreement effective October 1, 2003 (the “Servicing Agreement”). Under the Servicing Agreement, Strathroy-Caradoc would provide potable water supply and sewage treatment to specified lands within a certain area of Adelaide Metcalfe (the “Service Area”). The Servicing Agreement included detailed provisions about the construction of the necessary infrastructure as well as usage, capital and improvement payments to be made by Adelaide Metcalfe. The Servicing Agreement was for a term of 10 years starting on October 1, 2003, with an option to renew for five years on certain conditions.
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The Relevant Statutory Provisions
[18] The Tribunal has only that jurisdiction ascribed to it by statute. Under s. 8(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, Sch. 6, “the Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.”
[19] Under s. 474.10.3(1) of the Municipal Act, the Tribunal has jurisdiction and power in relation to municipal affairs, among other things,(j) when authorized by an agreement entered into by two or more municipalities in which the municipalities agree to be bound by the decision of the Tribunal, to hear and determine disputes in relation to the agreement[.] [20] Pursuant to s. 474.10.16(1) of the Municipal Act, the Tribunal has jurisdiction and power,(a) to hear and determine any application with respect to any public utility, its construction, maintenance or operation by reason of the contravening of or failure to comply on the part of any person, firm, company, corporation or municipality with the requirements of any Act, or of any regulation, rule, by-law or order made under any Act, or of any agreement entered into in relation to such public utility, its construction, maintenance or operation; and
(b) to hear and determine any application with respect to any tolls charged by any person, firm, company, corporation or municipality operating a public utility in excess of those approved or prescribed by lawful authority, or which are otherwise unlawful. ....
Standard of Review
[26] A party may appeal from a decision of the Tribunal only with leave, and only on questions of law: Ontario Land Tribunal Act, s. 24. The standard of review for questions of law on a statutory appeal is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
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[46] Finally, the Tribunal and Adelaide Metcalfe submit that the Tribunal’s public interest mandate and subject matter expertise weigh in favour of finding jurisdiction over the parties’ dispute. The Tribunal’s mandate and expertise can only be exercised where there is a statutory basis for jurisdiction. In this case, the termination of the Servicing Agreement between the parties has removed the basis for jurisdiction under the applicable provisions of the Municipal Act. As a result, the Tribunal lacks jurisdiction over the parties’ dispute. . North Elgin Centre Inc. v. City of Richmond Hill
In North Elgin Centre Inc. v. City of Richmond Hill (Div Court, 2023) the Divisional Court sets out the s.24(1) [Ontario Land Tribunal] leave to appeal test:[6] Subsection 24(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c.4 Sched. 6 (the “OLT Act”) provides for an appeal of an order or decision by the OLT to the Divisional Court “with leave of that court on motion… but only on a question of law.”
[7] In order to obtain leave to appeal a decision of the OLT, a party must establish the following:(a) the proposed grounds of appeal raise one or more questions of law;
(b) there is reason to doubt the correctness of the Tribunal’s decision with respect to the question(s) of law raised; and
(c) the question of law is of sufficient “general or public importance” to merit the attention of the Divisional Court. [8] The three above elements are conjunctive; failure to satisfy any one of them means that leave to appeal is properly refused: CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612 (Div. Ct.) at para. 31. . City of Toronto v. Ocean Club Residences Inc.
In City of Toronto v. Ocean Club Residences Inc. (Div Court, 2023) the Divisional Court considers procedures under the Development Changes Act - and under the OMB, the LPAT and now the Ontario Land Tribunal:[21] Section 22(2) of the Development Charges Act provides:A complainant may also appeal to the Ontario Land Tribunal if the council of the municipality does not deal with the complaint within 60 days after the complaint is made by filing with the clerk of the municipality a notice of appeal. [22] Relying on this section, Ocean Club Residences Inc. and Phantom Developments Inc. launched appeals which, at the time, were to the Ontario Municipal Board which was subsequently replaced by the Local Planning Appeal Tribunal. By letter to the office of the City Clerk dated June 15, 2016 the four members of the Humber Shores Landowners Group (Monarch Waterview Development Limited, B-Major Homes (Ontario) Inc., Kingbird developments Inc. and Empire Communities (2183 Lakeshore Blvd.) Ltd.) launched a third appeal.[29] The three complaints were consolidated and heard together by the Local Planning Appeal Tribunal[30] over seven days.[31]
[23] In coming to a decision with respect to the appeal of the complaints, the Local Planning Appeal Tribunal had, and the Ontario Land Tribunal now has, the power to do whatever could have been done by the City.[32] The City’s authority (and therefore that of the Tribunal) is outlined in s. 20(6) of the Development Charges Act:After hearing the evidence and submissions of the complainant, the council may dismiss the complaint or rectify any incorrect determination or error that was the subject of the complaint. [24] It was pursuant to this authority that the Local Planning Appeal Tribunal found that a development charge credit, in the amount of $2,032,333, should have been recognized and, pursuant to s. 25(1) of the Development Charges Act ordered that amount be refunded.[33] It is that finding that is the subject of this appeal.
Leave to Appeal
[25] This appeal was brought under s. 37 of the Local Planning Appeal Tribunal Act, 2017[34]:Subject to any general or special Act, an appeal lies from the Tribunal to the Divisional Court, with leave of the Divisional Court, on a question of law, except in respect of matters arising under Part IV.
[Emphasis added] [26] Leave to appeal was granted by order of this court made on April 8, 2022.[35] The decision granted leave on three questions of law, as follows:1. Did the LPAT err by determining that its jurisdiction on appeal under the complaints procedure established by subsection 20(1) of the DC Act includes the jurisdiction to review the refusal or failure by a municipality to grant a credit pursuant to subsection 38(1) of the DC Act?
2. Did the LPAT err by determining that, if it has jurisdiction to determine entitlement under subsection 38(1) of the DC Act it can award a development charge credit in respect of work that was not performed by the respondents but in respect of which they made a financial contribution?
3. Did the LPAT err by failing to dismiss the Not Timely Complaint on the basis that it did not meet the statutory requirements for commencing a complaint under subsections 20(1) and (2) of the DC Act?[36] The case continues at paras 30-73 to assess this extensive development charges appeal, complicated by legislative procedural changes.
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