In Caledon Residences Inc. v. Ontario Land Tribunal, 2025 ONSC 6546, the Divisional Court confirmed that judicial review is not an appropriate means for challenging Ontario Land Tribunal (“OLT”) decisions on questions of law, to which it included matters of procedural fairness, and that instead leave to appeal must be sought.
Background
Sunshine Group made two applications to the Town of Caledon for approval of a Draft Plan of Subdivision (“Draft Plan”) and for a Zoning By-law Amendment (“ZBA”). When the Town failed to render a decision on the applications, Sunshine Group appealed to the OLT pursuant to subsections 34(11) and 51(34) of the Planning Act, R.S.O. 1990, c. P.13.
Caledon Residences Inc. (“CRI”), the owner of the neighbouring plot of land, sought to impose a cost sharing condition upon any approval of the Draft Plan, with respect to infrastructure it had paid for that allegedly benefited the Sunshine Group’s development. CRI was subsequently added as a party to the Sunshine Group’s appeals.
The appeals were scheduled to be heard on December 9, 2024. However, on December 6, 2024, Sunshine Group and the Town entered into Minutes of Settlement that did not impose CRI’s cost sharing condition. The settlement provided that Sunshine Group would withdraw its Draft Plan appeal and that the Town and Sunshine Group would request the OLT to approve the ZBA instrument set out in the Minutes.
At the hearing, CRI asked the Tribunal to refuse to withdraw the Draft Plan appeal. When the Tribunal accepted the withdrawal, CRI subsequently requested that the Tribunal either withhold its final order on the ZBA approval until a cost sharing agreement was entered into or impose a holding provision on the ZBA approval, which could be lifted once a cost sharing agreement was finalized. The Tribunal rejected both requests in written reasons dated December 24, 2024, holding that conditioning approval of the ZBA on entering a cost sharing agreement was equivalent to requiring two private parties to enter into an agreement, which was outside the Tribunal’s jurisdiction.
CRI then applied for judicial review of the Tribunal’s decision.
Was judicial review appropriate in this case?
The Court declined to exercise its discretion to hear CRI’s application for judicial review.
CRI’s application for judicial review was based on whether there was a breach of procedural fairness, which the Court determined constituted a question of law.
The Court held that section 24(1) of Ontario Land Tribunal Act, 2021, SO 2021, c 4, Sch 6 (“OLTA”) indicated a clear legislative intention that the Tribunal’s decisions on questions of law may only be appealed with leave:
24 (1) Unless another Act specifies otherwise, an order or decision of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion in accordance with subsection (3), but only on a question of law.
Accordingly, allowing judicial review would undermine the Legislature’s intention to require leave on questions of law. Further, in Humberplex Developments Inc. v. Ontario (AG), 2024 ONSC 2335 (Div Ct.) held that questions of procedural fairness raised in judicial review applications were more appropriately dealt with through a motion for leave to appeal and potential subsequent appeal, and that such a route provided an adequate alternative remedy consistent with the statutory scheme.
As held in CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612, a motion for leave to appeal requires the moving party to generally establish each of the following criteria:
(a) the proposed ground of appeal raises 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.
In the event that the Court erred in its decision to decline to hear the application for judicial review, it assessed the merits of the procedural fairness claim.
Did the Tribunal’s decision breach procedural fairness?
The Court held that CRI had not established a breach of the duty of procedural fairness.
CRI had full participatory rights in the Draft Plan appeal up until the appeal no longer existed. Section 51(36) of the Planning Act sets out that when a draft plan appeal is withdrawn, the OLT is required to notify the approval authority of the withdrawal, and then the approval authority, not the OLT, may proceed to make a decision. Once the appeal was withdrawn, the matter was at an end and CRI had no further rights, which included the right to be heard on the cost sharing agreement. While the principles of Baker were applicable while the appeal was alive, they were not relevant after the appeal was withdrawn and the jurisdiction reverted to the approval authority.
The Court further held that after the Draft Plan appeal was withdrawn, the OLT did not have the jurisdiction to require Sunshine Group to enter into a cost sharing agreement, whether through a Holding provision, by withholding approval until a cost sharing agreement was finalized or by other means. Accordingly, the application for judicial review was dismissed.
Takeaways
This decision clarifies the limits on judicial review of OLT decisions on questions of law. Under s.24(1) of the OLTA, decisions on questions of law must be challenged through the statutory appeal mechanism, which requires leave to appeal, not judicial review. As well, the decision treats procedural fairness claims to constitute questions of law.
Whether any potential breach of the duty of procedural matter could attract leave to appeal given the requirement for such matters to be of “sufficient and general importance” to merit the attention of the Divisional Court, remains to be seen.
Lastly, the decision clarifies that once a draft plan appeal is withdrawn, the OLT no longer has jurisdiction, non-appellant parties no longer have procedural rights following withdrawal, and the Baker principles no longer apply.
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