2023 ONSC 1123, 2023 ONSC 1123

CITATION : North Elgin Centre Inc. v. City of Richmond Hill, 2023 ONSC 1123 DIVISIONAL COURT FILE NO.: 511/21 & 983/21 DATE: 20230215 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: NORTH ELGIN CENTRE INC., Moving Party AND: CITY OF RICHMOND HILL, Respondent BEFORE: Nishikawa J. COUNSEL: Eric Gillespie , for the Moving Party Raj Kehar & Abbey Sinclair , for the Respondent, City of Richmond Hill J.

Pittman Patterson and Lee English, for the Regional Municipality of York Robert Miller and Grace O ’Brien , for Richmond Hill Retirement Inc. and Oakridge Gardens Retirement Partnership Barbara Montgomery , for the Toronto and Region Conservation Authority Jason Cherniak , for the Yonge-Bernard Residents’ Association Ira T. Kagan , for Dogliola Developments Patrick Harrington , for Yonge MCD Inc. Marcia Taggart and Ariel Chih , for the Ontario Land Tribunal HEARD at Toronto: January 13, 2023 (by videoconference) ENDORSEMENT Nishikawa J.

Overview [ 1 ] The moving party, North Elgin Centre Inc. (“NEC”), seeks leave to appeal to a full panel of the Divisional Court from certain decisions of the Ontario Land Tribunal (the “Tribunal ”) which involved several parcels of land, including lands owned by NEC, in the City of Richmond Hill’s Yonge-Bernard Key Development Area. The Tribunal approved with modification the City’s Yonge- Bernard Secondary Plan and implementing Zoning Bylaw. [ 2 ] NEC opposes the Secondary Plan and zoning provisions proposed to be applied to its lands, which operate as a commercial plaza.

The hearing before the Tribunal proceeded in two phases. While NEC takes issue with the conduct of and findings made in Phase 1 of the hearing, NEC has not sought leave to appeal the final decision and order on the Phase 1 hearing. NEC seeks leave to appeal the following decisions: (

a) the review decision of Chair Marie Hubbard dated June 11, 2021; (

b) the decision and order of Vice-Chairs Douglas Colbourne and Gillian Burton dated June 25, 2021; (

c) the final decision of Vice-Chairs Douglas Colbourne and Gillian Burton dated December 15, 2021 on Phase 2 of the hearing; and (

d) The costs decision dated April 25, 2022 and final order dated July 22, 2022.

[ 3 ] NEC seeks leave to appeal on the basis that it was deprived of the right to a fair hearing and the ability to fully present its case.

In support of its position that the Tribunal breached its duties of procedural fairness, NEC raises various grounds, including that the panel failed to follow proper procedure; excluded evidence, namely, NEC’s concept plan; improperly applied legal principles; limited NEC’s cross-examination of witnesses; delayed the hearing of NEC’s recusal motions; uttered an expletive during the cross-examination of a witness; did not permit transcripts of the hearing to be made; changed written evidence; failed to consider the ELTO Code; quashed summons relating to certain witnesses; and dispensed with NEC’s input on the final order. [ 4 ] The motions for leave to appeal are dismissed.

The court does not ordinarily give reasons on motions for leave to appeal. Whether to give reasons is at the discretion of the motion judge, which should be exercised sparingly: Westhaver Boutique Residences Inc. v. Toronto , 2020 ONSC 3949 . In this case, I find it appropriate to give brief reasons for denying leave to appeal. Analysis Preliminary Issue [ 5 ] The City brought a motion to strike affidavit evidence adduced by NEC on the motion for leave on the basis that the evidence was not before the Tribunal and is not proper evidence on appeal.

NEC submits that the evidence is necessary on the procedural fairness issues. The City also submitted an affidavit regarding the proceeding before the Tribunal in the event that NEC’s evidence was admitted. For the purposes of the motions for leave to appeal alone, without determining whether either party’s affidavit evidence would be admissible on appeal, I decline to strike the affidavit evidence and consider both parties affidavits.

The Applicable Test for Leave to Appeal [ 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 . [ 9 ] In determining whether the proposed appeal raises a question of law, the court must keep in mind that doubt as to legal correctness must be based on the totality of the Tribunal’s decision, not one isolated paragraph or phrase.

It is not appropriate to select fragments of the decision and parse them under microscopic scrutiny to the detriment of an overall analysis of the decision as a whole: CAMPP v. Windsor, at para. 37. [ 10 ] In respect of the third element, the moving party must demonstrate that the alleged error is one that relates to matters of public importance beyond the dispute in question and that is relevant to the development of law and the administration of justice more generally.

Application [ 11 ] In my view, NEC’s proposed appeals do not meet the test for leave to appeal because the issues raised by NEC are of importance to NEC only and therefore present no legal issues of broader public importance that warrant the attention of a full panel of this court on appeal. NEC has not put forward any legal principle important to the development of the law or the administration of justice that would justify leave granting leave. NEC attempts to characterize the procedural issues that it raises as having greater importance to the conduct of proceedings before administrative tribunals generally.

However, as evidenced by the record and as detailed further below, the manner in which NEC proceeded before the Tribunal was not only unreasonable but also unusual and very specific to the circumstances of the proceeding before the Tribunal. [ 12 ] Because the test is conjunctive, the lack of an issue of general or public importance is sufficient to dismiss NEC’s motion for leave to appeal. [ 13 ] In addition, NEC has not demonstrated good reason to doubt the correctness of the Tribunal’s decisions with respect to the questions of law raised.

Many of the procedural fairness issues raised by NEC fall squarely within the Tribunal’s authority and discretion on procedural matters.

Subsection 12(2) of the OLT Act states that the “Tribunal shall, in respect of any proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.” Similarly, Rule 22.3 of the Ontario Land Tribunal Rules of Procedure provides that “the Tribunal may, by order, establish and direct the procedure at a hearing event… to ensure the issues in dispute are disposed of in the most just, cost effective and efficient manner.” [ 14 ] The issues raised by NEC, such as curtailing lengthy cross-examination, are the type of procedural matters over which the Tribunal has considerable discretion.

Moreover, s. 18(3) of the OLT Act specifically provides that the Tribunal may limit cross- examination of a witness including “in any other circumstances the Tribunal considers fair and appropriate.” Similarly, while NEC raises

the Tribunal’s refusal to allow a court reporter transcribe a portion of the hearing at NEC’s request, this is contemplated under Rule 22.8. That rule states that any party may arrange for the attendance of a qualified verbatim reporter for the entire hearing, however, the consent of the Tribunal is required before a qualified verbatim reporter is permitted to record only part of the proceeding. [ 15 ] Many of the issues raised by NEC, such as the quashing of summons by the Tribunal, among other things, would be subject to the privative clause contained in the OLT Act .

Subsection 13(4) of the Act states that “[u]nless the Tribunal’s failure to comply with the rules, or its exercise of discretion under the rules in a particular manner, causes a substantial wrong that affects the final disposition of a proceeding, neither the failure nor the exercise of discretion is a ground for setting aside a decision of the Tribunal on an application for judicial review or an appeal.” NEC is not able to demonstrate that a substantial wrong affected the Phase 2 disposition, as required under s. 13(4). [ 16 ] Similarly, the record does not support NEC’s allegation of a reasonable apprehension of bias.

After its recusal motion was rejected, NEC refused to participate in the hearing and instead brought repetitive motions, conducted cross-examinations in a dilatory manner, failed to give notice that it would not lead evidence at the Phase 2 hearing, and ignored the procedural directives of the Tribunal. A tribunal is entitled to control its own process and to take steps to require a litigant to behave in a civil manner: Di Blasi v. Regional Municipality of York , 2022 ONSC 7104 (Div. Ct.), at para. 38 . The Tribunal’s efforts to control the proceeding and rein in NEC’s conduct does not mean that it was biased.

Conclusion [ 17 ] The motion for leave to appeal the Tribunal’s decisions to a full panel of the Divisional Court is dismissed. [ 18 ] As the successful parties, the Respondents are entitled to costs. The parties have submitted bills of costs or cost outlines that reflect significant amounts. [ 19 ] Based on my review of all parties’ costs, I find the following amounts are fair and reasonable in the circumstances. The Respondent, City of Richmond Hill, is entitled to $20,000 in costs, all-inclusive. This amount takes into account that the City was unsuccessful on the motion to quash.

The Regional Municipality of York is entitled to $15,000 in costs, all-inclusive. Dogliola Developments, Yonge Bernard Residents Association, Richmond Hill Retirement Inc., and Yonge MCD Inc. are each entitled to $2,500 in costs, all-inclusive. The Toronto and Region Conservation Authority and the Ontario Land Tribunal did not seek costs. “Nishikawa J.” Released: February 15, 2023