By Pepper Parr
May 30th, 2023
BURLINGTON, ON
In January of this year Goodmans LLP, legal counsel for Burlington 2020 Lakeshore Inc., wrote the Ontario Land Tribunal asking for a review of a decision they had made relating to the Waterfront Hotel site.
The owners, Vrancorp, filed an application to develop the site. The city refused the application as incomplete.
The Vrancorp people appealed the city decision to the OLT.
The OLT found for the city.
That resulted in a request that the decision be reviewed.
To cut to the chase on this. The Tribunal dismissed the request for a review of the decision.
Why was it dismissed and what was legal counsel for Vrancorp expecting ?
This is important for the simple reason that this is the first time the city has won a major case at the Ontario Land Tribunal.
Vrancorp blew it when their planning consultant failed to get all the required documents in on time.
During the time between when the development application was first filed and when the last of the required documents was received the Minister of Municipal Affairs and Housing (MMAH) issued a statement approving the Regional Official Plan which included the location of the Urban Growth Centre.
Those boundaries were moved further north to include the Burlington GO station property. The Urban Growth Centre boundaries change was effective immediately.
That decision meant the Waterfront Hotel site was no longer within the UGC boundary.
An application to develop is not complete until all the documents have been received and the fees that are due paid.
There were a few documents that had not been submitted. The city refused the application as not being complete.
Unfortunately for Vrancorp, the MMAH statement meant the Waterfront Hotel location was outside the boundary.
The timing issue is well explained by the OLT when they released their response to a request for a review.
Through the Applications, the Requestor (Goodmans – counsel for the developer) seeks amendments allowing the construction of a new two-tower mixed-used building with maximum tower heights of 35 and 30 storeys and a 6-storey podium at the subject property. The property currently contains a six-storey hotel with restaurant and associated surface parking lot. Prior to the Minister’s decision, the property was within the Downtown Burlington UGC.
The Requestor submitted initial materials to the City in support of its Applications on October 22, 2021 before the date of the Minister’s decision, but failed to include all materials identified in the pre-consultation checklist.
The Requestor then submitted its fees on October 26, 2021. The City subsequently notified the Requestor, on November 23, 2021, that the Applications had been deemed incomplete on the basis that not all the information and materials required by the Planning Act and the Burlington OP had been submitted.
The Requestor then filed the additional information and materials on December 17, 2021 after the date of the Minister’s decision. City Council, at its meeting of January 18, 2022, deemed the Applications complete as of December 17.
A document called a “Disposition” letter contains the following:
Having reviewed the Decision, as well as the record before the Tribunal, I find that the Tribunal clearly and carefully considered the evidence and submissions of all parties before making a determination as to the correct interpretation of Policy 80.3. The Tribunal provides lengthy reasons, addressing the key points of law and chronology of events raised by the City and Requestor, and ultimately agreeing with the City’s position. At paragraph 50 of the Decision, the Tribunal finds:
The hotel is going to be around for some time.
The Tribunal concurs with the City’s interpretation of the complete application requirements in the Planning Act which underscores the critical nature of the moment in time that a complete application is received. The Tribunal agrees that until an application is complete the Municipality will not have sufficient information to make an informed decision. Before that moment, the application is neither complete, made, nor received.
The Tribunal addresses the meaning of the word “made”, within the context of Policy 80.3, throughout numerous additional references throughout the Decision, including at paragraph 24:
The City submitted that “received” and “made” are different words and that it is impossible for an application to be “made” before it is “received” by a Municipality. The City states an applicant cannot “made” an application until the Municipality “receives” the materials in support of the application.
The interpretation of an official plan is not a factual matter to be decided based on opinion evidence from planners, but rather a question of law. It is the Tribunal’s duty to interpret an official plan in any case before it.
The Tribunal is not bound to accept the evidence of any of the planning experts who appear before it and may come to its own conclusions as to how an official plan is to be interpreted.
The Tribunal simply preferred the position of the City and made a determination as to the interpretation of an official plan, as is within its authority.
The hearing is meant to be a final determination of a matter, subject to the rights of review. A request for review is not an opportunity to rehear the evidence or to relitigate the matter. I see no merits to the claims that the Tribunal made errors of law in interpreting the ROP and Planning Act. Accordingly, these grounds of the Request are dismissed.
I note that the Requestor brought a motion to the Tribunal with respect to this matter as early as December 22, 2021. Had the Requestor employed similar urgency with respect to the MFIPPA (Freedom of Information) request, it may be that the records would have been available to the Requestor in advance of the November 2022 hearing. Nevertheless, I have carefully reviewed the records and have concluded that they would not have affected the outcome of the decision.
None of the records proffered appear to address when an application is “made” (i.e., the question which was before the Tribunal), but instead, in some instances, describe the application process (which is well-known and was before the Tribunal) and, in other instances, refer to some individuals’ opinion or belief as to whether Policy 80.3 applied to the subject property.
As noted by the Requestor, the City (and other parties of like interest) did not submit any opinion evidence with respect to the interpretation of the ROP and, as a result, the Tribunal did not rely on the opinion of City staff or experts in making its Decision. The proffered records can be of little consequence, given that there was no opinion evidence to be contradicted or impeached. The Requestor has failed to demonstrate how this information “call[s] into question the City’s submissions”, which were based on the factual record and law, or how the information would have affected the final decision.
Ultimately, it is the Tribunal’s duty to interpret the official plan in any matter. The Tribunal did so here, after carefully considering the submissions of the Requestor and other parties. I do not believe the information outlined in the Request meets the standard of new information which could have affected the result of this decision under Rule 25.7(e), and I, therefore, dismiss this ground of the Request.
For the reasons above, I find that the Request fails to raise a compelling and convincing case that one of the grounds enumerated under Rule 25 is present in the Decision.
The Request for a review was dismissed.
The Decision OLT-22-003866 remains in full force and effect.
What happens next? The ball is in the Vrancorp’s hands.
Will they file a new application?
The Plan B people had something to say about this.
Related news story:
OLT dismisses Waterfront Hotel review request.
