September 5, 2019 9:17 AM
On Aug. 12, 2019, the Ontario Superior Court of Justice, Divisional Court issued a decision on the motion for leave to appeal for the 223 Princess St. Local Planning Appeal Tribunal (LPAT) decision. The Court decision granted the property’s developers, IN8 Developments Inc., the right to appeal the LPAT ruling which did not support the development of a mixed-use building at this location. The original LPAT hearing for this matter was held on November 9, 2018 and the date for the Divisional Court hearing has not yet been set.
Explaining the Divisional Court’s Decision
The Divisional Court is one of the three branches of the Ontario Superior Court of Justice (the others being Small Claims Court and Family Court). The Divisional Court is an appeals Court and one of its mandates is to review appeals emerging from the decisions of administrative tribunals, such as the LPAT.
The Court’s decision to grant leave to appeal was based on the following question:
Did the Tribunal err in its interpretation and application of the Official Plan (OP) and its policies by:
prioritizing one OP policy (heritage) over (revitalization and intensification);
considering the provisions of the Zoning By-law and the studies and guidelines referred to in the OP;
concluding that the OP policies impose height, density and angular plane limitations on this Site even in the absence in the OP making those limitations specifically applicable to this Site; and
concluding that the development was not in the public interest?
The Court did not grant the right of appeal on the following questions:
Did the Tribunal correctly have regard to the decisions of Council pursuant to subsection 2.1(1) of the Planning Act, R.S.O. 1990, C.P.13?
Does the Tribunal’s decision incorrectly rely on inapplicable studies and guidelines?
Does the decision incorrectly assess the test for amending a zoning by-law?
In summary, the Divisional Court determined that the LPAT’s decision raised a question of law, that there was reason to doubt the correctness of the LPAT decision with respect to that question of law, and that the question of law raised was of sufficient general or public importance to merit the attention of the Divisional Court.
What happens next?
At the Divisional Court, a leave to appeal to the Court acts as an automatic stay on the LPAT decision. This means that no steps can be taken to enforce the LPAT decision until the appeal is fully resolved (after the appeal is completed).
An appeal may be dismissed or allowed. If the appeal is allowed, the Court will set aside the LPAT decision and may order a new hearing before the LPAT, or in certain circumstances, substitute its own decision. If the appeal is dismissed, the original LPAT decision will stand and the automatic stay will be lifted.
Because only the appellant and respondent are entitled to participate in a Divisional Court hearing, the City will not be part of this process. The hearing will also be limited to the one issue outlined above: the interpretation of the Official Plan and its associated policies.
This decision once again demonstrates the need for clarity in the City’s Official Plan and its associated policies. This is a major pillar for the City’s ongoing consultation on mid-rise and tall building design policies. Learn more by visiting the City’s Get Involved Platform.