Provincial law aimed at speeding up home construction kills appeal of Sudbury retirement residence

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The Ontario Land Tribunal says new provincial legislation aimed at getting new housing built quickly means an appeal of a six-storey, 150-unit retirement residence in Sudbury’s South End is automatically dismissed.

The plan to build the retirement residence on Algonquin Road was approved by the city’s planning committee in September 2023, despite widespread opposition from many residents in the area.

Residents opposed to the development created a corporation -- 1000726373 Ontario Inc. – to lead efforts to appeal the decision to the province’s planning tribunal.

“This same group of residents have opposed the proposed development throughout the municipal process,” the tribunal said in its decision, released June 27.

“This type of appeal, whether it is brought by an individual or a corporation, is colloquially referred to as a ‘third-party appeal.’”

However, the tribunal said that the passage of Bill 185 in June of this year, dubbed the Cutting Red Tape to Build More Homes Act, means the appeal can no longer move forward.

That’s because the new legislation strictly limits third-party appeals of planning decisions approved by municipal councils.

Such appeals “shall be deemed to have been dismissed on” the day the legislation passed unless a hearing on the merits of the appeal was scheduled before April 10, 2024.

In this case, a case management conference was held April 4, and a decision was made to hold a hearing in September of this year.

But the written order saying that the hearing would be held wasn’t issued until April 18, eight days after the cut-off date.

Representatives for the developer, 11415573 Canada Inc., argued that since the memo was issued eight days after the cut-off date, the appeal had to be dismissed.

Missed cut-off date by six days

But the lawyer for the opponents of the project argued the order to hold the hearing was actually made April 4, six days before April 10.

At issue, the tribunal wrote, is whether the decision to hold the hearing made on April 4 was the same as actually ordering a hearing to be held.

Lawyers for the developer pointed to rules of procedure that say a “tribunal decision or order is effective on the date that the decision or order is issued by electronic means or in hardcopy, unless the decision or order states otherwise.”

Therefore the oral decision made April 4 wasn’t an order under planning procedure and the “bona fide” order wasn’t made until April 18.

In response, the lawyer for the opponents of the project argued that an oral order was issued April 4, and the tribunal has the discretion to rule that the order was in effect as of April 4.

Declined to use its discretion

In its decision, the tribunal said that the April 4 decision to hold a hearing didn’t constitute an order, because it wasn’t a written order and lacked such details as dates for the hearing that would constitute “a bona fide order … as contemplated by the newly enacted provisions of the Planning Act.”

The tribunal also said it was “declining” to exercise its discretion to rule that the April 4 decision was effectively an order.

“From a fairness standpoint, the tribunal finds that it would be just as unfair to the applicant to allow the appeal to continue,” the decision said.

“The appellant is in no worse position from a fairness standpoint compared to any other appellant who has similarly had their appeal dismissed by Bill 185 ... The tribunal finds that such an action would serve to undermine the clear intent and purpose of the newly enacted transitionary provisions of the Planning Act, insofar as the statute has set a hard deadline to dismiss certain matters.”

“The tribunal orders that the appeal by 1000726373 Ontario Inc. cannot continue.

Read the full decision here.