Divisional Court Clarifies Limited Role of Added Non-Appellant Parties

The Divisional Court in Caledon Residences Inc. v. Ontario Land Tribunal, 2025 ONSC 6546, recently addressed judicial review of decisions by the Ontario Land Tribunal (the “Tribunal”) as well as the role of non-appellant parties before the Tribunal and the degree of procedural fairness afforded to them.

Background and Tribunal Hearing

The facts of this decision involve an appeal by Sunshine Group to the Tribunal in relation to a non-decision by Council of the Town of Caledon regarding respective Draft Plan of Subdivision and Zoning By-law Amendment applications.

Caledon Residences Inc. owns a neighbouring developed residential subdivision directly adjacent to the property owned by Sunshine Group which is subject to these appeals. Caledon Residences sought and was granted party status in relation to the above-noted appeals as they were seeking a cost-sharing agreement condition be imposed on the basis that infrastructure paid for by Caledon Residences would benefit Sunshine Group’s proposed development. As a result, three issues related to the cost-sharing agreement raised by Caledon Residences were added to the Issues List to be adjudicated before the Tribunal.

However, three days prior to the merit hearing of these appeals, Sunshine Group and the Town of Caledon entered into Minutes of Settlement which were filed with the Tribunal. These Minutes of Settlement provided that the Draft Plan of Subdivision appeal would be withdrawn and that Sunshine Group and the Town of Caledon would request that the Zoning By-law Amendment instrument be approved on consent. This had the practical effect of dispensing with the Draft Plan of Subdivision appeal thereby removing Caledon Residences and its three issues relating to the cost-sharing agreement from the merit hearing which was now solely in relation to the Zoning By-law Amendment appeal.

At the outset of the merit hearing before the Tribunal, Caledon Residences argued that the withdrawal of the Draft Plan of Subdivision appeal should be refused to allow for them to argue its case on the merits with respect to the imposition of a cost-sharing agreement, or that the Tribunal should withhold its final order on the Zoning By-law Amendment appeal or impose a holding provision on the Zoning By-law Amendment approval pending finalization of a cost-sharing agreement between themselves and Sunshine Group, both of which arguments the Tribunal ultimately rejected.

Divisional Court

In upholding the Tribunal’s decision, the Divisional Court first explored whether judicial review is appropriate or suitable in this instance, as well as whether the Tribunal breached procedural fairness owed to Caledon Residences.

With respect to the judicial review requirement, the Divisional Court declined to hear the judicial review application brought by Caledon Residences indicating that the statutory requirement of subsection 24(1) of the Ontario Land Tribunal Act, 2021, that leave to appeal be sought indicated a clear legislative intent and that allowing the application for judicial review would undermine the Legislature’s intent to allow appeals only on question of law, with leave, from the Tribunal.

Notwithstanding this determination, the Divisional Court went on to further consider the merits of the procedural fairness arguments raised by Caledon Residences. In particular, the Divisional Court noted that Caledon Residences as a non-appellant party was given the opportunity to make oral submissions before the Tribunal and had full participatory rights in relation to the Draft Plan of Subdivision appeal, however, these rights afforded to a non-appellant party ceased to exist at the moment the aforementioned appeal was withdrawn.

The Divisional Court ultimately found that Caledon Residences had not established that there was procedural unfairness and agreed with the underlying principle articulated by the Tribunal in that requiring two private parties to enter into an agreement was outside the Tribunal’s jurisdiction.

This decision provides important insight into judicial review of matters before the Tribunal, reiterates the limited role non-appellant parties have before the Tribunal, as well as outlines both the limits and reluctance of the Tribunal to wade into private matters such as cost sharing agreements.