Facts:
The City of Toronto approved the development of a residential building across the street from Casa Loma in Toronto. The Casa Loma Residents Association (“CLRA”) appealed to the Ontario Land Tribunal (“Tribunal”) to challenge this approval. The CLRA opposed the development on the basis that the eight-story building would block sight lines from Casa Loma.
The Tribunal summarily dismissed the proceeding on the basis that it did not raise a valid land use planning issue and had no reasonable prospect of success, as the sight lines that the CLRA hoped to preserve were not protected by any bylaw.
The CLRA sought to challenge the Tribunal’s decision. Section 24 of the Ontario Land Tribunal Act, 2021,1 [OTLA] states that a decision of the Tribunal can be appealed to the Divisional Court with leave of that court and only on a question of law. Accordingly, the CLRA filed a motion for leave. The CLRA simultaneously filed a judicial review application on a question of mixed fact and law. The errors raised in the appeal and judicial review were framed differently, but they arose from the same issue dealt with by the Tribunal.
The parties proceeded to a case conference before Justice Myers of the Ontario Superior Court for a determination on the issue of scheduling. Specifically, the issue was whether the Court ought to join the motion for leave to appeal under s. 24 of the OTLA with the judicial review hearing and do everything all at once, or whether the motion for leave ought to be heard first. The CLRA’s position was that a combined hearing would be most efficient. The Respondent submitted that the leave to appeal motion should proceed first and at the same time as the judicial review.
Decision:
The motion for leave ought to be heard and decided first. If leave is granted, then the appeal and judicial review should be conducted together (per Myers J.).
The Supreme Court of Canada’s decision in Yatar v TD Insurance Meloche Monnex2 allows for concurrent appeal and judicial review proceedings arising out of the same administrative decision.
In most cases where both a statutory appeal and judicial review lie from the same decision, those proceedings will be heard together. But this case was different because of the requirement in s. 24 of the OTLA for leave to appeal on questions of law. This requirement reflects a legislative intent to give the Tribunal the final word on fact-based policy issues. It also reflects the intent to weed out appeals that should not be heard (for example, because the case does not raise an issue of public importance).
To give effect to the legislative intent, the motion for leave to appeal should be decided first, and separately from the judicial review. If leave is granted, the judicial review and appeal should proceed together.
Justice Myers left open the question of whether the CLRA’s appeal will preclude judicial review or not on the basis that the two engage the same issue, but framed differently. The Supreme Court’s decision in Yatar is still new and there is not much jurisprudence on the relationship between appeals and judicial reviews on the same tribunal decision. It may be that if a judicial review replicates the same issues raised in an appeal, one can preclude the other. This, Justice Myers said, is something the Divisional Court panel may need to grapple with given the issues raised by the CLRA, if leave is granted.
Commentary:
Although this is a decision about scheduling, it is one that lawyers should familiarize themselves with. The holding is simple: where an applicant wishes to challenge a tribunal’s decision by way of both judicial review and statutory appeal, but leave to appeal is required, the motion for leave should proceed first. That motion proceeds before a single judge of the Divisional Court. If leave is granted, the appeal and judicial review can be heard together, before a three-judge panel of the same Court. If leave is denied, then the judicial review proceeding will be much simplified.
The question of whether a statutory right of appeal prevents an individual from seeking judicial review on questions that cannot be dealt with by way of appeal was resolved by the Supreme Court of Canada earlier this year in Yatar (discussed in the March 2024 issue of the Stockwoods newsletter: here). The Court held that the legislative decision to provide for a right of appeal on questions of law does not eliminate judicial review of issues outside the scope of the statutory appeal.
Where counsel seek to challenge a tribunal decision subject to a limited statutory right of appeal or are granted leave to appeal, they are well advised to bring it simultaneously with a judicial review application where they seek to challenge the decision on multiple grounds. As Justice Myers noted in his decision, this will ensure that the court can address all of the arguments, some of which may overlap. It also protects against inconsistent holdings and remedies. But where leave to appeal is required, that motion must proceed first.