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On November 28, 2025, the Divisional Court released Caledon Residences Inc. v. Ontario Land Tribunal, 2025 ONSC 6546. Justice Backhouse, writing for a unanimous panel, confirmed that parties challenging Ontario Land Tribunal ("OLT") decisions on questions of law, including alleged breaches of procedural fairness, must pursue the statutory appeal route, which requires leave.
Background
Caledon Residences Inc. ("CRI"), was party to OLT appeals brought by 1685078 Ontario Inc. ("Sunshine Group") respecting applications for draft plan of subdivision ("Draft Plan") approval and a zoning by-law amendment ("ZBA"). CRI raised no issues with the ZBA. Instead, it sought to secure a condition of draft plan approval requiring Sunshine Group to share in the costs of certain infrastructure from which CRI alleged Sunshine Group benefited. Days before the hearing, Sunshine Group and the Town of Caledon entered Minutes of Settlement pursuant to which Sunshine Group withdrew its Draft Plan appeal and the parties agreed to present a settlement of the ZBA appeal to the OLT. Without the Draft Plan appeal before the OLT, CRI was unable to seek the imposition of a cost sharing condition.
At the hearing, CRI requested that the OLT refuse Sunshine Group's withdrawal of its Draft Plan appeal. In the alternative, CRI asked that the OLT either withhold its final order on the ZBA until a cost sharing agreement is entered into, or impose a holding provision on the ZBA to be lifted once a cost sharing agreement is finalized. The OLT allowed the withdrawal and rejected those requests. In refusing the second request, it noted that it lacked jurisdiction to compel private parties to contract and observed that CRI had previously raised no issues with the ZBA appeal. Written reasons followed on December 24, 2024 (the "OLT Decision").
CRI unsuccessfully sought costs against Sunshine Group and requested an internal review of the OLT Decision. The request for review was dismissed on the grounds that there was no convincing and compelling case alleging an error of law warranting review.
Concurrently, CRI brought an application for judicial review of the OLT Decision, alleging that its right to procedural fairness was breached when the OLT declined to allow it to argue the merits of its cost-sharing case. It did not seek leave to appeal.
Court Declines Judicial Review
The Divisional Court dismissed the application, declining to consider the merits of the judicial review. Following the Supreme Court's direction in Yatar, the Court held that it must determine whether judicial review is appropriate before considering the merits.
The Court found that subsection 24(1) of the Ontario Land Tribunal Act, 2021 ("OLT Act") demonstrates a clear legislative intent: challenges to OLT decisions on questions of law, which includes questions of procedural fairness, must be granted leave to appeal. Subsection 24(1) of the OLT Act provides that a decision of the OLT may be appealed to the Divisional Court, with leave, but only on a question of law. Permitting judicial review in these circumstances would undermine the appeal mechanism chosen by the Legislature.
No Breach of Procedural Fairness
The Court held that CRI's procedural and participatory rights ended when Sunshine Group withdrew its Draft Plan appeal. Under subsection 51(36) of the Planning Act, once an appeal is withdrawn, which the Court noted was always a possibility, the OLT must notify the approval authority and the matter reverts to that authority.
The Court also noted that CRI was permitted to make oral submissions on both the withdrawal of the Draft Plan appeal and its requested relief under the ZBA appeal. It then questioned whether the OLT had any authority to withhold approval of the ZBA pending a private cost-sharing agreement or to impose a holding provision to compel one. The Court agreed with the OLT that compelling private parties to contract fell outside its jurisdiction.
Key Takeaways
- Procedural fairness issues are questions of law. Parties must pursue them through the statutory leave-to-appeal mechanism under the OLT Act, not through judicial review.
- Non-appellant parties in OLT proceedings face inherent risk. Their issues and their procedural rights may fall away entirely if the appellant withdraws its appeal.
Davies Howe is pleased to have represented Sunshine Group in this matter.
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