Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: January 11, 2019

CASE NO.: 18-056

PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellants: See Appendix 1 – Appellant List

Applicants: Doug and Erin Grace

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to demolish the existing 2 storey chalet and construct a 2 storey with walkout, single dwelling, and construct a driveway

Reference No.: G/R/2016-2017/9173

Property Address/Description: Lot 15, Plan 94

Municipality: Town of the Blue Mountains

Upper Tier: County of Grey

NEHO Case No.: 18-056

NEHO Case Name: Torrie v. Ontario (Niagara Escarpment Commission)

Heard: In writing

APPEARANCES:

Parties	Counsel*
Desiree Torrie	Self-represented
Doug and Erin Grace	Denise Baker*

ORDER DELIVERED BY MARLENE CASHIN

REASONS

Background

1On October 16, 2018, the Niagara Escarpment Commission (“NEC”) issued a Notice of Decision conditionally approving an application by Doug and Erin Grace (“Applicants”) to demolish an existing two-storey chalet and replace it with a two-storey with walkout, 498 square metre (“sq m”) single dwelling, with a maximum height to peak of 9.34 metres (“m”) on the walkout side, and to construct a driveway, located at Unit #15 within Grey County Vacant Land Condominium Plan 94, Town of the Blue Mountains, in the County of Grey (“Proposed Development”). The October 16, 2018 Notice of Decision (“Notice of Decision”), which was re-circulated due to an administrative error in the description of the Proposed Development, replaced one originally circulated on October 9, 2018.

2Pursuant to s. 25(5)1 of the Niagara Escarpment Planning and Development Act (“NEPDA”), the NEC sent the Notice of Decision to numerous recipients, specifying that they had until midnight on October 30, 2018 to appeal the NEC’s decision. The Notice of Decision was directed to: “Applicant/Agent/Owner; Assessed owners of land within 120 m of the subject property; Consulted Agencies; Parties who requested Notice or are considered to have an interest in the Decision”.

3By letter dated October 22, 2018, Desiree Torrie filed a notice of appeal of the decision. Ms. Torrie is a unit holder in the Grey County Vacant Land Condominium Plan 94 (“Condominium Corporation”), where the Proposed Development is located. She is concerned that the Proposed Development does not comply with the by-laws established at the time the Condominium Corporation was created, specifically that the Proposed Development exceeds the maximum height and building envelope size allowed by the by-laws. Five other appeals were received within the time period allotted for the filing of appeals. Attached at Appendix 1 is a list of the persons who filed appeals.

4On November 30, 2018, the Niagara Escarpment Hearing Office (“NEHO”) acknowledged receipt of the correspondence from Ms. Torrie, but informed Ms. Torrie that it was unable to accept her appeal, as, pursuant to the NEPDA the NEHO does not have the jurisdiction to process an appeal from persons who are: not on the NEC’s list of assessed owners within 120 m of the subject property; not persons whom the NEC considers may have an interest in the decision; or not persons who have requested to receive a notice of decision. The NEHO also invited written submissions from Ms. Torrie, to be filed by December 4, 2018, and the NEC, to be filed by December 7, 2018, on the NEHO’s jurisdiction to receive the appeal filed by Ms. Torrie. On December 3 and 6, 2018 respectively, the NEHO received submissions from Ms. Torrie and counsel for the Applicants. The NEC did not file submissions.

5For the reasons that follow, Ms. Torrie’s application to appeal is dismissed.

Issue

6The issue is whether the NEHO can extend a right of appeal to a person who did not receive a notice of decision from the NEC.

Relevant Legislation

7Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Notice of decision

(5) The delegate to whom the Minister has delegated his or her authority under subsection (1) shall give notice of decision on any application for a development permit as follows:

1. By regular or registered mail or personal service to the Minister, to the applicant for the permit, to persons who have requested to receive notice of the decision, to persons whom the delegate considers may have an interest in the decision and to all assessed owners of land lying within 120 metres of the land that is the subject of the application.

2. If a condominium development is located within 120 metres of the land, instead of giving notice to all owners assessed in respect of the condominium development as required by paragraph 1, by regular or registered mail to the condominium corporation at its most recent address for service or its mailing address as registered under section 3 of the Condominium Act, 1998.

Same

(5.1) A copy of a decision given under subsection (5) to anyone other than the Minister shall include a notice indicating that the recipient of the decision may, within 14 days after the mailing of the decision, appeal the decision by giving the delegate a written notice of appeal that specifies the reasons for the appeal.

Discussion, Analysis and Findings

Overview and Summary of Submissions

8As noted above, Ms. Torrie’s notice of appeal expressed her concern that the Proposed Development does not comply with the by-laws established at the time Condominium Corporation was created. This decision does not deal with that issue, but specifically and only deals with the preliminary jurisdictional question of whether the NEHO can extend a right of appeal to a person who did not receive notice of a decision from the NEC. The Hearing Officer has considered the submissions of Ms. Torrie and the Applicants in this regard.

Desiree Torrie’s Submissions

9In her submissions on the question of jurisdiction, Ms. Torrie states that she believes that the NEC erred in “not including the condominium corporation and all condominium unit holders as “interested persons” within the meaning of the Niagara Escarpment Planning and Development Act”. She requests that “the notice process be re-started and notice be sent to all interested persons in accordance with the NEPDA”.

10Ms. Torrie says that to the best of her knowledge, the only persons who received notice from the NEC regarding the Proposed Development were owners of land within 120 m of the land that was subject to the application, but that the Condominium Corporation and all condominium unit holders would seem to be “interested persons” in the development of any individual unit within the condominium. In this case, she says, the land proposed to be developed is a unit within a condominium development.

11Ms. Torrie cites s. 25(5)2 of the NEPDA, as set out above, to submit that if the NEC is required to notify the Condominium Corporation in the case of a proposed development of lands within 120 m of a condominium corporation,

…it stands to reason that it is an “interested person” in the proposed development of any individual unit within its boundaries. Likewise the nature of a condominium development – including common elements, planned building scheme, etc. – mean that individual unit holders are all interested persons in the development of any individual unit with the condominium.

12Ms. Torrie submits that, the Condominium Corporation has an interest and duty to look after the common elements of the condominium development and ensure compliance with the condominium declaration and condominium agreement and therefore has an interest in reviewing the Proposed Development of any unit within the condominium development, and so, should be considered an “interested person” within the meaning of the NEPDA.

13In her written submissions, Ms. Torrie also included some brief information regarding issues that could be considered substantive issues relating to the compliance of the Proposed Development with the condominium agreement. As noted earlier, these issues are not relevant to the Hearing Officer’s decision on whether or not the NEHO has the jurisdiction to process Ms. Torrie’s appeal.

Applicants’ Submissions

14The Applicants submit that the NEHO does not have the jurisdiction to hear the appeal filed by Ms. Torrie on the basis that Ms. Torrie does not qualify as an appellant pursuant to the NEPDA.

15Specifically, the Applicants submit, Ms. Torrie did not receive notice of the NEC’s decision because she is not a property owner within 120 metres of the Proposed Development, nor was she identified as an interested person who requested a copy of the decision pursuant to s. 25(5) of the NEPDA and as such, her appeal letter dated October 22, 2018 cannot be accepted as a valid appeal.

16The Applicants say that, although Ms. Torrie raises issues with respect to the notice process,

…her December 3, 2018 letter does not ultimately dispute the fact that her property is not located within 120 metres of the property that is the subject of the permit application, nor does Ms. Torrie’s letter assert that she in fact did request a copy of the decision... It is therefore submitted that the NEHO has no jurisdiction to consider Ms. Torrie’s purported appeal.

17The Applicants submit that, the 120 m distance from the Proposed Development, for purposes of receiving notice from the NEC and being able to appeal, is to ensure that, among other things, “there is a reasonably potential impact between a property that is the subject of a permit application and an appellant”.

18The Applicants note that Ms. Torrie makes reference to s. 25(5)2 of the NEPDA, which would have allowed the Condominium Corporation itself to receive notice and to become an appellant to these proceedings. However, the Applicants say, the “Condominium Corporation, which is an entirely separate legal entity, separate and apart from the individual condominium owners/tenants, has chosen not to appeal the decision of the NEC”. As such, the Applicants submit:

…an individual condominium owner cannot assert the rights which would be given to the Condominium Corporation for itself. Ms. Torrie cannot purport to subsume the rights of the Condominium Corporation in favour of herself in order to create a valid appeal. As a result, it is our position that the NEHO has no jurisdiction to accept Ms. Torrie’s appeal, or to consider Ms. Torrie’s request to “re-start the notice process”. Acceptance of Ms. Torrie’s appeal or to otherwise change the Notice process, will significantly prejudice the Applicant through further delay and by allowing an appellant to have their appeal heard where there is otherwise no jurisdiction to do so.

Findings

19The issue of whether the NEHO can extend a right of appeal to a person who did not receive notice from the NEC has been adjudicated by the NEHO previously, in a decision called Paletta International Corp. v. Niagara Escarpment Commission, [2008] O.E.R.T.D. No. 5 (“Paletta”). In that decision, Hearing Officer DeMarco found that:

...a Hearing Officer does not have the jurisdiction to supplant the NEC’s decision with the Officer’s own views on who “may have an interest” and thus receive notice under section 25(5)1. Any challenge to the NEC’s exercise of discretion in carrying out its duty to give notice “to persons whom the delegate considers may have an interest” ought to be made to the courts and not to a Hearing Officer. The NEPDA provides for a specific avenue of appeal to Hearing Officers on the merits of the NEC’s decisions on applications for Development Permits. There is no indication that the legislation seeks to provide Hearing Officers with the power to second-guess the NEC on who has an interest for the purposes of section 25(5)1.

20In the present case, the Hearing Officer finds no reason to depart from the findings in Paletta and adopts the reasoning applied in that case. Ms. Torrie has provided no evidence or submissions that would convince the Hearing Officer that the Officer has the jurisdiction to second-guess the NEC in its decision regarding who “may have an interest” in the decision. To find otherwise would be to find that the NEPDA provides a right to appeal to any person who may become aware of a notice of decision by word of mouth or otherwise. This is clearly not what is intended by the legislation. In order to be entitled to notice of the NEC’s decision, Ms. Torrie’s property would have to be located within 120 m of the Subject Property, she would have to be a person whom the NEC considers may have an interest in the decision, or she would have to have requested to be notified of the decision by the NEC prior to a decision being made. The Tribunal has been provided with no evidence that any of these conditions exist.

21Regarding Ms. Torrie’s reference to NEPDA s. 25(5)2, pertaining to development within a condominium development, the Hearing Officer notes that a person representing the Board of Directors of the Condominium Corporation was included on the list of persons to whom the NEC gave notice of the decision. As such, it appears that the NEC complied with the requirements of s. 25(5)2 by giving notice to the Condominium Corporation. Further, Ms. Torrie, as an owner of a condominium unit, is not entitled to assert the rights of the Condominium Corporation. It was up to the Condominium Corporation separately, through the processes set out in the Condominium Act and within its own constituting by-laws, to determine if it wished to participate in this appeal.

22Despite the finding by the Hearing Officer that the NEHO has no jurisdiction to accept Ms. Torrie’s notice of appeal, Ms. Torrie is not without another possible opportunity to participate in the appeal. In Paletta, Hearing Officer DeMarco also found that “the role of the Hearing Officer with respect to those who assert an interest, but are not appellants or applicants, is to assess their interest in a proceeding…under the Rules of Practice of the Environmental Review Tribunal”. This assessment is intended to take place at a Pre-hearing Conference (“PHC”), if a request for status in the proceeding is made at that time.

23Because there are other valid appeals of this development permit approval before the NEHO (see Appendix 1 for list of Appellants), a PHC in this matter will soon be held. At that time, a Hearing Officer or Hearing Panel has the jurisdiction to consider requests for status in the proceeding as a Party, Participant, or Presenter, under the Rules of Practice of the Environmental Review Tribunal which are applicable to NEHO matters. Ms. Torrie can, therefore, seek status to participate in this proceeding even if she is not a valid appellant.

ORDER

24The appeal by Desiree Torrie (Case No. 18-056) is dismissed on the ground that she was not a recipient of the Notice of Decision under s. 25(5)1 of the NEPDA, and hence has no right of appeal.

Appeal Dismissed (Case No. 18-056)

“Marlene Cashin”

MARLENE CASHIN HEARING OFFICER

Appendix 1 – Appellant List

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

Niagara Escarpment Hearing Office A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Appendix 1

Appellant List

Appellant Name	File No.
Desiree Torrie	18-056
Tiana Koffler Boyman	18-057
Judi Frost	18-058
Ian Brown	18-059
Steven Young	18-060
Megan McIlroy	18-061