Michael Saul Polowin

The Tribunal held a Case Management Conference regarding multiple appeals against the City of Ottawa's adoption of Official Plan Amendment No. 3.

The parties advised that they are engaged in ongoing settlement discussions and requested a further CMC to provide an update.

The Tribunal scheduled a further video CMC for May 27, 2025, and directed the parties to provide a draft Procedural Order and Issues List if a settlement is not reached.

The Town of Carleton Place brought a motion to dismiss an appeal by Pegasus Development Corporation regarding Official Plan Amendment No. 8.

The Town argued that Pegasus lacked standing under s. 17(36) of the Planning Act because it did not make oral or written submissions to Council before the amendment was adopted.

Pegasus contended that its communications with senior municipal staff should be considered submissions to Council under the law of agency.

The Tribunal held that ad hoc meetings and emails with planning staff outside the formal public meeting process do not satisfy the strict statutory requirement of making submissions to Council.

The motion was granted and Pegasus's appeal was dismissed, with leave to request party status to shelter under another valid appeal.

The appellant appealed the Committee of Adjustment's denial of an application under s. 45(2)(a)(i) of the Planning Act to enlarge an existing legally non-conforming building.

The proposal involved demolishing two century-old semi-detached dwellings in the Rockcliffe Park Heritage Conservation District and reconstructing two larger semi-detached dwellings.

The Tribunal found that the existing dwellings, although uninhabitable, remained structurally intact from the public realm and thus maintained their legally non-conforming use status.

Applying the Fraser Test, the Tribunal concluded the enlargement was desirable for the appropriate development of the lands and would not cause undue adverse impacts on the neighbourhood.

The Tribunal allowed the appeal and granted the requested permissions.

The applicant appealed a Committee of Adjustment decision refusing a minor variance to permit a change to the legal non-conforming use of an existing commercial building from an automobile service station to an equipment rental and repair business.

The Tribunal found that the legal non-conforming use had continued and evolved in accordance with the principles in Saint-Romuald, as the new use was similar in nature and did not involve heavy vehicles.

The Tribunal concluded that the use was appropriate for the area and that the City failed to demonstrate any undue adverse impacts.

The appeal was allowed and the continuation of the non-conforming use was authorized.

The Hintonburg Community Association brought a motion seeking Party status in an appeal concerning minor variances for a property in Ottawa.

The applicant opposed the motion, arguing the association had no statutory right to party status and would not assist the Tribunal with expert evidence.

The Tribunal agreed with the applicant, finding no basis under the Planning Act or the Ontario Land Tribunal Act to grant Party status to the association, and dismissed the motion.

The applicant sought consent under section 53 of the Planning Act for a lot line adjustment to convey a 0.04 square metre portion of her property to the abutting property owners at 1 Second Avenue, and to expand an existing detached garage.

The application was part of a mutual land exchange to eliminate an existing eave encroachment.

The Committee of Adjustment found that the proposal was consistent with the Provincial Policy Statement, had regard for matters of provincial interest, and satisfied the criteria under subsection 51(24) of the Planning Act.

The application for provisional consent was granted subject to conditions, including the requirement that the severed land merge with the abutting property.

The applicant sought minor variances to permit a reduced rear yard setback, rear yard area, and interior side yard setback to expand an existing detached garage.

The Committee of Adjustment found that the requested variances met the four-part test under subsection 45(1) of the Planning Act, as they were minor, desirable for the appropriate development of the land, and maintained the general intent and purpose of the Official Plan and Zoning By-law.

The application was granted as amended.

The applicant brought a motion to deny Party status to the Rockcliffe Park Residents Association (RPRA) in an upcoming merit hearing regarding a minor variance appeal to expand a legal non-conforming duplex.

The Tribunal found that while the RPRA had a direct interest, it would not meaningfully assist the Tribunal because it did not intend to call expert evidence on the planning and heritage issues.

The Tribunal denied Party status, granted Participant status instead, and established the issues list for the merit hearing.

The applicant brought a motion for costs against the self-represented appellant following the dismissal of her appeal of a zoning by-law amendment.

The amendment sought to recognize an existing eight-unit multiple-family dwelling that had been in place for over 50 years.

The Tribunal found that the appeal was void of any legitimate land use planning grounds and had no probability of success, rendering it frivolous.

The Tribunal ordered the appellant to pay $5,000 in costs to the applicant.

The applicant appealed the Township of Horton's failure to make a decision on applications for an Official Plan Amendment and Zoning By-Law Amendment to permit a Class A gravel pit.

At the first Case Management Conference, the parties advised they had reached a settlement.

The Tribunal scheduled a written hearing event to consider the settlement.

The appellant appealed the City of Ottawa's failure to make a decision on applications for a Zoning By-law Amendment and a Draft Plan of Subdivision to facilitate a residential subdivision.

The parties reached a comprehensive settlement proposing approximately 440 residential units, a park block, and protection of a creek corridor.

Based on uncontested expert planning evidence, the Tribunal found the settlement proposal consistent with the Provincial Policy Statement and in conformity with the City's Official Plan.

The appeals were allowed in part, and the planning instruments were approved.

At a second Case Management Conference concerning appeals of the City of Ottawa's failure to make decisions on zoning by-law amendment and draft plan of subdivision applications, Tamarack (Cardinal Creek) Corporation sought party status.

The parties consented to Tamarack's request, limited to the issue of the appellant satisfying its obligations under a cost-sharing agreement.

The Tribunal granted Tamarack party status on this scoped issue and approved a revised Procedural Order and Issues List.

The moving party, R.W. Tomlinson Limited, sought an order for costs against the Town of Greater Napanee and Keep Napanee Great following a successful appeal regarding a zoning by-law amendment and site plan application for an asphalt plant.

Tomlinson alleged that the respondents acted unreasonably by pursuing an appeal with no reasonable prospect of success and raising irrelevant evidence.

The Tribunal dismissed the motion, finding that the respondents' conduct did not meet the high threshold of being unreasonable, frivolous, vexatious, or in bad faith required for a costs award under Rule 23.9 of the Tribunal's Rules of Practice and Procedure.

The applicant sought a declaration that Schedule Y5 of a subdivision agreement, which mandated the perpetual operation of a golf course on its property, was ultra vires, invalid, and unenforceable.

The court rejected all of the applicant's legal arguments, finding that the municipality had statutory authority to enter into the agreement, the agreement was enforceable as a contract binding on successors, it did not create contingent interests in land subject to the rule against perpetuities, and it did not amount to a constructive taking.

However, acknowledging the golf course's financial unviability, the court adjourned the application for 120 days and directed the parties to engage in mediation to seek a resolution under the agreement's amendment clause.

At a Case Management Conference regarding appeals of the City of Ottawa's Official Plan Amendment No. 3, the Tribunal heard a motion to substitute Denise Ménard as a party in place of 3930149 Canada Inc., whose conditional agreement of purchase and sale with Ménard had been cancelled.

With no objections, the Tribunal granted the motion.

The Tribunal also granted participant status to 21 individuals representing the public's interest in the overall effect of the OPA.

A further Case Management Conference was scheduled for June 2024.

The City of Ottawa appealed a Committee of Adjustment decision granting provisional consent to sever a lot, arguing the Committee erred by not including a tree protection condition.

Prior to the hearing, the parties reached an agreement to include a condition requiring a development agreement for tree preservation mitigation measures and associated security.

Based on uncontested expert planning evidence, the Tribunal found the application, subject to the agreed-upon condition, had regard to provincial interests, was consistent with the Provincial Policy Statement, and conformed to the Official Plan.

The appeal was dismissed and provisional consent was granted subject to the revised condition.

The applicant sought substantial indemnity costs against the appellant following the dismissal of the appellant's appeals regarding official plan and zoning by-law amendments.

The applicant argued that the appellant persistently violated the Procedural Order and that the appeals were frivolous, in bad faith, and brought for a collateral purpose.

The Tribunal found that the appellant did not breach the Procedural Order, having provided adequate notice for withdrawing issues and a witness.

The Tribunal also found no evidence of frivolous, vexatious, or bad faith conduct, concluding that the appellant raised valid planning issues.

The motion for costs was dismissed.

The applicant sought permission under section 45 of the Planning Act to change the legal non-conforming use of the property from an automobile service station to a retail, leasing, and repair facility for light construction equipment.

The City and area residents opposed the application, arguing that the previous use had been abandoned and that the new use caused significant adverse impacts, including noise, odours, and traffic issues.

The Committee of Adjustment refused the application, finding insufficient evidence that the legal non-conforming use had continued until the date of the application.

Furthermore, the Committee concluded that the proposed use was not desirable, created unacceptable adverse impacts on the neighbourhood, and was less compatible than the former use.

The Tribunal held a first Case Management Conference regarding appeals by Phoenix Harbour Old Montreal Road Inc. against the City of Ottawa for failing to make decisions on zoning by-law amendment and draft plan of subdivision applications.

A request for party status by Tamarack (Cardinal Creek) Corporation was deferred on consent to allow for potential resolution of issues.

The Tribunal scheduled a six-day hearing for August 2024 and a second Case Management Conference for February 2024, and approved a Procedural Order to govern the proceedings.

The applicant appealed the Town's refusal of a Zoning By-law Amendment and failure to make a decision on a Site Plan application to permit a permanent hot-mix asphalt plant and a future ready-mix concrete plant.

The Tribunal found that the proposed development is consistent with the Provincial Policy Statement and conforms to the County and Town Official Plans.

The Tribunal accepted expert evidence demonstrating that the plant is appropriately separated from sensitive land uses and that potential impacts related to noise, dust, odour, and traffic can be adequately mitigated.

The appeal was allowed, and the Zoning By-law Amendment and Site Plan were approved.