Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
November 30, 2021
CASE NO(S).:
PL200159
PL200484
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicants and Appellants:
Southwest Georgetown Landowners Group Inc., Georgetown Country Properties Ltd.
Applicants and Appellants:
Lormel Developments (Georgetown) Ltd., Lormel Developments (Eighth Line) Ltd., and Ozner Corporation
Applicants and Appellants:
Mattamy (Halton Hills) Ltd. (formerly known as 2108393 Ontario Ltd., 2108394 Ontario Ltd., and Barrhaven Place Inc.)
Applicant and Appellant:
Neamsby Investments Inc.
Applicants and Appellants:
Shelson Properties Ltd., and Coryville Construction Ltd.
Subject:
Request to amend the Official Plan - Failure of the Town of Halton Hills to adopt the requested amendment
Existing Designation:
Future Residential/Mixed Use
Proposed Designated:
Residential/Mixed Use
Purpose:
To permit the development of the lands for a new community comprised of residential, commercial, institutional, parks, and open space uses
Property Address/Description:
All lands subject to OPA
Municipality:
Town of Halton Hills
Approval Authority File No.:
D09OPA17.003
OLT Case No.:
PL200159
OLT File No.:
PL200159
OLT Case Name:
Southwest Georgetown Landowners Group Inc. v. Halton Hills (Town)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Southwest Georgetown Landowners Group Inc.
Appellant:
Georgetown Country Properties Ltd.
Appellant:
Lormel Developments (Georgetown) Ltd. et. al.
Appellant:
Mattamy (Halton Hills) Ltd
Appellant:
Neamsby Investments Inc.
Appellant:
Shelson Properties Ltd. and Coryville Construction Ltd.
Subject:
Proposed Official Plan Amendment No. OPA 32
Municipality:
Town of Halton Hills
OLT Case No.:
PL200484
OLT File No.:
PL200484
OLT Case Name:
Southwest Georgetown Landowners Group Inc. v. Halton (Region)
Heard:
November 8, 2021 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Town of Halton Hills
A. Burton
Regional Municipality of Halton
I. Tang
L. English
Neamsby Investments Inc.
D. Baker
Shelson Properties Ltd./
A. Margaritis
Coryville Construction Ltd.
Southwest Georgetown Landowners Group Inc.
M. Joblin
Conservation Halton
C. Léger
Iva Gaspar
T. Gaspar*
Georgetown Country Properties Ltd.
L. Dean
DECISION DELIVERED BY T. PREVEDEL AND STEVEN COOKE AND ORDER OF THE TRIBUNAL
BACKGROUND
1The matter before the Tribunal was a motion to request Party status from Milton Phase 4 (West) Landowners Group Inc. represented by Catherine Lyons, and the Milton P4 Trafalgar Landowners Group Inc. represented by Denise Baker. Collectively, they shall be referred to as “MP4”.
2Prior to the last Case Management Conference (“CMC”) conducted on October 13, 2021, the Tribunal received the Joint Motion Record for Party status from MP4.Responses from the Town of Halton Hills and the Regional Municipality of Halton (“Region”) and a Reply from MP4, which were entered as Exhibits.
Joint Motion Record for Party Status from MP4
3In her oral submission to the Tribunal, on behalf of MP4, Ms. Lyons confirmed that the interests of MP4, in these appeals, are confined to matters pertaining to the Region’s Natural Heritage System (“NHS”).
4She stated that the Region’s Official Plan (“ROP”) contains numerous detailed policies related to the NHS, which would apply to all lands within the Region. The Regional NHS traverses local municipal boundaries and also affects the MP4 lands within the Britannia Secondary Plan (“SP”) and the Trafalgar SP, respectively.
5Ms. Lyons further stated that MP4’s participation, at the Hearing, would be confined to only the natural heritage issues as contained in the draft Procedural Order (“PO”), and in her estimation would add only two (2) days of evidence-in-chief to the proposed 26-week Hearing of the Merits.
6Ms. Lyons opined that there would be no prejudice to the other Parties if Party status was granted to MP4, as evidence is yet to be heard by the Tribunal and the addition of MP4 as a Party would not create a delay in the hearing process. She reminded the Tribunal that several of the other Parties were in support of MP4’s request for Party status, and that the remaining Parties were either silent on the matter or not objecting.
7Ms. Lyons further stated that MP4 would be prejudiced if not granted Party status, as the Tribunal’s determination of the NHS issues and how the Region’s NHS policies should be interpreted would have a direct bearing on MP4’s land holdings. She noted that the requested Party status would likely avoid a multiplicity of adjudication of issues as the Region’s NHS policies apply equally to the lands, which are the subject of this Hearing and the MP4’s land holdings in the Town of Milton.
8With respect to the stated concerns of both the Region and the Town of Halton Hills that there would be too many Parties, Ms. Lyons told the Tribunal that there were only two additional Parties being proposed, and that they would be sharing witnesses and only participating during the first Phase of the Hearing.
9With respect to meeting the tests for Party status, Ms. Lyons reminded the Tribunal that there is no legislative test for a private appeal. With respect to the tests under the Planning Act, s. 17(44.1) and (44.2), notwithstanding the fact that MP4 did not participate in the prior public process, they could be added as a Party if the Tribunal was of the opinion that there are reasonable grounds to add them as a Party.
10Ms. Lyons stated that the proposed modifications imposed by the Region on the Town of Halton Hills’ Official Plan Amendment No. 32 (“OPA 32”), with respect to NHS matters, introduce a “precautionary approach” to trails and buffers, and these modifications are the crux of MP4’s concerns.
11With respect to the concern that the MP4 land holdings are not part of OPA 32 and are physically distant, Ms. Lyons made reference to the Affidavit of Nancy Mather, where she opined that physical distance between the OPA 32 lands and MP4’s land holdings is not relevant with respect to the interpretation and implementation of NHS policies. MP4’s interests relate to how these policies would apply throughout the Region.
12Ms. Lyons argued that, as the Region was applying a “systems” approach to NHS policies, the MP4 could provide a landowner’s perspective on this approach, and this would provide the Tribunal with reasonable grounds to allow Party status.
13With respect to the “floodgate” argument, Ms. Lyons took the Tribunal to the Interrogatories and Responses, which were entered as Exhibits 9(a) and (b), in which she demonstrated that there were only three groups, which would be affected by the NHS policies, namely, Southwest and the two MP4 land owners, thus limiting the potential to opening up a floodgate of other property interests.
14Ms. Lyons made reference to two cases in the Joint Book of Authorities, namely Oakville (Town), Re, 2010 CarswellOnt 7078 and Jaglowitz v. Muskoka Lakes (Township) 2018 CarswellOnt 2236 (“Jaglowitz”), both examples demonstrating that the Tribunal may grant Party status to individuals for reasons beyond mere proximity to a specific site. She emphasized that the Region’s NHS policies would affect and prejudice the MP4 land owners.
15In closing, Ms. Lyons repeated that MP4 was only asking for two days of evidence-in-chief during an estimated 26-week hearing, and her request for Party status would not prejudice the Town of Halton Hills or the Region.
16Ms. Lyons also noted that, as the other Parties were embarking on a mediation process later this month, MP4 would like to participate in that process if Party status was granted.
Response to Motion - Regional Municipality of Halton
17Mr. Tang, counsel for the Region, requested the Tribunal to dismiss the MP4 Motion in its entirety.
18He stated that the tests for Party status have not been met, and moreover that the MP4 lands are physically distant, some 9 and 10 kilometres away from the OPA 32 lands.
19Mr. Tang told the Tribunal that the public process for the Town of Halton Hills’ OPA 32, spanned a period of seven (7) years, and the Regional adoption of OPA 32 was two (2) years later. At no time during this lengthy process did MP4 make oral or written submissions to the Town of Halton Hills or the Region.
20He opined that adding two more Parties, comprised of multiple land owners, to the Tribunal's proceedings would unnecessarily increase the time and complexity of these proceedings to the prejudice of the Region. Moreover, Mr. Tang stated that, if MP4’s request is granted, it will invite land owners across Ontario to seek Party status in appeals of Secondary Plans in other municipalities that involve an interpretation or implementation of Regional policy. Such an outcome is not in the public interest and is contrary to the provincial interest in resolving planning conflicts in a timely manner. It is also contrary to the Ontario Land Tribunal Act (“OLTA”) and the Rules of Practice and Procedure (“Rules”), which are focused on offering the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings in this case, OPA 32, and not lands in the Town of Milton.
21Mr. Tang took the Tribunal to Mr. McCallum’s Affidavit, wherein he explained that the Trafalgar SP is now with Regional staff, but no formal recommendations have been made and the Region has not made a decision on the Trafalgar SP. He also noted that the Town of Milton is currently in the very preliminary process of engaging with the community for the Britannia West SP.
22Mr. Tang further stated that the protection of Regional and Provincial interests is best supported by early involvement in local municipal studies that support the development of Secondary Plans. He reinforced the fact that the Regional NHS policies refer specifically to the OPA 32 lands known as Vision Georgetown.
23Mr. Tang then took the Tribunal to the test for Party status under Rule 8.2, which states that the Tribunal may add or substitute a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a Party and their interest may be transferred or transmitted to another Party to be added or substituted provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.
24The Region’s position is that, while there is no legislative test for Party status for the non-decision appeal, the MP4 request does not meet the test under the Planning Act, as they have no direct interest in the Hearing and have not brought any evidence forward.
25As noted earlier, Mr. Tang stated that the MP4 land owners did not participate in the public process leading up to the adoption and approval of OPA 32. If the MP4 land owners had a bona fide interest in the interpretation and implementation of the Region’s NHS policies for OPA 32, the appropriate time to make those views known was during the public process.
26He opined that the MP4 landowners are sophisticated Parties and yet they have provided no reasons for their failure to make submissions to Town of Halton Hills’ Council before OPA 32 was adopted prior to Council's endorsement of the Region's draft modifications or to Regional Council before OPA 32 was approved with modifications.
27Mr. Tang argued that MP4’s request for Party status undermines one of the fundamental purposes of the Planning Act, by providing planning processes that are fair by making them open, accessible, timely and efficient. It is not in the public interest to add parties to an adversarial process before the Tribunal when those seeking status chose to remain on the sidelines when there were multiple opportunities to raise their concerns during the public consultation process.
28Mr. Tang also argued that encouraging land owners to seek Party status in Secondary Plans that do not directly affect their lands on the premise that a decision on that Secondary Plan interprets or implements Regional policy would create a resource intensive and unwieldly in the Secondary Plan approval process.
29In contrast, Mr. Tang noted that there is no evidence of or risk of prejudice to the MP4 land owners. The public process for the Town of Milton Secondary Plans is still underway. The MP4 land owners will have full and fair opportunities to make submissions regarding the Secondary Plans that will apply to their lands and if they choose to do so, appeal any decision to approve such Secondary Plans including any concerns they may have regarding the Region’s NHS policies at that time and in those proceedings. Mr. Tang opined that it is premature for the MP4 land owners to advance issues and concerns related to their lands in Town of Milton in these proceedings.
30Furthermore, Mr. Tang noted that the Town of Milton is not present in these proceedings. It is improper and prejudicial to the Region's relationship with the Town of Milton for evidence or argument related to the Town of Milton Secondary Plans before that planning process has concluded.
31Mr. Tang argued that the MP4 land owners do not have a direct interest in these proceedings. There is no evidence to suggest how their proprietary interest would be affected by the Tribunal’s decision on OPA 32.
32With respect to the second prong of the test under Rule 8.2, the MP4 land owners fail to advance any evidence to satisfy the “necessity” test for Party status. MP4 has provided no evidence to demonstrate how or why their presence at the hearing regarding a Secondary Plan in the Town of Halton Hills, when all of their landholdings are distant and in the Town of Milton, is necessary to allow the Tribunal to adjudicate effectively and completely on the issues of OPA 32. Plainly put, if their concerns are with lands outside of OPA 32, their presence is simply not necessary.
33Mr. Tang also made reference to several decisions, namely Aryeh Construction Limited v. Markham (City) (“Aryeh”), 2021 CarswellOnt 5974 and 2322244 Ontario Inc. v. Whitby (Town), 2021 CarswellOnt 10167 (“Whitby”), supporting his assertion that the Tribunal should not grant Party status for individuals not directly affected by the proceedings.
34In closing, Mr. Tang opined that all of the NHS issues will be sufficiently canvassed by the Parties and their expert witnesses, and there is no need to add MP4 as a Party.
Response to Motion - Town of Halton Hills
Response to Motion – Town of Halton Hills
35Mr. Burton, counsel for the Town of Halton Hills, fully supported the submission provided by Mr. Tang. He made specific reference to the lack of involvement of MP4 in the Town of Halton Hills’ process.
36Mr. Burton stated that the modifications made by the Region on OPA 32 for NHS policies did not appear out of nowhere, and yet there was no submission by MP4 at the time of going through the municipal process.
37Both Mr. Burton and Mr. Tang referred to Nancy Mather’s Affidavit with respect to proximity and noted that her professional background is engineering and not planning, thus her opinions should be disregarded.
38Mr. Burton emphasized that MP4 have no direct interest in OPA 32. Using the fact that the MP4 lands are within the Sixteen Mile Creek Watershed is not relevant, as Vision Georgetown was subject to its own separate sub-watershed study.
39Mr. Burton argued that the presence of MP4 was simply not required. Every possible issue regarding NHS policies will be raised and discussed by counsel. Mr. Burton also cautioned the Tribunal that by admitting MP4 as a Party, not only would they be adding additional evidence-in-chief, but they would be entitled to cross examination, further motions and appeals, thus complicating an already controversial process.
40Mr. Burton also reinforced Mr. Tang's concerns regarding the applicability of Rule 8.2 on test for Party status. He argued that there are no reasonable grounds to add MP4 as a Party. He further argued that they were not necessary to the proceedings as they aren't adding any new evidence and haven't identified new issues.
41In closing, Mr Barton requested the Tribunal to dismiss the request of MP4 for Party status and reserved the right to request costs
Reply of MP4
42Ms. Lyons took the Tribunal to some of the modifications to NHS policies made by the Region. She specifically pointed out what was deleted from OPA 32 with respect to buffer zones due to their “precautionary” approach.
43She stated that MP4 had no statutory opportunity to comment on the modifications.
44Ms. Lyons also made reference to the case law contained within the Joint Book of Authorities, specifically Aryeh, Whitby, Fennema1 and Jaglowitz, where the Tribunal allowed Party status under certain circumstances.
Motion Ruling of the Tribunal
45The issue to be determined on this motion is whether there are reasonable grounds to add MP4 as a Party to this proceeding.
46After careful consideration of the written and oral submissions, the Tribunal has decided not to grant Party status to MP4.
47With respect to the public interest, the Tribunal agrees that adding MP4 as a Party to this proceeding would extend the Hearing time and overly complicate an already controversial proceeding. This would cause additional resources and time to be expanded by all Parties and the Tribunal, and is not in the public interest to do so.
48The Tribunal is not satisfied that MP4 has a direct interest in this proceeding. Their lands are in the Town of Milton and are approximately 9 to 10 kilometres away from the OPA 32 lands. The MP4 land owners will have the ability to deal with the separate Town of Milton Secondary Plan processes in due course.
49The Tribunal heard arguments from MP4 that allowing Party status would eliminate a multiplicity of hearings. However, as noted by Mr. Tang, there is no guarantee that MP4 will not appeal to the Tribunal through the Secondary Plan process in the Town of Milton, as well as other land owners, and thus the argument of eliminating a multiplicity of hearings has no weight with this Panel.
Order
50The Motion is denied and the Tribunal does not grant Party status to the Milton P4 Trafalgar Landowners Group Inc. and the Milton Phase 4 (West) Landowners Group Inc.
“T. Prevedel”
T. PREVEDEL
MEMBER
“Steven Cooke”
STEVEN COOKE
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.