Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 24, 2021
CASE NO(S).: OLT-21-001023
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Kerissa Govender
Subject: Minor Variance
Property Address/Description: 35 Landscape Drive
Variance from By-law No.: 97-95
Municipality: Township of Oro-Medonte
Municipality File No.: 2021-A-22
OLT Case No.: OLT-21-001023
OLT File No.: OLT-21-001023
OLT Case Name: Govender v. Oro-Medonte (Township)
Heard: November 16, 2021 by video hearing (“VH”)
APPEARANCES:
Parties
Representative
Kerissa and David Govender (“Applicants/Appellants”)
Self-represented
Township of Oro-Medonte (“Township”)
No one appeared
Horseshoe Valley Property Owners Association (“HVPOA”)
Sonia Faryna
DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL
BACKGROUND and preliminary matters
1The Applicants/Appellants applied to the Township for variances from Zoning By-law No. 97-95 (as amended) to permit the construction of a 3-bedroom apartment dwelling unit in the basement of an existing dwelling at 35 Landscape Drive. The applications were subject to a positive planning report but the requested variances were refused by the Township’s Development Services Committee (“Committee”).
2The Applicants subsequently appealed the decision to the Tribunal.
3Prior to the hearing, the Township confirmed that it would not participate in the proceedings.
4At the commencement of the hearing, Sonia Faryna attended on behalf of the HVPOA to seek party status. At the hearing, Ms. Faryna confirmed the following:
- The HVPOA is an incorporated group and Ms. Faryna is an officer and vice-president of the association with authority to make decisions on behalf of the association.
- On August 27, 2021, the HVPOA learned that council’s decision to deny the requested variance would be appealed to the Tribunal.
- On September 1, 2021, the HVPOA learned that the Municipality would not participate in the proceedings.
- Beginning September 14, 2021, the HVPOA was in regular contact with the Tribunal seeking updates with respect to the status of the case.
- On October 8, 2021, the HVPOA received a notice of hearing dated October 7, 2021 from the Tribunal.
- On October 18, 2021, the HVPOA filed a party request form with the Tribunal.
- In a letter dated November 5, 2021, 11 days prior to the hearing, the Tribunal was notified by James J. Feehely that he had been retained by the HVPOA to represent their interests at the present hearing; however, he was not available to attend the scheduled hearing date and indicated that he would be seeking an adjournment to sometime after December 17, 2021, when he would become available, by way of motion if not on consent.
- The HVPOA retained a professional planner, Allan Ramsay, to provide expert opinion evidence on land use planning matters, and he had prepared a report and was ready to testify.
5The Tribunal dealt with the HVPOA request for party status first, since a non-party cannot seek an adjournment. The Applicants opposed the request, stating that the association is biased against their applications.
6The Tribunal granted the HVPOA’s request for party status for the following reasons:
- the association has a genuine stake in the matter through the interests of its members;
- the association has retained a professional planner to provide expert evidence, and he would be the only professional planner available to provide such evidence to the Tribunal;
- the degree of participation proposed by the HVPOA would be greater than that which is allowed by a group with only participant status; and
- given that the Township would not be participating, the hearing would be uncontested without the participation of the HVPOA and the Tribunal found that it would be beneficial to hear opposing viewpoints with respect to the applications.
7The Tribunal then dealt with the HVPOA’s request for an adjournment to allow Mr. Feehely’s attendance. The HVPOA submitted that it would be prejudiced if the requested adjournment is not granted due to the fact that they will not have representation by a lawyer.
8The