Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 18, 2021
CASE NO(S).: PL160656
The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Randal Chamberlain
Subject: Proposed Official Plan Amendment No. OPA 21
Municipality: City of Kawartha Lakes
LPAT Case No.: PL160656
LPAT File No.: PL160656
LPAT Case Name: Chamberlain v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Randal Chamberlain
Subject: By-law No. By-law 2016-118
Municipality: City of Kawartha Lakes
LPAT Case No.: PL160656
LPAT File No.: PL160657
Heard: June 14, 2021 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Erik and Deborah Kiezebrink (“Applicants”)
Kent Randall
Randal Chamberlain (“Appellant”)
David Donnelly* Denisa Mertiri* Justine Reyes* (Student-at-law)
City of Kawartha Lakes (“City”)
Robyn Carlson*
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON JUNE 14, 2021 AND ORDER OF THE TRIBUNAL
1This Case Management Conference (“CMC”) was convened at the instance by the Tribunal due to a lack of progress on the part of the parties with respect to the adjudication of these Appeals. The background to these Appeals has been set out in the prior CMC decisions of the Board and Tribunal. The Appellant appealed Zoning By-law No. 2016-118 and Official Plan Amendment No. 21, which were passed by City Council to permit a country inn development on the Applicants’ lands.
2The Appeals were last dealt with by the Tribunal at a CMC conducted on March 12, 2018. A resolution of the Appeals, as between the Appellant and the Applicants was apparently reached, and Minutes of Settlement (“Minutes”) were signed by those two parties shortly thereafter, in May of 2018. A copy of the Minutes was provided to the Tribunal, but the City’s agreement to the Minutes, as drafted, was absent.
3A cursory review of the Minutes indicates that while the “withdrawal” of the Appellant’s Appeals is envisioned by the parties, the Applicants and the Appellant, in actuality, have agreed to amendments to the two planning instruments and accordingly the Appeals are presumably to be allowed in part to permit the amendments (as approved by the City) thus requiring the Tribunal’s approval of the settlement and the revised planning instruments which are the subject of the Appeals.
4Despite the purported resolution of the issues between the Applicants and the Appellant, the Parties have not advanced the determination of these Appeals and the Tribunal’s file has languished since then. Based upon the submissions of the Parties today, this appears to be due to an abject lack of communication between counsel. The City advises that it provided its response to the draft Minutes some time ago with marked changes to the documentation. No responses were received from the Applicants or the Appellant. As the Tribunal is not privy to the City’s concerns with respect to the draft instruments amended pursuant to the Minutes it is unclear as to whether there is an impasse due to the City’s position, or easily resolvable issues relating to the wording of the two amended planning instruments.
5Counsel for the Applicants and the Appellant suggested that the parties pursue “informal mediation” between themselves or possibly formal Tribunal-led mediation, failing which a further CMC should be scheduled in four weeks to settle the form of a Procedural Order and Issues List and schedule a hearing.
6All parties are apparently amendable to such discussions and, if necessary, the assistance of a mediator.
7The Applicants and the Appellant are directed to respond to the City’s proposed and marked changes to the instruments forthwith and all parties are then to immediately initiate discussions to address the City’s concerns with the Minutes and the proposed draft planning instruments. Counsel for the Appellant is tasked with the responsibility of then reporting to the Tribunal once those discussions have taken place, and in any event, not later than Wednesday, July 14, 2021.
8If the intent is to request Tribunal-led mediation, the Case Coordinator is to be informed, and that request is to be made in the usual manner to the Tribunal.
9Given the lack of coordination by the Parties to this point, and the uncertainty as to whether the Parties can achieve a mutually satisfactory resolution, no CMC will be scheduled by the Tribunal at this time.
10If the discussion/mediation processes result in revised Minutes and draft amended instruments the Tribunal is to be advised, conflict dates to the end of October are to be provided by counsel, and a one-day settlement hearing will be scheduled for the purposes of determining the Appeals. In that instance the Tribunal is to be provided with marked and clean copies of the proposed amended planning instruments, a copy of the executed Minutes of Settlement and an affidavit or evidence outline of the planner, together with a Curriculum Vitae and executed Acknowledgement of Expert’s Duty in support of the proposed settlement not less than seven days prior to the scheduled hearing. Depending upon the timing of the status report to the Tribunal the scheduling of the Settlement Hearing may be dependent upon Council’s approval of the proposed resolution in principle, which will not occur until Tuesday, August 24, 2021 at the earliest.
11If these discussions or the mediation do not result in a resolution of all outstanding issues, one further CMC will be scheduled with notice to be provided by the Appellant, and the Tribunal is to be provided with a draft Procedural Order and Issues List prepared by the Applicants, with input from the City and the Appellant, not less than seven days before that scheduled CMC. Counsel will also provide conflict dates for the purposes of scheduling the hearing of these Appeals.
12The Tribunal is advised that the Parties may require three to four days for the hearing. This is however dependent upon the issues in dispute, considering that the Appellant and the Applicants have purportedly resolved all their concerns, and it is the City that has issues regarding the proposed resolution.
13As a matter of file management, the Panel notes that “Without Prejudice” correspondence dated June 7, 2021, regarding the proposed settlement, sent by the Appellant personally to planning Staff for the City, and not through his counsel, was copied to the Tribunal in advance of this CMC. It is inappropriate, and potentially prejudicial, particularly where counsel is retained for a party, for a represented litigant to be sending such Without Prejudice correspondence to the Tribunal’s attention. This correspondence will be deleted, removed from the Tribunal’s file, and may be resubmitted, if necessary, before the presiding panel, with the benefit of submissions from the Parties.
14The Panel Member may assist, to the extent required, with matters arising from this Decision and CMC Order, but is not otherwise seized for the hearing of these Appeals.
15The Tribunal so orders and provides these CMC directives for the purposes of the case management of this Appeal.
“David L. Lanthier”
DAVID L. LANTHIER
VICE-CHAIR
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.