Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 29, 2021
CASE NO(S).: PL200490
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Norman Edward Davidson Subject: By-law No. 2020-48 Municipality: Township of McKellar OLT Case No.: PL200490 OLT File No.: PL200490 OLT Case Name: Davidson v. McKellar (Township)
PROCEEDING COMMENCED UNDER subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Motion By: Thomas McKeag Purpose of Motion: Request for an Order Dismissing the Appeal Appellant: Norman Edward Davidson Subject: By-law No. 2020-48 Municipality: Township of McKellar OLT Case No.: PL200490 OLT File No.: PL200490
Heard: May 20 and 21, 2021 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Norman Edward Davidson (“Appellant”) | Marilyn Sparrow |
| Township of McKellar (“Township”) | No one appeared |
| Thomas Garret McKeag (“Applicant”) | Marc Kemerer* |
DECISION DELIVERED BY MARGOT BALLAGH AND ORDER OF THE TRIBUNAL
BACKGROUND
1The Applicant, Thomas Garret McKeag, applied to the Township of McKellar (“Township”) for a Zoning By-law Amendment (“ZBA”) to rezone his lands legally described as Part of Lot 28, Concession 10, and described as Part 9 on Reference Plan No. 42R-20625 (the “Subject Lands”). The Subject Lands are located at the north end of Lake Manitouwabing and accessed off Lakeshore Drive by a private road system. The requested rezoning from the Waterfront Residential 2 (WF2) Zone to a Special Provision Zone in Zoning By-law No. 95-12 was a condition of a Consent of the Parry Sound Area Planning Board.
2The Applicant had previously applied for the Consent to the Parry Sound Area Planning Board to sever the Subject Lands into two parcels, with the severed portion (“Severed Lands”) to be conveyed to his neighbour, David Lewis, for use as a private access point for water-access-only land owned by Mr. Lewis in close proximity to the Severed Lands.
3The Parry Sound Area Planning Board approved the Consent application subject to a number of conditions including that the Applicant apply for a rezoning to allow for the parking of boats/trailers/cars and related structures on the Severed Lands and that a restriction be placed on title to the Severed Lands so that they could be sold only with Mr. Lewis’ lands.
4No appeal of the Consent decision was filed, and the Applicant proceeded to file the requisite rezoning application on March 13, 2020 with the Township, as required by the conditions of the Consent Decision.
5The Planning staff of the Township supported the approval of the requested ZBA and the Township’s Council adopted the ZBA on September 8, 2020, resulting in Zoning By-law No. 2020-48.
6The Appellant, Norman Edward Davidson, who owns land on the same lake, at 104 Inn Road approximately 3 kilometres away from the Subject Lands by water and over 10 kilometres away by land, appealed the Township’s decision to the former Local Planning Appeal Tribunal, now the Ontario Land Tribunal (the “Tribunal”) pursuant to section 34(19) of the Planning Act (the “Act”).
7The first Case Management Conference (“CMC”) in the appeal before the Tribunal was scheduled for March 25, 2021.
8Prior to the CMC, the Applicant served a Notice of Motion to Dismiss the Appeal without a hearing (“Motion to Dismiss”) pursuant to section 34(25) of the Act. The Applicant’s Notice of Motion to Dismiss consisted of more than 200 pages of material and the Appellant’s Notice of Response to Motion to Dismiss consisted of almost 500 pages of material.
9In addition, on the day preceding the CMC, the Township brought a Motion on short notice to quash a Summons to Witness (“Summons”) that had been issued administratively at the request of the Appellant to compel the attendance of Michelle Hendry, former Acting Clerk for the Township of McKellar, to give evidence at the Motion to Dismiss.
10On March 25, 2021, the Tribunal convened the first CMC in the proceedings during which proper notice of the CMC was confirmed; the parties were identified as being the Appellant, the Township and the Applicant; and the participants were identified as Donald Sneyd and Linda Lou and John Pinnington. Other issues normally addressed at a first CMC, such as opportunities for settlement or preparations for the hearing or the terms of a procedural order were considered premature as they would possibly be rendered unnecessary depending on the disposition of the pending Motion to Dismiss the Appeal without a hearing.
11Further, on March 25, 2021, the Tribunal heard the Motion brought by the Township to quash the Summons. Counsel for the Township, Leo Longo, told the Tribunal that the Township was attending only to address the issue of the Summons. He said the Township had not intended to participate in the Appeal but, after learning about the Summons, decided to bring the Motion to Quash the Summons. He said that it was not unusual for a municipality of limited resources to “step aside” where there are other capable parties to respond to an appeal of the Township’s decision, as in this case. He asked that the Tribunal give no weight to the Appellant’s suggestion that the lack of participation by the Township meant anything other than that. For reasons provided in its decision issued on April 6, 2021, the Tribunal ordered that the Summons be quashed.
12The issues for the CMC and the Motion to quash the Summons consumed the day. The Motion to Dismiss without a hearing was adjourned to be heard on May 20 and 21, 2021 and the Parties (the Appellant and the Applicant who would be arguing the motion) were directed to file Factums to focus the issues on the Motion to Dismiss.
13The Tribunal received Factums from both parties in April 2021 and in early May 2021, received another notice of motion, this time for Directions by the Appellant. The Appellant’s materials on the Motion for Directions exceeded 200 pages and the Applicant’s Response to the Motion for Directions was close to 70 pages. The Tribunal received yet another notice of motion on May 17, 2021 with just three days’ notice, this time a motion by the Appellant to Strike out and Expunge the Affidavit of the Township’s planner, John Jackson, that had been filed with the Applicant’s Notice of Motion to Dismiss.
THE HEARING EVENT
May 20, 2021
14The dates, May 20 and 21, 2021 for the current hearing event had been reserved to hear the adjourned Motion to Dismiss without a Hearing. Shortly before the hearing was to begin on May 20th, the Appellant requested the matter be stood down until10:45 a.m. as an accommodation for the representative’s health. The Tribunal had convened the hearing at the previously arranged time and was able to notify the Applicant, who was agreeable, to the later start time under the circumstances.
The Appellant’s Motion to Strike Out and Expunge the Affidavit of Mr. Jackson
15Once the hearing event began, the Tribunal first dealt with the Appellant’s Motion to Strike Out and Expunge the Affidavit of Mr. Jackson sworn March 11, 2021. The Tribunal noted that this motion was received only three days prior to the hearing event and the Appellant was accordingly also requesting an order abridging the time for service of the notice of motion.
16Rule 10.5 of the Tribunal’s Rules of Practice and Procedure (“Rules”) provides that a notice of motion and all supporting materials shall be served at least 15 days before the date of the motion to be held unless the Tribunal orders otherwise. The Tribunal Rules are clear that the Tribunal is to interpret the rules and conduct proceedings that offer the best opportunity for a fair, just, expeditious and cost-effective resolution of proceedings.
17The Tribunal was not satisfied, in this instance, that a deviation from the rule of adequate notice was appropriate. Adequate notice is the default to ensure the Tribunal’s processes are fair, just and expeditious for all parties, to avoid ambush, to allow all parties and the Tribunal to properly prepare and to avoid delay. The exception for an abridgment of time for service should be permitted only where it is clear that the notice of motion could not have been served according to the rules and where the nature of the relief requested is important to ensure a fair and just outcome. The Tribunal was not satisfied that this motion could not have been served with appropriate notice. The Appellant had the Jackson Affidavit for months. The Tribunal also notes that the Appellant would have the opportunity to address any objections to the content of Mr. Jackson’s Affidavit during the Appellant’s response to the Motion to Dismiss.
18For the reasons stated, the Tribunal refused to hear the Appellant’s Motion to Strike Out and Expunge the Affidavit of Mr. Jackson and ordered that the motion was denied.
The Appellant’s Motion for Directions
19Next, the Tribunal addressed the Appellant’s Motion for Directions, which the parties agreed was served in time. However, the Applicant submitted that the Motion for Directions was not properly before the Tribunal because no affidavit accompanied the Notice of Motion as required by Rule 10.4(e). Further, the Applicant raised the issue that the Appellant’s Reply to the Applicant’s Response to the Motion was served late (after May 17, 2021 in contravention of Rule 10.8). In addition, the Applicant submitted that the Appellant raised new issues in the Reply that should have been raised in the notice of motion and were not introduced by the Applicant’s Response, such that the Applicant had not been afforded an opportunity to address them.
20The Tribunal agrees that the Appellant’s Motion for Directions is deficient for the reasons stated by the Applicant. Ms. Sparrow acknowledged the deficiency telling the Tribunal that she had neglected to file an accompanying affidavit due to her health. She said however that she had included all the exhibits. The Tribunal is sympathetic to Ms. Sparrow’s stated health challenges; however, the Tribunal cannot accept as evidence unsworn exhibits attached to a notice of motion. Ms. Sparrow also acknowledged that the new issues raised in the Appellant’s reply materials had not been raised earlier in the Notice of Motion for Directions nor in the Applicant’s Response to the Motion for Directions. When asked why the issues had not been raised earlier, she did not provide a reason and simply indicated that they were raised now and the Tribunal had an obligation to address them in the public interest.
21Further, the Tribunal notes that the request for relief is set out in 22 paragraphs in the Motion for Directions as a series of “requests for directions from the Tribunal” in the nature of questions, many of which appear to be rhetorical and most of which have already been discussed and answered throughout the proceedings to date. The Tribunal also notes that the remaining questions raised in the Motion for Directions can be more properly dealt with in the Motion to Dismiss.
22For the reasons given, the Tribunal denied the Appellant’s Motion for Directions. Normally, that would be the end of the discussion on a motion that is denied. However, in this case, the Tribunal is sensitive to the Appellant’s representative’s repeatedly stated challenges due to her health, and decided that it might be helpful to address some of the questions raised in the Motion for Directions to provide clarity going into the Motion to Dismiss. Each party was given an opportunity to provide comment on the issues raised.
23For example, as already noted above, the Tribunal agreed with the Applicant that a Reply is not the proper place for a new issue not made necessary by the Response, but Ms. Sparrow strongly submitted that when an issue was of such importance, the Tribunal would be remiss to ignore it. Mindful that the Tribunal must protect the public interest in land use planning matters, the Tribunal permitted Ms. Sparrow to elaborate.
24Ms. Sparrow told the Tribunal that she had determined that the Applicant’s Consent to sever was contingent upon the Applicant obtaining the ZBA by a deadline that had recently passed. She submitted that the provisional Consent (that was contingent on the ZBA) had essentially lapsed. It was her position, that because the Consent was now deemed to be refused, the Applicant could no longer pursue the ZBA, which is the subject of the current Appeal and was a condition of the now lapsed Consent. She submitted that the Applicant no longer had lands to which the ZBA could apply.
25In response, Mr. Kemerer took the position that, whether or not the Consent remains valid, there is nothing stopping a landowner from seeking a site-specific ZBA in relation to a portion of their lands.
26The Tribunal told the parties that this is an issue that could be addressed by Mr. Jackson, the Township’s land use planner during the Motion to Dismiss. The Consent was not before the Tribunal, but Mr. Jackson might be able to provide a planning opinion as to whether this submission of the Appellant related to the Consent changes his opinion related to the ZBA.
27In addition, the Appellant took the position that the Applicant was not a party to the Appeal and therefore could not bring the Motion to Dismiss. However, in the Applicant’s view, he was clearly a party and questioned why the Appellant had not raised this issue earlier if the Appellant felt it was a legitimate issue.
28The Tribunal clarified for the Appellant that the Applicant is a party to the appeal on the basis that the Tribunal was of the opinion that there were reasonable grounds to add the Applicant as a party as permitted pursuant to section 34(24.2) of the Act. The Applicant has a direct interest in defending the decision of the Township to adopt his proposed ZBA in relation to the Subject Lands which are owned by the Applicant. This is particularly so given the Township’s lack of participation in the Appeal. Accordingly, as a party to the Appeal, the Applicant may bring the Motion to Dismiss as permitted “of any party” according to the wording in section 34(25) of the Act.
29The Tribunal also clarified for the Appellant that the Applicant may bring the Motion to Dismiss at this time as the CMC was convened to the extent reasonable and possible on March 25, 2021, given that the Motion to Dismiss will confirm whether or not the appeal should proceed.
30Further the Tribunal clarified for the Appellant that the costs of the proceedings will be dealt with as per the direction in the Tribunal’s decision issued on April 6, 2021 at the end of the last hearing event.
31The Tribunal heard submissions from the representatives specifically on the request by Ms. Sparrow to cross-examine Mr. Jackson on his Affidavit in support of the Motion to Dismiss. Ms. Sparrow took the position it was the Appellant’s right to cross-examine Mr. Jackson on his Affidavit to test the evidence. Mr. Kemerer submitted that cross-examination should have been done prior to the hearing of the Motion and that it was now too late. He said the motion should be argued on the affidavit evidence alone. Ms. Sparrow acknowledged that she had not asked Mr. Kemerer to arrange an opportunity for cross-examination of Mr. Jackson in advance of the hearing of the Motion. Mr. Kemerer confirmed for the Tribunal that Mr. Jackson planned to attend the Motion to Dismiss to answer questions should the Tribunal need clarification. As a compromise, and on consent of the parties, the Tribunal directed that Ms. Sparrow may submit some questions to the Tribunal for Mr. Jackson to provide clarification of any ambiguities in his affidavit material, provided her questions were relevant and reasonable and provided in advance of the hearing of the motion. It was further agreed by the parties, and directed by the Tribunal, that the questions would be put to Mr. Jackson at the beginning of the Motion to Dismiss to be followed by the submissions of the representatives on the Motion to Dismiss.
32The parties also agreed, and the Tribunal directed, that the Motion to Dismiss would start with the first hour for Mr. Jackson to clarify any issues in his affidavit (Appellant’s questions). Thereafter, they agreed and the Tribunal directed that the Applicant would have up to one hour for submissions followed by the Appellant with up to two hours for submissions, followed by the Applicant in reply for up to half an hour, if needed.
33The remaining questions raised by the Appellant in the Motion for Directions were either rhetorical, already dealt with, or would be more properly dealt with, in the course of the Motion to Dismiss, for example, through submissions as to relevancy and weight of the evidence.
May 21, 2021
The Motion to Dismiss Without a Hearing
34The Applicant brought the Motion to Dismiss the appeal without a hearing pursuant to s. 34(25) of the Act, the relevant portions of which provide:
Dismissal without hearing
(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:
- The Tribunal is of the opinion that,
i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,
ii. The appeal is not made in good faith or is frivolous or vexatious,
iii. The appeal is made only for the purpose of delay, or
iv. The appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.
The appellant has not provided written reasons for the appeal.
The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection….
35It is clear from the wording of that subsection that the alternative grounds are disjunctive rather than conjunctive and that the moving party need only establish one of the grounds to succeed on the motion.
36The consideration and application of that subsection was considered by the former Ontario Municipal Board (“OMB”), the Tribunal’s predecessor, in the oft-cited decision Toronto (City) v. East Beach Community Assn, 1996 CarswellOnt 5740, [1996] O.M.B.D. No. 1890, 42 O.M.B.R. 505 (“East Beach”) and that decision is generally accepted as the starting point for any motion to dismiss.
37In East Beach, the OMB set out the manner in which the Tribunal should consider whether the grounds have been met and provided guidance on a Motion to Dismiss as follows:
(a) It is not sufficient that planning language has been deployed in the Notice of Appeal by the Appellant. The Tribunal is entitled to look beyond the wording to examine the reasons stated to see whether they constitute “genuine, legitimate and authentic planning reasons.”
(b) A cautionary but balanced approach is to be used. Care must be taken to ensure that the Tribunal does not take away the rights of Appeal whimsically, readily, and without serious consideration of the circumstances of each case and the Tribunal must not make hasty conclusions as to the merits of an issue. Neither should an appellant be required to “draft the appeal with punctilious care and arm itself with ironclad reason for fear of being struck down.”
(c) The Tribunal must seek out: (1) whether there is authenticity in the reasons stated; (2) whether there are issues that should affect a decision in a hearing; and (3) whether the issues are worthy of the adjudicative process.
(d) Raising apprehensions relating to land use planning grounds is insufficient and raising concerns about such matters in the hope that real substantive issues will emerge at the hearing is not indicative of an appeal that truly indicates land use planning grounds that could allow all or part of an appeal.
(e) The Tribunal may consider an identifiable issue that experts or decision makers may have “glossed over” if it is persuaded that the overlooked issue would make a difference upon impact to the community or raise a real planning concern.
38While the East Beach motion focused on the first of the four grounds, in this Motion to Dismiss currently before the Tribunal, the Applicant asks the Tribunal to dismiss the Appeal without a hearing on the basis of other grounds as well, submitting that:
a. The Appeal raises no triable issues given the Official Plan policies. There is no authenticity in the reasons set out and no ground of Appeal on which the Tribunal could allow the Appeal in whole or in part;
b. The Appeal is vexatious;
c. Davidson (and Sparrow) has persistently and without reasonable grounds commenced Planning Act (the “Act”) proceedings that, in their totality, constitute an abuse of process; and
d. Davidson intends to argue matters (the Laundry List) for which he has not provided the explanations required by ss. 34(19.0.1) of the Act.
39The Applicant submits that a motion to dismiss, as in this case, is a mechanism to dispose of an appeal in a summary fashion where the appeal is doomed to fail or is not properly motivated by a legitimate land use planning purpose.
40The considerations on a Motion to Dismiss without a hearing are not the same as the considerations at a hearing on the merits. On a motion such as this, the Tribunal is not deciding the merits of the appeal but instead determining whether a ground set out in section 34(25) of the Act to dismiss without a hearing is met.
Does the Notice of Appeal disclose any apparent land use planning ground?
41The first ground stated in the Applicant’s Motion to Dismiss is essentially the ground provided in section 34(25)1.i. being: that the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the Appeal.
42In considering this ground on the Motion, the Tribunal therefore carefully reviewed the reasons provided in the Appellant’s Notice of Appeal of October 10, 2020, which are supplemented by a ten-page cover letter accompanying the Notice of Appeal, as noted by Ms. Sparrow.
43Much of the cover letter accompanying the Notice of Appeal was dedicated to issues related to the validity of the Zoning By-law, which issues are not properly before the Tribunal, as discussed in the previous decision of the Tribunal issued April 6, 2021. The grounds in the cover letter that do appear on their face to possibly constitute land use planning grounds are distilled as follows:
- The proposed rezoning “fails to satisfactorily address many of the policy statements of the Provincial Policy Statement 2020…and in particular Sections 2.1 (Natural Heritage), 2.1.5 (d) (Significant Wildlife Habitat), 2.1.6 (Fish Habitat), 2.1.7 (Threatened and Endangered Species) and 2.1.8 (Lands adjacent to Natural Heritage Features).” “There has been no assessment, by a qualified expert, of the effect on Significant Wildlife Habitat, or proposed mitigation measures, and there has been no assessment of the effect of the proposed zoning amendment on any ‘adjacent lands’ (as defined in the PPS 2020) including fish habitat.” Further, “the subject lands fall within a ‘Deer Yard’, as outlined in McKellar’s Official Plan, as well as McKellar’s site plan control by-law.” “The proposed by-law does not address, in any manner, the Provincial Policy Statement, 2020, by way of a qualified study, outlining the effect of the proposal, nor any mitigation measures, to protect wildlife (fish) habitat.” “The zoning by-law amendment, and Council’s decision, is therefore ‘not consistent’ with the PPS 2020; in the absence of qualified studies indicating that there will be no adverse impacts on significant wildlife habitat and fish habitat.”
- “There were no assessment of the relevant Official Plan policies of the Township’s Official Plan to determine that the rezoning conformed. There has been no report, undertaken by a qualified expert, indicating that the wildlife habitat (deer and fish) has been assessed and addressed pursuant to the provisions of the McKellar Official Plan.” “The Appellant is of the opinion that the Zoning By-law amendment does not conform to the policies of the Official Plan including the following Sections, amongst others:
- 5.8.2.7 (Road Allowance Width)
- 5.10.2 and 5.10.3 (Lots created by consent in the Waterfront Designation)
- 5.11 (Land Use Compatibility) and subsections thereof
- 5.18 (Standards for Servicing)
- 7.0 (Waterfront) and subsections thereof
- 7.12 (Natural Heritage) and subsections thereof and in particular Sections 7.12.1.4, 7.12.3.4, 7.12.3.5, 7.12.4, 7.19, 7.20, 7.21, 7.21.2.
- 8.8 (Lake Manitouwabing)
- 9.0 (Environmentally Sensitive Lands)
- 12.5 (Site Plan Control)
- 12.8 (Holding Provisions)”
44The cover letter concludes that “The Appellant reserves the right to expand upon the reasons provided in this Notice of Appeal and will present, at the appeal hearing, the opinions of a professional land use planner.”
45At the beginning of the Motion to Dismiss hearing event, the Tribunal heard submissions from the parties related to the 50 questions Ms. Sparrow submitted that she proposed to put to Mr. Jackson. The Tribunal was satisfied that 20 of the questions were relevant to clarify the evidence provided in Mr. Jackson’s Affidavit. Ms. Sparrow asked for confirmation that Mr. Kemerer had not shared the questions previously with Mr. Jackson and Mr. Kemerer provided that reassurance.
46Mr. Jackson was duly affirmed, and Mr. Kemerer tendered him to the Tribunal for qualification as an expert to provide opinion evidence in land use planning.
47Ms. Sparrow acknowledged Mr. Jackson’s solid credentials as a land use planner but objected to Mr. Jackson being qualified as an objective expert in this case. She submitted that Mr. Jackson was the Township’s land use planner. She argued that he could not testify in the Motion to Dismiss because the Township was not participating in that motion. In her view, Mr. Jackson would have a conflict of interest. She took the position that the Applicant had no planning witness to support his motion. She also argued again that the Motion to Dismiss could not go forward because the Consent to sever was deemed refused.
48Mr. Kemerer agreed that Mr. Jackson was the Township’s planner and noted that he had never suggested otherwise. He told the Tribunal that Mr. Jackson, as the Township’s planner, just happened to have a planning opinion that supported the Applicant’s position as well as the Township’s. As Mr. Longo had confirmed, the Township was not participating in the proceedings because it felt the Applicant could sufficiently defend the Township Council’s decision. Mr. Kemerer said that the Township had released Mr. Jackson to provide objective evidence to the Tribunal. Mr. Kemerer also submitted that the status of the Consent had no bearing on whether the ZBA proceedings should proceed. He said the Applicant could bring an application for the ZBA independent of the Consent application.
49The Tribunal asked Ms. Sparrow if the Appellant would have had any issue with Mr. Jackson testifying if he had been subpoenaed by the Applicant as a witness. Ms. Sparrow responded that the Applicant should have done that.
50After considering the submissions regarding whether Mr. Jackson can be qualified as an expert witness in land use planning in this case, the Tribunal finds he can. There was no need for the Applicant to summons Mr. Jackson since the Township’s interest in upholding Council’s decision to adopt the ZBA aligned with the Applicant’s interest and the Township was willing to release Mr. Jackson to testify in the proceedings as part of the Applicant’s case without raising any concern regarding conflict of interest. The Tribunal also could also have summoned Mr. Jackson to provide evidence to assist the Tribunal. Mr. Jackson’s Affidavit reflects the position of the Township in support of their decision to adopt the ZBA.
51The Tribunal was not persuaded by the Appellant’s argument that Mr. Jackson could not testify on the Motion to Dismiss because the Township was not participating in that motion. The Motion to Dismiss is essentially part of the Applicant’s case to challenge the appeal and thereby support the Township Council’s decision to approve the ZBA.
52Accordingly, the Tribunal qualified Mr. Jackson to give opinion evidence as an expert in land use planning in the proceeding.
53In answer to Ms. Sparrow’s questions, Mr. Jackson testified that the Provisional Consent had been subject to the Applicant obtaining the ZBA within one year and agreed that the Consent is now deemed refused. However, Mr. Jackson told the Tribunal that there was nothing to prevent the Applicant from re-applying for a Consent and that such reapplications are common phenomenon, especially during the pandemic. There was no reason that the application for the Zoning By-law Amendment could not proceed.
54Mr. Jackson further clarified that the Application was in the nature of a lot addition which was authorized by the Official Plan, and not the creation of a new residential lot. He said the Consent was approved subject to a number of conditions, including that a restriction be placed on title to the Severed Lands that they could be sold only with the Lewis’ lands. He explained that it was similar to the situation where a lot addition is needed to accommodate a septic system that will not fit on an existing residential lot.
55Mr. Jackson told the Tribunal that the planning report did not specifically refer to the Provincial Policy Statement 2020 (“PPS”) because a review of the application prior to the planning report did not trigger any issues with the PPS. He also indicated that the specific Official Plan policies are not set out in the planning report but the general policies are discussed in the report. In his view, the relevant policies of the PPS and the Official Plan were appropriately considered and there were no issues with them in the context of the proposed ZBA.
56Mr. Jackson said that the report notes that there were no concerns with fish habitat. While he acknowledged that there was a preliminary issue related to a deer yard, he explained that the subject lands had very little conifer cover which reassured him that there was no concern for deer. He gave his opinion that the application for the ZBA and the nature of the proposal in relation to the Subject Lands raised no reasonable concern for deer or fish such as to trigger further studies.
57Mr. Jackson opined that there were no legitimate land use planning issues related to this case, including no natural heritage concerns. He told the Tribunal that the Notice of Appeal had no legitimate land use planning grounds with the possible exception of natural heritage concerns but that he had considered these concerns and was confident that this very narrow rezoning was consistent with the PPS 2020 and conformed to the relevant policies of the Official Plan.
58Following Mr. Jackson’s testimony, the Tribunal heard the submissions from the parties on the Motion to Dismiss.
59Mr. Kemerer told the Tribunal that as part of an earlier consent application process by the Applicant, an environmental site assessment of the Subject (and adjoining) Lands was undertaken. The mapping in that Assessment designates the Subject Lands as an area of Low Constraint and locates any potential deer habitat a significant distance away from them.
60He referred to paragraph 2 of Mr. Jackson’s Affidavit as confirming that there are no provincially designated significant wetlands, critical fish habitats or known habitats of threatened or endangered species on, or adjacent to, the Subject/Severed Lands.
61Mr. Jackson’s Affidavit at paragraphs 31 and 35 provide his opinion that an updated site evaluation report was not required in support of the Rezoning as a new residential lot is not being created. Mr. Jackson opines that the subject By-law simply allows for the use of the Severed Lands for parking, landing and docking facilities as an accessory use for Lewis.
62Mr. Kemerer submits that while the Appellant raised concerns prior to the Appeal about a site evaluation report requirement for the Severed Lands, inadequate frontage, site plan control to address storage building setbacks, location of docking facilities, confirmation that the Severed Lands would be owned by Lewis and that the subject By-law should be subject to a holding provision to secure these matters, the Appellant listed himself as the only witness for the purposes of the hearing of the Appeal. Mr. Jackson’s Affidavit states that the Appellant does not propose, in either his Appeal or in his Response to the Motion to Dismiss, to provide independent planning evidence or to retain an ecologist or a biologist to support his environmental concerns.
63It was the Applicant’s position that, while the Appellant is a professional planner with many years of practice, the Appellant should not be qualified to provide expert opinion evidence in the proceedings because the Appellant could not be considered an objective witness.
64The evidence was that the Appellant and Ms. Sparrow are married to each other, co-own a cottage property which is approximately three kilometres away from the Subject Lands by water, or approximately ten kilometres away by land.
65In the Appellant’s March 21, 2019 Acknowledgment of Expert’s Duty Form, the Appellant states: “I have been engaged by or on behalf of my continuing professional interest and involvement in land use planning and environmental matters in the [Township] to provide evidence in relation to the [Appeal]”.
66Further, the Appellant states on page 3 in his March 21, 2021 Affidavit that “I have an interest, both professionally and individually, in land use planning and environmental resource protection of [the Lake]” (emphasis added).
67The Appellant’s Factum on page 32 states:
Since 1987, the Appellant, has had an interest, both personally and professionally, in land use planning and environmental protection of Lake Manitouwabing, significant wildlife habitat, fish habitat and water quality. Since the residents, on Lake Manitouwabing, rely on lake water for household use, maintaining and improving water quality is a major objective, for the Appellant. (emphasis added)
68Further the Appellant’s Factum on page 33 states: “The Appellant has a personal and professional interest in land use and environmental planning, in the Township.” (emphasis added)
69The Appellant’s Factum notes at paragraph 74 that “…the Ontario Professional Planners’ Institute, Professional Code of Practice, warns their members, not to take the position, of an ‘advocate’, when acting for a client”. This reference is noted by the Appellant in the context of excluding Mr. Jackson’s evidence. There is some irony that, while the Appellant fiercely objects to Mr. Jackson, the Appellant saw nothing wrong with himself wearing the hat of Appellant at the same time as the hat of an expert giving opinion evidence in his own case.
70The Tribunal recognizes that there is no issue that the Appellant is a professional land use planner with extensive experience in his field. The issue is whether the Tribunal can qualify him to provide expert opinion evidence in his own case, particularly having heard open and repeated admissions by the Appellant that he has a personal interest in the outcome of the Appeal. After considering the submissions of the parties, the Tribunal finds that the Appellant cannot be qualified to provide objective expert opinion evidence in the Appeal currently before the Tribunal. The Tribunal is concerned that the Appellant could be influenced by personal feelings or opinions in considering and representing the facts as he has openly stated that he seeks a personal goal.
71Given that the Appellant cannot provide expert opinion evidence in land use planning in this Appeal, the Appellant has no expert opinion evidence to challenge the evidence of the Township’s planner Mr. Jackson who supports the proposed ZBA and has provided his expert opinion that the ZBA is consistent with the PPS 2020 and conforms with the Township’s Official Plan policies and represents good planning in the public interest. In his affidavit, Mr. Jackson has responded to the concerns raised by the Appellant in the Notice of Appeal and maintains his professional opinion. His answers to the questions put to him by Ms. Sparrow in this proceeding did not shake his position nor give the Tribunal cause to find any crack in the foundation of his opinion.
72Raising apprehensions by citing provisions of the PPS or an Official Plan does not constitute a legitimate land use planning ground. Facing opposing expert evidence, the Appellant has a responsibility to provide objective expert opinion evidence to support the reasons for his appeal. The Appellant intended to call only himself to provide evidence and no expert to support his stated environmental concerns.
73It is incumbent upon persons launching an appeal to be prepared to have genuine, legitimate and authentic planning reasons and to have the evidence to support those reasons. The responsibility falls on the shoulders of the Appellant to demonstrate through his conduct in pursuing the Appeal, including his gathering of evidence to make his case, that the issues raised in his Notice of Appeal justify a hearing. As discussed, the Appellant has expressed a personal interest in the outcome of the Appeal, such that his impartiality as a potential expert witness is lacking. The Tribunal finds that the Appellant failed to provide expert opinion evidence in planning and/or related to the natural heritage issues he raised to support his Appeal and thereby failed to discharge that responsibility.
74The Tribunal is left with reasons for appeal that are not supported by any objective expert opinion evidence at the Motion. At the same time, the Tribunal has the affidavit filed by the Applicant sworn by the Township’s planner, Mr. Jackson, who was qualified to provide expert opinion evidence in land use planning and who supports the Motion to Dismiss the Appeal.
75In Mr. Jackson’s opinion, as a land use planner, the Appeal raises no legitimate land use planning grounds and the Appeal on its face does not indicate that there is any valid land use planning evidence or natural heritage evidence to be proffered by the Appellant. He provides further reasons for his opinion in his affidavit sworn March 11, 2021.
76After carefully considering the submissions of the parties, the Tribunal is of the opinion that the reasons set out in the Notice of Appeal do not disclose any land use planning grounds upon which the Tribunal could allow the Appeal. In looking beyond the language deployed in the Notice of Appeal, the Tribunal finds that the stated issues are not worthy of the adjudicative process. As the Board held in East Beach, raising apprehensions relating to land use planning grounds and hoping that substantive issues will thereafter emerge at the hearing is not sufficient to allow an appeal to proceed. Such an approach will not lead to finality.
77The Tribunal finds that there is no evidence that there is authenticity in the reasons stated in the appeal; there are no issues that should affect a decision in a hearing; and the issues are not worthy of a full hearing.
78For the foregoing reasons, the Tribunal grants the Motion to Dismiss on the ground enunciated under subsection 34(25)1.i. of the Act.
Other Section 34(25) Grounds
Was there abuse of process?
Were explanations provided as required by section 34(19.0.1)?
79As already discussed, the Appeal may be dismissed without a hearing if any one of the alleged grounds are met. That finding has been made as discussed above. In any event, the Tribunal also considered the other grounds set out in the Applicant’s Motion to Dismiss. The Applicant submitted that “Davidson (and Sparrow) has persistently and without reasonable grounds commenced Planning Act (the “Act”) proceedings that, in their totality, constitute an abuse of process”; and “Davidson intends to argue matters (the Laundry List) for which he has not provided the explanations required by ss. 34(19.0.1) of the Act.”
80Based on the evidence before it, the Tribunal could not find that these grounds were met.
81Ms. Sparrow asked for clarification on the chart found at tab J of Mr. Jackson’s Affidavit. Mr. Jackson told the Tribunal that he created the chart to show the 13 OMB appeals in which the Appellant had been involved from 1994 to 2009. Upon questioning by Ms. Sparrow, Mr. Jackson admitted that the chart was not completely accurate in that the Appellant’s status in the appeals was not always as appellant and the outcomes did not properly reflect resolution was by mediation in some cases. Mr. Jackson also admitted that he was not aware of any costs being awarded against the Appellant in any of the appeals in the chart. He could not recall any time the OMB had suggested the Appellant had acted in bad faith or a vexatious manner.
82The Tribunal agrees with the Appellant that the chart was neither reliable nor productive in demonstrating “the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.” The Tribunal gave no weight to the chart.
83Ms. Sparrow was able to point to evidence that some explanations of the issues raised were provided and that Mr. Jackson had referred to “Mr. Davidson’s detailed analysis” in correspondence. Accordingly, the Tribunal did not find that the ground related to explanations required by subsection 34(19.0.1) of the Act was met.
Was the appeal made only for purpose of delay?
Was the appeal not made in good faith or was it frivolous or vexatious?
84The Tribunal considered the submissions of the parties on whether the Appeal was made only for the purpose of delay or was not made in good faith or was frivolous or vexatious.
85Mr. Kemerer noted that, as no appeal of the Consent decision was filed by the Appellant, the Applicant proceeded to satisfy the conditions of the Consent Decision and filed the requisite rezoning application with the Township. He said the Applicant was surprised that the Appellant waited until the ZBA decision to appeal but did not appeal the earlier Consent decision. He suggested the Appellant had waited to appeal the ZBA in order to cause delay.
86In response, Ms. Sparrow submitted that the Appellant was free to appeal what he wished and was not bound to appeal the Consent decision. She submitted that appeals by their nature delay proposals and that appeals serve an important function which should not be discouraged.
87While the Tribunal agrees with the Appellant that the Appellant was not required to appeal the consent decision and that legitimate appeals should not be discouraged, the Tribunal must consider this one piece in the context of the whole proceeding and the pattern of the Appellant’s conduct throughout.
88The Tribunal agrees that non-Applicant appeals should not be discouraged when there are legitimate land use planning grounds that will be argued and supported with evidence. However, non-Applicant appeals should not be encouraged when they are brought without sufficient grounds, primarily to cause annoyance to the Applicant and delay. In this case, and in the context of a reasonably simple application for a rezoning to permit a lot addition on a property several kilometres from the Appellant’s cottage, the pattern of conduct of the Appellant, including the excessive written material filed, the raising of issues outside the Tribunal’s jurisdiction, the repeating of issues previously decided or discussed, the bringing of multiple motions that were ultimately dismissed, and the timing of when the issue of the lapsed provisional consent was raised, is indicative of attempts to delay, and a vexatious and frivolous appeal.
CONCLUSION
89The Tribunal need only find that one of the enumerated grounds in section 34(25) of the Act is met in order to dismiss the Appeal without a hearing. The Tribunal has done that. Based on the evidence and the whole of the record and the submissions, and for the reasons given, the Tribunal has found that the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow the appeal. On top of that, the Applicant has demonstrated that multiple grounds under s. 34(25) of the Act have been met to dismiss the appeal without a hearing on various bases, specifically:
i. the reasons set out in the Notice of Appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the Appeal;
ii. the Appeal is not made in good faith or is frivolous or vexatious; and
iii. the Appeal is made only for the purpose of delay.
90In considering the Motion to Dismiss the Appellant’s Appeal without a hearing, the Tribunal has had regard for the Decision of Council that approved the ZBA as well as the information, material and documentation that was before Council when considering the ZBA.
ORDER
91Upon the Appeal to this Tribunal by the Appellant, Norman Edward Davidson, of the Township of McKellar’s decision to approve the Application for a Zoning By-law Amendment (“ZBA 2020-48”) related to the Subject Lands; and upon Motion to this Tribunal by the Appellant, Norman Edward Davidson, for an Order abridging the time for service of the Appellant’s Motion to Strike Out and Expunge the Affidavit of John Jackson and for an Order to Strike Out and Expunge the Affidavit of John Jackson; and upon Motion to the Tribunal by the Appellant, Norman Edward Davidson, for directions; and upon Motion to this Tribunal by the Applicant, Garrett McKeag for an order pursuant to subsection 34(25) of the Planning Act dismissing the Appeal of Mr. Davidson without a hearing; the Tribunal makes the following orders and directions:
That the Appellant’s Motion to strike out and expunge the Affidavit of John Jackson is denied.
That the Appellant’s Motion for Directions is denied.
That the Applicant’s Motion to Dismiss is granted and the Appeal of Norman Edward Davidson is hereby dismissed in its entirety without a hearing pursuant to subsection 34(25) of the Act.
That the Township of McKellar (in relation to the Motion to Quash the Summons previously heard) and the Applicant, Garrett McKeag, may each file a notice of motion for costs in accordance with Rule 23 of the Tribunal’s Rules of Practice and Procedure. Note should be made to Rule 23.9 and the limited circumstances in which costs may be awarded in these proceedings. The Notice of Motion and the Response to the Notice of Motion are not to exceed10 pages and any Reply is not to exceed 5 pages.
The Tribunal so orders.
“Margot Ballagh”
MARGOT BALLAGH 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.