Yusishen v. Township of Muskoka Lakes, 2021 CanLII 74781

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 12, 2021

CASE NO(S).: PL200146

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Gloria Yusishen

Subject: Application to amend Zoning By-law No. 2019-120 – Refusal of application by Township of Muskoka Lakes

Existing Zoning: Waterfront Residential

Proposed Zoning: Waterfront Residential

Purpose: To permit dock not built in compliance with existing by-law

Property Address/Description: 22-1059 Big Joe Road

Municipality: Township of Muskoka Lakes

Municipality File No.: ZBA-31/19

OLT Case No.: PL200146

OLT File No.: PL200146

OLT Case Name: Yusishen v. Muskoka (Twp.)

Heard: August 4, 2021 by video hearing (“VH”)

APPEARANCES:

Parties

Counsel*/Representative

Township of Muskoka Lakes

Edward Veldboom*

(“Township”)

Gloria Yusishen (“Appellant”)

Mark Yusishen

MEMORANDUM OF ORAL DECISION DELIVERED BY A. CORNACCHIA AND BLAIR S. TAYLOR ON AUGUST 4, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1A Case Management Conference (“CMC”) was held on August 4, 2021 regarding the Appellant’s appeal under s. 34(11) of the Planning Act (“Act”) relating to the Township refusal of an application to amend Zoning By-law No. 2019-120 (“ZBL”).

2The Appellant constructed a removable dock located at 22-1059 Big Joe Road, in the Township (“Subject Property”) without a building permit. The dock does not comply with the requirements of the Township’s ZBL. After the Township took enforcement action against the Appellant, she applied for a zoning by-law amendment to permit the dock, which was refused by the Township.

3The CMC dealt with the following matters:

1. Notice of the CMC;
2. Requests for Status; and
3. A case update including the status of the draft issues list and draft procedural order.

NOTICE

4The Tribunal expressed concern that the Affidavit of Service (Exhibit 1) filed by the Appellant was incomplete since it was missing the lists that were referenced in the document. The Appellant’s representative, Mr. Yusishen, assured the Tribunal that notice had been given to the individuals in the two lists identified as Exhibits 2 and 3 in the manner identified in the Affidavit of Service. These lists were supplied to Mr. Yusishen by the Township and its counsel. The Township’s counsel had no concerns regarding notice.

5After considering the submissions of the parties, the Tribunal ruled that even though the filed Affidavit of Service was incomplete, service had in fact been effected, and no further notice of the proceedings would be necessary.

REQUESTS FOR STATUS

6Prior to the CMC, the following individuals who are in the vicinity of the Subject Property requested Participant status in compliance with the Tribunal’s requirements:

1. Janet Greenwood and James Flynn;
2. Kevin Dale; and
3. Susan Haley.

7Their requests for Participant status are identified as Exhibits 4, 5, and 6. Upon consent of the parties, the Tribunal ruled that these individuals are granted Participant status.

CASE UPDATE AND PROCEDURAL ORDER AND ISSUES LIST

8The Tribunal received an update from the parties regarding the status of their discussions and the case generally. The following is the summary of the update:

1. The parties do not believe that a Tribunal facilitated mediation will be helpful at this time.
2. The parties believe that this is a relatively simple case that will require a one-day hearing and they requested a one-day hearing.
3. The Township plans on calling one planning witness. Mr. Yushisen is uncertain whether a planner will be retained by his client. If one is engaged, Mr. Yushisen will call two witnesses, the planner and the Appellant, otherwise the Appellant alone will be called as a witness.
4. The parties have not discussed a draft Issues List and Procedural Order but believe that they can agree on these documents and submit them for approval by the Tribunal.

9Prior to making its order on the draft Issues List and Procedural Order, the Tribunal gave the following instructions to the parties:

1. The draft Issues List should identify the four statutory provisions that the Tribunal must consider when reviewing the draft Zoning By-law Amendment: a. Regard for matters of provincial Interest – s. 2 of the Act; b. Consistency with the Provincial Policy Statement – s. 3(5) of the Act; c. Conformance with any applicable Provincial Plans – s. 3(5) of the Act; and d. Conformance with the applicable Official Plans – s. 24(1) of the Act

2. Specific issues should be identified below each of the tests clarifying the matters in dispute between the parties relating to that test. If the parties believe that there are no issues worthy of consideration by the Tribunal relating to a specific test, they should identify it.

3. If both parties retain planning witnesses, the planning witnesses should meet and agree on any facts that are not in dispute as between the planners and an agreed statement of facts should be submitted to the Tribunal at least 30 days in advance of the hearing date (collectively “Tribunal Instructions”).

10The Tribunal directed that the parties submit their draft Issues List and Procedural Order by Friday, September 3, 2021 at 4:30 p.m. at the latest.

HEARING DATE

11Upon request of the parties, the Tribunal set a hearing date for this matter on Monday, January 24, 2022 commencing at 10 a.m. by VH.

DECISION

12The following individuals are hereby granted participant status:

1. Janet Greenwood and James Flynn;
2. Kevin Dale; and
3. Susan Haley.

13The representative for the Appellant and the counsel for the Township shall jointly agree upon and submit the draft Procedural Order and the draft Issues List to the Tribunal by Friday, September 3, 2021 at 4:30 p.m. at the latest for consideration by the Tribunal. These documents shall comply with the Tribunal’s Instructions previously described in this Decision.

14The Tribunal orders that the hearing of this matter will be held on Monday, January 24, 2022 commencing at 10 a.m. by VH.

15Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/723521277

Access Code: 723-521-277

16Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

17Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.

18Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the VH to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

19There will be no further notice.

20We are not seized.

21Scheduling permitting, the Members may be available for case management purposes.

22This is the Order of the Tribunal.

“A. Cornacchia”

A. CORNACCHIA

MEMBER

“Blair S. Taylor”

BLAIR S. TAYLOR

MEMBER

Ontario Land Tribunal

Website: www.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.