Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 17, 2021
CASE NO(S).: PL190547
PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1087086 Ontario Inc.
Subject: Conditions of approval of draft plan of subdivision
Property Address/Description: 41 Wellington Street
Municipality: Township of Asphodel-Norwood
Municipal File No.: 15T-86011
OLT Case No.: PL190547
OLT File No.: PL190547
OLT Case Name: 1087086 Ontario Inc. v. Asphodel-Norwood (Town)
PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1087086 Ontario Inc.
Subject: Conditions of approval of draft plan of subdivision
Property Address/Description: 41 Wellington Street
Municipality: Township of Asphodel-Norwood
Municipal File No.: 15T-86011
OLT Case No.: PL190547
OLT File No.: PL200338
Heard: September 8, 2021 in writing
APPEARANCES:
Parties
Counsel
County of Peterborough
Jeffrey D. Lanctot
1087086 Ontario Inc.
Conrad Schickedanz
DECISION DELIVERED BY R.G.M. MAKUCH AND ORDER OF THE TRIBUNAL
BACKGROUND
1The Applicant/Appellant, 1087086 Ontario Inc., made an application for approval of a plan of subdivision for the lands known municipally as 41 Wellington Street, in the Township of Asphodel-Norwood (“Subject Property”). It has appealed the conditions imposed on the development pursuant to s. 51(43) of the Planning Act. The appeal is against all 14 draft plan conditions and specifically, asks that the Tribunal clear or delete all 14 conditions, in particular, the conditions regarding hydrogeology (Condition No. 6) and storm water management (Condition No. 9) on the grounds that such conditions are unreasonable, irrelevant, unnecessary, or inequitable. There is an extensive history related to this appeal, the most relevant facts of which are provided in the previous Tribunal decisions issued on October 1, 2020, February 16 and April 26, 2021.
2The County of Peterborough (“County”) is the approval authority for the plan of subdivision.
3The matter has been scheduled for hearing commencing on Tuesday, March 1, 2022.
MOTION BY THE COUNTY
4The County brings a motion for an order of the Tribunal granting access to the Township of Asphodel-Norwood (“Township”), and its engineering consultants and experts including, D.M. Wills Associates Limited (“D.M. Wills”), and their respective employees, contractors, consultants, and agents, to the Applicant/Appellant’s lands that are the subject of this proceeding, to conduct inspections and testing as described in the Affidavit of Candice White dated June 25, 2021.
5The County relies on its Motion Record dated June 25, 2021 including:
a) The Affidavit of Candice White, affirmed June 25, 2021;
b) The Reply Affidavit of Candice White, affirmed July 16, 2021; and,
c) The Affidavit of Ian Ames, sworn July 16, 2021.
The Grounds for the Motion
6The County maintains that it requires information from the Township as to whether:
a) the Applicant/Appellant has satisfied all of the Township’s requirements concerning the provision of roads, installation of services and drainage (as required by Draft Plan Condition No. 6), which the Township cannot provide without obtaining an independent hydrogeological report; and,
b) the Applicant/Appellant’s reports, drawings and site plans are sufficient to accommodate storm drainage (as required by Draft Plan Condition No. 9), which the Township cannot advise without obtaining an independent storm water management report.
7The County states that it intends to call expert witnesses to provide the Tribunal with evidence to prove that the Applicant/Appellant’s hydrogeological and storm water management reports and plans, as currently submitted, do not satisfy all of the Township’s hydrogeological and storm water management requirements, which it maintains directly relates to the issue of whether this Tribunal should clear or delete all Conditions of Draft Plan Approval, including whether or not the Tribunal should clear or delete Condition Nos. 6 and 9.
8The County argues that the assessment of the Applicant/Appellant’s proposed hydrogeological and storm water management plans and reports by the Township’s experts are relevant to the Tribunal’s disposition of the issues in this proceeding. Furthermore, it maintains that it is exceptionally important for the Township to independently assess the Applicant/Appellant’s proposed hydrogeological and storm water management plans and reports because substandard plans, in this regard, have the potential of damaging the Township’s water supply.
9The County argues that the engineering reports filed support the notion that it is necessary for the Township’s engineering consultants to attend on the Subject Property to conduct inspections and testing to prepare their reports for the hearing of the appeal and that, therefore, the Township’s experts should be granted onsite access to the Subject Property to perform their assessment much like the Applicant/Appellant’s experts were granted access for the preparation of their assessments and reports.
10The County relies on Subrule 9.1(e) of the Ontario Land Tribunal’s Rules of Practice and Procedure, which states as follows:
RULE 9 DISCOVERY
9.1 Order for Discovery The Tribunal may make an order for discovery for a party to obtain necessary information from another party. Such an order will be made only on motion and only if the party has requested information and it has been refused or no answer has been received. The notice of motion shall be accompanied by an affidavit, which sets out the efforts made to obtain the desired information and the reasons that demonstrate that the information sought is both necessary and relevant to the disposition of the issues in the proceeding. The Tribunal may order:
e) the inspection and testing of property;
11Accordingly, counsel for the County argue that, if a party, has requested information (in this case, for inspection and testing at the Applicant/Appellant’s subject property); the request has been refused; there is an Affidavit setting out the efforts made to obtain the desired information; and the Affidavit demonstrates that the information sought is both necessary and relevant to the disposition of the issues in the proceeding, then this Tribunal may order inspection and testing of the Subject Property.
12Counsel for the County refers to the decision in Deergate Holdings Inc. v. Richmond Hill (Town), 2017 CanLII 63290 (ON LPAT), wherein, a conservation authority brought a Rule 33 motion before the Ontario Municipal Board (the “Board”) for an order that it be granted access to a property for the purposes of conducting an investigation into the existence and limits of certain wetlands. The Board was satisfied that the relief claimed fell within Rule 33(e) (which is equivalent to subrule 9.1(e) cited above) for the inspection and testing of property. The Board considered that the conservation authority’s evidence satisfied the requirement of request and refusal, and that the information sought was both necessary and relevant to the disposition of the issues in the proceeding.
13Counsel for the County argues that the Township has met the requirements of Rule 9.1 as set out in Ms. White’s Affidavit affirmed June 25, 2021, in that the Township requested access to the Subject Property to conduct inspection and testing during the Case Management Conference (“CMC”) conducted on April 26, 2021, and earlier. The evidence also shows that the Applicant/Appellant has refused to provide access to the Township on the Subject Property, again before and during the CMC, held on April 26, 2021, according to counsel for the County.
14The request for access to the Subject Property is directly related to the assessment of whether the Draft Plan Condition Nos. 6 and 9 should be cleared or deleted and, accordingly, is relevant to the disposition of the issues in this proceeding; and access is necessary for the Township and its consultants to fully and fairly prepare expert reports for the hearing of this proceeding.
Applicant/Appellant’s Position
15The Applicant/Appellant relies on its Notice of Response to Motion and Responding Submissions dated July 13, 2021 including:
a) The Affidavit of Brian Fernandes, sworn July 13, 2021;
b) The Affidavit of Michael Bingham, sworn July 9, 2021; and,
c) The Affidavit of Masoud Robati, sworn July 9, 2021.
16The Applicant/Appellant is opposed to the relief sought and requests that the Tribunal dismiss the motion.
17Counsel for the Applicant/Appellant refers to the Township’s “Transport Pathway By-Law” No. 2015-73, which provides that the municipality shall not approve a proposal to construct a Transport Pathway in a Wellhead Protection Area A, “unless the application includes a statement from a qualified person stating that the proposal will not significantly increase the vulnerability of the municipal water source. This by-law also defines a “Transport Pathway” as a condition of land resulting from human activity that increases the vulnerability of the raw water supply for a municipal drinking water system to being contaminated by land-based activities by means of the condition acting as a conduit for contaminants. This includes wells.
18Counsel further argues that the evidence before the Tribunal on this motion suggests that the Township wishes to have its consultant drill six wells and boreholes at a depth of 100 feet (30 metres) in “to-be-determined” locations. The Applicant/Appellant maintains that this is significantly deeper than the work proposed by it for the development of the subdivision. It is suggested that in a prior proceeding, Mr. Bingham opined, and still believes that the proposed subdivision works will be 10-21 metres above the aquifer. This means that the testing requested by the County on this motion could by itself create a transport pathway, in an attempt to determine if the proposed development will create a transport pathway.
19Counsel also argues that the purpose of the Original Scope of Work issued by the Township was to provide a report detailing the technical review of the proposed development including a professional opinion as to whether such development will have an impact on the Township’s municipal water supply. On December 21, 2020, the County served the Applicant/Appellant with a purported “Peer Review” document prepared by D.M. Wills, dated December 10, 2020. Counsel maintains that whether D.M. Wills “scopes of work” are “necessary” is an issue for this hearing (Issue 4(a)), with Mr. Bingham specifically opining that the work proposed is unnecessary because D.M. Wills already has the information it needs from a 2018 study of the Township’s wellhead lands and that accordingly, it is unnecessary for the purposes of this hearing to conduct onsite investigations to determine if D.M. Wills has the requisite information to evaluate the location of the aquifer or whether a transport pathway may be created.
20The second issue (Issue 4(b)) relates to the Applicant/Appellant’s proposed stormwater management plan. On April 21, 2021, D.M. Wills issued a “technical review” of that plan, that was received a few days prior to the last CMC. That review does not make any recommendations for onsite visits or testing beyond the testing related to Issue 4(a). In other words, if the hydrogeological tests are found by this Tribunal to be unnecessary, there are no stormwater management tests that have been proposed by the Township nor D.M. Wills that require on site work.
21As there are no tests, the Applicant/Appellant maintains that stormwater management tests were never requested of it. Furthermore, counsel argues that the Applicant/Appellant’s civil engineer has opined that onsite tests are typically not required for stormwater management plans.
22D.M. Wills has requested to drill boreholes and monitoring wells in several locations described as “to-be-determined” with wells to be locked and only capable of being unlocked by it. The Applicant/Appellant has no information as to how such locations may impact the roads, lots, stormwater management features, or other features of its proposed subdivision, and whether these works may damage the property of the Developer or future homeowners. Further, the Developer’s geoscientist has pointed out that drilling wells can create Transport Pathways. Potential Transport Pathways were the purported original concern of the County and Township in this appeal.
ANALYSIS AND FINDINGS
23The Tribunal has carefully considered the affidavit evidence as well as the written submissions of counsel and finds that the motion should be dismissed for the reasons that follow.
24While it is clear that the Township has requested permission to access the Subject Property and that such request has been refused by the Applicant/Appellant, the Tribunal is not satisfied that such access is relevant and necessary to the disposition of the issues that will be reviewed by the Tribunal at the hearing, scheduled to commence on Tuesday, March 1, 2022.
25The evidence shows that the original scope of work prepared by D.M. Wills would take over a year to complete and given that the evidence suggests that testing of water samples is required in three seasons: spring, summer, and fall means therefore that the results would not be available for the hearing of this matter scheduled to commence on March 1, 2022.
26The Tribunal finds that the Applicant/Appellant’s concerns are valid in that it has no idea as to how the proposed boreholes and monitoring wells in “to be determined” locations may impact the roads, lots, storm water management features or other features of its proposed subdivision and whether these works may damage the property. This leads the Tribunal to the conclusion that the prejudice to the Applicant/Appellant outweighs any prejudice to the Township in not being granted access to the subject property for the purposes of the hearing in March 2022. Allowing the Township to have access to the subject property to carry out an inspection by drilling boreholes and monitoring wells would be much too wide-ranging and highly intrusive under the circumstances.
27While a procedural order (“PO”) and issues list has not been finalized and issued by the Tribunal due to disagreement between the parties, the Tribunal notes that the issues lists put forth by both parties shows that there is agreement as to Issue 4(a), which reads as follows:
(a) Is the Township’s requirement under Condition 6 for a further hydrogeological study unnecessary?
This indicates that the motion is premature as this is one of the determinations that the Tribunal has been asked to make following a full hearing of all of the evidence. It is therefore unnecessary for the purposes of the hearing to conduct onsite investigations to determine if D.M. Wills has the requisite information to evaluate the location of the aquifer or whether a transport pathway may be created. Furthermore, the evidence before the Tribunal on this motion suggests that Issue 4(b) relating to the Applicant/Appellant’s proposed stormwater management plan was the subject of a “technical review” by D.M. Wills, received by the Applicant/Appellant on April 21, 2021. This review appears not to make any recommendations for onsite visits or testing beyond the testing related to Issue 4(a).
28The Tribunal concludes that the access requested is not relevant and necessary to the disposition of the issues in this proceeding and that the motion should be rejected.
ORDER
29Accordingly, the Tribunal hereby dismisses the motion.
“R.G.M. Makuch”
R.G.M. MAKUCH
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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.