Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 15, 2021
CASE NO(S).: PL190638
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Optilinx Systems Inc.
Subject: Request to amend the Official Plan - Failure of Durham Region to adopt the requested amendment
Existing Designation: Major Open Space Areas
Proposed Designated: Major Open Space Areas
Purpose: To recognize and permit the expansion of a contractor's yard and office uses
Property Address/Description: 4560 (4500) Thickson Road North
Municipality: Upper Tier of Durham
Approval Authority File No.: OPA 2016-003
LPAT Case No.: PL190638
LPAT File No.: PL190638
LPAT Case Name: Optilinx Systems Inc. v. Durham (Region)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Optilinx Systems Inc.
Subject: Request to amend the Official Plan - Refusal of request by the Town of Whitby
Existing Designation: Major Open Space 2, Environmental Protection Conservation Lands, Major Open Space 3 and Hazard Land
Proposed Designated: Major Open Space 3 and Hazard Land
Purpose: To permit a contractor’s yard with outdoor storage and associated office and maintenance buildings.
Property Address/Description: 4560 (4500) Thickson Road North
Municipality: Town of Whitby
Approval Authority File No.: OPA-2016-W/04
LPAT Case No.: PL190638
LPAT File No.: PL200035
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Optilinx Systems Inc.
Subject: Application amend Zoning By-law No. 1784 - Refusal of Application by the Town of Whitby
Existing Zoning: Agriculture (A)
Proposed Zoning: Restricted Industrial (M1) and Greenbelt (G) and Residential (R2A)
Purpose: To permit a contractor’s yard with outdoor storage and associated office and maintenance buildings.
Property Address/Description: 4560 Thickson Road North
Municipality: Town of Whitby
Municipality File No.: Z-19-16
LPAT Case No.: PL190638
LPAT File No.: PL200036
Heard: September 7, 2021 by Video Hearing (“VH”)
APPEARANCES:
Parties
Counsel
Optilinx Systems Inc. (“Applicant”)
M. Di Vona
Regional Municipality of Durham (“Durham”)
R. Woon
Town of Whitby (“Town”)
C. Kapelos
MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON SEPTEMBER 7, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant had sought a Regional Official Plan Amendment (“ROPA”), a Town Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) with regard to the property known municipally as 4560 (4500) Thickson Road North (“Subject Lands”) seeking to permit the existing contractor’s yard with outdoor storage and associated office and maintenance buildings as well as to recognize the existing single detached dwelling.
2As the Town refused the OPA and ZBA applications and the Region had failed to deal with the ROPA application during the statutory time frame, the Applicant appealed all to the Tribunal.
3The Tribunal held a Case Management Conference (“CMC”) and dealt with all the matters required by Rule 19 of the Tribunal’s Rules of Practice and Procedure (“Rules”), and set a second CMC for Wednesday November 3, 2021, and gave directions for the preparation of a draft Procedural Order and Issues List (“PO”), all for the reasons set out below.
DECISION
4These appeals were received by the Tribunal on December 30, 2019.
5Following the appeals, the Tribunal was advised that discussions ensued among the parties with the determination being made (at least by the Applicant) that input was needed from the ecologists to enable any progress. That input has now been received.
6At the CMC, the Tribunal was advised that the Applicant wished to proceed and was open to Tribunal-led mediation.
7Counsel for the Town and the Region sought 30 days in order to provide their issues for a draft PO, and neither had instructions with regard to Tribunal-led mediation.
8In these circumstances the Tribunal set a second CMC for Wednesday, November 3, 2021 commencing at 10 a.m. by VH.
9Parties 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/786121853
Access code: 786-121-853
10Parties 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
11Persons 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: +1 (647) 497-9373. The access code is 786-121-853.
12Individuals 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 hearing by video 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.
13The Tribunal also gave directions with regard to the preparation of a draft PO for the next CMC.
14The Town and the Region will provide their issues to counsel for the Applicant on or before October 8, 2021.
15Counsel for the Applicant was tasked to prepare the draft PO and Issues List and on consent of the parties provide it to the Case Coordinator on or before October 15, 2021 for consideration at the second CMC.
16The Tribunal gave direction that the draft PO will include:
a. Mandatory meetings of all like experts and the preparation of agreed statements of fact;
b. The submission of a draft hearing plan 65 days in advance of the hearing; and
c. The provision of all hearing materials in both electronic and hard copy formats.
17Hopefully the preparation of issues will enable the parties to be able to consider whether private or Tribunal-led mediation would be of assistance in this matter.
18Finally, the Tribunal would note that this is a 2019 appeal, that Rule 1.3 references that the Rules are to be interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding.
19For a CMC, the Tribunal notes that Rule 19.2 provides:
Where the parties are known before the case management conference, they are expected to discuss the matters set out in Rule 19.1 and present a draft procedural order to the Tribunal for its approval.
20In this case where the OPA and ZBA had been refused by the Town and the OPA not dealt with by the Region, it would have been more efficient and timely for counsel in the lead up to the hearing, to have sought instructions with regard to: the issues, the preparation of a draft PO, and also about either private or Tribunal-led mediation.
21There will be no further notice.
22I am not seized.
23Scheduling permitting, I may be available for case management purposes.
24This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.