Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 05, 2021
CASE NO(S).: PL120217 PL130063 PL151086 PL160076 PL171407 PL171408 PL171409 PL171515 PL180303
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Bromont Homes Inc. Appellant: Kerry L.W. Doughty Appellant: Ferma Aggregates Inc. Appellant: Jennifer Graham; and others Subject: Official Plan Municipality: City of Kawartha Lakes OLT Case No.: PL120217 OLT File No.: PL120217 OLT Case Name: Graham v. Ontario (Municipal Affairs and Housing)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Catherine Gravely Appellant: J.Stollar Construction Limited Appellant: Ministry of Municipal Affairs and Housing Subject: Proposed Official Plan Amendment No. 15 Municipality: City of Kawartha Lakes OLT Case No.: PL151086 OLT File No.: PL151086 OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Catherine Gravely Appellant: J.Stollar Construction Limited Appellant: Ministry of Municipal Affairs and Housing Subject: Proposed Official Plan Amendment No. 15 Municipality: City of Kawartha Lakes OLT Case No.: PL151086 OLT File No.: PL151086 OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Catherine Gravely Appellant: J. Stollar Construction Limited Appellant: Ministry of Municipal Affairs and Housing Subject: Proposed Official Plan Amendment No. 17 Municipality: City of Kawartha Lakes OLT Case No.: PL160076 OLT File No.: PL160076 OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2358493 Ontario Inc Appellant: BARMMAR Investments Ltd. & BMMB Investments Ltd. Appellant: Bromont Homes Inc. Appellant: Comhold Investments Ltd.; and others Subject: Proposed Official Plan Amendment No. OPA 13 Municipality: City of Kawartha Lakes OLT Case No.: PL171407 OLT File No.: PL171407 OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Comhold Investments Ltd. Appellant: Catherine Gravely Appellant: J. Stollar Construction Limited Appellant: William Westcott Subject: Proposed Official Plan Amendment No. OPA 14 Municipality: City of Kawartha Lakes OLT Case No.: PL171408 OLT File No.: PL171408 OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2358493 Ontario Inc Appellant: BARMMAR Investments Ltd. & BMMB Investments Ltd. Appellant: Bromont Homes Inc. Appellant: Catherine Gravely; and others Subject: Proposed Official Plan Amendment No. 16 Municipality: City of Kawartha Lakes OLT Case No.: PL171409 OLT File No.: PL171409 OLT Case Name: Gravely v. Kawartha Lakes (City)
Heard: September 9, 2021 via video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| City of Kawartha Lakes | Denitza Koev Stephen D’Agostino (in absentia) |
| Bromont Homes Inc. | Ian Andre |
| Catherine Gravely | Marc Kemerer |
| J. Stollar Construction Ltd. William Westcott |
Denise Baker |
| Flato Lindsay Community Inc. | Katarzyna Sliwa Aaron Kurts |
| Comhold Investments Ltd., Medlaw Corporation and Mason Burch (collectively Comhold) | Tom Halinski |
| Fenelon Trails Inc. and 2185373 Ontario Inc. |
Richard Taylor |
| Black Bear Estates Inc. | James Webster |
| BARMMAR Investments Ltd. BMMB Investments Ltd. |
Matthew Rutledge |
| Lindsay 2017 Developments Inc. | Kristie Jennings |
MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL AND STEVEN COOKE AND ORDER OF THE TRIBUNAL
1The matter before the Ontario Land Tribunal is a Case Management Conference (“CMC”) regarding a number of appeals related to the adoption of the City of Kawartha Lakes 2012 Official Plan (“CKLOP”) referred to as: Official Plan Amendment (“OPA”) No. 13, OPA No. 14 , OPA No.15, OPA No.16 ,OPA No.17 and OPA No.18 .
2The purpose of this CMC was to review and refine a working draft of the Procedural Order and Issues List for the upcoming Phase 2 Hearing. This working draft was submitted to the Tribunal in advance of the CMC by Ms. Koev, Counsel for the City, with the provision that there is currently no consensus amongst the Parties to the OPA No. 13 appeal proceeding with the above-referenced draft.
3The intent at this CMC was to set a firm deadline by which the parties must file a final version of the draft Procedural Order for the Phase 2 Hearing.
Housekeeping Matters
4The Tribunal was advised that Flato Lindsay Community Inc. recently acquired the land previously owned by Vizatimet Farms Ltd.
Bromont Homes Concern with Lindsay Settlement Boundary
5Ian Andre is the new Counsel for Bromont. He submitted correspondence dated August 13, 2021 to the Tribunal specifically requesting further clarification and direction from the Tribunal regarding the intention of the Decisions, Orders and procedural directions that have been issued by the Tribunal over the past few months in relation to the determination of the City’s urban settlement boundary, particularly as it relates to Lindsay.
6In his oral submission, Mr. Andre made reference to the fact that the Bromont lands were originally within the urban settlement boundary of Lindsay in the 2012 Official Plan.
7Mr. Andre made reference to the May 31, 2021 Review Decision from Associate Chair Vincent determining that Orders 1 and 2 should be approved. However, he stated to the Tribunal that Order 2 withheld final approval of the Schedules pending the submission of final Schedules to the Tribunal, which he understands has not yet occurred. Order 2 also provides that the Tribunal may be spoken to should any matters arise respecting the implementation of the Order.
8He made specific reference to paragraph 3 of draft Order 2 which states:
- This Order is made without prejudice to any right that the Parties to the Phase 1 Hearing may have to argue for, or against, a boundary adjustment pursuant to the 2019 Growth Plan Policy 2.2.8.4 during the portion of the Phase 1 Hearing that is scheduled to be heard in May/June of 2021.
9Mr. Andre stated that the above paragraph and comments from Associate Chair Vincent’s Review Decision clearly indicates that it was the Tribunal’s intention in issuing Order 2 that:
- It would not be prejudicial to Bromont arguing against the modification to the urban settlement area boundary for Lindsay if it wishes to do so, and
- The Tribunal was retaining the jurisdiction over Bromont’s concern with the location of the urban settlement area boundary for Lindsay as shown on Map 5 attached to Order 2.
10Mr. Andre also stated that his request for clarification does not prejudice any of the other Parties as there is more than 5 1/2 months in advance of the upcoming Hearing to deal with this issue.
11In closing, he requested that the Tribunal confirm that Bromont is entitled to have the inclusion of it’s lands in the urban settlement boundary for Lindsay adjudicated in the hearing scheduled for February, 2022, and that Bromont is not restricted to calling a case in relation to whether the lands should be added through a land swap under s. 2.2.8.4 of the Growth Plan
Response from City
12On behalf of the City, Ms. Koev told the Tribunal that, although Mr. Andre is relatively new to this voluminous file, this was not a viable excuse to re-open the boundary issue. The proper avenue for Bromont was to go to the Divisional Court upon receiving the Review Decision, which they did not do.
13She further stated that the draft Orders should have been no surprise to Bromont.
14Ms. Koev also made reference to Mr. Andre’s observation that Bromont was not invited to provide input to the Review Decision, and she reminded the Tribunal that under it’s Rules of Practice and Procedure, notice is given at the discretion of the Tribunal. The City was not directed to provide notice to Bromont.
Response from Stollar/Westcott
15Ms. Baker spoke on behalf of her clients and cautioned the Tribunal to tread with caution in making a decision on this matter.
16She stated that, as echoed in Ms. Koev’s submissions, Bromont’s recourse should be with the Divisional Court or through a s. 35 review.
17Ms. Baker took the Tribunal through a chronological review of historical events, motions and decisions leading up to the present day. She also made reference to the planners’ agreed statement of facts, where the revised boundaries were agreed to, that included the planner for Bromont, and that it was agreed that future boundary adjustments could be accomplished by applying s. 2.2.8.4 of the Growth Plan.
Bromont Reply
18Mr. Andre stated that Bromont has consistently opposed the boundary adjustment as put forward by previous motions. He also expressed concern about being “blind-sided” by the Review Decision and Bromont not having the opportunity to provide input during this review.
19Mr. Andre noted again that the final schedules were never filed, and the final Order was being held until the Schedules are filed. Since the Hearing is not scheduled until February of 2022, he again stressed that there is ample time to file Witness Statements and finalize a Procedural Order in advance of the Hearing.
Findings of the Tribunal
20Having heard all the submissions and considering the chronology and complexity of this matter to date, the Tribunal is of the opinion that the settlement boundary issue for Lindsay is still a live issue.
21As noted in Vice-Chair Vincent’s Review Decision dated May 31, 2021, she specifically stated that:
- The Tribunal’s approval of draft Order 2 will not be prejudicial to Bromont arguing against the boundary adjustment if it chooses to do so.
22The panel does not feel that adjudicating the boundary issue for Bromont at the upcoming Hearing of the Merits will be prejudicial to any of the Parties.
23The Tribunal orders that the outstanding settlement boundary issue for Lindsay will be adjudicated at the upcoming Hearing.
Outstanding Written Motion
24The Tribunal was asked by Mr. Halinski about the status of an outstanding written motion for disclosure. The written motion is regarding the production of documents and information pertaining to servicing capacity in the City of Lindsay, and if required, to give leave to introduce that evidence at the hearing of the land-swap proposals now scheduled for 2022.
25The Tribunal will enquire and review the written motion material for discussion at the next CMC.
Future CMC
26Due to the oral submissions from the Parties, and the findings of the Tribunal, it was requested that the CMC be adjourned in order for counsel to seek further instructions from their clients.
27A CMC is scheduled to proceed by video hearing on Friday, November 12, 2021 at 10 a.m. At the next CMC, the Parties have been instructed to review and refine a working draft of the Procedural Order and Issues List for the upcoming Phase 2 Hearing.
28Parties 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/413680253
Access code: 413-680-253
29Parties 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
30Persons 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: (647) 497-9391 or Toll Free 1-888-455-1389. The access code is 413-680-253.
31Individuals 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.
32The panel is not seized and may assist with case management, schedules permitting.
33No further notice is required.
34So Orders the Tribunal.
“T. Prevedel”
T. PREVEDEL MEMBER
“Steven Cooke”
steven cooke 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.