Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 13, 2022

CASE NO(S).: OLT-21-001757

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C. 27, as amended

Appellants: Anita Kertzer, Morris Kertzer

Respondent: Rideau Valley Conservation Authority

Subject: Appeal of refusal to grant permission for development

Property Address: 2295 Wildlife Way

Municipality: City of Ottawa

Upper Tier: Elgin County

OLT Case No.: OLT-21-001757

OLT Case Name: Kertzer v. Rideau Valley Conservation Authority

Heard: September 6 to 8, 2022 by video hearing

APPEARANCES:

Parties Anita Kertzer and Morris Kertzer Rideau Valley Conservation Authority

Counsel Ronald Petersen Charlotte Watson

MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER CAMPBELL ON SEPTEMBER 6, 2022 AND ORDER OF THE TRIBUNAL

1This Decision arises from a hearing (“Hearing”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding an appeal by Anita Kertzer and Morris Kertzer (collectively, the “Appellants”) concerning a decision of the Rideau Valley Conservation Authority (the “Respondent” or the “RVCA”) denying an application for development at the property located at 2295 Wildlife Way, Kemptville, Ontario (the “Property”).

Background

2In 1972 and 1973, the Appellants purchased Lots 9, 10, and 11 of the subdivision governed by the Plan 766 Subdivision Agreement dated May 28, 1962, between Angus James McDonald, the Corporation of the Township of North Gower and Earl Wilson (“Plan 766”). The municipal addresses of the purchased Lots are 2295 and 2301 Wildlife Way. Lots 1 to 6 of Plan 766 (including the Appellants’ former primary residence at 2294 Wildlife Way) are also located on Wildlife Way, on the banks of the Rideau River. Lots 9, 10 and 11 are each vacant, located across the road from Lots 1 to 6, and are not waterfront properties.

3The Appellants submitted a letter to the RVCA dated April 25, 1983, inquiring about the issuance of a building permit for a single-family dwelling on Lots 9, 10 and 11. The RVCA responded in a letter dated June 28, 1983, advising that the Lots in question were located within an identified 1:100 year floodplain. The RVCA further indicated in its response that although the flood-prone nature of the property would present a significant constraint to potential development, the decision to grant or deny permission for such a permit, ultimately rested with the RVCA Executive Committee.

4In 2001, the Township of North Gower amalgamated with the City of Ottawa (“City”).

5On September 13, 2004, the Appellants submitted Application No. RV6-4504 to develop the Property consisting of Lot 10 and part of Lot 9 of Plan 766. No application was made at the time, in respect of Lot 11, and Counsel for the Appellants has confirmed that Lot 11 does not comprise part of the Property, which is the subject of this Hearing before the Tribunal. A hearing of the RVCA Executive Committee was scheduled for November 10, 2004, in order to consider Application No. RV6-4504, however, the Appellants requested an adjournment to permit more time to research and prepare their evidence, and to await a decision of the Supreme Court of Canada, which they believed may be relevant to their submissions. Although correspondence continued between the Parties following the adjournment, no further formal proceedings in the matter occurred over the ensuing 16 years. The Appellants are now in their 90s and live in a retirement home on Manotick Station Road, in the City.

6On July 22, 2021, Counsel for the Appellants requested a resumption of the hearing before the RVCA Executive Committee concerning Application No. RV6-4504. A hearing was scheduled for September 9, 2021. Following the hearing, the RVCA Executive Committee denied Application No. RV6-4504 in a Letter of Decision dated October 26, 2021, on the basis that: (i) the Property is vacant and located entirely within the limits of an identified floodplain; (ii) new development is prohibited on vacant lots of record within a floodplain; (iii) the granting of permission will set a precedent; and (iv) the granting of permission may jeopardize the health and safety of persons or result in the damage or destruction of property. The Appellants have appealed the decision of the RVCA Executive Committee to this Tribunal.

Issues

7The Parties jointly submitted the following five issues to be considered in the context of this appeal:

1. What is the jurisdiction of the Conservation Authorities Act, R.S.O. 1990, c. C. 27 (the “Act”) and the RVCA over the Property;

2. If the RVCA does have jurisdiction over the Property, is the Property correctly identified as being located within the floodplain;

3. What legislation, regulations and policies apply to the development proposed by the Appellants;

4. Does the proposed development comply with the requirements of the applicable legislation, regulations and policies; and,

5. Such further issues that may arise pursuant to experts’ reports.

Voir Dire

8The Respondent called Eric Lalande to provide expert testimony regarding several of the matters at issue in this Hearing. The Appellants challenged Mr. Lalande’s eligibility to provide opinion evidence on the basis of (i) Mr. Lalande’s qualifications as an expert; and (ii) his ability to provide unbiased evidence as a result of his employment by the RVCA. A voir dire was held to determine the matter.

9Mr. Lalande’s curriculum vitae indicated extensive experience in planning and conservation matters, including a related university degree, membership with the Canadian Institute of Planners, work experience as a planner for over 10 years and prior qualification as an expert by this Tribunal concerning planning and conservation matters in two previous appeals. The Appellants challenged this expertise, as well as whether Mr. Lalande was sufficiently qualified to provide opinion evidence regarding legal statutes and policies given that he is not a qualified lawyer. After review, the Tribunal found that (i) Mr. Lalande had sufficient expertise in planning matters to be qualified as an expert; and (ii) the interpretation of applicable legislation is directly related to the duties commonly performed by professional planners and falls within their area of expertise. Accordingly, the Tribunal was satisfied that Mr. Lalande held the necessary qualifications to provide opinion evidence in the matters under review in this Hearing.

10The Appellants further argued on voir dire that Mr. Lalande was unable to provide unbiased opinion evidence to the Tribunal due to his employment by the RVCA and, in particular, his role as a lead presenter regarding the Appellants’ application in the prior hearing before the RVCA. The Respondent countered that Mr. Lalande’s employment with the RVCA should not exclude him as an expert witness as he is receiving no additional compensation for his testimony before the Tribunal, and he did not participate in any prior proceedings as an advocate before the RVCA but only as a presenter of opinion evidence. Further, the Respondent argued, Mr. Lalande’s opinion evidence is based upon his own expertise, and it would not vary regardless of his employment status.

11It is the duty of an expert witness appearing before the Tribunal to provide testimony that is fair, objective and non-partisan. The crux of the Appellant’s position is that Mr. Lalande is unable to provide non-partisan evidence as a result of his affiliation with the RVCA, which would not be in the spirit of fairness. The Tribunal does not agree with this position. To the contrary, there is a distinction to be made between the concepts of non-partisan - which commonly means unbiased – and independence in the context of one’s affiliation with a third party. Although opinion evidence itself must be both unbiased and independent (meaning free of influence), it does not necessarily follow that the expert himself or herself must be independent of any third party involved in the proceedings.

12A similar matter was considered by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co. (2015 SCC 23), in which the Court held that once an expert attests to his or her duty to be fair, objective and non-partisan, the burden is on the opposing party to establish a realistic concern that the expert is unable or unwilling to comply with such a duty. Further, the Court noted as follows:

For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so.

13In this case, Mr. Lalande acknowledged his duty to be fair, objective and non-partisan pursuant to the Acknowledgement of Expert’s Duty which he filed with the Tribunal prior to this Hearing, and the Appellants did not meet the burden of establishing a realistic concern that Mr. Lalande would be unable or unwilling to perform this duty. Accordingly, the Tribunal found that although Mr. Lalande was not independent of the RVCA, there was no evidence to suggest that his testimony would be biased or influenced in any manner with respect to the development permit being sought. As a result, the Tribunal duly qualified Mr. Lalande as an expert and found his opinion evidence to be admissible, with assurance to the Appellants of full opportunity to cross-examine the witness and make arguments as to the weight to be afforded to his testimony.

Jurisdiction of the Conservation Authorities Act and the RVCA / Location of Property within floodplain

14The first issue under consideration in this Hearing is the extent of jurisdiction of the Act and the RVCA over the Property in question, which must be considered in tandem with the second issue as to whether or not the Property has been correctly identified as being located within a floodplain. In this regard, subsection 2(1) of the Act grants authority to municipalities situate wholly or partly within a watershed to create conservation authorities, as follows:

2 (1) Where the councils of any two or more municipalities situate either wholly or partly within a watershed by resolution request the Minister to call a meeting for the establishment of an authority for the watershed or any defined part thereof, the Minister shall fix a time and place for such a meeting and shall forthwith notify the council of every municipality either wholly or partly within the watershed or part thereof.

A “watershed” is further defined in Section 1 of the Act to be “an area drained by a river and its tributaries”. Within this context, the RVCA was originally established in 1966 to govern the watershed regions of the Rideau River, amongst others.

15Having established the authority of the RVCA over watershed regions of the Rideau River pursuant to the Act, the question then turns to whether or not the Property is located within such a watershed. In this regard, Mr. Lalande testified that, in his opinion, the Property is located within the watershed of the Rideau River based upon a 2017 flood risk mapping study prepared by the RVCA (the “2017 Study”), which establishes a regulatory flood level (“RFL”) of 87.3 metres above sea level (“a.s.l.”). The Property is located at 86.6 metres a.s.l. The Appellants disputed the 2017 Study, and argued that the Property is in fact situated outside of the watershed based upon (i) a map of the lots created by Plan 766 dated March 3, 1964, which indicates a “high water mark” and “controlled high water mark” of the Rideau River which differ from the watershed boundaries shown in the 2017 Study; and (ii) the ability of applicable conservation authorities to control the height of the Rideau River through the use of locks, dams and reservoirs. On cross-examination, Mr. Lalande testified that these “water marks” were not indicative of the watershed and in his opinion, were likely used for navigation and shoreline delineation purposes.

16The Respondent called a second witness, Dr. Ferdous Ahmed, to provide evidence with respect to the watershed. Dr. Ahmed is a professional engineer who holds a Ph.D. in water resources engineering and is currently employed as a senior water resources engineer by the RVCA. Dr. Ahmed was qualified by the Tribunal as an expert witness on consent of the Parties.

17Dr. Ahmed led the 2017 Study in his capacity as a professional engineer. Dr. Ahmed was an excellent witness who provided valuable testimony as to the mathematical basis for calculating the RFL and the corresponding watershed boundary. He testified that the 2017 Study was undertaken in accordance with provincial guidelines (Ministry of Natural Resources, 1986, 2002) and was based upon available data, including high-quality LIDAR topography collected by the City in 2012. It was also peer reviewed by an independent professional engineer, which confirmed its conformance with provincial guidelines. Dr. Ahmed further explained that the 2017 Study used a standard 1:100 year flood event threshold, which is based upon the probability of any given property within the watershed experiencing a flood event over a 100 year period (i.e. an estimated 1% chance per year). Accordingly, although it was uncontested that Property had not experienced a flood event over the past 50 years, Dr. Ahmed advised that is not itself indicative of its potential to flood based upon the prescribed 1:100 flood event probability standard.

18Dr. Ahmed testified that the Property’s location at 86.6 metres a.s.l. clearly falls below the RFL of 87.3 metres a.s.l. established by the 2017 Study. Further, Dr. Ahmed testified that the provincial guidelines do not permit the consideration of manmade intervention techniques through locks, dams and reservoirs in the context of flood plain mapping, and that mapping must be based exclusively on natural flow. In conclusion, Dr. Ahmed testified that, in his opinion, the Property is located within the floodplain and would be flooded in the event of a 1:100 year flood occurrence.

19Based on the evidence presented, the Tribunal finds that the Property is located within the watershed of the Rideau River, and accordingly, the RVCA has authority over the Property pursuant to subsection 2(1) of the Act.

Applicable legislation, regulations and policies

20The next issue to be considered by the Tribunal concerns which legislation, regulations and policies apply to the development application of the Appellants. Subsection 28(1) of the Act provides as follows:

Regulations by authority re. area under its jurisdiction

28 (1) Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction, …

(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development; ...

Subsection 28(5) of the Act further provides that the regulations enacted pursuant to subsection 28(1) of the Act must apply only to areas which meet certain criteria including those which qualify as “hazardous lands”, which is in turn defined as “land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock”. The Tribunal finds that the Property meets the foregoing criteria given its location within a floodplain and, accordingly, it is subject to the regulations established under subsection 28(1) of the Act.

21Pursuant to subsection 28(1) of the Act, the RVCA has established Policies Regarding Development Including Construction / Reconstruction of Building and Structures, Placing of Fill and Alterations to Waterways Under Section 28 of the Conservation Authorities Act of Ontario (the “RVCA Policies”), which set forth as follows:

1.1 General Principles

The Authority's consideration of all applications for permission to construct buildings and structures (including additions to or renovations of existing buildings) and to place fill or undertake site grading or to alter a waterway will be guided by the following principles of flood plain and watershed management:

(a) New development must result in no significant impact on expected flood levels or velocities, taking into consideration the direct and cumulative effects of the development on flood plain conveyance capacity and storage capacity.

(b) New development involving capital investment in flood susceptible areas by the public and private sectors must be designed so that structures and their contents are protected against flood damage.

(c) New development must not increase the risks to public safety which are expected to be present during the regulatory flood (or more frequent floods); in this regard the availability of access to and egress from the structure and the potential depths of water over access routes will be the primary consideration.

1.2 (1) Development within the 1:100 year regulatory floodplain shall not be permitted except as allowed by specific policies elsewhere in this document. This includes:

i) new buildings and structures;

ii) major additions;

iii) site grading and filling;

vii) new development on vacant lots of record;

ix) development on high points of land outside the floodway but within the regulatory limits of the regulation where safe access is not available.

22The RVCA Policies were created for the purpose of guiding the exercise of the RVCA’s powers under the Act and the Regulation. The standard practice of the Tribunal is to have regard to non-binding policies such as these when rendering a decision. However, the Tribunal notes that in Laforme v. The Corporation of the Town of Bruce Peninsula, 2021 ONSC 5287, the Divisional Court found a development permit decision only need be consistent with a conservation authority’s policies. The Court stated at paragraph 40:

40. The purpose of my review of the Policies is not to interpret and apply

them to the project, but rather to determine, as part of a review of the record available to the Court, whether the Town’s proposed interpretation of the exception under section 3(1) of O. Reg. 151/06 is consistent with the Policies.

23The Appellants argued that the Act (and, by extension, the RVCA Policies) should not apply to the proposed development to the extent that they conflict with Plan 766. Plan 766 was established under the predecessor legislation to the current Planning Act, R.S.O. 1990, c. P.13 (the “Planning Act”), and contains references to the water table of the subdivision and fill required to safeguard sewage systems in the development. However, there are no references in Plan 766 to the floodplain, the Act, the RVCA (which was not yet in existence), or to any related regulations for development within a floodplain. Thus, the Appellants submitted that Plan 766 should be grandfathered from application of the Act and the RVCA Policies on the basis that the Planning Act (and, by extension, Plan 766) have paramountcy. The Tribunal cannot accept this position. To the contrary, it is the view of the Tribunal that the Act and Planning Act operate in tandem, and neither one supersedes the other. Further, there was no compelling evidence presented to the Tribunal supporting the contention that a municipal plan of subdivision would supersede provincial legislation or the regulations enacted thereunder.

24The Appellants and the Respondent also disputed the application of Ontario Regulation 174/06: Rideau Valley Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses (the “Regulation”) to the development proposal. The Regulation was first established in 2006 to govern, amongst other matters, the development of wetland properties under the authority of the RVCA. A predecessor to the current Regulation was previously in force on September 13, 2004 when the Applicants first submitted their development application to the RVCA. Accordingly, the Appellants argued that the predecessor regulations should instead apply to their application pursuant to the following transitional guidelines published in 2006 (the “Transition Provisions”):

Transitional Procedures Guidelines for permission pursuant to Section 28 of the Conservation Authorities Act. (April 18, 2006)

1.2.1. Applications Submitted under the CA Act before May 1^st, 2006

Applications for permission that are submitted to the Authority prior to May 1^st, 2006 (or the date of approval by the Minister) will be subject to the procedures for the administration of the existing “Fill, Construction and Alteration to Watercourses” Regulation provided that the application is complete, and all fees are paid to the satisfaction of the Authority.

The April 18, 2006 regulations accompanying the Transition Provisions provided that “Until such time as the review and approval process is complete, the adopted Transition Provisions dated April 18, 2006 remain in effect”. This review and approval process of the Minister was completed on May 4, 2006. Accordingly, the Tribunal is of the view that the above Transition Provisions ceased to be in effect as of May 4, 2006, and accordingly, the current Regulation applies to the Applicants’ development proposal. It is also worthy of note that Mr. Lalande indicated that even if the predecessor regulations were to be applied, the RVCA would still not have approved the Appellants’ current application as the two sets of regulations contain similar restrictions regarding developments within floodplains.

25Lastly, the Tribunal finds that the Ontario Provincial Policy Statement, 2020 (the “PPS”) is relevant to this appeal, which includes the following provision:

3.1.1 Development shall generally be directed, in accordance with guidance developed by the Province (as amended from time to time), to areas outside of:

b) hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and/or erosion hazards; and

c) hazardous sites

3.1.2 Development and site alteration shall not be permitted within:

c) areas that would be rendered inaccessible to people and vehicles during times of flooding hazards, erosion hazards and/or dynamic beach hazards, unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard; and

d) a floodway regardless of whether the area of inundation contains high points of land not subject to flooding.

Compliance of proposed development with applicable legislation, regulations and policies

26The final issue before the Tribunal is whether the proposed development complies with the applicable legislation, regulations and policies, thereby supporting the approval of a development permit for the Property. There are various criteria to be met by the Appellants in this regard, but of particular focus in this appeal are the following:

(i) adequate floodproofing (subsection 1.4.1 of RVCA Policies);

(ii) safe ingress/egress (subsections 1.1(c) and 1.4.4 of RVCA Policies);

(iii) compliance with fill requirements (subsection 2.0 of RVCA Policies);

(iv) compliance with general principles that new development must result in no significant impact on expected flood levels or velocities, or affect the control of flooding, erosion, dynamic beaches, pollution or the conservation of land (subsections 1.1(a) of RVCA Policies and 3(1) of Regulation); and,

(v) prohibition against development of a vacant lot within a floodplain (subsection 1.2(vii) of RVCA Policies).

Each of these criteria will be addressed separately below.

27The Appellants submitted a significant amount of evidence concerning their floodproofing plan for the proposed development pursuant to subsection 1.4 of the RVCA Policies, none of which was disputed by the Respondent. However, the floodproofing provisions of the RVCA Policies apply only in circumstances where the development has otherwise been approved, as set forth in subsection 1.4.1(a) below (emphasis added):

Buildings or additions to buildings which are permitted under the Regulations shall be floodproofed to the satisfaction of the Authority.

Accordingly, the floodproofing of a residence does not in itself satisfy the RVCA requirements, and all other relevant criteria set forth in the RVCA Policies must also be considered. However, it is accepted by the Tribunal that the proposed residence is capable of being adequately floodproofed.

28The RVCA Policies require safe ingress and egress from the Property based upon the 1:100 year flood event standard. Specifically, subsection 1.4.4 of the RVCA Policies provides that safe ingress and egress “will be considered to be available if the depth of flooding at regulatory (1:100 year) flood level along the full length of the travelled surface of the access roadway or right-of-way is no greater than 0.3 metres”. Although there was some prior debate, the Parties are now in agreement that Wildlife Way provides safe ingress and egress to the Property boundary in accordance with this standard. However, given the Property’s location at 86.6 metres a.s.l. (or 0.7 metres below the RFL of 87.3 metres a.s.l.), the Appellants have not been able to establish safe ingress / egress from the Property boundary to the development itself within the 0.3 metre maximum threshold established under subsection 1.4.4, absent the placement of fill.

29Mr. Hendrik Van de Glind provided fact evidence for the Appellants concerning drawings for the proposed development on the Property which had been prepared by the Paterson Group, and which contemplated the use of fill to raise the ground to 88.05 metres in front of the Property and between 88.03 and 88.55 metres in the back. Mr. Van de Glind indicated that the plans would require some minor revisions to be compliant with current regulations, but no major changes to the grading plan would be required. The use of fill to bring the proposed development into compliance with the RVCA Policies must, in turn, conform to the standards set out in Section 2 of such policies, which include the following provisions:

2.0 Policies Regarding the Placing of Fill

Development involving site grading or fill placement or removal within the floodway is generally not permitted; exceptions may be considered, however, subject to the provisions of Section 2.1 (Minor removal or placement of fill / minor site grading in the floodplain) below.

2.1 Exceptions may be considered for the minor removal or placement of fill / minor site grading / minor site alteration in the floodway where flood depths in the floodway are shallow, flow velocities are minimal and the proposed development or site alteration is considered to be minor in nature with no impact in terms of its effect on the control of flooding, pollution, erosion and the conservation of land…

No evidence was presented to the Tribunal concerning how the proposed application satisfies the criteria for fill at Section 2.1 of the RVCA Policies. However, based on the testimony provided, geotechnical and engineering reports would typically be required to establish whether this criteria has been met, as well as whether the development would result in any significant impact on expected flood levels or velocities pursuant to subsection 1.1(a) of the RVCA Policies. As no such reports were submitted at the Hearing, the Tribunal is unable to reach any definitive findings on these matters.

30Any development application for the Property must also comply with the general principles that the new development must not result in any significant impact on expected flood levels or velocities, pursuant to subsection 1.1(a) of the RVCA Policies. Further, while subsection 2(1)(b) prohibits development in or on river or stream valleys that have depressional features as further detailed therein, subsection 3(1) provides an exception to this prohibition if an applicant can establish that the proposed development will not affect the control of flooding, erosion, dynamic beaches, pollution or the conservation of land.

31Sections 1.1(a) of the RVCA Policies and 3(1) of the Regulation allow for reasonable discretion to be exercised by the RVCA. The Appellants made various submissions as to factors that should be taken into consideration in exercising reasonable discretion in this regard, including (i) the location of the Property at only 0.7 metres below the RFL; (ii) the additional development that has already taken place on most of the remaining lots of Plan 766; (iii) the potential use of fill to raise the level of the Property above the RFL; (iv) the proposed floodproofing of the development; (v) the existence of locks and dams which are commonly used to control the level of the Rideau River; and (iv) the safe ingress / egress to the Property boundary along Wildlife Way. In addition, the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov [2019] SCC 65 also held that an administrative body can take into consideration the potential impact of a regulatory decision on the person to whom it applies. In this case, the Applicants are in their 90s and require the funds from the sale of the Property in order to sustain them in their remaining years – funds which would be significantly diminished in the absence of a development permit. These factors, taken together, are very compelling. However, the Tribunal notes that they are not directly related to the criteria that must be established pursuant to subsections 1.1(a) of the RVCA Policies and 3.1 of the Regulation, which relate to the potential impact of the development on flood levels/velocity, erosion, dynamic beaches, pollution and the conservation of land. These are matters which would typically be addressed by geotechnical and engineering reports, none of which were submitted to the Tribunal. Without such reports, it is not possible for the Tribunal – or presumably, the RVCA – to determine whether the criteria at subsections 1.1(a) of the RVCA Policies and 3.1 of the Regulation have been satisfied.

32Subsection 1.2(vii) of the RVCA Policies prohibits new development on vacant lots of record located in a floodplain. Mr. Lalande testified that there is no exception to this prohibition. Accordingly, as the Property is a vacant lot of record that has been established to be located within a floodplain, the proposed development is prohibited pursuant to subsection 1.2(vii) of the RVCA Policies.

33As a final matter, following the Hearing, the Appellants contacted the Tribunal to request consideration of the recently published decision in Annapolis Group Inc. v. Halifax Municipality 2022 SCC 36 which was released on October 21, 2022. Although no provision was made at the Hearing for further submissions, the Tribunal did review Annapolis for the purpose of determining its relevance to this appeal. In Annapolis, the City of Halifax had prevented the appellant in that case from developing its lands which the City of Halifax wished to utilize as a public park. The appellant brought a civil action against the City of Halifax alleging constructive taking, misfeasance in public office, and unjust enrichment. The Tribunal finds that none of these civil torts are within the Tribunal’s authority to adjudicate pursuant to Section 28(15) of the Conservation Authorities Act, which provides as follows:

A person who has been refused permission or who objects to conditions imposed on a permission may, within 30 days of receiving the reasons under subsection (14), appeal to the Ontario Land Tribunal, and the Tribunal may,

(a) refuse the permission; or

(b) grant the permission, with or without conditions.

Accordingly, the Tribunal does not have jurisdiction under these provisions to consider matters of civil torts, nor to make an award of damages as was the case in Annapolis.

Conclusions and Order of the Tribunal

34The Property has been correctly identified as being located within a floodplain and, as such, any development on the Property is subject to the applicable provisions of the Act, the Rideau Valley Conservation Authority (“RVCA”) Policies, the Regulation and the PPS (collectively, the “Relevant Legislation”).

35Anita Kertzer and Morris Kertzer (the “Appellants”) must satisfy various criteria of the Relevant Legislation in order for their development permit application to be approved. In this regard, The Tribunal finds as follows:

1. Section 2 of the Regulation prohibits development in or on river or stream valleys that have depressional features, subject to an exception under subsection 3(1) if an applicant can establish that the proposed development will not affect the control of flooding, erosion, dynamic beaches, pollution or the conservation of land. The Tribunal was not furnished with any engineering or hydrological reports in this regard, and is therefore unable to determine if an exception is available in respect of Application No. RV6-4504 pursuant to subsection 3(1) of the Regulation.

2. The RVCA Policies set forth various criteria for development, including with respect to floodproofing, safe ingress/egress and the use of fill. The Appellants’ submissions regarding the floodproofing of the development were uncontested. However, the Appellants did not adequately establish compliance with Section 2 of the RVCA Policies regarding the use of fill to raise the level of the Property to meet the RFL, and were also not able to establish safe ingress/egress between the Property boundary and the development which (in the absence of fill) would be located below the level set forth in s. 1.4.4 of the RVCA Policies.

3. Subsection 1.2(vii) of the RVCA Policies prohibits new development on vacant lots of record in the floodplain. There is no exception to this prohibition. Accordingly, as the Property is a vacant lot of record located within a floodplain, the proposed development is prohibited pursuant to subsection 1.2(vii) of the RVCA Policies.

4. Given the foregoing failure of the Appellants to discharge their burden to establish that the proposed development complies with the applicable criteria of the Regulation and the RVCA Policies, the Tribunal does not find it necessary to make a determination as to the compliance of the development with the broader provisions of the PPS.

36Based on the evidence and submissions before it, the Tribunal finds that the Appellants have not discharged their burden to establish that Application No. RV6-4504 will comply with the applicable criteria of the Regulation and RVCA Policies.

37The Tribunal orders that this Appeal be dismissed.

“Jennifer Campbell”

JENNIFER CAMPBELL

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.