Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 11, 2022
CASE NO(S).: OLT-22-002280 (Formerly, PL210129)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Manning Developments Inc.
Subject: Application to amend Zoning By-law No. (2-2021) - Refusal or neglect of Town of Lakeshore to make a decision
Existing Zoning: Mixed Use Zone (MU)
Proposed Zoning: Mixed Use Zone Exception 35 (MU-35)(H25)
Purpose: To permit the development of an 8-storey apartment building with condominium and townhouse units and one semi-detached dwelling.
Property Address/Description: 1654 Manning Road
Municipality: Town of Lakeshore
Municipality File No.: ZBA-20-2020
OLT Case No.: OLT-22-002280
Legacy Case No.: PL210129
OLT Lead Case No.: OLT-22-002280
Legacy Lead Case No.: PL210129
OLT Case Name: Manning Developments Inc. v. Lakeshore (Town)
Heard: February 23, 2022 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Manning Developments Inc. | Steven Zakem |
| Town of Lakeshore | Scott Snider |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON FEBRUARY 23, 2022 AND ORDER OF THE TRIBUNAL
Introduction
1This Decision addresses a motion brought by the Town of Lakeshore (“Town”) seeking an adjournment of the hearing of the appeal in this proceeding, the scheduling of a Case Management Conference (“CMC”), and the payment of the Town’s costs of the motion.
2The proceeding arises from an appeal by Manning Developments Inc. (“Appellant”) regarding the failure of the Town to make a decision on a zoning by-law amendment application. The Appellant seeks to amend the Town’s Zoning By-law No. 2-2021 (“Zoning By-law”) from "Mixed Use Zone (MU)" to "Mixed Use Zone Exception 35 (MU-35)(H25)" to facilitate the proposed development of an eight-storey residential condominium building, ten townhouse units, and a semi-detached dwelling at the property located at 1654 Manning Road (“subject property”).
Background
3There are several related proceedings that are, or have been, before the courts and/or the Tribunal related to the Appellant’s proposed development. These include:
- two civil applications brought by the Appellant (one now in the form of an appeal before the Ontario Court of Appeal) regarding alleged breaches of contract in relation to a cost-sharing agreement relating to development of the subject property;
- a motion for leave to appeal brought by the Appellant before the Ontario Divisional Court regarding a zoning by-law amendment appeal decision of the Tribunal (Case No. PL210076) for lands lying adjacent to the subject property; and,
- a civil claim brought against the Appellant before the Ontario Superior Court by the adjacent land owner. In that proceeding, the Appellant has issued a counterclaim seeking damages against the Town.
4In December 2021, the Appellant also brought a civil claim before the Ontario Superior Court against each of the individual members of the Town’s Council and certain members of the Town’s staff seeking damages for alleged misfeasance in public office (“Misfeasance Claim”). The Town asserts that because of the Misfeasance Claim, all members of the Town’s Council and several of the Town’s staff members have been placed in a conflict of interest in relation to matters involving the Appellant and the Town. The Municipal Conflict of Interest Act states that any member of a municipal council who has a pecuniary interest in a matter before the council must declare such and recuse themselves from participation in any related decision-making of the council exercising its statutory powers. Based on the provisions of the Municipal Conflict of Interest Act, it is the Town’s position that it is unable to make decisions or provide instructions to counsel regarding the proceedings involving it and the Appellant. The Town states that this conflict will continue until a complete dismissal of the misfeasance allegations with the effect of precluding future litigation. As a result, the Town ended all discussions and decision making related to the various proceedings involving the Town and the Appellant. The Appellant subsequently discontinued the Misfeasance Claim against the members of the Town’s Council and staff members. Issues regarding the payment of costs and the provision of full and final releases remain outstanding.
5In January 2022, counsel for the Town sought an Order from the Ontario Superior Court adjourning the hearing in the cost-sharing application before that court until all conflict of interest issues have been resolved. On January 14, 2022, the Ontario Superior Court granted the adjournment (see Manning Developments Inc. v. Municipality of Lakeshore (Court File No. CV-21-00669645-0000, January 14, 2022)). In its endorsement, the Court stated:
In my view, the consideration of the relevant factors overwhelmingly favour the granting of an adjournment. I agree with the Respondent that, in the current situation, the Respondent is unable to properly defend itself on the Application. This is because the Respondent is unable to provide instructions with respect to the litigation at this time.
No urgency nor any prejudice have been demonstrated by the Applicant. Further, the current situation is of the Applicant’s own making. The Respondent and the defendants to the action have attempted to respond in a timely manner to the situation created by the Applicant and the everchanging litigation landscape with respect to the action. This is not a situation where the Respondent is attempting to delay the progress of the litigation.
In my view, it is necessary to grant the request for an adjournment to allow the Respondent to properly prepare for the Application and have a fair chance to make out its case, and to promote an orderly, complete and fair adjudication of the issues on the Application.
6On January 28, 2022, the Town filed an application under the Municipal Conflict of Interest Act seeking a declaration from the Court on how the Town is to proceed in relation to the perceived conflicts of interest in the proceedings both before the Court and the Tribunal. Section 7(2) of the Municipal Conflict of Interest Act allows a municipal council to apply for a declaration from a judge permitting the council to consider and make decisions, which would otherwise not be permitted under the Act. Such a declaration is subject to the terms and conditions directed by the judge. The Town’s application was expected to be heard in writing by the Court in late February 2022.
Submissions
7The Town seeks an adjournment of the hearing, the scheduling of a CMC at which the Tribunal can provide further directions after the Court has made