Sneyd v. Parry Sound (District), 2022 CanLII 23464

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 25, 2022

CASE NO(S).: OLT-21-001321

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant: Garret McKeag

Appellant: Don and Heather Sneyd

Subject: Consent

Property Address/Description: Fire Route 155B / Part of Lot 28 Con 10

Municipality: Township of McKellar

Municipal File No.: B27/2021

OLT Lead Case No.: OLT-21-001321

OLT Case No.: OLT-21-001321

OLT Case Name: Sneyd v. Parry Sound (District)

Heard: January 10, 2022 via Video Hearing

Parties

Counsel*/Representative

Donald and Heather Sneyd

Marilyn Sparrow

Garret McKeag

Marc Kemerer*

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1Mr. Garret McKeag (“McKeag” or the “Applicant”) filed a motion to dismiss this appeal under section 53(34) of the Planning Act (“Act”). This is an appeal by Donald and Heather Sneyd (the “Sneyds” or the “Appellants”) of a decision by the Parry Sound Area Planning Board (“Board”) granting provisional consent to the severance of a portion of the mainland property fronting onto Lake Manitouwabing (the “Lake”) legally described as Part of Lot 28, Concession 10 and described as Part 9 on Reference Plan No. 42R-20625 (“Subject Property”). The Sneyds are owners of a cottage property 10 kilometres (“km”) away from the Subject Property. The severance will permit the creation of a separate parcel having a shoreline frontage of 55 metres (“Shoreline Access Parcel”) which is to be sold to Mr. David Lewis, who owns property with a cottage on an island in the Lake (“the Lewis Island Cottage”). This is the second severance consent granted by the Board for the Shoreline Access Parcel. The first consent lapsed due to delays caused by another appeal. The Shoreline Access Parcel has been rezoned for a non-residential use as a mainland access point for the Lewis Island Cottage. This appeal has a complex prior history that will be reviewed in this decision.

HEARING

2A motion to dismiss this appeal was heard on January 10, 2022. Ms. Sparrow appeared to represent the Appellants. She had represented a Mr. Norman Edward Davidson in an appeal relating to the rezoning application for the Shoreline Access Parcel involving the Applicant which was dismissed by the Tribunal under section 35(25) of the Act.

3The Applicant presented the affidavit of John Jackson, a registered planner, in support of the current motion for dismissal which is made under section 53(31) of the Act. Mr. Jackson was sworn in and properly qualified as an expert.

4A motion was made by the Appellants to disqualify Mr. Jackson as a witness, due to an alleged conflict of interest. After the submissions of the parties, it was orally dismissed by the Tribunal as having no merit whatsoever and Mr. Jackson was permitted to testify.

5Mr. Jackson gave oral testimony which followed the substance of this affidavit and Ms. Sparrow was permitted to cross-examine him for a period of 30 minutes. The Tribunal found Ms. Sparrow’s cross-examination unhelpful and after its conclusion, the Tribunal had no reason to doubt the veracity or substance of his testimony.

6The Tribunal found the testimony of Mr. Jackson to be clear, forthright and uncontradicted. During his testimony, Mr. Jackson outlined the following important historical background in support of the motion.

7Mr. McKeag, the Applicant, also gave oral testimony and Ms. Sparrow was permitted to cross-examine him for a period of 10 minutes. The Tribunal found Ms. Sparrow’s cross-examination unhelpful and after its conclusion, the Tribunal had no reason to doubt the veracity or substance of Mr. McKeag’s testimony.

8Ms. Sparrow filed voluminous materials in response to the motion to dismiss. The materials and the submissions made by Ms. Sparrow were not helpful to the Tribunal in rendering its decision in this case.

SALE OF THE SHORELINE ACCESS PARCEL

9Mr. McKeag owns shoreline property fronting onto the Lake. There are numerous islands in the Lake with cottage properties requiring access to the Lake shoreline. Shoreline access represents a serious challenge for island cottage property owners who require ongoing access to the mainland. Currently, owners of island cottage properties gain access to the shoreline through private arrangements with local mainland marinas on the Lake, landowners on the Lake’s shoreline, or through their own personal docking facilities located on land that they own on the Lake’s shoreline. Mr. McKeag was approached by a neighbour, Mr. Lewis who owns a cottage property on one of the islands in the Lake and asked to sell the Shoreline Access Parcel fronting onto the Lake for a permanent mainland access point.

10To close the sale, Mr. McKeag applied for a provisional consent to sever the Shoreline Access Parcel from the Subject Lands on December 3, 2019. Consent to sever the Shoreline Access Parcel was granted by the Board on January 27, 2020, subject to numerous conditions including the following:

The Shoreline Access Parcel was to be rezoned to a Waterfront Residential Exception Zone to allow for the parking of boats, trailers and automobiles together with any relevant structures (docks, ramps, storage facilities);
A restriction be placed on title to the Shoreline Access Parcel so that it could only be sold with the Lewis Island Cottage (“Original Severance Consent”).

11No appeals were filed relating to this consent to the severance of the Shoreline Access Parcel.

REZONING SHORELINE ACCESS PARCEL AND APPEAL

12In compliance with the Original Severance Consent, an application to rezone the Shoreline Access Parcel was filed with the Board and granted. The Shoreline Access Parcel was rezoned for landing area uses with no residential use being permitted (“Shoreline Landing Use Zoning”). The sole permitted uses were for use as a parking and loading area for water access lands, a boat ramp, a dock, and a storage building.

13Mr. Davidson appealed the Board’s rezoning decision permitting the Shoreline Landing Use Zoning for the Shoreline Access Parcel to the Tribunal (“Rezoning Appeal”). The Tribunal dismissed the Rezoning Appeal under section 35(25) of the Act, without a hearing in its decision in the case of Davidson v. McKellar (Township) issued on June 29, 2021 (“Rezoning Appeal Dismissal”).

14In the Rezoning Appeal, Mr. Davidson, a land use planner was the named appellant, Ms. Sparrow, the spouse of Mr. Davidson, was the appellant’s representative, and the Sneyds were granted participant status but did not bother filing a participant statement. The Rezoning Appeal decision identified that Mr. Davidson and Ms. Sparrow are married and co-own the same cottage property on the Lake. Mr. Davidson, the Appellant in the Rezoning Appeal, is a planner and prepared a planning report in support of the Rezoning Appeal.

15The Rezoning Appeal was dismissed for the following reasons. Mr. Davidson was disqualified as an expert planning witness since he lacked the impartiality required due to his personal interest in ensuring that the appeal was allowed.

16The Tribunal stated on page 19 of the Rezoning Appeal Dismissal:

After considering the submissions of the parties the Tribunal finds that the Appellant cannot be qualified to provide objective expert evidence in the Appeal currently before the Tribunal. The Tribunal is concerned that the Appellant could be influenced by personal feelings or opinions in considering and representing the facts as he has openly stated that he seeks a personal goal.

17With the disqualification of Mr. Davidson, the Tribunal was left with grounds of appeal in the Rezoning Appeal that were unsupported by any objective opinion evidence. There were no legitimate land use planning grounds raised in the Rezoning Appeal and it was dismissed by the Tribunal.

18On July 29, 2021, Ms. Sparrow and Mr. Davidson filed two separate requests for a review of the Rezoning Appeal Dismissal. Both of these requests were refused by the Tribunal.

19Due to the delays caused by the Rezoning Appeal, the Original Severance Consent for the Shoreline Access Parcel lapsed under section 53(43) of the Act. A new consent application to sever the Shoreline Access Parcel from the Subject Lands was filed by Mr. McKeag on June 29, 2021 and authorized by the Board on July 27, 2021 subject to essentially the same conditions as the Original Consent (“Second Shoreline Access Parcel Severance Consent”). The Second Shoreline Access Parcel Severance Consent was appealed to the Tribunal by the Sneyds (“Consent Appeal”).

20The Tribunal accepts Mr. Jackson’s testimony regarding the history relating to the Shoreline Access Parcel. To summarize, at this stage the Shoreline Access Parcel has been rezoned to Shoreline Landing Use exclusively and is not to be used for residential purposes. The Original Consent Severance, which was granted by the Board and not appealed, has lapsed due to the delays caused by the Rezoning Appeal. The Second Shoreline Access Parcel Consent authorized by the Board has been appealed by the Sneyds in the Consent Appeal. The applicant has filed a motion under section 53(31) of the Act to have the Consent Appeal dismissed.

THE COLLECTIVE INTEREST

21Prior to dealing with evidence regarding the current dismissal motion, it is important to address the preliminary issue of the relationship of the various individuals involved in the Consent Appeal.

22In the Rezoning Appeal, Mr. Davidson, a land use planner was the named appellant, Ms. Sparrow, the spouse of Mr. Davidson, was the appellant’s representative, and the Sneyds were granted participant status but did not bother filing a participant statement. The Rezoning Appeal decision identified that Mr. Davidson and Ms. Sparrow are married and co-own the same cottage property on the Lake. Mr. Davidson, the Appellant in the Rezoning Appeal, is a planner and prepared a planning report in support of the Rezoning Appeal.

23In the Consent Appeal, the roles have changed somewhat from the Rezoning Appeal. Ms. Sparrow continues as representative in the Rezoning Appeal. The Sneyds who were participants in the Rezoning Appeal are now the Appellants. Mr. Davidson continues to be presented as the planning witness but is not a named appellant.

24Ms. Sparrow, who is the spouse of Mr. Davidson, admitted during the hearing that both she and Davidson know the Sneyds but did not precisely disclose the extent of the relationship. Ms. Sparrow did not volunteer that she is the spouse of Mr. Davidson at the hearing.

25Mr. Jackson gave evidence at the hearing that the Sneyds, Mr. Davidson and Ms. Sparrow are “cohorts”. The Tribunal accepts this evidence and finds that there is an arrangement between Mr. Davidson, Ms. Sparrow and the Sneyds to delay and to thwart the sale of the Shoreline Access Parcel and that they share a collective interest in achieving this objective (“Collective Interest”). The Tribunal questions whether both Mr. Davidson and Ms. Sparrow should be found to be indirect parties to the proceedings due to the Collective Interest shared with the Sneyds. No submissions were made by counsel on this issue and it is not necessary for the Tribunal to determine it in order to render a decision in this case.

26This is a motion to dismiss the Consent Appeal under section 53(31) of the Act, which states:

Dismissal without hearing

(31) Despite the Statutory Powers Procedure Act and subsection (30), the Tribunal may, on its own initiative or on the motion of any party, dismiss an appeal without holding a hearing if,

(a) it is of the opinion that,

(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could give or refuse to give the provisional consent or could determine the question as to the condition appealed to it,

(ii) the appeal is not made in good faith or is frivolous or vexatious,

(iii) the appeal is made only for the purpose of delay, or

(iv) the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process;

NO LAND USE PLANNING GROUNDS FOR AN APPEAL

27There are four grounds for dismissing the Consent Appeal under section 53(31). A finding that any one of these bases for dismissal exist, permits the Tribunal to dismiss the Consent Appeal. The Tribunal will go through the evidence and submissions regarding each of the four grounds for dismissal of the Consent Appeal.

28The Applicant submits that there are no land use planning grounds for this Appeal, and the Consent Appeal should be dismissed under section 53(31) (a) (iii) of the Act.

29In this appeal, the grounds of appeal are the same as those identified in the Rezoning Appeal with one additional ground related to road access to the Shoreline Access Parcel. Mr. Jackson’s evidence was that Mr. Davidson was previously disqualified from giving planning evidence by the Tribunal due to his personal interest in the Rezoning Appeal. This is clearly identified by the decision of the Tribunal in the Rezoning Appeal. Mr. Davidson wanted to ensure that the sale of the Shoreline Access Parcel is thwarted or delayed in the Rezoning Appeal. The Tribunal finds that Mr. Davidson continues to have this same personal interest in this appeal as well as sharing the Collective Interest. He clearly lacks the objectivity required of an expert witness before the Tribunal and must be disqualified from giving evidence, for the same reasons expressed in the Rezoning Appeal Decision.

30Just as in the Rezoning Appeal, since Mr. Davidson is disqualified from giving evidence, the Tribunal is left with grounds of appeal that are not supported by any objective opinion evidence. Mr. Jackson’s evidence is that the Appeal raises no legitimate land use planning grounds. After carefully considering the submissions of the parties and the evidence, the Tribunal rules that reasons set out in the Notice of Appeal do not disclose any land use planning grounds upon which the Tribunal could allow the appeal.

31Even looking beyond the language employed in the Notice of Appeal, the Tribunal finds that the stated issues are not worthy of adjudication. As held by a predecessor of this Tribunal in the case of Toronto (City) v. East Beach Community Assn, 1996 CarswellOnt 5740, [1996] O.M.B.D. No. 1890, 42 O.M.B.R. 505 raising apprehensions relating to land use planning grounds and hoping that the substantive issues will emerge at the hearing is not sufficient to allow an appeal to proceed.

32The Tribunal finds that this appeal must be dismissed under section 53(31) (a) (i) since there are no clear land use planning grounds upon which the Tribunal could allow the appeal.

ABUSE OF PROCESS

33The Applicant submits that these proceedings are an abuse of process, and the Consent Appeal should be dismissed under section 53(31) (a) (ii) of the Act.

34Mr. Jackson’s evidence clearly identified that the named appellant may be different, but the Mr. Davidson continues to have a personal interest in this Appeal as well as sharing the Collective Interest. The Appellants represent a face for an appeal on the same grounds as the Rezoning Appeal by all parties who share the Collective Interest. The evidence of both Mr. McKeag and Mr. Jackson demonstrates that this appeal is simply a continuing pattern by the group comprised of the Appellants, Mr. Davidson and Ms. Sparrow of opposing Mr. McKeag through the appeal mechanisms in the Act which the Tribunal finds to be a clear abuse of process.

35Ms. Sparrow’s conduct at the hearing further supports this finding. Her late filing of materials, her failure to examine Mr. Jackson prior to the hearing, and her motion to examine him at the hearing all represent a pattern of similar conduct to that shown in the Rezoning Appeal. She repeated many of the same arguments rejected in the context of the Rezoning Appeal. She unsuccessfully argued that Mr. Jackson should be disqualified as a witness and Mr. McKeag is not a proper party in these proceedings. These arguments were rejected by the Tribunal in this appeal as well as in the Rezoning Appeal.

36The Tribunal finds that this appeal must be dismissed under section 53(31) (a) (ii) of the Act since it is a clear abuse of process.

DELAY

37The Applicant submits that these proceedings are a clear delay tactic, and the Consent Appeal should be dismissed under section 53(31) (a) (iii) of the Act.

38The evidence presented by Mr. Jackson demonstrates that this appeal is simply an effort by the group sharing the Collective Interest to continue to delay the sale of the Shoreline Access Parcel by Mr. McKeag. The Tribunal also accepts the evidence of the Mr. McKeag regarding the frustration that he has experienced due to the extensive delays caused by the group. The Tribunal finds that this appeal must be dismissed under section 53(31) (a) (iii) of the Act since it is simply a delay tactic.

VEXATIOUS

39The Applicant submits that these proceedings are vexatious, and the Consent Appeal should be dismissed under section 53(31) (a) (iv) of the Act.

40The evidence presented by Mr. Jackson demonstrates that this appeal is vexatious. The Tribunal accepts his testimony that the appeal has been filed with clear knowledge that the zoning is in place for the severance and there are no land use planning grounds to support the Consent Appeal and thus it is vexatious. The Tribunal finds that this appeal must be dismissed under section 53(31) (a) (iv) of the Act since it clearly vexatious.

SUMMARY

41In summary, the Tribunal dismisses this appeal on all grounds under section 53(31) (a) of the Act. At the hearing, Counsel for the Applicant requested costs. The Tribunal is not prepared to make a ruling on costs based on the request made by the Applicant at the hearing. If the Applicant wishes to pursue an order for costs against the Appellants or the group that shares the Collective Interest, the Applicant is directed to file a written motion for costs under Rule 23.

42The Appellant filed further submissions with the Tribunal following the close of the hearing alleging facts that were not raised, debated or proven at the Motion Hearing. Such submissions are not accepted and do not influence this Decision.

ORDER

43UPON APPEAL to this Tribunal by Donald and Heather Sneyd of the decision of the Parry Sound Area Planning Board granting provisional consent to application B27/2021 filed by Garrett McKeag on 29 June 2021;

AND UPON THE MOTION to this Tribunal by Garrett McKeag for an Order dismissing the appeal under subsection 53(31) of the Planning Act;

THE TRIBUNAL ORDERS that the motion is granted and the appeal by Donald and Heather Sneyd is dismissed.

“A. Cornacchia”

A. CORNACCHIA

MEMBER