Manning Developments Inc. v. Lakeshore (Town), 2022 CanLII 28181

Ontario Land Tribunal

Issue Date: April 04, 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: March 17, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Manning Developments Inc.	Patrick Harrington
Town of Lakeshore	Scott Snider

DECISION DELIVERED S. BRAUN AND S. MANN AND ORDER OF THE TRIBUNAL

PROCEDURAL HISTORY AND BACKGROUND

1This was a Case Management Conference (“CMC”) in respect of an appeal under s. 34(11) of the Planning Act ¹ (“Act”) by Manning Developments Inc. (“Appellant”) regarding the failure of the Town of Lakeshore (“Town”) to make a decision on a Zoning By-law Amendment application.

2The Appellant seeks to amend the Town’s Zoning By-law No. 2-2021 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”).

3This matter was originally scheduled to proceed to a five (5)-day hearing commencing on Monday, April 4, 2022. However, on February 23, 2022, a Panel of the Tribunal differently constituted ordered the hearing adjourned following a motion brought by the Town. This is because, at the time, the Town was awaiting the release of a Decision and Order from the Superior Court of Justice in relation to an application brought by the Town under s. 7(2) the Municipal Conflict of Interest Act ² (“MCIA”) with respect to whether and how the MCIA’s restrictions on decision making might apply, given that Council Members and Town Staff believe they are in a position of a conflict of interest as a result of a Misfeasance Claim brought against them by the Appellant and outstanding costs issues in relation thereto. The MCIA prohibits members of a municipal council from participating in decision making if they have a perceived conflict of interest.

4The Tribunal found that refusing the adjournment could result in inconsistency with the forthcoming decision from the Court and further found all of the foregoing to be extraordinary circumstances warranting an adjournment as, in the absence of directions from the Court, Town Council could neither make decisions nor provide instructions to its counsel with respect to the matter before the Tribunal, including providing instructions in relation to preparing for the scheduled hearing.

5In an effort to facilitate an expeditious process, the Tribunal scheduled this CMC for the Parties to provide an update on the status of the foregoing and determine next steps.

STATUS UPDATE AND NEXT STEPS

6Although the MCIA application was expected to be heard in writing in late February 2022, at the date of this CMC, the Court had yet to issue a Decision and Order. Despite the lack of Decision, the Appellant requested the matter be set for hearing, preferably in June, noting that to further delay the proceeding would be prejudicial. The Town opposed setting a date, stating that the delay has resulted from actions taken by the Appellant, that setting dates as requested would be inappropriate in the absence of the Court’s Decision and Order and to do so could prejudice the Town, which would have insufficient time to prepare for a hearing. In fact, it was the Town’s position that the matter should be adjourned sine die, only being put back on for a further CMC to determine hearing dates and other procedural matters following receipt of the Court’s Decision and Order.

7In the interest of keeping this matter moving toward a determination, the Tribunal expressed the view that the matter should not be adjourned sine die, while recognizing the Town’s need for sufficient time to receive a Decision and Order in relation to the MCIA application, receive instructions from its client and prepare for a hearing. The Tribunal further expressed the view that scheduling a hearing in June under the current circumstances would, in all likelihood, leave insufficient time for hearing preparation considering the timelines contained within a previous Procedural Order (“PO”) agreed upon by the parties and approved by the Tribunal.

8In light of the foregoing, the Parties agreed to schedule tentative hearing dates in October 2022. However, counsel for the Town requested the ability to adjourn the hearing without a formal motion, in the event that delay or conflict arises precluding or otherwise restraining in some way, the Town’s ability to be prepared for the hearing as a result of the pending ruling on the MCIA.

9In light of this request and these unusual circumstances, the Parties agreed that any hearing date scheduled would be tentative, pending the release of the Court’s Decision and Order and the normal expectation that hearing dates are fixed (in accordance with Rule 17 of the Tribunal’s Rules of Practice and Procedure) would not be applicable in this situation, provided that a request for an adjournment is related to issues arising out of the MCIA and/or the Court’s directions. As such, the hearing can be adjourned at any point at the request of the parties without the need for a motion for such reasons.

10Beyond the potential need for an adjournment of the tentative hearing dates, both Parties recognized that the Court’s Decision and Order could, while allowing the Town to participate in and prepare for the hearing, place limits upon that ability. Therefore, counsel for the Town undertook to contact the Case Coordinator to request a Telephone Case Conference (“TCC”) as soon as practicable following receipt of the Court’s Decision and Order on the MCIA application, in the event that it precludes or otherwise limits the Town from making decisions/providing instructions in relation to this matter. The purpose of the TCC would be to provide an update and receive any necessary direction from the Tribunal arising out of the Court’s Decision and Order. In the event such a TCC is necessary, counsel for the Town shall file a copy of the Decision and Order with the Tribunal in advance.

11Finally, the parties agreed that a revised PO setting out an updated schedule of deadlines would be necessary. To that end, counsel for the Appellant undertook to revise, circulate and submit to the Tribunal a revised PO updating timelines in accordance with the hearing date chosen.

12Should the Court’s Decision and Order be released in a timely manner causing no further delay and should the content of that Order place no limitations upon the Town, it is anticipated that no further pre-hearing events will be necessary and the PO (once approved and issued by the Tribunal) will remain in place to govern the proceeding.

13A five (5)-day hearing will tentatively commence at 10 a.m. on Monday, October 3, 2022. Parties 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/519389173

Access Code: 519-389-173

14Parties 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.

15Persons 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) 497-9373 or (Toll Free): 1-888-299-1889. The access code is 519-389-173.

16Individuals 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.

OTHER MATTERS

17Recognizing that, at this time, circumstances preclude the Parties from engaging in any sort of dispute resolution and further recognizing that there may have been a fair bit of animosity between the Parties to this point, the Tribunal nevertheless reminded of the availability of Tribunal-assisted mediation, which the Parties may wish to consider at a later date.

18The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.

ORDER

19The Tribunal orders a 5-day hearing will tentatively commence on Monday, October 3, 2022 at 10 a.m., subject to a request for adjournment recognizing that, should the need for an adjournment arise out of the Decision and Order of the Court in relation to the MCIA application, Rule 17 of the Tribunal’s Rules of and Procedure will not apply.

20The Tribunal directs the Parties to file a Draft Procedural Order by March 25, 2022.

21There will be no further notice and this Panel is not seized.

“S. Braun”

S. BRAUN

MEMBER

“S. Mann”

S. MANN

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.

Footnotes

1. 1R.S.O. 1990, c. P.13, as amended.
2. 2R.S.O. 1990, c. M.50, as amended.