Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 05, 2022

CASE NO(S).: OLT-21-001639 (Formerly PL190638)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Optilinx Systems Inc.

Subject: Request to amend the Official Plan - Failure of Durham Region to adopt the requested amendment

Existing Designation: Major Open Space Areas

Proposed Designated: Major Open Space Areas

Purpose: To recognize and permit the expansion of a contractor's yard and office uses

Property Address/Description: 4560 (4500) Thickson Road North

Municipality: Town of Whitby

Approval Authority File No.: OPA 2016-003

OLT Case No.: OLT-21-001639

Legacy Case No.: PL190638

OLT Lead Case No.: OLT-21-001639

Legacy Lead Case No.: PL190638

OLT Case Name: Optilinx Systems Inc. v. Durham (Region)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Optilinx Systems Inc.

Subject: Request to amend the Official Plan - Refusal of request by the Town of Whitby

Existing Designation: Major Open Space 2, Environmental Protection Conservation Lands, Major Open Space 3 and Hazard Land

Proposed Designated: Major Open Space 3 and Hazard Land

Purpose: To permit a contractor’s yard with outdoor storage and associated office and maintenance buildings

Property Address/Description: 4560 (4500) Thickson Road North

Municipality: Town of Whitby

Approval Authority File No.: OPA-2016-W/04

OLT Case No.: OLT-21-001640

Legacy Case No.: PL200035

OLT Lead Case No.: OLT-21-001639

Legacy Lead Case No.: PL190638

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Optilinx Systems Inc.

Subject: Application amend Zoning By-law No. 1784 - Refusal of Application by the Town of Whitby

Existing Zoning: Agriculture (A)

Proposed Zoning: Restricted Industrial (M1) and Greenbelt (G) and Residential (R2A)

Purpose: To permit a contractor’s yard with outdoor storage and associated office and maintenance buildings

Property Address/Description: 4560 Thickson Road North

Municipality: Town of Whitby

Municipality File No.: Z-19-16

OLT Case No.: OLT-21-001641

Legacy Case No.: PL200036

OLT Lead Case No.: OLT-21-001639

Legacy Lead Case No.: PL190638

Heard: April 4, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Optilinx Systems Inc. (“Applicant/Appellant”)	J. Ewart
Regional Municipality of Durham (“Region”)	K. Ryan R. Woon
Town of Whitby (“Town”)	A. Biggart

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON APRIL 4, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant/Appellant had sought a Regional Official Plan Amendment (“ROPA”) from the Regional Municipality of Durham (“Region’), a Town Official Plan Amendment (“OPA”) from the Town of Whitby (“Town”) and a Zoning By-law Amendment (“ZBA”) with regard to the property known municipally as 4560 Thickson Road North (“Subject Lands”) seeking to permit the existing contractor’s yard with outdoor storage and associated office and maintenance buildings as well as to recognize the existing single detached dwelling.

2The Applicant appealed the Town’s refusal of the OPA and ZBA applications and the Region’s failure to deal with the ROPA application within the statutory time frame.

3This matter has been scheduled by the Tribunal for a seven-day hearing commencing on April 4, 2022 which is governed by a Procedural Order.

4The Applicant filed a motion dated March 18, 2022 to adjourn the hearing, supported by an Affidavit of Janice Haig sworn on March 18, 2022 which motion was opposed by the Town and the Region. The Town and Region filed Cross Motions to dismiss the appeals without a hearing. All these motions were heard and the Tribunal decided against an adjournment while allowing the dismissal without a hearing.

Motion to Adjourn

5The sole ground for the adjournment is said to be the inability to secure the services of a land use planner to attend at the hearing of the Applicant’s appeals.

6That sole ground was through an explanation that since the Procedural Order of November 25, 2021, retained planners were not able to fulfill their obligations to the Applicant.

7Against this, the Tribunal was made aware by opposing affidavit evidence that the appeals were brought since 2019. The party prosecuting an appeal should have prepared its case right from the start. However, in this case, affidavit evidence from the Town and the Region, in response to the application to adjourn, were not replied to by the Applicant. The Applicant is not self-represented and has the able representation of counsel.

8Opposing counsel submitted that, the Applicant had often, on the eve of deadlines, requested extensions, for example, with regard to the experts meeting required by the Procedural Order. Further, on the extended meeting date, the Applicant’s expert witnesses declined to attend, and instead suggested witness statements would be exchanged at the stated deadlines. However, when the statements exchange deadline approached, extensions were again sought and granted. The Applicant eventually stated that the retained planners were, due to their personal reasons or scheduling conflict, unable to act for the Applicant. Finally, when it was obvious that the Applicant could not obtain consent to postpone witness statements exchange, the Applicant filed the said motion to adjourn the hearing.

9It is significant that in the period since November 25, 2021, the Applicant has been cooperative only in filing the witness list. Subsequent procedural deadlines, e.g. expert witness meeting, witness statements exchange, agreed statement of facts, etc. were disregarded. The excuse being, the retained planners have declined to act and according to the Applicant, its efforts in getting a planner on board since February 2, 2022 were unsuccessful. Thus, the Applicant filed the motion to adjourn on March 18, 2022.

10The Town and Region have vigorously objected to the adjournment, citing amongst other reasons prejudice. For the Town, its planner is on hand for this scheduled hearing and the dates are peremptory. No change to the Procedural Order has been ordered or granted, and the Town has mobilized resources and is ready and willing to present its case. Likewise, the Region is ready and able to present as its planner is on hand to do so. Further, the Region states that any delay is highly prejudicial to the Region where the illicit contractor yard operation has caused destruction to the natural heritage features and wetlands. The Applicant had pleaded guilty to nine charges laid by the Town and the Conservation Authority and delay would delay the sentencing.

11The Town, through unrebutted affidavit evidence, showed that the Applicant had been engaged in similar behaviour of postponing with the intent to delay. These patterns of behaviour related to the Applicant’s applications to the Town where the Applicant requested extensions to file further documents which eventually were never filed. After the Applicant requested a fourth extension of one year to file documents, the Town finally put a stop to that by refusing the Applicant’s applications on November 25, 2019.

12The Tribunal, at the hearing of this Motion, was struck with a similar tactic, that the Applicant tried to use. Counsel for the Applicant informed the Tribunal that on Friday, April 1, 2022, (this hearing was on Monday, April 4, 2022), the Applicant managed to retain a Ms. Humphries, a Planner, and this was disclosed to the Town and Region.

13However, when the Tribunal queried counsel for the Town and Region, counsel explained that the so-called retainer was disclosed to them under cover of a “without prejudice” letter, the contents of which they were not at liberty to disclose. Also, it was unclear as to the nature and breadth of Ms. Humphries’ retainer.

14For the Tribunal, the Applicant’s professed inability for several months after the Procedural Order to retain a planner, and then miraculously announcing a retainer, under a without prejudice letter, amounted to an attempt to, yet again, adjourn at the “eve” of a deadline. In any event, the Tribunal will attach little weight to this sudden disclosure of retainer, as it is “without prejudice” and there is no indication as to the scope of Ms. Humphries’s retainer. Ms. Humphries was not in attendance either.

15After carefully considering the submissions of the parties, the Tribunal dismissed the Applicant’s Motion to Adjourn. The Tribunal finds that the Applicant must be ready on the hearing date to proceed with its appeals, as the appeals were filed on December 9, 2019. An Applicant that takes up an appeal cannot be heard to say that it is without a planner. The Applicant must ensure that, when its appeals come on for hearing, it must be ready to present the planning evidence in support of its case. The onus is on the Applicant to do so.

16Under Rule 17.1 of the Ontario Land Tribunal Rules of Practice and Procedure, hearing events will take place on the date set unless the Tribunal agrees to an adjournment. Pursuant to Rule 17.4, the Tribunal will grant last minute adjournments only for unavoidable emergencies, such as illnesses so close to the hearing date. There is no such emergency, in this instant case, where the reason advanced is that no planner could be retained. Paradoxically, that reason, was briefly exposed, as inaccurate, as the Applicant allegedly was able to retain a planner. The Tribunal is persuaded that, the adjournment motion is more, a tactic to avoid the hearing, rather than a genuine emergency necessitating the relief.

17The Tribunal found that there was no emergency or exceptional circumstance in this case.

18This Motion was presented at the eleventh hour and the Town and Region would suffer prejudice if the Motion to Adjourn was granted. The hearing dates were fixed by the Procedural Order and parties must be ready to proceed as ordered. The Town and Region are in attendance with their expert witnesses and are ready for the hearing. The Applicant must similarly be ready.

19The motion to adjourn was thus denied.

Cross Motions to Dismiss

20The Town’s Response and Cross Motion dated March 25, 2022 was supported by the Affidavit of Edward Belsey sworn on March 25, 2022.

21The relief sought was an Order of the Tribunal dismissing the Appellant’s appeals of the Town Council's decision to refuse the Appellant’s Applications for an Official Plan Amendment and Zoning By-law Amendment without a hearing, pursuant to subsections 17(45) and 34(25) of the Planning Act, for delay and/or abuse of process.

22In the alternative, an Order of the Tribunal refusing the Appellant’s Motion for an adjournment of the hearing and that the matter proceed directly to a hearing on April 4, 2022.

23The Region’s Response and Cross Motion dated March 25, 2022 was supported by the Affidavit of Ashley Yearwood sworn on March 25, 2022.

24The Region is requesting an Order refusing the Appellant’s request for adjournment of the hearing and that the hearing proceed in accordance with the Procedural Order mutatis mutandis.

25Alternatively, the Region seeks an Order of the Tribunal dismissing the Appellant’s appeal of the Region’s non-decision to adopt OPA 2016-003 without a hearing, which is scheduled to commence on April 4, 2022.

26The Appellant did not file any affidavit to reply to the Cross Motions or indicate any opposition to the dismissal or present any planning evidence to substantiate by way of affidavit evidence or otherwise.

Tribunal’s Authority to Dismiss

27Sections 17(45) and 34(25) of the Planning Act permit the Tribunal, on its own initiative or by a motion of any party, to dismiss all or part of an appeal without a hearing if the Tribunal is of the opinion that the appeal does not disclose any apparent land use planning ground, or is made only for the purpose of delay, or that it is frivolous or vexatious.

28Pursuant to section 17(45), the Tribunal may, on its own initiative or on the motion of any party dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal 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 plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal;

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.

29Section 34(25) 1 ii – iv are worded in exactly the same terms, save for (i) “the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal”.

No Apparent Land Use Reason

30In Toronto (City) v. East Beach Community Association [1996] CarswellOnt 5740, [1996] O.M.B.D. No. 1890, 42 O.M.B.R. 505, the Ontario Municipal Board (“OMB”) stated that it is not good enough for an Appellant to simply raise apprehensions in an appeal. The Tribunal is entitled to go behind the stated reasons for the Appeal to see whether they constitute genuine, legitimate and authentic planning reasons and the Appellant must present serious planning issues and evidence to substantiate the issues in the face of a Motion to Dismiss.

31The Appellant did not present any serious planning issue or evidence to substantiate a planning issue in the face of these cross motions.

32The letter of appeal listed eight grounds couched in planning language but it is simply not good enough for the Appellant to raise general bare statements in an appeal. There is no specificity of grounds, and no evidence of substance to support the grounds.

33At a minimum, the Appellant needs to place before the Tribunal some planning evidence that the Contractor yard operations at the subject lands would amount to good planning in the face of contrary planning evidence presented by affiants in the cross motions. Not an iota of such evidence was forthcoming from the Appellant. It is apposite to note that the Appellant came wholly unprepared, purposely or not, to a scheduled appeal hearing without any apparent planning evidence. In the event of an appeal hearing, the Appellant has no reasonable prospect of success. Going to a full hearing will be a waste of the Town’s and the Region’s resources, as well as the Tribunal’s.

Bad Faith, Delay

34The Appellant’s appeals were filed in December 2019, meaning the appeals were more than two years ago.

35The Town submits that the Appellant has continuously taken steps to delay the hearing of the Appeals in order to continue to operate a prohibited use on the subject lands.

36The Appellant operates a contractor's yard on a portion of the subject lands that is designated as Environmental Protection/Conservation Lands (“EP/CL”), contrary to the Town's Official Plan, the Town's Zoning By-law and the Region's Official Plan.

37The Town’s legal services and Central Lake Ontario Conservation Authority ("CLOCA") laid charges against the Appellant in relation to its illegal use and, in part, interference with wetlands. On October 8, 2019, the Appellant pleaded guilty to those charges and a sentencing hearing has been adjourned sine die pending the outcome of this matter. The illegal use continues to operate to-date.

Delay of Council’s Decision

38The Town stated this course of conduct to delay proceedings has been ongoing since the Appellant submitted its applications for amendments to the Town Official Plan and Zoning By-law (the "Applications"), to permit the illegal use on the subject lands.

39On four (4) separate occasions, the Appellant requested adjournments of Council's meeting to make a decision of the Applications, on the basis of wishing to submit further supporting documentation.

40No further supporting documentation was ever submitted and Council ultimately denied the fourth adjournment request and refused the Applications.

Delay of OLT Proceedings

41The Appeals were submitted in December 2019. The Tribunal issued a Procedural Order on November 25, 2021, scheduling a seven (7)-day hearing starting April 4, 2022. Submission deadlines of materials in advance of the hearing were contained in Attachment 1 thereto. The Procedural Order governs the proceedings.

42Attachment 1 required the parties' experts to meet on or before January 10, 2022 and submit an Agreed Statement of Facts by January 26, 2022. The Appellant failed to abide by both of these deadlines. It requested an adjournment of the experts meeting scheduled and then failed to attend the adjourned meeting on January 21, 2022. Appellant’s own experts failed to participate in the experts meeting for the hearing of its own Appeals. This delayed the process for the parties and demonstrated a lack of seriousness in pursuing its Appeals.

43Attachment 1 required that Witness Statements were to be submitted to the Tribunal by Friday, February 4, 2022. On February 1, 2022, the Town wrote to the parties requesting their consent to exchange witness statements to the following Monday, February 7, 2022. In response to such request, Appellant’s counsel advised the parties that its planning expert, Mr. Tighe, was no longer retained and requested an extension to exchange Witness Statements to provide time to secure a new planning witness.

44The parties agreed to an extension to February 18, 2022. Appellant’s counsel wrote to the Tribunal, on the consent of the parties, requesting such extension.

45On February 17, 2022, the day prior to the new exchange date for Witness Statements, Appellant’s counsel wrote to the parties requesting a further extension to exchange Witness Statements to February 28, 2022, stating that the Appellant was unable to secure a new planning witness. The Town advised the Appellant that it would agree to an additional week, to February 25, 2022, but clarified that such agreement did not waive the Town's right to bring a dismissal motion against the Appellant should it fail to submit a Witness Statement on or before that date.

46On February 24, 2022, the day before the new exchange date, counsel for the Town asked Appellant’s counsel whether his client was prepared to submit its Witness Statements on February 25, 2022. Counsel did not respond.

47Counsel for the Town then followed up with Appellant’s counsel on the morning of February 25, 2022. In response, Appellant’s counsel delivered an email to all counsels after 4 p.m. on February 25, 2022, stating that he would inform the parties by end of day, or latest by February 28, 2022, whether the Appellant intended to submit Witness Statements.

48On February 28, 2022, the Appellant failed to submit any witness statements.

49On March 2, 2022, the Appellant listed the subject lands for sale for almost $5 Million dollars.

50On March 4, 2022, Appellant counsel wrote to the Tribunal, requesting an adjournment of the hearing. This was the first time that the Town was made aware of the adjournment request. Subsequently, the Appellant filed a Motion to adjourn dated March 18, 2022.

51The Town submits that the request for an adjournment this late in the proceeding is yet another attempt to delay the hearing of the Appeals and the process, generally. The Town submits that such delay has been prejudicial to the Town in having to continuously use its resources and incur expenses in responding to the Appeals. Further, the Town continues to be prejudiced by having the sentencing hearing of the prosecution matter delayed. It is in the Town and public interest to resolve this matter by having the Appeals dismissed or, in the alternative, a hearing of the Appeals forthwith.

52The Town submits that the Appellant has failed to advance its Appeals and has commenced the Appeals, and Applications for that matter, for the sole purpose of causing delay in order to allow its current use of the subject lands to continue to operate and should therefore be dismissed in their entirety.

53The Ontario Municipal Board (OMB) has previously noted that frivolous is characterized as a lack of seriousness, and vexatious as an action instituted without sufficient grounds for the purpose of causing trouble or annoyance. (Midland (Town) Zoning By-law 94-50, Re, 1995 CarswellOnt 5227). The OMB has found that in appeals which are frivolous and/or vexatious, the defendant is acting upon duplicitous motives. (Gaudaur -v- Etobicoke (City) 1998 CarswellOnt 5650).

54The Town submits that the Appellant commenced the Appeals for the sole purpose of causing delay in order to permit the continued illegal use to operate, which the Appellant pleaded guilty to in October of 2019. The continued illegal use is a clear duplicitous motive.

55In addition, the fact that the Appellant has listed the subject lands for sale, two days prior to its request for an adjournment of the hearing of the Appeals, is also indicative of a lack of seriousness in pursuing its Appeals.

56It is clear on its face that this pattern of continuously requesting extensions of time to provide information or materials, for reasons of personal matters, illness and/or to prepare necessary materials, immediately before the due dates, serves no purpose other than to delay proceedings which amounts to an abuse of the Tribunal's process.

57The Region submits and generally adopts the Town’s submissions adding:

1. The Appellant’s proposed Regional OPA application is deficient and does not address the comments received by the commenting agencies. In particular, Ministry of Natural Resources and Forestry (“MNRF”) and CLOCA have identified that there has been the unauthorized destruction of key natural heritage features at the subject site, including wetlands and forested cover. CLOCA has identified that the Appellant’s environmental impact statement do not recognize or appropriately mitigate the further proposed impacts to the natural heritage features at the subject site. Neither the Appellant nor its ecological consultant has yet to provide a satisfactory update to the environmental impact statement for CLOCA’s review.

2. By failing to address the existing and proposed impacts to the natural heritage features at the subject site, the Appellant’s Application is not consistent or in conformity with the Planning Act, provincial plans and policies and the Regional Official Plan. The Appellant has not provided justification and has failed to demonstrate that it will be able to provide land use planning grounds supported by evidence upon which the Tribunal could approve the Appellant’s proposed Regional OPA application based on the evident non-compliance with applicable legislation and policies.

Delay

58The Tribunal was struck with the similar tactic to delay the hearing when the Appellant informed the Tribunal of the purported retainer of Ms. Humphries under cover of a without prejudice letter.

59In deciding whether there is genuine or legitimate planning grounds raised in the instant appeals, the Tribunal will consider the Appellant’s actions and whether the appeal is advanced for legitimate reasons.

60The Appellant is illegally operating a contractor’s yard on the subject lands for which it has applied for an OPA and ZBA from the Town and an OPA from the Region. The Appellant’s operations affected natural heritage features and damaged wetlands. It was charged and pleaded guilty in October 2019. The OPA and ZBA were refused by the Town in November 2019. The Appellant appealed these rejections in December 2019.

61As the matter is pending at this Tribunal, sentencing could not be carried out for the guilty pleas. After filing appeals, the Appellant neglected or refused to comply with the Tribunal’s Procedural Order to get ready for the hearing. It refused to meet ordered deadlines. The Appellant then claimed inability to retain a land use planner. It tried to delay the process and applied to adjourn the hearing. The Appellant did not bother to reply to the dismissal Cross Motions. The Appellant then came to the hearing with a last ditch effort to adjourn with a purported last minute “without prejudice” land use planner retainer.

62The Tribunal notes that the Appellant is carrying on an illegal use on the subject lands. This fits with its interests to delay as long as possible, not knowing whether the outcome of the Tribunal hearing, will be favourable or not.

63An adjournment of the hearing will permit postponement of sentencing further down the road.

64The Tribunal cannot ignore the fact that the Appellant has put the subject lands up for sale at close to $5 million dollars, two days before requesting for an adjournment from the Tribunal.

65The Tribunal is convinced by the course of events and the conduct of the Appellant, (taken together), show that the appeals are not filed with a genuine or legitimate purpose.

66At the very least, the appeals are filed with the intention to delay the eventual consequences that will befall the Appellant. There are three apparent collateral purposes that the appeals are possibly filed to achieve: 1. To continue the illegal use on the subject lands for as long as possible. 2. To avoid being sentenced for the guilty pleas and 3. To obtain an advantage and time to dispose of the subject lands.

67The Tribunal finds that by reason of the collateral purposes and the use of delaying tactics, there is bad faith exhibited by the Appellant in delaying the appeals. Further, there is no genuine or authentic planning grounds for the appeals.

68The Tribunal finds that there is no authentic issue worthy of adjudication at a hearing. The notice of appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal.

ORDERS

69The Tribunal Orders that:

1. The Appellant’s Optilinx Systems Inc’s. Notice of Motion to Adjourn the hearing is denied.

2. The Town of Whitby’s Cross Motion to Dismiss the Appeals without a hearing is allowed.

3. The Regional Municipality of Durham’s Cross Motion to Dismiss the Appeals without a hearing is allowed.

4. The Appeals are hereby dismissed.

“T.F. NG”

T.F. NG

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.