Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 04, 2022
CASE NO(S).: OLT-21-001499
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act1, R.S.O. 1990, c. P. 13, as amended
Applicant: Darryl Kerswell
Appellant: Justin Rolle
Subject: By-law No. 2021-069
Municipality: Municipality of Clarington
OLT Lead Case No.: OLT-21-001499
OLT Case No.: OLT-21-001499
OLT Case Name: Rolle v. Clarington (Municipality)
Heard: March 9, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Justin Rolle
Ravio Uukkivi and Monica Poremba
Municipality of Clarington
Robert Maciver
Darryl Kerswell
Marty Gobin
DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Darryl Kerswell ("Applicant") owns and resides at 4504 Highway 2, Newtonville ("subject property"). He applied to the Municipality of Clarington ("Municipality") for a Zoning By-law Amendment ("ZBA") to rezone the subject property to permit commercial uses. On September 20, 2021, the Municipality approved the ZBA and that decision was appealed by Justin Rolle ("Appellant"), pursuant to s. 34(19) of the Planning Act1 ("Act").
2Prior to May 31, 2021, the Applicant operated a convenience store as a commercial tenant of 4502 Highway 2. As part of his convenience store business, the Applicant operated a Canada Post outlet and sold alcohol pursuant to an authorization under the Liquor Control Board of Ontario ("LCBO") Convenience Outlet program.
34502 Highway 2 was purchased by Artgrow Corporation, the directors of which are the Appellant and his spouse. At some point following the purchase of that property, the Applicant's commercial tenancy was terminated. As the Applicant wished to continue operating his business, he decided to do so at the subject property (which is located next door) and to that end he applied for a ZBA, which was approved by the Municipality.
4The ZBA rezoned the subject property from Residential Hamlet (RH) to Holding – Hamlet Commercial Exception ((H) C3-10) to facilitate a commercial establishment with a maximum floor area of 60 square metres within an addition to the existing single detached dwelling on the property. The C3-10 Zone reduces the front yard setback from 3 metres ("m") to 1.4 m, reduces the front yard setback for accessibility ramp from 0.6 m to 0 m, reduces the interior side yard setback from 3 m to 2.9 m, reduces the drive aisle from 4.5 m to 2.9 m and removes the requirement for a loading space.
5This was to be the first Case Management Conference ("CMC") in relation to the appeal. Prior to the CMC, the Applicant filed a motion returnable at the CMC requesting the Tribunal dismiss the appeal without a hearing. Given the potential for a number of procedural matters normally addressed in the context of a CMC to be rendered moot as a result of the disposition on the Applicant's Motion, the Parties agreed the Tribunal should defer such matters pending its disposition and, if necessary, direct a Telephone Conference Call ("TCC") be scheduled at a later date to address same.
6Accordingly, the Tribunal convened the CMC for the limited purpose of confirming that proper notice of the hearing event had been given and to identify Parties and Participants. The Affidavit of Service confirming proper Notice was marked as Exhibit 1. In response to that Notice, the Tribunal received no written requests for Party/Participant status and no individuals appeared at the hearing event requesting status. As such, the Tribunal advised that, should a hearing on the merits be scheduled, it would proceed with the involvement of Appellant, the Municipality and the Applicant only.
7The Tribunal then proceeded to hear the Applicant's Motion. At the outset, counsel for the Municipality advised that although he intended to remain in attendance for the purpose of observing the proceedings the Municipality would be taking no position on the relief sought.
MOTION TO DISMISS BY APPLICANT
8The Applicant seeks an Order of the Tribunal dismissing the appeal without a hearing, pursuant to s. 34(25) of the Act.
Dismissal without hearing
(25) Despite the Statutory Powers Procedure Act and subsection (24), 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:
- 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 Tribunal could allow all or part of the appeal,
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.
The Applicant need only establish one of the aforementioned grounds in order to succeed on the Motion.
9The following materials were before the Tribunal for consideration:
a. Appeal letter;
b. Applicant's Notice of Motion;
c. Affidavit of Darryl Kerswell, dated February 15, 2022;
d. Affidavit of Olga Yakolevna Leyenson, dated February 15, 2022
e. Applicant's Factum and Book of Authorities
f. Appellant's Response to Motion
g. Affidavit of Eldon Theodore, BES, MUDS, MCIP, RPP; and
h. Appellant's Book of Authorities.
10When deciding whether an appeal should be dismissed without a hearing, the Tribunal's accepted starting point is the decision in Toronto (City) v. East Beach Community Assn, 1996 CarswellOnt 5740, [1996] O.M.B.D. 1890, 42 O.M.B.R. 5095 ("East Beach"), which set out the following factors to be considered:
a. the authenticity of the reasons stated;
b. whether there are issues that would affect a decision in a hearing; and
c. whether the issues are worthy of the adjudicative process.
The Board in East Beach noted that, to determine if there has been disclosure of planning grounds that warrant a hearing, it is acceptable to look beyond the written appeal letter, but also warned against taking away rights of appeal "whimsically, readily and without serious consideration of the circumstances of each case".
11It should be noted that while East Beach addressed the first of the four grounds enumerated in 34(25), in this instance, the Applicant not only asserts the Appeal should be dismissed for failure to disclose land use planning grounds but also, because it has not been made in good faith or is frivolous or vexatious and that it was made only for the purpose of delay.
12The Applicant submitted, with reference to both East Beach and A&P Properties Ltd. v. Haldimand (County), 2006 CarswellOnt 961, that the question is not merely whether there is a triable issue raised, but whether the appeal holds the promise for contrary sustainable evidence to be called and, in cases where commercial competitors allege land use planning concerns, the Board must be satisfied that such issues have substance. It was further submitted that, through a motion to dismiss, the Tribunal is given the power to ensure the steps open to participants in the planning process are employed for legitimate purposes. The Tribunal was also referred to the case of LaSalle (Town) Re, 2009 CarswellOnt 4952, wherein the Board dismissed portions of an appeal relating to market impact issues noting, inter alia, in general, the Board does not interfere in the marketplace and the Board should not be used as a means to prevent competition.
13In the Applicant's view, the purpose of the present Appeal is not to raise legitimate planning issues for the Tribunal's consideration but rather, to misuse the Appeal process in an effort to preserve/protect the Appellant's own economic interests by preventing market competition between the Parties and, on that basis, the Tribunal was urged to dismiss the Appeal without a hearing.
14In support of the foregoing, the Applicant referenced a number of emails between the Appellant/his agents and the LCBO, inquiring into the process to take over the Applicant's LCBO authorization to sell alcohol. In addition, the Applicant referenced portions of the submissions made on behalf of the Appellant to the Municipality, which include the following statements:
Having two convenience stores located side by side in a small community like Newtonville makes no practical sense and even less planning sense…If there are two convenience stores side by side, it is likely that both operating will further reduce the viability of the convenience stores in Newtonville. By allowing the Applicant's property to be re-zoned, there is a strong possibility that both stores could fail economically. Allowing a second convenience store to be located in Newtonville makes no economic sense.
Finally, the Applicant referenced a number of documents including Facebook pages/profiles which, in his view, demonstrates bad faith by the Appellant, who "orchestrated objections from members of the public who submitted templated letters traced back to one of the directors [of Artgrow Corporation], containing concerns that were not legitimately those of the submitters and which came from people who have no connection to the Municipality of Clarington, in at least one case involving someone from as far as New York City".
15It is the Appellant's position that he has raised legitimate land use planning grounds that fall squarely within the jurisdiction of the Tribunal warranting a full hearing. With reference to Jay-M Holdings Ltd. v. Durham (Regional Municipality), 1999 CarswellOnt 5339 the Appellant submitted that dismissal without a hearing is an extraordinary remedy which is not warranted in this instance.
16It was further submitted that the arguments advanced by the Applicant in the context of this Motion are flawed, in that they presuppose legitimate land use planning grounds and evidence cannot be advanced in support of the Appeal merely because the Parties may be commercial competitors. The Tribunal was urged not to "read in" market case motivations simply because this was one of the many issues raised in opposition to the ZBA before the Municipal Council. The Appellant noted there is no intention of raising market competition issues in the event a hearing is permitted to proceed and that all of the land use planning concerns raised in the context of this Appeal were also raised during the public submissions process.
17With respect to the decision in LaSalle, the Appellant pointed out that only the market-based issues were dismissed, while the balance of the planning issues raised were permitted to proceed to a hearing on the merits. In the Appellant's view, the LaSalle decision stands for the proposition that planning issues will be permitted to proceed to a hearing even if the parties are competitors and regardless of their motivations.
18Finally, the Appellant submitted there is no merit to the proposition that motivations can be imported into the grounds of appeal for the purposes of attack as, were this to be the case, every party would attack issues at a hearing on this basis which "would turn the Tribunal's hearings into an unmanageable evidentiary contest on things that have nothing to do with planning".
Are there land use planning grounds worthy of the adjudicative process?
19With respect to the question of whether land use planning grounds worthy of the adjudicative process have been raised, the Appellant referenced a detailed letter submitted with the Notice of Appeal, which asserts the ZBA introduces irreconcilable planning conflicts including, but not limited to: parking, loading, traffic and economic development conflicts which do not have regard for matters of Provincial interest and which are inconsistent/not in conformity with specific policies in the both Provincial Policy Statement ("PPS") and the Municipality of Clarington Official Plan ("MOP"). The letter goes on to note "appropriate assessment to determine compatibility, being the appropriateness of the site to safely and effectively incorporate the proposed use has not occurred or has been deferred through a holding provision, indicating this qualifier for land use change remains outstanding. There is no justification for the introduction of a new commercial use on this property in this area".
20In support of the foregoing, the Appellant offered expert opinion evidence through the Affidavit of Eldon Theodore, a Land Use Planner previously qualified by this Tribunal and/or its predecessors to provide opinion evidence in land use planning and urban design. In his Affidavit, Mr. Theodore opines there are sufficient grounds for an Appeal, noting the ZBA introduces conflicts which cannot be resolved, including:
a. Potential conflicts as it relates to parking, loading and the functional operation of the property;
b. Unacceptable adverse impacts to abutting properties as a result the potential conflicts identified in (a), resulting in an incompatible development;
c. The lack of sufficient information submitted in support of the application to demonstrate appropriateness of the amendment in order for Municipal staff and Council to make a decision on the matter;
d. The resulting planning instrument for the Zoning By-law Amendment not being sufficiently crafted to limit the scope and scale of future development on this site as suggested in the Staff Report, leading to the potential for impact post-approval.
He goes on to note the compatibility concerns raised are focused on the Applicant's attempt to use a site which is too small for the various uses identified (convenience store, Canada Post outlet and LCBO facility). Mr. Theodore's opinion is that the site "is too small by a large margin for these uses".
21In light of all the foregoing, Mr. Theodore's overall opinion is that the application is not in the public interest; does not represent good planning; does not have appropriate regard for matters of Provincial interest; is inconsistent with the PPS, does not conform to the Growth Plan for the Greater Golden Horseshoe ("GP"); and does not conform to a number of specific policies in both the Durham Region Official Plan ("ROP") and the MOP.
22The Applicant did not offer any expert land use planning evidence to contradict the opinion provided by Mr. Theodore, nor did he challenge in a cogent manner the Appellant's position that the land use planning issues raised in the Appeal and the elaboration on same in Mr. Theodore's Affidavit represent authentic planning issues worthy of the adjudicative process. The Applicant's challenge to the evidence relied upon by the Appellant focused upon the following:
a) that Mr. Theodore's Affidavit did not "pick apart" or otherwise contradict the staff report which recommended approval of the ZBA; and
b) Mr. Theodore's opinion rests in large part, if not solely, on a recommendation for further study in terms of transportation impact.
23Mr. Theodore did, in fact, opine that careful study of traffic and parking issues is required, noting it is highly unusual that such studies were not required by the Municipality under the circumstances. He further indicates the Appellant retained a transportation engineering expert to prepare a full analysis in this regard and to testify at a hearing on the merits. Notwithstanding the foregoing, the Tribunal was not persuaded that Mr. Theodore's opinion rests solely on the need for further study in relation to the issues raised. As previously mentioned, Mr. Theodore expressed concerns with respect to land use compatibility conflicts directly linked to the size of the subject property which, in his view, is too small to accommodate the intended use thereof. He opines there is no reasonable way the site as planned can be used for the convenience store without spilling over into the public right of way and interfering with access to the adjoining commercial use. Moreover, at paragraph 53 of his Affidavit, he clearly states:
Leaving aside the absence of a Traffic Impact Study carried out by a qualified traffic engineer that addresses these issues from an engineering perspective, it is my professional planning opinion that the use of the site in this manner creates too many conflicts that should not be permitted from a land use planning and urban design perspective.
24With respect to the argument that the Theodore Affidavit neglects to "pick apart" the staff report, the Tribunal is of the view that such detailed evidence is more appropriately advanced in the context of a hearing on the merits. On a motion to dismiss, the Appellant need not convince the Tribunal that its appeal will succeed at a hearing but rather, the onus is on the Applicant to convince the Tribunal that there are no legitimate land use planning issues raised which are worthy of adjudication. In fact, in East Beach, the Board specifically states an Appellant is not required to draft an appeal with "punctilious care and arm itself with ironclad reason for fear of being struck down".
25Based on the issues raised in the Notice of Appeal and the uncontradicted land use planning opinion evidence of Mr. Theodore, the Tribunal is satisfied that the Appellant has raised legitimate land use planning grounds worthy of the adjudicative process. The Tribunal further finds, based on information in the Theodore Affidavit with respect to the Appellant's retention of experts to produce studies and to testify at a hearing on the merits, that he has demonstrated an intention to call a full and contrary case in relation to those land use planning issues raised.
Bad faith; frivolous; vexatious, only for the purposes of delay?
26The Tribunal finds it most efficient to address the balance of the grounds for the Motion together. Ultimately, the Applicant's argument is that the Appeal has been filed for the purpose of preventing competition against the Appellant and is therefore brought in bad faith, is frivolous or vexatious and/or designed to delay or otherwise prevent the Applicant from opening a business that will compete against the Appellant's economic interests.
27The cases offered in support of the Applicant's position suggest that, in circumstances where competing commercial interests are involved, the Tribunal must proceed with caution when determining whether issues raised should be the subject of a hearing on the merits. It was argued even if the Tribunal were to accept that valid land use planning issues exist, a higher level of scrutiny is warranted when an appeal is brought by a commercial competitor, entitling the Tribunal to examine the motivations of the Appellant. The Tribunal was referred to the case of Parry Sound Mall Inc. v. Ontario (Municipal Affairs), 2018 CanLII 37773 (ON LPAT), wherein the Tribunal dismissed the appeal without a hearing, having found all the issues raised were market-related; the purity of the Mall's motives were open to question; and the Mall failed to provide supporting evidence to demonstrate issues raised were worthy of the adjudicative process.
28The Applicant relied upon the documentary evidence in relation to the LCBO authorization, portions of the submissions made by the Appellant at Council which referenced market issues as well as portions of the appeal letter referencing economic development issues and what the Applicant characterized as templated objections from individuals with questionable connections to the area orchestrated by the Appellant and argued all of the foregoing was suggestive of improper motive and use of the Appeal process, warranting dismissal on the grounds of bad faith, frivolity, vexatiousness and/or delay.
29In contrast, a number of the cases in support of the Appellant's position suggest the Tribunal must proceed with caution when determining whether to dismiss an appeal without a hearing, as this is indeed an extraordinary remedy. The Appellant urged the Tribunal not to be swayed by what it characterized as "innuendo" and a history of animosity between the Parties, arguing that adversity and even the existence of the potential for economic competition should not bar the Appellant from having the Tribunal decide upon legitimate planning issues at a hearing.
30With respect to the assertion that the Appeal has been brought in bad faith, the Appellant urged the Tribunal to focus upon the uncontradicted evidence of Mr. Theodore, who specifically notes in his Affidavit that he arrived at his land use planning opinion on the Appeal independent of the apparent history of animosity and potential for market competition between the Parties, noting at paragraph 16:
While it is my experience that there are often issues unrelated to planning that get raised by lay witnesses before the Tribunal, they are not ones that affect my opinion with respect to the planning merits of this case. In particular, issues that I do not believe are planning matters include:
a. Previous commercial relationship between Mr. Rolle and Mr. Kerswell. I can confirm that this has no bearing on my opinion and I have not taken any information related to this into account in coming to my opinion.
b. Market Competition – while this issue was one of many issues raised at Council, it does not form the basis of my opinion and it does not impact the reasons why I believe that this zoning by-law amendment should not be approved…
31Given the Appellant's retention of land use planning and traffic engineering experts, the land use planning issues raised in the appeal letter, as well as the supportive and uncontradicted land use planning evidence provided by Mr. Theodore, it was argued the Appeal cannot not be considered as having been filed only for the purpose of delay. Neither can it be considered frivolous or vexatious, given the decision in Brampton Areas 52, 53 Landowners Group Inc. v. Brampton (City) 2019, CarswellOnt 13823, which notes "frivolous" has been defined to mean characterized by lack of seriousness and "vexatious" describes action instituted without grounds for the purpose of causing trouble or annoyance to another party. The Appellant maintained that the Appeal was brought to overturn an unprincipled decision of a municipality on an incomplete application that is representative of bad planning.
32The Tribunal carefully considered the totality of the materials and evidence before it and is guided by the authorities presented by the Parties, which suggest there is a somewhat delicate balancing exercise to be undertaken in cases where competing commercial interests are involved and the Tribunal is asked to employ the extraordinary remedy of dismissing an appeal without a hearing. The Tribunal is exceptionally mindful of the guidance of the Board in East Beach warning against taking away rights of appeal "whimsically, readily and without serious consideration of the circumstances of each case".
33While, at first blush, there appears to be an element of market competition at play in this case, the Tribunal considered the evidence proffered to support dismissal without a hearing to be circumstantial and insufficient to establish what, in the Tribunal's view, is a relatively high threshold to be met to support a finding that the Appeal should be dismissed on the grounds set out in s. 34(25) ii. or iii.
34As previously mentioned, based on the detail in the Notice of Appeal and the uncontradicted expert opinion evidence of Mr. Theodore, the Tribunal finds the Appellant has raised legitimate land use planning grounds and further finds he is not only capable of calling a contrary and sustainable case, but fully intends to do so. The Tribunal was not persuaded the Applicant established a convincing evidentiary foundation upon which to find the appeal was brought only for the purpose of delay or is in bad faith, frivolous or vexatious. Accordingly, the matter will be permitted to proceed to a hearing on the merits. Notwithstanding the foregoing, insofar as the issues raised include concerns "from an economic development perspective", the Tribunal is not persuaded this would fall on all fours with the issues recognized as being worthy of the adjudicative process. As such, the Tribunal directs that the Parties refrain from including on the Issues List any reference to considerations of market competition, economic viability/the possibility of economic failure or whether it makes good sense from a land use planning perspective or otherwise to permit two convenience stores to be located side by side.
OTHER MATTERS
35The Tribunal notes that the Appellant alleges the Motion brought by the Applicant was "tactical, brought with ulterior motivations and brought in bad faith" and, as such, requests the Applicant be ordered to pay the Appellant's costs of responding to the Motion on a substantial indemnity basis. While the Appellant is certainly entitled to submit a detailed written request for costs in accordance with Rule 23 of the Ontario Land Tribunal Rules of Practice and Procedure, it should be borne in mind that the decision to award costs is discretionary and the exercise of such discretion is rare, as there is a relatively high threshold to be met. In briefly reflecting upon the arguments and evidence presented by the Applicant, it is not readily apparent to the Tribunal that this threshold has been met. In fact, the Tribunal considers it understandable that the Applicant would pursue the relief requested and finds his motivation in so doing to be not completely without foundation based on some of the Appellant's behaviour, including but not limited to inquiring into the process of obtaining the Applicant's LCBO authorization to sell alcohol.
36In order to address the remaining matters of case management that were deferred pending the outcome of the Motion, the Tribunal will schedule a TCC. The parties are encouraged to file a draft Procedural Order and Issues List in advance of the TCC.
ORDER
37UPON APPEAL to this Tribunal by Justin Rolle of a decision of the Municipality of Clarington to enact By-law No. 2021-069;
38AND UPON MOTION to this Tribunal by Darryl Kerswell for an Order dismissing the appeal under subsection 34(25) of the Planning Act, and after the hearing of the motion,
39THE TRIBUNAL ORDERS:
a. The motion to dismiss the appeal without a hearing is denied;
b. The Tribunal will schedule a TCC for the purposes of addressing the outstanding procedural matters deferred at the CMC; and
c. There will be no further notice and this Member is not seized.
"S. Braun"
S. BRAUN
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
- R.S.O. 1990, c. P. 13, as amended.