Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 10, 2022
CASE NO(S).: OLT-21-001462
PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended
Appellant: George Novotny
Respondent: Quinte Conservation
Subject: Permit No. REG 0260-2021
Property Address: 76 Novotny Court
Municipality: Prince Edward County
OLT Case No.: OLT 21-001462
OLT Case Name: Novotny v. Quinte Conservation
Heard: April 19, 2022, by video hearing (“VH”)
APPEARANCES:
Parties
Representative
George Novotny (“Applicant”)
J. Bogaerts
Quinte Conservation Authority (“QCA”)
B. McNevin / S. Richardson
MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON APRIL 19, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Motion before the Tribunal was initiated by the Tribunal pursuant to Rule 10.11 of the Tribunal’s Rules of Practice and Procedure (“Rules”) to inquire into any matter or question of law with regard to the Tribunal’s jurisdiction.
BACKGROUND AND CONTEXT
2In August of 2021, the Tribunal received an appeal on behalf of the Applicant with regard to a right to a hearing under s. 28(12) of the Conservation Authorities Act (“CAA”).
3The Tribunal conducted an administrative screening of the appeal and on December 1, 2021, advised the Applicant that the appeal appeared to be outside the jurisdiction of the Tribunal. The Tribunal also advised of its intention to dismiss the appeal, but allowed the parties to make written submissions on the Tribunal’s jurisdiction, which both parties did.
4Having reviewed the written submissions, the Tribunal determined that there were still outstanding matters and directed this Motion. The exhibits to this Motion include the Applicant’s Motion Record, the QCA Response, and the Applicant’s Reply.
ONTARIO LAND TRIBUNAL
5The Tribunal is not a court.
6The Tribunal is rather a creature of statute. It was created by the Ontario Land Tribunal Act, 2021, and it only has the jurisdiction conferred upon it by statute.
STATUTORY REGIME
7There are a number of provisions of the CAA that are relevant to this matter and the Tribunal will set them out below.
Regulations by authority re area under its jurisdiction
28 (1) Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction,
(a) restricting and regulating the use of water in or from rivers, streams, inland lakes, ponds, wetlands and natural or artificially constructed depressions in rivers or streams;
(b) prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland;
(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development;…
Right to hearing
(12) Permission required under a regulation made under clause (1) (b) or (c) shall not be refused or granted subject to conditions unless the person requesting the permission has been given the opportunity to require a hearing before the authority or, if the authority so directs, before the authority’s executive committee.
Powers of authority
(13) After holding a hearing under subsection (12), the authority or executive committee, as the case may be, shall,
(a) refuse the permission; or
(b) grant the permission, with or without conditions.
Reasons for decision
(14) If the authority or its executive committee, after holding a hearing, refuses permission or grants permission subject to conditions, the authority or executive committee, as the case may be, shall give the person who requested permission written reasons for the decision. (Emphasis added)
8Thereafter the CAA provides a right of appeal to the Tribunal.
FACTUAL EXCERPTS
9On or about February 1, 2019, the Applicant was convicted of committing the following offences:
a. Did unlawfully dredge shore lands without a work permit contrary to s. 2(1) paragraph 3 of Ontario Regulation (“O. Reg.”) 239/13 of the Public Lands Act; and
b. Did unlawfully fill shore lands without a permit contrary to s. 2(1) of O. Reg. 239/13 of the Public Lands Act.
10Part of the Provincial Offences Order included this:
By no later than April 30, 2021, the Defendant shall complete remedial work in a manner consistent with the Shoreline Restoration Plan entered as Exhibit 14 at trial, and in a manner consistent with that required by the terms of permits to be applied for and issued by the Quinte Conservation Authority, Ministry of Natural Resources and Forestry, and the Department of Fisheries and Oceans and pursuant to the terms and conditions of same. (Emphasis added)
11On or about May 19, 2021, the Applicant submitted his permit application.
12On or about May 28, 2021, the QCA issued permit REG 0260-2021.
13On or about June 2, 2021, the Applicant advised that the permit was unacceptable and presented three options to the QCA.
14On or about June 3, 2021, the QCA replied that the permit was not an agreement that could be negotiated and re-written.
15On or about June 16, 2021, the Applicant indicated that he would appeal the permit issued by the QCA (requesting a hearing by the authority) and requested the appropriate application forms, procedures, fee schedule, and any other related requirements for the appeal process.
16On or about June 24, 2021, the QCA responded and indicated that it appeared that the Applicant was seeking to appeal the entire permit, but that was not allowed by the CAA. The QCA’s reply referenced s. 28(12) of the CAA that as a permit was issued, if the Applicant wished to pursue a hearing, he needed to indicate specifically which conditions of the permit he would like to appeal. Attached to the QCA’s response was a draft Notice of Hearing Request that listed the conditions of approval and had a check list to be completed of the conditions which were to be subject to the appeal.
17On or about August 5, 2021, the Applicant indicated that an appeal would be filed with the Tribunal.
FINDINGS
18With regard to s. 28(12) of the CAA, the Tribunal finds that the QCA did not refuse the permit application of the Applicant but rather issued permit REG 0260-2021.
19With regard to s. 28(12) of the CAA, the Tribunal finds that the QCA, when advised by the Applicant of his desire for a hearing by the authority, the QCA provided direction and information to the Applicant with regard to an appeal of the permit conditions.
20The Tribunal finds that the Applicant did not file an appeal of the conditions, but rather sought to negotiate the permit and failing to do so, later filed an appeal to the Tribunal.
21Thus, with no appeal of the conditions of the permit, no QCA hearing was held and no QCA decision issued.
DECISION
22To the Tribunal, the statutory provisions are clear and these are the relevant actions:
a. The QCA issued a permit with conditions;
b. The Applicant was dissatisfied with the permit and conditions;
c. The QCA provided the Applicant with the necessary information and materials to file an appeal of the conditions for a hearing before the authority; and
d. The Applicant, while advising that he would seek a hearing by the QCA, never finalized such an appeal of the conditions.
23As noted above, the Tribunal is a creature of statute. It only has the jurisdiction that is statutorily provided.
24Here the CAA stipulates that an authority shall not refuse a permit or attach conditions of approval unless the Applicant for the permit has been given an opportunity to be heard. Those are the only statutory grounds for a hearing by the authority which can be made.
25The Tribunal finds that the Applicant was provided with notice, materials, and the opportunity to request a hearing by the QCA, but the Applicant chose not to comply and not to perfect a request to be heard by the authority by stipulating which conditions were to be contested.
26Thus the Tribunal finds that this appeal is not within the statutory provisions of the CAA, and that the Tribunal has no jurisdiction to hear the appeal.
27This is the Order of the Tribunal.
“Blair S. Taylor”
Blair s. taylor
MEMBER
Ontario Land Tribunal
Website: www.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.