Humberstone v. Halton Hills (Town), 2022 CanLII 40681

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

May 12, 2022

CASE NO(S).:

OLT-21-001841

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant:

Ryan Humberstone

Subject:

By-law No. 2021-0057

Municipality:

Town of Halton Hills

OLT Lead Case No.:

OLT-21-001841

OLT Case No.:

OLT-21-001841

OLT Case Name:

Humberstone v. Halton Hills (Town)

Heard:

March 15, 2022 by video hearing

APPEARANCES:

Parties

Counsel

MM Realty Partners Georgetown Project LP

Jeffrey J. Hewitt

Town of Halton Hills

Jeffrey J. Wilker

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON MARCH 15, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On September 16, 2020, MM Realty Partners Georgetown Project LP (“Applicant”) applied for a zoning by-law amendment to facilitate the proposed development of the lands located at 69-79 Main Street South and 94-98 Mill Street (“subject property”) in Georgetown.

2The subject property is the site of the former McGibbon Hotel. In 2015, the previous owner of the subject property applied for official plan and zoning by-law amendments to facilitate the development on the subject property of a residential condominium building with retail/commercial uses. Through mediation, a settlement was achieved and, in November 2017, a zoning by-law amendment was approved by the Ontario Municipal Board facilitating the development of a 10-storey condominium with 125 units (see Silvercreek Commercial Builders Inc. v. Halton Hills (Town), 2017 CanLII 14944 (ON LPAT)). The Board’s approval required community benefits through the preservation of the upper two floors of the Main Street facade of the McGibbon Hotel and a $500,000 contribution to the Town for use toward heritage preservation.

3Subsequent to the Board’s approval of the zoning by-law amendment, the previous owner of the subject property abandoned the project. The subject property was sold in 2020 to Amico Properties, which is a company associated with the Applicant.

4In September 2020, the Applicant filed applications for a further zoning by-law amendment, which would make changes to Zoning By-law No. 2017-0064 (“Zoning By-law”), including:

• an increase in the number of dwelling units permitted on the subject property from 125 to 169;

• a reduction in the permitted gross floor area on the subject property from 208,717 square feet (“ft²”) to 165,886 ft²; and,

• a reduction in the parking ratio from 1.65 to 1.40 spaces per unit.

The Appellant’s proposal maintains the community benefits ordered by the Ontario Municipal Board and adds a requirement for an on-site pedestrian pathway from the parking area to the rear of the subject property to Mill Street.

5On November 15, 2021, the Town of Halton Hills (“Town”) approved the Applicant’s proposed Zoning By-law Amendment.

6On December 17, 2021, Ryan Humberstone (“Appellant”) appealed the Amendment.

7On February 15, 2022, the Applicant filed a motion to dismiss the Appellant’s appeal without a hearing. The motion was heard by video hearing on March 15, 2022.

PRELIMINARY ISSUE: THE APPELLANT’S NON-ATTENDANCE

8The Appellant did not respond to the motion or attend the motion hearing. The Tribunal delayed the commencement of the hearing for over 15 minutes to allow time for the Appellant to join the call in accordance with Rule 3.3 of the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rules”). It also asked the Town to telephone the Appellant to determine whether he intended to participate. The Town was unable to reach the Appellant. Counsel left him a voice message with details regarding the motion hearing and how to call in. He never called. The Applicant confirmed that the Appellant received proper notice of the motion. It filed an Affidavit of Service of the Notice of Motion, which the Tribunal marked as Exhibit 5.

9The Tribunal was informed by the Parties that the Appellant had expressed a preference to the Tribunal’s case coordinator for an in-person hearing. Rules 20.2 to 20.4 of the Tribunal’s Rules state:

20.2  A party who objects to a hearing event being held as an electronic hearing shall notify the Tribunal and all other parties of its objection within the time period specified in the notice of the electronic hearing. The objecting party shall set out the reasons why the electronic hearing is likely to cause the objecting party significant prejudice.

20.3  The Tribunal may request a written response from other parties to the objection of an electronic hearing within a time period set out by the Tribunal.

20.4  If the Tribunal receives an objection to hold a hearing event by electronic hearing, it may:

a. accept the objection, cancel the electronic hearing, and schedule an in person or written hearing; or

b. if the Tribunal is satisfied, after considering any responding submissions that no significant prejudice will result to a party, then the Tribunal will reject the objection and proceed with the electronic hearing.

10Upon review of the materials that are on file with the Tribunal, the Tribunal found that the Appellant did express a preference for an in-person motion hearing, but did not provide any reasons regarding how he would be prejudiced by the hearing of the motion by electronic hearing. The Applicant argued that it would be prejudiced by an adjournment of the hearing and it would be unfair to base the Tribunal’s process on the whims or preferences of the Appellant. Upon considering the requirements and the Tribunal’s powers under Rule 20.4, the Tribunal found no significant prejudice will result to a Party by holding the motion electronically and it proceeded with the hearing by video.

EVIDENCE AND SUBMISSIONS

11In support of the motion, the Applicant filed an affidavit sworn by Jeffrey Markowiak, dated February 9, 2022. Mr. Markowiak is the Director of Development Review at the Town. Along with swearing the affidavit, he also gave evidence at the motion hearing. The Tribunal qualified him to provide opinion evidence in the area of land use planning.

12Mr. Markowiak opined that the Appellant’s Notice of Appeal provides no apparent land use planning ground upon which the Tribunal could allow all or part of the appeal. He stated that the Notice of Appeal raises concerns regarding the nature of the proposed development, but does not provide any land use planning grounds or bases for the appeal. Mr. Markowiak stated that he made two attempts to meet with the Appellant to discuss the appeal, but that each request was declined by the Appellant. He stated that the Appellant agreed to prepare a written response to the requests, but never did.

13Mr. Markowiak opined that the proposed Zoning By-law Amendment is consistent with the Provincial Policy Statement, 2020 (“PPS”) and conforms with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019), as amended (“Growth Plan”), the Regional Municipality of Halton Official Plan, and the Town’s Official Plan. He stated the Notice of Appeal makes no reference to applicable policy issues or to the application of the PPS or applicable provincial plans or official plans.

ANALYSIS AND FINDINGS

14The Tribunal’s authority for dismissing a zoning by-law amendment appeal is found in s. 19(1) of the Ontario Land Tribunal Act, 2021 and s. 34(25) of the Planning Act.

15Section 19(1) of the Ontario Land Tribunal Act, 2021 sets out the Tribunal’s general powers to dismiss an appeal. It states:

19(1) Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,

(a) if the party who brought the proceeding has not paid any fee required to be paid under this Act;

(b) if the party who brought the proceeding has not responded to a request by the Tribunal for further information within the time specified by the Tribunal;

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;

(d) in any circumstance listed in subsection 4.6 (1) of the Statutory Powers Procedure Act; or

(e) in any circumstance provided for under any other Act.

16Section 34(25) of the Planning Act sets out more the specific circumstances under which the Tribunal may dismiss a zoning by-law amendment appeal. It states:

34 (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:

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 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.

2. The appellant has not provided written reasons for the appeal.

3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

4. The appellant has not paid the fee charged by the Tribunal.

5. The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.

The application of s. 34(25) is disjunctive. The moving party must only demonstrate that one of the grounds for dismissal has been satisfied.

17On a motion to dismiss a zoning by-law amendment appeal, the Tribunal is to examine whether the grounds set out in the notice of appeal constitute genuine, legitimate and authentic planning reasons. In other words, the Tribunal will consider whether there is authenticity in the reasons, whether there are issues that should affect a decision in a hearing, and whether the issues are worthy of the adjudicative process. General concerns relating to land use planning grounds are insufficient to sustain an appeal (see Toronto (City) v. East Beach Community Association (1996) CarswellOnt 5740).

18In the present case, the Appellant raises concerns related to development on the subject property, but he fails to set out proper land use planning grounds. In the Notice of Appeal and supporting materials, the Appellant identifies his general preferences concerning design, architecture, character, housing, and compatibility, but does not identify land use planning reasons, link his concerns to applicable policies, or set out proper grounds upon which to form the basis of an appeal. He makes suggestions on improvements to the proposed development but does not provide grounds for these suggestions or policy or legislative bases for his suggestions. At the hearing, the Tribunal went through the Notice of Appeal paragraph-by-paragraph with Mr. Markowiak, but was unable to find any land-use planning grounds that are genuine, legitimate or authentic or could form the proper basis of a hearing on the merits.

19The Tribunal finds that 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 and it finds that the proceeding has no reasonable prospect of success.

ORDER

20The Tribunal grants the Applicant’s motion and orders that the appeal is dismissed.

“Hugh S. Wilkins”

HUGH S. WILKINS

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.