Atlantic Packaging Et Al v. Whitby (Town), 2022 CanLII 40687

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 11, 2022

CASE NO(S).: OLT-22-001963 (Formerly PL210240)

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

Appellant: Atlantic Packaging Holdings Ltd. & Products Ltd.

Appellant: Gerdau Ameristeel Corporation

Subject: By-law No. BL 7729-21

Municipality: Town of Whitby

OLT Case No.: OLT-22-001963

Legacy Lead Case No.: PL210240

OLT File No.: OLT-22-001963

Legacy Lead Case No.: PL210240

OLT Case Name: Atlantic Packaging Et Al v. Whitby (Town)

Heard: February 23, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Town of Whitby

Christina Kapelos

Atlantic Packaging Holdings Ltd and Atlantic Packing Products Ltd.

Andrew Jeanrie

Gerdau Ameristeel Corporation

John Georgakopoulos Alessia Petricone-Westwood

2649408 Ontario Limited

Annik Forristal

MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON FEBRUARY 23, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The purpose of this third Case Management Conference (“CMC”) was to hear the Motion brought forward by 2649408 Ontario Limited (“Applicant”) to acknowledge the Applicant’s party status or, in the alternative, an Order granting party status to the Applicant with respect to the appeal of By-law No. 7729-21

BACKGROUND

2The Applicant is the registered owner of the lands municipally known as 1578 Victoria Street East (the “Property”) located in the Town of Whitby (the “Town”), Ontario. The Property is located south of Highway 401, west of Thickson Road South and north and east of Victoria Street East.

3On or around August 23, 2018, the Applicant began retaining professional consultants to advise and provide the reports required for the Applicant’s application to the Town for a zoning by-law amendment for the Property to amend the Town’s Zoning By-law No. 1784 to permit the construction of a six (6)-storey and five (5)-storey hotel, subject to a “H” hold symbol requiring satisfaction of certain conditions.

4The Application was submitted to the Town on behalf of the Applicant by Michael Fry of D. G. Biddle & Associates Ltd. on March 17, 2020. In support of the Application numerous plans and reports were filed including;

• Site plan, floor plans and elevations prepared by Chamberlain Architect Services Limited;

• Conceptual site servicing plan prepared by D.G. Biddle & Associates Limited;

• Conceptual grading plan prepared by D.G. Biddle & Associates Limited;

• Functional Servicing and Stormwater Management Report prepared by D.G. Biddle & Associates Limited;

• Phase One Environmental Site Assessment prepared by Forward Engineering & Associates Inc.;

• Traffic Impact Brief prepared by Tranplan Associates Inc.;

• Noise Impact Study prepared by Golder Associates Ltd.;

• Planning Justification Report prepared by D.G. Biddle & Associates Limited; and

• Land Use Compatibility Study prepared by Golder Associates Ltd.

• The purpose of By-law No. 7729-21 is to amend Zoning By-law No. 1784, as amended, by changing the zoning from C2-S- RW-1 – Special Purpose Commercial - Retail Warehouse Zone - Exception 1 to H-C2-S-RW-10 - Holding - Special Purpose Commercial -

5The existing designation is Special Activity Node B which permits hotel use.

6On March 8, 2021, the Town’s Council approved the Application and passed By-law No. 7729-21.

7There have been two (2) CMCs held by the Tribunal, on August 31, 2021 and September 28, 2021, respectively. Counsel for the Appellants and for the Town attended both the first and second CMC.

8Mr. Fry attended the first CMC on behalf of the Applicant. In advance of the second CMC, Mr. Fry contacted the Tribunal to confirm the telephone conference call details, to which the Tribunal responded providing such confirmation. Subsequent to the conclusion of the second CMC, the Tribunal received an email from Dhanwant Bhatti advising that he represented the Applicant and was unable to join the CMC due to technical difficulties.

9At the second CMC, despite the Applicant’s inability to attend, the Tribunal proceeded, at the request of the Town and Appellants, to set a date for a settlement hearing (January 25, 2022), and a deadline for the parties to file a Joint Document Book, Minutes of Settlement and Affidavits from expert witnesses.

10The Town informed that it would not actively participate in a hearing on the merits for the Appeal.

11The Applicant, however, had mistakenly perceived that the Town would be playing the primary role at the Tribunal proceedings in support of its decision to pass the By-law and that attendance by Mr. Fry at the first CMC was sufficient to ensure their status and involvement in the proceedings and any subsequent settlement discussions. The Applicant’s inability to participate in the second CMC due to technical reasons furthered their lack of understanding of the status of the proceedings.

12The Applicant mistakenly understood they would necessarily be invited to any settlement discussions between the parties, in particular as they are the owner of the Property and proponent of the Proposed Development, but also because, through its consultants, the Applicant had previously reached out to the Appellants through their consultants regarding their concerns and requested the sharing of information to inform potential resolution of the Appeal.

13The Appellants, did not share any information with the Applicant and did not involve them in their settlement discussions, including following the second CMC when all parties were made aware of the difficulties faced by the Applicant in participating in the proceedings.

14When the Applicant was not included in the sharing of any documents, they sought representation from a land use planner as well as legal counsel.

15On January 14, 2022, the Applicant engaged Roger Miller of Miller Planning Services and Ms. Forristal of McMillan LLP to assume the planning matters and legal services, in respect of the Appeal.

16On January 17, 2022, on behalf of the Applicant, McMillan LLP filed by email to the Tribunal a request for party status and on January 18, 2022. McMillan LLP provided a copy of such request to the Town and Appellants.

17On January 18, 2022, Ms. Forristal received correspondence from the Appellants objecting to the Applicant’s request for party status.

18On January 18, 2022, Ms. Forristal responded to the Appellants’ counsel and requested a copy of the settlement materials filed with the Tribunal for approval.

19On January 19, 2022, Ms. Forristal received an email from the Tribunal caseworker advising that the Tribunal had denied the Applicant’s request for party status.

20On January 20, 2022, Ms. Forristal wrote to the parties and the Tribunal advising them of the Applicant’s intent to bring a motion seeking Party Status.

NATURE OF THE APPEALS

Atlantic Packaging Holdings Ltd. and Atlantic Packaging Products Ltd (“Appellant”) state:

• The adopted policies are not consistent with the policies of the Provincial Policy Statement, specifically policy sections:

1.1.1. c) and 1.2.6

• Does not conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe Area, including, but not limited to Policies 2.2.5.5, 2.2.5.7 and 2.2.5.8

1.1.2.

• Zoning By-law 7729-21 does not adequately consider the matters of Provincial Interest as set out in the Planning Act

• The development will be a potential source of air quality and/or noise complaints that are not pre-existing 1.1.3.

• The proposed rezoning will introduce a "tall", sensitive land use receptor within close proximity of Atlantic Packaging 's operation, and therefore, within its area of influence

1.1.3.

• It is premature to rezone lands for sensitive land uses until it is truly proven supportable through an extensive peer reviewed examination of the potential impacts

• The proposed use and its height may not prove to be supportable after the appropriate environmental considerations are taken into account.

• The proposed new type of sensitive land use is being proposed in a format that promotes an unsupportable building form.

Gerdau Ameristeel Corporation, (“Appellant”) state:

• The Gerdau site which is 400 meters southwest from the existing site is a heavy industrial use. The proposed rezoning would permit a sensitive land use in close proximity to a heavy industrial use creating the potential for land use conflicts.

• If the impacts cannot be addressed the land use and By-law should be considered inappropriate.

• The By-law as adopted does not provide a measure or means to ensure that the appropriate mitigation measures are firstly determined and secondly implemented in the proposed development

• Further, the decision of Council is inconsistent with the Provincial Policy Statement, issued under subsection 3(1) of the Planning Act and fails to conform with or conflicts with a provincial plan

GROUNDS FOR THE MOTION

21The Tribunal heard that the Applicant acknowledges that they should have made more concerted efforts to obtain information respecting the status of the proceedings and parties’ negotiations over the past five (5) months, in particular by better informing itself about the Tribunal’s process and timely retaining counsel, it is respectfully submitted that refusal to allow the Applicant to meaningfully participate in proceedings directly impacting its own Property and interests is a severely disproportionate, inappropriate and Draconian consequence.

22The Applicant further states that their participation in the proceedings in the public interest and the interest of good land use planning, but the resultant prejudice to the parties is also limited and remediable. In contrast, the prejudice that would be suffered by the Applicant is severe and irreparable. Under the circumstances, the balance of harm clearly and obviously favours granting the Applicant’s requested relief as set out herein.

23The Applicant reiterated that they are the owner of the Property that is subject to the Appeal, and the Appeal relates to the Application filed in respect of the Applicant’s Proposed Development. The Applicant has an obvious, immediate and direct interest in the subject of the Appeal. The Applicant and the Property, including the land use permissions for the Property, will be directly and materially impacted by the outcome of any settlement or hearing in respect of the Appeal.

24The Applicant informed that they have been engaged in the Application process for over three (3) years and have invested significant time, effort and resources during this time. The Applicant’s costs to date in respect of the Application and Appeal exceed $185,000 and delay in final approval of the By-law continues to result in added costs to the Applicant as the Property remains vacant.

25The Tribunal heard that since the Town will not actively participate in a hearing on the merits, the Applicant’s participation in these proceedings to provide evidence in support of the By-law’s passing will allow for a full and fair proceeding on the merits since no evidence in support of the By-law would otherwise be before the Tribunal. Having land use planning decisions made on the basis of all relevant evidence and with the involvement of all impacted parties is in the public interest and the interest of good land use planning.

26The Applicant states that it is contrary to the principles of procedural fairness for a hearing to proceed in respect of an owner’s lands where they are unable to participate and have not even been provided with a copy of the settlement materials to be put forward to the Tribunal for approval in respect of their own lands. At a minimum, an owner should have an opportunity to review the resolution proposed for its lands and participate in the proceedings.

27The Applicant further states the granting of the requested relief to allow the Applicant’s participation in the proceedings will not result in significant prejudice to the Appellants or the Town.

28Further, the delay in resolution of the Appeal will not negatively impact the Appellant’s lands or operations as the status quo will be maintained. Use of the Appellants’ lands will continue as is, uninterrupted.

29The Tribunal heard that if the relief requested is not granted the Applicant will suffer severe prejudice and irreparable harm. The Applicant will be subjected to a decision made in respect of its own Property and that will directly and materially impact its interests without any ability to participate. The Applicant has not been provided with details of the proposed settlement, but the potential impacts of any decision in respect of the Appeal include loss of its ability to proceed with the Proposed Development (or any similar development) altogether or significantly increased costs in order to proceed with the Proposed Development. In all cases, this result would be significantly prejudicial to the Applicant.

30The Tribunal further heard, the Applicant’s loss of its rights to participate in proceedings directly impacting its property and interests and the suffering of the associated costs and losses is “an egregious and Draconian consequence for the Applicant’s failure to attend one CMC and timely obtain counsel, particularly where matters have proceeded to a hearing within only 5 months of the first CMC.”

31The Applicant emphasises how clear and obvious it is that they are natural party to the proceedings due to its status as owner of the Property and Applicant for approval of the subject By-law.

32It is respectfully submitted that no request for party status is required and that the request so filed by the Applicant’s counsel was a courtesy and done out of an abundance of caution only. As a natural party to the proceedings, the Applicant is entitled to participate fully in the proceedings and may bring a motion in the proceeding pursuant to Rule 8.1 of the Tribunal’s Rules of Practice and Procedure.

33Alternatively, should the Tribunal determine that such a request for party status is in fact required despite the Applicant’s direct interest in the Property and involvement with the Application and participation in the proceedings to date as able, the Applicant should be granted such party status for the reasons set out below.

34The Tribunal heard that subsection 34(24.2) of the Planning Act permits the Tribunal to add a person as a party to the hearing if:

a. Before the by-law was passed, the person or public body made oral submissions at a public meeting or written submissions to the council. [or]

b. The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party.

35Subsection 34(24.1) of the Planning Act is clear that the conditions under s.17(44.2) are mutually exclusive and that only one of the conditions set out needs to be satisfied in order for a person to be added as a party.

36The Applicant indicated that in Oakville (Town), Re, 2010 CarswellOnt 7078 (the “Oakville Decision”), at paras. 13 and 14, the Tribunal has set out “Obvious Factors” for determining whether the requirements under s.17(44.2) are met, which the Tribunal notes is “the Zoning By-law equivalent to” s.34(24.2), including:

Prior Appeal

Has an appeal already been filed in relation to the policy which is sought to be challenged?

37The Appeal is already before the Tribunal and the Applicant is not adding to the issues that are subject to the Appeal – they will only be addressing the issues already raised by the Appellants. Land use compatibly issues, like those subject to the Appeal, are also best resolved through involvement of all impacted landowners, including because this provides a greater range of potential solutions and possible mitigation measures.

Public Interest

To what extent is the public interest advanced if party status is granted?

38The public interest is best served by a full and fair hearing on the merits, especially as compared to a one-sided resolution. Resolution that involves all impacted landowners (especially the owner of the lands subject to the Appeal) is in the public interest, consistent with the principles of procedural fairness and fundamental to good land use planning. The Tribunal will also benefit from being able to make a truly informed decision on the basis of all evidence relevant to the By-law and Proposed Development.

39Further, allowing the Applicant to participate in the proceedings in no way assures its success and will not prejudge the outcome of the proceedings in prejudice to the Appellants (or Town). Notably, Rule 12.1 of the Tribunal’s Rules of Practice and Procedure state the following about settlement before Tribunal proceedings:

If all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.

Prejudice

What prejudice, if any, would be suffered by the municipality or another party to

the proceeding?

40The Applicants claim the prejudice that would be suffered by the Appellants is limited to any alleged unnecessary costs incurred by the parties as a result of the Applicant’s conduct over the past five (5) months and the parties may seek relief and recovery of such costs from the Tribunal pursuant to a costs motion.

41Conversely, the prejudice that would be suffered by the Applicant is significant and irreparable and would include being subject to a decision made without its involvement regarding its own Property that will directly and materially impact its interests and the loss of all of the time, effort and costs invested in this matter over the past three (3) years (which costs exceed $185,000). In particular, if the By-law were repealed, the Applicant would lose its ability to proceed with the Proposed Development and may be prevented from submitting a new application for a similar development as the matter may be considered res judicata. The balance of harm clearly favours granting of the requested relief to the Applicant.

Direct Interest

Does the person seeking party status have a direct interest in the policy?

42As the owner of the Property and person on whose behalf the Application was submitted, the Applicant has a direct and vested interest in the outcome of the proceedings. The courts have acknowledged that the owner of a property subject to appeal has a legitimate and direct interest in such proceedings

Multiplicity of Proceedings

Will granting party status avoid a multiplicity of proceedings?

43The Applicant’s participation in the proceedings will avoid a multiplicity of proceedings, and, in particular, will avoid the need for the Applicant to start at the beginning and bring a new application for proposed development of the lands should any decision cause repeal of the By-law. It is in the interest of all involved that the issues related to the Proposed Development subject to the Appeal be resolved now with full participation of all parties.

Historical Background

What is the historical background of the policy sought to be challenged?

44The Applicant has been involved and materially invested in the Application from the outset for over three (3) years and has invested significant time, effort and resources to secure approval of the By-law by the Town. But for technical issues, the Applicant would also have been in attendance at all proceedings to date and would have taken the opportunity to engage in settlement discussions had it been invited.

APPELANT’S POSITION

45The Appellants, Gerdau Ameristeel Corporation (“Gerdau”) and Atlantic Packaging Holdings Ltd. (“Atlantic”), oppose 2649408 Ontario Inc. (“2649408 Ontario”) being granted party status in the appeal of By-law No. 7729-21, bearing OLT File No. PL210240 (the “Appeal”).

46The Appellants seek their costs thrown away due to the Applicant’s delay in seeking party status.

47The Appellants also seek their costs to respond to the Applicant’s motion for party status.

48On March 8, 2021, the Town enacted By-law No. 7729-21, which amends By-law No. 1784 to allow the additional use of a hotel at the Proposed Hotel Site.

49Gerdau and Atlantic appealed By-law No. 7729-21 to the Ontario Land Tribunal (the “Tribunal”) pursuant to the Planning Act, RSO 1990, c. P.12 (the “Planning Act”). Gerdau and Atlantic’s appeal bears OLT File No. PL210240 (the “Appeal”).

50On July 6, 2021, the Tribunal sent a Notice of CMC”) scheduled for Tuesday, August 31, 2021 to Atlantic, Gerdau, the Town of Whitby and the Applicant’s Director, Mr. Bhatti.

51On August 31, 2021, the parties attend the first CMC before Vice-Chair Bishop. Michael Fry, a Planner with the firm B.G. Biddle & Associates Ltd. who submitted the application on behalf of the Applicant, attended the first CMC and, when asked by the Tribunal if he was there to obtain party status for his client, advised Vice-Chair Bishop that he was not given direction by 2649408 Ontario in advance of the first CMC.

52Vice-Chair Bishop scheduled a second CMC to allow the Applicant the opportunity to advise the parties if the Applicant intended to participate in the Appeal.

53On September 28, 2021, the parties attended a second CMC with Vice-Chair Bishop. At the second CMC, the parties expressed their positions on a resolution and presented two options for resolution: (1) brief mediation, or (2) one-day settlement hearing.

54The Applicant did not join the second CMC due to alleged technical difficulties. On October 12, 2021, the Tribunal sent the parties and the Applicant’s director, Mr. Bhatti a copy of the Memorandum of Oral Decision Delivered by G.C.P. Bishop on September 28, 2021 and Order of the Tribunal dated October 12, 2021.

55The Tribunal heard the Applicant took no steps to:

(i) contact Gerdau, Atlantic or the Town after the first CMC,

(ii) retain legal counsel,

(iii) have 2649408 Ontario’s Planner contact Gerdau, Atlantic or the Town, or

(iv) seek party status or give any indication that they intended to seek party status.

56Having not heard from the Applicant following either CMC, between November 2021 and January 2022, Gerdau and Atlantic began preparing for the one-day settlement hearing.

57On January 14, 2022, Gerdau and Atlantic filed an Issues List, Final Document Book and Affidavit of Steven Edwards, sworn January 14, 2022, with exhibits with the Tribunal.

58On January 18, 2022, one week before the scheduled settlement hearing, the Applicant emailed a Request for Party Status to the Tribunal.

59On January 19, 2022, the Tribunal denied 2649408 Ontario’s request for party status. Following the initial denial of party status, 2649408 Ontario filed a motion for party status, one business day before the scheduled settlement hearing.

1. Appellant’s Issues

a. Should 2649408 Ontario be granted party status within the Appeal, bearing OLT File No. PL210240, despite seeking party status five months after the first hearing event and eight months following the filing of the Appeal?

b. Are Gerdau and Atlantic entitled to their costs thrown away and their costs of this motion?

Law and Analysis

THE APPLICANT SHOUD BE DENIED PARTY STATUS

The Planning Act, subsection 34(24.1) limits who may be added as party t o an appeal under subsection 34(19) of the Planning Act to:

a) A person or public body who satisfies one of the conditions set out in subsection (24.2)

b) The Minister

The conditions set out in the Planning Act, subsection 34(24.2) are:

a) Before the by-law was passed, the person or pubic body made oral submissions at a public meeting or written submission to the council.

b) The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party.

The Appellants dispute that “reasonable grounds” is not a defined term within the Planning Act.

60In Oakville (Town), Re, the Ontario Municipal Board (“OMB”) held that subsection 34(24.2) of the Planning Act was the zoning by-law equivalent of subsection 17(44.2) of the Planning Act. Subsection 17(44.2) states that when reasonable grounds exist, party status can be granted to a person or public body in appeals of official plans. The OMB said that it would be very difficult, if not impossible, to articulate an exhaustive list of factors to consider when determining if reasonable grounds exist. However, there are "obvious factors" that can be assessed including:

a) Has an appeal already been filed in relation to the policy which is sought to be challenged? (“Prior Appeal”)

b) To what extent is the public interest advanced if party status is granted? (“Public Interest”)

c) What prejudice, if any, would be suffered by the municipality or another party to the proceeding? (“Prejudice”)

d) Does the person seeking party status have a direct interest in the policy? (“Direct Interest”)

e) Will granting party status avoid a multiplicity of proceedings? (“Multiplicity of Proceedings”)

f) What is the historical background of the policy sought to be challenged (“Historical Background”).

61The Appellants submit that factors (a) and (e) do not apply to 264 Ontario’s motion for party status. There is no prior appeal filed in relation to By-law No. 7729-21. There is no multiplicity of proceedings before the Tribunal involving By-law No. 7729-21.

Public Interest

62The Tribunal’s Rules of Practice and Procedure require that a party seeking party status submit the Party Status Request Form at least ten days in advance of the first hearing event. The Rules of Practice and Procedure define “hearing event” as “a procedure held by the Tribunal at any stage of a proceeding and includes a motion, CMC and hearing, whether these are held in the form of an in person hearing, electronic hearing or written hearing, and does not include a cross-examination on an affidavit not held before the Tribunal.”

Ontario Land Tribunal, Rules of Practice and Procedure, Rule 1, Effective: June 1, 2021

63The Applicant has not cited any case law where the Tribunal has granted party status to a landowner on the eve of a settlement hearing.

64It is in the public interest to ensure certainty in the appeal process at the Tribunal. An orderly and dependable Tribunal procedure ensures public confidence in administrative tribunals and the administration of justice.

65The Applicant knew about every step in this Appeal and had multiple opportunities to seek party status and engage with the parties.

66Gerdau and Atlantic respectfully submit that it is in the public interest to ensure that administrative tribunal procedures are respected and followed. It is contrary to the public interest if the Applicant is able to subvert Tribunal practice and procedure and seek party status once the parties have negotiated a settlement.

Prejudice

67This matter is of utmost importance to Gerdau. Gerdau has operated in Whitby for almost 60 years. Gerdau employs over 600 people in Whitby. The introduction of a hotel and a long-term stay hotel adjacent to Gerdau’s industrial facility will impact Gerdau’s current operations, ability to expand in the future, and increase Gerdau’s exposure to nuisance complaints.

68This matter is also of utmost importance to Atlantic. Atlantic has operated at its site for many years and is currently undergoing a significant expansion of its facility. The introduction of a sensitive land use, including a hotel and a long-term stay hotel adjacent to Atlantic's industrial facility will impact Atlantic's current operations, ability to expand in the future and increase Atlantic's exposure to nuisance complaints.

69Gerdau, Atlantic, and the Town’s mutually agreeable settlement provided certainty and a resolution that would not adversely impact Gerdau’s or Atlantic's current and/or future operations. To introduce an adverse party to a settlement that the parties have worked on for months to achieve would be most unfair and highly prejudicial to the parties.

Historic Background

70At the time Town Council approved the re-zoning of the Proposed Hotel Site, By-law No. 7729-21 was not immediately brought forward to Council for adoption. This was done to permit discussions between the Applicant, Gerdau, and Atlantic about the potential impacts a sensitive land use may have on adjacent industrial uses.

71The Applicant was aware at the time By-law No. 7729-21 was passed in March 2021 that Gerdau and Atlantic were concerned about the impact a sensitive land use would have on their respective operations. The Applicant was aware that Gerdau and Atlantic appealed By-law No. 7729-21. Despite this and the Applicant’s planner’s appearance at the first CMC, the Applicant did not engage in the Tribunal process until the last minute.

Direct Interest

72The Appellants agree that the Applicant has a direct interest in the issues in this Appeal. However, the Applicant has had several opportunities to seek party status in the Appeal in order to show its interest. Only at the last minute, and once the parties had a settlement in place, did they take steps to seek party status and participate in the Appeal.

73As an entity with a direct interest in this Appeal, one would expect the Applicant to take active steps to seek party status at an early stage in the Appeal and in accordance with the Tribunal’s Rules of Practice and Procedure. That 264908 Ontario chose not to protect its own interests should not result in prejudice to Gerdau and Atlantic who did protect their interests by appealing By-law No. 7729-21, adhering to the Tribunal process, and negotiating a settlement with the Town.

74Gerdau and Atlantic respectfully submit that the factors do not favour granting party status to the Applicant.

FINDINGS

75The Tribunal has heard the Applicant’s “Motion” to request for party status to these proceedings.

76The Tribunal has also reviewed the joint “Reply to the Motion” from the Appellants.

77The Tribunal acknowledges the Applicant’s mistaken understanding of the “process” was due to its inexperience and lack of familiarity with the land use planning process and further should have made a more determined effort to update themselves with the status of the proceedings.

78The Tribunal further acknowledges the Applicant also mistakenly understood they would necessarily be invited to any settlement discussions between the parties, in particular as they are the owner of the Property and proponent of the proposed development.

79The Appellants argue that the Applicant has failed to meet the necessary timelines and repeated notice of ongoing steps in the Appeal, including that a settlement hearing had been scheduled for January 25, 2022. The Applicant chose not to seek party status in the Appeal until about one week before the settlement hearing.

80The Tribunal referred to subsection 34(24.1) and 17(44.2) of the Planning Act specify that the conditions are mutually exclusive and only one of the conditions set out needs to be satisfied in order for a person to be added as a party.

81Subsection 34(24.2) of the Planning Act permits the Tribunal to add a person as a party to the hearing if:

a. Before the by-law was passed, the person or public body made oral submissions at a public meeting or written submissions to the council. [or]

b. The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party.

82The Tribunal agrees that one of the conditions is met. The Applicant submitted their application and sought its approval and further, made submissions to the Town and its Council prior to approval of the By-law.

83The Tribunal referred to Oakville (Town), Re, 2010 CarswellOnt 7078 (the “Oakville Decision”) seeking reasonable determination whether the requirements under s.17(44.2), the Zoning By-law equivalent to s.34(24.2) were met.

84The Oakville decision established “Obvious Factors” in the determination of the decision:

1. Prior Appeal

85The Tribunal finds that the Appeal is existing before the Tribunal and that the Applicant will not add to the issues other than addressing matters raised by the Appellants.

2. Public Interest

86The Tribunal finds the public is best attended by a full and fair hearing. A resolution that affects the landowner whose lands are subject to the Appeal is in the Public Interest. Furthermore, allowing the Applicant to take part in the hearing in no way assures their success and will not prejudge the outcome of the proceedings in prejudice to the Appellants.

87Rule 12.1 of the Tribunal’s Rules of Practice and Procedure state the following about settlement before Tribunal proceedings:

If all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.

3. Prejudice

88The Tribunal finds a decision made without the Applicant’s involvement regarding their own property, where loss of time, efforts and costs invested, will cause significant Prejudice to the Applicant.

4. Direct Interest

89The Tribunal finds that the Applicant as the owner of the subject lands, has a direct and vested interest in the outcome of the proceedings.

90The Tribunal referred to 1077955 Ontario Inc., Re, 2012 CarswellOnt 8320 at paragraph 23:

The City argued that granting party status to Garibaldi [the party seeking status]would not be in the public interest because of the late timing and the potential delay.

91However, the Board finds that the public interest is served by ensuring that those with legitimate interest in an appeal are given the opportunity express that interest and have their concerns tested through the submission and examination of evidence at a hearing. This engenders confidence in the municipal planning process by ensuring that legitimate interests are recognised and that any proposed change which affects an interest is dealt with in a fair and impartial manner.

5. Multiplicity of Proceedings

92The Tribunal finds the Applicant’s involvement in the proceedings will avoid a multiplicity of proceedings. It is in the best interest of all involved that the issues related to the Proposed Development subject to the Appeal be resolved now with full participation of all parties.

ORDER

93THE TRIBUNAL ORDERS that the Motion is allowed, and Party Status is granted to 2649408 Ontario Inc. (“Applicant”) in respect to the Appeal of By-law No. 7729-21

94THE TRIBUNAL ORDERS an adjournment of the hearing of the appeal of By-law No. 7729-21 and schedules a CMC on Wednesday, June 15, 2022 at 10 a.m. to organize said proceedings.

95Parties and participants 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/687587165

Access code: 687-587-165

96Parties and participants 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

97Persons 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: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 687-587-165.

98Individuals 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.

“Carmine Tucci”

CARMINE TUCCI

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.