Ball v. Parry Sound (Town), 2022 CanLII 51258

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 06, 2022

CASE NO(S).:

OLT-21-001838

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

Appellant

Dan Ball

Appellant

Nancy Cunningham

Applicant

Matt Ryan

Owner

2713571 Ontario Inc.

Subject:

Zoning By-law

Description:

Proposes to rezone from an R2 to an R3 special provision zone to permit a 14-unit residential building

Reference Number:

BL 2021-7194

Property Address:

7 McMurray Street & Gibson Street

Municipality/UT:

Parry Sound/Parry Sound

OLT Case No:

OLT-21-001838

OLT Lead Case No:

OLT-21-001838

OLT Case Name:

Ball v. Parry Sound (Town)

Heard:

May 25, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Dan Ball Nancy Cunningham

Stephen Watt

Town of Parry Sound

Sarah Hahn

Eco-Development Group Inc.

Sarah Hahn

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE AND C. HARDY ON MAY 25, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On May 25, 2022, the first Case Management Conference (“CMC”) was heard in relation to appeals brought under s. 34(19) of the Planning Act (“Act”) by Dan Ball and Nancy Cunningham (“Appellants”) against the decision of the Town of Parry Sound (“Town”) on November 16, 2021, to approve a Zoning By-law Amendment (“ZBLA”) in relation to the properties at 7 McMurray Street and an unaddressed lot on Gibson Street (the “Properties”), which are owned by Eco-Development Group Inc. (“Owner”).

2The purpose of the ZBLA is to amend the current Town By-law No. 2004-4653, as amended, to facilitate a proposal by the Owner to construct a four-storey development with 14 residential units (“Development”) on the Properties, which are currently zoned to permit two (2) triplexes. The initial proposal contained a mixed-use commercial component, but that aspect has been removed from the application that is before the Tribunal.

3The Appellants provided input to Town Council throughout the application process, disagreed with the Town’s decision and chose to appeal the passing of the ZBLA on the Properties to the Tribunal. Their appeals are based on a number of concerns with the Development proposed, including that it: significantly reduces all yards, increases allowable height beyond the official plan and zoning by-law requirements, cuts the required lot in half, exceeds the density envisioned in the by-law, has insignificant underground parking with no exterior lot, is surrounded (on 3 sides) with heritage buildings, and is not compatible with the neighbourhood.

4Prior to the CMC, the Tribunal was notified that the Town would not be retaining counsel but would allow the Owner’s counsel to represent its interests.

REQUESTS FOR STATUS

5The Tribunal was tasked with adjudicating a Party Status Request from the Owner of the Properties. After hearing the submissions of the Owner, and receiving no objections from the Appellants, the Tribunal concluded that, as the owner of the Properties, it has an interest in the matter. Moreover, the Owner applied for the ZBLA which was approved by the Town, and will call expert witnesses who can assist the Tribunal in adjudicating the issues effectively and completely. The Tribunal granted Party Status to the Owner.

6In response to the Notice, the Tribunal received no other requests for status (Party or Participant). Accordingly, the appeal will proceed with the involvement and participation of the Parties identified above.

MEDIATION AND SETTLEMENT

7The Tribunal raised the issue of opportunities for settlement, including the use of Tribunal-assisted mediation. The Parties advised that they are not in a position at this stage to engage in such discussions, but remain open to the possibility of a settlement at some point in the future and are aware of the availability of mediation.

8The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the hearing and, should they wish to pursue Tribunal-assisted mediation, they may reach out to the case co-ordinator for assistance in this regard.

PROCEDURAL ORDER and ISSUES LIST

9The Parties produced an agreed-upon draft Procedural Order (“PO”) and Issues List, which was reviewed at the CMC.

10Most notably, Issue 7 on the Issues List, as originally drafted, asked the Tribunal to make a finding on matters outside of its jurisdiction. As such, the Appellants undertook to reword and clarify Issue 7.

11There was discussion at the CMC regarding paragraph 13 of the PO and whether that paragraph could be removed. The Tribunal noted that a meeting between the experts is an important step in the hearing process and directed that paragraph 13 must remain a part of the PO.

12Discussion was held regarding paragraph 15 and the timelines imposed on the Parties to produce the joint document book. The Tribunal found that ten (10) days before the Hearing is the minimum amount by which the joint document book must be produced and it was so ordered.

13The Owner undertook to revise and re-submit, on or before June 1, 2022, for the Tribunal’s approval a revised PO and Issues List in accordance with the Tribunal’s directions and any agreement made amongst the parties.

14The Owner has submitted the updated PO and Issues List, which is now attached as Schedule A to this Order.

HEARING

15The Tribunal canvassed the Parties regarding the number of witnesses each intended to call to provide evidence at the hearing. Both Parties indicated that they intended to call one planning expert each and requested that the Tribunal schedule a two (2) day hearing.

16Given the number of parties and potential witnesses, and the number of issues, the Tribunal agreed that a two (2) day hearing was sufficient. Accordingly, a video hearing will commence at 10 a.m. on Thursday, September 8, 2022 until Friday, September 9, 2022 for two (2) days. No further notice will be given.

17Parties 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/909787981

Access Code: 909-787-981

18Parties 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

19Persons 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) 497-9391 or (Toll Free): 1-888-455-1389. The access code is 909-787-981.

20Individuals 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.

OTHER MATTERS

21The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.

ORDER

22The Tribunal Orders that:

1. Eco-Development Group Inc. is a Party in this proceeding.

2. The hearing in this matter will be held by video hearing starting on Thursday, September 8, 2022 commencing at 10 a.m. and two (2) days have been set aside.

3. The Procedural Order attached as Schedule A to this Decision shall govern the proceedings.

23There will be no further notice and the Panel Members are not seized.

“Bita M. Rajaee”

bITA M. rajaee

member

“C. Hardy”

C. hardy

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.

SCHEDULE A

ISSUE DATE: CASE NO(S).: OLT-21-001838

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

Appellant

Dan Ball

Appellant

Nancy Cunningham

Owner

2713571 Ontario Inc.

Subject:

Zoning By-Law Amendment

Description:

Propose to rezone from an R2 to an R3 special provision zone to permit 14-unit residential building

Reference Number:

BL 2021-7194

Property Address:

7 McMurray Street & Gibson Street

Municipality/UT

Parry Sound/Parry Sound

OLT Case No.:

OLT-21-001838

OLT File No.:

OLT-21-001838

OLT Case Name:

Ball v. Parry Sound (Town)

Procedural Order

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on September 8, 2022 at 10 a.m. via videoconference at _______________________. No further notice shall be required.

3. The parties’ initial estimation for the length of the hearing is 2 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

8. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday June 24, 2022 and in accordance with paragraph 20 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is proposed to be qualified.

9. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 11 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

10. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 11 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 11 below.

11. On or before Monday July 11, 2022, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 20 below.

12. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence Friday August 5, 2022 in accordance with paragraph 20 below.

13. Expert witnesses in the same field shall have a meeting on or before Friday August 12, 2022 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday August 19, 2022.

14. The parties shall provide copies of their visual evidence to all of the other parties by Wednesday August 24, 2022 in accordance with paragraph 20 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

15. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Monday August 29, 2022.

16. The parties shall prepare and file a preliminary hearing plan with the Tribunal by Thursday September 1, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

17. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before Monday September 1, 2022.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

19. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal by Thursday September 1, 2022 that the written evidence is not part of their record.

20. All filings shall be submitted electronically and in hard copy with the Tribunal upon request. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

21. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

22. A summary of the various procedural dates is contained in Attachment 4.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

____________________________TRIBUNAL REGISTRAR

Attachment 1

LIST OF PARTIES

1. Eco-Development Group Inc.

2713571 Ontario Inc.

Sarah Hahn

Barriston Law

151 Ferris Lane, Suite 202

Barrie ON L4M 6C1

shahn@barristonlaw.com

Tel: (705) 792-9200

Fax: (705) 792-6911

2. Nancy Cunningham & Dan Ball

Stephen Watt

391 First Street, Suite 303

Collingwood ON L9Y 1B4

swatt@municipal-law.ca

Tel: (416) 977-9874

Attachment 2

ISSUES LIST

NOTE: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

1. Is Zoning By-law 2021-7194 consistent with the Growth Plan for Northern Ontario 2011, and more specifically Sections:

1.2 (a); 2.1; 2.2.2 (c)(i); 2.3.4; 4.2.1 (a)(b)(c)(d)(e).

2. Is Zoning By-law 2021-7194 consistent with the provisions of the Provincial Policy Statement (2020), and more specifically Part V - Policies:

1.1.1(a)(b); 1.1.3.2(a); 1.1.3.3; 1.1.3.4; 1.4.1 (a); 1.4.3 (b); 1.6.6.7 (e)(f); 1.7.1 (e)1.6.6.7(b)(d); 1.6.8.3; 2.6.3; 4.1; 4.6.

3. Does Zoning By-law 2021-7194 conform to the provisions of the Town of Parry Sound Official Plan, and more specifically sections:

1.2.1; 1.2.2(b); 1.3.5; 2.1.1; 2.1.2; 2.1.3; 2.2.1; 2.2.2; 2.2.3; 2.3.1; 2.3.2; 2.3.4; 2.3.5; 2.3.6; 2.4.7; 2.6.1; 2.7.3; 2.7.4; 2.7.5; 2.8.2.1; 2.8.2.3; 2.8.4.3; 2.8.2.4; 2.8.5.1; 2.8.5.4; 2.8.7.1; 2.8.8.2; 2.8.8.4; 2.8.8.5; 2.8.8.6; 3.1.1.1; 3.1.1.2; 3.1.1.7; 3.1.1.8; 3.1.1.9; 3.1.1.10; 3.1.2.1; 3.1.3.1; 3.1.3.2; 3.1.3.3; 3.1.3.4; 3.1.4.1; 3.1.4.3; 3.1.4.4; 3.2.7.1; 3.2.7.2; 5.9.1; 5.9.2; 5.9.6; 5.9.7; 5.9.9; 5.9.10; 5.9.11; 5.9.12; 5.9.13; 8.3.1.1; 8.3.2.1; 8.3.2.2; 8.3.2.3; 8.3.2.4; 8.3.2.5; 8.3.2.6; 8.3.2.7(b)(e)(f); 8.3.4.1; 8.3.4.2; 8.3.4.3; 8.4.1; 8.4.2(a)(b)(c)(d)(e)(h)(i); 8.10.1; 8.10.2.; and Schedule ‘A’.

4. Does Zoning By-law 2021-7194 maintain the intent and purposes of By-law 2004-4653, as amended, being the comprehensive zoning by-law of the Town of Parry Sound, and more specifically sections:

4.10; 4.11(a)(b); 4.16(e)(f)(m)(t); 4.17(a)(b); 4.23(a)(b)(e)(f)(g)(h); 4.30(a)(e)(g)(l)(n); 4.31; 4.44; 5.1; 5.3; 8.0; 8.1; 8.2; 8.3(d)(e).

5. Is the relaxation of each of the zoning standards in the S.P. 26.126 (h) provisions of Zoning By-law 2021-7194 reasonable and appropriate?

6. Are the conditions under the ‘Holding’ provision included in Zoning By-law 2021-7194 that require “the submission of a Cultural Heritage Resource Report due to the adjacent properties registered under the Heritage Act” and the entering into a Site Plan Agreement that, amongst other things, requires the “the implementation of the Cultural Heritage Report” appropriate and compliant with Section 2.6.3 in the Provincial Policy Statement (2020) and Section 5.9.7 in the Official Plan?

7. Does Zoning By-law 2021-7194 have proper regard for the provisions of the Planning Act, RSO 1990, and more specifically matters of provincial interest as contained in sub-sections 2[d][f][h][j][n][p][r] and 2.1 as well as the construction of buildings and structures under 34[1]4 ?

Attachment 3

ORDER OF EVIDENCE

1. Nancy Cunningham & Dan Ball

2. Eco-Development Group Inc. (2713571 Ontario Inc.)

3. Reply by Nancy Cunningham & Dan Ball if any.

Attachment 4