Hodges v. Lanark (County), 2022 CanLII 53770

Hodges v. Lanark (County)

Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire

Issue Date: June 17, 2022 Case No(s).: OLT-21-001962

Proceeding Commenced Under section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Steve Maynard Appellant: Susan Hodges Owner: Mississippi Mills Subject: Proposed Official Plan Amendment Description: Official plan amendment to expand the settlement area boundary of Almonte Reference Number: OPA 11 Property Address: All lands governed by OPA 11 Municipality/UT: Mississippi Mills/Lanark OLT Case No: OLT-21-001962 OLT Lead Case No: OLT-21-001962 Case Name: Hodges v. Lanark (County)

Proceeding Commenced Under section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Proposed Official Plan Amendment Description: Official plan amendment to expand the settlement area boundary of Almonte Reference Number: COPA 22 Property Address: All lands governed by COPA 11 Municipality/UT: Mississippi Mills/Lanark OLT Case No: OLT-21-002468 OLT Lead Case No: OLT-21-001962

Heard: May 17, 2022 by video hearing

Appearances

Parties	Counsel
The Municipality of Mississippi Mills	T. Fleming, S. Putnam
County of Lanark	G. Meeds, L. Benoit
Steve Maynard	Self-Represented

Memorandum of Oral Decision Delivered by R. G. M. Makuch on May 17, 2022, and Order of the Tribunal

Background

1This is the first Case Management Conference (“CMC”) respecting appeals by Susan Hodges and Steve Maynard related to two concurrent Official Plan Amendments initiated by the Municipality of Mississippi Mills (“Municipality”) to expand the community of Almonte’s urban settlement area boundary referred to as Official Plan Amendment No. 11 and the Municipality’s Community Official Plan Amendment No. 22.

2These Amendments were supported by the planning opinions of registered professional planners Marc Rivet of J.L. Richards, planning consultant for the Municipality, Julie Stewart, senior staff planner for the County of Lanark (“County”), and Forbes Symon of JP2G Consultants Inc., planning consultant for the County.

Municipality of Mississippi Mills and County of Lanark Motion to Dismiss Appeals Without Holding a Full Hearing

3The Municipality and the County have brought a joint Motion seeking an order of the Tribunal pursuant to s. 17(45) of the Planning Act, dismissing the appeals by both Appellants without holding a hearing, as well as the costs of the Motion. It is noted that since the filing of the Motion, Susan Hodges has withdrawn her appeals and that the Motion is proceeding only as against the Maynard appeals.

Materials Before the Tribunal on Motion

4The materials before the Tribunal on this motion consist of the following:

a. The Motion Record dated April 11, 2022 including the Affidavit of Marc Rivet, sworn April 5, 2022 and the Affidavit of Ken Kelly, sworn April 11, 2022;

b. The Notice of Response of Steve Maynard dated May 13, 2022 including his Affidavit sworn May 13, 2022.

The Grounds for the Motion

5The Moving Parties seek the dismissal of the Maynard appeals on the grounds that they are not made in good faith or are frivolous or vexatious; and that the reasons set out in the Notices of Appeal do not disclose any apparent land use planning ground upon which the Official Plan Amendments could be refused by the Tribunal. Furthermore, it is argued that the appeals have no reasonable prospect of success; and that Mr. Maynard has persistently and without reasonable grounds commenced proceedings before the Tribunal that constitute an abuse of process.

6Section 17(45) of the Planning Act outlines the grounds upon which the Tribunal may grant a motion to dismiss an appeal without holding a hearing:

Despite the Statutory Powers Procedure Act and subsection (44), 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 plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal,

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.

7The Tribunal may also dismiss an appeal without a hearing if the Tribunal is of the opinion that the proceeding has “no reasonable prospect of success”, in accordance with s. 19(1)(c) of the Ontario Land Tribunal Act, 2021 (“OLTA”).

8The Moving Parties rely on the decision of the Ontario Municipal Board (“OMB”) in East Beach Community Assn., v. Toronto (City), [1996] O.M.B.D. No. 1890 1996 CarswellOnt 5740 at paragraph 9, which states that when examining the notice of appeal for apparent land use planning grounds, the Tribunal should look beyond the text of the Notice and ask whether there are genuine, legitimate and authentic reasons worthy of the adjudicative process.

9Furthermore, the Board at paragraph 12 stated that it is also insufficient for an appellant to simply insist that further expert study is required with respect to a particular planning concern, in the hope that once a hearing is convened real planning issues will emerge. It is not good enough to “simply raise apprehension”.

10In Todaro v Wasaga Beach (Town), 2019 CanLII 23000 (ON LPAT) at paragraph 29, the Tribunal found that an appellant must provide an actual planning rationale in the Notice of Appeal and cannot simply employ planning jargon.

11The reasons for appeal must anticipate “contrary sustainable evidence” to be called at a hearing as stated by the Tribunal in Kangappaden v Brampton (City), 2021 CanLII 37094 (ON LPAT) in paragraph 42.

12“Frivolous or vexatious” can mean proceedings that are without reason or grounds, or where the party bringing the proceeding has “duplicitous motives” to promote “jejune or ludicrous” results as per the decision in Brampton Areas 52, 53 Landowners Group Inc. v. Brampton (City) 2019 CarswellOnt 13823, 10 O.M.T.R. 72 at paragraph 50. Furthermore, at paragraph 51, the Tribunal states that frivolous appeals are characterized by a lack of seriousness, while vexatious appeals include an action instituted without sufficient grounds for the purpose of causing trouble or annoyance.

Maynard Response

13Steve Maynard refers to an application filed by the Municipality in the Superior Court to have him declared a vexatious litigant and that he has brought a motion to have this application dismissed as a “Strategic Lawsuit Against Public Participation”. This motion, according to Mr. Maynard, was heard by the Court on May 2, 2022. A decision has not yet been rendered by the Court as of the date of the hearing of this motion.

14Mr. Maynard opposes the joint Motion brought before this Tribunal by the Municipality and the County and argues that the allegations that his appeals are not made in good faith and are frivolous and vexatious and “make up part of the Superior Court application submitted by the Municipality of Mississippi Mills to have me declared a vexatious litigant. It’s not reasonable that the municipalities expect the Tribunal and a full hearing and a full hearing is needed for Maynard to defend himself against the allegations in Court.”

15Mr. Maynard maintains that the municipalities are trying to gag him from having their illegal bylaws dismissed and make false and inflammatory statements that his appeals are not made in good faith and are frivolous and vexatious.

16Mr. Maynard relies on s. 3(5) of the Planning Act, which requires that Official Plan Amendments be consistent with the Provincial Policy Statement 2020 (“PPS”).

17Mr. Maynard also relies on section 1.1.3.8 of the PPS “that only permits the expansion of a settlement area into prime agricultural areas where it has been demonstrated that alternative areas have been evaluated and there are no reasonable alternatives to avoid prime agricultural areas and there are no reasonable alternatives on prime agricultural lands in prime agricultural areas.”

18He alleges that Mr. Rivet “relied on incorrect land zones as part of his comprehensive review for Community Official Plan Amendment 22” and maintains that, with respect to Almonte Vacant Land Map 1 (referred to in the Moving Parties Motion Record), land at the intersection of County Road 29 and Old Perth Road is incorrectly identified as “Commercial Zoning”, whereas the land is identified on the Municipality’s Interactive Mapping Tool as “Development Zoning”.

19Mr. Maynard also maintains that land at the intersection of Hope and Wiley Streets (referred to in the Moving Parties Motion Record) is incorrectly identified as “Industrial Zoning”, whereas these lands are identified in the Municipality’s Interactive Mapping Tool as “Development Zoning” and that had these lands been properly identified as “Development Zoning”, these would have been added to the 20 year growth needs of the Almonte Urban Area and expansion into the Houchaimi Lands would not be necessary.

20Finally, Mr. Maynard also argues that his appeals are a matter of legal argument and therefore it is not necessary for him to retain a professional land use planner to support his appeal.

Findings

21The Tribunal finds that the relief sought in the Motion should be granted.

22The Tribunal agrees with the submissions by counsel for the Moving Parties that Mr. Maynard’s appeals are not made in good faith and are frivolous and vexatious and are the latest in a series of frivolous, vexatious and meritless appeals brought for no legitimate land use planning purpose.

23Ken Kelly’s Affidavit sworn April 11, 2022 sets out the lengthy history of such appeals. It discloses that Mr. Maynard has appealed to the Tribunal regarding a planning decision of the Municipality seven times in the past three years. These are his eighth and ninth appeals.

24Mr. Kelly’s evidence discloses that four of those appeals were administratively dismissed when the Tribunal declined to waive its filing fee and the Appellant took no further action. The fifth appeal was to be conducted in writing at Mr. Maynard’s request but was dismissed after Mr. Maynard failed to file any evidence or written submissions in support of his appeal.

25Two of his appeals proceeded to hearings (Tribunal Case Nos. PL180769, PL190548, and PL210127), where Mr. Maynard did not call any witnesses either lay or expert and provided no land use planning evidence.

26In his most recent appeal (Tribunal Case No. PL210127), the Tribunal made a finding that the appeal was, “clearly vexatious”, unreasonable, and frivolous because he:

a. had no apparent interest in the matter;

b. did not present evidence at the hearing;

c. did not cite law, precedent or studies to support his position;

d. eliminated a number of issues without notice to the parties during the hearing;

e. conducted a cross-examination that “consisted largely of his own statements insofar as he disagreed with the Applicant’s expert’s professional opinion”; and

f. made no opening statement and made only very limited closing submissions.

27The Tribunal found Mr. Maynard, “has demonstrated a pattern of vexatious behaviour” and that he had “an extensive history of bringing unsubstantiated and/or incomplete appeals against the Town to the Tribunal.” The Tribunal characterized Mr. Maynard’s repeated “baseless” appeals as intended to cause trouble and annoyance to the Municipality and found they were not made in good faith. The Tribunal also found Mr. Maynard’s behaviour prejudiced the Municipality’s resources and efforts to deal with planning matters efficiently and effectively at a local level, as well as the Tribunal’s abilities and duties to deal with meritorious matters. The Tribunal concluded that Mr. Maynard’s conduct in bringing the appeal was vexatious and warranted sanctions to discourage such future conduct and ordered Mr. Maynard to pay $10,000.00 in costs to the Municipality and Applicant.

28It is clear to the Tribunal in the case at hand that Mr. Maynard’s present appeals have the indicia of another appeal brought in bad faith and which is frivolous and vexatious. Mr. Maynard has no apparent direct interest in any of the affected lands and has confirmed to the Tribunal that he does not intend to provide expert evidence to substantiate his appeals.

29The Tribunal agrees with counsel that Mr. Maynard’s appeals have all the hallmarks of a vexatious appeal intended to cause trouble and annoyance to the County and Municipality. In the absence of anticipated evidence that can sustain a challenge to the numerous studies and professional opinions in support of the amendments, Mr. Maynard’s appeals are a frivolous waste of the Tribunal and Moving Parties’ resources. These appeals are the latest in a series of Tribunal proceedings persistently commenced by Mr. Maynard without reasonable grounds, which therefore constitute an abuse of process.

30The Tribunal agrees with the submissions of counsel and finds that the Maynard appeals do not disclose any apparent land use planning grounds upon which the amendments could be refused and have no reasonable prospect of success.

31The reasons for appeal as stated in Mr. Maynard’s Appeal Form provide the following:

Section 3(5) of the Planning Act requires that Official Plan Amendments be consistent with the Provincial Policy Statement.

Section 1.1.3.8 The Provincial Policy Statement 2020 only permits the expansion of a settlement area into prime agricultural areas boundary where it has been demonstrated that alternative areas have been evaluated and there are no reasonable alternatives to avoid prime agricultural areas, and there are no reasonable alternatives on non-prime agricultural lands in prime agricultural areas.

Neither Official Plan Amendments meet the requirements of the Planning Act and/or the Provincial Policy Statement 2020.

The land referred to as "Area 2 Houchaimi Lands” in the County of Lanark and Municipality of Mississippi Mills Official Plan Amendments is over 50% Prime Agricultural Land as defined in the Provincial Policy Statement 2020.

32Mr. Rivet’s professional planning opinion as set out in his affidavit, sworn April 5, 2022, is that there are no reasonable alternatives to the Houchaimi Lands that will meet the growth needs of Almonte. His opinion was formed following a Comprehensive Review that included a detailed evaluation and scoring of potential expansion sites around Almonte. His analysis included planning considerations of available servicing and transportation infrastructure with the objective of maintaining a compact urban form. Through this evaluation, he determined that there are no reasonable alternatives to the Houchaimi Lands for expansion of the Almonte settlement boundary aside from those additional lands also included in the settlement expansion.

33Moreover, according to the findings of the ongoing Land Evaluation and Area Review (“LEAR”) Study conducted by J.L. Richards, the total LEAR Score for the Houchaimi Lands is below the threshold for prime agricultural land, which set follow consultation with the Ontario Ministry of Agriculture, Food and Rural Affairs.

34Mr. Maynard confirmed via email correspondence to the Tribunal dated March 18, 2022, that he will not call any expert witnesses as this is a matter of law and does not require planning experts.

35The Tribunal agrees with counsel that in the absence of any planning evidence, Mr. Maynard has no reasonable prospect of establishing that the inclusion of the Houchaimi Lands is inconsistent with Policy 1.1.3.8 of the PPS and that this being his only ground of appeal, the Maynard appeals have no reasonable prospect of success and disclose, no apparent land use planning ground upon which the Official Plan Amendments could be refused by the Tribunal. It is therefore an appropriate case for dismissal pursuant to s. 17(45) 1. i and s. 19(1) of the OLTA.

36It is noted that Ursula Melinz and Crystal McConkey both appeared on behalf of 1384341 Ontario Ltd. and 561121 Ontario Inc. with the intention of seeking party status. Samantha Lampert appeared on behalf of Houchaimi Holdings Inc. also to seek party status. Given the Tribunal’s ruling on the Motion, which brings an end to the Maynard appeals, it was unnecessary to deal with these requests.

Order

37Accordingly, the Motion is allowed and these appeals by Steve Maynard are hereby dismissed.

38Any request for costs is to be made in accordance with the Tribunal’s Rules of Practice and Procedure.

“R. G. M. Makuch”

R. G. M. MAKUCH VICE-CHAIR

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.