Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 23, 2022
CASE NO(S).: OLT-22-002699
PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant: James Hacquoil Appellant: Jiska Westbroek Subject: Consent Description: to create a new lot by severing a land in order to convey the land to the western abutting lot, while providing easement for road access to the abutting lot. Reference Number: 1B/23/21 Property Address: #5 Hwy 588, Oliver Paipoonge, ON (Concession 1 NKR, Part Lot 33) Municipality/UT: Oliver Paipoonge/Thunder Bay OLT Case No: OLT-22-002699 OLT Lead Case No: OLT-22-002699 OLT Case Name: Westbroek v. Oliver Paipoonge (Township)
PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Consent Reference Number: 1B/24/21 Property Address: #5 Hwy 588, Oliver Paipoonge, ON (Concession 1 NKR, Part Lot 33) Municipality/UT: Oliver Paipoonge/Thunder Bay OLT Case No: OLT-22-002701 OLT Lead Case No: OLT-22-002699
Heard: June 17, 2022 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Jiska Westbroek (“Appellant”) | Suraj Dave*, Robert Edwards* |
| James Hacquoil (“Applicant”) | Self-represented |
| Municipality of Oliver Paipoonge (“Municipality”) | Jennifer Savini*, Daniel Querques* |
MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON JUNE 17, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing was scheduled as a hearing on the merits of two Consent applications by the Applicant to sever and convey a 8.5 hectare (“ha”) parcel of land for waste disposal purposes. For the reasons that follow, the hearing was converted into a Case Management Conference (“CMC”).
2The appeal was initiated by the Appellant, an area resident, against a decision by the Municipality Committee of Adjustment (“COA”) approving the requested Consent applications.
3The two applications before the COA represent two steps sought to achieve the goal of creating a new 8.5 ha lot at the southern end of the Applicant’s property or properties. As illustrated below, the COA considered the matter upon the understanding that the Applicant owned two separate parcels of land. The Tribunal notes that these applications and the COA decision, which are now before the Tribunal, might have been premised on a fundamental factual error respecting whether the two originating parcels are separate or previously merged on title into one property (this issue will be addressed in greater detail below).
4Step 1 of the proposed Applications/COA decision involves the transfer of 4 ha of land from the east parcel (on the right) to the west parcel (on the left) by way of a lot addition, leaving a retained portion of 12.64 ha at the east parcel.
5Step 2 of the proposed Applications/COA decision involves a severance of the newly enlarged west parcel, creating a new 8.5 ha lot to the south and leaving the west parcel as a 15.81 ha retained lot. An easement to provide access to the west parcel from Germain Drive through the new lot is also part of the plan.
THE HEARING
6The Applicant was not present when the hearing was ready to commence. At the request of the Tribunal, counsel for the Municipality contacted the Applicant and he attended the hearing online approximately 40 minutes after the scheduled start time. By the time he was settled and ready to participate in the proceedings, approximately another 40 minutes had passed.
7Once the proceedings commenced with all of the parties present, it became immediately evident that the Applicant was not prepared for the hearing, he did not understand the basic purpose of the hearing, nor did he understand much of the details of his own applications. It also soon became clear to the Tribunal that a hearing on the merits could not possibly finish on the present day and another day or days would have to be scheduled.
8The Tribunal notes that the Applicant subsequently confirmed that he would retain legal counsel to represent him going forward. This decision was welcomed by the Tribunal, but with an understanding that the Applicant would inform the Tribunal and the other parties of his lawyer’s contact information within two weeks of the present hearing.
9As the hearing continued, counsel for the Appellant and the Municipality alerted the Tribunal of the potential fact that the Applications and COA Decision were premised on a fundamental factual error respecting the composition of the two originating parcels of land owned by the Applicant. None of the parties, including the Applicant, could confirm whether the parcels were two separate lots or had merged under common ownership.
10This fact is key because the first Application of this matter involves the transfer of 4 ha of land from one parcel to the other. If these parcels have already merged, such a transfer would be unnecessary and impossible to authorize by the Tribunal. As it relates to the second application, this fact matters because an analysis must consider the features of the retained lands as well as the severed lands, which will obviously be affected by which lands are included as part of the retained lands.
11In light of this potential issue, the Tribunal received submissions from the parties regarding how to proceed. Upon receipt of these submissions, the Tribunal found that the parties should individually determine whether or not the original parcels had merged and be prepared to make submissions to the Tribunal on this basis at the next hearing event. The Tribunal noted that, if it is found that a merger had not taken place, then the matter may continue according to the present applications. However, if it is found that the parcels have merged, then the application(s) before the tribunal should be amended accordingly.
12Relatedly, the Tribunal notes that s. 53(35) of the Planning Act (“Act”) provides the Tribunal with authority to consider an amended application(s). As a result, the potential contextual change described above is not necessarily fatal to the Tribunal’s consideration of the subject application(s). However, it will obviously be the responsibility of the Applicant to amend the application(s), if necessary.
13The Tribunal further notes that if the Applicant chooses to amend his application(s), it must be done with enough time before the next hearing event to have the Tribunal issue notice of the amendment and allow persons to request an opportunity to appear in accordance with s. 53(36) of the Act. If such an amendment is sought, the Tribunal does not find it to be “minor” as contemplated at s. 53(35.1) of the Act. For this reason, the Tribunal set a deadline of Monday, August 8, 2022, to amend the application(s), if the Applicant chooses to do so.
14Due to all of the circumstances described above, the Tribunal found it to be prudent to convert the present hearing into a CMC. The following is an account of that CMC.
Requests for Status
15The Tribunal received no requests for status.
MEDIATION AND SETTLEMENT
16The Tribunal explored the possibility of mediation and settlement with the parties. However, given the unsettled nature of the Applicant’s representation, as well as the question regarding the possible merger of the property, the parties agreed that it is premature at the present time. All of the parties, however, indicated that they would be open to the idea in the future.
PROCEDURAL ORDER AND ISSUES LIST
17The Tribunal made it clear that it expects a draft Procedural Order (“PO”) to be finalized by the parties and filed with the Tribunal before the next hearing date. A deadline of ten (10) days prior to the hearing was set.
HEARING
18Upon request of the parties, the Tribunal set a second CMC commencing on Thursday, September 22, 2022 at 10 a.m. by VH. No further Notice is required for the hearing unless the Applicant amends his application(s).
19Upon request of the parties, the Tribunal set a 2-day hearing commencing on Tuesday, January 10, 2023, at 10 a.m. by VH. No further Notice is required, notwithstanding that notice is required prior to the second CMC if the Applicant amends his application(s).
20The hearings are scheduled to proceed by video as follows:
Thursday, September 22, 2022 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/765631861 Access code: 765-631-861 Audio-only telephone line: +1 (647) 497-9391 or Toll Free 1-888-455-1389 Audio-only access code: 765-631-861
Tuesday, January 10, 2023 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/687587165 Access code: 687-587-165 Audio-only line: +1 (647) 497-9391 or Toll Free 1-888-455-1389 Audio-only access code: 687-587-165
21Parties 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.
22Parties 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.
23Persons 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: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.
24Individuals 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 VH 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.
ORDER
25The Tribunal Orders that:
a. The Applicant shall have until Monday, August 8, 2022, to amend his application(s) if he chooses to do so;
b. The parties shall file a draft Procedural Order with the Tribunal, complete with all details, no later than ten (10) days prior to the second CMC;
c. The date and particulars of the second CMC and the hearing are set out above;
d. The Member is seized for the purpose of the second CMC but is not seized for the purposes of any further hearings of this matter. He also may be spoken to through the Case Coordinator if any issues arise.
“K.R. Andrews”
K.R. ANDREWS 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.