Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 04, 2022
CASE NO(S).: OLT-21-001839 (Formerly PL210241)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: South Bracebridge Environmental Protection Group
Subject: Proposed Official Plan Amendment No. 8
Municipality: Town of Bracebridge
OLT Case No.: OLT-21-001839
Legacy Case No.: PL210241
OLT Lead Case No.: OLT-21-001839
Legacy Lead Case No.: PL210241
OLT Case Name: South Bracebridge Environmental Protection Group v. District Municipality of Muskoka (Municipality)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: South Bracebridge Environmental Protection Group
Subject: By-law No. BL 2021-005
Municipality: Town of Bracebridge
OLT Case No.: OLT-22-002072
Legacy Case No.: PL210142
OLT Lead Case No.: OLT-21-001839
Legacy Lead Case No.: PL210241
Heard: July 26, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| South Bracebridge Environmental Protection Group ("Appellant") | David Donnelly |
| Muskoka Royale Development Inc. ("Applicant") | Quinto Annibale |
DECISION DELIVERED T. PREVEDEL AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Muskoka Royale Development Inc. (the "Applicant") is the owner of Lots 6, 7 and 8, and part Lots 9 and 10, Concession 12 (the "subject site") located within the urban centre boundary of the Town of Bracebridge ("Town") within the District of Muskoka ("District"). The Applicant wishes to develop a private educational institution including an elementary and secondary school, a multi-use recreational facility and lodging facilities for staff and students on the subject site.
2The Applicant applied for an Official Plan Amendment ("OPA") and Zoning By- law Amendment ("ZBA") to facilitate the proposed development and these instruments were approved by the Town on March 8, 2021. The District subsequently approved the OPA without modification.
3The South Bracebridge Environmental Protection Group (the "Appellant") appealed the approval of those instruments under s. 17(36) and s. 34(19) of the Planning Act ("Act").
4The Tribunal has held two Case Management Conferences ("CMC") with respect to this file, and a Procedural Order and Issues List was issued on January 26, 2022, to govern the proceedings, which have been scheduled for a 23-day Hearing commencing on September 19, 2022.
5Prior to the second CMC, the Tribunal received 134 additional participant status requests. In reviewing these requests, it became obvious that most, if not all, of the statements which accompanied the respective request forms used the same template to produce a Participant Statement opposing the application.
6The Tribunal noted that most, if not all, of the statements were clearly the result of some sort of coordinated effort to bring forward as many statements as possible to oppose the applications.
7The Tribunal did not grant Participant Status to the 134 individuals but provided direction to counsel to ensure that people's right to be heard in this matter was respected in a manageable format.
8At the second CMC, the Tribunal gave directions to counsel confirming that their involvement in organizing the participants should be limited to assisting in organizing a common statement, that it would be inappropriate for them to purport to act as counsel on any of the participants' behalf, and that they shall not advocate for or otherwise act in the interest of any of the participants.
THE MOTIONS
9The Tribunal received two written Motions as follows:
- A Motion dated July 8, 2022, from the Appellant requesting an Order from the Tribunal for Discovery pursuant to Rule 9.1 of the Tribunal's Rules of Practice and Procedure ( the "Rules") to allow for four (4) days of site access to assess and conduct additional environmental studies; and
- A Motion dated July 21, 2022, from the Applicant requesting an Order from the Tribunal to strike certain individuals from the Witness list of the Appellant.
1. Site Access Motion
10The Appellant has submitted a Motion in writing to the Tribunal on July 8, 2022. The Motion is for:
- An order for Discovery pursuant to Rule 9.1 of the Tribunal's Rules to allow for four (4) days of site access for Messrs. Heaton, Stinson and Rennie, who have been retained by the Appellant to access and conduct additional environmental studies, on the subject lands.
- Sufficient time for Messrs. Heaton and Stinson to file addenda to their Witness Statements, due August 5, 2022. Specifically, that they be afforded seven (7) working days from the date of the last site visit to file their reports.
11The Appellant submits that the requested site access is essential in order to provide the level of study necessary to determine whether provincially significant wetlands exist on the subject lands. The Appellant further submitted that the Applicant refused to grant access on the basis that a peer review of the environmental impact study had already been completed.
12In his written Motion, Mr. Donnelly stated that a one time visit (as was previously undertaken) to the subject lands to complete a peer review does not allow the level of study required to determine the extent of the wetland and mitigation measures.
13Mr. Donnelly submitted, in his Motion, that allowing site access for Messrs. Heaton and Stinson is crucial to providing the most accurate data in order to determine whether wetland and natural heritage features are adequately protected.
14The Applicant has responded by stating that the Tribunal lacks the jurisdiction to order the relief requested by the Appellant and, even if the Tribunal did have the jurisdiction to grant the relief requested, there must have been a necessary precondition to allow this Motion.
15Mr. Annibale submitted that, in order to bring a Motion for Discovery, Rule 9.1 requires that the request for site access must have been refused. Mr. Annibale went on to state that the Appellant has failed to satisfy this precondition of Rule 9.1 as the request made by the Appellant for site access was not refused.
16The Applicant was prepared to grant site access for a one-day site visit to permit the inspection and testing of the subject property at a mutually agreed upon date and time. Mr. Annibale stated that the Appellant dismissed this out of hand.
2. Analysis and Disposition of Site Access Motion
17The deadline for submission of Witness Statements in accordance with the Procedural Order is August 5, 2022.
18This Member is dealing with both written Motions simultaneously, one for site access and the other for striking of witnesses.
19The request for site access, according to the Notice of Motion, was submitted on July 8, 2022.
20Based on the written submissions by the Applicant, and the fact that both the Applicant, the Town and the District reviewed and accepted comprehensive studies of the subject property with respect to environmental issues, the Tribunal finds that this additional request for site access by the Appellant is inappropriate under the circumstances.
21The Tribunal further notes that the request for site access is academic at this point due to the upcoming deadlines for Witness Statements.
2. Motion to Strike Witnesses
2.1 Motion Record of Muskoka Royale Development Inc.
22The Applicant has made a formal Motion to the Tribunal asking for:
- An Order striking the following individuals from the Witness List of the Appellant:
- Mr. Andrew Whitely;
- Ms. Deborah Martin-Downs;
- Ms. Melissa Markham;
- Ms. April Best-Sararas;
- Mr. Michael Hart;
- Ms. Laura Morton; and
- Ms. Karine Bériault
- An Order of the Tribunal prohibiting the Appellant from calling multiple witnesses in the same area of expertise.
23In accordance with the Procedural Order dated January 26, 2022, the Appellant provided a list of 12 witnesses on June 21, 2022. The witnesses included three (3) land use planners, two (2) natural heritage experts, two (2) witnesses for wetland assessment and species at risk, a market analysis/economic impact witness, two (2) lay witnesses for community character which had previously been granted Participant Status, a biologist under summons from the Ministry of Natural Resources and Forestry and a transportation expert witness.
Andrew Whitely
24Mr. Annibale submitted that, based on a review of Mr. Whitely's Curriculum Vitae, he should not be permitted to provide opinion evidence in respect of market analysis and economic impact on the basis of the lack of credentials necessary to provide such expert opinion evidence.
25In his Book of Authorities, Mr. Annibale made reference to the following two cases:
R. v. J.-L.J., 2000 SCC, and R. v. Mohan, 1994 SCC 80.
26With reference to the first case law, and with respect to the role of the "trial judge" as gatekeeper, Mr. Annibale quoted Justice Binnie as follows:
...the Court has emphasized that the trial judge should take seriously the role of "gatekeeper". The admissibility of the expert evidence should be scrutinized at the time it is proferred...
27With reference to the second case law, Mr. Annibale referenced paragraphs 17-21 wherein the Supreme Court of Canada outlined the following four principles to be considered as criteria for admissibility of evidence:
- The evidence must be relevant;
- The evidence must be necessary to assist the trier of fact;
- There must be no exclusionary rule otherwise prohibiting the receipt of the evidence; and
- The evidence is given by a properly qualified expert.
28Mr. Annibale submitted that Mr. Whitely's proposed evidence does not overcome the first criteria. He stated that the Appellant's Issues List does not include an issue with respect to market analysis or economic impact of the proposed use.
29In his written submission, Mr. Annibale stressed that the Official Plan Amendment is not required to allow the proposed use of the subject lands as a private school. The only reason the Applicant needed an OPA was for the servicing aspect o the development as it is proposed to be developed on full municipal services.
30Mr. Annibale also pointed out that Town Staff, in assessing the Applications, were clear and consistent in that an Economic Impact and Viability Study was not required. This was articulated in paragraph 125.3 of Staff Report PD003-21, dated January 13, 2021.
Deborah Martin-Downs
31Mr. Annibale submitted that Ms. Martin-Downs should not be allowed to provide expert opinion evidence to the Tribunal on the basis of bias or reasonable apprehension of bias. Ms. Martin-Downs, representing the Muskoka Lakes Association, has made public statements critical of the proposed development and has submitted correspondence to the Town critical of the proposed development.
32Given Ms. Martin-Downs involvement with the Muskoka Lakes Association and her public statements, Mr. Annibale submitted that she is unable to provide independent and impartial expert evidence to the Tribunal, thus she should be struck from the Witness List.
Multiple Witnesses for land use planning, natural heritage and wetland assessment
33Mr. Annibale submitted that the Appellant has provided no justification or response to the Applicant's inquiry as to the reason for the multiple witnesses in the same areas of expertise proposed to be called at the Hearing.
34He stated that, based on the Witness List as proposed the Appellant, Mr. Donnelly plans to call three (3) land use planners, to be followed by two experts in natural heritage, to be followed by two experts in species at risk and wetland assessment.
35In his submission, Mr. Annibale stated that multiple witnesses in identical disciplines would result in unnecessary duplication of evidence provided to the Tribunal and will obviously hinder hearing efficiency, which is contrary to the Tribunal's mandate to ensure issues are determined in a fair, just, expeditious and cost effective manner.
Karine Bériault
36Mr. Annibale submitted that Ms. Karine Bériault has been included on the Appellant's Witness List under summons with no justification or explanation provided. He stated that no response was received from the Appellant, after inquiring regarding this clarification.
37Ms. Bériault was contacted on July 18, 2022, by the Applicant to request a brief meeting to discuss her familiarity with the proposed file and the evidence she was intending to present to the Tribunal.
38Mr. Annibale stated that Ms. Bériault responded by declining to meet with counsel for the Applicant stating:
The Ministry of Natural Resources and Forestry is not a party to any hearing, nor have we been called upon to present evidence to the Tribunal for the Muskoka Royale Development. In addition, the Ministry generally does not provide comment on site-specific planning applications where the municipality is the approval authority.
39Mr. Annibale submitted that the Applicant is not aware that Ms. Bériault has been involved in any review of the application and or associated studies it also appears that Ms. Bériault was not aware that she was included on the Appellant's Witness List under summons as of the writing of this Decision. It was confirmed, on July 19, 2022, that a summons for Ms. Bériault was not issued by the Tribunal.
Participants as Lay Witnesses
40Mr. Annibale submitted that both Michael Hart and Laura Morton have been granted Participant Status by the Tribunal. The Appellant is now proposing to call both of these individuals as lay witnesses to provide evidence on community character.
41He stated that Rule 7.7 of the Ontario Land Tribunal's Rules of Practice and Procedure (the "Rules") states:
A person who wishes to participate in a proceeding as a Participant shall file a written Participant Statement that sets out their position on the Appeal and issues of the proceeding together with an explanation of their reasons in support of their position. A Participant may only make submissions to the Tribunal in writing, unless otherwise provided for by an Act or Regulation.
42Mr. Annibale submitted that the Appellant is attempting to circumvent Rule 7.7 of the Rules as well as section 17 of the Ontario Land Tribunal Act, wherein Participants are restricted to providing written statements to the Tribunal. To call these individuals as witnesses, in direct contravention of the Rules regarding Participants, would be improper and contrary to the clear direction provided in the Ontario Land Tribunal Act and the Rules.
2.2 Response to Motion of Muskoka Royale Development Inc.
43The Appellant has filed a Motion asking for an Order of the Tribunal denying the relief sought by the Applicant in its entirety.
Andrew Whitely
44Mr. Donnelly, in his written Motion, denies the argument that Mr. Whitely is not qualified to give expert opinion evidence or that his expertise is "out of date".
45Mr. Donnelly stated that the Applicant readily accepted the Issues List, which was attached to the Procedural Order, in particular Issue Nos. 1 and 4, and did not challenge these issues or ask for an amendment.
46Mr. Donnelly submitted that Ms. Marie Poirier identified the requirement to perform an Economic Impact and Viability Study, which is supported by Town Staff comments in paragraphs 87.1 to 87.7 in staff report PD003-21. This was in the Town's preliminary analysis of the feasibility of the proposed use.
47Mr. Donnelly submitted that Mr. Whitley's evidence meets the threshold requirements for admissibility in the first criteria and, further, that the benefits of this evidence would outweigh any potential risks of admission.
48Mr. Donnelly also submitted that the Applicant's Planning Justification Report makes economic viability and benefits to the Town a prime selling feature of the development, which, in his opinion, needs to be tested in evidence.
Deborah Martin-Downs
49In his Book of Authorities, Mr. Donnelly made reference to White Burgess Langille Inman v. Abbott and Haliburton Co., 2015.
50He submitted that the task for the apprehension of bias is whether Ms. Martin-Downs is "able and willing to carry out... her primary duty to the court, which is to be fair, objective and non-partisan".
51Mr. Donnelly submitted that Ms. Martin-Downs' involvement with the Muskoka Lakes Association ("MLA") and her comments on the proposed development does not indicate that she would be unable to carry out this duty.
52Mr. Donnelly further submitted that the letter that was sent on behalf of the MLA to the Town was not written in Ms. Martin-Downs personal capacity, and he stated that she did not include her own opinion or recommendations.
53Mr. Donnelly concluded that, should the Tribunal be concerned regarding a reasonable apprehension of bias, then her evidence must go to weight rather than outright exclusion as required by the case law noted above.
Multiple Witnesses for land use planning, natural heritage and wetland assessment
54Mr. Donnelly submitted that there will be no duplication of evidence among the experts and that this would become clear upon the submission of Witness Statements on August 5, 2022.
55To quell the concerns raised by the Applicant, the Appellant proposes that Ms. Marie Poirier, Ms. Melissa Markham and Ms. April Best-Sararas will provide evidence as a panel.
Karine Bériault
56Mr. Donnelly submits that the Applicant has no grounds to request that Ms. Bériault be struck from the Appellant's Witness List based on the lack of clarification or justification as to her summons.
57Mr. Donnelly submitted that, out of an abundance of caution, the Appellants are submitting the Summons Request Form which carefully lays out the reasons for the testimony. He stated that Ms. Bériault is clearly qualified to testify to the matters specified on the Issues List and laid out in her summons request.
Participants as Lay Witnesses
58Mr. Donnelly admitted, in his written Motion, that the Applicant correctly noted that Mr. Michael Hart and Ms. Laura Morton have previously been granted Participant Status.
59Mr. Donnelly submitted it was not the Appellant's intention to contravene
60Section 17 of the Ontario Land Tribunal Act. or Rule 7.7 of the Tribunal's Rules.
61The Appellant has requested the withdrawal of Participant Status of Mr. Hart and Ms. Morton. Mr. Donnelly stated, in his written Motion, that by withdrawing these two participants, there would be no duplication of witnesses and Participants.
2.3 Analysis and Disposition on Striking of Witnesses
Andrew Whitely
62With respect to market analysis and economic impact, and in reviewing Policy J17.2 of the Town's Official Plan, the Tribunal notes that this Policy includes criteria that Council may consider when evaluating site-specific applications for Official Plan Amendments. However, because the proposed use is a community use under the Town's Official Plan, and those uses are permitted in all designations in the Urban Area, an Official Plan Amendment is not required to allow the proposed use of the subject lands as a private school.
63As noted in the Applicant's Motion, the only reason the Applicant needed an Official Plan Amendment was for the servicing aspect of the development, as it is proposed to be developed on full municipal services.
64The Tribunal agrees with the Applicant's submission in that the criteria in section J 17.2 which speaks to "the need for and feasibility of the use, as required by this Plan" and "the economic benefits and financial implications to the Town" are not engaged as they relate to the proposed development.
65The Tribunal finds that the economic impacts and viability of the proposals are not relevant to the Tribunal's consideration of whether the instruments before it represents good planning and are worthy of approval.
66With respect to Market Analysis and Economic Impact, the Tribunal agrees that the proposed evidence by Mr. Whitley is not necessary to assist in evaluating the proposal in this proceeding.
67In reviewing the past history on this file, and the numerous requests for Participant Status and the associated statements, the Tribunal notes that the prime concern by the area residents relates to environmental and wetland issues, not economic impact.
68With respect to Mr. Whitley's qualifications, the Tribunal will not make a judgment on this as the first test of relevance has not been met.
69The Tribunal will grant the Applicant's request to strike Mr. Whitley from the Witness list
Deborah Martin-Downs
70After careful consideration of the submissions made by the Applicant and the Appellant, the Tribunal agrees that there would be an obvious bias or at the very least a reasonable apprehension of bias should Ms. Martin-Downs be called to give evidence as an expert witness.
71Given Ms. Martin-Downs public statements critical to the development, the Tribunal does not agree with Mr. Donnelly's claim that she would be able to provide fair, objective and non-partisan evidence to the Tribunal.
72The Tribunal will grant the Applicant's request to strike Ms. Martin-Downs from the Witness List.
Multiple Witnesses for land use planning, natural heritage and wetland assessment
73The Tribunal agrees with the Applicant's submission that calling multiple witnesses in identical disciplines will result in unnecessary duplication of evidence provided to the Tribunal and is contrary to the Tribunal's mandate to ensure issues are determined in a fair, just, expeditious and cost-effective manner.
74Mr. Donnelly states that there will be no duplication of evidence among the experts and has offered that the three land use planning experts will be called as a panel.
75The Tribunal will allow the three land use planning witnesses to provide evidence as a panel. However, the Tribunal reserves the right to strike one or more of the three planning witnesses should a review of their Witness Statements show an obvious duplication of evidence.
76The Tribunal will make a similar ruling with respect to the species at risk and wetland assessment experts, directing the Appellant to either call these two witnesses as a panel or decide which of the two experts will give evidence.
Karine Bériault
77The Tribunal will reserve judgement on whether this witness will be allowed to give evidence, subject to a review of the Summons Request Form which the Appellant is submitting.
Participants as Lay Witnesses
78Both Mr. Hart and Ms. Morton have submitted their respective Participant Statements and have been granted Participant Status by the Tribunal.
79As noted in the Applicant's Motion, Rule 7.7 of the Tribunal's Rules specifically states that Participants are not to make oral submissions to the Tribunal.
80Notwithstanding Mr. Donnelly's offer to withdraw the request for Participant Status for these two individuals, in order to call them as witnesses, the Tribunal finds that this is an obvious" attempt to have these two Participants give oral testimony contrary to Rule 7.7.
81The Participant Statements of Michael Hart and Laura Morton are to remain on the record, and they are to be struck from the Witness List.
ORDER
82The Tribunal Orders that the site access requested by the Appellant be denied.
83The Tribunal orders that Mr. Andrew Whitely, Ms. Deborah Martin-Downs, Mr. Michael Hart and Ms. Laura Morton be struck from the Appellant's Witness List
84The Tribunal further orders that the three land use planning witnesses, namely Ms. Marie Poirier, Ms. Melissa Markham and Ms. April Best-Sararas be called as a panel and not individually. The Tribunal reserves the right to review the Witness Statements of these three land use planners in advance and make a further ruling as to whether one or more of the witnesses should be removed from the panel.
85The Tribunal orders that the two expert witnesses for species at risk and wetland assessment be called as a panel, or that the Appellant decide which of the two witnesses will be called.
86The Tribunal will reserve judgment on whether the expert Witness Statement of Karine Bériault will be allowed, subject to a review of the Summons Request Form.
"T. Prevedel"
T. PREVEDEL 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.