Stephenson v. Ontario (Municipal Affairs and Housing), 2022 CanLII 73931

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

August 11, 2022

CASE NO(S).:

OLT-22-002798

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant

John Stephenson

Subject:

Consent - refused by Approval Authority

Description:

To create a new lot in order construct two recreational dwellings.

Reference Number:

58-C-193026

Property Address:

PIN 62327-0320 & PIN 62327-0321

Municipality/UT:

Thunder Bay/Thunder Bay

OLT Case No:

OLT-22-002798

OLT Case Name:

Stephenson v. Ontario (Municipal Affairs and Housing)

Heard:

June 16, 2022 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

John Stephenson (“Appellant”)

Stefan Huzan

Ministry of Municipal Affairs and Housing (“Ministry”)

Mariam Awan*

MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL AND S. BOBKA ON JUNE 16, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal by John Stephenson pursuant to s. 53(19) of the Planning Act with respect to the Ministry of Municipal Affairs and Housing’s refusal to grant a consent on a proposed severance.

2The municipal description of the subject property is PIN 62327-0320 and PIN 62327-0321 in the Unincorporated Township of Jacques, Thunder Bay.

3The subject lands are 0.9 hectares (“ha”) in total area and the proposal is to sever the lands to create a new lot and construct two recreational dwellings, one on the retained lot and another on the severed lot.

4This is the first Case Management Conference (“CMC”) with respect to this appeal. Mr. Huzan, representing the Appellant, acknowledged at the onset of the CMC that he is not legal counsel, but that he is a close personal friend of Mr. Stephenson and is not receiving any compensation for his assistance.

5The Tribunal accepted this, on condition that Mr. Huzan is aware that he cannot provide any opinion evidence at the upcoming Hearing.

Area Context

6Currently, the subject lands are approximately 0.906 ha in size and are vacant. Each of the severed and the retained lands are proposed to be used for resource-based recreational dwellings. Mr. Huzan has indicated that the severed and retained lands will be serviced by individual sewage systems and wells or lake water. There are no Minister’s Zoning Orders on the subject lands. Surrounding land uses to the proposed severed and retained lands include Two Island Lake to the east, Two Island Lake Road to the west, a vacant private lot to the south and a resource-based recreational dwelling to the north. Island Lake is located approximately 75 metres (“m”) west of the subject lands.

7The proposed severed lot would be approximately 0.447 ha with 50.75 m of roadway frontage, 51.7 m of shoreline frontage and a depth of 86.10 m. The proposed retained lot would be approximately 0.459 ha with 56.32 m of roadway frontage, 51.7 m of shoreline frontage and a depth of 87.0 m. Both the proposed severed and retained lots are currently vacant, there are no services, and there are no dwellings. Each lot is proposed to be used for recreational dwellings. The subject lands are located on Two Island Lake, approximately 17.4 kilometres north of the City of Thunder Bay municipal boundary. The subject lands are accessed by Two Island Lake Road which is maintained on a year-round basis by the Jacques Local Roads Board.

Party and Participant Status Requests

8Dr. Timothy Chapman, represented by Allan McKitrick as legal counsel, submitted a Party Status Request to the Tribunal in advance of the CMC. However, the Tribunal received a subsequent letter dated June 14, 2022, advising that, for personal reasons, Dr. Chapman will not pursue standing as a Party in these proceedings.

9Mr. McKitrick did, however, state that Dr. Chapman was still opposed to small lot creation on lakefront property in an unorganized territory with no regulatory structure.

Opportunities for Settlement Discussion

10The Tribunal asked if the Parties were prepared to consider mediation.

11Mr. Huzan suggested that a meeting of the experts to review and potentially scope down the technical issues regarding lake capacity would be beneficial. The Parties advised that they would be open to informal discussions on a “without prejudice” basis and are not requesting Tribunal-led mediation at this time.

12Ms. Awan stated that the Ministry needs some time to review the most recent technical report on lake capacity submitted by the Appellant.

Procedural Order and Issues List

13The Ministry had submitted a draft Issues List in advance of the CMC. The Parties advised that they would work on refining the Procedural Order and Issues List, with the objective of scoping down some of the issues, and this should be available to forward to the Tribunal within the next three weeks.

14The Parties, on consent, submitted that up to five (5) witnesses will be called and requested a four (4) day Hearing.

15The Tribunal directed the Parties to submit the final Procedural Order and Issues List to the Case Co-Ordinator by no later than July 7, 2022.

Scheduling of the Hearing

16A four-day Hearing has been scheduled for Tuesday, October 4, 2022 at 10 a.m. by video conference.

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/660145013

Access Code: 660-145-013

18Parties 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: (Toll Free): 1 888 455-1389 or +1 (647) 497-9373. The access code is 660-145-013.

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.

ORDER

21The Tribunal received the final Procedural Order and Issues List, which is attached as Schedule 1 to this Decision. As such, it is in full force and effect.

22The Hearing is scheduled to proceed by video conference on Tuesday, October 4, 2022, at 10 a.m. for four days.

23The Members are not seized, however, may assist with case management, schedules permitting.

24No further notice will be given.

“T. Prevedel”

T. PREVEDEL

MEMBER

“S. Bobka”

S. BOBKA

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.

ISSUE DATE: August 11, 2022 CASE NO(S).: OLT-22-002798

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant(s)/Appellant(s) : John Stephenson

Subject : Consent – refused by Approval Authority

Description : To create a new lot in order to construct two recreational dwellings

Municipality: Unincorporated Town of Jacques, District of Thunder Bay

Municipal File No.: 58-C-193026

OLT Case No.: OLT-22-002798

OLT File No.: OLT-22-002798

OLT Case Name: Stephenson v. Ontario (Municipal Affairs and Housing)

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

1. The video hearing will begin on October 4, 2022 at 10:00 a.m. Parties 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/660145013

Access Code: 660-145-013.

2. The parties’ initial estimation for the length of the hearing is 4 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.

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

4. 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.

5. 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.

6. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

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 July 12, 2022 (date – 55 days prior to the hearing date) and in accordance with paragraph 22 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 prepared to be qualified.

9. Expert witnesses in the same field shall have a meeting on or before July 15, 2022 (date) 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 July 29, 2022 (date – at least 15 days prior to the start of the hearing).

10. 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 13 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.

11. 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 13 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 13 below.

12. On or before August 26, 2022 (date – a minimum of 38 days before the hearing date), the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

13. On or before August 26, 2022 (date – a minimum of 38 days before the hearing date), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

14. On or before September 9, 2022, the parties shall provide copies of their reply expert witness statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 22 below.

15. On or before September 16, 2022 (date), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before September 23, 2022 (date – no later than 10 days prior to the hearing).

17. 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.

18. 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 at least 7 days before the hearing that the written evidence is not part of their record.

19. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 27, 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.

20. All filings shall be submitted electronically and in hard copy. 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.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.

Attachment 1

Parties

Counsel/ Representative

John Stephenson (Appellant)

Stephen Huzan huzan@tbaytel.net

Ministry of Municipal Affairs and Housing (Approval Authority)

Mariam Awan, Counsel mariam.awan@ontario.ca

Attachment 2

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O.

1990, c. P. 13, as amended.

Applicant/Appellant

John Stephenson

Subject:

Consent - refused by Approval Authority

Description:

To create a new lot in order construct two recreational dwellings, one on the retained lot and another on the severed lot.

Reference Number:

58-C-193026

Property Address:

(PIN 62327-0320 PIN 62327-0321)

Municipality/UT:

Thunder Bay/Thunder Bay

OLT Case No:

OLT-22-002798

OLT Case Name:

Stephenson v. Ontario (Municipal Affairs and Housing)

Issues List

Appellant’s Issue:

1. Does the Lake Capacity and Hydrogeological Assessment, as updated and completed for the appellant landowner, establish whether Two Island Lake has the capacity to support one additional recreational lot?

The Ministry of Municipal Affairs and Housing’s Issues:

1. Is the approval of the application for consent on Two Island Lake consistent with the Provincial Policy Statement, 2020 (“PPS”) policies prohibiting development on lakes that are at capacity, more specifically:

   1. Is the approval of the application for consent consistent with Policy 2.2.1h), which requires planning authorities to protect, improve or restore the quality and quantity of water by ensuring consideration of environmental lake capacity?
   2. Is the approval of the application for consent consistent with Policy 1.1.1c), which requires avoidance of development that may cause environmental or public health and safety concerns?
   3. Is the approval of the application for consent consistent with Policy 1.6.6.4, which only allows individual on-site sewage and water services if the site conditions are suitable for the long-term provision of such services with no negative impacts?
   4. Is the approval of the application for consent consistent with Policy 1.6.6.4, which requires consideration of whether development will cause negative impacts, as assessed through a hydrogeological study?
   5. Is the approval of the application for consent consistent with Policy 2.2.1f), which requires planning authorities to protect, improve or restore the quality and quantity of water by protecting vulnerable surface and groundwater?
   6. Is the approval of the application for consent consistent with Policy 2.2.1a) of the PPS, which requires planning authorities to use watershed as the ecologically meaningful scale for integrated and long-term planning, when considering the cumulative impacts of development?

2. Is a Lake Capacity Assessment, undertaken in accordance with Ontario’s Lakeshore Capacity Assessment Handbook, required to demonstrate environmental lake capacity?

   1. If so, has the appellant landowner undertaken an updated Lake Capacity Assessment, in accordance with Ontario’s Lakeshore Capacity Assessment Handbook, to establish that Two Island Lake is not “at capacity”?

3. Is the application for consent consistent with Section 1.1.6 of the PPS, which only permits development related to the sustainable management or use of resources and resource-based recreational uses (including recreational dwellings) in territories without municipal organization that are not part of a planning area?

4. Does approval of the application for consent have regard to the criteria set out in subsection 51(24) of the Planning Act, specifically,

   1. The effect of the proposed [consent] on matters of provincial interest as referred to in section 2;
   2. Whether the proposed [consent] is premature or in the public interest;

f. The dimensions and shapes of the proposed lots; and

h. Conservation of natural resources and flood control.

1. Does the approval of the application for consent have regard for matters of provincial interest in s. 2 of the Planning Act?

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.

Attachment 3

Anticipated Order of Evidence

1. John Stephenson (Appellant)

2. Ministry of Municipal Affairs and Housing (Approval Authority)

3. John Stephenson – Reply (if any)