Harris v. Kincardine (Municipality), 2022 CanLII 75919

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 17, 2022

CASE NO(S).: OLT-21-001478

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

Appellant: Douglas Harris

Applicant: 12353865 Canada Inc.

Subject: Zoning By-law

Description: To permit the construction of a 78 unit apartment building

Reference Number: ZBA 2021-147

Property Address: 7 Mount Forest Avenue

Municipality/UT: Kincardine/Bruce

OLT Case No.: OLT-21-001478

OLT Lead Case No.: OLT-21-001478

OLT Case Name: Harris v. Kincardine (Municipality)

Heard: June 6 and 24, 2022 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

Municipality of Kincardine

Tammy Grove-McClement*

Douglas Harris

Self-represented

12353865 Canada Inc.

Mark Donald*

DECISION DELIVERED BY SHARYN VINCENT AND ORDER OF THE TRIBUNAL

1Douglas Harris (“Appellant”) has appealed By-law No. 2021-147, which was approved by the Council of the Municipality of Kincardine on September 17, 2021 and would permit lands known a 7 Mount Forest Avenue to be redeveloped to accommodate a 78-unit, 3 storeys apartment building. The Tribunal convened the first Case Management Conference (“CMC”) on June 6, 2022 and reconvened on June 24, 2022, having directed an exchange of information with a view to narrowing the issues raised by Mr. Harris in his appeal materials, and in order to allow the Municipality in particular, to consult with staff in response to questions raised by the Appellant over the course of the initial CMC.

2The Appellant owns property which abut the lands subject of the rezoning, but also disclosed in the course of the proceeding, that he has an understanding of issues related to the proximity of the proposed development to the hospital, which currently operates on a large parcel of land opposite the proposed development site. Mr. Harris comes to these insights as a sitting member of the Hospital Board, but qualified his capacity as Appellant to that of a concerned citizen and neighbour.

3Mr. Harris in his appeal, amongst other things, challenges the veracity of the traffic analysis undertaken and considered in support of the proposed development, and also raises issues as to whether the proper authorities responsible for the safe and efficient use of the heliport for the hospital, have provided any necessary approvals to support the approvals granted by Council. Mr. Harris also raises issues with respect to environmentally sensitive lands on the development parcel, all as outlined in greater detail in the issues forming part of the Procedural Order (“PO”) directed by the Tribunal, despite the hearing being set down for only 4 days. The Tribunal directed that a draft PO and Issues list was to be filed with the Tribunal before the end of the July.

4Mr. Harris advised that he would be relying upon the expertise of staff to a great degree and was apprised of his responsibilities as the Appellant to bring a full case to support his appeal.

5A hearing to deal with the merit of the appeal was scheduled to commence on December 12, 2022 and run to December 15, 2022 at 10 a.m.

6Parties 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:

https://global.gotomeeting.com/join/979388733

Access Code: 979-388-733

7Parties 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.

8Persons 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 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

9Individuals 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 video hearing 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.

10The member is not seized, and no further notice is required. The Tribunal may be spoken to if assistance is required in executing the direction of this order.

ORDER

11A hearing commencing on December 12, 2022 is hereby scheduled and shall be governed by the Procedural Order and Issues list attached hereto and forming part of this Order.

“Sharyn Vincent”

sharyn vincent

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.

OLT-21-001478 – Attachment

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

CASE NO(S).: OLT-21-001478

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

Appellant: Douglas Harris

Applicant: 12353865 Canada Inc.

Subject: Zoning By-law

Description: To permit the construction of a 78 unit apartment building

Reference Number: ZBA 2021-147

Property Address: 7 Mount Forest Avenue

Municipality/UT: Kincardine/Bruce

OLT Case No.: OLT-21-001478

OLT Lead Case No.: OLT-21-001478

OLT Case Name: Harris v. Kincardine (Municipality)

PROCEDURAL ORDER

The Tribunal Orders that:

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 December 12, 2022 at 10 a.m. and end on December 15, 2022 by Video Conference Software, GoToMeeting. The Video Conference details are as follows:

GoTo Meeting: https://global.gotomeeting.com/join/979388733

Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373

Access Code: 979-388-733

3. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

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 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.

8. 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

9. 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 October 18, 2022 (date – at least 55 days prior to the start of the hearing) 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.

10. Expert witnesses in the same field shall have a meeting on or before November 10, 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 November 25, 2022 (date – at least 15 days prior to the start of the hearing).

11. 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.

12. 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.

13. On or before November 1, 2022 (date – at least 45 days prior to the start of the hearing), 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.

14. On or before October 14, 2022 (date – at least 45 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.

15. On or before November 7, 2022 (date – at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before November 10, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by November 8, 2022 within ten (10) days after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before December 2, 2022 (date – at least 10 days prior to the start of the hearing).

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before December 2, 2022 (date – at least 7 days prior to the start of the hearing) 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.

22. All filings shall be electronic 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.

23. 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.

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

list of parties AND PARTICIPANTS

PARTIES

COUNSEL/REPRESENTATIVE

Municipality of Kincardine (Respondent)

The Ross Firm Professional Corporation 11 Durham Street East Walkerton, ON N0G 2V0 Tammy W. Grove-McClement Email: tgrove@rossfirm.com Tel: (519) 881-3230

Douglas Harris (Appellant)

Self-represented 1183 Queen Street Kincardine, ON N2Z 1G4 Email: djharris1183@gmail.com Tel: (226) 930-1576

12353865 Canada Inc. (Applicant)

Mark Donald Law Professional Corporation 1 Dundas Street West, Suite 2500 Toronto, ON M5G 1Z3 Mark Donald Email: mark@markdonaldlaw.com Tel: (416) 681-9615

PARTICIPANTS

COUNSEL/REPRESENTATIVE

N/A

ATTACHMENT 2

ISSUES LIST

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

Respondent’s Issues

1. Does By-Law 2021-147 meet the prescribed test:

a. Is it consistent with the Provincial Policy Statement?

b. Does it conform with the Official Plan of the Municipality of Kincardine?

c. Does it conform with the Official Plan of Bruce County?

d. Does it comply with the intent and objective of the local zoning bylaw?

e. Does it represent good land use planning?

Appellant’s Issues

1. Does the proposed planning approval involving the re-zoning of the severed lot to allow for the construction of a high-density development (R4) comply with Kincardine’s Official Plan (KOP); specifically the following policies:

• Compatibility - compatibility to the existing land use in the immediate area and accessed from the intersection leading to the institutional (Women’s House) and health care operations (hospital & medical clinic). (KOP Policy D.1.5.1 (a))

• Profile/height – profile/height of development is greater than the 2-storey adjacent buildings and low-density residential (R1) maximum of 10.5 metres (KOP Policy D.1.5.1 (b))

• Proximity to community services – the development is not close to shopping, schools, recreational area thus requiring occupants to require a car (KOP Policy D 1.5.1 (f))

• Located in a commercial area – the development is not in a commercial area where traffic congestion is minimized (KOP Policy D1.5.1 (h))

• Buffering/landscaping plan and open space – the existing landscaping plan is deficient in terms of fencing, trees and landscaping to provide privacy for the adjacent residential properties and the Women’s House. Insufficient green space has been provided to the occupants of the development (KOP Policy D 1.5.1 (d), (e)).

2. Does the proposed planning approval conform with Bruce County’s Official Plan (BCOP); specifically:

a. Does it meet the requirement for Environmental Impact Studies (EIS) to be completed in compliance with Bruce County Official Plan (BCOP) that may impact the proximity of the development to Environmental Protected Lands (EP Land) and therefore be in violation of the below specific policies:

i. Threatened and Endangered Species – Approval was granted without any requirement for the Applicant to contact the Ministry of Environment, Conservation and Parks and if required, an EIS to be conducted; and if a risk exists, the development may not be within 50 metres of EP Lands (BCOP Policy 4.3.2.7)

ii. Valley land and Wetlands – Approval was given by Saugeen Valley Conservation Authority (SVCA) without the required EIS being conducted in respect of a Valley land, the outcome of which may require the position of the development to be no closer than 50 metres from EP Lands (BCOP Policy 4.3.2.8). In addition, an EIS may be required for Wetlands (BCOP Policy 4.3.2.4)

iii. Deer Wintering Area and Wildlife – Approval was given by SVCA without the required EIS being conducted in respect of a Deer Wintering Area and existence of wildlife, the outcome of which may require the position of the development being no closer to 120 metres from both the EP Lands on the property but also the 1183 Queen Street property that also contains EP Lands. (BCOP 4.3.2.9 and BCOP 4.3.2.10)

iv. Hurricane Hazel Floodplain (HHFE) – SVCA stated that the HHFE be identified on the Site Plan. A “Red-Development Line” has been identified however the development is 1 metre outside of that line and 5 metres from EP Lands. The Kincardine Official Plan – Section 7.3 (c) requires a 15 metres distance from the HHFE line.

v. Development residual fill on Queen Street properties in Hazard Land – based upon the SVCA identification of “Hazard Land” west of the property, a partially completed townhouse development was completed and fill exists from the first stage of that development in violation of Kincardine Official Plan Policy D 7.3 and 7.5 (a).

3. Does the size and location of the proposed development create a fire risk as the building structure will not allow for fire vehicles to have unobstructed access to the south portion of the building and therefore comply with the 45-metre requirement outlined in the 1990 Building Code Act and Fire Protection Act 1997, Part B.

4. Does the size and location of the proposed development along with the extension of Mount Forest to the east and north around the existing helipad create a risk to safe operation of the helipad and therefore be in violation of Provincial Policy Statement (1.2.6.1, 1.2.6.2, 1.6.9.2, 3.1.5) and Bruce County Official Plan (4.6.6.4) in terms of land use compatibility and infrastructure and Public Service.

• Contrary to the Ornge representative recommendation, approval of the development was granted without the condition of a 360-degree survey being conducted.

5. Does the use of Mount Forest as the access road to the development along with re-design of the Mount Forest & Queen Street intersection result in traffic congestion and impede access to critical health care services (hospital and medical centre) and therefore be in violation of the Provincial Policy Statement 1.2.6 and Kincardine Official Plan (D1.5.1.(h)).

• Vehicle access to both the hospital/medical centre is through an intersection (located on property that is identified in the Kincardine Official Plan as a hazardous site). Though the Applicant had a Traffic Impact Study (TIS) completed that concluded that the intersection would not be negatively impacted by the development, the traffic results were impaired due to reduced traffic stemming from Covid pandemic and projections in the TIS did not account for the projected traffic growth from both the Kincardine hospital redevelopment project nor residential home growth within 2 kms of the intersection.

• The Municipality of Kincardine presented a draft re-design of the intersection that was not part of the development planning application nor shared in advance of the September, 2021 Committee of the Whole meeting with critical parties that would be impacted by any change in the intersection, including the hospital, medical centre and Women’s House. The planning application was approved without any validation by an accurate TIS being completed that the draft re-design of the intersection would eliminate any traffic congestion.

6. Does the Municipality of Kincardine have the right to grant approval for a development knowing that the Appellant and Applicant are not in agreement on the location of the property line separating 7 Mount Forest from 1183 Queen Street that may impact the location of the development relative to the property line.

ATTACHMENT 3

ORDER OF EVIDENCE

1. Opening Statements

2. Summary Overview by Planner

3. Appellant, Douglas Harris

4. Respondent, Municipality of Kincardine

5. Applicant, 12353865 Canada Inc.

6. Appellant, Douglas Harris (Reply, if any)

7. Closing Arguments