Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 7, 2022
CASE NO(S).: OLT-22-002958
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Bridgebrook Corporation
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Reference Number: OPA 66
Property Address: 7370 Centre Road
Municipality/UT: Uxbridge/Durham
OLT Case No: OLT-22-002958
OLT Lead Case No: OLT-22-002958
OLT Case Name: Bridgebrook Corporation v Uxbridge (Township)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Bridgebrook Corporation
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Reference Number: ZBA 2021-03
Property Address: 7370 Centre Road
Municipality/UT: Uxbridge/Durham
OLT Case No: OLT-22-002959
OLT Lead Case No: OLT-22-002958
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Bridgebrook Corporation
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Reference Number: ROPA 2021-005
Property Address: 7370 Centre Road
Municipality/UT: Uxbridge/Durham
OLT Case No: OLT-22-003735
OLT Lead Case No: OLT-22-002958
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Bridgebrook Corporation
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Reference Number: S-U-2021-01
Property Address: 7370 Centre Road
Municipality/UT: Uxbridge/Durham
OLT Case No: OLT-22-003736
OLT Lead Case No: OLT-22-002958
Heard: September 1, 2022 by Video Hearing (“VH”)
APPEARANCES:
Parties
Counsel/Representative*
Bridgebrook Corporation (“Applicant”)
M. Flowers / G. O’Brien
Regional Municipality of Durham (“Region”)
K. Ryan/ R. Woon
Township of Uxbridge (“Township”)
M. Joblin
825665 Ontario Inc. 1855040 Ontario Inc. 1922889 Ontario Inc. 1409666 Ontario Inc. (collectively “Headwater Farms”)
J. Shapira
Mason Homes Limited
J. Lanctot
South Reach Developments Limited
G. Mahoney*
MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON SEPTEMBER 1, 2022, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal had before it four appeals for failure to make a decision concerning: a Regional Official Plan Amendment (“ROPA”), a Township Official Plan Amendment (“LOPA”), a Township Zoning By-law Amendment (“ZBA”) and a Draft Plan of Subdivision (“Draft Plan”) relating to the lands known municipally as 7370 Centre Road (“Subject Lands”).
2The Tribunal held a Case Management Conference (“CMC”) at which time it dealt with three requests for party and one request for participant status, a request for a Motion date, submissions on a draft Procedural Order (“PO”), and a request for a three or four week hearing on the merits.
3For the reasons set out below, the Tribunal granted the requests for party and participant status, set a two day Motion to commence on Thursday November 24, 2022, gave directions on the preparation of a draft PO, and set a provisional four week hearing to commence Monday January 15, 2024.
DECISION
4The Subject Lands are located in the northwest portion of the Township within the settlement area and are designated as “Future Residential” and Special Study Area 6 in the Region’s OP. The purpose of the ROPA, the LOPA, the ZBA and the Draft Plan is to redesignate and rezone the Subject Lands for residential purposes and a 588 unit plan of subdivision.
5As the respective municipal authorities had not made decisions on the development applications within the statutory time frames, all four matters were appealed to the Tribunal.
6For administrative purposes, all four matters were heard together.
REQUESTS FOR PARTY STATUS
7At the CMC the Tribunal heard three requests for party status: first from Headwater Farms, then Mason Homes Limited and finally South Reach Developments Limited.
8Headwater Farms has lands that are located across the road from the Subject Lands, and had made a written submission with regard to the proposed development raising concerns with regard to compatibility between the existing agricultural use and the proposed residential use. While counsel for the Applicant expressed concern about granting party status to an agricultural use, as his client’s lands were within the Township settlement area and designated Future Residential, counsel for the Township pointed out that Issue No. 16 on the Township’s draft issues list raised the issue as to whether the Draft Plan appropriately minimized potential impacts on directly abutting agricultural operations.
9The Tribunal granted party status to Headwater Farms on the basis of proximity and on the issue of land use compatibility.
10Whereas Headwater Farms is located to the west of the Subject Lands, Mason Homes Limited similarly is adjacent but to the east. Akin to the Subject Lands, the land of Mason Homes Limited is the only other property in the northwest portion of the Township that is within Phase 2 for servicing, and as servicing for the Phase 2 lands will be an issue for the Subject Lands, such matters will also affect the lands of Mason Homes Limited.
11The Tribunal granted party status to Mason Homes Limited based on its proximity and similar interest with regard to Phase 2 servicing.
12Finally the Tribunal heard a request for party status from South Reach Developments Limited whose lands are the last property designated in Phase 2 for servicing, but whose lands are located in the southeast portion of the Township. Clearly due to lack of proximity there would be no issues with regard to subdivision design, but South Reach Developments Limited is the only other landowner within Phase 2 for servicing and obviously has an interest with regard to how servicing within Phase 2 will be dealt with.
13The Tribunal granted South Reach Developments Limited party status but on the limited basis that its issues for the hearing would be strictly restricted to servicing and phasing only.
PARTICIPANT
14The Tribunal had one (oral) request for participant status from Trevor Winter a nearby resident who had been in direct contact with counsel for the Applicant. On consent of the Applicant and all other parties, Mr. Winter was granted participant status.
ALTERNATIVE DISPUTE RESOLUTION/MEDIATION
15The Tribunal in its opening remarks asked counsel to provide a status update concerning alternative dispute resolution/mediation.
16All of the parties reported that they were open to it, but indicated that there were some threshold issues that needed to be addressed first, and that pending that decision the issue could be revisited.
CONSOLIDATION
17The Tribunal also asked counsel to comment as to whether the four matters should be consolidated pursuant to Rule 16 of the Tribunal’s Rules of Practice and Procedure.
18While counsel for the Township submitted that as a Motion date for a proposed phased hearing would be sought, that such a decision might best be left for the future.
19As the matters are now administratively being heard together, and in light of the Township Motion dealt with below, the Tribunal did not make a decision on consolidation, and as such the four matters will continue to be administratively heard together.
DRAFT PROCEDURAL ORDER
20Counsel for the Applicant had prepared and circulated a draft Procedural Order and requested that the Township and the Region provide their issues.
21Counsel for the Township provided a set of draft issues for both the Township and the Region at 11:20 p.m. on August 31, 2022, (the day before the CMC).
22As noted above, in addition to the statutory parties, three new parties were added at the CMC.
23In order to finalize a draft PO, the Tribunal directed that the counsel for the Applicant was tasked with the responsibility of preparing the next version of the draft PO.
24The Tribunal then directed that the parties shall provide their issues to counsel for the Applicant on or before September 16, 2022, and counsel for the Applicant would update the draft PO with the issues of the parties and then with the consent of the parties provide the revised draft PO and Issues List to the Tribunal’s Case Coordinator on or before September 23, 2022 for consideration by the Tribunal.
25The Tribunal also directed text revisions to paragraphs 10 and 21 from Exhibit 3 to reinsert the original PO template language, such that there shall be mandatory meetings of all like experts who shall prepare and file Statement(s) of Agreed Facts, and that all filings shall be provided to the Tribunal in both electronic and hard copy.
MOTION REQUEST
26The Township requested a hearing date for a Motion with regard to the Official Plan policies relating to the Phase 2 lands and their servicing. The servicing, it was submitted, was a threshold issue that should be determined by the Tribunal in a recommended phased hearing approach before launching into a full hearing dealing with inter alia other official plan, zoning and subdivision design issues etc.
27Prior to the CMC, counsel for the Township had broached a phase hearing with counsel for the Applicant, who did not agree, and advised that if the Township sought to a phased hearing, it should bring a Motion for a phased hearing.
28While counsel for the Applicant was not supportive of a phased hearing, it appeared to the Tribunal that counsel was more concerned with regard to setting a hearing date than the Motion, as the failure to get a hearing date would in his mind be much more prejudicial to his client.
29As servicing (or the lack thereof) appeared to the Tribunal to be a fundamental issue, the Tribunal set (in an abundance of caution due to the three new parties), a two day motion to be heard on Thursday November 24, 2022 commencing at 10 a.m. by VH.
30Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/656004293
Audio-only telephone line:+1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889
Access code: 656-004-293
31Parties 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 at: https://app.gotomeeting.com/home.html
32Persons 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 provided above.
33Individuals 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.
34There will be no further notice.
35I am not seized of the motion.
36For the Motion, the Tribunal provided these directions:
a. The Township shall serve and file its Motion Record 45 days in advance of the Motion hearing date;
b. Any party in support of the Township Motion shall serve and file its Response 40 days in advance of the motion hearing date;
c. Other Responses shall be served and filed 25 days in advance of the motion hearing date;
d. The Reply by the Township shall be served and filed 15 days in advance of the Motion hearing date;
e. This timetable is to enable sufficient time for any required cross-examinations and preparation of transcripts prior to the Motion hearing date, and if there are transcripts arising out of the cross-examination, they shall be forthwith provided to the Tribunal; and
f. All materials provided to the Tribunal shall be in both electronic and hard copy.
HEARING ON THE MERITS
37Counsel for the Applicant sought a three to four week hearing on the merits to be set down for late 2023 or early 2024.
38Counsel for the Township and the Region submitted that it would be premature to set a date for a hearing on the merits in light of the Motion for a phased hearing. Other parties had no position on setting a hearing date.
39Counsel for the Applicant submitted that if a hearing date were not set, and the Motion were not successful, his client would be prejudiced by a considerable lapse in time in terms of getting a hearing date. He submitted that the Tribunal should set a “provisional” hearing for three to four weeks, and that if the Township’s Motion were successful, and if the hearing were to proceed in a phased manner, then the Tribunal would be able to reduce a number of days from the hearing and that there would be ample time for the Tribunal to be able to reassign those hearing days because of the lead time involved.
40To the Tribunal, the Subject Lands are located within the Township’s settlement area and are designated Future Residential, and that if the Tribunal were to set a three or four week hearing now on a provisional basis, there would be no real prejudice to any party. If the Township were unsuccessful in its Motion, the hearing would proceed as scheduled. If the Township’s Motion were successful, then the hearing would be heard in a phased manner and the number of days for the hearing reduced and then reassigned to other matters waiting to be heard.
41Accordingly the Tribunal will in an abundance of caution set on a provisional basis, a four week hearing for Monday January 15, 2024 commencing at 10 a.m. by VH.
42Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/656004293
Audio-only telephone line:+1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889
Access code: 656-004-293
43Parties 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 at: https://app.gotomeeting.com/home.html
44Persons 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 provided above.
45Individuals 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.
46There will be no further notice.
47I am not seized.
48Scheduling permitting, I may be spoken to for case management purposes.
49This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
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.