Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 26, 2022
CASE NO(S).: OLT-22-003802
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Deanna Osborne
Appellant: Fernando Dias
Appellant: Michael Vecchio and others
Subject: Zoning By-law
Description: New Comprehensive Zoning
Reference Number: BL 1/2022
Property Address: City Wide
Municipality/UT: Thunder Bay/Thunder Bay
OLT Case No.: OLT-22-003802
OLT Lead Case No.: OLT-22-003802
OLT Case Name: Dias et al. v Thunder Bay (City)
PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Thunder Bay
Request for: Request for Directions
Heard: In writing
APPEARANCES:
Parties
Counsel*/Representative
City of Thunder Bay
Michael Grimaldi*
Deanna Osborne, Taras Kolomeychuck,
Stefan Huzan
Michael Vecchio, Fernando Dias
DECISION DELIVERED BY M. ARPINO AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This decision flows from a motion submitted by the City of Thunder Bay (“City”/ “Applicant”) pursuant to s. 34(31) of the Planning Act (“Act”).
2On April 11, 2022, the City passed Zoning By-law No. 1/2022 (“ZBA”), it is a new comprehensive zoning by-law which effects all of the properties within the geographic boundaries of the City. The ZBA replaces the City’s previous comprehensive zoning by-law.
3Deanna Osbourne, Taras Kolomeychuck, Michael Vecchio and Fernando Dias each appealed the ZBA (“Appellants”). The four appeals are the subject of this Motion.
4The City brings this Motion requesting an order allowing the ZBA to take effect while the Appellant’s appeals are pending.
SUBMISSIONS AND EVIDENCE
5In support of the Motion, the Applicant submitted sworn Affidavit evidence of Jillian Fazio, dated June 2, 2022, a land use planner employed by the City.
6The Tribunal previously deemed Ms. Fazio qualified to provide opinion evidence regarding land use planning matters in other cases before the Tribunal.
7The Appellants did not provide the Tribunal with a written response to this Motion.
The Osbourne Appeal
8The Osbourne Appeal relates specifically to the minimum lot frontage and required lot area for the properties known municipally as 3241 Fairview Avenue and 2270 Arthur Street West. Ms. Fazio’s Affidavit evidence states that the ZBA would not change the minimum lot frontage and lot area provisions applicable to those properties.
The Kolomeychuck Appeal
9The Kolomeychuck Appeal raises site-specific concerns relating to the property municipally known as 1705 Arthur Street West, specifically the failure of the ZBA to include the existing cemetery as a permitted use for the property.
10It is Ms. Fazio’s evidence that the current zoning of the property does not include a cemetery as a permitted use. It is her evidence that the ZBA would not change the permissions for the existing cemetery.
The Vecchio Appeal
11The Tribunal has Ms. Fazio’s Affidavit evidence that the Vecchio Appeal raises concerns about the failure of the ZBA to include residential uses in the list of permitted uses of the property known as 1059 Golf Links Road. It was her evidence that the ZBA would not change the existing residential use of that property.
The Dias Appeal
12Regarding the Dias Appeal, Ms. Fazio’s evidence is that while the ZBA changes the zoning classification for the properties along Hardisty Street North, the minimum setbacks are all either maintained or reduced from what was previously required. The Dias Appeal includes a concern that the ZBA increases the minimum landscaped area.
13The City submits that in general, the Appellants raise only site-specific concerns relating solely to the Appellants’ properties. The City asserts that on the whole, the ZBA does not change how those properties are treated.
RELIEF SOUGHT
14The City is seeking an order of the Tribunal pursuant to s. 34(31) of the Act declaring:
a. that By-law No. 1/2022, in its entirety, takes effect immediately;
b. in the alternative, that By-law No. 1/2022 (except for those provisions relating to landscaping areas on Hardisty Street) takes effects immediately; and
c. in the further alternative, declaring By-law No. 1/2022 (except for those provisions that specifically address the Appellants’ properties) takes effect immediately.
LAW AND ARGUEMENT
15Section 34(31) of the Act provides:
Unappealed portions
Despite subsection (30), before all of the appeals have been finally disposed of, the Tribunal may make an order providing that any part of the by-law not in issue in the appeal shall be deemed to have come into force on the day the by-law was passed.
16The City asserts that the purpose of s. 34(31) is to ensure appeals do not unduly delay the implementation of by-laws, which have been passed by a municipal council.
17The City argues that when interpreting s. 34(31), the Tribunal should consider the purposes of the Act as stated in s. 1.1 which provides:
The purposes of this Act are,
(f) to recognize the decision-making authority and accountability of municipal councils in planning.
18The City maintains that the Tribunal has adopted a test of prejudice in applying s. 34(31). As authority for this submission, the City refers to the decision of Member Tucci in Kingsridge Developments et. al. v. Kitchener (City) 2020 CarswellOnt 19698. The Tribunal allowed the motion for partial approval of a zoning by-law.
19At paragraph 18 of the decision, Member Tucci states “Further, the Tribunal agrees that due to the site-specific nature of the Appeal, there will be no prejudice to Mr. Wagner of the decision by the Tribunal.”
20The Tribunal Orders the rulings and directions contained in this Decision.
21The City also argues that when faced with a motion pursuant to s. 34(31), the Appellant bears the onus to provide compelling reasons why their appeal would be prejudiced if the ZBA were to come into force. As support for this assertion, the City refers to the case of Robitaille v. Hamilton (City) 2019 CarswellOnt 2195.
FINDINGS AND DECISION
22Sections 34(31) and 34(32) of the Act permit the Tribunal to issue an Order allowing a by-law to take effect prior to the final disposition of the Appellants’ appeals.
23The Tribunal accepts the assertion of the City that when faced with a motion pursuant to s. 34(31), the Appellants bear the onus to provide reasons why their appeals would be prejudiced if the ZBA were to come into force.
24The representative for the Appellants emailed the Case Coordinator on August 18, 2022; he confirmed that he has been retained by the Appellants. Mr. Huzan also confirmed that he received the Motion Record.
25In this case, the Appellants did not respond to the Motion. The Tribunal reviewed the Municipal Record regarding the appeals filed by the Appellants, and the Motion material submitted by the City. The Tribunal finds there is a complete lack of evidence regarding prejudice to the Appellants if the ZBA was effective.
26When exercising its jurisdiction pursuant to s. 34(31), the Tribunal must keep front of mind the purposes of the Act. Section 1.1 of the Act stipulates its purposes, it states:
(f) to recognize the decision-making authority and accountability of municipal councils in planning.
27The Tribunal finds that allowing the ZBA to come into force and take effect accords with the purposes of the Act.
ORDER
28THE TRIBUNAL ORDERS that pursuant to section 34(31) of the Planning Act, City of Thunder Bay By-law No. 1/2022 is in force and effect and deemed to have come into force on the day it was passed, namely, April 11, 2022.
29AND THE TRIBUNAL FURTHER ORDERS that the coming into force and effect of the Zoning By-law shall not have the effect of limiting future resolutions of the appeals of the Appellants.
“M. Arpino”
m. arpino
MEMBER
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.