Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 25, 2023

CASE NO(S).: OLT-23-000404

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

Appellant: Kevin O’Leary

Applicant: John and Patricia Scherrer

Subject: Zoning By-law Amendment

Description: Zoning By-law Amendment to rezone the lands to fulfill a condition of Consent Application

Reference Number: R-2023-0003-H

Property Address: 17B Bluebird Road

Municipality/UT: Township of Seguin

OLT Case No.: OLT-23-000404

OLT Lead Case No.: OLT-23-000404

OLT Case Name: O'Leary v. Seguin (Township)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Marc Kemmerer

Request for: Request for directions to determine appeal validity/validity of appeal

Heard: August 08, 2023 in writing

APPEARANCES:

Parties	Counsel
Terence Thomas, Kevin O’Leary and Linda O’Leary (“Appellants”)	M. Kemmerer
Edward John Scherrer, Patricia M. Scherrer (“Applicants”)	R. Cheeseman

DECISION DELIVERED BY WILLIAM MIDDLETON AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter involved a dispute as to the validity of an appeal commenced by the Appellants in respect of Zoning By-law Amendment By-law No. 2023-034 (ZBA) enacted by the Township of Seguin (“Township”) on April 3, 2023. Prior to the ZBA, the Township also approved a consent severance (“Severance”), but it was unclear from the initial motion materials submitted by the Appellants whether they were also seeking to appeal the Severance approval.

2The ZBA was directed toward the zoning of the property adjacent to the Appellants’ property in the Township, and essentially facilitated land access to the Applicants’ property located at 17B Bluebird Road in the Township, in combination with the Severance.

3The Tribunal requested clarification from the Appellants’ counsel who indicated by way of correspondence on September 12, 2023:

My clients are not appealing the consent approval, provided that the Township or counsel for the applicant confirms that access to the new lot is not to be over my clients’ lands.

The Tribunal accepts this communication as confirmation that the Severance is not an issue on this motion. However, in the absence of any evidence and specific submissions, the Tribunal is not prepared to impose the proposed ‘condition’ described above by the Appellants’ counsel. Moreover, matters of easements and rights-of-way are not generally determined or enforced by the Tribunal.

4The materials before the Tribunal for this written motion were:

(a) June 1, 2023, Affidavit of the Township of Seguin / Approval Authority;

(b) June 12, 2023 letter to the Appellants from the Ontario Land Tribunal;

(c) Motion Record of the Appellants, comprising 48 pages, dated July 21, 2023;

(d) Responding Motion Record of the Applicants, comprising 33 pages, dated August 4, 2023; and

(e) Reply Submission by Email of the Appellants, comprising two pages dated August 8, 2023;

5Several issues arose from the Parties’ written submissions, and the Tribunal requested supplementary submissions from the Parties’ counsel on August 31, 2023, and also asked the Parties to consider certain jurisprudence. As a result, the following additional materials were received from counsel for the Parties:

(a) Supplementary Responding Motion Record, comprising of 52 pages, dated September 5, 2023; and

(b) Further written submissions of both Parties by Email, comprising of seven pages, ending on September 20, 2023.

ARGUMENTS OF THE PARTIES / ANALYSIS: THE MOTION MUST BE DISMISSED

6In their Notice of Motion, the Appellants seek an Order:

…Declaring that the 2 May 2003 appeal…of Township of Seguin…Zoning By-law 2023-034…filed to the Tribunal by Mr. and Mrs. O’Leary…is valid and that the Appeal should proceed to a full hearing on the merits…

7As grounds in support of their Motion, the Appellants argue:

a) …[Appellants]…are the owner of lands in the Township of Seguin known municipally as 101D Islandview Road… (“Appellants’ Lands”). Their property is located within 120 metres of 17B Bluebird Road which is the property subject to the Appeal (the “Subject Lands”);

b) In late 2021 John Scherrer, Rob Sutherland and Michael Pollard together applied to the Township to create a new lot to the south of the Appellants ' Lands through a severance and a lot addition (the “Consent”). The purpose of the Consent was to find an alternate access to the lands owned by Mr. Scherrer after the Appellants would not afford him access over their lands;

c) The Consent was approved by Township Council…in January of 2022. Notice of the proposed Consent and the approval of same was not provided to the Appellants. As a result, they could not provide any submissions on the Consent;

d) As a condition of the Consent Mr. Scherrer, as the owner of the new lot , was required to go through a rezoning to ensure that the setbacks from Lake Joseph are 30 metres for both the sewage system and driveway. This is appropriate from an environmental perspective and was derived from the 11 February 2020 Riverstone Environmental Solutions Site Evaluation Report (SER) submitted by Mr. Scherrer in support of the Consent application. The SER recommended several other mitigation measures to ensure that there are no negative impacts from the development of the new lot on water quality and fish habitat (the “Environmental Protections”);

e) The Township did not secure the Environmental Protections through the approval of the By-law when it was passed by Township Council on 3 April 2023. The By-law does not therefore conform to the Natural Environment and Waterfront Areas policies of the Township Official Plan;

f) The Appellants were not made aware of the proposed rezoning or the draft By-law prior to its passage. They did not receive the notice of the complete application or of the public meeting for the By-law. If they had received those notices, they would have made submissions to Township Council on the By-law;

g) The Appellants could not unfortunately comply with the strict requirements of section 34(19) as they did not receive the statutory notices regarding the proposed rezoning; and

h) Creating and rezoning a new lot for the purposes of road access without appropriate concern for the environmental impacts of the proposal does, it is submitted, not represent appropriate planning. The Appellants are prepared to bring forth expert planning opinion evidence to support their concerns and to ensure that the Subject Lands are developed in a way that conforms to the Township Official Plan. The hearing of the merits would only take a day or two and so would be an expeditious use of the Tribunal…It is submitted that hearing the evidence and arriving at such a result would be in the public interest. Conversely, it would be of great prejudice to the Appellants and contrary to the intent of the Planning Act that the Appeal not be permitted to proceed to a hearing…

[all of the above emphasis added]

8The Applicants, presumably also on behalf of the Township, responded by maintaining that the Township had met the requirements under subsections 34(12) and 34(13) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”) which states:

Information and public meeting; open house in certain circumstances

(12) Before passing a by-law under this section, except a by-law passed pursuant to an order of the Tribunal made under subsection (26),

(a) the council shall ensure that,

(i) sufficient information and material is made available to enable the public to understand generally the zoning proposal that is being considered by the council, and

(ii) at least one public meeting is held for the purpose of giving the public an opportunity to make representations in respect of the proposed by-law; and

(b) in the case of a by-law that is required by subsection 26 (9) or is related to a development permit system, the council shall ensure that at least one open house is held for the purpose of giving the public an opportunity to review and ask questions about the information and material made available under subclause (a) (i). 2006, c. 23, s. 15 (6); 2009, c. 33, Sched. 21, s. 10 (2); 2017, c. 23, Sched. 3, s. 10 (3).

Notice

(13) Notice of the public meeting required under subclause (12) (a) (ii) and of the open house, if any, required by clause (12) (b),

(a) shall be given to the prescribed persons and public bodies, in the prescribed manner; and

(b) shall be accompanied by the prescribed information. 2006, c. 23, s. 15 (6).

9The Applicants further point out that the Appellants have not disputed that the requirements of subsections 34(12) and 34(13) of the Act were met or that there was some alleged ‘defect’ in the form and/or content of the public notice given. Rather, the Appellants simply state that, as set out in the supporting Affidavit of Mr. O’Leary:

The Consent was approved by Township Council (“Council”) in January of 2022. We did not receive notice of the Consent or the approval by Council as we are not within 60 metres of the Subject Lands… I have reviewed the 1 June 2023 affidavit of the Township Director of Planning, Taylor Elgie, regarding the provision of statutory notice…However, as set out in the Notice of Appeal I filed…we were not made aware of the proposed rezoning or the draft zoning by-law. Specifically, we did not receive the notice of complete application or the public meeting. If we had received those notices, we would have made submissions to Township Council on the rezoning…

[above emphasis added]

10The Applicants point out that subsection 34(19) of the Act is very specific about who is able to appeal – that provision states:

Appeal to Tribunal

(19) Not later than 20 days after the day that the giving of notice as required by subsection (18) is completed, any of the following may appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal:

1. The applicant.

2. A person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.

3. The Minister. 2006, c. 23, s. 15 (10); 2017, c. 23, Sched. 3, s. 10 (4); 2019, c. 9, Sched. 12, s. 6 (4); 2021, c. 4, Sched. 6, s. 80 (1).

Same

(19.0.1) If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document. 2019, c. 9, Sched. 12, s. 6 (5).

[above emphasis added]

11The Applicant argues that since the subsection34(12) and subsection 34(13) notice requirements were met, and since the Appellants did not make: “…oral submissions at a public meeting or written submissions to the council...” of the Township, then the Appellants have no standing to appeal the Zoning By-law.

12The Appellants argue that the Tribunal has the overriding discretion to allow their appeal to proceed, notwithstanding the wording in subsection 34(19) of the Act. In that regard, they rely on subsection 12(1) of the Ontario Land Tribunal Act, S.O. 2021 c. 4, Sched. 6 (“OLTA”) which provides as follows:

Practices and procedures

12 (1) The Tribunal shall dispose of proceedings in accordance with any practices and procedures that are required under this or any other Act, subject to subsection (3).

Fair, just and expeditious resolution

(2) The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.

Similarly, the Appellants refer to those provisions of the OLT Rules of Practice and Procedure (“Rules”) which reiterate the principles expressed in the above noted language from OLTA:

1.3 Interpretation of the Rules These Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings. …

1.4 Matters Not Dealt With in the Rules The Tribunal may at any time in a proceeding before it make orders and direct practices and procedures that offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding and may exercise any of its powers under the OLT Act, the SPPA, or other applicable legislation

1.6 Tribunal May Exempt From Rules The Tribunal may grant all necessary exceptions from these Rules or from any procedural order, or grant other relief as it considers necessary and appropriate, to ensure that the real questions in issue are determined in a fair, just, expeditious and cost-effective manner.

[above emphasis added]

13The Tribunal notes that Rule 5.5 of the OLT Rules of Practice and Procedure (“Rules”) is also relevant here, since it was the exercise of authority under that provision which led to the Tribunal letter of June 12, 2023 which in turn led to the Appellants’ Motion. Rule 5.5 of the Rules states that:

5.5 Dispute Over Statutory Requirements to Appeal Where applicable, a Municipal Clerk or approval authority whose decision or non-decision is the subject of the matter shall forward the record to the Registrar if there is a dispute as to whether an appeal, or purported appeal, of a decision or non-decision satisfies any applicable legislative requirements. The Tribunal shall determine the applicable legislative requirements necessary for a person to qualify as an appellant and decide if the matter in dispute is a proper appeal. The Tribunal may direct the Municipal Clerk or relevant approval authority to supplement the information provided should the Tribunal determine certain information is necessary for it to determine the extent of its jurisdiction over the matter in dispute. [above emphasis added]

14In the Tribunal’s view, Rule 5.5 of the Rules clearly describes the Tribunal’s authority and obligation to examine whether there is a statutory basis for the standing of an appellant to pursue an appeal. This is obviously the situation presented by this Motion.

15Boiled down to its essence, the Appellants’ argument is that the Tribunal ought to exercise its inherent jurisdiction under OLTA to determine the relevant issues in the most expeditious, cost-effective, fair and just manner – notwithstanding the detailed provisions set out in subsection 34(19) of the Act. Indeed, in his last written submission, counsel for the Appellants maintains that:

…In this case my clients, as the Tribunal is aware, did not receive the notice that was sent out. If they had they would have made submissions to Township Council on the by-law. Accordingly the Murphy and Sheldrake cases remain on point: it would be procedurally unfair and a denial of natural justice to deny my clients the ability to meet the statutory requirements. The Tribunal has the statutory ability to correct this situation and to allow the appeal to proceed to a hearing on the merits…

[above emphasis added]

16In this Tribunal’s view, the Appellants’ argument cannot succeed, and is contrary to the express language of subsection 34(19) of the Act – and to the applicable jurisprudence that counsel for the Appellants summarily dismisses as ‘distinguishable’.

17In the recent case of Yerex v. CYM Toronto Acquisition LP (2019) O.N.S.C. 2862 (“Yerex”), the Divisional Court squarely considered subsection 34(19) of the Act and stated at paragraph [5] thereof:

…Section 34(19) of the Act provides that the only persons entitled to appeal a decision of City Council to amend a by-law are: (1) the applicant; (2) the Minister under the Act; and (3) “a person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.” It is not disputed that the Appellant attended the statutory public meeting as an organiser for the union of which he was a member, and which represented unionized workers in the hotel, at the time. It is also not disputed that the Appellant did not present oral submissions at the meeting nor did he file written submissions to City Council on the proposed by-law amendments…

[above emphasis added]

18The Tribunal asked for supplementary submissions concerning Yerex from counsel for both Parties, and the Appellants’ counsel simply stated:

…The cases provided by the Tribunal to consider (thank you for those) are not on point for this appeal…in the Yerex and Humberstone cases the appellants were aware of the process. In the former, the appellant even attended at the statutory meeting(s) as he had notice of same…

19The Tribunal disagrees with the position taken by counsel for the Appellants on the relevance and applicability of the Divisional Court’s determination in Yerex. While there were certainly other matters at issue in that case, – including whether appeals of two previous underlying Decisions of the Tribunal ought to be allowed, – there can be no doubt that the Court ruled upon the question of standing under subsection 34(19) of the Act. That ruling precludes the Appellants’ standing in this proceeding. The fact that the Appellants here claim not to have received notice of the public meeting duly convened to consider the ZBA, does not render the Court’s ruling in Yerex inapplicable.

20Certainly, if the Appellants had successfully demonstrated that proper notice of the public meeting in the circumstances of this case had not been provided, then the situation may have given rise to additional considerations. However, the Appellants have not taken such a position. Moreover, the Tribunal asked for additional evidence concerning how the public meeting notice was provided, which led to a further affidavit from Mr. Taylor Elgie dated September 1, 2023, being delivered in the Applicant’s Supplementary Responding Motion Record. That affidavit satisfied the Tribunal that there was no defect or inadequacy in the public notice. In any event, the Appellants’ counsel made no submission at all concerning this second Affidavit of Mr. Elgie and did not dispute the issue of whether proper public notice had been provided.

21There are many examples of prior Tribunal rulings on the interpretation of subsection 34(19) of the Act that are consistent with the Divisional Court’s determination in Yerex, including the four Decisions sent to counsel for both Parties in this Tribunal’s request for further submissions: Kanata Research Park v. Ottawa [2008] O.M.B.D. No. 1048; Re Toronto Zoning By-law No. 776-2002 [2004] O.M.B.D. No. 81; Humberstone v. Halton Hills [2017] O.M.B.D. No. 1298; and Morrison v. Orangeville [2014] O.M.B.D. No. 107. Once again, the Tribunal is unpersuaded by the attempts made by Appellants’ counsel in his further email submissions to presumably distinguish those cases.

22There is no authority for the proposition put forward by counsel for the Appellant that the Tribunal has the discretionary power under the OLTA to, in effect, ‘override’ the express language of the Legislature contained in subsection 34(19) of the Act. The two cases relied upon by Appellants’ counsel simply do not support this contention: Murphy v. Casselman (1994) CarswellOnt 5037 (OMB) (“Murphy”); and Sheldrake v. Springwater (Township) (2015) July 24, 2015 LPAT Case No. PL141449 (“Sheldrake”).

23In Murphy, the determination by the OMB was based on its finding that the public meeting notice did not meet the statutory requirements – as noted above, this was not an argument made by the Appellants here, and would not be supported by the evidence in any event. The Appellants’ counsel apparently relies on comments made to the effect that the Appellants in Murphy did not receive notice, but clearly the Board’s determination was that this was caused or contributed to by the defective notice. Such comments cannot reasonably be elevated to stand for the principle that “if an Appellant doesn’t receive notice, standing is presumed notwithstanding subsection 34(19) of the Planning Act”.

24In paragraph [16] of Murphy, the Board stated:

…With reference to the notification issue, the Board accepts the residents' submissions as well as Mr. Bacon's reaction to the residents' evidence as indicating that one of the fundamental goals of the Plan has not been achieved in this situation, in that the residents' have not been given an opportunity to actively participate in the processing of this planning application. The Board agrees that the notices placed in the two newspapers failed to clearly indicate exactly what was being proposed on the subject site, while the map and the legal description did not easily refer the readers to the subject property on St. Isidore Street.

[above emphasis added]

25Sheldrake is another ‘defective public notice case’. In this Decision, the Tribunal noted:

In this situation, there has never been public notice of designations or policies being contemplated for the Subject Property...Since the Appellants had no prior notice of what designations or policies were being considered for the subject property, it appears unfair to deny them any meaningful ability to meet the statutory requirements... and then deny them the right of appeal. It is unreasonable to expect that, without either of these pieces of information — notice of a pending decision or what the proposed decision was to be — that they could have fulfilled the statutory requirement...

[above emphasis added]

26Once again, the Tribunal’s general comments in Sheldrake noted in paragraph [25] do not amount to a ruling that subsection 34(19) of the Act can be ignored.

27The Tribunal’s Decision cited by the Applicants in Coalition For Rural Ontario Environmental Protection v. Hamilton (City) 2016 CarswellOnt 7477, 89 O.M.B.R. 185 (“Coalition”), unlike Murphy and Sheldrake, is on point with the circumstances of this case. It is of course also entirely consistent with the jurisprudence discussed above in paragraphs [17] and [21].

28In Coalition, the Tribunal held:

The ZB was appealed, by various interests, to the Ontario Municipal Board ("the Board"). In the case of one appeal, by 3727 Highway Six Inc. ("the Appellant"), the City challenged the standing of that appellant to bring its appeal under the Planning Act ("the Act"), because it had made no previous oral or written submissions to a public meeting or Council. This Appellant brought a motion, calling on the Board to recognize its standing to pursue its appeal… Although counsel for the Appellant argued eloquently that this Appellant should not be disqualified, the Board is compelled to agree with the City. The terms of the statute are clear. The Act does not authorize this Appellant's appeal to proceed…

… It was also undisputed that the City had published notice of the ZB in a newspaper of general circulation, the Hamilton Spectator. However, according to the affidavit of the Appellant's principal, I did not observe any of these notices. The notice of the Planning Committee meeting was never brought to my attention....The notice of the adoption and approval of the RHOPA and of the By-law was brought to my attention by a third party some two weeks after it was published in the Hamilton Spectator... I do not receive the Hamilton Spectator at my business locations or my residence. I did not have the opportunity to comply with the requirements of section 34(19) of the Planning Act, as I did not receive notice of either of the Planning Committee meetings… In short, this company did not respond to the public notice because its principal said he did not see it…Unfortunately for the Appellant, the above statutory provision provides no exemption for that scenario. On its face, the failure to make submissions would have been enough to disqualify this Appellant.

[above emphasis added]

29In conclusion, the Tribunal is of the view that neither the OLTA or its Rules empower it, as a matter of pure discretion, to in effect, ignore the express provisions of subsection 34(19) of the Act.

ORDER

30THE TRIBUNAL ORDERS THAT the Appellants’ Motion is dismissed.

“William Middleton”

WILLIAM MIDDLETON

VICE CHAIR

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.