Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 08, 2023
CASE NO(S).:
OLT-22-004128
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
BMO Trust Company
Subject:
Application to amend the Zoning By-law – Refusal of application
Description:
Proposes to demolish the existing dwelling and construct a new four storey dwelling and storage/utility building
Reference Number:
ZBA-52/21
Property Address:
1038 Bayview Avenue
Municipality/UT:
Muskoka Lakes/Muskoka
OLT Case No:
OLT-22-004128
OLT Lead Case No:
OLT-22-004128
OLT Case Name:
BMO Trust Company v. Muskoka Lakes (Township)
Heard:
January 11, 2023 by video hearing
APPEARANCES:
Parties
Counsel
BMO Trust Company
Harold Elston/Christie Gibson
Township of Muskoka Lakes
Ed Veldboom
MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON JANUARY 11, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the (“Tribunal”), was with respect to the appeals of the refusal of the Township of Muskoka Lakes (the “Township”) regarding an application to amend the Zoning By-law.
2The subject land contains a two-storey dwelling and a single storey boathouse with an associated dock.
3BMO Trust Company (the “Applicant”) proposes to demolish the existing dwelling and construct a new four-storey dwelling with an associated sundeck, an accessory fire egress tower attached to the dwelling via a breezeway, an accessory storage/utility building with an associated sundeck, a shed, an accessory photovoltaic array, and an accessory water tank.
4The purpose of By-law No. 2021-161 is to provide an exemption from Section 5.1.3 of By-law No. 2014-14, as amended, being the maximum permitted height of 35 feet for a dwelling. The height of the proposed dwelling is to be 55 feet.
5The purpose of By-law No. 2021-161 is also to provide an exemption from Section 5.1.3 of By-law No. 2014-14, as amended, being the maximum permitted height of 20 feet for an accessory building/structure. The proposed fire egress tower with an associated breezeway is to be 48 feet in height and the proposed storage/utility building is to be 26 feet in height.
6Planning Staff recommended the application be approved, subject to conditions.
7Town Council refused the application due to concerns regarding the proposed height of the dwelling and accessory structures.
8The purpose of the Case Management Conference (the “CMC”) was to receive status updates from all parties to organize a hearing of merits.
9The Appellant submitted an Affidavit of Service sworn by Kristin Vanderkruys-Hendry on December 1, 2022 that was marked as Exhibit 1.
10The Tribunal was presented with one request for Participant Status.
11Muskoka Lakes Association, represented by their Director and Vice President, Ken Pearce appeared before the Tribunal to seek Participant status. The Muskoka Lakes Association provided a Letter of Objection to Zoning By-law Amendment No. 52/21, regarding Zoning By-law No. 2021-161 dated April 8, 2022.
12The MLA is a volunteer membership-based organization representing more than 2,250 families advocating for responsible stewardship and enjoyment of the unique environment of the Muskoka Lakes.
13The Tribunal canvassed all Parties for any comments, there were no objections. The Tribunal granted Participant Status to Muskoka Lakes Association.
14The Tribunal heard that the Parties are seeking a four (4) day hearing.
15The Tribunal hereby schedules a hearing of the merits to these appeals commencing on Monday, June 19, 2023 at 10 a.m. Four (4) days have been set aside.
16Parties 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/765631861
Access code: 765-631-861
17Parties 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
18Persons 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: +1 (647) 497-9391 or Toll Free 1-888-455-1389. The access code is 765-631-861.
19Individuals 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.
20The Tribunal has received an updated Procedural Order and is herein attached as Attachment ”A” to this decision.
21No further notice will be given.
22The Member is not seized.
23So Orders the Tribunal.
“Carmine Tucci”
CARMINE TUCCI
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.
ATTACHMENT A
ISSUE DATE: CASE NO(S).: OLT-22-004128
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/ Appellant:
Muskoka Trust
Subject:
Application to amend the Zoning By-law – Refusal of Application
Description:
Proposal to demolish the existing dwelling and construct a new four-storey dwelling and storage/utility building
Reference Number:
ZBA-52/21
Property Address:
1038 Bayview Avenue
Municipality/UT:
Muskoka Lakes/Muskoka
OLT Case No.:
OLT-22-004128
OLT Lead Case No.:
OLT-22-004128
OLT Case Name:
Muskoka Trust v. Muskoka Lakes (Township)
PROCEDURAL ORDER
- 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
The video hearing will begin on June 19, 2023 at 10:00 a.m.
The length of the hearing is four 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. The procedural order deadlines are generally found in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2.
The issues are set out in the Issues List attached as Attachment 3. 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.
The order of evidence shall be as set out in Attachment 4 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.
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.
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
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 February 20, 2023 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.
Expert witnesses in the same field shall have a meeting on or before March 21, 2023 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 (if any) with the OLT case co-ordinator on or before March 31, 2023.
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.
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.
On or before April 20, 2023, 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.
On or before January 11, 2023, 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.
On or before May 15, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before May 30, 2023, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, June 2, 2023.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before June 2, 2023, 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.
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.
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 1
SUMMARY OF DATES
DATE
EVENT
February 21, 2023
Exchange of witness lists (names, disciplines and order to be called)
March 10, 2023
Last date to challenge identification of expert witnesses
March 21, 2023
Experts’ Meeting
March 31, 2023
Experts’ Agreed Statement of Facts and Issues (if any)
April 20, 2023
Exchange of Witness Statements, summoned witness outlines, and Expert Reports
May 5, 2023
Exchange of Reply Witness Statements (if any)
May 15, 2023
Parties to confirm if all hearing dates required
May 30, 2023
Exchange of visual evidence (if any)
June 2, 2023
Filing of Joint Document Book and Work Plan
June 19, 2023
Hearing commences
ATTACHMENT 2
LIST OF PARTIES/PARTICIPANTS
PARTIES
Muskoka Trust (Applicant/Appellant) H.G. Elston/Christie Gibson counsel@haroldelston.com/cgibson@cassels.com 705.443.8183/416.860.5229
The Township of Muskoka Lakes
Ed Veldboom
705.325.1326 (x237)
PARTICIPANT
- Muskoka Lakes Association Ken Pearce r.kenneth.pearce@gmail.com
416-476-4124
ATTACHMENT 3
ISSUES LIST
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. The parties also reserve the right to bring a motion regarding the appropriateness or relevance of the issues in advance of or at the hearing. The failure of either party to bring such a motion shall not imply consent to the issues as appropriate or relevant, or preclude either party from bringing related evidence or argument at the hearing.
THE TOWNSHIP OF MUSKOKA LAKES
Is the proposed zoning by-law amendment that would permit a main building to exceed the existing maximum height of 35 feet by 20 feet and two accessory buildings to exceed the existing maximum height of 20 feet by 6 feet and 28 feet respectively consistent with section 1.1.4.3 of the Provincial Policy Statement 2020?
Does the proposed zoning by-law amendment that would permit a main building to exceed the existing maximum height of 35 feet by 20 feet and two accessory buildings to exceed the existing maximum height of 20 feet by 6 feet and 28 feet respectively, conform with the Township’s Official Plan, particularly the following sections:
Section A: 3.1, 7.5 and 7.6
Section D.: 2.2.2, 2.2.3, 3.1.1, 3.2.1, 3.2.2, 3.2.11, 3.2.16, 3.2.22, 3.2.27, 3.2.33, 3.2.34, 4.1, 4.2.4, 4.3.1, 4.3.3, 18.2, 18.3
Section F: 1.6.4, 1.6.5 and 7.5
- Does the proposed zoning by-law amendment that would permit a main building to exceed the existing maximum height of 35 feet by 20 feet and two accessory buildings to exceed the existing maximum height of 20 feet by 6 feet and 28 feet respectively, represent good planning?
ATTACHMENT 4
ORDER OF EVIDENCE
Muskoka Trust
The Township of Muskoka Lakes
Muskoka Trust, in reply (if any)
ATTACHMENT 5
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.