Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 20, 2023
CASE NO(S).: OLT-23-000815
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: King’s Bay Golf Club Limited
Subject: Request to amend the Official Plan– failure to adopt the requested amendment
Description: Proposed redevelopment of existing golf course into 44 lots for single detached dwellings and open space
Reference Number: D01-2022-003
Property Address: 27 Stub Road
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-23-000815
OLT Lead Case No.: OLT-23-000815
OLT Case Name: King’s Bay Golf Club Limited v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: King’s Bay Golf Club Limited
Subject: Zoning By-law Amendment Application – failure to make a decision
Description: Proposed redevelopment of existing golf course into 44 lots for single detached dwellings and open space
Reference Number: D05-2022-001
Property Address: 27 Stub Road
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-23-000816
OLT Lead Case No.: OLT-23-000815
OLT Case Name: King’s Bay Golf Club Limited v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: King’s Bay Golf Club Limited
Subject: Proposed Plan of Subdivision – failure to make a decision
Description: Proposed redevelopment of existing golf course into 44 lots for single detached dwellings
Reference Number: D06-2022-001
Property Address: 27 Stub Road
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-23-000817
OLT Lead Case No.: OLT-23-000815
OLT Case Name: King’s Bay Golf Club Limited v. Kawartha Lakes (City)
Heard: November 21, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
King’s Bay Golf Club Limited
S. Ferri A. Sanichara M. Ng (in absentia)
City of Kawartha Lakes
S. D’Agostino D. Germain D. Koev (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON NOVEMBER 21, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the first Case Management Conference (“CMC”) convened for the purpose of organizing appeals by King’s Bay Golf Club Limited (“Applicant”/”Appellant”) against the failure of the City of Kawartha Lakes (“City”) to make a decision on applications for an Official Plan Amendment, Zoning By-law Amendment and Draft Plan of Subdivision in relation to the property located at 27 Stubb Road (“subject property”).
2The Applicant proposes to redevelop the lands formerly known as the King’s Bay Golf Course with 46 single detached residential dwelling units, three open space blocks and two open space parkland blocks.
3The Tribunal received an Affidavit of Service sworn by Deanna Nada on October 23, 2023, as well as email confirmation that, following the return of six copies of the Notice, best efforts were made to effect service again to those six addresses by courier. After hearing no concerns, the Tribunal is satisfied that Notice was properly given, and no further Notice will be required.
STATUS REQUESTS
4The Tribunal received no requests for Party status in advance of the CMC, and no individuals appeared at the Hearing event seeking such status.
5A request for Participant status was received from Kawartha Conservation. As a commenting agency which reviewed and provided comments upon the initial applications, Kawartha Conservation indicated that it is currently in the process of reviewing a subsequent submission. The Tribunal was advised that, as the subject property is surrounded by wetlands, the Nonquon River, Lake Scugog, floodplains and steep slopes, any changes to the submission may result in the proposed development being impacted by natural hazards. With no objections from counsel, the Tribunal granted the request, having been satisfied that so doing is in the public interest.
6The Tribunal also received requests for Participant status from the following:
a) Kings Bay Residents Association (“KBRA”), through its representative, John Zottola;
b) Mike Wilson (Like Minded Residents (“LMR”) Group)
c) Denise and Fred Elzinga
d) Jim and Angela Wakeford
e) Chris and Nancy Dares
f) Kevin & Charlene Casquenette
g) Carol and Jack Forde
h) Gary Gaudet and Barbara Federchuk
i) Steve Wilkins
j) Samantha King and Justin Mahal
k) David Hunt
7Mr. Zottola confirmed that the KBRA is incorporated, and agreed to provide proof of incorporation and written authorization to represent the association to the Case Coordinator, which he did following the CMC on November 29, 2023.
8Mr. Wilson confirmed that he seeks status as an individual, and that LMR is not an incorporated entity, but simply a group of local residents (including a number of other individuals seeking Participant status) that came together in opposition to the proposed development.
9It is important to note that, appended to the Participant status requests of the KBRA and Mr. Wilson, were reports from two different Registered Professional Planners offering land use planning opinions upon what could become issues for the Tribunal to decide at a later Hearing. In addition, many of the other written requests for Participant status referred to these reports and the opinions therein.
10Counsel for the City raised no objection to the granting of any of the above noted requests for Participant status. Counsel for the Applicant also raised no objection, subject to the caveat that his client reserves the right to object to and/or make submissions to the presiding panel as to the weight to be given to any written reports appended to the Participant statements.
11The Tribunal explained that Participants, as distinct from Parties, are restricted to providing written statements and are unable to present a case and call witnesses at a Hearing. The Tribunal further explained that, because reports such as those appended to the status requests of the KBRA and Mr. Wilson, which purport to offer land use planning opinions, cannot be authenticated or tested through cross-examination at a Hearing, the presiding Panel would determine what weight (if any) should be given to such reports and the opinions therein. Although it was pointed out that the planning report appended to Mr. Wilson’s request for status was initially shared at the public meeting and forms part of the Municipal Record, the Tribunal explained that without the author of the report being called as a witness, the above noted concerns would nevertheless remain.
12Both Mr. Zottola and Mr. Wilson indicated that they understood the difference between Party and Participant status and understood the Tribunal’s caution with respect to the planning reports appended to the request forms. Mr. Wilson confirmed that he continued to seek Participant status, as did Mr. Zottola on behalf of the KBRA. Both were granted status as Participants.
13The remainder of the Participant requests as set out above in paragraph [6] were also granted. However, the Tribunal noted that most, if not all, of the requests raised largely the same concerns and some seeking status as individual Participants also appeared to be members of the KBRA. It was explained that repetition does not improve the merit of an argument, nor does a Member or Panel presiding over a Hearing assign greater weight to a concern or argument based upon the number of times it appears in the Participant statements.
14For the purposes of efficiency and the avoidance of undue repetition, Mr. Zottola agreed to submit to the Tribunal a list of those Participants who are also members of the KBRA, which he did following the CMC. According to the records of the KBRA, the following individuals who were granted participant status at the CMC are also members of the KBRA. As such, they are directed to work with Mr. Zottola to ensure that their concerns are captured in one joint statement to be filed by the KBRA, rather than submitting individual participant statements.
a) Denise & Fred Elzinga
b) Jim & Angela Wakeford
c) Carol & Jack Forde
d) Steve Wilkins
e) Samantha King & Justin Mahal
f) David Hunt
15Acknowledging that the LMR is not an incorporated entity, the Tribunal will not direct, but rather, encourage those Participants who consider themselves a part of this group to work together with Mr. Wilson, to submit a joint statement outlining their collective concerns.
OPPORTUNITIES FOR SETTLEMENT
16The Tribunal raised the issue of opportunities for settlement, including the use of Tribunal-assisted mediation and was advised that a with-prejudice settlement offer has been made and the City is in the process of reviewing and considering same.
17Counsel indicated their awareness of the availability of Tribunal-assisted mediation but indicated that, at this stage, they do not have instructions to pursue same. Should the Parties wish to avail themselves of this resource in the future, they may contact the assigned case coordinator for assistance.
HEARING – INSTRUCTIONS FOR PARTIES AND OBSERVERS
18Based upon the anticipated Issues and number of witnesses, the Parties jointly requested a 10-day Hearing, but based upon the available dates in the Tribunal’s calendar, agreed to a nine (9)-day Video Hearing, which will commence at 10 a.m. on Tuesday, May 21, 2024.
19Unfortunately, this CMC was plagued by technical issues, the most trying of which were compromised audio feeds, which may have been a result of the number of interested observers accessing the Video meeting platform. In an effort to minimize strain on the platform, improve audio connections and operate more efficiently, the Tribunal convened a livestream of the Hearing event on YouTube for observers in the middle of the CMC.
20For the upcoming Hearing beginning on Tuesday, May 21, 2024, Parties, counsel and witnesses only are directed to access the Hearing via the gotomeeting platform, and 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:
GoToMeeting: https://meet.goto.com/996288525
Access Code: 996-288-525
21Parties 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.
22Persons 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): 1 888-455-1389 or +1 (647) 497-9391. The access code is as indicated above.
23Individuals 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.
24Those wishing to observe the hearing, including those with Participant status, are directed to use the following link to access a livestream of the Hearing event on YouTube:
YouTube Link: https://youtube.com/channel/UCxDAcq6BD8wgOUfSV-yGVRA
PROCEDURAL ORDER/ISSUES LIST
25Although a draft Procedural Order (“PO”), which included a relatively detailed Issues List (“IL”), was provided in advance of the CMC, the Parties indicated that they required some time to refine the Issues for the purposes of presenting a final draft for the Tribunal’s review and approval. The Parties were at odds with respect to the time required to do so. Counsel for the City requested that the Tribunal set a deadline of near the end of February for the receipt of a revised IL. In support of the request, he cited revisions to the applications, the recent receipt of technical reports agenda, and the need for a significant amount of time to review same and provide input on the IL.
26Counsel for the Applicant noted that there had already been a significant amount of delay as a result of the failure of the City to forward the Municipal Record to the Tribunal within the statutory timeline and noted that the amount of time requested by the City to provide input on a refined IL would be prejudicial to his client.
27In light of the Hearing date set and the upcoming Holidays, the Parties were ordered to submit a revised PO and IL for the Tribunal’s review and approval no later than Wednesday, January 3, 2024. The Parties were directed to work cooperatively in the interim to ensure that the City’s issues would be forwarded in a timely manner to counsel for the Applicant, who volunteered to revise the draft PO and IL, circulate for consent and submit to the Tribunal by the deadline.
28For the convenience of the Participants, based upon the Hearing date scheduled, counsel for the Applicant calculated the deadline for the submission of written Participant statements, which will be reflected in the future revised PO. Participants are reminded to submit their written statements to the Tribunal ensuring that they copy the Parties, on or before Monday, February 12, 2024.
OTHER MATTERS
29The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.
ORDER
30The case management directives set out above are so ordered.
31There will be no further notice and the Member is not seized, but, if necessary, may be available for further case management subject to the Tribunal’s calendar.
"S. Braun"
S. Braun
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.