OBD Developments Inc. et al. v. Georgian Bay (Township), 2023 CanLII 30833

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 11, 2023

CASE NO(S).: OLT-22-004481

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c.P. 13, as amended

Applicant/Appellant: OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc.

Subject: Conditions of approval of draft plan of subdivision

Description: Revisions to Draft Plan re: approval extensions, secondary access road and phasing/correcting unit counts

Reference Number: S2005-7

Property Address: Oak Bay Golf Marina Community

Municipality/UT: Georgian Bay/Muskoka

OLT Case No.: OLT-22-004481

OLT Lead Case No.: OLT-22-004481

OLT Case Name: OBD Developments Inc. et al. v. Georgian Bay (Township)

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c.P. 13, as amended

Subject: Conditions of approval of draft plan of subdivision

Description: Revisions to Draft Plan re: approval extensions, secondary access road and phasing/correcting unit counts

Reference Number: S2005-10

Property Address: Oak Bay Golf Marina Community

Municipality/UT: Georgian Bay/Muskoka

OLT Case No.: OLT-22-004482

OLT Lead Case No.: OLT-22-004481

Heard: March 8, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

OBD Developments Inc., OBM Marina Inc. and OBG Golf Inc.

L. Longo

Township of Georgian Bay

C. Léger

District of Muskoka

J. Clow

MEMORANDUM OF ORAL DECISION DELIVERED BY G.C.P. BISHOP AND P. TOMILIN ON MARCH 8, 2023 AND ORDER OF THE TRIBUNAL

1This was the second Case Management Conference (“CMC”) for the appeals brought by OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. (“Appellants”) regarding the conditions of draft Plan of Subdivisions approved by the District of Muskoka (“District”) relating to the Oak Bay Golf Marina Community located near Port Severn, in the Township of Georgian Bay (“Township”).

2At the CMC, the Tribunal was informed that Gerard Borean would no longer continue as co-counsel for the Appellants and that Leo Longo will take full carriage of their clients’ case.

3The Tribunal was in receipt of a draft Procedural Order (“PO”) and Issues List. Mr. Longo explained that the experts in each of the disciplines have met and formulated a matrix chart to assist in reviewing the various matters of Planning, Transportation, Transportation Servicing and potentially, Environmental issues. He noted that, although the Issues List was very rudimentary, the list of conditions of approval for the two Draft Plans of Subdivision in dispute, are listed.

4All Parties stated that they are encouraged by the discussions that have taken place to date and will continue to work toward refining and scoping the issues. The estimated maximum time required for the merit hearing is 10 days, but the Parties are hopeful that the numbers of days may be reduced.

5The Tribunal set down a ten (10) day video hearing, to commence on Monday, October 23, 2023, at 10 a.m. with access to this event is as follows:

https://meet.goto.com/278736685

Access code: 278-736-685

6Parties 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.

7Parties 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

8Persons 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- 455-1389or +1(647) 497-93 91. The access code is as indicated above.

9Individuals 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.

10With the date of the merit hearing set, the Parties have indicated that a final PO will be delivered in the next few days.

11The Tribunal is now in receipt of the PO. The Tribunal has reviewed and, with the following direction in paragraph 12 below, approved the PO and is appended as Schedule 1 to this Decision.

12At the CMC, the Tribunal did express concerns over such a rudimentary Issues List. After review of the Issues List contained within the PO, the Tribunal instructs the Parties to work together to formulate a more concise Issues List. The Tribunal understands the willingness for the Parties to keep working on reducing issues, but a more concise Issues List will be of benefit to the Tribunal. Given the timing around exchanges in the approved PO, the Tribunal directs the Parties to deliver a refined Issues List to the Tribunal no later than Friday, October 6, 2023. This will give the Parties ample time to focus in on the remaining Issues for the merit hearing.

13The Tribunal directives above are so Ordered.

14This Panel is not seized.

15There will be no further notice.

“G.C.P. Bishop”

G.C.P. BISHOP

ALTERNATE CHAIR

“P. Tomilin”

P. TOMILIN

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.

SCHEDULE 1

OLT Case No.: OLT-22-004481

ONTARIO LAND TRIBUNAL

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c.P. 13, as amended

Applicant/Appellant: OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc.

Subject: Conditions of approval of draft plan of subdivision

Description: Revisions to Draft Plan re: approval extensions, secondary access road and phasing/correcting unit counts

Reference Number: S2005-7

Property Address: Oak Bay Golf Marina Community

Municipality/UT: Georgian Bay/Muskoka

OLT Case No.: OLT-22-004481

OLT Lead Case No.: OLT-22-004481

OLT Case Name: OBD Developments Inc. et al. v. Georgian Bay (Township)

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c.P. 13, as amended

Subject: Conditions of approval of draft plan of subdivision

Description: Revisions to Draft Plan re: approval extensions, secondary access road and phasing/correcting unit counts

Reference Number: S2005-10

Property Address: Oak Bay Golf Marina Community

Municipality/UT: Georgian Bay/Muskoka

OLT Case No.: OLT-22-004482

OLT Lead Case No.: OLT-22-004481

PROCEDURAL ORDER

1. 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

2. The video hearing will begin on October 23, 2023 at 10 a.m.

3. The length of the hearing is 10 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. 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.

6. The order of evidence shall be as set out in Attachment 3 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.

7. 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.

8. 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

9. 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 July 28, 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.

10. Expert witnesses in the same field shall have a meeting on or before August 18, 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 with the OLT case co-ordinator on or before August 25, 2023.

11. 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.

12. 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.

13. On or before September 5, 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.

14. On or before September 5, 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.

15. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before September 25, 2023 and in accordance with paragraph 22 below.

16. On or before September 18, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before October 13, 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.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 13, 2023.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 13, 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.

22. All filings shall be submitted electronically or 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.

23. 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.

These Members are not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES & PARTICIPANTS

PARTIES

1. OBD Developments Inc., OBM Marina Inc., OBG Golf Inc.

2. Township of Georgian Bay

3. District Municipality of Muskoka

PARTICIPANTS

None

ATTACHMENT 2

ISSUES

The identification of an issue on this list does not mean that all parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

S2005-07

1. Is the proposed amendment to Condition 4a (Phasing) reasonable and appropriate?

2. Is the proposed deletion of Condition 5 (Access) reasonable and appropriate?

3. Is the proposed deletion of Condition 7 reasonable and appropriate?

4. Is the proposed deletion of Condition 12 (Parkland) reasonable and appropriate?

5. Is the proposed deletion of Condition 15 reasonable and appropriate?

6. Is the proposed deletion of Condition 15b reasonable and appropriate?

7. Is the proposed deletion of Condition 15c reasonable and appropriate?

8. Is the proposed deletion of Condition 18 reasonable and appropriate?

9. Is the proposed deletion of Condition 19 reasonable and appropriate?

10. Is the proposed deletion of Condition 19a reasonable and appropriate?

11. Is the proposed deletion of Condition 22a reasonable and appropriate?

12. Is the proposed deletion of Condition 22b reasonable and appropriate?

13. Is the proposed amendment to Condition 28 reasonable and appropriate?

14. Is the proposed amendment to the lapsing period in Part C of the conditions reasonable and appropriate?

15. Is the proposed “red-lined” draft plan dated January 30, 2023 reasonable and appropriate?

S2005-10

1. Is the proposed amendment to Condition 4 reasonable and appropriate?

2. Is the proposed amendment to Condition 6 reasonable and appropriate?

3. Is the proposed amendment to Condition 7 (Phasing) reasonable and appropriate?

4. Is the proposed deletion of Condition 8 reasonable and appropriate?

5. Is the proposed amendment to Condition 10a reasonable and appropriate?

6. Is the proposed deletion of Condition 11a reasonable and appropriate?

7. Is the proposed deletion of Condition 11b reasonable and appropriate?

8. Is the proposed deletion of Condition 13 (Parkland) reasonable and appropriate?

9. Is the proposed amendment to Condition 15 reasonable and appropriate?

10. Is the proposed amendment to Condition 15a reasonable and appropriate?

11. Is the proposed deletion of Condition 15c reasonable and appropriate?

12. Is the proposed deletion of Condition 15d reasonable and appropriate?

13. Is the proposed deletion of Condition 15e reasonable and appropriate?

14. Is the proposed deletion of Condition 17 reasonable and appropriate?

15. Is the proposed deletion of Condition 20 reasonable and appropriate?

16. Is the proposed deletion of Condition 21 reasonable and appropriate?

17. Is the proposed deletion of Condition 21a reasonable and appropriate?

18. Is the proposed deletion of Condition 24a reasonable and appropriate?

19. Is the proposed deletion of Condition 24b reasonable and appropriate?

20. Is the proposed deletion of Condition 25 reasonable and appropriate?

21. Is the proposed amendment to Condition 26 reasonable and appropriate?

22. Is the proposed amendment to the lapsing period in Part C of the conditions reasonable and appropriate?

23. Is the proposed “red-lined” draft plan dated January 30, 2023 reasonable and appropriate?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Appellant – OBD Developments Inc., OBM Marina Inc., OBG Golf Inc.

2. Township of Georgian Bay

3. District Municipality of Muskoka

4. Appellant – OBD Developments Inc., OBM Marina Inc., OBG Golf Inc. - Reply