Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 04, 2023
CASE NO(S).: OLT-23-000010
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2, as amended
Appellant: Bev Ascah
Applicant: Structured Creations Inc. c/o Darren Sanger-Smith
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to demolish a single dwelling, construct on the lot a new single dwelling, including an attached garage, front and rear covered terraces, patio, second storey balcony, pool, new driveway, new private sewage disposal system, and associated landscaping
Reference Number: H/R/2021-2022/423
Property Address: 5164 Cedar Springs Road
Municipality/UT: City of Burlington, Region of Halton
OLT Case No.: OLT-23-000010
OLT Lead Case No.: OLT-23-000010
OLT Case Name: Ascah v. Ontario (Niagara Escarpment Commission)
Heard: March 9, 2023 via Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Structured Creations Inc. c/o Darren Sanger-Smith | Scott Snider* and Anna Toumanians* |
| Niagara Escarpment Commission | Rosi Zirger |
REPORT DELIVERED BY JENNIFER GOLD AND JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Tribunal Members constitute Hearing Officers and the Ontario Land Tribunal functions as the Niagara Escarpment Hearing Office (“NEHO”) for appeals under the Niagara Escarpment Planning and Development Act (“NEPDA”).
2This Report arises from a Case Management Conference (“CMC”) brought before the NEHO regarding the appeal filed by Bev Ascah (the “Appellant”) against the decision of the Niagara Escarpment Commission (the “Respondent”) to conditionally approve a development permit application concerning the property municipally described as 5164 Cedar Springs Road, in the City of Burlington (the “Subject Property”). The conditional development permit allows Structured Creations Inc. (the “Applicant”), to demolish a single dwelling, construct a new single dwelling with an attached garage, covered terraces, patio, balcony, pool, driveway, and a private sewage disposal system, all subject to the conditions set forth therein.
3The Appellant did not attend at the CMC. The matter was stood down thirty minutes until 10:30 a.m. in order for the Tribunal to contact the Appellant and to allow her time to call into the CMC. The Appellant did not attend by 10:30 a.m. Previous communications between the Hearing Office and the Appellant confirmed that she was aware of the CMC date and her ability to send a representative in her absence if she was unable to attend personally. She did not request an adjournment of the CMC and did not send a representative in her stead.
4The Applicant sought Party status at the CMC. The Respondent did not oppose this request. The Hearing Office found that the Applicant has a genuine and direct interest in these proceedings, will be impacted by the Hearing Office’s decision, and will assist the Hearing Office in making its decision. The Hearing Office found that there are reasonable grounds to add the Applicant as a Party and granted it Party status, as requested.
5Based upon the Appellant’s non-attendance and failure to establish planning justification for her appeal, the Applicant requested that the Hearing Office dismiss the appeal. The Respondent did not oppose this request.
STATUTORY FRAMEWORK
6The Tribunal considered the following Rules from the Tribunal’s Rules of Practice and Procedure (“Rules”) and statutory provisions:
Ontario Land Tribunal’s Rules of Practice and Procedure
Rule 1.2 Definitions of terms in these Rules…
"hearing event" means a procedure held by the Tribunal at any stage of a proceeding and includes a motion, case management conference and hearing, whether these are held in the form of an in person hearing, electronic hearing or written hearing, and does not include a cross-examination on an affidavit not held before the Tribunal;
Rule 1.7 Failure to Comply With Rules The Tribunal expects compliance with these Rules and adherence to Tribunal orders arising from the application of these Rules by all parties and participants. If a party or participant to any proceeding has not complied with a requirement of these Rules or a Tribunal order, such as a procedural order and any requirement included therein, then the Tribunal has the discretion to determine the consequences of non-compliance and may grant necessary relief or exercise any of its powers authorized by legislation or regulation.
Rule 17.4 Emergencies Only The Tribunal will grant last minute adjournments only for unavoidable emergencies, such as illnesses so close to the hearing date that another representative or witness cannot be obtained. The Tribunal must be informed of these emergencies as soon as possible.
Rule 19.7 Results of Failure to Attend a Conference - If a party fails to attend the conference or by authorized representative, the Tribunal may proceed without that party. The non-attending party is not entitled to notice of subsequent hearing events in the proceedings.
Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2 (“NEPDA”)
25 (8.1) Despite subsections (8) and (10), an officer appointed under subsection (8) may refuse to conduct or to continue a hearing if,
(a) in the opinion of the officer, the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious, or is made only for the purpose of delay;
(b) the notice of appeal did not specify the reasons for the appeal; or
(c) the person who appealed the decision has not responded to a request by the officer for further information within the time specified by the officer.
Representations
(8.2) Before refusing under subsection (8.1) to conduct or to continue a hearing, the officer shall notify the person who appealed the decision and give the person an opportunity to make representations thereon.
Same
(8.3) If an officer refuses under subsection (8.1) to conduct or to continue a hearing, the decision of the delegate shall be deemed to be confirmed.
ISSUES AND ANALYSIS
7The issue for the Tribunal to determine is whether the appeal should be dismissed due to the Appellant’s failure to establish a planning justification for her appeal.
8In her appeal to the Hearing Office, the Appellant failed to outline any specific planning justifications for her opposition to the development permit at issue, noting only that the proposed development does not appear to “fit” within the surrounding area, and that it was her belief that additional development in the area would negatively impact the local water table. The Appellant did not provide any evidence to support these submissions other than her own opinions, and did not cite any specific provisions of applicable legislation which would be contravened by the proposed development. Further, the Appellant did not appear at the CMC or send a representative in her stead. As a result, the Hearing Office was not able to elicit any potential planning justification for the appeal at the CMC.
9The Hearing Office gave notice to the Appellant on March 9, 2023 of its intent to dismiss the appeal on the basis that (i) the Appellant had failed to attend the CMC; and (ii) the Appellant had not identified the provisions of the applicable legislation which would be contravened by the proposed development, as a result of which the Hearing Office was unable to establish any planning justification for the appeal. The Appellant was advised of her opportunity to make submissions to the Hearing Office in respect of these matters by 5 p.m. on March 10, 2023. The Appellant responded by email on March 9, 2023, indicating that her non-attendance had been due to her employment obligations, however she did not provide an explanation regarding any steps taken to attend the CMC including any request for time off work, the response from her employer if such a request was made, and/or any steps she took to arrange for a representative to attend on her behalf. Further, in her response to the Hearing Office, the Appellant failed to identify any further basis for her appeal in response to the Hearing Office’s request.
10The Tribunal notes that the Appellant received notice of the CMC on February 1, 2023 and had ample time to make appropriate arrangements to attend either personally or through a representative, or alternatively, to request an adjournment of the CMC. She did not do so. There was no indication that her non-attendance was due to health issues or a medical emergency. The matter before the Hearing Office is her appeal. Her non-attendance demonstrates a lack of respect and courtesy for the Hearing Office, the other parties, and the administration of justice, and entails costs for all parties involved. Further, the Appellant was given the opportunity to make further submissions to the Hearing Office in order to establish the statutory basis for her appeal by March 10, 2023, yet she failed to do so.
11The Hearing Office expects all Parties to attend the scheduled CMC, arrange for counsel or an agent to attend where a party cannot attend personally, and ensure that they attend the CMC prepared so that the CMC can proceed in an efficient and meaningful way.
12Furthermore, s. 25(8.1)(a) and (c) of the NEPDA provide that a hearing officer may refuse to conduct or continue a hearing if in their opinion, there is no planning justification for the appeal or the applicant has not responded to a request by the officer for further information within the time period specified. Given the failure by the Appellant to indicate any applicable legislation which would be contravened by the proposed development, coupled with her failure to attend the CMC or provide any further submissions to the Hearing Office upon request, the Hearing Office is of the opinion that there is no planning justification for the appeal and the appeal should be dismissed pursuant to s. 25(8.1)(a) of the NEPDA. Further, given that the Appellant failed to respond to the request of the Hearing Office on March 9, 2023 and to provide all of the additional details requested, the Hearing Office determines that the appeal should be dismissed pursuant to s. 25(8.1)(c) of the NEPDA.
13Accordingly, the Hearing Office determines to dismiss the appeal.
ORDER
14THE HEARING OFFICE ORDERS that Structured Creations Inc. c/o Darren Sanger-Smith is a Party in this proceeding.
15THE HEARING OFFICE ORDERS that the Appeal is dismissed and the Niagara Escarpment Commission's decision to conditionally approve the Applicant’s Development Permit Application No. H/R/2021-2022/423 is deemed to be confirmed pursuant to s. 25(8.3) of the Niagara Escarpment Planning and Development Act.
“Jennifer Gold”
JENNIFER GOLD HEARING OFFICER
“Jennifer Campbell”
JENNIFER CAMPBELL HEARING OFFICER
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.