Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 16, 2023

CASE NO(S).: OLT-22-003015

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

Appellant: 1415747 Ontario Inc. & Lyons Big Tub Resort Marina Ltd.

Appellant: The Big Tub Harbour Citizens Committee

Subject: Zoning By-law

Description: Zoning By-law Amendment 2002-54 to clearly define the Commercial Tour Boat Operation and appropriate zone designation

Reference Number: BL 2022-05

Property Address: Municipality Wide

Municipality: Northern Bruce Peninsula

OLT Case No: OLT-22-003015

OLT Case Name: Lyons Big Tub Resort Marina Ltd., Big Tub Harbour Citizens Committee v. Northern Bruce Peninsula

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

Request by: 1415747 Ontario Inc. and Lyons Big Tub Resort Marina Ltd.

Request for: Request for Directions

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

Request by: The Big Tub Harbour Citizens Committee

Request for: Request for Directions

Heard: February 8, 2023 by video hearing

APPEARANCES:

Parties	Representative
1415747 Ontario Inc. & Lyons Big Tub Resort Marina Ltd.	Mark R. Flowers
The Big Tub Harbour Citizens Committee	Eric Davis
Municipality of Northern Bruce Peninsula	Nicholas A. G. Lovell

DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“CMC”). There are two Appeals pursuant to s. 34(19) of the Planning Act against the passing of a Zoning By-law Amendment No. 2002-54 (“ZBL”) by the Municipality of Northern Bruce (“Municipality”).

2The Big Tub Harbour Citizens Committee (“BTHCC”), an incorporated entity appeals inclusion of certain properties in the ZBL as well as issues related to interpretation of the ZBL.

31415747 Ontario Inc. & Lyons Big Tub Resort Marina Ltd. (“Lyons”) in its Appeal seeks some changes to the ZBL as these relate to their properties.

4The Tribunal reviewed Affidavit of Service for the CMC sworn by Nicholas Lovell on January 13, 2023 and it was determined to have been duly processed and was marked as Exhibit 1 for the record.

5There were no additional Party requests.

6The Tribunal granted Participant status to the following eight individuals after a review at the CMC and on consent of the Parties:

• Adam Robins;
• Danny Coultis;
• David Craig;
• Kent Wilkens;
• Michael Lee;
• Robert Rouse;
• Tracy Edwards; and
• Tyler Robins.

7Prior to the commencement of the CMC, both Appellants raised Motions which related generally to establishing validity of the BTHCC Appeal. BTHCC also sought as part of their Motion an interpretation of impacting Zoning By-laws as these relate to essence of matters at appeal.

8At the CMC and in discussion with the Parties, it was established that it would be efficient and fair to hear both Motions together.

MOTIONS

9BTHCC in part seeks through their Motion the following:

1. An order confirming that the BTHCC appeal that was submitted on March 18, 2022 conforms with subsection 34(19.0.1) of the Planning Act and that the BTHCC can, therefore, raise issues with respect to the Provincial Policy Statement, the Bruce County Official Plan, the Local Official Plan for the Tobermory and Lion’s Head Secondary Urban Areas and the Hamlet of Ferndale.

10Lyons in part seeks through their Motion the following:

1. An Order of the Tribunal directing that the proposed issues of the Big Tub Harbour Citizens Committee (“BTHCC”) concerning:

   a) the alleged inconsistency of Municipality of Northern Bruce Peninsula (“NBP”) Zoning By-law 2022-05 (the “ZBA”) with the Provincial Policy Statement, 2020 (the “PPS”);

   b) the alleged failure of the ZBA to conform with the Bruce County Official Plan (the “County OP”); and

   c) the alleged failure of the ZBA to conform with the Local Official Plan for the Tobermory and Lion’s Head Secondary Urban Areas and the Hamlet of Ferndale (the “NBP OP”),

   shall not be included on the Issues List in the Procedural Order for the hearing of the appeals of the ZBA (the “Appeals”), on the basis that BTHCC’s Notice of Appeal does not “explain how” the ZBA is inconsistent with the PPS, fails to conform with the County OP or fails to conform with the NBP OP, as required by subsection 34(19.0.1) of the Planning Act, and as set out in Schedule “A” to this Notice of Motion.

2. An Order of the Tribunal directing that certain other proposed issues of BTHCC shall not be included on the Issues List in the Procedural Order for the hearing of the Appeals, on the basis that they are outside the Tribunal’s jurisdiction to adjudicate, seek an interpretation of the ZBA under appeal or the NBP Comprehensive Zoning By-law 2002-54, and/or are irrelevant, repetitive or otherwise improper, as set out in Schedule “A” to this Notice of Motion.

3. An Order of the Tribunal prohibiting BTHCC from raising the issues proposed to be deleted from BTHCC’s draft Issues List, as set out in Schedule “A” to this Notice of Motion, at the hearing of the Appeals, through the evidence of its witnesses, the cross-examination of witnesses for other parties, or in submissions.

4. An Order of the Tribunal approving and finalizing the Issues List for the Appeals in the form set out in Schedule “B” to this Notice of Motion.

11The material before the Tribunal on these Motions is the following:

1. Affidavit of Service for CMC
2. Motion Record of Bruce Anchor Appellants
3. Notice of Response to Motion of NBP
4. Notice of Response to Motion of BTHCC
5. Reply of Bruce Anchor Appellants
6. Notice of Motion and Affidavit of BTHCC
7. Notice of Response to Motion of Bruce Anchor Appellants
8. Notice of Response to Motion of NBP
9. Reply of BTHCC
10. Factum of BTHCC
11. 11A. Book of Authorities of Bruce Anchor Appellants
12. 11B. Book of Authorities of NBP
13. 11C. Book of Authorities of BTHCC

Key Issue

12The majority of the contest in the Motions lies around the identification and appropriateness of the possible issues identified in the Appeal application and their subsequent clarification at the first CMC as well as now through these Motions before the Tribunal. The determination of this issue is requested by all Parties with specific reference to subsection 34(19.0.1) of the Planning Act.

BTHCC Grounds for the Motion

13The salient aspects relating to the definition of issues are noted below as submitted by BTHCC:

The Issues List referenced specific policies of the PPS, the Bruce County of Official Plan and the Local Official Plan for the Tobermory and Lion’s Head Secondary Urban Areas and the Hamlet of Ferndale to which the Zoning By-law is inconsistent with or does not conform;

The Issues List also listed several other issues under various headings, all of which were explicitly referenced in the Appeal;

14BTHCC asserts the following for assessing sufficiency of detail in defining and explaining of issues by an Appellant making an appeal:

The scrutinization of notices of appeal should be grounded in the public interest mandate of the Tribunal and avoid an overly legalistic sufficiency review;

When assessing sufficiency of a notice of appeal, the Tribunal may take a plain and collective reading and not require a particularized list of conflicting policy provisions, so long as the notice identifies the policy document (e.g., the PPS) and the overarching concerns;

It is not a requirement of subsection 34(19.0.1) of the Planning Act to enumerate specific provisions of the PPS or of any Official Plan, but merely to “explain how” the by-law is inconsistent with, fails to conform with or conflicts with the other document – the provision of overarching planning themes is sufficient;

Pursuant to the Tribunal’s Rules, parties also have an opportunity to add clarity on a notice of appeal sufficiency motion in relation to the explanation requirement set out in subsection 34(19.0.1) of the Planning Act; 23.

There is no prejudice to Bruce Anchor or the Municipality in allowing the BTHCC to raise issues and present evidence in relation to the PPS and the relevant Official Plans, whereas there is significant prejudice in not allowing the BTHCC to raise those issues and present evidence in relation to same;

Lyons Response/Grounds Regarding BTHCC Issues List

15Lyons submit that:

BTHCC proposes forty issues for the Issues List in respect of its appeal of the ZBA. Most of BTHCC’s proposed issues are improper and should be excluded from the Issues List in the Procedural Order for the hearing of the Appeals, on the basis that:

a. BTHCC’s Notice of Appeal does not explain how the ZBA is inconsistent with the PPS, how the ZBA fails to conform with the County OP, or how the ZBA fails to conform with the NBP OP, as required by s. 34(19.0.1) of the Planning Act;

b. Certain issues are outside the Tribunal’s jurisdiction to adjudicate;

c. Certain issues seek an interpretation of the ZBA under appeal or the NBP Comprehensive Zoning By-law 2002-54; and

d. Certain issues are irrelevant, repetitive or otherwise improper.

Certain other issues proposed by BTHCC require revisions for clarity or to be stated in a neutral manner.

Schedule “A” to this Notice of Motion is a table setting out: (a) the issues proposed by BTHCC; (b) the Bruce Anchor Appellants’ proposed deletion of or revision to each issue; and (c) the reason for each proposed deletion or revision.

Schedule “B” to this Notice of Motion is the Bruce Anchor Appellants’ proposed version of the Issues List. In addition to ten issues raised by BTHCC that the Bruce Anchor Appellants are not proposing to remove from the Issues List, the Bruce Anchor Appellants propose the addition of one issue regarding the parking provisions of the ZBA, a matter raised in its Notice of Appeal.

Analysis: Key Issue

16There is no dispute between the Parties as to the applicable statutory framework which is set in the Planning Act as follows:

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).

17The key operative requirement is enunciated as a detailed and specific requirement that must be met. The Planning Act sets the following as a requisite and not an option to be fulfilled later on: “…the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document.”

18BTHCC in their letter in support of their Appeal provided the following as “Appeal Grounds” (Letter dated March 18, 2022 from BTHCC counsel to Municipality of Northern Bruce Peninsula: page 130):

Appeal Grounds

In our respectful view, the Zoning By-law Amendment, as it relates to the Appeal Properties:

1. Is inconsistent with numerous policies of the Provincial Policy Statement, including, without limiting the generality of the foregoing

   (a) healthy, liveable, and safe communities;

   (b) development within settlement areas; and,

   (c) infrastructure;

2. Does not conform to the Bruce County Official Plan;

3. Does not conform to the Local Official Plan for the Tobermory and Lion’s Head Secondary Urban Areas and the Hamlet of Ferndale;

4. Will have a significant impact and widespread implications on, including, without limiting the generality of the foregoing:

   (a) traffic;

   (b) parking;

   (c) nuisance;

   (d) public safety for pedestrians and cyclists; and,

   (e) public safety for swimmers and operators of recreational water vehicles;

5. Is inconsistent with surrounding land uses;

6. Does not represent good land use planning;

7. Is incompatible with existing sewage and septic system infrastructure; and,

8. Will have negative environmental consequences as a result of increased harmful emissions and pollutants.

19The Tribunal cannot but find that the answer to statutory direction, if providing information as to “... explain how ...”, simply is not there. The Appellant raises issues and forms basis of their Appeal to project that the Appeal is founded on:

... 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.

20The Planning Act does not allow you to “bait and switch” – in other words, make a grand assertion while ignoring the supporting detail which can perhaps be later provided or not.

21The Tribunal notes that as late as July 13, 2022 in the sworn Affidavit of Jamie Cockburn, a Lawyer, the Issues List in expanding or elaborating on the original Appeal Application issues, creates a list of 40 issues. The Tribunal cites the following from this Issues List as examples for the Provincial Policy Statement 2020 (“PPS”) and the Bruce County Official Plan (highlighted for emphasis):

Provincial Policy Statement 2020

1. Is Zoning Bylaw 2022-05 consistent with Provincial Policy Statement 2020 in that it does not sustain:

   (a) healthy, liveable and safe communities;

   (b) development within settlement areas;

   ( c) infrastructure;

   due to it having impacts on traffic, parking, nuisance, public safety, is inconsistent with surrounding land uses, does not represent good land use planning, is incompatible with existing water and wastewater infrastructure, and will have negative environmental consequences?

   Specifically, is Zoning By-law 2022-05 consistent with Policies 1.1.1 c), g); 1.1.3.1; 1.1.3.2 a), b); 1.2.6; 1.5.1 c), d); 1.7.1h); and the definitions of marine facilities, major facilities and sensitive land uses of Provincial Policy Statement 2020 in relation to the above-noted matters?

Bruce County Official Plan

2. Does Zoning By-law 2022-05 conform with the County of Bruce Official Plan due to it having impacts on traffic, parking, nuisance, public safety, is inconsistent with surrounding land uses, does not represent good land use planning, is incompatible with existing water and wastewater infrastructure, and will have negative environmental consequences?

   Specifically, does Zoning Bylaw 2022-05 conform with subsections 3.3, 3.4.1.1, 3.4.1.2, 4.5.1, 4.6.1, 4.6.7, 5.2.1, 5.2.3.2, 5.2.3.3, 5.2.3.6 of the County of Bruce Official Plan in relation to the above noted matters?

22It appears from the BTHCC information noted above, that nearly four months after making their Appeal, BTHCC attempts to address the statutory requirement “... explain how ...” with “due to it having impacts”. This is an anti-thesis of what the Planning Act directs in s. (19.0.1) when it requires that the Appeal “ ... must also explain how ...”

23The Tribunal has also reviewed the Presentation to Municipality of Northern Bruce Peninsula by William Pol on February 14, 200. Mr. Pol identifies himself as MCIP and RPP; credentials associated with people having land use planning expertise. The presentation may have been further elaborated during presentation, but it continues a rather trend of non-specific quantitative or policy specific elaboration. It simply does not add anything more to what has been previously noted in this decision.

24Lyons submitted that BTHCC’s original Appeal as well as attempts are not an appropriate or valid response to the requirements in s. (19.0.1). Lyons as noted in notice of their Motion simply asserts this formally when they seek from the Tribunal;

1. An Order of the Tribunal directing that the proposed issues of the Big Tub Harbour Citizens Committee (“BTHCC”) concerning:

   the alleged inconsistency of Municipality of Northern Bruce Peninsula (“NBP”) Zoning By-law 2022-05 (the “ZBA”) with the Provincial Policy Statement, 2020 (the “PPS”);

   the alleged failure of the ZBA to conform with the Bruce County Official Plan (the “County OP”); and

   the alleged failure of the ZBA to conform with the Local Official Plan for the Tobermory and Lion’s Head Secondary Urban Areas and the Hamlet of Ferndale (the “NBP OP”),

   shall not be included on the Issues List …

25The Tribunal also notes that BTHCC does not appeal the ZBL for all properties in the Municipality whereas ZBL applies to a large number of properties both shoreline and others. BTHCC appeals specific Lyons properties as stated in their Appeal form as:

1. Lt 24 S/S Bay St, 25 S/S Bay St, 26 S/S Bay St Pl Bury, Municipality of Northern Bruce Peninsula, described as PIN 33100-0201 (the “Symes Property”);
2. Lt 27 S/S Bay St, 28 S/S Bay St, 29 S/S Bay St, 30 S/S Bay St, 31 S/S Bay St, 32 S/S Bay St Pl Bury, Northern Bruce Peninsula, municipally identified as 236 Big Tub Road, Tobermory, Ontario, and described as PIN 33100-0199 (the “Big Tub Resort”);
3. Lt 33 S/S Bay St, 34 S/S Bay St, 35 S/S Bay St, 36 S/S Bay St Pl Bury, Northern Bruce Peninsula, described as PIN 33100-0198;
4. Scott St Pl Bury S of Bay St, Northern Bruce Peninsula, described as PIN 33100-0200;
5. Lt 60 N/S Front St and E/S Bury Rd Pl Bury, Municipality of Northern Bruce Peninsula, described as PIN 33101-0056; and,
6. Lt 61 N/S Front St and E/S Bury Rd Pl Bury, Northern Bruce Peninsula, municipally identified as 7480 Highway 6, Tobermory, Ontario, and described as PIN 33101-0055 (“The Gap”).

26Lyons has provided information that there are multiple such operations in the Tobermory area geared towards recreational visitors and/or residents which this area is well renowned for.

27BTHCC submits and seeks the Tribunal’s indulgence in three land use planning cases as in support of the notion that

“While there are statutory sufficiency/explanation requirements, foundational principles dictate that the OLT must remain cognizant of its public interest mandate and non-formalistic process when wielding its dismissal authority: i.e., the OLT should be careful not to disregard and undermine statutory appeal rights.”

28BTHCC highlights in Toronto (City) v. East Beach Community Assn., 1996 CarswellOnt 5740; the following;

This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case. This does not allow the Board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with ironclad reason for fear of being struck down.

29BTHCC referring to Gravely v Kawartha Lakes (City), 2019 CanLII 103886 (ON LPAT) suggests that the Member has elucidated “the public interest-related obligation of the OLT to use its expertise and independent judgment.”

30Including some others, BTHCC brings Tribunal’s attention to Bacher v. GR (CAN) Investments et al., 2022 ONSC 2937, and shows the following:

22The Tribunal notes that these Rules provided the Appellant with an opportunity, in the face of a motion to dismiss, to demonstrate that the “explanation” requirements of s. 34 (19.0.1) is supported by elaboration or expert opinion evidence and that it warrants a hearing:

31The Tribunal has reviewed all the material including the Motion(s), factums, the Responses and Replies to Motions. The Tribunal has due regard for the case law brought to its attention. The Tribunal cannot but find that BTHCC has failed to respond to statutory requirements of s. (19.0.1) of the Planning Act. In coming to this finding, the Tribunal notes that with respect to submissions by the Parties:

“ … punctilious care and arm itself with ironclad reason...”; the Tribunal has hardly applied this stringent metric in reviewing the Issues List as provided at the time of the Appeal or any embellishments done to it thereafter. BTHCC has fundamentally failed the “ ... must also explain how ...” principle so clearly and principally required and phrased “in your face” by the Planning Act. There is no ambiguity or latitude to maneuver such directive for later. Otherwise, all parts of any set timelines for making appeals and the like if left to this level of imperfection would have no meaning. Such interpretations would lead to absurd results. Sure, there can be issue of a measure in terms of detail but in the case of BTHCC there is fundamental disrespect and the same has continued even to the point of their attempt to create an Issues List with 40 issues.

32The Tribunal notes that in the context of “the public interest-related obligation of the OLT to use its expertise and independent judgment,” this panel is very cognizance of this responsibility. However, it is not just BTHCC that is the only custodian of public interest. The carriage of public lies in many shapes and forms; the Municipality, the users of services provided by Lyons, the employees of enterprises providing commercial services, and a large number of others who are proverbially “not in the room”. The Tribunal notes that the material on file clearly shows substantial public engagements, public comments for and against, studies carried out to establish soundness of the ZBL, etc. There is nothing special in terms of the BTHCC Appeal foundationally in this regard.

33BTHCC in reference to Bacher v. GR (CAN) Investments et al., 2022 ONSC 2937 also referred to the observation made in that decision regarding “putting the best foot forward” in the face of a potential Motion for Dismissal without a Hearing. The Tribunal spent considerable time receiving the oral submissions of all Parties regarding the Issues List discussions. The Tribunal heard how the 40 issues could be boiled down to 12 or 15 that BTHCC might consider. This exercise was showing a house of cards built in the original Letter of Appeal collapse rapidly. It simply reinforced that the Appeal has simply failed to have a foundation as required in s. (19.0.1) of the Planning Act. There was no best foot forward but everything was moving backwards.

34In conclusion the Tribunal finds that BTHCC has failed to establish any basis under which the following request can be granted by the Tribunal. Namely as stated by BTHCC in their requested relief,

1. An order confirming that the BTHCC appeal that was submitted on March 18, 2022 conforms with subsection 34(19.0.1) of the Planning Act and that the BTHCC can, therefore, raise issues with respect to the Provincial Policy Statement, the Bruce County Official Plan, the Local Official Plan for the Tobermory and Lion’s Head Secondary Urban Areas and the Hamlet of Ferndale.

35Consequently, the Tribunal must take into consideration the impact of this finding on the overall matter before the Tribunal vis-à-vis BTHCC. The Planning Act sets that OLT may dismiss all or part of an Appeal of a ZBL as follows per the Planning Act;

34(25) Despite the Statutory Powers Procedure Act and subsections (11.0.2) and (24), the Municipal Board may dismiss all or part of an appeal without holding a hearing, on its own initiative or on the motion of any party, if,

(b.1) the appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection;

36The Tribunal on its own initiative and in part per the request of Lyons and the Municipality for striking key issues anchoring BTHCC Appeal under s. 34(19) of the Planning Act, finds that the BTHCC Appeal has no basis to proceed.

OTHER BTHCC MATTER IN THEIR MOTION: ISSUE II – JURISDICTION OF THE TRIBUNAL VIS-À-VIS ZONING BY-LAW INTERPRETATION

37The Tribunal has no comment on this as any possible or consequential impact of any such is only possible if the BTHCC is rightly before the Tribunal in a continuing Appeal.

LYONS MOTION: PARKING AMENDMENT TO ZBL FOR SITE SPECIFIC BASIS

38The Tribunal notes that the only remaining issue before the Tribunal is the following with respect to Lyons Appeal of the ZBL pursuant to s. 34(19) of the Planning Act:

Would it be appropriate, good planning and in the public interest to revise the parking provisions in Zoning By-law 2022-05 to achieve greater clarity (including for the words “expansion” and “existing”), to ensure consistency with Comprehensive Zoning By-law 2002-54, and to ensure appropriate parking requirements where an operation uses multiple lots?

39The Tribunal lets this issue stand and directs that the Parties for further processing of this Appeal are Lyons and the Municipality.

40These Parties informed that they are nearing a settlement in this regard. These Parties are directed to communicate with the Case Coordinator at the Tribunal for further processing of this matter.

ORDER

41THE TRIBUNAL ORDERS that the Motion of The Big Tub Harbour Citizens Committee is denied.

42THE TRIBUNAL ORDERS that the Motion of 1415747 Ontario Inc. and Lyons Big Tub Resort Marina Ltd. is allowed in part in that;

a. The Appeal is limited to the issues identified in Schedule 1 attached.

“Jatinder Bhullar”

JATINDER BHULLAR

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.

SCHEDULE 1

Continuing Appeal of 1415747 Ontario Inc. and Lyons Big Tub Resort Marina Ltd.: Issues List

1. Would it be appropriate, good planning and in the public interest to revise the parking provisions in Zoning By-law 2022-05 to achieve greater clarity (including for the words “expansion” and “existing”), to ensure consistency with Comprehensive Zoning By-law 2002-54, and to ensure appropriate parking requirements where an operation uses multiple lots?