Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 11, 2023

CASE NO(S).: OLT-22-004216 OLT-22-004258

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: CSG Limited Partnership

Subject: Application to amend the Zoning By-law – neglect to make a decision

Description: To permit the development of two large industrial buildings comprising warehouse space and ancillary offices

Reference Number: ZBA1-22-KD

Property Address: 282A County Highway No. 5 Hwy

Municipality/UT: Brant/Brant

OLT Case No.: OLT-22-004216

OLT Lead Case No.: OLT-22-004216

OLT Case Name: CSG Limited Partnership v. Brant (County)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: CSG Limited Partnership

Subject: Site Plan

Reference Number: SP3-22-DN

Property Address: 282A County Highway No. 5 Hwy

Municipality/UT: Brant/Brant

OLT Case No.: OLT-22-004217

OLT Lead Case No.: OLT-22-004216

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Stremma (St. George) GP Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To redevelop the subject lands from a golf course to a 306 unit residential subdivision

Reference Number: PS2-OPA1-ZBA14-22-RC

Property Address: 269 German School Road

Municipality/UT: Brant/Brant

OLT Case No.: OLT-22-004258

OLT Lead Case No.: OLT-22-004258

OLT Case Name: Stremma (St. George) GP Inc. v. Brant (County)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Stremma (St. George) GP Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To redevelop the subject lands from a golf course to a 306 unit residential subdivision

Reference Number: PS2-OPA1-ZBA14-22-RC

Property Address: 269 German School Road

Municipality/UT: Brant/Brant

OLT Case No.: OLT-22-004259

OLT Lead Case No.: OLT-22-004258

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Stremma (St. George) GP Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To redevelop the subject lands from a golf course to a 306 unit residential subdivision

Reference Number: PS2-OPA1-ZBA14-22-RC

Property Address: 269 German School Road

Municipality/UT: Brant/Brant

OLT Case No.: OLT-22-004260

OLT Lead Case No.: OLT-22-004258

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, and the Tribunal’s Rules of Practice and Procedure

Request by: County of Brant

Request for: Motion for Directions

Heard: March 24 and 29, 2023 by video hearing

APPEARANCES:

Parties	Counsel
CSG Limited Partnership	N. Smith and J. DeMarinis
Stremma (St. George) GP Inc.	M. Flowers and G. O’Brien
County of Brant	C. Barnett, R. Welchman and J. Zuidema
Empire Communities (St. George) Ltd.	P. DeMelo
Losani Homes (1998) Ltd.	R. Kehar
Riverview Highlands (St. George) Holdings Ltd.	C. Boyd

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD AND ASTRID J. CLOS ON MARCH 29, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This second Case Management Conference (“CMC”) was held in respect of both Tribunal Files OLT-22-004216 and OLT-22-004258 concurrently to hear a Motion served and filed by the County of Brant (the “County”) in respect of both matters as directed by the Tribunal at the respective first CMCs held in connection with these matters.

2The Tribunal noted at the outset of this second CMC that these two matters (OLT-22-004216 and OLT-22-004258) have not been consolidated nor are they the subject of a Tribunal order to be heard together. Rather, this concurrent CMC is to hear the County’s Motion that is being made with respect to each of the Tribunal cases in an efficient manner and, dependant upon the decision on the Motion, to potentially deal with case management for each of these matters.

3Tribunal File OLT-22-004216 pertains to the appeals to the Tribunal by CSG Limited Partnership (“CSG”) of the County’s failure to make decisions within the applicable statutory time periods on an application for a Zoning By-law Amendment to the County’s Zoning By-law to permit the development of the lands municipally known as 282A County Highway No. 5, County of Brant (the “CSG Property”) with two industrial buildings comprised of warehouse space and ancillary offices (the “CSG Proposed Development”) and an application for site plan approval pursuant to s. 41 of the Planning Act in respect of the CSG Proposed Development (collectively, the “CSG Appeals”).

4Tribunal File OLT-22-004258 pertains to the appeals to the Tribunal by Stremma (St. George) GP Inc. (“Stremma”) of the County’s failure to make decisions within the applicable statutory time periods on applications for an Official Plan Amendment, a Zoning By-law Amendment to the County’s Zoning By-law, and a Draft Plan of Subdivision Approval (collectively, the “Stremma Appeals”) to permit the proposed development of the lands municipally known as 269 German School Road, County of Brant (the “Stremma Property”) with a 306 unit residential subdivision (the “Stremma Proposed Development”).

PARTY AND PARTICIPANT STATUS

5At the first CMC with respect to the CSG Appeals, Stremma requested Party status although unfortunately Stremma’s counsel departed the first CMC early due to illness. At the second CMC it was clarified that Stremma sought Party status with respect to both appeals comprising the CSG Appeals and the Tribunal granted Stremma Party status with respect to the CSG Appeals as requested.

6At this CMC, the following persons requested Participant status in the CSG Appeals:

(a) Karen Downey

(b) Howard K. Hussey

(c) Howard R. Hussey Sr.

(d) Andrea Bazzard

(e) Laurie Muche

(f) Michael Laman

(g) John Heymans

(h) Cherilyn and Grant MacDonald

(i) Eleanor Durnford

(j) Raymond Brian Archer

(k) Douglas and Barb Parker

(l) Betty-Lou and David Warmington

(m) Don Tilma, Greg Oldham, Frank Salamone and Jim Muche (jointly)

7Upon consideration of these requests, the Tribunal is satisfied that the above-noted persons requesting Participant status are raising genuine land use planning concerns and, on consent of the Parties, grants Participant status to the persons listed above in the CSG Appeals proceeding.

8There were no other requests for Participant or Party status received or considered at this CMC for either proceeding.

9Gerald and Barbara Wiersma withdrew from Participant status in the Stremma Appeals proceeding by way of email to counsel for the Appellant dated March 20, 2023, a copy of which was forwarded to the Tribunal.

MOTION BROUGHT BY THE COUNTY OF BRANT

10The County served and filed a Notice of Motion returnable at this CMC seeking “a determination by the Tribunal that it will not schedule hearings on the merits of the appeals in OLT Lead Case Nos. OLT-22-004216 and OLT-22-004258 while County Interim Control By-law 88-22 continues to be in effect.” CSG and Stremma served and filed Responses opposing the County’s Motion and Losani Homes (1998) Ltd. (“Losani”) served and filed a Response in support of the County’s Motion.

11The County enacted Interim Control By-law 88-22 on July 26, 2022 pursuant to s. 38 of the Planning Act (the “ICBL”). The ICBL applies with respect to the lands described as the “primary and secondary settlement areas of St. George”. The Parties agreed that the ICBL applies to lands that include the CSG Property and the Stremma Property.

12The Parties agreed that there is no appeal of the ICBL before the Tribunal in these proceedings. The issue before the Tribunal on the Motion is whether a hearing on the merits of the CSG Appeals and the Stremma Appeals (collectively, the “Appeals”) should be scheduled while the ICBL continues to be in effect.

13At the conclusion of submissions and consideration of the submissions and evidence on the Motion, the Tribunal rendered an oral decision denying the Motion with a brief overview of reasons, with detailed written reasons to follow and ordered that the hearings on the merits of the Appeals be scheduled.

THE COUNTY’S POSITION ON THE MOTION

14The County submitted that the ICBL was enacted in order to respond to the “significant growth pressures that it faces in the community of St. George.” In this regard, the County noted that the community of St. George had a population of 3,354 as of 2021 and currently has 2600 units draft plan approved. The County submitted that there are also four appeals before the Tribunal proposing the development of 102 hectares of land within St. George.

15In light of the growth pressures in St. George, County staff recommended to Council in its Staff Report dated July 26, 2022 that further studies be undertaken in the form of a Comprehensive Masterplan Study to examine issues including servicing constraints, transportation, parks planning and ensuring complete communities. This work is summarized in the ICBL. Section 2 of the ICBL provides:

That County of Brant staff are hereby directed to undertake a review and study in respect of the County of Brant’s land use planning policies, including, but not limited to, its Official Plan and Zoning By-law, in relation to any required changes to the County’s land use planning policies, mapping and regulatory framework as a result of:

a) The ongoing Class Environmental Assessment for water and wastewater servicing capacity constraints in St. George

b) The ongoing Transportation Master Plan (including sub-transportation impact studies) and recommendations related to St. George

c) The ongoing Parks Master Plan and recommendations related to St. George

d) The Completed Age-Friendly Community Plan and recommendations related to St. George

e) The completed Community Safety and Well-being Plan and recommendations related to St. George

f) A review of and any required changes to land use policies and mapping as related to delineating a comprehensive natural heritage system

g) Any concurrently undertaken master planning that results in recommendations related to development, phasing, growth management and land use, and impacts the overall development of complete communities in St. George.

16The County submitted that no hearing on the merits of the Appeals should be scheduled while the ICBL is in effect as to do so:

could result in approvals prior to the completion of the Comprehensive Masterplan Study underway as set out in Section 2 of the ICBL and runs contrary to the intent of Section 38 of the Planning Act, which expressly contemplates studies being undertaken with respect to land use planning policies for a defined area in a municipality.

In this regard, the County referred to the Supreme Court of Canada decision in RSJ Holdings Inc. v. City of London [2007] SCR 588, and a recent Ontario Court of Appeal decision that reaffirmed the purpose of an interim control by-law as being to “allow a municipality breathing space to rethink its land use policies by suspending development that may conflict with any new policy” (see Hummel Properties Inc. v. Niagara-on-the-Lake, 2022 CanLII 737 quoting Equity Waste Management of Canada Corp. v. Halton Hills (Town), 1997 CanLII 2742).

17The County acknowledged that neither s. 38 of the Planning Act (the “Act”) nor any other statutory provision expressly prohibits or constrains the scheduling of a hearing on the merits of appeals pertaining to lands that are subject to an ICBL. Counsel for the County submitted, however, that the statutory context of s. 38 and its purpose of providing “breathing space” to a municipality should be considered in determining the legislature’s intent in enacting s. 38. In this regard, the County referred the Tribunal to paragraph 17 of the Hummel decision [supra] in which the Ontario Court of Appeal stated: “The interpreter’s task in statutory interpretation is to discern the legislature’s intention in order to give effect to it. The interpreter must attend to text, context and purpose.”

18The County submitted that in order for the purpose of “breathing space” to be achieved, s. 38 should be interpreted such that any appeals before the Tribunal that pertain to lands that are the subject of an interim control by-law, should be held in abeyance while such by-law is in force and effect, in order to allow time for the municipality to undertake studies and consider any recommended changes to its land use planning policies that may be relevant to the consideration of such appeals. The County submitted that the outcome of the studies will examine matters related to the provincial interests in co-ordinated and comprehensive planning and support the planning of St. George as a complete community, as well as develop growth management policies to support future planning decisions. At Paragraph 44 of the Affidavit of Mat Vaughan, the County’s Director of Development Planning, in the County’s Motion Record, Mr. Vaughan opined:

St. George is currently experiencing unprecedented growth pressure and ongoing submission of new applications. With no comprehensive masterplan framework in place, further piecemeal development that does not take into consideration the comprehensive growth management studies and planning being undertaken by the County as part of the ICBL could result in long-term detrimental effects to the overall community structure and function. Unmanaged development may impact the implementation of future land use planning policies and the function of regulatory policy framework causing transportation, water and wastewater servicing constraints. Measures required to address the related issues are not fully understood at this time; hence the need for the time to complete the ICBL studies and permit Council to determine if and how those recommendations would be implemented.

19The County submitted that providing this “breathing space” in relation to the Appeals avoids the potential for duplicative appeals and hearings (and the corresponding duplicative use of public and private resources), and the results of the studies contemplated by the ICBL will “assist the Tribunal in making informed decisions and ensure comprehensive planning in St. George.”

20The County provided evidence of the nature and status of the ICBL studies including quarterly timeframes in which the draft versions of various studies were expected to be received by the County (at Paragraph 43 of the Vaughan Affidavit) but not a definitive timeline for completion of such studies. The County submitted that it is moving expeditiously with the studies and, in any case, s. 38 prescribes a time limit of one year for the initial term of the ICBL and, thereafter, a renewal is subject to a maximum term of one year and statutory rights of appeal. Moreover, in the event of any new official plan policies or amendments and/or zoning by-law amendments arising from the outcome of the ICBL studies, there are appeal rights in respect of such amendments.

21The County also referred to the 2009 Ontario Municipal Board decision in Wyeridge McKellar Developments Inc. v. McKellar (Township) which dealt with an appeal of an interim control by-law. In that decision, the Board rejected the argument of economic hardship on behalf of the appellant, and stated (at Paragraph 78):

It is also the Board’s finding that the time delays of three to five years articulated by Mr. Smith and Mr. Dyment that could result from the imposition of the Interim Control By-law to their client’s project while realistic do not constitute a hardship beyond that contemplated by the legislature when it passed subsections 38(6) and 38(6.1) and are not grounds for the Board to overturn the Interim Control By-law. The urgency or need for a decision by Wyeridge is motivated by private gain and not the long-term public interest of the Township.

Similarly, the County submitted that any economic hardship associated with not proceeding with a hearing on the merits of the Appeals should not be a consideration given the public interest in comprehensive planning of St. George that will be informed by the results of the ICBL studies.

22The County submitted that s. 12(2) of the Ontario Land Tribunal Act, 2021 (the “OLT Act”) is applicable in granting the County’s relief sought in the Motion. Specifically, s. 12(2) states:

The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the Rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.

23The County submitted that s. 12(2) requires the Tribunal to adopt a procedure that offers the best opportunity for not only an “expeditious” resolution but also a “fair” and “just” resolution of the merits of the proceedings and these latter requirements are achieved by awaiting the outcome of the ICBL studies so that same may be taken into consideration in the hearing on the merits of the Appeals. In this regard, the County also directed the Tribunal’s attention to s. 1.1 of the Act which sets out the purposes of that Act and s. 2 of the Act which sets out the matters of provincial interest. The County submitted that the context of the purposes of the Act and having regard for matters of provincial interest, and in particular those related to servicing, support the County’s submission that the “best opportunity for a fair, just and expeditious resolution of the merits of the proceedings” is for the Tribunal to not schedule hearings on the merits of the Appeals while the ICBL is in effect.

LOSANI’S POSITION ON THE MOTION

24Losani has Party status in the Stremma Appeals. Losani is one of the owners of lands located on the west side of Main Street South between Highway 5 and German School Road (the “Losani Property”) and these lands are in close proximity to the Stremma Property. The Losani Property is approximately 118.9 hectares in size and was the subject of a rezoning and draft plan of subdivision approval by order of the then Local Planning Appeal Tribunal dated December 3, 2020. The ultimate development of the Losani Property will accommodate approximately 1679 dwelling units.

25Losani supports the position of the County on the Motion. Losani submitted that its primary concern with the Stremma Appeals is with respect to ensuring coordinated servicing of the St. George community. Losani submitted that the ICBL studies will examine matters related to this concern including a Servicing Allocation Policy that will “allocate servicing in a fair and equitable manner with recognition that there are existing parties with approved units that are waiting for allocation to bring these units online.” Losani also submitted that awaiting the outcome of the ICBL studies will likely assist the Tribunal in making an informed decision on the Stremma Appeals that ensures comprehensive planning of St. George and would avoid potential duplicative proceedings that do not achieve a fair, just, expeditious and cost-effective resolution of the Stremma Appeals on the merits.

THE APPELLANT CSG’S POSITION ON THE MOTION

26CSG submitted that the Tribunal should proceed with scheduling a hearing on the merits of the CSG Appeals while the ICBL is in effect. CSG agreed that the purpose of an ICBL is to provide “breathing space” for a municipality to reconsider its land use policies but that this “breathing space” is achieved solely by prohibiting certain use including building permit issuance related thereto and not by preventing any other stage of the development approval process. In this regard, CSG referred to the specific wording of s. 38(1) of the Act that provides the enabling authority for a municipality to pass an interim control by-law:

Where the council of a local municipality has, by by-law or resolution, directed a review or study be undertaken in respect of land use planning policies in the municipality or in any defined area or areas thereof, the council of the municipality may pass a by-law (hereinafter referred to as an interim control by-law) to be in effect for a period of time specified in the by-law, which period shall not exceed one year from the date of the passing thereof, prohibiting the use of land, buildings or structures within the municipality or within the defined area or areas thereof for, or except for, such purposes as are set out in the by-law.” [emphasis added]

27CSG submitted that s. 38(1) of the Act provides legislative authority only with respect to “prohibiting the use” of land and does not provide legislative authority to prohibit a land use approval change or processing of development applications including adjudication of any appeals arising from such applications. In this regard CSG referred to the Ontario Municipal Board decision in ClubLink Corp. v. Oakville, 2017 CanLii 36501 at Paragraph 17:

The provisions of s. 38 of the Act do not authorize an approval authority to void or suspend the rights of an applicant which are entrenched in s. 22, 34, and 51, in this case, while awaiting the outcome of the ICBL studies. The powers of s. 38 preclude or constrain the mandamus order of the issuance of a building permit to permit the furtherance of forms of development which have been determined in the rationale supporting the specific ICBL, to not be in the public interest at the time.

28CSG submitted that the term of the ICBL and the adjudication of the CSG Appeals may proceed independently and simultaneously. Section 4 of the ICBL prohibits the use of land, buildings or structure “for any purpose whatsoever except for a use that lawfully existed on the date of [passage of the ICBL] if it continues to be used for such purposes.” This prohibition continues in full force and effect regardless of any disposition of an appeal including the CSG Appeals that may amend the underlying Zoning By-law. CSG referred to the Local Planning Appeal Tribunal decision in Toronto Guild Investments Ltd. v. Whitby (Town), 2021 CanLii 47623 in which the Tribunal held that an ICBL does not preclude the disposition of appeals by the Tribunal as it does not affect the ICBL. In the Toronto Guild Investments decision [supra], the Tribunal stated at Paragraph 61:

The ICBL does not preclude the Tribunal from considering the appeals; however, the disposition of the appeals does not negate the effect of the ICBL on the Subject Lands. In this instance the two processes can proceed independently.

29CSG submitted that while the disposition of the CSG Appeals may result in the approval of an amendment to the County’s Zoning By-law that permits the proposed development, the ICBL, if still in effect, will continue to prohibit the proposed development as the ICBL “freezes” use of land to permit only those actual uses that exist on the land on the day that the ICBL is passed.

30CSG submitted that the unknown outcome of the ICBL studies does not warrant a delay in scheduling the hearing on the merits of the Appeals. CSG further submitted that the timing of this delay is unknown as the timeline provided in the Affidavit of Planner Vaughan in the County’s Motion Record does not provide specific deadlines and refers to timelines for “draft” studies and it is unknown if there will be public consultation in respect of any or all of the studies. In view of the foregoing, CSG submitted that to not schedule a hearing of the CSG Appeals is contrary to s. 12(2) of the OLT Act which requires the Tribunal to adopt “any practices and procedures” that “offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.”

THE APPELLANT STREMMA’S POSITION ON THE MOTION

31Stremma submitted that the Tribunal should not delay scheduling of the hearing on the merits of the Stremma Appeals while the ICBL is in effect as to do so would run contrary to the Tribunal’s obligation pursuant to s. 12(2) of the OLT Act to follow practices and procedures which “offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.”

32Stremma submitted that the County is seeking essentially an “indefinite” delay as s. 38 provides for an extension of the ICBL beyond its initial one-year term and further provides for an indefinite extension of the ICBL pursuant to s. 38(6.1) in the event that there is a zoning by-law passed by the County following completion of the ICBL studies that is the subject of an appeal. Stremma submitted that this delay is prejudicial as it may result in Stremma being unable to utilize servicing capacity that has been allocated and reserved until 2028 for infill and intensification within the built boundary of St. George (and within which the Stremma Property is located) in accordance with Official Plan Amendment 8 (“OPA 8”). This Amendment states that “if the reserve capacity has not been utilized by 2028, the County has the ability to re-allocate the remaining reserve capacity to development ready lands at the County’s discretion and in accordance with the approved servicing allocation policy.”

33Stremma concurred with the submissions of CGS regarding the intent of s. 38 of the Act; specifically, it provides legislative authority only to prohibit use of land, buildings and structures, and corresponding building permit issuance and does not “authorize an approval authority to void or suspend the other rights of an applicant which are entrenched in s. 22, 34 and 51…while awaiting the outcome of the ICBL studies.”

34Stremma submitted that it is “entirely speculative” that scheduling a hearing of the Stremma Appeals on the merits while the ICBL is in effect may ultimately result in duplicative appeals and hearings as it is unknown if there will be any official plan amendments and/or zoning by-law amendments arising from the results of the ICBL studies and it is also unknown if there will be any appeals thereof.

ANALYSIS AND FINDINGS

35In this Motion, the Parties do not dispute that the ICBL is in effect and applies to lands including the CSG Property and the Stremma Property and that the ICBL is not the subject of an appeal before the Tribunal. None of the Parties disputed that complete applications in respect of the Appeals were received by the County and that the Appeals are properly before the Tribunal pursuant to the appeal rights prescribed by the Act.

36All of the Parties, including the County, agreed and the Tribunal finds that there is no express statutory authority prohibiting the Tribunal from scheduling hearings for Appeals while an ICBL applicable to the CSG Property and the Stremma Property is in effect.

37The County submitted that the Tribunal’s authority to not schedule merit hearings of appeals when an interim control by-law is in effect is derived from caselaw interpreting s. 38 of the Act as well as an interpretation of Subsection 12(2) of the OLT Act.

38The Tribunal finds that s. 38 of the Act provides legislative authority for a municipality to pass a by-law “prohibiting the use of land, buildings and structures” and the caselaw referring to the “breathing space” effect of s. 38 afforded by such a by-law is with regard to existing zoning permission only. The Tribunal finds that neither s. 38 nor an interim control by-law passed thereunder effects a suspension of the scheduling and adjudication of hearings on the merits of appeals by the Tribunal. As stated by the Supreme Court of Canada in RSJ Holdings [supra] at Paragraph 27:

Interim control by-laws are powerful zoning tools by which municipalities can broadly freeze the development of land, buildings and structures within a municipality. The power to enact an interim control by-law has been aptly described as “an extraordinary one, typically exercised in a situation where an unforeseen issue arises with the terms of an existing zoning permission, as a means of providing breathing space during which time the municipality may study the problem and determine the appropriate planning policy and controls for dealing with the situation (R.G. Doumani and P.A. Foran, Ontario Planning Act and Commentary (2004/2005 ed. 2004) at p. 46)”. [emphasis added]

39Similarly, the Ontario Court of Appeal decision in Hummel [supra], referred to the purpose of s. 38 of the Act as being to preclude development of land permitted by the current zoning (at Paragraph 24):

Typically, in the “cat and mouse game” of land development, an owner seeks to rely on current zoning to undertake development and to get a building permit. If the building permit is secured, the municipality is stuck. But if a municipality can enact an interim control by-law under s. 38 in time, the building permit can be withheld. [emphasis added]

40In Hummel [supra] the Court of Appeal, in considering the legislative authority of a municipality to pass by-laws pursuant to s. 38, held that a strict interpretation of s. 38 is the “settled, correct view” given the significant impact that an interim control by-law has on development rights. In light of the caselaw noted above and on a strict interpretation of s. 38, the Tribunal finds that Section 38 cannot be interpreted so as to effect the suspension of hearings of appeals on the merits before the Tribunal.

41The Tribunal finds that a hearing on the merits of the Appeals does not contravene s. 38 of the Act nor hamper its purpose. The ICBL “freezes” use of the subject lands, buildings and structures to those uses that “lawfully existed on the date that [the ICBL] was passed if it continues to be used for such purposes.” (see s. 4 of the ICBL) If a Tribunal decision is rendered with respect to the Appeals that grants some form of planning approval while the ICBL is in force and effect, then the ICBL will continue to prohibit any use (including any use that is the subject of the planning approval) other than a use that lawfully existed on the date that the ICBL was passed. In this regard, Section 4 of the ICBL states:

4. That notwithstanding any other By-law to the contrary, no person shall

a) Use any land, buildings or structure for any purpose whatsoever except for a use that lawfully existed on the date this By-law was passed if it continues to be used for such purposes

b) Be permitted to construct, alter, or expand any building or structure on a lot, save and except where such construction, alteration, or expansion…[list of exceptions}

42Further, the Tribunal finds that s. 12(2) of the OLT Act does not provide a basis for the County’s request that the Tribunal not schedule a hearing on the merits of the Appeals while the ICBL is in effect. Subsection 12(2) requires that the Tribunal “in respect of any proceeding, adopt any practices or procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.”

43In determining a process that affords the best opportunity for a “fair” and “just” resolution of the merits of the proceedings, it is noted that the timing of the hearings, as well as the completion, results, and outcome of the ICBL studies, and the period of time during which the ICBL is in effect are unknown at this time. The Appellants have exercised statutory appeal rights pursuant to the Act. These appeal rights are not subject to any statutory conditions related to an ICBL including the status of any ICBL studies. The Tribunal finds that, in its opinion, scheduling a hearing on the merits of the Appeals at this time offers the best opportunity for a “fair” and “just” resolution as the Parties, and most notably the County, will have full opportunity to provide evidence with respect to the merits of the Appeals, the matters that are the subject of the ICBL including any completed studies, if then available, or any evidence related to comprehensive planning and prematurity in the event that the hearing proceeds in advance of completion of any of the ICBL studies underway currently. In reaching this conclusion, the Tribunal has had regard for the matters of provincial interest set out in s. 2 of the Act particularly s. 2(f) pertaining to servicing. The Tribunal finds that neither the adjudication of the Appeals nor the efficacy of the ICBL will be hampered by proceeding with the scheduling and adjudication of the Appeals while the ICBL is in effect.

44The Tribunal finds that, in its opinion, scheduling the hearings of the merits of the Appeals without awaiting the repeal or expiry of the ICBL offers the best opportunity for an “expeditious” resolution of the merits of the proceedings. The ICBL may have a period of time in effect of up to two years and then may extend in force and effect beyond two years for an indeterminate period of time pending the outcome of any zoning by-law amendment and appeals. There is prejudice to the Appellants in awaiting this potentially lengthy and indeterminate period of time for the repeal or expiry of the ICBL, particularly with regard to the sunset provision for servicing allocation set out in OPA 8 identified by Stremma. Proceeding expeditiously with the hearing of the Appeals does not prejudice the County as it will have full opportunity to put forward its case on the merits of the Appeals as described in the Paragraph above.

45The Tribunal finds that the potential for “duplicative proceedings” is unknown and is not a compelling factor in exercising its responsibilities of s. 12(2) of the OLT Act in this instance with regard to the Appeals. Land use planning is a dynamic process: At any given time in any given municipality there are studies, reviews, and assessments which may be underway, complete or relevant to the consideration of appeals arising from development applications in such municipality. These reviews may result in the adoption of official plan amendments or the passage of zoning by-law amendments by a municipality and, in due course, may be the subject of appeals. In the case of the Appeals, it may be that any or all of the ICBL studies are completed, may or may not be relevant, may be the subject of evidence at the time of the hearings of the Appeals, and the County may adopt official plan amendments or pass zoning by-law amendments as it deems appropriate in light of the ICBL studies. The Appellants have statutory appeal rights prescribed by the Act that are not, and need not be, suspended in deference to an unknown possibility of the outcome of the ICBL.

46The Tribunal finds that, in its opinion, scheduling the hearings of the Appeals on the merits and, depending upon the timing, the adjudication and resolution of the Appeals while the ICBL is in effect, offers the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.

HEARING DATES AND PROCEDURAL ORDERS

47The County indicated that it wishes to pursue a request for in-person hearings of the Appeals and the Tribunal directed the County to make such request to the Executive Chair in accordance with the Tribunal requirement and to copy the other Parties so that they have opportunity to file submissions to the Executive Chair regarding this request. In the meantime, the hearings of the Appeals will be scheduled to be conducted by video in accordance with the Tribunal’s current practices, subject to any change to an in-person format that may be ordered by the Executive Chair.

OLT-22-004216 – the CSG Appeals

48The Parties’ estimate of required hearing length for the CSG Appeals ranged between five to eight hearings days. Based on the draft issues list provided to the Tribunal and the range of subject matter and witnesses, the Tribunal finds that eight hearing days is a reasonable estimate for the hearing on the merits of the CSG Appeals.

49A Hearing of the CSG Appeals is scheduled to commence on Tuesday, August 8, 2023, at 10 a.m. by video, and to continue for eight days.

50Parties 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:

Tuesday, August 8, 2023 at 10 a.m. (8-day hearing)

GoTo Meeting: https://meet.goto.com/558205565 Access code: 558-205-565 Audio-only telephone line: +1 (647) 497-9373 or 1-888-299-1889 Audio-only access code: 558-205-565

51Parties 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

52Persons 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.

53Individuals 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.

54The Parties provided a draft procedural order and issues list for consideration at the CMC. The Parties were provided directions on the issues list and directed to provide the revised draft procedural order including issues list to the Tribunal on or before April 28, 2023.

55The Parties provided a further revised draft procedural order to the Tribunal and the procedural order attached as Schedule “A” to this Order is approved.

OLT-22-004258 – the Stremma Appeals

56Upon canvassing the Parties on their respective intentions with respect to evidence and witnesses and consideration of the draft issues list, the Tribunal is satisfied that 20 days is a reasonable estimate of hearing length at this time for the Stremma Appeals.

57A hearing is scheduled to commence on Monday, June 3, 2024, at 10 a.m. by video and continue for 20 days until and including Tuesday, July 2, 2024 and not including June 24, 2024 and July 1, 2024.

58Parties 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:

Monday, June 3, 2024 at 10 a.m. (20-day hearing) GoTo Meeting: https://global.gotomeeting.com/join/927921077 Access code: 927-921-077 Audio-only line: +1 (647) 497-9391 or 1-888-299-1889 Audio-only access code: 927-921-077

59Please refer to paragraphs 51-53 for the hearing details and instructions.

60The Parties provided a draft procedural order and issues list for consideration at the CMC. The Parties were provided directions on the issues list and directed to provide the revised draft procedural order including issues list to the Tribunal on or before April 28, 2023. The Tribunal directed that the draft procedural order include provision to provide confirmation to the Tribunal at least 60 days prior to the first day of the hearing if all of the hearing days are still required.

61The Parties provided a further revised draft procedural order to the Tribunal and the procedural order attached as Schedule “B” to this Order is approved.

ORDER

62THE TRIBUNAL ORDERS that the following persons are granted Participant status in the OLT-22-004216 proceeding (the CSG Appeals):

1. Karen Downey
2. Howard K. Hussey
3. Howard R. Hussey Sr.
4. Andrea Bazzard
5. Laurie Muche
6. Michael Laman
7. John Heymans
8. Cherilyn and Grant MacDonald
9. Eleanor Durnford
10. Raymond Brian Archer
11. Douglas and Barb Parker
12. Betty-Lou and David Warmington
13. Don Tilma, Greg Oldham, Frank Salamone and Jim Muche (jointly)

57The motion to not schedule hearings on the merits of the CSG Appeals and the Stremma Appeals while Interim Control By-law 88-22 continues to be in effect is denied.

58The Merit hearing dates and the respective procedural orders are approved as above.

59The Tribunal provides these CMC directives for the purposes of the case management of the Appeals.

60This panel is not seized in this matter but may be available for case management purposes, subject to scheduling availability.

“D. Arnold”

D. ARNOLD

MEMBER

“astrid J. Clos”

Astrid J. CLOS

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.

Schedule “A”

Schedule “B”