Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 12, 2023
CASE NO(S).: OLT-22-003318
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicants and Appellants: Michael Zygocki Limited and Boothia Developments Limited
Subject: Proposed Plan of Subdivision - Failure of the Municipality of Clarington to make a decision
Purpose: To permit 29 single detached dwelling lots, a number of part lots and open space blocks
Property Address/Description: Part Lot 33, Concession 3, Tooley Road, Courtice
Municipality: Municipality of Clarington
Municipality File No.: S-C 2017-0002
OLT Case No.: OLT-22-003318
Legacy Case No.: PL171390
OLT File No.: OLT-22-003318 Legacy File No.: PL171390
OLT Case Name: Boothia Developments Limited v. Clarington (Municipality)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicants and Appellants: Schleiss Development Company Limited and Westley Heights Holdings Ltd.
Subject: Proposed Plan of Subdivision - Failure of the Municipality of Clarington to make a decision
Purpose: To permit 29 single detached dwelling lots, a number of part lots and open space blocks
Property Address/Description: Part Lot 33, Concession 3, Tooley Road, Courtice
Municipality: Municipality of Clarington
Municipality File No.: S-C 2017-0003
OLT Lead Case No.: OLT-22-003318
Legacy Lead Case OLT File No.: PL171390 / OLT-22-003321
Legacy File No.: PL171391
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Clifford Curtis
Subject: Proposed Plan of Subdivision - Failure of the Municipality of Clarington to make a decision
Purpose: To permit 29 single detached dwelling lots, a number of part lots and open space blocks
Property Address/Description: Part Lot 33, Concession 3, Tooley Road, Courtice
Municipality: Municipality of Clarington
Municipality File No.: S-C 2017-0004
OLT Lead Case No.: OLT-22-003318
Legacy Lead Case No.: PL171390
OLT File No.: OLT-22-003321
Legacy File No.: PL171392
Heard: June 1, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2408406 Ontario Inc., 2408426 Ontario Inc., and 2408428 Ontario Inc. (“Fourteen Estates”) | A. Suriano |
| Municipality of Clarington | P. DeMelo |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON JUNE 1, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND RELEVANT PROCEDURAL HISTORY
1This decision and Order arises out of a Case Management Conference (“CMC”) in relation to an Appeal by Fourteen Estates (“Appellant”) of the decision of the Municipality of Clarington (“Municipality”) to adopt Official Plan Amendment 107 (“OPA 107”), which is the Municipality’s new Official Plan (“OP”).
2The Tribunal notes that there is a rather lengthy background to the matter presently before it, which was helpfully summarized by counsel for the Municipality at the outset of the hearing event as follows:
3Following the adoption of OPA 107, over 20 appeals were filed. Through the diligent and collaborative efforts of the Parties and case management assistance of the Tribunal, all of the appeals were scoped into site-specific and policy-specific matters and the remainder of the unappealed policies came into force and effect by way of a disposition of the Tribunal.
4All of the matters were scheduled for hearings and the Tribunal assigned numbers to easily identify/reference the different appeals. The present appeal is known as Appeal #14. Although there were initially five (5) issues on the Issues List (“IL”) for Appeal #14, the IL was further scoped such that only two issues remained in advance of the scheduled hearing date.
5Those two remaining issues were generally summarized by counsel as follows:
a) What are the appropriate EP designations and the boundaries of the EP areas on the subject lands?
For further context, it was noted that the foregoing issue is tied to the appeal that remains outstanding on a site-specific basis with regards to Maps A1 and D3, which are the Natural Heritage maps in the OP.
b) If Policy 23.13.2 should exempt studies underway or completed at the time of the approval of the OP?
Again, for context, it was noted that the foregoing issue relates to the nature and scope of an Environmental Impact Study (“EIS”).
6In March of 2020, the hearing of Appeal #14 was adjourned sine die at the request of the Parties in order to allow time for an EIS to be completed and peer reviewed so that the boundaries of the EP could be defined.
7The Tribunal was advised that, despite unfortunate intervening delay caused by the recent pandemic, the EIS and peer review have now been completed, but the Parties remain at odds with respect to the boundaries of the EP such that the previously discussed issues at paragraph 5 remain live. Accordingly, the Parties requested the scheduling of this CMC so as to move the matter forward to a hearing.
NEXT STEPS
8The Tribunal was informed that the Parties had been in regular communication leading up to this CMC and in light of the two very technical issues which remain, had turned their minds to the number and disciplines of witnesses to be called at the hearing. Based on the foregoing, the Parties jointly requested the matter be set down for a five-day hearing.
9Counsel for the Municipality noted that, although the Region of Durham (“Region”) and the Ministry of Municipal Affairs and Housing (“MMAH”) had initially been made Parties to all of the OPA 107 appeals, both had previously relied upon the Municipality to advance their positions at a number of other OPA 107 appeal hearings. Although he indicated, based on the foregoing, that he did not expect either Party would seek to take part in the hearing of Appeal #14, he candidly admitted that he was somewhat unsure and, as such, the Municipality would seek confirmation of same in advance of the hearing.
10The Tribunal expressed some concern with respect to scheduling the matter as requested in light of the possibility, albeit slight, that the Region and/or the MMAH might seek to take part, which might then result in an inability to complete the hearing in the time alotted.
11In response, counsel for the Municipality advised that he recalled, at some point, receiving correspondence/confirmation from the MMAH that they were only interested in taking part of specific appeals which did not include Appeal #14. He undertook to provide a copy of same and failing his ability to locate such correspondence, the Parties agreed to reach out to the MMAH to confirm if they will seek to be involved in the hearing and provide such confirmation to the Tribunal no later than June 15, 2023. Although the Region had been included on the Notice provided for this CMC and did not appear, out of an abundance of caution, the Parties indicated they considered it prudent to similarly reach out to the Region for confirmation and provide same to the Tribunal by the same date.
12In the unlikely event that the MMAH and/or the Region seek to be involved in the hearing resulting in the need for a longer hearing, the Parties are directed to notify the Case Coordinator as soon as possible and request the scheduling of a Telephone Case Conference to determine whether the existing hearing should be rescheduled or alternatively, whether the Tribunal’s calendar can accommodate the addition of days onto the hearing currently scheduled.
13Based on the detailed explanations provided by the Parties with respect to the issues and anticipated witnesses for the hearing as well as the undertakings provided by counsel as noted above, the Tribunal scheduled a five (5) day video hearing, which will commence at 10:00 am on December 4, 2023.
14Parties 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:
GoTo Conference Link: https://meet.goto.com/370987861
Access code: 370-987-861
15Parties 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.
16Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free): 1 888 455 1389 or +1 (647) 497-9391. The access code is the same as mentioned above.
17Individuals 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.
OTHER MATTERS
18The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.
ORDER
19THE TRIBUNAL ORDERS as follows:
a) A five (5) day video hearing will commence on December 4, 2023 at 10:00 a.m.;
b) The Parties shall submit to the Tribunal no later than June 15, 2023:
i. An agreed upon Procedural Order and Issues List; and
ii. Confirmation from the Ministry of Municipal Affairs and Housing and the Region of Durham as to whether or not these Parties will seek to take part in the hearing of this appeal;
c) There will be no further notice and this Member is not seized, but may be available for case management purposes should scheduling permit.
“S. Braun”
S. Braun
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.