Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
January 27, 2023
CASE NO(S).:
OLT-22-003870
PROCEEDING COMMENCED UNDER section 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant
Leonard Verhart
Applicant
Clarke and Nelson Developments
Subject:
Proposed Official Plan Amendment
Description:
Proposes to re-designate a portion of the lands currently designated Urban Reserve and Employment Area to Residential Area.
Reference Number:
PL202200025
Property Address:
Marlborough Street N & Nazarene Road
Municipality/UT:
Chatham-Kent/Chatham-Kent
OLT Case No:
OLT-22-003870
OLT Lead Case No:
OLT-22-003870
OLT Case Name:
Verhart v. Chatham-Kent (Municipality)
PROCEEDING COMMENCED UNDER section 17(45) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Motion by:
Clarke and Nelson Developments and the Municipality of Chatham-Kent
Purpose of Motion:
Request for an Order Dismissing the Appeal
Heard:
November 30, 2022 by video hearing (“VH”)
APPEARANCES:
Parties
Counsel/Representative*
Leonard Verhart (“Appellant”)
Self-represented*
Clarke and Nelson Developments Inc. (“Applicant”)
Paula Lombardi
Municipality of Chatham-Kent (“Municipality”)
David Taylor
MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON NOVEMBER 30, 2022 AND ORDER OF THE TRIBUNAL
Overview of the Subject Official Plan Amendment
1This matter involves a third-party appeal by Leonard Verhart. The Appeal arises following the Municipality’s approval of an Official Plan Amendment (“OPA”) to permit a proposed residential development on the lands at Marlborough Street North and Nazarene Road (the “Subject Lands”). The proposed development includes single detached, rowhouse (townhouse) and apartment dwelling types.
2The subject OPA re-designates a portion of the Subject Lands currently designated Urban Reserve and Employment Area to Residential Area. Such an amendment will implement policies for residential development over the entire Subject Lands.
3Municipal Planning Staff recommended that the amendment be adopted and it was subsequently approved by Council for the Municipality.
Background
4The reasons for the appeal listed by Mr. Verhart in his Appeal form include the following:
Complaint about insufficient notice of the proposed OPA at the municipal stage;
Complaint about a lack of public meetings;
Complaint about a lack of access to the full OPA application from the Municipality;
Claim that the same proposal was petitioned against by residence 25 years ago;
Claim that area residents do not want the proposed development;
Claim that the development is inappropriate for the area landscape;
Claim that the development will result in loss of area property values;
Complaint about a population increase that will be unsupported by a lack of public transportation and local retail stores;
Claim that the municipality has failed to do due diligence to assess the capacity and condition of area municipal infrastructure;
Claim that the municipality has “glossed over and downplayed” the Appellant’s claim that the subject property is “in the heart” of industrial development in Blenheim;
Claim that the municipality has erroneously stated that the area’s sanitary sewer has the capacity to handle the increased capacity from the development;
Claim that the area sewage system was designed over 50 years ago and is already running at 25% over its design capacity and nearing the end of its life. He also claims that a discharge pipe is rotten and patched in 2021, and he estimates necessary repairs will cost between $1M and $2M.
5It is noteworthy that Mr. Verhart does not purport to support any of the above claims through qualified evidence.
6Mr. Verhart also checked boxes on the Appeal form claiming that the subject OPA is “[i]nconsistent with the Provincial Policy Statement issued under subsection 3(1) of the Planning Act”, and “[f]ails to conform with or conflicts with a provincial plan” (although he does not identify any particular provincial plan). In terms of reasons identified on the form to argue such grounds, Mr. Verhart states:
Not enough notice lead time was given for the residents affected. The information supplied to the residents was intentionally vague. The filing documents that were stated to be available at the local service office were not available to view. I only received copies of said documents 2 days after the vote was held. Council by their own admission had not discussed any of the points stated in my submissions with any of their administration or engineering staff yet proceeded to approve the amendment. Council also failed to fully read and understand the report.
7At the first Case Management Conference (“CMC”), heard November 30, 2022, Counsel for the Applicant and the Municipality confirmed that they had prepared a draft Procedural Order (“PO”), including Issues List, and had circulated it with the Appellant prior to the CMC. However, the Tribunal was also informed and found that the Appellant had failed to contribute to it. While being sensitive to the fact that the Appellant is self-represented, the Tribunal further found that the Appellant had failed to consult the Tribunal’s Rules of Practice and Procedure (“the Rules”) and, in particular, did not inform himself of his expected participation in the preparation of the PO pursuant to Rule 19.2.
8As a consequence, and despite causing prejudice to the other parties due to delay and added costs, the Tribunal permitted a second CMC to give the Appellant a second opportunity to be involved in the process. That CMC was scheduled for today.
9Also at the prior CMC, counsel for the Applicant and the Municipality informed the Tribunal that they may seek to bring a Motion to Dismiss the matter at the present hearing, depending on how the Appellant eventually frames his issues through his contributions to the Issues List.
10The Tribunal now understands that the Appellant did deliver a draft of his issues to the other parties on November 11, 2022. The following are his stated issues (copied in its entirety):
- Does the proposed development have sufficient regard to the matters of provincial interest set out in section 2 of the Planning Act? LINE 2 (k) the adequate provision of employment opportunities.
Provincial Policy Statement, 2020
- Is the proposed development consistent with policies 1.1.1, 1.1.3.2, 1.1.1.3.8, 1.3.2 ,1.4.3, 1.6.7, 1.6.8, 1.6.9, 1.7, 4.1 and 4.2 of the Provincial Policy Statement, 2020, if applicable?
PLANNING JUSTIFICATION REPORT Prepared by Storey Samways
- This Report was written with Misinformation, speculation and avoidance of the sections of the Provincial Planning Statement that are in direct conflict with the Proposal.
Municipality Of Chatham-Kent Community Development Planning Services Recommendation prepared by Greg Houston
- This Recommendation Report was presented to the Mayor and members of council in support of the Proposal by Clark Nelson Developments by Ryan Jacques. This Recommendation was written by a member of Chatham-Kent Administration and reviewed by 3 other members of same administration. All four of these persons are Professional highly trained members of community planning and should be aware of the contents of the Provincial Panning Statement in its entirety. These recommendations also had a direct avoidance of the sections of the Provincial Planning Statement that are in direct conflict with the Proposal.
I could not find any mention in this Document of any current Reviews or studies that would support the changes that were enacted by Council.
The Comment section on Page 5 of said recommendation contains some very confusing statements. It states, “The area is not desirable for industrial uses as it is not contiguous with the main employment areas of Blenheim”. and further states “the preferred employment growth areas are in the North and West areas of Blenheim.”
Nazarene street shares the intersection at Marlborough Street with Industrial Avenue which is the original main Employment area of Blenheim.
Original letter to Council from the Appellant
- The letter submitted to Council for the April 25, 2022 Council meeting was read aloud to council by the Clerk. This consumed roughly 4 minutes and 12 seconds of council time.
The next 3 minutes were spent stating and explaining the proposal. The motion was then put on the floor and it was explained to council how the Developer would be responsible for all the infrastructure costs within the development itself. At no time were the issues raised by the appellant addressed directly by either council or any of the Administrative staff present.
12 minutes and 32 seconds after the proposal was started the matter was put to a vote, 40 seconds after that the notion was deemed passed.
I am still in the process of trying to obtain a transcript of this portion of the Council meeting.
11Subsequently, on November 15, 2022, the Tribunal received the Applicant’s and Municipalities’ joint motion materials seeking to dismiss the matter, including Notice, Record and Affidavit of Service. The Affidavit of Service indicates that the materials were served on the Appellant on the same day, November 15, 2022, and Mr. Verhart has confirmed that he did receive the materials on that day. Upon consulting the Rules, the Tribunal finds that the moving parties complied with the Rules insofar as they served and filed their complete motion materials on time.
12Subsequent to receiving the motions materials, the Appellant did not provide any responding materials. Notably, he failed to comply with 10.6 and 10.7 of the Rules, which state:
10.6 The Notice of Response to Motion A responding party shall serve a notice of response that:
(a) states the response to be made, including a reference to any statutory provision or Rule to be relied on;
(b) lists the documentary evidence to be used at the hearing of the motion; and
(c) includes an affidavit setting out a brief and clear statement of the facts upon which the responding party will rely.
10.7 Service of the Notice of Response to Motion The notice of response to motion and all supporting material as set out in Rule 10.6 shall be served no later than 7 days before the date of the motion to be held in person or by electronic hearing unless the Tribunal orders otherwise. The notice of response shall be served on all parties, on any other person as directed by the Tribunal, and on the Registrar. An affidavit of service shall be filed with the Tribunal prior to or at the hearing of the motion.
13The Tribunal notes that the wording of these rules is obligatory, using the word “shall”.
14The Tribunal asked Mr. Verhart why he did not file any materials as he was required to do. He responded by claiming that he did know that he had any such obligations. The Tribunal finds that this marks a pattern of behaviour, insofar as Mr. Verhart claimed similar ignorance at the previous CMC in relation to Rule 19.
15At this point, the Tribunal sought submissions from the parties with regards to how to proceed with the motion.
16The moving parties submitted that Mr. Verhart should not be permitted to participate in the motion due to his failure to provide any kind of notice of response. They argued that his failure to follow the obligatory Rules causes them undue prejudice insofar as they do not know what, if any, statutory provisions or Rules he intends to rely on in response to their motion, what evidence he intends to rely on, and he has not even provided the most basic statement of his position in response. At the very least, since he did not provide any affidavit evidence, the moving parties submitted that he should not be allowed to provide any evidence.
17In response, Mr. Verhart simply claimed ignorance, admitting that he did not follow the Rules. He further admitted that he did not even look at the other parties’ motion materials until two days prior to the present hearing. The Tribunal asked the Appellant multiple times in multiple different ways to provide a reason to allow him to participate in the proceedings, but the Appellant provided no meaningful response, instead repeating that “rules are rules, I guess”.
18Upon these submissions, the Tribunal reluctantly finds that it has been provided with no reasonable ground to allow Mr. Verhart to participate in the motion. He simply provided no meaningful submission in his favour. At the same time, the Tribunal accepts the moving parties’ submissions insofar as they would be unduly prejudiced if he is allowed to participate because they have not been provided with any indication of the position he intends to take. The Tribunal notes that such prejudice is added to the prejudice already caused by Mr. Verhart by failing to consult the Rules on a previous occasion, thus necessitating the present hearing date and causing delay and added costs to the other parties (the Tribunal finds that the present motion could have and probably would have been heard at the first CMC, if Mr. Verhart had properly outlined his issues prior to that CMC in accordance with the Rules).
19The Tribunal notes that it is extremely rare to prohibit a party from participating in a motion, especially a Motion to Dismiss a matter, and it should only be done in the most exceptional circumstances. In cases where a party is self-represented, the threshold should be even higher because the Tribunal is sensitive to such a party’s lack of familiarity with the process. However, even self-represented parties are expected to perform an at least a perfunctory review of the Rules and, more generally, take steps to inform themselves of their role and obligations as a party. While the Tribunal recognizes that it has discretion to deviate from strict compliance with the Rules, and it should often do so to excuse mere technical non-compliance with the Rules by self-represented parties, this does not mean that such deviation is unlimited and should occur in every instance.
20In the present case, the Appellant’s conduct reached such a high threshold to disqualify him from participating in the proceedings because:
He admitted that he did not inform himself of the Rules. This is particularly inexcusable in the present case because he has already been admonished at the first CMC for similarly failing to review the Rules;
He failed to comply with Rules 10.6 and 10.7 completely; thus, this is not a situation where it is only a mere technical non-compliance with a Rule (i.e. re: meeting precise service or filing deadlines).
He admitted that he did not even read the other parties’ motion materials until two days ago. This exhibits a patent lack of seriousness towards the proceedings; and
The prejudice that would be inflicted upon the innocent parties, if Mr. Verhart is permitted to participate, would be added to the prejudice already caused by him for previously failing to follow the Rules and necessitating the present hearing. Cumulatively, such prejudice is sufficiently severe to tip the balance of fairness in favour of disqualifying him from participation.
21Upon this finding, the Tribunal Ordered the motion to proceed without Mr. Verhart’s participation. The Tribunal notes that Mr. Verhart did remain present as an observer.
Motion to dismiss
22The Applicant and Municipality jointly request that the Tribunal dismiss the appeal without holding a hearing on the basis that there are no legitimate, authentic or genuine planning grounds identified by the Appellant that could permit the Tribunal to allow the appeal.
23The request for dismissal is jointly made under s. 19(1)(c) and 19(1)(d) of the Ontario Land Tribunal Act on the basis that “there is no reasonable prospect of success” and “the proceeding relates to matter outside the jurisdiction of the Tribunal”.
24The Tribunal notes that the moving parties also identified s. 17(45) of the Planning Act (“the Act”) and Rule 15.4 as grounds to dismiss the appeal, claiming that the Appellant’s Notice of Appeal/Appeal form is deficient insofar as it does not disclose any apparent land use planning grounds and/or it deals with matters that are outside of the jurisdiction of the Tribunal.
25While the Tribunal agrees that the Appeal form is patently deficient for these reasons, it declines to dismiss the matter on such a basis because the Appellant has since confirmed his issues which depart, to some degree, from the grounds set out by him in his Appeal form. Consequently, the Tribunal will consider the motion pursuant to s. 19(1)(c) and 19(1)(d) of the Ontario Land Tribunal Act, based on the Appellant’s issues as stated November 11, 2022.
26Upon considering s. 19(1)(c) and 19(1)(d) of the Ontario Land Tribunal Act, the moving parties submit that the appeal should be dismissed on the basis that:
His Issues List fails to disclose any planning grounds upon which the Tribunal could allow the appeal;
The appeal and the Issues List fail to include any explanations with respect to alleged inconsistency with the Provincial Policy Statement (“PPS”) or lack of conformity with the relevant Official Plan.
Issues 3-5 involve complaints which are outside of the Tribunal’s jurisdiction;
The Appellant confirmed that no expert witnesses or expert evidence will be tendered in support of his appeal;
A mere apprehension or concern about a matter without any substantiation is not enough to succeed, especially given the presence of all of the Applicant’s supporting technical reports which have been reviewed and vetted by qualified Municipal staff; and
Altogether, the appeal has no reasonable chance of success.
27The moving parties emphasize that simply raising the apprehension of possible planning grounds or using planning language is not sufficient to meet the test to require a hearing.
28The Tribunal accepts the submissions of the moving parties and, for the reasons set out below, finds that the appeal should be dismissed for failing to have any chance of success.
29As recognized in the seminal case of Toronto (City) v. East Beach Community Assn., 1996 CarswellOnt 5740, it is widely accepted that, in considering the test to determine the sufficiency of stated planning grounds to warrant a hearing, it is not enough to simply employ planning language. Appeal grounds must constitute genuine, legitimate and authentic planning reasons. The questions to consider is whether there is authenticity in the reasons stated, whether there are issues present that should affect a decision, and whether the issues are generally worthy of the adjudicative process. It is not enough to merely raise an apprehension of concerns.
30The Tribunal finds that it is the responsibility of the Appellant to expressly raise the presence of a real, relevant and tenable issue or issues which are worthy of adjudication and support it by some demonstrable intent to call probative evidence. The Tribunal notes that it is not enough to simply list select PPS or municipal policy provisions, or sections of the Act, and then put it to the other party or parties to prove consistency with the PPS, conformity with applicable OPs, or compliance with the Act. Such an approach fails to fulfill the role and obligations of an appellant party.
31Based on the issues listed by the Appellant in his Issues List, the Tribunal finds that the Appellant has failed to meet the threshold required to warrant a merit hearing. This is despite the Tribunal giving Mr. Verhart a second chance to outline his issues through submissions received November 11, 2022.
32While Issues 1 and 2 use planning language, the Appellant has merely raised the spectra of concerns, listing certain sections of the Act and PPS policy without expressly outlining reasons or an explanation regarding how the subject OPA fails to be consisted with the PPS or comply with the Act. Notably, the Appellant has made no reference to local official plans. Furthermore, the Appellant has confirmed that he does not propose to bring forward expert evidence to support his concerns. The Tribunal finds that an appeal based on such limited and unsubstantiated concerns has no chance of success.
33As it relates to Issues 3-5, the Tribunal finds that the Appellant has only laid out complaints about the municipal process, the adequacy of the materials produced as part of such a process, and conduct of council/municipal staff. While it is not uncommon for members of the public to erroneously bring such complaints to the Tribunal, it nevertheless does not fall within the Tribunal’s jurisdiction to provide any relief. As a result, an appeal based on such concerns cannot even be considered by the Tribunal.
34For the reasons set out above, the Tribunal finds that the appeal has no reasonable prospect of success, with some of the issues identified by the Appellant being clearly outside its jurisdiction. Consequently, the Tribunal finds it is appropriate to grant the Motion to Dismiss pursuant to s. 19(1)(c) and 19(1)(d) of the Ontario Land Tribunal Act.
ORDER
35The Tribunal Orders that the appeal is dismissed. The dates previously scheduled for a merit hearing are consequently vacated.
“K.R. Andrews”
K.R. ANDREWS
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.