1063755 Ontario Ltd v. Grey (County), 2023 CanLII 58614

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 26, 2023

CASE NO(S).: OLT-22-004820

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1063755 Ontario Ltd.

Appellant: Municipality of West Grey

Subject: Proposed Official Plan Amendment No. 11

Description: To implement the 2021 Growth Management Strategy and additional housekeeping changes

Property Address: Grey County Wide Amendment

Municipality/UT: County of Grey

Reference Number: Grey County OPA #11; Grey County By-law 5145-22

OLT Case No.: OLT-22-004820

OLT Lead Case No.: OLT-22-004820

OLT Case Name: 1063755 Ontario Ltd v. Grey (County)

PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Town of Hanover

Request for: Request for Directions

Heard: May 18, 2023 by video hearing

APPEARANCES:

Parties

Counsel

1063755 Ontario Limited (Magwood Family Farms)

M. Goldstein D. Baker (in absentia)

Municipality of West Grey

L. Longo

County of Grey

M. Hodgson S. Hahn (in absentia)

Town of Hanover

S. D’Agostino

MEMORANDUM OF ORAL DECISION DELIVERED ON MAY 18, 2023 BY S. BRAUN AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1This decision and Order arises out of a Motion brought by the Town of Hanover (“Town”), seeking to be added as a non-appellant Party to appeals against Official Plan Amendment 11 (“OPA 11”), as adopted by the County of Grey (“County”). OPA 11 prescribes policies with respect to the direction of future growth and recognizes two additional Future Secondary Plan Areas (“FSPAs”) within the Municipality of West Grey (“Municipality”) located adjacent to the Town’s municipal boundaries, which may or may not be required to support the Town’s future growth.

2The County completed an update to its Growth Management Strategy in 2021 and, in October 2022, approved OPA 11 which was described as a Growth Management and Housekeeping Amendment to the County’s Official Plan (“OP”). The FSPAs identified therein were based upon a 2021 addendum to a 2019 Local Growth Management Scoped Comprehensive Review completed by the Town, which acknowledged an inability to accommodate Provincial growth targets as a result of an 87-hectare shortfall of available commercial, industrial and institutional lands within the Town’s boundaries. OPA 11 and the identification of the FSPAs therein do not have the effect of expanding the urban boundary of the Town or the Municipality, but simply create a framework for the possibility of future urban expansion.

3Appeals against OPA 11 were brought by 1063755 Ontario Limited (“Magwood”) and the Municipality and in particular, policies 3.4(21), 3.4(5), 3.5.1(3), 3.5.1(4), as referenced on Schedule A-5, 3.4.4 and Schedule A-5.

4Magwood owns lands located within the municipality at 765 10th Street, on the edge of the boundary between the municipality and the Town. Currently, the lands are used for agricultural purposes, including an existing dairy operation. Although OPA 11 proposes to designate the southern portion of Magwood’s lands as part of the FSPAs, Magwood does not intend to redevelop these lands for another purpose now nor in the future. Magwood’s appeal primarily focuses upon the County’s designation of a portion of its property for FSPAs which, in Magwood’s view, fails to protect agricultural lands for long-term agricultural use and is therefore inconsistent with the Provincial Policy Statement, 2020 (“PPS”) and contrary to s. 2 of the Planning Act¹ (“Act”).

5The Municipality’s appeal also focuses upon the FSPAs identified in OPA 11, which, while located within Municipality’s boundaries, are intended to support the future growth of the Town. The Municipality takes issue with the fact that the FSPAs were based upon a planning review undertaken by the Town, solely under its direction, control, terms of reference and assumptions. In its view, the FSPAs ought to have been the subject of a discrete and transparent County OPA process offering an opportunity for public notification and engagement.

6At a previous Case Management Conference (“CMC”) held on April 12, 2023, before a panel differently constituted, the Town sought Party Status indicating an intention to shelter as a non-appellant Party under the issues of the Appellants and generally in support of OPA 11. Magwood opposed the request, citing concerns with respect to the potential for duplicative argument and evidence given that the County, as the approval authority, bears the onus of providing all necessary evidence to support its adoption of OPA 11. The Tribunal ordered that the request for status be determined by way of a Motion and scheduled the present hearing event for the purpose of hearing oral argument from the Parties.

MOTION FOR PARTY STATUS

7In accordance with the Tribunal’s directions, the Town filed a Motion, which was supported by the County, requesting an Order adding the Town as a non-appellant Party to the proceedings, pursuant to Rule 8.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”) and for costs of the Motion.

8Magwood and the Municipality opposed the Motion and requested the Tribunal deny the totality of the relief sought by the Town. In the alternative, Magwood requested the Tribunal find the County and the Town to be a common interest class under Rule 8.4, and to appoint counsel for the County of Grey to represent the class in this matter. The Municipality requested alternative relief framed broadly in the form of a request that the Tribunal impose such conditions as may be deemed fair and appropriate under the circumstances.

9The materials before the Tribunal were as follows:

• Town of Hanover Motion record (including sworn Affidavit of Katyrina Zielinski, Registered Professional Planner)
• County of Grey Response to Motion
• Magwood Response to Motion (including sworn Affidavit of Scott J. Patterson, Registered Professional Planner)
• Exhibit 4: Municipality of West Grey Response to Motion
• Exhibit 5A: Town of Hanover Reply
• Exhibit 5B: Town of Hanover Book of Authorities
• Exhibit 6A: Magwood Document Book
• Exhibit 6B: Magwood Book of Authorities

10Following careful consideration of the totality of the foregoing written materials and oral argument presented, the Town’s primary request for relief is granted. For the reasons that follow, the Tribunal finds the Town has a direct interest in the approval of OPA 11 and, in particular, the policies related to FSPAs and, under the circumstances, procedural fairness and the balance of prejudice favours the addition of the Town as a Party to these proceedings.

The Town’s Submissions

11It was submitted that the Town meets the legislative test set out in s. 17(44.1) of Act, which provides that, in the case of an appeal under s. 17(24), the Tribunal may only add as a party: a person or public body who satisfies one of the conditions set out in subsection 44.2; the Minister; or the approval authority. Subsection 17(44.2) states:

The conditions mentioned in paragraph 1 of subsection (44.1) are:

1. Before the plan was adopted, the person or public body made oral submissions at a public meeting or written submissions to the council.

2. The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party.

12In support of the Town’s submission that the legislative test has been met, Counsel for the Town advised the Tribunal that, leading up to the adoption of OPA 11, the Town filed detailed written comments with the County on February 1, 2022, appended as Exhibit “I” to the Affidavit of Ms. Zielinski. He submitted that the foregoing meets the first condition in s. 17(44.2). This submission was not contested by any of the other Parties. Despite the foregoing, the entirety of the argument on the Motion focused upon s. 17(44.2) 2. (reasonable grounds) and Rule 8.2.

13In support of the assertion that there are reasonable grounds to add the Town as a party, the Tribunal was referred to the “obvious factors” set out in paragraph 13 of the decision in Oakville (Town), Re, 2010 CarswellOnt 7078, 66 O.M.B.R. 366 (“Oakville factors”). Those “obvious factors”, and the Town’s submissions with respect to each, are as follows:

a) Prior Appeal: Has an appeal already been filed in relation to the policy which is sought to be challenged?

• The Tribunal was advised that the Town did not file an appeal, given its support of the approval of OPA 11. However, it was submitted that it would be inefficient and contrary to the public interest to require those who support an amendment to appeal same in order to preserve a right to take part in any future hearing.

b) Public Interest: To what extent is the public interest advanced if party status is granted?

• It was submitted that the present appeal is fundamentally about appropriate growth management policies and is not a polarized dispute or a lis inter partes but, rather, a dispute involving differing interests and perspectives (being those of the County, the Municipality, Magwood, the Town and the public, in general). It was argued that the Tribunal will be tasked with deciding, through the lens of its public interest mandate, whether OPA 11 should be sustained, amended or defeated and, as such, the public interest would be best served by ensuring the Tribunal is provided with a fulsome picture of all relevant interests and perspectives when making its decision.

c) Prejudice: What prejudice, if any, would be suffered by the municipality or another party to the proceeding?

• For reasons similar to b), above, the Tribunal was urged to allow the Town to present its own evidence on policies aimed at allowing it to accommodate identified Provincial growth targets over the requisite planning period. Given that the FSPAs represent the major issue in these appeals and the Tribunal’s decision will certainly affect the manner in which the Town manages its future growth, it was argued that precluding the Town from doing so would be highly prejudicial. This is because the County (upper tier) and the Town (lower tier) are distinct public bodies representing different interests and, as such, the Tribunal would need to hear from both. In contrast, it was submitted that granting the requested relief would result in little to no prejudice to any other party, given the requirement under Rule 8.3 for the Town to shelter under issues raised by the Appellants and the general expectation that parties of like interest (in this instance, the Town and the County) coordinate their arguments and evidence.

d) Direct Interest: Does the person seeking party status have a direct interest in the policy?

• It was noted that the establishment of a growth management strategy is a fundamental planning decision, from which a number of other decisions and strategies flow. As such, because the FSPAs are key to the Town’s ability to manage its future growth, it was submitted that the Town has an obvious and direct interest and would most certainly be affected by the Tribunal’s decision on the appeals. With reference to draft issues lists provided by Magwood and the Municipality in advance of the April 12, 2023, CMC, it was submitted that the Town has a direct interest in most, if not all of same.

e) Multiplicity of Proceedings: Will granting party status avoid a multiplicity of proceedings?

• It was submitted that this factor is not directly relevant to the present motion but, if the portions of OPA 11 intended to accommodate the Town’s future growth are not approved, the Town will be forced to find an alternate means to meet growth targets under current conditions of an insufficient supply of land, which could result in future appeals.

f) Historical Background: What is the historical background to the policy sought to be challenged?

• The Tribunal was presented with historical OMB decisions evidencing the Town’s participation in previous growth management appeals involving Magwood, the Municipality and the County. In addition, the Affidavits of Ms. Zielinski and Mr. Patterson explain that the justification for the FSPAs in OPA 11 arose out of studies undertaken by the Town in the process of completing its comprehensive review. In light of the foregoing, it was argued that the Town clearly has a history of involvement with OPA 11.

14With respect to assertions that the County is capable of presenting all necessary evidence to support its decision to approve OPA 11, and the alternative relief requested by Magwood, counsel for the Town reiterated that the interests of an upper and lower tier are necessarily distinct and ought to be presented distinctly at the hearing of this appeal.

15It was argued that declaring a common interest class would be inappropriate in light of the foregoing and in light of the fact that the County is comprised of a number of local area municipalities, which might then be privy to in-camera proceedings and/or solicitor-client communications of the Town.

The County’s Submissions

16Counsel for the County provided written and oral submissions in support of the requested relief, largely echoing those of the Town. Briefly, the Tribunal was reminded that because the Town supported OPA 11, it did not file an appeal thereof. It was argued that it would be an inefficient use of valuable public resources to require every municipality that supports an amendment to pre-emptively file an appeal thereof as a “placeholder”, simply for the purposes of allowing it to take part in a future hearing. As such, it was submitted that considerations of procedural fairness and public interest favour the addition of the Town as a party, given its obvious and direct interest in OPA 11, and in particular, FSPAs.

17With respect to the alternative relief requested by Magwood, it was submitted that Rule 8.4 does not empower the Tribunal to appoint counsel to represent a party and, in any event, the Rule would not be applicable in this instance because, although the County and the Town may be positionally aligned with respect to the FSPAs identified in OPA 11, the interests each public body represents are fundamentally different.

Magwood’s Submissions

18Magwood’s submissions focused upon the wording in Rule 8.2, which provides:

8.2 Power of Tribunal to Add or Substitute Parties The Tribunal may add or substitute a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their interest may be transferred or transmitted to another party to be added or substituted provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.

19It was noted that “Ontario has made numerous amendments to various legislation, including to the Planning Act, the Ontario Land Tribunal Act, the OLT Rules of Practice and Procedure, in order to streamline the planning and development process” to avoid municipal bodies doing the exact same thing. It was argued that “Rule 8.2 is the product of legislative changes that require a stringent interpretation of the requirement of necessity”. In support of the foregoing, the Tribunal’s attention was drawn to the previous Local Planning Appeal Tribunal iteration of the Rule:

8.02 Power of the Tribunal to Add or Substitute Parties The Tribunal may add or substitute a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.

20It was argued that the updated version of the Rule places greater emphasis on the requirement for necessity and establishes a new requirement which goes beyond the Oakville factors, with the change in wording from “and their presence is necessary” to “provided their presence is necessary”. The Tribunal’s attention was drawn to various dictionary definitions indicating provided means “only if”, “on condition that”, and necessary means “indispensable”. Counsel for Magwood submitted that the Tribunal must follow its own rules, drawing attention to the case of Lake Waseosa Ratepayers’ Assn. v. Pieper, 2008 CarswellOnt 985 (“Lake Waseosa”), in which the Court granted leave to appeal from a decision by the Ontario Municipal Board Review Panel ordering the rehearing of an application. In the opinion of the Court, sufficient reasons were not given as it was not readily apparent that the panel had considered and/or applied its own Rules in making its determination. At paragraph 13, the Court notes, “it is at least arguable that the OMB is bound by its own Rules”.

21Counsel for Magwood argued that the Town’s presence at the hearing is not necessary, as it would have no evidence to present beyond what can and should be presented by the County, which is free to call any witness that the Town might have called, given that there is no property in a witness. It was submitted that granting the Town’s requested relief would be prejudicial to his client as it would drive up the cost and time associated with this hearing. It was further submitted that the series of reports from both the County and the Town supporting OPA 11 appear to be inconsistent and for this reason, granting the Town’s request would create a “potential mess” arising from “confusion with respect to the case to be met”, which would ultimately be prejudicial to Magwood.

22In addition to the foregoing, counsel for Magwood argued that granting the Town’s request would open the door for every municipality in every County or Region to seek non-appellant party status to provide unnecessary “help” with an OPA it supports by pointing to a need to address growth and their own studies, which would be contrary to the current public policy direction aimed at reducing municipal duplication.

23Finally, despite the Town’s acknowledgement that it would be required to shelter under issues identified by the Appellants pursuant to Rule 8.3, it was submitted in the materials filed by Magwood that the Town would have no issues under which to shelter because it takes no issue with, and only seeks to support OPA 11.

The Municipality’s Submissions

24Counsel for the Municipality provided brief written and oral submissions in opposition to the Motion, largely echoing those of Magwood. It was submitted that the concluding words of Rule 8.2 “provided their presence is necessary…” amplifies and provides greater direction to the Tribunal with respect to the determination of reasonable grounds to add a party to a proceeding. It was further submitted that nothing before the Tribunal on this Motion leads to the conclusion that the County lacks the ability and/or resources to fully present a case justifying the decision to adopt OPA 11 and at no point did the County indicate it would be prejudiced in defending its decision to adopt the OPA without the addition of the Town as a Party.

The Town’s Reply Submissions

25Although Magwood and the Municipality urged the Tribunal to adopt a strict interpretation of Rule 8.2 requiring the Town to satisfy a third test (necessity), counsel for the Town submitted that the Tribunal’s Rules cannot amend or narrow the legislative test set out in the Act, which only requires a prospective party to have made written or oral submissions to council or to satisfy the Tribunal that there are reasonable grounds to be added as a party. It was submitted that, even if Magwood’s interpretation of Rule 8.2 were to be accepted, the Tribunal should nevertheless find it necessary to add the Town as a party, given that it has a direct interest in the appeal and would be severely prejudiced if left out of the hearing as the County, being a separate public body, is not capable of properly advancing that interest.

ANALYSIS AND FINDINGS

26Although the submissions of both the Municipality and Magwood included argument and evidence (through the Affidavit of Mr. Patterson) with respect to the correct review upon which OPA 11 should have been based, that is an issue properly left to be determined at the hearing. The sole issue to be determined on this Motion is whether the Town should be added as a non-appellant Party to the proceeding and, in the view of the Tribunal, this determination turns on procedural fairness.

27The Town and the County are separate public bodies and while they may well be aligned in some respects, their interests necessarily diverge in others, given their differing roles and responsibilities as upper and lower tier municipalities. In recognition of the distinct functions, obligations and interests between these two levels of government, the Tribunal regularly grants party status to upper tier municipalities in appeals of decisions by a lower tier. In light of the foregoing, the Tribunal does not accept that the evidence to be led by the Town and the County will be duplicative. A policy hearing is not a lis between parties and, on the particular facts of this case (including the fact that the Town’s comprehensive review findings informed the identification of the FSPAs in OPA 11), it is in the public interest for the hearing panel to adjudicate the issues based upon fulsome evidence, including that of the Town. The Tribunal is of the view that denying the Town’s request for Party Status would be akin to denying an applicant status in a third-party appeal and agrees with the submission that it is not in the public interest to compel municipalities to appeal all amendments they support in order to preserve a right to take part in a hearing.

28Magwood’s materials included excerpts of Hansard Transcripts highlighting discussion on Bill 23’s changes to the Act, the intention of which is to streamline the planning process to avoid duplication and delay in the planning process. In the view of the Tribunal, Magwood erroneously conflates recent public policy changes aimed at reducing duplication in the municipal planning process and the requirement for the parties to a hearing to avoid duplication of evidence so as to ensure timely and efficient dispute resolution. The Tribunal also had some difficulty reconciling the arguments advanced by counsel for Magwood with respect to the potential for prejudice to his client. On the one hand, it was submitted that granting the Town’s request would result in duplication of argument and evidence on every single issue at the hearing. However, it was also submitted that the County’s and Town’s studies/reports supporting OPA 11 contain inconsistent information which would create unnecessary confusion and delay in the presentation of the evidence. The foregoing arguments appear to be at odds, with the latter supporting the Town’s and the County’s argument that the interests and evidence to be advanced at a hearing by each would not, in fact, be duplicative.

29With respect to Magwood’s assertion that the Tribunal must follow its own Rules and its reference to the case of Lake Waseosa, by directing that this issue be decided in the context of a formal motion, the Tribunal has acknowledged the need to consider and apply its own Rules. The Rules establish guiding objectives driven by the Tribunal’s mandate, whereas the legislation sets out the necessary tests to be met. The Tribunal retains discretion to interpret its Rules flexibly to offer the best opportunity for fair, just, expeditious and cost-effective dispute resolution. In the course of resolving disputes, the Tribunal is regularly tasked with balancing the aforementioned goals and this Motion is no different. The Tribunal would note that, although not pointed out by counsel on this Motion, a full reading of Lake Waseosa confirms that the granting of party status is a question of procedure and a matter within the discretion of the panel (emphasis added).

30Despite any recent changes in the wording of Rule 8.2, the Tribunal has always required a prospective added party to establish a solid footing with respect to how they will be able to contribute to the decision-making process. On this Motion, the Town has established the solid footing required by Rule 8.2 and s. 17(44.2) of the Act, by persuading the Tribunal that, an effective decision cannot fairly be made in the absence of a consideration of its interests and perspectives, which cannot be effectively advanced by a different level of government.

31While adding the Town as a party may result in some increase in the time and cost associated with the hearing, the Tribunal finds that considerations of procedural fairness and effective dispute resolution are paramount, and any prejudice to the Appellants caused by adding the Town as a party is outweighed by the potential for prejudice to the Town were it to be precluded from advancing its position on OPA 11.

32For the foregoing reasons, the Tribunal is satisfied that there are reasonable grounds to add the Town as a non-appellant party to the proceedings. With respect to the alternative relief sought by Magwood, for reasons previously discussed, the Tribunal accepts that the Town and County are two separate entities represent differing interests and is therefore not persuaded that this is an appropriate circumstance in which to declare a common interest class. The Tribunal is also not persuaded that it is appropriate to grant the Municipality’s broad request for alternative relief in the form of unspecified conditions to be imposed upon the Town’s involvement. Rule 8.3 and the representation of the Parties by experienced counsel capable of avoiding duplication of argument and evidence at the hearing are sufficient to ensure a fair, just and expeditious hearing. Moreover, as noted in Rule 23.9, failure to make reasonable efforts to combine submissions with parties of similar interest, may be considered an unreasonable course of conduct which could result in an exercise of the Tribunal’s discretion to award costs, should such relief be pursued by one or more of the parties following the hearing.

33Finally, in relation to the Town’s request for additional relief in the form of an Order for costs of the present Motion, the Tribunal briefly noted that the conduct of the Parties did not stand out as meeting any of circumstances in Rule 23.9. Notwithstanding the foregoing, the Town remains free to request that the Tribunal consider a written motion for costs pursuant to Rule 23.

NEXT STEPS

34The Tribunal directed the Parties to attend a CMC, which is scheduled by video commencing at 10 am on September 14, 2023, and further directed that a draft Procedural Order and Issues List be submitted no later than August 25, 2023. The Tribunal expects that the Parties will have turned their minds to avoiding duplication of issues and evidence and to accordingly be prepared to set the matter down for a hearing at the CMC.

35Parties 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:

Meeting link: https://global.gotomeeting.com/join/909787981

Access Code: 909-787-981

36Parties 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.

37Persons 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 909-787-981.

38Individuals 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 CMC 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.

ORDER

39The Tribunal orders as follows:

a. The Town of Hanover is a party to this proceeding;

b. A further Case Management Conference will be held by video hearing on September 14, 2023, at 10 a.m.;

c. The Parties shall submit a draft Procedural Order and Issues List no later than August 25, 2023; and

d. This Member will remain seized of the next Case Management Conference, but is not otherwise seized of any future hearing events.

“S. Braun”

S. Braun

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Footnotes

1. 1R.S.O. 1990, c. P. 13, as amended.