Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 17, 2023
CASE NO(S).: OLT-22-002091 (Formerly PL210217) et al.
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Bromont Homes Inc.
Appellant: Kerry L.W. Doughty
Appellant: Ferma Aggregates Inc.
Appellant: Jennifer Graham; and others
Subject: Official Plan
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-22-002091
Legacy Case No.: PL120217
OLT Lead Case No.: OLT-22-002091
Legacy Lead Case No.: PL120217
OLT Case Name: Graham v. Ontario (Municipal Affairs and Housing)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: J. Stollar Construction Limited
Subject: Proposed Official Plan Amendment No. 35
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-22-002100
Legacy Case No.: PL130063
OLT Lead Case No.: OLT-22-002100
Legacy Lead Case No.: PL130063
OLT Case Name: J. Stollar Construction Ltd v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: J. Stollar Construction Limited
Subject: By-law No. D06-18-103
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-22-002108
Legacy Case No.: PL130064
OLT Lead Case No.: OLT-22-002100
Legacy Lead Case No.: PL130063
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Catherine Gravely
Appellant: J. Stollar Construction Limited
Appellant: Ministry of Municipal Affairs and Housing
Subject: Official Plan Amendment No. 15
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-22-002115
Legacy Case No.: PL151086
OLT Lead Case No.: OLT-22-002115
Legacy Lead Case No.: PL151086
OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Catherine Gravely
Appellant: J. Stollar Construction Limited
Appellant: Ministry of Municipal Affairs and Housing
Subject: Proposed Official Plan Amendment No. 17
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-22-002147
Legacy Case No.: PL160076
OLT Lead Case No.: OLT-22-002147
Legacy Lead Case No.: PL160076
OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2358493 Ontario Inc.
Appellant: BARMMAR Investments Ltd. & BMMB Investments Ltd.
Appellant: Bromont Homes Inc.
Appellant: Comhold Investments Ltd.; and others
Subject: Proposed Official Plan Amendment No. OPA 13
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-22-002084
Legacy Case No.: PL171407
OLT Lead Case No.: OLT-22-002084
Legacy Lead Case No.: PL171407
OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Comhold Investments Ltd.
Appellant: Catherine Gravely
Appellant: J. Stollar Construction Limited
Appellant: William Westcott
Subject: Proposed Official Plan Amendment No. OPA 14
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-22-002079
Legacy Case No.: PL171408
OLT Lead Case No.: OLT-22-002079
Legacy Lead Case No.: PL171408
OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2358493 Ontario Inc.
Appellant: BARMMAR Investments Ltd. & BMMB Investments Ltd.
Appellant: Bromont Homes Inc.
Appellant: Catherine Gravely; and others
Subject: Proposed Official Plan Amendment No. 16
Municipality: City of Kawartha Lakes
OLT Case No.: OLT-22-002076
Legacy Case No.: PL171409
OLT Lead Case No.: OLT-22-002076
Legacy Lead Case No.: PL171409
OLT Case Name: Gravely v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicants and Appellants: Comhold Investments, Medlaw Corporation and Mason Burch
Subject: Request to amend the Official Plan - Failure of the City of Kawartha Lakes to adopt the requested amendment
Existing Designation: Urban, Highway Commercial and Agricultural
Proposed Designation: Urban
Purpose: To permit the expansion of the existing Pinecrest nursing home and the development of 280 units within 6 four-storey condominium buildings
Property Address/Description: 3400 and 3418 CLK Road 36 and 91 Little Bob Drive
Municipality: City of Kawartha Lakes
Approval Authority File No.: D01-16-156
OLT Case No.: OLT-22-002171
Legacy Case No.: PL171515
OLT Lead Case No.: OLT-22-002171
Legacy Lead Case No.: PL171515
OLT Case Name: Comhold Investments v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicants and Appellants: Comhold Investments et al
Subject: Application to amend Zoning By-law No. 6-87 and 16-78 - Refusal or neglect of the City of Kawartha Lakes to make a decision
Existing Zoning: General Rural (A1), Highway Commercial (C2), Community Facility (CF) and Urban Residential Type One (R1) Zone
Proposed Zoning: Site Specific (TBD)
Purpose: To permit the expansion of the existing Pinecrest nursing home and the development of 280 units within 6 four-storey condominium buildings
Property Address/Description: 3400 and 3418 CLK Road 36 and 91 Little Bob Drive
Municipality: City of Kawartha Lakes
Municipality File No.: D06-35-074
OLT Case No.: OLT-22-003781
Legacy Case No.: PL171516
OLT Lead Case No.: OLT-22-002171
Legacy Lead Case No.: PL171515
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicants and Appellants: Comhold Investments et al
Subject: Proposed Plan of Subdivision - Failure of the City of Kawartha Lakes to make a decision
Purpose: To permit the expansion of the existing Pinecrest nursing home and the development of 280 units within 6 four-storey condominium buildings
Property Address/Description: 3400 and 3418 CLK Road 36 and 91 Little Bob Drive
Municipality: City of Kawartha Lakes
Municipality File No.: D05-35-019
OLT Case No.: OLT-22-003782
Legacy Case No.: PL180414
OLT Lead Case No.: OLT-22-002171
Legacy Lead Case No.: PL171515
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicants and Appellants: Bromont Homes Inc., Bromont Investments Inc., Bromont Lindsay 2 Corp. and Bromont Lindsay 5 Corp.
Subject: Request to amend the Official Plan - Failure of the City of Kawartha Lakes to adopt the requested amendment
Existing Designation: Highway Commercial, Tourist Commercial and Environmental Protection
Proposed Designation: Highway Commercial, Mixed Use Gateway, Prestige Industrial and Parks and Open Space
Purpose: To permit retail, service commercial and prestige employment uses with a collector street
Property Address/Description: 2387 Highway 7 and 332 Lindsay Street South
Municipality: City of Kawartha Lakes
Approval Authority File No.: D01-17-005
OLT Case No.: OLT-22-002085
Legacy Case No.: PL180303
OLT Lead Case No.: OLT-22-002085
Legacy Lead Case No.: PL180303
OLT Case Name: Bromont Homes Inc. v. Kawartha Lakes (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicants and Appellants: Bromont Homes Inc., Bromont Investments Inc., Bromont Lindsay 2 Corp. and Bromont Lindsay 5 Corp.
Subject: Application to amend Zoning By-law No. 93-90 - Refusal or neglect of the City of Kawartha Lakes to make a decision
Existing Zoning: Agricultural (A), Highway Commercial (CH) and Open Space Exception Three (OS-3) Zones
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit retail, service commercial and prestige employment uses with a collector street
Property Address/Description: 2387 Highway 7 and 332 Lindsay Street South
Municipality: City of Kawartha Lakes
Municipality File No.: D06-17-020
OLT Case No.: OLT-22-002088
Legacy Case No.: PL180304
OLT Lead Case No.: OLT-22-002085
Legacy Lead Case No.: PL180303
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicants and Appellants: Bromont Homes Inc., Bromont Investments Inc., Bromont Lindsay 2 Corp. and Bromont Lindsay 5 Corp.
Subject: Proposed Plan of Subdivision - Failure of the City of Kawartha Lakes to make a decision
Purpose: To permit retail, service commercial and prestige employment uses with a collector street
Property Address/Description: 2387 Highway 7 and 332 Lindsay Street South
Municipality: City of Kawartha Lakes
Municipality File No.: D05-17-002
OLT Case No.: OLT-22-002090
Legacy Case No.: PL180305
OLT Lead Case No.: OLT-22-002085
Legacy Lead Case No.: PL180303
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Kawartha Lakes
Request for: Request for Directions
Heard: May 23, 2023 via video hearing
APPEARANCES:
Parties
Counsel
City of Kawartha Lakes
Denitza Koev
Bromont Homes Inc.
Ian Andres
J. Stollar Construction Limited
Denise Baker Raj Kehar
Flato Lindsay Community Inc.
Katarzyna Silwa Jessica Jakubowski Isaiah Banach
IBrans Developments Ltd. (formerly BARMMAR Investments Ltd. and BMMB Investments Ltd.)
Matthew Rutledge
Lindsay Square Mall Inc.
Meaghan McDermid (in absentia) Grace O’Brien
Tribute (Lindsay 1) Limited and Tribute (Lindsay 2) Limited
Evan Barz
DECISION DELIVERED BY n. eisazadeh and steven cooke AND ORDER OF THE TRIBUNAL
Link to Final Order
1This hearing determines Phase 4 of the total 8 Phases of hearings related to the appeals of the City of Kawartha Lakes (“City”) 2012 Official Plan (“CKLOP”) and its Secondary Plans, which are being administratively processed by this Tribunal under OLT Lead File No. OLT-22-002091 et al. Phase 4 encompasses the appeals of Policy 18.4.4 of Official Plan Amendment No. 13 (“OPA 13”) referred to as the General Amendment to the CKLOP, and Official Plan Amendment No. 16 (“OPA 16”) being the Lindsay Secondary Plan ((“LOP”) and collectively, “Phase 4”).
2While Phase 4 was initially scheduled for a six-week hearing commencing May 8, 2023, as a result of the cooperation of the statutory Parties and the land use planners who have been identified as expert witnesses for the purposes of these appeals (“Planners”), resolution of many of the issues was reached reducing the hearing to three (3) weeks, rescheduled to commence May 23, 2023. Over the course of the weeks leading up to the rescheduled hearing, the Parties and Planners were able to make further significant progress such that additional resolution was reached leaving only one (1) issue remaining to be determined. The Tribunal was advised at the commencement of the hearing that the lone issue remaining was also subsequently resolved. Accordingly, the hearing was converted to a one-day motion from which this decision of the Tribunal arises.
3This decision determines the Motion brought by the City for partial approval of the subject Phase 4 appeals (“Motion”) advanced by the Appellants, J. Stollar Construction Limited et al. (“Appellants”). The Tribunal has determined that the partial approval of the subject Phase 4 appeals should be allowed. As set out further below, the Tribunal’s approval is subject to temporarily withholding its Order within this Decision (“Order No. 5”), which was presented for approval on this Motion, until such time as the Town of Lindsay’s Official Plan (that is currently in effect) is formally repealed.
BACKGROUND
4Most of the issues under Phase 4 pertain to the appeals of OPA 16. The purpose of OPA 16 is to amend the CKLOP to include a Secondary Plan for the community of Lindsay (“Lindsay SP”) which would replace the former LOP that is currently in effect. In addition to its primary focus on a land use planning regime, the Lindsay SP seeks to amend s. 21.2.2 of the CKLOP dealing with highway commercial designation. The balance of issues under Phase 4, there being only 2 others, pertain to the outstanding appeals of OPA 13, and those relate only to Policy 18.4.4, dealing with permissions surrounding commercial land uses.
5Pursuant to the direction of the Tribunal in its Phase 4 Procedural Order, the Planners attended multiple meetings of the experts from which a fourth statement of agreed facts dated December 2, 2022 (“4th ASF”) was reached and signed. The 4th ASF, appended as Exhibit “C” to the Affidavit of Rory Baksh, resolves a significant number of the Phase 4 issues through recommended policy and mapping changes that are set out in Attachments “A”, “B”, and “C” of the 4th ASF.
6The balance of issues has been resolved through additional modifications to OPA 16, as reflected in a revised Order No. 5 ultimately included in this Decision (with necessary revisions respecting its coming into force). The Tribunal notes that there were five additional issues arising from the appeals of OPA 16 brought forward by Lindbrook Development Inc. However, that Appellant has withdrawn those appeals thereby eliminating those five (5) issues from this phase of the hearing. Accordingly, an agreement has been reached which resolves all issues that were tabled for this Phase 4 hearing, and Order No. 5 has been submitted for approval with no objections from the Parties.
REVIEW OF THE EVIDENCE AND FINDINGS
7The documentary evidence filed, reviewed, and considered for the purposes of the Phase 4 hearing include the Joint Document Book of the Parties, undated; the statement of Mr. Baksh dated February 17, 2023; the Employment Area Conversion Impact Analysis Report by Urban Metrics dated December 21, 2022 with supporting Document Book and statement of Mr. Kent Randall both dated February 17, 2023; the statement of Daryl Keleher along with his reply statement dated February 17, 2023 and March 31, 2023, respectively; and the statement of Paul Lowes and his reply statement dated February 17, 2023 and March 31, 2023, respectively.
8In support of the Motion before this Tribunal, Mr. Baksh swore an Affidavit dated May 9, 2023, which the Tribunal has reviewed and considered, together with all supporting documentation thereto and his viva voce evidence. Mr. Baksh, who has provided expert opinion evidence in previous phases, and executed a filed Acknowledgment of Expert’s Duty, is accepted by the Tribunal as an expert qualified to provide opinion evidence in land use planning.
9Mr. Baksh has provided the background information as to the recommended policy and mapping modifications made to OPA 16 and OPA 13, the particulars of which are set out in Schedules “A” and “B” of Order No. 5, now approved by this Tribunal.
10As confirmed by Mr. Baksh’s testimony, the modifications are predominantly editorial in nature, provide clarification, improve readability, improve organization, align with policy, and are consistent with changes triggered by Tribunal decisions and/or Ministerial Zoning Orders (“MZOs”).
11Essentially, the textual modifications (“Mod(s)”) provide clarity and/or updated cross-referencing to the applicable sections of the CKLOP, where necessary, specifically on policies related to: residential designations (Mod No. 1a, 1b, 2, 3, 4), heritage conservation district (Mod No. 5), commercial land uses (Mod No. 6), central business district (Mod No. 8), central water front district (Mod No. 9), general commercial land uses (Mod No. 10), general commercial designation (Mod No. 11), highway commercial designation (Mod No. 13), service employment designation (Mod No. 14), local commercial designation (Mod No. 15), employment designation (Mod No. 16), “Kent Street West Area” and mixed use corridor areas (Mod No. 17), school sites (Mod No. 20), symbology for parks (Mod No. 21), cost-sharing respecting sub-area “Jennings Creek” (Mod No. 22), mixed-use gateway designation (Mod No. 23), redesignation of lands within the “Policy Area No. 3 (Special Study)” (Mod No. 25), housing and intensification (Mod No. 26), design of public open spaces (Mod No. 27), transit (Mod No. 28), and highway commercial designation (Mod No. 29).
12In addition, further textual changes relate to removing conflicting policy respecting commercial development (Mod No. 7), reorganizing policies to be placed under the appropriate sections of the Lindsay SP (Mod No. 12), interpretation of a MZO (Mod No. 24), recognizing City jurisdiction and development approval requirements in proximity to the Lindsay Airport (Mod No. 18), clarity on the intent of Schedule “G-1” (Mod No. 19), and the requirement for an OPA to designate new commercial lands (Mod No. 30).
13Regarding the proposed mapping modifications, those may be found at Schedule “B” of the Order No. 5 included in this Decision. Those modifications include changes to reflect: the Lindsay settlement area boundary (Mods No. F0 (Part A and Part B), No. G0 (Part A and Part B), and No. H0 (Part A and Part B)), editorial changes related to graphics and notations (Mods No. F1, No. F2, No. F3, No. F16, No. F17, No. F18, No. F20, No. G1, No. G2 and No. H1), identification of lands subject to MZOs (Mods No. F4, No. F5a, No. F5b, No. F5c, No. F11, No. F22, No. F26a and No. F26b), clarity to the legend on the maps (Mods No. F6, No. F7, No. F10, No. F12, No. F13, No. F14, No. F19, and No. F21), land use designation changes to reflect current development in the Jennings Creek area (Mods No. F8a, No. F8b, No. F9, and No. F15), and clarity on the lands now subject to the new “Policy Area No. 3 (Special Study)” designation (Mods No. F23, No. F24, and No. F25).
14Mr. Baksh confirmed to the Tribunal that these modifications are an appropriate means of resolving the entirety of the issues tabled for this Phase 4 hearing.
15Mr. Baksh has provided his professional opinion that the modifications to OPA 16 and OPA 13 reviewed above are consistent with the Provincial Policy Statement, 2020 (“PPS”) and the CKLOP. Mr. Baksh is of the opinion that Order No. 5 will conform to the Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”), and that these policies, maps, and appendices to the relevant OPAs, as referred to and amended with this Order, are consistent with matters of Provincial interest and represent good planning in the public interest.
16The Tribunal accepts the uncontroverted planning evidence provided by Mr. Baksh and finds that the proposed policy and mapping modifications to OPA 13 and OPA 16, as they will be implemented by the appended Order, is consistent with the CKLOP, the PPS, conforms to the Growth Plan, has regard to matters of Provincial interest as provided for in s. 2 of the Planning Act (“Act”), and represents good planning in the public interest.
17The Tribunal finds that the proposed draft Order submitted in support of the Motion is appropriate and approves the proposed policy and mapping modifications to OPA 13 and OPA 16.
POTENTIAL POLICY CONFLICT AND WITHHOLDING OF ORDER:
18Following the conclusion of the Motion heard on May 23, 2023, a Party raised concerns about the prospect of having two official plan policy documents in force and effect at the same time. This situation would arise if the Order included in this Decision comes into effect as of the date of issuance of this Decision; since By-law No. 2017-142, which adopted the Lindsay SP, is silent on the repeal of the LOP. The Parties are therefore in agreement that per s. 17(50.1) of the Planning Act, the LOP must be repealed through a separate process which would require approval by the Minister of Municipal Affairs and Housing. The question that arises then, is what happens to the Lindsay SP in the interim?
19A continued teleconference on this issue took place on June 16, 2023, wherein submissions were received from Counsel for both Stollar Construction Limited (“Stollar”) and the City. While counsel for Bromont Homes Inc. voiced support for the submissions of the City, the balance of the Parties took no position on this issue.
20Two courses of action were put forward. The first is from counsel for Stollar who proposed to withhold Order No. 5 until such time as the LOP has been formally repealed through Ministerial approval. The second is from counsel for the City who proposed the following transitionary clause:
The City is in the process of repealing the Town of Lindsay Official Plan, which is being replaced by the Lindsay Secondary Plan. In the interim, to the extent that both plans apply, the policies and maps of the Lindsay Secondary Plan shall prevail in the event of a conflict.
21Submissions from counsel for Stollar set out three (3) key arguments in favour of withholding Order No. 5. The first is that a transitionary clause allowing two competing policies to be in simultaneous effect would result in a genuine conflict of law, would be difficult to ascertain and would invite further appeals during the period of transition. Mr. Kehar, representing Stollar, submitted that official plans and policies are not prescriptive and need to be read as a whole. Unlike official plans of upper and lower tier municipalities which are to be read together, in this instance there are two distinct plans drafted at different times and with different goals and objectives in mind. As such, ascertaining whether there is a true conflict would be up for debate since each plan policy is meant to be interpreted in a flexible manner to achieve their respective goals and objectives. Attempting to read them together to determine which policies prevail would effectively invite disputes between the public and private interests and would be contrary to matters of Provincial interest as set out in the Act.
22The second argument regards jurisdiction. Mr. Kehar argued that since the parties have agreed there is no jurisdiction to repeal the OP without a Council motion and Ministerial approval, the City is now attempting to do indirectly through a transitionary clause what it cannot do directly; that is, to stipulate that the Lindsay SP trumps the LOP which would not be effective in the event of conflict.
23The third and final argument regards the balance of prejudice. Mr. Kehar submitted that this issue was raised with the City several years ago when the matter was before Council, therefore the City has been aware that a repeal of the LOP was required but has failed to take a prompter course of action. Mr. Kehar argued that having two policies in effect at the same time which could create a genuine conflict in law, as set out above, poses greater prejudice to the public interests than does delay to the public or the City in withholding the Lindsay SP until the former LOP has been formally repealed. In other words, the prejudice of temporary delay does not outweigh the prejudice to the public in the creation of potential policy confusion and conflict.
24On the other hand, the City submitted that steps have been taken to ensure that the LOP will be repealed pending the approval and coming into effect of the Lindsay SP and that earlier action would not have been appropriate pending a final resolution on the Lindsay SP. Ms. Koev, for the City, submitted that because that separate public process requires notice and a public meeting, the repeal could be in place within the next 2-3 months; however, there would be no control over the timing of the Minister’s approval. In any event, all Parties agreed that in either course of action, whether withholding Order No. 5 or implementing a transitionary clause, it would amount to a relatively short period of time.
25Ms. Koev further submitted that it was in the interests of the various stakeholders to have Order No. 5 issued immediately. With the implementation of a transitionary clause, there would be clear directive, no need for amendments to the LOP in the interim, and development applications would be permitted to be advanced from those who have been waiting for OPA 16 to come into effect. Ms. Koev suggests the transitionary clause also addresses any potential conflicts that may arise between outdated policy regime in the LOP and the Lindsay SP by way of a “stop-gap”, with language that is not unusual in situations where such potential conflict between two pieces of legislation may arise. On this basis, Ms. Koev submits that the Tribunal does have jurisdiction to approve policy and modify the Lindsay SP, which is different from repealing an entire policy currently in effect.
26With respect to the final argument of prejudice, Ms. Koev submitted that the only Party raising issue with the transitionary clause is the Appellant, Stollar, and that there is no true prejudice that affects any other stakeholder. Ms. Koev raised concern that, in fact, tying up Order No. 5 until a Ministerial order is made would prejudice individuals who have development applications pending OPA 16 coming into effect. Additionally, she raised concern that withholding Order No. 5 could stall the progress that the Parties have historically been able to make in cooperatively reaching resolution of the various phases of these appeals. Allowing Order No. 5 to take effect immediately would avoid impeding on any further progress that could be made leading up to the upcoming Case Management Conference on Tuesday, August 8,2023, which deals with Phase 5 of the hearing.
27Mr. Andres for the Appellant, Bromont Homes Inc., added that these proceedings have been ongoing for a lengthy period of time. While Mr. Kehar’s arguments are understandable from a technical perspective, Mr. Andres’ preference is to proceed with the transitionary clause as there is uncertainty in the length of time it could take to obtain Ministerial approval of the LOP repeal.
Findings
28The Tribunal finds that the proper course of action in this case is to withhold Order No. 5 until such time as the Minister approves the formal repeal of the LOP. In so finding, the Tribunal relies on its general mandate to deliver administrative justice in a fair, effective and efficient manner which promotes public confidence. It further relies on s. 2(n) of the Act which directs the Tribunal to have regard to matters of Provincial interest including “the resolution of planning conflicts involving public and private interests”.
29The Tribunal must take caution in allowing two competing official plan policies to be in force and effect simultaneously and approving transitionary language in that regard. This is particularly so where, as in this case, there is an alternative course of action. By withholding the Order which brings the new policy into effect, the potential conflicts that might arise are avoided at first instance. Stated differently, the Tribunal accepts Mr. Kehar’s submissions that allowing the two policy plans to be in force at the same time by way of inserting transitionary language could result in genuine conflicts of law that would create dispute and invite further appeals in resolving those disputes. The Tribunal’s mandate is to resolve conflict, and it must avoid the consequence of creating potential further conflict where the same can be reasonably avoided.
30Additionally, the Parties have both submitted that in either of their respective courses of action, whether by way of withholding Order No. 5 or implementing a transitionary clause, the overall period of delay or transition is only temporary and amounts to a relatively short period of time. The Tribunal accepts these submissions and finds that the period of delay in withholding Order No. 5 is relative short. It will not result in any undue prejudice to the public or the Parties that would outweigh the prejudice in allowing potential legislative conflict that could result in further dispute and invite additional appeals which would put unnecessary pressure on the resources of stakeholders and, ultimately, this Tribunal.
31The Tribunal further rejects the notion that withholding Order No. 5 may stall the progress of the Parties at reaching amicable resolution of the issues in the remaining phases of these appeals. Order No. 5 has already been settled in substance. The Parties, as in all cases before the Tribunal, are expected to work cooperatively together to scope, narrow and resolve issues where it is possible to do so.
ORDER
32THE TRIBUNAL ORDERS that:
a. This final Phase 4 Order, inclusive of Schedules “A” and “B” which approve modifications to OPA 13 and OPA 16 as set out therein, shall be withheld until the Tribunal has received confirmation of the Ministerial approval of the formal repeal of the Lindsay Official Plan;
b. OPA 13 Policy 18.4.4 is modified in accordance with Modification No. 30 shown in Schedule “A” to this Order and such modification is approved, subject to the Tribunal receiving confirmation of the Ministerial approval of the formal repeal of the Lindsay Official Plan;
c. OPA 16 is modified as set out in Schedules “A” and “B” to this Order and that the sections, policies, text and maps so modified are approved, subject to the Tribunal receiving confirmation of the Ministerial approval of the formal repeal of the Lindsay Official Plan;
d. Subject to the Tribunal receiving confirmation of the Ministerial approval of the formal repeal of the Lindsay Official Plan, OPA 16 Policy 31.2.2.8.4 is modified to read as follows: “To ensure that acceptable levels of service are maintained, it is expected that the infrastructure and services provided for new developments and redevelopments in Lindsay will be sized, located and designed to comply with the Council adopted engineering standards, guidelines and criteria”;
e. The only outstanding appeals pertaining to OPA 13, belonging to J. Stollar Construction Limited and Flato Lindsay Community Inc., have been resolved through this Order;
f. All of the outstanding appeals pertaining to OPA 16 have been resolved through this Order; and,
g. The Schedules which are attached to this Order shall form part of the Order.
“N. Eisazadeh”
n. eisazadeh
MEMBER
“Steven Cooke”
Steven cooke
VICE-CHAIR
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.