Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 01, 2023
CASE NO(S).: OLT-22-003802
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Deanna Osborne
Appellant: Fernando Dias
Appellant: Michael Vecchio and others
Subject: Zoning By-law
Description: New Comprehensive Zoning
Reference Number: BL 1/2022
Property Address: City Wide
Municipality/UT: Thunder Bay/Thunder Bay
OLT Case No.: OLT-22-003802
OLT Lead Case No.: OLT-22-003802
OLT Case Name: Dias et al. v. Thunder Bay (City)
PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Thunder Bay
Request for: Request for Dismissal Without a Hearing
Heard: February 28, 2023 by video hearing
APPEARANCES:
Parties Counsel*/Representative
City of Thunder Bay M. Grimaldi*
Deanna Osborne, Taras Kolomeychuck, Michael Vecchio S. Huzan
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN COOKE ON FEBRUARY 28, 2023 AND THE ORDER OF THE TRIBUNAL
LINK TO ORDER
1The matter before the Tribunal is a motion by the City of Thunder Bay (the “City”), requesting the relief that the appeals to the Comprehensive Zoning By-law (“By-law No. 1/2022”) be dismissed without a hearing pursuant to s. 34(25) of the Planning Act, R.S.O. 1990, c P.13, as amended (the “Planning Act”).
2The Affidavit of Service attesting that proper notice had been given by the City, pursuant to Rule 10 of the Tribunal’s Rules of Practice and Procedures (“Rules”) was filed as Exhibit 1.
APPELLANTS
3Stefan Huzan appeared before the Tribunal to represent Deanna Osborne, Taras Kolomeychuck, and Michael Vecchio (collectively the “Appellants”). Mr. Huzan is a planning consultant, who stated to the Tribunal that he is in compliance with the Law Society of Ontario rules.
4During the introductions of the Parties, Mr. Huzan indicated that he was also representing Fernando Dias. On February 14, 2023, the Tribunal received an email from Mr. Dias entitled “Not pursuing with zoning fight”. The email from Mr. Dias requests that his name be taken off from the appeals to the Zoning By-law. Mr. Huzan was not aware of the decision of Mr. Dias. As Mr. Dias was not in attendance to verify whether or not Mr. Huzan still represented him, the Tribunal directed that Mr. Huzan could proceed to represent the Appellants excluding Mr. Dias.
5As Mr. Dias did not appear at the proceedings and based on the email to the Tribunal that indicated he would no longer be “pursuing the zoning fight”, the Tribunal considers that his appeal of By-law No. 1/2022 to have been abandoned and dismisses his appeal.
HEARING OF THE MOTION
6The intent of By-law No. 1/2022 is to replace the previous Comprehensive Zoning By-law, By-law No. 100/2010, and to bring the City’s zoning regulations into conformity with the City’s Official Plan (“OP”) as it is required to do so by the Provincial Policy Statement (“PPS”), and s. 24(1) of the Planning Act. The City began an extensive public consultation process in 2021, that resulted in the City Council’s adoption of By-law No. 1/2022, pursuant to s. 34(18) of the Planning Act, on April 11, 2022.
7Michael Grimaldi appeared before the Tribunal as counsel for the City. Mr. Grimaldi filed the City’s motion record that includes the Affidavit of Jillian Fazio, and the various Affidavits of Deco Lopes, which the Tribunal marked as Exhibit 2.
Deanna Osborne Appeal
8It is the position of the City, that By-law No. 1/2022 was created to review the city-wide zoning and replace the existing By-law No. 100/2010 framework comprehensively.
9The City informed the Tribunal that Ms. Osbourne has appealed the Comprehensive Zoning By-law No. 1/2022, with a new site-specific amendment for her property. The City argues that allowing such amendments during a comprehensive zoning overhaul would go against the purpose of the Planning Act. Mr. Grimaldi stated that the City believes it would compromise the fairness, openness, and accessibility of the planning process as the public is unlikely to consider the amendment's merits amidst more significant considerations. The Site-specific amendments, like the one raised by Ms. Osbourne, are better addressed through a dedicated zoning by-law amendment process.
10Mr. Grimaldi raised with the Tribunal that By-law No. 1/2022 maintains the status quo for Ms. Osbourne's property from the existing By-law No.100/2010. The City believes these appeals are frivolous, raise no genuine planning issue, and have no reasonable prospect of success given the nature of the proposed Comprehensive City-wide Zoning By-law.
11Mr. Huzan stated/argued that the suggestion by the City that the appeal by Ms. Osborne “raises no genuine planning issue” is incorrect. Mr. Huzan submits that Ms. Osborne is concerned about the City-wide limitation to the lot frontages and is requesting that By-law No. 1/2022 reflect the desired lot frontages as she would like to subdivide her above-mentioned properties into reasonable-sized lots.
12When asked why Ms. Osborne did not make the appropriate request for a zoning by-law amendment, it was explained that the planning process is complicated for most individuals and that Ms. Osborne was doing her best to understand the process. The Tribunal appreciates that the planning process can sometimes be onerous but does not release an applicant of their responsibility to appropriately address their planning issues.
Taras Kolomeychuck Appeal
13On September 21, 2021, Mr. Huzan made contact via email with City Planning Staff to raise particular site-specific concerns. The City Staff responded to Mr. Huzan that the site-specific concerns would be raised with the City Staff team responsible for developing the Planning Staff report recommending By-law No. 1/2022.
14Mr. Grimaldi stressed that at no time was there any indication that this exchange was or would be considered as a written submission to Council.
15The City planning Staff report was presented to the Council’s Committee of the Whole in October 2021, with the approval to launch the official public planning process on November 8, 2021. Mr. Grimaldi stated to the Tribunal that these reports before Council did not contain the site-specific provisions requested by Mr. Huzan on September 21, 2021.
16Mr. Kolomeychuck’s site-specific concerns relate to the property municipally known as 1705 Arthur Street West that contains an existing cemetery. It is the appeal of Mr. Kolomeychuck that By-law No.1/2022 does not recognize the existing use and does not list a cemetery as a permitted use for 1705 Arthur Street West. The City Staff maintain that the preceding Comprehensive Zoning By-law No. 100/2010 also did not list a cemetery as a permitted use of the property.
17Mr. Grimaldi informed the Tribunal that at no time during the official planning process (launched on November 8, 2021 and culminating with the Council’s adoption of By-law No. 1/2022 on April 11, 2022) did Mr. Kolmeychuck or his representative make written or oral submissions to Council requesting the site-specific provisions. It is the position of the City that as the only correspondence in relation to By-law No. 1/2022 came before the public planning report to be considered by City Council, Mr. Kolomeychuck did not comply with the requirements of participation in the legislative planning process. Mr. Grimaldi cited Liddy v Vaughan (City), 2015 ONSC 5939:
The Board concluded otherwise. It found, in effect, that s.34(19) 2 requires participation whether orally or in writing in a meeting at which the by-law, itself, was considered by council. In my view, this conclusion is manifestly reasonable. It is consistent with five prior OMB decisions: Loblaw Properties Ltd., Re (2011), 68 O.M.B.R. 473 (O.M.B.), North Kawartha (Township) By-law No. 95-13, Re, 2014 CarswellOnt 9243 (O.M.B.), Mulmur (Township) By-law No. 50-13, Re (2014), 81 O.M.B.R. 340 (O.M.B.), Mattamy Realty Ltd., Re (2012), 72 O.M.B.R. 75 (O.M.B.), Ontario (Minister of Municipal Affairs & Housing), Re, [2011] O.M.B.D. No. 778 (O.M.B.). It reflects the purpose of the standing requirement, which is to ensure that matters are decided at first instance by City Council and it makes it more practical for the City to know and give personal notice to all persons with standing to bring an appeal. As is reflected in the cases and in the history of the case at bar, the planning process for a large project, such as a public hospital, affords members of the public many opportunities and ways to make their views known. Only addressing City Council orally or in writing in respect of the by-law itself, however, will give someone legal standing for an appeal of the by-law under s.34(19) 2.
Michael Vecchio Appeal
18Mr. Vecchio’s Appeal pertains to a single property municipally known as 1059 Golf Links Road and are zoned FT “future development zone” by By-law No. 100-2010. This property is proposed to be zoned BU “business use zone” in By-law No. 1-2022. Specifically, Mr. Vecchio objects to Zoning By-law No. 1-2022's failure to include residential uses on these lands.
19The City submits that to appeal a zoning by-law, s. 34(19) of the Planning Act requires the individual to provide a notice of appeal that outlines the objection to the by-law and supporting reasons. Additionally, s. 34(19.0.1) mandates that if the appellant intends to argue that the By-law is inconsistent with the relevant City's OP or the PPS, the appeal notice must explain how.
20The Divisional Court has emphasized that mere speculation about potential evidence is not enough to sustain an appeal. Mr. Grimaldi took the Tribunal to Bacher v GR (CAN) Investments et al. 2022 ONSC 2937, in which the court cited prior decisions of the Tribunal in support of this position. It states in paragraph [36]:
The onus on an appellant was explained in Calloway REIT (Whitby NE) Inc. v. Whitby (Town), 2020 CarswellOnt 18046 (O.M.B.), at paras. 14-15, as follows:
It is not necessary for an appellant responding to a motion to dismiss to convince the Tribunal that its appeal will succeed. Rather, the onus is on the moving party to demonstrate that an appeal does not contain a legitimate land use planning ground that could succeed if the matter proceeded to a hearing.
Numerous OMB and Tribunal decisions on motions to dismiss have considered the evidentiary requirements for an appeal to survive such a motion. While expert evidence — planning or otherwise — is not required for an appeal to proceed to a hearing, the Tribunal will carefully consider such evidence when it is tendered during the motion. Where an appellant disagrees with data or expert analysis that support a proposed development, the Tribunal expects the appellant to present its own analysis in support of its appeal. The Tribunal therefore expects that when an appellant tenders evidence in response to a motion to dismiss its appeal, the evidence will support the case the appellant intends to make to the Tribunal at the hearing. Similarly, and in accordance with the long line of OMB and Tribunal cases on these motions, that evidence must rise above the level of mere speculation and apprehension if the appeal is to survive the motion. [Citations omitted.]
21The City informed the Tribunal that although Mr. Vecchio's appeal does not contend that By-law No. 1/2022 is inconsistent with the OP, he has been informed multiple times that the zoning by-law amendment he is requesting is inconsistent with it. As a result, the City maintains that Mr. Vecchio should have addressed any potential issues with the City OP’s consistency in his appeal and explained in greater detail how his requested amendment would align with the City's OP. The City stated that Mr. Vecchio's appeal does not mention the City's OP at all, let alone provide an argument supporting how his requested amendment would comply with it. As outlined in the affidavits of the City Staff, this issue was raised to Mr. Vecchio on several occasions. Given this deficiency in addressing key elements of the appeal, the City takes the position that the Tribunal should have no difficulty concluding that Mr. Vecchio's appeal does not raise a genuine planning issue, has no reasonable prospect of success, and should be dismissed without a hearing.
FINDINGS OF THE TRIBUNAL
22Regarding Mr. Kolomeychuck’s appeal, it is the obligation of the appellant to make submissions directly to the City Council, either in writing or orally regarding By-law No. 1/2022. Mr. Kolomeychuck’s site-specific request from a cursory glance appears reasonable, and the Tribunal is at a loss as to why the City would not simply recognize the existing cemetery located at 1705 Arthur Street West as a land-use. While the Tribunal would encourage the City to reflect on the existing land-use of a cemetery that is not likely ever to change, this does not release the Appellant of his obligation to participate at the appropriate time and make written or oral submissions to the City Council to meet the requirements of s. 34(19) of the Planning Act The Tribunal concludes that Mr. Kolomeychuck did not make appropriate submissions and does not have standing to appeal.
23Ms. Osbourne's appeal concerns two adjacent properties municipally known as 3241 Fairview Avenue and 2270 Arthur Street West. The Tribunal was informed that Ms. Osborne objects to the minimum lot frontage and lot area provisions in Table 2.1.1 of Zoning By-law No. 1/2022. However, the City told the Tribunal that these requirements remain unchanged from By-law No. 100/2010. While Ms. Osbourne seeks a change to her minimum lot frontage for these appeals, the Tribunal concurs with the City that the zoning by-law changes to the properties in question would more appropriately be dealt with on a site-specific basis. As such, Ms. Osbourne’s appeal is dismissed.
24Mr. Vecchio's appeal is about a single property municipally known as 1059 Golf Links Road. He objects to the lack of residential use permitted under By-law No.1/2022. However, neither By-law No. 1/2022 nor By-law No. 100/2010 allow residential use at this property. The Tribunal having reviewed the material provided to it, is satisfied that the City staff made every attempt to ensure that Mr. Vecchio adequately addressed his concerns. It is the obligation and responsibility of a party to clearly state their concerns and objections in addressing their appeals. Mr. Vecchio failed to do so. As a result, Mr. Vecchio’s appeal is dismissed.
25Despite the Tribunal’s dismissal of the appeals to the comprehensive Zoning By-law No. 1/2022, for the above-mentioned appeals, Ms. Osbourne and Mr. Vecchio still have options to properly exercise the Planning Act changes that they seek on a site-specific basis.
26As noted, Mr. Dias did not appear and has indicated to the Tribunal that he is no longer pursuing his appeal.
27Having heard the submissions of the Parties and upon review of the Affidavits of Ms. Fazio and Mr. Lopes, for the above-stated reasons the Tribunal has granted the motion of the City and dismisses all appeals without a hearing.
ORDER
28THE TRIBUNAL ORDERS that the City of Thunder Bay’s motion is granted, and the appeals of Deanna Osborne, Taras Kolomeychuck, Michael Vecchio, and Fernando Dias are dismissed.
“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.