Fasken v. Lake of Bays (Township), 2023 CanLII 83041

Ontario Land Tribunal

Issue Date: September 06, 2023 Case No(s).: OLT-21-001716

Proceeding Commenced Under: subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Langmaid's Island Corporation Appellant: Mitchell Fasken Subject: Zoning By-law Description: Community Planning Permit 2021-111 Reference Number: By-Law 2021-111 Property Address: Township of Lake of Bays Municipality/UT: Lake of Bays OLT Case No: OLT-21-001716 OLT Lead Case No: OLT-21-001716 OLT Case Name: Fasken v. Lake of Bays (Township)

Heard: July 26, 2023 by Video Hearing

Appearances

Parties	Counsel
Township of Lake of Bays	John Ewart
Langmaid’s Island Corporation Mitchell Fasken	Andy Margaritis Mark Flowers (in absentia) Jennifer Meader

Memorandum of Oral Decision Delivered by G.A. Croser on July 26, 2023 and Order of the Tribunal

Introduction

1This is the third Case Management Conference (“CMC”) with respect to appeals brought by Langmaid’s Island Corporation (“Langmaid”) and Mitchell Fasken (“Fasken”) pursuant to s. 34(19) of the Planning Act, relating to Community Planning Permit By-law No. 2021-111 passed by the Council of the Township of Lake of Bays (“Township”).

2At the second CMC held on May 25, 2023, a third CMC was requested at which the Tribunal would either be presented with a settlement between the Township and Langmaid or provided with a Procedural Order (“PO”) and Issues List (“IL”) if a settlement was not reached.

Status Update

3The Tribunal received a draft PO and an extensive IL in advance of this third CMC.

4At the CMC, Counsel for the Township and Langmaid indicated that, while they were not yet in a position to settle, they were hopeful of resolving their part of the appeal prior to the Hearing dates. The Tribunal received no update on the status of the appeal between the Township and Fasken.

Scheduling of Hearing

5While the PO indicated that a three-day Hearing would be required, Counsel for all Parties present at the CMC agreed this was overly ambitious. A seven-day Hearing was agreed upon by the Parties, with the understanding that if some of the IL was resolved, then the length of the Hearing could and should be reduced.

6While the Tribunal appreciates that it is simpler to schedule more time than is actually required for a hearing on the merits, it is a less efficient use of the Tribunal’s limited resources. The Parties are directed to provide the Case Coordinator with a written update on the status of the appeals at least sixty (60) days in advance of the Hearing. This should include whether all seven days remain necessary to conduct the Hearing on the merits. In this manner, any excess days can be reallocated to other appeals and ensure that the Tribunal’s resources are utilized in a more effective manner.

7Counsel for the Township undertook to update the PO with the necessary dates once the Hearing event had been scheduled. The Tribunal has now received the revised PO on the consent of all Parties, and it has been included with this decision as Schedule 1.

Mediation

8The Tribunal encourages all Parties to cooperate and continue to move towards resolving aspects of the appeal. The Tribunal reminded the Parties of the availability of Tribunal led mediation and that this can be utilized to assist in scoping issues – not just for the resolution of an entire appeal. Should the Parties wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator.

Scheduling of Hearing

9The Tribunal has scheduled a seven- (7) day Merit Hearing to proceed by Video Hearing commencing on Monday, March 25, 2024, at 10 a.m. The Parties were informed that the Tribunal will not be sitting on March 29, 2024, and April 1, 2024, for Good Friday and Easter Monday, respectively.

10Parties 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:

https://global.gotomeeting.com/join/914098901

Access code: 914-098-901

11Parties 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

12Persons 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: +1 (647) 497-9373 or Toll-Free 1-888-299-1889. The access code is 914-098-901.

13Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the Hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

14The Parties are reminded that, in the event of a settlement, the Case Coordinator should be informed, and that Minutes of Settlement, other supporting documents and relevant material are to be forwarded to the Tribunal in advance of the Settlement Conference.

Order

15THE TRIBUNAL ORDERS that:

a. The Merit Hearing is scheduled to commence on Monday, March 25, 2023, at 10 a.m. by Video Hearing for a period of seven (7) days.

b. The Parties are to provide the Case Coordinator with a written status update no later than Wednesday, January 24, 2024, including whether all Hearing dates remain required, and if not, then how many days can be released.

12The Member is not seized.

13No further notice is required.

“G.A. Croser”

G.A. CROSER 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.

Schedule 1

Case No(s).: OLT-21-001716

Proceeding Commenced Under: subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Langmaid's Island Corporation Appellant: Mitchell Fasken Subject: Zoning By-law Description: Community Planning Permit 2021-111 Reference Number: By-Law 2021-111 Property Address: Township of Lake of Bays Municipality/UT: Lake of Bays OLT Case No: OLT-21-001716 OLT Lead Case No: OLT-21-001716 OLT Case Name: Fasken v. Lake of Bays (Township)

Procedural Order

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The Hearing will begin on March 25, 2024 at 10 a.m. via Video Hearing at:

https://global.gotomeeting.com/join/914098901

Access code: 914-098-901

3. The parties’ initial estimation for the length of the hearing is 7 days. The Tribunal will not be sitting on March 29, 2024 and April 1, 2024. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 3 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Monday, November 27, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting at least once on or before Friday, January 5, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and identify the remaining issues to be addressed at the hearing with the Tribunal case co-ordinator and all other Parties on or before Monday, January 15, 2024.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing, the acknowledgement of expert’s duty and curriculum vitae. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony. For greater certainty, each expert witness must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before Monday, February 5, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the Tribunal case co-ordinator in accordance with paragraph 22 below.

14. On or before Monday, February 5, 2024, a participant shall provide copies of their written participant statement to the other parties and to the Tribunal case co-ordinator in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before Wednesday, January 24, 2024 the parties shall provide the Tribunal with a written status update including whether all reserved hearing dates remain required and if not, how many of the reserved days can be released.

16. On or before Monday, March 11, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before Friday, February 23, 2024 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal case co-ordinator on or before Friday, March 15, 2024.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, March 18, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be put to the witness and shared with the Tribunal and the other parties at that time, or pursuant to the directions provided by the Tribunal or the case coordinator.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

Attachment 1

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.

Attachment 2

Issues List

(DRAFT)

Langmaid’s Island Corp. Appeal of Township CPP By-law 2021-111 Draft List of Issues

General

1. Should By-law 2021-111 (the “By-law”) be revised to include a site-specific exception that incorporates the decision of the Ontario Land Tribunal (“OLT”) in OLT Case No. OLT-22-002970 (OLT Lead Case No. OLT-22-002969) issued on September 12, 2022, together with any modifications as may be considered appropriate?

Definitions

2. Is the definition of “Height” contained in the By-law sufficiently clear, appropriate and reasonable particularly as it relates to proposed development on an island that contains undulating grades and sloping?

3. Is the definition of “Footprint” contained in the By-law sufficiently clear, appropriate and reasonable, particularly when read together with the maximum lot coverage provision?

4. Is the definition of “Footprint” contained in the By-law consistent with or comply to the Ontario Building Code?

5. Should the definition of “Footprint” contained in the By-law be revised to identify whether landscaping (walkways, foot paths, pathways etc.), a built structure (deck less than 0.6m in height etc.), or built form etc. is captured within the definition of same?

   1. If so, what type of each is to be included in that definition?

Sleeping Cabins

6. Should three (3) sleeping cabins be permitted to be situated greater than six (6) meters from the exterior wall of a detached dwelling, if so, at what distance?

7. What visual or ecological impact, if any, would result from the placement of three (3) sleeping cabins situated greater than six (6) metres from the exterior wall of a detached dwelling?

8. Should there be a requirement to provide pathways or walkways (including the type of materials to be utilized) to connect multiple sleeping cabins amongst one another, as well as to a detached dwelling, and should the area of these pathways or walkways be included in the definition of “Footprint” in the By-law?

Dwellings

9. Does the one size fits all approach contained within section 3.5 of the By-law regarding dwelling unit size, maximum gross floor area and width appropriate, reasonable and make for good planning?

10. What planning rationale or justification has been provided to establish that the maximum gross floor area and widths contained in section 3.5 of the By-law will be effective?

11. Does section 3.5.1.3 of the By-law related to maximum width of a dwelling acknowledge or recognize other opportunities, including but not limited to, existing and/or proposed vegetation, built form and architectural design, topography and sloping etc., that may more effectively ensure that dwelling facades do not dominate the visual or built form of a property? If not, should section 3.5.1.3 specifically acknowledge these other opportunities and provide exemptions to the maximum width requirement?

12. Should maximum gross floor area and widths of dwellings be removed from the By-law?

DRAFT ISSUES LIST – Mitchell Fasken

1. Section 1.5. regulates vegetation above 1 m in height. Is this too restrictive and should the threshold be revised to height of 2.4m or a diameter of 15 centimeters at 1.4 meters above the ground (DBH)?

2. Should Section 1.9 include a principal to encourage the growth, economic sustainability of existing and future business and promote new commercial uses to establish in the Settlement areas?

3. Do the land use maps found on the District of Muskoka web site correctly correspond to the Settlement land use categories within the CPP bylaw and Official Plan? Further do the CPP land use layers properly identify the intended CPP areas? Are there ways to provide clarity to ensure the public can properly review these maps?

4. Should Section 2.4.1(d) include a threshold test to define “development” whereby exempting minor works on a lot? As an example, works impacting greater than 10% of the lot, would be considered development and require a Planning Permit.

5. Is the one year timeline included in Section 2.10.5 too short? It should be increased to a minimum of 2 years as timing for construction can often be limited due to seasonality, weather and availability.

6. Should the word “may” in Section 2.10.6 be removed and replaced with "shall"?

7. Should Section 2.11.2. f) be revised so that this provisionould only apply to new commercial properties or multi family residential project but not to single family lots? Should Section 2.11 AG) be revised so that the provision of a record of site condition is only be required where the land use, consistent with REG 153-04, is moving to a more sensitive use and a Phase 1 and if required a Phase 2 confirms there is contamination on the site that exceeds the applicable site condition standard of the proposed use?

8. Should Section 2.14.1 a) ii) be revised todecrease the distance to a natural heritage feature or area?

9. Is the exemption in Sections 2.14.1 e) and 3.26.3.2 of fill placement of 10 cubic metres is too low? A more realistic criteria may be 30cu m. to avoid over regulation by staff and the unnecessary financial burden on landowners.

10. Should Section 2.15.1.3 be revised to reduce the extensive list of potential studies and reports? Should items such as 1, 4, 6, 13, 15 to 45 and 46 be deleted from conventional single family dwelling construction or renovation applications?

11. Should Section 2.15.1.4 be clarified to separate conventional permits and complex permits?

12. Should Section 2.15.3.2 include a timeline for the response of the Director?

13. Should Section 2.16.4.8 B) be clarified to describe when the studies are required?

14. Should Section 3.3.1 (d) be deleted?

15. Should Section 3.3.2 be deleted?

16. Should Section 3.5.1.1 be deleted?

17. Should Section 3.5.1.2 be deleted? What is the planning rationale to move from a footprint to a GFA calculation and what was the criteria used to settle on 700 square metres?

18. Should Section 3.5.1.3 be deleted?

19. Should Section 3.23.1.1 exempt the Settlement designations? If not, should the activity area be increased?

20. Should Section 3.23.2.3 be amended to only apply to a residential lot?

21. Should Section 3.23.3.1 exempt the settlement designations? If not should the activity area be increased?

22. Should 3.26.1.1 be amended to exclude the issuance of a permit when removing vegetation from a complying Shoreline Activity Area?

23. Is the rate for replanting in Section 3.26.2.1 too high?

24. Should Section 3.26.3.3 be amended to require a grading plan identifying fill placement and only require an Environmental Impact Study where the fill placement has the potential to increase erosion or impact vegetation and/or surrounding natural features?

25. Should the second paragraph in Section 4.4 be deleted in its entirety?

26. What is the relationship between the land uses on Schedule “A” and the C3 zone? Is that relationship appropriate?

27. Should the existing EP designations on the land use map be reviewed,

A) at the mouth of the Dorset Narrows; and

B) Adjacent to the Shell Gas station lands?

Attachment 3

Parties and Participants

Status	Name	Counsel
Appellant	Langmaid’s Island Corp.	Davies Howe LLP Mark Flowers 1-416-263-4513 markf@davieshowe.com Andy Margaritis 1-416-263-4520 andym@davieshowe.com
Appellant	Mitchell Fasken 1-416-580-5499 Mitchell.fasken@bellnet.ca	Turkstra Mazza Associates Jennifer Meader 1-905-529-3476 ext. 2740 jmeader@tmalaw.ca
Party	The Corporation of the Township of Lake of Bays	Ewart O'Dwyer M. John Ewart 1-705-874-0404 jewart@ewartodwyer.com

Attachment 4

Order of Evidence

1. Langmaid’s Island Corp.
2. Mitchell Fasken
3. Township of Lake of Bays
4. Langmaid’s Island Corp., in Reply
5. Mitchell Fasken, in Reply