Chamberlain v. Kawartha Lakes (City), 2023 CanLII 90008

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 26, 2023

CASE NO(S).: OLT-22-003493 (Formerly PL160656)

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

Appellant: Randal Chamberlain

Applicant: Erik and Deborah Kiezebrink

Subject: Proposed Official Plan Amendment

Description: To permit a two-phase Country Inn development

Reference Number: OPA 21

Property Address: Part of Lots 4 and 5, Concession 2

Municipality/UT: Kawartha Lakes/Kawartha Lakes

OLT Case No: OLT-22-003493

Legacy Case No: PL160656

OLT Lead Case No: OLT-22-003493

Legacy Lead Case No: PL160656

OLT Case Name: Chamberlain v. Kawartha Lakes (City)

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Randal Chamberlain

Applicant: Erik and Deborah Kiezebrink

Subject: Zoning By-law Amendment

Description: To permit a two-phase Country Inn development

Reference Number: By-law 2016-118

Property Address: Part of Lots 4 and 5, Concession 2

Municipality/UT: Kawartha Lakes/Kawartha Lakes

OLT Case No: OLT-22-003494

Legacy Case No: PL160656

OLT Lead Case No: OLT-22-003493

Legacy Lead Case No: PL160656

Heard: August 28, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative
Randal Chamberlain (“Appellant”)	David Donnelly
Municipality of Kawartha Lakes (“City”)	Robyn Carlson
Erik and Deborah Kiezebrink (“Applicant”)	David Sunday Katherine Brush (in absentia)
Andrew and Ruth Thorogood	David Sunday Katherine Brush (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY G.A. CROSER ON AUGUST 28, 2023 AND ORDER OF THE TRIBUNAL.

1This Appeal was commenced under subsections 17(24) and 34(19) of the Planning Act, concerning the passing by the City of Official Plan Amendment No. 21 (“OPA 21”) and By-laws No. 2016-118, being By-laws to amend the City’s Official Plan (“OPA”) and Zoning By-law No. 1996-30 (“ZBA”) respectively. The purpose of the amendments was to enable the development of a Country Inn development at the property known municipally as Part of Lots 4 and 5, Concession 2 (“Subject Lands”).

BACKGROUND

2The Appeal was initiated by Randal Chamberlain on or about July 13, 2016. In the seven years since the filing of the appeal, there have been Case Management Conference (“CMC”), attempted resolution via mediation, and a change in ownership of the Subject Lands. The purpose of this CMC was to schedule hearing dates.

3The Tribunal received a sworn Affidavit of Service (“AOS”) dated August 2, 2023 confirming that proper notice of the CMC had been given. No concerns were raised by Counsel and the Tribunal was satisfied that proper notice of the hearing event was given and that no further notice is required. The AOS was marked as Exhibit 1.

PARTY STATUS REQUEST

The Subject Lands were formerly owned by the Applicants, Erik and Deborah Kiezebrink, through the corporation named Nestleton Waters Inn Inc. A change of ownership was registered on March 30, 2023, and Andrew Thorogood and Ruth Thorogood (the “Thorogoods”) are the successors in Title. Counsel for the Thorogoods was present at the CMC and requested that the Thorogoods be added as Parties to the Appeals. No objections were raised by either the City or the Appellant. Therefore, the Tribunal granted Party status to the Thorogoods in accordance with Rule 8.2 of the Tribunals Rules of Practice and Procedures.

SCHEDULING

4A draft Procedural Order (“PO”) was filed with the Tribunal in advance of the CMC requiring a hearing length of three days. After discussion with Counsel, this request was amended to five-day. An Issues List (“IL”) and updated PO were forwarded to the Tribunal by the Appellant following the CMC and are attached to this decision as Schedule-1.

5A further CMC was requested by Counsel for November 2023, with the understanding that the interim period will be used by the Parties to work together to resolve or narrow down the remaining issues.

6The Parties were reminded about the availability of Tribunal-led mediation which can be utilized to assist with narrowing the IL or assisting the Parties with reaching a resolution. If a settlement is reached prior to the November CMC, then the Tribunal expects to receive all supporting documentation for said settlement in advance of the November CMC date.

7The hearings are scheduled to proceed by video as follows:

Friday, November 17, 2023 at 10 a.m. (One-day CMC Hearing)

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

Access code: 909-787-981

Audio-only telephone line: +1 (647) 497-9391 or 1-888-455-1389

Audio-only access code: 909-787-981

Monday, January 22, 2023 at 10 a.m. (Five-day Merit Hearing) GoTo Meeting: https://global.gotomeeting.com/join/909787981 Access code: 909-787-981

Audio-only line: +1 (647) 497-9391 or 1-888-455-1389 Audio-only access code: 909-787-981

8Parties and Participants 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.

9Parties and Participants 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.

10Persons 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.

11Individuals 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.

ORDER

12THE TRIBUNAL ORDERS that,

i. Andrew Thorogood and Ruth Thorogood are granted Party Status.

ii. That a further Case management Conference is scheduled for Friday, November 17, 2023 at 10 a.m.

iii. That five-day Merit Hearing is scheduled to commence on Monday, January 22, 2024 at 10 a.m.

“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-22-003493 (Formerly PL160656)

ONTARIO LAND TRIBUNAL

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

Appellant: Randal Chamberlain

Applicant: Erik and Deborah Kiezebrink

Subject: Proposed Official Plan Amendment

Description: To permit a two- phase Country Inn development

Reference Number: OPA 21

Property Address: Part of Lots 4 and 5, Concession 2

Municipality/UT: Kawartha Lakes/Kawartha Lakes

OLT Case No: OLT-22-003493

Legacy Case No: PL160656

OLT Lead Case No: OLT-22-003493

Legacy Lead Case No: PL160656

OLT Case Name: Chamberlain v. Kawartha Lakes (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Randy Chamberlain

Applicant: Erik and Deborah Kiezebrink

Subject: Zoning By-law Amendment

Description: To permit a two phase Country Inn development

Reference Number: By-law 2016-118

Property Address: Part of Lots 4 and 5, Concession 2

Municipality/UT: Kawartha Lakes/Kawartha Lakes

OLT Case No: OLT-22-003494

Legacy Case No: PL160656

OLT Lead Case No: OLT-22-003493

Legacy Lead Case No: PL160656

OLT Lead Case No: OLT-22-003493

Legacy Lead Case No: PL160656

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 video hearing will begin on Monday, January 22, 2024 at 10 a.m. via video conference.

3. The parties’ initial estimation for the length of the settlement hearing is five (5) days. 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 1.

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 3 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, e-mail 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 Friday, September 15, 2023 and in accordance with paragraph 23 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 on or before Wednesday, November 8, 2023 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 Issues with the OLT case co-ordinator on or before Friday, January 5, 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. 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.

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 Thursday, November 23, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.

14. On or before Thursday, November 23, 2023, participants shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 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 Friday, December 22, 2023, the parties shall provide copies of their reply expert reports and/or reply witness statements, if any, to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.

16. On or before Monday, December 18, 2023, the parties shall provide the Tribunal with a written status update including confirmation of whether all reserved hearing dates remain required and if not, how many of the reserved day can be released.

17. On or before Friday, January 12, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence until Friday, December 22, 2023, in accordance with paragraph 23 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, January 12, 2024.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, January 12, 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.

23. 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.

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.

KEY EXCHANGE DATES

Exchange of Witness Lists Friday, September 15, 2023

Meeting of Experts Wednesday, November 8, 2023

Exchange of Expert Reports / Witness Statements Thursday, November 23, 2023

Exchange of Participant Statements Thursday, November 23, 2023

Advise OLT if any hearing dates can be vacated Monday, December 18, 2023

Filing of Reply Expert Reports / Witness Statements Friday, December 22, 2023

Filing Statement of Agreed Facts Friday, January 5, 2024

Filing of Visual Evidence Friday, January 12, 2024

Filing of Joint Book of Documents Friday, January 12, 2024

Filing of Hearing Plan Friday, January 12, 2024

Hearing Date Monday, January 22 – Friday, January 26, 2024

Attachment 1 Parties and Participants

Counsel for the Randal Chamberlain & Donna Querengesser:

DONNELLY LAW Barristers & Solicitors 276 Carlaw Avenue Suite 203 Toronto, ON M4M 3L1

David Donnelly Tel: 416-572-0464 david@donnellylaw.ca

Counsel for the City of Kawartha Lakes

CITY OF KAWARTHA LAKES 26 Francis Street P.O. Box 9000 Lindsay, ON K9V 5R8

Robyn Carlson Tel: 705-324-9411 x1298 rcarlson@kawarthalakes.ca

Counsel for Nestleton Waters Inn Inc., Andrew & Ruth Thorogood:

GOWLING WLG (CANADA) LLP Barristers & Solicitors 345 King Street West Suite 600 Kitchener, ON N2G 0C5

David Sunday Tel: 519-575-7513 david.sunday@gowlingwlg.com

Participants:

Helen Hutcheon Aaron Moss Kelly Grant Erika Smith Charles Evans Lois Stoldt Jules Sobrian Frances Sobrian Ryan McQuaid

Attachment 2

Issues List

Planning Issues

1. Does Official Plan Amendment 21 represent good planning, including:

(a) Compatibility with abutting uses;

(b) Phasing of development;

(c) Setback/buffers from property lines;

(d) Noise attenuation;

(e) Lighting;

(f) Function of the country inn (including types of events);

(g) Commerciality (availability to the travelling public);

(h) Ownership model; and

(i) Implementation of consultants’ recommendations.

2. Does the approved Zoning By-law Amendment for the Subject Property represent good planning, including:

(a) Definition of Country Inn;

(b) Phasing of development;

(c) Setback/buffers from property lines;

(d) Restriction of types of event;

(e) Commerciality (available to travelling public);

(f) Location of Environmental Protection zone and adjacent lands;

(g) Lot coverage; and

(h) Holding provision.

3. With respect to the planning issues, what are the appropriate terms of the zoning by-law and official plan amendments?

4. If employed, what are the appropriate conditions of a holding provision for the zoning by-law amendment?

Noise Issues

5. Are the potential sound exposures arising from the proposed use acceptable to the surrounding residential area?

6. What are the applicable sound limits for the proposed development?

7. Is the proposed use compatible with the surrounding residential use, in terms of potential sound exposure?

Attachment 3 Order of Evidence

1. Applicant

2. City of Kawartha Lakes

3. Appellant

4. Applicant, Reply (if any)