Miller Paving Limited et al. v. Muskoka (District), 2024 CanLII 118362

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

November 21, 2024

CASE NO(S).:

OLT-24-000035

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant:

Township of Muskoka Lakes

Appellants:

Miller Paving Limited, Our Muskoka Stakeholders Association, Elizabeth & Anthony Lippa, and Leslie Carr

Subject:

Proposed Official Plan Amendment

Description:

OPA - Ensure the Official Plan Conforms to Provincial and District Policy

Reference Number:

2022-171/PLN-7-14/09/23

Property Address:

Town Wide

Municipality/UT:

Muskoka Lakes/Muskoka

OLT Case No.:

OLT-24-000035

OLT Lead Case No.:

OLT-24-000035

OLT Case Name:

Miller Paving Limited et al. v. Muskoka (District)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by:

Township of Muskoka Lakes

Request for:

Request for Dismissal Without a Hearing

Heard:

October 30, 2024, by video hearing

APPEARANCES:

Parties

Counsel

Township of Muskoka Lakes

Ed Veldboom

Our Muskoka Stakeholders Association

Marc Kemerer

District Municipality of Muskoka

Jennifer Savini

Friends of Muskoka, Leonard Lake Stakeholders Association, and Muskoka Lakes Association

Lee English

Skeleton Lake Cottagers Organization Inc.

David Donnelly

Elizabeth Lippa

John Ewart (in absentia)

DECISION DELIVERED ON BY S. DEBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal was the motion commenced by the Township of Muskoka Lakes (“Township”) pertaining to the Cutting Red Tape to Build More Homes Act, 2024 (“Bill 185”) and if Bill 185 deemed the Appeal by the Our Muskoka Stakeholders Association (“Our Muskoka”) as dismissed after Bill 185 received Royal Assent on June 6, 2024.

BACKGROUND

2The Township adopted a new Official Plan (“OP”) on October 12, 2022. The new OP was approved with modifications by the District Municipality of Muskoka (“District”) on November 20, 2023. The new OP represented a comprehensive update to the former OP which had been in existence since November 2009.

3Our Muskoka filed an appeal of 138 policies in the new OP on December 21, 2023.

4Three other appeals were filed concerning the new OP. Miller Paving Limited filed its appeal on December 21, 2023. Its appeal identified all of Part “K” and Policy N9.1(a) of the new OP as the basis for its appeal. Elizabeth Lippa filed an appeal on December 20, 2023. Her appeal identified portions of Part K, and the same N9.1(a) as listed above as the basis for her appeal. Leslie Carr filed an appeal on December 20, 2023, and identified Policy E7 as the basis of her appeal.

5The Tribunal held two Case Management Conferences (“CMC”) prior to this Motion. The first on March 21, 2024, granted Party status to:

1. Friends of Muskoka;

2. Leonard Lake Stakeholders Association;

3. Muskoka Lakes Association; and

4. Skeleton Lake Cottagers Organization Inc.

6The Tribunal granted Participant status to Erin Dixon at this CMC.

7A second CMC was held on September 11, 2024, with the purpose of finalizing and approving a Procedural Order and setting hearing dates. The Township advised the Tribunal that it would be requesting a date to consider a Motion concerning Bill 185 and the validity of Our Muskoka’s Appeal due to the implications of Bill 185. The following were granted Participant status at the second CMC:

1. Ross Earl

2. Three Mile Lake Association

8A third CMC is scheduled for January 13, 2025, in which the Tribunal will be finalizing a draft Procedural Order. Between the time of the second and the third CMC, a hearing date of October 30, 2024, was scheduled to hear the merits of the aforementioned Township Motion.

MOTION HEARING

Exhibits

9The following were marked as exhibits to the Motion Hearing:

Exhibit 1 – Motion of Muskoka Lakes, consisting of 232 pages;

Exhibit 2 – Response by Our Muskoka, consisting of 35 pages;

Exhibit 3 – Reply by Muskoka Lakes, consisting of 35 pages;

Exhibit 4 – Affidavit of Service of Motion by Muskoka Lakes;

Exhibit 4(a) – Affidavit of Service to other Parties (Ed Veldboom 1);

Exhibit 4(b) – Affidavit of Service to Mr. Kemerer (Ed Veldboom 2);

Exhibit 5 – Affidavit of Service of Louise Foley concerning the reply to Our Muskoka;

Exhibit 6 – Affidavit of Jocelyn Lee for Our Muskoka (Responding Motion).

Agreed Upon Facts

10It was agreed upon by the Township and by Our Muskoka that the following three facts are true and not in dispute:

1. The other Appellants to the matter are confirmed to be valid appeals.

2. Our Muskoka is confirmed to be a third-party appeal.

3. Our Muskoka’s appeal only has one issue or policy that is similar as to the other Appellants to this matter.

Bill 185

11In layman’s terms, the purpose of Bill 185 is to cut what the Ontario Government has deemed as “red tape”, which is aimed to speed up the processes to have more homes built faster. Pertaining to the Motion, the “red tape” in this matter is seen as the “third-party” appeal by Our Muskoka. Bill 185 also contains certain “transition language” which would allow certain third-party appeals to continue if they met certain criteria. This transition language is the focus of the Motion before the Tribunal and how the Tribunal is to interpret this transition language.

Township’s Position

12The Township reiterated that the other Appellants to the OP do qualify as legitimate Appellants as they meet at least one of the criteria of a “specified person” that is set out in s. 1 and s. 17(36)(1), (1.1), (1.2), (2) of (3) of the Planning Act (“Act”). Relevant excerpts of this section are listed below:

Interpretation

(1) In this Act…

“public body” means a municipality, a local board, a hospital as defined in section 1 of the Public Hospitals Act, a ministry, department, board, commission, agency or official of a provincial or federal government or a First Nation; (“organisme public”)…

“specified person” means,

(a) a corporation operating an electric utility in the local municipality or planning area to which the relevant planning matter would apply,

(b) Ontario Power Generation Inc.,

(c) Hydro One Inc.,

(d) a company operating a natural gas utility in the local municipality or planning area to which the relevant planning matter would apply,

(e) a company operating an oil or natural gas pipeline in the local municipality or planning area to which the relevant planning matter would apply,

(f) a person required to prepare a risk and safety management plan in respect of an operation under Ontario Regulation 211/01 (Propane Storage and Handling) made under the Technical Standards and Safety Act, 2000, if any part of the distance established as the hazard distance applicable to the operation and referenced in the risk and safety management plan is within the area to which the relevant planning matter would apply,

(g) a company operating a railway line any part of which is located within 300 metres of any part of the area to which the relevant planning matter would apply,

(h) a company operating as a telecommunication infrastructure provider in the area to which the relevant planning matter would apply; (“personne précisée”)

(i) NAV Canada,

(j) the owner or operator of an airport as defined in subsection 3 (1) of the Aeronautics Act (Canada) if a zoning regulation under section 5.4 of that Act has been made with respect to lands adjacent to or in the vicinity of the airport and if any part of those lands is within the area to which the relevant planning matter would apply,

(k) a licensee or permittee in respect of a site, as those terms are defined in subsection 1 (1) of the Aggregate Resources Act, if any part of the site is within 300 metres of any part of the area to which the relevant planning matter would apply,

(l) the holder of an environmental compliance approval to engage in an activity mentioned in subsection 9 (1) of the Environmental Protection Act if any of the lands on which the activity is undertaken are within an area of employment and are within 300 metres of any part of the area to which the relevant planning matter would apply, but only if the holder of the approval intends to appeal the relevant decision or conditions, as the case may be, on the basis of inconsistency with land use compatibility policies in any policy statements issued under section 3 of this Act,

(m) a person who has registered an activity on the Environmental Activity and Sector Registry that would, but for being prescribed for the purposes of subsection 20.21 (1) of the Environmental Protection Act, require an environmental compliance approval in accordance with subsection 9 (1) of that Act if any of the lands on which the activity is undertaken are within an area of employment and are within 300 metres of any part of the area to which the relevant planning matter would apply, but only if the person intends to appeal the relevant decision or conditions, as the case may be, on the basis of inconsistency with land use compatibility policies in any policy statements issued under section 3 of this Act, or

(n) the owner of any land described in clause (k), (l) or (m);

13The Parties in the Motion agreed that since there are legitimate Appellants to the OP, then the Appeal process itself should continue. Once again, the only dispute is whether Our Muskoka and their Appeal is deemed to have been dismissed with the implementation of Bill 185.

14It was the Township’s argument that Our Muskoka does not meet the requirements of s. 1(1) of the Act nor does it meet the criteria listed in s. 36 of the same Act.

15Section 36 of the Act and its relevant transition clauses are listed below:

Appeal to Tribunal

(36) Any of the following may, not later than 20 days after the day that the giving of notice under subsection (35) is completed, appeal all or part of the decision of the approval authority to the Tribunal by filing a notice of appeal with the approval authority:

1. A specified person who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.

1.1 A public body that, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.

1.2 The registered owner of any land to which the plan would apply, if, before the plan was adopted, the owner made oral submissions at a public meeting or written submissions to the council.

2. The Minister.

3. In the case of a request to amend the plan, the person or public body that made the request. 2006, c. 23, s. 9 (6); 2017, c. 23, Sched. 5, s. 80; 2024, c. 16, Sched. 12, s. 3 (3).

Transition

(36.0.1) For greater certainty, subsection (36), as it reads on the day subsection 3 (3) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force, applies to an appeal on and after that day even if the giving of notice under subsection (35) of this section is completed before that day. 2024, c. 16, Sched. 12, s. 3 (4).

Same, retroactive effect

(36.0.2) An appeal under subsection (36) made before the day subsection 3 (3) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force by a person or public body not described in paragraph 1, 1.1, 1.2, 2 or 3 of subsection (36) of this section as it reads on the day subsection 3 (3) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force shall be deemed to have been dismissed on that day unless,

(a) a hearing on the merits of the appeal had been scheduled before April 10, 2024;

or

(b) a notice of appeal was filed by a person or public body listed in paragraph 1, 1.1, 1.2, 2 or 3 of subsection (36) of this section as it reads on the day subsection 3 (3) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force in respect of the same decision to which the appeal relates. 2024, c. 16, Sched. 12, s. 3 (4).

16The Township argued that since Our Muskoka does not meet any of the requirements listed above, then Bill 185 deems that the Our Muskoka third-party appeal is to be dismissed.

17The Township continued to argue that s. 17(36.0.2)(b) of the Act stipulates that the Our Muskoka appeal is not in respect to the same decision as the other bona fide Appellants as they are appealing mostly different policies of the Town’s OP. Since the Our Muskoka appeal is not in “respect to the same decision”, then the appeal should be considered dismissed as per Bill 185.

Our Muskoka’s Position

18Our Muskoka argued that due to the validity of an existing appeal being confirmed, then the Our Muskoka appeal is also valid. The Appeal by Our Muskoka was submitted before the statutory deadline, as was done by the other Appellants. Pertaining to Bill 185, the Appeal was filed before the deadline of April 10, 2024, and thus the Our Muskoka appeal is valid and should continue.

19Our Muskoka argued that the Township’s position that Our Muskoka is appealing the whole OP is incorrect. Yes, Our Muskoka is appealing more policies than the other Appellants, however, the interests of Our Muskoka are broader than the focused issues of the other Appellants. The number of issues is not a topic of discussion for the Motion before the Tribunal. The only issue before the Tribunal is whether Bill 185 deemed Our Muskoka’s appeal dismissed.

20Our Muskoka continued that the letter issued by the Tribunal on July 19, 2024, clearly states that the Tribunal has reviewed the appeal file and indicated that at least one appeal met the qualifications of the transition legislation, therefore all appeals and Appellants including any third-party appeals are valid and should continue.

ANALYSIS AND FINDINGS

21The Tribunal has reviewed all the materials and reviewed the oral arguments of both the Township and Our Muskoka concerning the Motion before it.

22The Tribunal finds that the only issue at hand is whether Bill 185 and its transition provisions deemed the Our Muskoka appeal dismissed on the date of Royal Assent or is their appeal valid and should it continue.

23Both Parties agreed that the other Appellants in the appeal of the OP are valid as they meet the criteria under s. 1(1) of the Act. The Tribunal agrees with their arguments to this point and that there was at least one Appellant that met the criteria of s. 1(1) of the Act. These appeals were filed within the statutory timelines of filing an appeal under s. 17(36) of said Act and these appeals were filed before April 10, 2024, as required under Bill 185.

24The Tribunal finds that Our Muskoka followed the same statutory procedures as the other valid Appellants as per s. 17(36) of the Act and their appeal was filed before the April 10, 2024 deadline, as required under Bill 185. However, the Tribunal agrees with the Township that Our Muskoka does not (emphasis added) meet the requirements under s. 1(1) of said Act.

25It was the argument of the Township that since Our Muskoka does not meet the requirement of s. 1(1), nor does the appeal meet the requirements of s. 17(36)(1), (1.1), (1.2) (2) or (3), the appeal should be deemed as dismissed at the time of Royal Assent. The Township continued to argue that since it does not meet any of these provisions in the Act, then s. 36.0.2(b) does not apply and the appeal is deemed as dismissed. The Tribunal does not agree with this argument. A further analysis of this issue is listed below.

26The Tribunal confirms and agrees that there is at least one valid appeal and Appellant of the OP. The Tribunal agrees that all Appellants to the OP were made within the statutory timelines under s. 17(36) of said Act.

27The Tribunal finds that all of the Appellants are appealing the same decision (emphasis added) of the District – which was the approval of the Township’s new OP.

28The Tribunal finds that under the transition legislation, a hearing of the merits was not scheduled before April 10, 2024 and does not meet the criteria of s. 17(36.0.2)(a).

29Therefore s. 17(36.0.2)(b) of the Act applies to the Motion before the Tribunal. This portion of the transition provision (which is also listed above) is as follows:

(b) a notice of appeal was filed by a person or public body listed in paragraph 1, 1.1, 1.2, 2 or 3 of subsection (36) of this section as it reads on the day subsection 3 (3) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force in respect of the same decision to which the appeal relates. 2024, c. 16, Sched. 12, s. 3 (4).

30It was the Township’s position that Our Muskoka did not meet the requirements listed in s. 17(36)(1), (1.1), (1.2). (2) or (3). The Tribunal agrees with the Township on this issue. However, there is at least one other valid Appellant to the District’s approval of the Township’s OP. As such, the rest of the language “…in respect of the same decision to which the appeal relates” does come into effect. The Tribunal finds that this language when taken into context with the rest of the transition language, validates the appeal of Our Muskoka and the appeal is not deemed to be dismissed under Bill 185.

31It should be noted that there was much discussion concerning the term “decision” and the Tribunal agrees that this term has not been defined by the Act. The Township argued that the decision to approve an Official Plan is actually a “set or series of decisions to approve each component or set of policies that makes up an Official Plan.” Therefore, Our Muskoka was not appealing the same decision of the Township as were the other Appellants. In order for the exception in s. 17(36.02)(b) to apply, the Township argued, Our Muskoka would be required to appeal the same part or parts of the approval authority’s decision that is the subject matter of another valid appeal. The Township further argued that this interpretation is further supported based on the fact that the Province has restricted who may appeal specific parts of a new Official Plan.

32In response, Our Muskoka argued that s. 17(36.02) does not require that the appeal filed by a non-landowner must involve the same provisions appealed by a landowner, and that the appeal meets the relevant tests for continuing as a valid appeal under s. 17(36.02)(a) and (b). The Tribunal agrees with the argument of Our Muskoka on this point. The decision to approve the Township’s OP by the District Municipality of Muskoka was the decision that was appealed by all of the Appellants, and each filed their appeal under the same section of the Act. Therefore, the Tribunal finds that the transition provisions found in s. 17(36.02) of Bill 185 apply to the appeal by Our Muskoka.

33Further debate between the Parties took place concerning the Tribunal’s letter dated July 19, 2024, which alerted all Appellants and Parties that the Tribunal had reviewed the transition rules in Bill 185 and the Tribunal had determined that there was at least on valid Appellant. Therefore, the Tribunal determined that all of the Appellants met the transition requirements. It was the Township’s argument that this letter was sent in error and is not to be considered an “Order” of the Tribunal. The Tribunal agrees with the fact that the letter sent to the Appellants and Parties is not an “Order” of the Tribunal. However, the Tribunal agrees with Our Muskoka that the Tribunal has “specialized knowledge of the legislation which governs its conduct and jurisdiction”. The Tribunal finds that the Tribunal’s administration had properly reviewed the appeals of the OP and rightly determined that the appeal by Our Muskoka met the transition legislation tests in s. 17(36).

OVERALL CONCLUSIONS

34It is the final determination of the Tribunal that the third-party appeal by Our Muskoka is valid and does not meet the deemed dismissal requirements of Bill 185. The appeal of Our Muskoka shall continue and will have the same rights and privileges as the other Appellants to this matter.

35The Parties are directed to follow the instructions that were provided in the Tribunal’s Decision that was issued on September 25, 2024.

36It was the request of Our Muskoka that costs be determined by the Tribunal concerning this Motion. The Tribunal finds a request for costs must be determined in a separate motion and may only occur once the Final Decision of the Tribunal pertaining to the OP appeals has been completed.

ORDER

37THE TRIBUNAL ORDERS THAT the Motion brought forth by the Township of Muskoka is dismissed. No costs will be awarded through the determination of this Motion.

“s. deBoer”

S. deBoer

MEMBER

Ontario Land Tribunal

Website: 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.