CORRECTION NOTICE
OLT CASE NO(S).: OLT-24-001034 and OLT-23-000048
DECISION ISSUE DATE(S): December 11, 2024
CORRECTION NOTICE ISSUE DATE: December 19, 2024
RE: Bartels Environmental Services Inc. v. West Perth (Municipality)
Correction to: Alternate (audio) Hearing details of paragraph 27, line 1 – specifically the last two digits of the first telephone number shown (and including removal of a space before the period that ends the line).
Originally:
[27] Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497- 9373 or Toll Free: 1 (888) 455-1389 . The access code is: 765-093-501.
Corrected to:
[27] Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497- 9391 or Toll Free: 1 (888) 455-1389. The access code is: 765-093-501.
“Euken Lui”
EUKEN LUI REGISTRAR
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.
ISSUE DATE: December 11, 2024
CASE NO(S).: OLT-23-000048, OLT-24-001034
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Bartels Environmental Services Inc.
Subject: Zoning Bylaw Amendment
Description: To permit a biosolid storage facility on the subject property
Property Address: 6903 Perth Line 34
Municipality/UT: West Perth/Perth
Municipal File No.: D14-16-21
OLT Case No.: OLT-23-000048
OLT Lead Case No.: OLT-23-000048
OLT Case Name: Bartels Environmental Services Inc. v. West Perth (Municipality)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Bartels Environmental Services Inc.
Subject: Site Plan
Description: To permit a biosolid storage facility on the subject property
Property Address: 6903 Perth Line 34
Municipality/UT: West Perth/Perth
Municipal File No.: D11-06-21
OLT Case No.: OLT-23-000049
OLT Lead Case No.: OLT-23-000048
OLT Case Name: Bartels Environmental Services Inc. v. West Perth (Municipality)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Bartels Environmental Services Inc.
Subject: Permission under Planning Act, s. 45(2)(a)(ii)
Description: Appeal of Municipality of West Perth Committee of Adjustment decision refusing an application under Planning Act, s. 45(2)(a)(ii)
Reference Number: D13-A06-24
Property Address: 6903 Perth Line 34
Municipality/UT: West Perth/Perth
OLT Case No.: OLT-24-001034
OLT Lead Case No.: OLT-24-001034
OLT Case Name: Bartels Environmental Services Inc. v. West Perth (Municipality)
Heard: November 22, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Bartels Environmental Services Inc. | A. Sadvari, P. Gross, and J. Chen |
| Municipality of West Perth | S. McAnsh |
| Ashley and Jeffrey Kroonen | J. Goudy |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON NOVEMBER 22, 2024 AND ORDER OF THE TRIBUNAL
1On November 22, 2024, the Tribunal convened a Case Management Conference (“CMC”) in relation to the proceedings in Tribunal Case Nos. OLT-23-000048 and OLT-24- 001034. The proceeding in Tribunal Case No. OLT-23-000048 arises from the refusal by the Municipality of West Perth (“Municipality”) of a Zoning By-law Amendment application and the failure of the Municipality to make a decision regarding a Site Plan Approval application made by Bartels Environmental Services Inc. (“Appellant”) in relation to the property located at 6903 Perth Line 34 in Dublin (“subject property”). The proceeding in Tribunal Case No. OLT-24-001034 arises from the refusal by the Municipality’s Committee of Adjustment of an application brought by the Appellant under s. 45(2)(a)(ii) of the Planning Act seeking to permit a use similar to an alleged legal non-conforming use on the subject property.
2On November 12, 2024, the Tribunal convened a status update telephone conference call in relation to both proceedings at which it scheduled a CMC for both of them on November 22, 2024. The Tribunal directed that a proposed motion by the Appellant to have the proceedings heard together, or in the alternative, consolidated, and a proposed motion by the Municipality challenging the Tribunal’s jurisdiction to address certain issues regarding legal non-conforming uses in these proceedings, would be heard at the CMC on November 22, 2024. During the status update telephone conference call, the Tribunal adjourned the hearing of the appeal in Tribunal Case No. OLT-23-000048 and directed that it commence on January 13, 2025. Ten days were set aside for that hearing.
The CMC
3As noted above, the Tribunal convened a CMC for both proceedings on November 22, 2024. It was the first CMC in the proceeding in Tribunal Case No. OLT-24-001034 and the third CMC in the proceeding in Tribunal Case No. OLT-23-000048.
4At the CMC, the Tribunal received a request for Party status in the proceeding in Tribunal Case No. OLT-24-001034 from Ashley and Jeffrey Kroonen. They own property adjacent to the subject property and submit that they will be impacted by the proposed use of the subject property, which they believe will hinder any future residential development on their lands. They were previously granted Party status in the proceeding in Tribunal Case No. OLT-23-000048. None of the Parties objected to their request. The Tribunal found that they have a direct and genuine interest in the proceeding, will be impacted by the Tribunal’s decision on the merits, and will assist the Tribunal in its adjudication of the appeal. The Tribunal granted their request for Party status.
5The Tribunal also received several requests for Participant status in the proceeding in Tribunal Case No. OLT-24-001034. Each of the persons requesting Participant status resides in the vicinity of the subject property and has provided written submissions setting out concerns arising from the proposed variance. None of the Parties opposed the requests for Participant status, and the Tribunal granted them, as requested. The persons who were granted Participant status are:
Bruce and Jennifer Bettles
Mark Cox
Colleen Eickmeier
Doug and Anne Fuhr
Scott Saunders
Peter Van Bergen
6The Parties stated that they had discussed the preparation of a draft Procedural Order for the proceeding in Tribunal Case No. OLT-24-001034 and, subject to the outcome of their respective motions, are confident that agreement can be reached regarding their content. Subsequent to the CMC, the Parties filed on consent a draft Procedural Order addressing both proceedings. The Tribunal has reviewed and approves the draft Procedural Order attached as Attachment 1 to this Order and Decision.
7The Tribunal inquired with the Parties regarding the possibility of holding settlement discussions and possibly Tribunal-assisted mediation for the proceedings. The Parties indicated that, given the context of the appeals, the prospects for settlement discussions are dim.
Municipality’s Jurisdiction Motion
8The Municipality’s motion was to obtain an Order of the Tribunal to strike all evidence and issues related to the existence of a legal non-conforming use from the appeals in each proceeding and seeking an Order adjourning sine die the appeal in Tribunal Case No. OLT- 24-001034. Both the Municipality and Appellant provided evidence and submissions regarding the motion. Mr. and Ms. Kroonen took no position.
Municipality’s Submissions
9The appeal in the proceeding in Tribunal Case No. OLT-24-001034 is from a decision of the Municipality’s Committee of Adjustment denying the Appellant’s application under s. 45(2)(a)(ii) of the Planning Act to permit a use similar to an alleged legal non- conforming use on the subject property. The Municipality argued that the Tribunal does not have the authority to determine non-conforming status. It submitted that the Superior Court must make a declaration regarding whether or not a legal non-conforming use exists before the Tribunal can adjudicate.
10The Municipality relied on a decision of the Tribunal’s predecessor, the Local Planning Appeal Tribunal, in Singh (Re), 2015 CanLII 24196 (ON LPAT) (“Singh”), along with commentary in academic literature, for the proposition that the Tribunal does not have the authority to determine non-conforming status. It submitted that at paragraph 11 of Singh, the Tribunal held that the Tribunal was “… not in a position to establish or not establish a non-conforming status. The proper venue is the courts…”.
11The Municipality referred to several court decisions in which the courts have made declarations on non-conforming uses in relation to appeals under s. 34(9) of the Planning Act regarding zoning by-law amendments affecting such uses. The Municipality submitted that the proper course of action is for the Parties to go to the court and get a declaration and then return to the Tribunal in order to proceed with the s. 45(2) appeal. The Municipality argued that a legal non-conforming use is a vested right, which is a Common Law principle that only the courts can determine. It submitted that the courts have the expertise and authority to adjudicate these issues and that the Tribunal does not. It acknowledged, however, that the determination of legal non-conforming uses is a question of fact.
12The Municipality submitted that if the Tribunal were to proceed to hear the appeal in Tribunal Case No. OLT-24-001034, there would be a risk of the issuance of a decision that is inconsistent with a future decision that may be issued in a parallel proceeding that is before the Superior Court. The Appellant filed a civil claim in September 2023, which seeks a declaration from the Court that the proposed uses on the subject property are legal non-conforming uses. The Municipality submitted that this is the same issue that is before the Tribunal. It submitted that the Superior Court is not bound by any decision of the Tribunal and, if the appeal before the Tribunal is determined before the Court’s decision, it could result in inconsistent or conflicting decisions. The Municipality submitted that the proceeding in Tribunal Case No. OLT-24-001034 should be adjourned sine die and relevant evidence in the proceeding in Tribunal Case No. OLT-23-000048 should be struck.
Appellant’s Submissions
13The Appellant argued that the Tribunal has the authority to make a determination regarding legal non-conforming rights and there is no risk of inconsistent decisions. It submitted that the proceeding in Tribunal Case No. OLT-24-001034 should not be adjourned sine die and the evidence and issues on the existence of legal non-conforming rights should not be struck.
14The Appellant submitted that the Tribunal has the authority to make a determination regarding the existence of legal non-conforming rights. Referring to the language in s. 45(2)(a)(ii) of the Planning Act, the Appellant submitted that the Tribunal has the authority and regularly determines issues related to these rights. It submitted that in Singh, the Tribunal found that it was “not in a position to establish or not establish a non-conforming status”, but that this was due to a lack of evidence, and not due to a lack of jurisdiction. It submitted that Singh states that documentary evidence is required to support an assertion regarding legal non-conforming rights and that the court is the proper venue for seeking an Order to force a municipality to issue a building permit.
15The Appellant submitted that none of the court decisions relied on by the Municipality addresses appeals under s. 45(2) of the Planning Act. It submitted that they all arise from municipal enforcement actions or are pre-emptive requests for declarations of legal non-conforming uses. It referred to several Tribunal decisions in which the Tribunal has made a determination on whether or not a use is legal non-conforming in the context of s. 45(2) of the Planning Act. It submitted that it would result in absurd consequences, if the Tribunal could not determine whether a use is legal non-conforming when applying s. 45(2). It submitted that it would force a multiplicity of proceedings and conflict with the Tribunal’s aims, as expressed in s. 12(2) of the Ontario Land Tribunal Act, to provide for the fair, just, and expeditious resolution of proceedings.
Analysis and Findings
16Section of the Ontario Land Tribunal Act refers to objectives of the Tribunal. The provision of the fair, just, and expeditious adjudication of land-use planning disputes is a core feature of these objectives. Section 12(2) states:
12(2) The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.
17Section 45(2)(a)(ii) of the Planning Act sets out the authority and duty of the Committee of Adjustment (and, through s. 45(18) of the Act, the Tribunal) when applying s. 45(2). Section 45(2)(a)(ii) states (with emphasis added):
45(2) In addition to its powers under subsection (1), the committee, upon any such application,
(a) where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit,
(ii) the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which it was used on the day the by- law was passed or is more compatible with the uses permitted by the by-law than the purpose for which it was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee; […]
It states that the Committee (and thereby, the Tribunal) is to opine on whether a proposed use of land is similar to the purpose for which the land was used on the day the by-law in question was passed. In order to form such an opinion, the Tribunal must make a finding of fact. The Tribunal has the authority to do so under s. 8(2) of the Ontario Land Tribunal Act, which states:
8(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.
18Based on the wording in s. 45(2)(a)(ii) of the Planning Act, the Tribunal found that it has both the authority and duty to make a determination on whether a use is a legal non- conforming use in the context of a s. 45(2)(a)(ii) appeal. It found that such a determination is a question of fact in relation to which the Tribunal has the expertise and authority to address.
19Regarding the risk of inconsistent decisions, the Tribunal found that the adjudication of the proceedings before it may result in the global resolution of all of the proceedings, including the civil proceeding, and given the Tribunal’s aim to provide a fair, just, and expeditious process for resolving land-use planning disputes, and the duty of the Tribunal to make a determination regarding whether a use is a legal non-conforming use under s. 45(2)(a)(ii) of the Planning Act, the risk of an inconsistent decision is not a convincing ground for the Tribunal to hold off in undertaking its responsibility and applying its authority in a timely manner in this case. The Tribunal found that to delay the proceedings in order to obtain an opinion of the court in the present case would not lead to the fair, just, or expeditious (or cost-effective) resolution of the proceedings before it.
20Based on this reasoning, the Tribunal dismissed the Municipality’s motion.
Appellant’s Consolidation Motion
21The Appellant argued that the two proceedings before the Tribunal should be consolidated, or, alternatively, that they should be heard together. It submitted that the appellant is the same in each proceeding, each proceeding relates to the same subject property, they relate to similar issues, and there will be overlapping evidence and witnesses in each. It submitted that consolidation would result in the most efficient use of the Tribunal’s resources, there would be no prejudice to any Party by having the proceedings consolidated, and it would result in a fair and efficient process. It submitted that to have the proceedings adjudicated separately could lead to conflicting decisions. It further submitted that the Tribunal has the authority to address all of the issues comprehensively together.
22Given the Tribunal’s findings on the Municipality’s jurisdiction motion, in particular regarding the issue of inconsistent decisions of the Tribunal and the Court, the Municipality decided not to oppose the Appellant’s consolidation request. However, it argued that the due dates in the draft Procedural Order should be amended to ensure that each Party has adequate time to prepare its case.
23After some discussion, the Parties agreed on revised due dates in the draft Procedural Order and to new dates for a consolidated Hearing commencing on Monday, March 24, 2025.
24The Tribunal found that, based on the submissions of the Parties, the consolidation of the proceedings would allow for the fair, just and expeditious hearing of the appeals, and it granted the Appellant’s request for consolidation. The Parties and Participants in one proceeding are given the same status in the other proceeding. The Tribunal directed the scheduling of a consolidated hearing commencing on Monday, March 24, 2025 at 10 a.m. by video hearing. Ten days have been set aside for the hearing.
25Parties are asked to log in to the hearing by video March 24, 2025 at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://meet.goto.com/765093501
Access Code: 765-093-501
26Parties 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.
27Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll Free: 1 (888) 455-1389 . The access code is: 765-093-501.
28Individuals 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
29THE TRIBUNAL ORDERS THAT Ashley and Jeffrey Kroonen are Parties to the proceedings in Tribunal Case Nos. OLT-23-000048 and OLT-24-001034.
30THE TRIBUNAL FURTHER ORDERS THAT Bruce and Jennifer Bettles, Mark Cox, Colleen Eickmeier, Doug and Anne Fuhr, Scott Saunders, and Peter Van Bergen are Participants in the proceedings in Tribunal Case Nos. OLT-23-000048 and OLT-24- 001034.
31THE TRIBUNAL FURTHER ORDERS THAT that the Appellant’s motion for consolidation is granted and the proceedings in Tribunal Case Nos. OLT-23-000048 and OLT-24-001034 are consolidated.
32THE TRIBUNAL FURTHER ORDERS THAT that the Procedural Order attached as Attachment 1 to this Order and Decision govern the proceedings in Tribunal Case Nos. OLT-23-000048 and OLT-24-001034.
33THE TRIBUNAL FURTHER ORDERS THAT that the Municipality’s Motion seeking an Order of the Tribunal that all evidence and issues related to the existence of a legal non-conforming use be struck from the appeals in each proceeding and an Order adjourning sine die the appeal in Tribunal Case No. OLT-24-001034 is dismissed.
“Hugh S. Wilkins”
HUGH S. WILKINS
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.