Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

January 08, 2024

CASE NO(S).:

OLT-23-001052

(Formerly PL090995)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

Applicant and Appellant:

Courtney Valley Estates Inc. and Lillipad Developments Inc.

Subject:

Proposed Plan of Subdivision - Failure of the Town of Whitchurch-Stouffville to make a decision

Purpose:

To permit the development of a residential plan of subdivision consisting of 356 residential units in the form of single detached and townhouse dwellings, as well as a 2.3 hectare (5.7 acres) commercial block fronting on Tenth Line and blocks for a parkette, a stormwater management pond and greenlands system

Property Address/Description:

Part of Lots 2 and 3, Concession 10

Municipality:

Town of Whitchurch-Stouffville

Municipal File No.:

19T(W)-01.001

OLT Case No.:

OLT-23-001053

Legacy Case No.:

PL091031

OLT Lead Case No.:

OLT-23-001052

Legacy Lead Case No.:

PL090995

OLT Case Name:

Courtney Valley Estates Inc. v. Whitchurch-Stouffville (Town)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by:

Stouffville Phase 3 East Landowners Group Inc.

Request for:

Request for Directions – pertaining to request to be added as a Party

Heard:

December 12, 2023 in writing

APPEARANCES:

Parties

Counsel

Courtney Valley Estates Inc. and

Jennifer Meader

Lillipad Developments Inc.

Town of Whitchurch-Stouffville

R. Andrew Biggart

Stouffville Phase 3 East Landowners

Alexander J. Suriano

Group Inc.

DECISION DELIVERED BY w. DANIEL BEST AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This decision and Order arise out of a Motion brought by Stouffville Phase 3 East Landowners Group Inc. (“Stouffville LOG”) to be added as a Party to an appeal of the decision of the Town of Whitchurch-Stouffville (“Town”) to deny an extension of the draft Plan of Subdivision approval (“Draft Plan”) of Courtney Valley Estates Inc. and Lillipad Developments Inc. (“Applicant” or “Appellant”).

2In accordance with the Tribunal’s directions, Stouffville LOG filed a Motion, which was supported by the Appellant, requesting an Order adding the Stouffville LOG as a Party to the proceedings, pursuant to subsections 51(52.1) and 51(52.2) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) and Rule 8.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”).

3The Town opposed the Motion and requested the Tribunal deny the totality of the relief sought by Stouffville LOG.

4The key questions before the Tribunal are the following:

• Does Stouffville LOG have a direct policy interest in the lapsing of the Draft Plan of the Appellant?
• Does granting Party status to Stouffville LOG prejudice the Appellant or the Town?
• Is granting Stouffville LOG Party status in the public interest?

5The materials before the Tribunal, and marked, were as follows:

• Exhibit 1 - Stouffville LOG Submission (including a sworn Affidavit of Steve Schaefer)
• Exhibit 2 – Submission of the Appellant
• Exhibit 3 – Submission of the Town (including a sworn Affidavit of Hena Kabir)

6Following consideration of the totality of the foregoing written materials presented the primary request for Party status by Stouffville LOG is denied.

LEGISLATIVE CONTEXT

7Subsections 51(52.1) and 51(52.2) of the Act provide direction regarding the adding of parties:

(52.1) Despite subsection (52), in the case of an appeal under subsection (39), (43) or (48), only the following may be added as parties:

1. A person or public body who satisfies one of the conditions set out in subsection (52.2).

2. The Minister.

3. The appropriate approval authority.

4. The municipality in which the land is located or the planning board in whose planning area the land is located.

5. If the land is not located in a municipality or in the planning area of a planning board, any person or public body. 2006, c. 23, s. 22 (11).

(52.2) The conditions mentioned in paragraph 1 of subsection (52.1) are:

1. Before the approval authority made its decision with respect to the plan of subdivision, the person or public body made oral submissions at a public meeting or written submissions to the approval authority, or made a written request to be notified of changes to the conditions.

2. The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party. 2006, c. 23, s. 22 (11); 2017, c. 23, Sched. 5, s. 80.

8Rule 8.2 provides the following direction:

The Tribunal may add or substitute a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their interest may be transferred or transmitted to another party to be added or substituted provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.

9In support of the assertion that there are reasonable grounds to add Stouffville LOG as a Party, the Tribunal was referred to the “obvious factors” set out in paragraph 13 of the decision in 1137528 Ontario Ltd. v. Oakville (Town), 2010 CarswellOnt 7078 (OMB) (“Oakville”). Those “obvious factors” (“Oakville Factors”) and the Town’s submissions with respect to those relevant factors are as follows:

• Prior Appeal: Has an appeal already been filed in relation to the policy which is sought to be challenged?
• Public Interest: To what extent is the public interest advanced if party status is granted?
• Prejudice: What prejudice, if any, would be suffered by the municipality or another party to the proceeding?
• Direct Interest: Does the person seeking party status have a direct interest in the policy?
• Multiplicity of Proceedings: Will granting party status avoid a multiplicity of proceedings?
• Historical Background: What is the historical background to the policy sought to be challenged?

ANALYSIS

10For reasons that follow, the Tribunal finds that for the submitted Oakville Factors in this matter:

• Stouffville LOG does not have a direct policy interest in the lapsing of the Draft Plan of the Appellant.
• Adding Stouffville LOG as a Party would prejudice the Town.
• It is not in the public interest at this late stage to add Stouffville LOG as Party to this appeal.

Does Stouffville LOG have a direct policy interest in the lapsing of the Draft Plan of the Appellant?

11Mr. Suriano, Counsel for Stouffville LOG, advised that Stouffville LOG consists of a group of landowners that owns the lands immediately north of the Appellant’s lands, located south of Bethesda Side Road on both the east and west sides of Tenth Line, in the Community of Stouffville. The Stouffville LOG lands comprise a total of 62 hectares (“ha”). Further, he stated that due to the adjacency to the Appellant’s proposed development and the shared sanitary sewer connection that is proposed to run through the Appellant’s and Stouffville LOG’s lands, Stouffville LOG relies on the construction of the Sanitary Sewer Sub-Trunk 1 (“Sub-Trunk 1”).

12Mr. Suriano advised that based on the foregoing, the lands upstream of the Appellant’s lands would not be able to be developed and require the sanitary sewer connections to proceed as planned.

13To support the requirement of planned sewer connections as described for the Stouffville LOG lands to be developed upstream, Mr. Suriano provided the affidavit of Steve Schaefer, a licensed professional engineer in Ontario.

14Ms. Meader, Counsel for the Appellant, supported the position of Mr. Suriano and argued that Stouffville LOG’s participation is necessary to enable the Tribunal to effectively and completely adjudicate on the appropriateness of extending the lapsing provision. Further, she stated that Stouffville LOG’s participation will assist the Tribunal in understanding that the impacts of the Draft Plan lapsing extend far beyond the lands owned by the Appellants.

15Mr. Biggart argued that to be a party of a land use planning proceeding, the “person” requesting status must come forth with a land use planning rationale to be added to such proceeding. He further stated that this was acknowledged by the Stouffville LOG in its Motion for Party status at paragraph 34, where it states that if added as a Party, it would add value by adding important and relevant planning context to the impact on the surrounding areas that would result if the Draft Plan was permitted to lapse. Further, he argued that the Stouffville LOG Motion failed to provide any land use planning analysis or evidence demonstrating:

• Why it must be granted Party status at this late of a stage in the proceeding; and/or
• How granting the Stouffville LOG Party status will assist the Tribunal in making an informed land use planning decision on whether to let the Draft Plan lapse or not.

16Mr. Biggart advised that the focus for Stouffville LOG seems to solely rely on the construction of Sub-Trunk 1 to develop its lands.

17Mr. Biggart argued that contrary to its assertion, Stouffville LOG has considered and has available to it an alternative to Sub-Trunk 1, bypassing the Appellant’s lands and servicing the Stouffville LOG lands and the greater area comprising the Old Elm GO Major Transit Station Area (“MTSA”).

18The position of the Town is reinforced by the affidavit of Hena Kabir, the Manager of Development and Planning at the Town and a member of the Ontario Professional Planners Institute and the Canadian Institute of Planners. Ms. Kabir opined that no land use planning evidence as to how granting the Stouffville LOG Party status will assist the Tribunal in making a decision on whether to let the Draft Plan lapse has been provided. She continued that Stouffville LOG has only provided evidence of an engineer who appears to have raised concerns regarding his clients’ financial impacts if a trunk sewer is not constructed as currently proposed in the Draft Plan.

19Ms. Kabir advised that, to her knowledge, Stouffville LOG has not submitted any verbal or written correspondence to the Town with respect to its interest in the Appellant’s Draft Plan or its potential to lapse. She continued that Stouffville LOG had not expressed any interest to the Town in the Sub-Trunk 1 during the numerous Draft Plan approval extensions over the past 13-year period since the original approval was granted. No arguments were submitted by Stouffville LOG regarding interest to ensure the Draft Plan did not lapse.

20The Tribunal is not persuaded by the arguments presented by Stouffville LOG respecting a direct policy interest should the Appellant’s Draft Plan lapse for the reasons that follow.

21The direct interest arguments presented that the development of Stouffville LOG lands rely solely on the construction of Sub-Trunk 1 is deemed moot as the Tribunal was advised by Ms. Kabir in paragraph 31 of her affidavit:

I have been advised by the Town Engineer and do verily believe it to be true that the alternative to Sub-Trunk #1 alignment was discussed by the Stouffville LOG with Town staff as an option for what they would do if the Applicants/Appellants does not construct the sewer. The Town was amenable to Stouffville LOG’s proposal. This alternative alignment does not rely on the alignment of sanitary sewer Sub-Trunk #1, as proposed in the subject Draft Plan. The alternative alignment of the sanitary sewer system would by-pass the Applicants/Appellants Lands and extend north, along the York/Durham line and would be capable of servicing Stouffville LOG Lands and the greater area comprising of the Major Transit Station Area lands.

22As such, the lapsing of the Draft Plan only impacts a “preferred” servicing option to Stouffville LOG, not the only servicing option available to Stouffville LOG.

23Ms. Kabir noted in paragraph 33 of her affidavit that she understands through staff that the construction of the Sub-Trunk 1 may still proceed with the proposed alignment through the Appellant’s lands, despite the lapsing of the Draft Plan, on the consent of the Appellants, as the infrastructure of Sub-Trunk 1 can still be constructed without the Draft Plan approval.

24As previously identified in the Oakville Factors, for Party status to be considered, a direct interest must be determined based on the policy being challenged. In this case, the issue before the Tribunal is the lapsing of a Draft Plan, not a servicing issue.

25The Tribunal prefers the submissions of the Town respecting a direct interest in this matter; therefore, Stouffville LOG does not meet the threshold under this factor.

Does granting Party status to Stouffville LOG prejudice the Appellant or the Town?

26Mr. Suriano argued that adding Stouffville LOG will not contribute to any delays in proceedings as its interests are tied to the shared sanitary sewer connection, and any evidence provided, and submissions made by Stouffville LOG would only address this specific issue.

27Mr. Suriano contended that the involvement of Stouffville LOG will add value to the Tribunal’s adjudication of these issues as it can provide important and relevant planning context to the impact on the surrounding areas that would result if the Draft Plan were permitted to lapse, and on lands within the MTSA. Further, he stated that its evidence will allow the Tribunal to have the fullest picture of the implications of the outcome of the future motion and benefit the Tribunal in making an informed decision on what constitutes good planning in this case.

28Mr. Suriano argued that Stouffville LOG would suffer prejudice if denied Party status due to its continued reliance on the shared sanitary sewer connection that is contemplated in the conditions of Draft Plan.

29The position of the Appellant was established previously in paragraph [14] of this Decision.

30Mr. Biggart argued that the Town and the Appellant would be prejudiced if Stouffville LOG is granted Party status for the following reasons:

• All relevant land use planning matters can be addressed without the involvement of the Stouffville LOG as a Party.
• The Stouffville LOG has not demonstrated that the development of the Stouffville LOG lands is reliant on the continuation of the Draft Plan.
• The Stouffville LOG does not rely on Sub-Trunk 1 as proposed in the Draft Plan as it has an alternative servicing alignment that may be considered if the Draft Plan lapses.
• Sub-Trunk 1 may still be constructed as planned, despite the approval of the Draft Plan lapsing.
• Two members of the Stouffville LOG are not relying on Sub-Trunk 1 to service the initial phases of their respective developments.
• There is no agreed upon final design for Sub-Trunk 1, as required pursuant to the Draft Plan.
• The Appellant has not provided the Town with a timeframe for the completion of the conditions to the Draft Plan or Sub-Trunk 1.

31Ms. Kabir’s affidavit reinforces the arguments presented by Mr. Biggart above.

32Ms. Kabir opined that in assessing the Appellant’s request to extend the Draft Plan approval, the Town must consider the public interest, and more specifically, what represents good planning in today’s planning context with its population growth targets. Further, she stated that adding Stouffville LOG as a Party for what she describes as “the sole purpose of introducing matters related to the cost of servicing their own lands” will deviate from the focus of assessing whether the Draft Plan, as approved in 2010, represents good land use planning today.

33Ms. Kabir advised that the granting of Party status to Stouffville LOG would cause the Town unnecessary time and expense to respond to matters that are not relevant to the determination to be made by the Tribunal.

34As stated previously, the matter before the Tribunal is the lapsing of the Draft Plan. Stouffville LOG argued that the development of its lands will be prejudiced if the lapsing is to occur. The only argument presented is that it requires the servicing as outlined in the Draft Plan. It is important to note that the Appellant has established no timeframe for the completion of conditions to the Draft Plan or the construction of Sub-Trunk 1 and the Town has submitted other servicing alternatives for the Stouffville LOG lands are potentially available.

35On the matter of prejudice, the Tribunal is persuaded by the submissions of the Town that the granting of Party status would prejudice the Town respecting, costs, time and deviation from the purpose of the Appeal.

Is granting Stouffville LOG Party status in the public interest?

36Mr. Suriano argued that there is a public interest in granting Stouffville LOG Party status to ensure the orderly and timely development of the adjacent subdivisions to the north of the Appellant’s lands. Stouffville LOG’s intended involvement is to provide expert opinion evidence and submissions to the Tribunal on the impact that the lapsing of the servicing conditions in the Draft Plan will have on landowners beyond the Appellant’s lands.

37Mr. Suriano argued that it is in the public interest that Stouffville LOG be granted Party status given that if the Draft Plan were permitted to lapse it would have significant impacts to the servicing of the intended development of the Official Plan Amendment 155 (“OPA 155”) area, which was recently approved by the Town to support the MTSA. He further argued that Stouffville LOG relies on the construction of the sanitary sewer connection into the Stouffville LOG lands to implement the planning framework set out in OPA 155 with respect to this MTSA.

38Mr. Suriano stated that only with the involvement of Stouffville LOG as a Party will the Tribunal have the benefit of the fullest picture to make an informed decision on what constitutes good planning in this case.

39Mr. Biggart argued that it is not in the public interest to grant Party status to Stouffville LOG for the following reasons:

• The Applicant/Appellant has not provided the Town with a planned timeframe for the completion of the conditions to the Draft Plan or Sub-Trunk 1.
• The Stouffville LOG has not demonstrated or provided any land use planning evidence that would assist the Tribunal in determining whether an extension to the lapsing provision of the Draft Plan approval constitutes good planning in today’s context.
• The issues advanced by the Stouffville LOG are not related to a motion to extend the lapsing provision, but rather are related to the Stouffville LOG’s private financial interests.

40Mr. Biggart argued that subsection 51(39) of the Act sets out which parties may appeal the lapsing provision to a draft plan approval, and it does not include adjacent landowners. He further argued that the Act has recently removed the right of a third party to appeal a plan of subdivision to the Tribunal.

41Based on the foregoing, Mr. Biggart contended that Stouffville LOG would not have a right to appeal if the Appellant allowed the Draft Plan to lapse and would not have a right to appeal the approval of the Draft Plan if it had recently been approved by the Town. Mr. Biggart continued that the intent of the Act must be considered by the Tribunal when making a determination in the granting of Party status to Stouffville LOG.

42The Tribunal is persuaded by the submissions of the Town. The Tribunal agrees with the arguments presented by the Town respecting appeals for draft plans and Ms. Kabir’s assertion that “plans of subdivision deal with matters between the municipality and the landowner of the subdivision.”

CONCLUSION

43As stated in paragraph 13 of Oakville, the Tribunal’s predecessor established factors in determining whether there are reasonable grounds to add a party. However, Oakville also recognized that it is impossible to articulate an exhaustive list and that not all factors will be relevant in every case.

44The Tribunal was not persuaded by the arguments and submissions of Stouffville LOG. The Tribunal finds that the evidence presented does not meet the threshold to demonstrate direct interest, prejudice or public interest.

45The Act prescribes clearly who can appeal the decision, the lapsing provision or any of the conditions respecting subdivision approvals. Although the Tribunal could exercise its discretion in accordance with subsection 51(52.2) of the Act, or in accordance with Rule 8.2 of the Rules, it is not persuaded to do so.

46For the reasons above, the Tribunal determines that the request for granting Party status to Stouffville LOG is denied.

ORDER

47The Motion is dismissed.

“W. Daniel Best”

W. DANIEL BEST

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.