Whyte v. Drummond/North Elmsley (Township), 2024 CanLII 30626

Ontario Land Tribunal

ISSUE DATE: April 05, 2024

CASE NO(S).: OLT-23-000555

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Martin Whyte

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: to amend the ZBA to permit a place of recreation, which shall be restricted to a gun range and a gun (shooting) club

Reference Number: ZA-22-10

Property Address: 1688 Rideau Ferry Road, Part Lots 23 & 24, Concession 7

Municipality/UT: Township of Drummond/North Elmsley

OLT Case No.: OLT-23-000555

OLT Lead Case No.: OLT-23-000555

OLT Case Name: Whyte v. Drummond/North Elmsley (Township)

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

Request by: Township of Drummond/North Elmsley

Request for: Request for Dismissal Without a Hearing

Heard: October 13, 2023 in writing

APPEARANCES:

Parties

Counsel/Representative*

Township of Drummond / North Elmsley

Emma Blanchard* Laura E. Robinson*

Martin Whyte

Self-represented

DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL

1The Township of Drummond / North Elmsley (“Moving Party”) brought a Motion in writing seeking that the appeal brought by Martin Whyte (“Responding Party”) and titled OLT Case File No. OLT-23-000555 (“Appeal”) be dismissed without the need to hold a Hearing, pursuant to s. 19(1) of the Ontario Land Tribunal Act, R.S.O. 2021, c. 4, Sched. 6 (“OLTA”).

2In accordance with the statutory requirements, described in detail below, the issues to be determined by the Tribunal on this appeal are:

a. Whether the Notice of Appeal Form fails to contain reasons and explanations as is required by the Planning Act, R.S.O. 1990, c. P.13 (“Act”) and is therefore invalid pursuant to s. 34(25)(2) of the Act; and

b. Whether the Notice of Appeal Form fails to disclose apparent land use planning grounds upon which the Appeal could be granted pursuant to s. 34(25)(1)(i) of the Act and that the Appeal has no reasonable prospect of success pursuant to s. 19(1)(c) of the OLTA.

GROUNDS FOR APPEAL

3The Appeal relates to an application for a Zoning By-law Amendment (“ZBA”), which sought to rezone a portion of the property known municipally as 1688 Rideau Ferry Road, in Drummond / North Elmsley Township (“Subject Property”) from Rural (RU) to Rural Exception Zone (RU-X), to permit a place of recreation restricted to a gun range and a gun (shooting) club as an additional use.

4The Appeal Form, dated May 26, 2023 and signed by the Responding Party (“Notice of Appeal”), indicates that the Appeal for “zoning” was brought pursuant to s. 34 of the Act “to legalize an existing shooting range that has been operating for over 23 years.” With respect to the grounds for the Appeal, the Responding Party checked box 3A, which indicates that Council’s decision is “inconsistent with the Provincial Policy Statement issued under subsection 3(1) of the Planning Act.” He provided the following additional reasons: “Council did not wait for studies to be completed. Planning report proves that the proposal meets zoning. The staff had recommended deferral.”

LEGISLATIVE REGIME

5The Act and the OLTA establish criteria for the consideration of dismissing an appeal without a full Hearing on the Merits. The relevant sections are as below.

6Section 34(25) of the Act provides the following:

Dismissal without hearing

34(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. The reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all of part of the appeal...

2. The appellant has not provided written reasons for the appeal.

3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

7Section 34(19.0.1) of the Act provides the following:

If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

8Section 19(1) of the OLTA states:

Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

9The grounds for dismissing an appeal are disjunctive. In other words, only one of the several grounds set out in the Act and the OLTA must be satisfied to warrant dismissing an appeal.

THE MOTION HEARING

10The materials before the Tribunal on the Motion to Dismiss were:

a. Exhibit 1: The Motion Record of the Moving Party, dated August 15, 2023, containing a Notice of Motion; an Affidavit sworn on August 15, 2023 by Brady McGlade, land use planner, with accompanying exhibits; and supporting case law and excerpts from legislation;

b. Exhibit 2: The Motion Record of the Responding Party, dated October 2, 2023, containing a Notice of Motion; and an Affidavit sworn on October 2, 2023 by Martin Whyte, the Responding Party, with accompanying exhibits; and

c. Exhibit 3A: The Reply Record of the Moving Party, dated October 5, 2023, containing a Notice of Reply; an Affidavit sworn on October 5, 2023 by Brady McGlade; and supporting case law.

11Mr. Brady McGlade is a land use planner and the Manager of the Planning Department of the Moving Party. The Curriculum Vitae and Acknowledgement of Expert Duty form (“AED”) for Mr. McGlade were included in Exhibit 1 and confirm his expertise in the area of Land Use Planning. Mr. McGlade is relied upon by the Tribunal and, without objection, his opinions are qualified as expert opinion evidence in the field of Land Use Planning. As the only person who had signed an AED and the only professional who provided a sworn Affidavit, Mr. McGlade was the only qualified expert in this motion.

Moving Party’s Position on the Motion to Dismiss

12The Moving Party submits that the Responding Party's Appeal should be dismissed as the Notice of Appeal does not contain the required reasons and explanations, does not contain land use planning grounds on which the Appeal could be granted, and has no reasonable prospect of success.

13The primary argument of the Moving Party is that the Notice of Appeal does not contain reasons or explanations as required under the Act and is therefore invalid. While the Responding Party indicates on the Notice of Appeal that he intends to rely on grounds of inconsistency with the Provincial Policy Statement. 2020 (“PPS”), he fails to identify any such inconsistency and no supporting documents accompanied the Notice of Appeal.

14The secondary argument of the Moving Party is that the Notice of Appeal does not disclose any apparent land use planning grounds upon which the Appeal could be granted, and further, that the Appeal has no reasonable prospect of success. In such a case, the Tribunal has the discretion to dismiss all or part of an Appeal without holding a Hearing.

15The Moving Party relies on the seminal case of Toronto (City) v. East Beach Community Assn., 1996 CarswellOnt 5740 (O.M.B.) (“East Beach Decision”), which identifies that the question on a Motion to Dismiss an Appeal without a Hearing is whether the reasons stated constitute genuine, legitimate, and authentic planning reasons. The Tribunal is to consider whether there is authenticity in the reasons stated, whether there are issues that should affect a Decision in a Hearing, and whether the issues are worthy of the adjudicative process (at para. 9).

16In this case, however, the Notice of Appeal does not identify any apparent land use planning grounds upon which the Tribunal could allow all of part of the Appeal. Specifically, it does not set out any sections or policies of the PPS and/or official plans, let alone provide any reasons which could lead to a finding of inconsistency and/or non-conformity with any applicable instruments.

17Moreover, the Appeal has no reasonable prospect of success. As set out in the Affidavit of Brady McGlade, sworn on August 15, 2023, the Township Council’s decision to deny the ZBA is consistent with the policy statements issued under s.3(1) of the Act, conforms to or does not conflict with any applicable Provincial plan or plans, and conforms to the applicable official plans. Mr. McGlade referred the Tribunal to the Planning Report he prepared in April 2023 (“Staff Report”), wherein he recommended that the ZBA not be approved, because “there are a number of planning concerns relating to the application as currently submitted.” He recommended that Council defer making a decision on the ZBA, but noted as follows:

Denial: If Council determines that the requested zoning amendment and proposed use of a place of recreation, which shall be restricted to a gun range and a gun (shooting) club are absolutely unsuitable for this property and opts for this option, then the application would be denied, and the property would retain current zoning (pending any appeals).

18Moreover, with respect to the recommendation that Council defer making a decision, the Moving Party submitted that this does not constitute a lack of an opinion to Council on the part of the Township’s Planner. Rather, the Staff Report included the finding that the ZBA “does not conclusively confirm or is consistent with all provisions of the relevant planning documents and planning policies,” citing in particular the compatibility of the proposed use in relation to surrounding sensitive land uses not being sufficiently determined.

19Mr. McGlade further referred the Tribunal to the Notice of Refusal dated May 9, 2023, which sets out Council’s reasons for refusal, including but not limited to:

• Land use compatibility: the proposal is not compatible with the existing residential and agricultural uses;

• Concerns for the adverse effects the gun range would have on local businesses;

• Neighbours’ loss of reasonable use and enjoyment of their properties; and

• The mental stress that the gun range has caused and will continue to cause if the amendment is approved.

20Mr. McGlade provided and reiterated his professional opinion that Council’s decision to deny the ZBA, and the reasons it relied on to do so, is consistent with the policy statements issued under s. 3(1) of the Act, conforms to or does not conflict with any applicable Provincial plan or plans, and conforms to the applicable official plans.

The Responding Party’s Position on the Motion to Dismiss

21The Responding Party opposes the Motion to Dismiss, requesting that the Tribunal dismiss the motion or, in the alternative, provide the Responding Party with “the right to file the documentation required by the Tribunal so that the application for appeal is deemed complete…”

22The Responding Party’s primary argument is that Council had requested further information, but this request was inappropriate. Namely, this related to a Noise Impact Peer Review, which according to the Responding Party, was only requested of him in October of 2022, after the application had been deemed complete on September 20, 2022. By way of background, the Responding Party explained that Mr. McGlade had provided the Responding Party with a list of required documents on March 14, 2022, and a Noise Impact Peer Review was not on the list. Moreover, the Responding Party refers to s. 3.14.2 of the Official Plan for the Township of Drummond/North Elmsley (“OP”), which speaks to noise studies, and says that outdoor firearm ranges / gun clubs are exempt from this requirement. However, he does not point the Tribunal to where in the OP it is indicated that outdoor firearm ranges / gun clubs are exempt. Regardless of a Noise Impact Study not being required by the OP, the Responding Party did obtain one (“BTE Study”), a copy of which was provided to the Tribunal. The BTE Study confirmed that the noise produced by the use as a gun range would not constitute a disturbance to the neighbours.

23In October 2022, however, the Township’s Council requested that the BTE Study be reviewed, which the Responding Party said was contrary to s. 34(10.2) of the Act. Moreover, the OP does not allow for a peer review of the BTE Study, and no Noise Impact Study was required by the OP in the first place. The peer review of the BTE Study was completed in January 2023, noting deficiencies in the BTE Study, which then Council relied on to say that the BTE Study was faulty. Council further did not provide the Responding Party with the opportunity to address the concerns raised regarding the BTE Study, nor did it provide the Responding Party with an opportunity to make submissions in relation to the peer review. Therefore, as the Responding Party submits, Council “made the decision without the proper information” and “relying on a critique and not an amended noise impact study is in contravention of due process.”

24The Responding Party’s next argument is that the gun range use should be accepted as it has “legal non-conforming status.” While Township Council had viewed this ZBA as a change in use (requiring documents in support of that), the use of this property as a shooting range was an existing one (previously operating as an Ontario Provincial Police (“OPP”) shooting range). In the Affidavit sworn by him (Exhibit 2), the Responding Party explains that no concerns had previously been raised, despite the Subject Property operating as a shooting range since prior to 1978 when the Township’s first by-law was enacted.

25Lastly, the Responding Party relied on his lack of experience, stating that he is not a lawyer or a trained legal professional, and that there is no manual on how to prepare an appeal to the Tribunal. He states that when he prepared the Notice of Appeal, he met with Mr. McGlade, who reviewed it and confirmed that it was sufficient, allegedly stating that any further information could be provided at a later date. As the Responding Party stated, “The Township should not be able to win a motion to dismiss an appeal, as its staff indicated that the notice of appeal was sufficient to move forward.” The Responding Party states that he would willingly provide whatever information is required of him once the Tribunal informs him regarding the threshold he is required to clarify for the Appeal.

ANALYSIS AND FINDINGS

26The Tribunal finds that the relief sought in the Motion to Dismiss should be granted.

27The Tribunal agrees with the submissions put forward by the Moving Party that the Notice of Appeal does not contain reasons and explanations as are required by the Act. It is important to keep in mind that the grounds for dismissing an appeal are disjunctive and this finding alone is sufficient to warrant dismissing the appeal. This was confirmed in the following cases, which the Moving Party relied on: Orchard v. London, 2022 CarswellOnt 13737 (OLT) at para. 40 (“Orchard Case”); and Milton v. Ottawa (City), 2022 CarswellOnt 3941 (OLT) at para. 58 (“Milton Case”).

28With respect to this present Appeal, the Tribunal finds that the Notice of Appeal filed by the Responding Party is deficient. While the Responding Party checked the box in Section 3A of the Notice of Appeal indicating that he will argue that the decision was not consistent with the PPS, he did not provide any reasons or explanations. He did not reference additional facts or specific policies in the Notice of Appeal to explain how the stated grounds of Appeal lead to inconsistency with the PPS.

29Moreover, the Tribunal further finds that there are no apparent land use planning grounds upon which the appeal could be granted, and that the Appeal has no reasonable prospect of success.

30Section 34(25) of the Act grants the Tribunal the authority to dismiss an appeal without holding a Hearing if any of the enumerated grounds apply, including: “the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal.” When deciding whether an appeal should be dismissed without a Hearing, the Tribunal’s accepted starting point is the East Beach Case, which, as mentioned above, establishes that the Notice of Appeal must disclose of genuine, legitimate, and authentic planning grounds worthy of the adjudicative process. For the reasons below, the Tribunal finds that the Appeal does not have a reasonable prospect of success.

Weight of Evidence Before the Tribunal

31There are a number of different types of evidence that the Tribunal is typically presented with in a written Hearing: (1) sworn testimony by a qualified expert provided in an Affidavit; (2) unsworn information provided by a professional (in a report, for example); (3) sworn testimony by a lay person; (4) other evidence, such as photographs or emails or other documents. Parties do not have an obligation to provide any or all of these different types of evidence.

32The weight of each of these types of evidence is balanced against each other by the Tribunal, and the following factors are considered when determining how to assign weight to the evidence before it:

a. Whether the evidence that is presented is open to being tested, which would allow procedural fairness at the Hearing. Sworn Affidavit evidence is open to opposing Parties for cross-examination. In other words, an opposing Party has the ability to cross-examine the Affiant and test them on the evidence that is provided. Unsworn evidence provided by way of a report does not present the opposing Party with the same opportunity;

b. Whether the person providing the evidence has the required qualifications to provide that evidence. When a Curriculum Vitae or other history of qualifications is provided, the Tribunal has the ability to make that assessment. Of note, it is important to determine whether the evidence that is being provided requires a qualified expert rather than a lay person; and

c. Whether the person who is a qualified expert has signed an AED, which confirms that the evidence is being provided on an unbiased basis, and that the person providing the evidence understands that his / her duty is to the Tribunal and not to a client.

33In this written Motion, the Tribunal was presented with all four types of evidence described at paragraph [31] of this decision:

a. Sworn testimony by Mr. McGlade, who was qualified as an expert in Land Use Planning;

b. Unsworn reports by professionals, namely the BTE Report, as well as a land use planning report in support of the ZBA completed by MacKenzie Van Horn and Tracy Zander, land use planners (“Planning Justification Report”);

c. Sworn testimony by the Responding Party himself, a lay witness; and

d. Emails.

34Mr. McGlade’s testimony was uncontested and comprehensive in its support for the Motion to Dismiss, and he confirmed that the ZBA would have no reasonable prospect of success. Mr. McGlade is a qualified expert, with the professional background to be able to opine on the evidence he provided. Moreover, by swearing the Affidavit, he opened himself and his opinions up to cross-examination. The Tribunal attributes a great deal of weight to the evidence provided by Mr. McGlade.

35In contrast, the Responding Party provided his own sworn Affidavit, containing factual information and making assertions of the ZBA’s consistency with the PPS and with four policies in the Township’s OP. Unfortunately, as he does not have the required qualifications and is unable to sign an AED (due to his inherent bias in this Appeal), his opinions can only be given the weight appropriate for lay-person testimony. Balancing those opinions against those of Mr. McGlade’s, the Tribunal finds the testimony of Mr. McGlade with respect to land use planning issues to be more reliable. Most importantly, with respect to the Responding Party’s submissions regarding Provincial and Municipal policies, the Tribunal is unable to attribute any weight to those as they are statements made by an unqualified lay witness, rather than a professional with the appropriate background to opine on those issues.

36The Responding Party also provided the BTE Report and the Planning Justification Report. Neither of these were sworn testimony and were not open to cross-examination. Moreover, the Curriculum Vitae of the professionals were not provided and they had not signed AEDs. The Tribunal is willing to accept at face value that those who prepared the reports had the required qualifications to do so. In balancing the evidence contained in those reports against the evidence provided by Mr. McGlade, however, the Tribunal attributes more weight to the evidence provided by Mr. McGlade. A detailed discussion of the content of those reports and weighing them against the evidence provided by Mr. McGlade is contained below in this Decision.

37Of note, in his materials, the Responding Party did not indicate an intent to call any expert witnesses to dispute the evidence put forward by the Moving Party. This is in the face of Affidavit evidence from Mr. McGlade, indicating that the proposed ZBA does not meet the legislative requirements, and has no reasonable prospect of success.

38As mentioned, Parties that appear before the Tribunal do not have an obligation to rely on expert testimony. However, the Responding Party bears the onus of substantiating that the Appeal raises land use planning grounds upon which the Tribunal could allow the Appeal. The Responding Party must demonstrate: “the presence of real, relevant and tenable issue or issues… worthy of adjudication with a demonstration of an intent to call probative evidence on the issue at the hearing and the steps taken to that end” (as confirmed in Maniatis v Fort Erie (Town), 2022 CarswellOnt 7228 (OLT) at paras. 9, 11 (“Maniatis Case”), provided by the Moving Party, as well as s. 34(25)1(i)) in the Act. Apart from the reports discussed above at paragraph [36] of this Decision, the other evidence that the Responding Party provided, namely the emails, did not provide enough support in his favour to overcome the weight of Mr. McGlade’s testimony.

39Moreover, even if the Tribunal assumes (without any evidence having been provided in that regard) that the authors of the BTE Report and the Planning Justification Report will appear at a future Hearing, as discussed in detail below, they could not overcome the testimony of Mr. McGlade. As such, the grounds for the Motion to Dismiss have been met, and as confirmed by Mr. McGlade, the Appeal has no reasonable prospect of success.

Specific Arguments of the Responding Party

40With respect to the Responding Party’s individual submissions, the Tribunal was not convinced that they overcame the requirement for the Notice of Appeal to indicate apparent land use planning grounds. The Tribunal was convinced by the Moving Party’s submissions. Specifically, with respect to each of the Responding Party’s arguments, the Tribunal finds below as follows.

Regarding Inconsistency with the PPS

41The Tribunal is convinced by Mr. McGlade’s uncontested sworn testimony that the ZBA is inconsistent with the PPS. Moreover, he provided further detail in his Staff Report, including the following:

a. With respect to Policy 1.1.1 (“healthy, livable, and safe communities”), numerous concerns have been raised with the ZBA as related to its potential noise impact, as well as environmental and health impacts. For example, concerns have been raised regarding the potential site contamination and possible impact on water quality within the wetland and groundwater-surface water, such as potential impacts of lead in spent bullets on the surrounding environment and environmental noise as a health concern.

i. Of note, in the Staff Report, Mr. McGlade referenced a Phase I and II Environmental Site Assessment that the Township had been provided with, which confirmed that the previous use of the shooting range has resulted in site contamination and has impacted the surface water of the adjacent pond. The Rideau Valley Conservation Authority also raised the concern that the proposed use may negatively impact the water quality of surface water features and vulnerable groundwater features. Thus, Mr. McGlade indicated that Township Staff’s opinion was that, given these known environmental concerns, Staff could not conclude that the ZBA would be consistent with s. 2.2.1 of the PPS (regarding water quality).

b. With respect to policy 1.1.4.1 (“healthy, integrated and viable rural areas”), Mr. McGlade opined that Staff were not in a position to find that the proposed ZBA would build upon the area’s rural character, namely existing residential development. Specifically, concerns were raised regarding the neighbours’ enjoyment of their rural properties in which they enjoy natural environment and associated quietness that it provides.

c. With respect to Policy 1.1.5 (development in rural areas including “recreational, tourism and other economic opportunities” as identified in Policy 11.5.3), Mr. McGlade stated in the Staff Report that compatibility of use must first be determined. Council subsequently found, and Mr. McGlade agreed in his sworn Affidavit, that this use would not be compatible with the surrounding area. Moreover, Mr. McGlade identified concerns that the gun range may negatively impact recreational and tourism operations in the area, such as rental cottages and tourism.

d. With respect to Policy 3.2 (“human-made hazards”), Mr. McGlade stated that it has been confirmed that site contamination resulted from the OPP’s use of this site as a training facility.

42The Planning Justification Report, which the Tribunal reviewed in detail, references most of the same PPS policies as Mr. McGlade did in the Staff Report. However, in light of the significant concerns raised in the Staff Report, and the subsequent confirmation by Mr. McGlade in this motion, the Tribunal is persuaded that the proposed ZBA appears to be inconsistent with the PPS. The Tribunal also finds that at a Hearing, the Responding Party will not be able to overcome these significant concerns based on the information identified in the Responding Party’s Motion Record, and therefore the Appeal has no reasonable prospect of success.

43Of note, the Responding Party had indicated on the Notice of Appeal that: the “Planning report proves that the proposal meets zoning.” However, in light of the counterevidence provided by the Moving Party, the Tribunal is not convinced that the Planning Justification Report proves that the ZBA meets zoning requirements. In fact, the Tribunal has been persuaded that the opposite is the case.

Regarding the Noise Study Argument and that Council did not Wait for Studies to be Completed

44First, the Tribunal was persuaded that the ZBA Application was deemed complete long before Council made its decision, and that the Responding Party had ample opportunity to provide all relevant and required materials. With respect to the peer review, as confirmed by the Responding Party in his sworn Affidavit (a part of Exhibit 2), the peer review was completed in late January 2023. Council made its decision on May 9, 2023, which allowed sufficient time to the Responding Party to provide any further required information.

45Additionally, there appears to be no “due process” or “procedural” concerns as alleged by the Responding Party. Council seems to have considered all written and oral submissions relating to the ZBA, and provided numerous reasons why it refused the ZBA, including concerns regarding compatibility and adverse effects on the community. Moreover, a finding of this nature is not within the jurisdiction of the Tribunal.

46With respect to the necessity of the noise study / peer review, the Tribunal agrees with the Moving Party’s submissions, and the evidence of Mr. McGlade, that:

a. The ZBA raised concerns regarding noise, arising from the gun range and gun (shooting) club, in respect of impacts on neighbouring residences, enjoyment of recreational properties, commercial equestrian training facilities, agriculture, and wildlife. While the OP did not automatically trigger a noise study to address the ZBA, one was necessary in order to evaluate and inform Staff and Council on whether the proposed use was suitable from a compatibility standpoint; and

b. The Township’s request for a noise study and a peer review of the noise study as part of the ZBA process are not grounds of appeal to the Tribunal. To the extent that the Responding Party had concerns regarding the timing of Council’s consideration of the ZBA, an appeal pursuant to s. 34(11) of the Act due to non-decision could have been made. This was not done.

47The Tribunal is convinced that a noise study was appropriate in this case.

Regarding the argument that Planning Staff did not offer the Township an opinion but indicated that the ZBA should be deferred instead

48The Tribunal is convinced that the Staff Report indicated that the ZBA was not consistent with all provisions of the relevant planning documents and policies. Moreover, in his Affidavit sworn on August 15, 2023, Mr. McGlade provided his professional opinion that Council’s decision, and denial of the ZBA, was consistent with the policy statement issued under s. 3(1) of the Act, conforms to or does not conflict with any applicable Provincial plan or plans, and conforms to the applicable OP’s.

Regarding the Prior Use Argument:

49With respect to the Responding Party’s submissions on the existence of legal non-conforming rights at the Property, the Tribunal agrees with the Moving Party that this assertion is not a relevant consideration in the context of this ZBA (i.e., an application for a ZBA to permit a place of recreation restricted to a gun range and a gun (shooting) club as an additional use).

50Moreover, in the Staff Report, Mr. McGlade provided a background regarding the prior use by the OPP. Specifically, he explained that:

…the shooting range was constructed in approximately 1995 by the OPP for training purposes, and approximately 400-500 OPP officers would use the range annually to participate in annual firearms requalification. The OPP would annually notify neighbours regarding the dates on which the range would be used. During the review of the subject application, Township Staff were provided dated letters from 2014-2019 sent by the OPP. The letters provided notice of the dates when the range would be used for training. The number of days the range was used in a year varied between 18 to 38 days. The actual number of days the gun range was used each year is unknown. The OPP would occasionally use the range at night in the fall months.

[emphasis added by the Tribunal]

51While the Responding Party asserts that there is no change of use being proposed here, the Tribunal finds there to be a difference between an occasional use of about 18 to 38 days a year for a gun range versus a permanent rezoning to allow for a gun range and a gun (shooting) club as an additional use.

52Moreover, Mr. McGlade further explained in the Staff Report that the previous use of the gun range by the OPP as a training facility does not establish a “grand-fathered” use to allow for a private gun range. As a Provincial Government body, the OPP’s use of the Subject Property would have been deemed a “public use,” which would have been permitted.

53In his sworn Affidavits, Mr. McGlade adopted his opinions as provided in the Staff Report. The Planning Justification Report (unsworn) did not provide a planning analysis regarding the prior use argument.

54Based on the uncontroverted evidence provided by Mr. McGlade, the Tribunal is convinced that this argument does not apply, and that the ZBA would be establishing a new use which is not supported by the policy regime governing it.

Regarding the Township’s Staff misinforming him with respect to the Appeal Form

55In direct contradiction to the Responding Party’s statements, Mr. McGlade confirmed in his Affidavit, sworn on October 5, 2023 (Exhibit 3), that he did not meet with the Responding Party to discuss the requirements of an appeal prior to the submission of the Notice of Appeal, nor did he discuss the adequacy of the Notice of Appeal with the Responding Party. Additionally, the Tribunal is persuaded by the Orchard Case (at paras. 45-46), wherein it is stated that: “it is not the role of the Tribunal, nor the City, to review appeal documentation to ensure that it is completed properly and completely. Nor is it the role of the Tribunal to screen Notice of Appeal Forms to ensure that they contain sufficient reasons to be adjudicated at a merit hearing.”

56The responsibility to ensure that the Notice of Appeal is sufficient lies with an applicant (the Responding Party in this case), and not the Township’s Staff. Lastly, whether someone misled the Responding Party is not relevant to the question of whether the Notice of Appeal is sufficient with respect to a Motion to Dismiss.

Alternate Request

57The Responding Party made the alternate request that the Tribunal permit him the opportunity to revise his Notice of Appeal. However, as clarified in the Orchard Case, at para. 25, the Tribunal does not have the authority to allow an applicant to amend the Notice of Appeal Form “to make valid what is invalid.”

58While the Tribunal is sympathetic to the plight of self-represented litigants, and may grant them some degree of accommodation for their circumstances, they cannot be excused from compliance with the law and statutory requirements, which apply equally to all Litigants and Parties. Moreover, while the Tribunal has flexibility in the application of its own Rules, the Tribunal does not have the jurisdiction to excuse Parties from compliance with statutory requirements set out in the Act. As such, when the Act requires a Notice of Appeal to provide sufficient explanation and reasons (s. 34(19.0.1) of the Act), the Tribunal is bound by that requirement. To allow the Appeal to proceed would, in effect, be permitting the Responding Party to amend the Notice of Appeal outside of the statutory timeframe within which the Appeal must be filed. Statutory requirements and rules must be consistently applied and adhered to in order to ensure the appeal process is fair and just. In this case, the Responding Party did not satisfy the mandatory requirements set out in the Act to provide reasons and explanations in the Notice of Appeal.

59The Tribunal acknowledges that the Responding Party is not familiar with the process. However, it is not the role of the Tribunal (or the Township) to review appeal documentation to ensure that it is completed properly and completely. Nor is it the role of the Tribunal to screen Notices of Appeal to ensure that they contain sufficient reasons to be adjudicated at a merit hearing.

Conclusion

60After careful consideration of the materials presented by the Parties and each of their submissions, the Tribunal finds that the Responding Party in this case has filed a deficient Notice of Appeal, which does not set out proper land use planning grounds upon which the Appeal could be granted. The Appeal has no reasonable prospect of success.

61The Tribunal notes that the threshold to grant a Motion to Dismiss is high, and that dismissal of this type should not be granted lightly. However, for the reasons set out above, the Tribunal finds that the Moving Party has met the burden of establishing that the Appeal grounds do not disclose genuine, legitimate, and authentic planning grounds worthy of adjudication. This is, therefore, an appropriate case for dismissal pursuant to s. 34(25)(1)(i), (2) and (3) of the Act and s. 19(1)(c) of the OLTA.

ORDER

62THE TRIBUNAL ORDERS that the motion is granted, and the Appeal pursuant to Section 34(11) of the Planning Act by Martin Whyte is dismissed.

“Bita M. Rajaee”

BITA M. RAJAEE

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.