Dewdney Mountain Farms Limited v. Trent Lakes (Municipality), 2024 CanLII 40942

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 01, 2024

CASE NO(S).: OLT-23-000354

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

Applicant/Appellant: Dewdney Mountain Farms Limited

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

Description: ZBL to permit a quarry use and associated uses on the subject lands

Reference Number: ZBA 20-14

Property Address: 543 Ledge Road

Municipality/UT: Municipality of Trent Lakes

OLT Case No: OLT-23-000354

OLT Case Name: Dewdney Mountain Farms Limited v. Trent Lakes (Municipality)

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

Request by: Trent Lakes Concerned Citizens

Request for: Request for Dismissal Without a Hearing

Heard: In Writing

APPEARANCES:

Parties

Counsel

Dewdney Mountain Farms Limited.

David S. White

Municipality of Trent Lakes

John Ewart

Trent Lakes Concerned Citizens

Eric Gillespie

DECISION DELIVERED BY DAvid brown AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is a Motion filed by Trent Lakes Concerned Citizens (“TLCC”) pursuant to s. 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) seeking an Order dismissing the Appeal filed by Dewdney Mountain Farms Limited. (“DMF”) against the Municipality of Trent Lakes (“Municipality”) for its failure to make a decision on an Application to Amend the Zoning By-law (the “ZBA”) within the timeframes prescribed in the Act.

2DMF owns the lands known as 543 Ledge Road (“Subject Property”) and filed the ZBA seeking approval to permit a quarry operation together with accessory uses (the “Proposal”).

3The matter at issue in this Appeal centers around the ability to implement noise mitigation measures along the proposed Haul Route for the Proposal. The proposed Haul Route includes a portion of Ledge Road, which TLCC contends is a Forced Road, and there are unresolved issues around ownership and the legal status of the road. TLCC submits that DMF and the Municipality do not have the ability to make the required improvements, including road widenings, along Ledge Road as it is a Forced Road and not a Public Highway. Accordingly, TLCC submits that the application is not feasible, and TLCC requests that the appeal be dismissed.

4DMF responded that TLCC wishes to have the Tribunal make a determination on the merits of the Appeal without conducting a Hearing on the Merits.

BACKGROUND

5In 2013, DMF received an approval from the then Township of Galway-Cavendish and Harvey, subsequently known as the City of Kawartha Lakes and now the Municipality of Trent Lakes, of an Official Plan Amendment (“OPA 41”) and Zoning By-law Amendment (“By-law No. B2013-0009”) permitting a quarry and associated uses on the Subject Property.

6The approvals were appealed to the Ontario Municipal Board (“OMB”), as it was then known. The OMB, having considered the matter, issued a Decision and Interim Order dated February 5, 2015¹ (the “2015 Board Decision”) approving OPA 41 and By-law No. B2013-0009 in principle, subject to the satisfaction of two conditions.

7The 2015 Board Decision was subject to further review by the OMB, the Ontario Divisional Court², and then the Local Planning Appeal Tribunal (“LPAT”). The outcome of these reviews can be summarized as it relates to these proceedings as OPA 41 was approved, the Appeal of By-law No. B2013-0009 was allowed, and By-law No. B2013-0009 was set aside. Of note, the LPAT, in its Decision issued on April 18, 2018³ (the “2018 Tribunal Decision”), specifically, and only addressed the issue of noise mitigation as directed by the Divisional Court Decision and the LPAT stated in paragraph 66 of the 2018 Tribunal Decision:

Therefore, to the extent that the Proponent is able to develop a feasible noise mitigation plan that the Municipality will agree to implement and which will satisfy the determined recommendations as to noise attenuation without creating consequential adverse impacts, nothing in the Decision should be taken to prejudice any fresh application for zoning amendment for the Site to permit its use as a quarry.

8The matter before the Tribunal is the Appeal of a “fresh application for a zoning amendment” filed by DMF on July 20, 2020, as contemplated in the 2018 Tribunal Decision.

9At the Case Management Conference conducted by the Tribunal on August 18, 2023, for this matter (the “First CMC”), the Parties were in agreement that OPA 41 is in full force and effect. Further, the Parties outlined their agreement that the Hearing of the Merits of the Appeal would be scoped such that the Parties would focus on noise impact issues related to the proposed Haul Route and its sufficiency.

10A second CMC was held on November 3, 2023 (the “Second CMC”) and the decision issued on November 20, 2023, included a Procedural Order and Issues List. The Issue at the center of the Motion is Issue #5 on the Issues List, which states:

Has the applicant demonstrated that the use of the deviated section of Ledge Road, which is considered a “forced road” is appropriate in terms of:

i. ownership of the right-of-way,

ii. width of right-of-way,

iii. width of the existing road platform, and

iv. ability to improve the road as required to support its use as a haul route?

11The Hearing of the Merits of the Appeal has been scheduled to commence on Monday, May 6, 2024, at 10 a.m.

12A request to file a Motion to dismiss the Appeal without a hearing was received by the Tribunal. The Tribunal directed the matter to be heard by written submissions subject to modified requirements as set out in the Notice served to all Parties.

13TLCC has filed a Motion requesting the Tribunal dismiss the Appeal without a hearing. TLCC submits that DMF has failed to demonstrate the ZBA is feasible as required by the Decision of the Divisional Court and the 2018 Tribunal Decision.

THE MOTION

14The materials filed with the Tribunal with respect to the Motion consist of the following:

a) The Factum of the Moving Party (Notice of Motion to Dismiss the Appeal without a hearing) dated April 8, 2024, filed by TLCC;

b) Responding Motion Record of DMF dated April 12, 2024;

c) Responding Motion Record of the Municipality dated April 12, 2024; and

d) Reply Factum of the Moving Party dated April 17, 2024.

15DMF submitted a Plan of Survey (the “Musclow Survey”), which TLCC contends details a portion of the proposed Haul Route along Ledge Road that cannot be improved as per the Engineering Report submitted by DMF.

16TLCC’s Surveyor contends that the Forced Road portion of Ledge Road has an insufficient width, as confirmed by the Musclow Survey, to accommodate the recommendations of the DMF Engineering Report. Further, there are significant changes in elevation along the road, which have been confirmed in the Musclow Survey, and TLCC’s Engineer contends that these factors have not been addressed in the DMF Engineering Report. It is the evidence of the TLCC Surveyor and the TLCC Engineer that the Forced Road portion of Ledge Road cannot be widened beyond the width of the existing travelled portion of the road.

17TLCC further submits that a portion of Ledge Road, the Forced Road, has not been confirmed as a public road, as the Municipality is unable to produce a record of a By-law being passed to create the portion of Ledge Road in question as a public road. TLCC submits that there are unanswered questions with respect to the status of the road and whether permissions are available for the use of the Forced Road portion of Ledge Road for the proposed Haul Route by the Proposal.

18The Proposal has been the subject of extensive litigation, initially in the form of an Appeal before the OMB, then before the Ontario Divisional Court, and finally before the LPAT. TLCC submits that it was the ultimate determination of those proceedings that in order for the matter to proceed, the Proponent, DMF, is required to demonstrate the Proposal is “feasible.”⁴

19TLCC contends that the Musclow Survey confirms that the road widths are not sufficient to implement the design requirements set out in the DMF Engineering Report and concludes that it is clear that the evidence proffered by DMF demonstrates that the proposal is not feasible. TLCC thus concludes that there are no apparent land use planning grounds on which the Tribunal could allow the Appeal and, therefore, should be dismissed.

20DMF responded that the Appeals are properly before the Tribunal, and s. 34(24) of the Act sets out that the Tribunal shall hold a Hearing on the Merits of the Appeal. DMF further contends that TLCC, in bringing the Motion, requested that the Tribunal dismiss the Appeal pursuant to s. 34(25)1.i. and s. 34(25)1.ii of the Act.

21Section 34(25)1. of the Act states:

(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 or part of the appeal,

ii.the appeal is not made in good faith or is frivolous or vexatious,

iii.the appeal is made only for the purpose of delay, or

iv.the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

22No submissions were made with respect to the matters addressed in s. 34(25)1.iii. or s. 34(25)1.iv. of the Act. The Tribunal, having considered the Notice of Appeal filed by DMF and the submissions of the Parties, is satisfied that the Appeal is not being made for the purpose of delay. Furthermore, the Tribunal finds that the Appellant, DMF, has not persistently and without reasonable grounds, commenced proceedings that constitute an abuse of process before the Tribunal.

23DMF submits that the Notice of Appeal filed with the Tribunal includes land use planning grounds and the Motion brought by TLCC has not raised any issue with those grounds. DMF further contends that the Motion is seeking the Tribunal to decide on the Merits of the Appeal focussed solely on Issue #5 on the Issues List.

24Section 19(1)(c) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4 Schedule 6 grants the Tribunal authority to dismiss an appeal if it is “of the opinion that the proceeding has no reasonable prospect of success”.

25TLCC contends that, for the reasons set out above, it is clear that the evidence proffered by DMF demonstrates that the proposal is not feasible, and therefore, the Appeal should be dismissed as there is no reasonable prospect of success.

26DMF responded that for the Tribunal to arrive at such a conclusion, the Tribunal would have to consider the evidence being proffered and make a determination on the merits of the evidence and thus, the Appeal. DMF asserts that this is a matter appropriately considered and determined at the Hearing of the Merits of the Appeal.

27DMF requests that the Tribunal dismiss the Motion in its entirety.

28The Municipality provided a Response to the Motion confirming that the Council of the Municipality passed a resolution supporting the Motion brought by TLCC. No other submissions were proffered by the Municipality.

FINDINGS

29The East Beach⁵ decision of the OMB is generally considered the preeminent decision of the OMB, and now the Tribunal, addressing the dismissal of an appeal without a hearing. Paragraph 9 of East Beach states, “The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate, and authentic planning reasons.” The Tribunal has reviewed the Notice of Appeal filed by DMF and finds that the attached Planning Justification sets out a thorough planning rationale supporting the ZBA filed by DMF. The Tribunal notes that the Appeal is filed pursuant to s. 34(11) of the Act for a non-decision with respect to the ZBA. When contemplating the East Beach Decision, the planning reasons supporting the Appeal in this instance are supporting the ZBA. The Tribunal finds that the Appeal sets out genuine, legitimate, and authentic planning reasons supporting the ZBA which is the subject of the Appeal. This decision is not to be construed as a determination of the merits of the planning grounds set out, only that the grounds are worthy of the adjudicative process.

30The Parties have provided the Tribunal with an Issues List that is included in the Procedural Order issued by the Tribunal at the Second CMC. The Tribunal notes that each of the issues identified on the Issues List focuses on the haul route and potential impacts arising from traffic and noise. The Decision of the Tribunal from the First CMC in paragraph [9] notes that the Parties have agreed to scope the Hearing with evidence focused on the haul route as reflected in the Issues List. The Tribunal is being requested to dismiss the Appeal based on the consideration of evidence that is being proffered by DMF. TLCC submits that this evidence demonstrates the proposal is not feasible. TLCC is requesting that the Tribunal determine the veracity of the evidence that has not been tested before the Tribunal and to make a ruling on such evidence as being “not feasible”.

31The Tribunal finds that dismissing the Appeal without a hearing in this matter would be neither fair nor just. The evidence being proffered with respect to the width of Ledge Road, the ownership of a portion of Ledge Road, the status of that portion of Ledge Road with respect to whether it is a public road or a forced road, and the ability to modify the portion of the road in question as recommended by the DMF’s Engineering Report requires a full consideration of the evidence, in its entirety. The issues identified are worthy of the adjudicative process.

32The Tribunal finds that there is no evidence that the Appeal is not being made in good faith or is frivolous and vexatious. The Tribunal, having reviewed the numerous Decisions arising from the previous Appeal process, notes that the Appeal of the current Proposal was arguably anticipated based on the language and directions included in the previous Decisions.

33The Tribunal does not find that the submissions of TLCC support the position that the Appeal has no reasonable prospect of success. The Tribunal finds that the evidence that is cited by TLCC in support of the Motion requires adjudication by the Tribunal to determine the merits of the Appeal, and this is further supported by the Issues List identified by the Parties. This determination should occur at the Hearing of the Merits scheduled to commence on May 6, 2024.

34The Tribunal dismisses the Motion in its entirety.

ORDER

35THE TRIBUNAL ORDERS that the Motion to Dismiss the Appeal of an Application to Amend the Zoning By-law of the Municipality of Trent Lakes without holding a hearing is denied.

“David Brown”

DAVID BROWN

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.

Footnotes

1. 1Trent Lakes (Municipality) and By-law No. B2013-009, Re 2015 CarswellOnt 1640 (OMB)
2. 2Eastman v. Dewdney Mountain Farms Ltd., 2017 ONSC 5749, [2017] O.J. No. 5054 (Div. Ct).
3. 3Anderson v Trent Lakes (Municipality), 2018 CanLII 35131 (ON LPAT), at para 66
4. 4Eastman v. Dewdney Mountain Farms Ltd., 2017 ONSC 5749, [2017] O.J. No. 5054 (Div. Ct.) at paras. 53-57; Anderson v. Trent Lakes (Municipality), 2018 LNONLPAT 37 (LPAT) at paras. 19, 20, 31, 34, 51-67
5. 5Toronto (City) v East Beach Community Assn, 1996 CarswellOnt 5740 (OMB) (East Beach)