Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 07, 2024
CASE NO(S).: OLT-24-000036
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Paula & Joseph Sklazeski
Subject: Application to amend the Zoning By-law
Description: To permit the use of lands for an outdoor recreational social/ educational venue
Reference Number: Z-01-2023
Property Address: 2301 Government Road
Municipality: Thunder Bay
OLT Case No.: OLT-24-000036
OLT Lead Case No.: OLT-24-000036
OLT Case Name: Paula and Joseph Sklazeski v. Thunder Bay (City)
PROCEEDING COMMENCED UNDER subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Request by: City of Thunder Bay
Request for: Request for Dismissal Without a Hearing
Heard: March 22, 2024 in Writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Paula and Joseph Sklazeski (“Applicant” / “Appellant”) | Self-represented |
| City of Thunder Bay (“City”) | Michael Grimaldi |
DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant/Appellant had sought a Zoning By-law Amendment (“ZBA”) from the City of Thunder Bay (“City”), with regards to the property known Municipally as 2301 Government Road (“Subject Lands”), seeking to permit the use of the Subject Lands for an outdoor recreational social and educational venue.
2The Applicant appealed the City’s refusal of the ZBA application.
3This matter has been scheduled by the Tribunal for a hearing of the City’s written Motion to dismiss the appeal without a hearing.
4The Motion, dated February 15, 2024, was supported by an Affidavit of Jillian Fazio sworn on February 9, 2024.
5The Appellant responded to the Motion on March 4, 2024, by an unsworn affidavit, while enclosing documents marked Response to Motion Part 1 – Table of Contents and Part 2 – some pages of emails and a quotation for work by Englobe.
6The City also filed a Reply Submission on March 5, 2024, a Factum and a Book of Authorities.
MOTION TO DISMISS
7The Motion is for an order under section 34(25) of the Planning Act, dismissing the appeal without a hearing.
8The grounds are that the Appellant has failed to raise genuine planning issues and has no reasonable prospect of success.
9The Tribunal is aware that the Appellant is self-represented. The Appellant had served his response out of time. Nevertheless, the Tribunal will ignore the delay for the purpose of the Motion.
10Opposing counsel had, through email correspondence, stated that he waived the lateness of the Appellant’s response.
11However, counsel maintained that the Appellant’s documentary exhibits were not properly brought before the Tribunal as the affidavit in response was not sworn before a person for taking affidavits, and the exhibits were thus not attested to.
12Rule 10.6(c) of the Ontario Land Tribunal Rules of Practice and Procedure requires a responding party to “include an affidavit setting out a brief and clear statement of the facts upon which the responding party will rely.”
13In order to be admissible, such an affidavit must be sworn before a person who is authorized to witness the oathtaking. The attestation portion of the form of affidavit contains a statement of the persons authorized to witness the Appellant’s oath. i.e., “affidavit to be signed before a lawyer, justice of the peace, notary public or commissioner for taking affidavits”. There is no evidence that the Appellant has sworn the affidavit before one of those authorized persons.
14The Tribunal finds that on this fact alone, the affidavit is not admissible, and the Appellant has not presented any admissible statement or attested documents for the Tribunal’s evaluation in response to the City’s Motion.
15As there was no such admissible evidence, the Tribunal will not consider the Appellant’s response in the adjudication of the Motion. However, the Tribunal will address the City’s Motion as it seeks to dismiss the Appellant’s appeal.
16Due to the failure of attestation, the City’s Motion and affidavit are thus unrebutted. The Tribunal will grant the dismissal without a hearing for the following reasons.
Tribunal’s Authority to Dismiss
17Section 34(25) of the Planning Act permits the Tribunal, on its own initiative or by a motion of any party, to dismiss all or part of an appeal without a hearing if the Tribunal is of the opinion that the appeal does not disclose any apparent land use planning ground, or is made only for the purpose of delay, or that it is frivolous or vexatious.
18Pursuant to section 34(25), 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 applies:
- 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.
No Apparent Land Use Reason
19In Toronto (City) v. East Beach Community Association, 1996 CarswellOnt 5740, [1996] O.M.B.D. No. 1890, 42 O.M.B.R. 505, the Ontario Municipal Board stated that it is not good enough for an appellant to simply raise apprehensions in an appeal. The Tribunal is entitled to go behind the stated reasons for the appeal to see whether they constitute genuine, legitimate and authentic planning reasons and the appellant must present serious planning issues and evidence to substantiate the issues in the face of a Motion to Dismiss.
20The Appellant did not present any serious planning issue or evidence to substantiate a planning issue in the face of the Motion.
21The reasons accompanying the appeal listed grounds such as:
Zoning Change Notice being inadequate considering pandemic / extenuating circumstances the zoning was changed during Covid, unbeknownst to the Appellant;
Inaccurate information being given to the City councillor by the acting planner pertaining to the ZBA and the proposed purposes and activities;
Conflict of interest claims on the City planning unit in protecting another recreational centre’s monopoly;
Negative politicking and lobbying claims;
Nasty letters of opposition;
Noise assessment requests that may be unnecessary; and
Various allegations of unfair targeted spot zoning requirements directed at them.
22The Notice of Appeal does not contain planning matters other than complaints on process, general bare statements and apprehensions of unfairness. There is no particularity of planning matters and no material to support any planning grounds.
23When confronted with the Motion to Dismiss, at a minimum, the Appellant needs to present before the Tribunal some planning evidence that the proposed ZBA conforms to the Official Plan, represents good planning, and is in the public interest. The unattested affidavit generally repeated the statements and apprehensions contained in the Notice of Appeal.
24The Appellant has no reasonable prospect of success, and the Tribunal finds that a full hearing would be a waste of the City’s resources.
25The Tribunal notes that the Appellant was applying to host athletic, social, cultural, educational, and wedding events on the Subject Lands. Nevertheless, the Appellant did not present any genuine or authentic planning grounds for the appeal.
26The Tribunal finds that there is no authentic issue worthy of adjudication at a hearing. The Notice of Appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal.
ORDERS
27The Tribunal Orders that the City’s Motion is allowed, and the appeal is dismissed.
“T.F. Ng”
T.F. NG
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.