OBD Developments Inc., OBM Marina Inc., & OBG Golf Inc. v. Georgian Bay (Township), 2024 CanLII 51656

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

May 31, 2024

CASE NO(S).:

OLT-23-001240

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant:

OBD Developments Inc., OBM Marina Inc., & OBG Golf Inc. (collectively "Oak Bay")

Subject:

Conditions of approval of draft plan of subdivision

Description:

To request an extension to the approval of the draft plan and to revise the layout to incorporate a stormwater management plan within the draft plan

Reference Number:

C2008-6

Property Address:

Part of Lots 31 and 32, Concession 2, Baxter

Municipality/UT:

Georgian Bay/Muskoka

OLT Case No.:

OLT-23-001240

OLT Lead Case No.:

OLT-23-001240

OLT Case Name:

OBD Developments Inc., OBM Marina Inc., & OBG Golf Inc. v. Georgian Bay (Township)

Heard:

May 17, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc.

Leo Longo

District Municipality of Muskoka

Jamie Clow

Township of Georgian Bay

Colin Leger

MEMORANDUM OF ORAL DECISION DELIVERED BY J. Innis ON May 17, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) respecting an Appeal by OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. for lands municipally known as Part of Lots 31 and 32, Concession 2 in the Township of Georgian Bay. The Appellant requests an extension of five years for the approval of Draft Plans of Subdivision S2005-7 and S2005-10, if further seeking revised conditions, and the need for a servicing agreement.

MEDIATION AND SETTLEMENT

2The Parties requested that a third CMC be scheduled to allow for time for further discussions and confirmed that they will keep the Tribunal apprised of any developments with their resolution efforts. If a settlement is achieved, the Parties will advise the Tribunal and request a conversion of the third CMC into a Settlement Hearing. Should discussions result in a reduction of the Issues, the Parties will advise the Tribunal before or at the Third CMC and request a shortened Hearing.

PROCEDURAL ORDER AND ISSUES LIST

3The Tribunal received and reviewed a draft Procedural Order and Issues List from the Parties. The Tribunal finds it acceptable, and the proceedings shall be governed by it (see Schedule A).

THIRD CMC AND HEARING

4Upon request of the Parties, the Tribunal scheduled a third CMC commencing on Monday, July 29, 2024, at 10 a.m. by Video Hearing. No further Notice is required.

5Upon request of the Parties, the Tribunal also scheduled a five-day Merit Hearing commencing on Monday, November 25, 2024, at 10 a.m. by Video Hearing. No further Notice is required.

6The Hearings are scheduled to proceed by video as follows:

Monday, July 29, 2024 at 10 a.m.

GoToMeeting: https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

Monday, November 25, 2024 at 10 a.m.

GoToMeeting: https://global.gotomeeting.com/join/656004293

Access Code: 656-004-293

7Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.

8Parties 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

9Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.

10Individuals 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

11THE TRIBUNAL ORDERS that:

1. The date and particulars of the Third Case Management Conference and Merit Hearing are set out above; and

2. The Procedural Order appended as Schedule A shall govern the proceedings.

12The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“J. Innis”

J. inniS

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.

SCHEDULE A

ISSUE DATE:

May 31, 2024

CASE NO(S).:

OLT-23-001240

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant:

OBD Developments Inc., OBM Marina Inc., & OBG Golf Inc. (collectively "Oak Bay")

Subject:

Conditions of approval of draft plan of subdivision

Description:

To request an extension to the approval of the draft plan and to revise the layout to incorporate a stormwater management plan within the draft plan

Reference Number:

C2008-6

Property Address:

Part of Lots 31 and 32, Concession 2, Baxter

Municipality/UT:

Georgian Bay/Muskoka

OLT Case No.:

OLT-23-001240

OLT Lead Case No.:

OLT-23-001240

OLT Case Name:

OBD Developments Inc., OBM Marina Inc., & OBG Golf Inc. v. Georgian Bay (Township)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on November 25, 2024, at 10:00 a.m.

3. The length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible. To that end, a further CMC will be held on July 29, 2024, at 10:00 a.m.

4. The parties and participants identified at the case management conference are set out in

Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before September 3, 2024, and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before September 13, 2024, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before September 23, 2024.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before October 21, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before October 21, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before October 28, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before November 20, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before November 4, 2024, and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 20, 2024.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 20, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized. So orders the Tribunal.

Summary of Dates

DATE

EVENT

September 3, 2024

Exchange of witness lists (names, disciplines and order to be called)

September 13, 2024

Experts meeting by this date

September 23, 2024

Agreed Statement of Facts

October 21, 2024

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

October 28, 2024

Date to let Tribunal know if all hearing dates are required

November 4, 2024

Exchange of Reply Witness Statements (if any) and Visual Evidence

November 20, 2024

Joint Document Book

November 20, 2024

Hearing Plan filed with the Tribunal

November 25, 2024

Hearing commences

ATTACHMENT 1

List of Parties and Participants

Parties:

OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc.

Aird & Berlis LLP

Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9

Leo F. Longo

Tel: 416.865.7778

Email: llongo@airdberlis.com

District Municipality of Muskoka

70 Pine Street

Bracebridge, ON P1L 1N3

Jamie Clow

Tel: 705.645.2100, ext. 4251

Email: Jamie.Clow@muskoka.on.ca

Township of Georgian Bay

Garrod Pickfield LLP

9 Norwich Street West

Guelph, ON N1H 2G8

Colin Léger

Tel: 519.837.0500

Email: cleger@garrodpickfield.ca

ATTACHMENT 2

Draft Issues List

Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and/or argument at the hearing.

1. Should the draft plan conditions be amended as per the attached Schedule B?

2. What should the content be of the required District Servicing Agreement and Township Supplementary Development/Condominium Agreement?

3. What drainage easements are required to service the intended development?

4. What should the content be of the requested District Additional Costs Reimbursement Agreement?

5. Are Issues 2 and 4 appropriate and/or valid issues in this appeal and are they within the jurisdiction of the Tribunal?

6. Is Issue 3 an appropriate and/or valid issue?

SCHEDULE B

VACANT LAND CONDOMINIUM FILE C2008-6

Oak Bay – Block 14

CONDITIONS OF APPROVAL

PROPOSED REVISED CONDITIONS

Consolidated to reflect the Authorization signed September 19, 2014, August 7, 2018 and June 17, 2021

Please be advised that this is an office consolidation and is to be used for information purposes only.

Existing Condition

Change/No change

Part A – Approval

Condominium Description File C2008-6 (Oak Bay – Block 14) is approved subject to Parts B, C, and D herein.

No change

Part B – Conditions

Standard Conditions

Change shown in yellow highlight below:

1. This approval applies to Vacant Land Condominium Description File C2008-6 (Oak Bay-Block 14), revised by J.D. Barnes Surveying Limited and Celeste Phillips Planning Inc., dated July 24, 2023, showing a total of 29 vacant land condominium units, a stormwater management block, 7 blocks for common element road and laneways, one common element recreational block on Lots 31 and 32 Concession2, Township of Georgian Bay, District of Muskoka.

2. No change.

3. No change.

4. No change.

5. No change.

Changed to reflect OLT approved wording for the plan of subdivision.

6. Easements as may be required for access, pedestrian walkways, utilities, drainage, or other purposes shall be granted to the Township of. Georgian Bay and any other authority or party.

6.a) and 6.b ) No changes.

Changed the first part of 7 to add wording that reflects the OLT approved condition for the plan of subdivision.

After “September 20, 2006” add:

, the addendum to the Environmental Impact Study, prepared by Beacon Environmental Limited, dated May 2022, and the Wildlife Crossing – Muskoka Road 5 study, prepare by Gartner Lee Limited, dated April 1, 2008.

No change.

Delete 7.a) and b) and replace with OLT approved wording for the plan of subdivision.

7.a) Prior to December 31, 2025 and final approval of Engineering drawings for Waterside, hydraulic modelling of both water and sewer services may be completed by The District Municipality of Muskoka and any required improvements or modifications to either the condominium design or the municipal water and sewer services shall be implemented to the satisfaction of The District Municipality of Muskoka. Population, flows, peaking factors for this development phase will be provided by the owner’s engineer at the time that the hydraulic modelling is being completed.

7.c) Delete. EIS was updated in 2022.

7. d) Delete. EIS was updated in 2022.

8. and 8 i), 8. ii), 8. iii) and 8. iv) No changes.

Delete 8.v) -reference to 7.c) and 7.d) as EIS has been updated.

9. No change.

10. No change.

11. 11.i), 11.ii), 11.iii) No changes.

11.iv) – Delete reference to 7.b), 7.c) and 7.d). New wording for 7a) incorporates the OLT wording for hydraulic monitoring (previously 7.a) and 7.b)).

Conditions 7.c) and 7.d) are proposed for deletion.

Revise condition to:

12. Prior to final approval being granted, the Township of Georgian Bay shall advise the District in writing that conditions 1, 3, 6, 6.a), 6 b), 8, 9, 10 have been complied with to their satisfaction with a brief and concise statement detailing how each condition has been satisfied.

Revise condition to:

13. Prior to final approval being granted, The District Municipality of Muskoka shall be satisfied that conditions 2, 4, 5, 7, 7.a), 10, 11, 12, 13, 15 and 16 have been complied with to their satisfaction.

14. Deleted in 2018.

15. No change.

16. No change.

Lapsing date in first part of condition revised to match the OLT approved lapsing date for the subdivision.

17. In the event that these conditions of draft approval fail to be fulfilled on or before November 2, 2028, the approval herein granted shall be deemed to have lapsed pursuant to the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Delete last sentence “The technical reports to support a future extension shall include but may not be limited to a Scoped Species at Risk (SAR) Assessment.”

Change lapsing date to November 2, 2028.

Change Consolidation Date. xxxxxx, xx, 2024

ATTACHMENT 3

Order of Evidence

OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc.

District Municipality of Muskoka

Township of Georgian Bay

OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc., in Reply

Meaning of terms used in Procedural Order

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications,

(3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.