Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 31, 2024
CASE NO(S).: OLT-23-001143
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Ron Rienas
Subject: By-law No. 7141/83/23
Description: To permit 120 single detached dwellings, 46 street-townhouse dwellings including blocks for commercial, residential, stormwater management and environmental conversation purposes
Reference Number: File D12-06-22
Property Address: Concession 2 Pt Lot 31, Concession 2 Pt Lot 31 RP 59R12021 Parts 1 & 2, and Con 2 Pt Lot 31 RP 59R11866 Parts 2 to 5, located on the north and east of the terminus of Northland Avenue
Municipality/UT: Port Colborne / Niagara Region
OLT Case No.: OLT-23-001143
OLT Lead Case No.: OLT-23-001143
OLT Case Name: Ron Rienas v. Port Colborne (Town)
PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: 2600261 Ontario Inc.
Request for: Request for Dismissal Without a Hearing
Heard: February 12, 2024 via Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| 2600261 Ontario Inc. (Northland Estates) | P. DeMelo |
| Ron Rienas | Self-Represented* |
| City of Port Colborne | S. Premi |
DECISION DELIVERED BY S.L. DIONNE AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This Decision arises out of a Hearing of a Motion, brought by 2600261 Ontario Inc. (Northland Estates) pursuant to s. 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c4, Sched 6, as amended (“OLTA”), to dispense with an appeal filed by Ron Rienas (“Appellant”) against the Decision of the Council of the City of Port Colborne (“Council”) to pass a site specific Zoning By-law Amendment to permit and regulate proposed land use(s) to facilitate the development of a residential plan of subdivision.
22600261 Ontario Inc. (“Northland”) is the Owner of the affected lands, legally described as Part of Lot 31, Concession 2, in the Geographic Township of Humberstone, in the City of Port Colborne (“City”), in the Regional Municipality of Niagara (“Region”). The lands are located south of Barrick Road and west of West Side Road, at the terminus of Northland Avenue (“Subject Property”).
3Northland filed applications for a Zoning By-law Amendment and a Draft Plan of Subdivision in July 2022, to facilitate the development of a residential plan of subdivision comprised of 120 single detached lots, 10 street townhouse blocks, a mixed-use block, a park block, a stormwater management block, and a natural heritage features block. The applications were considered in the context of the statutory planning process pursuant to the Planning Act, R.S.O., 1990, c. P.13 (“Planning Act”), which includes an opportunity for public input.
4The Appellant raised concerns regarding the wastewater servicing system and its’ capacity, including the OMER sanitary pumping station (“SPS”), to accommodate the proposed development and the potential adverse impact(s) that the proposed development may have on his property (and that of his neighbours) due to the capacity constraints. These concerns were made to the City by way of both written submissions and oral submissions before Council made its decision.
5On September 26, 2023, Council passed Zoning By-law No. 7141/83/23 (“ZBA”), establishing site specific zoning permissions and standards for the lands, and granted approval of a Draft Plan of Subdivision (“DPA”) subject to conditions to allow for the division of the Subject Property into lots and blocks.
6The Appellant filed appeals of the Council’s decisions on both the ZBA and DPA with the Tribunal, however, upon determination that the Appellant does not constitute a “specified person” as defined under the Planning Act for the purposes of having rights of appeal in respect of Council’s granting of DPA, the Tribunal administratively determined his appeal of the DPA to be invalid. The Council decision to grant DPA is in full force and effect.
7The appeal of Council’s decision to pass the ZBA remains live (“the Appeal”), and is the subject of the present Motion for Dismissal without a Hearing.
STATED GROUNDS OF THE APPEAL
8The reasons for the Appeal are set out in the Ontario Land Tribunal Appeal Form (A1) completed by the Appellant (Exhibit 1, Tab 8) and are as follows:
“Development is contributory to a sanitary sewage system, specifically sanitary pumping stations, that do not have sufficient capacity to handle wet weather flows. Approval of the zoning bylaw amendment that implements a plan of subdivision is premature without addressing servicing matters.” [emphasis added]
9Additionally, it is indicated that the following grounds will be relied upon:
“The proposed subdivision and implementing zoning by-law amendments violate the following:
Planning Act provincial policy statements Section 2(a) (f) and (o);
City of Port Colborne official plan Section 8.1.1 (c);
Any significant rainfall surcharges the existing sanitary sewer system and pumping stations resulting in the city manually pumping raw sewage from the sanitary sewer system into the storm sewer system discharging untreated sewage in the natural environment. During these events we as other homeowners experienced sewer backups into basements and are unable to use indoor plumbing as checks valves prevent discharge.
The proposed development will be contributory to the sanitary drainage shed, increasing the number of dwellings by almost 25%. The existing sanitary system is not adequate to serve the existing dwellings much less the additional dwellings as wet weather flows cannot currently be accommodated.
Council did not apply a holding zone under official plan policy 11.1.2 (a) which determined land use justification but physical development is premature as wastewater servicing requirements have not yet been handled.” [emphasis added]
THE MOTION
10Northland seeks an Order of the Tribunal:
a. Dispensing with the Appellant’s s. 34(19) appeal on the ZBA, pursuant to s.19(1) of OLTA;
b. Abridging time for service of the Motion;
c. Granting Costs of the Motion to the Applicant; and
d. Such further and other relief as Counsel for the Applicant may request and the Tribunal may permit.
11Although not raised by the Parties to this Motion, the Tribunal hereby grants Party status to Northland, the Applicant and Owner of the lands subject to this Appeal.
12An Affidavit of Service was provided, which the Tribunal finds no issue with, and as such no further notice is required in respect of the matter before the Tribunal. The Tribunal granted the abridgement of time for service of the Motion and for the service of the Response to the Motion. No challenge on this was raised in the Hearing.
GROUNDS FOR THE MOTION
13The Motion brought primarily relies on the provisions of s.19(1) of OLTA, as set out below:
- (1) Dismissal without a hearing. – Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,
(a) if the party who brought the proceeding has not paid any fee required to be paid under this Act;
(b) if the party who brought the proceeding has not responded to a request by the tribunal for further information within the time specified by the Tribunal; …
(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;
(d) in any circumstance listed in subsection 4.61 of the Statutory Powers Procedures Act; or
(e ) in any circumstance provided for under any other Act. …
(2) Notice. – The Tribunal shall give the parties notice of its intention to dismiss the proceeding, setting out the reasons for the dismissal and informing the parties of their right to make written submissions to the Tribunal with respect to the dismissal within the time specified in the notice.
(3) Submissions. - A party who receives a notice under subsection (2) may make written submissions to the Tribunal with respect to the dismissal within the time specified in the notice.
(4) Dismissal. - The Tribunal shall not dismiss a proceeding under subsection (1) until it has given notice under subsection (2) and considered any submissions made under subsection (3). [emphasis added]
14Additionally, Northland relies on sections 8, 9, 12 and 13 of OLTA, as well as Rules 1.3, 1.6, 3.2, 7, 10 and 23 of the Ontario Land Tribunal’s Rules of Practice and Procedure (made under subsection 13(1) of OLTA) (“Rules”) in its request to the Tribunal to dispense with the Appeal. In summary, these provisions allow for the Tribunal to exercise its discretion, to adopt any practices and procedures provided for in the Rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings, and to ensure that the real questions in issue are determined in a fair, just, expeditious and cost-effective manner.
HEARING OF THE MOTION
15At the start of the Hearing, Counsel for the City appeared to advise the Tribunal that the City did not file materials in respect of the Motion, however, it is the City’s position that the Motion has merit and the Appeal should be dismissed.
16In the Hearing, the Tribunal heard submissions in support of the Motion from Counsel for the Applicant and submissions in response to the Motion from the self-represented Appellant.
17The documentary evidence filed in respect of the Motion include:
a. The sworn Affidavit of Matt Kernahan, a Registered Professional Planner found in Exhibit 1, Tab 2, and the Exhibits attached thereto;
b. The various Exhibits attached to the Notice of Response to Motion filed by Ron Rienas marked as Exhibit 2.
c. The Municipal submission record filed with the Ontario Land Tribunal.
18No objections were raised in the Hearing with respect to the filing of Mr. Kernahan’s sworn Affidavit as an Exhibit or with respect to his qualifications. After reviewing his education, professional work experience and professional credentials set out in his CV found in Exhibit 1, Tab 2, at Page 24, the Tribunal finds that Mr. Kernahan is duly qualified to provide expert opinion evidence in the area of land use planning in this matter. The Tribunal also finds that Mr. Kernahan has duly completed his Acknowledgement of Expert’s Duty to the Tribunal.
19As set out in Exhibit 2, the Appellant, Mr. Rienas, has a degree in Urban and Regional Planning, and previously worked in the field of planning at the Ministry of Municipal Affairs, a planning consulting firm, and the Town of Fort Erie. His past professional work experience includes holding the position of Planning Director for the Town of Fort Erie. Currently, Mr. Rienas holds the position of Chief Executive Officer of the Buffalo & Fort Public Bridge Authority (Peace Bridge). The Tribunal notes that the Appellant has considerable credentials, and based on his Response to the Motion and his oral submissions in the Hearing, it is clear to the Tribunal that he has a good understanding of the land use planning system for the Province of Ontario.
20However, in this Hearing, the Tribunal distinguishes his opinions/submissions to be that of the Appellant, as opposed to that of a land use planner qualified to provide expert opinion evidence on the matter before the Tribunal. The Appellant did not seek to be qualified and the Tribunal did not so qualify him. As such, all submissions received from the Appellant are treated as ‘lay submissions’ as a self-represented Party.
21The Tribunal also notes that the Appellant did not call upon, or file affidavit evidence of, an expert in land use planning (or any other professional, including civil engineering) in support of his response to the Motion.
Northland’s Submissions
22Northland submits that the Appeal does not set out any concerns specific to the proposed land uses or zoning provisions (i.e. performance standards) in the ZBA.
23Northland submits that in review of the application, and prior to the City’s decision, the City and Region advised the Applicant that the sewershed within which the proposed development is located experiences significant inflow/infiltration (“I/I”) and there is limited capacity, and further that the plan of subdivision could not proceed until it has been confirmed that capacity for the development is available.
24Northland submits that the Region is the approval authority with jurisdiction over the wastewater servicing system, capacity, and allocation, and that the Region did not object to the approval of the Applications provided that recommended conditions were included in any approval granted. Such conditions were incorporated into the Council approved Conditions of Draft Plan Approval for the Draft Plan of Subdivision (“DPA Conditions”). The pertinent DPA Conditions are # 84 to 88, inclusive.
25It is Northland’s position that the DPA Conditions are all encompassing, appropriate in scope, and allow the Region, as having jurisdiction in respect of wastewater servicing, to make the determination as to what extent of servicing is to be looked at, and what, if any, upgrades, improvement or works will be required for the proposed development to proceed. Northland submits that the DPA Conditions address the matter of adequacy of servicing, albeit limited capacity, and are worded such that they can be broadly interpreted to include the entire sanitary sewerage system (which could include the OMERS SPS).
26Northland further submits that a modification to the ZBA is not necessary to address the concern(s) raised by the Appellant, and to impose a Holding (“H”) provision on the ZBA would result in an unnecessary duplicative approval process, adding burden, time and costs on the development, and resulting in unnecessary risk and uncertainty.
27Northland submits that to allow the appeal to proceed to a hearing on its merits (“Merit Hearing”) would not be fair, just, expeditious and cost-effective, in that it is alleged by Northland that there is no reasonable prospect of success of the Appeal, in that the specific matter of concern (adequacy of wastewater servicing), as raised by the Appellant in his Appeal, was known and addressed by way of the City’s approvals of the Applicant’s applications, being both the subject amendment to the Zoning By-law and an accompanying DPA (which is not under appeal), and more particularly by way of the approved DPA Conditions and the requirement for the DPA Conditions to be fulfilled to the satisfaction of the Regional Municipality of Niagara (“Region”) in advance of the development proceeding.
28Northland also submits that the Appellant has not identified any expert witnesses proposed to be called to assist the Tribunal in the determination of this matter in the event that the Appeal proceeds to a Merit Hearing.
The Appellant’s Submissions
29In the Appellant’s Response to the Motion, at Exhibit 2, Page 3, it is set out that:
“My Appeal of Zoning By-law Amendment 7141/83/23 is limited to the issue of inadequate wastewater infrastructure which currently results in sanitary overflows into the natural environment and neighbourhood basements. Approval of Zoning By-law 7141/83/23 without requiring the necessary infrastructure improvements, specifically the Omer Avenue sanitary pumping station, will exacerbate an already intolerable situation.” [emphasis added]
30As set out in Exhibit 2, the Appellant takes the position that the statutory tests for dismissal without a hearing pursuant to s. 34(25) of the Planning Act have not been met. It reads:
(i) “A fundamental land use planning tenent is that infrastructure must be adequate for existing and future development. My appeal states that the existing wastewater infrastructure is inadequate resulting in untreated sewage discharges into the natural environment and unhealthy, costly sewage overflows into neighborhood basements on a regular basis. The zoning bylaw amendment approved by council will permit a development that exacerbates that situation. The council did not apply a holding zone under the official plan which would have put the zoning in place for the development and given assurances that the wastewater deficiencies would be addressed prior to physical development.
(ii) My appeal is made in good faith. It is not frivolous or vexatious. It seeks to ensure that a new development has proper infrastructure and to ensure our homes and the environment are protected.
(iii) The appeal is not made for purposes of delay. If the development had been properly reviewed and the appropriate safeguards put in place there would have been no need for an appeal.
(iv) I have not previously commenced any proceedings before the tribunal and this appeal is not an abuse of process.
31Additionally, as set out in Exhibit 2, the Appellant takes the position that the statutory tests for dismissal pursuant to s.19(1) of OLTA have not been met. In this respect he sets out that he has paid the fee required to be paid to the Tribunal, there have been no requests by the Tribunal for additional information, and he details the reasons why, in his opinion, his Appeal is likely to be successful at a Hearing, as set out below.
32The Appellant’s position is that sufficient and proper regard for the adequacy of wastewater servicing and the determination as to what, if any, upgrades, improvements or works are necessary to support the proposed development, so as to ensure there are no adverse impacts to other properties, was not given by the City in making its decision on the ZBA, and that a Holding “H” zone provision should be imposed to ensure that wastewater servicing matters are addressed.
33The Appellant submits that Council did not consider the cumulative effect of wastewater emanating from the proposed development on the existing inadequate downstream infrastructure, specifically sanitary pumping stations that currently overflow into the natural environment and neighbourhood basements, in violation of s. 2 (a), (f), and (o) of the Planning Act, and Section 8.1.1 (c) of the Port Colborne Official Plan (“COP”). (Exhibit 2, Page 2).
34He submits that Council did not have proper regard to s.2 (a), (f), and (o) of the Planning Act, which are as follows:
(a) the protection of ecological systems, including natural areas, features and functions;
(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems; and
(o) the protection of public health and safety. [emphasis added]
and s.51 of the Planning Act which requires Council, in approving a plan of subdivision, to have regard for:
(i) the adequacy of utilities and municipal services. [emphasis added]
35The Appellant submits that the wastewater system is inadequate, and alleges that the system regularly overflows into the natural environment and house basements creating an unhealthy situation for the public and homeowners.
36The Appellant pointed the Tribunal to the Region’s written comments on the Applications dated April 24, 2023, found in Exhibit 1, Tab 4, which indicate that the proposed development is within the Steeles Street SPS sewershed; that this sewershed experiences significant I/I; that the capacity of the station may not be able to accommodate the entire proposed development at this time; and that a condition of draft plan approval be implemented to ensure capacity at the station is available through I/I reduction and/or station upgrade prior to registration of the subdivision. He submits that the Steeles Street SPS is tributary to the OMER SPS and questions why the OMER SPS is not specifically included in the references in the Region’s correspondence.
37The Appellant submits that the Region and City Staff did not properly consider that, as he alleges, the SPS operate in series and that the flows from Steeles SPS are connected to the OMER SPS. He also notes that the Northland Application materials and associated City and Region comments make reference to the Steeles SPS only. He submits that Council did not have complete information before it when making its decision.
38The Appellant also points to City Official Plan policy 8.1.1 (c) that reads: “the extension of municipal infrastructure services within the limits of the Urban Area Boundary shall be considered in terms of the adequacy of infrastructure services for existing and potential development located within the current limit of municipal servicing”. He submits that Council did not consider that the existing infrastructure is inadequate for existing and potential development as it relates to SPS, specifically the OMER SPS.
39It is the Appellant’s position that Council could have, and should have, applied a Holding zone (“H”) provision under Section 11.1.2 a) i) of the COP, which would, in his submission, allow the land uses proposed by the development but also recognize that “the wastewater servicing deficiencies be addressed before the physical development of the subdivision occurs.” (Exhibit 2, Page 6)
40In his conclusion, set out in Exhibit 2, Page 11, the Appellant sets out his position on the Motion, summarized as follows: The specific matters of concern raised in the Appeal are not addressed in the approvals to the applications, and accordingly the real questions at issue need to be determined by a hearing in a fair, just, expeditious and cost effective manner as encouraged and directed by OLTA and the Rules. While the draft plan of subdivision is not under appeal, the DPA Conditions and the review and approval process was deficient and flawed. This process informed the decision making for the ZBA which is under appeal. The ZBA needs to be amended to include a holding designation that will not be removed until there is a functional servicing review completed for the OMER SPS and sewershed that identifies the current and expected dry and wet weather sanitary flows to demonstrate if capacity of the OMER SPS and sewershed can accommodate the anticipated flows.
41In the Hearing on the Motion, he also admitted to the Tribunal that he expected the DPA Conditions to address his concerns, and he asserts that the conditions are not appropriately worded to do so. His view on Conditions 87 and 88 are discussed in Exhibit 2, in which he sets out that the Region’s conditions only identify the Steele SPS and not the OMER SPS “seemingly not recognizing that improving the Steele SPS exacerbates the capacity problems at the OMER SPS”.
42In the Motion Hearing, the Appellant advised the Tribunal that he does not want to oppose the proposed development, but that it needs to be properly regulated and controlled and that he has no confidence in the process that led to DPA Conditions. He is asking for some assurance that his concerns will be addressed. He is not opposing the zoning, but could make the case.
43He also indicated his understanding that the DPA Conditions are not before the Tribunal and that the only remedy to him is the Appeal of the ZBA to seek the imposition of the Holding (“H”) zone provision (effectively in lieu of a modification to the wording of the DPA Conditions so as to ensure that the Regional wastewater system, to be looked at in advance of the proposed development proceeding, includes the OMER SPS).
44Further, in his oral submissions, the Appellant advised the Tribunal that he is looking for an expeditious resolution to the matter before the Tribunal and inquired whether the DPA Conditions could be amended (presumably to clarify whether the OMER SPS will be looked at, and that any upgrades, improvements or works to mitigate any potential impact(s) will be required to be implemented in advance of development proceeding). The Appellant advised the Tribunal that if not, then he wanted to proceed and he would get an expert to look at servicing for the purposes of a Merit Hearing.
Planner’s Evidence
45In Mr. Kernahan’s sworn Affidavit, found at Exhibit 1, Tab 2, he proffers the following:
(a) That the Northland applications were supported by several technical studies, including a Functional Servicing Report, and which was peer reviewed by a Consultant of the City’s choosing;
(b) That through the consultation process with the City and Region, the Applicant was advised that the proposed development is within a sewershed which experiences significant inflow/infiltration (“I/I”) and that there is limited capacity;
(c) That the Applicant was advised that registration of the plan of subdivision would not be permitted to proceed until the Region confirms that adequate capacity for the proposed development is available, and further that there is no guarantee that the entire development will be granted capacity and permitted to proceed to plan registration;
(d) That the Region has jurisdiction with respect to wastewater servicing, including SPSs, had no objection to the applications based on servicing capacity provided the City impose specific DPA conditions to address the issue of adequacy of servicing and timing for development proceeding;
(e) That Council was aware of the limitations on wastewater servicing capacity and that there were measures being undertaken to address those constraints in advance of Council making its decision to approve the ZBA and Draft Plan of Subdivision;
(f) That Council’s approval of the Northland Applications included provisions, by way of DPA Conditions, which would not permit allocation until certain items had been appropriately addressed;
(g) That the City included the Region’s conditions in the approved DPA Conditions;
(h) That servicing matters involving capacity and timing for development proceeding are commonly controlled through conditions of draft plan approval and need not be included in the zoning by-law;
(i) That the Appellant does not indicate any concerns with the actual land uses and/or zoning provisions in the ZBA; and,
(j) That the items of concern that are the true subject matter of the Appeal have been dealt with in the DPA Conditions which operate so as to ensure that the registration of the subdivision, and therefore the development, does not proceed in advance of the solution to these issues.
46Additionally, as set out in Exhibit 1, Tab 2, para 14, in response to the Appellant’s specific comments/concerns that were made to Council, in relation to the OMER and Steeles Street SPS, the City Staff Recommendation Report, dated September 2023, included a chart that identified the issue had been reviewed by the Region, City, and the City’s Peer Review Consultant (RVA), and reads as follows:
“This matter has been reviewed at length by the City, Region, RVA and UCC through this draft plan process. These issues have been identified. The Region, being the authority with jurisdiction over pumping stations, has provided the following draft plan condition “Draft approval of this subdivision does not include a commitment of servicing allocation by Niagara Region as servicing allocation will not be assigned until the plan is registered and that any pre-servicing will be at the sole risk and responsibility of the owner.”
“The draft approval process is in place and designed in a way to ensure matters like the above are addressed prior to the development moving forward. If approval is given, it will provide the Developer with a number of conditions that will be required to be cleared before the development can move forward however it will also provide a level of assurance that the city is supportive of the development. The detailed engineering design of a proposed subdivision is a significant financial undertaking. It is unrealistic to complete this work without a level of assurance that the City is in favor of the development.” [emphasis added]
47The DPA Conditions are found in Exhibit 1, Tab 2, Page 148, and those pertinent to the issues are as follows:
#20 – Prior to any site alteration, or final approval, the Developer shall submit all supporting materials, prepared by a qualified professional, as required by the City or any applicable authority, and shall agree to implement the recommendations of the reports, studies and plans to the satisfaction of the Director of Public Works, Chief Planner, and any other applicable authority.
#84 – That the owner provides a written acknowledgement to Niagara Region Planning and Development Services Department stating that draft approval of this subdivision does not include a commitment of servicing allocation by Niagara Region as servicing allocation will not be assigned until the plan is registered and that any pre-servicing will be at the sole risk and responsibility of the owner.
#85 – That the owner provides a written undertaking to Niagara Region Planning and Development Services Department stating that all Offers and Agreements of Purchase and Sale or Lease, which may be negotiated prior to registration of this subdivision, shall contain a clause indicating that servicing allocation for the subdivision will not be assigned until the plan is registered, and a similar clause be inserted in the subdivision agreement between the owner and the City.
#86 – That prior to final approval for registration of this plan of subdivision, the owner shall submit the design drawings (with calculations) for any new municipal sanitary and storm sewers, and stormwater management facilities required to service this development. The capacity of the Regional System is to be confirmed and copies of the approved CLI ECA forms and final drawings must be forwarded to Niagara Region.
#87 – That prior to approval of the final plan, the owner shall submit a detailed sanitary sewer designed information (flows, timing, revised flow) for the subdivision and prior to final approval the anticipated design flows will be submitted along with flow monitoring information to evaluate if capacity is available at the Steeles Street SPS. The report is to be sealed by a qualified professional engineer.
#88 – That the owner submit a written undertaking to Niagara Region Planning and Development Services department that acknowledges the sewershed of the Steeles Street SPS has a servicing capacity that may not be able to accommodate the full development. [emphasis added]
48Further, as set out in Mr. Kernahan’s Planning Justification Report dated July 2022 found in Exhibit 1, Tab 2, Page 31, he has considered matters of Provincial interest set out in s.2 of the Planning Act, the Provincial Policy Statement, 2020 (“PPS”), the Growth Plan, Region of Niagara Official Plan and the COP, in arriving at his expert opinion that Northland’s applications meet the statutory tests as set out in the Planning Act and represent good planning.
ANALYSIS AND FINDINGS
Test Under s.19(1) (c) of [OLTA](https://www.canlii.org/en/on/laws/stat/so-2021-c-4-sch-6/latest/so-2021-c-4-sch-6.html)
49The Tribunal is empowered, by virtue of s. 19(1) (c) of OLTA, to dismiss an appeal without a hearing, upon consideration of the Motion before it, if the Tribunal is of the opinion that the Appeal has no reasonable prospect of success.
50The Tribunal recognizes that the interpretation and scope of s.19(1)(c) OLTA, which allows on a Motion, or on its own initiative, for the Tribunal to dismiss an appeal without a Hearing, has not yet been subject to well settled jurisprudence by the Tribunal or the Courts, compared for instance to a motion for dismissal brought under s. 34(25) of the Planning Act. No submissions were made by either Party as to jurisprudence for the Tribunal to consider in respect of the Motion. Nevertheless, the Tribunal finds it reasonable and appropriate to apply the principles of statutory interpretation, and consider the plain meaning of the words, in reading of the text of s.19(1)(c) OLTA, which allows for the Tribunal to arrive at its own opinion, based on the evidence and submissions in relation to the Motion, as to whether or not the Appeal has a reasonable prospect of success.
51In considering this Motion, based on best practices of the Tribunal established over time, the Tribunal applies the following principles in respect of the Motion:
i) The onus is on the Party that brings the Motion, in this case Northland, to persuade the Tribunal that there is no reasonable prospect that the Appeal will be successful;
ii) In its response to the Motion, it is necessary for the Appellant to demonstrate that there are authentic planning reasons that underlie the Appeal, and to show an indication of evidence to be brought before the Tribunal that could sustain the Appeal at a Merit Hearing; and
52The Tribunal, in giving due regard to the Motion before it, is cognizant that rights of appeal should not be taken away “whimsically, readily and without serious consideration of the circumstances of each case”1, while at the same time adjudicating in a manner that is fair, just, expeditious and cost effective. OLTA and the Rules give the Tribunal discretion in dealing with proceedings before it, and the Tribunal exercises same in this case to ensure a fair, just and expeditious resolution in the matter before the Tribunal.
53The matter before the Tribunal in this case is not the consideration of a request to dismiss an appeal pursuant to s.34(25) of the Planning Act, but rather it is a consideration of a request to dispense with the case before it which requires determining whether or not the legislative test(s) and threshold are met pursuant to s.19(1)(c) of OLTA for dismissal without a hearing.
54The Tribunal is of the view that the reasons for and grounds of the Appeal must be part of the consideration, as well as the depth and breadth of evidence that could be presented should there be a Merit Hearing, in order for the Tribunal to arrive at a determination on the Motion.
55In this case, the Motion Hearing delved into the issues and considerable evidence was provided in that regard, but did not extend to include the full depth and breadth of evidence that could be called in the context of a Merit Hearing. The Tribunal finds in this case that the documentary evidence is comprehensive and of assistance in determining whether the Appeal has no reasonable prospect of success should it proceed to a Merit Hearing.
56Although, in this case, the Motion brought does not rely on the statutory provisions of s.34(25) of the Planning Act, which allows for the Tribunal to dismiss an appeal on any number of grounds as set out therein, as set out below:
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.
in considering the Motion before it, the Tribunal is of the opinion that it is necessary to first consider, at a minimum, whether the reasons for the Appeal are based on an apparent land use planning ground as set out in s.34(25) i) above.
57Northland did not make any submissions on this Motion that the Appeal does not meet this threshold. On the other hand, the Appellant did make submissions in this regard, as found in Exhibit 2 and set out above in this Decision under the heading The Appellant’s Submissions, and the Tribunal finds that the grounds of the Appeal are sufficient to meet this threshold.
58For the sake of completeness, based on the written Motion materials and oral submissions in the Hearing, the Tribunal also finds the Appellant to be sincere in his reasons, and that the Appeal has been filed in good faith and not for purpose of delay. The Tribunal takes the Appellant at his word that he has not commenced proceedings in the past that could lead one to question a possible abuse of process.
59As previously noted, Northland has asked the Tribunal to look beyond s.19 of OLTA in its consideration and look also at s. 8, 9, 12 and 13 of OLTA, and 1.3, 1.6, 3.2, 7, 10 and 23 of the Rules.
60The Appellant expressed to the Tribunal that he was seeking a resolution on the matters before the Tribunal. He advised that he is not opposed to growth, nor of the sort proposed, but rather his objection is to the proposed development being permitted to proceed in advance of there being adequate capacity within the wastewater system, and in this case, he contends that would necessitate upgrades/improvements to the OMER SPS.
61The Tribunal is also persuaded by submissions of both Parties that there ought to be a means in which the questions regarding wastewater servicing can be addressed, and the Appeal potentially be resolved, without necessitating a costly hearing.
62To be clear, it is the Appeal of the ZBA that is before the Tribunal, not the DPA in this case. The Parties agree that the Tribunal does not have jurisdiction in this case to direct revisions to the DPA Conditions as these are not a matter before it.
63With this in mind, the Tribunal has considered how the real questions at issue can be determined in a fair, just, expeditious and cost-effective manner.
The Real Issues
64In summary, the Tribunal finds that the Appellant has filed the Appeal for reasons related to whether or not the issue of adequacy of wastewater servicing was appropriately considered by the City, and whether the City should have imposed a Holding (“H”) zone provision in the ZBA to ensure that servicing matters are addressed to the City’s satisfaction. The Tribunal agrees that these are appropriate questions to be considered in making decisions involving the granting of approvals to facilitate the proposed development.
65Furthermore, the Tribunal finds that to arrive at an opinion as to whether the Appeal has no reasonable prospect of success, it must also consider whether the Appellant has shown an indication of evidence it may put forward to sustain the Appeal, and more particularly on the following real questions in issue:
Has adequacy of wastewater servicing to support the proposed development been considered by the City in approving the ZBA?;
Did the City in approving the ZBA have regard to matters of Provincial interest set out in s.2 (a), (f), and (o) of the Planning Act?;
Does the ZBA fail to conform with the City OP, including policy 8.1.1 (c)?; and,
Should the ZBA have a Holding (“H”) zone provision to ensure that appropriate study or assessment related to wastewater servicing is undertaken to determine what, if any, upgrades, improvements, or works are necessary as a result of the proposed development, and the timing for implementation thereof?
66Given the evidence in the Motion Hearing, and the submissions of the Appellant, the Tribunal has considered each of these Issues in the present Hearing.
Issue 1: Has adequacy of wastewater servicing to support the proposed development been considered by the City in approving the ZBA?
67Based on the documentary evidence in this Hearing, it is clear that Council was aware of the Appellant’s concerns regarding adequacy of the wastewater servicing system, including the assertion of the connection with the OMER SPS, and the proposed development proceeding without addressing any potential deficiencies in the system.
68There is no dispute that the Region has jurisdiction of the wastewater servicing system, including the SPS, and the Tribunal accepts that the Region is the authority in determining if there is capacity in its system to accommodate the proposed development. The Region’s jurisdiction covers all aspects of the system, including capacity, allocation, and the determination as to what upgrades, improvements and works are necessary, and in determining the timing for when such are required to be implemented.
69The evidence before the Tribunal that Council considered the adequacy of wastewater servicing is also clear.
70While on the surface, the Tribunal agrees with the Appellant that the Functional Servicing Report (“FSR”) submitted in support of the applications is limited in its discussion to that of the adequacy of sewer pipe capacity, and appears to be silent as to whether or not there is capacity within the SPS, the FSR is not the latest documentary evidence with respect to the servicing. As set out in the Affidavit of Mr. Kernahan, which was not challenged, nor refuted, there is evidence that there was discussion between the Region of Niagara, City, the City’s Peer Review Engineer (RVA), and Northland’s Engineer (UCC) in respect of the existing condition of the wastewater servicing system and the potential effects of connecting the proposed development to the system. This included an acknowledgement that the proposed development is within a sewershed that experiences significant I/I and that there is limited capacity.
71It is generally accepted that Municipalities represent the public interest. The Region was not in attendance at the Hearing, and the Tribunal was not provided with an Affidavit of an Engineer for the Region elaborating on the constraints in the overall system, and whether or not capacity of the OMER SPS is also a factor as it pertains to the proposed development of the Subject Property. However, the Tribunal recognizes that the Region has jurisdiction and authority over its wastewater servicing system, and there is no evidence to suggest that the Region has not and will not faithfully exercise its duties in a reasonable and responsible fashion in the public interest.
72The Region did not object to the ZBA or DPA. The Region set out the implications of the wastewater servicing system for the proposed development in its comments on the applications, and requested that in the event the City approved the applications, the City include certain conditions (namely #84-88, all inclusive) in the DPA Conditions.
73The City Staff Recommendation Report provided a summary of the servicing matters, the Region’s comments and requested conditions, and a response to the comments made by the Appellant in respect of the applications. This information regarding the adequacy of wastewater servicing was known by City Staff and conveyed to Council in advance of Council making its decision.
74The Tribunal notes that the Region’s conditions provide no guarantee that servicing allocation will be given to the proposed development in its entirety. This seems to the Tribunal to be a clear signal that the Region is fully aware of its wastewater servicing system and its capacities, and further that appropriate scrutiny has been and will continue to be given as the proposed development proceeds.
Issue 2: Did the City, in approving the ZBA, have regard to matters of Provincial interest set out in [s.2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) (a), (f), and (o) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)?
75As for the second question in issue, the documentary evidence in the Motion Hearing, more specifically the City Staff Recommendation Report indicates that City Staff considered the matters of Provincial Interest under s. 2 of the Planning Act, the Provincial Policy Statement, 2020 (“PPS”), Growth Plan, Region of Niagara Official Plan (“ROP”), and COP in reviewing the applications, and in forming their opinion in support of the applications that resulted in the recommendation of approval.
76Additionally, the Affidavit evidence of Northland’s Planner, Mr. Kernahan, is clear that he has also considered s. 2 (a), (f), and (o) of Planning Act, PPS, Growth Plan, ROP and COP, and in his opinion the proposed development represents good planning and is in the public interest.
77In the Motion Hearing, the Appellant noted his intention to retain an Engineer in the event that the Appeal proceeds. He has left the Tribunal with an understanding that he would not call an expert in land use planning to provide an opinion that may be different than that proffered by Mr. Kernahan or a City Planner. By virtue of being the Appellant, he would not be able to provide “expert opinion evidence” in this regard. As a result, it would make it quite difficult to successfully demonstrate a position to the contrary.
Issue 3: Does the ZBA fail to conform with the COP, including policy 8.1.1 (c)?
78COP policy 8.1.1 (c) reads:
“The extension of municipal infrastructure services within the limits of the Urban Area Boundary shall be considered in terms of the adequacy of infrastructure services for existing and potential development located within the current limit of municipal servicing”.
79The Region’s comments of April 24, 2023 (Exhibit 1, Tab 4, Page 116) set out that servicing works will be undertaken and will require the construction of new water, sanitary and stormwater management infrastructure to service the proposed development, and that the necessary Environmental Compliance Approval (ECA) Certificates for the new infrastructure will be required to be obtained, and prior to this approval capacity in the Region’s infrastructure is to be confirmed.
80Mr. Kernahan’s Planning Justification Report found at Exhibit 1, Tab 3 includes an examination of the planning policy context (PPS, Growth Plan, ROP, and COP) related to the extension of water and wastewater services to the proposed development. Therein, he provides analysis and his opinion that the ZBA conforms with the policies of the COP.
81The City Staff Recommendation Report dated September 2023 (Exhibit 1, Tab 7) sets out the City Planner’s opinion that the ZBA conforms with the policies of COP, and those opinions were available prior to Council passing the ZBA.
82Given the Appellant’s submissions in the Motion Hearing that he takes no issue with the proposed land uses and regulations set out in the ZBA, coupled with the fact that he does not intend to call his own land use planner, the Tribunal is left with the view that it would be very difficult to successfully demonstrate a position to the contrary.
Issue 4: Should the ZBA have a Holding (“H”) zone provision to ensure that appropriate study or assessment related to wastewater servicing is undertaken to determine what, if any, upgrades, improvements, or works are necessary as a result of the proposed development, and the timing for implementation thereof?
83The Appellant admitted that he is not opposed to the proposed land use(s) on the Applicant’s lands, but that wastewater servicing issue(s) ought to be addressed in advance of physical development on the lands proceeding. As previously noted, the Appellant submits that he has no right of appeal of the DPA and the DPA Conditions, and therefore it is only by way of the imposition of a Holding (“H”) provision to the ZBA that he can seek the Tribunal’s approval to require appropriate study of the wastewater servicing system and the implementation of upgrades or improvements as may be determined to be necessary.
84The Region has jurisdiction for wastewater servicing, and the conditions requested by the Region pertaining to wastewater servicing matters are included in the approved DPA Conditions, and the Region will be the authority in clearing their Conditions. This is no dispute on this in this Hearing. However, the Tribunal has jurisdiction to arrive at a decision as to whether any further study or assessment of the wastewater system, that may or may not identify that any improvements to and/or upgrades are required, be undertaken in respect of a proposed development.
85While the Tribunal agrees that the imposition of a Holding “H” provision on a ZBA could be the catalyst for further technical study to confirm any servicing capacity constraints and what upgrades and/or improvements may be necessary in advance of the Holding “H” zone provision being lifted, the Tribunal also agrees that DPA Conditions can achieve the same thing depending on the manner in which the conditions are worded and ultimately interpreted by the Region and/or City (as the case may be).
86The Tribunal has reviewed the documentary evidence before it in this Hearing, which includes the approved DPA conditions. The Tribunal finds that there are several conditions, notably Condition # 20, and # 84-88, all inclusive that address wastewater servicing in relation to the proposed development. The Tribunal is of the opinion that the DPA Conditions are sufficient and satisfactory to address the Appellant’s concerns as discussed below.
87Firstly, Condition #20 allows for the City or any applicable authority, which would include the Region, to require the owner to submit all supporting materials, prepared by a qualified professional, to the City or any applicable authority’s satisfaction. The Region would be considered an “applicable authority”. The wording “all supporting materials” is broad language and the Tribunal is of the opinion that this could be interpreted to require an engineering study or assessment, report and/or design (plans). This condition also requires the Owner to implement the recommendations of any such report, study or plans.
88The submissions on behalf of Northland that the “wording” of Conditions #84 and #86 are all encompassing seem reasonable and there is no evidence in the Motion Hearing contrary to this.
89The Tribunal is of the view that is reasonable to assume that the Conditions of Draft Plan Approval will be interpreted by the Region in such a way as to be broad enough to address all issues or concerns with respect to wastewater servicing matters, including those expressed by the Appellant. The Tribunal is also of the view that both the City and the Region will carry out their mandate(s) responsibly in the public’s interest.
90Based on the evidence and submissions in this Hearing, on the issue of the Appeal regarding whether or not the imposition of a Holding (“H”) zone provision to ensure adequacy of wastewater servicing and protection of public health and safety is worthy of further adjudication, the Tribunal finds there is ample evidence in this Motion Hearing to conclude that these matters can and will be addressed through satisfaction of the DPA Conditions, and that the Region ultimately will have to be satisfied that the conditions have been fulfilled in this regard.
91The Tribunal expects, and has no reason to doubt, that the Region will take into consideration the system “overall” (comprised of its various components) in making such a determination as to whether or not there is capacity, and if and when the proposed development or part thereof may proceed.
92The Tribunal accepts Mr. Kernahan’s expert opinion and agrees that a Holding (“H”) zone provision is not necessary in this case. The Appellant acknowledged as much when he submitted that he was looking for a resolution and that the DPA conditions, if amended and worded sufficiently could accomplish this.
93The Tribunal also finds that a Holding (“H”) zone provision would result in a duplicative process – one that would come with additional time, additional burden on limited staff resources of the City and Region, costs to Northland, and potentially uncertainty given a future decision of Council would be required.
Summary of Tribunal’s Findings
94As previously noted in this Decision, the burden is on the Party that brings the Motion to convince the Tribunal that this appeal has no reasonable prospect of success. Having considered the expert opinion evidence of Mr. Kernahan, and the submissions of both the Appellant and Northland in this hearing, and for the reasons set out above, the Tribunal is persuaded that the appeal of the ZBA, and more particularly the request that a Holding (“H”) zone provision be imposed requiring further study of the wastewater servicing system and potential impacts of the proposed development in that regard, has no reasonable prospect of success given that there are approved conditions of DPA that address those same issues raised by the Appellant.
95As also previously noted, there is a necessity for the Appellant to show the Appeal is based on authentic land use planning reasons and to show an indication of evidence to sustain its Appeal. Unfortunately for the Appellant, in this case, upon consideration of this, the Tribunal is of the opinion that the evidence in this hearing provides a basis for the Tribunal to arrive at a finding that it is unlikely that evidence can be brought, by way of an expert in Engineering as intended by the Appellant, or by way of cross-examination of planning witnesses for Northland and potentially the City’s Witnesses that may be called upon, to discount the sufficiency of the existing DPA Conditions to address the reason and grounds of the Appeal.
96Of greatest weight in the Tribunal forming its opinion that the Appeal has no reasonable prospect of success and that the Appeal should be dismissed, is the Appellant’s own admission that he was not opposed to the proposed development, that he took no issues with the permitted uses or regulatory standards in the ZBA, but that he expected conditions of DPA that addressed his basement flooding concerns and a ZBA that recognized the servicing constraints. Perhaps most importantly is, that in his oral submissions to the Tribunal, he suggested that if revision(s) could be made to the Conditions of DPA that would satisfy his concern, there would be no need to proceed with a Merit Hearing. By virtue of his ask, he was conceding on the merit of his own case, that a Holding (“H”) zone provision on the ZBA was not required and that the Conditions of DPA could be sufficient to address his issues.
97As an aside, the Tribunal has considered what could happen if this matter were to proceed to a Merit Hearing. In such an event, if the Appellant were successful in confirming that the flows do connect into the OMER SPS, and that there may be an adverse impact, it still remains that, as made clear through this proceeding, the Region has jurisdiction with respect to the wastewater servicing system, and the allocation of capacity, and the existing conditions of DPA would prevail. Any evidence to that effect provided in such a hearing would negate the need for the study or assessment and the determination as to what upgrades, improvement or works would be required. In essence, the hearing would produce and determine that which the Holding (“H”) zone provision is intended to produce and determine. As such, there would be no need then to seek the Holding (“H”) zone provision.
98As noted above, there is every reason to believe that the Region, and City for that matter, will continue to safeguard the interests of the public in terms of public health and safety.
OTHER MATTERS
99Finally, the Tribunal notes that in addition to the core relief sought by the Applicant, the Notice of Motion requests the Appellant be ordered to pay the costs of the Motion. The Tribunal will make no such order at this time.
100While the Applicant is entitled to submit a detailed written request for costs in accordance with Rule 23 of the Tribunal’s Rules of Practice and Procedure, all of the following ought to be borne in mind: costs are not automatically awarded to a successful party in Tribunal proceedings but rather, only awarded in rare circumstances. There is a relatively high threshold to be met and Rule 23.9 sets out a non-exhaustive list of improper conduct which might attract such relief, but also makes it clear that the Tribunal is not bound to order costs even in circumstances where it finds such conduct has occurred.
CONCLUSIONS
101Upon consideration of the evidence and submissions in the Motion Hearing, the Tribunal finds that the Appellant has demonstrated that authentic planning reasons underlie the Appeal, however the Appellant has failed to show an indication of evidence that could sustain the Appeal in a hearing on its merits.
102Based on the evidence and submissions made in the Motion hearing, the Tribunal finds that Northland has provided evidence that is clear and persuasive that the authentic planning reasons that underlie the Appeal, the wastewater servicing matters have been considered by Council, have been addressed by way of Council’s approval of the DPA, and will be further addressed by way of fulfilment of the DPA Conditions.
103As a result, the Tribunal finds that it would be difficult to persuade a finding of the passing of the ZBA to be premature in accordance with the stated grounds of the Appeal. The Tribunal is of the opinion that the Appeal of the ZBA has no reasonable prospect of success.
104In conclusion, the Tribunal finds that on the Motion to Dismiss the Appeal without a hearing pursuant to s.19(1)(c) of OLTA, the Motion has merit and is hereby granted.
ORDER
105UPON APPEAL to the Tribunal by Ron Rienas of a decision of the City of Port Colborne to pass Zoning By-law No. 7141/83/23;
106AND UPON MOTION to the Tribunal by 2600261 Ontario Inc. (“Northland Estates”) for an Order Dismissing the Appeal without a Hearing under subsection 19 (1)(c) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c4, Sched 6, as amended, and after hearing the Motion;
107THE TRIBUNAL ORDERS that the Motion by Northland is hereby granted and the Appeal by Ron Rienas under subsection 34(19) of the Planning Act is hereby dismissed.
“S. L. Dionne”
S. L. DIONNE 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.