Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 03, 2024 CASE NO(S).: OLT-24-000099
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Beach Road Villas Inc. Subject: Consent Description: To permit the creation of one new lot which comprises a portion of an approved draft plan of subdivision Reference Number: B/41/2023/GR Property Address: Part of Lot 21, Conc 6, former Twp of Muskoka, being Parts 1-3, Plan 35R-11122, Part 2, Plan 35R-14565 and parts 1&2, Plan 35R-21173 Municipality: Gravenhurst OLT Case No.: OLT-24-000099 OLT Lead Case No.: OLT-24-000099 OLT Case Name: Beach Road Villas Inc. v. Gravenhurst (Town)
Heard: May 24, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Beach Road Villas Inc. | Alex Ciccone |
| Town of Gravenhurst | Edward B. Veldboom |
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE AND YASNA FAGHANI ON MAY 24, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing was the first Case Management Conference ("CMC”) before the Tribunal with respect to an appeal under section 53(19) of the Planning Act by Beach Road Villas Inc. (“Applicant”) resulting from the refusal by the Committee of Adjustment of the Town of Gravenhurst (“Town”) to grant a consent application (“Application”) for the lands known as Part of Lot 21, Conc 6, former Twp of Muskoka, being Parts 1-3, Plan 35R-11122, Part 2, Plan 35R-14565 and parts 1&2, Plan 35R-21173 in the Town (“Subject Property”).
2The purpose and effect of the Application is to create one additional lot on the Subject Property, which comprises a portion of the approved Draft Plan of Subdivision S2006-6 (Muskoka Ridge) (“DPOS”). The DPOS was approved with Conditions by the District Municipality of Muskoka (“District”).
3The Parties requested that a CMC be scheduled to address some complications with respect to this Application, including whether the District would seek status in this matter. As such, this subject CMC took place.
4At the CMC, the Parties confirmed that there were no concerns with respect to the Tribunal-issued Notice. As such, no further notice is required.
DPOS AND DISTRICT’S POTENTIAL INVOLVEMENT
5By way of email dated February 9, 2024, the Town’s Counsel advised the Tribunal that in communications with the District, the District had advised that it may take a position in this Appeal. Specifically, the Town’s Counsel advised:
… We wish to advise that the Town will be communicating with the District Municipality of Muskoka as the property which is the subject of this application/appeal is also subject to a Draft Plan of Subdivision with Conditions issued by the District. As we understand that Draft Plan Approval may lapse this calendar year and as such the Town’s position concerning this appeal may [be] impacted. Furthermore, the District may wish to be a party to the proceeding as the District also expressed its opposition to the proposed severance…
6By way of email dated February 23, 2024, the Town’s Counsel advised the Tribunal that the District’s Counsel had confirmed that it wished to participate in this Appeal and at the CMC.
7However, by way of email dated May 23, 2024, the District’s Counsel confirmed that it would not seek Party status, stating:
Upon further review the District Municipality of Muskoka has determined that it does not wish to seek Party Status to this matter, but does note its comments to the Township regarding the application, specifically a requested road widening along the severed and retained lands and to advise that as District Road 19 is a controlled access highway, entrance permits will also be required.
8At the CMC, the Parties explained that the lapsing date for the DPOS had, in fact, passed. There was a disagreement amongst the Parties (as well as the District) regarding this lapsing. The Town and the District took the position that the DPOS had lapsed and was no longer a matter for consideration. The Applicant disagreed. The Applicant’s Counsel advised that the Applicant had appealed the lapsing of the DPOS, and it was, in fact, a matter for consideration.
9At this time, the appeal of the DPOS lapsing has been submitted to the District and has yet to be received by the Tribunal. It is relevant to the subject Appeal for the following reasons:
a. If the DPOS has lapsed, the Town does not object to the severance of the Subject Property, and a resolution of the subject Appeal is likely. Moreover, the District does not take a position on the subject Appeal.
b. If, however, it is found that the DPOS remains valid, the Town intends to object to the severance of the Subject Property, and the District may take a position on the subject Appeal. For further clarity, as explained by the Town’s Counsel, the District’s decision to seek Party Status depends on the finding regarding the lapsing of the DPOS.
10The Town’s Counsel indicated that the District intended to seek imminent input from the Tribunal on whether the Applicant’s DPOS Appeal was a proper appeal. As a result, the uncertainty surrounding the DPOS Appeal may be resolved in short depending on the Tribunal’s direction.
11The Applicant’s Counsel asserted that the DPOS Appeal remained entirely independent of the subject Appeal and the two matters could proceed independently. As such, he requested that a hearing be scheduled for this Appeal. The Town’s Counsel did not object to a hearing being scheduled, with the caveat that once the uncertainty surrounding the DPOS Appeal is resolved, the Town’s and the District’s position on the subject Appeal may be impacted.
12With respect to the issues in dispute in this Appeal, the Parties did not produce a draft Procedural Order (“PO”) or Issues List (“IL”) prior to the CMC. The Town’s Counsel explained that the preparation of the IL was impacted by the DPOS Appeal since the issues to be determined were impacted by whether the DPOS had lapsed.
13After considering the submissions of the Parties, the Tribunal declined to schedule a hearing. The Tribunal found that scheduling a hearing at this stage is premature since the position of the Town and the District at a future hearing depended on the potential DPOS Appeal. Moreover, the District had decided not to participate in this Appeal because of the lapsing of the DPOS. However, if the Applicant’s DPOS Appeal was found to be a proper appeal, then the District’s position may change. All these issues would be germane to the Tribunal’s adjudication of this Application.
14As a result, the Tribunal found that a second CMC should be scheduled instead. If the Parties are able to reach a settlement agreement (“Settlement”) in advance of that CMC, the date can be converted to a Hearing to consider a Settlement (whether by video hearing or in writing). Moreover, if the Parties reach a Settlement earlier than the date of the second CMC, they can seek a date for a hearing in writing to consider the Settlement. The particulars of the second CMC are contained below in this Decision.
15The Tribunal directed that the Parties provide a draft PO and IL to the Tribunal by Friday, August 2, 2024. If the Parties do reach a Settlement, they are to provide all materials in support of it, including a sworn Affidavit, by Friday, August 2, 2024. The Applicant’s Counsel undertook to submit those materials to the Case Coordinator by that date.
MEDIATION AND SETTLEMENT
16The Parties advised that they are in discussions working towards a resolution of this subject Appeal and are attempting to resolve the outstanding issues, including those surrounding the DPOS. The Parties are directed to advise the Tribunal in writing should they reach a Settlement with respect to some or all of the issues prior to the Hearing, and should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.
SECOND CMC
17As indicated above, a second CMC is scheduled wherein the Parties can update the Tribunal on the DPOS Appeal and address procedural matters with respect to this Appeal, or in the alternative, the Parties can present a Settlement to the Tribunal for review and approval if warranted. The second CMC has been scheduled to take place by Video Hearing on Friday, August 9, 2024 at 10 a.m.
18The CMC is scheduled to proceed by video as follows:
GoTo Meeting: https://global.gotomeeting.com/join/638422541
Access Code: 638-422-541
19On that date, the Parties 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.
20Persons 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 (647) 497-9373. The Access Code is as indicated above.
21Parties 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
22Individuals 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 CMC 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
23THE TRIBUNAL ORDERS as follows:
a. A second Case Management Conference is scheduled to proceed by Video Hearing on Friday, August 9, 2024 at 10 a.m.
b. The Procedural Order and Issues List, or materials in support of a Settlement agreement, are to be provided to the Tribunal’s Case Coordinator by Friday, August 2, 2024.
24There will be no further notice.
25The Panel is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“Bita M. Rajaee” BITA M. RAJAEE MEMBER
“Yasna Faghani” YASNA FAGHANI 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.