Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 05, 2024
CASE NO(S).: OLT-24-000026
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Tyrolean Village Resorts 2021 Limited
Subject: Application to amend the Zoning By-law – Failure of Approval Authority to make a decision
Description: To permit the creation of 12 lots with commercial lodges and a future development block
Reference Number: P3084
Property Address: 138 Kandahar Lane
Municipality/UT: The Blue Mountains/County of Grey
OLT Case No.: OLT-24-000026
OLT Case Name: Tyrolean Village Resorts 2021 Limited v. The Blue Mountains (Town)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Tyrolean Village Resorts 2021 Limited
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit the creation of 12 lots with commercial lodges and a future development block
Reference Number: P3085 (Lower-tier); 42T-2021-07 (County)
Property Address: 138 Kandahar Lane
Municipality/UT: The Blue Mountains/County of Grey
OLT Case No.: OLT-24-000027
OLT Lead Case No.: OLT-24-000026
OLT Case Name: Tyrolean Village Resorts 2021 Limited v. The Blue Mountains (Town)
Heard: June 17, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Tyrolean Village Resorts 2021 Limited | N. Smitheman |
| The Town of The Blue Mountains | D. Baker K. Algayer (Co-Counsel) |
| The County of Grey | E. Treslan |
MEMORANDUM OF ORAL DECISION DELIVERED BY S.L. DIONNE AND STEVEN T. MASTORAS ON JUNE 17, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is a second Case Management Conference ("CMC") relating to Appeals filed by Tyrolean Village Resorts 2021 Limited ("Appellant") in respect of the failure of the Town of The Blue Mountains ("Town") to make a decision on a proposed Zoning By-law Amendment ("ZBA") and a proposed Draft Plan of Subdivision ("DPS") within the statutory timeframe(s) pursuant to the Planning Act, R.S.O., 1990, c. P.13 ("Act"). The affected lands are municipally known as 138 Kandahar Lane, Town of Blue Mountains, in the County of Simcoe ("Subject Property").
2Since the time of the first CMC, the Applicant has now retained Counsel.
REQUEST FOR STATUS
3Although requests for status were considered at the time of the first CMC, shortly thereafter the Tribunal received a written request for Party status from Graham and Cindy Flanagan, wherein it was indicated that they had not received notification of the first CMC and as a result of not having known, were not in attendance. At the second CMC, the Panel called upon the Flanagans to briefly speak to the request made.
4Mr. Flanagan explained that he and his wife live across the street from the Subject Property; they have identified specific concerns related to parking, noise, height to Town Council; they want to be involved in the process; and they continue to question the development proposed. Mr. Flanagan explained that they have an interest in the matters before the Tribunal, and compared to those of others involved, have a unique perspective in that they actually live in the area and will be directly impacted, as will the neighbourhood. The Flanagans want to ensure that they are kept apprised of the appeal process, receiving notices and information on the development proposal as it becomes available, and that they are permitted to participate.
5The written request submitted by the Flanagans to the Tribunal outlines concerns, including, but not limited to, the following issues:
- Building height and lot frontage;
- Adequate buffering and setbacks;
- Visual impact;
- Sightlines at intersection of Tyrolean Lane and Kandahar Lane and potential traffic safety issues;
- Lack of street lighting, sidewalk and traffic control (i.e., stop signs);
- Impact on character of area;
- Displacement of community amenities exclusively for Tyrolean Village guests, resulting and an increase in demand upon and impact on existing public parklands;
- Insufficient parking;
- Noise level and disturbance;
- Issues of compatibility with short-term accommodation in residential areas;
- Traffic and Road issues; and,
- Need for a Master Plan for the whole of the Applicant's lands.
6After some discussion regarding the roles and responsibilities of someone with Party status versus Participant status, Mr. Flanagan advised the Panel that he and his wife would be satisfied with having Participant status in the matters before the Tribunal. On this basis, and with the Parties having no objection, the Panel granted Participant status to Graham and Cindy Flanagan.
PROCEDURAL ORDER AND ISSUES LIST
7The Tribunal received a draft Procedural Order ("PO") submitted by the Parties.
8Counsel for the Town advised the Tribunal that they had prepared the draft PO as assistance to the Applicant based on the first CMC, and that an estimation as to number of days for the Hearing is proposed as fifteen (15) days based on not knowing for certain the number of witnesses the Applicant intends to call.
9The Panel allowed Counsel for the Parties to take some time to consider the number and type of Witnesses, which may or may not include subpoena witnesses, that each Party may call to provide evidence in a Hearing. Following a short recess, the Tribunal was advised that, at this time, the Applicant anticipates calling the Applicant, a Planner, a Civil Engineer, and a Transportation Engineer to address parking. The Town anticipates calling a Town Planner, Town Civil Engineer, Town Staff to address short term accommodation, and a witness to address parking. The County anticipates calling a County Planner if, and as, necessary.
10Counsel for the Parties were in agreement in the requesting of the scheduling of a Hearing at this time, and that a duration of three (3) weeks would be appropriate.
11In terms of issues, Attachment 2 to the draft PO includes the Town and County's issues. The Panel directed the Applicant to review and consider the issues set out in the draft PO, to review the comments set out in the written requests for status by the Participants, and to update the draft PO.
12The Parties were directed to provide a final PO on consent to the Tribunal by no later than Friday, June 28, 2024.
NEXT STEPS
13After hearing submissions of each of the Parties as to their expectations of the number of Witnesses to be called, and careful consideration of the respective calendars of the Parties, the Tribunal scheduled a Hearing, for a period of fourteen (14) days, being held on Monday, February 3, 2025 to Friday, February 21, 2025 (exclusive of February 17, 2025 – Family Day) by Video Hearing commencing at 10 a.m.
14Parties and Participants 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.
GoToMeeting: https://meet.goto.com/680885805
Access Code: 680-885-805
15Parties and Participants 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
16Persons 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is as indicated above.
17Individuals 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.
18The Parties were reminded of the opportunity for Tribunal-led mediation in the event that is something that they would like to pursue.
19The Tribunal has received the revised PO, on consent of all Parties, and it has been reviewed and approved by the Panel and is appended to this Decision as Schedule 1.
ORDER
20THE TRIBUNAL ORDERS that:
a. Participant status is granted to Graham and Cindy Flanagan;
b. The Hearing is scheduled to commence on Monday, February 3, 2025, at 10 a.m. by Video Hearing for a period of fourteen (14) days; and
c. The Procedural Order appended as Schedule 1 shall govern the future conduct of this proceeding.
21There will be no further notice.
"S.L. Dionne"
S.L. DIONNE MEMBER
"Steven T. Mastoras"
STEVEN T. MASTORAS 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 1
CASE NO.: OLT-24-000026
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Tyrolean Village Resorts 2021 Limited
Subject: Application to amend the Zoning By-law – Failure of Approval Authority to make a decision
Description: To permit the creation of 12 lots with commercial lodges and a future development block
Reference Number: P3084
Property Address: 138 Kandahar Lane
Municipality/UT: The Blue Mountains/County of Grey
OLT Case No.: OLT-24-000026
OLT Case Name: Tyrolean Village Resorts 2021 Limited v. The Blue Mountains (Town)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Tyrolean Village Resorts 2021 Limited
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit the creation of 12 lots with commercial lodges and a future development block
Reference Number: P3085 (Lower-tier); 42T-2021-07 (County)
Property Address: 138 Kandahar Lane
Municipality/UT: The Blue Mountains/County of Grey
OLT Case No.: OLT-24-000027
OLT Lead Case No.: OLT-24-000026
OLT Case Name: Tyrolean Village Resorts 2021 Limited v. The Blue Mountains (Town)
PROCEDURAL ORDER
- 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
The video hearing will begin on February 3, 2025 at 10:00 a.m. The Tribunal will not sit on Monday February 17, 2025.
The parties' initial estimation for the length of the hearing is 14 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.
The parties and participants identified at the case management conference are set out in Attachment 1.
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.
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.
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.
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
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 Friday October 25, 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.
Expert witnesses in the same field shall have a meeting on or before Friday November 15, 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 Friday November 29, 2024.
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.
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.
On or before Friday December 6, 2023, 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.
On or before Friday December 6, 2023, 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.
On or before Friday January 3, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before, Friday January 17, 2025, 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.
On or before January 10, 2025, parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 22 below.
On or before Friday January 17, 2025, the parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before (at least 10 days prior to the start of the hearing).
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday January 17, 2025 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.
All filings shall be submitted electronically. Hard copies will be provided to the Tribunal if requested. 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.
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.
SUMMARY OF DATES
| DEADLINE | EVENT |
|---|---|
| Friday October 25, 2024 | Parties to exchange lists of witnesses (names, disciplines, and order to be called) |
| Friday November 15, 2024 | Expert Witness meeting held |
| Friday November 29, 2024 | Agreed Statement of Facts filed |
| Friday December 6, 2023 | Witness Statements, expert reports, and any evidence of witnesses to be exchanged, including will say statements |
| Friday December 6, 2023 | Participants Statements to be exchanged |
| Friday January 3, 2025 | Parties to confirm with the Tribunal if all the reserved hearing dates are required. |
| January 10, 2025 | Reply Witness Statements to be exchanged |
| January 17, 2025 | Parties to exchange copies of visual evidence |
| January 17, 2025 | Parties to file Joint Document Book |
| January 17, 2025 | Parties to file draft Hearing Plan |
| February 3, 2025 | Hearing commences |
ATTACHMENT 1
PARTIES AND PARTICIPANTS
| PARTY | COUNSEL / REPRESENTATIVE |
|---|---|
| The Town of The Blue Mountains | Denise Baker WeirFoulds LLP Suite 201, 1320 Cornwall Road Oakville, ON L9J 7W5 Email: dbaker@weirfoulds.com T: 416-947-5090 |
| The County of Grey | Erroll Treslan The Alliance Lawyers Professional Corporation 142 10th Street West P.O. Box 730 Owen Sound, ON N4K 5W9 Email: etreslan@owensoundlawyers.com T: 519-376-7450 F: 519-376-8288 |
| Tyrolean Village Resorts 2021 Limited | Neal J. Smitheman Fasken Martineau DuMoulin LLP 333 Bay Street, Suite 2400 Toronto, ON M5H 2T6 Email: nsmitheman@fasken.com T: 416-868-3441 F: 1-800-268-8424 |
| PARTICIPANTS | |
|---|---|
| MayLiza Baak | baakardi@hotmail.com |
| Mary Lynn McCarthy | marylynnmccarthy@gmail.com |
| Cindy Flanagan Graham Flanagan |
grahamflanagan66@gmail.com |
ATTACHMENT 2
Issues List of the Town of The Blue Mountains
- Does the proposed Zoning By-law Amendment and Draft Plan of Subdivision (the "Proposed Development") have regard for matters of provincial interest as set out in section 2 of the Planning Act, specifically section 2(f), (h) and (r)?
- Does the proposed Draft Plan of Subdivision have appropriate regard to the criteria and matters required to be considered pursuant to subsection 51(24) of the Planning Act, specifically (a), (b), (c), (d), (f), (i) and (k)?
- If so, what are the appropriate conditions of draft plan of subdivision approval?
- Is the Proposed Development consistent with the Provincial Policy Statement (2020), including, without limitation, policies 1.1.1 and 1.6.6?
- Does the Proposed Development conform to the Town of The Blue Mountains Official Plan, including, without limitation, policies A3.3, A3.4, A3.8, A3.9, B2.2, B2.5, B2.13, B3.9, D.1.2, D4.3, D.6.3, E.1.3?
- Is the Proposed Development intended to permit short term accommodations?
- Is the proposed definition of 'commercial accommodation lodge' appropriate?
- Is it appropriate to permit the introduction of residential uses onto lands designated for commercial uses?
- Does the proposed Zoning By-law Amendment provide for appropriate lot sizes and built form, including setbacks to implement the Proposed Development?
- Has adequate parking been provided for the Proposed Development?
- Is the proposed parking design, including tandem parking, appropriate to ensure adequate parking supply for the Proposed Development?
- Are full services available for the Proposed Development? If not, is the Proposed Development appropriate from a servicing perspective?
- Does the Proposed Development provide for appropriate parkland, having regard for amount, use, location, design and configuration?
- Does the proposed development represent good land use planning, and is it in the public interest?
Issue of the County of Grey
- Does the Proposed Development conform to section 3.8 of the County Official Plan?
ATTACHMENT 3
ORDER OF EVIDENCE
- Tyrolean Village Resorts 2021 Limited
- The Town of The Blue Mountains
- County of Grey
- Tyrolean Village Resorts 2021 Limited, in reply
Attachment to Sample Procedural Order
Meaning of terms used in the 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.