Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 11, 2024

CASE NO(S).: OLT-23-001184

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Stephanie Bradt

Subject: Zoning By-Law Amendment Appeal of Decision

Description: Zoning by-law amendment to prohibit Short Term Rental Accommodations in the Municipality of Lakeshore

Reference Number: ZBA-14-2023

Property Address: Various properties, including but not limited to 1221 Surf Club Drive

Municipality: Municipality of Lakeshore

OLT Case No.: OLT-23-001184

OLT Lead Case No.: OLT-23-001184

OLT Case Name: Bradt v. Lakeshore (Municipality)

Heard: June 12, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Stephanie Bradt (“Appellant”)	Jonathan Nehmetallah
Municipality of Lakeshore (“Municipality”)	Kelly Nenniger

MEMORANDUM OF ORAL DECISION DELIVERED BY YASNA FAGHANI AND D. CHIPMAN ON JUNE 12, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference ("CMC”) respecting an appeal filed by the Appellant, Stephanie Bradt. The Appeal arises following the Municipality of Lakeshore’s passing of a Zoning By-law Amendment (“ZBA”) to add the definition of ‘Short-Term Rental Accommodation’ and add general policies that prohibit Short Term Rental Accommodations within the Municipality of Lakeshore but continue to permit Bed and Breakfast establishments.

2The ZBA applies to various addresses, including but not limited to, 1221 Surf Club Drive in the Municipality of Lakeshore, in the County of Essex.

3As this was the second CMC, no further notice was required.

REQUEST FOR STATUS

4Counsel for the Appellant advised that the incorporation of the non-for-profit organization known as Lakeshore Short Term Accommodation Association (“LSTAA”) which the Appellant represents, was now complete. He advised that he will be submitting a Motion in writing for the Substitution of LSTAA as the Appellant. The Tribunal requested Motion materials to be submitted by Friday, June 28, 2024. A Reply Motion was scheduled for Friday, July 12, 2024, with Response, if any, to follow on July 19, 2024.

5The Tribunal received a Participant Request from Argo Pace. Mr. Pace also submitted a petition signed by various individuals as part of his Participant Request submissions. Counsel for the Appellant and Counsel for the Municipality advised they had not received the Participant Request submissions; however, they do not object to the Participant Request. The Tribunal granted Participant status to Mr. Argo and advised that a copy of his submissions will be sent to both counsels following the CMC.

6There were no further Party or Participant requests.

Settlement

7The Parties advised that ongoing settlement discussions had occurred since the first CMC. Although the issues had not resolved, both Parties were of the opinion that ongoing discussions will continue in an effort to settle some or all of the issues prior to the Hearing.

Procedural Order and Hearing

8The Parties submitted a draft Procedural Order (“PO”) and Issues List (“IL”). They identified potential witnesses and both Parties agreed to set Hearing dates. The Parties advised that, based on the issues in dispute and the potential number of witnesses, a three-day (3) Merit Hearing would be required. Both Parties agreed that a Hearing timeline in the Fall would suffice. The Tribunal directed the Parties to submit the finalized PO and IL by Friday, June 28, 2024.

9Having received the updated PO and IL prior to the issuance of this Decision, the Tribunal has reviewed the contents and approves the PO and IL. The attached PO and IL will now be considered in force and effect to govern the proceedings of the merit hearing scheduled below. No Party is to amend the PO and IL without specific approval by the Tribunal.

10The Tribunal set a three-day (3) Merit Hearing commencing on Wednesday, October 16, 2024 at 10 a.m.

11Parties are asked to log in to the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

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

Access Code: 656-004-293

12Persons 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.

13Parties 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

14Individuals 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.

15The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated that there were none.

ORDER

16THE TRIBUNAL ORDERS as follows:

a. A Merit Hearing is scheduled to proceed by Video on Wednesday, October 16, 2024 at 10 a.m.; and

b. The Tribunal conferred Participant status to Argo Pace.

17The Panel is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Yasna Faghani”

YASNA FAGHANI

MEMBER

“D. Chipman”

D. CHIPMAN

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(S).: OLT-23-001184

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Stephanie Bradt

Subject: Zoning By-Law Amendment Appeal of Decision

Description: Zoning by-law amendment to prohibit Short Term Rental Accommodations in the Municipality of Lakeshore

Reference Number: ZBA-14-2023

Property Address: Various properties, including but not limited to 1221 Surf Club Drive

Municipality: Municipality of Lakeshore

OLT Case No.: OLT-23-001184

OLT Lead Case No.: OLT-23-001184

OLT Case Name: Bradt v. Lakeshore (Municipality)

Procedural Order

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

Organization of the Hearing

2. The video hearing will begin on October 16, 2024 at 10:00 a.m. by video conference.

3. The parties’ initial estimation for the length of the hearing is 3 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 procedural order deadlines are found in ATTACHMENT 1.

4. The parties and participants identified at the case management conference are set out in ATTACHMENT 2.

5. The issues are set out in the Issues List attached as ATTACHMENT 3. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in ATTACHMENT 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

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

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

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or July 18, 2024 (90 days before the hearing is scheduled to commence) and in accordance with Section 21. 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 proposed to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or before July 29, 2024 (80 days before the hearing is scheduled to commence). Expert witnesses in the same field may have a meeting on or before August 19, 2024 August 19, 2024 (60 days before the hearing is scheduled to commence) and use best efforts to try to resolve or reduce the issues for the hearing.

10. The parties must prepare and file a Statement of Agreed Facts and the remaining issues to be addressed at the hearing with the Tribunal’s case coordinator on or before September 16, 2024 (30 days before the hearing is scheduled to commence).

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in Section 11 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she/they intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same as the delivery of expert witness statements, as in Section 12.

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

13. On or before August 19, 2024August 19, 2024 (60 days before the hearing is scheduled to commence), the parties shall provide copies of their witness and expert witness statements to the other parties and to the Tribunal’s case coordinator in accordance with Section 21.

14. On or before September 16, 2024August 19, 2024 (60 days before the hearing is scheduled to commence), a participant shall provide copies of their written participant statement to the other parties in accordance with Section 21. A participant cannot present oral submissions at the hearing on the content of their written statement, unless permitted by the Tribunal.

15. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal to the other parties on or before July 18, 2024Error! Reference source not found.. The applicant acknowledges that any revisions to the plans, except those that are very minor, after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

16. On or before October 1, 2024October 1, 2024 (15 days before the hearing is scheduled to commence), the parties shall provide copies of their visual evidence to all of the other parties in accordance with Section 21. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. On or before September 3, 2024September 3, 2024 (45 days before the hearing is scheduled to commence), parties may provide to all other parties and the Tribunal’s case coordinator a written response to any written evidence in accordance with Section 21.

18. 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.

19. The parties shall cooperate to prepare a Joint Document Book which shall be shared with the Tribunal’s case coordinator in accordance with Section 21 on or before October 6, 2024 (10 days before the hearing is scheduled to commence).

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

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 1, 2024October 1, 2024 (15 days before the hearing is scheduled to commence), 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 preliminary hearing plan. Any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal or on consent of parties. The Tribunal may, at its discretion, change or alter the preliminary hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable.

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

Attachment 1

Summary of Dates

DATE	EVENT
July 18, 2024 (90 days before the hearing is scheduled to commence)	Exchange of witness lists (names, disciplines and order to be called)
July 29, 2024 (80 days before the hearing is scheduled to commence)	Last date to challenge witnesses or qualifications of a witness to give opinion evidence (if any)
August 19, 2024 (60 days before the hearing is scheduled to commence)	Experts meeting prior to this date
September 16, 2024 (30 days before the hearing is scheduled to commence)	Finalize statement of agreed facts
August 19, 2024 (60 days before the hearing is scheduled to commence)	Exchange of witness statements, summoned witness outlines, expert reports and participant statements
September 3, 2024 (45 days before the hearing is scheduled to commence)	Exchange of reply witness statements (if any)
October 1, 2024 (15 days before the hearing is scheduled to commence)	Exchange of visual evidence (if any)
October 1, 2024 (15 days before the hearing is scheduled to commence)	Hearing plan filed with the Tribunal
October 6, 2024 (10 days before the hearing is scheduled to commence)	Finalize joint document book
October 16, 2024	Hearing commences

Attachment 2

List of Parties and Participants

PARTY NAME	CONTACT AND COUNSEL/AGENT*
1. Municipality of Lakeshore	STRONG NENNIGER D-309 Commissioners Road West. London, Ontario N6J 1Y4 Kelly Nenniger nenniger@municipallawyers.ca
2. Stephanie Bradt	McCARTHY TÉTRAULT LLP Suite 5300, TD Bank Tower Box 48, 66 Wellington Street West Toronto, ON M5K 1E6 Jonathan Nehmetallah jnehmetallah@mccarthy.ca

PARTICIPANT NAME	CONTACT
1. Argo Pace	Apace427@hotmail.com
2.
3.

Attachment 3

List of Issues

COMMON ISSUES LIST

1. PROVINCIAL POLICY STATEMENT a. Is the adopted Zoning By-law Amendment consistent with the Provincial Policy Statement including Part III, Sections 1.1.4, 1.7.1(a) and (h)?

2. COUNTY OF ESSEX OFFICIAL PLAN a. Is the adopted Zoning By-law Amendment in general conformity with the County of Essex Official Plan including Section 3.2.6(a)?

3. MUNICIPALITY OF LAKESHORE OFFICIAL PLAN a. Is the adopted Zoning By-law Amendment in conformity with the Municipality of Lakeshore Official Plan including sections 2.2, 2.3.1.d, 2.3.1.h, 4.4.1.a, and 4.4.2 o?

4. PLANNING ACT a. Does the adopted Zoning By-law Amendment have regard to matters of Provincial Interest, as set out in Section 2 of the Planning Act?

5. ADDITIONAL GROUNDS a. Does the economic health of the Lakeshore community require that Short-term Rental Accommodations as defined in the adopted Zoning By-law Amendment be allowed? b. Is there a demonstrated need for Short-term Rental Accommodations in Lakeshore? c. Is the adopted Zoning By-law Amendment considered good land use planning and in the public interest? d. Is the adopted Zoning By-law Amendment unduly restrictive and arbitrary?

Attachment 4

Order of Evidence

In Chief:

1. Stephanie Bradt;
2. Municipality of Lakeshore

Reply:

1. Stephanie Bradt