The Big Tub Harbour Citizens Committee v. Municipality of Northern Bruce Peninsula, 2024 CanLII 74358

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 30, 2024

CASE NO(S).: OLT-22-003015

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: 1415747 ONTARIO Inc. and Lyons Big Tub Resort Marina Ltd.

Request for: Request for Directions

Heard: May 22, 2024 via Video Hearing

APPEARANCES:

Parties	Counsel
The Big Tub Harbour Citizens Committee	Eric Davis
1415747 Ontario Inc. & Lyons Big Tub Resort Marina Ltd.	Mark R. Flowers
Municipality of Northern Bruce Peninsula	Nicholas A. G. Lovell

DECISION DELIVERED BY gregory j. ingram and A. snowdon and ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Decision and Order arises from the hearing of motions brought by the Municipality of Northern Bruce Peninsula (“MNBP”) and 1415747 Ontario Inc. and Lyons Big Tub Resort Marina Ltd. (together as “Bruce Anchor Cruises”) for non-compliance with section 34 (19.0.1) of the Planning Act, R.S.O. 1990, c. P.13 (“Planning Act”) pursuant to section 34 (25) (3) to dismiss without a full hearing an Appeal by The Big Tub Harbour Citizens Committee (“BTHCC”) against MNBP’s passing of Zoning By-law 2022-05 (“Motions”).

2Briefly summarized, the Zoning By-law Amendment (“ZBA”) approved by MNBP defines and adds ‘Commercial Tour Boat Operation’ as a permitted use in the “Business District Commercial One” (C1) zone along with some additional provisions. The BTHCC objections specifically name six properties, all zoned C1, that they believe should not be included in the ZBA.

3In addition to the Motions, Bruce Anchor Cruises also seeks relief through an Order of the Tribunal, that specific issues in the Procedural Order (“PO”) be altered or excluded, if the appeal is not dismissed without a hearing.

BACKGROUND

4Tour boat operations in the Tobermory area have operated from properties zoned C1 for “several decades” as the MNBP maintained that tour boat operations “are permitted as a ‘marina’ and a ‘transportation depot’” in the C1 zone.

5In 2021, a Court application was launched by BTHCC based on their position that commercial tour boat operations are not a permitted use within the Municipality’s C1 zone. The Court proceeding is stayed pending the resolution of the Tribunal proceedings.

6At the MNBP Council meeting on February 14, 2022, William Pol, a land use planner representing the BTHCC, provided his professional opinion with respect to the ZBA and its nonconformity with the Bruce County Official Plan (“COP”) and MNBP Official Plan (“TOP”) and identified planning issues related to traffic, parking, land use compatibility and shoreline impact.

7MNBP Council approved By-law 2022-05 on February 28, 2022, and an appeal was launched to the Tribunal in March 2022 by the BTHCC. Bruce Anchor also submitted an appeal in March 2022 regarding By-law 2022-05 maintaining that the tour boat use falls within the ‘marina’ and ‘transportation depot’ designation of ZBL 2002-54 and that the ZBA is not required.

8The basis for the BTHCC Appeal is grounded in the position that tour boat operations are not a permitted use in the C1 Zone of the Comprehensive Zoning By-law 2002-54 which they contend is confirmed by the MNBP’s decision to pass a ZBA that adds a definition and other details to permit tour boat operations in the C1 zone.

9The BTHCC Notice of Appeal application form and accompanying cover letter indicate that BTHCC does not oppose tour boat operations overall but submits that several specific properties in the C1 zone are “not appropriate for such use” and are listed here:

1. Lt 24 S/S Bay St, 25 S/S Bay St, 26 S/S Bay St Pl Bury, Municipality of Northern Bruce Peninsula, described as PIN 33100-0201 (the “Symes Property”);
2. Lt 27 S/S Bay St, 28 S/S Bay St, 29 S/S Bay St, 30 S/S Bay St, 31 S/S Bay St, 32 S/S Bay St Pl Bury, Northern Bruce Peninsula, municipally identified as 236 Big Tub Road, Tobermory, Ontario, and described as PIN 33100-0199 (the “Big Tub Resort”);
3. Lt 33 S/S Bay St, 34 S/S Bay St, 35 S/S Bay St, 36 S/S Bay St Pl Bury, Northern Bruce Peninsula, described as PIN 33100-0198;
4. Scott St Pl Bury S of Bay St, Northern Bruce Peninsula, described as PIN 33100-0200;
5. Lt 60 N/S Front St and E/S Bury Rd Pl Bury, Municipality of Northern Bruce Peninsula, described as PIN 33101-0056; and,
6. Lt 61 N/S Front St and E/S Bury Rd Pl Bury, Northern Bruce Peninsula, municipally identified as 7480 Highway 6, Tobermory, Ontario, and described as PIN 33101-0055 (“The Gap”).

10The Appellant’s Notice of the Appeal indicated that the decision of the Council is inconsistent with the Provincial Policy Statement issued under subsection 3(1) of the Planning Act, fails to conform with or conflicts with a provincial plan, and fails to conform with an applicable Official Plan. The Notice of Appeal also indicated that the Zoning By-law Amendment is inconsistent with various policies of the Provincial Policy Statement., the ZBA fails to conform with the Local Official Plan for Tobermory, Lion’s Head and Ferndale, and the ZBA is inconsistent with the Bruce County Official Plan.

11The accompanying cover letter stated that:

1. The ZBA is inconsistent with numerous policies of the Provincial Policy Statement and specifically refers to, a. healthy, liveable, and safe communities. b. development within settlement areas; and; c. infrastructure.
2. Does not conform to the COP or TOP.
3. Will have impact and implications on traffic, parking, nuisance, public safety for pedestrians and cyclists; swimmers and operators of recreational water vehicles.
4. Is inconsistent with surrounding land uses and does not represent good land use planning.
5. Is incompatible with existing sewage and septic system infrastructure.
6. Will have negative environmental consequences as a result of increased harmful emissions and pollutants.

12A Case Management Conference was held in November 2023 and a date for a 10-day hearing was set to commence on Monday, January 27, 2025, at 10 a.m. by Video. At the CMC, the Tribunal was informed by Counsel representing Anchor Cruises that “the Parties are continuing to address the issues through without-prejudice discussions with the hope of either finding a solution to all the issues or at the least achieving a consensus on the wording of the issues that would form part of the Procedural Order.”

13The draft issues list in the PO as of November 2023 listed the following:

1. Is “commercial tour boat operation” a land use that is compatible with the existing uses of the residential properties accessed from Big Tub Road?
2. If all of the proposed and permitted Principal and Accessory Uses are established on the properties subject to the appeal, will those uses impact vehicular and pedestrian access to/from the existing residential properties accessed from Big Tub Road?
3. Are there community impacts regarding transportation safety, road congestion, or nuisance impacts, if “commercial tour boat operators” bring: a. tour boats to the properties subject to this appeal for the purposes of loading and unloading patrons; and/or b. patrons in shuttle buses from parking areas located in Downtown Tobermory to the properties subject to this appeal for purposes of loading and unloading patrons?
4. Are shuttle buses that transport patrons to the properties subject to this appeal a permitted Accessory Use to “commercial tour boat operations”?
5. Is sufficient parking being provided on the properties subject to this appeal for the proposed and permitted Principal and Accessory Uses?
6. Should Parking Areas be included as a Principal Use rather than an Accessory Use in the definition of “commercial tour boat operation” in Zoning By-law 2022-05?
7. Does the proposal to add “commercial tour boat operations” as a permitted use in an area that is an established residential community represent good planning and is it in the public interest?
8. Does Zoning By-law 2022-05 conform with the existing Official Plan for the Tobermory and Lion’s Head Secondary Urban Areas and the Hamlet of Ferndale, specifically policies 3.2.3.3 and 3.2.3.4?

14In the Decision issued in December 2023, the parties were directed that if they are unable to agree on the Issues list, they “may bring a motion to the Tribunal, may request a further CMC in the early part of 2024 or may seek Tribunal-led mediation to assist in coming to a resolution on wording.”

MOTION HEARING

15MNBP seeks an Order of the Tribunal dismissing the appeal without a full hearing for non-compliance with section 34 (19.0.1) of the Planning Act, R.S.O. 1990, c. P.13 (“Planning Act”) pursuant to section 34 (25) (3). Bruce Anchor Cruises also seeks an Order of the Tribunal dismissing the appeal by BTHCC in accordance with the motion brought by the MNBP and heard concurrently with the MNBP motion.

16The reasons submitted by MNBP that the appeal should be dismissed are summarized below:

a. The Notice of Appeal application does not “explain how” ZBA 2022-05 is inconsistent with the Provincial Policy Statement, 2020 (“PPS”) or fails to conform with or conflicts with any official plan as required by section 34 (19.0.1) of the Planning Act. b. The issues within the Notice of Appeal, when read independently or collectively, do not explain how the ZBA is inconsistent with or non-conforming to the PPS, COP, or TOP given their lack of specific facts to support the allegations.

17Bruce Anchor Cruises, in addition to the relief sought on the Motions, seeks an Order of the Tribunal directing certain proposed issues of BTHCC be excluded and others altered on the basis that they lack “sufficient clarity or are otherwise improper” and do not “explain how” the ZBA is inconsistent with subsection 3(1) of the Planning Act and fails to conform with the TOP as required by subsection 34 (19.0.1).

18The BTHCC, in their Response to Motion document, stated that:

a. The entire package submitted with the Notice of Appeal “collectively with all attachments, documents and including the presentation and associated comments from William Pol, explains how the ZBA does not conform with the TOP and specifically policies 3.2.3.3 and 3.2.3.4.” b. The affidavit of Mark Dorfman, which relies in part on the Safety Review of Big Tub Road in relation to Tour Boat Operations report from April 2024, provides a planning-based explanation of “how” the Zoning By-law fails to conform to the TOP. c. The BTHCC has the right to supplement their subsection 34(19.0.1), ‘explain how’ using planning evidence when faced with a subsection 34(25) motion based on subsections 13(1) and 19 (3) of the Ontario Land Tribunal (“OLT”) Act, 2021, S.O. 2021, c.4 Sched. 6 (“OLT”) Act and Rule 10.6 (c) of the OLT Rules of Practice and Procedure. Subsection 34 (19.0.1) of the Planning Act must be read in conjunction with other provisions across the Planning Act scheme and provisions of other provincial statutes and instruments issued thereunder. d. The Tribunal cannot prohibit the BTHCC from asking questions of witnesses in relation to TOP conformity. The OLT must consider official plan conformity regardless of whether it is raised as an issue by a party or not and hear evidence from “impartial experts.” e. Subsection 34(19.0.1) only imposes the “explain how” requirement in relation to specific planning legislation (PPS, COP, TOP) and has no bearing on other appeal grounds such as determining public interest and what constitutes good planning or conformity with official plans. f. …while the appeal must be read as a whole, it does not mean that all issues “coalesce into a single ground of appeal.” …they are stand alone issues that are not subject to subsection 34 (19.0.1) of the Planning Act and can constitute reason alone to quash a Zoning By-law. g. There is no reason to amend the issues as suggested by Bruce Anchor Cruises given that they flow from the Notice of Appeal and are further supported in the affidavit of Mark Dorfman who is a Registered Professional Planner.

SUBMISSIONS

17The Tribunal heard oral submissions from counsel, received extensive authorities from all Parties that reflect decisions made by the Tribunal, its predecessors and the Court and had the benefit of written affidavit evidence from individuals and experts.

18The materials before the Tribunal on the Motions include the following:

Exhibit 1: Motion Record of MNBP Exhibit 2: Motion Record of Bruce Anchor Cruises Exhibit 3: Responding Motion Record of BTHCC Exhibit 4: Notice of Response to Motion of MNBP Exhibit 5: Notice of Response to Motion of Bruce Anchor Exhibit 6: Reply of Bruce Anchor Cruises

ISSUES

19The main issues before the Tribunal are:

a. Does the Notice of Appeal (Application Form and cover letter) as submitted by BTHCC satisfy the requirement for explanation of the reasons for appeal citing relevant land planning issues and policies? b. Does the Issues List lack “sufficient clarity or are otherwise improper” and fail to “explain how” the ZBA is inconsistent with subsection 3(1) of the Planning Act and fails to conform with the TOP as required by subsection 34 (19.0.1)?

ANALYSIS AND FINDINGS

20The Tribunal carefully considered the oral and affidavit submissions of the Parties along with the detailed motion materials submitted and provides the following analysis and findings.

21To determine the first issue, the Tribunal considered the position advanced by the MNBP and Bruce Anchor Cruises that the Notice of Appeal does not satisfy the ‘explain how’ requirement for grounds for appeal (see paragraphs [16] and [17]).

22MNBP and Bruce Anchor Cruises referenced s.34(19.0.1) of the Planning Act in support of their motions to dismiss.

a. Section 34 (19.0.1) of the Planning Act provides the following:

(19.0.1) If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

23The Tribunal’s authority for dismissing an OPA and/or a ZBA appeal can be found in s. 19(1) of the OLT Act and s. 34(25) of the Planning Act, which are outlined below. The moving party in a motion to dismiss need only demonstrate one of the grounds for dismissal have been satisfied.

a. Under the OLT Act s. 19(1):

19(1) … the Tribunal may … dismiss a proceeding without a hearing, … (c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success; …

b. Section 34 (25) of the Act provides the following:

… the Tribunal may…dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that, 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 of part of the appeal, ii. The appeal is not made in good faith or is frivolous or vexatious…
2. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

24In deciding whether to dismiss an appeal without a hearing, the Tribunal is also guided by the Toronto (City) v East Beach Community Association [1996] O.M.B.D. No. 1890, 42 O.M.B.R. 505 (“East Beach”), the Panel accepts as follows at paragraph 9:

With respect to the tests specifically stated in … [s.] 34 (25)(a)(i), it is our view that these provisions allow the Board to examine whether there has been disclosure of planning grounds that warrant a hearing … The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate, and authentic planning reasons … What these particular provisions allow the Board to do is to seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process.

Motions to Dismiss Without a Hearing

25In considering the Motion to Dismiss, the Tribunal considered the Notice of Appeal application form and accompanying cover letter which were submitted together in March 2022. These documents identify issues that represent authentic land use planning matters worthy of adjudication. While the explanation of land planning issues does not consistently tie specific policies to issues, there is sufficient explanation to justify the appeal and therefore, the motions to dismiss are denied. The rationale for this decision is outlined below.

26The Notice of Appeal and cover letter, identify issues related to traffic, parking, land use compatibility, shoreline impact, and public safety for pedestrians and cyclists which are all land use planning issues. It also refers to the compatibility of “existing sewage and septic system infrastructure” with the addition of tour boat operations as a permitted use in the C1 zone as well as identifying the impact of increased “harmful emissions and pollutants” as a concern to be addressed. The issue of whether the ZBA represents good land use planning is also a question worthy of adjudication. These issues are not new to the Parties as they were raised during the public process and the foundation for the BTHCC Court action.

27The Tribunal finds that the Notice of Appeal and cover letter have “sufficiently” explained how the Zoning By-law fails to a satisfactory level and takes a similar position as noted in the decision below:

Vahrmeyer v St. Catharines (City), 2017 CanLII 87360 (ON LPAT) at para. 35.

Board concludes these notices are sufficiently clear to anyone who is familiar with the relevant planning instruments and proceedings before the Board to understand which policies are in play, even without direct reference to those policies.

28BTHCC retained experts to provide background and elaborate on the grounds raised in the Notice of Appeal and cover letter as permitted through their Response to Motion. The Tribunal is guided by the decision in Earls Road Developments Limited v Muskoka (District Municipality), 2022 CanLII 60862 (ON LT) which found that the retention of experts in support of a position and whose opinions will be relied upon at a merit hearing are one indication that an appeal has a reasonable prospect of success.

29Counsel for BTHCC introduced affidavits from Mark Dorfman, who is a Member and Fellow of the Canadian Institute of Planners and a Registered Professional Planner in Ontario and Josee Dumont, P.Eng., related to land use planning and traffic and pedestrian safety. Mr. Dorfman’s affidavit provides additional background information related to the uses permitted in the Comprehensive Zoning By-law 2002-54 in the C1 zone and provides opinions on the issues raised in the Notice of Appeal and cover letter and in relation to the planning report commissioned by MNBP (Exhibit 3, pg.194).

30The Tribunal finds that the Bacher v GR (CAN) Investments et al., 2022 ONSC 2937 decision is also applicable here given its reference to an individual right to elaborate or explain how during a motion to dismiss hearing by “elaboration or expert opinion evidence and that it warrants a hearing” to demonstrate the explanation requirements of s. 34 (19.0.1).

31Numerous Tribunal and Board decisions have found that an Appellant need not establish in its Response to a Motion to Dismiss that the Appeal will succeed but must establish in the notice of appeal that there are planning grounds worthy of adjudication. The Tribunal is satisfied that the BTHCC has met this test as outlined in paragraph [26] and further supported through the affidavits submitted.

Motion to Alter Issues List

32The second issue considers whether the issues set out in paragraph [12] provide sufficient clarity, are improper or fail to explain how the ZBA is inconsistent with subsection 3(1) of the Planning Act and fail to conform with the TOP as required by subsection 34 (19.0.1).

33In considering the alternative relief motion submitted by Bruce Anchor Cruises requesting an Order of the Tribunal to scope and refine the issues, the Tribunal finds that the Motion to Alter the Issues List is denied, and the reasons are outlined below.

34The need to refine issues from the original appeal application by the Parties is standard practice in Tribunal proceedings and is guided by OLT Rules 19.1 (c) and (d) as they state that part of the process is to “determine the issues raised by the appeal and narrow the issues in dispute.”

35The Tribunal finds that since the submission of the Appeal application, the Parties have engaged in deliberations to reduce and bring greater specificity to the issues which have been reduced from the initial 40 to the current 8. This process was acknowledged by Counsel for Anchor Cruises, at the CMC in November 2023 and noted above in paragraph [12].

36The Tribunal finds the Affidavit of Marc Dorfman compelling in its support of the BTHCC Issues List given his uncontested, land use planning analysis which deemed the issues appropriate land use planning issues.

37The Parties are reminded that the Tribunal Decision issued on December 1, 2023, required that “a written Status Update [be provided] to the Tribunal on or before Friday, December 22, 2024, with the submission of a draft Procedural Order.

ORDER

38THE TRIBUNAL ORDERS that the Motion of the Municipality of Northern Bruce Peninsula delivered April 19, 2024; and the Motion of 1415747 Ontario Inc. & Lyons Big Tub Resort Marina Ltd. (“Bruce Anchor Cruises”), delivered March 22, 2024 are denied.

39The Motion from Bruce Anchor Cruises requesting that specific Issues raised by the Big Tub Harbour Citizens Committee be excluded and/or altered is denied. The Issues List as set out in Attachment 1 is approved and shall be added to the Draft Procedural Order for OLT-22-003015.

Gregory J. Ingram GREGORY J. INGRAM MEMBER

A. Snowdon A. SNOWDON 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.

ATTACHMENT 1

ISSUES LIST

1. Is “commercial tour boat operation” a land use that is compatible with the existing uses of the residential properties accessed from Big Tub Road?
2. If all of the proposed and permitted Principal and Accessory Uses are established on the properties subject to the appeal, will those uses impact vehicular and pedestrian access to/from the existing residential properties accessed from Big Tub Road?
3. Are there community impacts regarding transportation safety, road congestion, or nuisance impacts, if “commercial tour boat operators” bring: a. tour boats to the properties subject to this appeal for the purposes of loading and unloading patrons; and/or b. patrons in shuttle buses from parking areas located in Downtown Tobermory to the properties subject to this appeal for purposes of loading and unloading patrons?
4. Are shuttle buses that transport patrons to the properties subject to this appeal a permitted Accessory Use to “commercial tour boat operations”?
5. Is sufficient parking being provided on the properties subject to this appeal for the proposed and permitted Principal and Accessory Uses?
6. Should Parking Areas be included as a Principal Use rather than an Accessory Use in the definition of “commercial tour boat operation” in Zoning By-law 2022-05?
7. Does the proposal to add “commercial tour boat operations” as a permitted use in an area that is an established residential community represent good planning and is it in the public interest?
8. Does Zoning By-law 2022-05 conform with the existing Official Plan for the Tobermory and Lion’s Head Secondary Urban Areas and the Hamlet of Ferndale, specifically policies 3.2.3.3 and 3.2.3.4?