Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 06, 2024

CASE NO(S).: OLT-24-000112

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

Appellant: Ian Cartwright

Applicant: 2788035 Ontario Inc.

Subject: Application to amend the Zoning By-law

Description: To permit a residential development that would include a total of 347 dwelling units comprised of 272 apartment dwellings and 75 townhouse dwellings.

Reference Number: D084222

Property Address: 560 and 580 Sixth Street

Municipality/UT: Collingwood/Simcoe

OLT Case No: OLT-24-000112

OLT Case Name: Cartwright v. Collingwood (Town)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: 2788035 Ontario Inc. and 2579283 Ontario Inc.

Request for: Request for Dismissal Without a Hearing

Heard: May 22, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Ian Cartwright	Self-represented*
Town of Collingwood	Thomas Sanderson
2788035 Ontario Inc. and 2579283 Ontario Inc.	Jason Park Doug Pateman

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON MAY 22, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1On May 22, 2024, the Tribunal convened a Case Management Conference (“CMC”) with respect to an Appeal by Ian Cartwright (“Appellant”) resulting from the approval by the Town of Collingwood (“Town”) of applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) (collectively, the “Applications”) put forward by 2788035 Ontario Inc. and 2579283 Ontario Inc. (“Applicant”). The Applications, which also include a Draft Plan of Subdivision (“DPOS”) not subject to the Appeal, relate to lands located at 560 and 580 Sixth Street in the Town (“Subject Lands”).

2This Hearing date was originally scheduled as a merit Hearing but was subsequently converted to a CMC. The Tribunal confirmed with the Parties that there were no concerns with the service of the Notice for the CMC. The Tribunal was in receipt of the Affidavit of Service of Amanda Pryce, sworn on March 19, 2024, which was marked as Exhibit 1, confirming that Notice was adequately served. As such, no further Notice is required.

3Prior to the CMC, the Tribunal did not receive any requests for Party or Participant status. At the CMC, the Applicant sought Party status, which was granted, as the Applicant’s involvement in this matter was essential and would assist the Tribunal greatly in the adjudication of this matter.

MOTION FOR DISMISSAL

4Prior to the CMC, the Applicant filed motion materials with the Tribunal, seeking that a motion to dismiss the Appellant’s Appeal (“Motion”) be heard on May 22, 2024. As such, subsequent to addressing the procedural matters discussed above, the Tribunal heard this Motion at the CMC.

5The following materials were before the Tribunal:

a. Exhibit 2: Motion Record of the Applicant

b. Exhibit 3A: Response Material of the Town

c. Exhibit 3B: Book of Authorities of the Town

d. Exhibit 4: Response Materials of the Appellant

e. Exhibit 5A: Reply Materials of the Applicant

f. Exhibit 5B: Book of Authorities of the Applicant

6The Applicant’s requested relief at the Motion was for an Order of the Tribunal pursuant to s. 19(1)(c) of the Ontario Land Tribunal Act (“OLTA”) and ss. 17(45) and/or 34(25) of the Planning Act (“Act”) dismissing the Appellant’s Appeal.

7The Town did not object to the relief sought by the Applicant, nor endorsed it. It participated in the Motion for the limited purpose of exerting the position that Council’s decisions enacting the ZBA and adopting the OPA (for County approval) were supported by proper analysis and properly satisfied all procedural requirements under the Act. The Town’s position was that those approvals should be maintained.

8The Appellant’s position was that the Appeal should not be dismissed, as the following two substantive issues, stated in Exhibit 4 on page 10 and reiterated by the Appellant at the Motion, needed to be heard and addressed by the Tribunal:

1. Failure of the Town to hold a public hearing on a materially and substantially different Application.

2. The non-compliance of the plan of subdivision, submitted in support of the OPA and ZBA, which intends to use Holden Street when Holden Street is not designated a suitable road.

9The Appellant confirmed at the Motion that, other than these two issues, he did not intend to raise other issues with the instruments.

ISSUES BEFORE THE TRIBUNAL AND WITNESSES

10At the Motion Hearing, the main issue before the Tribunal was whether the Appeal had a reasonable prospect of success, and the Notice contained the necessary grounds required by ss. 17(45)3 and 34(25)3 of the Act. The sub-issues that the Tribunal addressed were:

a. Can the Tribunal, at a Hearing of this Appeal, make a determination on the Town’s decision to refrain from holding another public hearing once the Application was revised?

b. Is there a reasonable prospect of success with respect to the issue of Holden Street and whether the plan of subdivision complies with the statutory regimes in that regard specifically?

c. Is there an appeal of the OPA before the Tribunal?

d. Does the ZBA Appeal have a reasonable prospect of success?

11One witness testified at the Motion, by way of written Affidavits. Krystin E. Rennie, Land Use Planner, provided two Affidavits with accompanying exhibits, sworn on May 7, 2024 (part of Exhibit 2) and on May 21, 2024 (part of Exhibit 5). Her Curriculum Vitae and Acknowledgement of Expert Duty form were included and confirmed her expertise in the area of Land Use Planning. Ms. Rennie was qualified by the Tribunal to provide expert opinion evidence in the field of Land Use Planning.

BACKGROUND

12The Subject Lands are made up of former agricultural land, open space, and a single-detached house. In or around August 2022, the Applicant submitted the Applications and the DPOS to the Town to facilitate the construction of 70 townhouses, 231 apartments, a buffer strip along the nearby Black Ash Creek, and a road widening along the Municipal highway (“Proposed Development”). Technical reports and studies were submitted in support of the Applications.

13Subsequent to this submission, a public meeting was held, and review and feedback were received from staff and reviewing agencies. The feedback was incorporated into the proposed design, which somewhat revised the Application. Specifically, in response to comments received, the Applications were revised to include affordable housing, increased density, and more housing units. Ultimately, what was recommended to Council for approval was the following:

a. The OPA changed the designation on a portion of the Subject Lands from Residential – Medium Density to Residential – High Density and Recreation. The OPA permits an increase of density from 120 to 159 units per hectare and provides a minimum of 10% affordable units; and

b. The ZBA created a site-specific zoning for a number of the proposed lots reducing frontage, area, and side yards.

14Town Staff presented its report and recommendations to the Committee of the Whole and Town Council on December 4, 2023 and December 18, 2023, respectively. The Committee of the Whole and Town Council approved the revised OPA, ZBA, and DPOS, and enacted Zoning By-law Nos. 2023-097 and 2023-098. Simcoe County (“County”), the approval authority for the OPA, approved it on February 22, 2024.

15Of note, the approved DPOS is not subject to private third-party Appeals. Only the Applicant, the Minister of Municipal Affairs and Housing, specified persons under the Act, or the Municipality can appeal the DPOS. It is currently in full force and effect.

GROUNDS FOR APPEAL

16On January 10, 2024, the Appellant filed the Appeal of the instruments approved by Council, noted at paragraph [14] of this Decision. In the Appeal Form (A1), he listed, as the subject of the Appeal, an “Amendment to Official Plan” and listed ss. 21 and 17(15)(c)(d) as the section references under the Act pursuant to which his Appeal was filed. The Appellant checked off the box indicating that the OPA and ZBA fail to conform with the Official Plan (“OP”), but did not provide a further explanation. Regarding the reasons for the Appeal, the Appellant indicated the following:

1. The Town did not provide adequate information and materials as required by Section 17(15)(c) of the Ontario Planning Act (“the Act”).

2. The Town failed to hold a public meeting for the purpose of giving the public an opportunity to make presentations in respect of the current proposed plan in contravention of Section 17(15)(d) of the Act.

3. The Town’s approval of the subject OPA and ZBA is inconsistent with the Application made by the Owner and of which the public is advised.

4. The proposed subdivision to which the OPA and ZBA pertains, and in respect of which the amendment was approved, is unsupported by the Town’s Official Plan.

5. For the proposed plan of subdivision, in respect of which the amendment was approved, the Town has included several conditions the satisfaction of which requires collaboration with local residents but for which no remedy is prescribed in the event agreement of the residents is not secured.

17The Appellant attached a schedule to the Appeal Form (A1). In summary, the reasons for the Appeal detailed in Schedule 1 are as follows:

a. The Applicant did not submit any other application or amendment to the City, other than the original Applications, even though the Applications were revised;

b. There was insufficient public consultation;

c. Insufficient notice was provided to the public of proposed design changes;

d. There was a suspicious manner in which the issue of affordable housing arose and led to an increase in density significantly beyond what the Applications sought initially; and

e. General safety, environmental, and traffic concerns, and namely how the proposed development is inconsistent with the availability of suitable roads.

18As indicated in paragraph [8] of this Decision, the Appellant stated in Exhibit 4 and orally at the Motion that there are only two substantive issues at play in this Appeal, and on which the Tribunal was to make a Decision.

THE ISSUES TO BE ADDRESSED

Can the Tribunal, at a Hearing of this Appeal, make a determination on the Town’s decision regarding holding another public hearing once the Application was revised?

19One of the Appellant’s primary concerns, as outlined in his response to the Motion material (Exhibit 4 at page 6), was:

Under no circumstances can it be reasonably [be] held that the public is properly consulted on, and a public hearing held in respect of, an application when the approval of the municipality is for something materially different from what the Application sought and about which the public was advised.

20In fact, as stated in paragraph [8] of this Decision, in his responding materials to the Motion and at the oral hearing, he emphasized that a live issue exists for the Tribunal to adjudicate, namely the: “Failure of the Town to hold a public hearing on a materially and substantially different Application.” At the Motion, the Tribunal enquired as to whether this was one of the only two issues that the Appellant intended to present to the Tribunal, and he confirmed that it was. Other than this and the other issue mentioned in paragraph [8] of this Decision, and discussed below, the Appellant did not intend to bring forth, at a future Hearing, any other issues with these instruments.

21For the reasons described below, the Tribunal found that this issue cannot be addressed by this Tribunal.

22First, as submitted by the Applicant’s Counsel, s. 34(17) of the Act specifically prohibits the Tribunal from having the authority to review the public consultation requirements of an application. Specifically, this section states as follows:

(17) Where a change is made in a proposed by-law after the holding of the public meeting mentioned in subclause (12) (a) (ii), the council shall determine whether any further notice is to be given in respect of the proposed by-law and the determination of the council as to the giving of further notice is final and not subject to review in any court irrespective of the extent of the change made in the proposed bylaw.

[Emphasis added]

23This section could not be clearer that the determining body with respect to whether further public notice is required in light of changes to an application is Council and Council alone. As confirmed in the preamble to By-law No. 2023-098, Council determined that adequate notice and information had been provided to the public and that “a further meeting is not considered necessary in order to proceed with this Amendment.” Thus, at a future Hearing, this Tribunal will not be able to assess whether further public notice or public meetings were required as a result of the changes made to the Applications. Moreover, the Tribunal agreed with the submissions made by the Applicant’s Counsel that dissatisfaction with the planning process or its outcomes is not a legitimate land use planning ground upon which the Tribunal could allow an appeal.

24Second, in this case, as submitted by the Applicant’s and the Town’s Counsels, the Applications met all legislative requirements for a complete application. This was confirmed in the Town’s Report P2023-30 regarding these Applications, wherein Town Staff also confirmed that public consultations and notice were provided throughout the entire iterative planning process. As Ms. Rennie explained, the Town is not required to hold new public meetings for changes made to a development application. It is not uncommon that significant changes are made to a development application in comparison to the original application prior to a municipality approving it. Subsequent to the statutory meeting, there is no requirement in either local or provincial policy for new applications to be submitted each time there are changes or revisions made. It is entirely in the purview of the municipality as to whether the change is substantial enough to require new notice or a new meeting. Ms. Rennie opined that the public meeting notice provided in this case met all requirements within the Act as necessitated by the Applications.

25The Town’s Counsel explained that Council’s enactment of the ZBA and adoption of the OPA (for County approval) were supported by proper analysis and properly satisfied all procedural requirements under the Act. Moreover, as confirmed in the case of TDL Group Ltd. v. Toronto (City), [2004] O.M.B.D. No. 81 (at paragraphs 21 – 22), provided in Exhibit 3B, the notice of the public meeting or the meeting itself are not required to be perfect or utterly comprehensive. At paragraph 23 of the same case, it was indicated that any challenge to notice or meeting procedures will be undermined if there is no evidence that members of the public were actually misled or misunderstood the procedures, resulting in an actual decrease in public participation. In this case, no evidence was presented that members of the public were misled or misunderstood the procedure, or any evidence that the procedure followed was unusual or a statutory breach with adverse consequences occurred.

26Third, in response to the Appellant’s allegation that the Town failed to hold the necessary public meetings, Ms. Rennie explained the circumstances of the public meeting, which occurred in accordance with the requirements of the Act. A notice of public meeting was issued on January 5, 2023 and a formal public meeting was held on January 30, 2023 (“Meeting”). The Meeting occurred concurrently in person and via electronic means. Numerous members of the public provided written and oral input, including the Appellant, raising concerns which ranged from density, traffic, parking, and parkland dedication. Feedback was received and incorporated into the revision of the Applications and the Town Staff recommendation report to the Committee of the Whole.

27Thus, for these reasons, the Tribunal found that it did not have jurisdiction to make a determination on whether further public notices or meetings were required as a result of the changes made to the Applications. Moreover, there was no indication that a breach had occurred in these circumstances. It appeared that all statutory requirements were met.

28As a result of this finding, with respect to this aspect of the Appellant’s Appeal, and the first issue indicated in paragraph [8] of this Decision, the Tribunal found that it did not have a prospect of success as it lay outside of the Tribunal’s jurisdiction.

Is there reasonable prospect of success with respect to the issue of Holden Street and whether the plan of subdivision complies with the statutory regimes in that regard specifically?

29The next and only other main issue that the Appellant raised (in Exhibit 4 and orally at the Motion) as needing to be addressed by the Tribunal is with respect to Holden Street. Namely, as indicated in paragraph [8] of this Decision, “The non-compliance of the plan of subdivision, submitted in support of the OPA and ZBA, which intends to use Holden Street when Holden Street is not designated a suitable road.” Specifically, the Appellant’s position was that the instruments do not conform with the Town’s OP as the Proposed Development will have vehicle and pedestrian access to Holden Street, which is considered a local road. This contradicts the OP which requires developments to be along arterial and collector roads. As he explained in Exhibit 4 at page 9, the instruments in this case, and the Traffic Impact Study (“TIS”) that provided supporting materials for them, “presume that a significant portion of the development will use Holden Street which is a local road: Holden Street is neither an arterial nor collector road” [emphasis in original]. Moreover, this non-conformity would lead to parking and traffic impacts, contrary to the findings in the TIS.

30The Applicant’s Counsel submitted in response, that the Proposed Development will have access to both Sixth Street and Holden Street as outlined in the sworn Affidavits of Ms. Rennie. The Proposed Development is formed as a complete traffic and pedestrian plan with access to multiple nearby developments in the area. Sixth Street is an arterial road and since the Proposed Development has access on Sixth Street, there is no OP conformity issue, contrary to the Appellant’s assertions. Town Staff strongly supported multiple road access to the Subject Lands via Holden and Sixth Street for, amongst other things, fire and safety reasons.

31Ms. Rennie dealt with the Appellant’s parking and traffic concerns in her Affidavit sworn on May 7, 2024, explaining that neither was a concern, for the following reasons:

a. The TIS, dated May 13, 2023, assessed both the local road network, internal and external to the Subject Lands, and confirmed that the Applications can be accommodated within the existing road network;

b. In accordance with the TIS, the Proposed Development on the Subject Lands represented a reasonable traffic strategy. As the approved OPA and ZBA are a maximum unit count, further traffic mitigation issues, above and beyond what was described and submitted to the Town in the TIS, were not anticipated;

c. The OPA and ZBA, as approved, provided sufficient parking and would have minimal spillover effects on existing neighbourhoods. The current provision of parking represented good land use planning and efficient use of the Subject Lands;

d. Town Staff took no issue with the findings in the TIS. Staff’s recommendation to Town Council considered the traffic impacts and its conformity with both the County and Town OPs. Staff were well-informed and equipped to interpret and make recommendations to Council regarding traffic impacts especially considering the extensive history and multiple proposals on the Subject Lands;

e. As a condition of the DPOS, Town Staff will require further traffic studies to ensure that any future impacts caused by the approved instruments will be mitigated. It is unlikely that the slight increase in units on the Subject Lands will lead to any significant change in traffic impacts as compared to the findings in the TIS; and

f. The Subject Lands are highly accessible by way of the existing public street network. Sixth Street provides a major east west connection across the Town and Holden Street provides pedestrian and vehicle access to neighbouring subdivisions. As such, the proposed traffic strategy and road layout represent good land use planning.

32In her Affidavit sworn on May 21, 2024, Ms. Rennie reiterated that the “connections to Sixth Street and Holden Street provide safe connections as good planning process normally requires a connection between adjacent developments for both cars and pedestrians.”

33The Appellant did not put forward expert testimony outlining how the Proposed Development accessing both Holden Street and Sixth Street is contrary to of the policies in the Town’s OP. While the Appellant did not have the duty to do so, a topic which is discussed in further detail below, the result was that the prevailing testimony before the Tribunal was the uncontested testimony of Ms. Rennie.

34The Tribunal was convinced by Ms. Rennie’s testimony, and the supporting documentation, including the TIS, which confirmed that the access points provided in the Proposed Development were in conformity with the OP and resulted in good planning. Moreover, the Tribunal was convinced by Ms. Rennie’s testimony that there were no traffic and parking concerns that would sufficiently provide an issue with the Proposed Development and approved instruments. As a result, the Tribunal found that this issue would not have a reasonable chance of success at a future hearing.

35The above-noted and discussed issues were the totality of those that the Appellant planned to bring forth at a future Hearing, and the Tribunal found that neither had a reasonable chance of success.

Is there an Appeal of the OPA before the Tribunal?

36In the Notice of Appeal, the Appellant had indicated an intention to appeal the OPA. In fact, he had not specifically cited appealing the ZBA, though he had alluded to that in Schedule 1 of the Appeal Form (A1). However, as the Applicant’s Counsel submitted, the Appellant had in fact only appealed the ZBA, if that, because the OPA was only approved by the County, the approval authority, well after the Appeal had been filed. No one appealed the OPA after the County approved it, and with the appeal-period now expired, the OPA could no longer be appealed.

37The Appellant filed his Appeal on January 10, 2024. The County, the approval authority, issued its Notice of Decision approving the OPA on February 22, 2024 (“Approval Notice”). As indicated on this Approval Notice, the last day to appeal the County’s decision was March 13, 2024. As mentioned, no appeals were filed regarding the County’s decision and therefore the OPA is now in force and effect.

38The Appellant, in his Response to the Motion, argued as follows:

a. Town Council’s Notice of Passing of the ZBA and OPA were released on the same day. The Notice of the passing of the ZBA included the notification “Last Date of Appeal: January 10, 2024.” Thus, the Appellant submitted his Appeal within sufficient time to adhere to this deadline and had assumed that the same deadline applied to the Notice of passing of the OPA;

b. Understanding the fact that the County was the approval authority of the OPA is a “fine technicality which is not readily discernible to the lay person” and is “not expressly and clearly articulated in the Ontario Planning Act”;

c. The Appeal to the Town should apply to the County’s approval as well, since the grounds of Appeal are the same. In fact, he had assumed that the County would not have made a decision on the OPA until the Appeal was resolved;

d. Appealing the OPA earlier than the County’s approval was not prejudicial to the Applicant. Rather, dismissing the Appeal on this basis would be prejudicial and “unnecessarily punitive” to the Appellant; and

e. On page 9 of Exhibit 4, he stated, “In the event the Tribunal finds [the] Appellant has unintentionally made a procedural error, then he appeals to the Tribunal to grant leniency and permit the Appeal to procced” based on the arguments detailed above.

39In response, the Applicant’s Counsel submitted that an OPA approved by the Town cannot be appealed by any Party when the approval authority is an upper tier municipality. Only after approval by the County, as the upper-tier planning authority, is the instrument appealable under the Act. The Act does not provide opportunities to appeal and stay decisions of a lower tier municipality where the upper tier is granted planning authority. The Appellant’s failure to appeal the OPA is not a curable misstep, and the Tribunal lacks the jurisdiction to overcome statutory requirements to cure this omission. Moreover, the County’s Approval Notice very clearly outlined the proper appeal procedure, which the Appellant did not comply with.

40The Tribunal found that indeed the OPA had been approved by the County subsequent to the submission of the Appeal. Despite the Notice clearly outlining the appeal procedure, the Appellant had not submitted an appeal of the OPA. No other appeals had been submitted of the OPA. As such, the OPA is in full force and effect, and the Tribunal does not have the jurisdiction to overcome this.

41Moreover, it would not be fair or appropriate for the Tribunal to do so. While the Tribunal is sympathetic to the plight of self-represented litigants and may grant them some degree of accommodation for their circumstances, they cannot be excused from compliance with the law and statutory requirements, which apply equally to all Litigants and Parties. Moreover, while the Tribunal has flexibility in the application of its own Rules, the Tribunal does not have the jurisdiction to excuse Parties from compliance with statutory requirements set out in the Act. To allow the Appeal to proceed would, in effect, be permitting the Appellant to submit an Appeal outside of the statutory timeframe within which the Appeal must be filed. Statutory requirements and rules must be consistently applied and adhered to in order to ensure the appeal process is fair and just. In this case, the Appellant did not satisfy the mandatory requirements and timelines for submitting an appeal of the OPA. As such, there is no OPA appeal before the Tribunal to be adjudicated on at a future hearing.

Does the ZBA Appeal have a reasonable prospect of success?

42The Applicant submitted that the Notice of Appeal does not disclose any apparent land use planning grounds upon which the Appeal could be granted, and further, that the Appeal has no reasonable prospect of success.

43The Applicant relied on the seminal case of Toronto (City) v. East Beach Community Assn., 1996 CarswellOnt 5740 (O.M.B.), which identifies that the question on a motion to dismiss an Appeal without a Hearing is whether the reasons stated constitute genuine, legitimate, and authentic planning reasons (at paragraph 9). The Tribunal is to consider 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.

44In this subject case, the Tribunal agreed with the Applicant Counsel’s submissions that, while reference is made in the Notice of Appeal to the OPA and other Municipal instruments, the Appeal does not specifically address the statutory basis for appealing a ZBA or an OPA. Thus, in the absence of a properly constituted Appeal, both the OPA and ZBA are in force and effect and neither Appeal has a reasonable prospect of success at a future hearing.

45As explained in the case of Orchard v. London (City), 2022 CanLII 88416 (OLT), provided by the Town’s and the Applicant’s Counsel, at paragraph 47:

[T]he Appellant is required to provide explanations or reasons to be adjudicated at a merit hearing that could lead to a finding of inconsistency with the PPS or lack of conformity with the City OP. […] The language in the [Planning Act] is mandatory — the notice must (emphasis added) explain how the decision or the ZBA is inconsistent with the PPS or fails to conform with the City OP. The Tribunal has no discretion in this regard and the Motion to Dismiss must be allowed on this ground alone.

46In this case, the Notice of Appeal does not specify those grounds. Moreover, the Appellant confirmed at the Motion Hearing that he was not raising any issues with consistency with provincial policies or addressing the statutory tests, and his concerns with the Appeal were only those noted at paragraph [8] of this Decision. As such, the Appellant did not identify genuine, legitimate, or authentic planning reasons to be addressed at a future hearing.

47The Applicant’s Counsel submitted that, while the Appeal named planning matters at issue, for example affordable housing, this identification alone is insufficient to qualify as a land use planning ground upon which the Tribunal could base a Decision. The Tribunal agreed and was also persuaded by the case of ACORN v. Ottawa (City), 2022 CanLII 42275 (ON LT) (provided by the Town and relied on by the Applicant), at paragraph 25, which indicated that the fact that planning language is deployed does not guarantee that the concerns have substance. In this case, the Notice of Appeal does not set out any sections or policies of the Provincial Policy Statement, 2020 (“PPS”) and/or official plans, let alone provide any reasons which could lead to a finding of inconsistency and/or non-conformity with any applicable instruments.

48Moreover, Ms. Rennie testified that, contrary to the unsubstantiated allegations in the Notice of Appeal, the approved instruments meet all the required tests and policy objectives, and represent good land use planning in the public interest. Her Affidavits also summarize the extensive review conducted by other expert professionals in evaluating matters such as urban design, affordable housing, traffic, and parking.

49In contrast, the Appellant did not provide any clear challenge to these conclusions on which the Tribunal could find otherwise, nor did he provide the particulars of how he planned to do so in a contested hearing. He made no reference to any part of the PPS, Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”), or local OP posing issues of conformity or consistency as required by ss. 17(25.1) or 34(25.1) of the Act. As mentioned, at the Motion the Appellant confirmed that he did not intend to raise issues with respect to provincial policies. It is important to note that the OPA is in force and effect and as a result, there is no reasonable basis for the Appellant to argue non-conformity of the ZBA with the Town’s OP even if the Tribunal found there was a valid ZBA appeal.

50In summary, the Tribunal was convinced by the uncontested evidence of Ms. Rennie and the accompanying submissions of the Applicant’s Counsel. The Tribunal was convinced that the Appellant had not raised genuine, legitimate, or authentic planning issues to be addressed at a future hearing. Therefore, the Tribunal found that the Appeal could be appropriately dismissed pursuant to s. 19(1)(c) of the OLTA, on the basis that it had no reasonable prospect of success.

Expert Evidence

51In addition to the above discussions, the issue was raised with respect to whether the Appellant’s lack of calling expert evidence was a fundamental flaw. While the Appellant is under no obligation to call expert evidence, the lack of addressing same is fatal to the Appeal. This finding was supported by the case of 2355440 Ontario Inc. v. City of London, 2022 CarswellOnt 12640 (OLT) (“Ontario Case”), provided by both the Town and the Applicant, wherein the Tribunal adjudicator found that an Appellant is obligated and expected to address the expert evidence provided. As clarified at paragraph 31 of the Ontario Case, an Appellant bringing an appeal is required to put forward “a legitimate evidentiary case to support the appeal,” with one relevant factor being whether the appellant intends to call expert witnesses.

52In this particular case, the Appellant did not retain an expert to respond to the expert testimony provided by Ms. Rennie. He was not obligated to do so. However, as a result, this had the effect of the only expert evidence provided being in support of the Proposed Development and the instruments facilitating it. Moreover, he did not adequately challenge the evidence provided by Ms. Rennie, nor did he present adequate evidence in support of his Appeal. Thus, the Appellant did not provide reliable evidence which would support the position that legitimate planning grounds or issues remain to be adjudicated at a contested hearing.

SUMMARY OF FINDINGS

53Based on the reasons and findings above, the Tribunal determined that the Appellant’s appeal should be dismissed by the Tribunal without a hearing pursuant to s. 19(1)(c) of the OLTA as the proceeding has no reasonable prospect of success. The Tribunal also relied on the grounds outlined in ss. 17(45)3 and/or 34(25)3 of the Act.

54On the specific issues before it, as detailed above, the Tribunal found:

a. It does not have jurisdiction to make a determination on Town Council’s decision to refrain from holding another public hearing once the Application was revised. It is precluded to do this by s. 34(17) of the Act. Moreover, in this case, no evidence was provided that the Town breached its statutory requirements or that additional Notices or meetings were required;

b. There is not a reasonable prospect of success, at a future hearing, with respect to the issue of Holden Street and whether the plan of subdivision complies with the statutory regimes in that regard specifically. The plan of subdivision is not subject to this Appeal. With respect to access to Holden Street, no sufficient evidence was provided that it did not conform with the applicable policies and plans. The only planning evidence before the Tribunal was that of Ms. Rennie, who confirmed that the Proposed Development, including its proposed access points, conformed with all policies and plans, met the statutory requirements, and the access points constituted good planning. Moreover, the TIS supported the use of Holden Street as an access point;

c. There is no valid appeal of the OPA before the Tribunal since the Appellant submitted his Appeal before the OPA was approved by the County. He did not submit an Appeal of the County’s decision; and

d. The ZBA Appeal does not have a reasonable prospect of success. If the ZBA Appeal proceeds to a hearing, the Tribunal would assess it based on the statutory and legal test for whether it is appropriate and good planning. Specifically, the Tribunal would assess whether the ZBA is consistent with the PPS, conforms with the Growth Plan, and conforms with the relevant and applicable OPs. The Appellant confirmed that he did not intend to raise issues with respect to the PPS and the Growth Plan. The ZBA conforms with the OP because the OPA is in force and effect (having been approved by the County). Ms. Rennie confirmed that the ZBA meets all legislative tests and constitutes good planning. As a result, the appeal has no reasonable prospect of success.

55The Tribunal notes that the threshold to grant a Motion to Dismiss is high, and that dismissal of this type should not be granted lightly. However, for the reasons set out above, the Tribunal found that the Applicant met the burden of establishing that the Appeal grounds do not disclose genuine, legitimate, and authentic planning grounds worthy of adjudication. This was, therefore, an appropriate case for dismissal pursuant to ss. 17(45)3 and 34(25)3 of the Act and s. 19(1)(c) of the OLTA.

ORDER

56THE TRIBUNAL ORDERS that the motion is granted, and the Appeal by Ian Cartwright is dismissed.

57THE TRIBUNAL FURTHER ORDERS that, in accordance with Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, this Order is effective as of May 22, 2024.

“Bita M. Rajaee”

BITA M. RAJAEE

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.