Bill Glover et al v. Simcoe (County), 2024 CanLII 94879

Ontario Land Tribunal

ISSUE DATE: September 23, 2024

CASE NO(S).: OLT-24-000037

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Bill Glover

Appellant: Oro-Medonte Association of Responsible STRs

Appellant: Stephen Schroeter

Subject: Proposed Official Plan Amendment

Description: To institute a new official plan for Oro-Medonte

Reference Number: OM-OP-2201

Property Address: Township-Wide

Municipality/UT: Oro-Medonte/Simcoe C

OLT Case No.: OLT-24-000037

OLT Lead Case No.: OLT-24-000037

OLT Case Name: Bill Glover et al v. Simcoe (County)

Heard: July 26, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Carriage Country Club Inc.

Andrew Jeanrie

HSV GP Inc.

Andrew Jeanrie

Oro-Medonte Association of Responsible STRs

Jonathan Nehmetallah

Barry Sookman

Township of Oro-Medonte

Christopher J. Williams

Laura Dean

County of Simcoe

Will Thomson

MEMORANDUM OF ORAL DECISION DELIVERED BY S. Dixon ON July 26, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision and Order arises from the third Case Management Conference ("CMC") held regarding multiple appeals filed pursuant to s. 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended ("Act"), concerning a municipally initiated comprehensive update to the Township of Oro-Medonte ("Township") Official Plan ("New OP").

2The New OP was adopted by the Township on October 5, 2022 and approved by the County of Simcoe ("County") on November 14, 2023. Five appeals were initially filed by:

• Bill Glover;
• Stephen Schroeter;
• Oro-Medonte Association of Responsible STRs ("Association");
• Carriage Country Club Inc.; and
• HSV GP Inc.

3The appeals by Bill Glover and Stephen Schroeter were withdrawn prior to the first CMC for this matter.

APPEAL STATUS OF THE ASSOCIATION

Submissions at the Second CMC

4On June 6, 2024, prior to the second CMC, the Cutting Red Tape to Build More Homes Act, 2024 ("Bill 185") received Royal Assent. At the second CMC, all Parties – including the Association – agreed and submitted to the Tribunal that the amendments to the Act enacted through Bill 185 resulted in the deemed dismissal of the Association's appeal. Accordingly, there was consensus among the Parties that only Carriage Country Club Inc. and HSV GP Inc. remained as appellants to these proceedings.

5In light of the consensus that the Association's appeal had been deemed to be dismissed by virtue of Bill 185, the Association requested that they be added as a party to these proceedings. The Tribunal, having turned to Rules 8.2 and 8.3 of the Tribunal's Rules of Practice and Procedure ("Rules"), directed the Association to submit a formal party status request identifying which of the remaining appellants' issues they intended to shelter under. The Tribunal then set out a number of procedural directions related thereto, which were reflected in the Tribunal's Memorandum of Oral Decision and Order regarding the second CMC, issued on June 28, 2024 ("June 28 Order").

Subsequent Submissions

Written Submission of the Association

6Prior to the third CMC, the Tribunal received correspondence from the Association stating their position that the Association's appeal had not, in fact, been dismissed by virtue of Bill 185. Therefore, in their submission, there was no need for the Association to make a request to be added as a party. In their correspondence, the Association directed the Tribunal to s. 17(24.0.2) of the Act ("Transition Provision"), which states the following:

Same, retroactive effect

(24.0.2) An appeal under subsection (24) made before the day subsection 3 (1) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force by a person or public body not described in paragraph 1, 1.1, 1.2, 2, 3 or 4 of subsection (24) of this section as it reads on the day subsection 3 (1) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force shall be deemed to have been dismissed on that day unless,

(a) a hearing on the merits of the appeal had been scheduled before April 10, 2024; or

(b) a notice of appeal was filed by a person or public body listed in paragraph 1, 1.1, 1.2, 2, 3 or 4 of subsection (24) of this section as it reads on the day subsection 3 (1) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force in respect of the same plan to which the appeal relates.

7Directing the Tribunal to subparagraph (b) of the Transition Provision, the Association submitted that a single valid appeal filed by a registered owner (i.e., each of the appeals filed by Carriage Country Club Inc. and HSV GP Inc.) before June 6, 2024 (i.e., the day subsection 3(1) of Schedule 12 to Bill 185 came into force), was sufficient to prevent the deemed dismissal of the appeal by the Association.

8The Association's correspondence also requested an opportunity to appear and make submissions regarding their position at the third CMC.

Oral Submissions of the Association

9Notwithstanding the Township's position at the outset of the third CMC that the Association had "no status whatsoever" and should therefore not be entitled to make any submissions to the Tribunal, the Tribunal permitted the Association to make submissions respecting the effect of the Transition Provision advanced by way of their written correspondence.

10Counsel for the Association submitted that, notwithstanding their prior concurrence with the Parties at the second CMC that the Association's appeal was captured by the provisions of Bill 185 that result in the deemed dismissal of most third party appeals, the Association had overlooked – and therefore did not address – the Transition Provision at the time of the second CMC. Had the Tribunal heard submissions pertaining to the Transition Provision, they submitted, a different conclusion (i.e., that the Association's appeal was not deemed to be dismissed by the Act), would likely have been reached.

11The Association further submitted that the language of subparagraph (b) of the Transition Provision requires only that "a notice of appeal" (emphasis added) be filed by a person or public body listed in paragraph 1, 1.1, 1.2, 2, 3 or 4 of subsection (24) in respect of the same plan (i.e., the New OP) to which the appeal (being the appeal by the Association) relates. The notice of appeal filed by either Carriage Country Club Inc. or HSV GP Inc. in respect of the New OP, the Association proffered, constitutes a notice of appeal in respect of the same plan to which the Association's appeal relates.

12Finally, counsel for the Association submitted that the Tribunal's Rules contemplate and provide the Tribunal with wide discretion regarding a correction of errors, including Rule 19.1(l) of the Rules regarding the use of CMCs to "deal with any other matter that may assist in a fair, just, expeditious and cost-effective resolution of the issues."

13Accordingly, it was the Association's position that the Tribunal ought to reconsider the June 28 Order under either Rule 19.1(l), Rule 24.4 (regarding the correction of minor errors made in a Decision or Order), or if necessary, a formal request for review of the June 28 Order by the Chair of the Tribunal pursuant to Rule 25 of the Rules.

Submissions of the Township

14In addition to the Township's submission that the Association had "no status whatsoever" and therefore should not be entitled to make any submissions to the Tribunal at the third CMC, the Township further submitted that the Tribunal had dismissed the Association's appeal in the June 28 Order, that no subsequent request for party status had been submitted by the Association by the procedural deadlines established therein, and that no request for a review of the June 28 Order had been made pursuant to Rule 25 of the Rules.

15The Tribunal was directed to s. 22 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 ("OLTA"), which states:

Decisions final

22 Except as provided for in sections 23 and 24, orders and decisions of the Tribunal are final and binding.

16Accordingly, it was the position of the Township that the June 28 Order is final and binding except for two exceptions, being ss. 23 and 24 of the OLTA, which state, in part:

Review

23 Unless another Act specifies otherwise, the Tribunal may review, rescind or vary any order or decision made by it in accordance with the rules.

Appeal

24(1) Unless another Act specifies otherwise, an order or decision of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion in accordance with subsection (3), but only on a question of law.

17Counsel for the Township proffered that the June 28 Order is quite clear, specifically at Paragraph [4] to same, which states, in part:

[4] […] At the second CMC, the Parties and the Association agreed that the amendments to the Act enacted through Bill 185 resulted in the dismissal of the Association's appeal. Accordingly, only the following Parties to these proceedings remained at the commencement of the second CMC:

• Carriage Country Club Inc.;
• HSV GP Inc.;
• the Township; and
• the County.

18In the Township's view, the Association had ample time between the second and third CMCs to either file a request for party status as per the directives in the June 28 Order, or to file a request for review of the June 28 Order pursuant to s. 23 of the OLTA and Rule 25 of the Rules. However, neither request was made by the Association.

19The Township further submitted that the Association has no status until – and only if – the June 28 Order is stayed by the Chair of the Tribunal in accordance with Rule 25 of the Rules.

20Regarding the Transition Provision, the Township submitted that the thrust and intent of Bill 185 is to limit third party appeals. Directing the Tribunal to subparagraph (b) of the Transition Provision, counsel for the Township proffered that the exception relates to "the" appeal, not "any" appeal, and that the provision applies separately to each individual appeal that was filed (following emphasis added):

(b) a notice of appeal was filed by a person or public body listed in paragraph 1, 1.1, 1.2, 2, 3 or 4 of subsection (24) of this section as it reads on the day subsection 3 (1) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force in respect of the same plan to which the appeal relates.

Submissions of the County

21Counsel for the County generally agreed with the submissions of the Township, adding that the Association's appeal was dismissed by the June 28 Order, regardless of whether the Association believed that was done in error or not.

Submissions of Carriage Country Club Inc. and HSV GP Inc.

22Counsel for Carriage Country Club Inc. and HSV GP Inc. took no position on the matter.

Findings

Tribunal's Authority to Hear Submissions

23With respect to the Township's assertion that the Association had no status whatsoever and therefore was not entitled to make any submissions to the Tribunal at the third CMC, the Tribunal recognises that s. 17 of the OLTA states the following:

Limit on non-party participation

17 Except as may be provided for under this or any other Act, a person who is not a party to a proceeding may make submissions to the Tribunal with respect to the proceeding in writing only.

24Accordingly, if the Association is not a party, their submissions ought to be limited to writing only – a provision the Association adhered to when they provided their written submissions to the Tribunal in advance of the third CMC. However, those submissions brought into question whether the Association had maintained their party status as an appellant by virtue of the Transition Provision. Should it be deemed by the Act that the Association has maintained their status as an appellant, then their submissions needn't be limited to writing only.

25In either scenario, s. 18(1)(a) of the OLTA provides the Tribunal with the authority to examine, at any stage of a proceeding, a party to the proceeding, a witness in the proceeding, or any person other than a party who has made a submission to the Tribunal with respect to the proceeding:

Witnesses and evidence

18 (1) At any stage of a proceeding, the Tribunal may,

(a) examine any of the following persons:

(i) a party to the proceeding,

(ii) a witness in the proceeding, or

(iii) a person who has made a submission to the Tribunal with respect to the proceeding, other than a party;

(b) require a party to the proceeding to produce evidence or a witness for examination by the Tribunal; or

(c) require a person referred to in subclause (a) (iii) to produce evidence for examination by the Tribunal.

26Further, s. 12(2) of the OLTA establishes the Tribunal's mandate to adopt any practices that offer the best opportunity for a fair, just, and expeditious resolution of the merits of the proceedings (following emphasis added):

Fair, just and expeditious resolution

(2) The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.

27In turning to the Rules, the Tribunal makes note of Rules 1.3 and 1.6, which state (following emphasis added):

1.3 Interpretation of the Rules These Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.

1.6 Tribunal May Exempt From Rules The Tribunal may grant all necessary exceptions from these Rules or from any procedural order, or grant other relief as it considers necessary and appropriate, to ensure that the real questions in issue are determined in a fair, just, expeditious and cost-effective manner.

28Having read the written submissions of the Association, the Tribunal deemed it necessary to hear further submissions regarding same, including submissions from all Parties regarding the Transition Provision, to ensure that the real questions in issue are determined in a fair and just manner.

Effect of the Transition Provision

29The Tribunal finds that, notwithstanding the consensus among counsel to the Parties (including the Association) at the second CMC, nor the Tribunal's procedural directions in the June 28 Order related thereto, the appeal by the Association was not deemed to be dismissed by virtue of Bill 185.

30In coming to this finding, the Tribunal turns to the Transition Provision and notes the following emphasised language:

Same, retroactive effect

(24.0.2) An appeal under subsection (24) made before the day subsection 3 (1) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force by a person or public body not described in paragraph 1, 1.1, 1.2, 2, 3 or 4 of subsection (24) of this section as it reads on the day subsection 3 (1) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force shall be deemed to have been dismissed on that day unless,

(a) a hearing on the merits of the appeal had been scheduled before April 10, 2024; or

(b) a notice of appeal was filed by a person or public body listed in paragraph 1, 1.1, 1.2, 2, 3 or 4 of subsection (24) of this section as it reads on the day subsection 3 (1) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force in respect of the same plan to which the appeal relates.

31The Tribunal finds that "the appeal" referenced in both subparagraphs (a) and (b) of the Transition Provision refers to "An appeal" at the beginning of the Transition Provision.

32Read in the context of the case at hand, the Association's appeal (being an appeal by a person not described in paragraph 1, 1.1., 1.2, 2, 3, or 4 of s. 17(24)) shall be deemed to have been dismissed unless:

a) a hearing on the merits of the Association's appeal had been scheduled before April 10, 2024 (it had not); or

b) a notice of appeal was filed by a person listed in paragraph 1, 1.1., 1.2, 2, 3, or 4 of s. 17(24) in respect of the same plan to which the Association's appeal relates.

33To interpret "the appeal" in subparagraph (b) of the Transition Provision as meaning "the appeal by a person or public body listed in paragraph 1, 1.1, 1.2, 2, 3 or 4 of s. 17(24)" would be to create an absurd and meaningless result, whereby the Transition Provision would have the effect, in the case at hand, of dismissing the appeal by the Association unless:

(b) a notice of appeal was filed by [Carriage Country Club Inc.] in respect of the same plan to which the appeal [by Carriage Country Club Inc.] relates.

34The Tribunal therefore prefers and adopts the interpretation of the Transition Provision advanced by the Association. The notices of appeal filed by Carriage Country Club Inc. and HSV GP Inc. each constitute a notice of appeal filed by a person listed in paragraph 1.2 of s. 17(24) (i.e., the registered owner of any land to which the plan would apply) in respect of the same plan (i.e., the New OP) to which the Association's appeal relates. Accordingly, the appeal by the Association meets the tests of subparagraph (b) of the Transition Provision and has therefore not been deemed to be dismissed by the legislation.

35It is important to note that the Transition Provision does not provide the Tribunal with any discretionary authority to dismiss a third party appeal. An appeal is either deemed to be dismissed by the Transition Provision, or it is not.

Effect of the June 28 Order

36The Tribunal agrees with the submissions of the Township that the June 28 Order is final and binding pursuant to s. 22 of the OLTA. However, the Tribunal does not agree with the submissions of the Township and County that the June 28 Order has the effect of dismissing the Association's appeal.

37The June 28 Order acknowledges and relies on the collective submissions of the Parties that the Association's appeal had been deemed to be dismissed by virtue of Bill 185 and, on that basis, sets out procedural directions regarding a potential subsequent party status request by the Association. However, the June 28 Order does not order the dismissal of the Association's appeal, nor do the Tribunal's summary of the Parties' submissions at the second CMC or the procedural directives related thereto constitute a dismissal. Accordingly, the Tribunal is not bound to treat the Association's appeal as being dismissed.

38Notwithstanding this finding, should one interpret the June 28 Order as having the effect of dismissing the Association's appeal, the Tribunal again turns to s. 22 of the OLTA, which provides that the June 28 Order is final and binding, except as provided for in ss. 23 and 24. Section 23 of the OLTA permits the Tribunal to review, rescind, or vary any order or decision made by it in accordance with the Rules. Rule 19 of the Rules sets out rules for CMCs, including orders resulting from same. Rule 19.9 states (following emphasis added):

19.9 Hearing Member Bound The Tribunal Member conducting the hearing or any subsequent hearing event is bound by the order resulting from the case management conference unless that Member is satisfied that there is good reason to vary the order.

39Accordingly, even if the June 28 Order is interpreted as having the effect of dismissing the Association's appeal, the Tribunal is satisfied that, based on the written and oral submissions made to the Tribunal before and at the third CMC, there is good reason to vary the June 28 Order in accordance with ss. 22 and 23 of the OLTA and Rule 19.9 of the Rules.

Conclusions

40The Tribunal finds that, notwithstanding the prior submissions of the Parties, including the Association, nor the procedural directions of the Tribunal resulting from those submissions, the Association's appeal has not been deemed to be dismissed by virtue of the Act. The Association therefore maintains its full statutory rights and responsibilities as an appellant party to these proceedings.

41Given the above finding, the Tribunal further finds that the procedural directives established by the Tribunal in the June 28 Order regarding a subsequent party status request by the Association are effectively irrelevant and unnecessary.

SETTLEMENT

42On July 2, 2024, the Township advised the Tribunal and the Parties (including the Association) that a settlement of the appeals by Carriage Country Club Inc. and HSV GP Inc. had been reached with the Township ("Settlement"). Materials pertaining to the Settlement were subsequently submitted to the Tribunal and the Parties (including the Association) on July 25, 2024 (the day before the third CMC) along with a request by the Township to adjourn the third CMC and have the Settlement considered by the Tribunal by way of Written Hearing. Given the timing of the request (late in the day the day prior to the third CMC), the adjournment request was denied.

43At the third CMC, the Township requested that the Tribunal either approve the Settlement at the third CMC, or as previously requested, schedule a Written Hearing to consider same. Counsel for the County stated their general support for either approach.

44Counsel for the Association submitted that they do not oppose the Settlement as it relates to the appeals by Carriage Country Club Inc. and HSV GP Inc. However, they do not support the language of the Draft Order submitted to the Tribunal with the Settlement materials that, in their submission, would have the effect of modifying and approving the New OP on a Township-wide basis.

45In considering the Tribunal's findings with respect to the Association's status, the limited time that both the Tribunal and the Association had to review and fully consider the Settlement materials, the Association's concern with the approval of the New OP on a Township-wide basis, and the Tribunal's mandate to offer the best opportunity for a fair and just resolution of the merits of these proceedings, the Tribunal elected to neither hear evidence regarding the merits of the Settlement nor to schedule a Written Hearing pertaining to same at the time of the third CMC. Rather, the Tribunal directed the Parties to provide the Tribunal with a future status update, inclusive of the following:

a) A draft procedural order and issues list containing the issues of all Parties, including the Association;

b) The anticipated number of hearing days should a contested hearing on the merits be required; and

c) The availability of counsel to attend a hearing on the merits.

46The Tribunal further clarified that, if appropriate, the Parties may request a hearing date(s), in writing or otherwise, to consider the settlement of certain appeals should the Parties find that a settlement of any of the appeals can be advanced without the need for a contested hearing.

47The Parties are hereby directed to provide the Tribunal with the aforementioned status update by no later than Friday, October 18, 2024.

ORDER

48THE TRIBUNAL ORDERS that the appeal by the Oro-Medonte Association of Responsible STRs ("Association") has not been deemed to be dismissed by the Planning Act, nor by an order of the Tribunal. The Association maintains its full rights and responsibilities as an Appellant Party to these proceedings.

49THE TRIBUNAL ORDERS that the Parties are to provide the Tribunal with a status update of the appeals by no later than Friday, October 18, 2024.

"S. Dixon"

S. DIXON

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.