Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 25, 2024

CASE NO(S).: OLT-24-000035

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

Applicant: Township of Muskoka Lakes

Appellants: Miller Paving Limited, Our Muskoka Stakeholders Association, Elizabeth & Anthony Lippa, and Leslie Carr

Subject: Proposed Official Plan Amendment

Description: OPA - Ensure the Official Plan Conforms to Provincial and District Policy

Reference Number: 2022-171/PLN-7-14/09/23

Property Address: Town Wide

Municipality/UT: Muskoka Lakes/Muskoka

OLT Case No.: OLT-24-000035

OLT Lead Case No.: OLT-24-000035

OLT Case Name: Miller Paving Limited et al. v. Muskoka (District)

Heard: September 11, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Miller Paving Limited, Our Muskoka Stakeholders Association, and Leslie Carr	Marc Kemerer
Elizabeth Lippa	John Ewart
Township of Muskoka Lakes	Edward Veldboom
District Municipality of Muskoka	Wayne Fairbrother Jennifer Savini (in absentia)
Friends of Muskoka, Leonard Lake Stakeholders Association, and Muskoka Lakes Association	Lee English Piper Morley (in absentia)
Skeleton Lake Cottagers Organization Inc.	David Donnelly

MEMORANDUM OF ORAL DECISION DELIVERED BY David Brown ON SEPTEMBER 11, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a second Case Management Conference (“CMC”) with respect to Appeals filed by Miller Paving Limited (“MPL”), Our Muskoka Stakeholders Association (“OMSA”), Leslie Carr (“Carr”), and Elizabeth Lippa (“Lippa”) (together, the “Appellants”) pursuant to s. 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) against the District Municipality of Muskoka’s (“District”) approval, as modified, of the new Township of Muskoka Lakes’ (“Township”) Official Plan (“TMLOP”).

2The TMLOP was approved by the Township on October 30, 2022. The District reviewed and approved the TMLOP, with modification, on November 20, 2023. The TMLOP provides a framework to manage growth and physical change within the Township by establishing updated goals, objectives, and policies to guide decision-making in the Township affecting land use planning through to the year 2046.

3A proposed agenda for the CMC was submitted identifying the matters to be addressed. The Parties consented to the proposed agenda.

STATUS REQUESTS

4The Tribunal received a Participant Status Request from Ross Earl (Exhibit 1). Tom Newman attended on behalf of Mr. Earl. The Parties raised no concerns with the request for Participant status from Mr. Earl. The Tribunal, having reviewed Exhibit 1 notes that Mr. Earl is a permanent resident of the Township and has an interest in the policies applying to aggregate extraction in the Township. His concerns relate to air quality and the setbacks of aggregate pits from residential properties and lakes and Mr. Earl has been involved in the public process leading up to the approval of the TMLOP. The Tribunal grants Mr. Earl Participant status in these proceedings.

5The Tribunal also considered the request for Participant status received at the previous CMC from Christine Condy on behalf of Three Mile Lake Association (“TMLA”). The Participant Status Request Form was marked as Exhibit 8 at the previous CMC. Ms. Condy experienced technical issues at the previous CMC and was unable to address the request for status. Ms. Condy was in attendance and confirmed that she is the President of the TMLA and that TMLA is an incorporated entity. The Parties raised no concerns with the request for Participant status from TMLA. TMLA has an interest in the Appeal by OMSA, specifically the policies affecting development on Three Mile Lake that incorporate the recommendations from the Lake Management Plan prepared to address the natural features of Three Mile Lake. The Tribunal, having considered the request and the interests outlined by TMLA set out in their request, grants Participant status to TMLA in these proceedings.

BILL 185 MOTION(S)

6Mr. Veldboom advised that the Township is requesting a date for the consideration of a Motion.

7The Township received a copy of a letter from the Tribunal dated July 19, 2024, addressing the Cutting Red Tape to Build More Homes Act, 2024, S.O. 2024, c. 16 (“Bill 185”) and the validity of the Appeals before the Tribunal (Exhibit 2). The letter explained that the Tribunal has determined that there is at least one of the Appeals filed which meets the revised criteria for a person having the right to appeal a decision under s. 17(36) of the Act and the transitional provisions included in Bill 185. The letter continued to advise that, “all appeals in respect of 2022-171/PLN-7-14/09/23 will proceed.”

8The Township questions the validity of the Appeal filed by OMSA in light of the changes to the Act arising from Bill 185 and this is the subject of the proposed Motion.

9Mr. Kemerer, on behalf of OMSA, responded that the Tribunal has recognized OMSA as a bona fide Party in these proceedings. The Tribunal is considering a similar motion on another matter and Mr. Kemerer recommended that the consideration of the Township’s Motion be held in abeyance until the other matter is considered and a decision made.

10Mr. Donnelly, on behalf of Skeleton Lake Cottagers Organization Inc., contends that Bill 185 is clear and the Appeal of OMSA is dismissed. Should OMSA wish to continue as a Party in these proceedings, he submitted that OMSA must bring a Motion requesting Party status and shelter under the issues of the other Appellants.

11The remaining Parties advised that they would respond to any Motion filed with the Tribunal, if appropriate to do so.

12The Tribunal having considered the submissions from Counsel, finds that the validity of the OMSA Appeal is a threshold issue and must be determined before the matter proceeds. The issues identified by OMSA in their draft list of issues are substantive and will have a significant impact on the length of the Hearing and the nature of the evidence and witnesses to be proffered by the Parties.

13The Tribunal schedules a Video Hearing on Wednesday, October 30, 2024, at 10 a.m. to consider the Motion of the Township.

14Rule 10 of the Tribunal’s Rules of Practice and Procedure shall govern the filing requirements for the pleadings.

BIFURCATION OF THE HEARING

15Mr. Veldboom explained that there have been discussions with respect to separating two Appeals, the MPL and Lippa Appeals, from the balance of the Appeals as these two Appeals are specific to the Mineral Aggregate Resource Polices contained within the TMLOP. He further explained that the Township is securing separate Counsel to address the Appeals of the Mineral Aggregate Resource Policies. Bifurcation will leave the Carr Appeal, which he described as a site-specific Appeal, and the OMSA Appeal.

16The Parties generally supported bifurcation of the Hearing to separate the Appeals pertaining to the Mineral Aggregate Resource Polices, however a concern was raised that the Issues List (“IL”) should be finalized before scheduling a hearing date so that the Parties and Participants know the matters in issue.

17The Tribunal finds that the bifurcation of the Hearing would be an appropriate consideration once the IL is finalized and the length of the Hearing has been proposed. This matter can be considered by the Tribunal at a future CMC once the IL has been finalized.

PROCEDURAL ORDER AND ISSUES LIST

18The Tribunal’s Order issued May 8, 2024, in respect of this matter, directed, in paragraph [61], that a draft Procedural Order (“PO”) and IL be submitted to the Tribunal on or before September 4, 2024. The expectation of the Tribunal was that Parties would collaborate and provide a draft PO and IL for consideration at this CMC. While four separate lists of issues were provided, the Tribunal understands that there was little or no consultation with the Parties and no PO or consolidated IL was provided. The Tribunal advised that if the Parties were unable to comply with the date established in the direction from the previous CMC, the Parties should have, at a minimum, advised the Tribunal that the date would not be met and provide reasons for same. Directions provided by the Tribunal are to be complied with and Counsel are expected to comply with such directions.

19A review of the list of issues provided does not indicate the nature of the issue and could be described as vague. The Tribunal expects that issues are identified in a manner that provides a description of the nature of the issue and the concern/objection with the matter such that the Tribunal can make a determination once the evidence has been proffered on both sides of the matter. The Tribunal is not satisfied, in this instance, that simply quoting a policy reference and questioning the conformity or consistency is sufficient to form an issue for adjudication by the Tribunal.

20The Tribunal schedules a CMC to be held on Monday, January 13, 2025, at 9 a.m. by video to consider a finalized IL, a draft PO, and to set a hearing date(s) for the Appeals to be heard.

[21] The Hearing and CMC are scheduled to proceed by video as follows: October 30, 2024 at 10 a.m. (one-day Motion Hearing) GoTo Meeting: https://global.gotomeeting.com/join/656004293 Access code: 656-004-293 Audio-only telephone line: +1 (647) 497-9373 or (Toll-free) 1-888-299-1889 Audio-only access code: 656-004-293

January 13, 2025 at 9 a.m. (one-day CMC) GoTo Meeting: https://global.gotomeeting.com/join/687587165 Access code: 687-587-165 Audio-only line: +1 (647) 497-9373 or (Toll-free) 1-888-299-1889 Audio-only access code: 687-587-165

22Parties and/or Participants and/or Observers are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections.

23Parties and/or Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

24Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line.

25Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

26The Tribunal directs that the Parties are to provide an IL to the Tribunal by Friday, December 20, 2024.

27Further, the Tribunal directs that the Parties collaborate to provide, to the Tribunal by Friday, December 20, 2024, blocks of dates during which all Parties, including their Counsel and Witnesses, are available for a Hearing(s) of the merits of the Appeals for the purposes of scheduling said hearing(s).

28Further, the Tribunal directs that the Parties are to provide a draft PO to the Tribunal by Wednesday, January 8, 2025.

MEDIATION

29The Tribunal having reviewed the Notices of Appeal filed by the Appellants observed that two of the Appeals are specific to the Mineral Aggregate Resource Polices, one Appeal is specific to the Recreational Carrying Capacity Policy E7, and the remaining Appeal outlines numerous policies at issue. The Tribunal recommends that the Township and the District initiate discussions with the Parties to narrow or scope issues with an aim to finding a settlement of some or all of the matters at issue in the Appeals. The Tribunal acknowledges that the finalization of an IL will facilitate these discussions, however, the Tribunal notes that the sooner the discussions commence the more effective narrowing and scoping of the issues and creation of the IL will be.

30Counsel for all Parties indicated a willingness to establish a dialogue with the Township and the District to explore possible settlements of the Appeals.

31The Tribunal notes that the next CMC is four months from the date of this CMC and that should provide ample time for the Parties to engage in discussions and determine if Mediation is an option to resolve any remaining issues.

ORDER

32THE TRIBUNAL ORDERS THAT Ross Earl and Three Mile Lake Association are granted Participant status in these proceedings.

33AND THE TRIBUNAL ORDERS the directions contained in this Decision.

34There will be no further notice and this Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.

“David Brown”

DAVID BROWN

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.