Lyons Big Tub Resort Marina Ltd., Big Tub Harbour Citizens Committee v. Northern Bruce Peninsula, 2024 CanLII 97519

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 3, 2024

CASE NO.: OLT-22-003015

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

Applicant(s)/Appellant(s): 1415747 Ontario Inc. & Lyons Big Tub Resort Marina Ltd.

Appellant: The Big Tub Harbour Citizens Committee

Subject: Zoning By-law

Description: Zoning By-law Amendment 2002-54 to clearly define the Commercial Tour Boat Operation and appropriate zone designation

Reference Number: BL 2022-05

Property Address: Municipality Wide

Municipality: Northern Bruce Peninsula

OLT Case No.: OLT-22-003015

OLT Case Name: Lyons Big Tub Resort Marina Ltd., Big Tub Harbour Citizens Committee v. Northern Bruce Peninsula

BEFORE: D. CHIPMAN, MEMBER

Thursday, the 3rd of October, 2024

Order

THESE MATTERS having come before the Tribunal for a Prehearing Conference on November 5, 2018 and two subsequent Prehearing Conferences on April 8, 2019 and September 13, 2019;

AND THE TRIBUNAL having received the requested copy of the Procedural Order, on consent,

THE TRIBUNAL ORDERS that the Procedural Order attached hereto as Schedule 1 is in full force and effect.

"Euken Lui"

EUKEN LUI ACTING REGISTRAR

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Schedule 1: Procedural Order

ONTARIO LAND TRIBUNAL

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

Applicant(s)/Appellant(s): 1415747 Ontario Inc. & Lyons Big Tub Resort Marina Ltd.

Appellant: The Big Tub Harbour Citizens Committee

Subject: Zoning By-law

Description: Zoning By-law Amendment 2002-54 to clearly define the Commercial Tour Boat Operation and appropriate zone designation

Reference Number: BL 2022-05

Property Address: Municipality Wide

Municipality: Northern Bruce Peninsula

OLT Case No.: OLT-22-003015

OLT Case Name: Lyons Big Tub Resort Marina Ltd., Big Tub Harbour Citizens Committee v. Northern Bruce Peninsula

PROCEDURAL ORDER

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

Organization of the Hearing

2. The video hearing will begin on Monday, January 27, 2025, at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is ten (10) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see Attachment 4 for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

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

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

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before October 4, 2024, and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before November 1, 2024, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before November 15, 2024.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before November 29, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before November 29, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before December 20, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before January 10, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before December 16, 2024, and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 10, 2025.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

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

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 17, 2025 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and, if requested by the OLT case co-ordinator, in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

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

This Member is not seized.

So orders the Tribunal.

BEFORE: Name of Member: Date:

TRIBUNAL REGISTRAR

SUMMARY OF DATES

DATE	EVENT
October 4, 2024	Exchange List of Proposed Witnesses (Para. 9)
November 1, 2024	Deadline for Expert Witness Meeting (Para. 10)
November 15, 2024	Deadline for Statement of Agreed Facts and Issues (para. 10)
November 29, 2024	Deadline for Witness Statements, Expert Witness Statements and Participant Statements (paras. 13 and 14)
December 20, 2024	Deadline for advising the Tribunal if all the reserved hearing dates are required (para. 15)
January 10, 2025	Deadline for Visual Evidence (para. 16)
December 16, 2024	Deadline for Reply Witness Statements and Reply Expert Witness Statements (para. 17)
January 10, 2025	Deadline for Joint Document Book (para. 18)
January 17, 2025	Deadline for Hearing Plan (para. 21)
January 27, 2025	Hearing begins

ATTACHMENT 1

LIST OF PARTIES

1. The Big Tub Harbour Citizens Committee SV Law 245 Hanlon Creek Boulevard, Unit 102 Guelph, ON N1C 0A1 Eric Davis Email: edavis@svlaw.ca Tel: 519.837.2100 ext. 304

2. 1415747 Ontario Inc. and Lyons Big Tub Resort Marina Ltd. Davies Howe 425 Adelaide Street West, 10th floor Toronto, Ontario M5V 3C1 Mark R. Flowers Email: markf@davieshowe.com Tel: 416.263.4513 Kyle Gossen Email: kyleg@davieshowe.com Tel: 416.263.4519

3. The Municipality of Northern Bruce Peninsula Middlebro' & Stevens LLP P.O. Box 100, 1030 2nd Avenue East Owen Sound, Ontario N4K 5P1 Nicholas A. G. Lovell Email: nagl@mslaw.ca Tel: 519.376.8730

LIST OF PARTICIPANTS

1. Adam Robins Email: adambrobins@gmail.com Tel: 519.477.1393

2. Danny Coultis Email: dacoultis@gmail.com Tel: 613.921.1201

3. David Craig Email: dave@rentcottage.com Tel: 226.668.7039

4. Kent Wilkens Email: kentwilkens@aol.com Tel: 519.596.2280

5. Michael Lee Email: michael@tobermorycruiseline.com Tel: 416.575.6169

6. Robert Rouse Email: Oldmedic67@gmail.com Tel: 519.596.1130

7. Tracy Edwards Email: owners@tobermorywav.com Tel: 226.974.1884

8. Tyler Robins Email: Trobins57@gmail.com Tel: 519.477.2281

9. Doris Jaehrling (on behalf of the Tobermory Chamber of Commerce) Email: chamber@tobermory.org Tel: 519.596.2452

ATTACHMENT 2

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?

9. Should Zoning By-law 2022-05 be revised to delete section 2 and replace it with the following:

   2. That Section 6.32.1 be amended by adding the following parking provisions for Commercial Tour Boat Operation:

   The minimum number of parking spaces required for a new operation or the expansion of an existing operation shall be provided on-site and/or off-site at a ratio of the greater of:

   (a) 1 parking space for every 5 customer seats; or

   (b) 1 parking space for every 20m² (215ft²) of surface area on the commercial tour boat(s) used by the operation, regardless of the number of lots used in relation to the operation.

   In the case of an expansion of an existing operation, the requirement for the provision of additional parking spaces shall apply only to said expansion.

   In this parking standard, “expansion” means where the total number of customer seats on the commercial tour boat(s) used by the operation increases or where the total surface area on the commercial tour boat(s) used by the operation increases.

   Notwithstanding the definition of “existing” in this By-law, in this parking standard, “existing” means existing on the date of passing of By-law 2022-05.

   Section 6.32.4(b) does not apply to this parking standard.

ATTACHMENT 3

ORDER OF EVIDENCE

1. The Big Tub Harbour Citizens Committee
2. 1415747 Ontario Inc. and Lyons Big Tub Resort Marina Ltd.
3. The Municipality of Northern Bruce Peninsula
4. The Big Tub Harbour Citizens Committee, in Reply, if any

ATTACHMENT 4

PURPOSE OF PROCEDURAL ORDER

Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the Case Management Conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.