Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 05, 2024

CASE NO(S).: OLT-23-000856

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/ Appellant: 2296357 Ontario Inc.

Subject: Consent

Description: To permit the severance of a waterlot with a portion of the original shore road allowance for boat docking and residential use

Reference Number: Consent Application # 3/23

Property Address: 1192-1198 Richards Street

Municipality: St. Joseph/Algoma

OLT Case No.: OLT-23-000856

OLT Lead Case No.: OLT-23-000856

OLT Case Name: 2296357 Ontario Inc. v. St. Joseph Island Planning Board

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

Request by: St. Joseph Island Planning Board

Request for: Dismissal Without a Hearing

Heard: January 12, 2024 in writing

APPEARANCES:

Parties

Counsel/Representative*

2296357 Ontario Inc. (“Applicant/Appellant”)

Konstantine Stavrakos*

St. Joseph Planning Board

Joseph Sniezek

DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The St. Joseph Island Planning Board (“SJIPB”) filed a Motion seeking the Tribunal’s dismissal of the Applicant/Appellant’s appeal for a Consent.

2The Tribunal received written submissions, including planning affidavits from the Applicant/Appellant and SJIPB. For ease of reference, the following documents were marked as Exhibits:

1. SJIPB Motion to Dismiss Record;
2. Applicant/Appellant Responding Motion Record;
3. SJIPB Reply Motion Record;
4. Applicant/Appellant Second Supplementary Notice of Response to Motion;
5. Planning Report dated July 12, 2023;
6. Notice of Appeal form A 1 dated August 11, 2023;
7. Affidavit of Joseph Sniezek;
8. Affidavit of Amanda Richardson; and
9. Affidavit of Thomas Henshell

3This Decision dismisses the Motion for the reasons that follow.

JURISDICTION

4The sections of the Planning Act (“Act”) and the Ontario Land Tribunal Act, 2021 (“OLTA”) of particular applicability in this dispute are as follows (emphasis added).

5The Tribunal may dismiss an appeal for the reasons set out in s. 34(25) of the Act:

34(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

ii. the appeal is not made in good faith or is frivolous or vexatious.

3. The appellant intends to argue a matter mentioned I subsection (19.0.1) but has not provided the explanations required by that subsection.

6Under the OLTA, an appeal may be dismissed for the reasons given in s. 19(1):

19 (1) Subject to (notice), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;

or

(e) in any circumstance provided for under any other Act.

7From the foregoing legislative authorizations, the Tribunal may dismiss an appeal if only one of the cited reasons is found to be satisfied, in summary relevant to this Motion being: the absence of a valid planning ground; or no reasonable prospect of success.

BACKGROUND

8The property in question is located at 1192 - 1198 Richards Street in Richards Landing (“subject property”) in the Downtown land use designation and zoned as GC- General Commercial. The subject property consists of Part of Lot 8, and Lots 9 and10, East side of Richards Street, together with adjacent parts of the original shore road allowance being Parts 1 through 5 and Part 10 of Plan lR-8543, and the adjacent waterlot (i.e., original lake bed).

9According to the Planning Report, the parcel proposed to be severed has an area of about 0.13 hectares, with about one half of that area being dry land and the remainder covered by water, and is proposed for boat docking and residential use. There are presently two portable storage type buildings and boat docking facilities on the proposed new parcel. The parcel proposed to be retained consists of about 0.16 hectares with frontage of about 43 metres (“m”) on Richards Street and has a large commercial building containing retail uses, an upper floor residential unit and accessory uses there on.

10According to the Planning Report, Notice of this application has been circulated. Algoma Public Health has indicated that the proposed lot must be serviced by municipally provided services otherwise it cannot be severed as it is not suitably sized to accommodate a septic system. No other comments or objections have been received to date.

11The Planning Report recommended refusal of the application.

12Subsequently, on July 24, 2023, SJIPB refused the Consent application and on August 11, 2023, the Applicant/Appellant appealed SJIPB’s decision.

SITE CONTEXT

13The Consent under appeal would permit the severance of a waterlot together with a portion of the original shore road allowance at the rear of a commercial property in the Downtown land use designation in Richards Landing.

14The subject property was previously conveyed without Consent by a former owner of the subject property but has since been recombined with the original parcel and is now being proposed to be severed with Consent. The subject property was also previously proposed to be severed in 2012 by another former owner of the property; however, that application was subsequently withdrawn.

SUBMISSIONS

15The Parties’ written submissions were reviewed and are summarized here. Each Party filed an affidavit: for SJIPB – Mr. Joseph Sniezek, a retired Registered Professional Planner and former Member of the Ontario Municipal Board, and Amanda Richardson, the Township of St. Joseph (“Township”) Clerk; for the Applicant/Appellant – the owner of 2334657 Ontario Inc., Thomas Henshell.

16Neither Party witnesses requested nor were qualified as an expert to provide land use planning evidence. Thomas Henshell was considered a lay witness.

EVIDENCE

Notice of Appeal

17The Notice of Appeal (“Notice”) submitted by Katherine Henshell, on behalf of the Applicant/Appellant, provided grounds for the appeal. The Notice identified the location on the lot in a settlement area as per the St. Joseph’s Official Plan (“OP”). The Notice also highlighted the servicing of the lot and the Russell Street Extension. The Notice also included provisions of the Provincial Policy Statement, 2020 (“PPS”), which states it conforms to it through growth and development for settlement areas, and the proposed lot to be severed in Richards Landing has ample space to allow for residential development, which meets the goals of the PPS.

18The Notice also highlights the OP policies and Zoning By-law (“ZBL”) provisions and provides a land use planning justification that the proposed lot to be severed conforms to the PPS, OP and ZBL.

SJIPB Motion Materials

19The Moving Party, SJIPB, submits that the source of the Applicant/Appellant’s appeal lacks the necessary amendments to the OP and ZBL that are required before a provincial Consent can be granted, in that the proposed parcel lacks frontage onto a public road, which is a requirement of the OP and ZBL.

20According to SJIPB, the subject property requires a servicing easement across private lands. In addition, the access to the proposed lot also requires an easement or right of way that is not part of the application. Further, the lot is deficient in terms of area and the required shoreline setback makes the proposed lot undevelopable.

21Finally, SJIPB submits there are flaws, as described above, and that the appeal is not possible or conceivable to be successful.

22Mr. Sniezek’s affidavit outlines that the OP and ZBL requires frontage onto a public road and that the proposed lot lacks that requirement and does not provide a right-of-way or easement for access. In addition, the small lot size prevents the provision of private services; therefore, municipal water and sewer services must be available.

23Mr. Sniezek highlighted that the OP provides a minimum shoreline setback of 30 m from the high water mark. The proposed lot indicates a lot depth of 27.4 m to the water’s edge; therefore, the lot cannot meet the required shoreline setback of 30 m.

24Finally, Mr. Sniezek submits the proposed Consent is not in keeping with the pattern of growth under the PPS, specifically in Richards Landing, and the proposed development fails the compatibility test.

25Amanda Richardson, Clerk of the Township, provided an affidavit outlining the various surveys and road extensions, including OP polices and ZBL provisions.

Applicant/Appellant Motion Materials

26The Applicant/Appellant’s Notice of Response to Motion submits that SJIPB’s Motion relies entirely on what appears to be an unsworn and unsigned affidavit of Joseph Sniezek.

27The Applicant/Appellant contends the planning opinion of Mr. Sniezek relies entirely on two key factual claims that are in dispute;

1. The proposed severed lot would not front onto a public road maintained year-round by the municipality; and
2. The proposed severed lot cannot be serviced.

28The Applicant/Appellant submits the Township’s OP policies are met in regard to the requirement that a new lot fronts onto a public road and can be serviced.

29The affidavit of Thomas Henshell provides evidence, including photo evidence highlighting that the Russell Street Extension is a public road maintained by the Township on a year-round basis and that the proposed severed lot can be connected to the Township’s water and waste services.

30Mr. Henshell provided two exhibits in his affidavit: from Barry Elliott, a former Township Superintendent of Water and Sewer; and from Ross Armstrong, a former Township Superintendent of Roads.

31A Second Supplementary Notice of Response to Motion was submitted by the Applicant/Appellant highlighting that the Moving Party has sought to submit a different version of the “affidavit” of Mr. Sniezek, this time with a signature from the Township Clerk. The Applicant/Appellant requests that this document not be admitted into evidence as the document is not legally an affidavit.

32The Applicant/Appellant also questions Mr. Sniezek’s prior role as an advocate in this matter. The Applicant/Appellant submits that Mr. Sniezek had previously been seeking to act as both an advocate, representing SJIPB and bringing the Motion on SJIPBB’s behalf and submitting the reply materials, and as a witness for SJIPB. The Applicant/Appellant contends expert witnesses cannot be advocates.

33Finally, the Applicant/Appellant highlighted case splitting, based on Mr. Sniezek’s original submission dated November 2, 2023 and Mr. Sniezek’s resubmission on November 14, 2023.

34The Applicant/Appellant requests that the Motion be dismissed and that a hearing on the merits be scheduled.

FINDINGS

35The Tribunal finds that a Consent application raises common, valid planning issues. In this case, the Applicant/Appellant has established valid planning grounds upon which the Tribunal could grant all or part of the appeal.

36The Notice sets out several valid planning grounds, which included PPS, OP and ZBL requirements, and specifically, the Russell Street Extension and servicing of the proposed lot. The Tribunal agrees with the Applicant/Appellant insofar as the appeal presents genuine issues to be adjudicated. If upon hearing the evidence the Tribunal determines that the proposed severed lot would front onto a public road and can be serviced, then all applicable OP requirements would be met and there would be no basis to deny the appeal.

37The Applicant/Appellant provided evidence through Mr. Armstrong that the Russell Street Extension is a public road maintained by the Township on a year-round basis. Mr. Elliott also confirms in his opinion that the Russell Street Extension is a public road. Mr. Elliott also goes on to state that there are alternatives by which the proposed severed lot can be connected to the Township’s water and wastewater services.

38The Tribunal notes that Mr. Henshell’s affidavit, as a lay witness, was affirmed and sworn to, and that the statements from Messrs. Armstrong and Elliott were not. The two unsworn statements, or hearsay evidence, do not deter the Tribunal from considering these two statements. Furthermore, even though the Applicant/Appellant did not provide a land use planner witness, this does not prevent a lay witness, such as Mr. Henshell, from providing an affidavit on his views of land use planning matters. The weight of that evidence is the determining factor for the Tribunal when considering the evidence of one witness’s submissions against another witness’s submission.

39Therefore, the Tribunal agrees with the Applicant/Appellant that there is no absence of a genuine planning basis to dismiss this appeal, as there may be a valid planning ground. In order to adjudicate the appeal, factual determinations must be made as to whether the proposed severed lot fronts onto a public road that is maintained year-round by the Township and whether it can be serviced, amongst other issues.

40Under s. 19(1)(c) of the OLTA, the Tribunal finds that the proceeding has a reasonable prospect of success.

41The Tribunal agrees with the Applicant/Appellant and finds there are contested factual and planning issues which are best left to be determined by the trier of fact, being a Member presiding over a viva voce hearing.

42The Tribunal has determined that the issues raised by the Applicant/Appellant, specifically those against the two affidavits from Mr. Sniezek (both sworn and unsworn), the argument of case splitting and Mr. Sniezek’s prior role as advocate and witness are not determinative.

43The affidavit of Mr. Henshell also provides evidence, upon which the Tribunal could allow all or part of the appeal and the proceeding has a reasonable prospect of success.

44However, the Tribunal would note that a representative will be required to comply with the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”) Rule 4.1 in a future hearing:

Parties or participants may represent themselves, or have representatives attend for them. Representatives who are not legal counsel must provide written authorization to act for the party or participant…

45The Tribunal would also like to highlight a “Duty of the Expert Witness” at Rule 7.5(a) of the Rules, for a future hearing:

(a) provide opinion evidence that is fair, objective and non-partisan.

46In regard to the issue of whether Mr. Siezek’s prior role was as an advocate in this matter, the Tribunal would caution both Parties that the Rule does not expressly restrict a party from being an expert witness per se; however, because a party is by its very nature partisan, the Tribunal may find a party cannot conceivably fulfill the non-partisan duty of an expert.

47In any event, having found no failures to sustain the appeal under the Act and the OLTA, the Tribunal dismisses the Motion.

Costs

48The Tribunal notes that SJIPB provided an email dated November 13, 2023 to the Parties and Tribunal requesting costs in the amount of $2,000, which covers the cost of retaining a consultant.

49The Tribunal has not considered costs in this Motion as it was not before it and not set out in these Motion materials. Considering that the Moving Party was not successful in this motion, it would not likely be successful in recouping costs.

ORDER

50The Tribunal Orders that the Motion is dismissed.

“Eric S. Crowe”

Eric S. Crowe

MEMBER

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.