Hennessey et al. v Durham (Region), 2025 CanLII 14505

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 19, 2025

CASE NO(S).: OLT-24-000878

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

Appellant: Gina Koutsaris Appellant: James McEwen Appellant: Steve Hennessey Appellant: Susan Segers Subject: Proposed Official Plan Amendment Description: To change land designation to permit development to meet the housing supply needs of Clarington Reference Number: Amendment #126 to the Clarington Official Plan Property Address: 2371 Nash Road Municipality/UT: Clarington/Durham OLT Case No: OLT-24-000878 OLT Lead Case No: OLT-24-000878 OLT Case Name: Hennessey et al. v Durham (Region)

Heard: February 7, 2025 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Steve Hennessey	Self-Represented*
Gina Koutsaris	Self-represented*
James McEwen	Self-Represented*
Municipality of Clarington	R. Maciver C. Lyon (in absentia)
Regional Municipality of Durham	S. Whalen A. Patel (in absentia)
Brookhill North Landowners Group Inc.	C. Barnett E. Barz (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON FEBRUARY 7, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision and Order arises from the second Case Management Conference (“CMC”) conducted concerning appeals brought by Steve Hennessey, Gina Koutsaris and James McEwen (together referred to as “Appellants”) pursuant to s. 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”).

2On May 25, 2021, Council for the Municipality of Clarington (“Municipality”) adopted Official Plan Amendment 126 (“OPA 126”) to the Clarington Official Plan (“COP”), which updates policies of the Brookhill Neighbourhood Secondary Plan (“BNSP”). On July 25, 2024, the Regional Municipality of Durham (“Region”) approved OPA 126 with modifications. The intent of the BNSP is to advance the policy framework for a mixed-use community and encourage redevelopment with the purpose of establishing goals and policies to guide development in the Brookhill Neighbourhood, as it is implemented through subdivision, zoning and site plan control.

3The appeals were filed by the Appellants following the Region’s approval of the BNSP through its approval of OPA 126 with modifications. The appeals have raised site specific issues relating to properties in which each of the Appellants have an interest, specifically: 2265 Bowmanville Avenue (Steve Hennessey); 2325 Bowmanville Avenue (James McEwen); and 2454 Bowmanville Avenue (Gina Koutsaris), all located in the Municipality (together referred to as “Appellants’ Properties”). The reasons for each appeal are well summarized in the first CMC Decision issued on December 18, 2024 and need not be repeated.

MOTION FOR PARTIAL APPROVAL

Preliminary Matters

4In advance of the CMC, Brookhill North Landowners Group Inc. (“BNLG”) filed a Motion for Partial Approval (“Motion”) with the Tribunal, which was marked as Exhibit “1”, requesting that the Tribunal partially approve OPA 126 and deem the BNSP to be in force for the parts of the BNSP area that are not at issue in the site-specific appeals. Specifically, the Motion sought an Order of the Tribunal:

• approving OPA126 to the COP for all lands within the BNSP, with the exception of those lands that are subject to site-specific appeals in OLT Case File No. OLT-24-000878; and
• declaring that the BNSP is in force for all lands within the BNSP area, with the exception of those lands that are subject to site-specific appeals in OLT Case File No. OLT-24-000878.

5The Tribunal did not receive any responding materials to the Motion. The Region confirmed that it was not taking a position on the Motion. The Municipality confirmed that it supported the Motion. Mr. Hennessey and Ms. Koutsaris confirmed that they were not opposed to the Motion. Mr. McEwen confirmed that he was opposed to the Motion.

6In response to the Tribunal’s inquiry as to why Mr. McEwen did not file responding materials given that he was opposed to the Motion, he indicated that he was not aware of the rule requiring a written response. Counsel for BNLG submitted that he had anticipated an unopposed Motion given the absence of responding materials and was concerned that BNLG would suffer prejudice if Mr. McEwen were permitted to raise concerns regarding the Motion that were not addressed in BNLG’s Motion materials.

7The Tribunal granted Mr. McEwen some latitude given that he is self-represented and he acknowledged that he is not fully aware of the Tribunal’s processes, however, the Tribunal did caution all Parties that going forward, they must ensure that they educate themselves with the rules, legislation and processes applicable to the proceedings. The Tribunal recognized the concern of BNLG and in order to balance any potential prejudice to BNLG, the Tribunal reversed the “normal” order of submissions and directed Mr. McEwen to make oral submissions at the outset of the Motion. Reversing the order of submissions would allow BNLG and the Tribunal to hear Mr. McEwen’s opposition to the Motion at the outset and enable Counsel for BNLG an opportunity to respond to any “new” concerns raised by Mr. McEwen.

Mr. McEwen’s Submissions

8Mr. McEwen explained that he had attended a recent public meeting related to a different property and development where the Municipality advised those at the meeting that the developer’s plan could not proceed with registration due to the Appellants’ appeals in this proceeding. He submitted that he did not understand how one development in the BNSP area was unable to proceed while the Motion would potentially allow other developments, including BNLG’s, to proceed.

9Mr. McEwen further submitted that he had concerns with traffic safety and traffic operation. He explained that there were many new local roads proposed to connect with Bowmanville Avenue and he was concerned that an engineer had not reviewed the impacts of the local road interconnections.

10He noted that allowing the Motion would result in “pocket planning” which disregards the point of a secondary plan which is meant to take an inclusive look at a whole area.

BNLG’s Submissions

11The Motion materials filed by BNLG included the Affidavit of Christian Jattan, his curriculum vitae and Acknowledgment of Expert’s Duty. The Tribunal qualified Mr. Jattan to provide expert opinion evidence in the area of land use planning.

12In his affidavit, Mr. Jattan set out a chronology of the planning process leading up to the appeals, noting that each appeal is site specific and reviewed the concerns raised in each of the appeals. Mr. Jattan opined that given the site-specific nature of the appeals, declaring the BNSP in force would not hinder the Appellants’ abilities to advance the issues raised in each appeal.

13Mr. McEwen had raised concerns relating to traffic and the road network in earlier emails and as such, Mr. Jattan responded to these concerns in his affidavit. He reviewed policy 9.5 of the BNSP relating to local roads noting that this policy specifically states that “[c]hanges to the identified Local Road pattern shall not require an amendment to this Secondary Plan…”. Mr. Jattan explained that this policy confirms that concerns around traffic and the road network would get addressed at later stages through development applications and he opined that there is no reason to withhold approval of OPA 126 and the BNSP.

14Counsel for BNLG responded to Mr. McEwen’s concern which arose following the public meeting he attended. Counsel for BNLG submitted that the very point of the Motion is to ensure all developers in the BNSP area can proceed with development, not just BNLG. In granting the Motion, all land within the BNSP area would be allowed to proceed with development applications, save and except for the Appellants’ Properties.

15Counsel for BNLG submitted that there was no prejudice to the Appellants in granting the Motion as each of their appeals are site specific. He further submitted that the Tribunal has not been presented with any legal or planning submissions or evidence to find that the BNSP cannot be brought into force for the BNSP area, save and except for the three properties that are the subject of the appeals.

Findings on the Motion

16The Tribunal considered the arguments and evidence (through the Affidavit of Mr. Jattan) of Mr. McEwen and BNLG and grants the relief requested in the Motion.

17In making its decision, the Tribunal did consider Mr. McEwen’s concerns regarding “pocket planning” and traffic, however, those concerns do not represent a legal or planning reason to deny the Motion as the secondary plan clearly sets out a process to address the traffic and local road concerns raised by Mr. McEwen. As detailed in Mr. Jattan’s affidavit, any concerns relating to local roads, including traffic, will be dealt with during later development stages.

18The Appellants’ appeals are site specific, meaning that the majority of OPA 126 and the BNSP are not in issue in the appeal. In balancing potential prejudice, the Tribunal finds that there would be great prejudice to the many landowners in the secondary plan area if it were to hold approval of OPA 126 and the BNSP in abeyance pending the outcome of this appeal. The Tribunal was persuaded by Mr. Jattan’s uncontroverted opinions set out in his Affidavit and finds that there would be no prejudice to the Appellants in granting the Motion. The Appellants’ appeals are site specific and would not be hindered by the partial approval.

19Overall, the Tribunal finds that declaring OPA 126 and the BNSP in force on the lands to which it applies, apart from the Appellants’ Properties, represents good planning.

CASE MANAGEMENT CONFERENCE

Preliminary Matters

20At the outset of the CMC, the Tribunal confirmed with Ms. Koutsaris that her appeal was in the name of her deceased mother, and she is the Executrix of the estate. Ms. Koutsaris was directed to file a copy of documentation demonstrating that she is the Executrix of her late mother’s estate with the Tribunal following the CMC.

21Following the last CMC, the Region became an upper-tier Municipality which no longer has planning responsibilities. Counsel for the Region confirmed that the Region wished to remain a Party to the appeal but in an observation capacity. Following the Tribunal’s ruling on the Motion, Counsel for BNLG also requested that the Tribunal allow it to remain a Party in an observation capacity. The Tribunal accepted both requests and the Region and BNLG will continue with Party status in an observation capacity.

Opportunities for Settlement or Mediation

22The Tribunal and the Parties engaged in a detailed discussion regarding the possibility of settlement or mediation. The consensus of the Parties was to continue ongoing discussions and there also appeared to be some interest in pursuing mediation. The Tribunal encouraged the Parties to continue to have discussions following the CMC and if Tribunal led mediation may assist, the Parties could request a mediation assessment through the Case Coordinator.

Procedural Order and Hearing Dates

23In advance of the CMC, the Parties filed a draft Procedural Order with the Tribunal. Council for the Municipality explained that he met with the Appellants in early January 2025 to review their list of issues. They worked together to scope the issues and frame them in a manner that was appropriate for inclusion on a list of issues to be adjudicated.

24The Tribunal reviewed the draft Procedural Order (“PO”) and the Issues List ("IL") with the Parties and following a thorough discussion, determined the following:

• In the Order of Evidence, the Municipality would present its case first and have a right of reply. Given that the Appellants are self-represented, the Tribunal agreed with the Municipality that this would be the most efficient way to establish the background of the appeals and the issues to be adjudicated;
• Mr. McEwen and Mr. Hennessey would present their appeals together as they have raised similar issues and were jointly retaining a planner; and
• Counsel for the Municipality will file a revised draft PO for review and approval on or before Thursday, February 13, 2025.

25On Wednesday, February 12, 2025, the Tribunal received the revised draft PO with the attached IL set out in Attachment “1” to the Order, which was reviewed and approved and will govern the proceeding.

26Counsel for the Municipality requested that the Tribunal schedule a three-day hearing for the appeals. In addition to the one expert which Mr. McEwen and Mr. Hennessey intend to retain, the Municipality anticipated that it would call two experts. When asked by the Tribunal, Ms. Koutsaris advised that she was unsure if she would retain any expert. The Tribunal explained that decisions are made by the Tribunal based on submissions and evidence and only an expert can provide the Tribunal with opinion evidence. Ms. Koutsaris indicated that she understood this and was looking into her options.

27The Appellants requested that the hearing be held by video on the Zoom platform due to difficulties encountered using the GoTo Meeting platform. All Parties consented to the request and the Tribunal proceeded to schedule a three-day video hearing via Zoom commencing on Tuesday, September 9, 2025, at 10 a.m. as follows:

Meeting ID: 876 8477 3084 Pass Code: 788518 Link: https://us06web.zoom.us/j/87684773084?pwd=N2nU5XTjO4Teo4RhWAXUrTXgvhJat.1

Other Matters

28Prior to adjourning the CMC, Mr. McEwen requested an interlocutory injunction from the Tribunal requiring the Municipality to provide a planning report that he had been requesting from the Municipality. The Tribunal denied the request and explained that to ensure a fair process, document exchange would occur in accordance with the timelines set out in the PO. For clarity, the Municipality is not required to create a document just because it is being requested by the Appellants. Provided that such a planning report has already been written, it would have been included as part of the Municipal Record or it would be included in the document exchange in accordance with the deliverable deadlines specified in the PO.

29The Tribunal Member will remain available, schedule permitting, if further assistance is needed by the Parties.

ORDER

30THE TRIBUNAL ORDERS THAT the Motion for partial approval is allowed and pursuant to s. 17(38) of the Planning Act, Official Plan Amendment No. 126 to the Municipality of Clarington Official Plan for the lands within the Brookhill Neighbourhood Secondary Plan area is approved, and the Brookhill Neighbourhood Secondary Plan is in force for the lands in the Brookhill Neighbourhood area as of the day after the last day for filing a notice of appeal, being August 15, 2024, with the exception of those properties for which Official Plan Amendment 126 remain under appeal, namely 2265 Bowmanville Avenue, 2325 Bowmanville Avenue and 2454 Bowmanville Avenue.

31THE TRIBUNAL FURTHER ORDERS THAT the Procedural Order set out in Attachment “1” is approved and shall govern the proceeding.

32The case management directives above are so ordered.

33There will be no further notice and this Member is not seized.

“C. Hardy”

C. HARDY VICE CHAIR

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.

ATTACHMENT 1

CASE NO(S).: OLT-24-000878

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

Appellant: Gina Koutsaris Appellant: James McEwen Appellant: Steve Hennessey Appellant: Susan Segers Subject: Proposed Official Plan Amendment Description: To change land designation to permit development to meet the housing supply needs of Clarington Reference Number: Amendment #126 to the Clarington Official Plan Property Address: 2371 Nash Road Municipality/UT: Clarington/Durham OLT Case No: OLT-24-000878 OLT Lead Case No: OLT-24-000878 OLT Case Name: Hennessey et al. v Durham (Region)

PROCEDURAL ORDER

1The 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

2The video hearing will begin on September 9, 2025, at 10:00 a.m.

3The parties’ initial estimation for the length of the hearing is three (3) 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.

4The parties and participants identified at the case management conference are set out in Attachment 1.

5The 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.

6The 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.

7Any 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.

8Any 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

9A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of witnesses on or before July 16, 2025, 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.

10Expert witnesses in the same field shall have a meeting on or before May 30, 2025, 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 August 25, 2025.

11An 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.

12Expert 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.

13On or before July 25, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties, the participants, and to the OLT Case Co-ordinator and in accordance with paragraph [22] below.

14On or before July 25, 2025, participants shall provide copies of their written participant statement to the other parties and the OLT Case Co-ordinator 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.

15On or before August 5, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16On or before August 29, 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.

17Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.

18The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before August 29, 2025.

19A 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.

20A 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.

21The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 2, 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.

22All filings shall be submitted electronically and 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 the Rule 7.

23No 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.

Attachment to Sample Procedural Order

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.

ATTACHMENT 1

LIST OF PARTIES

PARTIES

1. Steve Hennessey
2. James McEwen
3. Gina Koutsaris
4. Municipality of Clarington
5. Region of Durham
6. Brookhill North Landowners Inc.

ATTACHMENT 2

ISSUES LIST

Gina Koutsaris’s Land (2454 Bowmanville Ave):

1. Is the environmental overlay for 2454 Bowmanville Ave technically justified?

James McEwen’s (2325 Bowmanville Ave) and Steve Hennessey’s (2265 Bowmanville Ave) Lands:

2. Was the Municipality justified in its deferral of a decision on the Master Block Plan, as it relates to 2325 and 2265 Bowmanville Ave?
3. If the Municipality was not justified in its deferral of a decision on the Master Block Plan, is a Master Block Plan an appropriate planning tool for 2325 and 2265 Bowmanville Ave?
4. If a Master Block Plan is not an appropriate planning tool for 2325 and 2265 Bowmanville Ave, what is the appropriate designation or planning process for 2325 and 2265 Bowmanville Ave?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Municipality of Clarington
2. Steve Hennessey/James McEwen (Jointly)
3. Gina Koutsaris
4. Municipality of Clarington - Reply