OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. v. Georgian Bay (Township), 2025 CanLII 18359

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 28, 2025

CASE NO(S).: OLT-23-001240

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. (collectively "Oak Bay")

Subject: Conditions of approval of draft plan of subdivision

Description: To request an extension to the approval of the draft plan and to revise the layout to incorporate a stormwater management plan within the draft plan

Reference Number: C2008-6

Property Address: Part of Lots 31 and 32, Concession 2, Baxter

Municipality/UT: Georgian Bay/Muskoka

OLT Case No.: OLT-23-001240

OLT Lead Case No.: OLT-23-001240

OLT Case Name: OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. v. Georgian Bay (Township)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Corporation of the Township of Georgian Bay

Request for: Request for Directions

Heard: February 6 2025 by Video Hearing

APPEARANCES:

Parties Counsel

OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. (Appellant / Appellant) Leo Longo

District Municipality of Muskoka (“District”) Township of Georgian Bay (“Township”) Jamie Clow Colin Leger

DECISION DELIVERED BY J. INNIS AND ORDER OF THE TRIBUNAL

BACKGROUND

1OBD Developments Inc., OBM Marina Inc., and OBG Golf Inc. (collectively “Oak Bay Developments”) are the Appellants for an appeal pursuant to s.51 (43) and (48) of the Planning Act (“Act”), regarding lands legally described as Part of Lots 31 and 32, Concession 2, Baxter, in the Township of Georgian Bay. These lands are known as the Waterside lands within the Oak Bay Development, which is a fully serviced residential development consisting of a variety of housing types. The Appellant sought an extension of five years for the approval of Draft Plans of Subdivision, and was further seeking revised conditions, and the need for a servicing agreement.

2A Settlement Hearing was conducted and an oral Interim Order and Decision were rendered on July 29, 2024, which led to the approval of a revised draft plan and revised conditions. The issuance of a Final Order was subject to the fulfillment of conditions contained therein. Specifically, there were two conditions that required Oak Bay Developments to enter into a separate supplemental development agreement with both the District and the Township, and these were as follows:

Area Municipal Agreement

8. Prior to final approval being granted, a condominium, amending and/or other type of agreement with the Township of Georgian Bay in accordance with Section 51(26) of the Planning Act, R.S.O. 1990, as amended shall be registered on title and shall include provisions outlining the need to satisfy all the requirements, financial and otherwise of the Township of Georgian Bay including but not limited to the following:

Stormwater

i) The implementation of the plans required in Condition 7 under the supervision and to the satisfaction of a professional engineer;

ii) The provision of securities or other guarantees for the implementation of the plans required in Condition 7, as necessary;

Environmental

iii) The implementation of the recommendations of the Environmental Impact Study prepared by Gartner Lee Limited, dated April 2006 and the peer review report prepared by Michalski Nielsen Associates Limited dated September 20, 2006, including but not limited to the following:

a) The development of a “Best Management Practices” manual for any future condominium corporation to ensure proper use and disposal of chemicals, responsible road salting, street sweeping, and landscape maintenance activities to ensure the protection of rare wildlife species and their habitat; and

b) The distribution to all purchasers a homeowner’s manual which provides information on the natural area values and their protection;

iv) That all lighting for roads, parking and residential areas are dark sky friendly; and

v) The implementation of Condition 7.b) and 7.c), as required.

9. Prior to the Area Municipal Council’s endorsement and execution of any amending or new area municipal agreements that are to be registered on the title of the lands, a copy shall be forwarded to The District Municipality of Muskoka for review, comment and potential revisions related to District interests, if required.

10. Prior to final approval being granted, The District Municipality of Muskoka shall be in receipt of a registered copy of the area municipal agreement.

District Municipal Agreement

11. Prior to final approval being granted, a condominium, servicing and/or amending agreement with The District Municipality of Muskoka in accordance with Section 51(26) of the Planning Act, R.S.O. 1990, as amended shall be registered on title and shall state that all the requirements, financial and otherwise, of The District Municipality of Muskoka shall be satisfied, including but not limited to the following:

i) The provision and installation of municipal water and sewer services and for municipal assumption and operation of such services;

ii) The availability and allocation of sufficient municipal water and sewer capacity measured in Equivalent Residential Units (ERUs) to service the development;

iii) The disposal of solid waste; and

iv) The implementation of conditions 7, 7.a), 7b) and 7c) as required, including provision of securities if required.

These two conditions were not revised through the settlement Hearing. Following the settlement Hearing, the Tribunal was advised that condition number 11 (“Condition No. 11”), requiring a Municipal Agreement between the District and Oak Bay Developments, had been negotiated. However, Condition No. 8 remained outstanding. The Appellant has since sought to proceed to a Merit Hearing to determine issue two (“Issue 2”) from the original procedural order, which states:

2. What should the content be of the required District Servicing Agreement and Township Supplementary Development/Condominium Agreement?

The Appellant further provided a document entitled Appellant’s Refined Issues List, which states:

1. Are the draft Township Subdivision and Condominium Agreement provisions listed on Attachment “A” fair, reasonable, necessary and/or appropriate?

As stated in the Decision of the July 29th, 2024 Hearing, “In the event that there are difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.” This provision explains why the matter is before the Tribunal now.

3The matter is now before the Tribunal as a Motion brought by the Township to assess the Tribunal’s jurisdiction to determine the terms of a condominium agreement, which was a required condition of the Draft Plan of Subdivision for an appeal pursuant to s. 51 (43) of the Planning Act; and, whether the Tribunal has the jurisdiction to require the execution of said condominium agreement by the Township.

4The Township submits that the Tribunal does not have the jurisdiction under the Act to modify or impose contractual terms within a condominium agreement. The Appellant has submitted that the matter in question is the appropriateness of the condition and argued that the Tribunal is entitled to consider how the Township intends to implement it.

LEGISLATIVE FRAMEWORK

5Condition No. 8 was imposed by the District pursuant to s. 51 (25) (d) of the Act, which states that:

(25) The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed for the subdivision, including a requirement,

(d) that the owner of the land proposed to be subdivided enter into one or more agreements with a municipality, or where the land is in territory without municipal organization, with any minister of the Crown in right of Ontario or planning board dealing with such matters as the approval authority may consider necessary, including the provision of municipal or other services[.]

6The Tribunal's authority regarding appeals under s. 51(43) of the Act, is outlined in s. 51(56) of the Act, which reads as follows:

Powers

(56) On an appeal under subsection (34) or (39), the Tribunal may make any decision that the approval authority could have made on the application and on an appeal under subsection (43) or (48) shall determine the question as to the conditions appealed to it.

Change of conditions

(56.2) If the final approval of a plan of subdivision is to be given under subsection (56.1), the Tribunal may change the conditions of the approval of the draft plan of subdivision under subsection (44) at any time before the approval of the final plan of subdivision by the approval authority.

Procedural matters and evidence

7Counsel for the District attended the Motion Hearing and provided a statement indicating their support for the Township's position regarding the motion. As this matter concerns the Township and Oak Bay Developments, Counsel for the District requested to refrain from further participation in the Hearing, other than to formally express their support. It was acknowledged by the Tribunal that the District fully concurs with the Township’s position, and all Parties involved consented to the District's limited involvement, as the outstanding issues are solely between the Township and Oak Bay Developments.

8Counsel for Oak Bay Developments confirmed that there is no dispute regarding the Township's position that the Tribunal does not have the authority to compel the Parties to execute an agreement. Additionally, the Parties agree that the Tribunal has jurisdiction to amend conditions.

9Affidavits were filed in support of the motion and were marked as exhibits. The content of the affidavits, which include opinion evidence within the Affiants’ respective areas of expertise, were considered by the Tribunal as part of the Motion Hearing. However, the Affiants did not provide oral testimony during the hearing.

a) For the Township: Derek Witlib, Registered Professional Planner

b) For the Appellant: Celeste Phillips, Registered Professional Planner

Bill Van Ryn, P. Engineer

10The Township raised concerns regarding the agreement attached to the affidavit of Mr. Van Ryn, noting that it was provided to the Appellant on a ‘without prejudice’ basis. The Township asserted that it has not waived settlement privilege with respect to that document, emphasizing that it is well established law that documents covered by settlement privilege are inadmissible as evidence before the Tribunal. In response, Counsel for the Appellant argued that, due to an alleged impasse between the Parties, the Tribunal requires this information to determine the reasonableness of implementing the condition at issue.

11However, the Tribunal finds that the document in question was submitted without prejudice during settlement discussion, and as such, could not be considered during the Motion Hearing without a waiver of settlement privilege by the Township. Accordingly, the Tribunal determines that the agreement attached to Mr. Van Ryn’s affidavit, as well as any reference to that agreement within his affidavit, are stricken from the record and will not be used in the determination of this Decision. Pursuant to s.15(2)(a) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22 (“SPPA”): “…nothing is admissible in evidence at a hearing, (a) that would be inadmissible in a court by reason of any privilege under the law of evidence[.]” While the Ontario Land Tribunal’s Rules of Practice and Procedure take precedence over the SPPA in cases of conflict, and since there is no conflict regarding the admissibility of evidence, the SPPA provision applies in this matter.

SUBMISSIONS

The Township

12The Township argues that the Tribunal’s powers under s. 51(43) of the Act are outlined in s.51(56), which permits the Tribunal to determine the question of the condition appealed, but not the terms of an agreement required by such condition. The Township contends that the lack of explicit power to consider agreements is intentional. Citing that the legislation provided this power in s. 41 of the Act for site plan agreements, where s. 41 (12.0.1) grants Appellants the right to appeal an agreement and s. 41 (12.1) confers upon the Tribunal the authority to determine the terms of the agreement. Thus, the Township submits that, had the legislature intended to provide similar authority in relation to s. 51(43), it would have done so explicitly.

13The Township relied on the decision by the Ontario Court of Appeal in 314164 Ontario Ltd. v. Corporation of the City of Sudbury et al., 1983 Carswell 590 (“Sudbury Case”), in which the Court ruled that the Tribunal does not have jurisdiction to determine the terms of a subdivision agreement. Rather, the Tribunal is only authorized to address the conditions appealed to it. The Township specifically noted that the dispute in this case involved the question of which Party would be responsible for upgrading a road leading to the development. The decision emphasizes that the matter before the court pertains solely to the conditions of the development, not the broader terms of the agreement itself:

We think that it is the duty of the Board to hear and determine whether the ministerial condition is "satisfactory" in the light of all the relevant circumstances existing at the time, including the manner in which the municipality seeks to implement it. It is within the Board's power to change the condition, if it should think fit, so as to put an end to an impasse resulting from a position of either the owner or the municipality which would make the ministerial condition unsatisfactory. In saying this we are not suggesting that the Board has the power to alter a condition so as to require a municipality to enter into a particular agreement against its will, but it can, we think, settle the disputed issue by the imposition of a condition resolving the issue directly as it has in fact done in at least one case: Caerleon Ltd. v. Hamilton (1981), 12 O.M.B.R. 503 (O.M.B.). While the local autonomy of a municipality is of obvious importance with respect to the satisfaction of its requirements concerning the provision of roads and services, etc., the scheme of the legislation, in our view, is such that the municipality does not necessarily have the final say in such matters if agreement cannot be reached.

14The Township submitted that the Ontario Municipal Board's decision, upheld in the case of Caerleon Ltd. v. Hamilton (1981), 12 O.M.B.R. 503 (O.M.B.) (“Caerleon Case”), is relevant to the present matter. In that case, the appellant faced challenges in entering into a subdivision agreement with the municipality and sought an amendment to the conditions requiring the municipality to enter into a specific agreement. The Board agreed to amend the conditions to address a specific dispute between the Parties – namely, the amount of levies to be paid to the municipality. However, the Board declined to consider the broader terms of the agreement, as evidenced by the following statement from the decision:

Is implementation of this condition as the township has decided so unreasonable as to compel the Board to rewrite this condition in a fashion fairer to the company or, as the company would suggest, to substitute the execution of the proposed subdivision agreement (ex. 2) as revised to reflect a more reasonable levy payment for condition 11? Section 35a(6) [now s. 40(6)] of the Planning Act authorizes the Board to undertake the latter exercise on appeal with respect to agreements authorized by s. 35a and require a municipality to enter into an agreement where its provisions have been settled and determined by the Board. It is the Board's belief that no similar authority exists in relation to subdivision agreements nor can a municipality be required to enter into a subdivision agreement.

15The Township also put forward in their submissions an example taken from within Empire Communities (St. George) Ltd. v. Brant (County) (“Empire Case”) to support its argument that the Tribunal does not have the authority to dictate the terms of a subdivision agreement between a municipality and a developer. In this case, the Tribunal (formally the Local Planning Appeal Tribunal) stated:

It is not uncommon for the obligations to construct and maintain the roads and rectify deficiencies before assumption to be laid out in the detailed provisions of the Subdivision Agreement. Typically, this involves dealings between the municipality and the developer, which the Tribunal does not customarily investigate or deal with in its orders, other than to impose as a condition of draft approval the execution of a Subdivision Agreement satisfactory to the municipality.

The Township argues that, in line with this precedent, the Tribunal’s role is limited to imposing conditions for approval of the draft plan, rather than determining the specific terms of the agreement itself.

16Lastly, the Township submitted Sunset Lakes Development Corp v Ottawa (City), 50 OMBR 219 (“Sunset Lakes Case”), citing that this case provides valuable insight into the Board’s approach to the relationship between subdivision agreements and conditions. It states the following:

[…] In addition, the Board cannot require the City to execute the Subdivision Agreement - Mattamy (Rouge) Ltd. v. the City of Toronto (Divisional Court) 179 O.A.C.170 and accordingly, the Board cannot require deletions to the financial security schedule of the Subdivision Agreement. The Board can deal with revisions to draft conditions. The Board's final Order for Subdivision approval is withheld in anticipation that financial conditions will be reasonably and fairly applied in the ·executed Subdivision Agreement to be filed with the Board.

17Based on the above noted case law, the Township submits that it consistently supports the position that while the Tribunal has the authority to amend conditions to address specific issues between the Parties, it does not have the jurisdiction to consider or determine the terms of a subdivision agreement, nor can it compel a municipality to execute such an agreement. There is no dispute between the Parties regarding the Tribunal’s lack of jurisdiction to mandate the execution of an agreement by the municipality.

18The Township submitted that the Oak Bay Developments has not indicated an intention to seek revisions to condition No. 8, which pertains to the subdivision agreement. However, Oak Bay Developments does seek changes to the terms of the agreement, as evidenced in Issue 2 of the Procedural Order and Oak Bay Developments proposed revised issues list. The Township further submits that any attempt to seek revisions to the conditions based on Issue 2 or Oak Bay Developments’ revised issues list effectively amounts to a request to amend the agreement, thereby compelling the Township to enter into a specific condominium agreement. To support this position, the Township refers to Issue 2 as outlined in the Procedural Order, as well as to the proposed revised issues list of Oak By Developments proposed revised issues list, both of which are detailed in the responding motion record (found in Exhibit No. 2).

19The Township suggested that the Oak Bay Developments request and the procedural history of this matter indicate that the focus has consistently been on revising the terms of the subdivision agreement rather than amending Condition No. 8. In that regard, the Township's position is as follows:

a) There has been no request for revisions to Condition No. 8. Oak Bay Developments has only ever sought revisions to the subdivision agreement, not Condition No. 8. The notice of appeal does not mention condition 8, and only issue one in the procedural order addresses conditions referring to schedule B, which does not seek revisions to Condition No. 8;

b) The proposed issue 2 and refined issues of Oak Bay Developments focus on the terms of the subdivision agreement, rather than the conditions. The Township argues that this is not a request to amend the conditions, but rather an attempt to modify the agreement itself, which is beyond the Tribunal's jurisdiction. The refined issues list contains editorial revisions and detailed modifications, not specific issues between the Parties, such as noted in the Sudbury Case.

c) The Township asserts that the Tribunal is not the appropriate forum for negotiating the terms of a subdivision agreement. Rather, these types of revisions should be addressed between the parties directly. Oak Bay Developments request effectively seeks to impose a specific agreement on the Township, which is not within the Tribunal’s statutory authority or the spirit of the governing legislation;

d) Despite the continued submissions of Oak Bay Developments, no formal request has been made to amend the conditions. Oak Bay Developments is merely seeking confirmation of its refined issues list, which the Township asserts is an attempt to compel the Township to enter into a specific agreement, an issue beyond the Tribunal's jurisdiction.

Therefore, the Township argues that any request to amend the condition, based on Oak Bay Developments refined issues list (“Issues List”), is essentially an attempt to force the Township into a specific agreement, which falls outside the Tribunal’s jurisdiction and is more appropriately addressed between the Parties themselves.

20The Township asserts that Oak Bay Developments motion materials incorrectly suggest a deadlock or impasse in the negotiation process. The Township denies any such deadlock or impasse regarding the agreement, emphasizing that it has acted reasonably throughout the negotiations and remains open to further discussions. No formal agreement to disagree has been reached between the Parties. Negotiations were ceased only to allow time for the Parties to prepare for the Merit Hearing. Further, the Township submitted that Schedule A of Mr. Van Ryn’s affidavit provided for an additional 25 proposed revisions that were never raised during settlement discussions. An impasse cannot exist when one Party, in this case the Township, has not had the opportunity to respond to such requests. Therefore, the Township argues that there is neither a deadlock nor an impasse.

21Regardless, the Township maintains that an argument citing a deadlock or impasse is not relevant to the current motion. Section 51 of the Act does not provide the jurisdiction sought by Oak Bay Developments. Despite this clear legislative intent, Oak Bay Developments is attempting to impose authority on s. 51 that is not present. No contextual interpretation can justify the inclusion of a power that is explicitly granted elsewhere in the Act.

Oak Bay Developments

22Oak Bay Developments submits that they have not reached an agreement on the implementation of Condition No. 8 with the Township. They argue that certain provisions in the Township's proposed agreement are unfair, unnecessary, unreasonable, irrelevant, and/or inappropriate. Oak Bay Developments asserts that if the Parties are unable to implement a Tribunal imposed draft plan condition, the Tribunal has the authority to reconsider, revise, or remove the condition from its approval.

23In exercising this jurisdiction, the Tribunal is responsible for understanding the reasons behind any deadlock in implementing the condition and must consider these factors when making its determination. The Tribunal's duty is to assess whether the draft plan condition is satisfactory in light of all the relevant circumstances, including the Township’s approach to implementation. The Tribunal may amend the condition to resolve any impasse and ensure the condition is implementable.

24Counsel for Oak Bay Developments stated at the Hearing that while there were no issues with the wording of Condition No. 8 itself, the dispute lies in its implementation. Referencing the Sudbury Case, Counsel emphasized the importance of how the condition is implemented, noting that the Tribunal has the authority to resolve disputes over the municipality’s approach. If the Parties reach an impasse, the Tribunal may amend the condition accordingly. Counsel quoted from the Sudbury Case, which states that “the scheme of the legislation, in our view, is such that the municipality does not necessarily have the final say in such matters if an agreement cannot be reached.”

25Oak Bay Developments believes that this is the situation currently faced, in which an agreement cannot be reached. Counsel also referenced another excerpt from the Sudbury Case:

In our view, if the Minister can take the requisite steps under this provision to settle disputes between owners and municipalities which show that his or her condition is unreasonable or unsatisfactory, then surely as strong a case for this power can be made with respect to subs. (7).

26Furthermore, Counsel noted that, while the Board in the Sudbury Case ultimately chose not to alter the condition, it acknowledged that the Tribunal can /could intervene if negotiations between the parties /were to falter. Oak Bay Developments believes that this is precisely the issue in the matter before the Tribunal and asserts that the Tribunal Interim Order recognized the need for such intervention by offering to be spoken to should there be difficulties in fulfilling the conditions.

27Oak Bay Developments referenced the Caerleon Case, in which the Board concluded it could not require a municipality to enter into a specific subdivision agreement but noted that it could intervene with respect to the implementation of the condition.

[…] the problem may be overcome, if justified, by revising condition 11 so as to require only the payment of a specified amount in full satisfaction of the municipality’s monetary requirement; and

Having determined the manner in which in the Board’s view is capable of overcoming a potential impasse […]

Counsel for Oak Bay Developments asserts that the Board revised condition 11 and removed the monetary requirement from the implementing agreement and by adding it as a revised draft condition. In the matter before the Tribunal, Oak Bay Developments request a hearing to address the impasse, asserting that certain aspects of the condition are unreasonable and unnecessary.

28Oak Bay Developments submitted the Bodnar, Re, 2014 CarswellOnt 12955 case, which states –

In other contexts, the Board has often referred to a "fourfold test", namely that conditions "must be reasonable, relevant, necessary and equal.

– and argues that this test should also apply to the implementation of conditions, asserting that the way a condition is implemented cannot be separated from the condition itself.

29Oak Bay Developments made reference to the Empire Case, which includes the statement that the county's position “could be taken as flouting of the statutory scheme of arbitration of planning disputes as laid out under the Planning Act.” Oak Bay Developments argues that in this case their appeal regarding the Township's proposed implementation of Condition No. 8 engages the very statutory scheme of arbitration described in the Act.

30Oak Bay Developments refers to the Sunset Lakes Case, where the Board acknowledged a jurisdictional limitation but stated that it could resolve the issue by revising the draft plan conditions. The board also withheld its order to ensure that the conditions were applied fairly and reasonably in the implementing agreement. Oak Bay Developments submits that this approach is similar to the relief they are seeking in the present case.

31Parties agree that section 41 of the Act addresses the Tribunal’s jurisdiction, including provisions of any agreement required. However, Oak Bay Developments emphasized that, while a site plan outlines a closed list of provisions, s. 51 of the Act, which governs the current case, is different. Section 51 provides an open list, as the Act states the Tribunal “shall have regard to, among other matters”, indicating flexibility. Under s. 51, conditions may be imposed that the planning authority deems reasonable.

32Counsel further argued that the power they are requesting be administered under s. 56 of the Act is appropriate for the Tribunal to exercise. They assert that, on appeal, the Tribunal is tasked with determining whether the conditions meet the “fourfold test” (reasonable, relevant, necessary, and equitable) and how those conditions are to be implemented. Oak Bay Developments suggests that, in reviewing the Township's approach to implementation, the Tribunal has the power to resolve any impasse that may arise.

33In conclusion, Oak Bay Developments submits that, after more than six months of discussions and multiple drafts of the agreement, an impasse remains regarding the implementation of Condition No. 8, which requires the Tribunal’s attention to resolve. Oak Bay Developments argues that accepting the Township's position on the limits of the Tribunal's jurisdiction under s. 51(56) contradicts the goals of the Act in resolving planning disputes. Oak Bay Developments emphasizes that it is the Tribunal’s responsibility to assess whether or not the imposed condition is reasonable given the circumstances at the time, and including how the municipality plans to implement it.

Issues and findings

34The distinction between amending a condition and determining the contents of an agreement is crucial. The Tribunal has the authority to assess the reasonableness of a condition and can amend it accordingly, but it cannot dictate the contents of the underlying agreement. This authority is not granted under s. 51 of the Act. The Tribunal agrees with the Township that if the legislature had intended to grant such power it would have explicitly done so, as seen in other sections of the Act.

35S. 51(25)(d) allows the imposition of conditions on municipal agreements, and the Tribunal prefers the evidence of the Township that this ensures that negotiations proceed without undermining the bargaining power of municipalities.

36The motion presented by the Township concerns the reasonableness of the conditions under section 51(25)(d), not the contents of the municipal agreement. Oak Bay Developments asserts that a Hearing is required to detail the matters of impasse which they assert are unreasonable and unnecessary. For the purposes of this Motion Hearing, the Tribunal concurs with the Township’s position that the alleged impasse is irrelevant, and therefore, a Hearing is not required. Since the Township remains open to continue negotiations, the Tribunal finds the Township’s argument to be persuasive for the following reasons: Oak Bay Developments has not demonstrated an actual deadlock; the Township has expressed a willingness to continue negotiations and has not formally ended discussions; and, furthermore, Oak Bay Developments has submitted 25 revisions that were never raised during settlement discussions, meaning the Township has not had an opportunity to negotiate these items; it is premature to claim an impasse before giving the Township an opportunity to respond to these newly introduced revisions.

37While Oak Bay Developments is correct that the Tribunal can assess the satisfaction of a draft plan condition, including its implementation by the municipality, Oak Bay Developments is not seeking to amend the condition itself. Instead, Oak Bay Developments is requesting changes to the agreement’s contents, which falls outside of the Tribunal's jurisdiction under s. 51.

38While the Tribunal can amend a condition, it lacks explicit power under s. 51 to determine the contents of an agreement between the municipality and developer or compel its execution. Its role is limited to assessing the reasonableness of the condition itself, not the agreement’s specifics. While Oak Bay Developments raises concerns about implementation, the Tribunal cannot dictate the terms of the agreement nor compel its signing. The condition in question requires a municipal agreement, and the Tribunal’s task is to determine whether that condition in itself is reasonable, which it has found it to be. Oak Bay Developments has raised concerns about the implementation of conditions. However, the Township correctly asserts that this issue is being raised for the first time at this stage. Oak Bay Developments had several months to identify and address concerns regarding the conditions yet failed to do so until now. The shift in position constitutes a recharacterization of Oak Bay Developments case and undermines its credibility. The Tribunal finds that the Township has demonstrated good faith, openness, and a willingness to continue to negotiations outside of a Tribunal Hearing.

39Oak Bay Developments’ introduction of 25 new revisions, as outlined in Schedule A of Mr. Van Ryn’s affidavit, further complicates the matter. These revisions were not part of settlement discussions and suggest that further negotiations between the Parties are needed. The Tribunal encourages continued efforts to resolve the matter through negotiation and is available for Tribunal-led mediation if desired.

ORDER

40UPON MOTION to the Tribunal by the Township of Georgian Bay for the Tribunal’s Direction on its jurisdiction to determine the terms of a condominium agreement, of which was a required condition of the draft plan of subdivision for an appeal pursuant to subsection 51(43) or (48) of the Planning Act and whether the Tribunal has the jurisdiction to require the execution of said condominium agreement by the Township, and, after the Hearing of the motion,

41THE TRIBUNAL ORDERS that the Motion for Directions brought by the Township of Georgian Bay is granted, and the Tribunal provides the following Directions for the purposes of this appeal before the Tribunal:

a) that the Tribunal does not have the jurisdiction on an appeal brought, pursuant to subsections 51(43) or (48) of the Planning Act, to determine the terms of a condominium agreement required under the conditions of draft plan approval of District of Muskoka Condominium Plan File S2008-06; and,

b) the Tribunal does not have the jurisdiction to require the Township to execute a condominium agreement; and,

c) Issue 2 as set out in Attachment 2 to the procedural order issued on May 31^st, 2024 is hereby struck from the issues list.

“j. innis”

j. inniS

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.