Cheryl Batten et al v. Lanark (County), 2025 CanLII 2775

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

January 13, 2025

CASE NO(S).:

OLT-24-000686

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

Appellant:

Cheryl Batten

Appellant:

Krumac Holdings Inc.

Appellant:

Pegasus Development Corporation

c/o Andreas Foustanellas

Subject:

Proposed Official Plan Amendment

Description:

Appealing town-wide Official Plan Amendment No. 8

Reference Number:

0928-OP-23006

Property Address:

Town-wide, 28 High Street

Municipality/UT:

Carleton Place/Lanark

OLT Case No:

OLT-24-000686

OLT Lead Case No:

OLT-24-000686

OLT Case Name:

Cheryl Batten et al v. Lanark (County)

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

Request by:

Town of Carleton Place

Request for:

Dismissal Without a Hearing

Heard:

December 5, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Krumac Holdings Inc.

Michael Polowin

Michelle Cicchino

Pegasus Development Corporation c/o Andreas Foustanellas

Mark Denhez

Cheryl Batten

Unrepresented

Town of Carleton

Emma Blanchard

Laura E. Robinson

County of Lanark

Gregory Meeds

MEMORANDUM OF ORAL DECISION DELIVERED BY jackie denyes ON december 5, 2024, AND ORDER OF THE TRIBUNAL

INTRODUCTION

Background

1This first Case Management Conference (“CMC”) was convened for appeals brought pursuant to s. 17(36) of the Planning Act (“Act”) for an Official Plan Amendment No. 8 (“OPA 8”) in the Town of Carleton Place (“Town”) regarding Appeal No. 010538 (“the Batten Appeal”), Appeal No. 010537 (“the Pegasus Appeal”), and Appeal No. 010539 (“the Krumac Appeal”).

2The approved Amendment No. OPA-02-2021 introduces several changes to the Official Plan particularly affecting development densities and policies across various districts with the Town including significant modifications to the Mississippi District concerning specific strategic properties relevant to the ongoing Appeal.

3An extended Interim Control Zoning By-law No. 44-2020 will, for a further period of up to one year, restrict the development of apartment, stacked townhouse, triplex or quadplex dwellings exceeding 28 feet in height. Further, the extended Interim By-law will allow the Town to review the results of the comprehensive land use, heritage, built form, and neighbourhood analysis study for the affected lands.

4Pegasus appeals the Town of Carleton Place Official Plan (“TOP”) Greenfield policies related to the density requirements in several districts throughout the Town of Carleton Place.

5Cheryl Batten appeals the adoption of the TOP relating to the density requirements in several districts throughout the Town of Carleton Place.

6Krumac Holdings Inc. appeals the adoption of the TOP as the Appellant owns one of the four strategic properties identified in the TOP, specifically the former Finlay Foundry site at 28 High Street. According to the TOP, strategic properties are designated as Targeted Growth Areas for the Town.

7Prior to the commencement of the CMC, the Tribunal was informed the Respondent/Town would be bringing a Motion in writing to deal with the threshold issue that the Appeal filed by Pegasus is invalid as Pegasus had not made written or oral submissions to Council before the OPA 8 adoption and thereby its Appeal is invalid and should be dismissed by the Tribunal.

Chronology of Events

8A succinct review of the chronology of events can be found in the Affidavit of Nicole Dwyer, Director of Development Services in the Planning Department at the Town of Carleton Place who sets out as follows:

• 2020 – the commencement of a planning review that resulted in OPA 8 to the Town’s Official Plan;

• March 31, 2023 – Notice of Public Meeting and Open House for OPA 8;

• April 27, 2023 – an in-person Open House conducted at Town Hall as well as a Virtual Open House digitized for public viewing on the Town’s website;

• May 9, 2023 – Town Council held a statutory Public Meeting in person. Eight residents registered to speak, and four residents chose to provide comments. No one from Pegasus or on its behalf as agent, made oral comments to Council during the public meeting;

• June 20, 2023 – Town Council passed By-law No. 63-2023 to adopt OPA 8;

• May 8, 2024 – County Council considered By-law No. 2024-20 to approve OPA 8 for the TOP. No one from Pegasus or on its behalf as agent made oral comments to Council during the meeting;

• May 13, 2024 – Lanark County issued noticed that it had approved OPA 8;

• June 3, 2024 – Pegasus submitted an Appeal Form (A1) to the County. Within Section 3A “Oral/Written Submissions to Council” section, Pegasus Developments checked the box “Not applicable”;

• July 16, 2023 – Case Manager from the Tribunal wrote to Lanark County seeking the location of Pegasus’ written or oral submission;

• July 17, 2024 – Ms. Lam on behalf of the County confirmed that neither the County nor Town received any written or oral submissions from Pegasus before the OPA adoption;

• July 17, 2024 – Mr. David Jung, Case Management Administrative Assistant for the Tribunal, wrote to Pegasus to advise that, because there was no submission to Council before the adoption of the plan, the Tribunal cannot accept the Appeal for processing;

• July 22, 2024 – Counsel for Pegasus wrote to Mr. Jung contesting the invalid appeal. The correspondence referred to five emails from Benjamin Clare (Land Use Planner at McIntosh Perry) to planning staff at the Town and/or County dated May 22, 2022, June 2, 2023, June 5, 2023, December 11, 2023, and April 15, 2024 (Mr. Clare does not identify himself as agent to any persons or entities or state that he is providing comment on behalf of his client). It is the opinion of the Respondent Town that these emails do not constitute written submissions to the Council by the registered owner of the land.

• August 1, 2024 – Mr. Jung notified the County and Town that the Tribunal intended to “process the appeal with Pegasus as an appellant based on the July 22, 2024, letter sent to the Tribunal from Counsel.” Mr. Jung advised that a motion could be filed if the County continued to deem Pegasus’ status as invalid. The County and Town disagreed with the Tribunal’s decision in the email chain;

• September 20, 2024 – Counsel for Pegasus submitted an updated version of the Appeal Form and within Section 3A under “Oral/Written Submissions to Council”, the section was checked “Not applicable” and added the additional words “multiple overtures to meetings of municipal officials (see file)”.

MOTION

9The Parties provided comprehensive written materials in advance of the CMC which included the Notice of Motion on behalf of the Town, Response to Notice of Motion by Pegasus and Reply to Response to Notice of Motion by the Town. The Tribunal further allowed the Parties to make additional brief oral submissions on clarification points.

The Town

10It is the contention of the Town that Pegasus, being the registered owner of certain lands to which the TOP applies, did not make any submissions at an extensive public meeting or provide any written submissions to Council before OPA 8 was adopted and thereby does not meet the strict requirement of s. 17(36) to have standing to file an Appeal of the County’s approval of OPA 8. Further, Pegasus or anyone on its behalf, did not make submissions at the Council meeting or provide written submissions to the County Council before it approved OPA 8.

11The Town submits that s. 17 of the Act distinguishes between the adoption and approval of Official Plans specifically:

a. Council for the Municipality adopts the amendment [s. 17(21) and (22)] and,

b. Council for the Approval Authority approves the amendment [s. 17(21) and (34)].

12In summary, it is the opinion of the Town that Pegasus has not met the statutory requirements for bringing an appeal and the Tribunal cannot convert an invalid appeal into a valid appeal where the purported Appellant did not participate in the process before Council made its decision.

13The Town cites Liddy v. Vaughan (City), 2015 ONSC 5939 (Div. Ct.) wherein the Divisional Court confirmed the premise that participation in emails sent to planning staff outside of the public consultation and review process in ad hoc meetings leading up to the introduction of a proposed Zoning By-law to Council was not sufficient to grant standing. The Court confirmed “Only addressing City Council orally or in writing in respect of the By-law itself, however, will give someone standing for an appeal of the by-law”.

Response to Notice of Motion by Pegasus

14Mr. Denhez confirmed that Pegasus had not made any written or oral submissions to the Town before OPA 8 was adopted. Rather, he submits that the Town was fully apprised “at the highest levels” through letters to responsible senior Town officials and through remote meetings (i.e., “profuse conversations” with Planning Staff who are agents of Council and in casual conversation with Members of Council) of the Pegasus position.

15Mr. Denhez suggests there can be no denying that municipal officials were fully apprised of the Pegasus plans, submissions and arguments. He indicates the Town’s Record does not contain any such denial.

16Mr. Denhez seeks an order dismissing the Town’s Motion for disqualification of the Pegasus Appeal under s. 17(36) of the Act, citing substantive, procedural and public interest grounds.

17In the alternative, if Pegasus is disqualified under s. 17(36), then Pegasus seeks an Order adding Pegasus back in with Party Status under s. 17(44.2) of the Act.

18Regarding the absence of Pegasus communications contained in the Affidavit by the Town of November 15, 2024, that “no written submissions were submitted to the Town by Pegasus or any person or entity as agent to Pegasus before the Town’s adoption of the OPA 8”, Mr. Denhez asserts that is incorrect as Exhibits “A” and “B” attached to Mr. Clare’s Affidavit lists the Town’s Director of Planning as a recipient of the submissions.

19Quoting the law, Mr. Denhez refers to subsection 64(1) of the Ontario’s Legislation Act as a starting point: “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”

20Mr. Denhez relied on the words quoted in Re Stanton Bros. Ltd, 2023 CarswellOnt 2566: “to ensure that individuals or corporations become engaged in the planning process at an early stage and that their positions are known to the Council when it arrives at its decision with respect to an Official Plan Amendment”.

21Acknowledging the jurisprudence contained in Chadjimichaelidis v. Brampton (City), 2012 CarswellOnt 7851 (OMB), The Old Markham Village Ratepayers Inc. v. Markham (City), 2018 CarswellOnt 17271 (LPAT), Liddy v. Vaughan (City), 2015 ONSC 5939 (Div. Ct.) and Re Abode Varsity Living Inc., 2015 CarswellOnt 3609 wherein appeals were dismissed for disqualification under subsection 17(36), Mr. Denhez conceded that there are more with distinct scenarios depending on level of engagement with the municipality.

22He sums the argument of the Town on this Motion as indicating “even a stream of submissions is irrelevant unless the addressee of written submissions is listed as “Council”. A letter addressed to the municipality, on a planning matter counts if it says, “Attention Council” but not if it says, “Attention Planning Director”. And similarly, submissions to a meeting count if they are a statutory public one but not a remote one (e.g., during COVID as in this instance) regardless of who is in attendance.

23Mr. Denhez suggests the Law of Agency is a basic principle that follows that an official who legally represents the Municipality also represents Council – those submissions to a person holding high municipal authority, fully authorized by Council, would get the same treatment as submissions to Council itself.

24Mr. Denhez further derives the view from the Municipal Act that the statutory role of municipal staff is to “provide advice to Council on policies and programs.” He suggests that “if senior municipal officials cannot be counted on, at law, to be the eyes and ears of Council, then it throws into question the whole municipal process.”

25He further made submissions on the public interest and that locally there are no other subdivisions in this class and that Pegasus is the only homebuilder in Ontario to fill this niche and should not be disqualified.

26In his conclusion, he relied on the words contained in Stanton Bros Ltd. 2013 CarswellOnt 2566 that “there is no requirement for an appellant to prove they made submissions either orally or in writing.”

27Mr. Denhez proposes in the alternative, if Pegasus were to be disqualified as an Appellant, they could be re-admitted as a Party under subsection 17(44.2) of the Act. He outlined the “Obvious Factors” to be considered and assessed as a benchmark by the Tribunal in the cases of R. v. Shouldice, 2013 CarswellOnt 5073 and Oakville (Town), 2010 CarswellOnt 7078.

Reply to Response to Notice of Motion

28Ms. Blanchard made brief reply comments. She indicated the validity of the Pegasus Appeal was not already determined by the Tribunal as stated in the Pegasus response. Ms. Blanchard clarified the Tribunal’s Case Management Administrative Assistant wrote: “After a consultation with a Deputy Registrar, given that there has not been an update from the County regarding the validity of the Pegasus Appeal, the case will continue to process with Pegasus on the basis that they made submissions to the County…” She notes the difference as being an administrative decision and not an adjudication by a Member of the Tribunal.

29Ms. Blanchard further indicated that the Town brought this motion contesting the validity of the Pegasus Appeal prior to the first CMC and therefore is timely and should be adjudicated by the Tribunal. Mr. Meeds, on behalf of the County, indicated that Krumac is a strategic property with specific policies and that there may or may not be policies that overlap. However, until an Issues List is completed, it would be premature for the Tribunal to make a ruling on granting Party Status to Pegasus.

30Ms. Blanchard disagrees with Pegasus’ response that municipal staff are “agents” of Council for the purpose of s. 17(36) of the Act. She suggests the May 12, 2022, email from Mr. Clare to Lanark County refers to a pre-consultation process as it pre-dates the Town’s notice of public meeting by over 10 months.

31Ms. Blanchard suggests the only question for the Tribunal in this Motion to consider is the validity of the Pegasus Appeal. She indicated if Pegasus wishes to request Party Status in the Batten Appeal, then Pegasus should submit a proper Party Status request form so that all impacted appellants have notice and can make responding submissions to the request. She further pointed out to determine Party Status of Pegasus at this point, would be premature as the issues in the Krumac and/or Batten appeals are not finalized, and it is unknown if there are any issues in common with the remaining appellants that Pegasus can shelter under. However, she indicated Krumac is a site-specific appeal and there is no Party Status available as Pegasus has no interest into what happens at 28 High Street, Carleton Place. The Party Status would only apply to the Batten Appeal.

RULING

32The Tribunal finds that the Appeal on behalf of Pegasus does not meet the statutory criteria to constitute an Appeal of OPA 8 and is not a valid appeal pursuant to s. 17(36) of the Act being “a person or public body who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.”

33The requirement to make submissions to Council has been strictly applied by the Tribunal to ensure that matters are decided at the first instance by Members of Municipal Council as a whole who are elected and accountable to the public to have the best interests of their community at the forefront. For example, attending a Public Information Centre or Open House and informally speaking to Councilors at that event has been found not to meet the requirement. The Tribunal finds that ad hoc meetings and emails with Planning Staff outside of the formal public meeting and review process of Council are not sufficient to grant Pegasus standing for this Appeal as it does not constitute “oral submissions at a public meeting or written submissions to the council.”

34In the leading case of Liddy v. City of Vaughan, 2015 ONSC 5939 indicates:

6“…prior to the 2006 amendment, the OMB had discretion to relieve from the strict application of this provision and thus a broader standing principle was in place than is the case now. The requirement of s. 34(19) 2 is mandatory for any person seeking standing based on that provision.

35And further:

8“…purpose of the standing requirement, which is to ensure that matters are decided at first instance by City Council as it makes it more practical for the City to know and give personal notice to all persons with standing to bring an appeal. As is reflected in the cases and in the history of the case at bar, the planning process for a large project affords members of the public many opportunities and ways to make their views known. Only addressing City Council orally or, in writing, in respect of the by-law itself, however, will give someone legal standing for an appeal of the by-law under s. 34(19) 2.”

36Section 2.1(1) and (2) of the Planning Act allows for Approval Authorities and the Tribunal to have regard to certain matters:

“(1) a) any decision that is made under this Act by a municipal council or by an approval authority and relates to the same planning matter; and

(b) any information and material that the municipal council or approval authority considered in making the decision described in clause (a);

37Pursuant to Tribunal Rule 8.1, the Tribunal has discretion to hear requests on the day of the hearing event regarding granting Party and Participant Status. It is usually a fluid process. It is difficult for the Tribunal to predict what the evidence will be as issues may arise that Pegasus could, indeed, shelter under – no one has a crystal ball and the parties have agreed to continued discussions.

38The Tribunal is mindful of the criteria set out in 1137528 Ontario Ltd. v. Oakville (Town) and the “obvious factors” for the Tribunal to consider when determining whether to grant Party status that include public interest, prejudice, direct interest, multiplicity of proceedings and historical background.

39However, Tribunal Rule 8.3 addresses the concept and restrictions of “sheltering” which has been developed through Tribunal cases dealing with Official Plans and Zoning By-laws. A Party must have an Appeal to shelter under; the underlying idea if a Party wished to bring new issues or have standalone status, they should have brought a proper Appeal. The Tribunal cannot create appeal rights. Further should an Appellant withdraw their Appeal, a sheltering Party to the proceeding is not permitted to maintain that Appeal.

40Although Mr. Denhez requested Party status as an alternative remedy in his Motion materials, the Town is requesting that a proper Party Status request form be submitted so all impacted Appellants have notice and may make responding submissions. The Tribunal accepts the Town’s submissions, and having allowed the Motion, directs that added Party status, if sought, be considered at a future CMC.

CASE MANAGMEMENT CONFERENCE

41The Tribunal scheduled a CMC to commence on Tuesday, March 4, 2025, at 10 a.m. by Video Hearing.

42Parties are asked to log into the CMC at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/979388733

Access Code: 979-388-733

43Parties and observers are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

44Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free). 1-888-299-1889. The access code is the same as the access code noted above.

45Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the CMC by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

46THE TRIBUNAL ORDERS that:

(a) The Motion brought by the Town of Carleton Place is granted and the appeal by Pegasus is dismissed.

(b) A Party Status Request Form from Pegasus is to be submitted to the Tribunal within five days following receipt of this written Order if it seeks to shelter under a valid appeal; and,

(c) The Case Management Conference directives are set out above.

47This Member is not seized.

48No further notice will be provided.

"Jackie Denyes"

JACKIE DENYES

Member

Ontario Land Tribunal

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

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