Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 15, 2025
CASE NO(S).: OLT-25-000013
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Jasmine Rosemarie Davis
Owners: Mazen Thebat and Monah Aboomair
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to demolish an existing single dwelling and a wood-sided detached garage, construct a 2-storey single dwelling inclusive of a garage, install a new private sewage disposal system, and widen the existing gravel driveway on a fire-impacted lot
Reference No.: H/R/2022-2023/684
Property Address/Description: 8470 Guelph Line
Municipality/Upper Tier: Milton/Halton
OLT Case No.: OLT-25-000013
OLT Lead Case No.: OLT-25-000013
OLT Case Name: Davis v. Ontario (Niagara Escarpment Commission)
Heard: March 27, 2025 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Jasmine Rosemarie Davis | Richard Davis* Jake Durrwachter* |
| Niagara Escarpment Commission | N/A |
| Mazen Thebat and Monah Aboomair | Mazen Thebat* |
DECISION DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision arises from a Case Management Conference (“CMC”) of the Ontario Land Tribunal (“Tribunal”) regarding an appeal (“Appeal”), by Jasmine Rosemarie Davis (“Appellant”), concerning a Notice of Decision rendered by the Niagara Escarpment Commission (“Respondent”) dated December 9, 2024 (“Notice of Decision”), concerning Development Permit Application H/R/2022-2023/684. The Notice of Decision grants conditional approval to demolish an existing single dwelling and a wood-sided detached garage, construct a 2-storey single dwelling inclusive of a garage, install a new private sewage disposal system, and widen the existing gravel driveway on a fire-impacted lot at the site located at 8470 Guelph Line, Milton (“Site”).
2Prior to the CMC, the Respondent notified the Tribunal that it would not be attending the CMC or taking an active role in the Appeal. Further, the Appellant advised that she would also not be attending the CMC in person and would appear via her representatives.
3At the CMC, (i) Mazen Thebat and Monah Aboomair (“Owners”) requested Party Status; (ii) Keith Timbers requested Participant Status; (iii) the Owners brought a motion for an order dismissing the Appeal; and (iv) the Parties discussed certain opportunities for settlement.
STATUS REQUESTS
4The Owners submitted a request for Party status. Their request for Party status was on consent. The Tribunal found that the Owners have a genuine and direct interest in the proceeding, will be impacted by the Tribunal's Decision, and will assist the Tribunal in making its Decision. The Tribunal found that there are reasonable grounds to add the Owners as a Party and granted them Party Status, as requested.
5Keith Timbers submitted a request for Participant Status on the basis that he owns a neighbouring property which abuts the Site. The request for Participant Status was on consent. The Tribunal found that there are reasonable grounds to add Mr. Timbers as a Participant and granted him Participant Status, as requested.
SETTLEMENT DISCUSSIONS AND ISSUES
6The Parties provided an overview of the issues, including past attempts at a settlement. The Appellant confirmed that its Appeal is based upon four basic objections, being (i) concerns regarding the proposed new sewage system to be installed and its proximity to the property line; (ii) the potential negative impact of the proposed development on the existing trees located at and around the Site; (iii) the size of the proposed development in the context of the neighbourhood and privacy considerations; and (iv) objections regarding the compliance of proposed setbacks for the new development. The Tribunal advised that any issues concerning compliance with setbacks prescribed by municipal by-laws and/or the Ontario Building Code were outside the scope of this Appeal, and accordingly, any setback matters could only be addressed insofar as they are directly related to the Notice of Decision and applicable provisions of the Niagara Escarpment Plan, 2017 (“NEP”). The Appellant acknowledged, this limitation and advised that its principal objection concerned the proposed development being simply “too much house” for the size of the Site.
7The Owners submitted that they had made several attempts at a settlement and had offered to provide additional information to the Appellant in order to address all applicable concerns, including expert reports regarding the proposed new sewage system and a tree preservation plan. While it appears that some communication has occurred between the Parties, such discussions do not appear to have generated any meaningful headway in resolving the matters under appeal. The Owners remained very open to continuing settlement negotiations and made several outreach attempts to the Appellant during the course of the CMC, however, the Appellant did not appear responsive. The Tribunal highlighted the importance of neighbourly relations regardless of the outcome of the Appeal, and encouraged the Parties to continue communications in this regard if feasible.
MOTION TO DISMISS
8The Owners brought a Motion to Dismiss before the Tribunal regarding the Appeal on the basis that the Appeal lacks valid planning grounds, is frivolous and vexatious, and has no reasonable prospect of success (“Motion”).
9The relevant legislation concerning the dismissal of an appeal without a hearing is set forth in Section 15.4 of the Ontario Land Tribunal Rules of Practice and Procedure (“OLT Rules”), which reads in part as follows:
15.4 Dismissal of Proceeding without a Hearing The Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing:
a. if the party who brought the proceeding has not paid any fee required to be paid under the OLT Act;
b. if the party who brought the proceeding has not responded to a request by the Tribunal for further information within the time specified by the Tribunal;
c. if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;
d. in any circumstance listed in subsection 4.6 (1) of the SPPA, including where:
i.the initiating matter is frivolous, vexatious or is commenced in bad faith;
ii.the initiating matter deals with matters that are outside the jurisdiction of the Tribunal; or
iii.some aspect of the statutory requirements for bringing the proceeding has not been met; or
e. in any circumstance provided for under any Act.
10The Owners and the Appellant each made oral submissions at the CMC in respect of the Motion, which are summarized below.
New Sewage System
(i) The Owners submitted that they had retained numerous experts in respect of the proposed new sewage system, including a soil expert and a professional septic design firm. A detailed septic design including flow calculation, treatment unit design, leaching bed specifications and setback has been prepared and will be submitted to the municipal authorities in due course in order to obtain all required building permits. The Respondent did not raise any objections to the proposed sewage system and included a rough septic bed design in the Notice of Decision for site planning purposes.
(ii) The Appellant did not raise any specific objections concerning the proposed septic system other than (I) to note that “there appears to be very little room” for the septic bed; and (II) to express concern that the new system may infringe on the tree protection zone. The Appellant does not propose to present any expert evidence to support either of these contentions at a hearing. The Appellant also referenced various sections of the Ontario Building Code regarding septic system setbacks, however as noted above, these matters are outside the scope of this Appeal.
Tree Protection Zone
(i) The Owners retained a professional arborist who has been actively involved in establishing a tree preservation plan and will be directly supervising the proposed development. They also addressed several concerns raised by the Appellant at the CMC, to the effect that (I) neither a proposed privacy fence nor the new septic system will impede on the tree protection zone; and (II) although a disposal container was initially placed within the tree protection zone in error, it was promptly removed. The Respondent has accepted the tree preservation plan submitted by the Owners and the Notice of Decision stipulates that the proposed development is conditional upon compliance with such tree preservation plan.
(ii) The Appellant expressed general concerns with the existing trees including possible interference with the roots of two trees that are situate on her property. The Appellant also raised concerns that a proposed privacy fence and the new sewage system would have a negative adverse impact on the trees on and around the Site, however, the Appellant provided no further specificity and does not propose to introduce any expert evidence at a hearing in respect of either of these matters. As noted above, the Appellant’s concern with a disposal container being placed within the tree protection zone was promptly resolved.
Size of Proposed Development and Setbacks
(i) The Owners reviewed the detailed process, which they underwent with the Respondent regarding the size and setback of the proposed development, and its compliance with the requirements of the NEP and other applicable policies. In this regard, the Town of Milton (“Town”) had originally objected to the setback of the proposed development on the basis of scenic resources and safety considerations, following which the setback was revised from 3.3 metres (“m”) to 5.0 m from a future 35 m wide Guelph Line right of way. Following this change and a relocation of the driveway, the Town and Region of Halton both confirmed their satisfaction with the final development plan. The Notice of Decision also contains conditions requiring compliance with the approved landscaping plan, revegetation where required, and a requirement that all structures utilize colours and/or materials that are harmonious with the surrounding landscape. In addition, all exterior lighting must be designed to be minimal, subdued, of low height, and downward facing.
(ii) The Appellant made several detailed submissions regarding the setback requirements of local municipal by-laws and the Ontario Building Code, however as noted above, these matters are outside the scope of this Appeal. The Appellant also made several submissions regarding the size and character of other houses in the community and the importance of retaining the character of the neighbourhood. This is a valid consideration in the context of the scenic resource protections set forth in the NEP, and is further addressed by the Tribunal below.
ANALYSIS
11The concerns raised by the Appellant regarding the proposed sewage system and tree protection zone do not identify any specific breaches of the applicable sections of either the NEP or the Ontario Provincial Planning Statement (“PPS”). When presented with the opportunity to address this lack of specificity at the CMC, the Appellant argued that the Owners had failed to establish that the proposed development meets the requirements of these policies. However, the onus of proof in this Appeal is not on the Owners to establish that the proposed development meets the requirements of the NEP and PPS, and is instead on the Appellant to establish that the proposed development does not meet the applicable criteria. The Appellant indicated that they did not intend to present any expert testimony at a hearing to contradict the findings of the Respondent in respect of the proposed sewage system or the tree protection plan, and accordingly it is unclear how the Appellant could be successful in establishing either of its claims in this regard.
12While the Appellant’s submissions regarding setbacks prescribed by municipal by-laws and the Ontario Building Code are outside the scope of this Appeal, the Appellant also referred to the “mandate of the NEC to allow only compatible development”. In this regard, the Appellant made various submissions, including submissions relating to setback concerns, the size of the proposed development (including its proposed patio and pool) creating privacy concerns, and the “city design” of the new home being inconsistent with the character of the surrounding neighbourhood. However, the Appellant did not identify any specific sections of either the NEP or the PPS that may be breached by the proposed development. Further, the staff report of the Respondent dated August 30, 2024, as amended November 20, 2024 (“NEC Staff Report”), acknowledged that the proposed dwelling “will be significantly taller and larger than the existing dwellings in the surrounding area and remains disproportionately close to the road”, and in order to minimize the dwelling’s impact on the open landscape character of Guelph Line, the following design measures were prescribed:
use of colours and construction materials harmonious with the landscape;
minimal, and subdued, downward facing exterior lighting; and
not permitting second storey soffit lighting.
13The NEC Staff Report recommended that the proposed development be approved based on the conditions set forth therein, including those conditions set forth in paragraph 12 above to address the size and setback of the dwelling. The Appellant does not intend to present any expert evidence to contradict the findings set forth in the NEC Staff Report, and accordingly it is unclear how the Appellant could be successful in establishing its claims that the proposed development is not consistent with the mandate of the NEC to allow only compatible development.
14In consideration of the above, it is also worthy of note that the Appellant was under the impression that the CMC constituted the actual Hearing in respect of the Appeal and not just a prelude to a Hearing. Accordingly, the submissions of the Appellant that were presented at the CMC (or lack thereof) can be assumed to be representative of those that would be presented at a final Hearing in this matter. Accordingly, given the absence of any witnesses or expert evidence presented by the Appellant, and the failure of the Appellant to identify any specific breaches of either the NEP or the PPS in respect of the proposed development, the Tribunal is of the opinion that the Appeal has no reasonable prospect of success. Accordingly, the Tribunal hereby grants the Owners’ Motion to Dismiss this Appeal further to Section 15.4(c) of the OLT Rules.
ORDER
15The Tribunal orders that the Motion is granted and the Appeal by Jasmine Rosemarie Davis be dismissed.
“Jennifer Campbell”
JENNIFER CAMPBELL
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.