Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 15, 2025

CASE NO(S).: OLT-24-000406 OLT-24-000799

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Larry Dunn Subject: By-law No. 2024-14 Description: To permit the amendment of Zoning By-law 2018-65 Reference Number: P3359 Property Address: 516681 7th Line Municipality/UT: The Blue Mountains/ County of Grey OLT Case No.: OLT-24-000406 OLT Lead Case No.: OLT-24-000406 OLT Case Name: Larry Dunn v. The Blue Mountains (Town) et al

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Larry Dunn Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit the development of the lands for a 22 residential unit draft plan of vacant land condominium Reference Number: 42CDM-2023-05 Property Address: 516681 7th Line Municipality/UT: The Blue Mountains/ County of Grey OLT Case No.: OLT-24-000799 OLT Lead Case No.: OLT-24-000406

PROCEEDING COMMENCED UNDER subsection 12 and 13 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Hunter Milborne and his corporation, 1395840 Ontario Limited Request for: Request for party status and if granted, a stay/adjournment of proceedings

Heard: February 24, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
Larry Dunn	Raivo Uukivi
Town of the Blue Mountains	Denise Baker
County of Grey	Erroll Treslan

memorandum of oral DECISION DELIVERED BY S. BOBKA on february 24, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“CMC”) for an appeal brought under s. 34(19) of the Planning Act (“Act”) regarding an application for a Zoning By-law Amendment (“ZBA”) which was approved by the Town of The Blue Mountains (“Town”). It was also the second CMC for an appeal brought under s. 51(34) of the Act regarding an application for a Draft Plan of Condominium (“Draft Plan”) for which no decision was rendered within the prescribed timelines by the County of Grey (“County”). The appeals were brought by Larry Dunn (“Applicant/Appellant”) and relate to the property municipally known as 516681 7th Line (“Subject Property”).

2The proposed redevelopment is for 22 residential lots, a private road, Open Space lands, and the dedication of a 7th Line road widening to the Town.

3The proposed ZBA is to amend Comprehensive Zoning By-law No. 2018-65 which would re-zone the Subject Property to the Residential One (R1-1) and Open Space (OS) zone categories to facilitate the development of 22 single-detached dwellings. The proposed ZBA was passed by Town Council on March 11, 2024.

4The proposed Draft Plan would provide for 25 blocks, including 22 Single Detached Residential Blocks, one Open Space Block, one Road Widening Block to be dedicated to the Town, and one Block for a proposed internal private Condominium Road and associated service infrastructure. The complete application for the proposed Draft Plan was submitted on December 21, 2023.

BACKGROUND

5Prior to the first CMC, the Tribunal received a Motion to add Hunter Milborne and his corporation 1395840 Ontario Limited (together the “Moving Parties”) as a non-appellant party to the proceedings, and if granted, an adjournment of the proceedings.

6Consideration of the Motion was deferred until this second CMC, to allow the Parties to provide a full and final Issues List. The Issues List would be necessary for the Tribunal to determine whether the prospective non-appellant party (the Moving Parties) could shelter under an issue or issues raised by an appellant party as required in Rule 8.3 of the Tribunal’s Rules of Practice and Procedure (“Rules”) for a ZBA appeal arising under s. 34(19) of the Act.

7Shortly before this second CMC, the Tribunal was advised that a settlement had been reached between the Applicant/Appellant, the Town and the County, and it was proposed that a hearing to consider the settlement be set at the first opportunity, subject to availability in the Tribunal calendar.

8At the start of this CMC, a discussion ensued regarding the impact of this settlement on the current appeals. Counsel for the Applicant/Appellant highlighted that no issues remain on the Issues List for the ZBA matter, which means that there are no longer any issues under which the Moving Parties could shelter for the appeal of the matter under 34(19) of the Act. Following discussion, it was submitted, and the Tribunal agreed, that the request for party status regarding the Draft Plan appeal could proceed.

MOTION FOR PARTY STATUS AND ADJOURNMENT

9The Tribunal received the following written materials and marked them as exhibits to the Motion:

Exhibit 1A: Notice of Motion from Moving Parties (Hunter Milborne and his corporation 1395840 Ontario Limited)

Exhibit 1B: Affidavit of Daniel Hamson sworn October 31, 2024

Exhibit 2A: Notice of Response from Responding Party (Larry Dunn)

Exhibit 2B: Book of Authorities from Responding Party

Exhibit 3: Reply Submissions from the Moving Parties

10The Town and County did not file any written materials regarding the Motion. The Tribunal heard fulsome oral submissions from the Moving Parties and the Applicant/Appellant and brief submissions from the Town, who indicated that they did not oppose the request for party status while the County took no position.

Position of the Moving Parties

11Counsel for the Moving Parties confirmed that his client was now only seeking party status for the Draft Plan appeal, regarding the non-decision by the County, in order to participate in the requested hearing to consider the settlement. It was also confirmed that the adjournment was no longer being sought.

12The Moving Parties put forward the following:

a) The Moving Parties are the 50% owners of the Georgian Bay Golf Club Corporation (“GBGC”) and Georgian Bay Estates Limited Partnership (“GBEL”) and Mr. Dunn owns the other 50% of those entities. GBEL has been, and continues to, develop lands adjacent to the golf course. The Subject Property is adjacent to the golf course and was intended to be developed by GBGC and GBEL for the benefit of Mr. Dunn and Mr. Milborne.

b) The Moving Parties began an action in the Ontario Superior Court of Justice (“Ontario Superior Court”) against Mr. Dunn and various corporations related to him, regarding the “business relationship that exists and has existed between [Mr.] Dunn and [Mr.] Milborne dating back approximately 20 years.”

c) Justice Osborne of the Ontario Superior Court made an interim Order in the Action, dated May 14, 2024, that:

• Milborne was or was to be appointed as one of two directors, together with Dunn, of GBGC and GBEL;
• Milborne or his designee is to co-sign any and all cheques or approve any and all transfers over $2,500 for any and all the corporate entities involved;
• Ernst and Young is to be engaged to perform an investigative forensic audit of each of the corporate entities;
• a written construction management agreement regarding the clubhouse expansion of the Golf Course is to be drafted, and no other material contract affecting GBGC and GBEL, among other entities, will be entered into without the express written consent of both Milborne and Dunn; and
• annual shareholders meetings be arranged and held of each corporate entity with minutes circulated to Milborne and to Dunn. [Exhibit 1A, page 3, paragraph 3]

d) At the time of the Action, Mr. Milborne had not been advised by Mr. Dunn, nor was he aware, that the Subject Property had been acquired by Mr. Dunn’s own account in 2017 and that Mr. Dunn had filed a development application in 2023 with the Town and County. The Moving Parties discovered this in June 2024 and delivered a Fresh as Amended Statement of Claim in the Action claiming that “the Moving Parties and GBGC/GBEL have a direct interest in the …[Subject Property] on the basis that a direct claim is being made to ownership of 50% of the … [Subject Property] currently registered solely in Dunn’s name”.

e) Mr. Dunn does not have the authority to speak for or make commitments on behalf of GBGC or GBEL without Mr. Milborne’s approval. Accordingly, no agreements with those entities were entered into regarding the fulfillment of the open space requirement or servicing requirements for the Subject Property (including water, sanitary and storm sewer services, storm water management ponds or road access from private GBGC streets).

f) Section 51(24)(i) of the Act requires regard for the adequacy of utilities and municipal services. The Moving Parties should have party status as they are fundamental to the provision of these services.

13Counsel for the Moving Parties referred the Tribunal to the “Oakville factors” and argued as follows:

a) Prior Appeal: No new appeal is being filed.

b) Public Interest: The resolution of the issues between Mr. Milborne and Mr. Dunn has significant public interest planning implications, as the provision of essential services (i.e. water and sewer) can be impacted when affected by issues of trust and ownership. Including the Moving Parties as a Party would ensure “transparency and adherence to fiduciary responsibilities that impact planning decisions affecting essential services to the … lands in question.”

c) Prejudice: Proceeding without resolution regarding foundational legal issues “severely prejudices the Moving Parties’ interests by potentially allowing planning decisions to be made on an incomplete understanding of who holds control over the land ….”

d) Direct Interest: A “direct stake in the outcome of a planning issue justifies party status….”

e) Multiplicity of Proceedings: By allowing the Ontario Superior Court to determine issues relating to the ownership of the Subject Property “the Tribunal can avoid inconsistent rulings and unnecessary multiplicity of proceedings, focusing on planning decisions at the appropriate time.”

f) Historical Background: It is relevant that the Moving Parties did not know about the various development applications made by the Applicant/Appellant to the Town and County until June 2024, and had no opportunity to address the applications. These appeals are the Moving Parties’ first opportunity to be engaged in these applications.

Position of the Applicant/Appellant

14The Act does not outline a legislative test regarding party status requests for non-decision appeals under s. 51(34), but the Tribunal’s Rules state in Rule 8.2 that:

… The Tribunal may add … a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding. [Emphasis added by Applicant/Appellant]

15The Applicant/Appellant maintained that the onus is on the Moving Parties to demonstrate why their presence is necessary for the Tribunal to adjudicate the issues in the proceeding and they (the Moving Parties) have not done so.

16The Applicant/Appellant put forward that the Moving Parties do not meet the requirements of Rule 8.2 as:

a) Issues Raised are Irrelevant to the Planning Merits The issues raised by the Moving Parties relate to “private land ownership disputes and contractual issues” which lack a land use planning basis. The OLT and its predecessors have consistently maintained that it does not have jurisdiction to determine contractual rights between parties, since “private contract matters and disputes have no role in the planning process under the Act.” [Toronto Standard Condominium Corp 1924 v. 2-8 St. Thomas Holdings Inc, 2015 CarswellOnt 6445 (OMB)] The Moving Parties discuss the requirement for agreements for various services but fail to raise any planning issues related to servicing. The Applicant/Appellant maintained that “Agreements that restrict rights to land are unrelated to the OLT’s determination of planning merits and what should be built.”

b) Lack of Commitment or Intention to Participate Fully The Moving Parties have not “indicated the land use planning evidence that they intend to provide to the OLT …” with the only evidence in the Motion Record being a lawyer’s affidavit that puts forward legal arguments about land ownership and proceedings in the Ontario Superior Court. There is no identification of legitimate planning issues with the Draft Plan or its conditions. When asking for party status, the requestor is to put their best foot forward to demonstrate that they have a planning case. As stated in a previous Tribunal Decision: “Parties are expected to substantiate germane planning issues with relevant evidence related to such planning issues and those issues must have a direct correlation to the appeal before the Tribunal.” [1314102 Ontario Ltd v. Niagara-on-the-Lake (Town), 2022 CanLII 63792 (ON LT), 2022 CanLII63792 (OLT)] (Emphasis added by Applicant/Appellant)

17Counsel for the Applicant/Appellant also spoke to the Oakville factors highlighting that a fundamental underpinning of the Oakville tests is that an entity seeking party status must bring forward a planning case. In this case, the Moving Parties have not done so and as a result should be denied party status.

18Regarding public interest, the Applicant/Appellant stated that:

The OLT has jurisdiction over the public’s interest in adjudicating the planning merits of development applications and what should be built in the public interest. The Moving Parties’ request [for party status] is an argument that they also own the lands, a matter that is vigorously denied. The Moving Parties’ issues and concerns do not affect that public interest … Awaiting the outcome of litigation is unnecessary as land ownership and legal rights will not have an impact on the municipalities’ or the OLT’s decision on what should be built. [Exhibit 2a, p.18, paragraph 40] (Emphasis added by Applicant/Appellant)

19The Applicant/Appellant also highlighted that “if Dunn does not own the lands, or does not have necessary permissions, this is a matter that is at his own risk.”

Findings on the Motion for Party Status

20The Tribunal finds that the issues raised by the Moving Parties relate to private land ownership disputes and contractual issues. As highlighted in the Toronto Standard Decision (at paragraph [16a] above), private agreements between parties are not within the Tribunal’s jurisdiction.

21The Moving Parties made general statements regarding servicing issues; however, the Tribunal finds them to be too vague. For example, while they highlighted the requirement in the Act to consider the adequacy of utilities and services, the Moving Parties failed to articulate specific planning concerns and relied instead on the argument that agreements regarding servicing have not been reached, or are not valid.

22The Applicant/Appellant presented a thorough Book of Authorities featuring Decisions of the OLT (and its predecessors). In addition to the cases cited above, the Tribunal was persuaded by the following cases:

a) Yolanda Flanders Developments Inc v. Toronto (City), 2013 CarswellOnt 3068 (OMB) which found that “It is not uncommon for the Board to consider applications … for lands which are not owned by the Applicant.” As expressed by the Applicant/Appellant, “Anyone, not just a landowner, can bring an application ... [and] if underlying ownership issues exist … those applications are at the risk of the applicant ….”

b) Aryeh Construction Limited v. Markham (City), 2021 CanLII 34348 (ON LPAT) which found that the requestor’s “submissions were generic and were not focussed on the issues specific to this matter and why … [their] presence is necessary for the Tribunal to fully adjudicate this matter.” The onus is on the requestor to demonstrate that they meet the test in Rule 8.2 to be granted party status.

c) Bloor Gold Residences Inc v. Toronto (City), 2024 CanLII 23436 (OLT) which found that the requestor had “not turned his mind toward the planning issues he wanted to raise nor what evidence, if any, he wanted to provide the Tribunal” and denied the request for party status. In other words, the intention to raise irrelevant issues has been found to be a reason to deny party status by the Tribunal.

23Following careful consideration of the written materials and oral arguments, the Tribunal was not persuaded that the presence of the Moving Parties is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding, therefore the request for party status is denied.

CASE MANAGEMENT CONFERENCE

24Following the disposition of the Motion, the Tribunal proceeded to address the remaining procedural matters.

25The Parties jointly requested that the matters be consolidated. The matters involve the same property and have common issues, which will involve hearing evidence from the same witnesses. Consolidation will allow for a fair, just, efficient, and cost-effective resolution of these matters. Upon review and consideration, the Tribunal formally consolidated the matters.

26As discussed in paragraph [7] above, the Parties advised the Tribunal that a settlement had been reached between the Applicant/Appellant, the Town and the County, and it was proposed that a hearing to consider the settlement be set. Upon consideration, the Tribunal scheduled a one-day Hearing to consider the proposed settlement to commence on Tuesday, April 22, 2025, at 10 a.m. by Video Hearing.

27Parties and Participants are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/914098901

Access code: 914-098-901

28Parties and Participants 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 GoTo Meeting, or a web application is available: https://app.gotomeeting.com/home.html

29Persons who experience technical difficulties accessing the GoTo Meeting 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 as indicated above.

30Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

31The Tribunal directed that any materials to be considered at the Hearing are to be provided to the Tribunal a minimum of ten days in advance of the Hearing.

ORDER

32The Tribunal Orders that:

a) the Motion is denied and Hunter Milborne and 1395840 Ontario Limited are refused party status in the OLT-24-000799 matter;

b) matters OLT-24-000406 and OLT-24-000799 are hereby consolidated; and,

c) a one-day Hearing to consider the proposed settlement is set as detailed in paragraph [26] above.

“S. Bobka”

S. BOBKA 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.