Sherwin-Sharpe v. Tarbutt (Township), 2025 CanLII 41140

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 02, 2025

CASE NO(S).: OLT-24-000832

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Carrielynn Sherwin-Sharpe

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision.

Description: To permit an amendment to the Zoning By-Law to allow for an accessory building to be used for storage purposes.

Reference Number: ZA-2024 – 02

Property Address: 131 Lakeshore Drive

Municipality/UT: Township of Tarbutt

OLT Case No.: OLT-24-000832

OLT Lead Case No.: OLT-24-000832

OLT Case Name: Sherwin-Sharpe v. Tarbutt (Township)

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

Request by: Carrielynn Sherwin-Sharpe

Request for: Request for Directions

Heard: April 14, 2025, by Video Hearing

APPEARANCES:

Parties

Counsel

Carrielynn Sherwin-Sharpe

Michael Nemanic

Township of Tarbutt

Harold Elston

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON APRIL 14, 2025, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This first Case Management Conference (“CMC”) was originally scheduled in respect of an appeal filed pursuant to s. 34(11) of the Planning Act (“Act”) (“Appeal”) against the Township of Tarbutt (“Township”) for refusal of a Site-Specific Zoning By-law Amendment application (“ZBA”/“Application”) filed by Carrielynn Sherwin-Sharpe (“Applicant”/“Appellant”) for the property municipally known as 131 Lakeshore Drive (“Subject Property”).

2The Application before Township Council sought permission to allow the ZBA under Township Zoning By-law No. 85-10 (“TZBL”) for an existing accessory building and accessory structures (including a “travel trailer”). The Application was also seeking the following relief: a northerly side-yard setback reduction from 3 metres (“m”) to 1.31 m; and permission for a reduced side-yard setback from 3 m to 2.29 m. Township Council refused the Application at its Public Meeting (July 3, 2024) and issued its decision denying the Application on July 5, 2024.

3In consideration of the Appeal, and through the Tribunal’s administrative review process, a two-day Merit Hearing was scheduled to commence from December 2-3, 2024, without the benefit of a first CMC. The Merit Hearing was adjourned prior to the scheduled dates, on consent of the Parties, and this CMC was the first event now before the Tribunal.

4In accordance with Rule 10 of the Tribunal’s Rules of Practice and Procedure (“Rules”) the Tribunal was asked in advance of the CMC to provide direction on an Applicant-initiated Motion (“Motion”) before the Tribunal. The Tribunal convened the Motion as follows below.

MOTION HEARING

5The Tribunal identified at the outset the following Exhibits:

1. Affidavit from Michael Nemanic, by mail, and personal service by Rod Mills, providing Notice of the CMC (March 20, 2025);

2. Motion Record, from the Applicant (March 31, 2025);

3. Book of Authorities, from the Applicant (March 31, 2025);

4. Response to the Motion, from the Township (April 7, 2025) (“Township’s Response”);

5. Reply Submission, from the Applicant (April 10, 2025); and

6. Township Sur Reply and Case Law (April 23, 2025).

SUBJECT PROPERTY

6The Subject Property is approximately 0.54 acres (23,522 square feet), located in the Shoreline Residential (“SR”) zone. It generally contains a residential dwelling unit with approximately five small existing accessory structures, and the “travel trailer”. The TZBL permits a maximum lot coverage at 15 percent (“%”) for dwellings and 5% for accessory structures in the SR zone. At the time of the Application, the maximum lot coverage for dwellings on the Subject Property did not appear to form part of the Application, except for the existence of the “travel trailer”, which likely exceeded the lot coverage requirements in the TZBL and has since been removed from the Subject Property and is no longer part of the ZBA.

APPLICANT/APPELLANT – MOTION

7In oral submissions, counsel for the Applicant outlined that the Motion was generally intended to address concerns raised by the Township related to the Tribunal’s jurisdiction, noting that counsel for the Township specifically expressed concern that the Application before the Tribunal appeared to be substantively different from the original Application before Township Council, following its refusal of the ZBA, as proposed.

8The Motion was seeking the following from the Tribunal:

1. An Order that the Tribunal has the jurisdiction to adjudicate ZA-2024-02 ZBA regarding the Subject Property under s. 34(11) of the Act;

2. An Order that the present Appeal of the ZBA before the Tribunal is not substantially different than the ZBA that was considered by Township Council and is not subject to premature dismissal under s. 34(25.1.1) of the Act;

3. An Order prohibiting the Township from raising additional jurisdictional issues regarding the ZBA or Appeal, as the case may be;

4. An Order that this Motion is providing notice that the Appellant may bring a future motion to seek costs on a substantial indemnity basis;

5. Such further and other relief as counsel may request and the Tribunal deems just.

9Grounds for the Motion noted that the Applicant has been seeking approval of the ZBA, as outlined in paragraph [2] above, allowing an existing cottage addition and accessory structures, and that the Township Council Public Meeting on July 3, 2024 denied the Application and further required demolition of the existing cottage addition and accessory structures.

10Counsel for the Applicant also submitted that “the development concept proposed in the [ZBA Application/Appeal] included insubstantial modifications that do not touch upon their essential nature, the purpose and effect of which is to permit the development of an existing cottage addition and accessory structures, so as to avoid the potential enforcement action, described above.”

11In support of the Applicant’s position that the Application had not been substantially modified, counsel submitted further written evidence, from Mathew Halo, the Applicant’s Land Use Planning consultant. In his Affidavit (dated March 31, 2025), and specific to the Motion, Mr. Halo opined the following:

a) The development concept, illustrated in the Application Site Plan prepared by Innovative Planning Services (“IPS”) as consultants on behalf of the Applicant, is not substantially different from what Township Council considered at the July 3, 2024 Public Meeting;

b) The Applicant has only made minor alterations to the scope of the design elements of the ZBA, without substantial changes in the proposed development and the below requests remain, noting the removal of the “travel trailer”:

i. A reduction of the side yard setback on the northerly side of the Subject Property in the SR zone from 3 m to 1.31 m for an addition to the dwelling;

ii. To permit a reduced side yard setback for a trailer from 3 m to 2.29 m; and

iii. To permit the additional accessory buildings in the form of sheds, a gazebo, and a sauna, not dwellings, which the landowner explains she would “like to keep on the property”;

c) The following development parameters identified by IPS, also note the following elements form part of the Application:

• Despite Regulation 3.20.c), accessory buildings shall not exceed 7.5% of total lot area;

• Despite Regulation 3.20.e), accessory buildings shall be set back a minimum of 2.03 m from the lot line in a SR zone;

• Despite Regulation 3.21.b), unenclosed swimming pools are permitted;

• Despite the Regulations in Table 1 – Zone Regulations, the following provisions shall apply:

i. Minimum Lot Area – 2,522.40 square metres;

ii. Rear Yard – 2.60 metres (Cabin ‘A’);

iii. Side Yard – 1.43 metres (Primary Dwelling); and

iv. Maximum Lot Coverage – 22.5%;

• Despite the Regulations 6.2 “Permitted Uses”, the following uses are permitted:

i. Residential Dwelling Units;

ii. Community centres, parks, playgrounds, recreational buildings, and other similar uses intended to serve seasonal residence(s); and

iii. Accessory uses, buildings, and structures such as boat houses, out houses, docks, steam bath huts, utility sheds, accessory dwelling units, and other similar type accessory uses, buildings, and structures; and

d) If Township Council had the fulsome benefit of a detailed zoning review of the Site Plan, at the time, with its limited municipal planning procedures in effect, approval of the ZBA could have been the result at the Public Meeting, without necessitating the Appeal before the Tribunal.

RESPONDENT/TOWNSHIP – RESPONSE

12Counsel for the Respondent/Township advised that they were first retained by the Township on October 22, 2024. The Township was actively preparing for the Hearing in December 2024 at this stage. Following the realization that there appeared to be several insufficient details relating to the Application, and to clarify matters, correspondence was sent to counsel for the Applicant, highlighting concerns that could potentially be deemed outside of the Tribunal’s jurisdiction. Based on the apparent changes planned in the Application, the concern was that this could affect the Hearing length and issues to be considered at the time.

13Counsel for the Respondent/Township made submissions and encouraged the Tribunal to review the witness statement (contained in Exhibit 4) highlighting some of the areas of concern that the nature and scope of the Appeal had changed significantly enough from its original form, to warrant his correspondence. Counsel stated that the Applicant was encouraged to revisit details around the ZBA, and perhaps scope issues, to properly prepare for the possibility of a multi-day Hearing. On consent of the Parties at the time, the result was the adjournment of the two-day Hearing scheduled for December 2024.

14Counsel for the Respondent/Township further submitted that, despite the original position of the Appellant, it was not the Township’s responsibility to pursue a motion seeking the Tribunal’s direction and reiterated that the onus is on the Appellant to seek direction, not the Township. This ultimately resulted in the Motion for direction before the Tribunal, initiated by the Applicant/Appellant.

15Furthermore, the Township submitted that notwithstanding the details of the Application and the notices circulated in advance of the Public Meeting in July 2024, the Township now believes that:

1. The Application did not correctly identify the side yard setback relief being sought (0.0 m versus 1.31 m);

2. The ZBA needs to include a request for permission to increase the maximum overall lot coverage for all buildings and structures to19.74%, as opposed to the maximum permitted coverage of 15% (alternatively, the offending structures must be removed);

3. The ZBA needs to include a request for permission to increase the maximum lot coverage for accessory buildings and structures to16.07%, as opposed to the maximum permitted coverage of 5% (alternatively, the offending structures must be removed); and

4. There may be further additional relief, necessary.

16In support of this, counsel for the Township expanded further on this, referencing the witness statement (Exhibit 4), by David Welwood, a Land Use Planning consultant for the Township, retained on August 7, 2024, following the Appeal. The witness wrote that the Application lacked the fulsome details required for the Application to proceed and opined that there are several elements that will need to be addressed, to achieve the relief sought by the Applicant in the ZBA. This differed from the Applicant’s Land Use Planning evidence, in the following areas including:

a) The proposed 7.5% maximum lot coverage for accessory buildings, whereas the actual lot coverage of just the accessory buildings appears to be approximately 3.49%;

b) The proposed 2.03 m setback to the lot line for accessory buildings: He stated that “during a site visit, I observed temporary storage shelter constructed 0.0 m from the side and rear lot lines respectively”;

c) The unenclosed swimming pool: There was nothing in the Application on removing the requirement for a fenced pool for the subject property; and

d) The site-specific yard requirements for the Subject Property for all buildings and structures, including a 2.60 m rear yard for “Cabin A”, a 1.43 m setback for the primary dwelling, and a maximum lot coverage of 22.5%.

17In response to questions from the Tribunal, counsel for the Respondent/Township acknowledged that the decision by Township Council was absent land use planning details that would have assisted with their decision at the time. The requested relief sought at that time included: a reduction of the northerly side yard setback from 3 m (10 feet) to 1.31 m (4.3 feet); permission to retain an (existing) addition to the dwelling; and permission to reduce a side yard setback for a “travel trailer” from 3 m (10 feet) to 2.29 m (7.5 feet), which was confirmed to have been removed, and no longer seeks relief in this regard.

18In response to additional questions from the Tribunal, counsel for the Respondent/Township submitted that the relief sought by the Applicant was generally described in the Notice of Public Meeting (“NOH”) and concurred that the NOH did not contain very much detail specific to the Application. Furthermore, counsel agreed that the subsequent Public Meeting Handout (“PMH”) provided some additional details associated with the Application and acknowledged that this somewhat limited information formed the basis of the Township Council’s consideration and reiterated that the Township’s decision was made in the absence of any detailed Land Use Planning evidence, from either Party.

19Notwithstanding these facts, counsel for the Respondent/Township further submitted that “[his] read of section 34(26)(b) of the Act suggests that the Tribunal will have to determine if it is prepared to amend the [TZBL] in a manner significantly different from that presented to Council, and now sought by the Appellant.”

APPLICANT/APPELLANT – REPLY MOTION

20After the Applicant’s review of the Respondent/Township’s Response to the Motion, counsel submitted additional requests for the consideration of the Tribunal, including the following:

1. A declaration that the Township has breached settlement privilege through the disclosure of without prejudice materials to the Tribunal included in the Township’s Response;

2. An Order that privileged materials is inadmissible before the Tribunal, and that all privileged material must be excluded from the Tribunal Record;

3. An Order to strike paragraph 3 of the Township’s Response for breaching the settlement privilege as between the Appellant and the Township;

4. An Order to strike paragraphs 12-18 of TAB 2 and TABS “F”, “G”, “H”, “I”, and “J” of the Affidavit of Ms. Kristin Vanderkruys sworn April 7, 2025.

21The Applicant argued that the correspondence between the Parties as referenced in Exhibit 4, specifically, Ms. Vanderkruys’ Affidavit and the above noted paragraphs and TABS, may be prejudicial in relation to any settlement efforts, among other concerns related to privilege.

RESPONDENT/TOWNSHIP – SUR-REPLY

22Counsel for the Respondent/Township further submitted that at no time did the correspondence address specific ideas around settlement prospects and proposed changes to the Application that may bring about the possibility of a settlement proposal.

23Furthermore, counsel submitted that:

a) The identified communications are not, in fact, protected by settlement privilege;

b) In the alternative, if the identified communications are protected, the public interest in their disclosure outweighs the public interest in encouraging settlement; and

c) In any event, the Township is entitled to waive the privilege when fairness requires it, for example, if a party has taken positions which would make it inconsistent to maintain the privilege.

24The Sur-Reply also provided some related Case Law relevant to submissions from counsel for the Respondent/Township, and argued that the correspondence was representative of normal, appropriate, and professionally courteous interactions with opposing counsel.

ANALYSIS AND DIRECTIONS

Settlement Privilege Findings

25Based on written and oral evidence from both Parties, the Tribunal determined that it was persuaded by submissions from counsel for the Respondent/Township and does not consider the correspondence shared between the Parties to be prejudicial in any respect, nor does it reflect privileged settlement negotiations.

26The Tribunal finds that it will not grant the requested Reply Motion alleging a breach of settlement privilege, and further denied the request to dismiss/strike the above referenced (Exhibit 4, TAB 2, paragraphs 12-18) in the Affidavit from Kristin Vanderkruys and related TABS “F”, “G”, “H”, “I”, and “J”.

27Furthermore, the Tribunal also denied the Reply Motion request to dismiss paragraph 3 of the Township’s Response. The Tribunal commonly reviews correspondence between Parties as it relates to the specifics of an application and issues around timing/scheduling of various hearings.

Motion Analysis and Findings

28On the matter of the Motion, the Tribunal carefully considered the submissions from both Parties on the jurisdictional issue and has reviewed the Book of Authorities, and relevant Case Law, as submitted by counsel for each Party.

29The Tribunal finds that it is persuaded by most of the submissions from counsel for the Applicant. The Application is not substantially different than what was originally submitted before Township Council. The Tribunal often observes that minor changes do occur during the period between a council decision on a ZBA, and the period leading up to a scheduled Hearing before the Tribunal.

30The Tribunal notes that the NOH for the ZBA was circulated on June 10, 2024 (Exhibit 4, page 28). The NOH for the ZBA hearing from the Township included the following description:

• The purpose and effect of the application is to amend the municipality's Zoning By-law to reduce the northerly side yard setback from 3 m (10 feet) to 1.31 m (4.3 feet) to permit an addition previously added to the dwelling, and also to permit a reduced side yard setback for a trailer, from 3 m (10 feet) to 2.29 m (7.5 feet).

31The closest thing to a Planning Staff Report from the Township, on record with the Tribunal, was in the Public Meeting Handout (“PMH”), and circulated at the Public Meeting (Exhibit 4, pages 30-31). The description from the Township in the PMH states as follows:

• The subject property is 0.54 acres (23522 sq ft), located in the Shoreline Residential (SR) zone. The property contains a residential dwelling unit with five small accessory structures and a travel trailer. The Zoning By-law permits maximum lot coverage at 15% for dwellings and 5% for accessory structures in the SR zone. The maximum lot coverage for dwellings on this property is not exceeded, however the placement of the trailer exceeds the max lot coverage.

• The purpose of the Application for Zoning Amendment is to request a reduction of the side yard setback on the northerly side of the property in the SR zone, from 3 m (10 ft) to 1.31 m (4.3 ft) for an addition to the dwelling, and also to permit a reduced side yard setback for a trailer, from 3m (10 ft) to 2.29 m (7.5 ft). A trailer permit has been issued for the trailer, which has been on the site year round. The Township was advised that the trailer would be removed from the property by July 1.

32Generally, while the NOH is contextually shorter, the PMH appears to reference more specific details from the Application under consideration at the Public Meeting in July 2024. The PMH expands on some of the issues considered by the Township Council.

33The Tribunal noted that there was no detailed zoning review by the Township of the Application, due to limited resources, and that no Site Plan was submitted in advance of the Public Meeting.

34In summary, the Tribunal directed that the Motion brought by the Applicant in this matter is granted and confirms that the Tribunal has clear jurisdiction to consider the Appeal. No other conditions requested in the Motion by the Applicant will be the subject of this Order. The Tribunal proceeded to consider the originally scheduled CMC, which follows below.

FIRST CASE MANAGEMENT CONFERENCE

35The Application and subsequent Appeal seeking the ZBA to the TZBL was originally outlined in paragraphs [1] and [2] above. The CMC commenced noting that the Township Council decision to deny the Application was issued on July 5, 2024, without the benefit of a zoning review, and the limited Land Use Planning resources available to the Township.

36Both Parties consented that the previously referenced “travel trailer” on the Subject Property was removed and is no longer an issue in the Appeal.

STATUS REQUESTS AND MERIT HEARING

37There was a total of two written Participant status requests. The first was from Kevin Nott, who owns property to the north of the Subject Property and shares a common east/west property line, objecting to the ZBA. The issues of concern included, but were not limited to, the following:

• Concerns around the absence of a proper survey;

• Building encroachment and site layout concerns;

• Site Plan and grading/water run-off conditions; and

• The addition to the residential unit was constructed without proper authorization.

38The second written request was from John Rosset, a neighbouring property owner who outlined his previous experience with the Township and its building requirements. Mr. Rosset insisted that it was the responsibility of the Applicant, at the outset, to ensure By-law adherence prior to proceeding with construction on the Subject Property.

39There were no objections from the Parties regarding these requests, and the Tribunal conferred Participant status on Kevin Nott and John Rosset.

40The Parties requested a two-day Hearing for the Appeal, in anticipation of a total of three to four witnesses expected to testify. Any witness summonses requiring service must be resubmitted to the Tribunal for the purposes of the Hearing as scheduled.

41The Tribunal directed that a Hearing be scheduled to commence for a period of two days, beginning Monday, June 23, 2025 at 10 a.m. by video, and continuing on Tuesday, June 24, 2025.

42Parties, Participants, and Observers 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/719383509

Access code: 719-383-509

43Parties, Participants, 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html

44Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1-647-497-9373 or (toll-free) +1-888-299-1889. The access code is: 719-383-509.

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 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.

46The Tribunal also directed that Parties submit a draft Procedural Order and Issues List. This was received on consent, and approved on Wednesday, April 23, 2025, to govern the proceedings leading up to and including the Hearing, as set out below as Schedule 1 to this Order.

47Finally, despite the differences that were made evident during consideration of the Motion, the Tribunal reminded experienced counsel on behalf of the Parties of the availability of Tribunal-led mediation, should there be mutual consent to do so in the matter.

ORDER

48THE TRIBUNAL ORDERS that:

1. The Motion brought by Carrielynn Sherwin-Sharpe is granted, in part, as directed above in paragraph [34] in that:

i. The Tribunal has clear jurisdiction to consider the Appeal; and

ii. That no other conditions requested in the Motion by the Applicant will be the subject of this Order;

2. The Zoning By-law Amendment Appeal brought by Carrielynn Sherwin-Sharpe shall proceed to a Hearing as scheduled above;

3. That the Procedural Order and Issues List, as approved, shall govern the proceedings on the matter, as set out below in Schedule 1 to this Order; and

4. All other directions in this Decision related to both the Motion and the Case Management Conference are so ordered.

49The Member remains available to assist with any issues that may arise but is not seized on this matter.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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.

SCHEDULE 1