Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 23, 2025

CASE NO(S).: OLT-24-001047

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

Request by: Achille Developments Ltd.

Request for: Request for Directions

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Achille Developments Ltd.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: Application to redevelop the Subject Lands with a residential subdivision of 364 detached dwelling units

Reference Number: OP00124

Property Address: 10 Club Court

Municipality/UT: Wasaga Beach/Simcoe

OLT Case No: OLT-24-001047

OLT Lead Case No: OLT-24-001047

OLT Case Name: Achille Developments Ltd. Wasaga Beach (town)

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

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

Reference Number: Z00124

Property Address: 10 Club Court

Municipality/UT: Wasaga Beach/Simcoe

OLT Case No: OLT-24-001048

OLT Lead Case No: OLT-24-001047

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

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Reference Number: PC00124

Property Address: 10 Club Court

Municipality/UT: Wasaga Beach/Simcoe

OLT Case No: OLT-24-001049

OLT Lead Case No: OLT-24-001047

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

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Reference Number: PC00224

Property Address: 10 Club Court

Municipality/UT: Wasaga Beach/Simcoe

OLT Case No: OLT-24-001050

OLT Lead Case No: OLT-24-001047

Heard: May 16, 2025, by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Achille Developments Ltd. (“Achille”)	Mark Flowers, Liam Valgardson
Town of Wasaga Beach (“Town”)	Harold Elston, H. McLeish, C. Emmett
The Corporation of The County of Simcoe (“Simcoe”)	Alex Freeman-Carter (articling student), Zarah Walpole (in absentia)
Wasaga Sands Heritage Group Ltd. (“WSHG”)	Allie Bendus*

DECISION OF WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This matter concerns a motion heard by video on May 16, 2025 brought suddenly by the Town on May 7, 2025, at a very late stage in this proceeding. The motion seeks to dismiss the appeal by Achille (“Motion”) arising from the Town’s non-decision concerning an Official Plan Amendment (“OPA”), Zoning By-law Amendment (“ZBA”), and Draft Plan of Subdivision applications to permit the re-development of 10 Club Court to create a residential subdivision of 364 detached dwelling units in the Town (“Development”).

2The applications underlying the Appeal was filed approximately 17 months ago on December 21, 2023. A case management conference (“CMC”) was held just 4 months ago on January 17, 2025. No mention was made at the CMC by the Town of any intention to bring this Motion. Instead, a hearing was scheduled to commence for a period of 15 days from September 2, 2025 to September 23, 2025. A procedural order (“PO”) that the Parties have agreed is governing this proceeding also makes no provision for this Motion. Witness lists were to be exchanged on May 5, 2025, and the Parties are to begin their exchanges of witness statements very soon on June 27, 2025.

3In light of the rapidly approaching PO deadlines and hearing date, and at the request of counsel for both Parties, the Tribunal agreed to endeavour to reach its Decision and to have it issued as soon as possible, within one week of the Motion hearing.

4The correspondence between the Parties and with the Tribunal leading up to the Motion hearing on May 16, 2025 reveals the unusual reason why the Town has at a very late juncture initiated the Motion on truncated timelines requested from and permitted by the Tribunal: On April 24, 2025, the Town adopted a resolution which the Town’s counsel describes as the key underlying rationale for the Motion (“Resolution”). The Resolution states (below emphasis added):

Moved by Deputy Mayor Snell Seconded by Councillor White

WHEREAS the Town has identified a number of significant public health and safety threats associated with the proposed servicing scheme for the Achille development;

AND WHEREAS the threats supersede the land use planning grounds to be considered by the Ontario Land Tribunal (the “Tribunal”) and compel the Town to categorically reject the facilitation, accommodation, acceptance or assumption of any of the public works proposed by Achille.

NOW THEREFORE BE IT RESOLVED THAT Council of the Town of Wasaga Beach hereby declares that it will not enter into any development agreements with Achille, its successors or assigns, accept and/or assume any public works proposed by Achille, its successors or assigns, or in any other way facilitate or accommodate the development proposed by Achille.

Carried

5Counsel for the Town relies on the Resolution – as well as evidence of alleged underlying public health and environmental risks (“Risks”) – to argue that therefore the Appeal must be dismissed notwithstanding that the Town had earlier agreed to the scheduling of a lengthy hearing before the OLT to deal with all various land use planning issues related to the Development – which of course would include consideration of the Risks.

6WHSG supports the Motion but made no submissions at the Motion hearing. Simcoe took no position on the Motion and merely observed the Motion hearing.

7As a preliminary matter, Achille objected to the admission of the Peters Affidavit described in paragraph [8] (d) below on the basis of its late filing on the day before the Motion hearing and because it purported to offer a legal opinion. The Tribunal reviewed the Peters Affidavit – with the agreement of both Parties – and concluded that it (a) contains an impermissible conclusion of law and (b) is ultimately of no assistance or relevance to the conclusions reached by the Tribunal on this Motion as is evident from the reasons set out below. Thus, the Tribunal declined to admit into evidence the Peters Affidavit.

8The materials filed for the Motion were:

(a) Town’s Motion Record dated May 7, 2025, comprising 331 pages;

(b) Town’s Book of Authorities dated May 15, 2025, comprising 100 pages;

(c) Town’s Factum dated May 16, 2025, comprising 23 pages;

(d) Town’s Further Affidavit of Jason Peters sworn May 15, 2025 (“Peters Affidavit”);

(e) Achille’s Responding Record, dated May 15, 2025 comprising 2214 pages; and

(f) Achille’s Book of Authorities dated May 15, 2025, comprising 196 pages.

ISSUES / ANALYSIS

9The Town relies exclusively on section 19 (1)(c) of the Ontario Land Tribunal Act, S.O. 2021, C. 4, Sched. 6 (“OLTA”) which states (below emphasis added):

Dismissal

19 (1) Subject to subsection (4), 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 this 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 Statutory Powers Procedure Act; or

(e) in any circumstance provided for under any other Act.

10The Town argues based on the very clear wording of the Resolution that even if, after the hearing the Tribunal approved the ZBA, OPA and other instruments sought by Achille (below emphasis added):

With the Town being unwilling to enter into any development agreements with the Appellant, being unwilling to accept and/or assume any public works proposed by Achille, and being unwilling to facilitate or accommodate the development proposed by Achille, the Town respectfully submits that the proceeding has no reasonable prospect of success…

11Despite the voluminous motion materials filed by the Town together with its Book of Authorities, its position on this Motion is based on one simple proposition: The Resolution serves to ‘supersede’ the land use planning issues to be determined by the Tribunal at the hearing, essentially because of longstanding jurisprudence which establishes that the Tribunal cannot order a municipality to assume responsibility for infrastructure, such as roads or functional servicing systems. In light of the Resolution stating that the Town will not assume any public works proposed as part of the Development, the appeal proceeding cannot reasonably succeed.

12It is not disputed by Achille that the Tribunal cannot order the Town to assume infrastructure such as that apparently required by this proposed Development and the Tribunal agrees. Thus, the lynchpin of the Town’s argument is essentially that the Resolution must be interpreted to equate with the standard set out in section 19(1)(c) of the OLTA, so as to require the dismissal of this proceeding.

13In turn, this argument depends on a single recent Decision of this Tribunal in Aragon (Hockley) Development (Ontario) Corp. v. Mono (Town), 2024 LNONLT278 (“Aragon”), according to the Town’s counsel.

14Aragon concerned a dismissal motion brought under the same OLTA provision by the Town of Mono in similar circumstances. The applications at issue were a ZBA and an OPA to facilitate the development of the Subject Lands, a planned residential condominium community comprised of 220 townhouse units. The Tribunal in that case noted that the appellant proposed to service that development by way of a "communal wastewater treatment system" because the planned density will not enable the implementation of individual private services and there are no municipal wastewater services otherwise available. The proposed built-form and density (which necessitated the proposed communal wastewater treatment system) is referenced in the appellant's draft ZBA, and the proposed built-form, density, and communal wastewater treatment system are all specifically identified in the appellant's draft OPA.

15The Tribunal in Aragon stated:

The Tribunal finds that the need for a communal wastewater treatment system, as part of the proposed development, is a key factor to determining this motion. This is because the construction of such a system requires the Town to enter into a Municipal Responsibility Agreement ("MRA") with the Appellant, and the Town has unequivocally stated that it will refuse to do so. This fact, the Tribunal finds, will effectively prevent the Appellant from proceeding with their development as proposed, because they will be unable to obtain the necessary authorization from the Ministry of Environment Conservation and Parks ("Ministry") to build the communal system without an MRA…It is on this basis that the Town brings this motion to dismiss …[under section 19(1)(c) of OLTA]… for there being no reasonable prospect of success

16In the key passages from Aragon relied upon by the Town on this Motion, the Tribunal further stated (below emphasis added):

As it relates to this section, there was some discussion between the Parties and the Tribunal about whether "reasonable prospect of success" is the same as "reasonable prosect of proceeding [with the development]". This distinction arises given that the requested ZBA and OPA do not directly require the Town to execute an MRA for it to be approved, but the Appellant nevertheless cannot proceed with construction without it.

On this point, the Appellant clearly takes the position that it would be satisfied with the approval of the requested ZBA and OPA and accept the obvious risk of not being able to proceed with construction. The Town, meanwhile, wants no part of such an outcome, expressing concern that approval of the requested OPA and ZBA with reference to a communal wastewater treatment system would seemingly condone the implementation of such a system and, by extension, infer an agreement to executing a MRA. The Tribunal must therefore determine if it should allow the matter to proceed to a merit hearing, to provide the Appellant with an opportunity to present its planning submissions, despite the likelihood that construction cannot proceed regardless of any approval of the subject OPA and ZBA.

In contemplation of the intent and purpose of section 19(1)(c) of the OLT Act, the Tribunal finds no practical difference between "reasonable prospect of success" and "reasonable prospect of proceeding [with the development]" in the present case. Put another way, the Tribunal sees no point in considering approval of an OPA or ZBA if the purpose is unattainable, such as it is in the present case.

…Additionally, in the present circumstances, the Appellant is expressly seeking an OPA which specifically includes reference to a "Communal Wastewater Treatment System" within its very language, and both the proposed ZBA and the OPA include built- form and density details which are only possible if a Communal Wastewater Treatment System is constructed. Given such language within the proposed instruments, the Tribunal sees no way to consider other planning grounds apart from the plausibility of constructing a Communal Wastewater Treatment System. In this sense, the plausibility of constructing a Communal Wastewater Treatment System becomes the matter's threshold question..

17In light of the passages reproduced above from Aragon, the Town argues that the circumstances on this Motion are materially the same and thus that precisely the same determination should be made by this Tribunal concerning the Motion. In other words, the Resolution should be accepted by the Tribunal as determinative of whether Achille’s Appeal proceeding has a reasonable prospect of success.

18As pointed out by the Tribunal – which was not disputed by either counsel at the Motion hearing – the Tribunal is not bound by its previous Decisions. Thus, even if Aragon stood for the principle urged by the Town’s counsel, this Tribunal is not required to follow it.

19The Tribunal is certainly bound to follow precedential decisions issued by the Divisional Court of the Superior Court of Justice of Ontario and, of course, applicable rulings by the Ontario Court of Appeal. Counsel for the Town noted that an application for leave to appeal Aragon was denied by the Divisional Court and suggests that this can be taken as some sort of implicit approval of the Tribunal’s Decision in Aragon. However, no reasons were given by the Divisional Court and thus the Tribunal disagrees that its denial of leave to appeal can be considered to be its validation of any element of the Decision in Aragon. Counsel for Achille made the same point in its submissions.

20The Town’s counsel also pointed out that a request for review of Aragon brought pursuant to section 23 of OLTA and Rule 25 of the OLT Rules of Practice and Procedure was denied by the Executive Chair of the Tribunal and included in its Book of Authorities is a full copy of the Executive Chair’s disposition of that request (“Disposition”). In this Tribunal’s view, the most relevant passages of the Disposition are as follows (below emphasis added):

The Decision does not make sweeping statements about the exercise of the Tribunal’s power under 19(1)(c), and instead in paragraph 12 specifically tempers the language to address the interpretation of 19(1)(c) to the “present case”. I would also draw attention to the use of "no practical difference" in the Decision’s framing of the question of the legal test. The analysis by the Members falls short of creating a new test, and instead simply found that on the specific facts of this case, there is no practical difference in how the test was to be applied.

…While the planning grounds raised in the appeal were deemed to be legitimate by the Tribunal, it remained appropriate for the Tribunal to dismiss the appeal on the basis of the threshold servicing issue rather than proceed to testing the other planning grounds on a full hearing on the merits.

I would note that the Request also suggests that the approach taken here “would eviscerate statutory rights of appeal, and the Tribunal’s mandate to hear and consider such appeals, solely due to factors beyond the control of an appellant, which may or may not come to pass.” I disagree that this Decision is inconsistent with the Tribunal’s mandate or would usher in such a flagrant shift in the handling of appeals.

21This Tribunal does not find that the terms of the Disposition in Aragon are determinative of this Motion. In any event, the Tribunal does not find that the Decision reached in Aragon requires it to grant this Motion because, inter alia:

(a) The standalone nature of the servicing system proposed in Aragon is very unique and quite different from the functional servicing systems of the Town here – such infrastructure was not available in Aragon;

(b) There is no need for a special MRA in the circumstances of this proceeding, unlike as found to be required in Aragon; and

(c) No new general legal test under section 19(1)(c) of the OLTA was promulgated in Aragon (as noted in the Disposition) that must be applied by this Tribunal here.

22Interestingly, upon probing by the Tribunal at the Motion hearing, counsel for the Town urged for the acceptance that Aragon stands for the ‘black letter law’ principle, that a decision reached by a municipal council expressed as is set out in the Town’s Resolution must be accepted as determinative of whether there could be a reasonable prospect of success of an underlying appeal proceeding such as the Appeal here by Achille. The Town’s counsel argued that the Town’s refusal to undertake any required servicing must be seen as tantamount to the lack of any reasonable prospect of success for the Appeal of Achille.

23During oral argument by the Town, the Tribunal queried whether the principle described in paragraph [22] could exist in light of the Legislature’s longstanding establishment of the OLT and its predecessors as the sole administrative tribunal charged with hearing appeals under the Planning Act in relation to exactly the type of planning instruments at issue in this proceeding. The Town’s counsel appeared to recognize that it is extraordinary to contemplate the notion that a municipality by virtue of passing a unilateral enactment, such as the Resolution, could essentially require dismissal of any appeal proceeding properly brought under the Planning Act. Counsel for the Town could not cite any jurisprudence to support that theory beyond Aragon, nor did he deny that if this was the applicable legal rule, it would apply notwithstanding the alleged special urgency of the public health and environmental issues underlying the Resolution. In other words, such a Resolution ought to lead to an Order of dismissal regardless of the circumstances upon which it is based.

24When the Tribunal mused that such a result might be seen to comprise an overriding ‘veto power’ accorded to municipalities that is nowhere explicitly set out in the Planning Act or OLTA, counsel for the Town did not disagree. Seemingly, in answer to the implications and concerns which might arise if that were so, the Town’s counsel noted that if a municipal council went ‘rogue’, this could be dealt with by municipal voters at the next municipal election. He also pointed out that it would be open to an aggrieved person or entity (such as, presumably, Achille here) to bring a judicial review application to quash a municipal council enactment such as the Resolution.

25In this Tribunal’s view, it is unnecessary to decide if the Town’s Resolution comprises a novel ‘veto power’ over applications for planning instruments brought under the Planning Act. For the reasons already stated, the Tribunal has found that Aragon does not stand for the principle or legal rule that a municipality’s prior refusal to provide required servicing must automatically lead to a finding under section 19(1)(c) of OLTA, that an appeal proceeding has no reasonable prospect of success. If the Decision in Aragon could be so interpreted, this Tribunal respectfully disagrees and declines to follow it.

26Counsel for the Town vigorously defended the Resolution as necessary due to the very serious underlying public health and environmental risks present in the circumstances of this proceeding. However, the Tribunal agrees with Achille that those matters cannot be properly adjudicated on the basis of the hotly disputed written opinion evidence delivered for this Motion. The Tribunal also agrees that it is quite clear that the long-scheduled hearing of Achille’s Appeal will require adjudication of those matters based upon a review of the issues identified in the PO being followed by the Parties in this case, and of the currently available witness list. Thus, the Tribunal recognized at the Motion hearing that it in no way diminishes the perceived importance of the matters apparently underlying the enactment of the Resolution.

27It is not seriously disputed by the Town, as is demonstrated by the filings on this Motion, that the Parties have been discussing and grappling with all of those Risk issues for many months. Obviously, more evidence will be filed when the Parties exchange witness statements and reply witness statements in a few short weeks in preparation for the September hearing. In fact, the Town explicitly does not argue here that there are no arguable planning grounds for Achille’s Appeal – instead, it contends that the position of the Town as reflected in the Resolution should convince this Tribunal to dismiss the proceeding and that it simply need not adjudicate those land use planning grounds.

28In the Tribunal’s view, it would be improper to take away an applicant’s otherwise valid appeal of a non-decision by a municipality to grant certain planning instruments based on the possibility that the development may face difficulties in implementation or ultimately may not be implemented. The difficulty – or likelihood - of eventual project implementation is not the key issue to be decided under the test in section 19(1)(c) of OLTA. The reasons of the late (great) Vice-Chair Makuch in Earls Road Developments Limited v. Town of Huntsville, 2022 CanLII 60862 (ON LT) (“Earls Road”), another dismissal motion case, are germane (below emphasis added):

On April 11, 2022, almost two years since the first appeal was filed, and a month before the previously agreed upon deadline for Witness Statements to be exchanged, the Municipalities for the first time raised the prospect of bringing a motion to dismiss the appeals without a hearing…

…One must keep in mind that the Appellant filed its appeals as a result of the Municipalities failure to process the Applications notwithstanding voluminous reports filed by the Appellant in support of its Applications and the Municipalities’ deeming the Applications to be complete. The Appellant is entitled to have its Applications considered by this Tribunal given the Municipalities’ failure to deal with the Applications. To deny the Appellant a right to a full hearing, would amount to a denial of natural justice.

… It is quite evident to the Tribunal that the Municipalities are attempting through this Motion to have the issues determined without going through a full hearing where the evidence can be tested through cross-examination.

…The Ontario Land Tribunal Act, 2021 (“OLTA”) and the PA set out limited grounds upon which the Tribunal may grant the exceptional relief of dismissing an appeal without a hearing and the jurisprudence on this subject suggests that the Tribunal should not take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case…

…In evaluating a motion to dismiss an appeal without a hearing, the Tribunal should be “reluctant to take away any individual’s right to appeal and to have a full, fair and complete hearing of their concerns”. The Tribunal agrees with counsel for the Appellant’s submission that motions to dismiss an appeal without a hearing are not designed to address the merits of an appeal, rather the issue is whether there are authentic land use planning issues upon which evidence may be called and which are capable of adjudication in a hearing on the merits. It is not the Tribunal’s role in the context of this Motion to determine whether the Appellant will be successful when the appeals are heard, it is only necessary to satisfy the Tribunal that there is a prospect that the Applications could be approved, in whole or in part.

…The Tribunal needs to have the benefit of full evidence that would be provided in relation to the grounds raised by the Appellant at a hearing, and the testing of that evidence through cross-examination.

…The Tribunal finds that the appeals raise multiple genuine, legitimate and authentic land use planning grounds which are worthy of adjudication by the Tribunal.

29It is similarly not for this Tribunal in ruling upon this Motion to speculate as to whether the planning instruments sought in this proceeding may ultimately be granted – or, if they are, as to what conditions and requirements may be imposed after adjudication at the upcoming hearing. Nor is it the Tribunal’s responsibility to predict how the Town’s response to this appeal might evolve during or following the hearing – notwithstanding how emphatic the Resolution might appear at this juncture.

30The Tribunal concurs with counsel for Achille that the Resolution does not forever bind the Town to maintain its stated position, nor could it so fetter its discretion to reconsider or bind its successor councils – see: section 8.03 of the Town’s Council Procedural By-law (2023-119), which expressly provides for the reconsideration of prior Council decisions; and Galt-Canadian Woodworking Machinery Ltd. v. Cambridge (City), 1982 CarswellOnt 581 (Div. Ct.) affirmed at 1983 CanLII 3103 (ON CA)

31It is of interest to the Tribunal that there is jurisprudence establishing that municipalities ought not to be permitted to make enactments that circumvent certain mandated provincial orders. Although this Tribunal need make no finding on this Motion as to the enforceability of the Resolution, the remarks of Justice Rouleau for the Court of Appeal in Sumac Ridge Wind Incorporated v. Corporation of the City of Kawartha Lakes, 2016 ONCA 496 are important to keep in mind (below emphasis added):

This appeal concerns the interaction of municipal jurisdiction over roads, renewable energy approvals under the Environmental Protection Act, R.S.O. 1990, c. E.19 and provincial paramountcy over municipal legislative enactments, codified in s. 14 of the Municipal Act, 2001, S.O. 2001, c. 25. Namely, does provincial paramountcy limit a municipality's authority over one of its unopened municipal road allowances when the province issues a renewable energy approval for a wind turbine project that provides for the use of that same road?

…The proposal contemplated widening an unopened portion of Wild Turkey Road by about one metre and levelling its surface to allow for the delivery of the wind turbines. Sumac Ridge undertook to pay for the upgrading, operation and retiring of the road.

…On March 26, 2013, the city passed resolutions stating that it was not a "willing host" for wind projects and seeking recommendations for legal options if the province approved the Sumac Ridge project.

…the city passed a resolution that read in part:…THAT council confirms the application from WPD . . . for permits relating to Gray Road and Wild Turkey Road . . . are premature and directs the City's legal counsel to advise the applicant accordingly; and THAT that staff be directed to advise WPD . . . that any action not authorized by the municipality on Gray Road and Wild Turkey Road shall be seen as trespassing under the Trespass to Property Act and authorities will be contacted to enforce.

…The director… [under the Environmental Protection Act]…issued a renewable energy approval to Sumac Ridge (the "Sumac Ridge approval") on December 11, 2013. That approval was for five wind turbines to be placed at specific coordinates and for "on-site access roads"…The project therefore had to be built as approved. The Sumac Ridge approval covers all access roads, including Wild Turkey Road. No alternate placement of access roads is provided for. The city acknowledges that if Sumac Ridge cannot use Wild Turkey Road, the project cannot be built without reengaging in the renewable energy approval process.

…On March 25, 2014, before Sumac Ridge had even completed the municipal class environmental assessment report requested by the city, city council passed resolution CR2014- 279, which is the resolution subject to the frustration of purpose claim. It resolved the following:…THAT any request by [Sumac Ridge] and/or future successors for use of the unopened portion of Wild Turkey Road for property access and/or vehicular traffic to support proposed wind turbine development be refused.

…The Divisional Court granted the application (for judicial review brought by Sumac Ridge]... It quashed the city's resolution barring access to Wild Turkey Road and ordered the city to consider and decide Sumac Ridge's applications in good faith.

…Section 14 of the Municipal Act applies, therefore, to prevent a municipality from using its authority over roads to prevent an approved project from going ahead for being against its interests and, in effect, thwarting the provincial purpose…To the extent that municipal permits are required, the only concerns a municipality can advance are reasonable considerations such as costs, indemnification and liability, and only so long as it does so in good faith. Permits may not be refused simply because the municipality disagrees with the overall project…Because the project cannot be built, as approved, without the ability to use Wild Turkey Road, the city's resolution blocking Sumac Ridge's access to that road makes compliance with its approval impossible…The purpose of that approval -- to authorize a renewable energy project of the type fostered by the Green Energy and Green Economy Act, and to place the decision as to whether it is in the public interest in the hands of the director -- has been frustrated by the city's purported exercise of its jurisdiction over roads.

…The Divisional Court found that the city had acted in bad faith by exercising its jurisdiction over roads for an improper purpose, that is, to frustrate the Sumac Ridge approval and prevent wind energy projects from being constructed within its jurisdiction.

…In my view, the appeal ought to be dismissed.

32In this Tribunal’s opinion, it is also notable that the Court of Appeal ruled in Hamilton-Wentworth (Regional Municipality) v. Samuel Roy Enterprises, 1981 CarswellOnt 465 that the OLT’s predecessor, the Ontario Municipal Board, committed no error in law in imposing conditions concerning the availability of sanitary sewers and piped water, even where this requires the entering into of an agreement with a municipality which has stated that it will not provide such services. Although it is unnecessary for this potential disposition to be considered by this Tribunal on this Motion, this does demonstrate that the fact of apparent municipal refusals does not prevent the Tribunal from otherwise adjudicating the merits of land use planning matters.

CONCLUSION

33In summary, for the reasons articulated above, the Tribunal finds that the Resolution does not require it to dismiss this proceeding and that it is irrelevant to the Tribunal’s consideration of the Appeals under the Planning Act, which requires that it come to a determination as to whether, among other things, the proposed planning instruments satisfy the applicable legislative and policy requirements and represent good planning. The very matters which the Town’s counsel argued from the basis of the Resolution must and will be considered at the hearing as matters of provincial interest and policy, as is clear from the issues set out in the governing PO which were inserted by the Town.

34The Tribunal may not have jurisdiction to ultimately order the Town to accept or assume the infrastructure proposed by Achille, but this does not prevent the Tribunal from making Orders allowing the appeals or from imposing conditions related to servicing availability.

ORDER

35THE TRIBUNAL ORDERS THAT:

(a) The motion to dismiss this proceeding brought by the Town of Wasaga Beach (“Motion”) is dismissed; and

(b) There shall be no Order made as to the costs of the Motion.

36This Vice-Chair shall remain seized for the purpose of the ongoing case management of this proceeding, including any motion practice brought prior to the hearing of this matter, but not for any mediation that may be convened or in respect of the final hearing.

“William R. Middleton”

william r. middleton

vice-chair

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.