Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 19, 2025

CASE NO(S).: OLT-24-000595

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

Applicant and Appellant: Ken Craine

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

Description: To permit the rezoning of subject lands from Residential (R) and Transitional (T) to site-specific Residential (R-83)

Reference Number: 03.1121

Property Address: 255 Lake Drive North

Municipality/UT: Georgina/York

OLT Case No.: OLT-24-000595

OLT Lead Case No.: OLT-24-000595

OLT Case Name: Craine v. Georgina (Town)

Heard: May 5 to 7 and May 9, 2025 by video hearing

APPEARANCES:

Parties

Counsel

Ken Craine (“Appellant”)

Alex Lusty Alexandra Egi (student-at-law)

Town of Georgina (“Town”) Richard Phillips

Kacie Layton Alexander J. Suriano

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The Appellant owns 255 Lake Drive North (the “Property”). The Property is illustrated below at Figure 1, outlined in red, with surrounding lots outlined in black.

Figure 1: Sketch of the Property

2The Property is configured in a ‘key’ shape with a narrow frontage on Lake Drive North. It currently features an existing single-detached dwelling facing the street, with a second, slightly smaller single-detached dwelling directly behind it. There is also a large two-storey accessory building (currently used exclusively as a garage) at the rear of the Property.

3Richard Phillips (“Mr. Phillips”), who was added as a party, owns the surrounding properties marked with a “P” above in Figure 1, including a large residence and multi-bay garage located south of the Property.

4The Appellant’s development plans involve two parts: (1) converting the existing second dwelling into an accessory building to be used for storage, and (2) constructing an Additional Residential Unit (“ARU”) within the present second floor of the existing garage. A Zoning By-law Amendment (“ZBA”) is being sought to permit the conversion of the second dwelling into an accessory building because, to do so, it will exceed the currently-permitted lot coverage limitation of 10% for accessory buildings. As reflected in the proposed ZBA (attached as Attachment 1), the Appellant is seeking permission for lot coverage of 11.5%. The Tribunal notes that there is nothing in the proposed ZBA that directly references the proposed ARU.

5The Town and Mr. Phillips (collectively, the “Responding Parties”) oppose the proposed ZBA on the basis that it fails to adequately regulate the proposed ARU. They further contend that it is within the Tribunal’s jurisdiction to insist upon regulating the ARU when considering the merits of the present Appeal.

BACKGROUND

6In 2010, a Minor Variance application was approved by the Ontario Municipal Board (“OMB”) through a settlement with the Town which allowed the construction of the existing two-storey detached garage.

7In 2017, the Appellant commenced the current ZBA application, which originally sought two aspects of relief: (1) increased lot coverage for accessory buildings (noting that the original application sought a 13.5% limit, but the current appeal is seeking only 11.5%), and (2) permission to allow the proposed ARU, which was not permitted as-of-right at the time.

8Since then, Bill 23, More Homes Built Faster Act, 2022 (“Bill 23”) was passed and came into force. Among other effects, Bill 23 amended the Planning Act to render a By-law that prohibits locating an ARU on the Property to be of no force or effect.

9The Application subsequently moved ahead, through the public consultation process, and was submitted to Council for consideration on April 17, 2024. The accompanying Staff Report stated “the only relief required for this application is in relation to accessory building coverage from 10% to 13.5% [now 11.5%]”. Correspondingly, Staff recommended approval of the proposed ZBA.

10On April 17, 2024, Council refused the application contrary to Staff’s recommendation. Notice of that decision was issued on May 2, 2024.

Analysis

Bill 23 and O. Reg 299/19: Additional Residential Units

11Bill 23 introduced what is now ss. 16(3) and 35.1(1) of the Planning Act. Cumulatively, these sections render any Official Plan policy that prohibits locating an ARU on a parcel of urban residential land (such as the Property) to be of no force or effect (subject to certain limitations). There is no dispute between the parties that these provisions affect the subject ZBA application insofar as the Appellant now has an as-of-right entitlement to locate an ARU within the garage, pursuant to these provisions and related regulations.

12Among such regulations is O. Reg 299/19: Additional Residential Units (the “ARU Regulations”), which sets various requirements and standards applicable to an ARU, including:

1. A parking space shall be provided for an ARU except where a parking space is expressly not required according to an applicable By-law;
2. A provided parking space may be a tandem parking space;
3. An ARU may be occupied by any person regardless of their relation to the owner of the property, or whether they are the owner of the property;
4. An ARU is permitted regardless of the date of the construction of the primary dwelling;
5. Subject to any maximum height and minimum setback requirements of an applicable By-law, a building or structure containing an ARU may penetrate any angular plane that is described in the By-law;
6. A building or structure containing an ARU shall be at least 4 metres from another building or structure containing a residential unit on the same lot, except where an applicable By-law expressly permits the buildings to be closer;
7. Up to 45% of a parcel of land containing an ARU may be covered by buildings and structures, except where an applicable By-law expressly permits greater than 45% lot coverage;
8. Subject to any maximum height and minimum setback requirements in an applicable By-law, there is no limit to the floor space index of a parcel of land containing an ARU; and
9. The minimum lot area of a parcel of land containing an ARU is the same as it would be if there was no ARU located thereon.

13The Tribunal finds that the above listed ARU requirements and standards are noteworthy given the Responding Parties’ repeated assertion that the ARU being proposed by the Appellant would be insufficiently regulated if the Tribunal approves the requested ZBA as drafted.

Necessity of the proposed ZBA

14The Appellant is seeking the requested ZBA while also claiming that a ZBA is not necessary to permit the proposed development. More specifically, the Appellant submits that s. 5(1) of the ARU Regulations, which allows up to 45% lot coverage for all buildings and structures on a parcel where an ARU is located, supersedes the Town’s existing Zoning By-law which limits lot coverage for all accessory buildings to be no greater than 10%.

15To elaborate, the Appellant argues that a 10% lot coverage limit for accessory buildings would act as a sanction against establishing an ARU within accessory buildings, contrary to the intent and purpose of the ARU Regulations. In support of this contention, the Appellant highlights that: (1) the 45% limit within the ARU Regulations applies to both primary and accessory buildings; (2) ARUs are contemplated to be located within accessory buildings; and (3) lands should not be limited from having a normal range of accessory buildings. Based on these points, the Appellant argues that the ARU Regulations infer that a lot coverage limit of 10% for accessory buildings is too small, given that the minimum limit for all buildings and structures is far greater (45%) under the ARU Regulations.

16The Responding Parties’ position is that s. 5(1) of the ARU Regulations does not specifically speak to lot coverage for accessory buildings; rather, it applies to all types of buildings and structures. Consequently, while s. 5(1) of the ARU Regulations may supersede a By-law which limits lot coverage under 45% for all building and structures, they submit that it does not specifically limit lot coverage for accessory buildings.

17Having heard the parties’ positions, the Tribunal accepts the submissions of the Responding Parties, and correspondingly finds that the ARU Regulations are silent on limiting lot coverage specific to accessory buildings. Similarly, the Tribunal finds that there is nothing within the ARU Regulations that affect a municipality’s authority to regulate lot coverage for accessory buildings. Therefore, the Tribunal finds that s. 5(1) of the ARU Regulations does not supersede the Town’s 10% limit on lot coverage for accessory buildings, and the requested ZBA remains necessary to exceed this limit.

Matters of Provincial Interest, Provincial Planning Statement, and Region of York Official Plan

18There is no dispute between the parties about whether the Appellant’s application satisfies the statutory tests found at s. 2 and s. 3(5) of the Planning Act, and conformity with the Region of York Official Plan pursuant to s. 24(1). Having heard no submissions or evidence to the contrary, the Tribunal comes to the same conclusion. Further, the Tribunal confirms that it has had regard to the decision of the Town (rejecting the present application) in accordance with s. 2.1 of the Planning Act.

19This leaves the Tribunal to consider conformity of the proposed ZBA with the Town of Georgina Official Plan (2016), the Keswick Secondary Plan (2004) and/or the Keswick Secondary Plan (2023) (collectively, the “Town’s Official Plans”), in accordance with s. 24(1) of the Planning Act.

Relief Being Sought

20This appeal was brought pursuant to s. 34(11) of Planning Act (the “Act”). The Tribunal’s related powers to provide relief under such an Appeal are found at s. 34(26):

Powers of Tribunal

34(26) The Tribunal may,

(a) on an appeal under subsection (11) or (19), dismiss the appeal;

(b) on an appeal under subsection (11) or (19), amend the By-law in such manner as the Tribunal may determine or direct the council of the municipality to amend the By-law in accordance with the Tribunal’s order;

21As recognized at paragraph 29 of Bicz v Brant (County), 2025 CanLII 29954 (ON LT) (“Bicz v Brant (County)”), the scope of the Tribunal’s jurisdiction includes those powers expressly conferred by statute (such as that which is set out at s. 34(26), above), plus that which is necessary and/or incidental to exercising such powers. When considering jurisdictional confines, the relief being sought is instructive. The appeal is, after all, that which is pursued by the Appellant. In the present case, the requested relief is approval of the attached proposed ZBA.

22Mechanically, the proposed ZBA is remarkably simple and purports to do only two things:

1. Permit a maximum of 11.5% accessory building lot coverage; and
2. Eliminate the Transitional (T) Zone and rezone the Site so it is all within one Residential (R-XX) Exception Zone.

23The Appellant explained that the second provision requested is merely a “housekeeping matter” to “clean up” a former transitional designation that no longer applies to the property. The Responding Parties both confirmed that they have no issue with this, and the Tribunal comes to the same conclusion. With that settled, the Tribunal is left to consider only the merits of the first provision, as well as whether it has jurisdiction and there is merit to considering adding ARU regulations to the proposed ZBA.

Issues List and Scope of Appeal

24At the outset of the hearing, the Tribunal alerted the parties that there are jurisdictional and/or relevance questions with respect to some of the issues on the Issues List. More specifically, the Tribunal noted that the Issues List repeatedly references the proposed ARU, while there is no express mention of the ARU within the text of the proposed ZBA. The Tribunal therefore questioned the parties about their position on the nexus (if any) between issues exclusively associated with the ARU and the relief being sought.

25For reference, the Issues List is copied below:

1. Does the proposed development conform with the Town of Georgina Official Plan (2016) (August 24, 2021 Office Consolidation), including policies [2.2.12.9 (b) and (g), 4.1.1 (d), 8.1.11 to 8.1.14, and 8.7.1 (d) and (e)].
2. Does the proposed development conform with the Keswick Secondary Plan (2004) (December, 2019 Office Consolidation), including policies [13.1.1.2 (ii) and (iv), 13.1.2.2 (a), (b) (iii), and (c), 13.1.2.10, and 13.1.3.1.1 (a), (f), and (g)].
3. Does the proposed development [conform with the] new Keswick Secondary Plan (2023), including policies [13.1.2.2 (Principle 5), 13.1.4.3.2 (b) to (f), 13.1.5.1, and 13.1.5.3.4 ].
4. Will the proposal create two principal residential uses on the subject lands and, if so, is that appropriate and does it constitute good planning?
5. Will the proposal cause unacceptable adverse impacts in terms of privacy and overlook?
6. Is the proposed coverage for the accessory building excessive?
7. What are appropriate and sufficient regulations to apply to the proposed additional accessory apartment on the subject lands?
8. Does the proposed rezoning application exceed the permissions in the minor variance approval obtained through the 2010 OMB settlement hearing regarding the Property (OMB Case No. PL091125) and, if so, is the proposed development good planning in consideration of the Board’s findings in that decision?
9. Does the proposal constitute good planning in the public interest?

26To be clear, the Tribunal raised jurisdictional/relevancy concerns at the outset of the hearing to provide fairness to the parties, directing them to be prepared to address it through submissions and possibly evidence.

27Furthermore, the Tribunal confirmed prior to the commencement of the hearing that no decision would be made about jurisdiction and/or relevancy associated with the ARU issues until after the parties concluded their respective cases. The Tribunal took this unconventional approach following submissions from the Responding Parties, where they contended that their arguments on this point were highly nuanced and required a full appreciation of the evidence before the Tribunal should make a ruling. The Tribunal accepted these submissions but cautioned that a later ruling on jurisdiction and/or relevancy could affect the consideration of submissions and evidence previously heard in relation to the ARU issues.

28Now, having heard the parties’ full submissions and evidence, the Tribunal finds the above issues to be problematic in two principal ways. First, issues 1-3 and 9 conflate the relief being sought with the Appellant’s development plans. Second, issues 4, 5, 7 and 8 consider ARU issues that the Tribunal finds are irrelevant to the relief being sought. The Tribunal has no concern with Issue 6.

29Regarding the first identified problem, the Tribunal finds that issues nos. 1-3 and 9 improperly speak of the Appellant’s development plans, rather than the proposed relief/ZBA being sought. While it is true that specific development plans are routinely presented to the Tribunal as a matter of context to help illustrate what a proposed ZBA is meant to facilitate, consideration of development plans (as opposed to the proposed planning instrument) does not follow the prescribed statutory test set out at s. 24(1) of the Planning Act. The language of both s. 24(1) and s. 34(26) of the Planning Act refer to the planning instrument, not an Applicant’s proposed development plans.

30Having concluded this, the Tribunal amends issues 1-3 and 9, replacing “proposed development” (issues 1-3) and “proposal” (issue 9) with “proposed ZBA”.

31Looking at issues 4, 5, 7 and 8, all four of these issues are directed at the merits of situating the proposed ARU within the existing garage. On this point, the Tribunal considered the Responding Parties’ contention that, since the Appellant’s development plans have always mentioned both the conversion of the second dwelling into a storage building together with the construction of the ARU in the existing garage, the two parts of the plan are inseparably linked. They further submit that part 1 of the plan (conversion of the existing second dwelling into a storage building) effectively triggers part 2 (construction of the ARU), and combined these parts have the effect of transferring the residential use currently in the existing second dwelling to the garage. They submit that, as a result, the Tribunal should consider imposing regulations on the development of the ARU.

32The Appellant contests this premise, highlighting the text of the ZBA which makes no reference to the ARU. He further submits that there is nothing about the ARU issues that will assist with determining the merits of the proposed ZBA (i.e., whether an 11.5% accessory building lot coverage meets the applicable planning tests), and this means that the issues are clearly irrelevant. Additionally, the Appellant posited: what would happen if he simply demolished the second dwelling rather than seek to convert it into a storage building? In that scenario, he argued that he could proceed with the demolition and construction of the ARU without needing any ZBA relief whatsoever (because such a plan would not result in exceeding the maximum 10% lot coverage, noting that this limit would only be exceeded if the lot coverage of the converted dwelling is added to the lot coverage of the existing garage). Given this, the Appellant submits that there is no substantive connection between the relief being sought and his plans to build the ARU.

33Having considered both perspectives, the Tribunal accepts the Appellant’s submissions and correspondingly strikes issues 4, 5, 7 and 8 because each of these issues are exclusively concerned with the proposed ARU, with no essential connection to the proposed relief/ZBA. The Tribunal finds, as submitted by the Appellant, that these issues provide nothing to assist the Tribunal with determining the merits of the proposed ZBA.

34Further, the Tribunal finds that determinations of these issues, being materially independent from considerations associated with lot coverage for accessory buildings, are neither necessary nor incidental to the Tribunal’s decision concerning the proposed ZBA. Thus, applying the test at para. 29 of Bicz v Brant (County), the Tribunal finds that it does not have jurisdiction to assess and implement regulations associated with the proposed ARU.

35The Tribunal notes that, while the Appellant’s development plans repeatedly reference the proposed ARU, this does not result in an automatic nexus between the proposed ARU and the relief being sought. Reference to the ARU in the ZBA application materials is easily explained by the fact that a ZBA to allow the ARU was initially required prior to the passing of Bill 23. Would the Appellant be obliged to mention his ARU plans if he submitted his application today, in the wake of Bill 23? The Tribunal finds the answer to be clearly “no”, which itself is telling on the nexus question.

Merits of expanding the permissible lot coverage for accessory buildings

36Having scoped the Issues List as described above, the Tribunal will now consider the merits of the ZBA application without turning its mind to planning considerations associated with the ARU. The Tribunal notes that, despite the Tribunal’s directions to the parties, to consider the possibility that it might find the ARU issues to be irrelevant, the Responding Parties still focussed their respective cases almost exclusively on the ARU issues and provided very little in terms of other evidence and submissions.

37Of note, Allan Ramsay (“Mr. Ramsay”), the Responding Parties’ expert in Land Use Planning, provided practically no evidence that directly addressed the merits of increased lot coverage for accessory buildings. Even when addressing the direct question found at Issue no. 6, “is the proposed lot coverage for the accessory buildings excessive?”, his opinion was without substance, stating only “[the expanded lot coverage] is in my opinion excessive in the context of facilitating an inappropriate development for the site”. Mr. Ramsay further did not cite any Town policies that would be offended by the proposed 1.5% increase in lot coverage for accessory buildings.

38At the same time, the Appellant’s expert, Michael Smith (“Mr. Smith”), stated that an increased lot coverage of 1.5% is not excessive because it is a very small increase and will only result in a total lot coverage of 14.27% for all buildings and structures on the Property. This, he pointed out, falls well short of the prescribed limit of 35% found within the applicable Zoning By-law, and the 45% limit according to the ARU Regulations. He added his opinion that the small increase in lot coverage also conforms with built form policies of the Town’s Official Plans because no new structures are being proposed. He added that the proposed storage use is an anticipated accessory residential use, and the conversion of the second residence for such purposes will not cause any concerns about serviceability or flood hazard limits. On this basis, he opined that the proposed ZBA conforms with the Town’s Official Plans.

39The Tribunal accepts Mr. Smith’s evidence, noting that it received no reasoned evidence to the contrary. The Tribunal further finds that the proposed lot coverage increase will have no discernible impact on the surrounding properties given that no new structures are being proposed. With the relief facilitating a total lot coverage of only 14.27% for all buildings and structures on the Property, the Tribunal additionally finds that the property will be far from overdeveloped on account of the proposed ZBA.

40For these reasons, the Tribunal finds that the proposed ZBA conforms with the Town’s Official Plans in accordance with s. 24(1) of the Planning Act, and the proposed ZBA similarly constitutes good planning in the public interest.

Planning considerations re: the proposed ARU

41While the Tribunal has found that planning considerations associated with the proposed ARU are not relevant to the relief being sought, the Tribunal elects to turn its mind to the opposite finding to address the Responding Parties’ submissions on these points. To be clear, the Tribunal finds that the following analysis is not necessary, given its earlier findings, but it will address the ARU issues as an alternative reason to accept the Appellant’s position and approve the requested ZBA.

42To summarize the Responding Parties’ concerns about the proposed ARU, they contend that it: (1) will have a negative impact on the surrounding community on account of compatibility, size and overlook on neighbouring properties, contrary, they submit, to applicable municipal planning policies; and (2) it should not be allowed because the 2010 Minor Variance approval to facilitate construction of the garage did not consider the possibility of establishing an ARU within it. The Tribunal notes that these concerns are mirrored by other neighbours’ complaints contained in their respective Participant Statements that were filed and considered by the Tribunal.

43Regarding the first point, Mr. Ramsay opined that the proposed ARU is not compatible with the surrounding neighbourhood and community because it:

• “does not complement or reflect the desirable characteristics of the surrounding community”
• “does not incorporate any high quality building architecture that will improve or maintain desired community characteristics”
• “does not properly consider the context of the surrounding area including the massing, height, scale and details of existing adjacent building and structures”
• “will not be well integrated with the surrounding context and therefore will not contribute to community identity or a sense of place”
• “is not in keeping with the character and scale of the area, [and] will be incompatible with the existing and planned uses located within the immediate vicinity of the site”.

44Furthermore, Mr. Ramsay opined that the proposed ARU is simply too large. He testified that ARUs are expected to be smaller than the primary residence to maintain an ancillary status, and the subject ARU is substantially larger than the existing primary residence when measured by floor area. In his view, this will result in the proposed ARU becoming the primary residence or a second primary residence on the property. The Tribunal notes that, in cross-examination, Mr. Ramsay confirmed that the entire existing garage is currently considered ancillary to the primary residence despite its larger size.

45Regarding overlook, Mr. Ramsay opined that establishment of the ARU within the second floor of the garage, which currently features windows facing Mr. Phillips property (and specifically his garage), will impact Mr. Phillips’ privacy interests.

46Turning to the 2010 Minor Variance that enabled construction of the garage, the Responding Parties assert that it was approved on a basis that never considered building an ARU within it. In their view, it is clear from the OMB’s decision that the approval was premised on an assumption that the garage would only be used for vehicle storage and recreational purposes. Furthermore, Mr. Ramsay opined that the evaluation framework used in 2010 under the assertion that the garage would not be used for residential purposes is completely different than what would have been used if the OMB contemplated future construction of the now-proposed ARU.

47In response to these arguments, Mr. Smith maintained his contention that ARU considerations are irrelevant; however, he nevertheless considered the fit, character and compatibility concerns expressed by the Responding Parties and opined that these issues are practically non-existent because the Appellant is not proposing to construct any new buildings nor alter the exterior of the garage. With no new buildings or exterior changes, he opined that there will be no observable or measurable impacts on the neighbourhood from an outside perspective.

48Regarding the Responding Parties’ contention that the proposed ARU will not be ancillary to the primary residence due to its size, Mr. Smith acknowledged that it will be much larger than the existing primary residence, as measured by floor area; but he nevertheless opined that the ARU’s proposed location at the back of the property, together with the existing dwelling’s prominence at the front of the property, will result in no perceptible change to the status of the existing dwelling’s presence as the property’s primary dwelling. From an impact standpoint, Mr. Smith opined that perception is what matters when measuring primary/ancillary statuses.

49Addressing overlook and privacy concerns, Mr. Smith acknowledged that locating an ARU in the garage will impact overlook and privacy interests of surrounding neighbours, including Mr. Phillips. However, he nevertheless opined that such impacts would be minor and acceptable given that the windows in question already exist, as does a degree of associated overlook. Furthermore, he opined that such privacy impacts would not be out of line with what is expected in an urban environment.

50As it relates to the 2010 Minor Variance approval, Mr. Smith quoted and concurred with the Town’s planning staff, who stated “[t]he fact that a residential use in the garage was not permitted at the time of the OMB hearing does not change the effect of the Planning Act in permitting [the ARU] as of right”.

51Upon considering both experts’ opinions, the Tribunal prefers Mr. Smith’s planning evidence. It accepts Mr. Smith’s evidence over that of Mr. Ramsay partly because Mr. Ramsay’s opinions were, at times, clearly finessed to oppose the subject development. For example, Mr. Ramsay contended that the proposed ARU offends municipal policies involving buildings’ character, architecture, massing, height and scale, even though the proposed ARU will be located entirely within an existing structure with no plans to alter its exterior. Such ‘results oriented’ testimony, the Tribunal finds, undermines his credibility and the Tribunal therefore attributes very little weight to any of his opinions.

52By contrast, the Tribunal finds Mr. Smith’s evidence to be clear, compelling and straight forward. The Tribunal accepts his opinion that the proposed ARU will not introduce any unacceptable fit or compatibility impacts, the size of the proposed ARU will not be perceptively dominant over the existing principal dwelling, and it will not pose any greater privacy issues than what would normally be expected in an urban area.

53On the question of which residence will be ancillary to the other, the Tribunal finds that Mr. Ramsay’s acknowledgement that the garage is currently ancillary to the existing residence suggests strongly that the proposed ARU within it shall remain similarly ancillary. The Tribunal also finds that the location of the ARU, tucked well away from the street and within the existing garage, provides a strong perception of ancillary standing.

54Regarding the 2010 Minor Variance approval, the Tribunal has been provided with nothing in law to suggest that the recent changes to the Planning Act are somehow ineffective due to the prior OMB decision.

55For the above reasons, even if the ARU issues were considered to assess the merits of the proposed ZBA, the Tribunal still finds that the proposed ZBA conforms with the Town’s Official Plans in accordance with s. 24(1) of the Planning Act, and the proposed ZBA similarly constitutes good planning in the public interest.

Request for Recusal

56As mentioned earlier in this decision, the Tribunal performed case management duties at the outset of the hearing because it recognized potential jurisdictional and/or relevancy issues that were not identified on the matter’s Issues List. As part of the resulting discussions, the Tribunal canvassed the parties’ positions concerning jurisdiction and relevance of the ARU issues.

57On multiple occasions throughout these discussions, the Tribunal communicated that it had not made a decision on the questions of jurisdiction or relevancy of the ARU issues; rather, the Tribunal indicated that the parties should be prepared to address it through their respective cases.

58As part of an effort to better understand the Town’s perspective, the Member asked counsel, “what happens here if I do not rule on whether [the ARU] is ancillary or not. Hypothetically, [what happens] if I approve [the ZBA] and make no ruling on whether [the ARU] is ancillary or not?”. Upon receiving an unclear response from the Town’s counsel, the Member followed up, again hypothetically, asking if a building permit could be issued to construct the ARU if the requested ZBA is approved. This latter question was premised upon the common understanding that a building permit will not be issued if the subject construction contravenes By-law regulations – and it was an attempt to ‘flesh-out’ the Town’s position on the permissibility of constructing the ARU under the current By-law regime. Counsel for the Town declined to answer the question, citing that it was a question better posed to a Building Services Official. Despite still being dissatisfied, the Member allowed the question to go unanswered.

59Later, at the conclusion of these discussions, the parties requested and were granted a lengthy adjournment to discuss settlement. Eventually, they confirmed that settlement was not reached and that the merit hearing would need to commence. At this point, the Tribunal forwarded a copy of Bicz v Brant (County) to the parties, which contains a jurisdictional test previously applied by the Tribunal, because the Member found that the parties should be aware of it prior to the commencement of their cases.

60When the merit hearing resumed, the Responding Parties requested that the Member recuse himself due to “perceptions of prejudgment” flowing from the case management discussions. Counsel further confirmed that they were not claiming actual prejudgment; rather, they were alleging perceptions of prejudgment. This led the Tribunal to request submissions from the parties on the subject.

61Counsel for Mr. Phillips and the Town claimed that the following questions, discussions and actions initiated by the Member demonstrated a perception of prejudgment:

1. When the Member asked the Responding Parties to identify where in the proposed relief a reference to the ARU could be found, and for them to otherwise outline the relevance of the ARU issues in relation to the proposed ZBA;
2. When the Member asked the parties to confirm their position about whether the garage and proposed ARU is/would be ancillary to the primary dwelling;
3. When the Member asked counsel for the Town whether a building permit could be issued to construct the ARU if the proposed draft ZBA was approved; and
4. When the Member forwarded Bicz v Brant (County) to the parties.

62In response to Claim #1, the Appellant submitted that “an informed person would see that the question [was] intended to direct the attention of the parties to the scope of the relief being sought” and “drawing attention to an important aspect of a case is not predetermination of it”.

63In response to Claim #2, the Appellant submitted that “the question engaged the expected function of the Tribunal in shaping the issues” and “an informed person viewing the matter practically would find such a question to indicate diligent pursuit of an efficient hearing, not bias. Additionally, contrary to the assertion by the Respondents that there was no evidentiary basis for such a question, the Agreed Statement of Facts contained two admitted statements that the garage was accessory”.

64In response to Claim #3, the Appellant submitted that “an informed and realistic person would appreciate the question as an attempt by the Tribunal to understand the scope of the relief being sought which is a legitimate function of the Tribunal”, and “the use of a hypothetical indicates a lack of predetermination”.

65In response to Claim #4, the Appellant submitted that circulating Bicz v Brant (County) was “an attempt to raise, early on, the issue of the need to consider the jurisdiction of the Tribunal in the appeal before it” and “an informed person would understand that the question of jurisdiction was a live concern”.

66Upon considering the above submissions, the Tribunal recognizes that it has an ongoing duty to act with honesty, integrity and impartiality. In this pursuit, it is incumbent upon the presiding Member to safeguard the integrity of the proceedings and not allow a situation in which one party gains advantage while another suffers prejudice. Critical to this duty is the avoidance of prejudgement.

67Further, the avoidance of actual prejudgment within the mind of the Member is not enough to protect the integrity of the proceedings; care must also be taken to avoid perceptions of prejudgment. Justice must not only be done, it must appear to be done. This covers a grander duty to ensure that the public has confidence in the adjudicative process, including a perception that the proceedings are being decided only after all of the relevant evidence and submissions are put forward by the parties. Without such confidence, respect and adherence to the system will surely breakdown, thereby eroding the rule of law.

68That being said, the onus is on a claiming party to demonstrate clear cause and/or grounds for a perception of prejudgment. Such cause and/or grounds must be more likely than not, and a perception of prejudgment be clearly demonstrated.

69It is also essential to recognize that perceptions are subjective by their very nature and any party with a serious stake in a matter may exhibit a heightened sensitivity in processing their perceptions. Consequently, it is not enough for a party to make a sincere claim of a perception of prejudgment – such a claim must be objectively assessed. For this reason, the test is as follows:

. . . what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.¹

70In the present case, the Tribunal finds that the above described “informed person” would conclude that the presiding Member was reasonably conducting a case management exercise when the allegations took place. Further, given that the jurisdictional/relevancy question had been left off the Issues List, the presiding Member was obliged to raise it at the earliest opportunity out of fairness to the parties. Indeed, had the Member waited to address the concerns after the hearing started, or worse after the hearing concluded, it would have resulted in serious procedural fairness issues because the parties would be much more limited in their opportunity to address it.

71It should also be no concern that the Member initiated the discussions, given the Tribunal is expected to conduct case management duties on an ongoing basis. It is further understood that the Tribunal has specialized expertise and experience in interpreting the statutes under which it functions, so the Member’s recognition of jurisdictional and/or relevancy issues should not be a surprise.

72Regarding the Member’s choice to forward Bicz v Brant (County) to the parties, the Tribunal finds that a reasonably informed person would understand that this was done to further inform the parties of the potential jurisdictional issue(s) and the corresponding test that could be applied. Additionally, this was again done to provide the parties with an early opportunity to review the jurisprudence and prepare their cases accordingly in the interests of fairness.

73For the above reasons, the Tribunal refused the Responding Parties request for recusal.

ORDER

74THE TRIBUNAL ORDERS THAT the appeal is allowed and By-law No. 500 of the Town of Georgina is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Town of Georgina to assign a number to this By-law for record keeping purposes.

“Kurtis R. Andrews”

Kurtis R. Andrews

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.

ATTACHMENT 1

Footnotes

1. 1Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 SCR 282 (SCC) at para. 20.