Miller Paving Limited et al. v. Muskoka (District), 2026 CanLII 22811

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 13, 2026

CASE NO(S).: OLT-24-000035

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Elizabeth Lippa and Anthony Lippa

Appellant: Leslie Carr

Appellant: Miller Paving Limited

Appellant: Our Muskoka Stakeholders Association

Subject: Proposed Official Plan Amendment

Description: Adoption of the Township of Muskoka Lakes Official Plan

Reference Number: 2022-171/PLN-7-14/09/23

Property Address: Town-Wide

Municipality/UT: Muskoka Lakes/Muskoka

OLT Case No.: OLT-24-000035

OLT Case Name: Miller Paving Limited et al. v. Muskoka (District)

PROCEEDING COMMENCED UNDER subsection 17(45) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Request by: Muskoka Lakes Association and Leonard Lake Stakeholders Association

Motion for: Dismissal

Heard: December 12, 2025 by video hearing

APPEARANCES:

Parties	Counsel
Our Muskoka Stakeholders Association; Miller Paving Limited; Elizabeth Lippa (together "Appellants")	Marc Kemerer, Marc Kemerer, John Ewart
Township of Muskoka Lakes ("Township")	Edward Veldboom, Chris Barnett (in absentia)
District Municipality of Muskoka ("District")	Jennifer Savini, Daniel Querques (in absentia)
Leonard Lake Stakeholders Association; and Muskoka Lakes Association (together "Lake Associations")	Lee English, Piper Morley (in absentia)
Skeleton Lake Cottagers Organization Inc.	David Donnelly

DECISION DELIVERED BY GREGORY J. INGRAM AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1These proceedings pertain to a Motion to Dismiss brought by the Lake Associations' requesting that the appeal launched by Our Muskoka Stakeholders Association ("Our Muskoka") be dismissed in full and the appeals launched by Miller Paving Limited ("Miller Paving") and Elizabeth Lippa ("Lippa") be dismissed in part ("Motion"). The Appellants launched appeals under s. 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended ("Act"), against the District's approval, as modified, of the Township's new Official Plan ("TOP") in November 2023 and issued in December 2023.

2The District's Planning Report, dated November 23, 2023 ("Planning Report"), indicates that the Township initiated an official plan review process in 2019. The public consultation process included workshops, open houses, a statutory public meeting, committee and working group meetings, and meetings with community stakeholders. The Planning Report indicates that the Township process was "atypical" compared to other area municipal official plan approvals as the Township held additional public consultations from January to May in 2023.

3The Planning Report indicates that the District received additional correspondence from stakeholders related to the proposed commercial accommodation, rural policies, District Official Plan ("DOP") and Provincial Policy Statement ("PPS") conformity, and the TOP review process' conformity with the Act which resulted in additional meetings with stakeholders and Township and District staff.

GROUNDS FOR THE APPEALS

Our Muskoka Stakeholders Association

4Our Muskoka is "an association of local business owners and residents". Our Muskoka checked the box in section 3A of the Notice of Appeal Form indicating they will argue that the TOP is inconsistent with the PPS, fails to conform with, or conflicts with, a provincial plan, and fails to conform with the DOP.

5Our Muskoka identified the following grounds for their appeal in the accompanying letter to their Notice of Appeal:

• Policies of the TOP do not provide a balanced view of planning and exceed municipal jurisdiction. There is no cogent rationale on matters such as the application of recreational carrying capacity and minimum lot sizes. The TOP is overly restrictive and/or open to too broad a range of interpretations on such things as climate change, environmental impacts, gains/mitigation etc.
• Drafting and revising the TOP was not transparent.
• The TOP includes performance standards more appropriate for a zoning by-law, is overly prescriptive as a result and lacks transition policies which creates uncertainty in the application of the TOP to development applications.
• The following policies and their various subsections are identified as being under appeal: Part A – Plan Basics; Part B – Vision and Objectives; Part D – Natural Heritage; Part E – Waterfront Area; Part H – Rural Area; Part L – General Policies; and Part N – Implementation Policies.

Miller Paving Limited

6Miller Paving owns and operates a licenced pit and quarry in the Township. Their Notice of Appeal checked the box in section 3A of the Notice of Appeal Form indicating that they will argue that the TOP is inconsistent with the PPS, fails to conform with, or conflicts with, a provincial plan, and fails to conform with the DOP.

7The grounds for appeal stated in the letters (cover letter and Skelton, Brumwell letter) accompanying Miller Paving's Notice of Appeal are as follows:

Part K – Mineral Aggregate Resource Area:

• Policy K.1 a), regarding the prohibition of mineral aggregate operations near lakes, conflicts with other parts of the same policy, which encourage mineral aggregate resources be made available as close to the market as possible and promote the protection of potential future extraction sites.
• Policy K.1 b) addresses the potential impact on lakes as it says that extraction be "carried out in a manner that minimizes negative …environmental impacts". They also expressed a concern with the use of the word "near" without a definition. It was suggested that the deletion of Policy K.1 a) from the TOP would address this issue.
• Policies K.3.1 b) and K4 are not consistent with PPS section 2.5.2.1. K.3.1 b) identifies a specific type of stone in the "exclusion from demonstration of need" and Policy K.4 sets a 2000 metre limit for any new mineral aggregate operations from a waterfront designation or urban centre. Miller Paving submits that it is unrealistic to separate one type of stone from another when both are coming out of the same site. They also submit that setting an arbitrary distance without any supporting guidelines or justification in the TOP is contrary to other policies in Policy K.4 which require scientific assessments to make these kinds of determinations. It is suggested that the first paragraph of Policy K4 be deleted.
• Policy K.4 f) requires an aggregate site applicant to "illustrate the ability…to contain all components of the mineral aggregate operation" which the Miller Paving submits that the TOP should not be attempting to "overlap with the Aggregate Resources Act in the governance of pits and quarries". Miller Paving submits that Policy K.4 f) be deleted from the TOP.
• Part M8 – Non-Conforming Uses: Policy M.8.1 a) indicates that existing uses that do not conform with the designations and policies in the TOP should be gradually phased out so that uses conform with the TOP and intent of the implementing zoning by-law. Miller Paving submits that this is not consistent with sections 2.5.2.1 and 2.5.2.4 of the PPS, given the concerns with the 2000 metre criteria in Policy K which could impact "all…existing aggregate licenses in the Township". They also refer to s. 66(1) of the Aggregates Act, which suggests that it takes precedence over any municipal planning statute where they deal with the "same subject matter". Miller Paving suggests that the following wording could be added: "This policy does not apply to existing pits and quarries licenced under the Aggregates Act".
• Miller Paving submits that two additional policies should be added to the TOP. One related to transitional policies and another to also apply a two-year moratorium on official plan amendments.

Elizabeth Lippa

8Lippa owns a property in the Township that is the subject of an aggregate resource extraction application. The Notice of Appeal Form submitted on behalf of Lippa checked the box in section 3A and indicated that the TOP is inconsistent with the PPS.

9The grounds for appeal stated in the letter accompanying Lippa's Notice of Appeal are as follows:

• Part K – Section K.4 Application Requirements: Lippa submits that the distance criteria are not consistent with the PPS. She submits that the 2 kilometre ("km") limit "causes uncertainty regarding expansions of existing mineral aggregate operations", limits the available resources and she suggests that a 2 km "offset…encompasses much of the Township including existing pits and quarries". It is submitted that the distances in the policy be supported by science.
• The requirement in the TOP for mineral aggregate operations to be located within 10 km of a provincial highway is excessively restrictive and not supported by any apparent technical justification.
• Policy K.3.1 b) indicates that a demonstration of need is required related to "dimensional stone" which Elizabeth Lippa submits is not consistent with the PPS, which "makes no distinction in the type of aggregate or its use" and suggests that this policy should be deleted.
• Two objectives of Policy K.1 – Mineral Aggregate Resource Area contradict one another and result in the policy being inconsistent with the PPS. Specifically, the restriction caused by the 2 km prohibition for new mineral aggregate operations from lakes contradicts the objective to protect deposits of mineral aggregate resources for potential future extraction while "recognizing that aggregate resources are readily available throughout much of the Township".
• PPS section 2.5.2 protects the long-term supply and protection of existing mineral aggregate operations yet the Part N Section 9 – Non-Conforming Uses Policy in the TOP's goal is to "phase out all existing pits and quarries within 2 km to Waterfront Areas or beyond 10 km from provincial highways".

THE MOTION HEARING

10The closing submissions for the Motion were received by the Tribunal by December 29, 2025.

PRELIMINARY MATTERS – ADDITIONAL MATERIALS, RECORDING

11Prior to these proceedings, Our Muskoka sought direction from the Tribunal regarding the submission of additional materials to this re-hearing of the Motion. In determining this matter, the Tribunal received submissions from the Parties and upheld the direction provided by a Tribunal Vice-Chair on November 20, 2025, indicating that only "previous submissions will be reviewed at the Motion Hearing". The Tribunal did provide some flexibility on closing submissions and permitted them to reflect specific details that arose during these proceedings. The Parties raised no objections to this direction.

12Regarding Our Muskoka's request to have a 'court reporter' document these proceedings, the Tribunal heard submissions from the Parties and granted permission based on the following conditions:

• The final draft must be shared with the Tribunal and other Parties immediately following the Motion Hearing;
• It is not to be used for any other hearings or matters;
• It is only to be used by counsel and individuals directly involved in these proceedings.

LAKE ASSOCIATIONS MOTION TO DISMISS

13The Tribunal was informed at the beginning of this Hearing that Friends of Muskoka are no longer a Party to these proceedings and that Leonard Lake Stakeholders Association and Muskoka Lakes Association may be referred to as the "Lake Associations" and movers of this Motion.

14The Lake Associations are seeking an order dismissing Our Muskoka's Notice of Appeal without a hearing. The primary argument of the Lake Associations is that the Notice of Appeal does not contain reasons and explanations as required by the Act and is therefore invalid pursuant to ss. 17(45)(1)(i) and 17(45)(3) of the Act, s. 19(c) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 ("OLTA") and Rule 15.4 of the Ontario Land Tribunal Rules of Practice and Procedure ("Rules").

15The grounds for the Motion are summarized here:

i. Our Muskoka's Notice of Appeal does not provide the explanations required by s. 17(37) of the Act pertaining to its position that the approval of the TOP is not consistent with the planning statement issued under s. 3(5) of the Act" and that the decision "does not conform with the District's Official Plan".

ii. Our Muskoka is "statute barred", as they did not provide explanation, as noted above, from arguing that the District's decision is inconsistent with the PPS or that the decision does not conform with the DOP.

iii. Our Muskoka's appeal has "no reasonable prospect of success" as it is prohibited from raising issues related to the TOP being inconsistent with the PPS or that it is not consistent with the DOP.

iv. Our Muskoka's appeal does not "disclose" any apparent land use planning grounds upon which the Tribunal could refuse the parts of the TOP being appealed as the issues are "legal in nature".

v. If the Tribunal rules that Our Muskoka's appeal has a "reasonable prospect of success" or that the appeal "discloses apparent land use planning grounds", the Lake Associations submit that it should be dismissed in part given its failure to provide the requisite explanations regarding inconsistency with the PPS and failure to conform with the DOP in Our Muskoka's Notice of Appeal and the parts of the TOP not identified in the Notice of Appeal as being under appeal as required by s. 17(37)(a) of the Act.

10The Lake Associations submit that the Miller Paving and Lippa Notices of Appeal should be dismissed in part as they do not explain how the District's decision to approve the TOP does not conform with the DOP and should be dismissed regarding the parts of the TOP not identified in their respective Notices of Appeal as being under appeal. Dismissing these appeals is pursuant to s. 17(45)(3) of the Act and the Miller Paving and Lippa appeals should be scoped to those parts of the TOP identified in each of their Notices of Appeal.

11The following witnesses provided evidence pertaining to this Motion:

Lake Associations Witnesses:

• Stephen Fahner ("Planner Fahner") – Expert in the Area of Land Use Planning; and provided oral evidence through cross-examination during these proceedings;
• Jennifer Huff – Non-Expert Witness evidence provided in her capacity of Development and Environmental Sustainability for the Township;

Our Muskoka Witnesses:

• Alyxandra Brown – Stakeholders Association (Non-Expert) Witness; and
• Rian Allen ("Planner Allen") – Land Use Planning (Expert Witness); and provided oral evidence through cross-examination during these proceedings; and

Miller Paving and Lippa Witness:

• Gary Bell ("Planner Bell") – Expert in the Area of Land Use Planning.

12The materials before the Tribunal on the Motion included the following:

• Exhibit 1: Lake Associations, et al. Motion Record;
• Exhibit 2: Lake Associations Affidavit of Service for the Motion Record;
• Exhibit 3: Our Muskoka Response;
• Exhibit 4: Miller/Lippa Response;
• Exhibit 5 Lake Associations et al Reply Submissions;
• Exhibit 6: Lake Associations final Affidavit of Service;
• Exhibit 7: Our Muskoka Affidavit of Service; and
• Exhibit 8: Miller/Lippa Affidavit of Service.

LEGISLATIVE REGIME

13The Act and the OLTA establish criteria for the consideration of dismissing an appeal without a full hearing on the merits. The relevant sections are set out below for ease of reference.

14Section 17(45) of the Act provides the following:

Dismissal without hearing

(45) Despite the Statutory Powers Procedure Act and subsection (44), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. The reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal…

2. The appellant has not provided written reasons with respect to an appeal under subsection (24) or (36).

3. The appellant intends to argue a matter mentioned in subsection (25.1) or (37.1) but has not provided the explanations required by that subsection.

15Section 17(25.1) of the Act provides the following:

Same

If the appellant intends to argue that the appealed decision is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or, in the case of the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality's official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

16Section 34(25) of the Act provides the following:

Dismissal without hearing

Despite the Statutory Powers Procedure Act… the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. The reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all of part of the appeal…

2. The appellant has not provided written reasons for the appeal.

3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

17Section 34(19.0.1) of the Act provides the following:

Transition

If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

18Section 19(1) of the OLTA states:

Dismissal

Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

19The grounds for dismissing an appeal are disjunctive. In other words, only one of the several grounds set out in the Act and the OLTA must be satisfied to warrant dismissal of an appeal.

LAKE ASSOCIATIONS MOTION TO DISMISS

Background

20In December 2024, counsel for the Lake Associations wrote a letter to counsel for the Appellants to address a variety of concerns related to the Issues Lists as his client is required to shelter under the issues raised by the Appellants. The letter refers to the direction given by the Tribunal related to the refinement of the Issues Lists and to the relevant Act and Rules, which require that the issues arise from the Notice of Appeal. In closing, the letter indicates that the Lake Associations "reserve the right to bring a motion to dismiss…[the appeals] in whole or in part pursuant to s. 17(45) of the Act and s.19 of the OLT Act and/or OLT Rule 15.4".

The Motion

The Lake Associations submit that the Our Muskoka appeal should be dismissed as the Notice of Appeal does not provide required reasons and explanations, does not contain land use planning grounds on which the appeal could be granted, and has no reasonable prospect of success.

21In addition, the Lake Associations argue that the Miller Paving and Lippa appeals do not explain how the TOP does not conform with the DOP, which prohibits them from arguing the case as per s. 17(37.1) of the Act. They also submit that these appeals should be dismissed regarding the parts of the TOP not specifically identified in their Notices of Appeal as being under appeal.

Primary Argument: Lack of Reasons and Explanations

22The primary argument of the Lake Associations is that the Our Muskoka, Miller Paving, and Lippa appeals cannot argue that the TOP is not consistent with the PPS or does not conform with the DOP because their Notices of Appeal and cover letters do not explain how the TOP is inconsistent with the PPS or does not conform with the DOP, as required by s 17(37.1) of the Act. The Lake Associations acknowledge that a supplemental letter included with the Miller Paving Notice of Appeal package outlines their position on how Part K and Policy N9.1(a) of the TOP are inconsistent with the PPS.

23The Lake Associations argue that, under s. 17(45) of the Act, the Tribunal may dismiss an appeal regarding an official plan without holding a hearing if the Tribunal is of the opinion that the "reasons set out in the notice of appeal do not disclose any apparent land use planning grounds which the […] part of the plan that is the subject of the appeal could be approved or refused by the Tribunal". They also maintain that the option to dismiss is available through s. 17(45)(3) of the Act, which says that if "the appellant intends to argue a matter mentioned in subsection […] (37.1) but has not provided the explanations required by that subsection" the appeal can be dismissed (emphasis added in Lake Associations' materials).

24The Lake Associations submit that Our Muskoka's appeal letter makes no reference to "either the PPS nor the District OP…nor does… [it] include the words "consistent" or "conform" … [and] is devoid of any explanation as to how the TOP is not consistent with the PPS nor conforms with the DOP". They also argue that Lippa's Notice of Appeal lacks the required explanation given that their Notice of Appeal claims that the DOP is inconsistent with the PPS under s. 3(1) of the Act.

25In support of their position, the Lake Associations submit that the Tribunal should look to Tribunal case Our Milton - Miltonians for Sensible Development Ltd. v Milton (Town), 2022 CanLII 34876 (ON LT) ("Our Milton") with respect to the lack of reasons and to the suggestion that other sources may be permitted to provide clarity around the explanation requirements. Relevant sections at paragraph [23] of Our Milton includes the following:

It would be unfair to allow the Appellant to add additional grounds to the Appeal after the notice has been filed…in this case, the Notice of Appeal does not contain any references to conformity or consistency with the PPS, the Growth Plan or the RHOP. The Tribunal will not allow the disputed issues to be included…

The Lake Associations submit that, like Our Milton, Our Muskoka has raised concerns without explanations or reasons.

26The Lake Associations rely on two other decisions which point to the requirement to provide explanations as part of a notice of appeal. The Ontario Municipal Board ("OMB") case Patry v Kingston (City), 2019 CanLII 11788 (ON LPAT) ("Patry") paragraph [38] says that the "how or why" of non-conformity must be clear and "that the explanations required by the legislation were not provided in the Notice of Appeal and upon the content of the Notice of Appeal alone". They also refer to the OMB case Brampton Areas 52, 53 Landowners Group Inc. v Brampton (City), 2019 CanLII 79785 (ON LPAT) case, which states at paragraph [62] that there is a need for an explanation in the Notice of Appeal:

While the explanation in the notice of appeal does not need to contain all the elaboration that might be found in a response to motion to dismiss, it must contain more than a brief reference…

…the catch-all phrase 'among other reasons' in the notices of appeal does not save them from the failure to meet the requirements of s. 17(25.1).

27Under cross-examination, Planner Allen confirmed that the Our Muskoka Notice of Appeal does not reference the PPS, does not use the words "conformity" or "consistency", and provides no reference to the DOP.

28In Reply, Planner Allen opined that it is appropriate for the Notice of Appeal cover letter to refer to "previous submissions" as it summarizes those submissions to the municipality.

Additional Arguments: No Land Use Planning Grounds or Reasonable Prospect of Success

29The additional arguments put forward by the Lake Associations are that the Notice of Appeal does not disclose any apparent land use planning grounds upon which the appeals could be granted, and further, that the appeal has no reasonable prospect of success. It is argued that an appellant cannot look to prior submissions, their issues list, or "evidence proffered in response to a motion to dismiss" to satisfy the statutory requirement.

30The Lake Associations maintain that the Our Muskoka grounds (beginning at paragraph [4] above) for the appeal do not represent land use planning grounds but are "largely legal in nature" and there are other remedies for such allegations through the Municipal Act, 2001, S.O. 2001, c.25 or through the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

31Planner Fahner's Affidavit indicates that Our Muskoka Notice of Appeal "does not disclose any apparent land use planning grounds upon which part of the Township OP that is the subject of the Our Muskoka appeal could be refused by the Tribunal".

32Regarding the notion of providing additional explanations outside of the original Notice of Appeal, the Lake Associations rely on the OMB case Lavoie-Schaeffer v Clarence-Rockland (City), 2021 CanLII 17382 (ON LPAT) ("Lavoie-Schaeffer"), as it indicates, at paragraph [20], that an appellant "should not be given a 'second chance' to correct its first instance of deficiency" and that the Tribunal does not have the authority to "permit an Appellant to amend its Notice of Appeal".

33The Lake Associations also argue that section 19(1)(c) of the OLTA applies to these appeals given that the Appellants cannot argue that the TOP is inconsistent with the PPS or does not conform with the DOP. The Appellants have not identified any land use planning grounds to support the appeals. This allows the Tribunal to dismiss an appeal without a hearing if the Tribunal is of the opinion that the proceeding has no "reasonable prospect of success", and given these deficiencies, that is the case.

34The Lake Associations also refer to Rule 15.4(c) of the Rules, which give the Tribunal authority to dismiss for the same reason.

35The Lake Associations argue that the Tribunal's "inquiry on a motion to dismiss under s. 17(37.1) is limited to the Notice of Appeal itself" and Our Muskoka cannot refer to prior submissions, an associated issues list, or evidence brought because of a motion to dismiss to satisfy this statutory requirement.

36Regarding Our Muskoka's position that they "represent the public interest", the Lake Associations submit that they represent a small number of people, and it is the elected councils of the District and Township who represent the "public interest".

37The Lake Associations relied on Goldfinger v Toronto (City), 2019 CanLII 86354 (ON LPAT) ("Goldfinger") with respect to the argument that the onus is on the Appellants to demonstrate the problems with the approved planning policies. The Lake Associations refer to paragraph [8] of Goldfinger in support of this position:

The onus was on the Appellants to demonstrate how the City had crafted an insupportable official plan amendment…

…there can be no planning justification for modifying OPA 367 for the sake of maximizing the Appellants'…development priorities…

…the onus was on the Appellants to show why the City's vision is wrong and why the resulting OPA is deficient.

38The Lake Associations argue that the Appellants have not explained the 'how' and 'why', and therefore, have no reasonable prospect of success in their appeals.

OUR MUSKOKA: RESPONSE TO MOTION TO DISMISS

39The Appellants oppose the Motion and submit that they have met all the relevant statutory tests under ss. 17(37) and (37.1) of the Act and argue that their appeals are supported by a "myriad" of planning grounds on which they can succeed. The Appellants argue that the Motion is based on a "highly and very technical reading of section 37.1" which is not supported by legislation and case law.

40Counsel for the Appellants provided oral submissions to the Tribunal and a compilation of communications with the Township Council, Planning Committee and the Affidavit of Planner Allen among other publications in support of the position of the Appellants.

41The Appellants submit that the Notices of Appeal should be permitted to proceed as the Appellants have actively participated throughout the TOP drafting and review process while raising a "broad range" of planning related concerns throughout and retained a planning expert to assist in launching an appeal to summarize the concerns and identify the policies under appeal. The Appellants also provided Issue Lists and alternative policy wording, which further identify the areas of concern. They contend that dismissing the appeals without a hearing is an "extraordinary remedy" and that the contents of the Notices of Appeal are not determinative.

42Regarding the suggested "lack of planning grounds" issue, the Appellants argue that the "submissions in the public process…support the references to the planning policy concerns" and they should be read along with the Notice of Appeal to provide clarity. They also suggest that the references in the cover letter to "public submissions" and the list of issues in the Notice of Appeal (see paragraph [5] above) are well known to the Parties who actively participated in the process.

43The Appellants argue that a dismissal without a hearing is an "extraordinary remedy" and the Tribunal may dismiss an appeal only if it is "vexatious, discloses no apparent land use planning grounds or offers no reasonable prospect of success". In this case, where an appellant has presented expert planning evidence and there are a range and diversity of planning opinions and it is clear that they have presented genuine planning issues that need to be adjudicated.

44The Appellant argues that the words "conformity" and "consistency", or other words to explain how an official plan is inconsistent or does not conform with other planning statutes, are not required and purely "specific to the writer". The Appellants argues that if, due to "technical deficiencies", the Tribunal does not agree that an appeal meets the statutory requirements it must take steps to address them. This occurs by recognizing that a notice of appeal is part of a larger package of information and the requirement for reasons is "directory, not mandatory".

45The Appellants argue that the absence of specific words is too narrow a construct and improperly places 'form' over 'substance'. They submit that the entire public record, including prior submissions are to be considered in an appeal and rely on 2856973 Ontario Inc. v Toronto, 2025 CanLII 2783 (ON LT) to support this position. The Appellants also refer to case of Rodaro v Vaughan (City), 2018 CanLII 4450 (ON LPAT) which indicates at paragraph [27] that "the appeal form and letter are not the last word in laying out issues".

46The Appellants argue that the dismissal of an appeal should be reserved for "obvious instances where an appeal represents an abuse of process or lacks any planning grounds" and that it is also, if necessary, appropriate to augment the grounds of appeal through the response to a motion to dismiss. This position relies on two cases, Raghubir v. Toronto (City) 2002, CarswellOnt 4682 OMB and 1807086 Ontario Inc v. Asphodel-Norwood (Town), 2020 ON LPAT (Tribunal Legacy File No. PL190547).

47The Appellants argue that the Affidavit of Planner Allen in the Response to the Motion augments the Notice of Appeal as it references the Affidavit of Alyxandra Brown of May 16, 2025, and suggests that it "discloses a myriad of planning grounds" which could allow the appeal to proceed.

48The Appellants argue that they have consistently raised planning issues throughout the consultation and appeal process, which were advanced through "written submissions, oral presentations, correspondence with staff, and participation in stakeholder consultations, all forming part of the municipal record". The Appellants submit that this, along with expert planner opinions, confirm that "genuine planning issues have been consistently raised and refined", which makes a dismissal inappropriate.

49The Appellants look to Romandale Farms Limited v Markham (City), 2018 CanLII 29839 (ON LPAT) to demonstrate this principle. Briefly summarized, the decision indicates that, given that there were multiple land use planners providing evidence, that "the diversity of opinions of these experts highlight that there are legitimate and genuine planning issues upon which the Board could either refuse or grant Appeals".

MILLER PAVING and LIPPA: RESPONSE TO MOTION TO DISMISS IN PART

50Miller Paving and Lippa adopt the submissions of Our Muskoka in their Response to the Motion materials and submissions for these proceedings. Below reflects their specific submissions and evidence.

51Miller Paving and Lippa submit that the Motion should be denied and costs awarded. Miller Paving and Lippa argue that their appeals meet the statutory requirements of s. 17(37.1) of the Act as their appeals do include planning grounds, have clearly set out issues to be raised at a hearing, and specifically, raise issues of conformity. They maintain that to dismiss in part would deny them the statutory right of appeal.

52Miller Paving and Lippa argue that Miller Paving's appeal confirmed that the Aggregate Policies do not conform to the DOP and that Lippa's appeal makes specific reference to the fact that the Aggregate Policies are contrary to the advice of District planners, as set out in their Planning Report.

53Miller Paving and Lippa argue that "the protection of aggregate resources will be the central focus of the hearing of the Appeals" given the provincial interest under s. 2 of the Act related to the protection of natural resources and the financial well being of the Province of Ontario.

54Regarding the statement in the Notice of Appeal "including but not limited to", the Appellants do not anticipate engaging any other official plan policies and the phrase is used "out of an abundance of caution".

55Miller Paving and Lippa argue that they have participated fully in the process of scoping the appeals and pointed to the refinement of the Issues List where they provided an initial list in September 2024, a more detailed list in December 2024, and provided further revisions in January 2025 in response to concerns raised by the Township and the Lake Associations.

56Regarding the requirement to demonstrate "authentic planning concerns with respect to conformity", Miller Paving and Lippa maintain that Planner Bell's Affidavit from May 2025 connects to specific policies in the DOP. Planner Bell opines that the District's Planning Report raises issues related to consistency and conformity with the TOP, and consistency with the PPS.

57Miller Paving and Lippa submit that the Motion should be dismissed with costs as they have actively participated throughout the TOP drafting and review process and raised planning concerns regarding specific policies. Through a planning expert, Miller Paving and Lippa filed the appeals, which set out their concerns in detail related to the policies under appeal. Miller Paving and Lippa then provided detailed Issues Lists.

ANALYSIS AND FINDINGS

58The Tribunal, in considering the submissions and supporting documents pertaining to this case, finds that a notice of appeal, including any materials submitted with it, must satisfy the requirements under ss. 17(24) and 17(36) of the Act by identifying specific parts of an official plan to which the appeal applies and include reasoning as to how it is not consistent, or does not conform with, specific sections of a provincial planning document or district official plan.

59The Tribunal also finds that it is a significant step to dismiss an appeal, wholly or in part, while also recognizing the importance of all Parties adhering to the applicable legislation to ensure a fair and just process at the stage that an appeal is launched to the Tribunal.

60The Tribunal acknowledges that the Appellants have participated in the municipal public process regarding the issues of concern to each prior to launching these appeals.

61The Tribunal notes that counsel for Lippa adopted the submissions made by counsel for Our Muskoka. Counsel for the Skeleton Lake Cottagers Organization Inc. adopted the submissions by counsel for the Lake Associations. Counsel for both the Township and the District indicated support for the Motion.

Motion to Dismiss – Our Muskoka Notice of Appeal

62The Tribunal, having considered the materials and submissions related to this case, find that the Motion should be granted with respect to the Our Muskoka Notice of Appeal.

63The Tribunal agrees with the argument of the Lake Associations that Our Muskoka's Notice of Appeal Form and accompanying letter do not "explain how the decision [of the Township's new Official Plan] …is inconsistent with, fails to conform with or conflicts with the other document", as required by s. 17(37.1) of the Act.

64The grounds for dismissing an appeal are disjunctive, which is significant as this finding alone is sufficient to warrant dismissing the appeal. However, the Tribunal further finds that there are no apparent land use planning grounds upon which the appeal could be granted, and the appeal has no reasonable prospect of success.

65The Notice of Appeal and accompanying letter filed by the Appellant was deficient. The Appellant checked the box in section 3A of the Notice of Appeal Form, indicating that they will argue that the decision fails to conform with the TOP, but did not provide any reasons, as is required in section 3A. The Notice of Appeal submitted by Our Muskoka provides broad statements of concerns followed by a list of policies. This does not constitute planning reasons and explanations, as required by the Act. The language in the Act is mandatory – the notice must explain how the decision is inconsistent with the PPS or fails to conform with the DOP. There is no discretion in this regard for the Tribunal.

66The Tribunal finds that the Notice of Appeal submitted by Our Muskoka relied on generalities without any specific explanation of their connection to deficits in the TOP's conformity with the DOP and as suggested by the Lake Associations, are "largely legal in nature".

67The Tribunal agrees with the Lake Associations that the test found at paragraph [38] in Patry is helpful in making this decision:

An explanation, in its barest form, must provide an answer to the question of either "how" or "why". It is a matter of common-sense that an explanation must "explain" by answering the question of how or why. The Act therefore simply requires an appellant to explain for what reason, in what way or in what manner, and upon what facts, the appellant asserts that the instrument in question does not conform with, conflicts with, or is inconsistent with, the provincial policies or the official plan. If any person will, in reading an explanation, understand the "how" and the "why" of it, then the explanation has been provided. [emphasis added]

68The Tribunal concurs with the Lake Associations in its position that Our Muskoka, in its submissions to the Tribunal, focused primarily on actions and information outside of the Notice of Appeal and in many ways recognized that the Notice of Appeal was lacking the statute requirements and could not withstand the Motion on its own merits. The argument that the "how" and "why" in support of the appeal are obvious to the other Parties through submissions during the municipal public process and scoped for clarity through the Issues List does not meet the requirements for a notice of appeal, as set out by s. 17(37.1) of the Act.

69The Tribunal finds the analysis in the Lavoie-Schaeffer is helpful on this point as it states at paragraph [20] that "the Appellant will not be permitted to expand its appeal after its submission and beyond the appeal period in order to satisfy the statutory test".

70Regarding the "land use planning grounds" to support the Our Muskoka appeal, the Tribunal concurs with the Lake Associations' submission that they are "overly broad, purported grounds…[and do not explain] how they relate to land use planning matters or how such grounds could lead to a refusal of the parts of the Township OP that are under appeal".

71The Tribunal finds that the District's position in support of the Motion is informative and that Our Muskoka's reference to the Planning Report, which provides feedback to the Township on its TOP, does not constitute "reasons" to be applied to the Notice of Appeal.

72Regarding the "prospect of success" test, the Tribunal finds Goldfinger (see paragraph [37] above) informative as it indicates that the onus is on the Appellant to make the case that the approved planning document is insufficient, and in this case, as outlined above, this has not been achieved. Without explaining how specific sections of the TOP are not consistent with the PPS or conform with the DOP, it lacks the initial clarity required in a Notice of Appeal.

Motion to Dismiss – Miller Paving

73The Tribunal, having considered the materials and submissions related to this case, finds that the Motion is granted, in part, to dismiss the Miller Paving appeal.

74The Tribunal finds that the Miller Paving Notice of Appeal does not explain how the TOP fails to conform with the DOP in all instances, as required under s. 17(37.1) of the Act.

75Therefore, the Tribunal finds that any issues that indicate that the TOP does not conform without identifying specific policies of the DOP be struck from the joint Miller Paving and Lippa Issues List.

76The Tribunal finds that the phrase "including but not limited to" must be removed from the joint Issues List of Miller Paving and Lippa. Planner Bell indicated that it was used in a "cautionary manner", and the Tribunal finds that its use negatively impacts the ability to conduct a fair and transparent hearing.

Motion to Dismiss – Lippa Notice of Appeal

77The Tribunal, having considered the materials and submissions related to this case, finds that the Motion is granted, in part, to dismiss the Lippa appeal.

78The Tribunal finds that the Lippa Notice of Appeal be scoped to those parts of the TOP identified specifically named in their Notice of Appeal as being inconsistent with specific policies of the PPS issued under s. 3(1) of the Act.

79The Tribunal finds that the Lippa Notice of Appeal provides inconsistent explanations related to "how" and "why" TOP policies are inconsistent with the PPS. In some instances, specific policies of the PPS are named and reasons given and in others they are not. For example, the appeal identifies the TOP policy related to the "2 km separation from Waterfront Area designation" yet does not refer to a specific PPS policy that it is inconsistent with and refers to a report written by District Planning staff to support this opinion. This approach lacks the clarity required in a notice of appeal.

COSTS

80The Tribunal did not hear submissions related to costs but was made aware that the Appellants may seek costs and that the Lake Associations did not "anticipate costs arising" from these proceedings. The Tribunal directs the Parties to refer to Rule 23 of the Rules for direction related to pursuing costs if this direction is taken.

ORDER

81THE TRIBUNAL ORDERS that the Motion to Dismiss Our Muskoka Stakeholders Association's appeal is granted, and the appeal is hereby dismissed.

82THE TRIBUNAL ORDERS that the Motion to Dismiss Miller Paving Limited's appeal, in part, is granted.

83THE TRIBUNAL ORDERS that the Motion to Dismiss Elizabeth Lippa's appeal, in part, is granted.

84THE TRIBUNAL ORDERS that Miller Paving Limited and Elizabeth Lippa shall not include issues related to the non-conformity of any Township of Muskoka Lakes Official Plan policies with the District of Muskoka Official Plan in their final draft Issues List.

85THE TRIBUNAL ORDERS that the phrase "including but not limited to" be removed from the joint Issues List of Miller Paving Limited and Elizabeth Lippa as its use negatively impacts the ability to conduct a fair and transparent hearing.

86THE TRIBUNAL ORDERS that Miller Paving Limited and Elizabeth Lippa shall only include issues related to the consistency of the Township of Muskoka Lakes Official Plan policies with the Provincial Planning Statement, 2024 specifically named in their Notices of Appeal.

"Gregory J. Ingram"

GREGORY J. INGRAM

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.