Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 31, 2026

CASE NO(S).: OLT-25-000823

PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant: Johnnie Nielsen

Applicant: Donald MacDow

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to permit a wedding event venue (On-farm diversified use), secondary to an existing agricultural operation on an existing lot

Reference No.: P/C/2023-2024/380

Property Address/Description: 16847 Heart Lake Road

Municipality/Upper Tier: Caledon/Peel

OLT Case No.: OLT-25-000823

OLT Lead Case No.: OLT-25-000823

OLT Case Name: Nielsen v. Ontario (Niagara Escarpment Commission)

Heard: March 4, 2026 by Video Hearing

APPEARANCES:

Parties	Counsel
Johnnie Nielsen	Trent Morris Karen McArthur
Donald & Tabitha MacDow and 1001374694 Ontario Inc.	Matt Hodgson
Niagara Escarpment Commission	Demetrius Kappos Paul Johnson

REPORT DELIVERED BY A. SNOWDON AND ORDER OF THE NIAGARA ESCARPMENT HEARING OFFICE

INTRODUCTION

1The Ontario Land Tribunal acts in the role of the Niagara Escarpment Hearing Office (“Hearing Office”) for appeals under the Niagara Escarpment Planning and Development Act, R.S.O 1990, c. N. 2, as amended (“NEPDA”).

2The Hearing Office convened a motion hearing brought by Johnnie Nielsen (“Appellant”), the Niagara Escarpment Commission (“NEC”), and Donald MacDow, Tabitha MacDow, and 1001374694 Ontario Inc. (together, “Applicants”). These motions are part of the proceedings relating to an appeal brought by the Appellant arising from a decision made by the NEC granting conditional approval of a Development Permit to Donald and Tabitha MacDow to permit a wedding event venue on the lands located at 16847 Heart Lake Road (“Subject Land”), Caledon. 1001374694 Ontario Inc., the current owner of the Subject Land, was added as a Party at the Case Management Conference on January 22, 2026.

3The Subject Land is located north of Heart Lake Road and contains a single-detached dwelling, several barns and accessory buildings. The area is primarily agricultural operations with rural residential properties, woodlands, and wetlands nearby. The Development Permit grants approval for a wedding event venue as an on-farm diversified use (“OFDU”).

4The Appellant has appealed the conditional Development Permit stating that:

1. The Applicants are not the legal nor beneficial owner of the Subject Lands.
2. The Development Permit is not in conformity with the Niagara Escarpment Plan (2017).
3. The Development Permit is not in conformity with the Provincial Policy Statement (2020).
4. The Development Permit is inconsistent with prior decisions of the NEC.
5. There is no planning justification for the Development Permit.
6. There will be adverse impacts to natural heritage features and species habitats.
7. The Development Permit will exceed the allowed 2% of land use for an OFDU.
8. There will be negative visual impacts.
9. There will be negative noise pollution.
10. The Development Permit will adversely impact water quality.
11. The Development Permit hinders agricultural uses.
12. The Site Plan drawings were not prepared prior to the application and are not up to date.
13. The Applicant has repeatedly violated conditional permits.
14. The NEC knows or ought to know about the violations.

ISSUES

5The Hearing Office has before it three motions:

1. A motion for a time extension to file motion responses brought by the Appellant;
2. A motion to dismiss the appeal without a hearing brought by the Applicants; and
3. A motion to strike issue #4 from the issues list and to provide direction regarding the witness list related to issue #4 brought by the NEC.

MATERIALS

6The Appellant submitted, and the Hearing Office accepts, a seven-page Motion Record, marked as Exhibit 1, a 196-page response, marked as Exhibit 5, and a 17-page factum, marked as Exhibit 6.

7The Applicants submitted, and the Hearing Office accepts, a 140-page Motion Record, marked as Exhibit 2.

8The NEC submitted, and the Hearing Office accepts, a 14-page Factum, marked as Exhibit 3, and an 84-page Motion Record, marked as Exhibit 4.

MOTION 1 – TIME EXTENSION

Submissions

9The deadline to file a response to the motions brought by the Applicants and the NEC was February 25, 2026. The Appellant stated that they were out of the country at this time and counsel for the Appellant had technology issues coupled with another court proceeding that prevented them from filing within the deadline.

10Counsel for the Appellant stated that they notified the Hearing Office of the delay on February 25, 2026, and was able to file the response on February 27, 2026. The Appellant consented to extending the reply deadline for the Applicants and NEC. The Appellant doesn’t believe that either Party will be prejudiced by this delay.

11The NEC had no objections to the late filing.

12The Applicants did not consent to the late filing, but stated that it would be beneficial to the proceeding for all submissions to be included.

13When questioned by the Hearing Office, neither the Applicants nor the NEC stated an intention to file a reply statement to the Appellant’s response.

Findings

14The Hearing Office finds that the late filing of the Appellants response materials is not prejudicial to the other Parties.

15The Hearing Office finds that the late filing of the Appellants response materials allows for a fair hearing and therefore the motion to extend time for filing response materials is granted.

MOTION 2 – DISMISS APPEAL

Submissions

16The Applicants stated that the Subject Land is an agricultural property that has a principal use of agriculture and a secondary OFDU.

17The Applicants explained that the OFDU is a wedding venue that has been operating under a development permit since 2015. Over the last decade, the development permit has been updated as necessary when the Applicants have modified the OFDU.

18The development permit has always contained conditions. One condition is that the development permit is non-transferable if ownership of the Subject Land changes. A new owner would need to apply for a new development permit. Tabitha MacDow applied, in 2023, to have that condition removed.

19The Appellant contends that changes have occurred which contravene some of the conditions of the development permit. They pointed to three conditions and their reasoning for asserting a violation:

1. The Development Permit was non-transferrable. i. The Appellant stated that the land has been sold.
2. If the principal agricultural use ceases, the OFDU would not be permitted to operate. i. the Appellant stated that the type of agriculture on the property has changed.
3. A breach of any condition would nullify the permit. i. The Appellant stated that the above are breaches.

20The Applicants explained that other than the removal of the non-transferability condition, no other changes to the OFDU are proposed. There is no new use or expansion or built form or intensification that would result from the proposed development permit. They stated that they had proposed an increase in the number of events held per weekend but retracted that request and only sought the removal of the non-transferability condition. They have clarified that the only requirement for an OFDU, with regards to agriculture, is that agriculture remain the principal land use. The type of agriculture is not relevant.

21The NEC approved removing the non-transferability condition and issued a notice of decision for the approval of the development permit on October 14, 2025. On November 17, 2025, 1001374694 Ontario Inc. purchased the Subject Land.

22The Appellant appealed the decision to approve the development permit. The Applicants stated that the Appellant has appealed every time there has been an application to update and/or modify the development permit. They stated that on five previous occasions, the Appellant has appealed the development permit and that this appeal is the sixth time the Appellant has attempted to re-litigate issues that have already been resolved.

23The Applicants highlighted the Appellant’s issues list for this appeal which states:

1. The applied-for proposed development is not in conformity with the purpose, objectives and policies of the Niagara Escarpment Plan (2017), in particular the following Development Criteria: General Development Criteria (2.2), Natural Heritage (2.7),Agriculture (2.8 (including 2.8.7)), Scenic Resources (2.13), and Water Quality and Quantity (2.6.9), all as amended.
2. The applied-for proposed development is not consistent with the Provincial Policy Statement (2024), in particular sections 2.1 and 1.1.4.1(g), as amended.
3. The applied for proposed development is inconsistent with prior decisions of the NEC respecting the same property in that the conditions are inadequate, and the prior development permit prohibited transfer of the permit.
4. The Hearing Officer’s decision was based in material part on a false or misleading representation respecting the state of compliance of the Property.

24Additionally, the Appellant argued that the original approval of the development permit was granted prior to the Niagara Escarpment Plan (“NEP”) containing policies to enable OFDUs and therefore was not evaluated properly.

25The Applicants argued that these issues have been resolved previously as follows:

1. In the Appeal Hearing decision, dated April 6, 2018, (Nielsen v. Ontario (Niagara Escarpment Commission) [2018] CanLii 29507 (ON ERT)), the Hearing Office found: i. That there is no conflict between the NEP and the Provincial Policy Statement in this appeal. ii. That the proposed development is in accordance with the purpose and relevant objectives of the NEP. iii. That the conditional approval is a permitted use under Part 1.5 of the NEP and is in accordance with the development criteria in Part 2 of the NEP, and that the proposed development constitutes an OFDU. iv. Sufficient reasoning to dismiss the appeal.
2. In a motion hearing decision dated August 1, 2019 (Nielsen v. Ontario (Environment, Conservation, and Parks) [2019] CanLii 72737 (ON ERT)), the Hearing Office found: i. That the issues give rise to the principle of issue estoppel and that it would be unfair to require a re-hearing of matters that either were or could have been raised previously (i.e., secondary use, noise, traffic, lighting, fencing, parking, heating, cooling, fire code issues). ii. That the appeal could progress to a hearing of the merits on driveway widening, deck construction, permanent washroom construction, water quality/quantity, cistern installation. iii. The motion is allowed in part as described above.
3. In the Appeal Hearing decision, dated February 13, 2020, (Nielsen v. Ontario (Niagara Escarpment Commission) [2020] OERTD No. 7) (“Nielsen2020”), the Hearing Office found: i. That issues related to enforcement of the 2005 Permit and the application of sanctions for non-compliance are under the purview of the NEC and are not within the jurisdiction of the Hearing Office. ii. That the proposed development accords with the purpose of objectives of the NEP as well as the Escarpment Rural Area Designation in the Plan. iii. That the proposed development is a permitted use under Part 1.5 of the Plan and accords with the development criterion in Parts 2.2, 2.3, and 2.8 of the Plan. iv. Sufficient reasoning to dismiss the appeal.
4. In the May 30, 2022 decision for an ‘application for leave to appeal’ hearing (OLT-22-003317), (Nielsen v. Ontario (Environment, Conservation, and Parks) [2022] CanLii 48602 (ON LT)), the Hearing Office found: i. That the issuing of an Environmental Compliance Approval (“ECA”) will reduce the threat of any adverse impacts. ii. That the Appellant failed to satisfy the significant harm test and has not filed any substantive evidence to support his concern that the ECA would result in significant environmental harm caused by the sewage works. iii. Sufficient reasoning to dismiss the application for leave to appeal.
5. In the Appeal Hearing decision (OLT-21-001740), dated July 13, 2022, (Nielsen v. Ontario (Niagara Escarpment Commission) [2022] CanLii 63813 (ON LT)), the Hearing Office found: i. That the development permit does not conflict with the provisions of the NEP 2017 and is consistent with the Provincial Policy Statement (2020). ii. Sufficient reasoning to dismiss the appeal and confirm the approval of the permit.

26The Applicants have stated that this is a matter of res judicata and issue estoppel. The Applicants introduced Danyluk v. Ainsworth Technologies Inc. [2001] SCC 44 (“Danyluk”) to define res judicata and issue estoppel.

27Res judicata is defined as something that has clearly been decided. Issue estoppel prevents the litigation of an issue that has already been determined by a trier of fact. The preconditions are:

1. That the same question has been decided in earlier proceedings;
2. That the earlier judicial decision was final; and
3. That the parties to that decision are the same persons as the parties to the proceedings in which the estoppel is raised.

28The Applicants noted that, in paragraph 21 of Danyluk, the rules for res judicata and issue estoppel have been extended “to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals.”

29The Applicants argued that the issues before the Hearing Office have been previously decided (see paragraph [25]) or could have been (Hynes v. Niagara Escarpment Commission [2000] CarswellOnt 6383) (”Hynes”), those decisions were final, and the same parties are parties to the proceeding.

30The Applicants clarified that “The Appellant remains unchanged. The NEC remains a party. The Applicant identified on the approval is unchanged.”

31The Applicants stated that this makes all issues in this proceeding estoppel and legally barred under res judicata. As such, it is an abuse of process to permit re-hearing issues that have already been decided (Hynes and Toronto (City) v. C.U.P.E., Local 79 [2003] SCC 63).

32The Applicants argued that this contributes to the appeal having no reasonable prospect of success and should be dismissed under s. 19(1)(c) of the Ontario Land Tribunal Act (“OLTA”).

33Section 19 of the OLTA states:

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;

(b.1) if the Tribunal is of the opinion that the party who brought the proceeding has contributed to undue delay of the proceeding;

(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.

34Section 25(8.1) of the NEPDA states:

(8.1) Despite subsections (8) and (10), an officer appointed under subsection (8) may refuse to conduct or to continue a hearing if,

(a) in the opinion of the officer, the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious, or is made only for the purpose of delay;

(b) the notice of appeal did not specify the reasons for the appeal; or

(c) the person who appealed the decision has not responded to a request by the officer for further information within the time specified by the officer. 1999, c. 12, Sched. N, s. 4 (14).

35The Applicants stated that s. 25(8.1)(a) of the NEPDA applies in this matter. They contend that the previous appeals noted the Appellant’s lack of evidence demonstrating that the proposed development did not conform to the NEP or Provincial Planning Statement (2024) objectives explaining that the repeated initiation of appeals without providing substantive planning justification demonstrates a pattern of conduct intended to harass the Applicants rather than advance a legitimate planning concern. This, along with the attempts to re-litigate the same issues, satisfies the criteria for frivolity and vexatiousness.

36The NEC introduced Wilson v. Ontario (NEC) [2006] OERTD No. 39 which states in paragraph 18:

An appeal is frivolous, where there is patently no substantive planning issue. An appeal is vexatious, when there is clear intent to cause some prejudice to the applicant for reasons unrelated to any valid substantive planning issue.

37The NEC stated that several previous appeals by the Appellant either brought no evidence or no significant evidence which they inferred as some ulterior motive.

38The NEC added that the only difference between the previous development permits and the proposed development permit is the removal of the non-transferability condition. They stated that while this is “technically in the realm of a planning issue, it is administrative in nature, involved no physical development, and does not engage the purpose or objectives of the NEPDA/ NEP. It therefore is not a truly substantive planning issue.”

39The Appellant contends that this is a planning issue and not an administrative process. They stated that a change in agricultural type, a history of compliance issues, and the removal of the non-transferability condition allow them to re-litigate this development permit.

40The NEC argued that a hearing of the merits in this matter would not be in the public interest. They introduced Wahl Estate v. NEC [2009] OERTD No. 17, citing paragraphs 29-30:

29 … an analysis of an argument that an appeal is not in the public interest should involve a determination of whether the appeal is not in accord with the purpose of the NEPDA…

30 … it would not be in the public interest to use significant public resources to conduct a hearing over an appeal that has no chance of success…

Findings

41The Hearing Office finds that the issues proposed for this matter have either been previously decided, could have been decided, or are not within the jurisdiction of the Hearing Office.

42There is no planning justification for adjudication that has not previously been determined. The requirements for res judicata and issue estoppel have been met. Therefore, there is no reasonable prospect of success with this appeal moving forward.

43The Hearing Office finds that the raised issues, which do not directly engage the policies of the NEP or NEPDA, are not grounds to re-litigate previously decided matters. This includes the change of agricultural use, compliance history, and the removal of the non-transferability condition.

44The OFDU is only required to be secondary to the principal agricultural land use and is not limited to a specific agriculture type. Compliance issues are not under the purview of the Hearing Office (as stated in decisions in paragraph [25]). The removal of the non-transferability condition was approved by the NEC, based on an application from Tabitha MacDow, prior to the sale of the Subject Land.

45Furthermore, the Hearing Office finds that the repeated attempts of the Appellant to challenge the development permit are frivolous and vexatious.

46Finally, given that this appeal has no reasonable prospect of success and the issues have been previously determined to conform to the NEPDA, the Hearing Office finds this appeal is not in the public interest.

47Under s. 19 of the OLTA and s. 25(8.1) of the NEPDA, the Hearing Office finds that the appeal should be dismissed without a hearing of the merits.

MOTION 3 – ISSUE LIST

48Given the Hearing Office’s findings on Motion 2, a decision on Motion 3 is moot. However, to ensure that the issues within Motion 3 are thoroughly resolved, the Parties’ submissions and the Hearing Office’s findings are below.

Submissions

49The NEC brought a motion seeking the removal of Issue #4 from the issue list and direction regarding related issues of relevance of witnesses and the disclosure of documents.

50Issue #4 states “The Hearing Officer’s decision was based in material part on a false or misleading representation respecting the state of compliance of the Property.”

51The Appellant’s potential witness list includes, but is not limited to, the following:

1. Records Witness, NEC
2. O.J. MacDonald, Compliance Specialist, NEC
3. Noreen Knight, Compliance, Town of Caledon; OR
4. Mark Sraga, Compliance, Town of Caledon

52The NEC added that the Appellant, as included in their cover email with the draft procedural order, is seeking disclosure of:

1. All documents (including photographic, notes, emails, internal memoranda) respecting the neighbours compliance concern, who received and reviewed these documents and what was received and reviewed, and when;
2. What if anything was done as a result of this review, and when.

53The NEC stated that history of compliance and enforcement are not relevant issues for an appeal under s. 25 of the NEPDA. They stated that at the Nielsen2020 appeal hearing in February 2020, the Hearing Office determined that “a compliance issue… is separate from the merits of the appeal before the Hearing Office” and that “the Hearing Office lacks the jurisdiction to re-visit and reopen the Original Conditional Approval.”

54The Appellant responded that they are not asking the Hearing Office to enforce compliance, but they state that compliance evidence relates to the credibility of the Applicants. They argued that there are adverse impacts to the Appellants property that they should be able to present at a hearing of the merits, however they have not engaged an expert to assess these impacts yet. They assert that the previous Hearing Officer failed to consider the evidence on compliance with respect to impacts to the Appellant’s land.

55The NEC stated that in a subsequent proceeding (Nielsen v. Caledon (Town) [2022] LNONLT 798), the issue of compliance/enforcement rose again. The Hearing Officer’s decision stated:

The issues should only include questions that need to be adjudicated and that are within the authority of the Hearing Office to address. Questions relating to background facts or tangential evidence which are not derived from, or on their face in breach of, the applicable legislation or Provincial policies or plans in respect of which the Hearing Office has authority to adjudicate are not issues. Issues must be genuine, tenable, and worthy of adjudication.

56The Hearing Officer in that case stated “concerns regarding… the Applicant’s past conduct… (is) not (a) substantive issue over which the Hearing Office is to adjudicate.”

57The Appellant stated that the development permit application is a ‘fresh’ application even if the uses haven’t changed. They agreed that compliance issues are not adjudicative issues but argued that the information in the NEC staff report is inaccurate. The Appellant asserted that this results in decision-making on incorrect information.

58The NEC submits that the history of compliance and enforcement are not relevant in the context of this appeal.

Findings

59The Hearing Office finds that issues of compliance are not under the purview of the Hearing Office.

60As such, Issue #4 should be struck from the Issue List and subsequently, any witnesses brought or summoned to speak to compliance issues are not relevant to the appeal.

ORDER

61The HEARING OFFICE ORDERS that the motion brought by the Appellant, Johnnie Nielsen, to extend the time for the filing of response materials is granted.

62The HEARING OFFICE ORDERS that the motion brought by the Applicants, Donald MacDow, Tabitha MacDow and 1001374694 Ontario Inc., to dismiss the appeal without a hearing is granted. The Appeal is dismissed.

63The HEARING OFFICE ORDERS that the motion brought by the Niagara Escarpment Commission to remove issue #4 is granted and that any witnesses brought to speak to compliance issues are outside the purview of the Hearing Office.

“A. Snowdon”

A. SNOWDON

HEARING OFFICER

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.