Crystal Bay Cottages v. Fort Erie (Town), 2026 CanLII 7225

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 28, 2026

CASE NO(S).: OLT-25-000811

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Crystal Bay Cottages Inc. Subject: Consent Description: To facilitate the severance of the property into three lots, 2 severed parcels and 1 retained parcel Reference Number: B15/25 Property Address: 4409 Erie Road Municipality/UT: Fort Erie/Niagara OLT Case No: OLT-25-000811 OLT Lead Case No: OLT-25-000811 OLT Case Name: Crystal Bay Cottages v. Fort Erie (Town)

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Crystal Bay Cottages Inc. Subject: Consent Description: To facilitate the severance of the property into three lots, 2 severed parcels and 1 retained parcel Reference Number: B16/25 Property Address: 4409 Erie Road Municipality/UT: Fort Erie/Niagara OLT Case No: OLT-25-000812 OLT Lead Case No: OLT-25-000811

PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Crystal Bay Cottages Inc. Subject: Minor Variance Description: To facilitate the severance of the property into three lots, 2 severed parcels and 1 retained parcel Reference Number: A53-25 Property Address: 4409 Erie Road Municipality/UT: Fort Erie/Niagara OLT Case No: OLT-25-000809 OLT Lead Case No: OLT-25-000811

Heard: January 15, 2026 by Video Hearing

APPEARANCES:

Parties	Counsel
Crystal Bay Cottages	Paul DeMelo
Town of Fort Erie	Nikolas Koschany Denise Baker (in absentia)
4407 Erie Road Holding LLC	Brian Duxbury

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON JANUARY 15, 2026 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This event was the first Case Management Conference (“CMC”) before the Tribunal with respect to appeals under sections 53(19) and 45(12) of the Planning Act (“Act”) by Crystal Bay Cottages (“Applicant”) resulting from a denial of the applications on September 18, 2025 by the Committee of Adjustment (“COA”) of the Town of Fort Erie (“Town”). The purpose of the applications is to sever the property at 4409 Erie Road in the Town (“Subject Property”) into three lots to allow for the future construction of a single-detached dwelling and the retention of two existing residential buildings. Minor variances are also required for this proposal.

2At the CMC, the Tribunal canvassed Counsel, who confirmed that there were no issues with the Tribunal-served Notice of CMC.

STATUS REQUEST

3The Tribunal was tasked with adjudicating a Party Status request, which was contested, and a number of Participant Status requests.

Party Status Request

44407 Erie Road Holding LLC (“4407”), which owns the lands directly east of the Subject Property, requested to be a Party. On the day before the CMC, the Applicant’s Counsel advised the Tribunal as follows:

… I can advise that the Town has advised that it will not be taking a position on the appeals and instead will only be calling evidence if necessary to ensure that the conditions as set out in the staff reports that accompanied the applications are imposed by the Tribunal. I can further advise that I have informed the Town that my client does not seek to alter the staff recommended conditions as part of its appeal and is content that should the Tribunal allow the appeals that the staff recommended conditions should form part of any decision. In this regard I suspect that the Town will not be calling any evidence if this matter is to proceed to a hearing.

With regards to the matter of the Request for Party Status from Mr. Duxbury's client I can advise that I have informed my friend that my client does not consent to his client being added as a Party and as such expect that this will need to be determined by the Tribunal at the outset…

Depending on the Tribunal's determination on the Party Status request the outcome will determine whether the hearing is scheduled for a contested hearing or for a hearing where evidence will be presented in support of the applications as well as the inclusion of the Town recommended conditions.

[Emphasis added by Tribunal.]

5At the CMC, 4407’s Counsel explained that 4407 would be an entirely appropriate Party in these proceedings, on the basis of the following:

a. As a neighbouring (adjacent) landowner, it has a direct interest in the consent and minor variance applications.

b. Rule 8.2 of the Tribunal’s Rules of Practice and Procedure indicates that an entity can be added as a Party “provided that the person’s presence is necessary to enable the Tribunal to adjudicate effectively and completely.” In this case, 4407’s participation is absolutely necessary. Specifically, the Town has advised that it will not oppose these applications (as long as its Conditions are included, which the Applicant does not dispute). Thus, without 4407, there will be no opposing view and the Tribunal will not be presented with all the information it needs to allow it to effectively and completely adjudicate the issues. 4407’s involvement is needed to give the Tribunal a full and balanced view of the issues. Without 4407’s participation, the Tribunal would hear a narrow case and miss important issues that affect the surrounding community.

c. Up to nine units on the Subject Property would be possible if this application is approved. This many units would have planning, drainage, stormwater, and environmental impacts. 4407’s Counsel advised that the Applicant previously brought forward a similar proposal as a Zoning By-law Amendment (“ZBA”) application, which was refused by the Tribunal in OLT-23-000311, on the basis that it did not fit the area, did not integrate with the waterfront community, and did not comply with the Town’s Official Plan. The Applicant is now attempting to bring about the same result by way of a consent and minor variance application.

d. Contrary to the Applicant’s position, 4407’s Counsel explained that drainage, stormwater, and environmental concerns are real problems now and should not be pushed to a later stage through the Conditions of approval of these applications. Feasibility issues are very relevant at this stage, and fall under section 51(24) of the Planning Act. 4407’s presence is necessary to bring those issues to light.

e. 4407 made detailed submissions to the Committee of Adjustment, has prepared a proposed Issues List where it is raising genuine land use planning issues, and will bring expert evidence to the Hearing (likely from a planner, an engineer, and an environmental expert). Thus, it will contribute significantly to this proceeding and will assist the Tribunal in making a fair and just decision.

6The Applicant disagreed entirely and argued as follows:

a. The Applicant agreed that the test for adding a Party is set out in Rule 8.2, but emphasized that adding a Party is discretionary, and it must be shown that their participation is necessary. In this case, the standard has not been met. The Applicant disputes the claim that the proposal is the same as what was previously proposed in OLT-23-000311. Previously, nine dwelling units were proposed. In this current application, three dwellings are proposed. While technically speaking, under Bill 23, More Homes Built Faster Act, 2022, each dwelling unit may contain up to three units within it, it is not the same as having nine separate buildings on the Subject Property. The earlier ZBA decision involved a different proposal that would have allowed several separate buildings, which is not what is being proposed now.

b. The Applicant’s Counsel explained that the application simply divides a long property into two parts and creates an easement down the middle to provide access, which is why a minor variance is needed. Only one new lot is being created, and the proposed new dwelling is not located next to the neighbouring property. He further explained that environmental, stormwater, grading, and archaeological issues are already addressed through standard conditions which Town Staff proposed in the Staff Report, and which the Applicant accepts and is not asking to change. These matters will be reviewed by the Town and its experts as Conditions are cleared, and are not subject to approval by the neighbouring landowner. It is the Town that will review and approve technical studies for example, not 4407. Thus, 4407’s presence is not necessary. Feasibility and servicing issues are technical matters to be addressed after approval of these applications (as they are indicated in the Conditions), and therefore should not be used to justify adding another party.

c. Moreover, the Applicant explained that 4407 would not suffer prejudice if it is not added as a party. The issues that it has raised are already being addressed through the Conditions to the approval, and therefore will be already addressed without 4407 being a Party. 4407’s real concern appears to be opposition to any additional development, not actual planning or environmental issues. Allowing it to participate would make the Hearing longer and more expensive, which is against the mandate of the Tribunal to ensure a timely and cost-effective hearing process.

7The Town stated that its general position is that it is advantageous to hear from all who are affected by planning matters. On this particular request, the Town’s position was that it did not oppose it.

8The Tribunal considered the written and oral submissions of all Parties and 4407. The Tribunal found that 4407 was indeed an appropriate Party. As an adjacent land-owner, it has a direct interest in the Appeal. Its participation as a Party meets the requirements of Rule 8.2 and is necessary in these proceedings to assist the Tribunal in making a determination on the issues at hand. This would have been true regardless of the Town’s current position on these Appeals. However, in light of the Town’s position to not oppose same, the Tribunal agreed with 4407 that its participation is even more necessary to assist the Tribunal in making a fair and just decision on the issues.

9With respect to the Applicant’s submissions that 4407’s participation would unnecessarily lengthen the Hearing and be costly to all involved, including the Tribunal, the Tribunal has scheduled 4 days for this Hearing, which would have taken 1 day regardless. Thus, the Tribunal found that only 3 additional days have been added, which is not significantly onerous on the Tribunal’s calendar. With respect to the Applicant’s submissions that this is an entirely different proposal than the ZBA one that the Tribunal already denied and all prior concerns have been addressed, the Tribunal found that if this is the case, the Applicant will be able to demonstrate that at the Hearing. Additionally, when the Appeal was filed, the Applicant had expected to have to defend it and was not aware at that time that the Town would not oppose it. Thus, the Tribunal found that the Applicant has not been prejudiced now by having to do what it anticipated it would have to do when it filed the Appeal. The Town is not prejudiced as its role in this proceeding has not changed through the addition of 4407. By contrast, if 4407 is not added to this proceeding as a Party, it would be significantly prejudiced as no other Party would oppose these applications or raise 4407’s issues. Lastly, the Tribunal found that it will be able to make a better and more complete decision through the attendance of 4407 as a Party.

10Thus, the Tribunal granted Party status to 4407.

Participant Status Requests

11The Tribunal received the following requests for Participant status:

a. Sarah Fox: She raised concerns that the proposal, if approved, would direct stormwater runoff toward her nearby wetland property, which is a Significant Natural Area, using an unmaintained roadside ditch and a nonfunctional private drain. She believes this would cause flooding and environmental harm to her land, and stated that the requested changes are not minor.

b. Stella Lane LLC: This company is concerned that the proposed consent and minor variance are an attempt to increase density that was already rejected by the Town and the Tribunal, particularly through a drastic reduction in lot frontage that is not minor and would harm neighbouring properties and the broader community. It submits that the proposal does not comply with the Interim Control By-law, the Crystal Beach Secondary Plan, or the Official Plan, and would introduce development south of Erie Road where intensification is not intended. Stella Lane is also worried about unresolved grading, stormwater, and wetland impacts, including runoff into nearby wetlands, and believes approving the application could allow up to nine units by right, creating long-term negative impacts on surrounding properties.

c. Beth Molony: She raised concerns that approving the severance and minor variance would reopen the door to a nine-unit development that has already been rejected by the Town, the Ontario Land Tribunal, and the Divisional Court, fundamentally changing the character of the area south of Erie Road. She also worries that further development and infilling would worsen groundwater and stormwater runoff, harm wetlands and the natural shoreline system, and negatively affect her property and the broader environmental integrity of Fort Erie.

d. William Heussler: He raised concerns that the Applicant is trying to achieve a development that was already denied in 2024 by now seeking major frontage reductions, which would allow additional dwellings that do not comply with the Crystal Beach Secondary Plan. He believes the proposal would harm the neighbourhood by increasing density, creating parking and emergency access problems, and undermining zoning rules meant to protect the community’s overall well-being.

e. Ellie and Jim Kerr: They raised concerns that allowing an additional lot at the Subject Property would greatly increase density and traffic, leading to safety issues on their shared driveway and along Erie Road, especially during busy summer months. They also worry that increased use of the shoreline by residents and guests could harm water quality, strain parking and sanitation, and undermine the quiet enjoyment of nearby properties.

12The Applicant’s Counsel did not object to these Participant Status requests, but said that all issues raised by the Participants have been addressed in the Conditions. The Town’s Counsel did not raise objections to these requests either and reiterated the Town’s position that it is generally advantageous to hear from all those interested in the applications.

13The Tribunal determined that these individuals had an interest in the matter and will assist the Tribunal in understanding the potential impacts of the applications on the local community. The Tribunal granted Participant status to Sarah Fox; Stella Lane LLC; Beth Molony; William Heussler; and Ellie and Jim Kerr.

PROCEDURAL ORDER

14The Tribunal inquired as to whether the Parties intended to prepare and file a Procedural Order and Issues List. However, the Parties indicated that there would not be a need for these specific appeals. The Tribunal agreed as the specific issues and tests pertaining to this matter are outlined in the Act. However, the Tribunal did make the following two Orders with respect to timelines that would guide the proceedings:

a. Materials to be relied upon at the Hearing are to be filed with the Tribunal in accordance with the Tribunal’s Rules of Practice and Procedure, and not less than 10 days before the start of the Hearing.

b. On or before May 15, 2026, the Parties shall confirm with the Tribunal if all the reserved Hearing dates are still required.

MEDIATION AND SETTLEMENT

15The Parties were directed to advise the Tribunal in writing should they reach a Settlement with respect to some or all of the issues prior to the Hearing, and should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

HEARING

16Given the number of Parties, potential issues, and potential witnesses, the Tribunal found that a 4-day Merit Hearing would be sufficient. A Hearing has been scheduled to take place commencing on Monday, June 1, 2026, at 10 a.m. to and including Thursday, June 4, 2026.

17The Parties and/or Participants are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

GoToMeeting: https://global.gotomeeting.com/join/914098901

Access Code: 914-098-901

18The Parties and/or Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html

19Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: + 1 (647) 497-9373 or (toll-free) 1-888-299-1889. The access code is: 914-098-901.

20Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

ORDER

21THE TRIBUNAL ORDERS as follows:

a. The following is now a Party in this proceeding: 4407 Erie Road Holding LLC.

b. The following are now Participants in this proceeding:

i. Sarah Fox;

ii. Stella Lane LLC;

iii. Beth Molony;

iv. William Heussler; and

v. Ellie and Jim Kerr.

c. A Hearing is scheduled as described above in this Decision.

d. Materials to be relied upon at the Hearing are to be filed with the Tribunal in accordance with the Tribunal’s Rules of Practice and Procedure, and not less than 10 days before the start of the Hearing.

e. On or before Friday, May 15, 2026, the Parties shall confirm with the Tribunal if all the reserved Hearing dates are still required.

22There will be no further notice.

23This Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE

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.