Ontario Land Tribunal Dismisses Escarpment Biosphere Conservancy’s Appeal of Rezoning Bylaw

1132

Criticisms by EBC’s Experts Found to Be “Unreasonable and Excessive”, Not “Well-informed Or Credible”

By John Francis, Bruce Peninsula Press

In a Decision released on Jan 7, 2022, the Ontario Land Tribunal rejected an objection lodged by Escarpment Biosphere Conservancy Inc to a Zoning Bylaw Amendment permitting a home to be built at a property on Sadler Creek Road in the former Lindsay Township.

The 2.3 ha property, located on the Lake Huron shoreline, was purchased by the Martin family 70 years ago. There has never been a building on the property, although that had always been their intention.

The property is located within the provincially significant Zinkan Island Cove Area of Natural and Scientific Interest (“Zinkan ANSI”), which contains Dwarf Shrub Alvar habitat. The family undertook extensive environmental and engineering studies to determine whether and where a building site could be located to minimize impact on the alvar habitat.

Biologist Linda Sober of SAAR Environmental spent 18 full days on the subject property, doing a comprehensive inventory.

That research identified a small building envelope in one corner of the property, taking up about 15% of the property. The owners, represented by Faye Martin Browne and Michael Browne, propose to build a house and garage on that envelope and zone the remainder of the property as “environmental hazard” for preservation purposes.

A consultation process regarding the bylaw amendment proposal was held in the summer of 2019. The application had been circulated as required and had received approvals from Bruce County, Ontario Ministry of Natural Resources and Forestry, Ontario Ministry of Environment, Conservation and Parks, Grey Sauble Conservation Authority and the Historic Saugeen Metis. Comments from Saugeen Ojibway Nation (SON) had been solicited but were not received by the Public Meeting on Aug 12, 2019.

The Bylaw Amendment came before Council on May 25, 2020. The amendment was passed, despite a letter opposing the development from SON. Councillor Megan Myles voted against the Bylaw.

Escarpment Biosphere Conservancy subsequently filed an objection to the Bylaw with the Ontario Land Tribunal. That objection was heard in September of 2021, taking seven days of the Tribunal’s time.

The documenation for the proceeding ran to more than 2,100 pages. A number of expert witnesses testified, as well as planning experts. Lawyers — one each for the EBC, MNBP and the Martin/Browne family — spoke at length.

Three months after the last day of hearings, the Tribunal released its conclusions, dismissing the appeal.

The Tribunal accepted Ms Sober’s report and Witness Statements as well as those of Dr Paul Richardson and Raymond Duhamel and rejected those of EBC’s experts, John Urquhart, Jarmo Jalava, Justin Kestler, Mark Dorfman and Philip van Wassenaer. A few excerpts from the OLT Tribunal’s findings:

In his Witness Statement, Reply Witness Statement and oral testimony, despite his experience and significant academic credentials, Mr. Urquhart did not seem to fully understand the No Negative Impacts Test; nor did he apply it in order to reach his opinions. Unfortunately, Mr. Urquhart’s orientation, at least in his Witness Statement and Reply Witness Statement, seemed misdirected as an unhelpful ‘peer review’ of Ms. Sober’s work and report.

Moreover, as the result of an effective cross-examination conducted by the Applicant’s counsel, Mr. Urquhart had to concede that most of his critiques were unreasonable and excessive. As well, Mr. Urquhart displayed a tendency toward partisanship and environmental advocacy in his evidence and did not seem to appreciate his duties as an independent expert witness assisting the Tribunal.

As pointed out by the Applicant’s counsel in final argument, Mr. Urquhart admitted that he did not know the definition of “negative impacts” in the Provincial Policy Statement even existed until his cross-examination. He also did not understand that the test referred to negative impacts on natural features and ecological functions, stating at one point in his testimony that he would view the removal of a single tree as a negative impact. …

…Regrettably, like Mr. Urquhart, Mr. Jalava came across in his written and oral evidence as more of an environmental advocate rather than as an independent expert.

In fact, neither Mr. Jalava nor Mr. Urquhart received any fees from EBC for their efforts and seemed satisfied with the opportunity to assist the Appellant with what they viewed as a significant effort aimed at preserving what they assumed to be highly sensitive lands.

Once again, Mr. Jalava had no familiarity with the No Negative Impacts Test in terms of how it is set out in the Provincial Policy Statement (PPS). He also did not know that several important phrases set out in the PPS and the Test are actually specific defined terms, until that was pointed out during his cross-examination. Thus, as was the case for Mr. Urquhart, Mr. Jalava was unable to properly assess or apply the No Negative Impacts Test.

The Tribunal further agrees with the contention of the Applicant’s counsel that: (a) Mr. Jalava’s evidence was based on his opinion of what should be the criteria for identifying alvars as significant, with respect both to their wildlife habitat and presence in an ANSI; and (b) that he criticized the Provincial criteria for assessing significance of alvar wildlife habitat, relying heavily on an unpublished, non-peer-reviewed article submitted as a thesis for a bachelor degree by a person not called as a witness or asked to provide a Witness Statement and on his second-hand reporting of opinions from other nonwitnesses.

The Tribunal declines to draw the conclusion that Mr. Jalava (or Mr. Urquhart for that matter) intentionally ignored his duties as an expert witness before the Tribunal.

However, neither his Witness Statements nor his oral testimony were helpful to the Tribunal in determining whether the No Negative Impacts Test had been met by the Applicant in relation to the Proposal. In addition, the Tribunal did not find his criticisms of the evidence of the Applicant’s witnesses to be well-informed or credible.

…Unfortunately the evidence [Mr Kestler] provided was weak and unconvincing, as noted by counsel for the Applicant…

… The Tribunal preferred the expert evidence of Ms. Sober and Dr. Richardson … wherever it conflicted with the evidence of the EBC witnesses for the reasons as set out in Part 1 above. Moreover, the work carried out by Ms. Sober and Dr. Richardson, and the opinion evidence they provided to the Tribunal, was thorough, detailed and was never successfully challenged in any relevant or material way during cross-examination. …

Conclusions and Orders

Based on the evidence of the Applicant’s witnesses as described above in paragraphs [35] to [47], as accepted by the Tribunal, and based on the evidence of EBC witnesses as rejected by the Tribunal and outlined in paragraphs [16] to [34] of this Decision, the Tribunal agrees with the submissions made by counsel for the Applicant and counsel for Northern Bruce that: 

a) The Proposal and the ZBLA satisfy all relevant provisions of sections 1, 2 and 3 of the Planning Act, R.S.O. 1990, c. P.13, as amended; 

(b) Are consistent with all applicable provisions of the PPS, 2020;

(c) Conform with the relevant provisions of the Northern Bruce Official Plan; and

(d) Respect and implement principles of good planning.

ORDERS

The Tribunal dismisses this appeal.”

* * * * *

The full decision of the OLT Tribunal appears in the Agenda for MNBP’s Jan 24, 2022 Council Meeting, under Correspondence.

At that Meeting, Councillor Smokey Golden stated that “there is a lot of good information” in the report. She expects that “we’re going to be dealing with this more and more”. She noted that the research conducted by Linda Sober was credible and well received. Mayor Milt McIver agreed that this was good news, pointing out that it would have been precedent-setting if it had gone the other way. He noted that there is another, similar case on the OLT’s docket (Porter property, also on Sadler Creek Road).

The invoice from municipal solicitor Nicholas Lovell is not available at press time. The cost for attending ten full days of hearings, plus familiarizing himself with 2,100 pages of documentation is expected to be well into five figures. The Martin/Browne family’s expenses would be much higher.

In related news, Bruce Peninsula Press has received a report that EBC has withdrawn a similar appeal concerning another property (Porters’) on Sadler Creek Road. The costs to the municipality and the Porter family in preparing for the anticipated appeal by EBC are undetermined at this time.