June 17th, 2024
BURLINGTON, ON
The Member of the Ontario Land Tribunal took exception to some of the comments made during the 17 day hearing saying in the 146 page report that: “Counsel for the Applicant did take exception to MABD (Millcroft Against Bad Development), specifically during closing submissions. Counsel pointed out MABD’s website which showed a doctored air photo or overlay of the existing Subject Lands and the proposed development which covered all areas of the Millcroft community including the existing golf course that was to be retained. Counsel submits this is a total misrepresentation of the proposed development which leads mistaken assumptions, adds to concerns, fear and anxiety which many Participants have addressed in their statements.
“Counsel submitted he emphatically encourages Resident Associations to be part of the public planning process and proceedings but there has to be a level of accountability and transparency within their associations.
“The Tribunal does not weigh lightly into this discussion, but under the evidence provided it, agrees wholeheartedly with Counsel that Resident Associations provide a valuable Public component to the planning process but when there are misrepresentations that are blatant as in this case, with the proposed development overlay on the website, this only undermines the Public confidence in the entire Tribunal administrative process and the Resident Associations themselves.
“As Counsel noted this may have caused the unnecessary fear and anxiety regarding this proposed development and adds to mistaken assumptions especially with over 6000 members of MABD as described by its Director.
“These Applications require balancing the private right to develop against the public interest in protecting open space and the environment. The assessment of the Applications should not be approached as an exercise to prevent development on this land, but rather to balance such proposed development within the Provincial, Regional and Local planning framework.

“The Applicant, Region and CH have worked to try to find this balance between public and private interests in these Applications. Through updated studies and conditions required to be provided by the Applicant, the Tribunal is satisfied that balance will continue.
“Ideally, the owner of golf course should not be left with vacant land they cannot use, and for which they have not received any compensation from the City. However, such lands, with natural heritage features, should only be developed in a way that respects the applicable provincial, regional and municipal policies, represents good planning and is in the public interest.
“The Applicant, Region and CH have worked to try to find this balance between public and private interests in these Applications. Through updated studies and conditions required to be provided by the Applicant, the Tribunal is satisfied that balance will continue.
“Finally, this hearing was of a non-decision by City Council and therefore, the Tribunal did not have to have regard to a Council decision as one was never made. In the course of hearing evidence, the Tribunal reached its own conclusions and decision based on the evidence provided.
“The Tribunal would describe these proceedings as professionally conducted by all Counsel and witnesses involved. Many witnesses were qualified as experts for the first time in these proceedings. During the hearing Counsel presented their evidence on behalf of their clients in a reasonable and thorough manner. The many local representatives that stood in for their Associations were also professional and courteous.
“The Tribunal is satisfied that procedural fairness was maintained for each Party and finds that through the comprehensive public and agency consultation, the Applicant has met the planning process obligations under the Act.

“At times it appeared the City was grasping at technical straws to make suggestions and options now at the Hearing that were never brought up as a concern before, which teetered on procedural fairness concerns.”
The Tribunal’s only unease was with the City raising issues or options at the Hearing rather than during consultative phases of this application.
“Evidence was heard that different Applicant witnesses were never asked about certain options such as removal of the pond or relocation of the parks or phases of development in Area E, that were not brought forward earlier or commented on. At times it appeared the City was grasping at technical straws to make suggestions and options now at the Hearing that were never brought up as a concern before, which teetered on procedural fairness concerns.”

MABD, formerly known as MAD, is only one of the two resident groups in Millcroft that were fighting the development proposal. (I always thought it was unfortunate that there wasn’t one cohesive group instead.) I look forward to hearing from the other, Millcroft Greenspace Alliance, and I’m sure we will. They, I believe, were the group which hired an environmental lawyer and their group actively participated in and testified at the hearing. I think it is unfortunate that the public might think that Millcroft Greenspace Alliance is being called out for a “doctored” photo, etc. According to the article here, no such criticisms about lack of “accountability and transparency” were levelled at them. I also hope we hear from MABD on their thoughts on these statements by the Tribunal.
I question MABD’s claims of having 6000 members. Way back when this first came to light – before the 2022 election – I “joined”. I don’t live in Millcroft but I supported their resident group to start looking into the matter, and I remember thinking that the developer was making some rather silly comments about needing to develop the course for safety reasons about errant golf balls. I thought that was a bit of a stretch. (Ironic that floods aren’t a safety issue?). I wanted to be on the list to receive updates as to what MAD/MABD was doing. Eventually I asked to be removed from the list, as the second group Millcroft Greenspace Alliance entered the picture and as more details emerged about the groups, about their interactions with the City and council, etc. I think there are many of those 6000 like me, who signed on at the very beginning to follow the whole thing and receive updates – but who don’t consider themselves a “member”. I don’t know if I’m still being counted as one or not, but I’m skeptical that today they have 6000 people supporting their strategies.
It is also my opinion that the City should not be “grasping at straws” or “teetering on procedural fairness”, but then that doesn’t actually surprise me.
We are not OLT fans but the OLT judgment echoes our position since our involvement as an appellant at the OLT. The City’s legal support leaves a lot to be desired when it comes to protecting the public who pay the bills, allowing all kinds of faux pas where we end up paying the price of poor legal support and presentations that “teetered on procdural fairness”.
“Finally, this hearing was of a non-decision by City Council and therefore, the Tribunal did not have to have regard to a Council decision as one was never made. In the course of hearing evidence, the Tribunal reached its own conclusions and decision based on the evidence provided.”
and
At times it appeared the City was grasping at technical straws to make suggestions and options now at the Hearing that were never brought up as a concern before, which teetered on procedural fairness concerns.”
We are not OLT fans, however, this supports our OPINION based on involvement in the New Official Plan hearings and the city responsibility for delay in moving the UGC and failing to address a bus stop being considered anything more than that, the Interim Control By-law etc. etc. that the city legal representation at the city decision and OLT level leaves a lot to be desired. We do not believe the public have had appropriate inhouse legal reoresentation since at least 2014 resulting in the public having to pay, pay, pay. This OLT decision was clearly enabled by such.