Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
May 18, 2016
CASE NO.:
15-176
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
See Appendix 1 – Appellant List
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Refusal of a Development Permit Application to reconstruct 26/27 Sideroad from seasonal to year round open road
Reference No.:
S/T/2013-2014/9152
Property Address/Description:
Lots 25 to 31, Concession 10 & 11
Municipality:
Township of Clearview
Upper Tier:
County of Simcoe
NEHO Case No.:
15-176
NEHO Case Name:
Urbaniak v. Ontario (Niagara Escarpment Commission)
Heard:
In writing
APPEARANCES:
Parties
Counsel/Representative+
Harry and Eleonore Urbaniak
Self-represented
Marilyn Young
Self-represented
Melksham Holdings Ltd.
Richard Young+
Walker Aggregates Inc.
Wayne Fairbrother and Mary Bull
Township of Clearview
Harold Elston and Aynsley Anderson
Niagara Escarpment Commission
Demetrius Kappos
Blue Mountain Watershed Trust Foundation
Sarah Powell
Wendy Franks and David Stevenson
David R. Donnelly and Anne Sabourin
Participants
Municipality of Grey Highlands
Dan Best+
Janet Gillham on behalf of the Clearview Community Coalition
Self-represented
Mark Bell
Self-represented
Raymond Mueller
Self-represented
Doug Dingeldein
Self-represented
Presenters
Allan Fisher
Self-represented
Emelia Franks
Self-represented
Brewster Lake Homeowner’s Association
Gary Fohr+
Victoria Selby
Self-represented
ORDER DELIVERED BY MARLENE CASHIN AND HEATHER I. GIBBS
BACKGROUND
1This order relates to a number of procedural matters that were resolved by the parties on consent in writing.
ORDER
2The Hearing Officers direct the following:
Organization of the Hearing
3The parties shall reconvene for a continuation of the pre-hearing conference (“PHC”) on June 10, 2016 at 10 a.m. at the Township of Clearview Administrative Building, 217 Gideon Street, Stayner, Ontario or as otherwise ordered by the Niagara Escarpment Hearing Office (the “NEHO”).
4The parties shall hold October 12, 13 and 14, 2016 as available dates for the hearing of motions, as required.
5The hearing will begin on November 29, 2016 at 10 a.m. at the Township of Clearview Administrative Building, 217 Gideon Street, Stayner, Ontario. All parties, participants and presenters shall attend the first day of the hearing.
6The length of the hearing will be fifteen days. The length of the hearing may be shortened as issues are resolved or settlement is achieved.
7The parties, participants and presenters identified at the PHC are listed above (see: “APPEARANCES”).
8The issues raised by the parties are set out in the Parties’ Proposed Issues List attached at Appendix 2. There will be no additions to this list unless the Hearing Officer(s) permit. The list is subject to refinement by the Hearing Officer(s).
9The order of evidence shall be as listed in Appendix 3 to this Order. The Hearing Officer(s) may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on consent or by order of the NEHO.
Requirements Before the Hearing
10All parties, participants and presenters (or their representatives) shall provide a mailing address, email address, and telephone number to the NEHO. Any such person who retains a representative (legal counsel or agent) subsequent to the PHC must advise the other parties and the NEHO of the representative’s name, mailing address, email address and phone number.
11A party who intends to call witnesses, whether by summons or not, shall provide to the NEHO and to the other parties, a list of the witnesses and the order in which they will be called. This list must be delivered on or before May 27, 2016. For expert witnesses, a party is to include a copy of the curriculum vitae and the area of expertise in which the witness is proposed to be qualified.
12Expert witnesses in the same field shall have a meeting after the exchange of witness statements and before the hearing to try to resolve or reduce the issues for the hearing. These meetings will occur during the weeks July 11-22, 2016, unless otherwise agreed to by the experts. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the parties.
13An expert witness shall prepare an expert witness statement, which shall include: an Acknowledgement of Expert's Duty Form, the area(s) of expertise, any reports prepared by the expert, and any other reports or documents to be relied on at the hearing. Copies of the expert witness statements must be provided as in Appendix 4 of this Order. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Hearing Officer(s) may refuse to hear the expert’s testimony.
14A witness, participant or presenter who is not a professional in the subject matter to be addressed must provide to the NEHO and the parties a witness, participant or presenter statement as provided in Appendix 4 of this Order or the witness or participant may not give oral evidence at the hearing.
15Expert witnesses who are under summons but not paid to produce a report are not required to file an expert witness statement; but the party calling them must file a detailed outline of the expert’s evidence, opinions and his or her area of expertise as in Appendix 4 of this Order.
16On or before August 22, 2016 the appellants shall provide copies of their presenter, participant, witness and expert witness statements and visual evidence (if any) to the other parties. A paper copy of any document proposed to be entered into evidence or relied upon shall be provided at the hearing unless ordered otherwise by the presiding Hearing Officer(s).
17On or before September 20, 2016 the respondents shall provide copies of their presenter, participant, witness and expert witness statements and visual evidence (if any) to the other parties. A paper copy of any document proposed to be entered into evidence or relied upon shall be provided at the hearing unless ordered otherwise by the presiding Hearing Officer(s).
18On or before October 14, 2016 the appellants shall provide a written response, if required, to any written evidence. The failure of a party to provide a written response, in whole or in part, shall not be considered by the NEHO as being an agreement by that party to the written evidence of another party or participant.
19A person wishing to change written evidence, including witness statements, must make a written motion to the NEHO in accordance with the Environmental Review Tribunal’s Rules of Practice (“Rules”) 93 to 103.
20A party who provides the written evidence of a witness to the other parties must have that witness attend the hearing to give oral evidence, unless the NEHO and the parties are notified at least seven days before the hearing that the written evidence is not part of their record.
21Documents may be delivered in person, by courier, by email, facsimile or registered or certified mail, or otherwise as the NEHO may direct. The delivery of documents by fax and email shall be governed by the Tribunal’s Rules 86 to 92 on this subject. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification.
22No adjournments will be granted except in accordance with the Tribunal’s Rules 104 to 107.
Procedural Directions Ordered
“Marlene Cashin”
MARLENE CASHIN
HEARING OFFICER
“Heather I. Gibbs”
HEATHER I. GIBBS
HEARING OFFICER
Appendix 1 – Appellant List
Appendix 2 – Parties’ Proposed Issues List
Appendix 3 – Order of Evidence
Appendix 4 – Meaning of Terms Used in the Order
If there is an attachment referred to in this document,
please visit www.elto.gov.on.ca to view the attachment in PDF format.
Niagara Escarpment Hearing Office
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
Appendix 1
Appellant List
Appellant Name
File No.
Eleonore Urbaniak
15-176
Harry Urbaniak
15-177
Marilyn Young
15-179
Melksham Holdings Ltd.
15-181
Allan Fisher (now presenter)
15-182
Walker Aggregates Inc.
15-183
Township of Clearview
15-184