Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: March 08, 2017

CASE NO.: 16-071

PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant: Elizabeth Kozlowski (File No. 16-071)

Appellant: Jason Tuin (File No. 16-072)

Applicant: Barbara Irek

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to construct a dug pond for agricultural purposes, with water to be sourced from the existing adjacent pond through a connecting culvert

Reference No.: N/A/2014-2015/256

Property Address/Description: Part Lots 5 and 6, Concession 6

Municipality: Town of Pelham

Upper Tier: Regional Municipality of Niagara

NEHO Case No.: 16-071

NEHO Case Name: Kozlowski v. Ontario (Niagara Escarpment Commission)

Heard: February 17 and March 1, 2017 by telephone conference call

APPEARANCES:

Parties	Representative
Elizabeth Kozlowski	Self-represented
Jason Tuin	Self-represented* Elizabeth Kozlowski**
Barbara Irek	Self-represented
Niagara Escarpment Commission	John Stuart Debbie Ramsay*

*February 17, 2017 only **March 1, 2017 only

ORDER DELIVERED BY MAUREEN CARTER-WHITNEY

REASONS

Background

1Barbara Irek (“Applicant”) submitted development permit application N/A/2014-2015/256 (“Development Permit Application”) to the Niagara Escarpment Commission (“NEC”) on January 14, 2015, seeking permission to construct a 0.2 hectare (“ha”) dug pond for agricultural purposes, to be sourced by the existing adjacent pond through a connecting culvert. The pond is proposed to have a maximum depth of 3.05 metres (“m”), maximum bank height of 1.8 m and maximum bank width of 9.1 m. The proposed pond would be located on an existing 10.8 ha lot located on Part Lots 5 & 6, Concession 6 (1760 Effingham Street) in the Town of Pelham, Region of Niagara (“Subject Property”). The Applicant is the owner of the Subject Property.

2On June 7, 2016, the NEC conditionally approved the Development Permit Application. On June 21, 2016, Elizabeth Kozlowski and Jason Tuin (“Appellants”), who live near the Subject Property, submitted appeals of that decision to the Niagara Escarpment Hearing Office (“NEHO”) under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”) (“Kozlowski matter”). In outlining the reasons for their appeal, the Appellants stated that they were concerned about impacts on their well water, alleging that the proposed pond would support additional dwellings for cannabis growth, which they do not support.

3During a Pre-hearing Conference (“PHC”) held by telephone conference call (“TCC”) on September 13, 2016, the Parties agreed on a date for the exchange of documents. Subsequently, the hearing was scheduled for November 2, 2016, following the document disclosure date of October 14, 2016. The Parties further agreed that the main issue in the hearing would be the impact of the proposed activity in the Development Permit Application on the Appellants’ water supply.

4At the commencement of the hearing, the Appellants requested that the hearing be adjourned due to new information that an additional development permit application had been made to the NEC for a greenhouse expansion on the Subject Property, and that the additional application had also been appealed. The Hearing Officer granted the adjournment request on November 2, 2016, a decision for which reasons were provided in an order issued on December 18, 2016. The Appellants also raised the question of whether the appeals of the two related development permit applications should be addressed together. This question is addressed below in this Order.

5On February 9, 2016, Richard Redekop had submitted a separate development permit application (N/A/2015-2016/370) to the NEC, seeking permission to construct three additions, totaling 832.8 square metres (“sq m”), onto an existing 1,311 sq m agricultural greenhouse complex on a 10.93 ha lot located on the Subject Property. The NEC conditionally approved the development permit application for the greenhouse expansion on October 24, 2016. On November 1, 2016, Michael Zwiep, a nearby property owner, filed an appeal of the conditionally approved development permit application for the greenhouse expansion under s. 25(8) of the NEPDA (NEHO Case No. 16-106; “Zwiep matter”).

6The Appellants also submitted a Notice of Appeal of the conditionally approved development permit application for the greenhouse expansion in the Zwiep matter, which was received after the deadline to appeal. In an order issued on December 23, 2016, the appeals by Ms. Kozlowski and Mr. Tuin were dismissed for lack of jurisdiction. They were later granted Party status in the Zwiep matter.

7In the adjournment order issued on December 18, 2016, the Hearing Officer directed the NEHO Case Coordinator to contact the Parties to schedule a status update TCC in order to determine next steps. The status update TCC was scheduled to coincide with the first PHC in the Zwiep matter on February 17, 2017 (“first status update TCC”), and it was continued on March 1, 2017 (“second status update TCC”). John Stuart represented the NEC at the first and second status update TCCs, and was joined by Debbie Ramsay at the first status update TCC only. Ms. Irek and Ms. Kozlowski appeared at both the first and second status update TCCs. Mr. Tuin appeared at the first status update TCC and was represented by Ms. Kozlowski at the second status update TCC.

8Although proposed hearing dates were discussed at the first status update TCC, it was premature to schedule the hearing due to incomplete information concerning the number of witnesses and the estimated length of the hearing. The Hearing Officer scheduled the second status update TCC, in conjunction with the second PHC in the Zwiep matter, to finalize details concerning scheduling the hearing, as well as dates for disclosure.

9Prior to the second status update TCC, the Hearing Officer was advised of certain requests, in relation to both the Kozlowski and Zwiep matters, pursuant to the Freedom of Information and Protection of Privacy Act (“FOI requests”). According to the information provided to the Hearing Officer, the FOI requests relate generally to the documentation underlying the decisions by the NEC to conditionally approve the development permit applications in the Kozlowski and Zwiep matters.

10At the second status update TCC, the Parties made submissions on the effect of the FOI requests on scheduling disclosure and hearing dates in respect of both the Kozlowski and Zwiep matters, as set out below.

Relevant Rules

11The relevant provisions of the Environmental Review Tribunal’s Rules of Practice (“Tribunal Rules”), which apply to this proceeding, are:

Tribunal Rules

166. All Parties shall provide without charge to all other Parties within the time directed by the Tribunal, which is usually no later than 15 days before the commencement of the main Hearing, a copy of every relevant document in the possession, control or power of a Party, except for those documents that are privileged. Documents may be exchanged electronically if all Parties agree.

167. If two or more proceedings before a Tribunal involve the same or similar questions of fact, law or policy, the Tribunal may:

(a) combine the proceedings or any part of them, with the consent of the Parties;

(b) hear the proceedings at the same time, with the consent of the Parties;

(c) hear the proceedings one immediately after the other; or

(d) stay one or more of the proceedings until after the determination of another one of them.

Issues

12The issues are:

1. whether to combine the proceedings in the Kozlowski and Zwiep matters; and

2. whether to delay the scheduling of the hearing due to the FOI requests.

Discussion, Analysis and Findings

Issue 1: Whether to combine the proceedings in the Kozlowski and Zwiep matters

13As noted above, in an order issued on December 8, 2016, the Hearing Officer provided written reasons for the decision to grant an adjournment of the hearing in the Kozlowski matter. In doing so, the Hearing Officer stated the most efficient course of action might be to hear the appeals of the Kozlowski and Zwiep matters together.

14Under Rule 173, two proceedings may be combined (under Rule 173(a)) or heard at the same time (under Rule 173(b)), with the consent of the Parties, if they involve the same or similar questions of fact, law or policy. At the first status update TCC, the Hearing Officer addressed the question of whether to combine the two proceedings or hear them together. While there were no objections from the other Parties, Ms. Irek did not consent to combining the two proceedings or hearing them together. Without the consent of all Parties, Rule 173 does not permit the proceedings in the Kozlowski and Zwiep matters to be combined or heard together.

15Where the Parties do not consent to combining the matters or hearing them at the same time, Rule 173 gives the Hearing Officer the discretion to hear the proceedings one immediately after the other (under Rule 173(c)), or to stay one of the proceedings until after another is determined (under Rule 173(d)). At the second status update TCC, the Hearing Officer proposed to hear the proceedings one immediately after the other as provided for in Rule 173(c). There were no objections to proceeding in this manner. However, there was discussion of which appeal would be heard first and it was determined that the order in which the two proceedings are to be heard will be confirmed at the next PHC, to take place on April 6, 2017, as discussed below.

16Given the estimated number of witnesses to be put forward by the Parties, the Hearing Officer has determined that it would be appropriate to set aside a total of ten days to hear the two proceedings as approximately seven days will be required for the Zwiep matter and about three days for the Kozlowski matter.

Issue 2: Whether to delay the scheduling of the hearing due to the FOI requests

17As a result of the pending FOI requests for documents in the possession of the NEC, the Appellants asked that the hearing dates not be scheduled until the requested information has been received, which is anticipated by the end of March 2017. The Applicant wishes to move forward with scheduling the hearing dates to avoid further delay. The NEC took no position on whether or not to delay the scheduling of the hearing.

18The Hearing Officer explained that, under Rule 166, all Parties in these proceedings (including the NEC, which is the subject of the pending FOI requests) are required to provide a copy of every relevant document in the possession, control or power of a Party, except for those documents that are privileged. However, the Appellants remain concerned that the NEC will not disclose all of the relevant documents and the FOI request is therefore necessary.

19In an effort to balance the importance of ensuring that all relevant information is disclosed with the Applicant’s desire to move ahead with scheduling the hearing, the Hearing Officer determined that it would be appropriate to set dates for the hearings, as well as for the disclosure of documents and the exchange and filing of documents upon which the Parties intend to rely. However, the Hearing Officer also set a date following the disclosure date for a further PHC, at which time she will address the remaining questions of: whether there is reason to believe that the Appellants are missing any relevant documents; and whether it would be prejudicial to them to proceed to a hearing without that information. If, at that time, the Hearing Officer finds that there would be prejudice to any of the Parties, the hearing dates for the proceedings may be adjourned and rescheduled or, alternatively, the hearing of only one of the two proceedings may go forward on the scheduled hearing dates. The next status update TCC, therefore, has been scheduled for April 6, 2017, after the disclosure date scheduled for March 17, 2017.

20Subject to the preceding paragraph, the hearings in the Kozlowski matter and the Zwiep matter have been scheduled to take place, one immediately after the other, from May 8 to 19, 2017.

21To assist in ensuring that all relevant documents are disclosed in a timely manner, the Hearing Officer set a disclosure date of March 17, 2017 for any additional disclosure in the Kozlowski matter, beyond the documents disclosed prior the original hearing date. The Hearing Officer emphasized to the Parties that disclosure occurs so that Parties can adequately prepare for the case, and to ensure that there is no information presented at the hearing that has not been previously shared with all Parties.

22The Hearing Officer set a further date for the exchange and filing of all documents upon which each Party intends to rely at the hearing. This is to include a list of witnesses that each party intends to call, a witness statement for each witness and a curriculum vitae and any reports if the witness seeks to submit evidence at the hearing as an expert in a matter. If a Party intends to call an expert witness to give opinion evidence, the witness must sign an Acknowledgement of Expert’s Duty Form (see Appendix F: Form 5 of the Tribunal Rules and Rule 170) and the Party must file it with the NEHO. A witness statement should consist of one or more paragraphs stating what the witness plans to say at the hearing. The Parties are encouraged to carefully review the information provided in “A Guide to Development Permit Appeal Hearings and Niagara Escarpment Plan Amendment Hearings under the Niagara Escarpment Planning and Development Act”, as well as the Tribunal Rules. These documents are available from the NEHO and are posted on its website.

ORDER

23The hearings in the Kozlowski matter and the Zwiep matter have been scheduled to take place one immediately after the other. The order in which the two proceedings are to be heard will be confirmed at the next status update TCC, scheduled for April 6, 2017 at 2:00 p.m., as set out below.

24The Hearing Officer directs the following schedule:

• March 17, 2017: Date for disclosure of all relevant documents (regardless of whether the disclosing Party intends to rely on such documents at the hearing) − Parties to exchange any additional documents in their possession, control or power that are relevant to the Kozlowski matter, beyond the documents disclosed prior to the original hearing date.
• April 6, 2017: Continuation of the status update TCC at 2:00 p.m. as set out below.
• April 21, 2017: Date for exchange between the Parties, and filing with the NEHO, of all documents to be relied upon at the hearing − Parties to exchange all documents to be relied upon, including a list of witnesses that each Party intends to call, a witness statement for each witness and, for any witness intending to submit evidence at the hearing as an expert in a matter, a signed Acknowledgement of Expert’s Duty Form, a curriculum vitae and any reports the witness is submitting as evidence.
• May 8 to 19, 2017: Hearing of the appeals of the Kozlowski matter and the Zwiep matter, commencing at 10 a.m. on May 8, 2017, at a venue to be determined.

25The status update TCC in this matter is adjourned and will reconvene by TCC on April 6, 2017 at 2 p.m., in conjunction with the PHC continuation in the Zwiep matter.

Status Update Telephone Conference Call Adjourned

Procedural Directions Ordered

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY HEARING OFFICER

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Environmental Review Tribunal 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