Dyment v. Ontario (Niagara Escarpment Commission), 2017 CanLII 66335

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: October 5, 2017

CASE NO.: 16-085

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

Appellants: See Appendix 1 – Appellant List

Applicant: Danik Daniels

Respondent: Niagara Escarpment Commission

Subject of Appeal: Approval of a Development Permit Application to construct a barn, storage facilities, sales outlet, greenhouse, gravelled customer parking lot and business advertising sign

Reference No.: W/A/2012-2013/215

Property Address/Description: Part Lot 16, Concession 2

Municipality: (Former) Town of Flamborough

Upper Tier: City of Hamilton

NEHO Case No.: 16-085

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

Heard: October 2, 2017 by telephone conference call

APPEARANCES:

Parties	Representative
Niagara Escarpment Commission	John Stuart

REPORT DELIVERED BY MAUREEN CARTER-WHITNEY AND MARLENE CASHIN

REASONS

Background

1Danik Daniels (“Applicant”) initially submitted a development permit application to the Niagara Escarpment Commission (“NEC”) in November 2012. Final revisions to the application proposal were submitted on June 22, 2016, seeking permission to construct the following on a 27.3 hectare (67.5 acre) property, which supports a single dwelling, a barn and a silo: a one-storey, 185.8 square metre (“sq m”) (2,000 square foot (“sq ft”)) barn to contain livestock (upwards of 6 cows, 20 goats and 30 chickens) with a small manure storage facility; a one-storey, 156 sq m (1,680 sq ft) farm produce storage and sales outlet to be open on a seasonal basis (May to November), restricted to on-site production items; a one-storey, 156 sq m (1,680 sq ft) storage shed near Fallsview Road for storage of hay and/or other harvested crops; a one-storey, 185.8 sq m (2,000 sq ft) greenhouse structure for vegetable production to be offered for retail sale; a six-car gravelled customer parking lot; and placement of a business advertising fascia sign not exceeding 0.9 sq m (9.7 sq ft) in area.

2On August 19, 2016, the NEC approved application W/A/2012-2013/215 for a development permit to allow for all aspects of the proposed development, subject to 14 conditions (“Conditional Approval”). On dates between August 30 and September 1, 2016, several of the Applicant’s neighbours appealed the decision of the NEC to issue the Conditional Approval, under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”). They were as follows: James Dyment (August 30); Gerard Van Herk (August 31); Kyle Davies and Julie Davies (August 31); Andrew Dyment and Myrna Dyment (September 1); and Peter Tate and Alison Payne-Tate (September 1) (collectively “Appellants”).

3The Niagara Escarpment Hearing Office (“NEHO”) conducted a Pre-hearing Conference (“PHC”) regarding the appeals by telephone conference call (“TCC”), on November 25, 2016. The PHC was attended by: Appellants James Dyment, Kyle Davies and Julie Davies; Martin Kilian, planner for the NEC; and the Applicant. No others attended the PHC to request Party, Participant, or Presenter status.

4After a discussion among the parties, there appeared to be potential to settle some or all of the issues raised by the Appellants. Mr. Kilian undertook to host a meeting of the parties, with officials from the City of Hamilton (“City”), to further discuss the Appellants’ concerns.

5A continuation of the PHC was held on January 18, 2017 by TCC at which time Mr. Kilian told the Hearing Officers that due to Mr. Kilian’s upcoming retirement, John Stuart, planner for the NEC, would be carrying through on the appeals file. Mr. Daniels informed the Hearing Officers that he intended to revise his plans in response to his neighbours’ concerns and would be bringing forward revisions, for approval from the City, which may resolve the appeals. Mr. Kilian said that the City would be asked to review the proposed development and provide comments to assist the parties in determining whether the revised site plan may be put forward as the basis for a settlement agreement.

6A continuation of the PHC was held on March 3, 2017, at which time Mr. Stuart and Mr. Daniels expressed concern that some of the Appellants had not attended any of the PHC TCCs. The Hearing Officers told the parties on the TCC that those who had not been attending the PHC TCCs would be contacted by the NEHO Case Coordinator, to canvass the intentions of those parties regarding proceeding with their appeals.

7On March 6, 2017, the NEHO Case Coordinator wrote to the Appellants who had not appeared at the PHC and asked them to confirm whether or not they were pursuing their appeals and to attend the PHC continuation scheduled for May 31, 2017.

8In a letter to Gerard Van Herk, dated June 2, 2017, the Hearing Officers closed Mr. Van Herk’s appeal file. He had been given notice that since he had not attended any of the PHC TCCs held on November 25, 2016, January 18, 2017, and March 3, 2017, he must attend the continuation of the PHC to be held by TCC on May 31, 2017, or the NEHO would assume that he had decided not to pursue his appeal and would close his file. Mr. Van Herk confirmed by email on March 7, 2017, that he did not intend to attend any further conference calls or meetings. The Hearing Officers, therefore, dismissed his appeal (File No. 16-086) in accordance with Rule 16 of the Environmental Review Tribunal’s Rules of Practice (“Tribunal Rules”), which apply to the NEHO.

9The PHC continued through use of a number of TCCs, held on June 28, July 28, and August 31, 2017. These TCCs served to provide the Hearing Officers with updates on the progression of settlement discussions, and responses from the City regarding the proposed revisions. Not all of the parties attended each of the TCCs, nor did all parties participate in the informal meetings or discussions conducted outside of the PHC aimed at scoping issues or reaching a possible settlement on the appeals. This continued to be a cause for concern among the parties who did attend each call. Details of the attendance and discussions that took place during each of those TCCs can be found in the order of the Hearing Officers issued September 8, 2017 (“September 8, 2017 Order”).

10The September 8, 2017 Order also provided directions for the conduct and schedule of the hearing of the appeals, including exchange of relevant documents, list of outstanding issues, exchange of documents the parties intend to rely on at the hearing, and confirmation of dates for the hearing scheduled to be held on October 10 and 11, 2017.

11On September 26, 2017, Julie and Kyle Davies informed the NEHO, in writing, of their intention to withdraw their appeals.

12Following each of the TCCs, the NEHO Case Coordinator, on the instruction of the Hearing Officers, sent a detailed email to the parties confirming the discussions during the TCC. The TCC scheduled for October 2, 2017 was noted as being peremptory to the parties, in an email from the NEHO Case Coordinator dated August 31, 2017 and was confirmed as peremptory in the order of the NEHO. The September 8, 2017 Order also directed that any Appellants not intending to pursue their appeals, should contact the NEHO Case Coordinator immediately. Julie and Kyle Davies subsequently informed the NEHO Case Coordinator that they intended to withdraw their appeals.

13At the TCC held on October 2, 2017, the only person attending, other than the Hearing Officers, was Mr. Stuart for the NEC. Mr. Stuart provided a brief update concerning the continued review of the revised site plan.

Issues

14The issues are whether the Hearing Officers should confirm the withdrawal of the Davies’ appeals, dismiss the proceeding, cancel the hearing and confirm the decision of the NEC.

Relevant Legislation and Rules

15The relevant provisions of the NEPDA and the Tribunal Rules are as follows:

Niagara Escarpment Planning and Development Act

Failure to appear

25(10.2) If the persons who appealed the decision withdraw their appeals or fail to appear at the hearing, the decision of the delegate shall be deemed to be confirmed.

Tribunal Rules

Definitions

3. These definitions apply to these Rules and Practice Directions unless the context requires otherwise,…

“Hearing” means a written, oral or electronic procedure held by the Tribunal where a person has the opportunity to present one’s case and includes motions, Pre-Hearing Conferences, main Hearings and review Hearings, but does not include mediation;…

Non-compliance

16. If a Party or Participant

(a) fails to comply with these Rules, an Order or a written request from the Tribunal, or an undertaking;

(b) causes undue delay;

(c) does not attend a Hearing or mediation of which he or she was given notice; or

(d) does not provide, within the time permitted by the Tribunal, a response to an appeal or application which was served on him or her;

the Tribunal may:

(a) deem the Party or Participant to have accepted all of the material facts set out in materials provided by another Party or Participant;

(b) determine that the Party or Participant is not entitled to present evidence or make submissions;

(c) proceed in the Party’s or Participant’s absence without any further notice to him or her;

(d) decide the matter based solely on the materials before it;

(e) dismiss the proceeding; or

(f) make any other order it considers appropriate.

Termination of Development Permit Hearings Under Section 25(8) of the Niagara Escarpment Planning and Development Act

205. If the Appellant withdraws his or her appeal of a development permit, or fails to appear at the Hearing, the decision of the Niagara Escarpment Commission is automatically confirmed pursuant to section 25(10.2) of the Niagara Escarpment Planning and Development Act.

Discussion, Analysis and Findings

16As stated above, Julie and Kyle Davies informed the NEHO on September 26, 2017, in writing, of their intention to withdraw their appeals. As such, the Hearing Officers confirm the withdrawal of the Davies’ appeals.

17Regarding the remaining Appellants, the Hearing Officers note that Rule 16 of the Tribunal Rules provides that, where a party does not attend a Hearing (which is defined to include a PHC) of which he or she has been given notice, the Hearing Officers may proceed in the Party’s absence without any further notice to him or her, dismiss the proceeding, or make any other order they consider appropriate. Furthermore, under both s. 25(10.2) of the NEPDA and Rule 205, if an Appellant fails to appear at the Hearing, the decision of the NEC is confirmed.

18The parties were alerted to the possibility of the dismissal of the proceeding, as set out in the September 8, 2017 Order, if they did not attend the continuation of the PHC scheduled for October 2, 2017. None of the parties except the NEC appeared at the October 2, 2017 PHC. Additionally, no filings have been made by the Appellants in accordance with the schedule set by the NEHO in the September 8, 2017 Order. As such the Hearing Officers find it appropriate to dismiss the proceeding under Rule 16.

19As the proceeding is dismissed, the hearing is cancelled and the decision of the NEC to conditionally approve the Applicant’s development permit application W/A/2012-2013/215 is deemed to be confirmed.

DECISION

20The Hearing Officers order that:

1. The appeals of Kyle Davies and Julie Davies have been withdrawn and are therefore dismissed.

2. The remaining appeals are dismissed under Rule 16.

3. The Hearing in these appeals, scheduled to be held on October 10 and 11, 2017, is cancelled.

4. The decision of the Niagara Escarpment Commission to conditionally approve the Applicant’s development permit application W/A/2012-2013/215 is deemed to be confirmed pursuant to s. 25(10.2) of the Niagara Escarpment Planning and Development Act.

Appeals Withdrawn

Appeals Dismissed

NEC Decision Confirmed

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

HEARING OFFICER

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

Appendix 1 – Appellant List

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

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

Appendix 1

Appellant List

Appellant Name	File No.
James Dyment	16-085
Gerard Van Herk	16-086 (File closed)
Kyle Davies	16-087
Julie Davies	16-088
Andrew Dyment	16-089
Myrna Dyment	16-090
Peter Tate	16-091
Alison Payne-Tate	16-092