Rizzo v. Ontario (Niagara Escarpment Commission), 2018 CanLII 3432

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE:

January 25, 2018

CASE NO.:

17-064

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

Appellant:

Carlo Rizzo

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Refusal of a Development Permit Application to construct a 1.5 storey single dwelling, a driveway, and an on-site sewage disposal system

Reference No.:

P/R/2016-2017/465

Property Address/Description:

Part Lot 8, Concession 1, WHS

Municipality:

Town of Caledon

Upper Tier:

Region of Peel

NEHO Case No.:

17-064

NEHO Case Name:

Rizzo v. Ontario (Niagara Escarpment Commission)

Heard:

January 10, 2018 by telephone conference call

APPEARANCES:

Parties

Representative

Carlo Rizzo

Clare Riepma

Niagara Escarpment Commission

Sean Stewart

Participants

Donna Acton

Self-represented

David Bartlett

Self-represented

Fred Wipplinger

Self-represented

Janice James Barlow

Self-represented

George Barlow

Self-represented

David Pirie

Self-represented

Keith Carroll

Self-represented

Sharon Carroll

Self-represented

Carlo Dimitrio

Self-represented

ORDER DELIVERED BY MAUREEN CARTER-WHITNEY AND GRAHAM REMPE

REASONS

Background

1Carlo Rizzo (“Appellant”) wishes to build a house on a property owned by Antonio Rizzo at 3 Berney Drive in the Town of Caledon (“Property”). Antonio Rizzo already has a house on this Property. The proposal is to construct a second 1.5 storey detached house as well as a driveway and on-site sewage system on the Property.

2The Property falls within the Escarpment Rural Area designation of the Niagara Escarpment Plan (2017) (“NEP”). As such, a Development Permit is required. An application for a Development Permit (“Application”) was made to the Niagara Escarpment Commission (“NEC”) in March 2017. NEC staff did not support the Application. At its meeting of October 19, 2017, the NEC refused the Application on the basis of inconsistency with Parts 2.2.7 and 2.2.11 of the NEP, and lack of support from the Town of Caledon (“Town”) and the Region of Peel.

3The Appellant filed an appeal of the NEC’s refusal decision in accordance with s. 25 of the Niagara Escarpment Planning Development Act (“NEPDA”). This Order details the outcome from the Pre-hearing Conference (“PHC”) held as a first step in the appeal process.

4The PHC was held on January 10, 2018 by telephone conference call. Clare Riepma, a planner, attended on behalf of the Appellant, who did not appear himself. Sean Stewart, an NEC staff planner, attended on behalf of the NEC. The following nine area residents attended the PHC to request participant status as outlined below: Donna Acton, David Bartlett, Fred Wipplinger, Janice James Barlow, George Barlow, David Pirie, Keith Carroll, Sharon Carroll and Carlo Dimitrio (“area residents” or “participants”). Two additional individuals attended the PHC as observers.

5A preliminary issue discussed at the PHC was that of proper representation in a proceeding under the NEPDA. By-law No. 4, made under the Law Society Act, sets out the circumstances in which representatives are exempt from the licensing requirements for lawyers and paralegals in the Law Society Act. Mr. Riepma indicated that he understood this, and that it was not his intent to act as an advocate or provide legal representation at the PHC. The Hearing Officers proceeded on that basis, with the understanding that either the Appellant himself, or a representative who is licensed or exempt under the Law Society Act, will appear on behalf of the Appellant at the Hearing.

Issue

6The issue is whether the requests for participant status should be granted.

Relevant Rules

7The relevant Rules of Practice of the Environmental Review Tribunal (“Tribunal Rules”), which apply to proceedings under the NEPDA are:

63. In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether:

(a) a person's interests may be directly and substantially affected by the Hearing or its result;

(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and

(c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.

66. The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s would be. A person who may otherwise qualify as a Party may request Participant status.

67. A Participant in a Hearing may:

(a) be a witness at the Hearing;

(b) be questioned by the Parties;

(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;

(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant's interests; and

(e) attend site visits.

68. A Participant in a Hearing may not:

(a) raise issues that have not already been raised by a Party;

(b) call witnesses;

(c) cross-examine witnesses;

(d) bring motions;

(e) participate in a mediation, unless permitted to do so by the Tribunal; and

(f) claim costs or be liable for costs.

170. If the Tribunal requires the production of witness statements, the Parties and Participants shall serve those statements on each other and file them with the Tribunal within the time directed by the Tribunal, which is usually no later than 15 days before the commencement of the Hearing. Each witness statement shall include, where applicable:

(a) the name, address and telephone number of the witness;

(b) whether the evidence will be factual evidence or, if the witness is qualified, opinion evidence;

(c) a resume of the witness’ qualifications, where the witness is to give opinion evidence;

(d) a signed form in accordance with Form 5 in Appendix F, where the witness is to give opinion evidence;

(e) whether or not the witness has an interest in the application or appeal and, if so, the nature of the interest;

(f) a summary of the opinions, conclusions and recommendations of the witness;

(g) reference to those portions of other documents which form an important part of the opinions, conclusions and recommendations of the witness;

(h) a summary of answers to any interrogatories to or from other Parties that will be relied upon at the Hearing;

(i) where applicable, a discussion of proposed conditions of approval that are in controversy among the Parties or agreed upon conditions that may be related to issues in dispute;

(j) the date of the statement; and

(k) the signature of the witness.

Discussion, Analysis and Findings

8The submissions of the area residents seeking participant status were quite similar. They all live within the small subdivision in which the Property is located, in close proximity to the Property. All are concerned that the development will have an impact on their properties and that, if approved, the Application will set a precedent for future development in the area. There was no objection to their requests for status.

9During the PHC, the Hearing Officers granted participant status to the nine area residents. The Hearing Officers found that the area residents all satisfied the following considerations set out in Rule 63 of the Tribunal Rules: their interests may be directly and substantially affected by the Hearing or its result; they have a genuine interest in the subject matter of the proceeding; and they are likely to make a relevant contribution to the Hearing Officers’ understanding of the issues in the proceeding.

10The Hearing Officers convened a discussion of the issues to be addressed at, and the time required for, the Hearing. There is agreement that the issue at the Hearing will be whether the proposal is in accordance with the applicable provisions of the NEP, and in particular Parts 2.2.7 and 2.2.11 regarding second dwellings. Mr. Riepma advised that he and the Appellant will both testify, and that this should require less than one hour in total. Mr. Stewart similarly indicated that his evidence on behalf of the NEC should require less than one hour.

11The Hearing Officers noted that, based on the discussion at the PHC, approximately 30 minutes would be adequate time for each of the participants to put forward her or his views. The Hearing Officers encouraged the participants to consider the possibility of coordinating their efforts as far as possible, including appointing spokespersons to address common issues of concern, as this would assist in the efficient use of time during the Hearing.

12The Hearing Officers concluded that they were in a position to schedule the Hearing of this matter. The Hearing Officers determined that it would be prudent to schedule two days for the Hearing and April 9 and 11, 2018 were available as Hearing dates.

13Exchange of documents is to take place on or before March 9, 2018. Parties are to provide to all parties and participants any documents upon which they intend to rely at the Hearing, as well as a list of the witnesses that each party intends to call, a witness statement for each witness and, for expert witnesses, a curriculum vitae and any reports the witness seeks to submit as evidence. If a party intends to call an expert witness to provide opinion evidence, that witness must sign an Acknowledgement of Expert’s Duty Form (see Form 5 in Appendix F of the Tribunal Rules, Rule 170(d) and the Tribunal’s Practice Direction for Technical and Opinion Evidence) and the party must file it with the Niagara Escarpment Hearing Office (“NEHO”).

14Participants are to provide to all parties and participants a witness statement that includes a summary of the conclusions and recommendations of the witness, and reference to portions of documents which form an important part of their conclusions and recommendations, as set out in Rule 170(f) and (g) of the Tribunal Rules.

15On or before March 9, 2018, the parties and participants are to file with the NEHO an electronic copy and two hard copies of these documents to be relied on at the Hearing.

16The parties and participants 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

17The following are granted participant status in this proceeding: Donna Acton, David Bartlett, Fred Wipplinger, Janice James Barlow, George Barlow, David Pirie, Keith Carroll, Sharon Carroll and Carlo Dimitrio.

18The parties and participants are to exchange all documents to be relied upon at the Hearing, as set out above, on or before March 9, 2018. On the same day, all documents are to be filed with the NEHO electronically and in hard copy.

19The Hearing in this matter is to be held on April 9, 2018, commencing at 10 a.m., with a second day available on April 11, 2018 at:

Town Hall

Town of Caledon

6311 Old Church Road

Caledon, Ontario

Requests for Participant Status Granted

Procedural Directions Ordered

Hearing Scheduled

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

HEARING OFFICER

“Graham Rempe”

GRAHAM REMPE

HEARING OFFICER

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