Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 26, 2021

CASE NO(S).: PL200625

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Parkbridge Lifestyle Communities

Subject: By-law No. 105-2020

Municipality: Town of Fort Erie

OLT Case No.: PL200625

OLT File No.: PL200625

OLT Case Name: Parkbridge Lifestyle Communities v. Fort Erie (Town)

Heard: October 6, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
Parkbridge Lifestyle Communities ("Appellant")	Annik Forristal
2639723 Ontario Inc. ("Applicant")	Thomas Richardson
Town of Fort Erie ("Town")	Thomas Hanrahan

MEMORANDUM OF ORAL DECISION DELIVERED BY A. CORNACCHIA ON OCTOBER 6, 2021 AND ORDER OF THE TRIBUNAL

1A second Case Management Conference ("CMC") for this case, held by Video Hearing ("VH") on the identified date.

2The Appellant, the owner of an adjacent property, appeals the Zoning By-law Amendment ("ZBLA") under s. 34(19) of the Planning Act ("Act") permitting a gas bar use on the property located at 0 Townline Road, Douglastown, Ontario ("Subject Property").

3The current ZBLA permits the development of a restaurant with a drive-thru and a convenience store on the Subject Property but does not permit use of the property for a gas bar. The original application for a ZBLA was filed with the Town to permit the use of the Subject Property for a gas bar for passenger vehicles and a commercial refueling station for trucks. During the ZBLA application process, the ZBLA application was amended to drop the proposed use of a commercial refueling station.

4The Town Council passed the amended ZBLA on October 19, 2020, permitting the gas bar use, which included the following text:

Discussion at these meetings focused on the adequacy of a private sanitary sewer system and a pumping station that will service the subject property. The Applicant/Agent and the property owner of the nearby Black Creek Retirement Community who owns the private sanitary sewer system will collaborate at the site plan control phase to ensure there is sufficient access and capacity for the proposed development.

5The Appellant owns the land adjacent to the Subject Property where the private sanitary sewer system is located. A sewage servicing agreement covering the Subject Property is registered against title to the Appellant’s lands. The scope of the sewage servicing agreement is in dispute between the Appellant and the Applicant, who is the owner of the Subject Property. The Appellant appealed the ZBLA under s. 34(19) of the Act based on the inconsistency with the current Provincial Policy Statement and failure to conform with the Official Plan due to issues related to servicing the Subject Property with adequate sewage disposal facilities from the Appellant’s property.

6The parties submitted a draft procedural order for review and approval by the Tribunal prior to this CMC. The CMC dealt with the following matters:

1. Update from the parties on settlement discussions and possible mediation;
2. Review and Approval of the Draft Procedural Order ("PO"); and,
3. Scheduling a further CMC.

7Counsel for the parties advised that settlement discussions are progressing but have not concluded yet. They do not believe that Tribunal-assisted mediation would be helpful at this time. Counsel was directed to contact the Case Coordinator if they wish to engage in Tribunal-assisted mediation.

8The Draft PO was approved subject to revisions to paragraphs 2 and 23. These paragraphs will read as follows:

2. The video hearing will begin on March 7, 2022 at 10:00 a.m.

3. A further case management conference shall be held on Monday, January 10, 2022 at 10:00 a.m.

(collectively "PO Amendments")

9Mr. Richardson will submit the final version of the PO including the PO Amendments for approval by the Tribunal within two weeks of the date of this CMC.

10On October 18, 2021 following the hearing, Mr. Richardson’s firm submitted to the Tribunal the revised version of the PO with the PO Amendments which is attached as Appendix A.

11The parties requested that the Tribunal schedule a further CMC to permit a report to the Tribunal regarding the status of settlement discussions. If the parties are successful in settling this case, they will submit a further amended PO to facilitate a settlement hearing and adjust the calendar for the currently scheduled merits hearing.

ORDER

12THE TRIBUNAL ORDERS that:

1. The Procedural Order is approved subject to the Procedural Order Amendments.
2. The Procedural Order attached as Appendix A is hereby approved.
3. A further Case Management Conference is scheduled on Monday, January 10, 2022 at 10 a.m. by Video Hearing.

13Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/920439341

Access code: 920-439-341

14Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

15Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll Free) 1 (888) 299-1889. The access code is 920-439-341.

16Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

17There will be no further notice.

18I am not seized.

19Scheduling permitting, the Member may be available for case management purposes.

"A. Cornacchia"

A. CORNACCHIA MEMBER

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

APPENDIX A

ONTARIO LAND TRIBUNALS PROCEDURAL ORDER

CASE NO. PL200625

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c.P.13, as amended

Appellant: Parkbridge Lifestyle Communities Subject: By-law No. 105-2020 Municipality: Town of Fort Erie LPAT Case No.: PL200625 LPAT File No.: PL200625

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on March 7, 2022 at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified in the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it. The parties may agree to remove issues as resolved without exposure to costs.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal 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 the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website https://olt/gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and 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 January 10, 2022 (date – 55 days prior to the hearing date) and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before February 4, 2022 (date) and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and issues with the LPAT case co-ordinator on or before February 18, 2022 (date – at least 15 days prior to the start of the hearing).

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. 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 Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outlie of the witness’ evidence, as in paragraph 13 below.

13. On or before January 28, 2022 (date – a minimum of 38 days before the hearing date), the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the LPAT case co-ordinator and in accordance with paragraph 22 below.

14. On or before January 28, 2022 (date – a minimum of 38 days before the hearing date), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before February 22, 2022 (date), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the LPAT case co-ordinator a written response to any written evidence within 14 days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the LPAT case co-ordinator on or before February 7, 2022 (date – no later than 10 days prior to the hearing).

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be filed with the Tribunal and the Parties the morning of the cross-examination and be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the parties notify the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 14, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filing with the Tribunal shall be electronic and in hard copy. Copies of documents served upon the parties shall be electronic only. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

23. A further case management conference shall be held on Monday, January 10, 2022 at 10 a.m. in order to address any outstanding matters prior to the commencement of the hearing.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

Meaning of terms used in the Procedural Order:

Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this. A participant is an individual, group or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Subsection 33.2 of the Local Planning Appeal Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission. A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

The order of examination of witnesses: is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.

ATTACHMENT 1

PARTIES AND PARTICIPANTS

Parties

1. 2639723 Ontario Inc. ("Applicant")
2. Town of Fort Erie ("Town")
3. Parkbridge Lifestyle Communities ("Appellant")

Participants

ATTACHMENT 2

ISSUES LIST

1. Does the proposed development have regard to matters of provincial interest, including Subsections 2 (e), (f), (h) (n), (o), (p) and (s) of the Planning Act?
2. Is the proposed development consistent with the purposes of the Planning Act as set out in Section 1.1 (a) and (e) of the Planning Act?
3. Is the proposed development consistent with the Provincial Policy Statement (2020) (the "PPS") including Subsections 1.6.6.1, 1.6.6.2, 1.6.6.3, 1.6.6.6, 1.6.6.7 and 3.0?
4. Does the proposed development conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019) (the "Growth Plan") including Subsections 3.2.7 and 3.2.8?
5. Does the proposed development have appropriate regard for and maintain the intent and purpose of the Region of Niagara Official Plan?
6. Does the proposed development have appropriate regard for and maintain the intent and purpose of Official Plan of the Town of Fort Erie?
7. Has the servicing capacity been adequately studied to confirm that it is capable to accommodate the proposed development?
8. Have the potential negative environmental impacts of transporting sewage from a commercial land owner’s property through easements over a private land owner’s residential property been appropriately studied and addressed?
9. Is it appropriate for a commercial development proposal to be serviced through easements over private residential lands and does the proposed servicing solution through private residential lands represent good land use planning consistent with the PPS and the Growth Plan?
10. Does the proposed development and in particular the servicing solution represent good land use planning and urban design having regard to the provincial and municipal policy framework identified in this issues list:
11. If approved by the Tribunal, are the form and content of the proposed Zoning By-law Amendment appropriate? Should an "H" be placed on the property until an appropriate servicing solution is achieved?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 2639723 Ontario Inc. ("Applicant")
2. Town of Fort Erie ("Town")
3. Parkbridge Lifestyle Communities ("Appellant")
4. Reply by 2639723 Ontario Inc. or Town of Fort Erie