965 Chemong Road Investments Inc. v. Peterborough (City), 2021 CanLII 109389

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 26, 2021

CASE NO.: PL210115

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: 965 Chemong Road Investments

Subject: Site Plan

Property Address/Description: 965 Chemong Rd

Municipality: City of Peterborough

LPAT Case No.: PL210115

LPAT File No.: PL210115

LPAT Case Name: 965 Chemong Road Investments Inc. v. Peterborough (City)

BEFORE:

M. RUSSO MEMBER Tuesday, the 26th day of October, 2021

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on Tuesday, February 1, 2022.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

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.

ATTACHMENT “A”

PROCEEDING COMMENDED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant(s)/Appellant(s): 965 Chemong Road Investments Inc.

Subject: Application for a site plan amendment – council failed to make a decision within 30 days

Property Address/Description: 971 Chemong Rd

Municipality: City of Peterborough

OLT Case No.: PL210115

OLT File No.: PL210115

OLT Case Name: 965 Chemong Road Investments Inc. v. Peterborough (City)

1. The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

2. The hearing will begin on Tuesday, February 1, 2022 at 10:00 a.m. by video conference, which can be accessed by:

https://global.gotomeeting.com/join/412531597

Toll-Free 1-888-455-1389 or +1 (647) 497-9391 Access Code: 412-531-597

3. The length of the hearing will be about four (4) days. The length of the hearing may be shortened as issues are reordered as settlement is achieved. The procedural order deadlines are found in Attachment 1.

4. The parties and participants identified at the case management conference are set out in Attachment 2.

5. The issues are set out in the Issues List attached as Attachment 3. 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.

6. The order of evidence shall be as set out in Attachment 4 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 consent or by Order of the Tribunal.

7. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

8. 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.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the municipal clerk a list of the witnesses and the order in which they will be called. This list must be delivered on or before November 26, 2021. 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 on or before November 26, 2021.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 and the municipal Clerk.

11. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed, shall be made by motion in accordance with the Tribunal's Rules and notice of the same must be served on the other Parties on or before December 6, 2021.

12. On or before December 22, 2021, the parties shall provide copies of their witness and expert witness statements to the other parties and to the municipal Clerk of Peterborough.

13. 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 section [12]. 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.

14. 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 section [12]. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section [12].

15. On or before January 18, 2022, the parties shall provide copies of their visual evidence to all of the other parties. 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 file with the Clerk a written response to any written evidence within seven (7) days after the evidence is received.

17. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.

18. The parties shall prepare and file a hearing plan with the Tribunal on or before January 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.

19. 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 party notifies the Tribunal at least seven (7) days before the hearing that the written evidence is not part of their record.

20. All filing of documents and materials shall be electronic to the Tribunal and the Parties. 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 email shall be governed by Rule 7 of the Ontario Land Tribunal Rules of Practice and Procedure. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. Section 21 applies regardless if the hearing event is in-person or electronic.

21. 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.

22. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

Summary of Dates

Date Event

Friday, November 26, 2021 (67 days prior to hearing)

• Exchange of Witness Lists (names, disciplines and order to be called)
• Experts meeting prior to this date

Monday, December 6, 2021 (57 days prior to hearing)

• Last date to challenge Witnesses

Wednesday, December 22, 2021 (41 days prior to hearing)

• Exchange of Witness and Expert Witness Statements
• Exchange of Participant Statements

Friday, January 14, 2022 (18 days prior to hearing)

• Final Draft Hearing Plan filed with Tribunal

Monday, January 17, 2022 (15 days prior hearing)

• Exchange of visual evidence (if any)

Tuesday, February 1, 2022

• Hearing commences

Attachment 2

Parties:

965 Chemong Road Investments Inc. Fogler, Rubinoff LLP 77 King Street West, Suite 3000 Toronto ON M5K 1G8 Joel Farber Tel: (416) 365-3707 Email: jfarber@foglers.com

City of Peterborough 500 George Street North Peterborough, ON Canada K9H 3R9 Alan Barber Tel: (705) 742 7777 x 1897 Email: abarber@peterborough.ca

Participants:

[N/A]

Attachment 3

NOTE 1: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT at the hearing will be a matter of evidence and argument at the hearing.

NOTE 2: This issues list is the product of collaboration amongst the parties. Each of the issues set out below are shared by all of the parties. The resolution of any one issue must be confirmed by each party prior to the removal of such issue from the issue list.

This appeal pertains to a Site Plan Amendment submitted to the City of Peterborough on November 17, 2020. This appeal includes the following issues:

Issue(s) of the City of Peterborough:

1. Is the Appellant entitled to seek an amendment to its existing Site Plan Agreement – namely the deletion of the requirement for the Appellant to provide a cross access to the land parcel immediately to the south (959 Chemong Road)?
2. Does it constitute good planning for the City of Peterborough to require the Appellant to continue to provide a cross access connecting the 971 Chemong Road to 959 Chemong Road?

Issue(s) of 965 Chemong Road Investments Inc. (the "Appellant"):

1. Was it appropriate and/or lawful for the City of Peterborough to require the Appellant to provide a cross access connecting the subject property to the parcel immediately to the south ("959 Chemong Road"), as a condition for approval of the original site plan?
2. If the City was not lawfully entitled to require the establishment of the cross access as part of the original site plan approval for 971 Chemong Road (the Shoppers Drug Mart development) under its s.41 site plan approval powers, then is it able to continue to insist upon the inclusion of the cross access requirement in the face of an application to delete the requirement?
3. Has the Appellant satisfied the requirements of plans and drawings under section 41(4) of the Planning Act, R.S.O. 1990, c. P.13, as amended, for the approval of an amendment to the original site plan?
4. Is it appropriate and/or lawful, as a condition of approval of the amended site plan, for the City of Peterborough to require the Appellant to continue to provide a cross access connecting the subject property to 959 Chemong Road?
5. Does the existing use of the cross access by owner/occupant of 959 Chemong Road for commercial vehicles and for drive thru stacking result in an unacceptable adverse impact upon the Appellant?
6. Was the use of the cross access by owner/occupant of 959 Chemong Road for commercial vehicles and/or for drive thru stacking ever contemplated as part of the development approvals for the current development at 959 Chemong Road?
7. Does the existing use of the cross access by owner/occupant of 959 Chemong Road constitute an improper and unplanned use of the access contemplated in the initial site plan agreement and if so, is the Appellant permitted to close the cross access as proposed in the amended site plan?

Attachment 4

Order of Evidence

1. 965 Chemong Road Investments Inc. (Applicant/Appellant).
2. The City of Peterborough.
3. 965 Chemong Road Investments Inc. (Applicant/Appellant), in reply.

Attachment 5

Purpose of the Procedural Order and Meaning of Terms

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 authorization 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, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as parties can.

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party 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 intends to present as evidence at the hearing.

Witness Statements:

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 the witness 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 the expert’s (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 will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

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.