Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
November 18, 2021
CASE NO(S).:
PL210249
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
2394735 Ontario Inc.
Subject:
Proposed Plan of Subdivision - Failure of the County of Peterborough to make a decision
Purpose:
To facilitate the development of 16 building lots in conjunction with shared common element (open space) blocks, a private road and docking areas.
Property Address/Description:
Part of Lot 17 & 18 Concession 14
Municipality:
Trent Lakes
Municipality File No.:
15T-16004
OLT Case No.:
PL210249
OLT File No.:
PL210249
OLT Case Name:
2394735 Ontario Inc. v. Trent Lakes (Municipality)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
2394735 Ontario Inc.
Subject:
Application to amend Zoning By-law No. Trent Lakes Zoning By-law No. B2014-070 - Refusal or neglect of Municipality of Trent Lakes to make a decision
Existing Zoning:
Rural/Shoreline Residential
Proposed Zoning:
Site Specific (To be determined)
Purpose:
To facilitate the development of 16 building lots in conjunction with shared common element (open space) blocks, a private road and docking areas.
Property Address/Description:
Part of Lot 17 & 18 Concession 14
Municipality:
Trent Lakes
Municipality File No.:
17-05
OLT Case No.:
PL210249
OLT File No.:
PL210321
Heard:
October 18, 2021 by video hearing
APPEARANCES:
Parties
Counsel
2394735 Ontario Inc. (“Appellant”)
Christine Carter
Municipality of Trent Lakes
John Ewart
MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL ON OCTOBER 18, 2021 AND ORDER OF THE TRIBUNAL
1This is the first Case Management Conference (“CMC”) conducted with respect to the Appeals from 2394735 Ontario Inc. (“the Appellant”) pursuant to s. 51(34) and s. 34(11) of the Planning Act against the Municipality of Trent Lakes’ failure to make a decision within the statutory time frames regarding the Appellant’s proposed Plan of Subdivision, Plan of Condominium and Zoning By-law Amendment.
2The Subject Lands are located on the north shore of Pigeon Lake, in an area know as Buffalo Bay and form part of a larger holding. The legal description is Part of Lot 17 & 18, Concession 14, Geographic Township of Harvey, and the Municipality of Trent Lakes.
3The lands proposed for subdivision and rezoning have a total lot area of approximately 59 acres with a shoreline frontage of approximately 2,300 feet.
Requests for Party and Participant Status.
4Prior to the CMC, one formal request for Participant status was received from Audrie Raye Pascoe, expressing her concerns regarding the proposed development.
5Cheryl Curtis was present at the CMC and advised the Tribunal that she had sent in a request for Party status, which was later confirmed by the Case Coordinator. When Ms. Curtis was made aware of the requirements for Party status under Rule 8.1 of the Tribunal’s “Rules of Practice and Procedure”, she revised her request to Participant status.
6Jim McClelland was also present at the CMC and expressed an interest in being a Participant. He told the Tribunal that he did not understand exactly what was being adjudicated at this Hearing. The Tribunal explained that today’s CMC was intended to organize the Procedural Order (“PO”) and Issues List to prepare for the upcoming Hearing, but that the merits of the proposed development would not be reviewed at this time.
7Arrangements were made with the County of Peterborough’s Manager of Planning to provide Mr. McClelland with background information on the proposed development, so that he could decide whether to submit a Participant request form to the Case Coordinator
8Subsequent to the CMC, the Tribunal received a Participant Request Form from Mr. McLelland outlining his concerns regarding the proposed development.
9On the basis of the submissions by Ms. Pascoe, Ms. Curtis and Mr. McLelland, the Tribunal is prepared to grant Participant status to all three individuals. Ms. Curtis should reach out to the Case Coordinator to revise her request from Party to Participant status.
Procedural Order and Issues List
10Ms. Carter advised the Tribunal that a draft Procedural Order and Issues List had been forwarded to Mr. Ewart. The final draft has not been resolved as yet, but both Parties agreed that the issue may ultimately be narrowed down to one legal issue.
11The Parties agreed to work cooperatively and submit a PO and Issues List on consent to the Tribunal within a week.
The Hearing
12Both Parties consented to a two-day Hearing, based on the number of anticipated witnesses.
13The Hearing is scheduled to proceed by video conference on Thursday, February 17, 2022 at 10 a.m. for a total of two (2) days.
14Parties 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/638446325Access code: 638-446-325
15Parties 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.
16Persons 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: (Toll Free): 1-888-299-1889 or +1 (647) 497-9373. The access code is 638-446-325.
17Individuals 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.
ORDER
18The Tribunal grants Participant status to Ms. Pascoe, Ms Curtis and Mr. McClelland.
19A PO was finalized and received by the Tribunal shortly after this CMC and is attached as Schedule 1. As such, it is in full force and effect.
20Should a settlement be reached through mediation, the Case Co-Ordinator should be advised in advance of the Hearing.
21The Member is not seized and is available for case management, schedule permitting.
22No further notice will be given.
“T. Prevedel”
T. PREVEDEL
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.
SCHEDULE 1
ISSUE DATE:
CASE NO(S).: PL210249
PROCEEDINGS COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P13, as amended
Applicant(s)/Appellant(s): 2394735 Ontario Inc.
Subject: Proposed Plan of Subdivision-Failure of the County of Peterborough
Purpose: To facilitate the development of 16 building lots in conjunction with shared common element
(open space)
Property Address/Description: Part of Lot 17 & 18 Concession 14
Municipality: Trent Lakes
Municipal File No. 15T16004
OLT Case No.: PL201249
OLT File No. PL210249
OLT Case Name: 2394735 Ontario Inc. v. Trent Lakes (Municipality)
PROCEEDINGS COMMENCED UNDER subsection 34 (11) of the Planning Act, R.S.O. 1990, c. P13, as amended
Applicant(s)/Appellant(s): 2394735 Ontario Inc.
Applicant and Appellant:
2394735 Ontario Inc.
Subject:
Application to amend Zoning By-law No. Trent Lakes Zoning By-law No. B2014-070 - Refusal or neglect of Municipality of Trent Lakes to make a decision
Existing Zoning:
Rural/Shoreline Residential
Proposed Zoning:
Site Specific (To be determined)
Purpose:
To facilitate the development of 16 building lots in conjunction with shared common element (open space) blocks, a private road and docking areas.
Property Address/Description:
Part of Lot 17 & 18 Concession 14
Municipality:
Trent Lakes
Municipality File No.:
17-05
LPAT Case No.:
PL210249
LPAT File No.:
PL210321
- 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
The video hearing will begin on February 17, 2022 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is 2 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.
The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
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 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.
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.
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.
Requirements Before the Hearing
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 December 15, 2021 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.
Expert witnesses in the same field shall have a meeting on or before February 1, 2022 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 OLT case coordinator on or before February 11, 2022.
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.
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 outline of the witness’ evidence, as in paragraph 13 below.
On or before January 15, 2022, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 22 below.
On or before December 15, 2021, 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.
On or before February 11, 2022 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.
Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before February 4, 2022.
Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case coordinator, on or before February 4, 2022.
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.
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 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 4, 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.
All filings shall be submitted electronically and in hard copy. 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 the Rule 7.
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.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
Attachment to Sample Procedural Order
Meaning of terms used in the Procedural Order:
A 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. An unincorporated group cannot be a party and 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 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). Section 17 of the Ontario Land 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 a list of reports or materials 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 supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
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.```