Vincent v. Georgian Bay (Township), 2021 CanLII 119228

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 15, 2021

CASE NO(S).: PL210083

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: David and Theresa Vincent

Subject: Application amend Zoning By-law No. 14-75 - Refusal of Application by the Township of Georgian Bay

Existing Zoning: Six Mile Lake Residential ('SR6')

Proposed Zoning: Six Mile Lake Residential Exception Fifty-Eight ('SR6-58')

Purpose: To permit the replacement of the existing dwelling, with a larger dwelling

Property Address/Description: 34 Beverly Street

Municipality: Township of Georgian Bay

Municipality File No.: Z20-17, L21-01

OLT Case No.: PL210083

OLT File No.: PL210083

OLT Case Name: Vincent v. Georgian Bay (Township)

Heard: October 28, 2021 by video hearing ("VH")

APPEARANCES:

Parties David and Theresa Vincent ("Appellant/Applicant")

Counsel Scott R. Fairley

Parties Township of Georgian Bay ("Township")

Counsel Colin Léger

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON OCTOBER 28, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference ("CMC") respecting an appeal by the Appellants following the Township of Georgian Bay's refusal to grant their application for a Zoning By-law Amendment ("ZBA"). The purpose of the requested ZBA is to permit the replacement of an existing dwelling with a larger dwelling on their property at 34 Beverly Street.

2Five aspects of the existing by-law require amending to permit the construction, including as it relates to total maximum lot coverage, maximum lot coverage within 60 metres of the shoreline, maximum gross floor area, maximum width, and minimum front yard setback. The municipal record shows that the Township refused to pass the proposed ZBA despite it being supported by its planning staff.

Service of Notice of CMC

3There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.

Requests for Status

4No one was present at the CMC requesting either party or participant status.

MEDIATION AND SETTLEMENT

5The parties informed the Tribunal that they have been engaged in ongoing resolution discussions, and both parties described the prospects as being "cautiously optimistic". Just the same, the parties agreed that it would be best to set a hearing date and hope that a resolution could be reached in the meantime.

PROCEDURAL ORDER AND ISSUES LIST

6The parties drew the Tribunal's attention to a draft Procedural Order ("PO"), which was shared through the video hearing platform. The Tribunal found it to be satisfactory and complete, needing only revisions to reflect the eventual hearing dates. The Tribunal has since received a revised draft PO with hearing dates, finds it acceptable and the proceedings shall be governed by it (see Attachment 1).

HEARING

7Upon request of the parties, the Tribunal set a three-day hearing commencing on Tuesday, April 12, 2022 at 10 a.m. by VH. No further Notice is required for the hearing.

8Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/426121013

Access Code: 426-121-013

9Parties 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.

10Persons 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 as indicated above.

11Individuals 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 VH 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

12The Tribunal Orders that:

1. The date and particulars of the hearing are set out above;

2. The Procedural Order appended as Attachment 1 shall govern the proceedings;

3. The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

"K.R. Andrews"

K.R. ANDREWS

MEMBER

Ontario Land Tribunal

Website: www.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.

PL210083 – Attachment 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: David and Theresa Vincent

Subject: Application amend Zoning By-law No. 14 - 75 - Refusal of Application by the Township of Georgian Bay

Existing Zoning: Six Mile Lake Residential ('SR6')

Proposed Zoning: Six Mile Lake Residential Exception Fifty-Eight ('SR6-58')

Purpose: To permit the construction of a replacement dwelling with the site-specific provisions

Property Address/Description: 34 Beverly Street

Municipality: Township of Georgian Bay

Municipality File No.: Z20-17, L21-01

OLT Case No.: PL210083

OLT File No.: PL210083

OLT Case Name: Vincent v. Georgian Bay (Township)

PROCEDURAL ORDER

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 (the "Hearing") will begin on April 12, 2022 at 10 a.m., as follows:

GoTo Meeting: https://global.gotomeeting.com/join/426121013

Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373

Access Code: 426-121-013

3. The parties' initial estimation for the length of the hearing is 3 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 at the case management conference are set out in Attachment 1 (see Attachment 4 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.

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.

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 February 16, 2022 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 26, 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 March 3, 2022.

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 outline of the witness' evidence, as in paragraph 13 below.

13. On or before March 5, 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.

14. On or before March 5, 2022, 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 April 2, 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.

16. 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.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before April 2, 2022.

18. 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 April 9, 2022.

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 party notifies the Tribunal at least April 5, 2022 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 April 2, 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 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.

23. 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.

Summary of Key Dates

Date | Hearing Event February 16, 2022 | Deadline to exchange expert witness list February 26, 2022 | Meeting of like experts March 3, 2022 | Exchange and file Agreed Statement of Facts March 5, 2022 | Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons March 5, 2022 | Exchange of Participant Statements April 2, 2022 | Hearing Plan April 2, 2022 | Exchange of Visual Evidence April 2, 2022 | Provide joint document book to Case Coordinator April 5, 2022 | Notification to Tribunal and Parties if witness not to provide oral evidence April 9, 2022 | Provide documents for cross-examination April 12, 2022 | Hearing start date

ATTACHMENT 1

PARTIES AND PARTICIPANT

PARTIES | COUNSEL

1. David and Theresa Vincent | Dooley Lucenti, LLP
   10 Checkley Street
   Barrie, ON L4N 1W1
   Scott Fairly
   Email: SFairley@dllaw.ca
   Tel: (705) 792-7963 ext. 111
2. Township of Georgian Bay | Garrod Pickfield LLP
   9 Norwich Street, W.
   Guelph, ON N1H 2G8
   Colin Léger
   Email: cleger@garrodpickfield.ca
   Tel: (519) 837-0500

ATTACHMENT 2

ISSUES LIST

1. Does the proposed Zoning By-law amendment conform to the District of Muskoka Official Plan, including policies C2.6.4.2 a), C2.6.4.2 c), C2.6.4.2 f) and J4.3 g)?

2. Does the proposed Zoning By-law amendment conform to the Township of Georgian Bay Official Plan, including the following policies:

a. policy A.2.2.6;

b. policy F.1.2, specifically policies F.1.2.3, F.1.2.4, and F.1.2.5;

c. policies F.1.3.1 and F.1.3.2;

d. policy F.3.2.1.1 and policy F.3.2.1.2;

e. policy F.5.9.1.1;

f. policy F.5.9.3, specifically policies F.5.9.3.1, F.5.9.3.2, F.5.9.3.3, F.5.9.3.4, and F.5.9.3.6;

g. policy F.5.9.7, specifically policies F.5.9.7.1, F.5.9.7.2, F.5.9.7.3, and F.5.9.7.4;

h. policy F.5.9.10, specifically policies F.5.9.10.1 and F.5.9.10.2;

i. policy F.5.9.13.4;

j. policy I.3.5.1.1; and

k. policy D.2.2.4.2 and policy D.2.2.4.3?

3. Does the proposed Zoning By-law amendment sufficiently regulate matters of built form including setbacks, lot coverage, dwelling size, dwelling width and landscaping, having regard for the site, adjacent property and the character of the surrounding lands?

4. Should a Holding Zone Symbol be applied to the Subject Lands and, if so, what conditions should be required in order to remove the Holding Zone Symbol in the future?

5. Does the proposed Zoning By-law amendment represent good planning?

ATTACHMENT 3

ORDER OF EVIDENCE

1. David and Theresa Vincent (Applicants/Appellants)

2. Township of Georgian Bay (Municipal Authority)

3. Reply by David and Theresa Vincent (Applicants/Appellants)

ATTACHMENT 4

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.