Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
November 24, 2021
CASE NO(S).:
PL210113
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Shore Developments Ltd.
Subject:
Request to amend the Official Plan - Failure of Norfolk County to adopt the requested amendment
Existing Designation:
Urban Waterfront, Urban Residential, Lakeshore Special Policy Area, Lynn River/Black Creek Special Policy Area, Hazard Land
Proposed Designated:
No Change Proposed
Purpose:
To permit sole residential uses, apartments up to a maximum of eight storeys, and the continuation of existing uses on the subject lands
Property Address/Description:
225 and 230 Chapman Street East and 2 Lynn Street
Municipality:
Norfolk County
Approval Authority File No.:
OPNPL2019014
OLT Case No.:
PL210113
OLT File No.:
PL210113
OLT Case Name:
Shore Developments Ltd. vs. Norfolk (County)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Shore Developments Ltd.
Subject:
Application to amend Zoning By-law No. (1-Z-2014) - Neglect of Norfolk County to make a decision
Existing Zoning:
Marine Commercial (CM) and Hazard Land (HL) zone
Proposed Zoning:
Urban Residential Type 6 (R6) Zone with special provisions, and Urban Residential Type 4 (R4) with special provisions
Purpose:
To permit the development of townhouses, stacked townhouse and apartment dwellings on the subject lands
Property Address/Description:
225 and 230 Chapman Street East and 2 Lynn Street
Municipality:
Norfolk County
Municipality File No.:
ZNPL202019
OLT Case No.:
PL210113
OLT File No.:
PL210114
Heard:
November 22, 2021 by telephone conference call
APPEARANCES:
Parties
Counsel
Shore Developments Ltd.
Steven Ferri and Mandy Ng
County of Norfolk
Peter Tice
Long Point Region Conservation
Peter Tice
Authority
DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL
1The Tribunal convened a telephone conference call (“TCC”) with respect to appeals by Shore Developments Ltd. (“Appellant”) against the failure of Norfolk County (“County”) to make decisions on applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBLA”) in respect of the properties known municipally as 2 Lynn Street as well as 230 and 225 Chapman Street East, in Port Dover.
2The amendments, if approved, would permit the development of an apartment building up to eight storeys as well as a number of residential townhouse dwellings.
3The purpose of this TCC was for the parties to provide an update to the Tribunal on the road closing procedure which was before County Council and for the Tribunal to consider any further requests for participant status.
4The parties advised that they are currently pursuing discussions aimed at resolving the appeal or at least scoping the issues. Peter Tice, counsel for the County and the Long Point Region Conservation Authority indicated he had only recently assumed carriage of the file and was not in a position to provide an update on the matter respecting the road at this time.
5In light of the foregoing, the parties requested a subsequent TCC, which the Tribunal scheduled for Friday, December 17, 2021 at 9 a.m. Individuals are directed to call 416-212-8012 or Toll-Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call.
6It is the responsibility of the person(s) participating in the call to ensure they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case.
Participant request
7The Tribunal received a written request for participant status from Richard and Doug Gamble, who are the executors of Harry Gamble’s Estate and are represented by Michael Valente. Neither the Gambles nor their representative attended the TCC to speak to the request. On the consent of the parties, should someone appear to speak to this request, the Tribunal will consider it at the December 17, 2021 TCC, if necessary.
REVISIONS TO THE PROCEDURAL ORDER
8A phased hearing has already been scheduled and a Procedural Order (“PO”) to govern the proceedings was previously submitted by the parties and approved by the Tribunal.
9As Counsel for the County and the Conservation Authority recently received carriage of the file, Mr. Tice requested an extension for the filing of the Issues List from November 30, 2021 to December 16, 2021. Counsel for the Appellant consented to the request and the Tribunal accordingly made the revision to the PO (see Attachment 1). No further extensions will be granted without consent or a formal written motion.
10At page 13 of the PO, the representative for the Port Dover Waterfront Preservation Association (“Association”) is erroneously listed as Jim Dover. Margaret Creighton is the correct representative for the Association and on the consent of the parties, the Tribunal accordingly revised the PO (see Attachment 1).
Other matters
11The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The parties indicated there were none.
ORDER
12A TCC is scheduled for Friday, December 17, 2021 at 9 a.m.
13A phased hearing shall proceed as previously scheduled and shall be governed by the revised Procedural Order appended to this Order as Attachment 1.
14There will be no further notice and this Member is not seized, but may be available for case management should scheduling permit.
“S. Braun”
s. braun
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.
PL210113 – Attachment 1
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Shore Developments Ltd.
Subject:
Request to amend the Official Plan - Failure of Norfolk County to adopt the requested amendment
Existing Designation:
Urban Waterfront, Urban Residential, Lakeshore Special Policy Area, Lynn River/Black Creek Special Policy Area, Hazard Land
Proposed Designated:
No Change Proposed
Purpose:
To permit sole residential uses, apartments up to a maximum of eight storeys, and the continuation of existing uses on the subject lands
Property Address/Description:
225 and 230 Chapman Street East and 2 Lynn Street
Municipality:
Norfolk County
Approval Authority File No.:
OPNPL2019014
OLT Case No.:
PL210113
OLT File No.:
PL210113
OLT Case Name:
Shore Developments Ltd. vs. Norfolk (County)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Shore Developments Ltd.
Subject:
Application to amend Zoning By-law No. (1-Z-2014) - Neglect of Norfolk County to make a decision
Existing Zoning:
Marine Commercial (CM) and Hazard Land (HL) zone
Proposed Zoning:
Urban Residential Type 6 (R6) Zone with special provisions, and Urban Residential Type 4 (R4) with special provisions
Purpose:
To permit the development of townhouses, stacked townhouse and apartment dwellings on the subject lands
Property Address/Description:
225 and 230 Chapman Street East and 2 Lynn Street
Municipality:
Norfolk County
Municipality File No.:
ZNPL202019
OLT Case No.:
PL210113
OLT File No.:
PL210114
Procedural Order
- 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
- This matter shall proceed in a phased manner. The video hearing for phase 1 of the hearing will begin on Wednesday, January 26, 2022 at 10 a.m. by using this link:
GoTo Meeting: https://global.gotomeeting.com/join/207959925
Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373
Access Code: 207-959-925
The video hearing for phase 2 of the hearing will begin on Monday, June 6, 2022 at 10 a.m. by using this link:
GoTo Meeting: https://global.gotomeeting.com/join/706706925
Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373
Access Code: 706-706-925
The parties’ initial estimation for the length of phase 1 of the hearing is 3 days. The parties’ initial estimation for the length of phase 2 of the hearing is 7 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.
A subsequent Case Management Conference will be held on Friday, December 17, 2021 at 9 a.m. via telephone call conference. Individuals are directed to call 416-212-8012 or Toll-Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call.
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 for phase 1 are set out in the Issues List attached as Attachment 2. There will be no changes to the phase 1 issues 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
On or before November 30, 2021, Norfolk County shall provide a written update to Shore Developments Ltd.’s request to close, convey, and replace a road allowance (i.e. part of Bridge Street and part of Lynn Street).
The parties shall cooperate to prepare a list of issues for phase 2 of the hearing on or before December 16, 2021 and provide same to the Tribunal. Revisions to the list of issues for phase 2 arising from (i) a decision issued respecting Phase 1 of the Hearing; (ii) a decision made by the County in respect of Shore Developments Ltd.’s request to close, convey, and replace a road allowance; and/or (iii) any amendments by the applicant to the proposed official plan amendment and/or zoning by-law amendment made after November 1, 2021, shall be provided to the OLT Case Coordinator and the other parties on or before Monday, March 28, 2022 (70 days prior to the start of hearing date). The final issues list shall be reproduced in Attachment 2.
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 for phase 1 of the hearing on or before Monday, December 27, 2021 (30 days prior to the start of the hearing) and for phase 2 of the hearing on or before Thursday, April 7, 2022 (60 days prior to the start of the hearing). 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. In phase 2 of the hearing only, any challenges to the qualifications of a witness to give opinion evidence in the area of expertise proposed should be made by motion in accordance with the Tribunal’s Rules of Practice and Procedure, and notice of same must be served on the other Parties on or before Monday, April 18, 2022 (49 days prior to the start of the hearing) in which case a further Case Management Conference shall be scheduled as soon as possible after motion materials are filed or, if a date is not available, the matter shall be addressed at the commencement of the hearing.
For phase 2 of the hearing Expert witnesses in the same field shall have two meetings, the first being on or before Friday, February 25, 2022 (101 days prior to the start of the hearing) and the second being on or before Friday, May 6, 2022 (31 days prior to the start of the hearing) and use best efforts to try to resolve or reduce the phase 2 issues. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, May 20, 2022 (17 days prior to the start of the hearing).
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 16 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same as the delivery of expert witness statements, as in paragraph 16.
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 17 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 16 below.
On or before Thursday, January 6, 2022 (20 days prior to the start of the hearing) for phase 1 of the hearing and on or before Friday, April 22, 2022 (45 days prior to the start of the hearing) for phase 2 of the hearing, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT Case Coordinator.
On or before Thursday, January 6, 2022 (20 days prior to the start of the Phase 1 hearing), and on or before Thursday, April 7, 2022 (60 days prior to the start of the Phase 2 hearing), a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
The parties shall provide copies of their visual evidence to all of the other parties on or before Monday, January 17, 2022 (9 days prior to the start of the hearing) for phase 1 of the hearing, and on or before Monday, May 23, 2022 (14 days prior to the start of the hearing) for phase 2 of the hearing. 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 ten (10) days after the evidence is received for phase 1 of the hearing and within twenty (20) days after the evidence is received for phase 2 of the hearing.
The parties shall cooperate to prepare a joint document book for phase 2 of the hearing which shall be shared with the OLT Case Coordinator on or before Friday, May 27, 2022 (10 days prior to the start of the hearing).
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, and are encouraged to be provided on or before Tuesday, January 25, 2022 (1 day prior to the start of the Phase 1 hearing), and on or before Friday, June 3, 2022 (3 days prior to the start of the Phase 2 hearing).
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal unless such change is made with the consent of all parties.
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 for phase 1 and 2 of the hearing with the Tribunal on or before Friday, January 21, 2022 (5 days before the start of the Phase 1 hearing), and on or before Wednesday, June 1, 2022 (5 days before the start of the Phase 2 hearing), 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.
ATTACHMENT 1
list of parties and participants
PARTIES
COUNSEL
Shore Developments Limited
Loopstra Nixon LLP 135 Queens Plate Drive, Suite 600 Toronto, ON M9V 6V7 Steven Ferri Email: sferri@loonix.com Tel: (416) 748-4752 Mandy Ng Email: mng@loonix.com Tel: (416) 748-4136
Norfolk County
Ross & McBride LLP Commerce Place 1 King Street West Hamilton, ON L8N 3P6 Peter Tice Email: ptice@rossmcbride.com Tel: (905) 572-5822
Long Point Region Conservation Authority
Ross & McBride LLP Commerce Place 1 King Street West Hamilton, ON L8N 3P6 Peter Tice Email: ptice@rossmcbride.com Tel: (905) 572-5822
PARTICIPANTS
REPRESENTATIVE
Brian Ogden
Email: brogden@rogers.com Tel: (519) 583-2293
Louis R. Brzozowski
Email: brzozowski@rogers.com Tel: (613) 850-4876
Port Dover Waterfront Preservation Association
Margaret Creighton Email: margcr8on@gmail.com Tel: (519) 420-7766
Robert and Brenda Varey
Email: brendavarey@yahoo.ca Tel: (519) 583-3571
ATTACHMENT 2
Issues List
Phase 1
Are the proposed Official Plan Amendment and Zoning By-law Amendment consistent with Policy 3.1.1, including sub(b), 3.1.2, including sub(d), 3.1.6, and 3.1.7 of the Provincial Policy Statement?
Do the Official Plan Amendment and Zoning By-law Amendment conform to the following Policies of the Norfolk County Official Plan:
7.3.2;
7.3.2.1, including sub-clauses (a), (b), (c) and (e); and,
7.3.2.2, including sub-clauses (b)(ii), (c) and (g)
ATTACHMENT 3
order of evidence
Shore Developments Limited
Norfolk County
Long Point Region Conservation Authority
Shore Developments Ltd., in Reply
Purpose of the Procedural Order and Meaning of terms
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.