QueenLaw Development Limited v. Toronto (City), 2021 CanLII 56447

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 25, 2021

CASE NO(S).: PL210053

The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.

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

Applicant and Appellant: QueenLaw Development Limited

Subject: Application to amend former City of Etobicoke Zoning Code and Site Specific Zoning By-law No. 514-2003 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: Limited Commercial – Avenues Zone

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a 12-storeym 310-unit mixed-use building

Property Address/Description: 1045-1049 The Queensway

Municipality: City of Toronto

Municipality File No.: 17 278454 WET 05 OZ

LPAT Case No.: PL210053

LPAT File No.: PL210053

LPAT Case Name: QueenLaw Development Limited v. Toronto (City)

Heard: June 23, 2021 by video hearing (“VH”)

APPEARANCES:

Parties

QueenLaw Development Limited

Counsel

Eileen Costello Laura Dean (in absentia)

City of Toronto

Alexander Suriano

MEMORANDUM OF ORAL DECISION DELIVERED BY MARGOT BALLAGH ON JUNE 23, 2021 AND ORDER OF THE TRIBUNAL

1This is the first Case Management Conference (“CMC”) for this Appeal.

2QueenLaw Development Limited (“Applicant/Appellant”) has appealed pursuant to s. 34(11) of the Planning Act (“Act”) from the failure of the City of Toronto (“City”) to make a decision within the prescribed time to approve the requested site-specific amendment to the former City of Etobicoke Zoning Code and site Specific By-law No. 514-2003.

3The purpose of the proposed Zoning By-law Amendment (“ZBA”) is to permit a 12-storey 310-unit mixed-use building on the lands known municipally as 1045-1049 The Queensway in the City of Toronto (“subject lands”).

4The Affidavit of Service for the Notice of the CMC, sworn May 21, 2021 by Natalie Hickey, confirmed that proper notice was given and was marked as Exhibit 1.

5A Participant Status Request Form and Participant Statement Form had been filed with the Tribunal by Jim Pashutinski who resides across the street from the subject lands at 807-1050 The Queensway, Etobicoke. Mr. Pashutinski attended the CMC and requested Participant Status. Counsel for the parties did not oppose the request. Satisfied that Mr. Pashutinski has an interest in the proceedings, the Tribunal orders that Jim Pashutinski be granted Participant Status. Pursuant to s. 17 of the Ontario Land Tribunal Act, a participant may make submissions to the Tribunal with respect to the proceeding in writing only. The Procedural Order (“PO”) will govern the time within which such written submissions shall be made.

6The Tribunal canvassed with the parties whether mediation, through the Tribunal or externally, may be productive and both parties indicated that such assistance was not yet needed. The parties continue to explore possible resolution of issues.

7Counsel presented a draft PO, including an Issues List, and requested that the Tribunal schedule a hearing on the merits of ten days duration.

8The Tribunal orders that the hearing on the merits shall commence at 10 a.m. by VH on Monday, July 25, 2022 for ten days.

9Parties 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/836512069

Access code: 836-512-069

10Parties 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

11Persons 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: (647) 497-9391 or Toll Free 1-888-455-1389. The access code is 836-512-069.

12Individuals 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.

13The 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 and are directed to notify the Tribunal as soon as possible if any hearing days may be released.

14Counsel were directed to update the draft PO to reflect the hearing date and to remove the reference to “Official Plan” in Issue No. 29. They were directed to file the final draft PO on consent with the Tribunal’s Case Coordinator for the Tribunal’s consideration and approval.

15Following the CMC, the Tribunal received the revised draft PO for consideration and approval. The Tribunal orders that the PO, appended as Schedule 1 to this Decision and Order, shall be in full force and effect for the purposes of governing the required procedure leading up to and including the ten-day hearing as scheduled above.

16This Member is not seized.

17There will be no further notice.

18This is the Order of the Tribunal.

“Margot Ballagh”

Margot Ballagh

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.

SCHEDULE 1

ISSUE DATE:

CASE NO(S).: PL 210053

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

Applicant(s)/Appellant(s): QueenLaw Development Limited

Subject: Application to amend former City of Etobicoke Zoning Code and Site Specific Zoning By-law No. 514-2003 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: Limited Commercial – Avenues Zone R3.0

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a 12-storey 310-unit mixed-use building

Property Address/Description: 1045-1049 The Queensway

Municipality: City of Toronto

Municipal File No.: 17 278454 WET 05 OZ

OLT Case No.: PL210053

OLT File No.: PL210053

OLT Case Name: QueenLaw Development Limited v. Toronto (City)

PROCEDURAL ORDER

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 video hearing will begin on July 25, 2022 at 10:00 a.m.

3. The parties’ initial estimate for the length of the hearing is ten (10) 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.

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 consent 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 at least sixty (60) days prior to the hearing (on or before May 26, 2022). 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 may have a meeting at least seventy (70) days prior to the hearing (on or before May 16, 2022) to try to resolve or reduce the issues for the hearing. The experts shall 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 at least sixty (60) days prior to the hearing (on or before May 26, 2022), if this meeting takes place and if agreement is reached.

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. 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 section 13. 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 13.

13. At least forty-five (45) days prior to the hearing, (on or before June 10, 2022) the parties shall provide copies of their witness and expert witness statements to the case coordinator and the other parties in accordance with paragraph 22.

14. At least forty-five (45) days prior to the hearing, (on or before June 10, 2022) a participant shall provide copies of their written participant statement to the case coordinator and the other parties in accordance with paragraph 22. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. At least ten (10) days prior to the hearing (on or before July 15, 2022) the parties shall provide copies of their visual evidence to the OLT case coordinator and 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 at least twenty (20) days prior to the hearing (on or before July 5, 2022) in accordance with paragraph 22.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator at least ten (10) days prior to the hearing (on or before July 15, 2022).

18. At least two (2) days prior to the hearing, (on July 22, 2022) the parties shall provide to all parties and the Tribunal, in password protected format, any documents that will be used by the party in the cross-examination of an opposing party’s witness. The password protected documents shall 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 fifteen (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 seven (7) days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a hearing plan with the Tribunal at least ten (10) days prior to the hearing (on or before July 22, 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. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties at least forty-five (45) days before Expert Witness Statements are to be filed in accordance with paragraph 13 (on or before April 26, 2022). The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for the Tribunal to adjourn the hearing.

23. All filing shall be electronic 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.

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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

Summary of Dates

DATE

EVENT

April 26, 2022 (45 days before Witness Statement Date)

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

May 26, 2022 (60 days prior to hearing)

Exchange of witness lists (names, disciplines and order to be called)

May 16, 2022 (70 days prior to hearing)

Experts meeting prior to this date, if any

April 11, 2022 (60 days before Witness Statement date)

Agreed Statement of Facts, if any

June 10, 2022 (45 days prior to hearing)

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

July 5, 2022 (20 days prior to hearing)

Exchange of Reply Witness Statements (if any)

July 15, 2022 (10 days prior to hearing)

Exchange of visual evidence (if any)

July 15, 2022 (10 days prior to hearing)

Hearing Plan filed with the Tribunal

July 15, 2022 (10 days prior to hearing)

Finalize Joint Document Book

July 22, 2022 (2 days prior to hearing)

Provide to all parties and the Tribunal in password protected format, any documents that will be used by the party in the cross-examination of an opposing party’s witness

July 25, 2022

Hearing commences

Attachment 2

List of Parties and Participants

Parties:

QueenLaw Development Limited Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9

Eileen P.K. Costello Tel: (416) 865-4740 Fax: (416) 863-1515 Email: ecostello@airdberlis.com

Laura Dean Tel: (416) 865-7706 Fax: (416) 863-1515 Email: ldean@airdberlis.com

City of Toronto City of Toronto Legal Services 55 John Street, 26th Floor, Metro Hall Toronto, ON M5V 3C6

Alexander J. Suriano Tel: (416) 392-4827 Email: alexander.suriano@toronto.ca

Participants:

Jim Pashutinski

Attachment 3

Issues List

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the OLT or any party that such issue, or the manner in which the issue is expressed, is either 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. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet and shall not be construed as the OLT having jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the OLT.

A. City of Toronto

Planning Act

1. Does the proposed development and Zoning By-law Amendment have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including sections 2(h), (j), (k), (p), (q), and (r)?

2. Would approval of the proposed development and Zoning By-law Amendment have regard to the decision of City Council to oppose the appeal and the information and material that City Council considered in making its decision as required by Section 2.1 of the Planning Act?

Provincial Policy Statement 2020

3. Is the proposed development and Zoning By-law Amendment consistent with the Provincial Policy Statement (2020) as required by Section 3(5) of the Planning Act, including sections 1.1.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.2.6.1, 1.2.6.2, 1.3.1, 1.7.1, and 4.6?

A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020

4. Does the proposed development and Zoning By-law Amendment conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe as required by Section 3(5) of the Planning Act, including sections 1.2.1, 2.2.1.4, 2.2.2.3, 2.2.5, and 2.2.6?

City of Toronto Official Plan

5. Does the proposed development and Zoning By-law Amendment conform with the policies of the City of Toronto Official Plan, including the policies related to: Avenues (2.2.3), Employment Areas: Supporting Business & Employment Health (2.2.4); Healthy Neighbourhoods (2.3.1), Public Realm (3.1.1), Built Form (3.1.2 and 3.1.3), Housing (3.2.1), Natural Environment (3.4.); Mixed Use Areas (4.5) and Implementation (5.0)?

OPA 479 and OPA 480

6. Does the proposed development and Zoning By-law Amendment conform to the policies of the in force OPA 479 and OPA 480?

Guidelines

7. Does the proposed development and Zoning By-law Amendment meet the intent and purpose of the Queensway Avenue Urban Design Guidelines and Streetscape Improvements?

8. Does the proposed development and Zoning By-law Amendment meet the intent and purpose of the Tall Building Design Guidelines (2013)?

9. Does the proposed development and Zoning By-law Amendment meet the intent and purpose of the Mid-Rise Building Performance Standards and Urban Design Guidelines (2010) and Addendum (2016)?

10. Does the proposed development and Zoning By-law Amendment meet the intent and purpose of the Growing Up: Planning for Children in New Vertical Communities, Urban Design Guidelines (2020)?

Site Specific Issues

Queensway Avenue Study

11. Does the proposed development and Zoning By-law Amendment meet the intent of Zoning By-law 514-2003 and respond appropriately to The Queensway Avenue Study, The Queensway Design Guidelines and Streetscape Improvements including matters such as maximum allowable height, density, transition, angular plane, built form typology, front, rear and side yard setbacks and step backs?

12. Does the proposed development and Zoning By-law Amendment meet the intent of the Queensway Avenue Study and is the proposal in keeping with the character of The Queensway Avenue Study area?

13. Does the proposal fit in with the existing and planned context in The Queensway Avenue Study area?

Land Use Compatibility

14. Is the proposed residential use compatible, given potential impacts such as noise, vibration, and emissions due to the proximity of the proposed residential use to the abutting Core Employment Areas and Class 1 Industrial and Employment Industrial zoned lands?

15. Does the proposed development avoid, or where possible, minimize and mitigate against any adverse impacts on industrial manufacturing or other existing and planned employment uses in the adjacent and/or nearby, Employment Areas or within the influence area of any major facility, including impacts such as noise, traffic, odours, vibration, or other contaminants from nearby existing or planned employment uses?

16. Has the proposed development been designed, sited, and/or oriented to address any potential issues that may arise from any existing or planned employment uses, such as such as noise, traffic, odours, vibration, or other contaminants?

17. Have matters such as the Compatibility/Mitigation Report and Noise and Vibration Impact Study been appropriately addressed/resolved to the satisfaction of the City's peer reviewer?

Land Use Mix

18. Are the proposed non-residential uses sufficient given the site's existing non-residential gross floor area, the site's identification as being within a Provincially Significant Employment Zone in the Growth Plan, and designation as Mixed Use Areas in the City's Official Plan?

Built Form and Urban Design

19. Is the proposed built form typology of a tall building on the site appropriate on this Avenue?

20. Are the built form type, height, density, massing, and scale of the proposed development appropriate, given principles of good planning and urban design; based on its relationship to the surrounding context; its transition; visual impact; shadow impact; wind impact; its relationship to the public realm; existing and planned context?

21. Does the proposed development fit appropriately in the existing and planned built form context and minimize its impacts on surrounding properties and the public realm along The Queensway (including the north side walk), Dorchester Avenue, and St. Lawrence Avenue, including such matters as the building's height in relationship to the Avenue right-of-way; massing; transition; setbacks; stepbacks; angular planes for front, rear, and along secondary streets; streetwall heights applied consistently to Avenue and secondary street frontages for appropriate corner transition; skyview; shadow; wind; overlook; privacy; density; and visual impact?

22. Is the proposed site organization, layout, pedestrian and vehicular access (including rear driveway/lane width and pedestrian refuge), expression of density, building siting, and orientation of the building appropriate?

23. Does the proposal provide for appropriate sunlight on the public realm, the proposed development, streets, parks, open spaces, outdoor amenity areas, and surrounding properties and appropriately mitigate shadow impacts by maximizing sunlight?

24. Does the proposed development provide adequate soft landscaping and open space to improve the public realm (including the frontages along the Queensway, Dorchester Avenue, and St. Lawrence Avenue) by proposing adequate clearway for high-branching street trees, street furniture, a minimum width walkway for pedestrian access on and through the site?

25. Would the approval of the proposed development create an inappropriate precedent for other developments along The Queensway?

Amenity Space

26. Does the proposed development provide an adequate amount of indoor and outdoor amenity space in an appropriate location and limit shadow and wind impacts as well as provide access to sunlight and skyview?

Housing

27. Does the proposed development provide for an appropriate mix of unit types and sizes?

Public Interest and Good Planning

28. Is the proposed Zoning By-law Amendment good planning and in the public interest?

Draft Zoning By-law Amendment

29. Are the form and content, including regulatory standards, of the proposed draft Zoning By-law appropriate?

Section 37

30. In the event that the Tribunal allows the appeal in whole or in part, should the Final Order be withheld pending the City Solicitor advising the Tribunal that the Owner has agreed to provide appropriate community benefits pursuant to section 37 of the Planning Act, and that a section 37 Agreement has been executed and registered on title, to the satisfaction of the City Solicitor?

Conditions

31. If the requested Zoning By-law Amendment is approved by the Tribunal in whole or in part should the Tribunal's final order be withheld until it has been advised by the City Solicitor that:

a. The proposed Zoning By-law Amendments are in a final form satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

b. A Section 37 Agreement satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor, has been executed and registered on title to the subject lands to the satisfaction of the City Solicitor, securing community benefits to the satisfaction of the Chief Planner and Executive Director, City Planning in consultation with the Ward Councillor, and securing the matters required to support the development;

c. The owner has satisfied all engineering matters, including submitting a revised Functional Servicing Report and Stormwater Management Report, all to the satisfaction of the Chief Engineer and Executive Director of Engineering and Construction Services;

d. The owner has made satisfactory arrangements with the City and entered into the appropriate financially secured Development Agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to accommodate this development, to the satisfaction of the Chief Engineer and Executive Director of Engineering and Construction Services and the General Manager of Transportation Services;

e. The owner has provided space within the development for installation of maintenance access holes and sampling ports on the private side, as close to the property line as possible, for both the storm and sanitary service connections, in accordance with the Sewers By-law Chapter 681;

f. The owner has secured any required noise mitigation measures identified in the submitted Environmental Noise Assessment, peer reviewed at the owner’s expense, to the satisfaction of the Chief Planner and Executive Director, City Planning. The owner shall construct and maintain any required noise mitigation measures, with such design to be secured through the Site Plan application review process, to the satisfaction of the Chief Planner and Executive Director, City Planning;

g. The owner has submitted an updated Odour Review and secured any required mitigation measures if identified in the submitted Odour Review – Letter of Opinion, peer reviewed at the owner’s expense, to the satisfaction of the Chief Planner and Executive Director, City Planning. The owner shall construct and maintain any required mitigation measures, with such design to be secured through the Site Plan application review process, to the satisfaction of the Chief Planner and Executive Director, City Planning;

h. The owner shall submit detailed revised sun/shadow studies to the satisfaction of the Chief Planner and Executive Director, City Planning;

i. The owner shall submit a detailed wind tunnel test complete with a statistical wind analysis to determine the impacts and efficacy of the recommended wind mitigation measures, evaluated to the satisfaction of the Chief Planner and Executive Director, City Planning. The owner shall construct and maintain any required mitigation measures, to be secured through the Site Plan application review process, to the satisfaction of the Chief Planner and Executive Director, City Planning; and

j. The owner shall submit a revised Landscape Plan and/or Tree Inventory and Preservation Plan Report and that Tree Preservation matters are resolved to the satisfaction of the General Manager, Parks, Forestry and Recreation.

Attachment 4

Order of Evidence

1. QueenLaw Development Limited
2. City of Toronto
3. QueenLaw Development Limited (in reply, if necessary)

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.

42863058.3

45020862.2