Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 28, 2021
CASE NO(S).: PL190022, PL190461
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Friends of Simcoe Forests Inc.
Appellant: Edward Krajcir
Appellant: Nicholyn Farms
Subject: Proposed Official Plan Amendment No. OPA 2
Municipality: Township of Springwater
OLT Case No.: PL190022
OLT File No.: PL190022
OLT Case Name: Edward Krajcir v. Springwater (Township)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: County of Simcoe
Subject: Request to amend the Official Plan - Failure of County of Simcoe to adopt the requested amendment
Existing Designation: Agriculture
Proposed Designated: Waste Disposal
Purpose: To permit waste management facilities
Property Address/Description: 2976 Horseshoe Valley Road
Municipality: Township of Springwater
Approval Authority File No.: 2016-005
OLT Case No.: PL190461
OLT File No.: PL190461
OLT Case Name: County of Simcoe v. Springwater (Twp.)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: County of Simcoe
Subject: Request to amend the Official Plan - Failure of County of Simcoe to adopt the requested amendment
Existing Designation: Agriculture
Proposed Designated: Waste Disposal
Purpose: To permit waste management facilities
Property Address/Description: 2976 Horseshoe Valley Road
Municipality: Township of Springwater
Approval Authority File No.: 2016-005
OLT Case No.: PL190461
OLT File No.: PL190461
OLT Case Name: County of Simcoe v. Springwater (Twp.)
Case Name: Edward Krajcir v. Springwater (Twp.)/County of Simcoe v. Springwater (Twp.)
BEFORE:
M. RUSSO, MEMBER
Monday, the 28th day of June, 2021
THE TRIBUNAL ORDERS that the Procedural Order, attached hereto as Appendix "1" shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing scheduled to commence in two parts. The first part of these proceedings will commence on Tuesday, September 14, 2021 at 10:00 a.m. by Videoconference at https://global.gotomeeting.com/join/191174533. The length of the hearing will be 9 days. If all of the evidence from each of the Parties is not completed in Part 1, the second part of these proceedings will commence on Tuesday, November 2, 2021 at 10:00 a.m. by Videoconference at https://global.gotomeeting.com/join/189416629. The length of the hearing will be 10 days.
"Becky Fong"
BECKY FONG
REGISTRAR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.
APPENDIX 1
ISSUE DATE: June 24, 2021 CASE NO(S).: PL190022, PL190461
PROCEEDING COMMENDED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellants: Friends of Simcoe Forests Inc., Edward Krajcir, Nicholyn Farms
Subject: Proposed Official Plan Amendment No. 2 Property Address: 2976 Horseshoe Valley Road
Municipality: Township of Springwater
Municipal File No.: County of Simcoe OPA 2 LPAT Case No.: PL190022
LPAT File No.: PL190022
LPAT Case Name: Edward Krajcir v. Springwater (Township)
PROCEEDING COMMENDED UNDER subsection 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: County of Simcoe
Subject: Request to amend the Official Plan - Failure of County of
Property Address: 2976 Horseshoe Valley Road
Municipality: Township of Springwater LPAT Case No.: PL190461
LPAT File No.: PL190461
LPAT Case Name: County of Simcoe v. Springwater (Twp.)
Applicant and Appellant: County of Simcoe
Subject: Application to amend Zoning By-law No. 5000 - Refusal or neglect of County of Simcoe to make a decision
Property Address: 2976 Horseshoe Valley Road
Municipality: Township of Springwater LPAT Case No.: PL190461
LPAT File No.: PL190462
PROCEDURAL ORDER
The Tribunal Orders that:
- 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
PL190022 and PL190461 will be heard together in two separate parts on consent of the parties.
The video hearing for Part 1 will begin on September 14, 2021 at 10:00a.m. at GoTO Meeting: http://global.gotomeeting.com/join/191174533 Access code: 191-174-533 Audio-only telephone line: 647 497 9373 or Toll Free 1-888-299-1889 Audio-only access code: 191-174-533.
The parties' initial estimation for the length of the Part 1 hearing is 9 days, being the week of September 13th, 2021 (but not sitting on September 16th) and the week of September 20th, 2021. The length of the hearing may be shortened as issues are resolved or settlement is achieved. Preliminary issues may be addressed at the commencement of the hearing of Part 1, if necessary.
If all of the evidence from each of the Parties is not completed in Part 1 then the hearing will continue into Part 2. The video hearing for Part 2 will begin on November 2nd, 2021 at 10:00a.m. at GoTO Meeting: http://global.gotomeeting.com/join/189416629 Access code: 189-416-629 Audio-only telephone line: 647 497 9373 or Toll Free 1-888-299-1889 Audio-only access code: 189-416-629.
If a Part 2 hearing is required in accordance with paragraph 5, the length of the Part 2 hearing will be 9 days, being the week of November 1st, 2021 and the week of November 8th, 2021 (but not sitting on November 11th). The length of the hearing may be shortened as issues are resolved or settlement is achieved.
The parties to PL190022 and PL190461 are listed in Attachment 1 to this Order.
The issues are set out in the Issues List attached as Attachment 2 to this order.
The order of evidence for PL190022 and PL190461 are listed 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.
The parties, who have previously been conducting proceeding PL190022 under Bill 139 provisions, have filed affidavits of all expert witnesses upon whom they intend to rely at the hearing of OPA 2. And, pursuant to the order of the Tribunal dated September 18th, 2020, the Parties will have filed additional affidavit material from those same or further witnesses to fulfill the requirements of that order. These affidavits are to be treated similarly to witness statements in a hearing under the current Tribunal hearing regime arising out of Bill 108. Any evidence filed in PL190022 may be similarly relied upon by parties as part of PL190461. Parties to PL190461 may elect to file new evidence to address issues relevant to the appeals of the proposed Township OPA and the Township Zoning By-law Amendment, if required. It is further acknowledged that the adoption of County OPA 5, at this point not yet approved by the Minister, has been added as an issue by the Friends of Simcoe Forests Inc. and by Nicholyn Farms. These parties and the County and Ministry reserve the right to add additional evidence and to raise "sub-issues" under this heading up to the time for exchange of witness statements by their respective experts.
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
Any motions seeking directions from the Tribunal on preliminary matters are to be made at a subsequent Case Management Conference. The Tribunal may limit the time allotted for each party to present on such motion, or make other orders that it deems appropriate.
All parties need not call a witness for an issue on the Issues List, but all parties must indicate for which issues a witness will be called. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the Clerk a list of the witnesses, their particular qualifications and the order in which they will be called. This list is to include those witnesses who have previously filed affidavits as set out in paragraph 10 above, and any additional witnesses. The complete list must be delivered by July 15,th 2021. Any witness who has not prepared an affidavit under the former Bill 139 procedure, or pursuant to the September 18th, 2020 order of the Tribunal, and who is not appearing under summons must file a witness statement by July 15th, 2021. The witness statement of such witness must contain a curriculum vitae, an Acknowledgement of Expert's Duty on the Tribunal form, an outline of their evidence including the provisions of any Provincial Plans or Policy Statements upon which they intend to rely and the text of any reports upon which their testimony might be based.
Expert witnesses in the same field shall have a meeting by July 30th, 2021 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties. A list of agreed facts can be provided on the basis of agreement by some, or all, of the participating experts.
Parties or some of them, may participate in confidential, without prejudice mediation to attempt to resolve, narrow, or scope issues in dispute. Should Tribunal-led mediation result in agreement on some or all issues, the parties will seek approval of any changes prior to the hearing of this matter.
A participant must provide to the Tribunal and the parties a participant statement by August 23rd, 2021, or the witness or participant may not make oral submissions at the hearing.
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.
A party who provides a witness' written evidence 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.
Documents may be delivered by personal delivery, facsimile or registered or certified mail, or otherwise as the Tribunal may direct. The delivery of documents by fax shall be governed by the Tribunal's Rules on this subject. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification.
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 – List of Parties
PL190022 – OPA 2
The Corporation of the County of Simcoe c/o E. Marshall Green, Counsel 1110 Highway 26 Midhurst ON L0L 1X0 T: 705-726-9300 ext. 1657 marshall.green@simcoe.ca
Caroll Heyd Chown LLP c/o Mark Vernon 109 Ferris Lane Barrie, On L4M 2Y1 mvernon@chcbarristers.com
Ministry of the Attorney General c/o Ugo Popadic, Counsel Alexandra Robertson, Counsel Legal Services Branch Ministry of Municipal Affairs and Housing 777 Bay Street, 161h Floor Toronto ON M5G 2E5 ugo.popadic@ontario.ca alexandra.robertson2@ontario.ca
The Township of Springwater c/o Bruce Engell, Counsel WeirFoulds LLP 4100-66 Wellington St. W P.O. Box 35, TO Bank Tower Toronto ON M5K 1 B7 bengell@weirfoulds.com
Friends of Simcoe Forests Inc. c/o Ramani Nadarajah and Jacqueline Wilson, Counsel Canadian Environmental Law Association 1500-55 University Ave Toronto ON M5J 2H7 T: 416-960-2284 ext. 7213/7217 ramani@cela.ca jacqueline@cela.ca
Edward Krajcir & Scarlett Graham-Krajcir c/o Eric W.D. Boate, Counsel McCague Borlack LLP Barristers & Solicitors 59 Collier Street Barrie ON L4M 1 G7 T: 705-481-0236 eboate@mccaqueborlack.com
Nicholyn Farms Inc,. Lynda & Nicholas Van Casteren c/o David S. White, Q.C. Devry Smith Frank LLP 95 Barber Greene Road, Suite 100 Toronto ON M3C 3E9 T: 416-446-3330 david.white@devrylaw.ca
PL190461– Township OPA/ZBA
The Corporation of the County of Simcoe c/o E. Marshall Green, Counsel 1110 Highway 26 Midhurst ON L0L 1X0 marshall.green@simcoe.ca
Caroll Heyd Chown LLP c/o Mark Vernon 109 Ferris Lane Barrie, On L4M 2Y1 mvernon@chcbarristers.com
Ministry of the Attorney General c/o Ugo Popadic, Counsel Alexandra Robertson, Counsel Legal Services Branch Ministry of Municipal Affairs and Housing 777 Bay Street, 161h Floor Toronto ON M5G 2E5 ugo.popadic@ontario.ca alexandra.robertson2@ontario.ca
The Township of Springwater c/o Bruce Engell, Counsel WeirFoulds LLP 4100-66 Wellington St. W P.O. Box 35, TO Bank Tower Toronto ON M5K 1 B7 bengell@weirfoulds.com
Friends of Simcoe Forests Inc. c/o Ramani Nadarajah and Jacqueline Wilson, Counsel Canadian Environmental Law Association 1500-55 University Ave Toronto ON M5J 2H7 T: 416-960-2284 ext. 7213/7217 ramani@cela.ca jacqueline@cela.ca
Edward Krajcir & Scarlett Graham-Krajcir c/o Eric W.D. Boate, Counsel McCague Borlack LLP Barristers & Solicitors 59 Collier Street Barrie ON L4M 1 G7 T: 705-481-0236 eboate@mccaqueborlack.com
Nicholyn Farms Inc,. Lynda & Nicholas Van Casteren c/o David S. White, Q.C. Devry Smith Frank LLP 95 Barber Greene Road, Suite 100 Toronto ON M3C 3E9 T: 416-446-3330 david.white@devrylaw.ca
Attachment 2 – Issues List
The identification of an issue does not mean that all Parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing.
County of Simcoe and Ministry of Municipal Affairs and Housing
Is OPA 2 consistent with the Food and Organic Waste Policy Statement ("FOWPS") as set out in the Resource Recovery and Circular Economy Act, 2016?
Is the proposed OPA 2 consistent with the following provisions of the Provincial Policy Statement, 2020: 1.1.1 Managing and Directing Land Use to Achieve Efficient and Resilient Development and Land Use; Patterns; 1.1.5 Rural Lands in Municipalities; 1.2.1 Coordinated Approach to Planning Matters; 1.2.6 Land Use Compatibility; 1.3 Employment; 1.6.1 Infrastructure and Public Service Facilities; 1.6.10.1 Waste Management; 2.1.1 – 2.1.8 Natural Heritage; 2.3 Agriculture; 3.1.8 Natural Hazards - Wildland Fire
Does the proposed OPA 2 conform to the following provisions of the Growth Plan for the Greater Golden Horseshoe 2020: 2.2.9 Rural Area; 3.2.1 Infrastructure; 4.2.2.1, 4.2.2.4 & 4.2.3.1 Natural Heritage System; 4.2.6 Agricultural System; 4.2.9(d) A Culture of Conservation
Friends of Simcoe Forests
Has the County of Simcoe and the Ministry of Municipal Affairs and Housing demonstrated that the establishment of a waste management facility in the Freele County Forest is consistent with the Provincial Policy Statement, 2020 and conforms with the County of Simcoe Official Plan through the demonstration that there will be "no negative impacts" on significant woodlands, significant wildlife habitat and significant habitat of endangered or threatened species as required by the Provincial Policy Statement (2020), including Part 2 (Legislated Authority) and Part 5 Policies 2.1.1, 2.1.2, 2.1.5(b) and (d), 2.1.7 and 2.1.8 and the County of Simcoe's Official Plan, sections 3.3.6, 3.3.15, and 3.8?
Has the County of Simcoe and the Ministry of Municipal Affairs and Housing demonstrated that the establishment of a waste management facility in the Freele County Forest conforms with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), specifically section 4.2.2, 4.2.3 and 4.2.4.?
Is the proposal to establish a waste management facility in the Freele County Forest, outside of a settlement area, in conformity with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), specifically sections 2.2.1.2(d) and 2.2.1.3(d)?
Is the proposal to establish a waste management facility in the Freele County Forest in conformity with the County of Simcoe's Official Plan policies, including sections 3.3.6, 3.3.15, 3.8, 3.8.15, 3.8.19 and 3.8.22 with respect to development within the County's Greenlands designation?
Pursuant to County of Simcoe Official Plan section 3.8.19, does the exemption from the requirement to prepare an Environmental Assessment constitute an 'authorization' under an environmental assessment process?
Will the currently adopted County of Simcoe OPA 5, if approved, impact this proposed Waste Management Site, including the ability to expand the operation on the subject property in the future without the need for a County Official Plan Amendment?
Nicholyn Farms
Does locating a heavy industrial use in a Greenland designation without need or necessity comply with the Greenland policies of the County Official Plan?
Are all the proposed uses permitted in the Greenland designation?
Does the fact that Infrastructure uses are permitted in the Greenland designation mean that they are permitted when necessary or does it mean that they are encouraged even when the use is a heavy industrial use?
Is it the County's position that all infrastructure uses are permitted in the Greenland designation including infrastructure for private developments including sewage and water systems and stormwater systems?
Have the traffic impacts on the local and county roads been properly assessed?
Have the noise, odour and sight impacts on the Nicholyn Farm retail store been properly assessed and mitigated?
Have the traffic impacts on the Nicholyn Farm retail store been properly assessed and mitigated?
Has the importance of the Nicholyn Farm retail store to the local agri-food industry been taken into consideration and have adequate safeguards been put in place?
Have the noise, odour and sight impacts on the Van Casteren retirement lot been properly assessed and mitigated?
Have the traffic impacts on the Van Casteren retirement lot been properly assessed and mitigated?
Has the scoped Environmental Impact Assessment adequately addressed the impact on the interior habitat and the mixed hardwood areas of the site?
Does currently adopted OPA 5, if approved, impact this proposed Waste Management Site?
Edward Krajcir and Scarlett Graham-Krajcir
Does locating a heavy industrial use in a Greenland designation without need or necessity comply with the Greenland policies of the County Official Plan?
Are all the proposed uses permitted in the Greenland designation?
Does the fact that Infrastructure uses are permitted in the Greenland designation mean that they are permitted when necessary or does it mean that they are encouraged even when the use is a heavy industrial use?
Is it the County's position that all infrastructure uses are permitted in the Greenland designation including infrastructure for private developments including sewage and water systems and stormwater systems?
Have the traffic impacts on the local and county roads been properly assessed?
Have the noise, odour and sight impacts on Edward Krajcir and Scarlett Graham-Krajcir's horse breeding operation been properly assessed and mitigated?
Have the traffic impacts on Edward Krajcir and Scarlett Graham-Krajcir's horse breeding operations been properly assessed and mitigated?
Has the importance of Edward Krajcir and Scarlett Graham-Krajcir's horse breeding operation to the local agri-food industry been taken into consideration and have adequate safeguards been put in place?
Have the noise, odour and sight impacts on Edward Krajcir and Scarlett Graham-Krajcir's residence been properly assessed and mitigated?
Have the traffic impacts on Edward Krajcir and Scarlett Graham-Krajcir's residence been properly assessed and mitigated?
Has the scoped Environmental Impact Assessment adequately addressed the impact on the interior habitat and the mixed hardwood areas of the site?
Attachment 3 – Order of Evidence
PL190022– OPA 2
- County of Simcoe
- Parties in Support of the County of Simcoe
- Parties Opposed to the County of Simcoe
- County of Simcoe Reply, if necessary
Participant Statements (timing to be determined by Tribunal)
PL190461– Township OPA/ZBA
- County of Simcoe
- Parties in Support of the County of Simcoe
- Parties Opposed to the County of Simcoe
- County of Simcoe Reply, if necessary
Participant Statements (timing to be determined by Tribunal)