Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 23, 2021
CASE NO(S).:
PL210156
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Tammy Abbotts
Subject:
Application to amend Zoning By-law No. 2018-65 - Refusal or neglect of County of Grey to make a decision
Existing Zoning:
Residential One (R1-1)
Proposed Zoning:
Residential Two (R2)
Purpose:
To permit the creation of lots for 22 semi-detached dwellings
Property Address/Description:
Lots 35-39, SW Side of Bay Street
Municipality:
Town of The Blue Mountains
Municipality File No.:
P2832
LPAT Case No.:
PL210156
LPAT File No.:
PL210156
LPAT Case Name:
Abbotts v. Blue Mountains (Town)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Tammy Abbotts
Subject:
Proposed Plan of Subdivision - Failure of County of Grey to make a decision
Purpose:
To permit the creation of lots for 22 semi-detached dwellings
Property Address/Description:
Lots 35-39, SW Side of Bay Street
Municipality:
Town of The Blue Mountains
Municipality File No.:
42T-2019-02
LPAT Case No.:
PL210156
LPAT File No.:
PL210152
Heard:
July 22, 2021 by Video Hearing
APPEARANCES:
Parties
Counsel
Tammy Abbots (“Applicant”)
Al Burton
County of Grey (“County”)
Errol Treslan
Town of The Blue Mountains (“Town”)
Leo Longo
Grey Condominium Corporation No. 11 (“GCC11”)
Samantha Lampert
Harbour West Residents Group Inc. (“HWRG”)
Harry Burkman
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN COOKE ON JULY 22, 2021 AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal was a second Case Management Conference (“CMC”) on the appeals for the Town and County’s failure to make a decision within the statutory time frame pursuant to s. 34(11) and 51(34) of the Planning Act.
2The purpose of this CMC was to set dates for the hearing of the merits, and to establish a Procedural Order (“PO”) with the scoped Issues Lists.
3Al Burton, counsel for the Applicant, gave a general overview of the PO and informed the Tribunal that, at the last CMC, the Member instructed the Parties to work together and refine the Issues List. The Issues List has now been reduced to 12 issues that are of common and individual Party interests. The Parties are requesting a 15-day hearing of the merits.
4Harry Burkman, counsel for the HWRG, raised concerns with paragraph 5 of the draft PO. It was his position that the paragraph was in place only as a means to intimidate his client. He further submits that the Tribunal has a process to deal with the awarding of costs and paragraph 5 was not necessary.
5In response, Mr. Burton indicated that the awarding of costs is ultimately at the discretion of the Tribunal. It was his submission to the Tribunal that the language was not directed at any Party but is meant to address undo costs of experts that may not be required.
6The Tribunal canvassed the other Parties that indicated they had no issues with the language of paragraph 5.
7Paragraph 5 of the draft PO states:
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. If a party has placed an issue on the Issues List and fails to call evidence in support of that issue in the hearing may be subject to an adverse costs award.
8Rule 23 of the Tribunal’s Rules of Practice and Procedure (“Rules”) sets out the process of requesting costs to be awarded. Regardless of the wording of paragraph 5, it does not supersede Rule 23, nor does it take the discretion of the Tribunal to determine whether costs should be awarded.
9The Tribunal notes that the paragraph does not bind the Tribunal and should a Party seek cost will still be required to follow Rule 23. After consideration, the Tribunal will allow that paragraph 5 to remain in the PO for the purpose of public transparency to all Parties, which may be subject to costs at the discretion of the Tribunal.
10Leo Longo, counsel for the Town, requested that the Tribunal consider setting a further CMC. The purpose of the CMC would be to check in with the Tribunal to give a status update and address any issues that may arise. This request was supported by Samantha Lampert. The Tribunal denies the request for a further CMC but should a matter need to be addressed, a request to the Tribunal can be made.
11The Tribunal has set a 15-day hearing of the merits starting on Monday, May 9, 2022 commencing at 10 a.m. by Video Hearing. The Tribunal will be standing down on Monday, May 16 and Monday, May 23, 2022.
12The attached PO has been approved and is appended to the decision as Attachment 1.
13Parties 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/674143661
Access code: 674-143-661
14Parties 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
15Persons 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) 497-9373 or (Toll Free) 1(888) 299-1889. The access code is 674-143-661.
16Individuals 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.
17There will be no further notice.
18The Member is not seized.
19This is the Order of the Tribunal.
“Steven Cooke”
STEVEN COOKE
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.
CASE NO(S).:
PL210156
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Tammy Abbotts
Subject:
Application to amend Zoning By-law No. 2018-65 - Refusal or neglect of County of Grey to make a decision
Existing Zoning:
Residential One (R1-1)
Proposed Zoning:
Residential Two (R2)
Purpose:
To permit the creation of lots for 22 semi-detached dwellings
Property Address/Description:
Lots 35-39, SW Side of Bay Street
Municipality:
Town of The Blue Mountains
Municipality File No.:
P2832
LPAT Case No.:
PL210156
LPAT File No.:
PL210156
LPAT Case Name:
Abbotts v. Blue Mountains (Town)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Tammy Abbotts
Subject:
Proposed Plan of Subdivision - Failure of County of Grey to make a decision
Purpose:
To permit the creation of lots for 22 semi-detached dwellings
Property Address/Description:
Lots 35-39, SW Side of Bay Street
Municipality:
Town of The Blue Mountains
Municipality File No.:
42T-2019-02
LPAT Case No.:
PL210156
LPAT File No.:
PL210152
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
The video hearing will begin on Monday, May 9, 2022 at 10:00a.m. at a videoconference link to be provided by the Tribunal. The Tribunal will not sit on Monday, May 16, 2022 and Monday, May 23, 2022.
The parties’ initial estimation for the length of the hearing is 15 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1.
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. If a party has placed an issue on the Issues List and fails to call evidence in support of that issue in the hearing may be subject to an adverse costs award.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday, September 10, 2021 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before Friday, October 29, 2021 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 LPAT case co-ordinator on or before Tuesday, April 19, 2022.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before Friday, March 25, 2022, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the LPAT case co-ordinator and in accordance with paragraph 22 below.
On or before Friday, March 25, 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.
On or before Friday, April 15, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, April 8, 2022 and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Thursday, April 28, 2022.
Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before Wednesday, May 4, 2022.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, April 11, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
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 and proposed instruments, updated documents and reports, to the other parties and the Tribunal on or before Monday, October 4, 2021. The Applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing. The parties acknowledge that the Tribunal’s Rule 17 applies to such requests.
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 to Procedural Order
Meaning of terms used in the Procedural Order:
A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
direct examination by the party presenting the witness;
direct examination by any party of similar interest, in the manner determined by the Tribunal;
cross-examination by parties of opposite interest;
re-examination by the party presenting the witness; or
another order of examination mutually agreed among the parties or directed by the Tribunal.
Attachment 1
Parties
Tammy Abbotts – Applicant/Appellant
Thomson Rogers
3100 - 390 Bay Street
Toronto, ON
M5H 1W2
Al Burton
416-868-3113
Town of the Blue Mountains
Aird & Berlis LLP
1800 – 181 Bay Street
Brookfield Place
Toronto, ON
M5J 2T9
Leo Longo
416-865-7778
County of Grey
The Alliance Lawyers
142 10th Street West
Owen Sound, ON
N4K 3P9
Errol Treslan
519-376-7450 e. 241
Grey Condominium Corporation No. 11
Davies Howe LLP
10th Floor
425 Adelaide Street West
Toronto, ON
M5V 3C1
Aaron Platt/Samantha Lampert
416-263-4500/416-263-4521
aaronp@davieshowe.com/samanthal@davieshowe.com
Harbour West Residents Group Inc.
Law Offices of Harry Burkman
1 First Canadian Place
Suite 5600
P.O. Box 270
Toronto, ON
M5X 1A4
Harry Burkman
416-364-3831
Attachment 2
ISSUES LIST
I – Planning Issues
Does the proposed development have appropriate regard to sections 34, 36 and 51(24) of the Planning Act?
Does the proposed development conform with the County of Grey Official Plan 2019, sections 3.4.1, 3.4.1.1, 3.5, 4.2.5, 8.10, and 9.13?
Does the proposed development conform with the Town's Official Plan 2016, sections A1, A2, B2.7, B3.1, B3.1.1, B3.1.4, B3.1.5, B3.1.5.1, B3.1.5.2, C5, C14, D2.1, D2.2, D2.4, D2.5, D4.3, D5.1, D5.2, D8.2, E1.3, E3.3, and E7?
Is the proposed Zoning By-law Amendment appropriate?
II – Engineering – Servicing / Stormwater
Is the proposed stormwater management approach appropriate for controlling water on-site and are there improvements needed in the off-site outlets to the Bay?
Does the proposed servicing meet Town Engineering Standards and is there water and wastewater capacity available?
III – Engineering – Transportation
- Is/does the proposed road design:
(a) premature to approve until such time as final determination of the status of the
portions of the unopened road allowance known as Bay Street West;
(b) appropriate and represent good transportation planning;
(c) consistent with Town Standards;
(d) compatible with adjacent developments; and,
(e) accommodate for the movement of servicing vehicles?
- If it is determined that proposed road network is appropriate, what is the appropriate terminus treatment at the Bay Street West and Victoria Street West intersection, and should implementation of this treatment be imposed as a condition of approval?
IV – General
Are the tree removal and retention on-site and in the abutting road allowances appropriate and in the public interest?
Does the current proposed 2.5 metre landscape buffer sufficiently mitigate undue impacts to neighbouring landowners? Are any alternative or additional buffering or conditions of draft plan approval required to ensure no light, noise and traffic impacts are suffered by adjacent landowners, including but not limited to, tree retention, fencing, and setbacks?
Does the proposed development contain sufficient details about the potential accessory units in order to determine the impacts on traffic safety and operations and what mitigation measures are required to address any potential adverse transportation and parking impacts for neighbouring properties?
What are the appropriate conditions to impose upon any approval of the proposed draft plan of subdivision, including any conditions and clearances regarding contamination, leachate, or methane?
Attachment 3
Order of Evidence
Tammy Abbotts – Applicant/Appellant
Town of the Blue Mountains
County of Grey
Grey Condominium Corporation No. 11
Harbour West Residents Group Inc.
Reply (if any) – Tammy Abbotts – Applicant/Appellant