Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 05, 2021

CASE NO(S).: PL200555

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Ministry of Municipal Affairs and Housing

Subject: Proposed Official Plan Amendment No. OPA 131

Municipality: Norfolk County

OLT Case No.: PL200555

OLT File No.: PL200555

OLT Case Name: Ontario (MMAH) v. Norfolk (County)

Heard: July 28, 2021 by telephone conference call (“TCC”)

APPEARANCES:

Parties	Counsel
Ministry of Municipal Affairs and Housing (“MMAH”)	Miriam Awan Ugo Popadic
Abel and Emily Kupi (“Applicants”)	Nathan Kolomaya
Norfolk County (“County”)	Paula Boutis

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON JULY 28, 2021 AND ORDER OF THE TRIBUNAL

BACKGROUND TO THE CMC

1This TCC Case Management Conference (“CMC”) was directed by the Tribunal, on an expedited basis, in order to resolve an impasse between the MMAH and the Applicants as to the Issues List, and to enable the revision and issuance of a Procedural Order to govern the hearing of the first phase of this Appeal scheduled to begin on September 15, 2021.

2The County has elected to observe and assist where necessary, but not participate, in the hearing of the appeal and accordingly only the Applicants and MMAH will appear at the hearing.

3A CMC was conducted by the Tribunal on April 19, 2021 which led to the issuance of the CMC Order on April 30, 2021. For whatever reason, an Issues List was appended to the Decision and Order, but there was no Procedural Order referred to in, or attached to, the Decision. Despite the absence of a final Procedural Order, the hearing of the first phase of the hearing (to deal with Issues 1 to 4) was scheduled on the Tribunal’s calendar. The Decision indicates that the Issues List was “on consent of all parties”. As explained herein, that was, and is, not the case.

4The Tribunal also directed, in paragraph 8 of the CMC Decision, that the County would, as offered, create an Agreed Statement of Facts to be submitted prior to August 6, 2021.

5For the purposes of this CMC, in accordance with the prior directions, the Applicants provided: an outline identifying and providing the specific concerns within the Issues List, identifying those issues that are contentious; the Applicants’ proposed draft form for the contentious issue; and a draft of any other proposed issue. Also in accordance with the directives, MMAH thereafter provided a written response to the Applicants’ written submission outlining its position on the contentious issues. The Tribunal reviewed these submissions, the prior CMC decision of the Tribunal, and the MMAH’s Notice of Appeal in the Municipal Record filed with the Tribunal, which was not included in the materials provided by the Parties.

THE DISPUTE RELATING TO THE ISSUES LIST

6In recent weeks, the Tribunal received communications from the Applicants and MMAH regarding the unresolved form and issuance of a draft of a Procedural Order and an ongoing dispute regarding the Issues List. As the first of the proposed pre-hearing filing dates have already passed, and with the hearing scheduled, there is some imperative to resolving the Issues List and confirming a final Procedural Order to govern the hearing of the first phase of the appeal.

7The necessity of this “last minute” CMC, and the fact that there are unresolved case management issues looming before a scheduled hearing date, is illustrative of the difficulties that can arise when hearing dates are provided to the parties without a final Procedural Order and Issues List issued or ready to be issued.

8Despite the reference made by the Panel at the first CMC regarding the consensual form of the Issues List, the Applicants do not agree with two of the drafted issues. It is unclear to the Panel why the concerns as to the form of Issues 3 and 4, on the part of the Applicants, were not clearly communicated to the Tribunal at the prior CMC but this has now led to the impasse about the form of these two issues. At this point, the reasons for the miscommunication are not helpful and instead the dispute must be resolved.

9The Applicants’ difficulty with the form of Issues 3 and 4 is simple. Both those issues, as drafted by MMAH, begin with wording that states, as a given, that the lands which are the subject matter of Official Plan Amendment No. 131, are definitively “within a prime agricultural area”. The Applicants assert that the Agreed Statement of Facts is not yet in place and that whether or not the subject lands are, or are not, within a “prime agricultural area” for the purposes of the Provincial Policy Statement, 2020 (“PPS”) is a fact that MMAH, as the appellant, will have to prove, through evidence, at the hearing of the appeal.

10MMAH submits that it has drafted the issues in this manner based upon: (1) the Applicants’ apparent acknowledgement of the location of the lands in a prime agricultural area in a document filed with their Application entitled “Planning Justification Statement” (which was not, it seems, prepared by a qualified planner); and (2) the reference in the Norfolk County staff report to the fact that the subject lands are in a prime agricultural area. It is the position of MMAH that there should be no “issue” that the lands are “Prime Agricultural Lands” as defined in the PPS because this has been accepted by both the Applicants and Norfolk County staff, and because it is “clear and obvious” that this is the case.

ANALYSIS AND REASONS

11It has long been the position of the Ontario Municipal Board and the Tribunal that an appellant’s Notice of Appeal frames the issues to be adjudicated in a proceeding before the Tribunal. The Tribunal will not create new issues and, as confirmed in Rule 8.3 of the Ontario Land Tribunal’s Rules of Practice and Procedure, neither will added parties be permitted to raise or introduce new issues in a proceeding beyond those raised by the appellant.

12A fundamental rule of pleadings is that a pleading must provide a concise statement of the claim, which is the subject of the proceeding, upon the stated grounds for the relief sought by the claimant. The pleading should also provide the material facts relied upon to support the claim. In the context of a planning appeal such as this one, as guided by the Planning Act, a notice of appeal of a decision of an approval authority must: (1) explain the reasons for the appeal, based upon apparent land use planning grounds, and in doing so provide the objections, position and concerns of the appellant as to the decision of Council, and the subject planning instrument; and (2) provide such material facts considered necessary and relied upon to support those reasons and land use planning grounds.

13The issues, sometimes general and broad, sometimes specific, will be gleaned from these stated reasons, grounds and facts within the notice of appeal. The manner in which the appellant then elects to prove those facts and support the appellant’s reasons and position on the issues, are then matters of evidence at the hearing on the merits of the appeal. The Tribunal may be called upon to make findings of fact where the facts are contentious.

14The Tribunal has reviewed the Notice of Appeal letter filed by MMAH dated October 19, 2020 which define the issues in this Appeal. MMAH’s Appeal asserts that Official Plan Amendment (“OPA”) 131, as it re-designates the subject lands as “Rural” from “Agricultural” under the policies and objectives of the County Official Plan, is inconsistent with the PPS, and does not have regard to matters of provincial interest. For those reasons, MMAH asserts that OPA 131 should not be approved.

15A material fact clearly and pointedly stated by MMAH in its Notice of Appeal, in support of these reasons and asserted planning grounds, is that the subject lands are within “a prime agricultural area”. The issues to be adjudicated in relation to the instrument, as it affects the subject lands, are based upon MMAH’s assertion that the instrument and the decision of Council are inconsistent with the policies of the PPS and have no regard for matters of provincial interest. These reasons and planning grounds pleaded by MMAH, and the issues of consistency, are based upon the material fact, to be proven by the evidence, that the subject lands are prime agricultural lands and agricultural resources referred to in s. 2(b) of the Planning Act within a “prime agricultural area” as defined in the PPS.

16The Tribunal must agree with the Applicants position as to the wording of the issues, that failing to agree to the statement that the subject lands are prime agricultural lands, or within a prime agricultural area, does not mean that the Applicant is creating a “new issue”. It is MMAH that has pointedly pleaded these facts in support of its Notice of Appeal, and accordingly it is the MMAH, as the Appellant, that will be required to lead such evidence it determines necessary to support the factual designation, status or definitive character of the subject lands under the County Official Plan, the PPS, and/or the Canada Land Inventory, relevant to the issues raised by its Notice of Appeal.

17Should the Applicants elect to challenge such evidence to persuade the Tribunal that the subject lands are not in a prime agricultural area as MMAH asserts, they may do so. For that reason, the Applicants are within their right to object to the wording of the issue if it asserts such a fact to be true, when, in their view, that is in dispute. The findings as to whether the subject lands are within a prime agricultural area, by the Tribunal, will serve to assist in determining Issues 3 and 4, which relate to consistency with Policies 2.3.5 or 1.1.3.8 and the definitions of the PPS.

18Accordingly, to frame the wording of the issue as MMAH has done, definitively stating that “the subject lands are within a prime agricultural area” (emphasis added), serves to improperly predetermine a fact, within the issues list, without having heard the evidence to support such a conclusion. MMAH relies upon what it views as “clear and obvious” material within the documentary record to argue that this central fact is not in dispute. MMAH takes the position that stating that the lands are in a prime agricultural area within each of the two issues, should be done “in order to make the hearing more efficient”. While this would indeed be the case if there was consensus on this point, the Tribunal cannot agree it is appropriate where there is no consensus with the Applicant. To do so would predetermine the designation, classification and identification of the subject lands and effectively pre-empt the hearing of the appeal on its merits, which includes the Tribunal’s function of making factual findings upon the evidence presented.

19If the Agreed Statement of Facts, ordered to be produced by August 6, 2021 does not establish an agreement on the facts that MMAH states are so clear and obvious, then those facts will have to be proven by MMAH. It will then be incumbent upon the Applicants, in response, to introduce evidence to challenge MMAH’s evidence with respect to such facts. Ultimately, at the conclusion of the hearing, the Tribunal Panel will have the ability to make its findings and assess the whole of the Applicants’ evidence and case, and the reasonableness of their election to challenge this factual assertion, should they elect not to agree to such facts on the record.

20It is the Applicants that suggest that there should be a new separate issue on whether the subject lands are prime agricultural lands. For the reasons indicated, although the material facts as to the designation and status of the subject lands will be “at issue” in the proceeding if not included in the Agreed Statement of Facts, it is the Tribunal’s view that there is no need to create such a new “issue” at this point.

21MMAH has requested that if the Applicants’ amendment to its drafted form of Issues 3 and 4 is supported by the Tribunal, the order of evidence should be altered to require the Applicants to first lead evidence on this “issue”. For the reasons indicated, this is a factual determination to be made upon the evidence. It is MMAH’s Appeal, and it is MMAH that has factually asserted the character of the subject lands and must organize the presentation of its evidence in its case accordingly. The Applicants will be required to respond. There is no basis to accede to the request of the MMAH to alter the order of evidence.

22Based upon the oral decision delivered, counsel for the parties were directed at the conclusion of the CMC to immediately connect to recalibrate the pre-hearing filing deadlines and to provide the revised Procedural Order reflecting those revised compliance dates, together with the revised complete Issues List, in accordance with the disposition of the Tribunal as set out herein not later than noon on Friday, July 30, 2021. The revised Procedural Order and Issues was subsequently received and reviewed.

DISPOSITION AND DIRECTIVES OF THE TRIBUNAL

23For the reasons indicated, Issues 3 and 4 as set out on the Draft Issues List appended to the Tribunal’s Decision issued April 30, 2021 are amended as follows:

(a) The words at the beginning of Issue 3 “As the subject lands are within a prime agricultural area..” are deleted and the sentence will begin with “Is OPA 131 consistent with Policy 2.3.5…”; and

(b) The words at the beginning of Issue 4 “As the lands are located within a prime agricultural area..” are deleted and the sentence will begin with “Is OPA 131 consistent with the PPS, which…”.

24No new issues will be added to the Issues List unless as determined by the presiding Panel.

25There will be no change to the order of the evidence and MMAH, as the Appellant will proceed first with its case, with the Applicants’ case to follow, and the opportunity for Reply given to MMAH.

26The Procedural Order and Issues List appended as Schedule 1 to this Decision will now govern the pre-hearing procedural requirements and the conduct of the hearing of Issues 1 to 4 in accordance with the prior CMC Decision of the Tribunal.

27The Tribunal so orders and provides these additional CMC directives for the purposes of the case management of this appeal.

“David L. Lanthier”

DAVID L. LANTHIER VICE-CHAIR

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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.