Maynard v. Mississippi Mills (Town), 2021 CanLII 77611

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 16, 2021

CASE NO(S).: PL210127

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Steve Maynard

Subject: By-law No. BL 11-83

Municipality: Town of Mississippi Mills

OLT Case No.: PL210127

OLT File No.: PL210127

OLT Case Name: Maynard v. Mississippi Mills (Town)

Heard: June 25, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Steve Maynard (“Appellant”)

Self-represented

Town of Mississippi Mills (“Town”)

Spencer Putnam

2241497 Ontario Ltd. (“Applicant”)

Philip Osterhout and Ursula Melinz

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

1The Applicant intends to redevelop its property located at 430 Ottawa Street in the Town of Mississippi Mills (the “subject lands”) with a site-specific amendment to the Highway Commercial policies to recognize medium to high density residential uses with a maximum net density of 46 units per hectare to permit a 124-unit, four-storey apartment building. To facilitate its proposed development, 2241497 Ontario Ltd. applied for an amendment to Town Zoning By-law No. BL 11-83 (the “ZBA”). The Town approved the ZBA and the Appellant appealed to the Tribunal pursuant to s. 34 (19) of the Planning Act.

2The purpose of the ZBA application is to change the zoning of the proposed subject lands from “Shopping Centre Commercial - Special Exception 4 (C4-4)” to “Shopping Centre Commercial - Special Exception (C4-x)” to recognize medium to high density residential uses in addition to highway commercial uses

3The Tribunal held this first Case Management Conference (“CMC”) in accordance with s. 15 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4. Counsel for the Town provided notice of the CMC in accordance with the Tribunal’s direction, and the Tribunal marked the Affidavit of Service as Exhibit 1. At the Tribunal’s request prior to the CMC, the Town prepared a draft Procedural Order (“PO”).

4The Appellant addressed the Tribunal stating he did not have a video connection to the CMC. He informed the Tribunal that due to health reasons he appreciates connecting only by audio stating, this is the manner he prefers to participate with for the future hearing. The Tribunal appreciated this contextual information and recognized that the Appellant requires the patience of all Parties and the Tribunal in order to comprehend and process information through an audio stream.

5There was no request for Party or Participant status at the CMC.

MEDIATION

6The Tribunal canvassed the parties as to whether they have engaged in discussions to resolve any of the issues in the appeal, and whether they are interested in mediation. The Appellant indicated that his concerns with the proposed development are specific to the residential component. As this is the central issue in this matter it was recognized by both Counsel for the Town and the Applicant that a hearing to move the proposal forward was necessary. The Tribunal reminded the parties that Tribunal-assisted mediation is available to them, and that should they reach a point where mediation will be of assistance, they may request a mediation assessment through the assigned Case Coordinator.

HEARING, PO, and ISSUES LIST

7The Appellant stated that he would not be calling any expert witnesses. He agreed with Counsel that a one-day hearing at the Tribunal’s earliest opportunity would suffice to hear from the Town Planner and the Applicant’s planning witness. The Appellant stated he is prepared to speak to his issues in context with the Provincial Policy Statement, 2020 and the County of Lanark Official Plan.

8Counsel for the Town had submitted a draft PO and Issues List which the Appellant stated covered the concerns he had raised in his Appeal. As the Appellant had not submitted his issues in writing to the Town to be included in the draft Issues List, the Tribunal provided direction that he submit his issues to Counsel no later than July 15, 2021 to be included in the draft PO for the Tribunal’s consideration and approval.

9The Tribunal canvassed the parties as to the number and areas of expertise of their intended witnesses for the hearing. Counsel for the Town and the Applicant each indicated that they expect to call one witness in the hearing to address issues relating to land use planning. The Appellant will utilize the witnesses called by the Applicant and Town to further his case.

10The Tribunal, in recognizing the Appellant’s accommodation requirements, inquired with the Applicant and Town if they would be willing to provide an overview of their Planner’s submissions to the Appellant in advance of the hearing to ensure he can prepare for the hearing and to ensure the most effective use of Tribunal time. Both Counsel agreed to work with the Appellant and provide him with a general overview of the Planning expert’s evidence.

11With respect to the format of the hearing, Counsel agreed that it would be prudent to schedule this as a video hearing, given circumstances around COVID-19. As mentioned in paragraph [4] above, the Appellant will join via audio only.

12Based on the detailed discussion during the CMC regarding the issues, the expected number of witnesses, and the video hearing format, the Tribunal determined that it would be reasonable to schedule the hearing for one day.

ORDER

13The Tribunal further orders that the Procedural Order appended here as Schedule 1 shall govern the proceedings leading up to and including the hearing.

14The Tribunal orders that the hearing is scheduled to commence at 10 a.m. on October 12, 2021 for one day.

15Parties 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/518305837

Access code: 518 305 837

16Parties 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.

17Persons 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: (Toll Free): 1 888 299 1889 or +1 (647) 497-9373. The access code is 518 305 837.

18Individuals 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.

19No further notice of the hearing is required.

20This member may assist with case management, however, is not seized of the hearing.

“D. Chipman”

D. CHIPMAN

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

SCHEDULE 1

Ontario Land Tribunal

Procedural Order

ISSUE DATE: August 16, 2021 CASE NO.: PL210127

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O.

1990, c. P.13, as amended

Appellant: Steve Maynard

Subject: By-law No. BL11-83

Municipality: Town of Mississippi Mills

OLT Case No.: PL210127

OLT File No.: PL210127

OLT Case Name: Maynard v Mississippi Mills (Town)

1. 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

2. The video hearing will begin on October 12 , 2021 at 10:00 a.m..

3. The parties’ initial estimation for the length of the hearing is 1 day. 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 (see the sample procedural order for the meaning of these terms).

5. The Issues are set out in the Issues List attached as Attachment 2 to this Order. 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 is 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.

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/appeals-process/video-hearing/).

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 on or before August 18, 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.

10. Expert witnesses in the same field shall have a meeting on or before August 23, 2021 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties shall prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before September 27, 2021, if an agreement can be reached.

11. In lieu of a witness statement, the parties will provide a one-page synopsis of their expert witnesses’ anticipated evidence, 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 synopsis, 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 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.

13. On or before September 3, 2021, the parties shall provide a one-page synopsis of each of their witnesses’ anticipated evidence to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before September 3, 2021, 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.

15. On or before September 3, 2021, 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.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before, on or before October 1, 2021.

18. 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, on or before October 7, 2021.

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 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 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 7, 2021 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 parties shall prepare and file a final hearing plan prior to the further case management conference outlined in section 5 above. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. 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 email shall be governed by the Rule 7.

23. 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.

24. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 4.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member: D. Chipman

Date: August 16, 2021

TRIBUNAL REGISTRAR

SUMMARY OF DATES

DATE	EVENT
On or before August 18, 2021	Exchange of witness lists (names, disciplines and order to be called)
No more than 14 days after exchange of witness lists	Last date to challenge qualification of expert witness
August 23, 2021	Experts meeting prior to this date
On or before September 3, 2021	Exchange of witness evidence synopses and visual evidence
On or before September 27, 2021	Circulation of Agreed Statement of Facts (if any)
On or before October 1, 2021	Finalize Joint Document Book
On or before October 7, 2021	Finalize Work Plan and provide cross-examination documents
October 12, 2021	Hearing commences

Attachment 1

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel

Steve Maynard 146 Queen Street P.O. Box 1221 Almonte, ON K0A 1A0 stevemaynard@bell.net

Municipality of Mississippi Mills

Tony Fleming Tel: 613-546-8096 Fax : 613-542-9814 tfleming@cswan.com Cunningham, Swan, Carty, Little & Bonham LLP 27 Princess Street Kingston ON K7L 1A3

2241497 Ontario Ltd.

Ursula Melinz Tel: 613-782-3214 Fax:613-238-8507 melinzu@solowaywright.com Philip Osterhout Tel: 613-782-3202 Fax:613-238-8507 posterhout@solowaywright.com Soloway Wright LLP 700-427 Laurier Avenue West Ottawa, ON K1R 7Y2

B. PARTICIPANTS

Attachment 2

Issues List

Note: The identification of an issue on this list does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing. Any party may call or not call evidence on any issue.

1. Does the ZBA conform to the Municipality’s Community Official Plan, as amended by the concurrent OPA? Specifically, does the ZBA conform to the following sections:
   1. 1.1;
   2. 1.5.1(2);
   3. 1.7;
   4. 1.8;
   5. 1.9;
   6. 2.4;
   7. 2.5.1;
   8. 2.5.2;
   9. 2.5.3.2.3;
   10. 3.6.1;
   11. 3.6.2;
   12. 3.6.3;
   13. 3.6.5;
   14. 3.6.6;
   15. 3.7.1;
   16. 3.7.3;
   17. 3.7.3.1;
   18. 3.7.3.2;
   19. 3.7.3.3;
   20. 3.7.3.4;
   21. 3.7.3.5;
   22. 4.1.3;
   23. 4.2.1;
   24. 4.2.3(1)(iii);
   25. 4.2.3(2)(ii);
   26. 4.2.3(2)(iii);
   27. 4.2.3(2)(vi);
   28. 4.2.3(3)(i);
   29. 4.2.3(4)(viii);
   30. 4.2.3(5)(ii);
   31. 4.2.3(6);
   32. 4.4.2(2);
   33. 5.3.1;
2. Does the ZBA conform to the County of Lanark’s Sustainable Communities Official Plan? Specifically, does the ZBA conform to the following sections:
   1. 2.0;
3. Is the ZBA consistent with the PPS? Specifically, is the ZBA consistent with the following sections:
   1. 1.1.3.2;
   2. 1.1.3.4;
4. Does the ZBA represent good planning in the public interest?

Attachment 3

Order of Evidence

1. Appellant
2. Applicant
3. Municipality
4. Appellant reply, if necessary.

Attachment 4

Purpose of the Procedural Order and Meaning of Terms

Meaning of terms used in the Procedural Order:

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 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, group 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 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 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 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 wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.

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.