Bara Group (Whitby) Inc. v. Whitby (Town), 2021 CanLII 88718

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

September 14, 2021

CASE NO(S).:

PL190545

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

Applicant and Appellant:

Bara Group (Whitby) Inc.

Subject:

Application amend Zoning By-law No. 2585 - Refusal of Application by Town of Whitby

Existing Zoning:

R2 – Residential Type 2

Proposed Zoning:

Sie Specific

Purpose:

To permit the use of an 8-storey mixed use building with 92 apartment units and 282.7 square metres of commercial space on the ground floor

Property Address/Description:

1201+1207 Brock St S & 1200+1202 Green St

Municipality:

Town of Whitby

Municipality File No.:

Z-31-18

OLT Case No.:

PL190545

OLT File No.:

PL190545

OLT Case Name:

Bara Group (Whitby) Inc. v. Whitby (Town)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by:

Bara Group (Whitby) Inc.

Subject:

Site Plan

Property Address/Description:

1201+1207 Brock St S & 1200+1202 Green St

Municipality:

Town of Whitby

OLT Case No.:

PL190545

OLT File No.:

PL190546

Heard:

August 11, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Bara Group (Whitby) Inc.

Matthew Helfand

Town of Whitby

Andrew Biggart

MEMORANDUM OF ORAL DECISION DELIVERED BY M.A. SILLS ON AUGUST 11, 2021 AND ORDER OF THE TRIBUNAL

1The was the first Case Management Conference (“CMC”) in the matter of appeals by Bara Group (Whitby) Inc. (“Applicant/Appellant”) from the refusal of the Town of Whitby (“Town”) of an application to amend Zoning By-law No. 2585 (the “ZBA”) and to approve a Site Plan for the properties described as 1201+1207 Brock Street South and 1200+1202 Green Street (collectively, the “Site”).

2The Site encompasses four individual residential properties at the northeast corner of Consumers Drive and Brock Street South. The consolidated properties have a combined area of approximately 0.33 hectares (“ha”).

3The surrounding uses include single detached dwellings to the east, commercial properties, including a gas station and restaurants to the south, and single detached dwellings that have been converted for various business uses to the north and west. The Whitby GO station is located to the south-west on the south side of Highway 401.

4The Applicant/Appellant is proposing to demolish three existing single detached homes and accessory buildings and develop the Site with an eight storey mixed use building containing 92 apartment units and 282.7 square meters (“sq m”) of commercial space on the ground floor.

5The purpose and effect of the proposed ZBA is to change the zoning from R2 – Residential Type 2 Zone to a site-specific zone category to facilitate the redevelopment of the Site in the manner proposed. The associated Site Plan application has been referred to the Tribunal.

6The Town staff report from the Commissioner of Planning and Development to the Committee of the Whole (the “Committee”) on September 9, 2019, recommended that the requisite ZBA be approved subject to the conditions set out in the report. That same report confirmed that the proposed development conforms to the policy directions of the Region of York Official Plan and the Town Official Plan regarding development along a designated intensification corridor. The Committee denied the ZBA application.

Request for Status

7There were no requests for party status.

8The Tribunal received several Participant Status Request forms in advance of the CMC. Without objection, Participant status is granted to: 1) Frank and Barbara D’Onofrio; 2) Brent and Jessica Medeiros; 3) Beth Paddock; 4) Shellie Taylor; 5) Dianne and William Huson; and 6) Kathy Francis.

9Several other Participant status requests could not be considered at this CMC because the individuals making the request were not in attendance. These remaining requests have been deferred to the next CMC for consideration at that time. Any individuals and/or entities that submitted a Participant Status Request Form in advance of the first CMC and are not listed in paragraph 8 of this decision must attend the next CMC if it is their intent to pursue Participant status. The scheduling details of the next CMC are provided elsewhere in this decision.

10Only those Requests for Participant Status and/or party status that were submitted to the Tribunal prior to the first CMC will be accepted and considered by the Tribunal.

11The Tribunal received a Participant Status Request Form from Peter Bell in advance of the first CMC, and while Mr. Bell did attend the CMC, he confirmed that he was not seeking status in the hearing.

Procedural Order

12The parties agree that up to five (5) days will be required for the hearing on the merits and a Draft Procedural Order (“DPO”) has been prepared. Following confirmation from the Tribunal of the scheduling of the hearing dates an updated DPO was submitted for the consideration and approval of the Tribunal.

13The purpose of the Procedural Order (“PO”) is to organize and govern the hearing processes by establishing Rules of Practice and Procedures (“Rules” ) for the conduct of the hearing, including the dates for the exchange of information, materials and documents, and the prescribed format in which these materials are to be provided.

14Participants are strongly encouraged to review the PO, and in particular, Rules 8, 9, 14 and 23, and the Participant and Participant Statement sections of the Meaning of Terms Used in the Procedural Order.

15For greater clarity, the Tribunal has made minor edits to the DPO that are technical in nature and do not change the substance or intent of the Rules. Specifically, the Tribunal has added a clause in Rule 5 that provides for necessary revisions to Attachment 2 (Participant List) following from the next CMC.

16The PO as revised by the Tribunal and appended to this Order as Attachment 1, comes into full force and effect on the date of issue of this decision.

Scheduling Details

17At the request of the parties the Tribunal has scheduled another CMC by video hearing for Friday, January 14, 2022 at 10 a.m.

18A five (5)-day video hearing is scheduled beginning Monday, May 9, 2022 at 10 a.m.

19The CMC and the hearing on the merits are scheduled to proceed by video as follows: Friday, January 22, 2022 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/440411445 Access code: 440-411-445 Audio-only telephone line: (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 440-411-445 Monday, May 9, 2022 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/180969157 Access code: 180-969-157 Audio-only line: (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 180-969-157

20Parties 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.

21Parties 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

22Persons 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.

23Individuals 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 hearings 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.

24No future notice will be provided.

25This Member is not seized but will be available for case management purposes subject to availability on the Tribunal calendar.

“M.A. Sills”

M.A. SILLS

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.

ISSUE DATE: CASE NO(S).: PL190545

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

Applicant(s)/Appellant(s):

Bara Group (Whitby) Inc.

Subject:

Application amend Zoning By-law No. 2585 - Refusal of Application by Town of Whitby

Existing Zoning:

R2 – Residential Type 2

Proposed Zoning:

Site Specific

Purpose:

To permit the use of an 8-storey mixed use building with 92 apartment units and 282.7 square metres of commercial space on the ground floor

Property Address/Description:

1201+1207 Brock St S & 1200+1202 Green St

Municipality:

Town of Whitby

Municipal File No.:

Z-31-18

OLT Case No.:

PL190545

OLT File No.:

PL190545

OLT Case Name:

Bara Group (Whitby) Inc. v. Whitby (Town)

PROCEEDING COMMENDED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant(s)/Appellant(s):

Bara Group (Whitby) Inc.

Subject:

Site Plan

Property Address/Description:

201+1207 Brock St S & 1200+1202 Green St

Municipality:

Town of Whitby

OLT Case No.:

PL190545

OLT File No.:

PL190546

PROCEDURAL ORDER

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 Tribunal will hold a second case management conference on January 14, 2022.

3. The video hearing will begin on May 9, 2022 at 10:00 a.m.

4. The length of the hearing will be about five (5) 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 procedural order deadlines are generally found in Attachment 1.

5. The Parties and Participants identified at the case management conferences are set out in Attachment 2 to this Order. Attachment 2 will be amended to include the complete list of Participants following the case management conference to be held on January 14, 2022.

6. The issues are set out in the Issues List attached as Attachment 3 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.

7. The order of evidence shall be as set out in Attachment 4 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.

8. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.

9. 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

10. 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 90 calendar days before the hearing (on or before February 8, 2022). For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified. Any challenges to the qualifications of a witness to give opinion evidence in the area of expertise proposed should be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties at least 70 calendar days before the hearing is scheduled to commence (on or before February 28, 2022).

11. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing, no later than 60 calendar days before the hearing (on or before March 10, 2022) to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the Parties and the Tribunal at least 10 days prior to date for Expert Witness Statements as stated in Section 13 (on or before March 15, 2022).

12. 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, the acknowledgement of expert’s duty and curriculum vitae. Copies of this must be provided as in Section 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other Parties at the same as the delivery of expert witness statements, as in Section 13.

13. A witness or expert witness must provide to the Tribunal and the Parties any witness statement or expert witness statement (full disclosure including reports), respectively, at least 45 calendar days prior to the scheduled commencement of the hearing (on or before March 25, 2022), or the witness may not give oral evidence at the hearing.

14. A participant must provide to the Tribunal and the Parties any participant statement at least 45 calendar days prior to the scheduled commencement of the hearing (on or before March 25, 2022). Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.

15. 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.

16. At least 30 calendar days prior to the scheduled commencement of the hearing (on or before April 11, 2022), the Parties may provide to all other Parties a written reply to any written evidence.

17. At least 25 calendar days prior to the scheduled commencement of the hearing (on or before April 14, 2022), the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, and all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion.

19. 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.

20. At least 20 days before the commencement of the hearing (on or before April 19, 2022), the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.

21. The Parties shall prepare a Joint Document Book 15 days before the hearing is scheduled to commence (on or before April 25, 2022), and of which one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in paper (where feasible) and an accessible electronic format in accordance with Section 23.

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 revised plans and drawings to the other Parties 65 days before Expert Witness Statements as stated in Section 13 (on or before January 19, 2022). 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.

23. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. Section 23 applies regardless if the hearing event is in-person or electronic.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by Section 22. The Tribunal’s Rule 17 applies to such requests.

25. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

26. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member: M. A. Sills

ATTACHMENT 1

DATE

EVENT

January 19, 2022 (65 days before Witness Statement Date)

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

February 8, 2022 (90 days prior to hearing)

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

February 28, 2022 (70 days prior to hearing)

Last date to challenge identification of expert witness

March 10, 2022 (60 days prior to hearing)

Experts meeting prior to this date

March 15, 2022 (55 days prior to hearing)

Agreed Statement of Facts to be filed

March 25, 2022 (45 days prior to hearing)

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

April 11, 2022 (30 days prior to hearing)

Exchange of Reply Witness Statements (if any)

April 14, 2022 (25 days prior to hearing)

Exchange of visual evidence (if any)

April 19, 2022 (20 days prior to hearing)

Final Work Plan filed with the Tribunal

April 25, 2022 (15 days prior to hearing)

Finalize Joint Document Book

May 9 – 13, 2022

Hearing Dates

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

PARTIES:

1. Bara Group (Whitby) Inc.

Andrea Skinner

Aird & Berlis LLP

181 Bay Street, Suite 1800

Toronto, ON M5J 2T9

Tel: 416.865.3423

Fax: 416.863.1515

Email: askinner@airdberlis.com

Matthew Helfand

Aird & Berlis LLP

181 Bay Street, Suite 1800

Toronto, ON M5J 2T9

Tel: 416.865.4624

Fax: 416.863.1515

Email: mhelfand@airdberlis.com

2. Town of Whitby

Andrew Biggart

Ritchie Ketcheson Hart & Biggart LLP

1 Eva Rd., Suite 206

Etobicoke, Ontario M9C 4Z5

Tel: 416-622-6601 Ext: 1003

Fax: 416-622-4713

Email: abiggart@ritchieketcheson.com

PARTICIPANTS:

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. 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 Tribunal have jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

Bara Group (Whitby) Inc.

1. Planning Act:

Does the Proposed Development have appropriate regard for matters of provincial interest as set out in Section 2 Planning Act, including (h), (j), (p) and (q)?

2. Provincial Policy Statement (2020):

Is the Proposed Development consistent with the Provincial Policy Statement (2020), including the Preamble and Policies 1.1.1. a) and e), 1.1.3.1, 1.1.3.2 a), b), e) and f) 1.1.3.3, 1.1.3.4., 1.1.3.5, 1.1.3.6, 1.4.3 b), c), d) and f), 1.6.7.4, 1.7.1 b), c) and d), 4.1, 4.2 and 4.6?

3. A Place to Grow (2019)

Does the Proposed Development conform to the Provincial Growth Plan for the Greater Golden Horseshoe (2019) as amended 2020, including: Policies 2.2.1.2(a) and (c), 2.2.4.1, 2.2.4.2, 2.2.4.3(c), 2.2.4.6, 2.2.4.8, 2.2.4.9, 2.2.4.10, 3.2.1.3, 3.2.2.1, 3.2.2.2, 3.2.2.3, 3.2.2.4 4.2.10.1(a) and (b), 5.1 (Context), 5.2.3.2(b), 5.2.5.1?

4. Metrolinx Regional Transportation Plan, 2018

Does the Proposed Development help to implement the strategies set out in the Metrolinx Regional Transportation Plan, 2018 and in particular Strategy 4: Integrate transportation and land use and Guidelines with respect to Mobility Hubs.

5. Region of Durham Official Plan, 1993 as amended to 2020

Does the Proposed Development conform to the Regional Official Plan policies including Policy 8.2.1, 8A.1.4, 8.a.1.5, 8A2.8, 8A2.9 and Schedule A, Map A-4, 11.2.2, 11.3.16.,11.3.19., Schedule C, Map C2

6. Town of Whitby Official Plan (2018 Consolidation)

Does the Proposed Development conform to the adopted and in-force policies of the Town of Whitby as applicable at the time of the filing of the application for the Zoning By-law amendment on November 21, 2018, including the Municipal Structure Map 1, and Schedules A, B and D., Sections 4.2.1, 4.2.2, 4.2.3, 4.2.4 4.2.6, 4.2.7.1, 4.2.7.2 (as amended), 4.2.7.3 4.2.9.2 , 4.4.3.7, 4.4.3.8., 4.4.3.10.2, 4.4.3.10.4, 4.4.3.13.2, 4.6 (Mixed Use), 6.2.3.1, 6.2.3.2, 6.2.3.4, 6.2.3.12, 6.2.3.14, 7.5, 8.1.3.7, 8.1.3.8, 10.1.1.1, 10.1.11.4, 10.1.11.5, 10.1.11.6

7. Should the proposed site plan drawings be approved and are the proposed conditions of site plan approval appropriate?

Town of Whitby

1. Does approval of the proposed Zoning By-law Amendment (the “ZBA”) have regard to matters of provincial interest in section 2 of the Planning Act including the matters set out in sections 2(h), 2(n), 2(p) and 2(r) therein?

2. Is the ZBA consistent with the Provincial Policy Statement, 2020? In particular, but not limited to the following policy sections:

• Policy Sections 1.1.1, 1.1.3.2, 1.1.3.3 and 1.1.3.4 (Settlement Areas); and

• Policy Section 4.6 (Implementation and Interpretation)

3. Is the ZBA in conformity with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019? In particular, but not limited to the following policy sections:

• Policy Section 1.2.1 (Guiding Principles);

• Policy Section 2.2.1 (Managing Growth); and

• Policy Section 5.2.5.8 (Implementation and Interpretation).

4. Is the ZBA in conformity with the Region of Durham Official Plan? In particular, but not limited to the following policy sections:

• 8A.1.5 Corridors, and

• 8A.2.9 Corridors.

5. Is the ZBA in conformity with the Town of Whitby Official Plan? In particular, but not limited to the following policy sections:

• 4.2, Intensification;

• 4.2.7 Intensification Corridors;

• 4.4.3.7 High Density Residential;

• 4.4.3.10 Redevelopment and Intensification

• 4.5.3.7 Residential Uses in Commercial Designations;

• 4.6 Mixed Use; and

• 6.2.1, 6.2.2 and 6.2.3 Urban Design.

6. Does the ZBA authorize an appropriate level of density and intensification for the subject lands?

7. Is the proposed development compatible with nearby existing and planned development in relation to massing, scale, and design, and with the overall streetscape?

8. Does the proposed development provide for an appropriate amount of amenity area?

9. Does the proposed development create adverse impacts related to privacy, overlook and shadows?

10. Does the ZBA sufficiently regulate matters of built form including height, density, massing, scale, setbacks, lot coverage and landscaping having regard for the site, adjacent property and the character of the surrounding lands?

11. Does the proposed development represent good land use planning and is it in the public interest?

ATTACHMENT 4

ORDER OF EVIDENCE

1. Bara Group (Whitby) Inc.  
2. Town of Whitby
3. Bara Group (Whitby) Inc. (in reply, if necessary)

ATTACHEMENT 5

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 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 (CMC), 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 (only a party may do so). Subsection 33.2 of the Local Planning Appeal 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 may receive notice of a mediation or conference calls on procedural issues. Participants are not permitted to 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 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.

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.

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