Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 28, 2021
CASE NO(S).: PL210246
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Veronica Symonds
Subject: By-law No. BL 33-2021
Municipality: City of Windsor
OLT Case No.: PL210246
OLT File No.: PL210246
OLT Case Name: Symonds v. Windsor (City)
Heard: September 21, 2021 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Veronica Symonds | B. Gagnier |
| City of Windsor | P. Brode*, W. Vendrasco* (in absentia) |
| 2516053 Ontario Inc. | E. Hooker* |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. JACOBS ON SEPTEMBER 21, 2021 AND ORDER OF THE TRIBUNAL
1The City of Windsor (“City”) passed a zoning by-law amendment (the “ZBA”) to allow the development of four, three-storey condominium buildings with 96 units at 3129 Lauzon Road. Veronica Symonds, an area resident, appealed the City’s passing of the ZBA to the Tribunal. The Tribunal convened this Case Management Conference (“CMC”) to identify the parties and schedule a hearing for the appeal.
2The Tribunal received four requests for party status prior to the CMC. The first was from the proponent of the development, 2516053 Ontario Inc., and the Tribunal granted its request, given its direct and obvious interest in this appeal.
3All three remaining requests for party status were from individuals who know and share the Ms. Symonds’ concerns. They are Jariwala Paresh, Jacqueline Roy-Proulx, and Nancy Tomko. Ms. Gagnier, who represents Ms. Symonds, indicated that she is also representing these three individuals. She sought clarification from the Tribunal about the role of a party and the appropriate role for the three individuals seeking status.
4After considering the matter, Ms. Gagnier advised the Tribunal that the individuals will be called as witnesses in the appellant’s case and were no longer seeking party status. She explained that each of them will testify, as will Ms. Symonds, regarding specific issues raised in the appeal to avoid any repetition.
5Based on the discussions during the CMC, Mr. Brode advised the Tribunal that the City expects to call one land use planning witness. Mr. Hooker also expects to call a land use planning witness, and—potentially in coordination with the City—a stormwater management expert and a traffic expert. The Tribunal agreed with counsel’s estimation that a two-day hearing is required.
6The parties prepared a draft Procedural Order (“PO”) including a list of three issues for the Tribunal’s review. The Tribunal directed the parties to remove the second issue from the list because it was captured by the first issue. The parties submitted the final PO following the CMC, appended here as Attachment 1. This PO shall govern the proceeding leading up to and including the scheduled hearing.
7Should the parties be interested in pursuing Tribunal-assisted mediation, they should contact the assigned Case Coordinator/Planner (Crisann.Alevizos@ontario.ca) at their earliest convenience to request a mediation assessment.
8The hearing will begin at 10 a.m. on Wednesday, February 2, 2022 and is scheduled for two days.
9Parties 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/387410349
Access code: 387 410 349
10Parties 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.
11Persons 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): 1 888 455 1389 or +1 (647) 497-9391. The access code is 387 410 349.
12Individuals 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.
13No further notice of the hearing will be given.
14This Member is not seized.
15This is the Order of the Tribunal.
“S. Jacobs”
S. JACOBS
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.
ATTACHMENT 1
ISSUE DATE: September 28, 2021 CASE NO(S).: PL210246
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant(s) 2516053 Ontario Inc.
Appellant(s) Veronica Symonds
Subject By-law No.: BL 33-2021
Property Address/Description: 3129 Lauzon Road
Municipality: City of Windsor
Municipal File No.: ZNG-026/20
OLT Case No.: PL210246
OLT File No.: PL210246
OLT Case Name: Symonds v. Windsor (City)
Introduction
- 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 Wednesday, February 2, 2022 at 10 a.m.
The parties’ initial estimation for the length of the hearing is 2 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 Schedule 1.
The issues are set out in the Issues List attached as Schedule 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.
The order of evidence shall be as set out in Schedule 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. (https://olt.gov.on.ca/appeals-process/video-hearing/)
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 Thursday, December 9, 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 Tuesday, January 11, 2022 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 OLT case co-ordinator on or before Tuesday, January 18, 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 Thursday, December 23, 2021, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before Thursday, December 23, 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.
On or before Tuesday, January 25, 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 within fourteen (14) days after the evidence is received 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 Friday, January 21, 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, February 2, 2021 (date).
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 Tuesday, January 25, 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.
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: S. Jacobs, Vice-Chair
Date: September 28, 2021
TRIBUNAL REGISTRAR
Schedule 1
LIST OF PARTIES AND PARTICIPANTS
3129 Lauzon Road Appeal – OLT Case Number PL210246
Identification of Parties –
For the Appellant
Veronica Symonds – the Appellant
Brenda Gagnier representative for Appellant.
For the Applicant
2516053 Ontario Inc.
Edwin C. Hooker – Solicitor for the Applicant
NTD: Pending approval at CMC per Party Request Form submitted Sep 2, 2021
For the Municipality
The City of Windsor
Wira Vendrasco – City of Windsor, Deputy City Solicitor
Participants
None
Schedule 2
ISSUES LIST
3129 Lauzon Road Appeal – OLT Case Number PL210246
- Is the application in conformity with the City of Windsor’s Official Plan? More specifically sections 6.3.2.5(c) and (f), 6.3.2.6(a)(iv), 7.3.4.7(c), 8.5.2.7, 8.7.2.1(a), 8.7.2.2(f), 8.7.2.3, and 8.7.2.4. which refer to the following:
a. Massing
b. Building Height (respecting “…facilitating a gradual transition from low profile residential development to Medium and/or high profile development.”
c. Volumes of Defined Space – as it relates to storm water management and risk of flooding
d. Position Relative to the Road
e. Protection of Trees, Woodland and Wildlife
f. Traffic Intensity
g. Identified Issues with Current Flooding
i. Namely the past experiences of residents with flooding and whether the approval of the development is premature until an anticipated floodplain study for the Little River area is complete
- Does the City of Windsor have authority to exempt the subject property from Interim Control By-law 103-2020?
Possibility of settlement and/or mediation of any or all of the issues – the panel will explore with the parties whether the case before the Tribunal and the issues in dispute are matters that may benefit from mediation. Mediation is a voluntary process that encourages all sides in a dispute to get a better understanding of each other’s positions and fully explore and negotiate options for a mutually acceptable settlement of all or some of the issues in dispute. The panel may direct, upon consent of the parties, that some or all of the issues in dispute proceed to mediation.
Schedule 3
ORDER OF EVIDENCE
3129 Lauzon Road Appeal – OLT Case Number PL210246
Introduction
Preliminary Matters (if any)
Opening Statements (if any)
City of Windsor’s Witness(es)
Appellant’s Witness(es)
Applicant’s Witnesses
Closing Argument
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.