Friends of South Shore (FOSS) v. Prince Edward (County), 2022 CanLII 106854

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

November 10, 2022

CASE NO(S).:

OLT-21-001101

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

Applicant:

Fourward Holdings Inc. & Quinte Isle Campark Inc.

Appellant:

Friends of South Shore (FOSS)

Subject:

Proposed Official Plan Amendment OPA2- 2018

Purpose:

To permit a 337-unit park model trailer site on a 38.6 hectare parcel of land along the shore of Soup Harbour

Property Address/Description:

558 Wellbanks Road

Municipality:

Prince Edward County

OLT Lead Case No.:

OLT-21-001101

OLT Case No.:

OLT-21-001101

OLT Case Name:

Friends of South Shore (FOSS) v. Prince Edward (County)

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

Applicant:

Fourward Holdings Inc. & Quinte Isle Campark Inc.

Appellant:

Friends of South Shore (FOSS)

Subject:

By-law No. Z25-18

Property Address/Description:

558 Wellbanks Road

Municipality:

Prince Edward County

OLT Lead Case No.:

OLT-21-001101

OLT Case No.:

OLT-21-001102

Heard:

October 31, 2022 by video hearing (“VH”)

APPEARANCES:

Parties

Counsel

Fourward Holdings Inc. (“Applicant” or “Fourward”)

Patrick Harrington

Matthew Helfand

Prince Edward County (“County”)

Jennifer Savini

Friends of South Shore (“FOSS”)

David Donnelly

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

PART ONE: INTRODUCTION

1This proceeding relates to the appeal by FOSS of the passing by the Council of the County of an Official Plan Amendment (“OPA2-2018”) and a Zoning By-law Amendment (“ZBL Z25-18”) for the lands owned by Fourward Holdings Inc. and located at 558 Wellbanks Road in the County.

2The Applicant proposed to develop a 337 - unit model trailer park (“Development”) on a 38.6-hectare portion of its land parcel comprising 390 hectares (“Subject Property”) along the shoreline of Soup Harbour on Lake Ontario. OPA2-2018 redesignated the Subject Property from “Rural” to “Shore Land”. ZBL Z25-18 changed the zoning of the Subject Property from Rural 2 (RU2) to Special Trailer Commercial (TPC).

3The merits hearing in this matter will commence on November 22, 2022 before the Ontario Land Tribunal (“OLT” or “Tribunal”) and is currently scheduled for 14 hearing days. The Applicant brought a motion dated October 17, 2022 to strike certain portions of the witness statement (“WS”) of Debra Marshall, who is the executive director of FOSS.

4In summary, the Applicant alleges that:

(a) In accordance with the Procedural Order governing this case, on July 4, 2022 all parties delivered their respective witness lists. At that time, each parties’ list included an expert in the field of cultural heritage;

(b) Fourward listed that Dan Currie, MCIP, RPP, CAHP would be called as an expert witness in the field of cultural heritage;

(c) The County listed that Owen R. Scott, OALA, FCSLA, CAHP would be called as an expert witness in the field of cultural heritage;

(d) FOSS listed that Michael McClelland, OAA, AAA, FRAIC, CAHP would be called as an expert witness in the field of cultural heritage;

(e) On September 2, 2022, counsel for FOSS delivered a letter to the Tribunal and the parties, stating that it would no longer be calling several witnesses, including Michael McClelland (cultural heritage);

(f) On September 26, 2022, all parties delivered their witness statements. Both Fourward and the County noted in their covering correspondence that they were not supplying witness statements for their cultural heritage witnesses, in reliance on the fact that FOSS was no longer calling a cultural heritage witness;

(g) Despite the express understanding between all parties that cultural heritage experts would not be called as witnesses in this proceeding, FOSS included cultural heritage opinion evidence in the WS of Ms. Marshall;

(h) Ms. Marshall is a resident who was included on FOSS’ witness list as a “lay witness per community character”. Notwithstanding her lack of any professional qualifications, Ms. Marshall’s WS includes various assertions related to cultural heritage. Ms. Marshall’s WS also purports to rely upon, and attaches a copy of, a South Shore Preliminary Cultural Heritage Landscape Assessment from Bray Heritage, dated September 25, 2018 (“Bray Report”). No one from Bray Heritage is listed as a witness for FOSS and to the best of Fourward’s knowledge and belief, Ms. Marshall has no professional connection to Bray Heritage or the Bray Report;

(i) Ms. Marshall is listed by FOSS as a lay witness intended to provide evidence related to “community character”. “Community character” is an abstract and broad concept and the Tribunal is at liberty to accept layperson evidence towards a better understanding of a community’s character. In contrast, questions of cultural heritage are the domain of professionals with specialized knowledge, skill and experience in the field. Evidence with respect to community character is not the same as evidence with respect to cultural heritage.

5The written response from FOSS to the motion opposed the relief sought by the Applicant, alleging, in summary, that:

(a) Ms. Marshall is a sixth-generation resident of the County, the location of the proposed Development;

(b) She is the executive director of FOSS, has a record of more than 50 years in the community, and enjoys the trust of FOSS to describe “community character” in the County and the South Shore where the Development will be located;

(c) Fourward does not provide a definition for either “cultural heritage” or “community character” in its Notice of Motion or in the supporting affidavit;

(d) The nexus between cultural heritage and community is sufficiently close that drawing a clear distinction between the two is difficult, and in any event, has not even been attempted by Fourward;

(e) The Provincial Policy Statement (“PPS”) is silent with respect to a definition of “cultural heritage”. The PPS does define “cultural heritage landscapes”, which is a related concept to cultural heritage and community character and also defines “heritage attributes”. There is no definition of “community character” in the PPS and none is offered by the Applicant;

(f) It is consistent with the Tribunal’s practice (and its predecessors) to receive non-controversial, non-opinion evidence from a planner at the commencement of a hearing, to lay out the development context of the Subject Lands and establish the tangible and intangible heritage assets of the area. This is exactly what Ms. Marshall is proposing with her evidence. The evidence she will be giving in her WS is factual and deals primarily with the “who, what, where, when and why” questions that are a hallmark of fact-based, non-opinion evidence;

(g) As a long-time and active resident, Ms. Marshall is best qualified of all the witnesses, including the proposed cultural heritage experts, to give this community character evidence based on her experience;

(h) Fourward does not object to community character evidence and if Fourward was concerned about the overlap of community character and cultural heritage evidence, it could have called a cultural heritage expert in Reply but chose not to do so; and

(i) Generally, the plain meaning of Ms. Marshall’s evidence is factual, and should not be redacted and nowhere in its submissions does Fourward describe why or how the impugned statements it objects to offend the general rule on limiting lay witnesses to fact-based, non-opinion evidence.

6The materials before the Tribunal at the VH were:

(a) Motion Record of the Applicant, comprising 161 pages;

(b) Responding Motion Record of FOSS comprising 45 pages, including the affidavit of Ms. Marshall sworn October 25, 2022;

(c) Brief of Authorities of the Applicant, comprising 103 pages;

(d) Brief of Authorities of FOSS, comprising 112 pages;

(e) Email correspondence to the OLT dated October 25 from the County’s counsel advising that the County supported the Applicant’s position on the Motion and relied on the Applicant’s filed materials; and

(f) Additional case law submitted by both counsel for the Applicant and for FOSS on the day of the VH (which will be referred to in Part Three below).

Part Two: PRELIMINARY RULINGS

7Counsel for FOSS objected twice during the submissions by counsel for the Applicant and counsel for the County, as follows:

(a) An objection to any submissions by Ms. Savini on the merits of the Motion other than her support and adoption of the Applicant’s submissions; and

(b) An objection to any argument by the Applicant’s counsel referring to or relying on Ms. Marshall’s status as the executive director of FOSS as she described in her affidavit or, apparently, to any other argument not expressly stated in the Applicant’s Notice of Motion.

8FOSS’s counsel appeared satisfied with Ms. Savini’s assurance that she would only state her client’s adoption of the Applicant’s position on this Motion and her statement that if ‘cultural heritage’ evidence was provided through the evidence of Ms. Marshall that this would prejudice the County as it had withdrawn its intention to call its own expert cultural heritage witness in reliance on the decision of FOSS to do the same. Ms. Savini’s only submissions at the VH were consistent with those assurances.

9However, counsel for FOSS took the position that the Applicant’s lawyer could not make any argument on the Motion not explicitly set out in its Motion Record because otherwise this would constitute a “surprise”, “ambush” and would lead to ‘unfairness’ because FOSS did not have a prior opportunity to prepare and respond to such arguments. In particular, FOSS’s counsel characterized as impermissible and unfair any effort by the Applicant’s counsel to rely on Ms. Marshall’s status with FOSS to support an argument that she was not an independent lay witness.

10At the VH, the Tribunal delivered a brief oral ruling denying the objection of FOSS’s’ counsel described above in paragraphs [7] and [9] above (“Objection”).

11In the Tribunal’s view, there is no proper basis for the Objection. Counsel for FOSS could cite no provision in the OLT Rules of Practice and Procedure, nor in the Ontario Rules of Civil Procedure that requires either party to a motion to identify in exhaustive detail prior to the motion hearing each and every possible argument they may make at the hearing. Nor could FOSS’ counsel cite any jurisprudence establishing such a proposition. In any event, the sole submission of the Applicant’s counsel at issue under the Objection was the intention to point out that by reason of her status as the executive director of FOSS, Ms. Marshall could not be seen to be an independent witness.

12Counsel for FOSS attempted to argue that the Applicant as moving party was obligated to file a Reply to outline any argument not expressly stated in its Notice of Motion. Rule 10.4 of OLT’s Rules of Practice and Procedure (“Rules”) states that:

10.4 Content of Motion Material The notice of motion to be heard in person, electronically, or in writing shall:

(a) state the day, time and location of the hearing of the motion;

(b) state the precise relief sought;

(c) state the grounds to be argued, including a reference to any statutory provision or Rule to be relied on;

(d) list the documentary evidence to be used at the hearing of the motion;

(e) be accompanied by an affidavit setting out a brief and clear statement of the facts upon which the moving party will rely; and

(f) state the names and addresses of the responding parties or their representatives and all persons to whom the notice of motion is to be given.

[Emphasis added]

13Rule 10.6 further provides:

10.6 The Notice of Response to Motion A responding party shall serve a notice of response that:

(a) states the response to be made, including a reference to any statutory provision or Rule to be relied on;

(b) lists the documentary evidence to be used at the hearing of the motion; and

(c) includes an affidavit setting out a brief and clear statement of the facts upon which the responding party will rely.

[Emphasis added]

14Finally, Rule s 10.8 and 10.9 state:

10.8 Reply Submission A moving party may serve a reply submission, 3 days prior to the commencement of the hearing of the motion.

10.9 Oral Submissions All the parties to a motion which is heard in person or by electronic hearing may make oral submissions.

[Emphasis added]

15Nowhere in the Rules reproduced in paragraphs [12], [13] and [14] above is there a requirement imposed to identify each and every argument that might be made at the oral hearing of a motion, nor is there any mandatory obligation to file a reply submission. On the other hand, the Tribunal is of the view that if a moving party seeks additional substantive relief beyond that reasonably related to what was sought in the original Notice of Motion, or seeks to rely on additional facts or wholly new grounds not set out therein, then there could be an obligation to file an amended Notice of Motion or, in certain circumstances, a reply submission. However, the circumstances will differ on each motion and it is unnecessary for the purposes of this Decision to describe each and every circumstance that might give rise to such an obligation.

16In the Tribunal’s view, there is no requirement that the moving party file a reply simply to signal its intention to make reference to or base an argument upon facts contained or grounds alleged in the responding motion record. This was precisely the situation complained of by counsel for FOSS who suggested that the Applicant’s counsel must not make any argument based on Ms. Marshall’s office with FOSS without doing so in a written reply submission under Rule 10.8. Yet, since Ms. Marshall’s affidavit was prepared and filed by FOSS’ counsel, there is no prospect for ‘unfair surprise’ here – clearly counsel for FOSS had full knowledge of the facts in that affidavit. Presumably, he also knew or ought to have known that when his client’s ‘directing mind’ swore her affidavit that it could then be argued that she may lack status as an independent witness. In the Tribunal’s view, this is trite law and surely was within the contemplation of FOSS’ counsel who has substantial past experience before the OLT and its predecessors – in any event, any issues relating to Ms. Marshall’s evidence as a ‘non-independent’ witness are best dealt with by the OLT Member presiding at the merits hearing.

17At the VH, the Tribunal noted that even if the Rules implied that the Applicant’s counsel should have disclosed by way of reply his argument that Ms. Marshall was not an independent witness – which is not the determination of this Tribunal – in these circumstances, the Tribunal under Rules 1.5 and 1.6 would have viewed this ‘omission’ as a mere irregularity and would have granted an exception since pursuant to Rule 1.3, the “…Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.”

18Counsel for FOSS attempted to rely on the Ontario Rules of Civil Procedure to support his arguments yet could not point to any provision there that bolstered his position. In any event, the Tribunal need not have reference to those provisions, since under Rule 1.4 of the OLT Rules it is only:

…If these Rules do not provide for a matter of procedure, the Tribunal may adopt or follow the procedures set out in the Rules of Civil Procedure where appropriate and do whatever is necessary to adjudicate effectively and completely to resolve the merits of any dispute on any matter…

[Emphasis added]

Part Three: RULINGS ON ISSUES RAISED ON THE MOTION

19The Applicant seeks to excise from the WS of Ms. Marshall all passages that constitute impermissible opinion evidence on cultural heritage matters, especially in light of the withdrawal by FOSS of its intention to call the cultural heritage expert, Michael McClelland, on that issue. As noted, this then led the Applicant and the County to decide to withdraw their intention to call evidence from their own experts on the same issue. FOSS does not challenge these facts.

The Bray Report

20The Tribunal agrees with the Applicant that the current content of Ms. Marshall’s WS clearly contains opinion evidence arguably directed to matters of cultural heritage. Moreover, the WS also attempts to introduce by way of an appendix the expert report of Bray Heritage dated September 25, 2018 and authored by Mr. Carl Bray. This report commissioned by FOSS is entitled “South Shore Preliminary Cultural Heritage Landscape Assessment”, (“Bray Report”) and was attached to Ms. Marshall’s affidavit in response to the Applicant’s Motion.

21The Bray Report presents the simplest issue of admissibility for the Tribunal to address. FOSS cannot advise the other Parties that it will not call cultural heritage evidence at the merits hearing but with full knowledge that the other Parties likewise withdrew their intentions to do so, then introduce the Bray Report as somehow a mere factual adjunct to Ms. Marshall’s WS. In the Tribunal’s view, this is clearly improper and cannot be explained away by FOSS’s counsel as only an attempt to provide factual background to the Tribunal at the upcoming hearing.

22While the Bray Report contains certain recitations of background facts, much like probably every expert report delivered in an OLT proceeding, it also obviously sets out opinions on cultural heritage matters by an expert with apparent skills and experience in that field. Mr. Bray makes this very clear in the Bray Report introduction as follows:

“…The following report has been prepared in response to a request by the Friends of the South Shore (FOSS) for a preliminary assessment of the South Shore area of Prince Edward County for its potential significance as a cultural heritage landscape.”

[Emphasis added]

Equally obvious is the fact that this passage demonstrates that FOSS, and apparently Ms. Marshall as its Executive Director, had specifically retained Mr. Bray to provide those expert opinions.

23The Tribunal will not recite in this Decision excerpts of the many opinions contained in the Bray Report since to do so would essentially capture on the record matters which should not be before the Tribunal Member presiding at the merits hearing in this case. If Ms. Marshall is called to provide purely factual evidence for FOSS at the hearing, she does not require the Bray Report to do so since she self-describes as a long-time resident in the area with a deep knowledge of and appreciation for the ‘community character’ of the area and has long been involved as an activist to safeguard this aspect.

24Interestingly, despite the ‘fairness’ arguments made concerning the Objection discussed above in paragraphs [9] and [16] above, the Tribunal agrees with the Applicant’s counsel that to permit the Bray Report to be referred to and appended to the Marshall WS really does create a fairness issue: Ms. Marshall cannot be cross-examined on the opinions contained in the Bray Report and, of course, Mr. Bray is not being called as a witness at the merits hearing. Thus, to permit the Bray Report to be tendered as part of the Marshall WS means that the Applicant and the County will have no opportunity to test and challenge its findings – which is obviously unfair.

25The Tribunal determines that the Bray Report must not be filed as part of the WS of Ms. Marshall or any other witness put forward by FOSS’ counsel at the upcoming hearing.

The Marshall WS

26The Applicant’s counsel on this Motion requests the Tribunal to consider certain passages in Ms. Marshall’s WS and to strike the inadmissible portions thereof. FOSS’ counsel on the other hand maintains that this ought to be left to the OLT Member presiding at the merits hearing and further argues that it is impermissible for the Tribunal to do so on this Motion.

27In the Tribunal’s view, given the way FOSS has structured and presented the Marshall WS, at this late stage of the proceeding only a few weeks prior to the merits hearing, the only practical way to deal with the presence of improper and inadmissible opinion evidence is to strike the Marshall WS in its entirety and to direct FOSS’ counsel not to attempt to introduce ‘cultural heritage’ evidence in any fresh or amended WS of Ms. Marshall or any other fact witness. To append a version of the WS showing all redactions made by the Tribunal would raise the same concerns described in paragraph [23] above.

28For clarity, as reflected in the Order section below, if it intends to call Ms. Marshall as a witness in this proceeding, FOSS is directed to deliver forthwith a fresh WS for Ms. Marshall that does not contain any of the following content:

(a) Any expression of opinion regarding the current or future anticipated cultural heritage attributes of the Subject Property or the Development;

(b) Any comments, opinions or critiques regarding the Cultural Heritage Impact Assessment commissioned by the Applicant or the County relating to the Subject Lands or any other report or opinions of other persons or organizations regarding cultural heritage aspects otherwise known to FOSS or Ms. Marshall, including but not limited to matters of aboriginal cultural heritage;

(c) Any comments, opinions or critiques regarding the Bray Report; and

(d) The content of or any excerpts from the Bray Report or any reports described in (b) above.

29The determination set out in paragraph [28] does not preclude Ms. Marshall from expressing in her WS any historical facts known to her or any descriptions of the flora and fauna of the Subject Property and the areas adjacent to it. Nor is she precluded from offering in her WS purely factual views on matters of community character known to her relating to the Subject Property and the areas adjacent to it. However, such views shall not be presented as expert opinion and shall not otherwise include the matters identified in paragraph [28] above.

30The Tribunal’s conclusions in paragraphs [27], [28] and [29] are supported by the jurisprudence presented by both counsel for the Applicant and for FOSS on this Motion.

31It is well-established in the Tribunal’s past jurisprudence that a lay witness cannot provide opinions for which (s)he has no particular expertise or qualifications. As stated in Hempel v. Owen Sound [2010] O.M.B.D. No. 162, citing with approval Abingdon Meat Packers v. West Lincoln (Township), [1990] O.M.B.D. No. 1054 (O.M.B.):

“......Everyone can give evidence about something they know or about things they have actually seen, but they can't give "opinion" evidence unless they have some expertise in the field about which they are giving such evidence…”

32The Tribunal finds the arguments by FOSS’s counsel to the effect that Ms. Marshall’s expressed views in her WS relating to matters of cultural heritage attributes are best viewed as part of her permitted lay evidence on ‘community character’ to be unconvincing. In the Tribunal’s opinion, those views are better described as an attempt to provide cultural heritage evidence and clearly Ms. Marshall has no demonstrated expertise or qualifications to provide such opinions. Those opinions are not permitted and are subsumed within the restrictions set out in paragraph [28] above and in the Orders made below.

33As a final point, the Tribunal disagrees that Ms. Marshall’s views and opinions are of the nature described by the Supreme Court of Canada in the criminal case of R. v. Graat 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819:

When, in the words of an American judge, 'the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated', a witness may state his opinion or impression. He was better equipped than the jury to form it, and it is impossible for him to convey an adequate idea of the premises on which he acted to the jury:

Unless opinions, estimates and inferences which men in their daily lives reach without conscious ratiocination as a result of what they have perceived with their physical senses were treated in the law of evidence as if they were mere statements of fact, witnesses would find themselves unable to communicate to the judge an accurate impression of the events they were seeking to describe.

34In other words, the Tribunal disagrees with the notion that it is in essence impossible for Ms. Marshall to provide ‘community character’ fact evidence that can be separated from matters of cultural heritage in respect of which the OLT often receives expert opinion evidence. As is set out above in paragraph [28] above and in the Orders made below, this seems quite easily achievable.

ORDERS

35The Tribunal Orders that the Witness Statement of Debra Marshall is struck in its entirety, with leave to deliver a fresh Witness Statement for Ms. Marshall in accordance with paragraph [36] below;

36The Tribunal further Orders that if FOSS intends to call Debra Marshall as a fact witness at the hearing of this case currently scheduled to commence on November 22, 2022, then FOSS is directed to:

(a) Deliver a fresh Witness Statement of Ms. Marshall to the Parties and to the Tribunal within five (5) business days of the date of issuance of this Decision in accordance with the requirements of paragraph [36] (b) below;

(b) The fresh Witness Statement shall not contain any of the following content:

i. Any expression of opinion regarding the current or future anticipated cultural heritage attributes of the Subject Property or the Development;

ii. Any comments, opinions or critiques regarding the Cultural Heritage Impact Assessment commissioned by the Applicant or the County relating to the Subject Lands or any other report or opinions of other persons or organizations regarding cultural heritage aspects otherwise known to FOSS or Ms. Marshall, including but not limited to matters of aboriginal cultural heritage;

iii. Any comments, opinions or critiques regarding the report entitled “South Shore Preliminary Cultural Heritage Landscape Assessment” (“Bray Report”);

iv. The content of or any excerpts from the Bray Report or any of the reports or opinions described in (ii) above; and

v. Any comments, opinions, or critiques involving ‘cultural heritage landscapes’ or ‘heritage attributes’ as defined and described in the Provincial Policy Statement, 2020, or ‘cultural heritage value or interest’ under the Ontario Heritage Act, R.S.O. 1990, c. O.18 or any matter under the Department of Canadian Heritage Act (S.C. 1995, c. 11).

“William R. Middleton”

William r. middleton

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.