Sean Mason Homes (Essa Road) Inc. v. Barrie (City), 2022 CanLII 109924

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 14, 2022

CASE NO(S).: OLT-22-003972

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

Applicant/Appellant: Sean Mason Homes (Essa Road) Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of an 8-storey mixed-use condominium

Reference Number: D30-011-2021

Property Address: 405 Essa Road

Municipality/UT: Barrie/Simcoe

OLT Case No: OLT-22-003972

OLT Lead Case No: OLT-22-003972

OLT Case Name: Sean Mason Homes (Essa Road) Inc. v. Barrie (City)

Heard: October 27, 2022 by Video Hearing

APPEARANCES:

Parties Counsel/Representative*

Sean Mason Homes (Essa Road) Inc. (“Applicant”) Aaron Platt* Samantha Lampert*

City of Barrie (“City”) Peter Krysiak*

David McKenzie Self-represented

Malcolm Hachborn Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON OCTOBER 27, 2022 AND ORDER OF THE TRIBUNAL

PRELIMINARY – PARTIES AND BACKGROUND TO THIS CMC

1The Tribunal ordered this second Case Management Conference (“CMC”) to be conducted on this date at the first CMC held on September 14, 2022, for the purposes of finalizing a draft Procedural Order and Issues List and setting hearing dates.

2At the first CMC, David McKenzie was granted party status by the Tribunal and four Participants were granted status. Prior to that CMC, the Tribunal had received a request for Party status from Malcolm Hachborn, but he did not attend the CMC. The matter of granting status was deferred by the Panel to this CMC, but the Panel directed that if Mr. Hachborn intended to proceed with his request for Party status, he was to attend and circulate his proposed Issues List by the deadline date.

3Mr. Hachborn did circulate his proposed Issues List as directed and has now attended to confirm his request for Party status. For the same reasons provided by the Tribunal when Mr. McKenzie was granted Party status, and having complied with the directives of the Tribunal, Party status is additionally granted to Malcolm Hachborn, subject to the Tribunal’s Directions requiring the Motion, as it may impact the retention of certain issues identified by Mr. Hachborn on the Issues List.

PROCEDURAL ORDER AND ISSUES LIST

4The Tribunal was provided with a draft Procedural Order and Issues List prepared by Applicant’s counsel in advance of the hearing. There were no concerns expressed by the Parties, or the Tribunal, with respect to the form of the Procedural Order itself. It remained only to populate the draft with the appropriate pre-filing deadlines based upon the dates set for the hearing of the Appeal.

5The draft of the Procedural Order reviewed at the CMC contains those issues raised by the City, of which the Tribunal has no concern. Those issues that are contentious are on the proposed list of issues provided by Mr. McKenzie and Mr. Hachborn. Applicant’s counsel provided a written response setting out the concerns and objections regarding the issues raised by Mr. McKenzie as the added Party and Mr. Hachborn as a prospective added Party, a copy of which was provided to the Tribunal in advance of the CMC. Mr. McKenzie and Mr. Hachborn provided detailed reasons as to why they believed the issues should be before the Tribunal. The City did not weigh-in on the subject.

ISSUES – DAVID McKENZIE

6The draft of Mr. McKenzie’s proposed Issues, with annotated response comments provided by the Applicant, contained 13 issues. Following that numbering sequence, the Applicant advised that it has no concerns with respect to Issues 3, 6, 7, 8, 9, and10.

7The Applicant disputes or has concerns with Issues 1, 2, 4, 5, 11, 12 and 13. The Tribunal canvassed each of these contentious issues with the parties, and, for the most part, agrees with the position advanced by the Applicant, as these issues do not comply with the directives set out in paragraph 6 of the Tribunal’s CMC Decision and Order issued on September 23, 2022 for the first CMC or, alternatively, are inappropriate for the reasons indicated.

8Regarding the contentious issues, the Tribunal has directed as follows:

Issue 1 – This issue raises questions of process in relation to “s.17.1(15)” of the City’s Official Plan and asks whether the opportunity was granted to persons to make “meaningful representations” at the public meetings conducted by the City before considering the Application. The Tribunal agrees with the Applicant’s submission that such matters of process relating to the complete Application for the City are irrelevant to the determination of the Appeal on its merits. As a hearing de novo, whether “meaningful” representations were properly considered by a municipal council regarding an application is not a relevant consideration for the Tribunal in the hearing of an appeal beyond its mandate under s. 2.1(1)(b) of the Planning Act where a decision has been made. In this case, no decision was made by Council. The Decision in this hearing will be made anew based upon the evidence and submissions of the parties advanced in relation to the proposed planning instrument. This issue can be struck.

Issue 2 – Mr. McKenzie’s issue as to whether the proposed Zoning By-law Amendment meets the requirements of s. 34(12) of the Planning Act is not an appropriate issue, as this section relates to requirements upon a Municipality and expressly does not apply to the Tribunal’s considerations upon an appeal such as this.

Issue 4 – This issue focuses on whether there was a proper response to the concerns raised at the Public Meeting and makes reference to Rule 19(1)(f) of the Tribunal’s Rules. Rule 19(1)(f) deals with the matter of disclosure in relation to an appeal before the Tribunal. For the reasons indicated in Issue 1, the issue as framed by Mr. McKenzie again returns to the nature of the City’s consideration of concerns raised at the prior public meeting, which is not the focus of the Tribunal. The time to raise planning issues and address matters that Mr. McKenzie feels are relevant to the Applicant’s application is now and should be raised with specificity without focussing on what was, or was not, before the City at the Public Hearing or dealt with by the City.

Issue 5 – This issue, which questions whether the Tribunal should exercise its powers to dismiss the appeal without a hearing under s. 34(25), is not an appropriate issue. It would be highly unlikely that such a Motion to dismiss the appeal under s. 34(25) would succeed given the robust nature of the land use planning grounds that will be before the Tribunal as raised by the Appellant. Addressing specific “concerns presented by the community” in relation to this appeal have been more properly identified as issues by the City or by the added parties. Mr. McKenzie’s question about a dismissal under s. 34(25.2) and s. 34(26) is ill-placed.

Issue 11 – This issue is not appropriate. The Appeal is now before the Tribunal following the submission of a complete Application where no Decision was made by the City Council. A general question asking what studies have been undertaken or should have been undertaken relating to intensification is not a properly framed issue.

Issue 12 – This issue relates to private property and ownership matters and structural engineering matters relating to an adjacent property owner. It is not a proper issue for the Tribunal.

Issue 13 – This issue was also the subject of contention, but after discussions with the City, and some directions of the Panel, Mr. McKenzie agreed that this issue could be withdrawn.

9The necessary amendments were to be made by the Applicant, and the Tribunal has directed that Mr. McKenzie’s remaining issues, approved as modified, be incorporated into the final draft of the Issues List for circulation, editing and filing with the Tribunal.

ISSUES – MALCOLM HACHBORN

10The Tribunal also received a draft of Mr. Hachborn’s issues with similar annotated response comments provided by the Applicant. Following the Tribunal’s review of Mr. McKenzie’s proposed issues, and some discussion, Mr. Hachborn agreed to withdraw a number of issues. Some issues relating to conformity with the City’s Official Plan and Intensification Urban Design Guidelines were revised in form and acceptable to the Applicant and Tribunal.

11This left five issues in dispute and to be discussed, and the Tribunal canvassed each of these contentious issues. In regard to the contentious issues proposed by Mr. Hachborn, the Tribunal has directed as follows:

1. Two issues relating to concerns about stormwater management, rainwater runoff and groundwater recharge (identified as issues A(b) “f” and “i”) arising from the proposed development, and conformity with policies 3.5.2.3.5 and 5.3.2.2(a) of the City’s Official Plan will, if they remain, give rise to technical engineering and hydrogeological matters which relate to apparent land use planning grounds. If these issues are to be supported by expert evidence with argument advanced on such concerns, they would represent proper issues to be brought before the Tribunal. If included, they would require the Applicant to respond with its own expert(s) since the City has not advanced such issues following receipt of a functional servicing report from the Applicant and such issues are not raised in the City’s proposed issues.

The Tribunal considers these issues, identified on the revised Issues List as Issues 1(b) (3.5.2.3.5 of the City of Barrie Official Plan) and Issue 1(e) (5.3.2.2 (a) of the City of Barrie Official Plan), to be proper issues. However, in order to be advanced as they are listed, Mr. Hachborn must call expert evidence in support of these issues. Mr. Hachborn has, in response to the Tribunal’s very specific inquiry, confirmed that he intends to call only his daughter, Ms. Ellen Gillan, to be qualified as an expert to address such matters, though he acknowledges that she has not yet reviewed the functional servicing report that was prepared for such purpose.

The Applicant has indicated that it would object to Ms. Gillan being qualified as an expert due to her relationship to her father, which would arguably disqualify her under the principles and law relating to the qualification of independent and unbiased expert witnesses and the necessity of executing the Tribunal’s Acknowledgement of Expert’s Duty. Pointedly, Mr. Hachborn confirmed to the Tribunal that if his daughter will not, or can not, attend as an expert in support of these issues, he will not privately retain an alternate expert to support these issues.

As set out in the Tribunal’s directions below, a Motion will accordingly be scheduled to predetermine the matter of Ms. Gillan’s ability to be qualified as an expert to support these two issues. If the Tribunal is advised that Ms. Gillan intends to appear as an expert witness, and it pre-qualifies Ms. Gillan as an expert witness for the hearing following the hearing of the Motion, the issues, as modified in accordance with the direction of the Tribunal (removing references to climate change) will remain on Mr. Hachborn’s list of Issues. If Ms. Gillan will not attend, or is not so qualified, the issues are to be struck from the Issues List.

2. Mr. Hachborn has advanced an issue relating to the Applicant’s removal of trees on the subject property – as opposed to issues regarding tree removal on adjacent properties or municipal lands, or potential interference with trees located on adjacent private property. This issue is not appropriate. The Applicant’s private property right to leave or remove trees located on its property is not a matter for adjudication and if any municipal by-laws relating to trees, urban forestry or tree removal apply as they relate to adjacent properties, such municipal processes will address any such matters.

3. Mr. Hachborn has raised an issue regarding community benefits under section 37 of the Planning Act as it previously governed, but which is no longer in force due to recent changes in the legislation. Any matter of community benefit charges will now be governed by the appropriate Community Benefits Charges By-law, if enacted, or as legislated. As framed, this is not a proper issue for inclusion on the Issues List.

12The Issues List will accordingly be amended to reflect these directives regarding Mr. Hachborn’s proposed issues.

PROCEDURAL ORDER AND ISSUES LIST

13Following the provision of the Hearing dates and based upon the Oral Rulings provided with respect to the Issues List, the Applicant updated and circulated the Draft Procedural Order with the City and the Added parties. The Tribunal subsequently received and reviewed the draft.

14The Procedural Order and Issues List appended to this Memorandum of Oral Decision and Order as Attachment 1 will now govern all further pre-hearing procedural requirements and the hearing of the Appeal. This is subject to the proviso directive referred to in this Decision, whereby certain issues on the Issues List advanced by Mr. Hachborn may be removed, dependent upon the outcome of the Motion.

MOTION

15As indicated, Mr. Hachborn was asked, and has confirmed, that in support of two of the issues relating to stormwater management, surface water runoff and groundwater recharge, it was his intention to call only his daughter, Ms. Ellen Gillan, to be qualified as an expert in subject matter relating to these issues. If she will not testify, Mr. Hachborn will not retain an alternate expert and the issues are to be struck from the Issues List.

16In the Tribunal’s view, a predetermination of the specific question as to whether Ms. Gillan may, or may not, be qualified as an expert in the subject matter arising from the above noted stormwater and water issues raised by Mr. Hachborn is appropriate. Ordinarily the admission of expert opinion evidence and the qualification of the expert witness is ordinarily best left to be determined by the Tribunal in the context of the hearing in which the expert is called, when the usual four factors identified by the Supreme Court, being relevance, necessity, absence of an exclusionary rule and a properly qualified witness, may be determined by the Panel. However, in this case, on the assumption that the first three criteria would be met based upon the issues as framed, the circumstances require the Tribunal to particularly address the fourth threshold requirement and whether Mr. Hachborn’s proposed witness can, and will be, a properly qualified witness. The determination of this question will avoid the additional expenses and delays in moving forward, both for Mr. Hachborn, and the Applicant, who will be required to marshal its own evidence to respond to this issue. These expenses and additional work may be avoided dependent upon whether Ms. Gillan can be qualified by the Tribunal at the hearing.

17Pursuant to Rule 10.11 Mr. Hachborn is accordingly to bring the necessary motion before the Tribunal in accordance with Rule 10 of the Tribunal’s Rules of Practice and Procedure (the “Motion”).

18The question to be determined on this Motion is whether, based on the issues now identified in the Issues List by Mr. Hachborn, whether Mr. Gillan possesses the requisite special skills, knowledge, training and experience to qualify as an expert and, having regard to the particular circumstances, will be capable of giving independent and impartial opinion evidence. While there is no basis to believe that Ms. Gillan does not possess the necessary skills, knowledge, training, certification or experience, these will have to be addressed on the Motion to ensure these pre-requisites are met. However, the more pressing question is whether, given the witness’s relationship to Mr. Hachborn, or interest in the outcome, Ms. Gillan may be unable or unwilling to undertake her primary duty to the Tribunal to provide fair, objective and non-partisan opinion evidence as required in the Acknowledgement of Expert’s Duty.

19Unless Mr. Hachborn advises the Tribunal and the parties, in writing, on or before Thursday, November 17, 2022 that the issues relating to stormwater management, rainwater runoff and groundwater recharge are to be withdrawn from the Issues List, he will be required to take all steps as are necessary to prepare and file the necessary Motion before the Tribunal for the Video Hearing of the Motion.

20The City has advised that it does not intend to respond to the Motion and the expectation is that the Applicant will be the Responding Party to the Motion.

21The hearing of the Motion will commence at 10 a.m. on Tuesday, December 6, 2022.

22The Parties 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/660145013

Access Code: 660-145-013

23The same directives with respect to connection to the Video Hearing as set out for the Hearing on the Merits apply to the attendance to the hearing of the Motion.

FINAL PRE-HEARING CMC HEARING AND HEARING ON THE MERITS

24After addressing the contentious matters relating to the Issues List, the Panel obtained conflict dates for the hearing of the Appeal and discussed with the Parties the requirement for a Telephone Conference Call (“TCC”) CMC hearing to be conducted approximately 45 days prior to the start of the hearing for the purposes of reviewing a Draft Hearing Plan and confirming the number of days ultimately required for the hearing. The hearing dates were provided to Counsel during the CMC, and the dates for the Pre-Hearing CMC and the Motion were provided by email thereafter.

25For the purposes of the pre-hearing TCC Status Hearing on Thursday, March 16, 2023, the Parties are to jointly provide a brief written status report to the Tribunal on or before Wednesday, March 8, 2023 confirming the total number of days required for the hearing, supported by a preliminary outline of a workplan, setting out the anticipated order and schedule of witnesses, the estimated time-frames for the evidence-in-chief, cross-examination and re-examination for all scheduled witnesses, as well as the time allotted for opening and closing submissions and any anticipated preliminary motions or matters. If a settlement is achieved or if issues are resolved, such that the number of days allocated for the hearing can be reduced, the Parties will advise the Tribunal accordingly so that hearing dates may be released from the Tribunal’s calendar.

26The fixed dates for the hearing on the merits are now provided in the Procedural Order appended to this Decision. The coordinates for the hearings are also set out below:

TCC CMC HEARING VIDEO HEARING COORDINATES

TCC CMC/Status Hearing – March 16, 2023

27The TCC Status Hearing to review the draft hearing plan and address any other matters relating to the hearing, including the possibility of an in-person Hearing, will commence at 9 a.m. on Thursday, March 16, 2023, with the following dial-in instructions:

Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848. When prompted, enter the code 4779874# to be connected to the call.

Hearing of the Appeal – May 8 to May 17, 2023

28The eight-day video hearing of the Appeal will commence at 10 a.m. on Monday, May 8, 2023, and continue to Wednesday, May 17, 2023.

29The Parties are asked to log in to 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/692665589

Access Code: 692-665-589

30For the Video Hearing, all Parties, witnesses or observers 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.

31Persons 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 codes are as indicated above.

32Individuals are directed to connect to each of the events on the assigned dates at the correct time. It is the responsibility of the persons participating in the hearings to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

33There will be no further notice with respect to each of the three Hearing events.

34With respect to the Motion, the Panel Member is not seized but will, to the extent that the Tribunal calendar permits, intend to hear the subject Motion.

35The Panel Member is not seized with respect to the hearing or any further case management.

36The Tribunal so orders and provides these CMC directives for the purposes of the case management of this Appeal.

“David L. Lanthier”

DAVID L. LANTHIER

VICE-CHAIR

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

CASE NO(S).: OLT-22-003972

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

Applicant/Appellant: Sean Mason Homes (Essa Road) Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of an 8-storey mixed-use condominium

Reference Number: D30-011-2021

Property Address: 405 Essa Road

Municipality/UT: Barrie/Simcoe

OLT Case No: OLT-22-003972

OLT Lead Case No: OLT-22-003972

OLT Case Name: Sean Mason Homes (Essa Road) Inc. v. Barrie (City)

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 Hearing will begin on Monday, May 8, 2023 at 10:00 a.m. Unless otherwise subsequently ordered by the Tribunal, the Hearing shall proceed by videoconference.

3. The Parties’ initial estimation for the length of the Hearing is eight (8) 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.

4. The Parties and Participants identified at the case management conference are set out in Attachment 1.

5. The issues for the Hearing are set out in the Issues List attached as Attachment 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.

6. The order of evidence shall be as set out in Attachment 3. The Tribunal may limit the amount of time allocated for opening statements, direct evidence (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. The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.

8. 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.

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 (https://olt.gov.on.ca/tribunals/lpat/).

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 on or before January 27, 2023 and in accordance with paragraph 23 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. In the event a Party files a list of witnesses that does not include a witness with the technical expertise to address such Party’s technically-related issues, upon written request made to the Tribunal, said issues shall be struck from the Issues List set out in Attachment 2.

11. Expert witnesses in the same field shall have a meeting on or before March 3, 2023. Following the experts’ meetings, and if any agreement is reached, the Parties must prepare and file a Statement of Agreed Facts and Issues with the Case Co-ordinator on or before March 15, 2023.

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. Copies of this must be provided as in paragraph 15 below. Instead of an Expert 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.

13. Expert witnesses who are under summons and not paid to produce a report do not have to file an Expert Witness Statement; but the Party calling them must file an outline of the expert’s evidence as in paragraph 15 below.

14. A Party who intends to call a witness who is not an expert must file a Witness Statement, as in paragraph 15 below.

15. On or before March 24, 2023, the Parties shall provide copies of their Witness Statements and Expert Witness Statements to the other Parties and to the Case Co-ordinator and in accordance with paragraph 23 below.

16. On or before March 24, 2023, a Participant shall provide copies of their written Participant Statement to the Parties and to the Case Co-ordinator in accordance with paragraph 23 below. A Participant cannot present oral evidence or submissions at the Hearing unless ordered by the Tribunal.

17. Parties may provide to all other Parties and the Case Co-ordinator a written response to any Written Evidence on or before April 17, 2023, and in accordance with paragraph 23 below.

18. On or before April 24, 2023, the Parties shall provide copies of their visual evidence to all of the other Parties in accordance with paragraph 23 below. If a model will be used, all Parties must have a reasonable opportunity to view it before the Hearing.

19. The Parties shall cooperate to prepare a Joint Document Book which shall be shared with the Case Co-ordinator on or before April 28, 2023.

20. 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.

21. 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 and the other Parties on or before May 1, 2023 that the written evidence is not part of their record.

22. The Parties shall prepare and file a preliminary Hearing Plan with the Tribunal on or before May 1, 2023 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 direct, cross-examination and re-direct 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.

23. All filing shall be electronic, unless the Tribunal requests a hard copy(ies) of any document. 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.

24. 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.

25. A summary of the various procedural dates is contained in Attachment 5.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1 LIST OF PARTIES AND PARTICIPANTS

PARTIES

DAVIES HOWE LLP The Tenth Floor 425 Adelaide Street West Toronto, ON M5V 3C1

Aaron Platt aaronp@davieshowe.com

Samantha Lampert samanthal@davieshowe.com

Tel: (416) 263-4500 (Platt) (416) 263-4521 (Lampert) Fax: (416) 977-8931

Lawyers for Sean Mason Homes (Essa Road) Inc.

THE CORPORATION OF THE CITY OF BARRIE Legal Services 70 Collier Street P.O. Box 400 Barrie, ON L4M 4T5

Peter Krysiak peter.krysiak@barrie.ca

Tel: (705) 739-4220 ext. 4410 Fax: 705-739-4278

Lawyer for The Corporation of the City of Barrie

DAVID MCKENZIE 58 Cityview Circle Barrie, ON L4N 7V1. dave.m@rogers.com Tel: (289) 308-6940

MALCOLM HACHBORN 44 Cityview Circle Barrie, ON L4N 7V2 Malcolm.meh@gmail.com Tel: (647) 861-5348

PARTICIPANTS

1. Chris Clarridge
2. Mary Jane Clarridge
3. Qingzhi (Steven) Wang
4. Ellen Ann LeMarquand

ATTACHMENT 2 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 relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a Party indicates that Party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other Parties the case they need to meet.

CITY OF BARRIE

A. Planning Issues

1. Does the zoning by-law amendment conform to the City of Barrie Official Plan (Office Consolidation 2018) Section 3.3.2.1?

2. Does the zoning by-law amendment appropriately address the affordable housing policies in Section 3.3.2.2 of the City of Barrie Official Plan with respect to providing direction on how affordable housing units will meet the definition of affordable and will be maintained over the long term?

B. Parks Planning Issues

3. Does the zoning by-law amendment have appropriate regard to the required landscape strips and buffers in conformity with Section 6.5.2.2 (c) of the City of Barrie Official Plan and the intent of Section 5.4.4.0 of the City of Barrie Comprehensive Zoning By-law 2009-141 and with sufficient regard to Section 9.1.7 of the City of Barrie Urban Design Manual (April 2007)?

C. Urban Design Issues

4. With respect to building height, scale and massing, does the proposed zoning by-law amendment:

a. have regard to Section 2 (r) of the Planning Act;

b. conform to Sections 3.3.2.1, 4.9.2.3, 6.5.2.2(a) and 6.6.4 (e) of the City of Barrie Official Plan; and

c. have sufficient regard to Sections 2.4.2, 2.5.3, 4.3.2 and 4.3.6 of the Intensification Area Urban Design Guidelines?

5. With respect to appropriate transition between an Intensification Area and a ‘stable’ Neighbourhood through the correct application of the angular plane to reduce the perception of height and shadow impacts, does the proposed zoning by-law amendment:

a. have regard to Section 2 (r) of the Planning Act;

b. conform to Sections 3.3.2.1, 4.9.2.3, 6.5.2.2(a) and 6.6.4 (a), (c), (d) and (e) of the City of Barrie Official Plan and the intent of Section 5.4.3.1 (Table 5.4.2) of the City of Barrie Comprehensive Zoning By-law 2009-141; and

c. have sufficient regard to Sections 4.3.4 and 4.3.7 of the Intensification Area Urban Design Guidelines?

6. Does the zoning by-law amendment propose an appropriate front yard setback which:

a. has regard to Section 2 (r) of the Planning Act;

b. conforms to Sections 3.3.2.1(c), 4.9.2.3 (a) – (e), 6.5.2.2(a)(i)(ii) - (iii) of the City of Barrie Official Plan and the intent of Section 5.4.3.1 (Table 5.4.2) of the City of Barrie Comprehensive Zoning By-law 2009-141; and,

c. has sufficient regard for Section 4.3.1 of the Intensification Area Urban Design Guidelines?

7. Does the zoning by-law amendment propose an appropriate rear yard setback which:

a. has regard for Section 2 (r) of the Planning Act,

b. conforms to Sections 3.3.2.1(c), 4.9.2.3, 6.5.2.2 (a) (i)(ii) - (iii) and 6.6.4 (a), (d) and (e) of the City of Barrie Official Plan and the intent of Section 5.4.3.1 (Table 5.4.2) of the City of Barrie Comprehensive Zoning By-law 2009-141; and,

c. sufficient regard to Section 4.3.1 of the Intensification Area Urban Design Guidelines?

8. Does the zoning by-law amendment provide an appropriate transition and compatibility, including the determination of the average grade for the site, from the subject lands to the adjacent residential properties with regard for Section 2 (r) of the Planning Act, in conformity with Sections 4.9.2.3, 6.5.2.2 (a) and 6.6.4 (e) of the City of Barrie Official Plan and with sufficient regard to Sections 2.4.1 and 2.4.2 of the Intensification Area Urban Design Guidelines?

9. Does the zoning by-law amendment provide an appropriate amenity space with regard for Section 2 (r) of the Planning Act and in conformity with Section 4.9.2.3 of the City of Barrie and the intent of Section 5.4.2.2 (b) of the City of Barrie Comprehensive Zoning By-law 2009-141?

10. Does the zoning by-law amendment have appropriate regard for and provide an optimal interface via landscape and architectural controls when abutting an open space i.e. Environmental Protection Area, with regard for Section 2 (r) of the Planning Act and sufficient regard for 4.3.8 (c) of the Intensification Area Urban Design Guidelines?

11. Does the zoning by-law amendment incorporate direct access from new buildings, including each proposed townhouse, to the public sidewalk with regard for Section 2 (r) of the Planning Act and sufficient regard for Section 4.3.1 (c) of the Intensification Area Urban Design Guidelines?

12. Does the zoning bylaw amendment adequately have regard for and/or represent higher quality design, mix of uses and the integrity of the stable neighbourhood with regard for Section 2 (r) of the Planning Act and sufficient regard for Section 2.4.1 of the Intensification Area Urban Design Guideline?

D. Engineering Issues

13. Does the Functional Servicing Report submitted in support of the proposed zoning by-law amendment appropriately address municipal sewage and water services and stormwater management principles as required by Sections 5.1 and 5.3 of the City of Barrie Official Plan?

E. Transportation Planning Issues

14. Does the zoning by-law amendment provide for a sufficient inventory of visitor and resident parking?

15. Does the zoning by-law amendment provide for sufficient/safe drive aisle widths within the proposed development’s parking facilities?

16. Does the zoning by-law amendment provide appropriate and safe access?

17. Does the zoning by-law amendment provide for appropriate setbacks for any below-grade parking structures?

18. Does the proposed zoning by-law amendment appropriately accommodate waste management, fire and emergency vehicles and specialized transit services as required under Sections 2 (f), (h.1) and (q) of the Planning Act, Section 5.4.2.3 (e) of the Official Plan and Sections 2.0, 3.2, 3.6 and 4.0 of the Urban Design Manual?

DAVID MCKENZIE

1. Does the proposed Zoning By-law Amendment conform with the following Policies/Sections of the City of Barrie Official Plan:

a. 4.2.2.4 (b);

b. 4.2.2.5;

c. 4.2.2.6; and

d. 6.6.3(a)?

2. Does the proposed Zoning By-law Amendment conform with BOP 4.2.2.4 (d), which requires the City to continue encouraging the maintenance and improvement of the character and appearance of existing residential areas?

3. Does the proposed Zoning By-law Amendment conform with BOP 4.1.2.3 (a), which requires that the integration of new development with existing residential areas must be accomplished in a compatible manner?

4. Is the scale and physical character of the proposed development compatible with and integrated into the surrounding neighbourhood, and incorporating sensitive, high quality urban design [BOP 4.2.2.6 Intensification Policies], consistently with the required Design Policies articulated in 4.2.2.4 (b) and (d)?

5. Does the proposed design conform to City of Barrie Official Plan Policy 6.6.3 and, in particular, how does the proposed design reduce the visual and physical impact of height on the adjacent pedestrian realm?

MALCOLM HACHBORN

1. Does the development conform with the following Policies/Sections of the Official Plan for the City of Barrie:

a. 3.3.2.1(c);

b. 3.5.2.3.5*;

c. 4.2.2.6 (d) i);

d. 4.2.2.6 (e) v);

e. 5.3.2.2 (a)*;

f. 6.5.2.2 (a) i);

g. 6.6.4 (a) ii);

h. 6.6.4 (d) iii);

i. 6.6.4 (e) i); and

j. 6.6.6 (a)?

• These Sections/Policies are those subject to the Motion required pursuant to the Tribunal Decision and Order arising from the Case Management Conference of Oct. 27, 2022.

2. Does the development have sufficient regard to the following Sections of the Intensification Area Urban Design Guidelines for the City of Barrie:

a. 2.5.1; and

b. 5.1.2?

ATTACHMENT 3 ORDER OF EVIDENCE

1. Sean Mason Homes (Essa Road) Inc.

2. City of Barrie

3. David McKenzie

4. Malcolm Hachborn

5. Sean Mason Homes (Essa Road) Inc. (Reply)

ATTACHMENT 4 PURPOSE OF THE PROCEDURAL ORDER AND MEANING OF TERMS

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). 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 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 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-direct examination by the Party presenting the witness; or

• another order of examination mutually agreed among the Parties or directed by the Tribunal.

ATTACHMENT 5 SUMMARY OF PROCEDURAL DATES

DATE EVENT

January 27, 2023 Exchange of list of witnesses and the order in which they will be called

March 3, 2023 Meetings of expert witnesses to be completed

March 15, 2023 Filing of agreed statement of facts from meetings of expert witnesses

March 24, 2023 Exchange of expert reports/expert witness statements/witness statements, evidence outlines for witnesses under summons, participant statements

April 17, 2023 Exchange of response evidence

April 24, 2023 Exchange of visual evidence

April 28, 2023 Completion of joint document book

May 1, 2023 Parties to prepare and file hearing plan

May 8, 2023 Hearing commences