Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
November 21, 2022
CASE NO(S).:
OLT-21-001690
(Formerly PL180383)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Coco Properties Corporation
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
to permit expansion of a quarry
Reference Number:
D14-104-2014
Property Address:
2357-2363 and 2489-2505 Unity Road
Municipality/UT:
Kingston/Frontenac
OLT Case No:
OLT-21-001690
Legacy Case No:
PL180383
OLT Lead Case No:
OLT-21-001690
Legacy Lead Case No:
PL180383
OLT Case Name:
Coco Properties Corporation v. Kingston (City.)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
to permit expansion of a quarry
Reference Number:
D-09-025-2014
Property Address:
2357-2363 and 2489-2505 Unity Road
Municipality/UT:
Kingston/Frontenac
OLT Case No:
OLT-22-004036
Legacy Case No:
PL180384
OLT Lead Case No:
OLT-21-001690
Legacy Lead Case No:
PL180383
PROCEEDING COMMENCED UNDER section 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.
Subject:
Application for aggregate extraction Class A License for existing quarry
Description:
to permit a Category 2, Class A license to excavate aggregate from a 73.8 hectare quarry
Reference Number:
626239
Property Address:
Part of Lots 12-13, Concession 5
Municipality/UT:
Kingston/Frontenac
OLT Case No:
OLT-21-001519
OLT Lead Case No:
OLT-21-001690
Heard:
August 26, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Coco Properties Corporation
Kim Mullin
City of Kingston
Spencer Putnam
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON AUGUST 26, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal held a Case Management Conference (“CMC”) on August 26, 2022 regarding the appeal proceedings brought by Coco Properties Corporation (“Appellant”) under the Planning Act regarding the failure of the City of Kingston to make decisions on the Appellant’s applications for official plan and zoning by-law amendments and also regarding a proceeding brought under the Aggregate Resources Act concerning an application for aggregate extraction Class ‘A’ license for an existing quarry. The appeals all relate to the properties located at 2489-2505 and 2357-2363 Unity Road.
2At a CMC held on February 14, 2022, the Tribunal consolidated the proceedings and granted Participant Status to a number of individuals, including most of the Objectors in the Aggregate Resources Act proceeding.
3At the CMC on August 26, 2022, the Tribunal addressed the status of the Parties and Participants, the identification of issues, opportunities for settlement discussions, and the scheduling of a further CMC as well as hearing dates.
4In consolidated proceedings, the Parties in one proceeding are also Parties in the other. In proceedings under s. 11(5) of the Aggregate Resources Act, an Objector is a Party. Thus in the present proceedings, the Objectors in the Aggregate Resources Act proceeding are Parties in both that and the Planning Act proceedings.
5At the CMC held in February 2022, virtually all of the Objectors (apart from two who did not attend) requested and were granted Participant Status. This leaves the City and the Appellant as the only two active Parties in the Aggregate Resources Act proceeding; both of whom support the Aggregate Resources Act application.
6On this issue being raised at the CMC on August 26, 2022, Dave Munroe, who is one of the Participants, requested that one or more Participants be permitted to change their status back to Party in order to ensure a meaningful hearing at which the concerns of the persons who objected to the proposed aggregate licence can be heard through evidence and submissions. He requested the Tribunal to allow the Participants to consult and then request that one or more of them have their status reverted back to Party Status. The Appellant and City supported this request.
7After some discussion, the Appellant and City agreed that they would finalize a draft Procedural Order and Issues List by September 9, 2022 and circulate it to the Participants. The Participants would then review the Issues List and put forward the name of a Participant(s) to request to have their status changed back to Party Status and they would provide any additional issues to be added to the Issues List by September 23, 2022.
8On November 10, 2022, the Tribunal received the finalized draft Procedural Order and Issues List and a request that Mr. Munroe’s status be changed to Party Status. The Tribunal has reviewed these materials and approves the draft Procedural Order and Issues List and approves Mr. Munroe’s request for Party Status.
9The Appellant and the City identified the witnesses that they would call at a hearing and the time that would be needed for a hearing. They also requested the Tribunal to set hearing dates, which the Tribunal did. It scheduled a ten-day hearing to commence in June 2023.
10Regarding settlement possibilities, the City stated that it has received and is considering a proposed settlement from the Appellant regarding all of the proceedings. The Participants expressed an interest in being engaged in settlement discussions. The Appellant and the City requested that a further CMC be scheduled at which preparations for a hearing can be further addressed. They suggested that if a settlement is reached by the Parties, the CMC could be converted into a settlement hearing. The Tribunal agreed and scheduled a further CMC to be held on November 30, 2022.
11The Tribunal directed that if a settlement between the Appellant and the City is reached, those Parties are to provide Mr. Munroe and the Participants, and file with the Tribunal, supporting materials regarding the proposed settlement, including affidavit evidence, by no later than November 16, 2022. If a comprehensive settlement is then reached by all of the Parties (including Mr. Munroe), the CMC may be converted into a settlement hearing. If no comprehensive settlement is reached by all of the Parties (including Mr. Munroe), a partial settlement hearing and a contested hearing on the remaining matters in dispute may be held at the November 30, 2022 session or the Tribunal may decide to hear evidence on the partial settlement and schedule further procedural steps and a shortened contested hearing.
ORDER
12The Tribunal orders that David Munroe is a Party in these proceedings.
13The Tribunal approves the draft Procedural Order and Issues List attached as Attachment 1 to this Order and Decision.
14The Tribunal orders that a further CMC shall be held by video hearing on Wednesday, November 30, 2022 commencing at 10 a.m. If a settlement is reached between the Appellant and the City, the Tribunal directs that they request that the CMC be converted to a settlement hearing and that they serve Mr. Munro and the Participants and file with the Tribunal supporting materials for the proposed settlement by Wednesday, November 16, 2022.
GoTo Meeting: https://global.gotomeeting.com/join/442599157
Audio-only telephone line: +1 (647) 497-9391 or (Toll-Free) 1(888) 455-1389
Access code: 442-599-157
15Furthermore, the Tribunal orders that the hearing shall be held by video hearing commencing on Monday, June 12, 2023 commencing at 10 a.m. Ten days have been set aside.
GoTo Meeting: https://global.gotomeeting.com/join/660145013
Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889
Access code: 660-145-013
16Parties 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:
17Parties 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
18Persons 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 provided above.
19Individuals 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.
20This Member is not seized.
21There will be no further notice.
“Hugh S. Wilkins”
HUGH S. WILKINS
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.
Ontario Land Tribunal Ontario Land Tribunal
655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349
Toll free: 1-866-448-2248 Website: olt.gov.on.ca
Tribunaux de l’aménagement du territoire Ontario Tribunal d’appel de l’aménagement local
655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349
Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca
CASE NO(S).: OLT-21-001690
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
Coco Properties Corporation
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
to permit expansion of a quarry
Reference Number:
D14-104-2014
Property Address:
2357-2363 and 2489-2505 Unity Road
Municipality/UT:
Kingston/Frontenac
OLT Case No:
OLT-21-001690
Legacy Case No:
PL180383
OLT Lead Case No:
OLT-21-001690
Legacy Lead Case No:
PL180383
OLT Case Name:
Coco Properties Corporation v. Kingston (City.)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
to permit expansion of a quarry
Reference Number:
D-09-025-2014
Property Address:
2357-2363 and 2489-2505 Unity Road
Municipality/UT:
Kingston/Frontenac
OLT Case No:
OLT-22-004036
Legacy Case No:
PL180384
OLT Lead Case No:
OLT-21-001690
Legacy Lead Case No:
PL180383
PROCEEDING COMMENCED UNDER section 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.
Subject:
Aggregate License
Description:
to permit a Category 2, Class A licence to excavate aggregate from a 73.8 hectare quarry
Reference Number:
626239
Property Address:
Part of Lots 12-13, Concession 5
Municipality/UT:
Kingston/Frontenac
OLT Case No:
OLT-21-001519
OLT Lead Case No:
OLT-21-001690
Legacy Lead Case No:
PL180383
OLT Case Name:
Lattimore et al v. Ontario (MNRF)
- 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 June 12, 2023, at 10:00 a.m., at
GoTo Meeting: https://global.gotomeeting.com/join/660145013
Access code: 660-145-013
The parties’ initial estimation for the length of the hearing is 10 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 Attachment 2.
The issues are set out in the Issues List attached as Attachment 3. 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 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.
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.
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 March 14, 2023 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 April 28, 2023 and 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 May 13, 2023.
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 April 13, 2023, 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 April 13, 2023, 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 May 29, 2023, 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 on or before May 23, 2023 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 May 28, 2023.
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 June 7, 2023.
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 May 28, 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 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.
ATTACHMENT 1 - SUMMARY OF DATES
Date
Event
March 14, 2023
Witness List (and Expert CVs) Due
April 13, 2023
Participant Statements, Witness and Expert Witness Statements Due
April 28, 2023
Expert Witnesses to Meet On or Before This Date
May 13, 2023
Statement of Agreed Facts and Issues Due
May 23, 2023
Written Response to Written Evidence Due
May 28, 2023
Joint Document Book & Preliminary Hearing Plan Due
May 29, 2023
Visual Evidence Due
June 7, 2023
Cross-Examination Documents Due
June 12, 2023
Start of Hearing
ATTACHMENT 2 - PARTIES AND PARTICIPANTS
PARTIES
Party Name
Contact Information
Coco Properties Corporation
Counsel - Kim Mullin/Eugenia Bashura
Wood, Bull LLP
65 Queen Street West, Suite 1400
Toronto, ON M5H 2M5
Tel: (416) 203-5633
E-mail: kmullin@woodbull.ca/
City of Kingston
Counsel – Tony Fleming / Spencer Putnam
Cunningham, Swan, Carty, Little & Bonham LLP
Suite 300, 27 Princess Street
Kingston, ON K7L 1A3
Tel: (613)-544-0211 ext. 8096 / (613)-546-8098
E-mail: tfleming@cswan.com / sputnam@cswan.com
3
Mark Taylor
Tel: (613)-329-8333
E-mail: marktaylor6143@gmail.com
4
Michael and Lisa Drewniak
Tel: (613)-328-2203
E-mail: modrewniak@gmail.com
5
Ronald and Sandra Murphy
Tel: (613)-549-1612
E-mail: ron.b.murphy@gmail.com
6
Dave Munroe
Tel: (613)-547-6308
E-mail: munroed@kos.net
7
Mary Rahmel
Tel: (613)-777-5439
E-mail: mrmaryhelen@gmail.com
8
Jack Walker
Tel: (613)-548-7600
E-mail: jwalker@kos.net
9
Angela Allison
Tel: (613)-548-8656
E-mail: angelaallison26@gmail.com
PARTICIPANTS
Name
Contact Information
Jim and Helga Elliot
Tel: (613)-541-0094
E-mail: hjelliott78@gmail.com
Jack and Barb Brown
E-mail: jackbarbca@hotmail.com
Mike and Kristine Lattimore
E-mail: clattimore55@gmail.com
Ken Dantzer
Tel: (613)-561-0049
E-mail: dantzerdesign@yahoo.ca
ATTACHMENT 3 - ISSUES LIST
Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.
- Do the applications to amend the City of Kington Official Plan and the City of Kingston Zoning By-law (“Proposed Amendments”) have appropriate regard for the matters of provincial interest set out in Section 2 of the Planning Act, in particular:
(a) protection of ecological systems, including natural areas and functions (Rideau trail);
(b) the protection of the agricultural resources of the Province;
(c) the conservation and management of natural resources and the mineral resource base;
(e) the supply, efficient use and conservation of energy and water;
(h) the orderly development of safe and healthy communities;
(n) resolution of planning conflicts;
(o) the protection of public health and safety; and
(s) mitigation of greenhouse gas emissions and adaptation to changing climate?
- Do the Proposed Amendments comply with the following sections of the Planning Act:
2.1(1)(a) and (b);
2.1(2);
2.1(3);
17(17);
17(21);
22(6); and
22(6.4)?
- Do the Proposed Amendments comply with the following sections of Ontario Regulation 543/06, Official Plans and Plan Amendments, made under the Planning Act:
10.1 of Schedule 1;
10;
3(4)(b); and
3(9)?
- Are the Proposed Amendments consistent with the Provincial Policy Statement, 2020, in particular sections:
1.1.1(c) and (d);
1.1.3.2(c);
1.2.6.1 and 1.2.6.2;
1.6.2;
1.8.1(f);
2.2.1(b), (c), (e), (f) and (i);
2.2.2;
2.5.2.2;
2.5.3.1;
2.6.4;
3;
3.2; and
3.1?
- Do the Proposed Amendments conform with City of Kingston Official Plan Policies, in particular, sections:
2.7;
2.8.7;
3.11.23;
3.16, 3.16B;
2.9.1;
2.9.6;
2.10.1;
3.4.15;
3.4.16;
3.9.21; and
Schedule 5?
Do the Proposed Amendments meet the City of Kingston’s Development Approval Application Requirements?
Do the Proposed Amendments comply with the following By-laws:
Kingston By-law No. 2004-52 to Regulate Noise;
Kingston Site Alteration By-Law 2008-128; and
Section 28, subsection 2(f) of the Township of Kingston Restricted Area Zoning By-law 76-26?
Do the Proposed Amendments comply with Ontario Regulation 148/06: Cataraqui Region Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to shorelines and watercourses?
Is the Aggregate Resources Act licence application, including its Site Plan (“ARA Application”), consistent with the "matters to be considered" under section 12(1) of the Aggregate Resources Act, and in particular subsections:
(a) the effect of the operation of the pit or quarry on the environment;
(b) the effect of the operation of the pit or quarry on nearby communities;
(c) any comments provided by a municipality in which the site is located;
(d) the suitability of the progressive rehabilitation and final rehabilitation plans for the site;
(e) any possible effects on ground and surface water resources including on drinking water sources;
(f) any possible effects of the operation of the pit or quarry on agricultural resources;
(g) any planning and land use considerations;
(h) the main haulage routes and proposed truck traffic to and from the site;
(i) the quality and quantity of the aggregate on the site;
(j) the applicant’s history of compliance with this Act and the regulations, if a licence or permit has previously been issued to the applicant under this Act or a predecessor of this Act; and
(k) such other matters as are considered appropriate, in particular sections 8, 12(2), 13(1), 13(3.1), 13.2(1), 15, 15.1(1), (2) and (5), 15(6) of the Aggregate Resources Act?
Does the ARA Application meet the requirements of Policies 2.00.02, 2.01.03, 2.01.04, 2.01.06, 2.01.10, 2.02.01, 2.03.00, 2.03.01, 2.04.00, 2.05.00, 2.05.01, 5.00.10, 5.00.15 of the Aggregate Resources Policies and Procedures?
Is the ARA Application consistent with the "matters to be considered" under the Aggregate Resources of Ontario: Provincial Standards (Category 2)?
Will the proposed quarry result in undue adverse impacts, directly or cumulatively, to groundwater or surface water resources, or create an undue adverse effect on the quantity or quality of the local drinking water supply used by area residents’ wells?
Has the proponent proposed adequate measures for monitoring, investigating public complaints, contingency planning, and implementing remediation measures in relation to:
(a) impacts on groundwater, surface water, or the local drinking water supply used by area residents’ wells;
(b) dust impacts, including any impact to agricultural crops;
(c) noise impacts;
(d) odour impacts;
(e) drainage / offsite flooding impacts;
(f) vibration impacts;
(g) traffic impacts;
(h) loss of enjoyment of property; and
(i) hours of operation?
Should the proposed site plan be amended to reflect the recommendations of the technical studies?
Do the Proposed Amendments appropriately implement the ARA Application?
Does the proposal represent good planning, and is it in the public interest?
Does the Ministry of Natural Resources have staffing capacity to effectively regulate the proposed quarry?
Have regulations been diligently enforced at the existing quarry?
Did different license applications and delays in Indigenous consultation adversely impact public consultation?
ATTACHMENT 4 - ORDER OF EVIDENCE
Coco Properties Corporation
City of Kingston
Other objectors
Coco Properties Corporation
Attachment to Sample Procedural Order
Meaning of terms used in the Procedural Order:
A 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. An unincorporated group cannot be a party and 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 or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials 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 supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
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.