Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 15, 2022
CASE NO(S).: OLT 21-001262
PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended
Appellant: Sartorio (Sarto) Provenzano
Respondent: Central Lake Ontario Conservation Authority
Subject: Appeal of refusal to grant permission for development
Property Address: 46 West Beach Road, Bowmanville
Municipality: Municipality of Clarington
OLT Case No.: OLT 21-001262
OLT Case Name: Provenzano v. Central Lake Ontario Conservation Authority
Heard: October 19, 2022 by Telephone Conference Call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Sartorio (Sarto) Provenzano (“Applicant”) | Conner Harris |
| Central Lake Ontario Conservation Authority (“CLOCA”) | Kenneth Jull |
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER OCTOBER 19, 2022 AND ORDER OF THE TRIBUNAL
1This was the second Case Management Conference (“CMC”) conducted in this appeal by the Applicant under the Conservation Authorities Act following the refusal of the application for a development permit for certain works proposed for the Applicant’s property.
2The matter was first before the Tribunal for case management on December 10, 2021 and a hearing was scheduled for April 19, 2022 (without a Procedural Order and Issues List being in place). That hearing was adjourned at the request of the Parties to continue settlement discussions. Despite the concerted efforts of the Parties, no resolution has been achieved, and in July of 2022 the Applicant requested that a further CMC be scheduled so that this proceeding could move forward to a scheduled Hearing and a Procedural Order and Issues List could be issued to govern the hearing.
3A four-day hearing was initially proposed and scheduled. CLOCA takes the position that four days is no longer sufficient and 9 to 10 days are required to accommodate all witnesses. The Applicant, concerned about delays in scheduling a longer hearing, expressed reservations that the Hearing would take that long. Following submissions, the Tribunal concluded that, although the precise length of time required was subject to a number of factors, four days would indeed be insufficient and that the 9 to 10-day time period was likely a better forecast. As indicated below, the length of the Hearing ultimately could be accommodated in relatively short order.
PROCEDURAL ORDER AND ISSUES LIST
4A draft Procedural Order and Issues List was provided on the morning of the CMC. Counsel ultimately confirmed that they were confident they would be able to confer and combine the Issues List into a joint List and submit a revised Procedural Order and Issues List to the Tribunal by October 28, 2022.
5The Tribunal subsequently received and reviewed the draft of the Procedural Order and Issues List, which is now appended to this Memorandum of Oral Decision and Order as Schedule 1 and which will now govern all further pre-hearing procedural requirements and the hearing of the Appeal.
PRE-HEARING CMC/STATUS HEARING AND HEARING ON THE MERITS
6The Panel obtained available dates for the Hearing of the Appeal and discussed with Counsel the requirement for a Telephone Conference Call (“TCC”) 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. Counsel agreed that this would be of benefit to the Parties.
7For the purposes of the pre-Hearing TCC Status Hearing on Friday, April 28, 2023, the Parties are to jointly provide a brief written Status Report to the Tribunal on or before Friday, April 21, 2023 confirming the total number of days required for the Hearing, supported by a preliminary outline of a work-plan 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.
8The fixed dates for the TCC Status Hearing/CMC and the Hearing on the merits are now provided in the Procedural Order appended to this Decision and the coordinates for the Hearings are also set out below.
Telephone Conference Call CMC/Status Hearing – April 28, 2023
9The 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, has been scheduled to commence on Friday, April 28, 2023 at 9 a.m.
10Individuals are directed to call 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case.
Hearing of the Appeal – June 19 to June 29, 2023
11The nine-day (“9-day”) video hearing of the Appeal will commence at 10 a.m. on Monday, June 19, 2023, and continue to Thursday, June 29, 2023.
12The 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/692665589
Access Code: 692-665-589
13For 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.
14Persons who experience technical difficulties accessing the GoToMeeting application, or who only wish to listen to the event, can connect to the event by calling in to an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The access code is: 692-665-589.
15Individuals 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.
16There will be no further notice with respect to each of the two hearing events, and the Panel Member is not seized.
17The 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.
SCHEDULE 1
CASE NO(S).: OLT-21-001262
PROCEEDING COMMENCED UNDER subsection 28(15) of the Conservation Authorities Act, RSO 1990, c C-27, as amended
Appellant: Sartorio (Sarto) Provenzano
Respondent: Central Lake Ontario Conservation Authority
Subject: Appeal of Refusal to Grant Permission for Development
Property Address/Description: 46 West Beach Road, Bowmanville
Municipality: Municipality of Clarington
OLT Case No: OLT-21-001262
OLT Case Name: Provenzano v Central Lake Ontario Conservation Authority
- 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 hearing will begin on Monday, June 19, 2023, at 10:00 a.m., at:
The parties’ initial estimation for the length of the hearing is nine (9) 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 13, 2023 and in accordance with paragraph 21 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 12, 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 12, 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 12, 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 21 below.
On or before April 28, 2023, the parties shall provide copies of their reply [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 21 below.
On or before April 12, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 19 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
The Tribunal will conduct a pre-hearing conference at 9:00 am on Friday, April 28, 2023 to review the parties’ readiness for a hearing.
On or before May 8, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before May 12, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fifteen (15) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before June 2, 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 June 5, 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 Tribunal’s 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.
26. ATTACHMENT 1 - SUMMARY OF DATES
| Date | Event |
|---|---|
| 90 Days Before Hearing | Exchange of Witness Lists and CVs |
| 60 Days Before Hearing | Exchange of Witness Statements/Expert Reports |
| 45 Days Before Hearing | Reply Witness Statements Due |
| 35 Days Before Hearing | Parties to Confirm if all Hearing Dates Required |
| 10 Days Before Hearing | Joint Document Book Due |
| 7 Days Before Hearing | Preliminary Hearing Plan Due |
ATTACHMENT 2 - PARTIES AND PARTICIPANTS
PARTIES
| Party Name | Contact Information |
|---|
- Appellant – Sartorio (Sarto) Provenzano
Counsel – Conner Harris | Rayman Harris LLP
250 The Esplanade – Suite 202
Toronto, ON M5A 1J2
Tel: (416) 597-5422
E-mail: conner@rbllp.com - Respondent – Central Lake Ontario Conservation Authority
Counsel – Kenneth Jull | Gardiner Roberts LLP
Bay Adelaide Centre – East Tower
22 Adelaide Street West – Suite 3600
Toronto, ON M5H 4E3
Tel: (416) 865-2964
E-mail: kjull@grllp.com
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.
- Does the application meet the requirements of the tests for approval under the Conservation Authorities Act and associated regulations?
- Does the application meet the requirements of the Central Lake Ontario Conservation Authority’s Policy and Procedural Document for Regulation and Plan Review?
- Should the application be denied on the basis of safety, having regard to issues of Lake Ontario Flooding, Riverine Flooding and Barrier Beach Dynamic Beaches?
- Should the application be denied on the basis that the lands would not have safe access in the circumstances of a flooding and/or erosion event?
- Does the application have regard to the protection of public health and safety and the appropriate location of development in accordance with subsections 2(o) and 2(p) of the Planning Act?
- Does the application conform to the development prohibitions in the Municipality of Clarington’s Zoning By-Law?
- Is the application inconsistent with section 3.0 of the Provincial Policy Statement (2020) in that it proposes development where there is an unacceptable risk to public health or safety or of property damage, and/or creates new or aggravates existing hazards?
- Is the application consistent with policies 3.1.1(b), 3.1.2(a), 3.1.2(c) and 3.1.2(d) of the Provincial Policy Statement (2020)
- In refusing the application, was CLOCA acting in a manner consistent with policy 3.1.3 of the Provincial Policy Statement (2020) in that it was preparing for the impacts of a changing climate that may increase the risk associated with natural hazards?
ATTACHMENT 4 - ORDER OF EVIDENCE
- Appellant
- Respondent
- Appellant Reply, if Any