Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 19, 2022

CASE NO(S).: OLT-22-002365

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

Applicant/Appellant: 2725539 Ontario Inc.

Subject: Application to amend the Zoning By-law – Refusal of application

Description: Purpose is to amend the site-specific zoning on the subject lands to permit a maximum of 6 dwelling units contained within an existing detached dwelling.

Reference Number: PLZBA2020075

Property Address: 1613A Hunter Creek Road

Municipality/UT: Minden Hills/Haliburton

OLT Case No: OLT-22-002365

OLT Lead Case No: OLT-22-002365

OLT Case Name: 2725539 Ontario Inc. v. Minden Hills (Township)

Heard: September 15, 2022 by telephone conference call

APPEARANCES:

Parties	Counsel
2725539 Ontario Inc.	Jeffrey Streisfield
Township of Minden Hills	John Ewart

DECISION DELIVERED BY BITA M. RAJAEE AND HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

1This was the second Case Management Conference (“CMC”) in relation to an appeal brought under s. 34(11) of the Planning Act by 2725539 Ontario Inc. (“Applicant/Appellant”) against the decision of the Township of Minden Hills (“Township”) on December 9, 2021 to refuse a Zoning By-law Amendment (“ZBLA”) application in relation to a property known municipally as 1613A Hunter Creek Road (Part Lot 5, Concession 14, Geographic Township of Lutterworth), Township of Minden Hills, County of Haliburton (“Subject Property”).

2The Subject Property is currently zoned “Shoreline Residential Exception Fifty-Seven (SR-57).” The purpose of the ZBLA is to amend the current Zoning By-Law No. 06-10, as amended, to facilitate a proposal by the Applicant/Appellant to permit a maximum of six (6) dwelling units contained within an existing detached dwelling on the Subject Property (“Proposal”).

3At the first CMC, held on June 3, 2022 (“First CMC”), the Parties failed to provide an Issues List (“IL”) and advised that they were working together on preparing one.

4At the second CMC, held on September 15, 2022 (“Second CMC”), the Parties advised the Tribunal that they had been unable to agree on the identification of issues. In particular, the Parties disagreed over the question of whether the Applicant/Appellant is required to submit an application for an Official Plan Amendment (“OPA”) to the Township and whether this is a proper issue that is worthy of adjudication. The Applicant/Appellant submitted that the Township’s act of deeming the ZBLA application as complete removed its ability to require an official plan amendment. The Applicant/Appellant submitted that the question of whether an official plan amendment is needed is a threshold issue that must be addressed as the preliminary issue in the proceeding. In response, the Township submitted that, to determine whether the ZBLA application could be approved, the Tribunal would have to consider whether the proposed ZBLA conformed with and maintained the intent of the County of Haliburton’s Official Plan and the Township of Minden Hill’s Official Plan (“Two OPs”). This was included in the Township’s draft IL, submitted on July 12, 2022. The Township submitted that, if the ZBLA application did not conform with the Two OPs, then the Applicant/Appellant would be required to submit an OPA application.

5Upon hearing the positions of each Party, the Tribunal determined that the question regarding whether an OPA application is required alongside the ZBLA application is addressed in the existing issue in the IL on conformity with the applicable official plans and is neither a threshold issue nor a separate stand alone issue that must be included in the IL. The Tribunal found the question of whether an official plan amendment is necessary will be determined through its adjudication of the issue of official plan conformity. It is not a separate issue worthy of adjudication. The Tribunal also found that it is not a question that needs to be addressed in order to adjudicate the issues that have been properly raised.

6The Tribunal directed that the Parties revise the proposed IL and remove the issue of whether an OPA is necessary.

7On November 10, 2022, the Applicant/Appellant filed a revised PO and IL, on consent. The Tribunal has reviewed the revised documents and approves them. They are attached as Schedule A to this Order and Decision.

8The Tribunal directs that the hearing will commence at 10 a.m. on February 15, 2023. Three (3) days have been set aside. No further notice will be given.

9Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/344779885

Access Code: 344-779-885

10Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://apps.gotomeeting.com/home.html

11Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll Free) +1-888-299-1889. The access code is 344-779-885.

12Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator with carriage of this case.

ORDER

13The Tribunal Orders that:

1. The issue proposed by the Appellant regarding whether an OPA application is required alongside the ZBLA application is addressed in the Issues List, and is not an issue that needs to be adjudicated separately.

2. The hearing in this matter will be held by video hearing starting on February 15, 2023, commencing at 10 a.m., and three (3) days have been set aside.

3. The Procedural Order and Issues List attached as Schedule A to this Decision shall govern the proceedings.

4. There will be no further notice and these Members are not seized.

“Bita M. Rajaee”

BITA M. RAJAEE

MEMBER

“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.

SCHEDULE A

Procedural Order for Video Hearings

CASE NO(S).: OLT-22-002365

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

Applicant/Appellant: 2725539 Ontario Inc.

Subject: Application to amend the Zoning By-law – Refusal of application

Description: Purpose is to amend the site-specific zoning on the subject lands to permit a maximum of 6 dwelling units contained within an existing detached dwelling.

Reference Number: PLZBA2020075

Property Address: 1613A Hunter Creek Road

Municipality/UT: Minden Hills/Haliburton

OLT Case No: OLT-22-002365

OLT Lead Case No: OLT-22-002365

OLT Case Name: 2725539 Ontario Inc. v. Minden Hills (Township)

Procedural Order for Video Hearings

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 video hearing will begin on Wednesday, February 15, 2023 at 10 am.

GoTo Meeting: https://global.gotomeeting.com/join/344779885

3. The parties’ initial estimation for the length of the hearing is 3 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 (see the sample procedural order for the meaning of these terms).

5. The issues 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 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.

7. 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.

8. 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

9. 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 December 16, 2022 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.

10. Expert witnesses in the same field shall have a meeting on or before December 16, 2022 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 January 4, 2023.

11. 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.

12. 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.

13. On or before January 10, 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.

14. On or before January 10, 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.

15. On or before January 30, 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.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 3, 2023.

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 30, 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.

21. 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.

22. 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.

These Members are not seized.

So orders the Tribunal.

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.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel

1. 2725539 Ontario Inc. Jeffrey E. Streisfield LandLaw TM 110 Blueski George Crescent Town of Blue Mountains, ON. L9Y OS9 E-mail: jeffrey@landplanlaw.com Tel: 416-460-2518

2. Minden Hills (Township) John Ewart EWART O’DWYER 311 George Street North, Ste 103 Peterborough, ON K9J 3H3 E-mail: jewart@ewartodwyer.com Tel: (705) 874-0404 Ext 231

B. PARTICIPANTS

1. Daniel Martel tel: 905 373 6466 Email: danmartel1975@gmail.com

2. MARC DUMAS tel: 705-306-9733 Email: marc_dumas@hotmail.com

3. LINDA STEPHENSON tel: 416 554 5543 Email: marc_dumas@hotmail.com

4. DENIS GOFORTH tel: 519-301-3936 Email: dennis@gotech.ca

ATTACHMENT 2 OLT-22-002365

ATTACHMENT 2 - ISSUES LIST

Note: The identification of an issue on this list indicates a party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal. 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.

Township’s Issues

1. Does application PLZBA2020075 have regard for and appropriately implement matters of provincial interest as set out in Section 2 of the Planning Act?

2. Is application PLZBA2020075 consistent with the applicable Provincial Policy Statement namely policies 1.1.1, 1.1.3.1, 1.1.4, 1.1.4.1, 1.1.4.2, 1.1.4.4, 1.1.5.1, 1.1.5.2, 1.1.5.4, 1.1.5.5, and 1.6.6.4?

3. Does application PLZBA2020075 conform with and maintain the intent of the policies of the County of Haliburton Official Plan, namely policies 2.3.2, 3.1, 3.2, 3.3.1, 3.3.4, 3.3.5, 3.4, 7.3.2, 7.4.3 and 7.9.5?

4. Does application PLZBA2020075 conform with and maintain the intent of the policies of the Township of Minden Hills Official Plan, namely policies 1.3.1.2, 1.3.1.6, 1.3.1.9, 1.3.1.10, 1.3.2.1, 3.2.2, 3.2.3.5.1, 3.2.3.5.2, 5.14.4 and 5.14.6.2?

5. Does application PLZBA2020075 uphold the intent and purpose of the Zoning By-law?

6. Does application PLZBA202075 represent a compatible land use with the adjacent properties and surrounding area?

7. Does application PLZBA2020075 represent good planning and being in the public interest?

Appellant’s Issue

8. Is the application consistent with s. 16(3) of the Planning Act, as currently in force, which provides:

Additional residential unit policies

(3) An official plan shall contain policies that authorize the use of additional residential units by authorizing,

(a) the use of two residential units in a detached house, semi-detached house or rowhouse; and

(b) the use of a residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse.

ATTACHMENT 3

ORDER OF EVIDENCE

NOTE: Where parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence.

Evidence-in-Chief

1. Appellant
2. Township of Minden Hills

Reply Evidence

1. Appellant

ATTACHMENT 4

LIST OF KEY DATES

LIST OF WITNESSES on or before December 16, 2022

EXPERTS MEETING on or before December 16, 2022

Statement of Agreed Facts & Issues on or before January 4, 2023

WITNESS AND EXPERT STATEMENTS On or before January 10, 2023

PARTICIPANT STATEMENTS On or before January 10, 2023

VISUAL EVIDENCE On or before January 30, 2023

PRELIMINARY HEARING PLAN On or before January 30, 2023

JOINT DOCUMENT BOOK On or before February 3, 2023

HEARING STARTS February 15, 2023 (3 days)