ISSUE DATE:
December 20, 2022
CASE NO.:
OLT-22-003897
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
Victor and Deborah Anber
Subject:
Application to amend the Zoning By-law –
Refusal of application
Description:
To allow for the storage of fireworks
Reference Number:
By-Law 2149
Property Address:
6954 6th Concession Road
Municipality/UT:
Essex/Essex
OLT Case No:
OLT-22-003897
OLT Lead Case No:
OLT-22-003897
OLT Case Name:
Anber v. Essex (Town)
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 of application
Reference Number:
By-Law 2151
Property Address:
6954 6th Concession Road
Municipality/UT:
Essex/Essex
OLT Case No:
OLT-22-003898
OLT Lead Case No:
OLT-22-003897
M. A. Sills
Tuesday, the 20th
VICE-CHAIR
day of December, 2022
THE TRIBUNAL ORDERS that the Procedural Order, attached hereto, shall be in full force and effect.
“Euken Lui”
Euken Lui
ACTING REGISTRAR
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.
PROCEDURAL ORDER
(OLT-22-003897)
- 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 Tuesday, April 4th, 2023 at 10 am at a video coordinate to be provided by the Tribunal in advance of the hearing.
The parties’ initial estimation for the length of the hearing is three (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.
The parties and participants identified at the case management conference are set out in Attachment 1.
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.
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.
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 Friday, February 3rd, 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 Friday, January 13th, 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 Friday, March 10th, 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 Friday, February 17th, 2023ast 45 days prior to the start of the hearing), 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 Friday, February 3rd, 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 Tuesday, Febraury 28th, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Friday, March 24th, 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 within ten (10) 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 Friday, March 24th, 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 Tuesday, March 28th, 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.
BEFORE:
Name of Member: M. A. Sills
Date: Dec. 20, 2022
ATTACHMENT “1”
PARTIES AND PARTICIPANTS
Parties:
Applicant/Appellant: VICTOR ANBER and DEBORAH ANBER
Municipality/Respondent: THE TOWN OF ESSEX
Participants:
CARRIE PERRONE
TIM HUTCHINSON
MERRIE DAY & PATRICK CONRAD
MARIE VIEIRA
JASON HICKS
JUSTIN KELLY
STEVEN MAYER
JAMES & JEANNETTE SYLVESTRE (represented by JOSETTE EUGENI)
ATTACHMENT “2”
ISSUES LIST
ISSUE A: PPS
Is the application consistent with the Provincial Policy Statement? Specifically:
1.0 Building Strong Healthy Communities, in particular clause 1.1.1(c); and,
2.3.6 Non-Agricultural Uses in Prime Agricultural, in particular 2.3.6.1(b) (have the conditions for approval in items 3 and 4.(i) been met).
ISSUE B: Town of Essex OP
Does the application conform with the Town of Essex Official Plan? Specifically:
4.2 Planning Principles, in particular 4.2(g)
5.4 Lands Designated Agricultural, Clauses (a) and (c) under Goals, and Clause (k) under Permitted Uses
ATTACHMENT “3”
ORDER OF EVIDENCE
The order of evidence will be:
Appellants
Respondent
Appellant for reply (if any)
The order of examination of witnesses will be 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.