Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 29, 2022

CASE NO.: OLT-21-001728

PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Kenneth Westhues

Applicant: John Pinter

Subject: Proposed Official Plan Amendment

Description: To permit a vacation rental unit

Reference Number: OPA 139

Property Address: 5411 River Road

Municipality/UT: Niagara Falls/Niagara

OLT Case No: OLT-21-001728

OLT Lead Case No: OLT-21-001728

OLT Case Name: Westhues v. Niagara Falls (City)

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Kenneth Westhues

Applicant: John Pinter

Subject: Zoning By-law

Description: To permit a vacation rental unit

Reference Number: By-law 2021-96

Property Address: 5411 River Road

Municipality/UT: Niagara Falls/Niagara

OLT Case No: OLT-22-002871

OLT Lead Case No: OLT-21-001728

BEFORE:

M. A. SILLS VICE-CHAIR

Tuesday, the 21st day of December, 2022

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on March 30, 2023.

“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.

ATTACHMENT “A”

ISSUE DATE: December 29, 2022 CASE NO(S).: OLT-21-001728, OLT-22-002871

PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Kenneth Westhues Applicant: John Pinter Subject: Proposed Official Plan Amendment Description: To permit a vacation rental unit Reference Number: OPA 139 Property Address: 5411 River Road Municipality/UT: Niagara Falls/Niagara OLT Case No.: OLT-21-001728 OLT Lead Case No.: OLT-21-001728 OLT Case Name: Westhues v. Niagara Falls (City)

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Kenneth Westhues Applicant: John Pinter Subject: Zoning By-law Description: To permit a vacation rental unit Reference Number: By-law 2021-96 Property Address: 5411 River Road Municipality/UT: Niagara Falls/Niagara OLT Case No.: OLT-22-002871 OLT Lead Case No.: OLT-21-001728

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 March 30, 2023 at 10:00 a.m. at https://global.gotomeeting.com/join/519389173

3. The parties’ initial estimation for the length of the hearing is 2 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 2 (see the sample procedural order for the meaning of these terms).

5. 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.

6. 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.

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 Wednesday, November 30, 2022 (120 days prior to the scheduled commencement of the hearing) 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. Any challenges to the qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or before Tuesday, December 20, 2022 (100 days before the hearing is scheduled to commence).

10. 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 12 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.

11. 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 12 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 12 below.

12. On or before Friday, January 27, 2023 (62 days prior to the scheduled commencement of the hearing), the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 21 below.

13. On or before Friday, January 27, 2023 (62 days prior to the scheduled commencement of the hearing), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

14. On or before Thursday, February 23, 2023 (35 days prior to the scheduled commencement of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before Tuesday, February 28, 2023 (30 days prior to the scheduled commencement of the hearing), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 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, in accordance with paragraph 21 below, within thirty (30) days after the evidence is received in accordance with paragraph 12 above.

17. 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 10, 2023 (20 days prior to the scheduled commencement of the hearing).

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 Friday, March 10, 2023 (20 days prior to the hearing) 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.

23. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

Summary of Dates

DATE	EVENT
Wednesday, November 30, 2022 (120 days prior to hearing)	Exchange of witness lists (including Curriculum Vitae, Acknowledgment of Expert's Duty Form, and the area of expertise in which the witness is prepared to be qualified)
Tuesday, December 20, 2022 (100 days prior to hearing)	Challenges to qualifications of witnesses, if any
Friday, January 27, 2023 (62 days before hearing)	Exchange of witness statements and expert witness statements; and Exchange of participant statements
Thursday, February 23, 2023 (35 days prior to hearing)	Confirm that all reserved hearing dates are still required
Tuesday, February 28, 2023 (30 days prior to hearing)	Exchange of visual evidence, if any
Tuesday, February 28, 2023 (30 days prior to hearing)	Exchange of written response to written evidence
Friday, March 10, 2023 (20 days prior to hearing)	Finalize and file joint document book; and File hearing plan with the Tribunal
Thursday, March 30, 2023	Hearing commences

Attachment 2

List of Parties and Participants

Parties:

City of Niagara Falls Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9 Tom Halinski Tel: 416.865.7763 Fax: 416.863.1515 Email: thalinski@airdberlis.com Naomi Mares Tel: 647.426.2842 Fax: 416.863.1515 Email: nmares@airdberlis.com

Kenneth Westhues (Appellant) 5419 River Road Niagara Falls, ON L2E 3H1 Tel: 905.353.9602 Email: kwesthues@waterloo.ca

1907782 Ontario Inc., 11409433 Canada Inc., and Alfred Collette D’Souza Sullivan Mahoney LLP 4781 Portage Road Niagara Falls, ON L2E 6B1 Rocco Vacca Tel: 905.357.5863 Email: rvacca@sullivanmahoney.com

Participants:

Linda Manson Tel: 905.358.3823 Email: writeon@sympatico.ca

Debra Jackson-Jones Tel: 905.351.1516 Email: dljacksonjones1@gmail.com

John Garrett Tel: 905.357.3437 Email: j.garrett@sympatico.ca

Attachment 3

Issues List

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the OLT or any party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT at the hearing will be a matter of evidence and argument at the hearing. The identification of an issue on this list by a party indicates that 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 and shall not be construed as the OLT having jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the OLT.

1. Are Official Plan Amendment (OPA) No. 139 and the by-law consistent with the Provincial Policy Statement, in particular: a) Section 1.1.1, Healthy, safe and livable communities b) Section 1.3, Employment c) Section 1.4, Housing

2. Do OPA No. 139 and the by-law conform with A Place to Grow: Growth Plan for Greater Golden Horseshoe, in particular: a) Subsection 18 of Section 2.2.5, Employment b) Section 2.2.6, Housing

3. Do OPA No. 139 and the by-law conform with the Regional Municipality of Niagara Official Plan, in particular: a) Section 2.A.1., Tourism and Recreation b) Section 11.A., Residential Areas and Housing c) Section 2.3, Housing (in the revised Official Plan now pending approval by the Ministry of Municipal Affairs and Housing)

4. Does OPA No. 139 conform with the policy regime of the City of Niagara Falls Official Plan, in particular: a) Part 2, Section 1.17, Vacation Rental Units, in particular Subsections 1.10.5, 1.10.6, and 1.10.7 b) Part 2, Section 3.1.3, Accommodations c) Part 2, Sections 4.2.37 and 4.2.38, River Road Satellite District d) Part 2, Section 13, Preamble e) Part 4, Section 2.6, Official Plan Review and Amendments, in particular Subsections 2.6.1, 2.6.2, 2.6.3 and 2.6.5

5. Does the ZBA, By-law 2021-96, conform to the OP, as modified by OPA 139?

Attachment 4

Order of Evidence

Proposed by the City and Applicant:

1. Overview by the City of Niagara Falls
2. Kenneth Westhues
3. City of Niagara Falls
4. Applicant (John Pinter)

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.