Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 03, 2022
CASE NO(S).:
OLT-22-002310
(Formerly) PL080723
OLT-22-002308
(Formerly) PL200469
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Millford Development Limited
Subject:
2006 Official Plan for the Town of Newmarket
Municipality:
Town of Newmarket
OLT Case No.:
OLT-22-002310
Legacy Case No.:
PL080723
OLT File No.:
OLT-22-002310
Legacy Lead Case No.:
PL080723
OLT Case Name:
Millford Development Limited v. Newmarket (Town)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Milford Development Limited
Subject:
Request to amend the Official Plan - Failure of the Town of Newmarket to adopt the requested amendment
Existing Designation:
“Parks and Open Space”, “Natural Heritage System”, “Emerging Residential” and “Stable Residential”
Proposed Designated:
“Yonge-Davis Provincial Urban Growth Centre”, “Emerging Residential” and “Parks and Open Space”
Purpose:
To permit the development of a 12-storey residential building with 154 units and 38 townhouses
Property Address/Description:
55 Eagle Street
Municipality:
Town of Newmarket
Approval Authority File No.:
D9-NP-11-09
OLT Case No.:
OLT-22-002308
Legacy Case No.:
PL200469
OLT File No.:
OLT-22-002308
Legacy Lead Case No.:
PL200469
OLT Case Name:
Millford Development Limited v. Newmarket (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Milford Development Limited
Subject:
Application to amend Zoning By-law No. 2010-40 - Neglect of the Town of Newmarket to make a decision
Existing Zoning:
“Residential (R1-D)” and “Open Space Environmental Protection (OS-EP)”
Proposed Zoning:
“Urban Centre Provincial (UC-P)”, “Residential (R5-T)”, “Residential R4-CP”, “Open Space (OS-1)” and “Flood Plain and Other Natural Hazards (FP-NH)”
Purpose:
To permit the development of a 12-storey residential building with 154 units and 38 townhouses
Property Address/Description:
55 Eagle Street
Municipality:
Town of Newmarket
Municipality File No.:
D14-NP-11-09
OLT Case No.:
OLT-22-002309
Legacy Case No.:
PL200470
OLT File No.:
OLT-22-002308
Legacy Lead Case No.:
PL200469
Heard:
July 26, 2021 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Milford Development Limited
Mark Flowers
Town of Newmarket
Kim Mullen
Paul Voom*
Region of York
Bola Ogunmefun
MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL
1This is the first Case Management Conference (“CMC”) for this case.
2The purpose of the CMC was to receive status updates from both parties to organize the hearing of these appeals.
OVERVIEW
3The subject lands are located at 55 Eagle Street, approximately 100 metres east of Yonge Street. The surrounding land uses to the north are valley lands and floodplain associated with Western Creek, a tributary of the Holland River. The surrounding land uses to the south are residential on the south side of Eagle Street and chiropractic and orthodontist offices south and abutting the subject lands.
4The surrounding land uses to the west are commercial uses on Yonge Street consisting of a McDonald's restaurant and an Esso gas station. The surrounding land uses to the east is a commercial use consisting of an Active Green + Ross Tire Centre and residential uses on Avenue Road.
DEVELOPMENT PROPOSAL
Official Plan Amendment
5The Official Plan Amendment application is to amend the existing Official Plan designations from “Parks and Open Space”, “Natural Heritage System”, “Emerging Residential” and “Stable Residential” to “Yonge Davis Provincial Urban Growth Centre”, “Emerging Residential” and “Parks and Open Space” designations. The area proposed to be removed from the Natural Heritage System is approximately 0.526 hectares (1.3 acres).
Zoning By-Law Amendment
6The Zoning By-law Amendment application is to seek a rezoning of the property above the top of bank from “Residential (R1-D)” and “Open Space Environmental Protection (OS-EP)” to “Urban Centre Provincial (UC-P)” and “Residential (R5-T)” to permit the 12-storey residential building and to rezone the remaining developable area “Residential R4-CP” to permit 38 townhouse units. The lands below the established top of bank are proposed to be zoned “Open Space (OS-1)” and “Flood Plan and Other Natural Hazards (FP-NH)”.
NATURE OF THE APPEALS
7The Appellant has filed appeals under s. 22(7) and s. 34(11) of the Planning Act for failure of the Town to make a decision within the timeframes specified in these respective subsections of the Planning Act.
PARTY / PARTICIPANT STATUS REQUEST
8The Tribunal received Party / Participant status requests from:
Shirley Charles;
Darlene Gardner;
Ashleigh and Jon Wedlock and
William Healey
Erin and Peter Lugomirski (Participant Status)
The Tribunal heard that those seeking Party status would not be providing any evidence nor calling on any professional witness’ to testify. The Tribunal denied all Party status requests but granted William Healey and Erin and Peter Lugomirski Participant status.
9Mr. Flowers informed the Tribunal that he would complete and submit an updated Procedural Order herein attached which will now govern the hearing of these Appeals.
10The Tribunal hereby schedules a video hearing of these appeals on Tuesday, May 17, 2022, commencing at 10 a.m. Thirteen (13) days has been set aside. The Tribunal will not be sitting on Monday, May 23, 2022 and Monday, May 30, 2022.
11Parties 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:
https://global.gotomeeting.com/join/275448069
Access Code: 275-448-069
12Parties 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.
13Persons 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: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.
14Individuals 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 vide hearing 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.
15No further notice will be given.
16The Member is not seized.
17So Orders the Tribunal.
“Carmine Tucci”
Carmine Tucci
MEMBER
Ontario Land Tribunal
Website: www.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 1
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Millford Development Limited
Subject:
2006 Official Plan for the Town of Newmarket
Municipality:
Town of Newmarket
OLT Case No.:
OLT-22-002310
Legacy Case No.:
PL080723
OLT File No.:
OLT-22-002310
Legacy Lead Case No.:
PL080723
OLT Case Name:
Millford Development Limited v. Newmarket (Town)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Milford Development Limited
Subject:
Request to amend the Official Plan - Failure of the Town of Newmarket to adopt the requested amendment
Existing Designation:
“Parks and Open Space”, “Natural Heritage System”, “Emerging Residential” and “Stable Residential”
Proposed Designated:
“Yonge-Davis Provincial Urban Growth Centre”, “Emerging Residential” and “Parks and Open Space”
Purpose:
To permit the development of a 12-storey residential building with 154 units and 38 townhouses
Property Address/Description:
55 Eagle Street
Municipality:
Town of Newmarket
Approval Authority File No.:
D9-NP-11-09
OLT Case No.:
OLT-22-002308
Legacy Case No.:
PL200469
OLT File No.:
OLT-22-002308
Legacy Lead Case No.:
PL200469
OLT Case Name:
Millford Development Limited v. Newmarket (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Milford Development Limited
Subject:
Application to amend Zoning By-law No. 2010-40 - Neglect of the Town of Newmarket to make a decision
Existing Zoning:
“Residential (R1-D)” and “Open Space Environmental Protection (OS-EP)”
Proposed Zoning:
“Urban Centre Provincial (UC-P)”, “Residential (R5-T)”, “Residential R4-CP”, “Open Space (OS-1)” and “Flood Plain and Other Natural Hazards (FP-NH)”
Purpose:
To permit the development of a 12-storey residential building with 154 units and 38 townhouses
Property Address/Description:
55 Eagle Street
Municipality:
Town of Newmarket
Municipality File No.:
D14-NP-11-09
OLT Case No.:
OLT-22-002309
Legacy Case No.:
PL200470
OLT File No.:
OLT-22-002308
Legacy Lead Case No.:
PL200469
Procedural Order
- 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 Tuesday, May 17, 2022 at 10 a.m. The hearing will be held by videoconference; but may be converted to an in-person hearing by direction of the Tribunal. Parties are directed to the following link to access the video hearing:
GoTo Meeting: https://global.gotomeeting.com/join/275448069
Audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391
Access Code: 275-448-069
Parties 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.
The length of the hearing will be about thirteen (13) days, scheduled to conclude on Monday, June 6, 2022, and not scheduled to sit on Monday, May 23, 2022 or Monday, May 30, 2022. 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 procedural order deadlines are generally found in Attachment 1.
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. Aside from the potential for the removal of issues as they may be resolved, 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.
If the hearing is to proceed electronically, 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 are intended to be called. This list must be delivered on or before Tuesday, March 8, 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(s) of expertise in which the witness is proposed to be qualified.
Expert witnesses in the same field(s) shall meet at least once prior to Friday, April 8, 2022 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting, and if agreement is reached, the witnesses shall prepare an Agreed Statement and identify the remaining issues to be addressed at the hearing, and provide this statement to all of the parties on or before Wednesday, April 13, 2022.
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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same as the delivery of expert witness statements, as in paragraph 13.
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 Monday, March 28, 2022, the parties shall provide copies of their witness and expert witness statements to the other parties in accordance with paragraph 22 below.
On or before Monday, March 28, 2022, a participant shall provide copies of their written participant statement to the parties and the OLT Case Coordinator 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 Wednesday, April 20, 2022, the parties may provide to all other parties a written response to any written evidence received and in accordance with paragraph 22 below.
On or before Monday, April 25, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. The Tribunal and all parties shall be notified if a model will be used, and all parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving party provide copies of the motion to all other parties at least fifteen (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 other parties and the Tribunal at least seven (7) days before the hearing that the written evidence is not part of their record.
On or before Monday, May 2, 2022, the parties shall prepare and file with the Tribunal a Hearing Plan that identifies the following, at a minimum: the identified parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is expected to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Hearing Plan”). The Hearing Plan should be used to guide the Hearing Event, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Hearing Plan throughout the Hearing Event.
The parties shall cooperate and share the costs to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before Friday, May 6, 2022. One (1) hard copy shall be filed with the Tribunal as soon as practicable in advance of the Hearing. All parties must be served with the joint document book in paper or an accessible electronic format in accordance with paragraph 22.
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 Coordinator.
All filings of documents with the Tribunal of documents referred to in this Procedural Order shall be in electronic and in hard copy, unless otherwise directed. Documents to be served on other parties may be done in electronic form only. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. Paragraph 22 applies regardless if the hearing event is in-person or electronic.
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.
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.
ATTACHMENT 1: SUMMARY OF DATES
DATE
EVENT
March 8, 2022
Exchange of witness lists (names, disciplines and order to be called)
March 28, 2022
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
April 8, 2022
Experts meeting prior to this date
April 13, 2022
Agreed Statement of Expert Witnesses (if any)
April 20, 2022
Exchange of Reply Witness Statements
April 25, 2022
Exchange of visual evidence
May 2, 2022
Hearing Plan filed with the Tribunal
May 6, 2022
Finalize Joint Document Book
May 17, 2022
Hearing commences
ATTACHMENT 2: list of parties and participants
A. PARTIES
PARTIES
COUNSEL
Millford Development Limited
Davies Howe LLP 425 Adelaide Street West, 10th Floor Toronto, ON M5V 3C1 Mark R. Flowers Email: markf@davieshowe.com Tel: (416) 263-4513
Town of Newmarket
Wood Bull LLP 65 Queen Street West Suite 1400 Toronto, ON M5H 2M5 Kim Mullin Email: kmullin@woodbull.ca Tel: (416) 203-5633
Regional Municipality of York
Legal Services York Region Administrative Centre 17250 Yonge Street Newmarket, ON L3Y 6Z1 Bola Ogunmefun Email: bola.ogunmefun@york.ca Tel: 1-877-464-9675 ext. 71459
B. PARTICIPANTS
Erin and Peter Lugomirski email: peter.lugomirski@gmail.com
William Healey email: ed.healey@hotmail.com
Mary-Ann Vercammen email: ma.vercammen@hotmail.com
James Fitzgerald email: fitzybrown@rogers.com
Victoria Wright email: vikw@rogers.com
Shirley Charles email: shirchar@rogers.com
Darlene Gardner email: darlenegardner@rogers.com
Ashleigh and Jon Wedlock email: ashleighwedlock@gmail.com
ATTACHMENT 3: ISSUE List
Town of Newmarket
Is the proposed removal of the significant woodlands consistent with Section 2.1 of the Provincial Policy Statement, 2020?
Is the proposed development consistent with the Provincial Policy Statement, 2020, including but without limitation, Sections 1.1.1 b) 1.1.1 c), 1.6.6.1, 1.6.6.2, 1.6.6.6, 1.6.6.7, 2.1, 2.2.1 e), 2.2.1 f), 2.2.1 g), 2.2.1 i)?
Does the proposed development conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe including, but without limitation, Sections 2.2.4, 3.2.7.2, 4.2.2.2, 4.2.2.3, 4.2.2.4, 4.2.2.6, 4.2.4.3?
Does the proposed development conform to the policies of the 2010 York Region Official Plan, including, without limitation, Policy Nos. 2.1.4, 2.1.5, 2.1.7, 2.1.9, 2.1.10, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.2.9, 2.2.22, 2.2.23, 2.2.44 – 2.2.49, 2.3.2, 2.3.3, 2.3.4, 2.3.22, 2.3.27, 5.3.8, 7.3, Definitions – Hazardous Sites, Significant Woodlands & Woodlands?
Have the LSRCA’s comments (dated May 17, 2021 and May 19, 2021) been satisfactorily addressed?
Does the proposed development conform with the Lake Simcoe Protection Plan (2009), including, without limitation, Policy Nos. 4.8-DP, 6.32 – 6.34-DP, 6.40-DP?
Does the proposed development conform with the policies of the 2006 Town of Newmarket Official Plan as amended including, but without limitation, Sections 3.10, 9.0, 10.4, 10.5, 12.0, 14.0 and 15.0?
Does the existing and proposed transportation and/or transit network support the proposed development?
Does the site design provide sufficient parking, street design and traffic flow?
Are the proposed densities and building typologies appropriate?
Do the Noise report and proposed noise mitigation meet the Town of Newmarket and Ministry of Environment requirements?
Do technical requirements relating to stormwater management, grading and drainage, meet the requirements of the Town of Newmarket and the LSRCA?
Has the future ownership of the natural heritage features (including woodlot, wetland, floodplain) been determined?
Has a satisfactory Phase 1 and 2 Environmental Site Assessment (ESA) and Record of Site Condition (RSC) been submitted to the Town of Newmarket?
Can the proposed development be appropriately serviced in terms of water, sanitary and stormwater management infrastructure and capacity, including requirements for fire fighting?
Is there sufficient servicing allocation for this development, as per the Town’s Servicing Allocation Policy?
Does the proposed development sufficiently protect the identified natural heritage features of the site?
Does the proposed development represent good planning?
Is the form and content of the proposed Official Plan Amendment appropriate?
Is the form and content of the proposed Zoning By-law Amendment appropriate?
Should a ‘Holding’ provision be included in the proposed Zoning By-law?
Regional Municipality of York
- Has the development limit been appropriately determined in accordance with applicable planning policies and criteria with respect to:
a. Key natural heritage and key hydrologic features and their required respective vegetation protection zones?
Are the proposed encroachments into the key natural heritage features / key hydrologic features, and their vegetation protections zones / buffer areas appropriate?
Have the proposed applications applied York Region’s significant woodland criteria appropriately?
Is the proposed removal of the significant woodlands consistent with Section 2.1 of the PPS, 2020?
Are the applications consistent with the Provincial Policy Statement 2020, including, without limitation, Policy Nos. 1.1.1.c), 1.6.6.1, 1.6.6.2, 1.6.6.6, 1.6.6.7, 2.1.1, 2.1.2, 2.1.3, 2.1.5, 2.1.7, 2.1.8, 2.2.1 d., 2.2.1 e., 2.2.1 f., 2.2.1 g., 2.2.1.i.?
Do the applications conform to the Growth Plan 2020, including, without limitation, Policy Nos. 2.2.4, 4.2.2.2, 4.2.2.3, 4.2.2.4, 4.2.2.6.6, 4.2.4.3?
Do the applications conform to the Lake Simcoe Protection Plan, 2009, including, without limitation, Policy Nos. 4.8-DP, 6.32 – 6.34-DP, 6.40-DP?
Do the applications comply with the South Georgian Bay Lake Simcoe Source Protection Plan including, without limitation, Policy Nos. LUP-12 and LUP-13?
Do the applications conform to the York Region Official Plan, 2010 including, without limitation, Policy Nos. 2.1.4, 2.1.5, 2.1.7, 2.1.9, 2.1.10, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.2.9, 2.2.22, 2.2.23, 2.2.44 – 2.2.49, 2.3.2, 2.3.3, 2.3.4, 5.3.8, 7.3, Definitions – Significant Woodlands & Woodlands?
Do the applications conform to the Town Official Plan, 2006, in respect of the proposed Natural Heritage System designation and proposed woodlot identification on a portion of the Subject Lands, as shown on Schedules 1 and 2 respectively?
Have the Region of York’s comments (dated May 21, 2021) been satisfactorily addressed, including but not limited to matters related to planning, natural heritage, servicing and water resources?
Have the LSRCA’s comments (dated May 17, 2021 and May 19, 2021) been satisfactorily addressed?
Millford Development Limited
- Are the proposed designations of a portion of the tablelands adjacent to Eagle Street as “Natural Heritage System” and “Woodlot”, as proposed by the Town and Region, appropriate and justified and do they represent good planning?
Note: The identification of an issue on this list does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.
ATTACHMENT 4: ORDER OF EVIDENCE
Millford Development Limited
Town of Newmarket
Regional Municipality of York
Reply by Millford Development Limited (if any)
ATTACHMENT 5: Purpose of the Procedural Order and Meaning of Terms
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.