Amardeil v. Bracebridge (Town), 2022 CanLII 25721

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 28, 2022

CASE NO(S).: OLT-22-002227 (Formally PL210011)

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

Applicant: Alpine Ridge Developments Ltd.

Appellant: Jean-Louis Armadeil

Subject: Application amend Zoning By-law No. 2016-088 - Refusal of Application by the Town of Bracebridge

Existing Zoning: Residential Type 1 (R1)

Proposed Zoning: Residential Type 4 Special – 38 (R4 -38)

Purpose: To permit the development of seven stacked row townhouses dwellings, each with seven apartment units

Property Address/Description: Birch Street road allowance, N&S side Birch Street Lots 1-4

Municipality: Town of Bracebridge

Municipality File No.: D14-09/20

OLT Case No.: OLT-22-002227

OLT File No.: OLT-22-002227

OLT Case Name: Amardeil v. Bracebridge (Town)

Heard: March 24, 2022 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel
Jean-Louis Armadeil and BAM Builder Advertising Marketing Inc.	Samantha Lampert
Town of Bracebridge	Harold G. Elston
David G. Royston	Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON March 24, 2022, AND ORDER OF THE TRIBUNAL

1This is the third Case Management Conference / status hearing respecting an appeal by Jean-Louis Armadeil and BAM Builder Advertising Marketing Inc. (collectively, the “Appellants”) regarding the decision by the Council of the Town of Bracebridge (“Town”) to refuse an application for a zoning by-law amendment respecting the lands legally described as Lots 1-4, Plan 15, on the south side of Birch Street.

2At the outset of the present hearing, the Appellants and the Town confirmed that that they had reached a settlement in principle respecting the matter. However, the third party, David Royston, has not confirmed acceptance of the settlement. As a result, unless Mr. Royston also agrees to settle, the matter must proceed to a hearing on the merits.

3In anticipation of such a hearing, the Tribunal received and reviewed a draft Procedural Order (“PO”) from the parties.

4The parties indicated that they are optimistic that the Issues List contained in the PO may be further scoped. As a result, the Tribunal directed the parties to file an amended Issues List, with tracked changes, in the event that they manage to further narrow the Issues List prior to the hearing on the merits.

5It was also determined that the estimated time required for the hearing on the merits would only be five days, rather than the scheduled nine days, on account of the fact that the Appellants and Town have settled the issues between them, and so the Town would not need to call any evidence at the hearing.

6Upon making revisions to the draft PO to reflect timelines to file an amended Issues List (if any) and revised hearing dates, the Tribunal finds it acceptable and the proceedings shall be governed by it (see Attachment 1).

7The Member is not seized and no further notice if required.

“K.R. Andrews”

K.R. ANDREWS 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.

ISSUE DATE:

CASE NO(S).: OLT-22-002227

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

Applicant and Appellant: Jean-Louis Amardeil

Subject: Application to amend Zoning By-law No. 2016-088 – Refusal of Application by the Town of Bracebridge

Existing Zoning: Residential Type (R1)

Proposed Zoning: Residential Type 4 Special – 38 (R4 – 38)

Purpose: To permit the development of seven stacked row townhouse dwellings

Property Address/Description: Birch Street road allowance, North and South side Birch Street Lots 1-4

Municipality: Town of Bracebridge

Municipality File No.: D14-09/20

OLT Case No.: PL210011

OLT File No.: PL210011

OLT Case Name: Amardeil v. Bracebridge (Town)

PROCEDURAL ORDER

The Tribunal Orders that:

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 hearing will begin on November 28, 2022 at 10:00 a.m. The hearing will be held by videoconference, but may be converted to an in-person hearing by direction of the Tribunal.

3. The parties’ initial estimation for the length of the hearing is five (5) 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.

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. The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.

8. 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.

9. 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

10. The Applicant shall provide the parties with the revised submission materials on or before April 1, 2022. The parties shall use best efforts to resolve or reduce the issues for a hearing, and if applicable, provide a revised list of Issues in track changes format with the OLT case co-ordinator on or before May 2, 2022.

11. 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 sixty (60) days after the issuance of the Procedural Order and in accordance with paragraph 24 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.

12. Expert witnesses in the same field shall have a meeting on or before August 24, 2022 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the experts must prepare and file a Statement of Agreed Facts and, if applicable, revised list of Issues with the OLT case co-ordinator on or September 7, 2022.

13. 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 15 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.

14. 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 15 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 14 below.

15. On or before October 7, 2022 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 24 below.

16. On or before October 7, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

17. On or before November 11, 2022 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.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before October 28, 2022 in accordance with paragraph 24 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 15, 2022.

20. 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 co-ordinator, on or before the date upon which the opposing party’s witness is being cross examined.

21. 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.

22. 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.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal no later than 10 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.

24. All filings shall be submitted electronically. 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 Rule 7.

25. 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.

26. A summary of the various procedural dates is contained in Attachment 5.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date: [DATE]

TRIBUNAL REGISTRAR

ATTACHMENT 1

List of Parties and Participants

Parties

1. Jean-Louis Amardeil Aaron Platt and Samantha Lampert Davies Howe LLP 425 Adelaide Street West, 10th Floor Toronto, ON M5V 3C1 Email: aaronp@davieshowe.com/samanthal@davieshowe.com Tel: 416-263-4500 / 416-263-4521

2. Town of Bracebridge Harold Elston H.G. Elston, Barrister & Solicitor 391 First Street, Suite 303 Collingwood, ON L9Y 1B3 Email: counsel@haroldelston.com Tel: 705-443-8183

3. David Royston 240 Maple Street Bracebridge, ON P1L 1K3 Email: woodwarddev21@gmail.com Tel: 705-645-2573

Participants

1. Ann and Scott Tippin Email: tippinann@gmail.com / scott.tippin@gmail.com Tel: 519-216-7645 / 416-970-5307

2. Alexander Pyper Email: sandypyper@gmail.com Tel: 705-646-3737

ATTACHMENT 2

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.

1. Does the proposed Zoning Bylaw Amendment (the “ZBA”) have regard to matters of provincial interest in s. 2 of the Planning Act? In particular, sections 2 (f), (h), (o), (p) and (r).

2. Is the proposed ZBA consistent with the Provincial Policy Statement (the “PPS”)? In particular, Policies: 1.1.1 a), c) and g); 1.1.3.2 b); 1.1.3.3; 1.1.3.4; 1.6.1; 1.6.6.1 a), b) and d); and 1.6.6.7 a) to f).

3. Does the proposed ZBA conform with the policies of the Official Plan of the District of Muskoka (the “DOP”)? In particular, Policies C2.2, C2.3 (water protection); C4 (stormwater management); D1 a) (manage growth); D13 (new development in growth areas); and D15 (servicing).

4. Does the ZBA conform with the policies of the Town of Bracebridge Official Plan (the “BOP”)? In particular, Policies: A7.8.2.3 (character); A7.8.2.4 (servicing); B15.0, B15.2 and B15.3 (compatibility); and C2.1.9, C2.2.1, C2.2.2 (intensification and infilling) and C2.3.1 (medium density and high density development).

5. Can the property accommodate appropriate stormwater management facilities, with no adverse impacts to groundwater or drainage of neighbouring properties? In particular:

a) How will the post-development condition impact the flow routing and resulting peak flows for Catchments OS-3 and OS-6?

b) What impact will there be to the Fire Hall/EMS Pond water level from runoff volume and peak flow discharging to the pond from the site?

c) Where should the additional 130 m3 of additional surface water be stored? Should the tanks be relocated out of the infiltration basin bed area to avoid conflict/impact to the infiltration feature’s functionality?

d) How will the proposed stormwater management plan affect compatibility, buffering, vegetation retention, or orientation of buildings?

6. Is the development contemplated by the proposed ZBA compatible with surrounding properties?

7. Does the proposed ZBA represent good planning?

8. Should the subject lands be split zoned in order to protect rights of way/easements MT 241398 and DM 33197 and other lands going forward as required by PPS section 1.6.8.1, and BOP Policies G 1.5.2, I 1.2.1, I 6.1.1 and I5.1.3? Specifically should the portions of the subject lands occupied by the said easements/rights of way and any lands occupied by communal stormwater management works be zoned OS (Open Space) with the remainder zoned as development lands?

9. Should the protection zone for easement/right of way DM 33197 be enlarged to a minimum of 6 m wide (the current minimum with for District rights of way/easements) in recognition of future potential condominium applications?

10. Are the stormwater management works illustrated on the draft site plan or any portion thereof communal works within the meaning of MOECC policies D-5 and D-5-2?

11. Does the absence of a servicing options statement as required by section 2.2.3 of MOECC policy D-5 make any proposed rezoning premature?

12. If the answer to issue 10 above is "yes", does the absence of an agreement by the Town to take responsibility for the works make any rezoning that includes such communal works premature?

13. With reference to PPS sections 1.6.6.7(a), (d) and (f) and BOP Policy I 5.1.3, should the setbacks for the proposed stormwater management pond be established in any implementing bylaw and if so, at what distance from adjacent property boundaries and any structures on the subject lands or adjacent lands?

14. If at some point, the Town does become willing to accept responsibility for any proposed communal works, should the lands occupied by such works together with all required access easements/rights of way be zoned Open Space (BOP 5.1.3)?

15. Would it be fiscally responsible for the Town to accept responsibility for any proposed communal works (BOP Policy A.5.1(viii))?

16. In the absence of a snow management plan for any passive storm water management works, is any rezoning premature?

17. Do the proposed stormwater management works blend with the surrounding requirement as required by BOP Policy I5.1.5.?

18. Is the stormwater management pond on the adjacent ambulance/firehall property a wetland or developing wetland within the meaning of section B 10.7.1 of the BOP, and if so, what should the required setback be?

19. If the answer to Issue 18 above is yes, is any rezoning premature in the absence of an environmental impact statement as described in BOP Policy B.25.1?

ATTACHMENT 3

Order of Evidence

1. Jean-Louis Amardeil
2. Town of Bracebridge
3. David Royston
4. Reply by Jean-Louis Amardeil

ATTACHMENT 4

Purpose of the Procedural Order and Meaning of Terms

The Tribunal recommends that the parties meet to discuss this sample Order before the prehearing conference to try to identify the issues and the process that they want the Tribunal to order following the conference. The Tribunal will hear the parties’ comments about the contents of the Order at the conference.

Prehearing conferences usually take place only where the hearing is expected to be long and complicated. If you are not represented by a lawyer, you should prepare by obtaining the Ontario Land Tribunal Appeal Guide, and the Tribunal’s Rules, from the Tribunal Information Office, 15th Floor, 655 Bay Street, Toronto, M5G 1E5, 416-326-6800, or from the Tribunal’s website at https://elto.gov.on.ca/tribunals/OLT/about-OLT/.

Meaning of terms used in the Procedural Order

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. If an unincorporated group wishes to become a party, 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 authorization 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.

Participant is an individual, group 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). Subsection 33.2 of the Local Planning Appeal 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 and Visual Evidence: 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.

Witness Statements: 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 the witness’ opinions on those issues; and a list of reports 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 for the opinions and (5) a list of reports that the witness will rely on at the hearing. A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, if any, which the participant will refer to at the hearing.

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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 5

Summary of Dates

DATE	EVENT
April 1, 2022	Applicant to provide parties with Revised Application Material
May 2, 2022	File Revised Issues List (if any)
Sixty (60) Days after Issuance of Procedural Order	Exchange of witness lists (names, disciplines and order to be called)
August 24, 2022	Experts meeting prior to this date
September 7, 2022	Agreed Statement of Expert Witnesses (if any)
October 7, 2022	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
October 28, 2022	Exchange of Reply Witness Statements
November 11, 2022	Exchange of visual evidence
November 12, 2022	Hearing Plan filed with the Tribunal
November 15, 2022	Finalize Joint Document Book
November 28, 2022	Hearing commences