Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 08, 2022
CASE NO(S).: OLT-21-001290
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Stephen Kilburn
Subject: By-law No. 2021-20617
Municipality: City of Guelph
Municipal File No.: OZS21-004
OLT Case No.: OLT-21-001290
OLT Lead Case No.: OLT-21-001290
OLT Case Name: Kilburn v. Guelph (City)
Heard: March 3, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| City of Guelph | A. Thornton |
| Delhi Eramosa Neighbourhood Advocates Inc. (“DENA”) | I. Flett |
| County of Wellington | P. Pickfield |
MEMORANDUM OF ORAL DECISION DELIVERED BY D.S. COLBOURNE ON MARCH 3, 2022 AND ORDER OF THE TRIBUNAL
1The Tribunal conducted a Case Management Conference on March 3, 2022.
2Robert Eiler, whose company owns the adjacent property at 55 Delhi Street requested participant status. In view of his particular circumstances in his request for status, and no concerns from the parties, he is granted participant status.
3There was no issue with DENA as the Appellant replacing Stephen Kilburn.
4The parties requested a 7-day hearing and the Tribunal arranged a hearing on Monday, August 8, 2022 for 7 days commencing at 10 a.m.
5Parties 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://meet.goto.com/344779885
Access Code: 344-779-885
6Parties 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.
7Persons 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 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
8Individuals 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 video 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.
9The Tribunal orders that the hearing shall be governed by the Procedural Order set out in Attachment 1 hereto.
“D.S. Colbourne”
D.S. COLBOURNE VICE-CHAIR
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.
OLT-21-001290 – Attachment 1
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Stephen Kilburn
Subject: By-law No. 2021-20617
Municipality: City of Guelph
Municipal File No.: OZS21-004
OLT Case No.: OLT-21-001290
OLT Lead Case No.: OLT-21-001290
OLT Case Name: Kilburn v. Guelph (City)
Procedural Order
- The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.
Organization of the Hearing
- The hearing will begin on Monday, August 8, 2022 at 10 a.m. by video conference. Parties are directed to the following link to access the video hearing:
GoTo Meeting: https://meet.goto.com/344779885
Audio-only telephone line: Toll Free 1-888-299-1889 or +1 (647) 497-9373
Access Code: 344-779-885
The Parties may request the Tribunal hold an in-person hearing subject to the Tribunal’s practices at the time of the hearing and the availability of a location for the hearing.
The length of the hearing will be about 7 days. The length of the hearing may be shortened as issues are reordered or where settlement is achieved.
The parties and participants identified at the case management are set out in Attachment 1.
The Issues are set out in the Issues Lists 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 consent 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. 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.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties, the municipal clerk for the City, and to the case co-ordinator, a list of the witnesses and the order in which they will be called. This list must be delivered on or before May 25, 2022. 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.
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. 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 an outline of the expert’s evidence. Copies of this must be provided in accordance with paragraph 12.
A party who intends to call a witness who is not an expert must file an outline of the witness’ evidence. Copies of this must be provided in accordance with paragraph 12.
On or before June 20, 2022, the parties shall provide copies of their expert witness statements and outlines of evidence to all other parties, the municipal clerk for the City and the Case Coordinator.
On or before June 29, 2022, the participants, if any, shall provide copies of their participants statements and outlines of evidence to all other parties, the municipal clerk for the City and the Case Coordinator. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before July 11, 2022, the parties shall provide copies of their expert reply witness statements to all other parties, the municipal clerk for the City and the case coordinator.
Expert witnesses in the same field shall have a meeting on or before July 19, 2022 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all the parties and the case coordinator on or before July 25, 2022.
On or before July 29, 2022, the parties shall provide copies of their visual evidence to all of the other Parties. If a model will be used, all Parties must have a reasonable opportunity to view it before the Hearing.
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 before July 29, 2022 that the written evidence is not part of their record.
The parties shall prepare and file a detailed hearing plan with the Tribunal on or before August 2, 2022 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before August 4, 2022.
All filings, including the exchange of documents between parties and participants, shall be done 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 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.
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.
This Member is not seized.
So orders the Tribunal.
SUMMARY OF KEY DATES
| Date | Hearing Event |
|---|---|
| May 25, 2022 | Parties exchange expert witness lists |
| June 20, 2022 | Parties exchange witness statements |
| June 29, 2022 | Participants to file written participant statements |
| July 11, 2022 | Parties to exchange reply witness statement |
| July 19, 2022 | Like Experts must have completed expert meetings |
| July 25, 2022 | Parties must file Agreed Statement of Fact(s) as determined by experts |
| July 29, 2022 | Exchange of Visual Evidence |
| July 29, 2022 | Notification to Tribunal and Parties if witness not to provide oral evidence |
| August 2, 2022 | Hearing Plan filed with Tribunal |
| August 4, 2022 | Joint Document Book filed with Tribunal |
| August 8, 2022 | Hearing start date |
ATTACHMENT 1
LIST OF PARTIES AND PARTICIPANTS
| PARTIES | COUNSEL |
|---|
- County of Wellington | Garrod Pickfield LLP
9 Norwich Street West
Guelph, ON N1H 2G8
Peter Pickfield
Email: pickfield@garrodpickfield.ca
Tel: (519) 837-0500 - City of Guelph | Legal, Realty and Court Services
City Hall
1 Carden Street
Guelph, ON N1H 3A1
Allison Thornton
Associate Solicitor
Email: allison.thornton@guelph.ca
Tel: (519) 822-1260 x 2438 - Delhi Eramosa Neighbourhood Advocates Inc. | Eric K. Gillespie Professional Corporation
160 John Street, Suite 300
Toronto, ON M5V 2E5
Eric Gillespie
Email: iflett@gillespielaw.ca
Tel: (416) 703-6362
ATTACHMENT 2
ISSUES LIST
Would the approval of City of Guelph Zoning By-law No. 2021-2061 have regard for matters of Provincial interest under the Planning Act; and in particular the following provisions: Subsections 2(h), (h.1), (j), (n), (o), (p) and (r).?
Would the approval of City of Guelph Zoning By-law No. 2021-2061 consistent with the Provincial Policy Statement, 2020 and in particular the following policies: 1.1.1(a),(b), (f); 1.4.3(a) &(b)? (City of Guelph/County of Wellington)
Would the approval of City of Guelph Zoning By-law No. 2021-2061 be in conformity with the Growth Plan for the Greater Golden Horseshoe and in particular the following policies: 1.2.1, 2.2.1.4(b), (c), 2.2.6.1 [particularly (c), (d), (e)], 2.2.6.2]? (City of Guelph/County of Wellington)
Would the approval of City of Guelph Zoning By-law No. 2021-2061 be in conformity with the City of Guelph Official Plan and in particular the following policies:
- Sections 5.4.2; 5.4.3.4.8.1; 9.2.2; 9.2.4; 9.3.2.3; 9.3.2.4; 10.7 and 12. (Delhi Eramosa Neighbourhood Advocates Inc.)
- Sections 3.1, 7.2, 9.2.2, 9.3.1.1 (City of Guelph/County of Wellington)?
- Would approval of City of Guelph Zoning By-law No. 2021-2061 represent good planning in the public interest?
ATTACHMENT 3
ORDER OF EVIDENCE
- County of Wellington
- City of Guelph
- Delhi Eramosa Neighbourhood Advocates Inc
- County of Wellington in Reply
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.