Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 18, 2022

CASE NO(S).: 20-015, OLT-21-001067

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, and section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40

Appellant: David Bartlett (File No. 20-015)

Appellant: James Bartlett (File No. 20-016)

Appellant: N.M. Bartlett Inc. (File No. 20-017)

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to perform work in regard to stormwater management and soil and sediment remediation

Reference No.: 5841-BCVQ4K-1

Property Address/Description: 4509 Bartlett Road

Municipality: Lincoln

Upper Tier: Regional Municipality of Niagara

OLT Case No.: 20-015

OLT Case Name: Bartlett v. Ontario (Environment, Conservation and Parks)

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19

Appellant: David Bartlett (Appeal No. 001166)

Appellant: James Bartlett (Appeal No. 001167)

Appellant: N.M. Bartlett Inc. (Appeal No. 001168)

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to perform work in regard to stormwater management and soil and sediment remediation

Reference No.: 1-41636588

Property Address/Description: 4509 Bartlett Road, RR #1

Municipality: Lincoln

Upper Tier: Regional Municipality of Niagara

OLT Case No.: OLT-21-001067

OLT Case Name: Bartlett v. Ontario (Environment, Conservation and Parks)

Heard: October 14, 2021 and January 14, 2022 by video hearing

APPEARANCES:

Parties

Counsel

David Bartlett, James Bartlett and N.M. Bartlett Inc.

Jennifer Danahy

Director, Ministry of the Environment, Conservation and Parks

Nicholas Adamson

Danielle Meuleman

DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

1On October 14, 2021, the Tribunal held a Case Management Conference (“CMC”) regarding appeals filed by N.M Bartlett Inc., James Bartlett, and David Bartlett in relation to Director’s Order No. 5841-BCVQ4K-1 issued by the Director, Ministry of the Environment, Conservation and Parks. The Director’s Order requires the Appellants to perform stormwater management and soil and sediment remediation work at the property located at 4509 Bartlett Road.

2At the CMC, the Parties provided an update on their preparation of a draft Procedural Order and Issues List, discussed opportunities for settlement discussions, and requested hearing dates.

3The Parties stated that they had prepared a draft Procedural Order, but needed time to finalize the Issues List. They undertook to promptly file with the Tribunal a finalized draft of these documents.

4The Parties stated that they had previously undertaken mediation, but were not successful. The Director was hesitant about the usefulness of further discussions based on the current positions of the Parties.

5The Parties identified the number and types of witnesses that they each plan to call and requested a 13 to 15-day hearing. They discussed the scheduling of hearing dates for October 2022.

6Subsequent to the CMC, the Director informed the Tribunal on December 17, 2021 that the Parties had failed to agree on an Issues List. Given these circumstances, the Tribunal directed the Parties to reconvene for a further CMC on January 14, 2022.

7On January 13, 2022, the Parties filed a revised draft Procedural Order and Issues Lists. At the CMC on January 14, 2022, the Parties finalized these documents and confirmed the scheduling of hearing dates.

8The Tribunal notes that the Parties requested in their draft Procedural Order that a site visit be conducted. The Parties may make a request for a site visit to the Tribunal panel at the commencement of the hearing of the appeal.

ORDER

9The Tribunal approves the Procedural Order and Issues List attached as Attachment 1 to this Order and Decision.

10The Tribunal orders that the hearing in this matter will commence by video hearing on Tuesday, October 11, 2022 at 10 a.m. Thirteen days have been set aside.

11The Tribunal’s Case Coordinator will provide the details for connecting to the hearing.

12Individuals 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 hearing by video to ensure that they are properly connected to the events at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

13This Member is not seized.

“Hugh S. Wilkins”

HUGH S. WILKINS

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.

20-015/OLT-21-001067 – Attachment 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, and section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40

Appellant: David Bartlett (File No. 20-015)

Appellant: James Bartlett (File No. 20-016)

Appellant: N.M. Bartlett Inc. (File No. 20-017)

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to perform work in regard to stormwater management and soil and sediment remediation

Reference No.: 5841-BCVQ4K-1

Property Address/Description: 4509 Bartlett Road

Municipality: Lincoln

Upper Tier: Regional Municipality of Niagara

OLT Case No.: 20-015

OLT Case Name: Bartlett v. Ontario (Environment, Conservation and Parks)

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19

Appellant: David Bartlett (Appeal No. 001166)

Appellant: James Bartlett (Appeal No. 001167)

Appellant: N.M. Bartlett Inc. (Appeal No. 001168)

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to perform work in regard to stormwater management and soil and sediment remediation

Reference No.: 1-41636588

Property Address/Description: 4509 Bartlett Road, RR #1

Municipality: Lincoln

Upper Tier: Regional Municipality of Niagara

OLT Case No.: OLT-21-001067

OLT Case Name: Bartlett v. Ontario (Environment, Conservation and Parks)

Procedural Order

1. 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

2. The video hearing will begin on Tuesday, October 11, 2022 at 10 a.m. The Tribunal’s Case Coordinator will provide the details for connecting to the hearing.

3. The parties’ initial estimation of the length of the hearing is 13 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 (see the sample procedural order for the meaning of these terms).

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 consent 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. The parties shall exchange productions by February 4, 2022. Documents will be exchanged electronically.

10. The notice of motion for any motion(s) regarding the sufficiency of the documentary productions delivered pursuant to section 8 above shall be delivered by February 14, 2022. Any affidavits to be relied upon by the moving party shall be delivered by February 23, 2022. Any affidavits to be relied upon by the responding party shall be delivered by March 4, 2022. Any cross-examinations on affidavits shall be conducted during the week of March 21-25, 2022, and factums shall be exchanged or an oral hearing held by April 6, 2022 (subject to the OLT’s availability).

11. The notice of motion for a stay motion, if required, shall be delivered by April 15, 2022. Any affidavits to be relied upon by the moving party shall be delivered by April 27, 2022. Any affidavits to be relied upon by the responding party shall be delivered by May 6, 2022. Any cross-examinations on affidavits shall be conducted during the week of May 16-20, 2022, and factums shall be exchanged or an oral hearing held by June 1, 2022 (subject to the OLT’s availability).

12. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, 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 May 27, 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.

13. Expert witnesses in the same field shall have a meeting on or before June 3, 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 of the parties.

14. 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 section 16 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.

15. 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 section 16. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section 16.

16. On or before June 24, 2022, the parties shall provide copies of their witness and expert witness statements and/or expert witness reports to the other parties.

17. On or before July 15, 2022, the parties shall provide any reply expert witness statements and/or reports to the other parties.

18. On or before September 14, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 25 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal Case Coordinator on or before September 30, 2022 (no later than 10 days prior to the hearing).

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 Tribunal Case Coordinator, on or before September 30, 2022.

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 hearing plan with the Tribunal on or before September 9, 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.

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 the 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.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PRESENTERS

PARTIES

COUNSEL

David Bartlett (Appellant)

Gowling WLG 1 First Canadian Place 100 King Street West, Suite 1600 Toronto, ON M5X 1G5 Jennifer Danahy Email: jennifer.danahy@gowlingwlg.com Tel: (416) 369-7290

James Bartlett (Appellant)

N.M. Bartlett Inc. (Appellant)

Director, Ministry of the Environment, Conservation and Parks (Respondent) Ministry of the Environment, Conservation and Parks Niagara District Office Garden City Tower, 9th Floor, Suite 15 301 St. Paul Street Saint Catharines, ON L2R 7R4 Kim Groombridge, Director Email: kim.groombridge@ontario.ca

Ministry of the Attorney General, Legal Services Branch – Environment, Conservation and Parks 135 St. Clair Avenue West, 10th Floor, Toronto, ON M4V 1P5 Nicholas Adamson Email: nicholas.adamson@ontario.ca Tel: (416) 898-9304 Danielle Meuleman Email: danielle.meuleman@ontario.ca Tel: (416) 524-0879

ATTACHMENT 2

ISSUE LIST

Appellant’s Issues

1. Investigation of Upstream Sources

a. Can any conclusion be reached about the source of DDT in sediment, within Bartlett Creek, without adequate prior investigation of upstream sources including:

i. Farm and orchard lands directly adjacent to the Site, draining to Bartlett Creek, upon which DDT was historically applied?

ii. Farm and orchard lands draining to Bartlett Creek, upstream of the Site, where DDT was historically applied, which have been converted to residential use?

b. is the evidence upon which the Director relies sufficient to rule out sediment run-off from upstream and adjacent lands as the source of impacts within Bartlett Creek?

i. Does the technical evidence upon which the Director relies adequately consider the timing of upstream land stripping and conversion in relation to sampling data, and the historical identification of contaminated sediment within Bartlett Creek?

ii. Can upstream agricultural land conversion be ruled out by the Director as the source of historical DDT-contaminated sediment within Bartlett Creek, if no contemporaneous sampling of soil, sediment and surface water was carried out?

2. Comparison of On-Site and Off-Site Data

a. Is the data upon which the Director relies in relation to off-Site sources technically adequate, and comparable to the data upon which the Director relies on to conclude that the DDT source is on-Site? For example, in relation to aspects including:

i. Timing, location and method of both sampling and analysis, including quality assurance and quality control;

ii. Number of samples per unit of area (soil, sediment, surface water);

iii. Depth and number of samples required per sampling location;

iv. The standards against which samples are measured?

b. Is it technically appropriate to compare the results of composite sampling done on adjacent lands, to a discrete sample taken on-Site?

c. Is it technically appropriate to compare the results of on-Site and off-Site sediment or surface water samples taken from Bartlett Creek, during different months and/or years?

d. Can any conclusion be reached about whether the source of DDT in sediment historically sampled in in Bartlett Creek originated on-Site or off-Site or both, without technically comparable and equivalent data for both on-Site and off-Site areas of concern?

e. Did the Director undertake adequate work to characterize the manner in which sediment moves within Bartlett Creek, prior to reaching conclusions about whether contaminated sediment collected on-Site originated on-Site or off-Site or both?

3. Scope of Delineation Ordered

What is the scope of delineation work that may be required in the Order? Does the evidence relied upon by the Director support each of the required items of work?

a. Can the Order require installation of groundwater well(s), and sampling of groundwater, in relation to a contaminant that is hydrophobic?

i. Does the Director have any evidence to demonstrate that DDT migrates in groundwater, at a scale sufficient to pose any risk to Bartlett Creek?

b. Can an Order based on alleged impacts to Bartlett Creek require delineation of areas of the Site:

i. from which there is contaminant transport pathway through which DDT could reach Bartlett Creek; and/or

ii. if there is sampling data demonstrating that levels of DDT reaching the creek from those areas are low (ie. orders of magnitude below the historical sampling of concern to the Director in Bartlett Creek)?

c. The Order requires Off-Site work by the Orderees alone, on other properties where DDT was historically used by persons other than the Orderees.

i. Does the Director have sufficient evidence to prove that:

1. all off-Site drums or containers at issue in the Order originate on the Site, rather than on the agricultural properties on which they were found?

2. All off-Site soils or surface water containing DDT were not contaminated by DDT applied by the owners or occupants of those off-site properties?

ii. Does the Director have sufficient evidence to order the Orderees to carry out off-Site work related to drums, containers or DDT, rather than the owners or occupants of those off-Site properties where DDT was historically applied?

d. Is the work ordered by the Director excessive or unreasonable, in light of:

i. The evidence relied upon;

ii. The work required (or not required) on directly adjacent lands where the presence of DDT contamination in soils has been confirmed by the Director?

e. The level of DDT in sediment, in one sample taken in May 2019 within Bartlett Creek, was an outlier in relation to all other data collected, has not been replicated, and was orders of magnitude higher than both subsequent and current levels of DDT in sediment in Bartlett Creek.

i. Are these historical samples from May 2019 sufficient to ground the work Ordered?

ii. Are current levels of DDT in sediment within Bartlett Creek sufficient to ground the work Ordered?

4. Regulatory Standards for DDT

a. What is the average burden of DDT in soil, today, at farms and orchards in Ontario where DDT was historically applied?

i. What level of sediment does this soil-burden generate in surface water run-off?

b. What level of DDT is acceptable in surface water run-off, and sediment, from farms, orchards or Crown lands where DDT was historically applied?

i. What are the levels of DDT in soil, sediment and groundwater that are sufficient to trigger MECP’s administrative intervention, based on ecological concern, on lands where DDT was historically applied?

c. The Order requires treatment of surface water run-off to meet criteria of 3 ng/L.

i. Is any other farm or orchard in Ontario being asked to meet these standards?

ii. Is Ontario applying these standards to Crown lands where DDT was applied?

iii. What level of DDT in sediment was used by the Director, and what level should be used by the OLT, as the threshold above which delineation and remediation could be required?

d. Is the Director acting ultra vires when requiring criteria from O. Reg. 153/04 to be applied to work ordered at the Site, which is not required to obtain an RSC?

e. Is the level of DDT removal being required of a single family and agricultural business reasonable, given the lack of similar standards imposed on other agricultural or Crown lands where DDT was applied? Is it both technically and financially feasible? Does it comply with applicable MECP policy on enforcement and fairness?

5. Scope of Remediation Ordered

What is the scope of remedial work that may be required in the Order, given the dispute regarding the source of historical DDT impact to Bartlett Creek? Does the evidence relied upon by the Director support each of the required items of work?

6. Alleged Breach of Procedural Fairness / Natural Justice

a. With reference to the Issues set out above, did the Director act unreasonably, commit an abuse of process, a breach of procedural fairness or natural justice, or demonstrate unacceptable bias by doing any of the following:

i. Requiring implementation of a delineation plan through the issuance of a new order, while the pending appeal regarding the delineation plan had yet to be adjudicated by the OLT;

ii. Requiring remedial work to be undertaken, through the issuance of a new order, while the pending appeal regarding the source of the DDT impacts had yet to be adjudicated by the OLT;

iii. Failing to investigate, and/or require adequate delineation of, sources of DDT- contaminated sediment directly adjacent to and upstream of the Site;

iv. Failing to apply the same technical methods, standards and approaches to the Site and to adjacent and upstream lands prior to reaching conclusions about the source of the DDT in sediment within Bartlett Creek?

v. Failing to apply the same standards for DDT criteria to be met in surface water run-off and sediment to the Orderees and to other farm and orchard lands in Ontario;

vi. Requiring the Orderees to comply with criteria for DDT in surface water run-off and sediment that are not applied to Crown lands?

b. Has the Director failed to abide by the terms of a prior settlement with the Orderees, in relation to “victimized current owners and occupants and those in charge, management or control”, in relation to the recontamination of Bartlett Creek by an upstream source?

c. The Order requires the Orderees to provide advance notice of on-Site work, so that the Director may obtain duplicate samples, but refuses a request by the Orderees for a reciprocal right to notice in order to take duplicate samples. Is this refusal a breach of the Orderees’ right to procedural fairness, natural justice, or reasonableness?

7. Other

a. Does the Director have the jurisdiction to prohibit the Orderees from retaining a Qualified Person (“QP”) on the basis that the QP had prior involvement in preparing and/or submitting a stormwater management plan for the Site? If so, what is the statutory basis for that authority?

Director’s Issues

Director’s Order 5841-BCVQ4K-1

1. Is the appeal of Director’s Order 5841-BCVQ4K-1 moot?

2. Is there sufficient evidence of discharges of DDT and/or its metabolites from the orderees’ property to give the Director jurisdiction to issue an order requiring the orderees to retain a qualified consultant to prepare a plan to delineate the potential sources of DDT and/or its metabolites on the property so that this information can be used to inform appropriate measures needed to prevent further contamination of Bartlett Creek DDT and/or its metabolites?

Director’s Order 1-41636588

1. Is there sufficient evidence of discharges of DDT and/or its metabolites from the orderees’ property to give the Director jurisdiction to issue an order requiring the orderees to do the following?

a. Work Items Nos. 9-13: retain a qualified consultant to implement a delineation plan to delineate the potential sources of DDT and/or its metabolites on the property and to prepare a written report of the results of the delineation plan;

b. Work Items Nos. 14: ensure that the qualified consultant prepares, in light of the results of the delineation work, an updated Stormwater Management Plan for the Site that will ensure effective source control measures to mitigate discharges of DDT and its metabolites to Bartlett Creek;

c. Work Item No. 15: ensure that the qualified consultant prepares and submits an application to amend Environmental Compliance Approval No. 1946-AAVL9N in light of the updated Stormwater Management Plan required by Work Item No. 14;

d. Work Items Nos. 3-5: as an interim measure, use a mobile treatment works to ensure that discharges to Bartlett Creek from the oil-grit separator do not exceed criteria of 3 ng/l for DDT, DDD and DDE;

e. Work Item No. 6: install additional erosion control measures to reduce concentrations of DDT and its metabolites leaving discharging to Bartlett Creek;

f. Work Item No. 7.1: as an interim measure, carry out monthly inspections as specified in Work Item No. 7.1;

g. Work Items Nos. 7.2-7.4: sample and repair an eroded area on the west bank of Bartlett Creek; and

h. Work Item No. 8: implement an enhanced stormwater monitoring, recording and reporting program during the period July 5, 2021 to September 17, 2021.

2. Are each of the elements of the delineation work required by Work Item No. 9 reasonably required to ensure that the sources of DDT and its metabolites are delineated adequately to inform appropriate measures needed to prevent further contamination of Bartlett Creek with DDT and/or its metabolites?

3. If any aspects of the delineation plan are not reasonably required, what if any alternatives to those aspects should be required instead?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Director;

2. Appellants, David Bartlett, James Bartlett and N.M. Bartlett Inc.;

3. Reply by Director, if any.

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.