Nielsen v. Ontario (Niagara Escarpment Commission), 2022 CanLII 37707

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 06, 2022

CASE NO(S).: OLT-21-001740

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant: Johnnie Nielsen (File No. 003216)

Applicant: Don MacDow

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to undertake interior renovations to an existing accessory building to convert it into a washroom facility for an on-farm diversified use (event venue) on an existing lot

Reference No.: P/C/2020-2021/415

Property Address/Description: 16847 Heart Lake Road

Municipality: Town of Caledon

Upper Tier: Region of Peel

OLT Case No.: OLT-21-001740

OLT Case Name: Nielsen v. Ontario (Niagara Escarpment Commission)

Heard: March 8, 2022 by Video Hearing

APPEARANCES:

Parties Counsel/Representative*

Johnnie Nielsen Jora Kuner*

Niagara Escarpment Commission Demetrius Kappos,* Rachel McPherson-Duncan* and Madhavi Gupta* (articling student)

Don MacDow Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY J. CAMPBELL AND HUGH S. WILKINS ON MARCH 8, 2022 AND ORDER OF THE TRIBUNAL

1This Decision arises from the second Case Management Conference ("CMC") brought before the Ontario Land Tribunal (in its role as the Niagara Escarpment Hearing Office (“Hearing Office”)) regarding the appeal brought by Johnnie Nielsen ("Appellant") regarding the approval by the Niagara Escarpment Commission (“NEC”) of a development permit issued to Don MacDow (“MacDow”) to undertake interior renovations to an existing accessory building to convert it into a washroom facility for an on-farm diversified use (event venue) on an existing lot.

2At the CMC, the Parties discussed the identification of the issues to be adjudicated at a hearing. The NEC identified two grounds for appeal, as follows (“NEC’s Issues List”):

1. Is the applied-for proposed development in conformity with the purpose, objectives and policies of the Niagara Escarpment Plan (2017), in particular the following Development Criteria: General Development Criteria (2.2), Natural Heritage (2.7), Agriculture (2.8), Scenic Resources (2.13)?

2. Is the applied-for proposed development consistent with the Provincial Policy Statement (2020), in particular sections 2.1 and 1.1.4.1(g)?

3Neither the Appellant nor MacDow raised any objection to the proposed issues in the NEC Issues List and the Hearing Office found that they are appropriate.

4In addition, the Appellant identified five issues, as follows (collectively, “Appellant’s Issues”):

1. Overall, the NEC’s Staff Report, dated April 20, 2021, fails to elaborate on the amount of water and electricity required to furnish the washrooms in the accessory building. Furthermore, the Staff Report fails to consider the impact to the local groundwater, and sewage capacity of the overall facility, given that additional washrooms will be installed. It also fails to mention how electricity and water will be sourced by the building, and how this may impact local wildlife or the local community. In effect, the lack of explanation about these issues simply ‘rubber-stamps’ the accessory building as complying with the Act and previous permits, without properly specifying how.

2. Page 3 of the Staff Report advises that, “It has been previously determined that the total area devoted to the on-farm diversified use cannot exceed 4,869 square metres in order to not conflict with Part 2.8.7, which states that the use is limited to up to 2 per cent of a farm lot. Presently, the total area of the on-farm diversified use is 3,626 square metres and through this proposal will expand to 3,665 metres.”

a) When was the barn last measured to confirm this square metreage? The previous development permits allow for renovation of the “upper floor” of the barn. However, the Appellant has evidence showing that the basement of the barn has also been renovated, and has been used for events, in contravention of the previous permits. Setting aside the enforcement issues associated with this allegation, the basement portion of the barn was never contemplated in the previous permits, nor was it an approved space under those permits. If it’s still the case that the basement is not an approved or permitted space, then the square metreage may no longer be in compliance with Part 2.8.7. However, the Staff Report fails to mention the basement, and fails to provide updated numbers taking the basement into consideration.

3. Page 4 of the Staff Report advises that, “As a result of the Covid-19 pandemic, NEC staff were not able to complete a site visit; however, since the proposal involves only the interior work to an existing structure, and that other NEC staff have visited the property on numerous occasions, a site visit was deemed unnecessary.”

a) The NEC’s position in this respect is unreasonable. NEC staff should have attended at the property and conducted a proper review of the property in advance of approving this application, notwithstanding the COVID-19 pandemic. A site visit could easily have been conducted in compliance with provincial health mandates, and safely for all parties. A site visit likely would’ve resulted in more information being presented to explain the issues in this appeal.

4. Page 6 of the Staff Report advises that, “In the case of a development that has already commenced, this is the first time that the applicant has undertaken development on the property without approval under the Niagara Escarpment Planning and Development Act, and the matter is not the subject of a prosecution.”

a) This is completely false. If development has commenced before this permit has been approved, that would not be the first time it’s happened. In fact, the Applicants admitted to being non-compliant on more than ten occasions at a Hearing before the NEHO in 2020.

b) Also, why was this comment added to the Staff Report? Has development already occurred at the property, and the applicants just applied for the permit afterwards? That should be grounds for the removal of the work commenced pre-Order, and they should have to restart if the Order is eventually approved.

c) In any event, non-compliance is clearly an issue to which the NEC turned its mind, and was part of the body of information that the NEC considered, before making its decision in the Staff Report. As such, enforcement is a valid issue to pursue in this case, including, but not limited to, the fact that the basement of the barn is being used for events without a permit, notwithstanding the reservations of the Applicants and the NEC to discuss enforcement issues again.

5. Finally, it is our understanding that the Applicants do not even have an occupancy permit for the barn itself, not to mention the bathrooms that are proposed to be built/renovated in the accessory building. We have requested disclosure of this permit for some time on several occasions, and have received no response from the NEC or the Town of Caledon to confirm that it even exists. The Applicants shouldn’t be permitted to renovate their bathrooms, with a view to hosting events this year, if they don’t even have an occupancy permit for the barn, and haven’t had one since 2015.

5The Parties each made submissions regarding the Appellant’s Issues. Following discussion, the Parties agreed that the matters raised by the Appellant’s Issue No. 1 could be adequately addressed by revising the NEC’s Issue No. 1 to include water quality and quantity issues as follows (“Amended NEC Issue No. 1”):

1. Is the applied-for proposed development in conformity with the purpose, objectives and policies of the Niagara Escarpment Plan (2017), in particular the following Development Criteria: General Development Criteria (2.2), Natural Heritage (2.7), Agriculture (2.8), Scenic Resources (2.13), Water Quality and Quantity (2.6.9)?

6Regarding the Appellant’s other proposed issues, the Hearing Office notes that an Issues List is intended to set out the issues to be adjudicated and should be specific enough so that each Party is made aware of all the issues to be addressed and is able to properly prepare for the hearing. The issues should only include questions that need to be adjudicated and that are within the authority of the Hearing Office to address. Questions relating to background facts or tangential evidence which are not derived from, or on their face in breach of, the applicable legislation or Provincial policies or plans in respect of which the Hearing Office has authority to adjudicate (“Applicable Legislation”) are not issues. Issues must be genuine, tenable and worthy of adjudication.

7With regard to the Appellant’s Issue No. 2, it was noted that the total area devoted to the on-farm diversified use cannot exceed 4,869 square metres in the aggregate (“Maximum Threshold”) and, as a result of the proposed development, the total area will aggregate 3,665 metres. The Appellant’s Issue No. 2 questions whether the basement of the premises has been included in this calculation. The Applicant confirmed that the size of the basement is approximately 167.22 square metres. Accordingly, even if the Appellant is successful in his argument that the current calculation should be revised to include the basement area, the proposed development will still not come close to exceeding the Maximum Threshold. Accordingly, the Hearing Office determined that the Appellant’s Issue No. 2 does not present a genuine or tenable issue that is worthy of adjudication.

8The Hearing Office then turned to the Appellant’s Issue Nos. 3, 4 and 5. It found that while these proposed issues constitute general concerns in respect of which the Hearing Office may receive background evidence, the issues to be adjudicated by the Hearing Office must remain focused on the specifics of the development permit in question and the extent to which it complies with the Applicable Legislation. Concerns regarding the need for a site visit, the Applicant’s past conduct, and the need for an occupancy permit are not substantive issues over which the Hearing Office is to adjudicate. The appeal process constitutes a new hearing in which the Hearing Office will hear fresh evidence and will stand in the shoes of the NEC when making its decision. The need for a site visit is a procedural issue that can be addressed at the hearing. Past conduct and the need for an occupancy permit are evidence that can be produced to provide context or address credibility, but these are not issues for adjudication under the Niagara Escarpment Planning and Development Act or the other Applicable Legislation. Based on this finding, the Hearing Office struck the Appellant’s Issue Nos. 3, 4 and 5.

9The Parties also discussed opportunities for settlement discussions. The Parties indicated that such discussions may be possible, which the Hearing Office encouraged.

10The Hearing Office directed that the hearing of the appeal will commence on Wednesday, June 15, 2022.

11On April 11, 2022, the Parties filed a revised draft Issues List and Procedural Order, which the Hearing Office has reviewed and approves.

ORDER

12The Hearing Office approves the Procedural Order and Issues List attached as Attachment 1 to this Order and Decision.

13The Hearing Office orders that the hearing of the appeal will commence by video hearing on Wednesday, June 15, 2022 commencing at 10 a.m. One (1) day has been set aside for the hearing.

14Parties 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

15Parties are asked to set up the video hearing 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

16Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling: +1 (647) 497-9373 or (Toll Free) 1 (888) 299-1889. The access code is as indicated as above.

17Individuals 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 event at the correct time. Questions prior to the hearing event may be directed to the Hearing Office's Case Coordinator having carriage of this case.

18There will be no further notice.

19These Hearing Officers are not seized.

"J. Campbell"

J. CAMPBELL

HEARING OFFICER

"Hugh S. Wilkins"

HUGH S. WILKINS

HEARING OFFICER

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

Sample Procedural Order for Video Hearings

Purpose of the Procedural Order

Case management conferences are scheduled by the Tribunal to organize the hearing. This sample procedural order is provided to identify who may participate in the hearing, the issues in dispute, and the matters that are required to be carried out before the hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a party or a participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the case management conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

CASE NO(S).: OLT-21-001740

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant: Johnnie Nielsen (File No. 003216)

Applicant: Don MacDow

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to undertake interior renovations to an existing accessory building to convert it into a washroom facility for an on-farm diversified use (event venue) on an existing lot

Reference No.: P/C/2020-2021/415

Property Address/Description: 16847 Heart Lake Road

Municipality: Town of Caledon

Upper Tier: Region of Peel

OLT Case No.: OLT-21-001740

OLT Case Name: Nielsen v. Ontario (Niagara Escarpment Commission)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on June 15, 2022, at 10:00 a.m. by videoconference hearing.

3. The parties’ initial estimation for the length of the hearing is one day. 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 Schedule 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Schedule 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 Schedule 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. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before April 21, 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 of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before April 26, 2022 to May 2, 2022 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before May 6, 2022.

11. 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.

12. 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.

13. On or before May 6, 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 22 below.

14. Omitted.

15. On or before May 26, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before June 3, 2022.

18. 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 June 10, 2022.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before June 8, 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.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. 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.

These Members are not seized.

So orders the Tribunal.

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.

SCHEDULE 1

PARTIES TO THE HEARING

1. Johnnie Nielsen (Appellant)
2. Don MacDow (Applicant)
3. Niagara Escarpment Commission

SCHEDULE 2

ISSUES LIST

1. Is the applied-for proposed development in conformity with the purpose, objectives and policies of the Niagara Escarpment Plan (2017), in particular the following Development Criteria: General Development Criteria (2.2), Water Quality and Quantity (2.6.9), Natural Heritage (2.7), Agriculture (2.8), Scenic Resources (2.13)?

2. Is the applied-for proposed development consistent with the Provincial Policy Statement (2020), in particular sections 2.1 and 1.1.4.1(g)?

SCHEDULE 3

ORDER OF EVIDENCE

1. Johnnie Nielsen (Appellant)
2. Don MacDow (Applicant)
3. Niagara Escarpment Commission