Daniel & Laura Binnie v. City of Kawartha Lakes, 2022 CanLII 58206

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 29, 2022

CASE NO(S).:

OLT-22-002153 (Formerly PL170374)

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

Applicant and Appellant:

Daniel & Laura Binnie

Subject:

Application amend Zoning By-law No. 2005-133 - Refusal of Application by City of Kawartha Lakes

Existing Zoning:

Oak Ridges Moraine Core Area (ORMCA) Zone

Proposed Zoning:

Oak Ridges Moraine Core Area Exception** (ORMCA-**) Zone

Purpose:

To permit a single detached dwelling

Property Address/Description:

Vacant Land on Gray Road

Municipality:

City of Kawartha Lakes

Municipality File No.:

D06-17-003

OLT Case No.:

OLT-22-002153

Legacy Case No.:

PL170374

OLT Lead Case No.:

OLT-22-002153

Legacy Lead Case No.:

PL170374

OLT Case Name:

Binnie v. Kawartha Lakes (City)

Heard:

March 2, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Daniel & Laura Binnie (“Applicant”)

Kyle Gossen

City of Kawartha Lakes (“City”)

Robyn Carlson (Ian Walker)

DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second case management conference (“CMC”) in this matter. The matter before the Tribunal has been brought pursuant to s. 34(11) of the Planning Act (“Act”) as a result of the refusal by the City to pass Zoning By-law Amendment (“ZBA”) requested by the Applicants.

2The Applicants own the vacant land on Gray Road (the “Property”) in the City of Kawartha Lakes (the “City”) and want to build a house on the Property. The Property is partially within the Oak Ridges Moraine and is subject to the Policies in the Oak Ridges Moraine Conservation Plan (“ORMCP”). The remainder of the Property is zoned A1 (Rural). According to the City, the Property does not front upon an open road allowance. The Appellants disputes this assertion by the City.

UPDATES

3The Applicants and the City informed the Tribunal that they have continued discussions in resolving issues or reach a settlement. However, these have not produced a settlement.

4The Applicant informed that there are studies required concerning issues like flood plain analysis, historical matters regarding the coming into force of the ORMCP, road allowances and their maintenance, capital works, as well as review of the timelines if and when any changes occurred in such arrangements. The City concurred with Appellant’s overview update.

5The parties also discussed the timelines needed to complete some of the activities. The parties informed the Tribunal that it can take 6-12 months for carrying out a flood plain assessment study. Additionally, the Kawartha Region Conservation Authority can take about three months for review of such submissions.

6The parties reviewed a draft Procedural Order (“DPO”) before the Tribunal. It was agreed that the issues are well documented and no future changes are anticipated once the final DPO is submitted to the Tribunal for its final review and issuance. The parties agreed to submit the same to the Tribunal and this has been received by the Tribunal around March 16, 2022.

SETTING OF A HEARING

7The parties reviewed the evidentiary scope and the possible number and specialities of witnesses that may be called to provide evidence. The parties requested six days as an appropriate duration for a hearing on the merits. The Tribunal having received the request and the supporting submissions allowed the setting of such a hearing to be held using video and starting at 10 a.m. on Tuesday, October 10, 2023 and continuing to Wednesday, October 18, 2023. There will be no sitting on Monday, October 16, 2023.

8The hearing will be governed by the PO issued and attached to this decision as Attachment 1.

9Parties 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/979388733

Access code: 979-388-733

10Parties 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

11Persons 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: +1 (647) 497-9373. The access code is 979-388-733.

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 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.

13There will be no further notice and this member is not seized to the matter.

14The directions in this decision are so ordered.

“Jatinder Bhullar”

JATINDER BHULLAR

MEMBER

Ontario Land Tribunal

Website: 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

CASE NO(S).:

OLT-22-002153

(Formerly PL170374)

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

Applicant and Appellant:

Daniel & Laura Binnie

Subject:

Application amend Zoning By-law No. 2005-133 - Refusal of Application by City of Kawartha Lakes

Existing Zoning:

Oak Ridges Moraine Core Area (ORMCA) Zone

Proposed Zoning:

Oak Ridges Moraine Core Area Exception** (ORMCA-**) Zone

Purpose:

To permit a single detached dwelling

Property Address/Description:

Vacant Land on Gray Road

Municipality:

City of Kawartha Lakes

Municipality File No.:

D06-17-003

OLT Case No.:

OLT-22-002153

Legacy Case No.:

PL170374

OLT Lead Case No.:

OLT-22-002153

Legacy Lead Case No.:

PL170374

OLT Case Name:

Binnie v. Kawartha Lakes (City)

PROCEDURAL ORDER

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 October 10, 2023 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 length of the hearing will be about 6 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. The procedural order deadlines are generally found in Attachment 1.

4. The parties and participants identified at the case management conference are set out in Attachment 2.

5. The issues are set out in the Issues List attached as Attachment 3. Aside from the potential for the removal of issues as they may be resolved, there will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

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. If the hearing is to proceed electronically, any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website (https://olt.gov.on.ca/appeals-process/video-hearing/).

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 June 5, 2023 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(s) shall meet at least once prior to June 26, 2023 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting, and in agreement if reached, the witnesses must prepare an Agreed Statement and identify the remaining issues to be addressed at the hearing, and provide this statement to all of the parties on or before September 25, 2023.

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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which do not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same as the delivery of expert witness statements, as in paragraph 13.

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 July 31, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties in accordance with paragraph 22 below.

14. On or before July 31, 2023, a participant shall provide copies of their written participant statement to the parties and the OLT case co-ordinator in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before September 1, 2023, the parties may provide to all other parties a written response to any written evidence received and in accordance with paragraph 22 below.

16. On or before September 11, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. The Tribunal and all parties shall be notified if a model will be used, and all parties must have reasonable opportunity to view it before the scheduled commencement of the hearing.

17. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving party provide copies of the motion to all other parties at least fifteen (15) days before the Tribunal hears the motion.

18. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the other parties and the Tribunal at least seven (7) days before the hearing that the written evidence is not part of their record.

19. On or before September 18, 2023, the parties shall prepare and file with the Tribunal a Hearing Plan that identifies the following, at a minimum: the identified parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is expected to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for the Examination in Chief, Cross Examination and any re-examination (if any) (the “Hearing Plan”). The Hearing Plan should be used to guide the Hearing Event, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Hearing Plan throughout the Hearing Event.

20. The parties shall cooperate and share the costs to prepare a joint document book which shall be shared with the OLT case co-ordinator at least ten (10) days before the hearing date. One (1) hard copy shall be filed with the Tribunal as soon as practicable in advance of the Hearing. All parties must be served with the joint document book in paper or an accessible electronic format in accordance with paragraph 22.

21. 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.

22. All filings of documents with the Tribunal referred to in this Procedural Order shall be electronic and in hard copy. Documents to be served on other parties may be done in electronic form only. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated June 29, 2021, or as may be amended. Paragraph 22 applies regardless if the hearing event is in-person or electronic.

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.

24. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is not seized.

So orders the Tribunal.

Attachment 1

Summary of Dates

DATE

EVENT

June 5, 2023

Exchange of witness lists (names, disciplines and order to be called)

June 26, 2023

Experts meeting prior to this date

July 31, 2023

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

September 1, 2023

Exchange of Reply Witness Statements

September 11, 2023

Exchange of visual evidence

September 18, 2023

Final Hearing Plan filed with the Tribunal

September 25, 2023

Agreed Statement of Expert Witnesses

September 29, 2023

Finalize Joint Document Book

October 10, 2023

Hearing commences

Attachment 2

List of Parties

1. Daniel and Laura Binnie

Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, Ontario M5V 3C1 Kyle Gossen kyleg@davieshowe.com 416-263-4519

2. City of Kawartha Lakes

City of Kawartha Lakes P.O. Box 9000 26 Francis Street Lindsay, Ontario K9V 4N1 Robyn Carlson rcarlson@kawarthalakes.ca 705-340-2273

Attachment 3

Issues List

1. Does the application conform to section 7 of the Oak Ridges Moraine Conservation Plan?
   1. Would a single dwelling have been permitted on the property as of November 15, 2001, by the “A1 special requirements” of the A1 Zone in By-law 87-06?

i. Did the property have sufficient frontage on an improved public street, maintained year round, and assumed by the City of Kawartha Lakes for maintenance purposes, all as of November 15, 2001?

2. Does the application conform to the Growth Plan for the Greater Golden Horseshoe, 2019, as amended? (No specific policies apply, but on the basis that conformity with the Oak Ridges Moraine Conservation Plan is required to achieve conformity with the Growth Plan for the Greater Golden Horseshoe)
3. Is the application consistent with sections 2.1.4, 2.1.5, 2.1.8 and 3.1.7 of the Provincial Policy Statement, 2020?
4. Does the application conform to section 3.3 of the City of Kawartha Lakes Oak Ridges Moraine Policy Area (Victoria Council Official Plan No. 104)?
   1. Would a single dwelling have been permitted on the property as of November 15, 2001, by the “A1 special requirements” of the A1 Zone in By-law 87-06?

i. Did the property have sufficient frontage on an improved public street, maintained year round, and assumed by the City of Kawartha Lakes for maintenance purposes, all as of November 15, 2001?

1. Has the applicant demonstrated, to the extent possible, that the use, erection and location will not adversely affect the ecological integrity of the property?

Attachment 4

Order of Evidence

1. Daniel and Laura Binnie
2. City of Kawartha Lakes
3. Reply by Daniel and Laura Binnie

Attachment 5

Purpose of the Procedural Order and Meaning of Terms

Meaning of terms used in the Procedural Order:

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

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

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

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

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

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

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

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

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

Additional Information

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

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

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