Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 08, 2022

CASE NO(S).: OLT-21-001846

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant: Jones Baseline Corp.

Appellant: Jones Baseline Community Inc.

Subject: By-law No. 62/2021

Municipality: Township of Guelph Eramosa

OLT Case No.: OLT-21-001846

OLT Lead Case No.: OLT-21-001846

OLT Case Name: Jones Baseline Community Inc. v. Guelph Eramosa (Township)

Heard: June 7, 2022 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel
Jones Baseline Corp. (“Applicant”)	Alex Ciccone and Peter Pickfield
Jones Baseline Community Inc. (“Appellant”)	David Donnelly and Martyn Siek (student-at-law)
Township of Guelph Eramosa (“Township”)	Scott Galajda

MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN AND K.R. ANDREWS ON JUNE 7, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting an appeal under s. 34(19) of the Planning Act (“Act”) with respect to the Appellant appealing the decision of the Township to approve a Zoning By-law Amendment (“ZBA”) in relation to the property located at 5063 Jones Baseline (the “Subject Property”).

2The proposed ZBA amends the Township’s Zoning By-Law No. 40/2016 by rezoning the Subject Property from Agricultural (A) to Rural Industrial Site Specific (M1.21.203 (H)). The purpose of the proposed ZBA is to permit a dry industrial facility on the Subject Property. In addition, a Holding provision has been proposed to address site plan approval.

Service of Notice of CMC

3There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal is in receipt of the Affidavit of Service, which was marked as Exhibit 1.

PARTY/PARTICIPANT REQUESTS

4The Tribunal received no written or oral requests for party/participant status.

MEDIATION AND SETTLEMENT

5The Tribunal raised the issue of opportunities for settlement, including the use of Tribunal-assisted mediation. The parties indicated that they may be interested in Tribunal-assisted mediation but indicated that it was premature at this time.

PROCEDURAL ORDER/ISSUES LIST

6The Tribunal reviewed the draft Procedural Order (“PO”) and with the parties. The parties indicated that the form of PO required further revision and undertook to provide a finalized copy within 10 days of the Hearing.

7The parties agreed upon the order of evidence beginning with the Township first presenting a factual overview, the Applicant presenting its case followed by the Appellant, ending with the Applicant having an opportunity for reply.

8The Tribunal is satisfied with the PO, as revised, and it shall govern these proceedings leading up to and including the scheduled hearing.

HEARING

9Upon request of the parties, the Tribunal set a 12-day hearing commencing on Monday, February 13, 2023 at 10 a.m. by VH. No further notice is required for the hearing.

10Parties 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://global.gotomeeting.com/join/687587165

Access Code: 687-587-165

11Parties 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.

12Persons 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.

13Individuals 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 VH 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.

ORDER

14The Tribunal Orders that:

1. The Procedural Order appended as Schedule 1 is approved;

2. The hearing of the merits be scheduled for 12 days beginning on Monday, February 13, 2023;

3. There will be no further notice; and

4. The Panel Members are not seized.

“S. Mann”

S. MANN MEMBER

“K.R. Andrews”

K.R. ANDREWS MEMBER

Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

OLT-21-001846 – Schedule 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

Applicant: Jones Baseline Corp.

Appellant: Jones Baseline Community Inc.

Subject: By-law No. 62/2021

Municipality: Township of Guelph Eramosa

OLT Case No.: OLT-21-001846

OLT Lead Case No.: OLT-21-001846

OLT Case Name: Jones Baseline Community Inc. v. Guelph Eramosa (Township)

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 Monday, February 13, 2023 at 10 a.m. at the following link:

GoTo Meeting: https://global.gotomeeting.com/join/687587165

Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373

Access Code: 687-587-165

3. The parties’ initial estimation for the length of the hearing is 12 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 Attachment 3 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 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. 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 October 24, 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 November 21, 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 December 5, 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 January 3, 2023, 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. On or before January 3, 2023, a participant shall provide copies of their written participant statement to the other parties 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 January 3, 2023, 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 (21) days after the evidence is received and in accordance with paragraph 22 below.

17. On or before January 23, 2023, 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

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 3, 2023.

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 February 3, 2023 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. 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.

This Members are not seized.

So orders the Tribunal.

Summary of Key Dates

Date	Event
October 24, 2022	Exchange witness list
November 21, 2022	Meeting of like experts
December 5, 2022	Exchange Agreed Statement of Facts
January 3, 2023	Exchange of expert witness statements and visual evidence
January 3, 2023	Participant statements due
January 23, 2023	Exchange of reply expert witness statements, if any Exchange of visual evidence
February 3, 2023	File document book, hearing plan, and witness statement brief
February 6, 2023	Notify the Tribunal if a witness is not to provide oral evidence
February 13, 2023	Hearing start date

Attachment 1: Parties

Party	Representation
Township of Guelph/Eramosa	Scott Galajda Galajda Law T: 226-962-9305 sgalajda@galajdalaw.com
Jones Baseline Community Inc	David Donnelly Donnelly Law 276 Carlaw Avenue, Unit 203 Toronto, ON M4M 3L1 T: 416.572.0464 david@donnellylaw.ca
Jones Baseline Corp	Garrod Pickfield LLP 9 Norwich Street West Guelph, ON N1H 2G8 T: 519.778.4247 Peter Pickfield pickfield@garrrodpickfield.ca Alex Ciccone aciccone@garrodpickfield.ca

Attachment 2: Issues List

The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is phrased, is appropriate or is relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination of the hearing will be a matter of evidence and argument at the hearing.

1. Does the development proposal consisting of Official Plan and Zoning By-law Amendments for the subject lands (collectively the “development proposal”) have appropriate regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act, including the matters set out in sections 2 (f), 2(h), 2(m), 2(p) and 2(r) therein?

2. Is the development proposal consistent with the relevant policies of the Provincial Policy Statement (2020) (the “PPS”), in particular the following policy sections:

• Part 1;
• Policy Section 1.1.1 (Managing and Directing Land Use);
• Policy Sections 1.1.4.1 and 1.1.4.2 (Rural Areas);
• Policy Sections 1.1.5.2¹, 1.1.5.3, 1.1.5.4 and 1.1.5.5 (Rural Lands);
• Policy Section 1.2.6 (Land Use Compatibility);
• Policy Section 1.3.1 (Employment);
• Policy Section 1.6.6.4 and 1.6.6.7 .3 (Sewage, Water and Stormwater); and
• Policy Section 1.6.7 (Transportation)?

3. Is the development proposal in conformity with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) (the “Growth Plan”), in particular the following policy sections:

• Policy Section 1.2.1 (Guiding Principles);
• Policy Sections 2.2.1(2) (Managing Growth);
• Policy Section 2.2.5 (Employment);
• Policy Section 2.2.9(3) (Rural Areas); and
• Policy Section 3.2.7(2) (Stormwater Management)?

4. Does the development proposal conform with the County of Wellington Official Plan (the “Official Plan”), in particular the following policy sections:

• Policy Section 2.2 (Objectives);
• Policy Sections 4.2.3 and 4.2.5 (Economic Development);
• Policy Sections 4.9.3, 4.9.4 and 4.9.5.6 (Water Resources);
• Policy Sections 6.2, 6.3, 6.5.3 and 6.5.4 (Rural System); and
• Policy Sections 6.8.1, 6.8.2 and 6.8.3 (Rural Employment Areas)
• 11.2.6 Rural System Servicing
• 11.3 Storm Water Management
• 12.5.4 Local Roadway?

5. Is the proposed development compatible with the established hamlet and rural residence character of the surrounding lands, including noise impacts?

6. Are the mitigation measures proposed to address the adverse impacts and noise impacts on surrounding lands arising from the industrial operations of the proposed development appropriate?

7. Does the proposed represent an overdevelopment of the site?

8. Is the proposed Zoning By-law Amendment appropriate with respect to whether it sufficiently regulates matters of built form including, height, massing, scale, setbacks, lot coverage, landscaping and parking having regard for the subject lands, adjacent property and the character of the surrounding lands?

9. What Industrial Facility Classification does the proposed development fall under in the Ministry of Environment D Series Guidelines, and does the proposed development satisfy the requirements for that Classification?

10. Have concerns regarding vehicle and pedestrian safety been considered in this application?

11. Does the development proposal represent good land use planning and is it in the public interest?

Attachment 3: 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.

Attachment 4: Order of Evidence

Order of Evidence

1. Township of Guelph/Eramosa– Overview only

2. Jones Baseline Corp.

3. Township of Guelph/Eramosa

4. Jones Baseline Community Inc.

5. Reply – if any – Jones Baseline Corp.

Footnotes

1. 1This issue to be read in the context of policy 2.2.9(5) of the Growth Plan.