Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 13, 2022

CASE NO(S).: OLT-22-002390 (Formerly PL200170)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Earls Road Developments Limited

Subject: Proposed Plan of Subdivision -Failure of the District Municipality of Muskoka to make a decision

Purpose: To permit the development of a plan of subdivision consisting of 287 single detached residential lots and nine (9) multiple residential blocks, each to contain a maximum number of 72 units, for a total of 935 residential units

Property Address/Description: 174 Earls Road/ Part of Lot 17, Concession 3, being Part 1 on Plan 35R-6151, Geographic Township of Chaffey, Town of Huntsville, District Municipality of Muskoka

Municipality: Town of Huntsville

Municipality File No.: S2019-8

OLT Case No.: OLT-22-002390

Legacy Case No.: PL200170

OLT Lead Case No.: OLT-22-002390

Legacy Lead Case No.: PL200170

OLT Case Name: Earls Road Developments Limited v. Muskoka (District Municipality)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant and Appellant: Earls Road Developments Limited

Subject: Application to amend Zoning By-law No. 2008-66P -Neglect of the Town of Huntsville to make a decision

Existing Zoning: “Rural One”, “Residential Four (R4)” and “Residential Four –Holding (R4-H)”

Proposed Zoning: To be determined

Purpose: To permit the development of a plan of subdivision consisting of 287 single detached residential lots and nine (9) multiple residential blocks, each to contain a maximum number of 72 units, for a total of 935 residential units

Property Address/Description: 174 Earls Road/ Part of Lot 17, Concession 3, being Part 1 on Plan 35R-6151, Geographic Township of Chaffey, Town of Huntsville, District Municipality of Muskoka

Municipality: Town of Huntsville

Municipality File No.: Z/11/2020/THE

OLT Case No.: OLT-22-002391

Legacy Case No.: PL210218

OLT Lead Case No.: OLT-22-002390

Legacy Lead Case No.: PL200170

Heard: July 12, 2022 via Telephone Conference Call (TCC)

APPEARANCES:

Parties

Counsel

Earls Road Development Limited (“Appellant”)

E. Blanchard and L. Robinson

The District of Muskoka and the Town of Huntsville (“Municipalities”)

J. Ewart

MEMORANDUM OF ORAL DECISION DELIVERED BY R. G. M. MAKUCH ON JULY 12, 2022, AND ORDER OF THE TRIBUNAL

1This is the sixth Case Management Conference (“CMC”) respecting these appeals convened to provide some direction to the Parties.

2These appeals had been set down for a three-week hearing commencing on August 8, 2022 but a Procedural Order was never issued by the Tribunal. The Parties nevertheless did agree as to a timeline for the exchange of documents.

3The Tribunal issued a directive on May 18, 2022 that Witness Statements would be served seven days following the issuance of the Tribunal’s decision respecting the Municipalities motion to dismiss the appeals without a hearing. That decision was issued on July 6, 2022 by the Tribunal meaning that the Witness Statements are due on July 13, 2022 in accordance with the Tribunal’s May 18 direction.

4Counsel for the Municipalities argues that his clients need additional time to finalize the statements and that a meeting of experts would be beneficial to achieve that goal.

5Counsel for the Appellant argues that this matter has been outstanding for some time now and that her client is still unaware of what the Municipalities’ concerns are with the applications.

6The Municipalities are directed to provide the Appellant with an outline of their concerns with the applications not later than Friday July 15, 2022.

7The Tribunal directs that the Witness Statements be served/delivered not later than Friday July 22, 2022.

8The hearing will commence on August 8, 2022 in accordance with the Tribunal’s previous directions.

9The proceedings shall be governed by Attachment “1” hereto.

10There will be no further notice.

11This member is not seized.

12This is the Order of the Tribunal.

“R. G. M. Makuch”

R. G. M. MAKUCH

VICE-CHAIR

Ontario Land Tribunal

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

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

ATTACHMENT “1”

ISSUE DATE:

CASE NO(S).: OLT-22-002390 (formerly: PL200170 and PL210218)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Earls Road Developments Limited

Subject: Proposed Plan of Subdivision - Failure of the District Municipality of Muskoka to make a decision

Purpose: To permit the development of a plan of subdivision consisting of 287 single detached residential lots and nine (9) multiple residential blocks, each to contain a maximum number of 72 units, for a total of 935 residential units

Property Address/Description: 174 Earls Road/ Part of Lot 17, Concession 3, being Part 1 on Plan 35R-6151, Geographic Township of Chaffey, Town of Huntsville, District Municipality of Muskoka

Municipality: District of Muskoka

Municipality File No.: S2019-8

OLT Case No.: OLT-22-002390 (formerly, PL200170)

OLT File No.: OLT-22-002390 (formerly, PL200170)

OLT Case Name: Earls Road Developments Limited v. Muskoka (District Municipality)

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

Applicant and Appellant: Earls Road Developments Limited

Subject: Proposed Zoning By-law Amendment - Failure of the Town of Huntsville to make a decision

Purpose: To rezone the lands to permit the development contemplated in the proposed Draft Plan of Subdivision.

Property Address/Description: 174 Earls Road/ Part of Lot 17, Concession 3, being Part 1 on Plan 35R-6151, Geographic Township of Chaffey, Town of Huntsville, District Municipality of Muskoka

Municipality: Town of Huntsville

Municipality File No.: Z/11/2020/HTE

OLT Case No.: OLT-22-002390 (formerly, PL200170)

OLT File No.: OLT-22-002390 (formerly PL210218)

OLT Case Name: Earls Road Developments Limited v. Muskoka (District Municipality)

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 August 8, 2022 at 10:00 am using GoToMeetings at:

https://global.gotomeeting.com/join/895823341

Access code: 895 823 341

3. The parties’ initial estimation for the length of the hearing is fifteen (15) 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. An interim case conference has been scheduled for July 12, 2022. A final case management conference has been scheduled for August 4, 2002, for a status update for the hearing, to scope issues and evidence for the hearing, and to refine and finalize the work plan for the hearing.

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

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 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 (https://olt.gov.on.ca/wp-content/uploads/2021/06/Video-Hearing-Guide-EN.html).

Requirements Before the Hearing

9. 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 any reports or documents to be relied on at the hearing must be provided as in paragraph 21 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.

10. 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 21 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 21 below.

11. By no later than July 15, 2022 at 4:00pm, the Municipalities will deliver to the Applicant/Appellant a summary of any and all of its objections to the Zoning and Subdivision Approval applications that are intended to be raised at the hearing.

12. On or before July 22, 2022, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 21 below.

13. Expert witnesses in the same field shall have a meeting on or before July 22, 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 an Issues List and a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before August 2, 2022.

14. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before July 29, 2022 and in accordance with paragraph 21 below.

15. On or before August 2, 2022 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

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

17. 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.

18. 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.

19. 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 10 days before the hearing that the written evidence is not part of their record.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before August 2, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

21. All filing shall be electronic and single hard copy shall be provided to the Tribunal. 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.

22. 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

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 2

Parties and Participants

Status

Name

Counsel

Appellant

Earls Rd. Developments Ltd.

Borden Ladner Gervais LLP Emma Blanchard 613-369-4755 eblanchard@blg.com Laura Robinson 613-369-4754 lrobinson@blg.com

Party

District of Muskoka

Ewart O'Dwyer John Ewart 705-874-0404 jewart@ewartodwyer.com

Party

Town of Huntsville

Ewart O'Dwyer John Ewart 705-874-0404 jewart@ewartodwyer.com

ATTACHMENT 3

ORDER OF EVIDENCE

1. Earls Rd. Developments Limited

2. Town of Huntsville

3. District of Muskoka

4. Earls Rd. Developments Limited, in Reply