Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 21, 2022
CASE NO(S).: OLT-22-002292
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Dean Artenosi Subject: Consent - refused by Approval Authority Description: Propose to sever the subject lands to create one new rural residential lots as well as a boundary adjustment. Reference Number: 2021-B-07 Property Address: 104 Becketts Sideroad Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002292 OLT Lead Case No: OLT-22-002292 OLT Case Name: Artenosi v. Tay (Township)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Consent - refused by Approval Authority Reference Number: 2021-B-08 Property Address: 1930 Gratrix Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002294 OLT Lead Case No: OLT-22-002292
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Consent - refused by Approval Authority Reference Number: 2021-B-09 Property Address: 1900 Gratrix Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002295 OLT Lead Case No: OLT-22-002292
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Consent - refused by Approval Authority Reference Number: 2021-B-10 Property Address: 1810 Gratrix Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002296 OLT Lead Case No: OLT-22-002292
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Consent - refused by Approval Authority Reference Number: 2021-B-11 Property Address: 1767 Rosemount Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002297 OLT Lead Case No: OLT-22-002292
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Consent - refused by Approval Authority Reference Number: 2021-B-12 Property Address: 1878 Rosemount Road Municipality/UT: Tay/Simcoe OLT Case No: OLT-22-002298 OLT Lead Case No: OLT-22-002292
Heard: June 20, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Dean Artenosi | Ira T. Kagan and Sarah R. Kagan (in absentia) |
| Township of Tay | Sarah Hahn |
| County of Simcoe | Marshall Green |
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE AND S. MANN ON JUNE 20, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On June 20, 2022, the first Case Management Conference (the “CMC”) was heard in relation to appeals brought under s. 53(19) of the Planning Act by Dean Artenosi (the “Applicant/Appellant”) in response to the refusal by the Committee of Adjustment in the Township of Tay (the “Township”) of consent applications in relation to properties in the Township, known municipally as (the “Subject Lands”):
- 104 Becketts Sideroad
- 1930 Gratrix Road
- 1900 Gratrix Road
- 1810 Gratrix Road
- 1767 Rosemount Road
- 1878 Rosemount Road
2The Applicant holds the right to acquire the Subject Lands pursuant to option agreements with current owners. The purpose of the appeals is to facilitate a proposal by the Applicant/Appellant to sever the lands as follows (the “Proposals”):
a. 104 Becketts Sideroad (retained) – 16 acres i. Part 2 – 51R-32041 (severed) – 1 acre ii. Part 3 – 51R-32041 (severed) – 1 acre b. 1930 Gratrix Road (retained) – 19.1 acres i. Part 1 – 51R-31169 (severed) – 1 acre c. 1900 Gratrix Road (retained) – 15.51 acres i. Part 1 – 51R-31170 (severed) – 1 acre d. 1810 Gratrix Road (retained) 134.0 acres i. Part 1 – 51R-31171 (severed) – 1 acre e. 1767 Rosemount Road (retained) – 16.9 acres i. Part 1 – 51R-31168 (severed) – 1 acre f. 1873 Rosemount Road (retained) – 29.7 acres i. Part 1 – 51R-31268 (severed) – 4.8 acres
REQUESTS FOR STATUS
3The Tribunal was tasked with adjudicating a Party Status Request from the County of Simcoe (the “County”). After hearing the submissions of the County, and receiving no objections from the other Parties, the Tribunal concluded that the County has an interest in the matter and will assist it in adjudicating the issues effectively and completely. The Tribunal granted Party Status to the County.
4In response to the Notice, the Tribunal received no other requests for status (Party or Participant). Accordingly, the appeal will proceed with the involvement and participation of the Parties identified above.
MEDIATION AND SETTLEMENT
5The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties advised that they intended to discuss settlement amongst themselves, but they are not in a position, at this stage, to engage in such discussions with the formal assistance of the Tribunal. They further advised that they remain open to the possibility of a settlement at some point in the future and are aware of the availability of mediation.
6The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.
PROCEDURAL ORDER AND ISSUES LIST
7The Parties produced an agreed-upon draft Procedural Order (the “PO”) and Issues List (the “IL”) prior to the CMC, which was reviewed and accepted by the Tribunal at the CMC.
8The Applicant/Appellant undertook to revise and re-submit for the Tribunal’s approval, by Monday, June 27, 2022, a finalized PO and IL in accordance with the Tribunal’s directions.
HEARING
9Given the number of parties and issues, the Tribunal agreed that a three (3) day hearing was sufficient. Accordingly, a video hearing will commence at 10 a.m. on Wednesday, December 7, 2022 until Friday, December 9, 2022 for three (3) days.
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:
GoTo Meeting: https://global.gotomeeting.com/join/709076365
Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889
Access code: 709-076-365
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 at: 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, provided 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 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.
OTHER MATTERS
14The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.
ORDER
15The Tribunal Orders that:
a. The County of Simcoe is a Party in this proceeding.
b. The hearing in this matter will be held by video hearing starting on December 7, 2022 commencing at 10 a.m. and three (3) days have been set aside.
c. The Procedural Order appended as Schedule “1” shall govern the proceedings.
d. There will be no further notice and the Panel Members are not seized.
“Bita M. Rajaee”
BITA M. RAJAEE MEMBER
“S. Mann”
S. MANN 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.
SCHEDULE “1”
PROCEDURAL ORDER
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.
Further refinement of this Procedural Order is anticipated as the positions of the parties are refined. Additional appeals are also anticipated to be joined to the matters covered by this Procedural Order.
Organization of the Hearing
The hearing will begin on Wednesday December 7, 2022 at 10:00 a.m., AT: https://global.gotomeeting.com/join/709076365 Access Code: 709-076-365
The length of the hearing will be three (3) days.
The parties and participants to the hearing are set out in Attachment 1.
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this Issues List unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
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.
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. 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.
Requirements Before the Hearing
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, their professional qualifications, their areas of expertise, completed Acknowledgements of Expert’s Duty, the precise area and discipline in which they will seek to be qualified to provide expert testimony, and the intended order in which the witnesses will be called during the hearing. This information must be delivered on or before Friday, September 9, 2022. Any challenge by a Party to the qualifications or expertise of a witness must be filed with the Tribunal with supporting reasons within 10 days.
Expert witnesses in the same field shall have a meeting on or before Friday, October 7, 2022 to try to resolve or reduce the issues for the hearing. The experts must prepare a List of Agreed Facts and Opinions and provide this list to all of the parties.
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 by Friday, October 28, 2022. 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 7.4 of the Tribunal’s Rules of Practice and Procedure.
On or before Friday, October 28, 2022, a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral evidence or make oral submissions at the hearing, unless permitted by the Tribunal.
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 by Friday, October 28, 2022.
On or before Friday, November 18, 2022, the parties shall provide any Reply Witness Statements. By this same date the parties shall provide the Tribunal with an electronic copy of all of their Expert Witness Statements and Reply Witness Statements.
On or before Monday, November 28, 2022, the parties shall provide copies of their Visual Evidence to the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
On or before Monday, November 28, 2022, the parties shall provide the Tribunal with an electronic copy of the Joint Document Book, their Visual Evidence Book and a Joint Hearing Plan. The Joint Hearing Plan shall identify, at 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.
A person wishing to change written evidence, including Expert Witness Statements and 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.
A party who provides an Expert Witness Statement 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 the record.
Documents may be delivered by personal delivery, facsimile or registered or certified mail or email, or otherwise as the Tribunal may direct. The delivery of documents by fax and email shall be governed by the Tribunal’s Rules (Rule 7) on this subject. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification.
The Tribunal’s file numbers are to be clearly marked on all documents served by the parties or filed with the Tribunal.
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.
The purpose of the Procedural Order and the meaning of the terms used in the Procedural Order are set out in Attachment 4.
This Member is (not) seized.
So orders the Tribunal.
ATTACHMENT 1
LIST OF PARTIES and participants
Parties
Mr. Dean Artenosi KAGAN SHASTRI LLP 188 Avenue Road Toronto, ON., M5R 2J1 Mr. Ira T. Kagan, ikagan@ksllp.ca, 416-368-2100 x.226 Ms. Sarah R. Kagan, skagan@ksllp.ca 416-368-2100 x.243 Counsel to Mr. Dean Artenosi
Corporation of the Township of Tay Barriston Law LLP 151 Ferris Lane, Suite 202 Barrie, ON., L4M 6C1 Ms. Sarah Hahn, shahn@barristonlaw.com, 705-792-6910
Corporation of the County of Simcoe 1110 Highway 26 Midhurst, ON., L9X 1N6 Mr. Marshall Green, marshall.green@simcoe.ca , 705-726-9300
Participants
- None
ATTACHMENT 2
ISSUES LIST
Dean Artenosi Issues
- Do the proposed severances have regard for matters of provincial interest?
- Are the proposed severances consistent with the Provincial Policy Statement (2020)?
- Do the proposed severances conform with (or not conflict with) A Place to Grow: The Growth Plan for the Greater Golden Horseshoe (2020 Office Consolidation)?
- Do the proposed severances conform with the County of Simcoe Official Plan?
- Do the proposed severances conform with the Township of Tay Official Plan?
- Is a plan of subdivision required and do the proposed severances have regard for the matters contained in subsection 51(24) of the Planning Act?
- What conditions, if any, should be imposed on the severances if they are granted?
Township of Tay Issues
- Adopts Issues 1 - 7.
County of Simcoe Issues
- Adopts Issues 1, 2, 3, 4 and 7.
ATTACHMENT 3
ORDER OF EVIDENCE
- Dean Artenosi
- Township of Tay
- County of Simcoe
- Dean Artenosi in reply
ATTACHMENT 4
Purpose of the Procedural Order and Meaning of Terms
The Tribunal recommends that the parties meet to discuss this sample Order before the prehearing conference to try to identify the issues and the process that they want the Tribunal to order following the conference. The Tribunal will hear the parties’ comments about the contents of the Order at the conference.
Prehearing conferences usually take place only where the hearing is expected to be long and complicated. If you are not represented by a lawyer, you should prepare by obtaining the Guide to the Ontario Land Tribunal, and the Tribunal’s Rules, from the Tribunal Information Office, 15th Floor, 655 Bay Street, Toronto, M5G 1E5, 416-212-6349, or from the Tribunal’s website at https://olt.gov.on.ca/about-olt/.
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 authorization 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 5
Summary of Filing Dates
| EVENT | DEADLINE |
|---|---|
| Parties to exchange their List of Witnesses | Friday, September 9, 2022 |
| Meeting of Expert Witnesses and Filing of Agreed Statement of Facts & Opinions | Friday, October 7, 2022 |
| Parties to exchange their Witness Statements Participants to provide their Participant Statements |
Friday, October 28, 2022 |
| Parties to exchange their Reply Witness Statements | Friday, November 18, 2022 |
| Parties to exchange their Visual Evidence and to provide OLT with the Joint Document Book and Hearing Plan | Monday, November 28, 2022 |
| Hearing commences (3 days) | Wednesday, December 7-9, 2022 |