Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 29, 2022

CASE NO(S).: OLT-22-002462 (Formerly PL180728)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Intermarket Real Estate Group Appellant: Joseph & Laura Puopolo Appellant: White Water Holdings Inc. Subject: Proposed Official Plan Amendment No. OPA 128 Municipality: Region of Waterloo Region OLT Case No.: OLT-22-002462 Legacy Case No.: PL180728 OLT Lead Case No.: OLT-22-002462 Legacy Lead Case No.: PL180728 OLT Case Name: Puopolo v. Waterloo (Region)

Heard: May 24, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Region of Waterloo (“Region”)	B. Duxbury, F. McCrea
Intermarket Real Estate Group (“Intermarket”)	J. Meader
Hildegard Annie Shiry, Brian Harold Shiry, Pauline Victoria Shiry, and Helen Elizabeth Shiry “Shiry Family”:	D. Sunday
John, Don, Douglas, James, Edward and Connie Hammer, Cathy Murphy and Veronica Kerr Kerr (“Hammer Family”):	K. Gossen
Laura and Joseph Puopolo:	S. O’Melia
City of Cambridge (“City”)	N. Auty
Michael and Kim Pollock and the Township of Woolwich (“Pollocks” and “Township”):	K. Thompson

DECISION DELIVERED BY WILLLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

INTRODUCTION

PART ONE: INTRODUCTION

1This Decision arises from a motion brought by the Region seeking approval of a proposed final revision of the Issues List in the Procedural Order (“PO”) governing the merits hearing in this appeal which was originally scheduled to commence on February 22, 2021 but has been adjourned for an extended period of time due to a multiplicity of proceedings before both the Ontario Land Tribunal (“Tribunal” or “OLT”) and the Ontario Divisional Court.

2As part of the proposed finalization of the Issues List in the PO, the Region also seeks an Order as follows:

…that Intermarket particularize which properties within the ROPA 2 area, not yet in force and effect, should be excluded from the ROPA 2 area, if any of the lands of Intermarket are to be included in the ROPA 2 area and that Intermarket particularize and justify inclusion of its lands within the ROPA 2 area…

3ROPA 2 refers to Regional Official Plan Amendment No. 2 which is an amendment to the Region’s Official Plan. ROPA 2 was adopted by Region’s Council on June 27, 2018. Prior to that in 2015, the Ontario Municipal Board (“OMB”), with the addition of Policy 2.B.3 (i) (“Woolwich Expansion Policy”) and Policy 2.B.3 (j) (“Cambridge Expansion Policy”) approved the ROPA2 on consent of all parties (“2015 ROPA Approval”). Intermarket was not a party to the 2015 ROPA Approval proceedings.

4Simply put, among other things, ROPA 2 designates certain lands as urban areas for housing. Intermarket is currently the owner of approximately four (4) hectares of land in two parcels (“Intermarket Lands”) located in the City and in the underlying Appeal seeks all or part of them to be included in the ROPA 2 designated urban area. Intermarket is the only remaining Appellant.

5As the Region’s counsel describes the procedural history of this case, on August 10, 2020, the Region brought a Motion before the Tribunal for an Order partially dismissing the Appeals of Intermarket and Joseph and Laura Puopolo as a result of approvals of lands already affected to the extent that these Appeals purported that ROPA 2 require a new Municipal Comprehensive Review (“MCR”) for an Urban Area Boundary Expansion. Among other issues, the Region argued that the Appellants were estopped from raising issues that challenged whether ROPA 2 constituted an Urban Area Boundary Expansion or required a new MCR. The Motion sought other relief as well as a request that Intermarket particularize those lands which should be excluded from the area established by ROPA 2 (“ROPA 2 Area”) in favour of the inclusion of Intermarket Lands.

6Counsel for the Region maintains that the Region was successful on its Motion and that on October 28, 2020 OLT Member Bhullar released a comprehensive decision providing the direction for the hearing of Intermarket’s Appeal, in part making an issue estoppel finding (“Estoppel Decision”). However, Intermarket (and the Puopolos) brought a motion for leave to appeal the decision of Member Bhullar to the Divisional Court. On May 19, 2021, the Honourable Justice J. Krawchenko issued a decision dismissing the motion for Leave Dismissal to appeal (“Leave Dismissal”).

7The Region’s counsel notes that since the Leave Dismissal, Intermarket has not prepared a revised PO and therefore the Region has done so in Schedule A to its Notice of Motion, all in alleged accordance with the Estoppel Decision in light of the Leave Dismissal.

8The Shiry Family’s counsel has filed a response wholly supporting the Region’s Motion. The Hammer Family also supports the Region’s Motion. Counsel for the Puopolos is maintaining a neutral position on this Motion.

9Counsel for Intermarket in a Response to the Region’s Motion also seeks finalization of the PO for the merits hearing of Intermarket’s appeal but has proposed a different version of an Issues List than that of the Region.

10Interestingly, Intermarket’s counsel also maintains that the Estoppel Decision and the Leave Dismissal taken together do not constitute a complete direction to the Parties as to the required substantive elements of the Issues List in the PO.

11Instead, counsel for Intermarket contends that: (i) on October 2, 2019, (former LPAT, now OLT) Member Tousaw issued a Decision that is still germane to the matters raised on the Region’s current Motion (“Tousaw Decision”), since the Tousaw Decision was never appealed; and (ii) the Leave Dismissal contained reasons for decision that essentially referred back to the OLT the determination of what should or should not be contained in the Issues List in the PO.

12As a result, Intermarket’s counsel argues that:

Consequently, the following grounds raised on the Motion for Leave to Appeal are procedural matters exclusively within the jurisdiction of the OLT:

a) The application of section 3(5) of the Planning Act at the merits hearing and the inclusion of issues relating to consistency with the Provincial Policy Statement, 2020 (“PPS”) and conformity with the Growth Plan for the Greater Golden Horseshoe, 2006 (“Growth Plan”).

b) The treatment of previous Tribunal decisions in the same proceeding. i.e., reconciling the various inconsistencies and conflicting rulings between the Tousaw Decision and the Bhullar Decision [aka Estoppel Decision].

c) The dismissal of significant portions of Intermarket’s appeal outside the enumerated grounds for dismissal in Section 17(45) of the Planning Act.

13Counsel for the Region categorically rejected the arguments of Intermarket described in paragraphs [9], [10] and [11] above. He vigorously argued in the Region’s Reply that:

Intermarket’s Notice of Response to the Motion of the Regional Municipality of Waterloo (“Region”) returnable May 24, 2022 is neither responsive to the Region’s Motion nor responsive to the requirements and direction of the Tribunal. Intermarket essentially seeks to again re-argue a position that was squarely raised before Tribunal Member Bhullar and disposed of. It was a position Intermarket again raised in its Motion for Leave to Appeal to the Divisional Court and therein also disposed of. The relief which Intermarket seeks is prohibited on several grounds including the principles of res judicata, the principle of issue estoppel, the principle of collateral attack and abuse of process. Within the context of the Tribunal’s Rules of Practice and Procedure, Intermarket’s response constitutes a frivolous and vexatious response and prevents the parties from getting to a focused and streamlined hearing of the merits notwithstanding where clear direction has been provided by the Tribunal.

14The following materials were before the Tribunal in this Motion proceeding:

(a) Motion Record of the Region, comprising 293 pages;

(b) Motion Record of Intermarket, comprising 130 pages;

(c) Reply Motion Record of the Region, comprising 15 pages;

(d) Responding Motion Record of the Shiry Family, comprising 10 pages;

(e) Notice of Response to Motion of the Hammer Family, comprising 15 pages;

(f) Revised Index to Motion Record of the Region, 1 page;

(g) Compendium of Documents and Relevant Excerpts, of the Region comprising 458 pages;

(h) Outline of Argument of the Region, comprising 29 pages;

(i) Outline of Argument of Intermarket, comprising 18 pages;

(j) Supplementary Submission of Intermarket, comprising 2 pages;

(k) Region’s Response to Supplementary Submission, comprising 4 pages; and

(l) Supplementary Submission of Hammer Family, comprising 2 pages

PART TWO: ANALYSIS AND EFFECT OF THE ESTOPPEL DECISION, THE LEAVE DISMISSAL AND THE TOUSAW DECISION

15The Tousaw Decision was issued following the second Case Management Conference held on September 13, 2019. In addition to dealing with some status requests, Member Tousaw was presented with two Motions which he described as follows in paragraphs [11] and [12] of his Decision:

The Township of Woolwich (“Woolwich”) and Breslau Properties Ltd. (“Breslau”) brought motions requesting that:

• Intermarket Real Estate Group’s (“Intermarket”) appeal be dismissed as it relates to all lands within Woolwich on the basis that the reasons set out in the appeal do not disclose any apparent land use planning ground related to Woolwich upon which the plan or part thereof could be approved or refused by the Tribunal, pursuant to s. 17(45)1.i of the Planning Act (“Act”) (both Woolwich and Breslau motions);

• Intermarket’s appeal be dismissed as it relates to all lands within Woolwich on the basis that the appeal is frivolous and vexatious, pursuant to s. 17(45)1.ii of the Act (Woolwich motion); and

• An order stating that ROPA2 is in full force and effect for all lands located in Woolwich (Breslau motion).

…Intermarket responded, requesting that the motions of Woolwich and Breslau be dismissed.

16In terms of the two Motions described in paragraph 16 above, the Tousaw Decision set out that:

To the substance of the motion now, the Tribunal dismisses Intermarket’s appeal as it relates to lands in Woolwich, pursuant to s. 17(45)1.i of the Act for failing to disclose a land use planning ground upon which the Tribunal could approve or refuse ROPA2 pertaining to Woolwich. This Decision is founded on a technical matter that limits Intermarket’s appeal by geographic scope but does not limit the scope of argument available to Intermarket through its notice of appeal. In arriving at this Decision, the Tribunal considered the Parties’ oral and written submissions, including the affidavits of three Registered Professional Planners, and the cases referenced by the Parties.

17The Tousaw Decision went on to state:

In short, any change to ROPA2 in Cambridge arising from Intermarket’s appeal will affect the Cambridge designations only and will have no effect on the Woolwich designations. The policies establishing maximum land allocations in each municipality have been in full force and effect since 2015 and are not before this Tribunal, other than their proposed deletion in ROPA2 given that ROPA2 arguably implements those policies and makes them redundant… The Tribunal is of the opinion that the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the part of the plan and therefore will dismiss that part of Intermarket’s appeal without holding a hearing, pursuant to s.17(45)1.i of the Act… In support of ROPA2 being declared in force as it pertains to Woolwich under s. 17(30) of the Act, Breslau submits that the appeal by Laura and Joseph Puopolo expressly excludes any appeal to lands in Woolwich, and the appeal by White Water Holdings Inc. pertains only to a ROP policy exclusive to Cambridge. Neither of these appellants responded to the motions. The Tribunal will make the requested order.

18Finally, in the passage apparently relied upon by Intermarket’s counsel, the Tousaw Decision remarked at paragraph [34] thereof:

As noted earlier, the Tribunal does not make a finding here on whether ROPA2 constitutes a settlement area expansion and whether it satisfies the various legislative tests under the Act. The Tribunal has not heard tested planning evidence on these issues and agrees with Intermarket that such matters should not be determined without a full hearing on the merits. This finding ties to the Tribunal’s understanding that, based on Intermarket’s proposed motion settlement, Intermarket is not concerned with the Woolwich lands provided it is not prejudiced from making region-wide process arguments on the balance of its appeal.

19The Order clauses which precisely define the result of the Tousaw Decision are:

[35] The case management directions set out above are so ordered.

[36] The motions of Woolwich and Breslau are allowed in part, and the appeal of Intermarket as it applies to lands in Woolwich is dismissed, pursuant to s. 17(45)1.i of the Act.

[37] The motion of Breslau is allowed in part, and the Region is hereby notified pursuant to s. 17(47) of the Act that the Region’s decision on ROPA2 as it pertains to lands in Woolwich is final and ROPA2 comes into effect for Woolwich on the day after the date of issuance of this Decision.

20In this Tribunal’s view, it is clear from the Tousaw Decision that the Order made in paragraph [35] thereof relates only to the Party requests granted and the scheduling of a subsequent CMC. Put another way, it is obvious that the Tousaw Decision was not forever binding the OLT to permit Intermarket to conduct the hearing of its appeal as only it saw fit to do notwithstanding any Motion or other proceedings which might follow the Tousaw Decision. In fact, Member Tousaw expressly noted in paragraph [34] of his Decision what he was not finding. In this Tribunal’s view, his remarks as to a ‘full hearing on the merits’ cannot be properly understood as forever ousting the jurisdiction of the OLT to determine issues that might be raised in further Motions pertaining to the ‘merits’. The Motion that led to the Estoppel Decision was just such a proper exercise of that jurisdiction of the Tribunal.

21Member Tousaw also presided over a third CMC where he scheduled a motion (which was heard by Member Bhullar and led to the Estoppel Decision) to address certain threshold issues that would frame the balance of the merits hearing. It is noteworthy that in paragraph [14] of his February 3, 2020 Decision, Member Tousaw stated:

The Parties requested that a five week hearing be scheduled. Although some changes to the ...[Issues List]… may result from the Decision on the Motion hearing, the Tribunal sees merit in scheduling the hearing at this time given the number of Parties in this proceeding and the anticipated length of the hearing. The preliminary PO submitted on consent in support of scheduling the hearing is approved as set out in Attachment 1. The PO recognizes that the required Hearing Work Plan will be completed in time to release dates from the Tribunal’s calendar, if made possible by a scoping of the hearing arising from the outcome of the threshold issues and any dispute to the…[Issues List].

[emphasis added]

22Given the scheduling of the very Motion that led to the Estoppel Decision and the express recognition that it might lead to changes to the Issues List, it is difficult to accept the notion that the OLT was foreclosing by reason of the previous Tousaw Decision its jurisdiction to further determine the issues on the Intermarket appeal because it had forever frozen Intermarket’s right to have full merits hearing “on whether ROPA2 constitutes a settlement area expansion and whether it satisfies the various legislative tests under the Act”.

23Therefore, the Tribunal disagrees with the argument by Intermarket’s counsel that there is any requirement for the OLT to: “[reconcile] …the various inconsistencies and conflicting rulings between the Tousaw Decision and the Bhullar Decision”. In this Tribunal’s view, in light of the circumstances described in paragraphs [15] to [22] above, the Tousaw Decision and the Estoppel Decision of Member Bhullar did not deal with the same matters and certainly are not in conflict.

24The Leave Dismissal decision of the Divisional Court dismissed the motion brought by Intermarket seeking leave to appeal the Estoppel Decision. Thus, the Estoppel Decision stands unless varied by this Tribunal.

25The Tribunal disagrees with the contention that the Leave Dismissal somehow serves as a substantive ruling confirming the merits of Intermarket’s grounds of appeal or any of its arguments against the Estoppel Decision. It cannot be relied upon to in effect undo the Orders set out in the Estoppel Decision. When examined closely the Reasons for Judgment in the Leave Dismissal actually serve instead to validate the Estoppel Decision and to confirm its Orders regarding Intermarket’s appeal going forward.

26It seems clear to this Tribunal that the following remarks of Mr. Justice Krawchenko of the Divisional Court referred to in final oral argument at the VH by both Intermarket’s counsel and counsel for the Region, are simply a reaffirmation of the long-standing principles relating to the jurisdiction of the LPAT/OLT and reflect the Court’s agreement with the Decision of Member Bhullar:

The balance of the grounds of appeal put forth by both lntermarket and Puopolo fall into the category of alleged procedural errors that had the combined effect of severely limiting their ability to advance their cause at the merits hearing…On this point, the Tribunal has the exclusive jurisdiction over its procedure and has the authority to direct the parties to participate in CMCs prior to a hearing in order "to identify, define or narrow the issues raised by the proceeding" and ''to deal with any other matter that may assist in the fair, just and expeditious resolution of the issues". Further, the Tribunal rules provide that the CMCs that may scheduled at the Tribunal's own initiative, may "...determine the issues raised by an appeal" and " ... deal with any other matter that may assist in a fair, cost-effective, and expeditious resolution of the issues...That is exactly what member Bhullar did at the fourth CMC…This exercise of controlling its own process was discretionary and not a question of law that is the proper subject matter for an appeal to the Divisional court. The end result was a decision of the Tribunal that tended to streamline the procedures and bring focus to the outstanding issues to be addressed by all parties at their scheduled twenty-five-day anticipated hearing. On this point I would add that if this was a pure issue of law, which it is not, I would not doubt the correctness of the case management decisions made in same…

[emphasis added]

27Earlier in his Reasons for Judgment, Mr. Justice Krawchenko remarked approvingly of the Estoppel Decision:

With regards to the grounds for appeal that is advanced by both lntermarket and Puopolo regarding issue estoppel, it is evident in Member Bhullar's decision that he was aware of the correct three part test for issue estoppel as set out in the Danyluk decision and identified and applied the facts before him to that test and arrived at his conclusion…I accept the argument of the Region that the determination made by member Bhullar on this issue was a question of mixed law and fact wherein he applied the facts, as he determined them to be, to the applicable three-part legal test. Accordingly, this is not a proper ground for appeal. Even if it was a pure question of law, there is no reason to doubt the correctness of the decision, taking the entire decision as a whole.

[emphasis added]

28In the Tribunal’s view, it is notable that Intermarket included the following grounds in argument concerning the Estoppel Decision at the Leave Dismissal hearing:

…[the Estoppel Decision]…precluded the application of Section 3(5) of the Planning Act at the merits hearing by removing the considerations of the PPS and Growth Plan from the issue list…[the Tribunal] breached its duty of procedural fairness by overruling a previous Tribunal Decision…[in]… the same proceeding…

[emphasis added]

29It is clear that the ‘previous Tribunal Decision’ alleged by Intermarket was the Tousaw Decision, as set out in the materials filed by Intermarket on its motion for leave to appeal and as was expressly noted by Mr. Justice Krawchenko in his Reasons. It is equally clear that Mr. Justice Krawchenko rejected Intermarket’s argument that a ‘procedurally unfair overruling’ of the Tousaw Decision had occurred.

30In light of its determinations in this Part Two, and the Reasons for Decision of Mr. Justice Krawchenko on the grounds raised concerning issue estoppel, the Tribunal finds it unnecessary: (a) to further expound upon the applicable jurisprudence on the same issue; or (b) to consider the principles and doctrines of res judicata, issue estoppel, collateral attack or purpose and abuse of process as argued by the Region’s counsel; or (c) to repeat here all of the details of the Estoppel Decision beyond its Orders which were:

The Tribunal allows the Region’s Motion and orders as follows;

a) the Appellants are restricted from raising provincial policy and plan issues due to the principles of issue estoppel;

b) the consideration of PSEZ is inapplicable to ROPA 2;

c) ROPA 2 shall not be treated as a continuation of; any MCR or other similar exercise for the determination or postulation of boundary expansions;

d) the IL shall be revised consistent with the acceptance of items a) and b) for the hearing on the merits; and

e) the Appellants shall provide a revised DPO inclusive of a revision to the IL, the number of hearing days required, a Work Plan and the revised DPO shall be provided to the Tribunal within 30 days of the issuance of this decision.

PART THREE: SUMMARY AND CONCLUSIONS

31It should be noted that this Tribunal permitted counsel for all Parties to make submissions on this Motion as if it was a de facto appeal or review of the Estoppel Decision or of past CMCs conducted in this matter. In the unusual circumstances of this proceeding and its history, this was done solely out of respect for the manner in which the materials filed particularly by the Region and Intermarket chose to address the matters raised by the Motion.

32There is no doubt that the OLT, as was affirmed by the Divisional Court on the Leave Dismissal, has broad inherent rights under Part III of the Ontario Land Tribunal Act, S.O. 2021, C. 4 Sch. 6 (“OLTA”) to control its hearing process as is particularly set out under Rules 1.3, 1.4, 1.6 and 19.1 of the OLT Rules of Practice which provides that:

Case Management Conference At the request of a party, on its own initiative or as may required by legislation or regulation, the Tribunal may direct parties to participate in a case management conference conducted by a Member of the Tribunal, which can include settlement conferences, motions or preliminary hearing matters, such as to:

(a) identify the parties and participants;

(b) determine the issues raised by the appeal;

(c) narrow the issues in dispute…

33It is important to remember that Member Bhullar presided over the fourth CMC in this proceeding at which inter alia he dealt with the Motion that led to the Estoppel Decision. In that regard, Rules 19.8 and 19.9 state:

19.8 Tribunal Order Following The Tribunal Member conducting the case management conference will issue an order that may decide any of the matters considered at the conference and provide procedural directions for any subsequent hearing event.

19.9 Hearing Member Bound The Tribunal Member conducting the hearing or any subsequent hearing event is bound by the order resulting from the case management conference unless that Member is satisfied that there is good reason to vary the order.

34Thus, clearly Member Bhullar was acting under Rule 19 at the fourth CMC and was not bound by any previous CMC Decision since there were none that had dealt expressly with the Motion that was before Member Bhullar – i.e. that Member Tousaw had specifically scheduled as described above in paragraph [21]. Yet even if there had been such a binding previous Decision, its resultant Orders could be varied under Rule 19.9. The Tribunal disagrees with the argument made by Intermarket’s counsel that Member Bhullar failed to act properly in accordance with Rule 19.9 - because there was simply no need or requirement to vary the Tousaw Decision.

35The OLT on this Motion does not find that there is good reason to vary the Orders made in the Estoppel Decision and will not revisit its substantive findings as if it was still ‘under appeal’ as a result of the Motion or the Reply to the Motion – which is certainly not the case. (In any event, the Tribunal points out that, interestingly, neither Intermarket nor any other Party to this proceeding has actually requested that the Estoppel Decision be varied by this Tribunal pursuant to Rule 19.9).

36There was no evidence before this Tribunal that prior to the motion before the Divisional Court for leave to appeal the Estoppel Decision Intermarket sought a review of the Estoppel Decision under Section 23 of OLTA which provides that:

Review

23 Unless another Act specifies otherwise, the Tribunal may review, rescind or vary any order or decision made by it in accordance with the rules.

37The procedure to be followed in order to institute a review of a Decision under section 23 of the OLTA is set out in Rule 25 of the OLT Rules. Neither this Motion nor Intermarket’s Reply to it purported to follow this prescribed procedure, and this proceeding does not constitute such a review.

38Insofar as the Issues List for the Procedural Order (which is dealt with in the Tribunal’s Orders below), the Tribunal notes the argument of Intermarket’s counsel as follows:

Intermarket maintains its challenge over all lands remaining under appeal. Intermarket’s position is that its lands are more appropriate for inclusion in the Urban Boundary through ROPA 2 than any of the other lands remaining under appeal. Intermarket seeks the removal of any of those lands that would allow for its lands to be brought in, and therefore, will address the exclusion of all lands remaining under appeal through the exchange of witness statements in accordance with the Procedural Order and at the merits hearing. Intermarket will also provide the justification for the inclusion of the Intermarket Lands through the exchange of witness statements in accordance with the Procedural Order and at the merits hearing.

In light of that contention, the Tribunal expects these matters to be appropriately reflected within the Issues List in the joint draft Procedural Order required under the Orders below in paragraph [40]. The Tribunal also expects counsel for the Parties to cooperate and work together in good faith to as soon as possible finalize the terms of the Procedural Order, given the length of time that has passed since the initiation of this Appeal.

39Finally, for the reasons outlined in Part Two and Part Three above, the Tribunal declines to make any findings with respect to the alleged abuse of process or ‘frivolous and vexatious conduct’ by Intermarket. Such matters, and any request for costs relating to this Motion or otherwise, may be brought before the Tribunal at the hearing of this Appeal in accordance with the Rules.

ORDER

40The Tribunal Orders that the Parties shall submit within 10 days of the date of this Decision:

(a) a joint draft Procedural Order in agreed form and content containing an Issues List that is in accordance with the Orders made in the Decision of Member Bhullar dated October 28, 2020 or, failing such agreement, that clearly and specifically delineates only the remaining Issues in dispute. Without limiting the generality of the foregoing, for the purposes of clarity, the Issues List shall not include any matters relating to whether ROPA 2 (as described in Part One above) constitutes an Urban Area Boundary Expansion or Municipal Comprehensive Review (“MCR”); whether a MCR is required or ought to be considered; or to the Growth Plan for the Greater Golden Horseshoe, 2019;

(b) a joint proposal as to the number of days required for the hearing of this Appeal following which the Tribunal will advise of the dates scheduled for the hearing. In the event that the Parties are unable to agree on such a joint proposal, they shall provide their concise written submissions to the Tribunal setting out their respective positions;

41Upon receipt of the Parties’ draft Procedural Order and joint hearing proposal and/or brief written submissions in accordance with the Order in paragraph [40], the Tribunal will, at its discretion, (a) revise the Procedural Order and determine the length and scheduling of the merits hearing and so advise the Parties; or (b) convene a further Case Management Conference for that purpose.

“William R. Middleton”

WILLIAM R. MIDDLETON 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.