ISSUE DATE:
August 5, 2022
CASE NO.:
OLT-21-001631
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O.
Applicant and Appellant:
Burgess Heritage Group Inc.
Subject:
Request to amend the Official Plan - Failure of Town of Grimsby to adopt the requested amendment
Existing Designation:
Neighbourhood Commercial Areas
Proposed Designated:
Site Specific (To be determined)
Purpose:
To permit a 5-storey mixed use building
Property Address/Description:
133 and 137 Main Street East
Municipality:
Town of Grimsby
Approval Authority File No.:
26O-16-1901
OLT Case No.:
OLT-21-001631
Legacy Case No.:
PL200201
OLT Lead Case No.:
OLT-21-001631
Legacy Lead Case No.:
PL200201
OLT Case Name:
Burgess Heritage Group Inc. v. Grimsby (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Burgess Heritage Group Inc.
Subject:
Application to amend Zoning By-law No. 14-45 - Refusal or neglect of Town of Grimsby to make a decision
Existing Zoning:
Neighbourhood Commercial
Proposed Zoning:
Site Specific (To be determined)
Purpose:
To permit a 5-storey mixed use building
Property Address/Description:
133 and 137 Main Street East
Municipality:
Town of Grimsby
Municipality File No.:
26Z-16-1904
OLT Case No.:
OLT-21-001632
Legacy Case No.: OLT Lead Case No.:
Legacy Lead Case No.:
PL200202
OLT-21-001631 PL200201
BEFORE:
STEVEN COOKE VICE-CHAIR
Friday, the 5th
day of August, 2022
THESE MATTERS having come before the Tribunal for a Case Management Conference on April 8, 2022;
AND THE TRIBUNAL having received the requested copy of the Procedural Order, on consent,
THE TRIBUNAL ORDERS that the Procedural Order attached hereto as Schedule 1 is in full force and effect.
“Euken Lui”
EUKEN LUI REGISTRAR
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.
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.
Organization of the Hearing
- The video hearing will begin on October 18, 2022 at 10 a.m. at the following location:
GoTo Meeting: https://global.gotomeeting.com/join/415268829 Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373
Access Code: 415-268-829
The parties’ initial estimation for the length of the hearing is 14 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The meaning of the terms used in this Procedural Order are identified in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2. Unless the Tribunal directs otherwise, a person who wishes to become a party or participant at the hearing who Is not listed in Attachment 2 must make the necessary motion to the Tribunal. The Tribunal may refuse to grant such status.
The Issues to be adjudicated at the hearing are set out in the Issues List attached as Attachment 3. 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.
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.
Any person granted status 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.
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/tribunals/lpat/).
Requirements Before the Hearing
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide details of the revised proposal, including revised plans and drawings, to the other parties on or before August 3, 2022 unless otherwise agreed to by the parties. If the applicant provides a revised proposal, the parties shall have the right to revise and/or augment the issues list.
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the municipal clerk a list of the witnesses and the order in which they will be called. This list must be delivered on or before August 10, 2022. 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.
Expert witnesses in the same field shall have a meeting on or before August 19, 2022 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 August 26, 2022.
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 section [15]. 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.
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 section [15]. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section [15].
On or before September 13, 2022, the parties shall provide copies of their witness and expert witness statements to the other parties and to the participants and to the municipal Clerk of the Town of Grimsby.
On or before September 13, 2022, a participant shall provide copies of their written participant statement to the parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before September 13, 2022, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before October 5, 2022, the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and file with the Clerk a written response to any written evidence on or before October 5, 2022.
The parties shall cooperate to prepare a joint document book which shall be uploaded to the OLT’s file share server, pursuant to the directions provided by the OLT case co-ordinator, on or before October 5, 2022.
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.
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.
The parties shall prepare and file a hearing plan with the Tribunal on or before October 7, 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.
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.
All filing shall be electronic and in hard copy. 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 email shall be governed by the Rule 7.
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:
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. If an unincorporated group wishes to become a party, 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, group 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). Subsection 33.2 of the Local Planning Appeal 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 the witness’ opinions on those issues; and a list of reports 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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.
Additional Information
Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.
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
LIST OF PARTIES AND PARTICIPANTS
Parties
Burgess Heritage Group Inc.
C/O Johanna Shapira Wood Bull LLP
65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5
jshapira@woodbull.ca 416-203-5631
Town of Grimsby C/O Tom Halinski Aird & Berlis LLP
Brookfield Place, 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9
thalinski@airdberlis.com 416-865-7767
Participants
(1) Ruxandra Bucataru as representative for SaveMainStreet
(2) Losani Homes (1998) Ltd. C/O William Liske wliske@losanihomes.com (905) 594-0510
ATTACHMENT 3 ISSUES LIST
Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or 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 at the hearing will be a matter of evidence and argument at the hearing
Town of Grimsby
Are the applications consistent with the Provincial Policy Statement (2020) including in particular policies 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.1.3.5, 1.4.3, 1.5.1, 1.6.6.2, 1.6.6.7, 1.6.7, 1.7.1 d), 1.8, 2.6.1 and 2.6.2?
Do the applications conform with the Growth Plan for the Greater Horseshoe (2019), as amended, including in particular policies 1.2.1, 2.2.1.1, 2.2.1.4, 2.2.2.3, 2.2.6.2, 2.2.6.3, 4.1 and 4.2.7?
Do the applications conform with the Region of Niagara Official Plan, including in policies 1.1, 1.3, 2.1, 2.2, 2.3.2, 2.4.6, 2.5.1, 2.5.4, 2.5.5, 2.6.9, 3.4.4, 3.4.5, 3.4.7.2, 3.4.7.4, 3.4.7.8, 3.6.1, 4.5, 5.3, 5.5, 5.6, 7.1, 7.2, 8.1, 8.9, 8.18, 9.4 and 9.10?
Do the applications conform with the Town of Grimsby Official Plan, including policies 1.1, 1.3, 2.1, 2.2, 2.3.2, 2.4.6, 2.5.1, 2.5.4, 2.5.5, 2.6.9, 3.4.4, 3.4.5, 3.4.7.2, 3.4.7.4, 3.4.7.8, 3.6.1, 4.5, 5.3, 5.5, 5.6, 7.1, 7.2, 8.1, 8.9, 8.18, 9.4 and 9.10?
Do the applications represent good planning?
Do the application conform with the Town of Grimsby Zoning By-law?
Do the applications provide adequate parking and conform with the Town of Grimsby Zoning By-law in terms of parking provision?
Would the proposal result in unacceptable traffic impacts?
Are the applications appropriate from the perspective of coverage, height, massing and urban design?
Do the applications provide an appropriate transition to the adjacent stable residential neighbourhood?
Do the applications contribute to enhancing the streetscape character along Main Street East?
Do the applications represent appropriate intensification outside the designated Intensification Area?
Is the planned function of the proposal appropriate for the Neighbourhood Commercial designation?
Does the proposal adequately and appropriately conserve cultural heritage resources?
Has the Appellant demonstrated the technical feasibility of the proposal?
Are the applications compatible with adjacent uses and the surrounding community?
ATTACHMENT 4 - ORDER OF EVIDENCE
Burgess Heritage Group Inc.
Town of Grimsby
Reply by Burgess Heritage Group Inc.