Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 08, 2022

CASE NO(S).: OLT-21-001757

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C. 27, as amended

Appellants: Anita Kertzer, Morris Kertzer

Respondent: Rideau Valley Conservation Authority

Subject: Appeal of refusal to grant permission for development

Property Address: 2295 Wildlife Way

Municipality: City of Ottawa

OLT Case No.: OLT-21-001757

OLT Case Name: Kertzer v. Rideau Valley Conservation Authority

Heard: June 10, 2022 by Telephone Conference Call (“TCC”)

APPEARANCES:

Parties	Counsel
Anita and Morris Kertzer	Ronald Petersen
Rideau Valley Conservation Authority (“RVCA” or the “Respondent”)	Charlotte Watson

MEMORANDUM OF ORAL DECISION DELIVERED BY WARREN MORRIS AND JENNIFER CAMPBELL ON JUNE 10, 2022 AND ORDER OF THE TRIBUNAL

1This Decision arises from a Case Management Conference (“CMC”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding the appeal brought by Anita Kertzer and Morris Kertzer (collectively, the “Appellants”) of a decision of the Rideau Valley Conservation Authority (“RVCA”) dated October 26, 2021, denying an application for development at 2294 Wildlife Way, in Kemptville, Ontario. A prior CMC was held on April 8, 2022, by TCC. A Procedural Order (“PO”) was not filed prior to the April 8, 2022 CMC. At the original CMC, the Parties narrowed the eight grounds enumerated in the appeal to a list of four issues, and the Parties agreed to prepare a draft PO and further refine the Issues List. The Tribunal determined that a further CMC would be held in order to review and further refine the draft PO, in advance of the hearing.

2A draft PO and Issues List was submitted in advance of the second CMC. The Issues List consisted of 17 issues, of which five (5) were marked with asterisks and commentary indicating less than full agreement with the issue wording.

3At the CMC, with the assistance of the Tribunal Panel Members, the Parties agreed to narrow the issues list to five issues. Agreement as to the exact wording had not been concluded. The five issues agreed upon, in general terms were:

1. Does the Conservation Authorities Act (“CAA”) have jurisdiction over the subject property?
2. If the answer to No.1 is yes, did the RVCA properly identify the subject property as being within a floodplain?
3. What legislation, regulations and policies apply to this development application?
4. Does the development application comply with the applicable legislation, regulations and policies?
5. Such other issues that may arise and that the Tribunal deems just and necessary to determine.

4The Tribunal directed that a PO and Issues List be filed by the Parties by June 17, 2022, which was subsequently filed and is appended to this Decision as Attachment 1. The Parties indicated that settlement discussions would not likely be productive given the issues identified.

5The Parties discussed the number and types of witnesses, and overall length of time required for a hearing. The Tribunal directed that a hearing will be held from Tuesday, September 6 to Thursday, September 8, 2022.

ORDER

6The Procedural Order and Issues List is appended to this Decision as Attachment 1.

7The hearing is scheduled to proceed by video on Tuesday, September 6 to Thursday, September 8, 2022 at 10 a.m.

8Parties and participants 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/765631861

Access code: 765-631-861

9Parties 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

10Persons 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) 1-888-455-1389 or +1 (647) 497-9391. The access code is 765-631-861.

11Individuals 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.

12There will be no further notice.

13These Members are not seized.

“Warren Morris”

WARREN MORRIS

MEMBER

“Jennifer Campbell”

JENNIFER CAMPBELL

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.

ATTACHMENT 1

Procedural Order for Video Hearing

Purpose of the Procedural Order

Case management conferences are scheduled by the Tribunal to organize the hearing. This sample procedural order is provided to identify who may participate in the hearing, the issues in dispute, and the matters that are required to be carried out before the hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a party or a participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the case management conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

CASE NO(S).: OLT 21-001757

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C. 27, as amended

Applicant(s)/Appellant(s): Anita Kertzer, Morris Kertzer

Respondent: Rideau Valley Conservation Authority

Subject: Appeal of refusal to grant permission for development

Property Address/Description: 2295 Wildlife Way

Municipality: City of Ottawa

OLT Case No.: OLT 21-001757

OLT Case Name: Kertzer v. Rideau Valley Conservation Authority

(Repeat the above heading as needed for each provision(s) under which the proceeding is commenced)

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 September 6, 2022 at 10:00 a.m.

https://global.gotomeeting.com/join/765631861

Access code: 765-631-861

Audio only telephone line: (Toll Free) 1-888-455-1389 or +1 (647) 497-9391.

The access code is 765-631-861.

3. The parties’ initial estimation for the length of the hearing is 2.5 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 the sample procedural order 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 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.

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 July 1, 2022 (at least 55 days prior to the hearing date) 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. The parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before August 8, 2022 (date – at least 15 days prior to the start of the hearing).

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 July 15, 2022 (date – a minimum of 38 days before the hearing date), 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. The parties have agreed that the evidence in chief of the Appellant, Morris Kertzer, shall be given by way of sworn Affidavit and that the Respondent will have the opportunity to cross examine Morris Kertzer orally at the hearing. Mr. Kertzer’s sworn Affidavit shall be served on the Respondent on or before July 15, 2022.

15. On or before August 5, 2022, 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 (14) days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before August 5, 2022 (date – no later than 10 days prior to 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 7 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 23, 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 filings shall be submitted electronically 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 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.

These Members are not seized.

So orders the Tribunal.

Attachment to Sample Procedural Order

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.