Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 13, 2022

CASE NO(S).: OLT-22-002956 (Formerly PL200240)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Bill Pearce

Subject: By-law No. 2020-069

Municipality: Township of Uxbridge

OLT Case No.: OLT-22-002956

Legacy Case No.: PL200240

OLT Lead Case No.: OLT-22-002956

Legacy Lead Case No.: PL200240

OLT Case Name: Pearce v. Uxbridge (Township)

Heard: August 24, 2022 by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel/ Representative*
Bill Pearce and Frank Pearce (“Appellants”)	Bill Pearce* representing himself and Frank Pearce
Grainboys Holdings Inc. (“Applicant”)	David Germain
Township of Uxbridge (“Township”)	Mark Joblin

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON AUGUST 24, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) concerning an appeal by the Appellants, of the passing of By-law No. 2020-69 by the Township of Uxbridge, to permit a dry grain processing plant on a property located at 3469 York-Durham Line. The By-law purports to allow development of a dry grain processing plant, including processing tower, surge bins, and related office and other uses. The Applicant company is the property owner.

2The first CMC was held on March 12, 2021, and was adjourned pending the outcome and possible appeals of two Official Plan Amendment (“OPA”) Applications by the same Applicant, one involving the Township’s Official Plan (“OP”) and the other to the Regional Municipality of Durham’s OP (“Region’s OP”), to facilitate the same proposed development that is the subject of the present Zoning By-law Amendment (“ZBA”) appeal.

3At the outset of the hearing, the Tribunal confirmed with the Parties that the two OPA applications were adopted by the respective municipalities without any appeals and are now in full effect.

Requests for Status

4No requests for either party or participant status were received by the Tribunal.

MEDIATION AND SETTLEMENT

5The Tribunal explored the possibility of mediation and settlement with the Parties. The Parties both expressed openness to resolution but confirmed that prospects for resolution are not promising.

PROCEDURAL ORDER AND ISSUES LIST

6The Tribunal received and reviewed a draft Procedural Order (“PO”) from the Applicant, which was confirmed to be acceptable by the Township.

7The Appellants confirmed that all aspects of the PO were acceptable, except how Issues no. 1 and 2 are to be dealt with at the hearing from an evidentiary standpoint:

1. Does the by-law conform to the local and regional official plans? In answering this question, what versions of the local and regional official plans should the Tribunal apply?
2. Does the proposed use constitute an agriculture-related use and does it conform to the Provincial Policy Statement, Policy 2.3.3.1?

8The Appellants submitted that these questions do not require planning evidence, and testimony from experts in land use planning and are altogether unnecessary. The Appellants argued that these questions are questions of law, not opinion. The Appellants further submitted that, if such experts are not called, then the length of the hearing can be significantly shortened.

9The Appellants further proposed that the Tribunal consider receiving written submissions in advance of the hearing regarding the admissibility of planning evidence from experts, after which it may rule on the necessity of such evidence and subsequently determine the expected length of the hearing. Additionally, if the Tribunal elects to allow planning evidence provided by experts, the Appellants suggested that the Tribunal may choose to scope the admissibility of such evidence as a means to shorten the hearing.

10The Tribunal needed no submissions from the other Parties regarding this issue. The Tribunal explained to the Appellants that planning evidence from experts in land use planning is a normal and routine aspect of many or most hearings, and such evidence is often critically helpful to the Tribunal when adjudicating such matters. For this reason alone, the Tribunal would not pre-emptively exclude such evidence.

11Furthermore, the Tribunal explained that it would be irregular for a Tribunal Member to rule on the admissibility of evidence, or the qualifications of an expert, in advance of a hearing and such questions are to be determined by the Member presiding at the merit hearing.

12Upon the above findings and considerations, the Tribunal finds that each of the issues in the Issues List are appropriate and will form part of the Issues List of the PO.

13The Tribunal notes that the Issues List makes no mention of conformity with applicable provincial plans, including the Growth Plan for the Greater Golden Horseshoe nor the Oak Ridges Moraine Conservation Plan, both of which apply to the subject matter. The Parties confirmed that these provincial plans are not mentioned in the Issues List because there is no contest between the Parties regarding conformity with these plans. Nevertheless, for the benefit of the understanding of the unrepresented Appellants, the Tribunal made it clear at the CMC that the Applicant is still expected to make its case regarding the satisfaction of s. 3(5) of the Planning Act.

14When asked if there was anything else about the draft PO that the Appellants had an issue with, the Appellants submitted that paragraph 10 should be removed:

10. Expert witnesses in the same field shall have a meeting on or before [30 days prior to the hearing] 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 a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or [15 days prior to the hearing].

15The Appellants submitted that this paragraph serves no purpose if there is only one expert, called by the Applicant, and they do not expect to call any experts. In response, counsel for the Applicant submitted that this paragraph forms part of the Tribunal’s PO template.

16The Tribunal finds that this paragraph should remain, noting that it will only be operative if there is more than one expert to discuss a specific subject area.

17Upon the above findings and considerations, the Tribunal finds the draft PO submitted by the Applicant is acceptable in its entirely and the proceedings shall be governed by it (see Schedule 1).

HEARING

18Upon request of the Parties, the Tribunal set a four-day hearing commencing on Tuesday, November 22, 2022, at 10 a.m. by VH. No further notice is required for the hearing.

19Parties and Participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/719383509

Access Code: 719-383-509

20Parties 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.

21Persons 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 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

22Individuals 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 VH 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.

ORDER

23The Tribunal Orders that:

1. The date and particulars of the hearing are set out above;
2. The Procedural Order appended as Schedule 1 shall govern the proceedings; and,
3. The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS 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.

SCHEDULE 1

CASE NO(S).: OLT-22-002956

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Bill Pearce Subject: By-law No. 2020-069 Municipality: Township of Uxbridge OLT Case No.: OLT-22-002956 Legacy Case No.: PL200240 OLT Lead Case No.: OLT-22-002956 Legacy Lead Case No.: PL200240 OLT Case Name: Pearce v. Uxbridge (Township)

PROCEDURAL ORDER

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 November 22, 2022 at 10:00 a.m. and will be held virtually.

3. The parties’ initial estimation for the length of the hearing is 4 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 September 23, 2022 and in accordance with paragraph 21 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. Expert witnesses in the same field shall have a meeting on or before October 24, 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 a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or November 7, 2022.

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 October 7, 2022, 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 21 below.

14. On or before October 7, 2022. a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before October 7, 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. 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 21 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 November 14, 2022.

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 November 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.

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.

This Member is not seized.

So orders the Tribunal.

Attachment 1

Parties and Participants

Parties

1. Grainboys Holdings Inc.
2. Bill and Frank Pearce
3. Township of Uxbridge

Participants None

Attachment 2

Issues List

1. Does the by-law conform to the local and regional official plans? In answering this question, what versions of the local and regional official plans should the Tribunal apply?
2. Does the proposed use constitute an agriculture-related use and is it consistent with PPS policy 2.3.3.1?
3. Has the potential for noise impacts on surrounding land uses been adequately addressed?
4. Has the potential for air quality impacts on surrounding land uses been adequately addressed?

Attachment 3

Order of Evidence

1. Grainboys Holdings Inc.
2. Township of Uxbridge
3. Bill and Frank Pearce
4. Grainboys Holdings Inc.(reply)

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.