Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 06, 2022 CASE NO(S).: OLT-22-002699

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant: James Hacquoil Appellant: Jiska Westbroek Subject: Consent Description: to create a new lot by severing a land in order to convey the land to the western abutting lot, while providing easement for road access to the abutting lot. Reference Number: 1B/23/21 Property Address: #5 Hwy 588, Oliver Paipoonge, ON (Concession 1 NKR, Part Lot 33) Municipality/UT: Oliver Paipoonge/Thunder Bay OLT Case No: OLT-22-002699 OLT Lead Case No: OLT-22-002699 OLT Case Name: Westbroek v. Oliver Paipoonge (Township)

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Consent Reference Number: 1B/24/21 Property Address: #5 Hwy 588, Oliver Paipoonge, ON (Concession 1 NKR, Part Lot 33) Municipality/UT: Oliver Paipoonge/Thunder Bay OLT Case No: OLT-22-002701 OLT Lead Case No: OLT-22-002699

Heard: September 22, 2022 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel
Jiska Westbroek (“Appellant”)	Suraj Dave, Robert Edwards
James Hacquoil (“Applicant”)	James Garofalo
Municipality of Oliver Paipoonge (“Municipality”)	Jennifer Savini, Nima Chooback

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON SEPTEMBER 22, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) concerning an appeal against the Municipality’s decision to allow two Consent applications to sever and convey a 8.5 hectare (“ha”) parcel of land for waste disposal purposes. The first hearing of this matter was originally scheduled as a hearing on the merits, but it was converted into a CMC when it became apparent that the case could not proceed until some material facts were checked for errors.

Confirmation of factual errors and application amendment

2For ease of reference, the following constituted part of the decision of that CMC:

[9] As the hearing continued, counsel for the Appellant and the Municipality alerted the Tribunal of the potential fact that the Applications and COA Decision were premised on a fundamental factual error respecting the composition of the two originating parcels of land owned by the Applicant. None of the parties, including the Applicant, could confirm whether the parcels were two separate lots or had merged under common ownership.

[10] This fact is key because the first Application of this matter involves the transfer of 4 ha of land from one parcel to the other. If these parcels have already merged, such a transfer would be unnecessary and impossible to authorize by the Tribunal. As it relates to the second application, this fact matters because an analysis must consider the features of the retained lands as well as the severed lands, which will obviously be affected by which lands are included as part of the retained lands.

[11] In light of this potential issue, the Tribunal received submissions from the parties regarding how to proceed. Upon receipt of these submissions, the Tribunal found that the parties should individually determine whether or not the original parcels had merged and be prepared to make submissions to the Tribunal on this basis at the next hearing event. The Tribunal noted that, if it is found that a merger had not taken place, then the matter may continue according to the present applications. However, if it is found that the parcels have merged, then the application(s) before the tribunal should be amended accordingly.

[12] Relatedly, the Tribunal notes that s. 53(35) of the Planning Act (“Act”) provides the Tribunal with authority to consider an amended application(s). As a result, the potential contextual change described above is not necessarily fatal to the Tribunal’s consideration of the subject application(s). However, it will obviously be the responsibility of the Applicant to amend the application(s), if necessary.

[13] The Tribunal further notes that if the Applicant chooses to amend his application(s), it must be done with enough time before the next hearing event to have the Tribunal issue notice of the amendment and allow persons to request an opportunity to appear in accordance with s. 53(36) of the Act. If such an amendment is sought, the Tribunal does not find it to be “minor” as contemplated at s. 53(35.1) of the Act. For this reason, the Tribunal set a deadline of Monday, August 8, 2022, to amend the application(s), if the Applicant chooses to do so. [emphasis added]

3Notwithstanding the fact that the Tribunal directed the Applicant to amend its application if it is found that the two parcels had merged under common ownership, and set a deadline of August 8, 2022 to do so, the application was not amended as directed despite the Applicant’s finding that the two parcels had in fact merged, forming one single parcel.

4When the Tribunal asked why the application had not been amended, counsel for the Applicant contended that it was not necessary because they had withdrawn the first Consent application¹, leaving only the second application to be considered by the Tribunal.

5The Tribunal reviewed the contents of the remaining application with a focus on the relief sought, and finds that it still requires amending because, as stated in the decision of the first CMC, “an analysis must consider the features of the retained lands as well as the severed lands, which will obviously be affected by which lands are included as part of the retained lands”. Upon the Tribunal’s review of the remaining application, it is clear that it does not state the relief now being sought given that the retains lands are composed of a much larger parcel which also additionally includes an apparent water feature, frontage on Highway 588, and possibly other notable features.

6Following review of the original application and the property features set out therein, counsel for the Applicant acknowledged that the application requires an amendment to reflect the relief now being sought in light of the parcels merger. However, despite this acknowledgment, counsel remained steadfast that it is still not necessary to amend the subject application because, as he submitted, “the results will be the same”.

7The Municipality agreed with the Applicant, while the Appellant submitted that the remaining application (in its current form) contains fundamental factual errors which cannot be considered in the context of the relief being sought without at least an amendment, and further submitted that the Tribunal should consider ending the appeal by sending the entire matter back to the municipality for re-evaluation based on the correct facts.

8Upon considering the submissions of the parties, the Tribunal finds that the subject application requires an amendment to reflect the relief now being sought, which ought to include a revised scope and description of the proposed retained lands. The Tribunal further finds that the Applicant did in fact fail to follow the directions of the Tribunal by failing to amend the application by the set deadline.

9However, the Tribunal declines to sanction the applicant in the way proposed by the Appellant. Instead, the Tribunal set a new deadline of Friday, October 7, 2022 for the Applicant to serve and file a fresh revised application with an accurate description of of the size and shape of the originating parcel, severed and retained lands (which shall include an accurate sketch of the property and proposed severance), recognition of water features, road frontages, and any other property features specifically particularized on the municipality’s application form.

10If the Applicant fails again in amending its application as set out above, by the deadline, the Member presiding at the next hearing will determine the appropriate sanction(s) for repeatedly failing to follow the Tribunal’s directions.

Requests for Status

11The Tribunal received no requests for status.

MEDIATION AND SETTLEMENT

12The Tribunal once again explored the possibility of mediation and settlement with the parties. The parties confirmed that they have all recently engaged in settlement discussions and will continue to do so independently. The Tribunal requested that they confirm any potential resolution of the matter with the case coordinator, and they agreed to do so.

PROCEDURAL ORDER AND ISSUES LIST

13The Tribunal received a draft Procedural Order (“PO”) in advance of the present CMC. Upon review and following discussions with the parties, the parties jointly agreed to further scope the Issues List to a list of five issues, complete with references to the applicable provincial/municipal policy sections. The parties also agreed to tweak some of the dates contained in the PO to provide adequate time for resolution efforts.

14The Tribunal requested a revised PO and Issues List from the parties by Thursday, September 29, 2022. The parties agreed and provided same. The Tribunal finds it acceptable and the proceedings shall be governed by it (see Schedule 1).

ORDER

15The Tribunal Orders that:

a. The Applicant shall serve and file an amended Consent application by Friday, October 7, 2022, based on which this matter shall be adjudicated;

b. The Procedural Order appended as Schedule 1 shall govern the proceedings;

c. 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

ISSUE DATE: October 6, 2022 CASE NO(S).: OLT-22-002699

PROCEEDING COMMENCED UNDER (Specify: statute and provision under which proceeding was commenced):

Applicant(s): James Hacquoil Appellant(s): Jiska Westbroek Subject: Consent Property Address/Description: #5 Hwy 588, Oliver Paipoonge, ON (Concession 1 NKR, Part Lot 33) Municipality: Oliver Paipoonge/Thunder Bay Municipal File No.: 1B/24/21 OLT Case No.: OLT-22-002701 OLT Lead Case No.: OLT-22-002699 OLT Case Name: Westbroek v. Oliver Paipoonge (Township)

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 Tuesday, January 10, 2023 at 10 a.m. at:

https://global.gotomeeting.com/join/687587165

Access code: 687-587-165

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

Audio-only access code: 687-587-165

Access code: 687-587-165

3. The parties’ initial estimation for the length of the hearing is 2 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. A second Case Management Conference will be held on Thursday, September 22, 2022 at 10 a.m. at:

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

Access code: 765-631-861

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

Audio-only access code: 765-631-861

Access code: 765-631-861

5. The Parties are expected to make best efforts to scope, refine, eliminate or resolve as many issues as possible in advance of the hearing.

6. The parties and participants identified at the second case management conference were confirmed and set out in Attachment 1.

7. 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.

8. 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.

9. 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.

10. 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

11. 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 Wednesday, September 28, 2022 and in accordance with paragraph 24 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.

12. Expert witnesses in the same field shall have a meeting on or before Friday, October 21, 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 before Monday, October 31, 2022.

13. 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 15 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.

14. 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 15 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 16 below.

15. On or before Friday, November 11, 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 24 below.

16. On or before Friday, November 11, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, November 18, 2022 in accordance with paragraph 24 below.

18. On or before December 10, 2022 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

19. On or before Friday, December 16, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, December 16, 2022.

21. 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.

22. 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.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, December 16, 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.

24. 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.

25. 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

PARTIES AND PARTICIPANTS

Parties

1. Appellant – Jiska Westbroek
2. Applicant – James Hacquoil
3. Municipality - Municipality of Oliver Paipoonge

Participants

N/A

ATTACHMENT 2

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 these issues are appropriate or relevant to the determination of the Tribunal will be a matter of evidence and argument at the hearing.

1. Is the consent application consistent with the 2020 PPS? a. Section 1.0 – Building Strong Healthy Communities b. Section 1.1.1 (c)(d)(g) – Managing and Directing Land Use to Achieve Efficient and Resilient Development and Land Use Patterns c. Section 1.2.6.1 – Land Use Compatibility

2. Does the consent application conform to the Official Plan? a. Schedule A – Land Use Plan Municipality of Oliver Paipoonge b. Section 3.29 – Surface Water Protection c. Section 4.2 – Natural Resource d. Section 5.18.1 – 5.18.3 – Requirements for Pre-Consultation e. Section 5.19.2 – Subdivision of Land

3. Does the consent application have appropriate regard to the factors set out in subsections 2(a)(h)(m)(n)(o)(p) and 51(24) of the Planning Act?

4. Does the consent application comply with section 54(2) of the Planning Act, and if not, was is the effect of the non-compliance?

5. Does the consent application constitute good planning?

6. Given that one of the conditions of provisional consent as approved by the Municipality is that the subject property be rezoned from Heavy Industrial to Waste Disposal Industrial, to what extent should issues relating to the use of the land (i.e. zoning issues) be addressed at the hearing of the consent application?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Appellant
2. Municipality
3. Hacquoil
4. Appellant (Reply)

Attachment 4 to 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.

Footnotes

1. 1Note: the Tribunal confirmed that this application had been administratively withdrawn, thus ending the appeal of that particular application