Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 4, 2022 CASE NO(S).: OLT-22-002300 (Formerly PL200556)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1186675 Ontario Ltd. Appellant: Daniel Aquino Appellant: Bushland Heights Limited Appellant: Jessica Ferri; and others Subject: Township of King (Our King) Official Plan, 2019 Municipality: Township of King OLT Case No.: OLT-22-002300 Legacy Case No.: PL200556 OLT Lead Case No.: OLT-22-002300 Legacy Lead Case No.: PL200556 OLT Case Name: Aquino v. King (Township)
Heard: September 6, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Regional Municipality of York ("Region") | P. Patterson, L. English |
| Township of King ("Township") | T. Halinski, J. Fraser |
| Flato Development Inc. and Wyview Group ("Flato/Wyview") | K. Sliwa |
| Yellow Horizon Homes Ltd. ("Yellow Horizon") | N. Ast |
| 11866575 Ontario Ltd. ("118") | S. Ferri, M. Ng |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. TOUSAW ON SEPTEMBER 6, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Case Management Conference ("CMC") was convened to further address the few remaining appeals to the Region's approval of the Township's Official Plan ("TOP").
2This Decision: confirms the Tribunal's oral Order on 118's appeal; schedules a hearing for Flato/Wyview; and schedules a further CMC for Yellow Horizon, at which a settlement may be heard if reached. Apart from Flato/Wyview and Yellow Horizon, no further appeals remain to the TOP.
Nobleton 2715 Development Limited ("Nobleton")
3Nobleton has withdrawn its appeal, having recently received Township approval to its site-specific development applications.
Flato/Wyview
4The Parties requested the scheduling of a 10-day hearing in the fall of 2023, subject to the Procedural Order ("PO") now received by the Tribunal and approved as contained in Attachment 1 of this Decision.
5The 10-day hearing is scheduled to commence on Monday, September 18, 2023 at 10 a.m. by video hearing. No further Notice will be given.
GoTo Meeting: https://global.gotomeeting.com/join/519389173
Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889
Access code: 519-389-173
6Parties 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:
7Parties 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 at: https://app.gotomeeting.com/home.html
8Persons 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 provided above.
9Individuals 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.
Yellow Horizon
10The Parties requested a further CMC in the spring of 2023 to enable the Township's consideration of site-specific applications which may lead to a settlement of this appeal.
11The CMC is scheduled on Monday, May 1, 2023 at 10 a.m. by video hearing. No further Notice will be given.
GoTo Meeting: https://global.gotomeeting.com/join/692665589
Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889
Access code: 692-665-589
12See para. [6] through [9] for general instructions.
118's Settlement
13The Region, Township and 118 addressed their settlement pertaining to 118's appeal, as supported by the oral and written evidence of Kristen Harrison, Registered Professional Planner whom the Tribunal has qualified previously to provide opinion evidence in these proceedings (Affidavit marked as Exhibit 1).
14118 operates an aggregates storage and distribution yard at the hamlet of Snowball. Two Hamlet Site-Specific Policy Areas ("Policy Area") have been developed to address concerns for future use and compatibility. Policy Area 2 affects 118's lands within Snowball to permit the existing aggregates yard and address requirements for its possible future residential use. Policy Area 3 applies to all lands within 300 metres of Policy Area 2 to ensure that sensitive uses, including residential, address compatibility through related development applications.
15On the uncontested evidence of Ms. Harrison, and its alliance with the Region's recent Decision explained below, the Tribunal finds that the proposed modifications to the TOP satisfy all legislative requirements under the Planning Act: have suitable regard for provincial interests; are consistent with the Provincial Policy Statement, 2020; conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, the Oak Ridges Moraine Conservation Plan, and the Lake Simcoe Protection Plan; conform with the Region Official Plan; and integrate suitably with the structure and content of the TOP.
16In the Region's original approval of the TOP, it deferred 118's property ("deferral 3") resulting in this site not being before the Tribunal. 118, however, did appeal general policies of the TOP of relevance to planning in the area of the site. Upon settlement, the Region proceeded to modify and approve the TOP applicable to this site, for which no appeals were lodged. Thus, today, the TOP contains Policy Area 2. The approval of this settlement will bring Policy Area 3 into effect, and also includes Policy Area 2 at the request of the Parties for clarity and completeness. While the Tribunal agrees that Policy Area 2 is already in effect, it will include it in the requested Order such that the policies of the TOP that were modified to address 118's appeal are contained in a single approval document.
ORDER
17The Tribunal Orders the directions noted above for a CMC and a Hearing, including approval of the PO as contained in Attachment 1.
18The Tribunal Orders, in accordance with s. 17(50) of the Planning Act, that:
a. The appeal by 1186675 Ontario Ltd. ("118") to the Township of King Official Plan ("TOP") is allowed in part;
b. The TOP is modified, and approved as modified, in the form attached as Attachment 2;
c. In all other respects, the appeal of 118 is dismissed; and
d. The municipal clerk may reformat and renumber the contents of Attachment 1 as necessary for record-keeping purposes.
19This Order and the resultant approval of portions of the TOP are without prejudice to the disposition of the appeals by Flato Developments Inc., Wyview Group, and Yellow Horizon Homes Ltd. of the TOP ("Phase Two Appeals"), and any unapproved portions of the TOP, including but not limited to positions taken by the parties to the Phase Two Appeals, such that if the Phase Two Appeals proceed to a subsequent hearing or motion, either on their own or as may be consolidated with other site-specific appeals, no party shall be permitted to take the position that the Tribunal ought not to approve site-specific or area-specific modifications to the affected policies, schedules, maps, figures, definitions, tables and associated text of the TOP on the mere basis that they deviate from or are inconsistent with such policies, schedules, maps, figures, definitions, tables and associated text on a Township-wide basis (or as approved in respect of other lands which are subject to the same policies, schedules, maps, figures, definitions, tables and associated text). However, this does not affect the Township's right to assert that the approved policies, schedules, maps, figures, definitions, tables, and associated text should be applied to the specific sites or areas without modification on the basis that doing so is consistent with the Planning Act, provincial policies, conform to provincial plans and/or constitutes good planning.
20The Tribunal retains jurisdiction to consider and approve modifications to any policies, schedules, maps, figures, definitions, tables and associated text approved herein, as may be appropriate to dispose of the Phase Two Appeals.
21This Member is not seized but may be available through the Case Coordinator for case management purposes.
"S. Tousaw"
S. TOUSAW MEMBER
Ontario Land Tribunal Website: www.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.
Ontario Land Tribunals 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll free: 1-866-448-2248 Website: olt.gov.on.ca
Tribunal ontarien de l’aménagement du territoire 655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca
CASE NO. OLT-22-002300 / Legacy Case No. PL200556
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1186675 Ontario Ltd. Appellant: Daniel Aquino Appellant: Bushland Heights Limited Appellant: Jessica Ferri; and others Subject: Township of King (Our King) Official Plan, 2019 Municipality: Township of King OLT Case No.: PL200556 OLT File: No.: PL200556 OLT Case Name: Aquino v. King (Township)
PROCEDURAL ORDER FOR VIDEO HEARING (PHASE 2)
- 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
- The video hearing for Phase 2 will begin on September 18, 2023 at 10:00 a.m., at the following link:
https://global.gotomeeting.com/join/519389173
The parties' initial estimation for the length of the hearing is 10 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 procedural order deadlines are found in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2.
The issues 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. An issue can be removed from the issues list without a formal order of the Tribunal with the consent of all Parties.
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 intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible. Any such 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.
Requirements Before the Hearing
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 Friday, June 9, 2023 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, the witness' Acknowledgement of Expert's Duty Form, 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 Friday, June 30, 2023 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 Friday, July 7, 2023.
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.
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.
On or before Friday, July 28, 2023, 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.
On or before Friday, July 28, 2023, a participant shall provide copies of their written participant statement to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by no later than Monday, August 28, 2023 after the evidence is received and in accordance with paragraph 22 below.
On or before Friday, August 11, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Tuesday, September 5, 2023, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, September 8, 2023.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal, in accordance with Rule 10 of the Tribunal's Rules, 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 preliminary hearing plan with the Tribunal on or before Monday, September 11, 2023 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.
All filings shall be submitted electronically and, where feasible, 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 Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal's Video Hearing Guide, dated July 2, 2020, or as may be amended.
Any documents which may be used by a party in cross-examination of an opposing party's witness are encouraged to be uploaded to the Tribunal's file share server, pursuant to the directions provided by the OLT case co-ordinator or as may otherwise be directed, on or before the start of the hearing. Each document shall be password protected and only be accessible to the Tribunal and the other Parties if it is introduced as evidence at the hearing. This paragraph does not prevent parties from filing materials for cross-examination after this date to the Tribunal for use at the hearing, but any cross-examination materials filed after this date must be filed with the OLT case co-ordinator before 9:00 am on the day the material will be used.
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.
The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.
This Member is not seized.
So orders the Tribunal.
Attachment 1
Summary of Dates
| DATE | EVENT |
|---|---|
| Friday, June 9, 2023 | Exchange of witness lists (names, disciplines and order to be called) |
| Friday, June 30, 2023 | Meeting of Like-Discipline Experts by this date |
| Friday, July 7, 2023 | Statement of Agreed Facts and Issues |
| Friday, July 28, 2023 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| Friday, August 11, 2023 | Confirm reserved hearing dates are still required |
| Monday, August 28, 2023 | Exchange of Reply Witness Statements (if any) |
| Tuesday, September 5, 2023 | Exchange of Visual Evidence (if any) |
| Friday, September 8, 2023 | Finalize Joint Document Book |
| Monday, September 11, 2023 | Hearing Plan filed with the Tribunal |
| Monday, September 18, 2023 | Hearing commences |
Attachment 2
List of Parties and Participants
Parties:
Township of King Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9 Tom Halinski Tel: 416.865.7767 Email: thalinski@airdberlis.com Jasmine C. M. Fraser Tel: 647.426.2316 Email: jcmfraser@airdberlis.com
Regional Municipality of York Borden Ladner Gervais LLP Barristers and Solicitors Bay Adelaide Centre, East Tower 22 Adelaide St W Toronto, ON M5H 4E3 Pitman Patterson Tel: 416.367.6109 Email: ppatterson@blg.com Lee English Tel: 416.367.6169 Email: lenglish@blg.com
Flato Developments Inc. and Wyview Group Dentons Canada LLP 77 King Street West, Suite 400 Toronto-Dominion Centre Toronto, ON M5K 0A1 Katarzyna Sliwa Tel: 416.520.5274 Email: kat.sliwa@dentons.com Diana Betlej Tel: 437.288.3947 Email: diana.betlej@dentons.com
Yellow Horizon Homes Ltd. Overland LLP Yonge Norton Centre 5255 Yonge Street, Suite 1101 Toronto, ON M2N 6P4 Natalie Ast Tel: 416.730.0387 E-Mail: nast@overlandllp.ca
Participants:
None
Attachment 3
Issues List
NOTES: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT at the hearing will be a matter of evidence and argument at the hearing.
The identification of an issue on this list by a party indicates that party's intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet and shall not be construed as the Tribunal having jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.
Where an appeal has been scoped to specific lands, policies or schedules (or parts thereof) of the Official Plan, the issues listed under that appellant's name are deemed to refer to only those lands, policies or schedules (or parts thereof).
Where an issue refers to a provision from the PPS or the Growth Plan or either of the Official Plans, in addressing the issue the planning document from which the provision is taken should be read in its entirety with all relevant provisions being considered. For greater certainty, the identification of a specific provision in an issue by an appellant does not preclude the other parties from referring to other provisions from the same planning document in addressing that issue.
On Schedule D2 of the Official Plan (Village of Nobleton Land Use Designations) would a Nobleton Village Reserve designation on all or a portion of the lands municipally known as 12650 Highway 27 or 13235 10th Concession, be consistent with the Provincial Policy Statement, conform to the Growth Plan for the Greater Golden Horseshoe, and constitute good planning?
Is the Nobleton Village Reserve designation on all or a portion of the lands municipally known as 12650 Highway 27 or 13235 10th Concession more appropriate than the Rural designation?
Are the Settlement Area Boundary Expansion policies of Section 2.3.5, the Village policies of Section 5.2 and the Nobleton Village Reserve policies of 5.16 appropriate for the lands municipally known as 12650 Highway 27 or 13235 10th Concession which are located within the Nobleton Towns and Villages designation of the Greenbelt Plan and Region of York Official Plan?
Is it appropriate to consider a 'future urban area' designation or similar for the lands proposed to be designated Nobleton Village Reserve?
Is it appropriate to include policies in the Official Plan which specifically outline that the lands proposed to be designated Nobleton Village Reserve may be considered for urban uses/expansion as part of the Region of York Municipal Comprehensive Review process for the horizon years of 2041 or 2051.
Is it appropriate to allow for an official plan amendment - during the two year moratorium period - for lands within the proposed Nobleton Village Reserve designation, for urban uses which may be consistent with Provincial, Regional and Local policies?
Attachment 4
Order of Evidence
- Township of King
- Region of York
- Flato Developments and Wyview Group
- Reply by Township of King (if any)
Attachment 5
Purpose of the Procedural Order and Meaning of Terms
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 authorization 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, must ask the Tribunal to permit this.
Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal's Rules of Practice and Procedure.
NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as parties can.
Written and Visual Evidence:
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party 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 intends to present as evidence at the hearing.
Witness Statements:
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 the witness 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 the expert's (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 will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.
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.
50264554.1
ATTACHMENT 2