Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
October 21, 2022
CASE NO.:
OLT-22-002462
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Intermarket Real Estate Group
Appellant:
Joseph & Laura Puopolo
Appellant:
White Water Holdings Inc.
Subject:
Proposed Official Plan Amendment No. OPA 128
Municipality:
Region of Waterloo Region
OLT Case No.:
OLT-22-002462
Legacy Case No.:
PL180728
OLT Lead Case No.:
OLT-22-002462
Legacy Lead Case No.:
PL180728
OLT Case Name:
Puopolo v. Waterloo (Region)
BEFORE:
WILLLIAM R. MIDDLETON
Friday, the 20th
MEMBER
day of October, 2022
THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on November 6, 2023.
“Euken Lui”
EUKEN LUI
ACTING 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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ATTACHMENT “A”
ISSUE DATE: CASE NO(S).:
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c.P.13, as amended
Appellant: Intermarket Real Estate Group
Appellant: Joseph & Laura Puopolo
Appellant: White Water Holdings Inc.
Subject: Proposed Official Plan Amendment No. OPA 128
Municipality: Region of Waterloo Region
OLT Case No.: OLT-22-002462
Legacy Case No.: PL180728
OLT Lead Case No.: OLT-22-002462
Legacy Lead Case No.: PL180728
OLT Case Name: Puopolo v. Waterloo (Region)
- 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 will begin on November 6, 2023 at 10:00 a.m. using the following electronic meeting platform:
Link: https://meet.goto.com/660145013
Access Code: 660-145-013
You can also dial in using your phone.
Canada (Toll Free): 1 888 299 1889
Canada: +1 (647) 497-9373
The parties’ initial estimation for the length of the hearing is 25 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 parties and participants identified at the case management conference are set out in Attachment 1 (see definition of terms attached).
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.
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.
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 120 days before the start of the hearing, being Friday, July 7, 2023 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.
Expert witnesses in the same field shall have a meeting on or before 90 days before the start of the hearing, being Tuesday, August 8, 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 75 days before the start of the hearing, being Wednesday, August 23, 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 12 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 12 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 12 below.
On or before 60 days before the start of the hearing, being Thursday, September 7, 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 21 below.
On or before 60 days before the start of the hearing, being Thursday, September 7, 2023, 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.
On or before 35 days before the start of the hearing, being Monday, October 2, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before 20 days before the start of the hearing, being Tuesday, October 17, 2023, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within 30 days after the evidence is received and in accordance with paragraph 21 below, being Friday, October 6, 2023.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before 10 days before the start of the hearing, being Friday, October 27, 2023.
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, being Monday, October 30, 2023, 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 7 days before the start of the hearing, being Monday, October 30, 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 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.
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
OLT-22-002462
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.
OLT-22-002462
ATTACHMENT 1
PARTIES AND PARTICIPANTS
Party
Contact Information
Regional Municipality of Waterloo (Municipality)
Duxbury Law Professional Corporation 500 – 1 King Street West Hamilton, ON L8P 1A4 Brian Duxbury brian@duxburylaw.ca 905-570-1242 The Regional Municipality of Waterloo 150 Frederick Street, 8th Floor Kitchener, ON N2G 4J3 Fiona McCrea fmccrea@regionofwaterloo.ca 519-575-4518
Intermarket Real Estate Group
Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 Jennifer Meader jmeader@tmalaw.ca 905-529-3476
City of Cambridge City of Cambridge
Kraemer LLP 50 Queen Street North, Suite 904 Kitchener, ON N2H 6P4 Patrick Kraemer patrick@kraemerllp.com 519-954-1965 City of Cambridge Nicole Auty, Assistant City Solicitor Legal Services Division autyn@cambridge.ca P: 519-740-4683 Ext. 4210
John, Don, Douglas, James, Edward, Larry and Connie Hammer, Cathy Murphy and Veronica Kerr (“Hammer Family”)
Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, ON M5V 3C1 Kyle Gossen kyleg@davieshowe.com 416-263-4519
Hildegard Annie Shiry, Brian Harold Shiry, Pauline Victoria Shiry and Helen Elizabeth Shiry (“Shiry Family”)
Gowling WLG (Canada) LLP 345 King Street West, Suite #600 Kitchener, ON N2G 0C5 David Sunday david.sunday@gowlingwlg.com 519-575-7513
Joseph and Laura Puopolo
Miller Thomson LLP 295 Hagey Blvd., Suite 300 Waterloo, ON N2L 6R5 Steven O’Melia somelia@millerthomson.ca 519-593-3289
Michael and Kim Pollock
SmithValeriote Law Firm LLP 100-105 Silvercreek Pkwy N., Guelph, ON N1H 6S4 Kevin Thompson kthompson@svlaw.ca 519-821-4146
ATTACHMENT 2
ISSUES LIST
Intermarket Real Estate Group
Note: The identification of an issue on this Issues List does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the appeal. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.
Does ROPA 2 conform to policies of the Growth Plan for the Greater Golden Horseshoe, 2006 (Growth Plan) that direct where and how municipalities are to grow, and in particular, policies 2.2.2.1, 2.2.6.2, 2.2.7, and 3.2.1.1?
Is ROPA 2 consistent with the Provincial Policy Statement, 2020 (PPS), and in particular, policies 1.1.1, 1.1.3 (preamble), 1.1.3.6, 1.3.2.1, 1.3.2.2, 1.3.2.3, 1.3.2.6, 1.3.2.7, 1.4.1, 1.4.2, 1.6.1, 1.6.3, 1.6.6.1, 2.3.1, 2.3.2, 2.5.1, 2.5.2, 2.6.1, and 3.1.1?
Are the evaluation criteria that were used to select the land use designations, listed in Issue 4 below, appropriate?
Were there any errors or omissions, or differential treatment given to Intermarket’s properties versus others, based on a consideration of the appropriate reports and analyses carried out by or under the direction of the Region and the City, specifically in regard to the following evaluation criteria:
a. Avoid and minimize impacts to natural features and hazards;
b. Maximize development opportunities;
c. Compact development form;
d. Mix of uses;
e. Ensure land use compatibility;
f. Achieve minimum density;
g. Conserve heritage resources;
h. Minimize impacts to existing community, businesses and agricultural operations;
i. Capitalize on existing planned infrastructure;
j. Efficient servicing;
k. Support active transportation;
l. Support transit; and
m. Provide efficient and safe road network.
Does ROPA 2 conform with Region of Waterloo Official Plan policy, and in particular, policies 2.D.21, 2.D.22, and 2.D.23?
What deference should be given to Regional Council’s decision to adopt ROPA 2?
Does ROPA 2, as adopted by Council, represent a good land use planning outcome?
Note: The above issues relate to the lands owned by Intermarket and all lands included within the Urban Area Boundary proposed through ROPA 2, that remain under appeal.
ATTACHMENT 3
ORDER OF EVIDENCE
Intermarket Real Estate Group
The Regional Municipality of Waterloo
Shiry Family
Hammer Family
Michael and Kim Pollock
Reply evidence of Intermarket Real Estate Group