Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 25, 2023
CASE NO(S).: OLT-23-000055
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Steven Smith
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To facilitate the development of 9 lot subdivision
Reference Number: 09-T-17003
Property Address: Part of Lot 20 Concession 4
Municipality/Approval Authority: County of Lanark
OLT Case No.: OLT-23-000055
OLT Lead Case No.: OLT-23-000055
OLT Case Name: Smith v. Lanark (County)
Heard: September 14, 2023
APPEARANCES:
Parties
Counsel
Steven Smith (the “Appellant”)
K. Ross
County of Lanark Township of Beckwith
G. Meeds G. Meeds
MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON SEPTEMBER 14, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This first Case Management Conference (“CMC”) was held to prepare for a hearing on the merits of the Appellant’s appeal to the Tribunal of the failure of the County of Lanark to make a decision with respect to the Appellant’s application for Draft Plan of Subdivision Approval within the respective prescribed statutory timeline (the “Appeal”) to permit the creation of a 9 Lot Plan of Subdivision on the lands legally described as Part of Lot 20, Concession 4 in the Township of Beckwith, County of Lanark (the “Subject Property”).
2The Tribunal entered into evidence, as Exhibit 1 in these proceedings, the Affidavit of Service of Lisa Zanyk sworn on August 24, 2023, and is satisfied that this Affidavit evidences proper notice such that no further notice is required in these proceedings.
PARTY AND PARTICIPANT STATUS REQUESTS
3The Tribunal received no requests for Party or Participant status proceedings in these proceedings.
SETTLEMENT OPPORTUNITIES
4The Parties indicated a willingness to consider opportunities for settlement discussions, including through Tribunal-facilitated mediation, and were advised to contact the Tribunal’s case co-ordinator for this matter in the event that the Parties wish to pursue a request for Tribunal-facilitated mediation. The Parties were encouraged to avail themselves of settlement discussion opportunities in an effort to narrow or resolve some or all of the issues of the Appeal.
PROCEDURAL ORDER AND HEARING DATES
5The Parties submitted that seven to eight hearing days will be required for a hearing on the merits of the Appeal. The Parties estimate that approximately seven witnesses, including two lay witnesses and five expert witnesses in the subject matter of land use planning, biology, hydrology and transportation will be required in the event that all issues of the Appeal are adjudicated. The Tribunal is satisfied that seven hearing days will suffice in this regard.
6A draft Procedural Order (‘PO”) including Issues List (“IL”) was submitted to the Tribunal for its consideration prior to the commencement of the CMC. The Parties were directed to co-operate on revising the draft PO to reflect the hearing dates provided at the CMC as well as some minor edits to the IL and submit same to the Tribunal through the Case Coordinator on or before September 29, 2023. Upon the Parties so doing, the Tribunal reviewed same and the PO attached as Schedule “A” to this Order is approved. In this regard, it is noted that paragraph 3 has been revised to reflect direction that 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.
7A hearing of the Appeal is scheduled to take place by video commencing on Tuesday April 9, 2024, at 10 a.m. to Wednesday April 17, 2024.
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/914098901
Access Code: 914-098-901
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 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
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 CMC 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.
ORDER
12The Tribunal orders as follows:
a. A hearing of the Appeal is scheduled to take place commencing Tuesday April 9, 2024 at 10 a.m. by video and continue for seven days including and concluding on Wednesday April 17, 2024.
b. The Procedural Order attached as Schedule “A” to this Order is approved.
c. The Tribunal so orders and provides these Case Management Conference directives for the purposes of the case management of the Appeal.
d. The Member is not seized in this matter but will remain available for continued case management to the extent that the Tribunal calendar permits.
e. No further notice of these proceedings is required or will be given.
“D. Arnold”
D.ARNOLD
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.
SCHEDULE “A” – PROCEDURAL ORDER FOR OLT-23-000055
CASE NO(S).: OLT-23-000055
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Steven Smith
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To facilitate the development of 9 lot subdivision
Reference Number: 09-T-17003
Property Address: Part of Lot 20 Concession 4
Municipality/Approval Authority: County of Lanark
OLT Case No.: OLT-23-000055
OLT Lead Case No.: OLT-23-000055
OLT Case Name: Smith v. Beckwith (Township)
- 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 April 9, 2024 at 10:00 a.m.
The hearing has been set down for 7 days and will end on April 17, 2024. The hearing will commence at 10:00 am each day, unless varied by the Tribunal. 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.
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. Notwithstanding the foregoing, the Issues List may be amended on the consent of the parties to remove Issues that are resolved or no longer relevant.
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.
The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.
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.
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 January 10, 2024 (at least 90 days prior to the start of the hearing) 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.
Expert witnesses in the same field shall have a meeting on or before January 25, 2024 (at least 75 days prior to the start of 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 before February 9, 2024 (at least 60 days prior to the start of the hearing).
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 February 26, 2024 (at least 45 days prior to the start of the hearing), 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 February 26, 2024 (at least 45 days prior to the start of the hearing), a participant shall provide copies of their written participant statement to the other parties 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.
On or before March 5, 2024 (at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before March 20, 2024 (at least 20 days prior to the start of the hearing), 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 1, 2024 (at least 10 days prior to the start of the hearing).
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 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 April 1, 2024 (at least 10 days prior to the start of the hearing) 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.
A summary of the various procedural dates is contained in Attachment 5.
This Member is [not] seized.
So orders the Tribunal.
ATTACHMENT 1
LIST OF PARTIES / PARTICIPANTS
Parties
Steven Smith
Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9
Kristi Ross Tel: 416.865-4444 Email: kross@airdberlis.com
Lanark County / Township of Beckwith
Vice & Hunter LLP 85 Plymouth Street Suite 101 Ottawa, ON K1S 3E2
Greg Meeds Tel: 613-232-5773 ext. 237 Email: dgmeeds@viceandhunter.ca
ATTACHMENT 2
ISSUES LIST
NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a Party indicates that Party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other Parties the case they need to meet. No Party shall make submissions or tender evidence on an issue not identified on the Issues List without leave of the Tribunal.
A. Joint Issues of the Parties
Planning Issues:
Does the Application meet the Criteria is ss. 51(24) of the Planning Act?
Do the Planning Act and the Provincial Interest support the granting of Plan of Subdivision Approval?
Is the Application consistent with the Provincial Policy Statement, 2020 (and 2023 if this version of the PPS is in force and effect when this matter is heard by the Tribunal)?
a. The application of the “consistency with” test will consider, but not be limited to the following policies of the PPS, 2020:
i. The Preamble; ii. Policy 1.0; iii. Policy 1.1.1 (a), (b), c), and (h) iv. Policy 1.1.2; v. Policy 1.1.5; vi. Policy 1.1.5.1; vii. Policy 1.1.5.2; viii. Policy 1.1.5.5 ; ix. Section 1.4 ; x. Policy 1.4.3 c); xi. Policy 1.6.6 ; xii. Policy 1.6.7.2; xiii. Section 2, including sections 2.2 and 2.6; and xiv. Section 3.
Does the Application conform to the policies, purpose and intent of the County of Lanark Official Plan?
Does the Application conform to the policies, purpose and intent of the Township Official Plan (the “Official Plan”)?
a. The application of the conformity test will consider, but not be limited to the following policies of the Township of Beckwith Official Plan:
i. Policy 4.5.1 (vii); ii. Policy 4.5.2(i); and iii. Policy 4.5.3(i).
Does the application conform to the Township of Beckwith’s Official Plan policies regarding direct access to a County Road, specifically the policies listed in issue 5?
Does the Application constitute good planning?
How does the Application conform to the purpose and intent of recent provincial legislation, including Bill 109 and Bill 23, to build more homes?
Does the Application conform to the applicable zoning by-laws?
In the event that the Tribunal approves the proposed draft plan of subdivision, what are the appropriate conditions of draft approval?
Natural Heritage Issues
How does the Application and 9-lot proposal avoid impacts to the natural heritage features on site?
How does the Application comply with the applicable natural heritage policies in the Provincial Policy Statement?
How does the Application comply with applicable natural heritage policies in the applicable Official Plans?
Hydrology Issues
How does the Application and 9-lot proposal avoid impacts to the hydrology features on site?
How does the Application comply with the applicable policies of the Provincial Policy Statement with respect to hydrology and hydrological features?
How does the Application comply with applicable hydrology policies in the applicable Official Plans?
Transportation Issues
Will ingress and egress from the subdivision from a County Road result in any adverse impacts?
Does ingress and egress to and from the subdivision from a County Road conform to the principles of good planning?
ATTACHMENT 3
ORDER OF EVIDENCE
Appellant, Steven Smith
County of Lanark
Right of Reply of Appellant, if necessary
*The order of evidence may change as issues are narrowed, in order to ensure an efficient hearing.
ATTACHMENT 4
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.
ATTACHMENT 5
SUMMARY OF DATES
DATE
EVENT
January 10, 2024 (90 days prior to hearing)
Exchange of witness lists (names, disciplines and order to be called)
January 25, 2024 (75 days prior to hearing)
Experts meeting prior to this date, if such meeting occurs
February 9, 2024 (60 days prior to hearing)
Agreed Statement of Facts, if meeting occurs and matters agreed to
February 26, 2024 (45 days prior to hearing)
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
March 7, 2024 (ten (10) days after the evidence is received)
Exchange of written response to written evidence (if any)
March 5, 2024 (35 days prior to hearing)
Parties shall confirm with the Tribunal if all the reserved hearing dates are still required
March 20, 2024 (20 days prior to hearing)
Exchange of visual evidence (if any)
April 1, 2024 (10 days prior to hearing)
Final Work Plan filed with the Tribunal
April 1, 2024 (10 days prior to hearing)
Finalize Joint Document Book
April 9, 2024
Hearing commences
54231155.2
54402219.1