Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 25, 2023
CASE NO(S).: OLT-23-000552
PROCEEDING COMMENCED UNDER sections 57 and 58 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Claimant: Joseph Maxwell Chapman
Respondent: The Corporation of the Town of Northeastern Manitoulin and The Islands
Subject: Municipal Sewage Works
Property Address/ Description: Part 4, Plan 31R-2896, Part of Lot 5, Concession 10
Municipality: The Corporation of the Town of Northeastern Manitoulin and The Islands
OLT Case No.: OLT-23-000552
Legacy Case No.: LC180002
OLT Lead Case No.: OLT-23-000552
Legacy Lead Case No.: LC180002
OLT Case Name: Chapman v. Northeastern Manitoulin and the Islands (Town)
Heard: September 1, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Joseph Maxwell Chapman (“Claimant”) | Joseph Maxwell Chapman |
| The Corporation of the Town of Northeastern Manitoulin and the Islands (“Town”) | Paul Courey |
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON ON SEPTEMBER 1, 2023 AND ORDER OF THE TRIBUNAL
1This was the first Case Management Conference ("CMC”) held in this matter which originally was commenced in 2018 by a Notice of Arbitration originally filed with the Tribunal’s predecessor, the Ontario Municipal Board, which was later succeeded by the Local Planning Appeal Tribunal (“LPAT”).
2In a Decision dated April 17, 2020, the LPAT dismissed the Notice of Arbitration. However, on appeal the Divisional Court of the Ontario Superior Court ruled on April 14, 2021, that the LPAT dismissal must be set aside. In light of that ruling, the Claimant has brought this matter forward for a CMC to deal with the next steps in this proceeding.
3In this proceeding the Claimant seeks compensation for damages for injurious affection to his property as a result of the construction of sewage works immediately beside and encroaching upon his real property described as Part 4, Plan 31 R-2896, Part of Lot 5, Concession 10, in the Town of Northeastern Manitoulin and the Islands. The claims involve provisions of both the Ontario Water Resources Act, R.S.O. 1990, c. O.40 and the Expropriations Act, R.S.O. 1990, c. E26.
4At the CMC, the Tribunal discussed with counsel for both Parties the fact that the original pleadings are rather outdated, given the changes which have occurred since 2018 when this action was first commenced. Given that the pleadings will frame the issues for documentary and oral discovery and the eventual hearing of this matter, the Tribunal urged the Parties to deliver fresh pleadings, and the Parties agreed. The Procedural Order (“PO”) will reflect the deadlines for this step and others leading up to the hearing date, described in paragraph [5] below.
5In terms of the scheduling of the hearing, the Parties agreed that it will require six days. The Tribunal has therefore scheduled the hearing to commence on September 3, 2024, at 10 a.m. for a period of 6 days ending September 11, 2024 – the Tribunal will not sit on September 9, 2024.
6Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/719383509
Access code: 719-383-509
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: 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: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is 719-383-509.
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.
10Subsequent to the CMC, the Parties submitted a PO in final form which the Tribunal shall issue as part of its Orders.
ORDER
11THE TRIBUNAL ORDERS THAT:
(a) the hearing of this proceeding shall commence on September 3, 2024, as is set out in paragraphs 5-9 above; and
(b) the Procedural Order appended as Attachment A to this Decision shall govern the conduct of this proceeding.
12This Vice Chair shall remain available to assist with the ongoing case management of this matter, subject to the Tribunal’s calendar.
“William Middleton”
WILLIAM MIDDLETON
VICE CHAIR
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.
Attachment A
CASE NO(S).: OLT-23-000552
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
PROCEDURAL ORDER
- 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 September 03, 2024
The parties’ initial estimation for the length of the hearing is six (6) days, being September 03, 04, 05, 06, 10, 11. Notwithstanding the initial estimation for the length of the hearing 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. In the event the parties agree that scheduled hearing days may be released from the Tribunal’s calendar they are to advise the Tribunal immediately
The issues are as set out in the pleadings, being the Statement of Claim and the Reply, both to be delivered to the Tribunal by November 30, 2023. There will be no amendments to the pleadings except as permitted by the Tribunal on a motion brought by one or both of the Parties.
The hearing plan shall be provided on July 26, 2024, subject to paragraph [23] below. 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
Affidavit of Documents (together with production briefs of the documents) shall be exchanged by November 17, 2023.
Discoveries shall be completed on or before March 31, 2024.
Undertaking answers shall be provided on or before May 15, 2024.
Any motion(s) arising out of the Examinations for Discovery shall be filed in writing only by February 29, 2024, subject to the Tribunal’s discretion to schedule an oral hearing on a date and time to be determined by the Tribunal. The Tribunal’s Rules of Practice and Procedure apply in relation to any Motion(s) arising out of the discovery process.
Parties 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 July 26, 2024 and in accordance with paragraph 25 below.
An expert witness shall prepare an expert report/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 17 below. 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 17 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 17 below.
On or before June 30 2024, the parties shall provide copies of their expert witness reports and non-expert/lay witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 25 below.
On or before July, 26, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 25 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 coordinator a written reply to any written evidence on or before August 27, 2024. after the evidence is received and in accordance with paragraph 25 below.
Expert witnesses in the same field shall have a meeting on or before July 26, 2024 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 August 27, 2024.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 26, 2024.
Any documents which may be used by a party in cross examination of an opposing party’s witness shall only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before August 27, 2024 or in advance of the start of the cross-examination of any witness at 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.
In the event that a party seeks to exclude all or part of any expert report, witness statement or other written evidence, wherever possible a motion should be brought at least 60 (sixty) days prior to the hearing date. The Tribunal may decline to consider such a motion at the hearing if it is apparent that it could have been brought prior to the hearing.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 26, 2024 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.
On or before July 26, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
The parties are to update or confirm the hearing plan by August 27, 2024, if and as required.
All filings shall be submitted electronically and, when directed, 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.