Southwest Georgetown Landowners Group Inc. v. Halton Hills (Town), 2023 CanLII 12228

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

February 15, 2023

CASE NO(S).:

OLT-22-001949

(Formerly PL200159)

OLT-22-001967

(Formerly PL200484)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellants:

Southwest Georgetown Landowners Group Inc., Georgetown Country Properties Ltd.

Applicant and Appellants:

Lormel Developments (Georgetown) Ltd., Lormel Developments (Eighth Line) Ltd., and Ozner Corporation

Applicant and Appellants:

Mattamy (Halton Hills) Ltd. (formerly 2108393 Ontario Ltd., 2108394 Ontario Ltd., and Barrhaven Place Inc.)

Applicant and Appellants:

Neamsby Investments Inc

Applicant and Appellants:

Shelson Properties Ltd. and Coryville Construction Ltd.

Subject:

Request to amend the Official Plan - Failure of the Town of Halton Hills to adopt the requested amendment

Existing Designation:

Future Residential/Mixed Use

Proposed Designated:

Residential/Mixed Use

Purpose:

To permit the development of the lands for a new community comprised of residential, commercial, institutional, parks, and open space uses.

Property Address/Description:

All lands subject to OPA

Municipality:

Town of Halton Hills

Approval Authority File No.:

D09OPA17.003

OLT Case No.:

OLT-22-001949

Legacy Case No.:

PL200159

OLT Case Name:

Southwest Georgetown Landowners Group Inc. v. Halton Hills (Town)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Southwest Georgetown Landowners Group Inc.

Appellant:

Georgetown Country Properties Ltd.

Appellant:

Lormel Developments (Georgetown) Ltd. et al

Appellant:

Mattamy (Halton Hills) Ltd

Appellant:

Neamsby Investments Inc

Appellant:

Shelson Properties Ltd. and Coryville Construction Ltd.

Subject:

Proposed Official Plan Amendment No. OPA 32

Municipality:

Town of Halton Hills

OLT Case No.:

OLT-22-001967

Legacy Case No.:

PL200484

OLT Case Name:

Southwest Georgetown Landowners Group Inc. v. Halton (Region)

PROCEEDING COMMENCED UNDER subsections 12(2) and 13(1)(d) and of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, and the Tribunal’s Rules of Practice and Procedure

Request by:

Mattamy (Halton Hills) Ltd.

Request for:

Request for Directions

Heard:

January 31, 2023 by video hearing and February 6, 2023, by telephone case conference

APPEARANCES:

Parties

Counsel/Representative*

Town of Halton Hills

Al Burton and Jeffrey Wilker

Regional Municipality of Halton

Isaac Tang and Lee English

Southwest Georgetown Landowners Group Inc. (“SWGLG”)

Quinto Annibale and Mark Joblin

Shelson Properties Ltd./Coryville Construction Ltd.

John Alati and Andy Margaritis

Conservation Halton

Peter Pickfield

Iva Gaspar

Tomislav Gaspar*

Georgetown Country Properties Ltd.

Patrick Harrington

Mattamy (Halton Hills) Ltd. Master Built Homes Inc. (formerly Neamsby Investments Inc.)

Scott Snider and Anna Toumanians Chantal deSereville (January 31, 2013) Denise Baker (February 6, 2023)

Lormel Developments (Georgetown) Ltd.

Katarzyna Sliwa and Max Reedijk

Halton District School Board and Halton Catholic District School Board

Brad Teichman

823 Trafalgar D.G. Farms Inc.

Herbert Arnold

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON FEBRUARY 6, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This was the fifth case management conference (“CMC”) with respect to: OLT-22-001949 (formerly PL200159), being an application for a private amendment to the Official Plan appeal by Southwest Georgetown Landowners Group Inc. (“SWGLG OPA”) and OLT-22-001967 (formerly PL200484), being appeals against Official Plan Amendment 32 (“OPA 32”), as adopted by the Town of Halton Hills (“Town”).

2OPA 32 was adopted by the Town on July 9, 2018 and approved by the Region with modifications on September 25, 2020. It was subsequently appealed by, among others, SWGLG and Mattamy (Halton Hills) Ltd. (“Mattamy”). The purpose of OPA 32 is to establish a secondary plan for Southwest Georgetown, including a complement of land use designations and corresponding policies.

3The SWGLG Private OPA was submitted to the Town in November 2017 and deemed complete on February 27, 2018. It was subsequently appealed by SWGLG and its individual members (including Mattamy) based on the Town’s failure to make a decision within the legislated timeline. The SWGLG OPA seeks to establish an alternative secondary plan for Southwest Georgetown including a complement of land use designations and corresponding policies in lieu of OPA 32.

4At a previous CMC, the Tribunal scheduled the appeals of OPA 32 and the SWGLG OPA to be heard together in a three-phase, 26-week hearing, as follows:

Phase 1 June 5 – Aug 8, 2023

• Natural heritage system, including watercourses, flooding, erosion, hazards, wetlands, related stormwater management/infrastructure and source water protection

Phase 2 Aug 9 – Oct 9, 2023

• Transportation, servicing and infrastructure (excluding related natural heritage system, stormwater management/infrastructure)

Phase 3 Oct 10 – Nov 30, 2023

• Land use planning, including education, retail market and phasing

5At the request of the parties, the Tribunal scheduled this CMC for the following purposes:

a) for the Parties to provide a status update on their efforts at mediation/settlement and, if necessary, to make revisions to the three-phase hearing plan should certain issues be resolved or scoped; and

b) if necessary, to hear any Motions to request consolidation, given the existence of a number of additional site-specific appeals related to the present OPA appeals.

6On the morning of the CMC, the Tribunal received several requests from SWGLG seeking to be added as a Party to those additional related site-specific zoning and draft plan of subdivision appeals (set out in the chart below). SWGLG’s correspondence to the Tribunal indicated they wished to speak to such requests at the CMC.

Tribunal File Numbers

Appeal Filed By:

OLT-21-001297 & OLT-21-001267

Mattamy (Halton Hills) Limited

OLT-21-001322 & OLT-21-001269

Shelson Properties Ltd., Coryville Construction Ltd.

OLT-21-001323 & OLT-21-001277

Master Built Homes Inc.

OLT-21-001244 & OLT-21-001258

Lormel Developments (Georgetown) Ltd.

OLT-21-001263 & OLT-21-001265

Georgetown Country Properties Ltd.

7The Tribunal declined to consider SWGLG’s requests because the above noted matters were not before this Panel and those matters had not yet been the subject of a first hearing event. Status requests for those matters are appropriately considered by the member/panel presiding over the first hearing event(s) of those appeals. Those overseeing the scheduling of the aforementioned matters have been made aware of SWGLG’s requests and the related nature of the appeals so as to ensure the most efficient case management thereof.

UPDATE ON SETTLEMENT/MEDIATION

8Mr. Wilker provided an update on behalf of the Parties, noting that formal mediation did not result in a settlement and is not expected to resume. In light of this update, there was no need to revisit the current hearing schedule. Despite unsuccessful efforts to settle matters through private mediation to date, the Parties indicated that informal settlement discussions remain ongoing and there is hope that such discussions will bear fruit at some point in the future.

MOTION FOR CONSOLIDATION

9Mattamy filed a Motion returnable at today’s CMC, seeking an Order pursuant to ss. 12(2) and 13(1)(d) of the Ontario Land Tribunal Act¹ (“OLTA”) and Rule 16 of the Tribunal’s Rules of Practice and Procedure (“Rules”), seeking to consolidate the OPA 32 appeal with the SWGLG OPA appeal and for an Order that appeals of Mattamy’s site-specific Zoning By-law Amendment (“ZBA”) and Draft Plan of Subdivision applications (“Mattamy Applications”) be heard together with the aforementioned OPA appeals. In support of the Motion, Mattamy relied upon the Affidavit and Reply Affidavit of Ruth Victor, a Registered Professional Planner.

10The Mattamy Applications, which are intended to provide plan of subdivision and zoning permissions in relation to the property municipally known as 10114 and 10242 Eighth Line (“Mattamy Lands”), were submitted to the Town on March 2, 2021, and deemed complete on March 31, 2021. On August 10, 2021, Mattamy appealed the Town’s failure to make a decision on the applications within the legislated timeline and indicated in its Notice of Appeal that it would be seeking consolidation of the Mattamy Applications with OPA 32 and the SWGLG OPA. Previous CMC decisions discuss and leave open the possibility for a Motion to be brought to consolidate the OPA appeals as well as additional related site-specific appeals. Although the Parties have engaged in several discussions with respect to consolidation/hearing together, they were unable to arrive at an agreement with respect to the correct approach to organizing the matters and, as such, Mattamy filed the present Motion.

11The Tribunal summarizes the grounds brought by the Mover in support of the Motion as follows:

• OPA 32 and the SWGLG OPA represent two distinct secondary plan options for Southwest Georgetown, both of which include land use designations and corresponding policies pertaining to the same area of land (approximately 404 hectares);

• the Mattamy Lands (approximately 120 hectares) are within Southwest Georgetown;

• only a single secondary plan can be approved at the conclusion of the proceedings

• OPA 32, the SWGLG OPA and the Mattamy Applications all deal with the same land, same parties, same facts and same issues;

• a key issue for all three matters is the appropriate uses for Southwest Georgetown, including the Mattamy Lands;

• there is a strong nexus between the uses proposed by the Mattamy Applications and the uses proposed by the SWGLG OPA;

• to assist the Tribunal in determining which land use designations are appropriate for any particular property, the evidence presented at the hearing should be evidence for both matters;

• it is more practical to consolidate OPA 32 and the SWGLG OPA rather than hearing them together, as it would be difficult for the Tribunal to distinguish between evidence that applies only to the OPA 32 appeal rather than the SWGLG OPA appeal and a consolidated appeal would result in a single decision at the conclusion of the hearing; and

• hearing the three matters together will not increase the length of the hearing on those issues relevant to all three matters and the issues set out in Procedural Order governing the hearing of the OPA appeals but will allow for an expeditious and efficient process, avoiding a multiplicity of proceedings and conflicting decisions.

Responses to the Motion

12The following Parties submitted Responding Materials in support of the Motion by Mattamy: SWGLG; Georgetown Country Properties; Master Built Homes Lormel Developments (Georgetown) Ltd.; and Shelson Properties Ltd., Coryville Construction.

13The Region, the Town and Conservation Halton (“the Agencies”) submitted Responding Materials requesting the Tribunal dismiss the Mattamy Motion in its entirety. In support of this request, the Town relied upon the sworn Affidavit of Greg MacDonald and the Region relied upon the affirmed Affidavit of Curt Benson. Both individuals are Registered Professional Planners.

14Iva Gaspar, Halton District School Board & Halton Catholic District School Board and 823 Trafalgar D.G. Farms Inc. appeared to observe the hearing event, but filed no materials and took no position on the Motion.

Preliminary Motion by the Town to strike the Reply Affidavit of Ruth Victor

15Prior to the Tribunal hearing submissions on Mattamy’s Motion, counsel for the Town requested that the Reply Affidavit of Ms. Victor be struck in its entirety, on the ground that it contains advocacy and argument for the position of Ms. Victor’s client, in violation of her signed Acknowledgement of Expert’s Duty which requires her to provide fair, objective and non-partisan opinions within her area of expertise. The Town described the impugned Affidavit as “advocacy dressed up as an expert opinion”.

16The Tribunal was taken to various paragraphs of the Reply Affidavit which, in the opinion of the Town, stray into legal argument and opinion, including but not limited to: opining upon what constitutes the “best evidence”; commenting directly upon the positions taken by the Agencies on Mattamy’s motion; arguing directly with the written submissions of counsel on whether evidence is of probative value; and advancing argument with respect to the issues which ought to be considered by the Tribunal.

17The Town urged the Tribunal to exercise its function as a “gatekeeper” and strike the entire Reply Affidavit, noting the objectionable nature of the tenor and substance thereof. In support of its position, the Town referred to the case of Dulong v. Merrill Lynch Canada Inc.² (“Dulong”), wherein the Court refused to admit opinion evidence of a potential expert in securities regulation, finding that the opinion proffered amounted to advocacy dressed up as an expert opinion. At paragraph [8] of that decision, the Court takes note of guidance provided by the Supreme Court to trial judges when faced with such an evidentiary issue.

There is no question that, in civil cases at least, the path of least resistance in matters such as these seems to be to admit the [page384] evidence and then compensate for any of its weaknesses by attaching less weight to the opinion. But such an approach is an abdication of the proper function of a trial judge and was explicitly rejected by Binnie J. in R. v. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, at p. 613 S.C.R.:

[t]he Court has emphasized that the trial judge should take seriously the role of "gatekeeper". The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.

Of course, this gatekeeper function directly collides with the general requirement that the parties to an action must be afforded the opportunity to lead the most complete evidentiary record consistent with the rules of evidence. This fundamental tension can only be resolved by the careful and consistent application of the rules of evidence.

Mattamy’s Response to the Town’s Motion to Strike

18Counsel for Mattamy characterized the Town’s preliminary motion to strike the Reply Affidavit as an unjustified eleventh-hour attack (without any notice whatsoever) upon the credibility and reputation of a respected land use planner. On the issue of notice, it was submitted that the Town received Mattamy’s Reply Motion Materials on Friday, January 27, 2023 and, as such, with the motion being heard on Tuesday, January 31, 2023, had ample time to provide notice to both Mattamy and the Tribunal of its intention to challenge the Affiant’s evidence/qualifications and/or to request an opportunity to cross examine Ms. Victor on the Affidavit.

19Counsel for Mattamy submitted that the Town’s attack was without merit, noting all three Affidavits filed in the context of the Motion to consolidate respond to positions taken by the Moving or Responding Parties. It was further submitted that the impugned Affidavit evidence of Ms. Victor is not improper, as it simply replies directly to the Responding Materials filed by the Agencies (including the Affidavits of Messrs. Benson and MacDonald) and provides context to support and defend her professional opinion that she will need to refer to the Mattamy Applications in order to be able to provide a thorough land use planning opinion on the issues at the hearing.

Ruling on the motion to strike

20Ms. Victor’s Reply Affidavit does, at points, appear to stray outside of the four corners of her professional discipline, into areas upon which she is unqualified to opine. She repeatedly uses the term “best evidence”, which has a legal meaning and, at times, gives the impression of descending into the arena with an air of argumentation, directly responding to/disagreeing with the written legal submissions of the Agencies’ counsel. Notwithstanding the foregoing, the Tribunal considered the impugned Affidavit to be relevant and necessary to deciding upon the Motion brought by Mattamy.

21While it would have been preferable for Ms. Victor to have avoided using terms which have a legal meaning and appearing to stray into legal argument, this may have been inadvertent and does not render the entirety of the Affidavit inadmissible, as it contains land use planning opinion relevant to Mattamy’s Motion which militates against ‘throwing the baby out with the bathwater’.

22As such, the Tribunal, being of the view that it is capable of distilling the relevant land use planning opinion from content which is not within the sphere of Ms. Victor’s expertise, denied the request to strike the impugned Affidavit and invited counsel to make submissions with respect to the appropriate weight to be given either to the entire Affidavit or specific paragraphs thereof, during the course of their submissions on the Motion to consolidate.

23With respect to the cases of Dulong and R. v. J. (J.-L.) (supra), which warn against trial judges employing the foregoing approach, the Tribunal would note that the principles of evidence in administrative settings, as distinct from cases before the Courts, are often more flexibly applied in light of s. 15 of the Statutory Powers Procedure Act³, which allows a Tribunal to admit as evidence any oral testimony or any document/thing which is relevant to the subject matter of the proceeding.

24As an aside, Ms. Victor would be well-advised to ensure that any land use planning opinion evidence given before this Tribunal going forward does not inadvertently give the appearance of straying outside of her discipline and/or cast any doubt upon her ability to remain within the confines of her Acknowledgement of Expert’s Duty.

25Finally, the Tribunal would note that, in this instance, the Town was in receipt of Ms. Victor’s reply approximately three days prior to the Motion and arrived at the hearing event prepared with caselaw to support its request to have the impugned evidence struck. As such, The Tribunal agrees with counsel for Mattamy that the Town had ample time to provide notice of its intention to challenge the Affiant’s qualifications and evidence but instead, chose to wait until the commencement of this Motion to do so.

26The foregoing is troublesome, as it amounts to an inappropriate ambush of the Affiant’s qualifications and evidence, which could well have proven prejudicial to Mattamy. The Tribunal was advised at the beginning of this CMC that the Parties anticipate calling up to 65 witnesses during the upcoming 26-week hearing and, as such, all Parties agree it will be challenging to complete the hearing in the time allotted. For the sake of fairness, efficiency and completing the hearing in the time set aside, going forward the Parties would be well-advised to ensure that, when possible, appropriate notice of an intention to bring a motion is provided to the Tribunal and other Parties.

Consolidation - Legislation, Rules and factors to be considered

27There was no dispute amongst the Parties as to the applicable sections of the OLTA and the Rules, nor was there any dispute with respect to the factors to be considered by the Tribunal in the context of deciding upon this Motion.

28OLTA s. 12(2) directs the Tribunal to adopt practices and procedures which offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings, while s. 13(1)(d) states the Tribunal may make rules governing its practices and procedures, including rules that authorize the Tribunal to combine two or more proceedings or any part of them, or hear two or more proceedings at the same time. Rule 16 states:

CONSOLIDATION

16.1 Consolidating Proceedings or Hearing Matters Together The Tribunal may order that two or more proceedings or any part of them, be consolidated, heard at the same time, or heard one after the other, or stay or adjourn any matter until the determination of any other matter, subject to any applicable statutory or regulatory restrictions.

16.2 Effect of Consolidating Proceedings When two or more proceedings are consolidated,

a) statutory procedural requirements for any of the original separate proceedings apply, where appropriate, to the consolidated proceeding;

b) parties to each of the original separate proceedings are parties to the consolidated proceeding; and

c) evidence to be presented in each of the separate proceedings is evidence in the consolidated proceeding.

16.3 Effect of Hearing Matters Together When two or more proceedings are heard together but not consolidated,

a) statutory requirements for each proceeding apply only to that particular proceeding and not to the others;

b) parties to the hearing are parties to their individual proceedings only and not parties to the other proceedings; and

c) unless otherwise ordered by the Tribunal, evidence in the hearing is evidence in each proceeding to which it could apply.

29The following non-exhaustive list of factors to be considered in respect of consolidation was set out in Balchin v. Oakville (Town), 1999 CarswellOnt 5296, which has been consistently followed by the Tribunal:

i. Are there common facts, common issues and common law?

ii. What would constitute the most efficient use of the Tribunal’s time?

iii. Is there prejudice which may result to any party as a result of the consolidation or hearing together?

iv. What is most fair to all parties?

v. Is there a possibility that a decision in one matter may predetermine a subsequent matter before the Tribunal or result in the possibility of contradictory Tribunal decisions?

vi. What is the ability and jurisdiction of the Tribunal to deal with all of the issues affecting a proposal in a comprehensive manner?

Submissions on the Motion for consolidation

Mattamy

30Counsel for Mattamy explained that although his client owns a little less than 1/3 of the total area which is the subject of the OPA appeals, there are issues on the Issues List which engage, and may have a significant impact upon, only the Mattamy Lands. Importantly, there are certain parts of the Mattamy Lands (namely, a disputed watercourse/ditch referred to as AM-7 and a woodlot referred to as A2) included in OPA 32 as part of the natural heritage system, whereas the SWGLG OPA does not include these. In Ms. Victor’s opinion, whether AM-7 and Woodlot A2 are included as natural heritage features as part of the policy regime for the Mattamy Lands is an important issue to the official plan (“OP”), zoning and plan of subdivision.

31It was submitted that consideration of the implications of proposed OP policies and schedules on crucial land use issues (including the optimal use of land and resources, efficient development and the delivery of housing) requires analysis of “on the ground” impacts. In her Affidavit, Ms. Victor notes that only a single secondary plan can be approved at the conclusion of the proceedings, which may well be a hybrid of OPA 32 and the SWGLG OPA, among other possible outcomes. At paragraphs 12 and 13, she states:

…Regardless of consolidation (or hearing together), Mattamy will be calling the same detailed, technical evidence generated by the Mattamy Applications to support the land use designations proposed by the SWGLG OPA.

For many of the issues set out for this hearing, it will be important to understand how the policies proposed within the Secondary Plans will be implemented in the detailed planning instruments such as the zoning by-law and draft plan of subdivision to fully and effectively assess consistency and conformity with Provincial Plans as well as conformity with the Regional and Town of Halton Hills Official Plans. The details are particularly relevant in assessing the merits of each of these issues. Consolidation will achieve clarity and a higher degree of certainty in the specifics for the implementation of the policies finally approved.

32At paragraph [13] of her Reply Affidavit, she opines that the impacts of OP policies/schedules to the actual use of the land are best illustrated through the draft plan of subdivision and zoning. She goes to state at paragraph 22:

Considering these sorts of impacts is central to resolving the issues on the Issues List. This applies to both the consideration of the issues raised by the Agencies and the Landowners. This is why I have indicated that whether or not this motion is granted I anticipated that I would be referring to the same detailed, technical evidence generated by the Mattamy Applications to address the issues currently before the Tribunal….

33Counsel for Mattamy argued that, in opposing the request to have the site-specific appeals heard together with the OPA appeals, the Agencies seek to prevent his client from calling any evidence with respect to zoning and the draft plan of subdivision - evidence which, in the opinion of Ms. Victor, is of great significance to the evaluation of the competing OPAs. It was submitted that this would be a profound denial of natural justice and would prevent the Tribunal from hearing the best evidence to understand what is likely to be developed on the Mattamy lands based on competing policies and schedules in the two OPAs.

34It was argued that an Order that the matters be heard together is necessary to ensure that determination of the existing issues does not predetermine important matters relevant to the Mattamy Applications and to ensure there are not inconsistent results when the same matters are addressed in a hearing dealing with those Applications. In support of the predetermination argument, Mattamy’s counsel drew the Tribunal’s attention to the submissions of the Agencies, which consistently stress that a decision on the OPA appeals must precede the site-specific appeals, as it will determine foundational issues of conformity against which the Mattamy Applications must be evaluated.

35Despite the fact that the Mattamy Applications have not yet been case managed, it was submitted that anyone with an interest in the uses for the Mattamy Lands is already a party to this proceeding and it is therefore highly unlikely any other parties will seek status in the hearing of those appeals. As such, it was argued that it would be inappropriate to deny Mattamy’s request based on remote speculation about additional parties.

36With respect to the request to consolidate the OPA 32 and SWGLG OPA appeals, it was submitted that it is appropriate to do so because they involve the same statutory requirements and the same parties. Mattamy’s counsel submitted that an Order consolidating the two OPA appeals will ensure that all of the evidence presented as evidence will be evidence in both. In addition, because only one secondary plan can be approved, it was argued that absent a consolidation Order, complication and added work will result, as the Tribunal would render two separate decisions – one in respect of the SWGLG OPA and another in respect of OPA 32.

37Overall, given the commonality of facts, parties, issues and the need to avoid predetermination of issues and inconsistent results in subsequent proceedings, the Tribunal was urged to Order the OPA appeals consolidated and appeals of the Mattamy Applications to be heard together with the OPA appeals so as to ensure fairness and efficiency. It was noted that there will be no prejudice to the Agencies because no changes are proposed to: the Issues List; deliverable dates in the PO; the proposed phasing of the hearing or the draft hearing plan; the order of evidence; the timing or the length of the hearing.

The Agencies

38The Town, Region and Conservation Halton all provided separate Responses to the Motion and made separate oral arguments but as they were positionally aligned, the Tribunal summarizes their submissions collectively as follows:

39With respect to Mattamy’s request to consolidate OPA 32 and the SWGLG OPA, it was submitted that a detailed PO is in place and there is no substantial benefit to be gained from changing the current hearing structure, which was described as an efficient use of hearing time that is respectful to both the public and private parties, which will assist the Tribunal to appreciate the two distinct visions for the lands and lead to a decision on these competing visions. It was further submitted that evidence presented in the hearing can be applied to either secondary plan appeal and, as such, there is nothing to be gained from a formal consolidation of the OPA appeals.

40The Agencies submitted that Mattamy’s request to have its site-specific appeals heard together with the OPA appeals amounts to an inappropriately timed evidentiary motion seeking a ruling that site-specific evidence in relation to zoning and draft plan applications is relevant and admissible for the hearing of the OPA appeals. It was argued that the determination of whether such evidence is relevant, probative and not otherwise subject to exclusion, is not appropriate in the context of an interlocutory motion but rather, is a matter for the Panel hearing the OPA appeals to determine at the time such evidence is tendered.

41It was argued that Mattamy seeks to “turn planning on its head”, attempting to have site-specific draft plans influence the Tribunal’s decision on the appropriate OPA. The Agencies submitted that keeping the OPA and site-specific appeals separate will not result in a pretermination of issues and/or conflicting decisions. This is because an OP rises above detailed regulation, establishing broad policies to govern a municipality’s land use planning and as this case involves two competing OPAs, a decision on those appeals must precede appeals of site-specific applications, which can thereafter be evaluated against the specific tests of conformity established in accordance with the Tribunal’s decision on the operative secondary plan.

42It was submitted that granting the relief requested by Mattamy would result in an unwarranted waste of public resources, because in order to properly prepare to respond to evidence at the hearing, the Agencies would be required to evaluate the site-specific applications against two competing OPAs, neither of which are currently in force. Moreover, following the hearing, the Tribunal’s decision on the broad principles at issue in the OPA appeals could result in alteration of site-specific details, requiring yet another evaluation of the applications.

43Mr. MacDonald, Affiant for the Town, points out fundamental differences between the competing OPAs, such as distinct road configurations, natural heritage systems and competing land use designations. He opines that, absent an in-force secondary plan against which conformity can be meaningfully evaluated, it is neither prudent nor advisable to undertake a review of the Mattamy Applications, characterizing such an exercise as premature and costly in terms of time and resources.

44Mr. Benson, Affiant for the Region, notes that the Region’s interest in local secondary plans is different from its interest in site-specific applications and depending upon the outcome of the OPA appeals, it may have a scoped interest in Mattamy’s site-specific appeals. He notes that different witnesses may be required to give evidence in each matter:

If the Region participates in hearings regarding each of Mattamy’s site-specific appeals, it will likely call different witnesses than those identified for the OPA Appeals. For example, I will be called to give evidence on behalf of the Region in the OPA Appeals. It is not likely that I would give land use planning evidence on the site-specific zoning and draft plan matters at issue in Mattamy’s site specific Appeals.

45In addition, Mr. Benson opines that the Tribunal’s decision upon the OPA appeals may render meaningless evidence to be heard in relation to Mattamy’s site-specific appeals. Contrary to Ms. Victor, he is of the view that the Tribunal can make a determination on whether AM-7 or Woodlot A2 should be part of the natural heritage system without referring to subdivision plans that have not been approved.

46The Agencies submitted that the proceedings could become even further complicated based on the stated intentions of the other landowners to ask for their site-specific appeals to be heard together with the OPA appeals should Mattamy’s Motion be granted, referring to this as the “me too argument”. Moreover, given that none of the site-specific appeals (including Mattamy’s) have been case managed, it cannot be said with certainty that the issues and parties would be the same as those in the OPA appeals. As such, the Tribunal was urged to dismiss the motion so as to ensure matters do not become unduly complicated and to keep the Parties focused on the matter at hand, rather than being distracted by further motions seeking similar relief.

47Overall, it was submitted that consolidation should be viewed as a procedural safeguard to ensure hearings remain orderly and manageable and should be carefully utilized in appropriate circumstances. In Sifton Properties v. Brantford (City), 2011 CarswellOnt 3257, in which VC Lee notes that “a consolidation order is a safety valve, not an engine” and the “function of a safety valve is to restore order. It is not meant to crank up the engine”. In the interest of ensuring a fair, just and expeditious resolution, the Tribunal was urged to dismiss Mattamy’s motion in its entirety so as to avoid bringing disorder and unnecessary complication to an already organized hearing.

Analysis and findings

48Following careful consideration of the relevant legislation, Rules, the above noted factors, the 1000 pages of written materials and authorities submitted, as well the full day of oral argument by the Parties, the Motion by Mattamy is dismissed in its entirety.

49The Tribunal will first address what was agreed by the Parties to be the more contentious request for relief, which is to have Mattamy’s site-specific ZBA and Draft Plan appeals heard together with the appeals of the OPAs. Thereafter, the Tribunal will briefly address the less contentious request to consolidate the OPA appeals and finally, will conclude with overall considerations on the Motion in general.

Request to hear Mattamy’s site-specific appeals together with the OPA appeals:

50The Tribunal routinely consolidates or hears together appeals of site-specific zoning/draft plans of subdivision and site-specific OPAs. In this instance, the Tribunal is being asked to hear together appeals of Mattamy’s site-specific applications together with appeals of a general OPA, the scope of which extends well beyond the Mattamy Lands. In addition, there are two competing OPAs, representing rather unique circumstances which bear upon the Tribunal’s decision.

51Although counsel for Mattamy characterizes its hearing together approach as “nuanced” and offering an appropriate structure for the best outcome, in that:

• to the extent the site-specific appeals have overlapping issues with issues already on the Issues List for the OPA appeals, such evidence will be heard during the already scheduled 26-week hearing;

• leaving any truly site-specific issues with respect to the ZBA and Draft Plan appeals to be dealt with at a later phase, following the Tribunal’s decision upon the OPA appeals,

The requested relief was not considered to be appropriate for the following reasons.

Efficiency

52The Tribunal is of the view that any efficiency touted by Mattamy with respect to avoiding repetition of evidence is remote, likely minor, and founded on a presumption that the presiding Panel would be capable of remaining similarly constituted for the proposed added phase. There is the potential for a significant gap between the close of the currently scheduled hearing and the commencement of Mattamy’s proposed additional site-specific phase.

53As it stands, the three-phase hearing is 26 weeks long and the Parties agree it will be challenging to complete it in the time set aside. Following the hearing, the Tribunal will require time to render its decision and thereafter, it is possible that site-specific ZBA and Draft Plan of Subdivision revisions will be required based on the Tribunal’s decision. A further delay may result should the Town and Region need to evaluate those applications in light of that decision. Moreover, there is no guarantee that Mattamy would present the same evidence in its proposed subsequent phase. This is because following phase three and the Tribunal’s decision to adopt an OPA, Mattamy may be required to make revisions to their applications which could have the effect of changing the evidence to be presented.

Prejudice

54The Tribunal finds that granting Mattamy’s request results in the potential for prejudice to the Agencies for two reasons. Firstly, the Town and the Region have not yet evaluated the site-specific applications, as there is no in force planning framework against which to do so and there is no obligation upon approval authorities to evaluate an application against an instrument which has no standing. In order to properly prepare for and appropriately respond to site-specific evidence which Mattamy wishes to rely upon in the context of the OPA appeals, the approval authorities may now be faced with having to evaluate the applications against both of the competing OPAs. Moreover, there may be a need to re-evaluate the applications for a third time following the Tribunal’s decision, should a hybrid or other version be adopted (such a decision was acknowledged by all Parties as being possible).

55Secondly, the Tribunal agrees with counsel for the Agencies, that ordering Mattamy’s site-specific appeals to be heard together with the OPA appeals, in effect, results in an evidentiary ruling predetermining that the site-specific evidence Mattamy wishes to adduce is prima facie relevant and admissible, which:

a) is a matter properly determined by the Panel presiding over the hearing; and

b) is prejudicial, given the reversal of onus which would require the Agencies to rebut this evidentiary presumption at the hearing should they wish to challenge the admissibility of such evidence.

56The Tribunal acknowledges Ms. Victor’s opinion that it is possible to prepare and approve an OPA without the benefit of draft plans of subdivision and zoning, but in situations where such information is available it is appropriate to refer to same because it allows for an understanding of the implications on the ground to determine appropriate OP policies. It is further acknowledged that there are issues on the Issues List (such as natural heritage issues involving only the Mattamy Lands). However, Ms. Victor has, through her Affidavit, indicated she intends to refer to Mattamy’s site-specific applications in the course of providing her land use planning opinion on the issues, irrespective of the outcome of this motion. Given Ms. Victor’s stated intention, the Tribunal finds there is no prejudice to Mattamy in denying the requested relief.

57It should be noted, for clarity, that the ruling on this Motion in no way precludes Mattamy from attempting to introduce such evidence at the hearing (which, in the view of the Tribunal, could only be illustrative in any event, as the applications have never been evaluated by the approval authorities and have never been before Council). However, Mattamy will be required to satisfy the presiding Panel at the appropriate time that such evidence is relevant and admissible. As this would be the case in any event, there is, again, no prejudice to Mattamy in denying the requested relief.

Predetermination of issues

58Hearing the OPA appeals separately from Mattamy’s site specific appeals will not result in a predetermination of issues. Rather, it will result in a determination on the operative secondary plan. That determination will establish the applicable planning framework and specific tests of conformity against which Zoning By-laws and draft plans of subdivision must be evaluated. As such, that determination must precede consideration of site-specific appeals, as it may well bear upon the issues to be argued and the evidence to be led in the context of such appeals.

59The approach advanced by Mattamy has the potential to inappropriately invert the planning hierarchy and unnecessarily cloud the focus of the Panel tasked with deciding upon the appropriate land use vision for a very large area, only 1/3 of which involves the Mattamy Lands. The Tribunal is not persuaded that granting the requested relief would not be construed as fettering the discretion of the Panel presiding over the hearing, irrespective of the version of the OPA that is ultimately approved.

Other factors

60The Tribunal notes that Mattamy’s site-specific appeals and those of the other landowners have not yet had first hearing events, nor have any of the appellants to those matters made any effort to request that CMCs be scheduled. While Mattamy may be of the view that the possibility of others seeking Party Status is remote, the fact remains that the parties to those appeals have not been identified and therefore, it cannot be said with certainty that the Parties are all the same. In addition, in the absence of an in-force secondary plan, the issues in the site-specific appeals of Mattamy and the other landowners have yet to be identified.

61While not considered determinative, the Tribunal acknowledges the “me too argument” advanced by the Agencies and returns to its finding that there is a potential for the Agencies to be prejudiced. This is because opening the door to hearing similar motions may unduly complicate and unnecessarily delay matters, placing the ability of the Parties to properly prepare for and be ready to begin the hearing on June 5, 2023 in jeopardy.

Request for consolidation of OPA 32 and the SWGLG OPA

62The Tribunal turns now to addressing what was agreed to be Mattamy’s less contentious request, which is for the appeals of the two competing OPAs to be consolidated.

63The Tribunal is not persuaded there is any appreciable benefit in granting the request to consolidate the appeals of the two OPAs. Mattamy mistakenly presumes that a consolidation Order is necessary to ensure that the evidence presented can be evidence for both OPA appeals and to avoid the need for the Tribunal to issue two separate decisions on the competing OPAs. However, in hearing the matters together, the evidence presented in the context of one OPA appeal can be evidence for both, and the presiding Panel can, in a single decision, evaluate both competing land use visions and render its decisions on same as it chooses.

Conclusion

64Had there not been two competing OPAs at issue, the decision on this Motion may well have been different but, under these rather unique circumstances, granting the requested relief runs contrary to the guidance of VC Lee in Sifton (supra), through his safety valve vs. engine analogy, in which it is noted that the function of a safety value is to restore order.

65In general, Mattamy has neither adduced demonstrative evidence nor made persuasive argument that the requested relief is required to bring order to an otherwise disorderly hearing. To the contrary, the hearing has already been organized, there is a PO and an Issues List in place and the Parties are known.

66Granting the requested relief has the potential to: unduly complicate matters; cloud the focus and/or fetter the discretion of the presiding Panel; result in prejudice for the Agencies; adversely affect the ability of the Parties to be prepared for the commencement of a quickly approaching hearing; and negatively impact the Tribunal’s calendar. The Tribunal is not satisfied there is any appreciable benefit to shifting course at this stage and accordingly, Mattamy’s Motion is dismissed in its entirety.

ORDER

67The Tribunal orders:

a) the Motion by Mattamy (Halton Hills) Ltd. is dismissed in its entirety;

b) the three-phase video hearing will proceed as scheduled, with Phase One commencing on June 5, 2023, at 10:00 a.m.;

c) there are no changes to the current Procedural Order, which remains in place and will continue to govern the proceedings going forward;

d) this Member is not seized, but may be available for case management, should scheduling permit.

“S. Braun”

S. Braun

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.

Footnotes

1. 1S.O 2021, c. 4, Sched. 6
2. 22006 CanLII 9146 (ON SC), 80 O.R. (3d) 378 (ONSC) 2006.
3. 32006 CanLII 9146 (ON SC), 80 O.R. (3d) 378 (ONSC) 2006.