Cardea Bayview Valley Development Limited v. Markham (City), 2023 CanLII 123746

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 28, 2023

CASE NO(S).: OLT-23-000979

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Cardea Bayview Valley Development Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of 10 four-storey townhouse units.

Reference Number: Plan 23 120969

Property Address: 3 Steele Valley Road

Municipality/UT: Markham/York

OLT Case No: OLT-23-000979

OLT Lead Case No: OLT-23-000979

OLT Case Name: Cardea Bayview Valley Development Limited v. Markham (City)

Heard: December 11, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Cardea Bayview Valley Development Limited

M. Laskin, D. Bronskill (in absentia)

City of Markham

M. Cheung-Madar

Angelo DeGasperis; Aziz and Amina Bhaloo; Beverley Thompson; Liwen Zhou; David Farajun; and Andy Bakhtiari; (collectively; the “Residents”).

M. McDermid

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON DECEMBER 11, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a first Case Management Conference (“CMC”) relating to an appeal pursuant to s. 34(11) of the Planning Act (“Act”) from the refusal or neglect of the City of Markham (“City”) to make a decision with respect to a Zoning By-law Amendment (“ZBA”). The appeal has been filed by Cardea Bayview Valley Development Limited (“Appellant”) regarding the property located at 3 Steele Valley Road (“Subject Property”).

2The Subject Property is a corner lot located at the southwest corner of Bayview Avenue and Steele Valley Road in the Thornhill neighbourhood in the City. The total site area is approximately 0.29 hectares (0.71 acres) based on approximately 68 metres ("m”) of frontage on Bayview Avenue and 44 m of frontage on Steele Valley Road, which currently contains a one-storey detached dwelling with a detached garage.

3The purpose of the ZBA Application is to permit the development of 10 four-storey townhouse units and is seeking to rezone the Subject Property under By-law No. 177-96, as amended, from Greenbelt Residential (GR) Zone (Zoning By-law No. 1767) to Residential Two (R2) Zone (Zoning By-law No. 177-96). The City’s Planning staff are in support of the Application.

4The Tribunal was in receipt of a sworn Affidavit of Service dated November 24, 2023, by Nancy Borges confirming that Notice of this CMC was properly provided, which is marked as Exhibit 1.

STATUS REQUESTS AND HEARING ISSUES

5The Tribunal is in receipt of six Party status requests individually and jointly, as represented by Meaghan McDermid, Counsel on behalf of the following individuals (collectively, the “Residents”):

• Angelo DeGasperis – 21, 25, 35 Steele Valley Road

• Aziz and Amina Bhaloo – 15 Steele Valley Road

• Beverley Thompson – 39 Steele Valley Road

• Liwen Zhou – 20 and 45 Steele Valley Road

• David Farajun – 9 Steele Valley Road

• Andy Bakhtiari – 30 Steele Valley Road

6Ms. McDermid asserts that the Residents share the same interests and reasons for these Party status requests, understand their individual roles and obligations of a Party under Rule 8.1 of the Tribunal’s Rules of Practice and Procedure (“Rules”) and include but are not limited to the following issues of concern:

• Incompatibility of the proposed development and its failure to respect the character of this unique neighbourhood;

• Non-conformity with the policies of the Markham Official Plan, 2014;

• The built form, density, setbacks, scale and massing of the proposed development are inappropriate for the Subject Property given the surrounding context and character of the neighbourhood;

• The significant removal of trees required to accommodate the proposed development;

• Traffic impacts of the proposed development; and

• The negative impacts that will result from the proposed development, including loss of privacy and increased noise, lighting and traffic.

7Counsel for the Appellant and the City did not express concerns or objection to this request for Party status, therefore, in light of the Residents’ obvious proximity to and interests relating to the proposed development, the Tribunal confers Party status on the Residents as referred to in paragraph five (5), and as represented by Ms. McDermid.

8The Tribunal also heard extensively from David Burstein who initially filed a Participant status request and subsequently filed a separate Party status request, as a self-represented resident and owner of 16 Steele Valley Road. Mr. Burstein asserts that the proposed Application is not in keeping with the character of the community and threatens the stability of the neighbourhood, among a number of other issues. He further asserted that he has extensive experience appearing before other City Committees and Tribunals, but that he had never previously appeared before this Tribunal or its predecessors and was a “quick learner” and very knowledgeable throughout his life experiences.

9Counsel for both the City and the Residents for the Appellant did not object to this request, however, Counsel for the Appellant advised the Tribunal that while it did not object to Participant status being granted, it did advise the Tribunal of its serious concerns, identifying a number of valid reasons for the denial of Mr. Burstein’s Party status request including that:

• There were no expert witnesses for the purposes of the Hearing proposed by Mr. Burstein;

• Delays would very likely result in the process with any of his prospective cross-examinations of expert witnesses from other Parties; and,

• As a self-represented lay-person, without any experience previously before this Tribunal, the likely result would be that Mr. Burstein himself, acting as a witness and advocate at the same time, would adversely impact the efficiency and procedures of a full Merit Hearing.

10These concerns became evident to the Tribunal as the CMC progressed, while a decision on this status request was briefly reserved. There were a number of interruptions from Mr. Burstein, and a final attempt from him to threaten litigation against the Appellant, which was quickly ruled inappropriate and out of order. Notwithstanding this, the Tribunal acknowledges the importance of written concerns from Mr. Burstein relating specifically to land-use planning issues, which are welcome to continue in the lead-up to the Hearing, and therefore, directs that Participant status is more appropriately conferred on Mr. Burstein.

11Additional Participant status requests were received and fully circulated at the CMC, identifying Lydia Mizzi, as the owner and resident of 7165 Bayview Avenue. Approximately one hour into the CMC, the Hearing was joined by Jordan Turk, as agent on behalf of Harry and Pnina Turk, the owners of 8 Steele Valley Road.

12Issues of concern expressed in both of these Participant requests respectively, include but are not limited to almost the entirety of the issues raised in paragraph [6] by Counsel for the Residents. There were no concerns or objections from Counsel for the Appellant, the City, or the Residents, regarding the granting of Participant status to these individuals. The Tribunal concurs, and therefore, grants Participant status to Lydia Mizzi and Harry and Pnina Turk, as represented by Jordan Turk.

13Finally, the Tribunal is also in receipt of a separate Participant status request from Dhruv and Kalyan Jasani, however, neither individual attended the CMC as required by the Tribunal’s Rules. Despite standing down the Hearing to allow further time for these persons to be contacted by others in attendance, they did not appear, and the Tribunal directs that this request for Participant Status is denied.

PROCEDURAL ORDER AND ISSUES LIST

14The Tribunal was in receipt of a draft Procedural Order (“PO”) on consent and was informed by Counsel for the Appellant that they had anticipated a pending Issues List (”IL”) which could be finalized within a two-week period for the Tribunal’s consideration and approval. There was general agreement that this could be achieved by all Parties and the final PO/IL was directed to be submitted on or before Friday, December 22, 2023, to the Case Coordinator. This has been submitted on consent of the Parties and is attached as Schedule A to this Decision.

15Furthermore, Counsel for the Appellant, on consent, is also seeking a seven (7) to nine (9)-day Merit Hearing to be scheduled at the discretion of the Tribunal.

16The Tribunal agrees that the scheduling of a Hearing is the appropriate next step in the process and following careful consideration of the availability of the Parties respectively, the Tribunal has scheduled a Hearing on the Merits to commence on Tuesday April 2, 2024 to Friday April 12, 2024 by Video at 10 a.m. (noting the Tribunal will not be sitting on Monday, April 8, 2024), for a total of eight (8) days.

17On the applicable dates, the Parties are to use the following coordinates:

GoToMeeting: https://global.gotomeeting.com/join/638422541

Access Code: 638-422-541

18Parties 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.

19Parties 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

20Persons 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.

21Individuals 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.

22Finally, the Tribunal is encouraged by efforts of Counsel for the Parties to initiate ongoing discussions relating to the scoping of issues and noted a desire for possible Tribunal-led mediation in an effort to seek resolution of any issues or possible settlement of the matter, if mutually requested via the Case Coordinator.

ORDER

23THE TRIBUNAL ORDERS that:

a) A Merit Hearing is scheduled to commence on Tuesday, April 2, 2024, by Video at 10 a.m. for eight (8) days (Noting the Tribunal will not sit on Monday, April 8, 2024);

b) The final and approved Procedural Order and Issues List referred to as Schedule A, is attached below, and will govern the conduct of this proceeding;

c) The Tribunal grants Party status to the following persons :

i. Angelo DeGasperis

ii. Aziz and Amina Bhaloo

iii. Beverley Thompson

iv. Liwen Zhou

v. David Farajun

vi. Andy Bakhtiari

d) The Tribunal grants Participant status to the following persons:

i. David Burstein;

ii. Lydia Mizzi; and,

iii. Harry and Pnina Turk, as represented by Jordan Turk (Agent).

“Steven T. Mastoras”

STEVEN T. MASTORAS

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

CASE NO.: OLT-23-000979

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Cardea Bayview Valley Development Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of 10 four-storey townhouse units

Reference Number: Plan 23 120969

Property Address: 3 Steele Valley Road

Municipality/UT: Markham/York

OLT Case No.: OLT-23-000979

OLT Lead Case No.: OLT-23-000979

OLT Case Name: Cardea Bayview Valley Development Limited v. Markham (City)

1. 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

2. The video hearing will begin on April 2, 2024, at 10 a.m.

3. The length of the hearing is eight (8) days. The Tribunal will not be sitting on April 8, 2024. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. 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.

6. 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.

7. 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.

8. 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

9. 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 9, 2024, 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. Any challenges to the qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or before January 29, 2024.

10. Expert witnesses in the same field shall have a meeting and use best efforts to try to resolve or reduce the issues for the hearing on or before February 2, 2024. 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 16, 2024.

11. 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.

12. 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.

13. On or before March 1, 2024, the parties shall provide copies of their witness and/or expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before March 1, 2024, 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.

15. On or before March 8, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before March 22, 2024, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before March 18, 2024, and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 26, 2024.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 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.

22. All filings shall be submitted electronically. 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.

23. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties before December 22, 2023. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for the Tribunal to adjourn the hearing.

24. 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.

SUMMARY OF DATES

DATE	EVENT
December 22, 2023	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
January 9, 2024	Exchange of witness lists (names, disciplines and order to be called)
January 29, 2024	Challenges to qualifications of witnesses, if any
February 2, 2024	Experts Meeting
February 16, 2024	Experts Agreed Statement of Facts
March 1, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
March 18, 2024	Exchange of Reply Witness Statements (if any)
March 22, 2024	Exchange of visual evidence (if any)
March 26, 2024	Final Work Plan filed with the Tribunal
March 26, 2024	Preparation of Joint Document Book
April 2, 2024	Hearing commences

ATTACHMENT 1 PARTIES/PARTICIPANTS

Parties

1. Cardea Bayview Valley Development Limited David Bronskill/Max Laskin (416) 597-4299/(416) 849-6938 dbronskill@goodmans.ca/mlaskin@goodmans.ca

2. City of Markham Maggie Cheung-Madar (905) 477-7000, x. 3583 mcheung-madar@markham.ca

3. Angelo DeGasperis, Aziz and Amina Bhaloo, Beverley Thompson, Liwen Zhou, David Farajun, Andy Bakhtiari (the “Residents”) Meaghan McDermid (416) 263-4514 meaghanm@davieshowe.com

Participants

1. Burstein, David (416) 822-6366 theca13@rogers.com

2. Pnina and Harry Turk (with Mr. Jordan Turk as agent on their behalf) (416) 312-4951 jordan@geno-tech.net

3. Lydia Mizzi 289-597-2074 lydiamizzi@gmail.com

ATTACHMENT 2 ISSUES LIST

Note: The identification of an issue is not to be taken as an agreement of all parties that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the proceedings.

City of Markham

1. Does the Zoning By-law Amendment (the “ZBA”) have regard to matters of Provincial Interest as set out in Section 2 of the Planning Act, including but not limited to:

(h) the orderly development of safe and healthy communities;

(p) the appropriate location of growth and development;

(r) the promotion of built form that:

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant?

2. Is the ZBA consistent with the Provincial Policy Statement, as required by Section 3(5)(a) of the Planning Act, including the following Sections:

• 1.1.1 g) (Managing and Directing Land Use)

• 1.4.1 and 1.4.3.c), (Housing)

• 1.6.1, 1.6.6.1, and 1.6.6.7 (Infrastructure and Public Service Facilities)

• 4.6 (Implementation through Official Plans)

3. Does the ZBA conform to the Growth Plan for the Greater Golden Horseshoe, as required by Section 3(5)(b) of the Planning Act, including the following Section:

• 2.2.6 1 and 2.2.6.2 (Housing)

• 3.2.6 (Water and Wastewater Systems)

4. Does the ZBA conform to the Regional Municipality of York Official Plan, 2022, in particular policies:

• 2.3.1 and 2.3.13 (Complete Communities)

• 4.1.3.b (Small scale intensification and infill based on the local context)

• 4.4.1,4.4.2, 4.4.4, 4.4.5, 4.4.7, 4.4.10, 4.4.13, 4.4.14, 4.4.16, (Intensification)

• 7.3.2 (Planning Process)

5. Does the ZBA conform to the City of Markham 2014 Official Plan, including:

• 2.4 (Intensification Strategy)

• 6.1.1, 6.1.5, 6.1.2, 6.1.4, and 6.1.8 (Urban Design)

• 8.2.1 and 8.2.3 (Residential Land Use)

• 9.18.2 and 9.18.5 (Land Use Objective – Thornhill District)

6. Is the built form proposed in the ZBA, particularly the proposed heights, density, driveway locations, parking, , location of services, preservation of mature trees, appropriate for the subject site and compatible with the surrounding residential neighbourhood?

7. Does the Proposed Development, located outside of a priority intensification area, represent an incremental and appropriate form of intensification when considering the unique residential character of the neighbourhood and the existing zoning by-law provisions of By-law 1767 and Single Family Greenbelt Residential Zone?

8. Has the Proposed Development demonstrated that there is sufficient servicing infrastructure including wastewater capacity, to accommodate the Proposed Development?

9. Does the ZBA represent good land use planning and is it in the public interest?

10. Should holding provisions be applied to address:

• sanitary servicing capacity; and

• execution of a Parkland Agreement.

11. Should the Tribunal withhold issuance of its Final Order pending confirmation that:

a. the final form and content of the draft ZBA are satisfactory to the City; and

b. the appellant has entered into agreement(s) for the construction of sanitary service infrastructure improvements, where required, at no cost to the City and to the satisfaction of the City’s Director of Engineering; and

c. the appellant has protected for the future road widening on Bayview Avenue to the satisfaction of the Region; and

d. the appellant has resolved any requirements related to archaeological assessments to the satisfaction of the Ministry of Tourism, Culture and Sport.

**The City of Markham reserves the right to revise, scope or remove issues as matters are settled between the parties

The Residents

1. Does the proposed development have appropriate regard to matters of Provincial interest as set out in section 2 of the Planning Act, including:

(h) the orderly development of safe and healthy communities;

(p) the appropriate location of growth and development;

(r) the promotion of built form that:

(i) is well-designed; (ii) encourages a sense of place; and (iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;

2. Does the zoning by-law amendment and proposed development:

3. conform with the Markham Official Plan, 2014, including but not limited to policies:

• 2.2.2.3, 2.4.3, 2.4.5, 2.4.7, 2.4.8, 2.4.9;

• 3.2.1(c);

• 6.1.1.5(i, j, k), 6.1.4.5, 6.1.8.2, 6.1.8.3, 6.1.8.4, 6.1.8.5, 6.1.8.6;

• 8.2.1.1, 8.2.1.3, 8.2.3.1(a), 8.2.3.3(a), 8.2.3.5 (a-l inclusive);

• 9.18.2, 9.18.3, and 9.18.5?

2. have appropriate regard for policy 1.4.3(d) of the Markham Official Plan, 2014 which is under appeal?

3. Is the proposed development compatible with the surrounding neighbourhood?

4. Does the proposed development respect the physical character of the surrounding established neighbourhood?

5. Is the proposed development appropriate for the subject site in respect of its proposed building type, built form, height, density, scale, massing, setbacks and relationship to existing buildings?

6. Is the configuration, frontage, location, and orientation of buildings appropriate given the existing lot pattern and context?

7. Will the proposed development result in unacceptable adverse impacts to adjacent properties and the surrounding neighbourhood?

8. Is the required removal of, or injury to, existing trees on the subject site and adjacent properties appropriate?

9. Are the proposed zoning by-law regulations appropriate and representative of good planning? If not, what are the appropriate zoning regulations?

10. Do the zoning by-law amendment and proposed development represent good planning?

11. Has it been adequately demonstrated that the proposed development will not result in unacceptable traffic impacts to the surrounding road network or the existing environment on Steele Valley Road?

12. Will the proposed development exacerbate and deteriorate any traffic safety concerns on the surrounding road network?

ATTACHMENT 3 ORDER OF EVIDENCE

1. Cardea Bayview Valley Development Limited

2. City of Markham

3. The Residents

4. Cardea Bayview Valley Development Limited, in reply (if any)

Attachment to Sample Procedural Order

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.