Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 27, 2023
CASE NO(S).: OLT-22-004333
PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: 225311 Ontario Inc.
Appellant: TRG-KFH (Lakeside) Inc.
Subject: Proposed Official Plan Amendment
Description: to adopt OPA 49 - Resort Village of Minett
Reference Number: Official Plan Amendment 49
Property Address: 1050 Paignton House Road (Resort Village of Minett)
Municipality/UT: Muskoka Lakes/Muskoka
OLT Case No: OLT-22-004333
OLT Lead Case No: OLT-22-004333
OLT Case Name: TRG-KFH (Lakeside) Inc. v. District Municipality of Muskoka
PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Proposed Official Plan Amendment
Description: to adopt OPA 56 - Resort Village of Minett
Reference Number: Official Plan Amendment 56
Property Address: 1050 Paignton House Road (Resort Village of Minett)
Municipality/UT: Muskoka Lakes/Muskoka
OLT Case No: OLT-22-004334
OLT Lead Case No: OLT-22-004333
Heard: December 4, 2023 and December 7, 2023
APPEARANCES:
Parties
Counsel/Representative*
225311 Ontario Inc. and TRGKFH (Lakeside) Inc. (“Appellants”)
Leo Longo
Township of Muskoka Lakes
Edward Veldboom
District of Muskoka
Jamie Clow
2084311 Ontario Limited
David Bronskill
Friends of Muskoka
Ken Pearce*
MEMORANDUM OF ORAL DECISION DELIVERED ON DECEMBER 7, 2023 BY S. deBOER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was originally scheduled to be a Hearing of the Merits concerning the appeals by 225311 Ontario Inc. and TRGKFH (Lakeside) Inc. (the “Appellants”). The Appeals relate to Official Plan Amendment No. 49 of the District of Muskoka and Official Plan Amendment No. 56 of the Township of Muskoka Lakes (“OPAs”) concerning the Resort Village of Minett.
2Prior to the beginning of the Hearing, the Tribunal had received correspondence that the Parties were close to a settlement concerning the OPAs. However, due to a lack of a settlement and a lack of materials received by the Tribunal concerning the Merits Hearing, the Tribunal ruled that a third Case Management Conference (“CMC”) was necessary to decide on the next steps in this matter.
3The Tribunal reviewed the previously approved Procedural Order (“PO”) and Issues List (“IL”) with the Parties. The Parties agreed that, due to meetings of the experts on both sides, many issues have been resolved and it was the intent of the Parties to have a settlement of all of the issues before the start of the Merits Hearing.
4The Tribunal stood down and directed the Parties to complete an updated PO and IL and to present it to the Tribunal for review and approval. The Tribunal reconvened the CMC three days later, at which time a new PO and IL was submitted to the Tribunal for review. The Tribunal directed the Parties to inform the Tribunal of possible next steps after the approval of the PO and IL, including hearing dates and the number of witnesses that will be required.
MEDIATION
5The Tribunal asked the Parties if Tribunal-led mediation would be welcomed by the Parties. The Parties stated that Tribunal-led mediation may be used by the Parties. However, the Parties agreed that this would only be used after the next meeting of the experts was completed.
NEXT STEPS
6The Tribunal has received the updated PO and IL and approves of their contents. The Parties have requested a hearing length of three days. The Tribunal has scheduled a Hearing of the Merits is to commence on Wednesday, May 15, 2024, at 10 a.m. by video conference for a duration of three days.
7Parties 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/519389173
Access code: 519-389-173
8Parties 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
9Persons 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 519-389-173.
10Individuals 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.
ORDER
11THE TRIBUNAL ORDERS that a Hearing of the Merits is to commence on Wednesday, May 15, 2024, at 10 a.m. by video conference for a duration of three days.
12The attached Procedural Order is to govern the procedures leading up to and including the Video Hearing, as set out in Schedule 1 to this Order, and is in full force and effect on the issue date of the Order.
13No further Notice is required.
14The Member is not seized.
“S. deBoer”
S. deBOER
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 1
CASE NO(S).: OLT-22-004333
PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: 22531100 Ontario Inc.
Appellant: TRG-KFH (Lakeside) Inc.
Subject: Proposed Official Plan Amendment
Description: to adopt OPA 49 - Resort Village of Minett
Reference Number: Official Plan Amendment 49
Property Address: 1050 Paignton House Road (Resort Village of Minett)
Upper Tier Municipality: District of Muskoka
OLT Case No: OLT-22-004333
OLT Lead Case No: OLT-22-004333
OLT Case Name: TRG-KFH (Lakeside) Inc. v. District Municipality of Muskoka
PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Proposed Official Plan Amendment
Description: to adopt OPA 56 - Resort Village of Minett
Reference Number: Official Plan Amendment 56
Property Address: 1050 Paignton House Road (Resort Village of Minett)
Municipality/UT: Muskoka Lakes/Muskoka
OLT Case No: OLT-22-004334
OLT Lead Case No: OLT-22-004333
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 May 15, 2024 at 10:00am.
The length of the hearing is three (3) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible. The procedural order deadlines are generally found in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2.
The issues are set out in the Issues List attached as Attachment 3. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person 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 5, 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. A party intending to challenge an identified witness must provide such notice by January 12, 2024.
Expert witnesses in the same field shall have a meeting on or before March 1, 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 (if any) with the OLT case co-ordinator on or before March 8, 2024.
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 March 20, 2024, 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 March 20, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before April 17, 2024 and in accordance with paragraph 22 below.
On or before April 26, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before May 2, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before May 2, 2024.
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 on or before May 2, 2024 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 May 2, 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.
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.
These Members are not seized.
So orders the Tribunal.
BEFORE:
Name of Members: Steve DeBoer
Date: December 7, 2023
TRIBUNAL REGISTRAR
ATTACHMENT 1
SUMMARY OF DATES
DATE
EVENT
January 5, 2024
Exchange of witness lists (names, disciplines and order to be called)
January 12, 2024
Last date to challenge identification of expert witnesses
March 1, 2024
Experts’ Meetings to be Completed
March 8, 2024
Experts’ Agreed Statement of Facts and Issues (if any)
March 20, 2024
Exchange of Witness Statements, summoned witness outlines, and Expert Reports
April 17, 2024
Exchange of Reply Witness Statements (if any)
April 26, 2024
Parties to confirm if all hearing dates required
May 2, 2024
Exchange of visual evidence (if any)
May 2, 2024
Filing of Joint Document Book and Work Plan
May 15, 2024
Hearing commences
ATTACHMENT 2
LIST OF PARTIES/PARTICIPANTS
PARTIES
- TRG-KFH (Lakeside) Inc. (Appellant)
Leo Longo
416.865.7778
- 22531100 Ontario Inc. (Appellant) Leo Longo
416.865.7778
- District Municipality of Muskoka
Jamie Clow
705.645.2100 ext. 4251
- The Township of Muskoka Lakes
Ed Veldboom
705.325.1326 (x237)
- 2084311 Ontario Limited
David Bronskill
416.597.4299
- Friends of Muskoka
Ken Pearce (Representative)
416-476-4124
ATTACHMENT 3
ISSUES LIST
The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing. The parties also reserve the right to bring a motion regarding the appropriateness or relevance of the issues in advance of or at the hearing. The failure of either party to bring such a motion shall not imply consent to the issues as appropriate or relevant or preclude either party from bringing related evidence or argument at the hearing.
I - OPA 49, as modified
TRG-KFH (LAKESIDE) INC. – no remaining issues
2253100 ONTARIO INC. – no remaining issues
2084311 ONTARIO LIMITED
Should policy J5.4.5(c) be deleted?
Does the proposed deletion of policy J5.4.5(c) result in the elimination of any requirement for existing development to connect to municipal sewage services and municipal water services when they are available? If so:
(a) Is the proposed deletion of policy J.5.4.5(c) consistent with the Provincial Policy Statement (2020)?
(b) Does the proposed deletion of policy J.5.4.5(c) appropriately implement the Official Plan for the District Municipality of Muskoka?
II - OPA 56, as modified
TRG-KFH (LAKESIDE) INC. – no remaining issues
2253100 ONTARIO INC.
Should the following new subsection be added after Section C1.6.2.3 d): “e) Resort-Related Residential Dwelling Units on lands within the RC3 and RC4 designations, which shall not exceed 50% and 30%, respectively of the total number of Units permitted within each of the areas designated RC3 and RC4 as shown on Schedule C subject to Section C1.6.2.4 below.”?
Should section C1.6.2.4 g) be revised by adding the following after the words “Dwelling Units”…“,with the exception of the lands designated RC3 where the Resort-Related Residential Dwelling Units shall not exceed 50%.”?
- 2084311 ONTARIO LIMITED
Should policy C1.4.6.4 be deleted?
Does the proposed deletion of policy C1.4.6.4 result in the elimination of any requirement for existing development to connect to municipal sewage services and municipal water services when they are available? If so:
(a) Is the proposed deletion of policy C1.4.6.4 consistent with the Provincial Policy Statement (2020)?
(b) Does the proposed deletion of policy C1.4.6.4 appropriately implement the Official Plan for the Township of Muskoka Lakes?
ATTACHMENT 4
ORDER OF EVIDENCE
TRG-KFH (Lakeside) Inc. (Appellant)
225311 Ontario Inc. (Appellant)
The Township of Muskoka Lakes
The District of Muskoka
2084311 Ontario Limited
Friends of Muskoka
TRG-KFH (Lakeside) Inc., in reply (if any)
225311 Ontario Inc., in reply (if any)
ATTACHMENT 5
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.
55251453.1