Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 28, 2023
CASE NO(S).:
OLT-22-004384
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant:
Ian Ferris & Cinzia Arcuri
Alisha & David Hirsch
Subject:
Zoning By-law Amendment
Description:
To permit the development of 3 cabins
Reference Number:
Z.12.2022
Property Address:
687139 Sideroad 19
Municipality/UT:
City of Grey Highlands/ County of Grey
OLT Case No.:
OLT-22-004384
OLT Lead Case No.:
OLT-22-004384
OLT Case Name:
Hirsch v. Grey Highlands (City)
Heard:
February 8, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Ian Ferria and Cinzia Arcuri ("Applicants")
Victor Vandergust
David and Alisha Hirsch ("Appellants")
Carly Emmett
Grey Highlands ("Municipality")
Edward Veldboom
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON FEBRUARY 8, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened a Case Management Conference ("CMC") on an appeal filed by David and Alisha Hirsch ("Appellants") against the Municipality of Grey Highlands ("Municipality") regarding Council’s approval of Zoning By-law No. 2022-070 ("ZBLA") application concerning 687139 Sideroad 19 ("Subject Lands").
2The purpose of the ZBLA application is to amend the Zoning By-law No. 2004-50 ("ZBL") to permit a maximum of three (3) cabins (less than 10 square meters ("m2")) for overnight short-term accommodation purposes on the Subject Lands. The effect of this ZBLA is to rezone a portion of the Subject Lands from Agricultural (A1) to Open Space (OS-448). The Open Space zone permits the proposed use. The 448 exception will limit the number of permitted cabins to a total of three (3).
3The Subject Lands are composed of two separate lots. One parcel is 11.4 hectares ("ha") in size with approximately 165 m fronting on Sideroad 19 containing a dwelling, barn, shed and workshop. The other parcel is 20 ha in size with no frontage or structures abutting the first parcel at its northwest corner of the lot.
4The Council approved ZBLA 2022-070 on August 3, 2022 on recommendations from Planning staff, to permit a maximum of three (3) cabins for accommodation purposes and uses accessory, to support the agri-tourism use of the lands subject to the following provisions;
i. No building or structure forming part of or associated with the agri-tourism use of the lands shall be located within 10.0 m of the west property line.
ii. The agri-tourism use will be treated as "hosted" wherein the property owners will be present on the property while the cabins are rented.
iii. Site Plan Approval in accordance with section 41 of the Planning Act shall apply.
5The Appellants filed their appeal on September 2, 2022 noting the proposal does not have regard to the Planning Act, is not consistent with the Provincial Policy Statement ("PPS"), does not conform with the County of Grey Official Plan (2019) and Municipality of Grey Highlands Official Plan (2017). Finally, the proposal does not meet the general intent and purpose of the Municipality of Grey Highlands ZBL 2004-50 as amended.
6The Notice of Affidavit was marked as Exhibit 1.
PARTY and PARTICIPANT STATUS REQUEST
7Upon commencement of the Hearing the Tribunal confirmed no further request for Party or Participant status.
HEARING
8Carly Emmett, Counsel for the Appellant, provided background to the application. She advised there have been continued discussions with the Applicant and Municipality surrounding the Draft Procedural Order ("DPO") and Issues List. Ms. Emmett provided to the Tribunal a DPO and Issues List and noted there still needed to be time to scope some of the issues. Ms. Emmett advised they will be calling two witnesses and proposed a two-day hearing date.
9Victor Vandergust, Counsel for the Applicant, advised that some issues on the Issues List were too broad in scope and that he didn’t know whether he should file a motion to dismiss. The Tribunal noted particular issues that were further refined by Ms. Emmett. Mr. Vandergust noted that he was not opposed to scheduling a two-day hearing but that he wanted to ensure that all Parties expert witnesses were identified and would meet as per the DPO to scope the issues further.
10Ed Veldboom, Counsel for the Municipality was in agreement that it is reasonable to set a two-day hearing considering the anticipated witnesses to be called.
MEDIATION
11Ms. Emmett advised that Tribunal-led mediation would not benefit the Parties at this time, however, she is aware that it is available if required.
HEARING DATES
12The Tribunal directs that a Hearing will be held by video hearing commencing on Thursday, April 27, 2023, at 10 a.m.
13Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/719383509
Access code: 719-383-509
14Parties 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 at: https://app.gotomeeting.com/home.html
15Persons 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. +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889. The access code is: 692-665-589.
16Individuals 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.
17No further notice will be given.
THE FINALIZATION OF A PROCEDURAL ORDER AND ISSUES LIST
18The Parties requested further time to provide a DPO including the Issues List with all dates to be included in the Draft Order.
19The Tribunal allowed the Parties to submit to the Tribunal the Draft of the Procedural Order including the Issues List by Friday, February 17, 2023.
20The Tribunal has since received the final draft of the Procedural Order and Issues List. The Final PO as approved by the Tribunal is appended to this Order as Schedule 1.
ORDER
21The Tribunal Member is not seized and may be spoken to for case management purposes subject to the availability of the Tribunal’s calendar.
22The directions in this Decision are so ordered.
"Eric S. Crowe"
ERIC S. CROWE
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.
SCHEDULE 1
ISSUE DATE: February 28, 2023
OLT CASE NO.: OLT-22-004384
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant:
Ian Ferris & Cinzia Arcuri
Alisha & David Hirsch
Subject:
Zoning By-law Amendment
Description:
To permit the development of 3 cabins (1 of the cabins exists and was as permitted and licensed by muni)
Reference Number:
Z.12.2022
Property Address:
687139 Sideroad 19
Municipality/UT:
Municipality of Grey Highlands/ County of Grey
OLT Case No.:
OLT-22-004384
OLT Lead Case No.:
OLT-22-004384
OLT Case Name:
Hirsch v. Grey Highlands (Municipality)
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 April 27, 2023 at 10 a.m./p.m. Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/719383509
Access code: 719-383-509
The parties’ initial estimation for the length of the hearing is 2 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 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).
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. (Note: We do not agree with the Issues List)
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.
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 February 24, 2023 (date – at least 55 days prior to the start of the hearing ) and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before March 8, 2023 (date) and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before March 10, 2023 (date – at least 15 days prior to the start of the hearing).
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before March 13, 2023 (date – at least 45 days prior to the start of the hearing), the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before March 13, 2023 (date – at least 45 days prior to the start of the hearing), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before March 23, 2023 (date – at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before March 23, 2023(date), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 14, 2023 (date – at least 10 days prior to the start of the hearing).
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 20, 2023 (date – at least 7 days prior to the start of the hearing) with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
This Member is [not] seized.
So orders the Tribunal.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
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.
SUMMARY OF DATES
DATE
EVENT
Feb 24th
Parties to exchange lists of witnesses (names, disciplines and order to be called)
Participants Statements to be exchanged
March 13th
Witness Statements, expert reports, and the written evidence of witnesses to be exchanged.
March 23rd
Reply Witness Statements to be exchanged
March 23rd
Parties to exchange copies of visual evidence
April 20th
Parties to file draft Hearing Plan with the Tribunal
April 27th
Hearing commences
ATTACHMENT 1
PARTIES AND PARTICIPANTS
Party
Counsel / Representative
Municipality of Grey Highlands
Edward Veldboom Russell Christie LLP 505 Memorial Ave Orillia, ON L3V 1W5 Email: eveldboom@russellchristie.com Tel: (705) 325-1326
Applicant Ian Ferris & Cinzia Arcuri
Victor Vandergust Victor L. Vandergust Prof. Corp. 11 Hurontario Street, PO Box 39 Collingwood, ON L9Y 3Z4 Email: vic@vandergustlaw.com Tel: (705) 445-4544
Appellant Alisha & David Hirsch
Sarah Hahn Carly Emmett Barriston Law 151 Ferris Lane, Suite 202 Barrie, ON L4M 6C1 Email: shahn@barristonlaw.com cemmett@barristonlaw.com Tel: (705) 792-9200
ATTACHMENT 2
ISSUES LIST
NOTE: 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.
- As the subject lands are considered Prime Agricultural Lands, does the proposed development have appropriate regard to matters of provincial interest as per Planning Act, s. 2 (b), being the protection of the agricultural resources of the Province? (Appellant position)
(Applicant position): We acknowledge that the subject lands are located in a Prime Agricultural Area however we do not accept at this time that the lands are considered Prime Agricultural Lands.
- Does the proposed development meet the requirements of an "On-Farm Diversified Use" and have sufficient regard to the matters set out in subsection 34 (Zoning By-laws) of the Planning Act? (Appellant)
(Applicant) What requirements are being referring to? Are they the PPS, County OP, Grey Highlands OP or ? We do not understand why the words "and have sufficient regard to the matters set out in subsection 34 (Zoning By-laws) of the Planning Act" are included. Please explain/advise. The OFDU question appears to be a duplication of Item 7.
If the proposed development does not meet the definition of an "On-Farm Diversified Use", is the proposed development consistent with the Provincial Policy Statement (PPS 2020) sections 1.1, 1.1.1 (a), 1.1.4.1 (a), (f), (g), 2.3.1. 2.3.3.1, 2.3.3.3?
Has the proposed development met the required "Minimum Distance Separation Formulae" as required in the PPS 2020 policies listed in Issue 3?
Does the proposed development conform with the County of Grey Official Plan sections 5.2.1, 5.2.1(c), 5.2.1.2, 5.2.1.8, 5.2.2.14, 5.2.2.15, 5.2.2.18, 10.5.13? Specifically, is the proposed development a permitted use under the listed policies and has it met the policy requirements?
Does the proposed development conform with the Municipality of Grey Highlands Official Plan sections 4.1.1, 4.1.2 (e), 6.1.1, 6.1.6 ? Specifically, does the proposed development meet the definition of an "On-Farm Diversified Use" or any other permitted uses allowed under these policies?
Does the proposal meet the definition of an "On-Farm Diversified Use" and fulfill the required criteria of the Ministry of Agriculture, Food and Rural Affairs "Guidelines on Permitted Uses In Ontario’s Prime Agricultural Areas", specifically sections 2.3.1, 2.4 and 3.1.2?
(Applicant) This is a duplication of Item 2.
- Does the proposed Zoning By-law Amendment represent good planning?
ATTACHMENT 3
ORDER OF EVIDENCE