Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 10, 2023

CASE NO(S).: OLT-21-001567 OLT-21-001788

PROCEEDING COMMENCED UNDER subsection 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: ONE Properties Limited Partnership Respondent: Hamilton Conservation Authority Subject: Appeal of refusal to grant permission for development Property Address/Description: 140 Garner Road East Municipality: City of Hamilton OLT Case No.: OLT 21-001567 OLT Case Name: ONE Properties Limited Partnership v. Hamilton Conservation Authority

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: ONE Properties Limited Partnership Subject: Proposed Plan of Subdivision - Failure of the City of Hamilton to make a decision Purpose: To develop a prestige business park Property Address/Description: 140 Garner Road East Municipality: City of Hamilton Municipal File No.: 25T-201806 OLT Case No.: OLT-21-001788 OLT Lead Case No.: OLT-21-001788 OLT Case Name: ONE Properties Limited Partnership v. Hamilton (City)

Heard: October 26, 2022 by video hearing

APPEARANCES:

Parties	Counsel
ONE Properties Limited Partnership	Patrick Harrington and Meaghan Barrett
Hamilton Conservation Authority	Francesca D’Aquila-Kelly
Environmental Defence	Philip Pothen
City of Hamilton	Patrick MacDonald

decision DELIVERED BY WARREN MORRIS AND Hugh s. Wilkins ON OCTOBER 26, 2022 AND ORDER OF THE TRIBUNAL

BACKGROUND

1This Decision arises from a Case Management Conference (“CMC”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding two appeals by ONE Properties Limited Partnership (the “Appellant”). The first is a draft Plan of Subdivision appeal (the “Subdivision Appeal”) and the second is an appeal under the Conservation Authorities Act (“CAA Appeal”). Both proceedings concern the proposed development of a business park on a 35.27-hectare property located at 140 Garner Road East (the “Site”), in the City of Hamilton (the “City”).

2The Appellant is the proponent of a draft Plan of Subdivision application for the proposed development of the Site. The proposed development would include 14 development blocks, a storm water management block, a wetland open space block, and four roadways. The subdivision application was deemed complete by the City on November 20, 2018, however, no decision has been rendered by the City to date with respect to the subdivision application. The Appellant appealed to the Tribunal regarding the failure of the City to render a decision within the statutory timeframe of 120 days, in accordance with s. 51(34) of the Planning Act (OLT Case No. 21-001788).

3The proposed development which is the subject of the Subdivision Appeal involves the relocation of a local wetland on the Site. On June 3, 2021, the Hamilton Conservation Authority (the “HCA”) refused an application for permission to relocate the wetland. On June 18, 2021, the Appellant filed an appeal with the Tribunal under s. 28(15) of the Conservation Authorities Act, in respect of the HCA’s refusal to approve such application (OLT Case No. 21-001567).

4A CMC was held for the CAA Appeal proceeding on February 8, 2022 at which the Tribunal granted Party status to Environmental Defence and Participant status to several individuals.

5A further CMC was held on May 9, 2022 addressing both proceedings. At the CMC, the Tribunal addressed: requests for Party and Participant status; a request from the Appellant that the Subdivision and CAA Appeal proceedings be consolidated and heard in one single phase; opportunities for settlement discussions; and the scheduling of the hearing. The following was ordered: i) four individuals were granted Participant status; ii) the City was granted Party status in the CAA appeal; iii) all Participants were granted Participant status in both the CAA and Subdivision proceedings; and iv) the two appeals were ordered to be heard together in one phase. It was determined at the CMC that the appeals would require 15 days of Tribunal hearing time.

6Subsequently, in July 2022, the Tribunal directed the Parties to prepare and file a draft Procedural Order and Issues List. Despite efforts to reach an agreement on the content of these documents, the Parties were unsuccessful. The Tribunal directed that a further CMC be held in October 2022 to address these issues and to schedule a hearing.

7At the October CMC, the Tribunal provided directions on the order of evidence at the hearing and it set hearing dates for October 2023. It directed that the Parties finalize and file a draft Procedural Order and Issues List with the Tribunal by Friday, October 28, 2022.

8On October 28, 2022, the Tribunal received a finalized draft Procedural Order and Issues List, which it has now reviewed and approves as set out in Attachment 1 to this Order and Decision.

ORDER

9The Tribunal approves the Procedural Order and Issues List set out in Attachment 1 attached to this Order and Decision.

10The Tribunal orders that the hearing of the appeals will commence on October 2, 2023 at 10 a.m. for 15 consecutive days not including October 9, 16 and weekends.

11Parties 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:

https://meet.goto.com/348282861

Access Code: 348-282-861

12Parties and Participants are asked to set up the video hearing 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.

13Persons 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.

14Individuals 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 Hearing Office’s Case Coordinator having carriage of this case.

15There will be no further notice.

16These Members are not seized.

“Warren Morris”

warren morris

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

VICE CHAIR

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

CASE NO(S).: OLT-21-001567 OLT-21-001788

PROCEEDING COMMENCED UNDER subsection 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C. 27, as amended

Appellant: ONE Properties Limited Partnership Respondent: Hamilton Conservation Authority Subject: Appeal of refusal to grant permission for development Property Address/Description: 140 Garner Road East Municipality: City of Hamilton OLT Case No.: OLT 21-001567 OLT Case Name: ONE Properties Limited Partnership v. Hamilton Conservation Authority

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: ONE Properties Limited Partnership Subject: Proposed Plan of Subdivision – Failure of the City of Hamilton to make a decision Purpose: To develop a prestige business park Property Address/Description: 140 Garner Road East Municipality: City of Hamilton Municipal File No.: 25T-201806 OLT Case No.: OLT-21-001788 OLT File No.: OLT-21-001788 OLT Case Name: ONE Properties Limited Partnership v. Hamilton (City)

PROCEDURAL ORDER

1. The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

2. The video hearing will begin on October 2, 2023 at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is 15 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.

4. The parties and participants identified at the case management conference are set out in Attachment 2. Unless the Tribunal directs otherwise, a person who wishes to become a party or participant at the hearing who Is not listed in Attachment 2 must make the necessary motion to the Tribunal. The Tribunal may refuse to grant such status.

5. The Issues to be adjudicated at the hearing 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.

6. 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.

7. The meaning of the terms used in this Procedural Order are identified in Attachment 5.

8. Any person granted status 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.

9. 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

10. 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 June 5, 2023 [119 calendar days before the hearing is scheduled to commence]. 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.

11. Expert witnesses in the same field shall have a meeting on or before June 23, 2023 [101 calendar days before the hearing is scheduled to commence] 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 June 29, 2023 [95 calendar days before the hearing is scheduled to commence].

12. 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 section 14. 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.

13. 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 section 14. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section 14.

14. On or before July 4, 2023 [90 calendar days before the hearing is scheduled to commence], the parties shall provide copies of their witness and expert witness statements to the other parties and to the Tribunal.

15. On or before July 4, 2023 [90 calendar days before the hearing is scheduled to commence], a participant shall provide copies of their written participant statement to the parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. Parties may provide to all other parties and the Tribunal and file a written response to any written evidence on or before August 3, 2023 [60 calendar days before the hearing is scheduled to commence].

17. On or before August 18, 2023 [45 calendar days before the hearing is scheduled to commence], the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. The parties shall prepare and file a hearing plan with the Tribunal on or before August 18, 2023 [45 calendar days before the hearing is scheduled to commence] 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.

19. The parties shall cooperate to prepare a joint document book September 8, 2023 [24 calendar days before the hearing is scheduled to commence] and which one copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in an accessible electronic format in accordance with Section 22.

20. 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.

21. 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.

22. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). 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 email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable.

23. 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.

ATTACHMENT 1 SUMMARY OF DATES

DATE	EVENT
June 5, 2023 (119 days prior to hearing)	Exchange of witness lists (names, disciplines and order to be called)
June 23, 2023 (101 days prior to hearing)	Experts meeting prior to this date
June 29, 2023 (95 days prior to hearing)	Agreed Statement of Facts
July 4, 2023 (90 days prior to hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
August 3, 2023 (60 days prior to hearing)	Exchange of response to Witness Statements (if any)
August 18, 2023 (45 days prior to hearing)	Exchange of visual evidence (if any)
August 18, 2023 (45 days prior to hearing)	Final Work Plan filed with the Tribunal
September 8, 2023 (24 days prior to hearing)	Finalize Joint Document Book
October 2, 2023	Hearing commences

ATTACHMENT 2 LIST OF PARTIES AND PARTICIPANTS

Parties to OLT Case No. OLT-21-001567 (Conservation Act Appeal)

ONE Properties Limited Partnership Patrick Harrington & Meaghan Barrett Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Tel: 416-863-1500 Fax: 416-863-1515 Email: pharrington@airdberlis.com mbarrett@airdberlis.com

Hamilton Conservation Authority John A. Olah & Francesca D’Aquila-Kelly 130 Adelaide St West, 7th Floor Toronto, ON M5H 2K4 Tel: 416-593-5555 Fax: 416-593-7760 Email: jolah@beardwinter.com fdaquila-kelly@beardwinter.com

Environmental Defence Philip Pothen 2600 Danforth Avenue Toronto, ON M4C 1L3 Tel: 647-706-5937 Email: phil.pothen@torontoplanninglawyer.com

City of Hamilton Patrick MacDonald Legal Services Division, Corporate Services Department 50 Main Street East, 5th Floor Hamilton, ON L8N 1E9 Tel: 905-546-2424 Ext. 4708 Fax: 905-546-4370 Email: Patrick.MacDonald@hamilton.ca

Parties to OLT Case No. OLT-21-001788 (Planning Act Appeal)

ONE Properties Limited Partnership Patrick Harrington & Meaghan Barrett Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Tel: 416-863-1500 Fax: 416-863-1515 Email: pharrington@airdberlis.com mbarrett@airdberlis.com

City of Hamilton Patrick MacDonald Legal Services Division, Corporate Services Department 50 Main Street East, 5th Floor Hamilton, ON L8N 1E9 Tel: 905-546-2424 Ext. 4708 Fax: 905-546-4370 Email: Patrick.MacDonald@hamilton.ca

Participants to OLT Case Nos. OLT-21-001567 & OLT-21-001788

1. Theresa Cardey
2. Stephen Chalastra
3. Marie Covert
4. Brigitte Evering
5. Carolanne Forster
6. Carrie Hewitson
7. Geoffrey Honey
8. Rose Janson
9. Karen Lawrence
10. Gail Lorimer
11. Gord McNulty
12. Henry Muggah
13. Norman Newbery
14. Zoe Green
15. Judy Major-Girardin
16. Joanne Palangio
17. Nancy Hurst
18. James Quinn
19. Aislyn Sax
20. Tom St. Michael
21. Kristina Wilson
22. Norma Young
23. Don McLean
24. Alexis Harriman
25. Bruce Newbold
26. Craig Cassar

ATTACHMENT 3 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 the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing

A. Issues List for OLT Case No. OLT-21-001567 (Conservation Act Appeal)

Issues of the Hamilton Conservation Authority

1. Has the Appellant demonstrated that the proposed development at 140 Gardner Road East, Hamilton, ON (the “subject property”) will not affect the conservation of land, including the existing wetland located at the subject property, within the meaning of s.28(1) of the Conservation Authorities Act and s.3(1) of Ontario Regulation 161/06?

2. Has the Appellant shown that the proposed development will not interfere with the existing wetland on the subject property, or with any river, creek, stream or watercourse, or its hydrological function, on the subject property, contrary to sections 2(1)(d), 2(1)(e), and 5, of Ontario Regulation 161/06?

3. Should the Appellant be granted an exemption to HCA’s policies which prohibit development in or within 30 meters of a wetland?

4. Do HCA’s policies permit the destruction of a wetland with the characteristics of the wetland present on the subject property, including but not limited to the size, significance, positioning within the watershed, and the wetland’s ecology and hydrogeology, and the creation of a proposed wetland feature on the subject property, as put forward in the Appellant’s permit application?

5. If the destruction of the wetland and creation of a proposed wetland feature is permitted by this Tribunal, has the Appellant established adequate compensation for the destruction of the existing wetland, including but not limited to consideration of the hydrogeology, soil structure and content, depth and dimensions, input water quality and temperature, plant species composition, animal species composition, habitat adjacencies, the timing of destruction of the wetland, and the sufficiency and security of the Appellant’s financing?

6. Has the Appellant demonstrated that the wetland on the subject property must be destroyed in order to allow development to take place on the subject property?

B. Issues List for OLT Case No. OLT-21-001788 (Planning Act Appeal)

Issues of the City of Hamilton

Planning

1. Is the proposed draft plan of subdivision consistent with the Provincial Policy Statement, including but not limited to Policies 1.1.1, 1.1.3.2, 1.2.1, 1.2.6, and 1.3.2?
2. Does the proposed draft plan of subdivision conform to the Growth Plan, including but not limited to Policy 2.2.5?
3. Does the proposed draft plan of subdivision conform to the Urban Hamilton Official Plan, including but not limited to Policies E.5.2.7.1 and E.5.5?
4. Does the proposed draft plan of subdivision conform to the Airport Employment Growth District Secondary Plan, including but not limited to Policies B.8.3.5, B.8.4.5.7, and B.8.4.5.8?
5. Is the draft plan of subdivision approval premature until such time as a necessary implementing official plan amendment is adopted and in force?
6. Is draft plan of subdivision approval premature until such time as the necessary zoning by-law amendment to implement the proposal is approved, including any requirements to clear the existing Holding Provision on the subject lands?
7. Does the application have sufficient regard for the matters in s. 51(24) of the Planning Act?

Engineering

8. Does the proposal satisfy all requirements and comments identified by Development Approvals including but not limited to grading, stormwater management and servicing and compliance with UHOP policies C.4.0 and C.5.0?
9. Is there sufficient sanitary sewer capacity for the proposed draft plan of subdivision?
10. Is there sufficient water service capacity for the proposed draft plan of subdivision?
11. Can storm water quality and quantity be managed appropriately by the design of the proposed development considering available capacity of the systems downstream including the culvert on Garner Road, ditches on 328 Garner Road, and in accordance with AEGD sub-watershed plan unitary flow rates?
12. With respect to 328 Garner Road:
    1. Does the proposed development have legal/riparian rights for the storm outlet proposed on 328 Garner Road property?
    2. Does the SWM design demonstrate no adverse impact on 328 Garner Road property from increased flow duration, erosion and flooding, including emergency spill or overflow from the proposed dry pond?
13. Does the proposed location, footprint, geometry, side slopes, and maintenance access road for the proposed dry pond meet City’s standards?
14. Does the development meet green infrastructure based LID on public ROW and on each individual block in the draft plan in conformity with the AEGD secondary plan and sub-watershed master plan?
15. Does the proposed development appropriately consider stormwater conveyance for external drainages through the site to the wetland?
16. Does the functional servicing report submitted by the applicant adequately address issues 8 to 15 and 28?

Natural Heritage

17. Does applicant's Environmental Impact Statement demonstrate that the features and functions of the Core Areas will not be negatively impacted, including required setbacks, as required under the Urban Hamilton Official Plan, including but not limited to, C.2.3, C.2.3.3, C.2.5.4, C.2.5.5, C.2.5.8, C.2.5.9, C.2.5.10, C.2.5.12 and C.2.5.13?
18. Does the applicant's Environmental Impact Statement demonstrate that the boundaries of the Core Areas comply with the Urban Hamilton Official Plan policies, including but not limited to C.2.2.2?
19. Has the applicant demonstrated that the proposed development complies with the principles/policies within the AEGD Secondary Plan, including but not limited to, B.8.2.2, 8.2.11, 8.12.1, 8.12.2, 8.9 and 8.9.3?
20. Is consideration of draft plan approval premature prior to determination of the related appeal under the Conservation Authorities Act?

Traffic and Transportation

21. Does the proposed road network conform to the Urban Hamilton Official Plan and the Airport Employment Growth District Secondary Plan, including but not limited to UHOP policy C.4.0?
22. Does the proposed draft plan of subdivision and road network implement appropriate frequency and location of land accesses to Garner Road East and spacing from the Highway 6 interchange?
23. Does the draft plan of subdivision satisfy the requirement of the Transportation Master Plan for appropriate lot fabric and road network patterns?
24. What road alignment is required in order to address impacts on natural heritage features?
25. Is the consideration of transportation impacts premature without a revised TIS?
26. Does the proposal satisfactorily implement mitigation measures or improvements as required to deal with traffic impacts and has the appellant ensured that the mitigation measures or improvements related to traffic impacts will be undertaken at its cost, including but not limited to: dedication of appropriate ROWs, road widenings, and daylight triangles, provision of cycling facilities, multi-use trails, driveway access, signage, sidewalk installation, HSR stop relocation, and infrastructure improvements?

Forestry

27. Do the tree management plan and tree protection plan meet the City’s requirements?

Miscellaneous

28. Are the proposed block sizes appropriate for development of employment uses?
29. Has the applicant provided all materials required by s. 51(17) of the Planning Act, including but not limited to 51(17)(i) and 51(17)(k)?
30. Does the proposed development provide for the conservation and protection of adjacent cultural heritage resources?
31. Does the development appropriately consider the future redevelopment of existing residential lands between the proposed Blocks 1, 2, and 5?
32. Should the appeal be granted, what are the appropriate conditions of draft plan approval?

ATTACHMENT 4

ORDER OF EVIDENCE

1. ONE Properties Limited Partnership
2. Hamilton Conservation Authority
3. Environmental Defence
4. City of Hamilton
5. Reply by ONE Properties Limited Partnership

ATTACHMENT 5

Meaning of terms of used in the Procedural Order:

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. If an unincorporated group wishes to become a party, 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, group 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). Subsection 33.2 of the Local Planning Appeal 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 the witness’ opinions on those issues; and a list of reports 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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.