Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 11, 2023

CASE NO(S).: OLT-22-004051

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

Applicant/Appellant: 2603235 Ontario Limited

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

Description: The subject application proposes to change the zoning on the property from Low Density Urban Residential (R1) to a site-specific Medium Density Urban Residential (R3-xx) zone.

Reference Number: Town File: 0.3.1130

Property Address: 117 Spring Road

Municipality/UT: Georgina/York

OLT Case No: OLT-22-004051

OLT Lead Case No: OLT-22-004051

OLT Case Name: 2603235 Ontario Limited v. Georgina (Town)

Heard: October 12, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Agent*
2603235 Ontario Limited ("Applicant/Appellant")	Kristie Stitt, Ira T. Kagan (in absentia)
Town of Georgina ("Town")	Andrew Biggart

MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN ON October 12, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference ("CMC") respecting an appeal by 2603235 Ontario Limited ("Applicant/Appellant") following the Town of Georgina ("Town") Council’s failure to render a decision respecting an application for a Zoning By-law Amendment to permit the redevelopment of 117 Spring Road ("subject property") in order to allow for the construction of 18 townhomes.

Service of Notice of CMC

2There was no issue with service of the Notice of this CMC, and no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.

Requests for Status

3Gary Foch was granted Participant status on consent of the parties.

4Robert Cullen submitted a request for Party Status in this matter. Mr. Cullen has stated he has been a resident in the area immediate to the subject property for 29 years and asserted that his knowledge of the area would aid the Tribunal in making its decision.

5Counsel for the Appellant opposed the granting of Party status to Mr. Cullen, stating that there was no evidence that a case would be presented to the Tribunal. In his Party Status request form, Mr. Cullen raised concerns of human safety and adequate infrastructure. Despite raising concerns relating to infrastructure, Mr. Cullen confirmed to the Tribunal that he does not plan to cross-examine any witnesses and could not confirm whether or not he intended to bring forward an expert witness at the time of hearing.

6Counsel for the Town supported Mr. Cullen’s request for Party status, believing he has an informed interest of the application and a unique perspective on the development. Mr. Cullen did confirm that he had no intention of raising issue with the appeal overall, and his concerns were limited to those contained in his Party status request form.

7The Tribunal recognizes that the issues raised by Mr. Cullen include matters of infrastructure and transportation that would require expert testimony. Neither the Appellant nor the Town indicated they would call any such witness at the hearing.

8The Tribunal ruled that Mr. Cullen would be granted Party Status, contingent upon providing evidence, on or before November 12, 2022, that an expert witness(es) have been retained, failure of which would demote Mr. Cullen’s status to Participant. Prior to the deadline, Mr. Cullen informed the Tribunal that he would not be bringing forward any expert witness and confirms he will move forward in this matter as a Participant.

MEDIATION AND SETTLEMENT

9The Tribunal explored the possibility of mediation and settlement with the parties. The parties indicated that they had begun preliminary discussions, that it was premature to make such determinations, but would pursue such if possible.

PROCEDURAL ORDER AND ISSUES LIST

10At the time of the CMC, the parties have been working to finalize the Procedural Order ("PO") and Issues List. As the parties had agreed that the documents were not finalized, they undertook to file with the Tribunal the PO and Issues List no later than December 2, 2022.

11Following the conclusion of the CMC, the Town requested an extension on the filing date indicated above due to counsel for the Town falling ill in November of 2022. The parties agreed to prepare a final issues list by December 12, 2022, and file their final PO by December 16, 2022.

12The Tribunal received and reviewed a draft Procedural Order from the parties. The Tribunal finds it acceptable, and the proceedings shall be governed by it, as attached in Schedule 1.

HEARING

13Upon request of the parties, the Tribunal set a second CMC commencing on January 11, 2022, at 10 a.m. by VH. No further Notice is required for the CMC.

GoTo Meeting: https://global.gotomeeting.com/join/344779885

Audio-only telephone line: Toll Free: 1-888-299-1889 OR +1 (647) 497-9373

Access code: 344-779-885

14Upon further request of the parties, the Tribunal set an 8-day hearing commencing on April 11, 2023, at 10 a.m. by VH. No further Notice is required for the hearing.

GoTo Meeting: https://global.gotomeeting.com/join/344779885

Audio-only telephone line: Toll Free: 1-888-299-1889 OR +1 (647) 497-9373

Access code: 344-779-885

15Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections.

16Parties 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.

17Persons 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.

18Individuals 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 VH 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

19The Tribunal Orders that:

1. The date and particulars of the second CMC and hearing are set out above;
2. The PO appended as Schedule 1 shall govern the proceedings;
3. Gary Foch is granted Participant status;
4. Robert Cullen is granted Participant status; and,
5. The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

"S. Mann"

S. MANN

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.

CASE NO(S).: OLT-22-004051

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

Applicant(s)/Appellant(s): 2603235 Ontario Limited

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

Property Address/Description: The subject application proposes to change the zoning on the property from Low Density Urban Residential (R1) to a site specific Medium Density Urban Residential (R3-xx) zone

Municipality: Georgina/ York

Municipal File No.: 0.3.1130

OLT Case No.: OLT-22-004051

OLT File No.: OLT-22-004051

OLT Case Name: 2603235 Ontario Limited c. Georgina (Town)

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 Tuesday, April 11, 2022 at 10:00 a.m. at https://global.gotomeeting.com/join/344779885.

3. The parties’ initial estimation for the length of the hearing is 8 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.

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 by Friday, December 23, 2022 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 should be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties Friday, December 31, 2022.

10. Expert witnesses in the same field shall have a meeting by Monday, January 23, 2023 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 by Monday, February 13, 2023.

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 Monday, March 13, 2023, 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.

14. On or before Monday, March 13, 2023 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 Monday, March 6, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Monday, April 3, 2023, 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. On or before Monday, March 27, 2023, parties shall provide copies of the Reply Witness Statements, if any, to the other parties and the OLT case co-ordinator 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 Monday, April 3, 2023.

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 On or before Monday, April 3, 2023,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 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.

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.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT #1

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 authorization 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.

ATTACHMENT #2

PARTIES AND PARTICIPANTS

PARTIES

1. 2603235 Ontario Limited Ira T. Kagan, Kristie M. Stitt, and Sarah R. Kagan Kagan Shastri LLP 188 Avenue Road Toronto, ON M5R 2J1 Tel: 416.368.2100 x226/244/ 243 ikagan@ksllp.ca / kstitt@ksllp.ca / skagan@ksllp.ca

2. Town of Georgina Andrew Biggart Ritchie Ketcheson Hart & Biggart 206 – 1 Eva Road Toronto, Ontario, M9C 4Z5 Tel: 416-622-6601 ext. 1003 abiggart@ritchieketcheson.com

PARTICIPANTS

3. Robert Cullen 82 Annamaria Drive Keswick, Ontario, L4P 3R7 rbcullen@rogers.com

4. Gary Foch 4 Ley Boulevard Keswick, ON L4P 2K4 garyfoch@rogers.com

ATTACHMENT #3

ISSUES LIST

1. Is the proposal consistent with the Provincial Policy Statement, including policies:

• 1.1.1(c)
• 1.1.3.4
• 1.4.3(f)
• 1.5.1.(a)
• 1.6.6.1(d)
• 1.6.7.1

2. Does the proposal conform to the Town Official Plan, including policies:

• 2.2.11.1
• 8.7.1(a)
• 9.2.1.11

3. Does the proposal conform to the Keswick Secondary Plan, including policies:

• 13.1.4.1(a)(iii)
• 13.1.4.2.1(b)

4. Do the following factors require a relocation of the proposed driveway/ access to Spring Road and, if so, where should it be relocated to?

• Overall road operations in the area
• Site lines along Spring Road
• Operational considerations

5. Is the existing water and sanitary linear infrastructure sufficient for the proposed development? If not, what proposal modifications are required? How will the zoning address any proposed modifications?

Note 1: Where two or more parties raise the same technical issue, they can co-ordinate and rely upon a qualified independent expert but must call evidence expert evidence in support of that technical issue. Where a single party alone raises a technical issue then that party must call technical evidence in support of that issue from a qualified independent expert.

Note 2: 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.

ATTACHMENT #4

ORDER OF EVIDENCE

1. 2603235 Ontario Limited
2. Town of Georgina
3. 2603235 Ontario Limited in Reply (if any)

ATTACHMENT #5

SUMMARY OF FILING DEADLINES

EVENT	DATE
1st Case Management Conference	Tuesday, October 12, 2022
Robert Cullen to provide evidence that he has retained an expert	Monday, November 14, 2022
Parties to provide Issues List	Monday, December 12, 2022
Parties to file Updated Procedural Order	Friday, December 16, 2022
Parties to exchange their List of Witnesses	Friday, December 23, 2022
Deadline for Expert Meeting	Monday, January 23, 2023
Parties to file statement of Agreed Facts and Issues	Monday, February 13, 2023
Parties to exchange their Witness and Expert Witness Statements Participants to provide their Participant Statements	Monday, March 13, 2023
Parties to exchange their Reply Witness Statements	Monday, March 27, 2023
Parties to exchange their Visual Evidence Parties to File Joint Document Book Parties to File Preliminary Hearing Plan	Monday, April 3, 2023
Hearing commences	Monday, April 11, 2023