Hunter v. Bruce (County), 2023 CanLII 23972

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 20, 2023

CASE NO(S).: OLT-22-002392

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: James Hunter and Heather Hunter

Applicant: Timothy and Janette Thorne

Subject: Proposed Official Plan Amendment

Description: To permit limited retail and commercial uses including an outfitters store and an inn

Reference Number: OPA C-2021-017

Property Address: 484 Carlisle Street

Municipality/UT: Saugeen Shores/Bruce County

OLT Case No.: OLT-22-002392

OLT Lead Case No.: OLT-22-002392

OLT Case Name: Hunter v. Bruce (County)

Heard: March 10, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
James Hunter and Heather Hunter (“Appellants”)	James Hunter*
Timothy Thorne and Janette Thorne (“Applicants”)	Timothy Thorne*
Town of Saugeen Shores (“Town”)	Tammy Grove
County of Bruce (“County”)	Tammy Grove

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG AND ASTRID J. CLOS ON MARCH 10, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the third Case Management Conference (“CMC”) for the above noted matter.

2James and Heather Hunter (the “Appellants”) filed an appeal under s. 17(36) of the Planning Act (the “Act”) against the County of Bruce (the “County”) Official Plan Amendment No. C-2021-017. Timothy and Janette Thorne (the “Applicants”) had applied to the County to permit limited retail and commercial uses including an outfitters store and an inn, in an agricultural area.

Draft Procedural Order / Issues List

3Counsel for the County, Tammy Grove informed the Tribunal that the County has filed a Draft Procedural Order (“PO”) with Draft Issues List of the County, the Town and the Appellants, as consented to and scoped by the Appellants’ previous counsel. Nevertheless, the Appellants have recently submitted an additional list of seven issues. Counsel did not think these additional issues should be considered. Since the first CMC, the Appellants (who were then represented by a counsel) had scoped the issues for the matter. After the second CMC, there was no indication from the Appellants that the previously scoped issues by their counsel (who had since ceased to act) were not authorized. The purpose of the CMC was to finalize the Procedural Order and to schedule a hearing. Revisiting issues will delay the proceedings further.

4The Tribunal concurred that the instant CMC was fixed to finalize the Procedural Order and no further issues should be proposed or permitted. The Appellants had previously through their counsel agreed to scoping the issues for the appeal. Counsel for the County and Town will fill in the deadlines for the PO and attach the previously scoped issues list. The Procedural Order and Issues List to be forwarded to the case coordinator by March 17, 2023 will govern the proceedings.

5Counsel requested a two-day hearing date to be fixed so that the respective procedural deadlines could be provided in the PO.

6The Appellants protested that they required more time to meet deadlines as for them the matter is complex. County counsel disagreed and noted that this matter was only in relation to an official plan amendment without alleged complexity. The Tribunal advised that this is the Appellants’ appeal and they should be prepared and ready for the matter to be heard.

7The Appellants preferred a date in June or July 2023 for the hearing while the County and the Applicants requested for an early date in May 2023.

8The Appellants will call one expert witness, Kevin Curtis, while the County/Town will call planner Barbara Mugabe and staff, Pete Knechtel. The Applicants may call two witnesses.

HEARING

9The two-day video hearing is scheduled to start on Thursday, June 1, 2023, at 10.a.m.

10Parties 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://global.gotomeeting.com/join/719383509

Access Code: 709-076-365

11Parties 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.

12Persons 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 719-383-509.

13Individuals 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 video hearing 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

14The Tribunal Orders that:

a. Parties are to forward the Procedural Order with deadlines filled in together with the previously scoped issues list to the Case Coordinator on or before Friday, March 17, 2023. This has been submitted.

b. The Procedural Order attached as Attachment 1 to this order shall govern the proceedings.

c. A two-day hearing is scheduled to commence on June 1, 2023, by video hearing.

15No further notice will be given.

16The panel is not seized.

“T.F. Ng”

T.F. NG MEMBER

“Astrid J. Clos”

ASTRID J. CLOS 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.

ATTACHMENT 1

CASE NO(S).: OLT-22-002392

PROCEEDING COMMENDED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended:

Appellant James Hunter and Heather Hunter

Applicant Timothy and Janette Thorne

Subject Proposed Official Plan Amendment

Description To permit limited retail and commercial uses included a outfitters store and an inn

Reference Number OPA C-2021-017

Property Address 484 Carlisle Street

Municipality/UT Saugeen Shores/Bruce

OLT Case No. OLT-22-002392

OLT Lead Case No. OLT-22-002392

OLT Case Name Hunter v. Bruce (County)

PROCEDURAL ORDER

The Tribunal Orders that:

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 Thursday, June 1, 2023 (date) at 10:00 am and end on June 2, 2023 by Video Conference Software, GoToMeeting. The Video Conference details are as follows: TBC

3. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Thursday, April 6, 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.

10. Expert witnesses in the same field shall have a meeting on or before Wednesday, May 3, 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 Wednesday, May 17, 2023 (date – at least 15 days prior to the start of the hearing).

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, April 17, 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.

14. On or before Monday, April 17, 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.

15. On or before Thursday, April 27, 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.

16. On or before Thursday, April 27, 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.

17. 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.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, May 19, 2023 (date – at least 10 days prior to the start of the hearing).

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Thursday, May 25, 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.

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

Parties

James Stephen Hunter and Heather Lynne Hunter, Appellants Phone: 226-930-9435, 226-668-9078 Email: heatherfenton44@gmail.com & stephenhunter@rogers.com

Counsel for the County of Bruce, Respondent Tammy Grove / Monica Poremba The Ross Firm Professional Corporation 11 Durham Street East Box 880 Walkerton, ON N0G 2V0 Phone: 519-524-5532 Email: tgrove@rossfirm.com / mporemba@rossfirm.com

Counsel for the Town of Saugeen Shores, Party Tammy Grove / Monica Poremba The Ross Firm Professional Corporation 11 Durham Street East Box 880 Walkerton, ON N0G 2V0 Phone: 519-524-5532 Email: tgrove@rossfirm.com / mporemba@rossfirm.com

Timothy Thorne, Applicant/Party 484 Carlisle Street Southampton, ON N0H 2L0 Phone: 519-797-9908 Email: office@thorncrestoutfitters.com

ATTACHMENT 2

Issues List

Note: The identification of an issue does not mean that all Parties agree that such issue, or manner in which the issue is expressed, is appropriate or relevant to the determination of the Ontario Land Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Ontario Land Tribunal at the hearing will be a matter of evidence and argument at the hearing.

Appellant Issues

See Appendix A attached

Respondent’s Issues*

1. Is the Official Plan Amendment consistent with the Provincial Policy Statement (2020) (“PPS”) pursuant to Section 3 of the Planning Act, including but not limited to, Sections 2.1 related to Natural Heritage, 2.6 related to Cultural Heritage and Archaeology, 3.1 related to Natural Hazards and Section 2.3.6 related to Non-Agricultural Uses in Prime Agricultural Areas? Specifically, does the Official Plan Amendment meet the tests set out in 2.3.6.1. and 2.3.6.2 of the PPS to permit non-agricultural uses in a prime agricultural area?

2. Is the Official Plan Amendment appropriate and does it represent good land use planning?

*The Town of Saugeen Shores’ shares a common interest with the Respondent and adopts the Respondent’s Issues List

Appendix A

Appellants’ Issues

1 Is the Official Plan Amendment consistent with Sections 1.1.5.5 and 1.6.7.(1, 2, 3 & 4) of the Provincial Policy Statement, reproduced below:

1.1.5.5 Rural Lands in Municipalities: Development shall be appropriate to the infrastructure which is planned or available, and avoid the need for the unjustified and/or uneconomical expansion of this infrastructure.

1.6.7 Transportation Systems

1.6.7.1 Transportation systems should be provided which are safe, energy efficient, facilitate the movement of people and goods, and are appropriate to address projected needs.

1.6.7.2 Efficient use should be made of existing and planned infrastructure, including through the use of transportation demand management strategies, where feasible.

1.6.7.3 As part of a multimodal transportation system, connectivity within and among transportation systems and modes should be maintained and, where possible, improved including connections which cross jurisdictional boundaries.

1.6.7.4 A land use pattern, density and mix of uses should be promoted that minimize the length and number of vehicle trips and support current and future use of transit and active transportation.

2 Is the Official Plan Amendment consistent with Sections 1.1.3.(1, 4, 5 &6) and 1.1.4.2 of the Provincial Policy Statement, reproduced below:

1.1.3 Settlement Areas

Settlement areas are urban areas and rural settlement areas, and include cities, towns, villages and hamlets. Ontario’s settlement areas vary significantly in terms of size, density, population, economic activity, diversity and intensity of land uses, service levels, and types of infrastructure available. The vitality and regeneration of settlement areas is critical to the long-term economic prosperity of our communities. Development pressures and land use change will vary across Ontario. It is in the interest of all communities to use land and resources wisely, to promote efficient development patterns, protect resources, promote green spaces, ensure effective use of infrastructure and public service facilities and minimize unnecessary public expenditures.

1.1.3.1 Settlement areas shall be the focus of growth and development.

1.1.3.4 Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety.

1.1.3.5 Planning authorities shall establish and implement minimum targets for intensification and redevelopment within built-up areas, based on local conditions. However, where provincial targets are established through provincial plans, the provincial target shall represent the minimum target for affected areas.

1.1.3.6 New development taking place in designated growth areas should occur adjacent to the existing built-up area and should have a compact form, mix of uses and densities that allow for the efficient use of land, infrastructure and public service facilities.

1.1.4.2 In rural areas, rural settlement areas shall be the focus of growth and development and their vitality and regeneration shall be promoted.

3 Is the Official Plan Amendment consistent with Sections 1.1.4.3, 1.1.5.5 and 1.1.6.(2, 3 & 4) of the Provincial Policy Statement, reproduced below:

1.1.4.3 When directing development in rural settlement areas in accordance with policy 1.1.3, planning authorities shall give consideration to rural characteristics, the scale of development and the provision of appropriate service levels.

1.1.5.5 Development shall be appropriate to the infrastructure which is planned or available, and avoid the need for the unjustified and/or uneconomical expansion of this infrastructure.

1.6.6.2 Municipal sewage services and municipal water services are the preferred form of servicing for settlement areas to support protection of the environment and minimize potential risks to human health and safety. Within settlement areas with existing municipal sewage services and municipal water services, intensification and redevelopment shall be promoted wherever feasible to optimize the use of the services.

1.6.6.3 Where municipal sewage services and municipal water services are not available, planned or feasible, private communal sewage services and private communal water services are the preferred form of servicing for multi-unit/lot development to support protection of the environment and minimize potential risks to human health and safety.

1.6.6.4 Where municipal sewage services and municipal water services or private communal sewage services and private communal water services are not available, planned or feasible, individual on-site sewage services and individual on-site water services may be used provided that site conditions are suitable for the long-term provision of such services with no negative impacts. In settlement areas, individual on-site sewage services and individual on-site water services may be used for infilling and minor rounding out of existing development.

At the time of the official plan review or update, planning authorities should assess the long-term impacts of individual on-site sewage services and individual on-site water services on the environmental health and the character of rural settlement areas. Where planning is conducted by an upper-tier municipality, the upper-tier municipality should work with lower-tier municipalities at the time of the official plan review or update to assess the long-term impacts of individual on-site sewage services and individual on-site water services on the environmental health and the desired character of rural settlement areas and the feasibility of other forms of servicing set out in policies 1.6.6.2 and 1.6.6.3.

ATTACHMENT 3

Order of Evidence

1. Opening Statements
2. Appellants, James Stephen Hunter and Heather Lynne Hunter
3. Respondent, County of Bruce, and Town of Saugeen Shores
4. Applicant, Timothy Thorne
5. Appellants, James Stephen Hunter and Heather Lynne Hunter (Reply, if any)
6. Closing Arguments