RIC (Midland Land) Inc. v. Midland (Town), 2023 CanLII 26238

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 28, 2023

CASE NO(S).: OLT-21-001028

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

Applicant and Appellant: RIC (Midland Land) Inc.

Subject: Application to amend Zoning By-law No. 2004-90 - Refusal or neglect of Town of Midland to make a decision

Existing Zoning: Residential Apartment and Residential Townhouse Holding (RA & RT-H) Zone

Proposed Zoning: Site specific Residential Apartment and Residential Townhouse zones

Purpose: To facilitate the development of a residential subdivision

Property Address: 650 Vindin Street

Municipality: Town of Midland Municipality File No.: ZBA-04-20

OLT Case No: OLT-21-001028

OLT File No: OLT-21-001028

OLT Case Name: RIC (Midland Land) Inc. v. Midland (Town)

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

Applicant and Appellant: RIC (Midland Land) Inc.

Subject: Proposed Plan of Subdivision - Failure of Town of Midland to make a decision

Property Address/Description: To facilitate the development of a residential subdivision

Municipality: Town of Midland Municipality File No.: MD-T-0120

OLT Case No: OLT-21-001028

OLT File No: OLT-21-001029

Parties

Counsel

RIC (Midland Land) Inc.

R. Miller G. O’Brien S. Rosenthal (in absentia)

Town of Midland

A. Whyte Q. Annibale (in absentia)

ADM Agri-Industries Company

D. Yarahmadi N. Adler C. Lantz (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON JANUARY 31, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the fourth Case Management Conference (“CMC”) respecting two Appeals by RIC (Midland Land) Inc. (the “Appellant”) arising from the failure of the Town of Midland (the “Town”) to make decisions regarding the Appellant’s applications for a zoning by-law amendment and draft plan of subdivision approval within the applicable statutory timeframes prescribed by the Planning Act, R.S.O. 1990, c. P.13, as amended, with respect to the property municipally known as 650 Vindin Street in the Town of Midland (the “Appeals”).

HEARING DATES

2By way of background, the first CMC in these proceedings was held on November 5, 2021 at which time the Appeals were scheduled for a 25 day hearing commencing September 19, 2022. A second CMC was held on April 1, 2022, at which time the Procedural Order for this Hearing was issued. In June 2022, Counsel for the Appellant, on consent of all Parties, requested an adjournment of this Hearing as settlement discussions were underway. This adjournment was granted by the Tribunal. At the third CMC on October 19, 2022, the Parties indicated that settlement discussions continued to be underway and requested a fourth CMC in order to allow time to continue these discussions, to consider seeking mediation including the potential of Tribunal-facilitated mediation, and possibly to bring forward a potential settlement to the fourth CMC.

3At today’s fourth CMC, the Parties advised that productive settlement discussions are underway currently. Counsel advised that the Parties have agreed that Tribunal-facilitated mediation may be helpful in their settlement discussions. Counsel for the Appellant advised that he intended to contact the Tribunal’s Deputy Registrar in early February to request Tribunal-facilitated mediation, and the Tribunal directed that the parties do so by no later than February 10, 2023 in order to avail themselves of this assistance to potentially resolve or at least narrow some or all of the issues of the Appeals.

4At today’s CMC, the Parties also requested that dates be set in early 2024 for a Hearing of the merits of the Appeals as a “fallback” in the event that mediation is not successful in resolving the issues of the Appeals.

5The Parties advised that they estimate that 24 hearing days will be required in the event that none of the issues of the Appeals are resolved or narrowed prior to commencement of the Hearing. The Parties indicated that it is estimated currently that a significant number of expert witnesses – approximately 20 – would be involved in such case with the subject matter, including land use planning, ecology, servicing, transportation, noise, hydrogeology and urban design. At this time, the Tribunal is satisfied that 24 hearing days is a reasonable estimate. In an effort to use Tribunal resources prudently, the Tribunal directed that the Procedural Order include provision requiring the parties to notify the Tribunal at least 60 days prior to the start of the hearing if all of the Hearing days are still required.

6A revised draft Procedural Order was provided to the Tribunal as requested at the CMC, and the finalized Procedural Order for this matter – attached as Schedule “A” to this Order – is approved.

7The Hearing is scheduled to proceed by video on Monday March 4, 2024 at 10:00 a.m. and has been scheduled for twenty-four (24) days, excluding March 29 (Good Friday), April 1 (Easter Monday), and April 8, 2024 (a Tribunal Professional Development day), and in accordance with the provisions of the Procedural Order approved pursuant to this Order.

8Parties and Participants are asked to log in to 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/909787981

Access code: 909-787-981

9Parties 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.

10Persons 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) 497-9391 or Toll-Free: 1-888-455-1389. The access code is 909-787-981.

11Individuals 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

12THE TRIBUNAL SO ORDERS and provides these CMC directives for the purposes of the Case Management of the Appeals.

13The Member is not seized in this matter but will remain available for continued Case Management to the extent that the Tribunal calendar permits.

“D. Arnold”

D. ARNOLD

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 “A”

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349

Toll free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunaux de l’aménagement du territoire Ontario 655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349

Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca

CASE NO(S).: OLT-21-001028

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

Applicant and Appellant: RIC (Midland Land) Inc.

Subject: Application to amend Zoning By-law No. 2004-90 - Refusal or neglect of Town of Midland to make a decision

Existing Zoning: Residential Apartment and Residential Townhouse Holding (RA & RT-H) Zone

Proposed Zoning: Site specific Residential Apartment and Residential Townhouse zones

Purpose: To facilitate the development of a residential subdivision

Property Address: 650 Vindin Street

Municipality: Town of Midland Municipality File No.: ZBA-04-20

OLT Case No: OLT-21-001028

OLT File No: OLT-21-001028

OLT Case Name: RIC (Midland Land) Inc. v. Midland (Town)

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

Applicant and Appellant: RIC (Midland Land) Inc.

Subject: Proposed Plan of Subdivision - Failure of Town of Midland to make a decision

Property Address/Description: To facilitate the development of a residential subdivision

Municipality: Town of Midland Municipality File No.: MD-T-0120

OLT Case No: OLT-21-001028

OLT File No: OLT-21-001029

Procedural Order

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 March 4, 2024 at 10:00 a.m. at:

GoToMeeting: https://global.gotomeeting.com/join/909787981

Access Code: 909-787-981

Audio-Only Telephone Line: +1 (647) 497-9391 or (Toll-Free) 1-888-455-1389

Audio-Only Access Code: 909-787-981

No further notice shall be required.

The hearing days shall exclude Friday March 29, 2024 (Good Friday), Monday April 1, 2024 (Easter Monday) and Monday April 8, 2024 (a Tribunal Professional Development day).

3. The parties’ initial estimation for the length of the hearing is 24 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 found in Attachment 1.

4. The parties and participants identified at the case management conference are set out in Attachment 2 (see Attachment 5 for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 3. If changes to the Issues List occur as a result of mediation and such changes are agreed to by all parties, they may be permitted. If a Revised Issues List based on such changes is agreed-to, it shall be submitted to the Tribunal on or before Monday, December 4, 2023. Otherwise, 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. 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 Friday, December 2, 2023 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 Friday, December 15, 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 on or before Friday, December 22, 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 14 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 14 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 14 below.

13. On or before Thursday, January 4, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

14. On or before Friday, January 19, 2024, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

15. On or before Friday, January 19, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before Friday, February 2, 2024, the parties shall provide copies of any written response to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

17. On or before Friday, February 9, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

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, February 23, 2024.

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 Friday, February 23, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

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

Summary of Dates

DATE

EVENT

December 2, 2023

Parties to exchange lists of witnesses (names, disciplines, and intended order to be called)

December 4, 2023

Parties to submit Revised Issues List (if any)

December 15, 2023

Expert witnesses in the same field shall have a meeting

December 22, 2023

Parties must prepare and file a Statement of Agreed Facts and Issues

January 4, 2024

Parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

January 19, 2024

Witness Statements and Participant Statements to be exchanged

February 2, 2024

Reply Witness Statements and the reply to written evidence of witnesses (if any) to be exchanged

February 9, 2024

Parties to exchange copies of visual evidence

February 23, 2024

Joint document book to be filed

February 23, 2024

Parties to file draft hearing plan with the OLT case coordinator

March 4, 2024

Hearing commences

Attachment 2

List of Parties

RIC (Midland Land) Inc. Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, Ontario M5V 3C1 Susan Rosenthal susanr@daviewhowe.com Robert Miller bobm@davieshowe.com Grace O’Brien graceo@davieshowe.com 416-977-7088

Town of Midland Loopstra Nixon LLP Woodbine Place Suite 600, 135 Queens Plate Drive Toronto, Ontario M9W 6V7 Quinto Annibale qannibale@loonix.com Alexandra Whyte awhyte@loonix.com 416-748-4747

ADM Agri-Industries Company Stikeman Elliot LLP 5300 Commerce Court West 199 Bay Street Toronto, Ontario M5L 1B9 Calvin Lantz clantz@stikeman.com Donya Yarahmadi dyarahmadi@stikeman.com 416-869-5669

Attachment 3

Issues List

The identification of an issue on this list does not mean that all parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

TOWN OF MIDLAND

1. Do the zoning by-law amendment and draft plan of subdivision (together the “Applications”) meet the Planning Act tests, including, do they conform with the policies described below of the Growth Plan for the Greater Golden Horseshoe, the County of Simcoe Official Plan (2016 Office Consolidation) and the Town of Midland Official Plan (2017 Office Consolidation), and are they consistent with the policies described below of the Provincial Policy Statement, 2020?

2. Has section 3.3.2 of the Town of Midland Official Plan, which sets out the terms under which higher density uses may be permitted without an Official Plan Amendment, been interpreted correctly?

3. Has the net density of the Medium and High Density uses been correctly calculated pursuant to sections 3.3.5 and 3.3.6 of the Town’s Official Plan (2017)?

4. Do the Applications trigger the need for an Official Plan Amendment?

5. Do the transition policies of the Town of Midland 2021 Official Plan apply?

6. If not, what portions of the new Official Plan (portions of the 2021 Official Plan are under appeal in this area) are in effect? If policies 1.4, 1.5.1 a-k), o), p), 2.2 a), d), e), f), 3.1, 3.1.1 a-i), 3.1.2 a-f), 3.1.3, 3.1.6 b-c), 3.1.7 a-b), 3.1.8a), 3.1.9 c-f), 3.1.10 a), 3.2.1 b), 3.2.2 a), 3.2.3 a-b), i), 3.2.6 a-d), 3.4.1 b-c), 3.4.6. g), 3.5 b), 3.5.1 c), i), j), 4.4.1 c), 4.4.3.4, 4.4.4 a-l), 4.5.1a-b), 4.5.2 c), e), k), l), m) n), s), t), 4.5.3 a-l), n-p), 4.5.3.1a-c), 4.5.3.2a-d), 4.5.3.3d), f), 4.5.3.4a), e), 4.5.3.6 a-h), 5.1.1, 5.2.1a-d), 5.2.2a-f), 5.2.3a-d), 5.3a), 5.4.1a-b), 5.4.2a-e), 5.4.3d), f), g), h), i), 5.4.6a), 5.4.7a-c), 5.4.9a-c), 5.5.2a), 6.2.1a), 6.2.3 d), 6.3.2, 6.3.3, 6.4.2, 6.5.1, 6.5.2, 6.5.3 b), 6.5.4 b-d), 6.5.5 a-d),f),g), 6.6 a-e), 6.8.1 c), 7.2.3 a-b), 7.3, 7.3.2, 7.3.4, 7.4.1 a-c), 7.4.2 a-c), g), h), 7.5 a-d), 7.5.3, 7.7.1, 7.7.3 are in effect, do they apply to the Applications?

7. Do the Applications have regard for matters of Provincial interest identified in the Planning Act, in particular subsections 2 (a), (f), (h), (h.1), (j), (o), (p), (q) and (r)?

8. Does the proposed Draft Plan of Subdivision meet the requirements of s. 51(24) of the Planning Act?

9. Do the Applications provide appropriate consideration of urban design and architectural matters to provide effective guidance to the preparation of the site plan application(s)?

10. Does the Zoning By-law and Draft Plan of Subdivision adequately provide for the height, bulk, location, size, floor area, spacing, character and use of buildings and structures?

11. Has the rationale for the Holding provisions in the Planning Justification Report and the Applications properly addressed the purpose for which holding provisions are applied under the respective related policies of either or both of the Official Plan (2017) including policies 8.3, 8.3.1, 8.3.2, 8.3.3., 8.3.4 and 8.3.5 and Official Plan (2019) policies 7.3.4. a-h) as applicable?

Provincial Policy Statement, 2020

12. Are the Applications consistent with the following policies of the PPS : 1.1.1, 1.2.1 a)-f), 1.2.6.1, 1.2.6.2 a)-d), 1.6.9.1, 1.4.3 b), c), d), f), 1.5.1 a)-d), 1.6.1, 1.6.2, 1.6.6.7 a)-f), 1.6.7.1, 1.6.7.2, 1.6.7.3, 1.6.7.4, 1.6.8.3, 1.7.1 c), d), e), j), k), l), 1.8.1 b), f), g), 2.1.1, 2.1.7, 2.2.1 b)-i), 2.2.2, 4.6?

Growth Plan for the Greater Golden Horseshoe, 2020

13. Do the Applications conform to the following policies of the Growth Plan for the Greater Golden Horseshoe: 1.2.1, 2.1, 2.2.1.4 a)-g), 2.2.6.1 e), 3.1, 3.2.1.1, 3.2.1.2, 3.2.2.2, 3.2.3.1, 3.2.3.4, 3.2.7.2, 4.2.1.2, 4.2.2.6, 4.2.5.1, 4.2.9.1, 4.2.9.3?

County of Simcoe Official Plan (2016)

14. Do the Applications conform to the following policies of the County of Simcoe Official Plan: 3.1.3, 3.2.3, 3.2.12, 3.2.13, 3.2.14, 3.3.8, 3.3.9, 3.3.15, 3.3.16, 3.3.17, 3.3.19, 3.3.21, 3.3.22, 3.5.6, 3.5.15, 3.5.28, 3.5.29, 3.5.30,3.8.1, 3.8.2, 3.8.3, 3.8.4, 3.8.5, 3.8.6, 3.8.13, 3.8.14, 4.1.5, 4.3.1, 4.5.1, 4.5.2, 4.5.4, 4.5.6, 4.5.7, 4.5.9, 4.5.10, 4.5.13, 4.5.18, 4.5.25, 4.5.27, 4.5.28, 4.5.29, 4.5.38, 4.5.43, 4.6.5, 4.6.7, 4.6.8, 4.7.7, 4.7.9, 4.7.18, 4.8.1, 4.8.2, 4.8.7, 4.8.14, 4.8.40, 4.8.42b), 4.8.45, 4.8.60, 4.8.62, 4.11.4, 4.11.5?

Town of Midland Official Plan (2017 Consolidation)

15. Do the Applications conform to the following policies of the Town of Midland Official Plan: 2.3.1, 2.3.2, 2.4.1, 2.4.2, 2.4.3, 2.4.4, 2.4.4.2, 2.4.4.3, 2.4.4.4, 2.4.4.5, 2.4.4.6, 2.4.4.7, 2.4.5, 2.5.1, 2.5.1.1, 2.5.1.2, 2.5.1.3, 2.5.1.4, 2.5.1.5, 3.2.1c), 3.3.1a)-c), 3.3.2, 3.3.3b),c), 3.3.5a), b), c), 3.3.6a), b), c), 3.4.3b), c), 3.4.4, 3.4.5, 3.5.1, 3.5.2, 3.5.4, 3.5.8.1, 3.5.8.2, 3.5.8.3, 3.5.9a)-h), 3.5.10a)-g), 3.5.11, 3.7.4, 4.2.1, 4.2.1.1, 4.2.1.2, 4.3.1, 4.3.1.1, 4.3.1.2, 4.3.1.3, 4.3.1.4, 4.3.1.5, 4.3.2, 4.3.2.1, 4.3.2.2, 4.3.2.3, 4.4.1, 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.4.1.4, 4.4.1.5, 4.4.1.6, 4.5.1.1, 4.5.1.2, 4.5.1.3, 4.6.1.1, 4.6.1.2, 4.6.1.3, 4.6.1.4, 4.6.2, 4.6.2.1, 4.6.2.2, 4.9.6, 4.9.9, 4.9.13, 4.9.15.3, 4.9.15.6, 4.9.15.7, 4.9.15.8, 4.9.19.4, 5.2.1.2, 6.2, 6.3, 6.3.3, 6.3.5, 6.3.6, 6.3.7, 6.3.10, 6.4.1, 6.4.1.1, 6.4.1.2, 6.5.1, 6.5.1.1, 6.5.1.2, 6.5.1.3, 7.3.2.1, 7.3.3.1, 7.3.4, 7.3.4.1, 7.3.5, 7.3.5.1, 7.3.6.1, 7.6.3.2, 7.6.3.3, 7.6.3.4, 7.6.3.5, 7.6.3.7, 7.6.3.8, 7.6.3.9, 7.6.3.14, 8.1.1, 8.2.1, 8.2.3, 8.3.1, 8.3.2, 8.4, 8.8.1, 8.8.2, 8.8.2.1, 8.8.2.2, 8.8.2.3, 8.8.2.4, 8.8.2.5, 8.8.2.6, 8.12.1, 8.13.1, 8.14.4.

16. Are the policies of section 3.7.4 relevant in considering potential mitigation for addressing impacts to and from the operating and shipping activities of the ADM Milling Co. facility? If so, have the Applications adequately addressed these impacts?

17. Has the proposed development sufficiently and appropriately planned for the inclusion and integration of infrastructure into the development concept and/or appropriately recognized existing constraints and opportunities in the development design?

18. Is the development required to take into account the proximity to the downtown core in the developed design, and if so, has it appropriately done so?

19. Has natural heritage, water and archaeological resources been properly considered?

20. Are the multi-modal transportation policies of the Town’s Official Plan relevant for the proposed development? If so, have they been appropriately considered?

21. Have ecosystem, shoreline, watershed and natural hazard matters been appropriately considered in the design of the development and related infrastructure?

22. Have appropriate measures been taken to address proximity to designated industrial lands and related-shipping activities?

23. Has the development design adequately addressed the health, well-being and safety of future residents and existing residents as relates to:

i. Any potential impacts on rising lake levels (if any), proximity to Georgian Bay and related impacts such as high-water levels (if any), wave uprush and flooding;

ii. Off-site impacts of the proposed development on adjacent lands and infrastructure as it relates to public health, wellbeing and safety;

iii. The capacity and function of adjacent stormwater management facilities to address quantity and quality of storm flows from the subject property.

24. Is the proposed development located in an area with high water table conditions? If so, does the proposed design adequately address long term costs of development and site infrastructure and risks to public safety, if any, associated with development in high water table conditions? Have the appropriate mitigative measures to address those conditions been proposed?

25. Is the proposal required to provide green infrastructure and if so, is it viable in the proposed development particularly if there are high water table conditions?

26. Have active transportation opportunities been sufficiently addressed in terms of:

i. The interface between the proposed development and existing transportation facilities,

ii. Anticipation of or connection to future facilities, if any, and

iii. The need, as required, for related upgrades to off-site facilities to achieve required connections

27. Has the planning of streets with pedestrian connections through the site and to other public facilities including but not limited to public sidewalks and trails been adequately addressed?

28. Whether or not the proposed sidewalks and trails connection are sufficiently accessible?

29. Do the proposed applications adequately and appropriately address impacts, if any, and/or interface as appropriate on and with respect to adjacent publicly owned and publicly accessible shoreline lands and amenities?

30. Does the proposed development appropriately address coordination of infrastructure with the proposed land use?

31. Is the proposed infrastructure properly located within the development to ensure its long-term viability?

32. Whether the development sufficiently and adequately address stormwater management?

33. Has it been demonstrated that the adjacent stormwater management pond is able to handle the additional flows, and that this is viable solution to accommodate the development?

34. Whether the development has appropriately addressed the proximity of the existing facility to Georgian Bay and potential impacts, if any, of rising lake levels, if any, in assessing the function of the stormwater facility?

35. Whether the proximity of the off-site stormwater facility to the Provincially Significant Wetland creates unacceptable constraints to the reliance on the viability of that off-site facility as a stormwater solution?

36. Are the quality and quantity control requirements adequately addressed within the development concept to support the related Zoning By-law Amendment and Subdivision applications?

37. Whether or not on-site stormwater solutions have been adequately considered? If not, should on-site stormwater solutions be required?

38. Whether or not high water table conditions (if any) have been adequately addressed, and related impacts and constraints addressed in infrastructure and overall project design?

39. Whether potential impacts of the proposed development on the function of any natural heritage features including but not limited to alterations to the post development surface and subsurface water flows in the proposed stormwater infrastructure and technical subdivision design been adequately addressed?

40. Should the development and infrastructure design address the location of the site where the County of Simcoe has designated the area as containing a highly vulnerable aquifer. If so, have the submissions adequately done so?

41. Whether or not grading and drainage has been adequately addressed to ensure no negative impacts on surrounding lands and facilities. Have any impacts been appropriately mitigated?

42. Whether the development contributes to a complete community through its location, function and design of the development concept, including but not limited to its urban design, the interrelationships of proposed built form with proposed transportation infrastructure and its interface with existing and future transportation infrastructure, transit and active transportation facilities and proximity and design of the subject site in connecting to surrounding transportation infrastructure and land uses amenities.

43. Whether the internal layout out of the subdivision has adequately identified, including the provision of active transportation amenities such as but not limited to pedestrian and other multi-modal connections. If so, do these amenities adequately limit the conflict between people and vehicular movements and promote the viability of active transportation solutions as a way of managing the impacts of the proposed development concept and density.

44. Has it been adequately demonstrated that the service levels of surrounding streets and intersections at the time of application are meeting satisfactory levels and that there are no potential unacceptable impacts of the proposed development in its current form on that infrastructure?

45. Is the alignment and design of the intersection of the proposed streets with the intersection at Harbourview Dr. and Vindin St. appropriate?

46. Are the proposed private roads adequate to integrate and mitigate the impact of proposed development on the surrounding transportation infrastructure?

47. Whether the proposed transportation infrastructure has been designed to adequately deal with functional issues such as parking and snow storage.

48. Whether the related traffic analysis has adequately accounted for known additional development related loads on related transportation infrastructure.

49. Whether the development design has adequately addressed the land use, urban design, active transportation and transportation systems relationships, influences and connections as it relates to proximity to the downtown core and need (if any) for on-site, off site connections and the need (if any) for off site infrastructure that is triggered by this development?

50. Whether impacts (if any) of the proposed development on the function of adjacent telecommunications infrastructure been adequately addressed? Will the proposed development l result in unacceptable additional service demands and tower location requirements which cannot be addressed?

51. Whether the proposed development triggers the review of any Safety Code 6 requirements resulting from introduction of residential populations in proximity to the existing tower including but not limited to consideration of proposed height increase and density. If so, has this been adequately addressed?

52. Whether the proposed development adequately addresses impacts related to climate change given its proximity to Georgian Bay, and whether impacts (if any) on any significant wildlife habitat and ecosystem functions have been sufficiently addressed.

53. Whether pre and post development site characteristics have been adequately addressed in relation to retained vegetation and green infrastructure and landscaping?

54. Whether assessment of potential bat habitat was done in compliance with the requirements of the PPS and Endangered Species Act 2007, and that the associated criteria was followed as relates to Endangered Species Act (ESA-2007) significant habitat.

55. Whether surveys for non-calling amphibians as specified in the Term of Reference dated August 23, 2017 by Dillon Consulting have been appropriately completed.

56. Whether the proposal adequately evaluated the subject lands in its entirety for reptile hibernaculum.

57. Whether the proposal has appropriately confirmed and justified the basis upon which the proposed Environmental Protection lands have been designated relative to the characteristics of the unevaluated wetland and significant woodland habitat.

58. Whether the proposal appropriately assessed the extent of the significant wildlife habitat and species at risk, including appropriate mitigation measures.

59. Whether the development has appropriately considered any environmental impacts of the development on the adjacent municipally owned lands.

60. Whether the development adequately protects groundwater within the subject lands, and whether the development has adequately demonstrated that it will not unduly impact the functioning of the groundwater on the subject lands which have been identified by the County as being within a highly vulnerable aquifer.

61. Does the development adequately address the quality and quantity of storm water?

62. Is access through the proposed EP appropriate?

63. Is a policy and/or urban design rationale for the proposed distribution of built forms and distribution of density across the site required prior to draft plan approval and/or the rezoning of the site?

64. Has the proposed built form and density distribution across the subject site adequately considered the relationships to surrounding proposed uses within and surrounding the subject property from an urban design and functional perspective?

65. Is it appropriate for the development adjacent to public streets be oriented to face those streets rather than as currently proposed?

66. Whether there are unacceptable view impacts from the proposed development on views of the Midland Harbour. If there are, whether these impacts should form a part of the urban design review in advance of site plan?

67. Has the proposal appropriately addressed impacts, if any, on the adjacent public trail system and related amenities? Are there additional measures including both on and off-site measures required to manage any impacts?

68. Is the location of parking properly situated to achieve related urban and functional design objectives?

69. Has the noise analysis appropriately addressed the noise impacts on the proposed development (if any), and the impacts of the proposed development on the ADM facility (if any) resulting from the proximity to the operations and shipping activities of the ADM facility. If there are impacts, are the proposed mitigating measures acceptable from both a community design and mitigation perspective?

70. Is a phasing plan required to properly assess the formulation of draft plan conditions prior to the approval of the draft plan and associated zoning by-law amendment?

ADM AGRI-INDUSTRIES COMPANY

1. Is the proposed zoning by-law amendment consistent with the 2020 Provincial Policy Statement (“PPS”) with respect to Policies 1.2.6, 1.3.2.1, 1.6.9.1, and 1.7.1 i)?

2. Does the proposed zoning by-law amendment conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe with respect to Policies 2.2.5.7, 2.2.5.8 and 4.2.6.7?

3. Does the proposed zoning by-law amendment conform to the County Official Plan with respect to Policies 3.3.21, 3.3.22, 3.5.24 and 4.8.62?

4. Does the proposed zoning by-law amendment meet the intent of the 2021 Midland Official Plan with respect to Policies 3.1.12, 4.2.1(d)(iii), 4.2.2.(e), 5.1.1(b), 5.5.2(a)(vi), 7.2.3(b)(v), 7.3.4, and 7.7.2(e)?

5. Does the proposed zoning by-law amendment conform to the in force 2017 Consolidated Town of Midland Official Plan with respect to Policies 3.1.2(c) and 4.6? Does it appropriately consider policy 3.7.4 of that Plan?

6. Are the proponent’s Noise and Vibration Study and the acoustical model upon which the findings of the Study are based, compliant with MECP requirements, consistent with best practices and are they consistent with the compatibility requirements of the PPS?

7. Does the proponent’s acoustical modelling and Noise and Vibration Study adequately assess the potential acoustical impacts of ADM on the proposed development and adequately determine the noise mitigation needed in the design of the proposed development?

8. Is the level of detail and recommendations for mitigation in the Noise and Vibration Study appropriate for an application for zoning by-law amendment and for plan of subdivision approval?

9. Are the land use compatibility at-receptor mitigation recommendations within the Planning Justification Report, prepared by IPA, dated May 2020, appropriate and justified? Does the land use compatibility component of the Report consider all of the criteria for compatibility in the 2020 PPS?

10. Is the proposed zoning by-law amendment for the Subject Lands premature in the absence of detailed building design proposals for each parcel and completing detailed noise studies for such building(s) (phased instead of full build-out) to demonstrate that ADM will not be adversely impacted by such proposed development and that such proposed development will not be adversely affected by ADM in accordance with the PPS and the County and Town Official Plan policies?

11. Has the proponent determined the potential influence area (the “PIA”) and the actual influence area (the “AIA”) of ADM as it relates to the Subject Lands in accordance with the recommendations of the D Series Land Use Compatibility Guidelines of the Ministry of Environment, Conservation and Parks, specifically the D-6 Guideline?

12. Has the proponent appropriately demonstrated that within the PIA and AIA of ADM:

a. the proposed use and development of the Subject Lands will not adversely impact ADM’s compliance with applicable environmental guidelines, regulations, legislation and approvals and will not have an unacceptable adverse impact on ADM’s current and future operations?

b. ADM’s activities/operations, including ship noise, have been mitigated or prevented to the level of a trivial impact (i.e., no adverse effects)?

13. Should design solutions and mitigation be imposed/prescribed for development to ensure compatibility between Sensitive Land Uses on the Subject Lands and ADM and to ensure ADM's compliance, relative to its current and future operations, with applicable MECP regulations and guidelines and the Municipal Noise By-law and to lessen the risk of complaint?

14. Is it premature to approve the proposed zoning by-law amendment for the Subject Lands, and to bring such instruments into force and effect until at-receptor mitigation and other protections are appropriately secured?

Attachment 4

Order of Evidence

1. RIC (Midland Land) Inc.

2. Town of Midland

3. ADM Agri-Industries Company

4. Reply of RIC (Midland Land) Inc. (if any)

Attachment 5

Meaning of terms used in the Procedural Order

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

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

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.