CORRECTION NOTICE
OLT CASE NO(S).:
OLT-22-003922
DECISION ISSUE DATE(S):
April 6, 2023
CORRECTION NOTICE ISSUE DATE:
April 14, 2023
RE: Killaly vs. Nipissing (Township)
Correction to: In paragraph #6 as well as in the Order at paragraph #14 it incorrectly names “Robin Kuehni” as the participant, and not “Ron Kuehni”.
Originally:
Corrected to:
6Participants identified and confirmed at the CMC were:
Peter McCann and Jane McCann
Bryan Tripp
Robin Kuehni and John Kuehni
Ron MacLachlan
Penelope J. Wallace and Harold M. (Mickey) Wallace
14The Tribunal orders that the following individuals are Participants in this proceeding:
Peter McCann and Jane McCann
Bryan Tripp
Robin Kuehni and John Kuehni
Ron MacLachlan
Penelope J. Wallace and Harold M. (Mickey) Wallace
6Participants identified and confirmed at the CMC were:
Peter McCann and Jane McCann
Bryan Tripp
Ron Kuehni and John Kuehni
Ron MacLachlan
Penelope J. Wallace and Harold M. (Mickey) Wallace
14The Tribunal orders that the following individuals are Participants in this proceeding:
Peter McCann and Jane McCann
Bryan Tripp
Ron Kuehni and John Kuehni
Ron MacLachlan
Penelope J. Wallace and Harold M. (Mickey) Wallace
“Euken Lui”
EUKEN LUI REGISTRAR
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.
ISSUE DATE:
April 6, 2023
CASE NO(S).:
OLT-22-003922
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990,
c. P. 13, as amended.
Appellant
Catherine and Bradley Killaly
Subject:
Zoning By-law
Description:
To permit travel trailers on Rural, SR and LSR properties of a reduced lot area and setback
Reference Number:
BL 2022-23
Property Address:
122 Pine Drive
Municipality/UT:
Nipissing/
OLT Case No:
OLT-22-003922
OLT Lead Case No:
OLT-22-003922
OLT Case Name:
Killaly v. Nipissing (Township)
Heard:
March 9, 2023, by video conference
APPEARANCES:
Parties
Counsel
Catherine and Bradley Killaly
John Ewart
Township of Nipissing
Edward Veldboom
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS AND P. TOMILIN AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This matter before the Tribunal is the first Case Management Conference (“CMC”) pursuant to an appeal under s.34(19) of the Planning Act (“Act”) of the passing of Zoning By-law BL 2022-23 (“ZBA”) by the Council of the Township of Nipissing (“Township”).
2The Township-initiated Zoning By-law Amendment (“ZBA”) was approved on April 26, 2022, and permits travel trailers on Rural, Shoreline Residential Zone (“SR”) and Limited Surface Residential (“LSR”) zoned properties and requires minimum setbacks for tent and travel trailers to a minimum of 30 metres from shoreline residential zoned properties as well as rural properties.
3The Tribunal received an Affidavit of Service dated January 31, 2023, confirming that Notice of this CMC was properly given, which was marked as Exhibit 1.
STATUS OF PARTIES AND PARTICIPANTS
4There are two Parties on record in this matter, including Catherine and Bradley Killaly (“Appellants”), represented by counsel John Ewart, and the Township, represented by counsel Edward Veldbloom. No other requests for Party status have been received.
5Mr. Ewart and Mr. Veldbloom jointly submitted a draft Procedural Order (“DPO”) at the hearing which lists the Parties and Participants, a proposed Issues List and the Order of Evidence for a future hearing.
6Participants identified and confirmed at the CMC were:
Peter McCann and Jane McCann
Bryan Tripp
Robin Kuehni and John Kuehni
Ron MacLachlan
Penelope J. Wallace and Harold M. (Mickey) Wallace
7All other persons present at the CMC who did not or were unable to identify themselves due to technical challenges, were encouraged to contact the case coordinator within 14-days if they were also interested in seeking Participant status.
8The Parties advised the Tribunal that they were committed to finalizing and submitting the PO and revised Issues List by no later than March 31, 2023.
9The Tribunal confirmed a two-day hearing by video conference for Thursday, July 6 and Friday July 7, 2023, commencing at 10:00 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:
GoTo conference Link: https://global.gotomeeting.com/join/660145013
Access code: 660-145-013
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: 1-888-299-1889 (Toll Free) or +1 (647) 497-9373 with the access code mentioned above.
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 hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
14The Tribunal orders that the following individuals are Participants in this proceeding:
Peter McCann and Jane McCann
Bryan Tripp
Robin Kuehni and John Kuehni
Ron MacLachlan
Penelope J. Wallace and Harold M. (Mickey) Wallace
15The Parties are directed to submit a finalized Procedural Order and Issues List for the Tribunal’s review no later than Friday March 31, 2023.
16No further notice is required.
17The Panel is not seized.
“Steven T. Mastoras”
STEVEN T. MASTORAS
MEMBER
“P. Tomilin”
P. TOMILIN 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-22-003922
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990,
c. P. 13, as amended.
Appellant
Catherine and Bradley Killaly
Subject:
Zoning By-law
Description:
To permit travel trailers on Rural, SR and
LSR properties of a reduced lot area and setback
Reference Number:
BL 2022-23
Property Address:
122 Pine Drive
Municipality/UT:
Township of Nipissing
OLT Case No:
OLT-22-003922
OLT Lead Case No:
OLT-22-003922
OLT Case Name:
Killaly v. Nipissing (Township)
PROCEDURAL ORDER
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
- The video hearing will begin on July 6, 2023 at 10:00 a.m. using Go-To-Meeting at:
Go-To-Meeting Link: https://global.gotomeeting.com/join/660145013
Access code: 660-145-013
The parties’ initial estimation for the length of the hearing is 2 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before April 28, 2023 (date – at least 55 days prior to the start of the hearing) and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before May 12, 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 coordinator on or before May 22, 2023 (date – at least 15 days prior to the start of the hearing).
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before May 22, 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 coordinator and in accordance with paragraph 22 below.
On or before May 15, 2023 (date – at least 45 days prior to the start of the hearing), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before May 31, 2023 (date – at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before June 23, 2023 (date), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before June 26, 2023 (date – at least 10 days prior to the start of the hearing).
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before June 29, 2023 (date – at least 7 days prior to the start of the hearing) with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
This Member is not seized. So orders the Tribunal.
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
Issues List
(DRAFT)
Note: The identification of an issue on this list indicates a party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal. 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.
Appellants Issues
Does By-law No. 2022-23 have regard for and appropriately implement matters of provincial interest as set out in Section 2 of the Planning Act?
Is By-law No. 2022-23 consistent with the applicable, provisions of the Provincial Policy Statement namely sections 1.1.1, 1.1.4.1, 1.1.5.1, 1.1.5.2, 1.1.5.4, and 2.2.1?
Does By-law No. 2022-23 conform to and maintain the spirit and intent of the policies of the Township of Nipissing Official Plan, namely sections 1.4.1, 1.4.2, 1.4.9, 1.4.13, 1.4.17, 1.4.18, 2.4.3, 5.2, 5.4.1, 5.4.2, 5.4.4.
Does By-law No. 2022-23 represent good planning and being in the public interest?
ATTACHMENT 3
Parties and Participants
Status
Name
Counsel
Appellant
Catherine and Bradley Killaly
Ewart O'Dwyer M. John Ewart (705) 874-0404 jewart@ewartodwyer.com
Party
Municipality of the Township of Nipissing
Russell, Christie LLP Edward B. Veldboom (705) 325-1326 eveldboom@russellchristie.com
Participant
Peter and Jane McCann (705) 493-2981 Canadianlefty99@gmail.com
Participant
Bryan Tripp (519) 729-6179 bptripp@gmail.com
Participant
Ron (Ronald) Kuehni (226) 218-2102 robinandron@rogers.com
Participant
Ron MacLachlan (705) 845-5350 Ronorbarb.rm@gmail.com
Participant
Penelope J. Wallace and Harold M. (Mickey) Wallace penelopejwallace@hotmail.com
ATTACHMENT 4
ORDER OF EVIDENCE
Catherine and Bradley Killaly
Township of Nipissing
Catherine and Bradley Killaly, in Reply