Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 03, 2023
CASE NO(S).: OLT-22-002849
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: David Nicholson
Appellant: Pelham Advocates for Trees and Habitat
Appellant: Wally Braun
Appellant: Graham and Edie Pett
Applicant: Nature Conservancy of Canada
Subject: Approval of a Development Permit Application
Description: To undertake restoration of two anthropogenic ponds at the 24.5 ha (60.5 ac) Lathrop Nature Preserve
Reference Number.: N/F/2021-2022/230
Property Address: 1590 Pelham Street
Municipality/UT: Pelham/Niagara
OLT Case No.: OLT-22-002849
OLT Lead Case No.: OLT-22-002849
OLT Case Name: Brand v. Ontario (NEC)
Heard: March 7, 2023 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Edie and Graham Pett
Self-represented
David Nicholson
Self-represented
Wally Braun
Self-represented
Nature Conservancy of Canada
Matthew Page*
Niagara Escarpment Commission
Kenneth Hare*
Sheila Wulff* (articling student)
MEMORANDUM OF ORAL DECISION DELIVERED BY c. hardy and jennifer campbell on march 7, 2023 AND ORDER OF THE TRIBUNAL
1This is the third Case Management Conference (“CMC”) brought before the Ontario Land Tribunal (in its role as the Niagara Escarpment Hearing Office) (“Hearing Office”) regarding the appeals brought by Edie and Graham Pett, David Nicholson and Wally Braun (together “Appellants”) regarding the conditional approval by the Niagara Escarpment Commission (“NEC”) of a development permit applied for by the Nature Conservancy of Canada (“Conservancy”). The development permit relates to work to be completed on the property municipally known as 1590 Pelham Street, in the Town of Pelham, Ontario (“Subject Property”).
2There have been two previous CMCs regarding this matter which took place on July 6, 2022 and September 13, 2022 by panels differently constituted.
3The purpose of this third CMC was to hear from Counsel and Parties, following mediation, regarding ongoing discussions and scoping of the Issues List in advance of the six (6)-day hearing scheduled to commence on Monday, May 8, 2023.
4The Parties attended before the Hearing Office on March 7, 2023 and addressed a partial settlement, withdrawal of certain appeals and non-compliance with the Procedural Order (“PO”).
PARTIAL SETTLEMENT AND WITHDRAWALS
5Counsel for the Conservancy, Matthew Page, provided the Hearing Office with a status update following mediation efforts which took place in January 2023. Subsequent to mediation, the Conservancy was successful in reaching a settlement with Mr. and Mrs. Pett, and Mr. Nicholson. Mr. Page explained to the Hearing Office that the settlement proposal was circulated to Mr. Braun, however, Mr. Braun has not yet communicated his position on the settlement proposal.
6Mr. and Mrs. Pett, and Mr. Nicholson advised the Hearing Office that considering the settlement with the Conservancy, they were requesting that their appeals be withdrawn.
7At the conclusion of the CMC, Counsel for NEC, Mr. Hare, formally requested that the NEC appeal be withdrawn.
8Following the CMC, Pelham Advocates for Trees and Habitat and Dr. Uwe Brand formally withdrew as Participants effective March 7, 2023 and March 9, 2023 respectively.
9As a consequence of the above-noted withdrawals, which the Hearing Office accepts as set out below, Mr. Braun remains the sole Appellant in this matter.
PROCEDURAL ORDER AND ISSUES LIST
10Mr. Hare provided the Hearing Office with a brief background of events leading up to the CMC. Mr. Hare explained that Mr. Braun’s behavior has made it extremely difficult, time consuming and expensive for the other Parties to move the matter forward. Among other things, Mr. Hare submitted that Mr. Braun fails to respond to correspondence, has made numerous suggestions that he will be calling multiple witnesses but has not disclosed any such witnesses to date and has not complied with timelines and deadlines set out in the PO. Mr. Hare noted that the PO was structured to assist in organizing the Parties, who were self-represented. Dates were scheduled for Parties to retain experts and have “check ins” with witnesses to attempt to scope the Issues List. Mr. Hare explained that Mr. Braun did not have any witnesses attend the “check in” and this was one of many examples of his non-compliance with the PO.
11Mr. Page agreed with the summary provided by Mr. Hare. Mr. Page submitted that Mr. Braun’s behavior has been a substantive problem throughout the matter. Mr. Page noted that Mr. Braun continues to allege that he will bring up to six (6) witnesses to the hearing, however, witness lists were due February 1, 2023, and witness statements were due on March 7, 2023 and Mr. Braun did not comply with either deadline. Mr. Page submitted that the Hearing Office would have to order exceptional relief in the face of Mr. Braun’s continued non-compliance if he were to be permitted to introduce experts at this late stage. He further submitted that this would result in extreme prejudice to all other Parties as they would be forced to respond to new witnesses, which would result in additional time and expense. Mr. Page urged the Hearing Office to take control of its own process and requested that the Hearing Office deny any extension requests to the deadlines in the PO, which would in effect preclude Mr. Braun from introducing any evidence or experts at this late stage.
12Mr. Hare and Mr. Page both submitted that given the withdrawal of appeals referred to above, the hearing process should be abridged as there will be no opposing witnesses and no issues to adjudicate. Mr. Hare argued that when a Party withdraws an appeal, their issues are withdrawn and if any issues remain, they could be dealt with in an abridged process as opposed to a full six (6) day hearing.
13Mr. Pett submitted that it was his understanding that the Appellants would work together to move the matter forward, however, Mr. Braun has not responded to requests to consult to make the process more efficient. Mr. Pett noted that following mediation, progress was made to narrow the issues and eventually reach a settlement and Mr. Braun did not respond to requests nor engage in this process. Mr. Nicholson agreed with the submissions made by Mr. Pett.
14Mr. Braun advised the Hearing Office that he has ongoing health issues, which have precluded him from complying with the timelines set out in the PO. During the course of the CMC, he made multiple requests that the Hearing Office order binding arbitration or an alternative process to allow him to cross-examine the witnesses of the Conservancy and the NEC and narrow the issues.
15Mr. Braun noted that there may be some truth to the allegation that he was not engaging in the process but maintained that his primary involvement was always to question the expert evidence raised by the Conservancy and NEC. He was inconsistent in his submissions regarding his own experts, but when questioned by the Hearing Office, Mr. Braun confirmed that he intended to cross examine the experts proffered by the Conservancy and NEC, in addition to calling his own experts.
16The Hearing Office is sensitive to the lack of familiarity that many self-represented Parties have with the adjudicative process. That said, self-represented Parties are expected to familiarize themselves with the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”) and their active role as a Party. It is significant that Mr. and Mrs. Pett, and Mr. Nicholson educated themselves in the process and appear to have been actively involved throughout the matter. The reality is that the Parties, save and except for Mr. Braun, have worked diligently and collaboratively to move the matter forward and reach a settlement while fulfilling their duties as Parties, which include complying with the Rules and the PO. Mr. Braun submitted to the Hearing Office that his ongoing health issues precluded him from compliance with the PO, however, there were no submissions made to the Hearing Office that Mr. Braun had made formal requests to extend or amend any of the timelines.
17To recap, there have been two (2) CMCs conducted in this matter. A six (6) day hearing on the merits has been scheduled beginning on Monday, May 8, 2023. The PO and Issues List was approved by the Hearing Office in the Decision issued December 12, 2022.
18The PO establishes a number of deadlines for, among other things, “check ins”, exchange of witness lists and exchange of witness statements to ensure all Parties are on equal footing. This process allows Parties to streamline the matter and to have the opportunity to familiarize themselves with the matters that they will be required to address at the hearing. The PO is an Order of the Hearing Office and as such, compliance is mandatory unless the Hearing Office agrees to amend the said Order. At the current CMC, the Hearing Office approved a request of the Conservancy, without objection, to amend paragraph 17 of the PO to allow the Parties to submit individual Document Books on or before April 3, 2023 (as opposed to a Joint Document Book). All remaining deadlines and items set out in the PO remain intact. To be clear, witnesses are limited to those disclosed in the witness lists that were exchanged by the Parties pursuant to the deadline set out in the PO, there will be no additions.
19The Rules are to be interpreted to offer the best opportunity for an expeditious and cost-effective resolution to a matter. Mr. Braun has obligations as a Party to the matter and he has not complied with these obligations. The Hearing Office advised Mr. Braun that he does not have a right to cross-examine any witnesses in advance of the hearing, the proper process is, as set out in the PO, whereby expert witnesses have a meeting and attempt to narrow issues through that process. As the Hearing Office heard, Mr. Braun did not proffer any expert witnesses at that meeting. Multiple times, the Hearing Office advised Mr. Braun that it cannot assist with his request for binding arbitration or an alternative process and suggested that he work with the Parties to attempt to narrow the issues for adjudication.
20The Hearing Office does not agree with Mr. Hare and Mr. Page that the issues in this case are attributable to individual Parties. The Issues List is set out in a general format which does not allow the Hearing Office to strike issues based on the withdrawal of certain Appellants. As emphasized above, the PO has been approved and cannot be altered, unless approval is sought and granted. As such, the issues set out in the PO are the only issues to be adjudicated at the hearing and will not be expanded upon. Accordingly, the hearing will be limited to adjudicating the issues set out in Attachment 3 of the PO. As the Hearing Office commented at the conclusion of the CMC, if Mr. Hare and Mr. Page do not feel that there are any remaining issues to adjudicate, they have the option of bringing a Motion to Dismiss pursuant to the Rules.
DECISION AND ORDER
21The Tribunal orders as follows:
a. Paragraph 17 of the Procedural Order approved by the Hearing Office and appended to the Hearing Office Decision issued December 12, 2022 is amended to provide that the Parties shall prepare individual document books (in lieu of a joint document book), which shall be shared with the OLT Case Coordinator on or before Monday, April 3, 2023.
b. There will be no new issues added to the Issues List and there will be no additional witnesses introduced by any Party who were not disclosed in accordance with the Procedural Order, unless as determined by the presiding Hearing Officer.
c. The Procedural Order, as amended in (a) above, shall continue to govern the proceedings and the Parties shall strictly comply with all timelines and deadlines contained in the Procedural Order.
22A Motion by any Party with respect to this matter will be in keeping with Rule 10 of the Ontario Land Tribunal Rules of Practice and Procedure.
23The Tribunal accepts the withdrawal of the appeals of Edie and Graham Pett, David Nicholson and Niagara Escarpment Commission.
24The Hearing Officers are not seized.
25No further notice will be given.
“C. Hardy”
c. hardy
hearing officer
“Jennifer Campbell”
jENNIFER campbell
hearing officer
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.