First Capital Holdings (Ontario) Corporation v. Toronto (City), 2023 CanLII 3016

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 17, 2023

CASE NO(S).: OLT-22-003642

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: First Capital Holdings (Ontario) Corporation

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

Description: To permit two, 21-storey towers and a 9-storey midrise building

Reference Number: 19 244758 NNY 16 OZ

Property Address: 801 York Mills Rd. & 1855 Leslie Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-003642

OLT Lead Case No.: OLT-22-003642

OLT Case Name: First Capital Holdings (Ontario) Corporation v. Toronto (City)

Heard: December 8, 2022 by video hearing ("VH")

APPEARANCES:

Parties

Counsel

First Capital Holdings (Ontario) (the "Applicant/Appellant")

Denise Baker

City of Toronto

Ray Kallio

York Mills Leslie Residents Inc. ("YMLRI")

Conner Harris

Ellen Kessler

Ian Flett

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON DECEMBER 8, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second CMC held by the Tribunal concerning an appeal by First Capital Holdings (Ontario) Corporation. The appeal arises following a non-decision by the City of Toronto in relation to a Zoning by-law application involving 801 York Mills Road and 1855 Leslie Street. The purpose of the application is to facilitate development of a 21-storey tower and a 9-storey midrise building on the property.

2The purpose of the present CMC is to receive updates in preparation for the upcoming July hearing on the merits, including as it relates to the parties’ Witness Lists and issues to be included in the Issues List – both of which relate to possibly revising the matter’s Procedural Order issued October 7, 2022 ("PO").

3In addition, the Tribunal is in receipt of a request from Hastad Property Management Services Inc. ("Hastad"), to change its status from Party to Participant.

Status of Hastad Property Management Services Inc.

4At the request of Hastad, and on consent of the remaining parties, the Tribunal finds it appropriate to change its status from Party to Participant.

Witness Lists of the parties

5The Tribunal notes that paragraph 10 of the PO states the following:

10. 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 November 25, 2022 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

6The Tribunal further notes that paragraphs 3 and 4 of the decision of the first CMC of this matter states the following:

3[…] The Tribunal grants [Ms. Kessler] Party status on the condition that her issues be reformulated and narrowed, and not duplicating those of the City, and the witnesses to be called be identified well in advance of the Hearing. [emphasis added]

4The added Parties [YMLRI and Ms. Kessler] are directed to discuss with the City and the proponent further clarification of their issues prior to the next CMC on December 8, 2022. […] Witnesses proposed to be called at the Hearing should be identified by this time. A Procedural Order will be finalized at this CMC. [emphasis added]

7The Parties confirmed that the Appellant and the City have complied with the PO requirement to tender their respective Witness Lists prior to the November 25, 2022 deadline. However, the parties also confirmed that the added parties, YMLRI and Ms. Kessler, both failed to meet the PO deadline (as well as the directions provided in the decision of the first CMC).

8The assumption raised by the Appellant and the City, in light of the fact that the added parties failed to provide their Witness Lists, was that the added parties did not intend to call any evidence. The Appellant then submitted that this is wholly unfair, given that the issues exclusively raised by the added parties would require them, at great cost, to call additional expert evidence in a variety of fields.

9The Tribunal asked counsel for the Appellant and the City to provide brief submissions on what consequences, if any, they might deem appropriate if the added parties continue to insist upon including issues on the Issues List but not support it through evidence. Both counsel for the Appellant and the City submitted that the Tribunal has awarded costs in the past against parties who raise issues but do not lead any contradictory evidence to support their assertions.

10The Tribunal then sought submissions from the added parties, asking counsel to suggest what they thought the Tribunal should do to address the Appellant’s concerns respecting the fairness, or lack thereof, of having the added parties raise issues with no plans to support it through evidence.

11It was at this point that counsel for YMLRI revealed that it had sent a "without prejudice" Witness List to the other parties, indicating that it planned to call an expert in Land Use Planning, as well as other lay-witnesses. Counsel for the Appellant and the City acknowledged this fact, while submitting that the "without prejudice" nature of the Witness List put them in the awkward position of having a Witness List from YMLRI, but not being able to comment on it before the Tribunal until counsel for YMLRI lifted its "without prejudice" claims.

12The Tribunal notes that, despite there being a "without prejudice" Witness List from YMLRI in the hands of the other parties, it remains undelivered to the Tribunal and consequently it does not comply with paragraph 10 of the PO.

13Counsel for Ms. Kessler subsequently then revealed that his client also intends to call an expert in Land Use Planning. He acknowledged that his client’s Witness List was also not provided to the Tribunal in accordance with paragraph 10 of the PO.

14Upon the understanding that both added parties do in fact intend to call expert evidence in Land Use Planning, the Tribunal asked the Appellant to provide further submissions. Counsel for the Appellant submitted that she may be open to extending the deadline for the added parties to submit their Witness Lists; however, she pointed out that an expert in Land Use Planning, as called by the added parties, can only address some of the issues raised by them, and it would remain unfair to put the Appellant in the position of having to call experts in a variety of other fields to provide uncontested evidence as a means to address the added parties’ mere apprehension of concerns.

15At this point in the CMC, counsel for Ms. Kessler confirmed to the Tribunal that Ms. Kessler will agree to strike out her issues numbers 4 (re: Growing Up: Planning for Children in New Vertical Communities Guidelines (2020)), 7 and 8 (re: stormwater management/hydrogeology) from the Issues List, leaving only Land Use Planning issues that can be addressed through Ms. Kessler’s expert. Counsel for the Appellant submitted that this would satisfy her concerns by eliminating the need to call evidence in the other fields.

16Unlike his counterpart, counsel for YMLRI did not offer to strike out their issues for which they do not plan to call any contradictory expert evidence. This includes issues 6-10 (re: traffic management and parking) and issues 14-17 (re: Natural Heritage). As previously stated, counsel for the Appellant confirmed that these issues would require the Appellant to call additional experts, specifically: (1) a Transportation Engineer; (2) an arborist, and (3) an ecologist.

17Upon the submission of the parties, the Tribunal finds it appropriate to strike YMLRI’s issues numbers 6-10 and 14-17 because the association does not plan to call any contradictory evidence to support its assertions in these areas. The Tribunal comes to this conclusion upon determining that the YMLRI has nothing more than a mere apprehension of concerns to support these issues. The Tribunal finds that it is not enough to raise an issue based on a mere apprehension of a concern; rather, there must be some sort of informed basis for a concern to constitute a legitimate issue to be included on an Issues List.

18The Tribunal considered what sanctions, if any, should be levied against the added parties for failing to abide by the directions of the PO and first CMC decision, insofar as they both failed to deliver their Witness Lists by the deadline. Options included denying the added parties the opportunity to call any witnesses and striking all of their issues from the Issues list, and/or revoking their Party status given that their original granting of Party status was conditional upon them identifying their witnesses in advance of the present CMC.

19The Tribunal finds that no sanctions should be levied at the present time, principally because the hearing on the merits is still several months away and there is no apparent prejudice suffered by the original parties given the delay in delivering the added parties’ Witness Lists.

20The Tribunal therefore finds it appropriate to extend the deadline currently featured in the PO to provide the added parties until the end of the day on Friday December 16, 2023, to comply with paragraph 10 of the current PO. This includes identification of the Land Use Planner that they intend to call as an expert witness, and providing such expert’s CV. If either Ms. Kessler or YMLRI do not identify an expert in Land Use Planning as a proposed witness, as each of them has individually promised the Tribunal, then the Tribunal finds it appropriate to strike all of that party’s remaining issues from the Issues List.

Revisions to the PO

21For the reasons set out above and to summarize, the Tribunal orders the parties to revise the PO issued on October 7, 2022, as follows:

1. Change Hastad’s status from Party to Participant;

2. Extend the deadline in paragraph 10 of the PO to permit YMLRI and Ms. Kesler to deliver their Witness Lists by December 16, 2022.

3. Ms. Kessler’s issues numbers 4, 7 and 8 are to be struck;

4. YMLRI’s issues numbers 6-10 and 14-17 are to be struck;

5. If either Ms. Kessler or YMLRI do not include an expert in Land Use Planning as part of their Witness List by December 16, 2022, including such expert’s CV, said party or parties will have all of their remaining issues struck from the Issues List; and

6. Counsel for the Appellant shall deliver a revised draft PO to the Tribunal for consideration no later than December 20, 2022.

22The Tribunal notes that, at the time of writing this memorandum of oral decision, it is now in receipt of the revised draft PO in accordance with the above noted directions. The Tribunal finds it acceptable and the proceedings shall be governed by it (see Schedule 1).

ORDER

23THE TRIBUNAL ORDERS that:

1. Hastad Property Management Services Inc.’s status is changed from Party to Participant; and

2. The Procedural Order appended as Schedule 1 shall now govern the proceedings.

24The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

"K.R. Andrews"

K.R. ANDREWS

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.

CASE NO(S).: OLT-22-003642

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

Applicant/Appellant: First Capital Holdings (Ontario) Corporation

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

Description: To permit two, 21-storey towers and a 9-storey midrise building

Reference Number: 19 244758 NNY 16 OZ

Property Address: 801 York Mills Rd. & 1855 Leslie Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-003642

OLT Lead Case No.: OLT-22-003642

OLT Case Name: First Capital Holdings (Ontario) Corporation v. Toronto (City)

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 July 31, 2023 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 14 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

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

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

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

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

Requirements Before the Hearing

9. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties on or before March 17, 2023 The applicant acknowledges that any revisions to the proposal after that date, except revisions arising from the expert’s witness meetings or with the consent of the parties, may be grounds for a request to adjourn the hearing.

10. 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 December 16, 2022 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified. A party who does not provide their list of witnesses, together with a copy of the witness’ Curriculum Vitae for expert witnesses, will have their issues struck from the Issues List set out in Attachment 2.

11. Expert witnesses in the same field shall have a meeting on or before April 28, 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 May 8, 2023.

12. 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.

13. 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 13 below.

14. On or before June 2, 2023, 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 21 below.

15. On or before June 2, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 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 July 14, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. On or before June 30, 2023 parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 21 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 July 21, 2023.

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

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

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 21, 2023 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1: PARTIES AND PARTICIPANTS

Appellant/Party

Counsel

Contact

First Capital Holdings (Ontario) Corporation

Denise Baker

WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 Phone: 416-947-5090 dbaker@weirfoulds.com

City of Toronto

Ray Kallio

City of Toronto Metro Hall 55 John Street Toronto ON M5V 3C6 Phone: Tel. 416-397-4063 ray.kallio@toronto.ca

York Mills Leslie Residents Inc.

Conner Harris

Rayman Harris LLP 250 The Esplanade, Suite 202 Toronto, ON M5A 1J2 Phone: 416-597-5422 conner@rbllp.com

Ellen Kessler

Ian Flett

Eric K. Gillespie Professional Corporation 160 John Street, Suite 300 Toronto, ON M5C 1E5 Phone: 416 939 6396 Email: iflett@gillespielaw.ca

Participant

Contact

Branko Jaksic

416-449-0142 bjaksic@rogers.com

Earl Haslett

437-580-3011 33 Hurlingham Crescent Eahaslett@gmail.com

Stephen Nitikman

416-576-1705 Phaselock2000@gmail.com

Thomas Yu

416-828-3781 projectbp@hotmail.com

Tyson Chu

416-258-7912 Tysonmit1951@gmail.com

Hastad Property Management Services Inc.

Stiver Vale 195 Main Street South Newmarket, ON L3Y 3Y9 Phone: 905-895-4571 x 224 raleck@stivervale.com

WillowWood School Fred Howe

416-444-7644 55 Scarsdale Road Toronto, ON M3B 2R3 fredhowe@willowwoodschool.ca

ATTACHMENT 2: ISSUES LIST

Note: 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 the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing.

CITY OF TORONTO

Planning Act

1. Does the proposed development and the proposed Zoning By-law Amendment have regard for the matters of provincial interest as set out in Section 2 of the Planning Act, in particular Subsections 2(h) and 2(r)?

City of Toronto Official Plan

2. Does the proposed development conform to the policies of the City of Toronto Official Plan with respect to Healthy Neighbourhoods (2.3.1), the Public Realm (3.1.1), Built Form (3.1.2), Built Form – Building Types (3.1.3), Housing (3.2.1), Mixed Use Areas (4.5) and Implementation (5)?

Guidelines

3. Does the proposed development appropriately respond to and meet the intent and purpose of the Tall Buildings Guidelines?

4. Does the proposed development appropriately respond to, and satisfy the intent of, the residential unit size guidelines of Growing Up: Planning for Children in New Vertical Communities Guidelines (2020)?

Built Form

5. Is the massing of the proposed towers and associated base appropriate?

6. Are the floor plates of the two towers in the proposed development of appropriate scale?

7. Does the development provide appropriate transition to low-rise Neighbourhoods to the south?

8. Is the massing of the proposed development appropriate in terms of its impact on access to sunlight, overlook, privacy, wind effects, and shadow?

9. Is the proposed transition between the townhouse component of the proposed development and the lands municipally know as 799 York Mills Road appropriate?

Streetscape & Public Realm

10. Is the proposed development's relationship with the public realm and resulting streetscape appropriate?

11. Does the proposed development establish appropriate relationships at grade, including provision of an appropriate pedestrian realm, streetscaping and contributions to public space?

Amenity Space

12. Is the location and design of the proposed amenity space appropriate?

Shadow Impacts

13. Are the shadow impacts of the proposed development on York Mills Road public realm appropriate?

Wind Impacts

14. Does the proposed development provide comfortable wind conditions and limit wind impacts on the public realm, along the York Mills Road public realm, particularly at the northwest corner of the west tower?

Public Interest and Good Planning

15. Are the proposed development and Zoning By-law Amendment good planning and in the public interest?

Conditions on any Approval

16. In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied:

a. The Zoning By-law Amendment has been prepared in a content and form satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning;

b. The City has advised that any building envelope changes to address the findings of the wind tunnel study have been made to the satisfaction of the Chief Planner and Executive Director, City Planning Division;

c. The City has confirmation of water, sanitary and stormwater capacity from the Chief Engineer and Executive Director, Engineering and Construction Services, or the determination of whether holding provisions are required in the Zoning By-law Amendment;

d. The owner has entered into one or more agreements to secure such matters as may be required to support the development, including but not limited to parkland conveyances and pedestrian and vehicular access easements for public use, with such agreement(s) to be registered on title to the lands, all to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor;

e. The owner has addressed all outstanding issues raised by Engineering and Construction Services as they relate to the Zoning By-law Amendment application, to the satisfaction of the Chief Engineer and Executive Director, Engineering and construction Services;

f. The owner has provided vehicle and bicycle parking and loading spaces in accordance with accordance with the requirements of Zoning By-law 569-2013 to the satisfaction of the General Manager, Transportation Services; and

g. The owner has submitted a Transportation Demand Management Plan and secured such matters arising from the accepted Travel Demand Management Plan, as may be required, to the satisfaction of the Chief Planner and Executive Director, City Planning.

York Mills Leslie Residents Inc. ("YMLRI")

1. YMLRI adopts the following issues as set out in the Issues List of the City of Toronto:

Issues 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15.

Urban Design and Built Form

2. Are the setbacks from neighbouring properties as proposed in the applications appropriate and sufficient?

3. Do the applications, or any proposed modifications to the applications, adequately account for and protect the privacy of neighbouring properties?

4. Do the applications, or any modifications to the applications, meet the City of Toronto’s angular plane requirements?

5. Do the applications or any proposed modifications to the applications, meet the intent and purpose of the City of Toronto’s Complete Streets Guidelines and Streetscape Manual?

Heights and Densities

6. Do the applications, or any modifications to the applications, conform to the City of Toronto Official Plan, including but not limited to policies 2.1, 2.2, 3.2, 4.2, and 4.6?

7. Do the applications, or any proposed modifications to the applications, conform to the Growth Plan for the Greater Golden Horseshoe (2019), including but not limited to policies 2.2.1, 2.2.3, 2.2.4, 2.2.6, 5.2.1, 5.2.4, and 5.2.5?

8. Are the applications, or any proposed modifications to the applications, consistent with the Provincial Policy Statement (2020), including but not limited to policies 1.1.1, 1.1.3, and 1.4?

Ellen Kessler

Planning Act

1. Does the proposed development and the proposed Zoning By-law Amendment have regard for the matters of provincial interest as set out in Section 2 of the Planning Act, in particular Subsections 2(h) and 2(r)?

City of Toronto Official Plan

2. Does the proposed development conform to the policies of the City of Toronto Official Plan with respect to Healthy Neighbourhoods (2.3.1), the Public Realm (3.1.1), Built Form (3.1.2), Built Form – Building Types (3.1.3), Mixed Use Areas (4.5) and Implementation (5)?

Guidelines

3. Does the proposed development appropriately respond to and meet the intent and purpose of the Tall Buildings Guidelines?

Built Form

4. Is there appropriate transition in scale and massing between the proposed townhouse element and the neighbourhood designated properties to the south?

5. Are sufficient measures in place to mitigate or eliminate overlook and privacy impacts from the development onto neighbouring properties?

ATTACHMENT 3: ORDER OF EVIDENCE

1. First Capital Holdings (Ontario) Corporation

2. City of Toronto

3. York Mills Leslie Residents Inc.

4. Ellen Kessler

5. First Capital Holdings (Ontario) Corporation, in reply

ATTACHMENT 4

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.