Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 21, 2023

CASE NO(S).: OLT-22-004799

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

Applicant and Appellant: Leverton Developments Inc.

Subject: Zoning By-law Amendment

Description: To permit construction of two-and-a-half storey, six unit apartment building

Property Address: 51403 Ron McNeil Line

Municipality/UT: Malahide/Elgin

Municipal File No.: D14-Z10-22

OLT Case No.: OLT-22-004799

OLT Lead Case No.: OLT-22-004799

OLT Case Name: Leverton Developments Inc. vs. Malahide (Township)

Heard: March 20, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Leverton Developments Inc.	Analee Baroudi
Township of Malahide	Thomas Sanderson

MEMORANDUM OF ORAL DECISION DELIVERED BY Jennifer GOLD AND s. bobka ON March 20, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting an appeal by Leverton Developments Inc. (“Appellant”). The appeal arises following a refusal concerning a Zoning By-law Amendment (“ZBA”) application to permit a two and half storey, six-unit apartment building on lands municipally known as 51403 Ron McNeil Line in the Township of Malahide and to rezone the property from 'Village Residential 1' (VR 1) to 'Village Residential 1 Special Provision (VR1-5)'.

Service of Notice of CMC

2The Tribunal was in receipt of the Affidavit of Service of Hesham Baroudi sworn February 15, 2023, and marked it as Exhibit 1. After reviewing the Affidavit and hearing no concerns, the Tribunal was satisfied that proper notice of the CMC was issued and that no further notice is required.

MEDIATION AND SETTLEMENT

3The Tribunal explored the possibility of mediation and settlement with the Parties. The parties both expressed openness to resolution discussions; however, they were not of the opinion that Tribunal-led mediation would be helpful in this case.

PROCEDURAL ORDER AND ISSUES LIST

4The Tribunal received and reviewed a draft Procedural Order (“PO”) and Issues List from the parties. The Tribunal determined that the Issues List requires greater specificity. Counsel for the Appellant and Municipality agreed to add specific references, to further scope the Issues List and to update the PO. The Tribunal directed that the PO and Issues List be provided on or before April 6, 2023. Following the CMC, the Parties requested a brief extension which was granted by the Tribunal. The final PO and Issues List was filed on time, on consent and is now approved by the Tribunal.

HEARING

5Based on the anticipated number of witnesses, the Parties requested a two (2) day hearing. The Tribunal set a two (2)-day hearing commencing on Wednesday, June 7, 2023 at 10 a.m. by video hearing.

6The hearing is scheduled to proceed by video as follows:

Wednesday, June 7, 2023 at 10 a.m. and Thursday, June 8, 2023 at 10 a.m.

GoTo conference Link: https://global.gotomeeting.com/join/719383509

Access Code: 719-383-509

By phone: 1-888-299-1889 or +1 (647) 497-9373

7Parties 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.

8Parties 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

9Persons 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.

10Individuals 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

11The TRIBUNAL ORDERS that:

1. A two (2) day hearing will commence on Wednesday, June 7, 2023 at 10 a.m. by video hearing. The date and particulars of the hearing are set out above;

2. The Procedural Order and Issues List, attached to this Order as Schedule 1, shall govern the proceedings;

3. No further notice is required; and

4. The Members of the Panel are not seized.

“Jennifer Gold”

jennifer gold

MEMBER

“S. Bobka”

s. bobka

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.

SCHEDULE 1

CASE NO(S).: OLT-22-004799

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

Applicant/Appellant: Leverton Developments Inc.

Subject: Zoning By-law Amendment

Property Address: 51403 Ron McNeil Line

Municipality: Township of Malahide

Municipal File No.: D14-Z10-22

OLT Case No.: OLT-22-004799

OLT File No.: OLT-22-004799

OLT Case Name: Leverton Developments Inc. v. Malahide (Township)

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 June 7, 2023 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 2 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

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

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

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

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

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

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before April 19, 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 April 25, 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 coordinator on or before May 5, 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 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before May 5, 2023 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.

14. On or before May 19, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before May 5, 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.

16. Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before May 12, 2023 in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before May 19, 2023

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 19, 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.

21. 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.

22. A Table of Dates established by this Procedural Order is set out in Attachment 4.

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.

The Members of the Panel are [not] seized.

So orders the Tribunal.

ATTACHMENT 1 – PARTIES

1. Leverton Developments Inc. – Applicant/Appellant
2. Township of Malahide

ATTACHMENT 2 – ISSUES LIST

1. Whether the proposed Zoning By-law Amendment to reduce the minimum front yard depth on the subject lands from 6.0m to 1.0m to allow for a 2.5-storey, 6 dwelling unit Apartment Dwelling with direct vehicle access from Ron McNeil Line (the “Proposed Amendment”) is consistent with Section 1.1.3.4 of the Provincial Policy Statement 2020;

2. Whether the Proposed Amendment conforms, with respect to compatibility, to policies A3.3 and C1.1.1a of the Elgin County Official Plan; and policies 3.3.2b, 3.3.2d, 4.1.4.2(d)(ii), and 4.4.2.7(c) of the Malahide Township Official Plan;

3. Whether the Proposed Amendment represents good planning and is in the public interest; and

4. Whether the Proposed Amendment has had regard to the matters of provincial interest described at subsection 2(h) of the Planning Act.

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Leverton Developments Inc.
2. Township of Malahide

ATTACHMENT 4 – TABLE OF DATES

Item	Date
Experts Meeting	April 25
Witness Lists and CVs	April 19
Witness Statements Visual Evidence Agreed Statement of Facts	May 5
Replies to Witness Statements	May 12
Joint Document Book Hearing Plan Confirm Whether All Hearing Days are Required	May 19