Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 26, 2023
CASE NO(S).: OLT-22-003608 (Formerly PL171265)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 4135199 Canada Inc. Et Al
Subject: Proposed Plan of Subdivision - Failure of the County of Wellington to make a decision
Purpose: To permit a mixed use community consisting of residential, commercial, employment, institutional and open spaces uses
Property Address/Description: Part of Lot 16 & 17 Concession 10 and Part of Lot 16, Concession 11
Municipality: Town of Erin
Municipality File No.: 23T-12001
OLT Case No.: OLT-22-003611
Legacy Case No.: PL171266
OLT Lead Case No.: OLT-22-003608
Legacy Lead Case No.: PL171265
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 4135199 Canada Inc. Et Al
Subject: Request to amend the Official Plan - Failure of the Town of Erin to adopt the requested amendment
Existing Zoning: FD- Future Development
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit a mixed use community consisting of residential, commercial, employment, institutional and open spaces uses
Property Address/Description: Part of Lot 16 & 17 Concession 10 and Part of Lot 16, Concession 11
Municipality: Town of Erin
Municipality File No.: OPA D08
OLT Case No.: OLT-22-003609
Legacy Case No.: PL171302
OLT Lead Case No.: OLT-22-003608
Legacy Lead Case No.: PL171265
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 4135199 Canada Inc. Et Al
Subject: Application to amend Zoning By-law No. 07-67 - Refusal or neglect of the Town of Erin to make a decision
Purpose: To permit a mixed use community consisting of residential, commercial, employment, institutional and open spaces uses
Property Address/Description: Part of Lot 16 & 17 Concession 10 and Part of Lot 16, Concession 11
Municipality: Town of Erin
Approval Authority File No.: Z12-05
OLT Case No.: OLT-22-003610
Legacy Case No.: PL171301
OLT Lead Case No.: OLT-22-003608
Legacy Lead Case No.: PL171265
Heard: March 28, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Equity Venture Group Corp. and National Properties Inc. (“Applicant”) | Meaghan McDermid |
| County of Wellington (“County”) | Peter Pickfield |
| Town of Erin (“Town”) | Quinto M. Annibale, B. Ruddick |
| Upper Grand District School Board (“School Board”) | Justine Reyes |
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON MARCH 28, 2023 AND ORDER OF THE TRIBUNAL
1The Tribunal convened this Case Management Conference (“CMC”) at the request of the Applicant to facilitate continued case management of outstanding aspects of these Appeals that were substantially adjudicated and determined in the Tribunal’s Decision issued on January 5, 2021.
2That Decision of Vice-Chair Tousaw approved an Official Plan Amendment to the Town’s Official Plan, a Zoning By-law Amendment and a Plan of Subdivision for various lands but parsed out certain remaining appeals relating to approximately eight hectares (“ha”) of lands which were identified as the “Deferral Areas”. The Appeal relating to the amendment of the County Official Plan was withdrawn.
3The intent was to stand down on these remaining Appeals until other planning instruments were in place relating to population and employment forecast growth for the Town. Town and County Official Plan Amendments have been adopted at this point but are awaiting approval which is expected by the early fall.
4The expectation is that these approvals will facilitate an early resolution of the remaining appeals relating to the Deferral Areas, but there is a possibility, in the event there are issues raised in the approval process, that a hearing might be required, which would not exceed nine days. The parties have proposed that a further CMC be scheduled in the early fall when the Ministry’s position will be known, but that the hearing dates be set in order that the Appeals move forward to a final determination without delay.
5On the strength of the assurances of counsel that a final draft of the Procedural Order and Issues List be delivered to the Tribunal by April 14, 2023, for final review and approval, the Parties were provided with dates for the CMC and the nine-day hearing. The draft of the Procedural Order was subsequently received, and the Tribunal accordingly provides the following case management directives.
PROCEDURAL ORDER
6Appended to this Decision as Schedule 1 is the Procedural Order, which will now govern all further pre-hearing procedural requirements and the hearing of the Appeal.
FURTHER CASE MANAGEMENT CONFERENCE – SEPTEMBER 27, 2023
7A further Case Management Conference is scheduled to proceed by video hearing on Wednesday, September 27, 2023, at 10 a.m.
8Parties 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:
https://meet.goto.com/278736685
Access code: 278-736-685
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 278-736-685.
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 hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the CMC hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
12In the event that the Parties have resolved all outstanding issues in the Appeals such that the Parties have received instructions to present a settlement of the Appeals to the Tribunal, in advance of the CMC counsel will provide a brief outline of the proposed settlement confirming that the settlement addresses all outstanding issues in the Appeals, and to the extent possible as of that date, also file any documentation not subject to privilege or confidentiality, confirming approval of the terms of the settlement by the Parties. The Parties will also advise the Tribunal as to the earliest date that a one-day video settlement hearing, or alternatively a written hearing, may be scheduled by the Tribunal. In that event, the hearing dates below can then be withdrawn from the Tribunal’s calendar.
HEARING DATES – MARCH 18 to MARCH 28, 2024
13The nine-day video hearing will commence at 10 a.m. on Monday, March 18, 2024, and continue to Thursday, March 28, 2024.
14The Parties 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:
https://global.gotomeeting.com/join/344779885
Access Code: 344-779-885
15For the video hearing, all Parties, witnesses or observers 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.
16Individuals are directed to connect to each of the events on the assigned dates at the correct time. It is the responsibility of the persons participating in the hearings 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.
17Persons who experience technical difficulties accessing either of the video hearing events using 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: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The access code is 344-779-885.
18There will be no further notice with respect to the CMC or the Hearing. The Panel Member is not seized.
19The Tribunal so orders and provides these CMC directives for the purposes of the case management of these appeals.
“David L. Lanthier”
DAVID L. LANTHIER VICE-CHAIR
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 1
CASE NO(S).: OLT-22-003608
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 4135199 Canada Inc. Et Al
Subject: Proposed Plan of Subdivision - Failure of the County of Wellington to make a decision
Purpose: To permit a mixed use community consisting of residential, commercial, employment, institutional and open spaces uses
Property Address/Description: Part of Lot 16 & 17 Concession 10 and Part of Lot 16, Concession 11
Municipality: Town of Erin
Municipality File No.: 23T-12001
OLT Case No.: OLT-22-003611
Legacy Case No.: PL171266
OLT Lead Case No.: OLT-22-003608
Legacy Lead Case No.: PL171265
OLT Case Name: 4135199 Canada Inc. Et. Al. v. Erin (Town)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 4135199 Canada Inc. Et Al
Subject: Request to amend the Official Plan - Failure of the Town of Erin to adopt the requested amendment
Existing Zoning: FD- Future Development
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit a mixed use community consisting of residential, commercial, employment, institutional and open spaces uses
Property Address/Description: Part of Lot 16 & 17 Concession 10 and Part of Lot 16, Concession 11
Municipality: Town of Erin
Municipality File No.: OPA D08
OLT Case No.: OLT-22-003609
Legacy Case No.: PL171302
OLT Lead Case No.: OLT-22-003608
Legacy Lead Case No.: PL171265
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 4135199 Canada Inc. Et Al
Subject: Application to amend Zoning By-law No. 07-67 - Refusal or neglect of the Town of Erin to make a decision
Purpose: To permit a mixed use community consisting of residential, commercial, employment, institutional and open spaces uses
Property Address/Description: Part of Lot 16 & 17 Concession 10 and Part of Lot 16, Concession 11
Municipality: Town of Erin
Approval Authority File No.: Z12-05
OLT Case No.: OLT-22-003610
Legacy Case No.: PL171301
OLT Lead Case No.: OLT-22-003608
Legacy Lead Case No.: PL171265
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 Hearing will begin on Monday March 18, 2024 at 10:00 a.m.
The hearing length is nine (9) 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 Tuesday December 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.
Expert witnesses in the same field shall have a meeting on or before Friday January 12, 2024 and use best efforts to try to resolve or reduce the issues for the hearing, as well as identify the specific policies at issue and to be addressed in Issues 2a and 3a. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues, which includes the identified policies at issue in Issues 2a and 3a, with the OLT case co-ordinator on or before Friday January 19, 2024.
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 Friday February 2, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before Friday February 2, 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.
On or before Monday February 12, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Tuesday February 27, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday February 16, 2024, 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 co-ordinator on or before Friday March 8, 2024
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 Monday March 11, 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.
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
SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| Tuesday December 19, 2023 | Exchange of witness lists (names, disciplines, and order to be called) |
| Friday January 12, 2024 | Experts meeting prior to this date |
| Friday January 19, 2024. | Experts’ Statement of Agreed Facts and Issues |
| Friday February 2, 2024 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| Friday February 16, 2024 | Exchange of Reply Witness Statements |
| Tuesday February 27, 2024 | Exchange of Visual Evidence |
| Friday March 8, 2024 | Joint Document Book filed with Tribunal |
| Monday March 11, 2024 | Preliminary Hearing Plan filed with Tribunal |
| Monday March 18, 2024 | Hearing commences |
Attachment 2
LIST OF PARTIES
PARTIES
Equity Venture Group Corp. and National Properties Inc. Meaghan McDermid Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, ON M5V 3C1 416-263-4514 meaghanm@davieshowe.com
County of Wellington Mr. Peter Pickfield Garrod Pickfield LLP 9 Norwich St. W Guelph, ON N1H 2G8 (519) 837-0500 pickfield@garrodpickfield.ca
Town of Erin Quinto Annibale Loopstra Nixon LLP Woodbine Place 135 Queens Plate Drive, Suite 600 Toronto, ON M9W 6V7 416-748-4757 qannibale@loonix.com
Upper Grand District School Board Mr. Brad Teichman Overland LLP 5255 Yonge Street, Suite 1101 Toronto, ON M2N 5P8 (416) 730-0337 bteichman@overlandllp.ca
Attachment 3
ISSUES LIST
The identification of an issue does not mean that all parties agree that such issues, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing.
County of Wellington
Would approval of (1) the proposed amendment to the Town of Erin Official Plan (“Town OP”) with respect to the areas marked as “Deferred Area” in the Town OP (“Proposed Town OPA”), (2) the proposed amendment to the Town of Erin Zoning By-law for the area marked as “Deferred Area” in the Town Zoning By-law (“Proposed Town ZBA”) and (3) the draft plan approval of the areas identified as “Future Development” in Draft Plan of Subdivision 23T-12001 (the “Future Development Draft Plan Approval”) conform to section 2.2.1 and 5.2.4 of A Place to Grow, the Growth Plan for the Greater Golden Horseshoe?
(a) Would approval of (1) the Proposed Town OPA with respect to the Deferred Lands, (2) the Proposed Town ZBA with respect to the Deferred Lands, and (3) the Future Development Draft Plan Approval conform to the County of Wellington Official Plan?
(b) If not, should any decision on approval of these three planning applications be deferred until a decision is made by the Ontario Minister of Municipal Affairs and Housing (the “Minister”) with respect to County of Wellington Official Plan Amendment 120. (“County OPA 120” )
- (a) Would approval of (1) the Proposed Town OPA with respect to the Deferred Lands, (2) the Proposed Town ZBA with respect to the Deferred Lands, and (3) the Future Development Draft Plan Approval conform to the Town of Erin Official Plan?
(b) If not, should any decision on approval of these three planning applications be deferred until a decision is made by the County of Wellington on Town of Erin Official Plan Amendment 13 following the decision by the Minister on County OPA 120?
- Have the impacts of traffic and the associated off-site upgrades to County and Town infrastructure been adequately assessed and addressed in conformity with Section 4.6.4 and Section 7.3, and in particular Section 7.3 ii), of the County of Wellington Official Plan?
Attachment 4
ORDER OF EVIDENCE
- National Properties Inc. and Equity Venture Group Corp.
- Town of Erin
- County of Wellington
- Upper Grand District School Board (if any)
- Reply of National Properties Inc. and Equity Venture Group Corp.
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.