Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
April 24, 2023
CASE NO(S).:
OLT-22-004691
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Applicant:
Brian Riley David & Shawna Kennie
Subject:
Zoning By-law Amendment
Description:
To permit current use of autobody repair establishment
Property Address:
199 Sideroad 5B
Municipality/UT:
South Bruce/Bruce
Municipal File No.:
Z-2022-088
OLT Case No.:
OLT-22-004691
OLT Lead Case No.:
OLT-22-004691
OLT Case Name:
Riley v. South Bruce (Municipality)
Heard:
March 17, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Brian Riley
Paula Lombardi
Municipality of South Bruce
Thomas Sanderson
David & Shawna Kennie
Eric Davis
Memorandum of oral DECISION DELIVERED BY s. dixon and S. deboer ON mARCH 17, 2023 and ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision arises from the first Case Management Conference (“CMC”) held in preparation of a hearing on the merits of an appeal filed by Brian Riley (“Appellant”) pursuant to s. 34(19) of the Planning Act concerning the adoption of a Zoning By-law Amendment (“ZBA”) for the property known municipally as 199 Sideroad 5B (“Subject Lands”) in the Municipality of South Bruce (“Municipality”).
2The ZBA application was submitted by David & Shawna Kennie (“Applicants”) to facilitate the existing use of a Farm Implement Establishment and Autobody Service Station (Shawday Autobody Inc.) on the Subject Lands. The Municipality adopted the ZBA on the recommendation of municipal planning staff.
3The Appellant, owner of the property abutting and immediately to the south of the Subject Lands, appealed the ZBA on the basis that, among other things, it is not consistent with the Provincial Policy Statement, 2020, it fails to conform with the County of Bruce Official Plan, it is incompatible with neighbouring uses, and it results in adverse impacts on the surrounding area.
4An Affidavit of Service was received by the Tribunal and marked as Exhibit 1 to these proceedings. There were no issues with service of Notice for the CMC and, as such, no further notice is required.
Procedural Order & ISSUES List
5Prior to the CMC, the Parties filed a draft Procedural Order and Issues List with the Tribunal. However, the Parties advised that they had not yet reached consensus on the issues and that refinement of the Issues List may be necessary following further review and consultation with their relevant expert witnesses.
6Following the CMC, the Parties filed a finalized draft Procedural Order and Issues List with the Tribunal. The Tribunal has reviewed the revised documents and approves them in the form attached as Schedule 1 to this Decision and Order.
Opportunities for Settlement
7The Parties advised the Tribunal that they will work collaboratively and engage in settlement discussions following the CMC. They agreed that no Tribunal-assisted mediation is necessary in this instance.
hearing Dates
8The Parties described the number and types of witnesses that they anticipate calling at a hearing. After considering this information and the draft Issues List, the Tribunal scheduled a seven-day hearing commencing Tuesday, October 10, 2023 at 10 a.m. The Tribunal will not sit on Monday, October 16, 2023. Accordingly, the final three days of the hearing will recommence on Tuesday, October 17, 2023.
9Parties and Participants are asked to log on to 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
10Parties 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.
11Persons 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) 497-9391or (Toll Free) 1-888-455 1389. The access code is 278-736-685.
12Individuals 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
13THE TRIBUNAL ORDERS that the Procedural Order and Issues List attached as Schedule 1 to this Decision and Order are approved.
14THE TRIBUNAL ORDERS that a hearing on the merits will commence by video hearing on Tuesday, October 10, 2023, at 10 a.m. Seven days have been set aside for the hearing, exclusive of Monday, October 16, 2023.
15There will be no further notice.
16The Panel is not seized.
“S. Dixon”
S. dixon
MEMBER
“S. deBoer”
S. deBOER
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
OLT Case No.: OLT-22-004691
ONTARIO LAND TRIBUNAL
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant:
Dave and Shawna Kennie
Appellant:
Brian Riley
Subject:
Zoning By-law Amendment
Description:
To permit current use of autobody repair establishment
Property Address:
199 Sideroad 5B
Municipality/UT:
South Bruce / Bruce
Municipal File No.:
Z-2022-088
OLT Case No:
OLT-22-004691
OLT Lead Case No:
OLT-22-004691
OLT Case Name:
Riley v. South Bruce (Municipality)
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 Tuesday, October 10, 2023 at 10:00 a.m. and is scheduled for a total of seven days. Note that the Tribunal is not sitting on October 16, 2023.
The parties’ initial estimation for the length of the hearing is seven 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.
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. 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 Friday, June 2, 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, June 30, 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 Friday, July 28, 2023.
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 August 18, 2023, 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, July 28, 2023, 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 Wednesday, August 30, 2023, the parties shall confirm with the Tribunal if all of the reserved hearing dates are still required.
On or before Friday, September 15, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by Friday, September 8, 2023 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, September 22, 2023.
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 Wednesday, October 4, 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.
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.
The Panel is not seized.
So orders the Tribunal.
ATTACHMENT 1
List of Appellants/Parties/Participants
APPELLANT
Appellant - Brian Riley:
191 Sideroad 5B
Formosa, Ontario, N0W 1W0 brian_g_riley@live.com
Legal Counsel for the Appellant:
Siskinds LLP
275 Dundas Street, Unit 1
London, ON N6B 3L1
Paula Lombardi
519.660.7878
PARTIES
Approval Authority - Municipality of South Bruce
21 Gordon Street, East
Teeswater, Ontario, N0G 2S0
Leanne Martin, CAO/Clerk lmartin@southbruce.ca
Legal Counsel for the Municipality:
115 King Street South, Suite 300
Waterloo, Ontario N2J 5A3
Thomas Sanderson 519-593-2432 tsanderson@millerthomson.com
Applicants - Shawna and David Kennie
199 Sideroad 5B
Formosa, Ontario, N02 1Wo
Legal Counsel for the Applicants:
SmithValeriote Law Firm LLP 105 Silvercreek Pkwy. N., Suite 100
Guelph, Ontario N1H 6S4
Eric Davis
519-837-2100 edavis@svlaw.ca
PARTICIPANTS
None
ATTACHMENT 2
Issues List
- Does the proposed zoning by-law amendment to permit the Agriculture Commercial Industrial Special (ACI-40) zone allowing for farm equipment repair, farm-related autobody repair establishment, Farm Implement Establishment and Automobile Service Station uses, in addition to all uses permitted in the ACI Zone as applied to the Subject Land have sufficient regard for matters of provincial interest set out in section 2 of the Planning Act specifically sections 2(b), 2(g), 2(h) and 2(o)?
Provincial Policy Statement, 2020
- Is the proposed Agriculture Commercial Industrial Special (ACI-40) zone consistent with policies 1.1.1 c), 1.2.6, 1.2.6.1, 2.3.3, 2.3.3.1, and 2.3.6.1 b)?
Permitted Uses in Ontario’s Prime Agricultural Areas (Publication 851)
- Is the Agriculture Commercial Industrial Special (ACI-40) zone in keeping with the intent and purpose of the Permitted Uses Guidelines, Ministry of Agriculture, Food and Rural Affairs, Section 2.2 Agriculture-Related Uses?
County of Bruce Official Plan
Is the proposed Agriculture Commercial Industrial Special (ACI-40) zone appropriate and does it confirm to the Agricultural Areas policies as set out in the County of Bruce Official Plan?
Do the proposed Agriculture Commercial Industrial Special (ACI-40) zone conform to the following policies of the County of Bruce Official Plan: 5.5.4, 5.5.4.1, 5.5.4.2 and 5.5.9?
Are the proposed uses set out in the Agriculture Commercial Industrial Special (ACI-40) zone secondary and directly related to the principal use of the Subject Land?
Is the proposed use of the Subject Land including the Farm Implement Establishment and Automobile Service Station related to, supportive of, or required or necessary to be situated in close proximity to farming operations?
Municipality of South Bruce Zoning By-law
Does the Subject Land comply with the minimum lot area requirements set out in section 16.3 for the ACI zone for non-residential uses in the Municipality of South Bruce Zoning By-law for the non-residential uses?
Does the Subject Land and proposed ACI-40 Zone comply with the provisions set out in section 13 General Provisions for Industrial Zones?
Does the Subject Land and proposed ACI-40 Zone comply with the provisions set out in section 3 General Provisions For All Zones, including but not limited to section 3.3, 3.14, 3.15, 3.24, 3.25, 3.26 and 3.26.6?
MECP D-6 Guidelines
- Does the use of the Subject Land for the Automotive Refinishing Facility as defined by the Ministry of Environment, Conservation and Parks meet the required noise and odour setbacks with respect to the automotive refinishing and sandblasting operation(s) including the D-6 Guidelines?
General
Are the proposed uses compatible with the surrounding Agricultural zone?
Do the proposed uses including the Farm Implement Establishment and Automobile Service Station result in unacceptable and adverse impacts being noise, odour, and particulate matter on the surrounding residential uses and natural features?
Are the proposed new uses including the Farm Implement Establishment and Automobile Service Station appropriate for the Subject Land and does it represent good planning?
ATTACHMENT 3
Order of Evidence
- The Approval Authority, Municipality of South Bruce – Factual Overview Only
- The Appellant, Brian Riley
- The Applicants, Dave and Shawna Kennie
- The Approval Authority, Municipality of South Bruce
- The Appellant, Brian Riley - Reply Only
SUMMARY OF DATES
DATE
EVENT
Friday, June 2, 2023
Exchange of witness lists (names, disciplines and order to be called)
Friday, June 30, 2023
Experts meeting prior to this date
Friday, July 28, 2023
Agreed Statement of Facts
Friday, July 28, 2023
Participant Statements – Not applicable
Friday, August 18, 2023
Exchange of Witness Statements, summoned witness outlines, and Expert Reports
Wednesday, August 30, 2023
Confirmation of Hearing Dates Required
Friday, September 8, 2023
Exchange of Reply Statements
Friday, September 15, 2023
Exchange of Visual Evidence (if any)
Friday, September 22, 2023
Finalize Joint Document Book
Wednesday, October 4, 2023
Final Hearing Plan filed with the Tribunal
Tuesday, October 10, 2023
Hearing commences *Note Tribunal not sitting on October 16, 2023