Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 10, 2023 CASE NO(S).: OLT-21-001262
PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended
Appellant: Sartorio (Sarto) Provenzano Respondent: Central Lake Ontario Conservation Authority Subject: Appeal of refusal to grant permission for development Property Address: 46 West Beach Road, Bowmanville Municipality: Municipality of Clarington OLT Case No.: OLT 21-001262 OLT Case Name: Provenzano v. Central Lake Ontario Conservation Authority
Heard: May 8, 2023 Via Video Hearing
APPEARANCES:
Parties Sartorio (Sarto) Provenzano (“Applicant”)
Counsel Conner Harris
Parties Central Lake Ontario Conservation Authority (“CLOCA”)
Counsel Kenneth Jull and Elaine Leal da Silva
MEMORANDUM OF ORAL DECISION DELIVERED BY N. EISAZADEH ON MAY 8, 2023 AND ORDER OF THE TRIBUNAL
1This was the third Case Management Conference (“CMC”) conducted in this appeal filed by the Applicant under the Conservation Authorities Act following the refusal by the Central Lake Ontario Conservation Authority (“CLOCA”) of the application for a development permit for certain works proposed for the Applicant’s property.
PROCEDURAL BACKGROUND
2This matter has a lengthy procedural history before the Tribunal. A four-day hearing on the merits (“Merit Hearing”) was initially scheduled without a Procedural Order (“PO”) or Issues List (“IL”) at a first CMC on December 10, 2021, returnable April 19, 2022. However, the Merit Hearing was adjourned on consent to allow the Parties continued engagement in their settlement negotiations. When no resolution was achieved in July of 2022, a second CMC was requested and scheduled on October 19, 2022, to move the matter forward.
3At the second CMC, the CLOCA took the position that 4 days was no longer sufficient to accommodate all witnesses collectively proposed by the Parties. The Tribunal agreed that while the precise length of hearing required was subject to several factors at that time, 9 days was more likely to be required to conclude the Merit Hearing. A 9-day hearing was ordered returnable June 19, 2023, as was a PO that was mutually agreed upon by the Parties which governed all further pre-hearing procedural requirements. A further Status Hearing was also ordered returnable April 28, 2023, the purpose of which was to, among other things, review the draft hearing plan and to confirm the number of days ultimately required for the hearing. In advance of that Status Hearing, the Parties were directed to prepare and file a joint written status report by April 21, 2023.
4The Parties were in communication, between themselves, to resolve a conflict in the agreed upon timetable respecting the exchange of witness lists and witness statements, which arose due to unforeseen personal circumstances of certain witnesses, which were due to be exchanged in advance of the scheduled Status Hearing. The Parties, however, failed to comply with the direction and Order of the Tribunal to communicate these changes to the Tribunal and failed to file the required joint status report by April 21, 2023.
5The Tribunal was advised late in the day on April 27, 2023, that a joint status report was not possible as there were significant differences between the Parties on several additional procedural issues which were likely to require pre-hearing motions, and which may also compromise the scheduled Merit Hearing dates.
6At the commencement of the Status Hearing on April 28, 2023, the CLOCA raised concern over an increased number of witnesses: 21 for the Applicant and 9 for the CLOCA, totalling 30 witnesses. In the opinion of the CLOCA, the increased number of witnesses was likely to require a lengthier hearing of 15 days at minimum. The Applicant maintained that the hearing could be completed within the set 9 days despite the number of witnesses, as the scope of examination of many of them was to be brief. It was ultimately suggested by the Parties that the Status Hearing be adjourned to accommodate the exchange of witness statements upon which the parties could obtain instructions on the necessity of various procedural motions and advise their positions on the necessary next steps and time required for the Merit Hearing.
7The Tribunal very reluctantly granted the adjournment of the Status Hearing and rescheduled this third CMC on May 8, 2023. While no formal decision could arise from an adjourned Status Hearing, the Tribunal did issue binding procedural directives via email, dated April 28, 2023, and pursuant to s.9(1), 12 and 14 of the Ontario Land Tribunal Act. As part of those directives, an extension of time for delivery of witness statements to May 4, 2023, was granted. The additional directives which informed the parameters and subject matter of this third CMC included the following:
a. Should further extensions to the timetable within the PO, such as service and filing timelines, delivery of reply-statements or like-witness meetings be required, those would be addressed at the third CMC.
b. The Tribunal was able to arrange, through the Scheduling Co-ordinator, the availability of an additional 3 days to be added to the 9-day Merit Hearing on July 4, 5 and 6, 2023, thereby totalling a 12-day hearing. The Tribunal’s expectation was that counsel would work collaboratively to complete the hearing within the allotted 12 days and were strongly encouraged to focus the organization and presentation of evidence to preserve the dates as scheduled, otherwise risk the matter being put over to the Spring of 2024.
c. Notwithstanding the additional days being allotted to the Merit Hearing, if the parties remained opposed on the requirement of an adjournment, then full written materials at the third CMC were required in support of the adjournment request.
d. A written outline of any further written or oral pre-hearing motion(s) deemed necessary was required.
e. Proposed or agreed upon revised dates for further extensions/amendments requested to the timetable within the PO and an outline of the basis for any dispute arising therein were required.
f. Particulars of any other contentious or consensual matters germane to pre-hearing requirements, scheduling and the conduct of the hearing that the Parties wish to have addressed by the Tribunal were required.
REVISED PROCEDURAL ORDER
8On the present third CMC, the Tribunal was advised that the Parties have mutually agreed on a new timetable for the remaining procedural steps to take place leading up to the Merit Hearing including new service and filing timelines, delivery of reply-statements and witness meetings. The revised dates, which require an Order granting extensions of time to the original PO, were reviewed and approved by the Tribunal with the exception of a Work Plan which was amended to May 24, 2023.
9The Tribunal so orders that the extensions of time necessary to the revised timetable within the PO be granted. Counsel for the Applicant undertook to provide a revised PO with the new dates, that will now govern the further pre-hearing procedural requirements and hearing of the Appeal, by Friday May 12, 2023. The Tribunal will administratively issue the revised PO on receipt and review of same.
PRELIMINARY ISSUES AND PRE-HEARING MOTIONS
10Counsel for the CLOCA confirmed that, following the exchange of witness lists and witness statements, it would be bringing three preliminary motions as follows:
a. A motion for productions of materials which Counsel states has not been produced by the Applicant to date;
b. A motion for the examination of various witnesses under summons from the Applicant on the basis that the description of the proposed evidence from those witnesses is too vague to enable the CLOCA to prepare for the hearing; and
c. A motion objecting to the calling of certain witnesses proposed by the Applicant at the Merit Hearing on the basis that:
i. The calling of a sitting board member of the CLOCA, who presided at the very hearing which is the subject of the appeal, risks breaching the immunity of deliberative secrecy and puts her in a potential conflict of interest;
ii. The Applicant has summoned numerous witnesses and described their anticipated evidence in terms of opinions that can only be adduced through expert testimony, with no expert reports or statements being provided;
iii. It would be procedurally unfair to permit the Applicant to compel the calling of expert evidence without the proper advanced notice of an expert statement or report; and,
iv. The proposed summoned witness, Barb Veale, would potentially be in a conflict of interest as she works for Conservation Halton who are represented by Counsel for the CLOCA.
11Given the large number of witnesses, the Tribunal canvassed whether all would be necessary for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding, particularly given there appears to be duplicative areas of potential examination from the face of the various summons’ to witnesses. Counsel for the Applicant submitted that all proposed witnesses are necessary and while they may address the same subject matter, they will offer different evidence on different issues that are necessary to the Applicant’s case. Ultimately, these issues will be addressed on the motions being brought in writing as set out below.
12Regarding the hearing of the motions, it was initially proposed that the last motion, regarding the objections to witnesses, would be brought at the outset of the Merit Hearing on June 19, 2023. However, at the direction of the Tribunal it was agreed among the Parties that all three motions would be brought together, pursuant to Rule 10 of the Tribunal’s Rules of Practice and Procedure, to be heard in writing and in advance of the Merit Hearing. Given the time limitations with the Merit Hearing fast approaching, the Tribunal dispenses with strict adherence to the timeline for exchange of written motions materials set out in Rule 10.3, and orders the exchange and filing of motions materials as follows:
a. May 15, 2023: service and filing of the Moving Party’s written materials inclusive of all affidavit or other evidence, factum, book of documents and/or book of authorities, as applicable;
b. May 18, 2023: service and filing of the Responding Party’s written responding materials inclusive of all affidavit or other evidence, factum, book of documents and/or book of authorities, as applicable;
c. May 23, 2023: service and filing of the Moving Party’s reply materials, if any, inclusive of any reply affidavit or other evidence, reply submissions, supplementary book of documents and/or supplementary book of authorities, as applicable.
13A final preliminary matter that was raised was the Parties' indication that they may desire a potential site visit by the Tribunal pursuant to Rule 22.4. The Tribunal raised its concern that the scheduling of a site visit by the Presiding Member(s) of the Merit Hearing may be problematic to schedule under the circumstances of this case with the hearing fast approaching. Ultimately, it was an issue that the Parties wished to have addressed at the outset of the Merit Hearing, as the determination of the motions in writing would assist in setting out both the parameters of the Merit Hearing as well as any increases or limitations of hearing time.
FURTHER PRE-HEARING CMC
14At the direction of the Tribunal, given the lengthy procedural history of this matter, the Parties agreed to conduct a further CMC in advance of the Merit Hearing. The purpose of the further pre-hearing CMC is to review the revised draft Work Plan, to confirm the number of days required for the hearing and address any further preliminary issues that may arise. The further CMC is scheduled to commence at 10:00 a.m. via video-hearing on Thursday May 25, 2023.
15For the purposes of the CMC scheduled for May 25, 2023, the parties are to jointly provide a brief written status report by 9:00 a.m. on Wednesday May 24, 2023, confirming the total number of days required for the Merit Hearing, supported by a preliminary outline of a Work Plan setting out the anticipated order and schedule of witnesses, estimated time-frames for the evidence in chief, cross-examination and re-examination for all scheduled witnesses, as well as the time allotted for opening and closing submissions and any anticipated further preliminary motions or matters. The Tribunal appreciates that with the time restrictions and return date for this further CMC, the Parties are not likely to have the benefit of the Tribunal’s decision on the preliminary motions to be heard in writing as set out above. Accordingly, the Tribunal directs that the Work Plan be inclusive of all witnesses as currently proposed. Should the CLOCA be successful on its motion objecting to certain witnesses, the allotment of hearing dates may be recanvassed, and dates vacated as applicable or necessary.
MERIT HEARING
16With the above-mentioned preliminary matters being dealt with by way of pre-hearing written motions, the Parties are now in agreement that they can conclude the entirety of their respective cases within the allotted new 12-day Merit Hearing, as currently scheduled, and that no adjournment is necessary.
17The now 12-day video hearing of the Appeal will commence at 10:00 a.m. on Monday June 19, 2023, and continue to Thursday July 6, 2023, with the exception of Jun 30, 2023, and Jul 3, 2023, on which dates no hearing will be held.
FURTHER CMC AND MERIT HEARING VIDEO ACCESS DETAILS
18The hearings are scheduled to proceed by video as follows:
Fourth CMC Thursday May 25, 2023, at 10:00 a.m. GoTo Meeting: https://global.gotomeeting.com/join/442599157 Access code: 442-599-157 Audio-only telephone line: (Toll Free) 1-888-455-1389 or +1 (647) 497-9391 Audio-only access code: 442-599-157
12-day Merit Hearing Monday June 19, 2023, at 10:00 a.m. to Thursday July 6, 2023, (with the exception of Jun 30, 2023, and Jul 3, 2023, on which dates no hearing will be held) GoTo Meeting: https://meet.goto.com/680885805 Access code: 680-885-805 Audio-only line: (Toll Free) 1 888 299 1889 or +1 (647) 497-9373 Audio-only access code: 680-885-805
19The 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.
20For all Video Hearings, 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.
21Persons who experience technical difficulties accessing the GoToMeeting application, or who only wish to listen to the event, can connect to the event by calling in to an audio-only telephone line.
22Individuals 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 events may be directed to the Tribunal’s Case Coordinator having carriage of this case.
23There will be no further notice with respect to each of the two hearing events and this Member is not seized.
24The Tribunal so orders and provides these CMC directives for the purposes of the case management of this appeal.
“N. Eisazadeh”
N. EISAZADEH 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.