Riwoche Society v. Kawartha Lakes (City), 2023 CanLII 46223

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 26, 2023

CASE NO(S).: OLT-22-004218

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Riwoche Society

Subject: Zoning By-law

Description: To permit a religious educational centre and place of worship (temple), including sleeping accommodations

Reference Number: By-law 2022-117

Property Address: 344 Old Mill Road

Municipality/UT: Kawartha Lakes/Kawartha Lakes

OLT Case No: OLT-22-004218

OLT Lead Case No: OLT-22-004218

OLT Case Name: Riwoche Society v. Kawartha Lakes (City)

Heard: March 30, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Riwoche Society ("Appellant")	Jennifer Evola
City of Kawartha Lakes ("City")	Jennifer Biggar

MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST AND CARMINE TUCCI ON MARCH 30, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) for the above-noted matter. The Riwoche Society has filed an appeal of the passing of Zoning By-law No. 2022-117 by the Council of the City of Kawartha Lakes.

2The appeal contends that the Zoning By-law Amendment (“ZBLA”) does not provide adequate permissions for the development and does not reflect the maximum floor areas depicted on the August 6, 2021 submission. The appeal also relates to the imposition of holding provisions identified by holding symbols for each phase which require entering into Site Plan Agreements, providing necessary road improvements, providing a servicing design including a peer review of a Hydrogeological Report, and demonstrating requirements related to building occupancies.

3The Subject Property is known municipally as 344 Old Mill Road in the City of Kawartha Lakes.

4Counsel for the Parties provided a status update on the matter. The Tribunal was advised that the Parties were working actively together and that discussions have been positive to date.

5The Appellant circulated a draft Procedural Order (“draft PO”) which was presented to the Tribunal. The Tribunal anticipates that a revised draft PO be submitted, on consent, to ensure that the appropriate dates for exchange of documents and expert witness meetings are reflected.

6Having received the benefit of the submitted revised draft PO from Ms. Evola prior to the issuance of this Decision and having examined the scoped Issues List attached to the PO, the Panel Orders the PO to be in force and effect to govern the proceedings at the Hearing of the merits scheduled below. Any changes to the Procedural Order attached as Schedule 1 will require the approval of the Tribunal.

7Based on the request of the Parties, discussions during the CMC regarding the issues, and the expected number of witnesses each Party will rely on, the Panel determined that it would be reasonable to schedule the hearing for four days

8The Parties are aware of the availability of Tribunal-led mediation. The Tribunal noted that information regarding Tribunal-led mediation can be facilitated through the Case Coordinator. The Parties confirmed that they will continue their current discussion process and keep the Tribunal apprised of any developments in their resolution efforts, which the Tribunal finds satisfactory.

9A four-day Hearing of the merits is scheduled to commence at 10:00 a.m. on Tuesday, November 7, 2023 by Video Hearing.

10Parties are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoToMeeting: https://global.gotomeeting.com/join/914098901

Access Code: 914-098-901

11Parties and Participants are asked to access and set up the application well in advance of the Hearing 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.

12Persons 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: +1 (647) 497-9373 or Toll Free: 1-888-299-1889. The access code is 914-098-901.

13Individuals 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 Video Hearing 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

14THE TRIBUNAL ORDERS its directions and rulings as set out above.

15There will be no further Notice.

16This Panel is not seized but remains available through the Case Coordinator should the need arise.

“W. Daniel Best”

W. DANIEL BEST

MEMBER

“Carmine Tucci”

CARMINE TUCCI

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.

SCHEDULE 1

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunaux de l’aménagement du territoire Ontario 655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca

CASE NO.: OLT-22-004218

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant and Appellant: Riwoche Society

Subject: Zoning By-law

Purpose: To permit a religious educational centre and place of worship (temple), including sleeping accommodations

Property Address/Description: 344 Old Mill Road

Municipality: City of Kawartha Lakes

Reference No. By-law 2022-117

OLT Case No.: OLT-22-004218

OLT Lead Case No.: OLT-22-004218

OLT Case Name: Riwoche Society v. Kawartha Lakes (City)

DRAFT 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.

2. The meaning of terms used in the Procedural Order are set out in Attachment 1.

Organization of the Hearing

3. The video hearing will begin on Tuesday, November 7, 2023 at 10:00 AM. Videoconference details have been confirmed by the Tribunal and are as follows:

4. The parties’ initial estimation for the length of the hearing is 4 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 procedural order deadlines are generally found in Attachment 2.

5. The parties and participants identified at the case management conference are set out in Attachment 3.

6. The issues are set out in the Issues List attached as Attachment 4. 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.

7. The order of evidence shall be as set out in Attachment 5 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.

8. 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.

9. 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

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 Monday, July 10, 2023 (at least 120 days prior to the start of the hearing) and in accordance with paragraph 23 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.

11. Expert witnesses in the same field shall have a meeting on or before Wednesday August 9, 2023 (at least 90 days prior to the start of the hearing) 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 Tuesday, August 29, 2023 (at least 70 days prior to the start of the hearing)

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 14 below.

14. On or before Friday, September 8, 2023 (at least 60 days prior to the start of the hearing), 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 23 below.

15. On or before Friday, September 8, 2023 (at least 60 days prior to the start of the hearing), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 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 Friday, September 22, 2023 (at least 46 days prior to the start of the hearing), Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 23 below.

17. On or before Wednesday, October 18, 2023 (at least 20 days prior to the start of the hearing), the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before Monday, October 23, 2023 (at least 15 days prior to the start of the hearing), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, October 27, 2023 (at least 11 days prior to the start of the hearing).

20. 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 Monday, October 23, 2023 (at least 15 days before) the Tribunal hears the motion.

21. 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 on or prior to Tuesday, October 31, 2023 (at least 7 days before) the hearing that the written evidence is not part of their record.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, October 23, 2023 (at least 7 days prior to the start of the hearing) 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.

23. 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.

24. 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

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.

ATTACHMENT 2

SUMMARY OF DATES

DATE	EVENT
Monday, July 10, 2023 (At least 120 days prior to the start of the hearing)	Exchange of witness lists (names, disciplines and order to be called)
Wednesday August 9, 2023 (At least 90 days prior to the start of the hearing)	Experts meeting prior to this date
Tuesday, August 29, 2023 (At least 70 days prior to the start of the hearing)	Agreed Statement of Fact
Friday, September 8, 2023 (At least 60 days prior to the start of the hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
Friday, September 22, 2023 (At least 46 days prior to the start of the hearing)	Exchange of Reply Witness Statements (if any)
Wednesday, October 18, 2023 (At least 20 days prior to the start of the hearing)	Parties to advise Tribunal whether all hearing dates are required
Monday, October 23, 2023 (At least 15 days prior to the start of the hearing)	Exchange of visual evidence (if any)
Friday, October 27, 2023 (At least 11 days prior to the start of the hearing)	Finalize Joint Document Book
Tuesday, October 31, 2023 (At least 7 days prior to the start of the hearing)	Preliminary Hearing Plan filed with the Tribunal
Tuesday, November 7, 2023	Hearing commences

ATTACHMENT 3

PARTIES

City of Kawartha Lakes Russel, Christie, LLP 505 Memorial Ave., P.O. Box 158 Orillia, ON L3V Jennifer E. Biggar, jbiggar@russellchristie.com

Applicant/Appellant (Riwoche Society) Cassels Brock & Blackwell LLP Suite 2100, Scotia Plaza, 40 King St. W. Toronto, ON M5H 3C2 Jennifer Evola, jevola@cassels.com Raivo Uukkivi, ruukkivi@cassels.com

PARTICIPANT

Patti Kramp pattikramp@gmail.com

ATTACHMENT 4

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. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

JOINT ISSUES OF THE RIWOCHE SOCIETY & CITY OF KAWARTHA LAKES

1. Does Zoning By-law 2022-117 (the “By-law”) have appropriate regard to the matters of provincial interest in s.2 of the Planning Act?
2. Is the By-law consistent with the Provincial Policy Statement, 2020, including but not limited to the following sections:
   1. 1.1.4.1(g), 1.1.5.2, 1.1.5.3, 1.1.5.4, 1.6.6.1, 1.6.6.4, 1.6.6.7, 1.6.7.1
3. Does the By-law conform or not conflict with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, including but not limited to the following sections:
   1. 1.2, 2.1, 2.2.9.1
4. Is the use of a holding provision to require entrance into a Site Plan Agreement necessary and appropriate, and does it conform with the City of Kawartha Lakes Official Plan?
5. Is the use of holding provisions to require road improvements necessary and appropriate, and does it conform to the City of Kawartha Lakes Official Plan?
6. Is the use of holding provisions to require detailed servicing design and building occupancies necessary and appropriate, and does it conform to the City of Kawartha Lakes Official Plan?
7. Is the use of holding provisions to require a peer review of a hydrogeological study necessary and appropriate and does it conform to the City of Kawartha Lakes Official Plan?
8. Does Old Mill Road have the capacity to accommodate the incremental increase in traffic from the proposed new uses?
9. Does the proposed development of 344 Old Mill Road provide adequate servicing for the proposed uses?
10. Do the built form restrictions of the By-law inappropriately restrict appropriate height and density?
11. Does the By-law represent good planning?

ADDITIONAL ISSUE OF THE CITY OF KAWARTHA LAKES

1. Has the proposed use been appropriately quantified in the background studies?

ATTACHMENT 5

ORDER OF EVIDENCE

1. Riwoche Society
2. City of Kawartha Lakes
3. Reply by Riwoche Society (if any)