Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 25, 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 24, 2023 via Written Hearing
APPEARANCES:
Parties
Counsel
Sartorio (Sarto) Provenzano (“Appellant”)
Conner Harris
Central Lake Ontario Conservation Authority (“CLOCA”)
Kenneth Jull Elaine Leal da Silva
DECISION DELIVERED BY ASTRID J. CLOS AND ORDER OF THE TRIBUNAL
1This is a written motion hearing in relation to an appeal pursuant to s. 28(15) of the Conservation Authorities Act of the refusal of the Central Lake Ontario Conservation Authority (“CLOCA”) to issue a permit for the property municipally addressed as 46 West Beach Road located in the Municipality of Clarington.
Motions
2On May 15, 2023, CLOCA filed a Notice of Motion. This was followed by the Notice of Response Motion filed by the Appellant on May 18, 2023. The Reply was filed by CLOCA on May 23, 2023.
3The following motions have been requested and are unopposed by the Parties:
- That the examination of the witnesses under summons by the Appellant be permitted by CLOCA prior to the merit hearing, provisional on such requested summons being issued by the Tribunal, and that the Appellant or a representative be permitted to attend and observe all such examinations.
- That all testimony from the witnesses under summons by the Appellant be limited to factual testimony and not that of an expert witness.
4The motions which remain in dispute between the Parties relate to whether the Appellant’s witnesses Corinna Traill and Barbara Veale should be stricken from the witness list.
5The Appellant, in its Notice of Response to Motion paragraph 10, states that “Ms. Traill is not being called to give evidence with respect to the decision under appeal.”
6The Appellant, in its Factum of the Claimant/Responding Party paragraph 40, states that:
iii. CLOCA’s case law is distinguishable
- In South Bracebridge, cited by CLOCA, the Tribunal was dealing primarily with a motion to strike expert witnesses, not fact witnesses. Ms. Traill and Ms. Veale are fact witnesses and therefore distinguishable.
Analysis and Findings
7The Tribunal is persuaded that, for the requested summons which are granted by the Tribunal, the examination of these witnesses with the Appellant or a representative observing, is necessary for CLOCA to obtain necessary information pursuant to Rule 9 of the Ontario Land Tribunal Rules of Practice and Procedure (“OLT Rules”).
8The Tribunal’s decision to allow examination of summoned witnesses does not imply that the Tribunal is endorsing that the summons be issued, and no such determination is being made as that matter is not before the Tribunal on this motion.
9The Tribunal is in agreement that all testimony from the witnesses under summons by the Appellant be limited to factual testimony and not that of an expert witness. The Merit Hearing will proceed in accordance with Rules 7.4 and 7.5 of the OLT Rules with respect to any expert evidence.
10With respect to the motion to strike Corinna Traill from the Appellant’s witness list, the Tribunal finds that a factual witness who will not be giving evidence with respect to the decision under appeal is not a witness necessary to ensure the issues in dispute are disposed of in the most fair, just, expeditious and cost effective manner in accordance with Rule 22.3 of the OLT Rules. The Appellant has not provided any evidence that there would be major prejudice to his client as a result of this witness being stricken. The Tribunal finds that Corinna Traill should be stricken from the Appellant’s witness list.
11With respect to the motion to strike Barbara Veale from the Appellant’s witness list, the moving party indicates at paragraph 9 of the Reply that if the Appellant wished to call Ms. Veale to provide evidence related to policy development and mapping then she would have to be qualified as an expert, which has not been done. The Tribunal finds that a factual witness who has no direct knowledge of the Appeal is not a witness necessary to ensure that the issues in dispute are disposed of in the most fair, just, expeditious and cost effective manner in accordance with Rule 22.3 of the OLT Rules. The Tribunal finds that Barbara Veale should be stricken from the Appellant’s witness list.
Merit Hearing
12As scheduled at the third CMC, the 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 June 30, 2023, and July 3, 2023, on which dates no hearing will be held.
ORDER
13THE TRIBUNAL ORDERS that the motions are granted as set out below.
- The examination of the witnesses under summons by the Appellant pursuant to Rule 9 of the Ontario Land Tribunal Rules of Practice and Procedure be permitted by CLOCA prior to the merit hearing, provisional on such requested summons being issued by the Tribunal, and that the Appellant or a representative be permitted to attend and observe all such examinations.
- All testimony from the witnesses under summons by the Appellant be limited to factual testimony and not that of an expert witness.
- Corinna Traill and Barbara Veale be stricken from the Appellant’s witness list.
“Astrid J. Clos”
Astrid j. clos
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.