Brent Peebles v. Toronto and Region Conservation Authority, 2023 CanLII 48571

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 29, 2023

CASE NO(S).: OLT-22-004551

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Applicant/Appellant: Brent Peebles

Respondent: Toronto and Region Conservation Authority

Subject: Refusal to grant permission to construct a single-family dwelling

Description: To permit the construction of a single-family dwelling

Reference Number: 1491/21/VAUG, Date of Decision: Sep.19.22

Property Address: 270 Stegman's Mill Road (Village of Kleinburg)

Municipality/UT: Vaughan / York

Respondent: Toronto and Region Conservation Authority

OLT Case No: OLT-22-004551

OLT Lead Case No: OLT-22-004551

OLT Case Name: Peebles v. Toronto Region Conservation Authority

Heard: April 26, 2023, by video hearing

APPEARANCES:

Parties

Counsel

Brent Peebles

Arkadi Bouchelev

Toronto Region and Region Conservation Authority

Tim Duncan

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON APRIL 26, 2023.

1The Tribunal convened the second Case Management Conference (“CMC”) for the above-noted matter. The Applicant proposes to build a single-family dwelling at 270 Stegman’s Mill Road in the Village of Kleinberg, Vaughan. On September 19, 2022, the Toronto and Region Conservation Authority (TRCA) issued a decision refusing the application. The TRCA decision indicated that application did not meet the applicable tests under Ontario Regulation 166/06, Development, Interference with Wetlands and Alterations to Shorelines and Watercourses and specifically that the tests pertaining to control of flooding, erosion, and conservation of land could not be met for the subject land. The Appellant appealed this decision to the Ontario Land Tribunal on October 14, 2022, and the first CMC related to this matter was held on March 15, 2023.

2Prior to the first CMC, the Tribunal received a draft Procedural Order (“PO”) and an Issues List (“IL”) from the TRCA. The Appellant indicated during the CMC that more time was required to review the IL as presented and requested that a second CMC be scheduled to allow for review and finalization. The Tribunal also learned that no discussions had occurred regarding potential mediation, however both Parties indicated that there may be some opportunity to narrow the issues through this means.

3The Tribunal had directed that a second CMC be held. The purpose of the second CMC was to finalize the draft PO and IL and schedule a hearing. The Tribunal directed the Parties to file a draft PO and IL with the Tribunal by the end of the day on Monday, April 24, 2023, for consideration at the second CMC.

4On Wednesday, April 26, 2023, the Parties attended a second CMC. The Tribunal was informed that there has been no agreement on an IL. The Tribunal heard that there are a number of areas where the two Parties disagree. Given this information, the Tribunal paused the hearing to give the two Parties another opportunity to create one IL.

5Following a 45 minute pause to the proceedings, the Tribunal was informed that no progress was made. In order to assist the Parties, the Tribunal facilitated further discussions between the Parties by referring them back to the PO document and the following paragraph related to the creation of an IL:

The identification of an issue on the Issues List does not mean that all parties agree that such issue, or the matter which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT will be a matter of evidence at the hearing.

6The Parties were not able to agree on a single IL after a second opportunity during this CMC, which was in addition to the time provided since the CMC held on March 15, 2023, when a draft PO and IL was shared by the TRCA.

7Given the inability to reach consensus on the IL, the Tribunal engaged the Parties in a discussion about next steps in preparation for a Hearing of the Merits. It was determined that the Parties would co-construct a PO that would include a separate IL from each Party. They also indicated that they would have between four and seven witnesses each and asked that the Tribunal set aside seven days in October 2023 for the Hearing.

8The Parties agreed to provide the Tribunal with a joint PO on or before Wednesday, May 10, 2023, so that the details could be included in this decision. The Parties also consented that the proceedings would go forward with two IL given their inability to agree on one list.

9On May 8, 2023, Counsel for the TRCA submitted a request to the Tribunal that further support from the Tribunal to establish a PO may be required and that the two Parties differed in their understanding of expectations agreed to at the CMC related to the IL development and submissions.

10On May 9, 2023, the Tribunal sent an email to Counsel for the two Parties to further confirm the expectation established during the CMC as noted above.

11On May 10, 2023, the Tribunal was notified that a PO had not been developed on consent of both Parties and received separate POs including individual ILs. The Appellant’s IL included additional issues from that submitted at the CMC.

12Between May 15 and 17, 2023, the Tribunal received and considered additional comments, concerns and rationale from both Parties related to the submitted PO and ILs. Given the breadth and nature of the positions received as part of this process, the Tribunal will allow the two Issues Lists to be included in the PO as updated and the merits of these issues may be determined at the Hearing scheduled for October.

13Tribunal Rule 19 provides direction on the expected outcomes of a CMC. Specifically, it indicates that a successful CMC will support the planning of a ‘fair, just, expeditious and cost-effective’ process and hearing. The existence of two ILs makes achieving this goal more difficult and it is hoped that through continued discussions the ILs can be further refined.

14The Tribunal has reviewed the PO dates and rationale submitted by both parties and, given the inability of the Parties to consent on a schedule, has provided a final version which is attached to this order.

15A Hearing of the Merits will be held over seven days on October 11-13; October 17-19; and October 23, 2023, commencing at 10 a.m. by video hearing.

16Parties 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.

GoTo Meeting: https://meet.goto.com/370987861

Access code: 370-987-861

17Persons 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: Toll-Free 1 888 455 1389 or +1 (647) 497-9391. The Access Code is 370-987-861.

18Parties 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

19Individuals 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

20THE TRIBUNAL ORDERS that the Procedural Order, attached hereto as Attachment 1, is in full force and effect and will govern the process up to and including the Hearing on its merits.

21There will be no further notice.

22The Member is not seized.

“Gregory J. Ingram”

GREGORY J. INGRAM

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.

Attachment 1

CASE NO(S).: OLT-22-004551

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: Brent Peebles

Respondent: Toronto and Region Conservation Authority

Subject: Refusal to grant permission to construct a single-family dwelling

Property Address: 270 Stegman's Mill Road

Municipality: City of Vaughan/Regional Municipality of York

Reference No.: 1491/21/VAUG

OLT Case No.: OLT-22-004551

OLT Case Name: Peebles v. Toronto and Region Conservation Authority

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.

Organization of the Hearing

2. A Video Hearing will be held from October 11-13; October 17-19; and October 23 commencing at 10:00 a.m. by video hearing on each day.

3. The parties’ initial estimation for the length of the hearing is seven (7) 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues Lists which are included as Attachment 2. There will be no changes to this list unless the Tribunal permits or the modification is made on the consent of the parties, and/or unless there is a change in the applicable policies/laws occurring prior to the date of the hearing, and a Party who asks for changes may have costs awarded against it.

6. 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.

7. 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.

8. 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

9. 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 June 23, 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.

10. Expert witnesses in the same field shall have a meeting on or before July 14, 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 July 31, 2023.

11. 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.

12. 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.

13. On or before August 11, 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.

14. On or before August 11, 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.

15. On or before September 22, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before September 22, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before September 15, 2023 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before September 29, 2023.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before 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.

22. 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.

23. 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

LIST OF PARTIES

PARTIES

1. Brent Peebles Bouchelev Law Professional Corporation

181 University Avenue, Suite 2200 Toronto ON M5H 3M7 Arkadi Bouchelev Email: arkadi@bouchelevlaw.com Tele: 416.594.1400

2. Toronto and Region Conservation Authority

Fogler, Rubinoff LLP Lawyers 77 King Street West Suite 3000, PO Box 95 TD Centre North Tower Toronto ON M5K 1G8 Tim Duncan Email: tduncan@foglers.com Direct: 416.941.8817

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue on this list by a party indicates that party’s intent to lead evidence on that issue. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the OLT. However, the parties reserve the right to update the issues based on any applicable changes to the Conservation Authorities Act or the regulations pursuant thereto relating to the granting of permits under the Conservation Authorities Act. The identification of an issue on the Issues List does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT will be a matter of evidence at the hearing.

Brent Peebles Issues

1. Does the proposed development substantively impact the control of flooding or erosion (i.e. the applicable tests under Conservation Authorities Act and Ontario Regulation 166/06)?
2. Is the proposed development within a natural hazard zone (flood hazard and/or erosion hazard) and, if so, will the proposed development create a substantive risk and/or substantively increase the risk to human life and property?
3. Can flooding and/or erosion risks on the subject property be mitigated with proper engineering?
4. How will the proposed development be accessed in the event of an emergency?
5. Is the Tribunal required or permitted to consider the proposed development’s impact on conservation of land and, if so, does the proposed development substantively affect the conservation land?
6. Does the proposed development fall within an area of historical interest (Windrush Cooperative) and does the proposed development respect and/or enhance the heritage nature of the surrounding heritage neighborhood?
7. Have comparable developments been allowed by TRCA and/or other conservation authorities in Ontario (i.e. is there precedent for this type of development)?

Toronto and Region Conservation Authority Issues

1. Has the applicant demonstrated that the proposed development meets the applicable tests under the Conservation Authorities Act?
   1. Pursuant to Section 28 of the Conservation Authorities Act (CA Act), Subsection 3(1) of Ontario Regulation 166/06, and Section 8 of the TRCA’s Living City Policies for Planning and Development in the Watersheds of the TRCA (“LCP), has the appellant demonstrated that the proposed development will not impact the control of flooding, erosion, or conservation of land (i.e., applicable tests of the Regulation) to the satisfaction of TRCA?
   2. Is the subject property and proposed development within a natural hazard (i.e., flood hazard and erosion hazard) and will the proposed development create risk and/or increase risk to human life and property?
   3. Does the subject property and proposed development have safe access in accordance with Provincial, TRCA, and City of Vaughan requirements?
   4. Is the subject property and proposed development within a Significant Valleyland, Significant Woodland, Area of Natural and Scientific Interest (ANSI) and Environmentally Significant Area (ESA), as well as the broader Natural System and will the proposed development result in a negative impact?
   5. Has the applicant submitted a satisfactory Environmental Impact Study (EIS), Geotechnical Study, and Hydraulic Assessment in support of the proposed development?
   6. Has the appellant submitted satisfactory planning studies to ensure the proposed development is appropriate?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Brent Peebles
2. Toronto and Region Conservation Authority
3. Brent Peebles in reply, if any

Attachment 4

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.