Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 07, 2023

CASE NO(S).: OLT-23-000127

PROCEEDING COMMENCED UNDER subsection 85(1) of the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c.33

Applicant and Appellant: Ummati Cemetery

Subject: Establishment of Cemetery or Crematorium

Description: To establish, maintain and support a cemetery with services conducted in accordance with the tenets and doctrines of the Islamic faith

Reference Number: S09-CEM-06-19

Property Address: Part Lot 18, Concession 3 (Lake Road)

Municipality/UT: Cramahe/Northumberland

OLT Case No.: OLT-23-000127

OLT Lead Case No.: OLT-23-000127

OLT Case Name: Ummati Cemetery v. Cramahe (Township)

Heard: May 1, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Ummati Cemetery	Laura Gurr Afolabi Lucas
Township of Cramahe	Spencer Putnam Tony Fleming (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON MAY 1, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) before the Ontario Land Tribunal, with respect to an appeal under section 85(1) of the Funeral, Burial and Cremation Services Act by Ummati Cemetery (“Applicant”) due to the refusal by the Council of the Township of Cramahe (“Township”), on January 28, 2020, to permit the Appellant to establish a cemetery on the lands located at Part Lot 18, Concession 3 in the Township.

2The Tribunal canvassed Counsel, who confirmed that there was no issue with service of the Notice of CMC, and as such, no further notice is required.

REQUESTS FOR STATUS

3In response to the Notice, the Tribunal received no requests for status (Party or Participant). Accordingly, the appeal will proceed with the involvement and participation of the Parties identified above.

PROCEDURAL ORDER AND ISSUES LIST

4The Parties produced an agreed-upon draft Procedural Order (“PO”) and Issues List (“IL”), which were reviewed at the CMC. The Applicant advised that the Parties were having further discussions and had further updated and revised the IL.

5The Applicant undertook to revise and re-submit, on or before May 9, 2023, for the Tribunal’s approval, a revised PO and IL in accordance with the Tribunal’s directions and any agreement made amongst the Parties.

6The Applicant has submitted the updated PO and IL, which are now attached as Schedule A to this Order.

MEDIATION AND SETTLEMENT

7The Tribunal raised the issue of opportunities for settlement, including the use of Tribunal-assisted mediation. The Parties advised that they had yet to engage in settlement discussions but remain open to the possibility of a settlement at some point in the future and are aware of the availability of mediation.

8The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Hearing, and, should they wish to pursue Tribunal-assisted mediation, they may reach out to the Case Co-ordinator for assistance in this regard.

HEARING

9Given the number of Parties, potential witnesses, and the number of issues, the Tribunal agreed that a two (2) day hearing was sufficient. Accordingly, a Video Hearing will commence at 10 a.m. on Thursday, September 14, 2023 and proceed for two (2) days until Friday, September 15, 2023. No further notice will be given.

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:

https://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

11Parties 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.

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 into an audio-only telephone line: +1 (647) 497-9373 or (Toll Free): 1-888-299-1889. The access code is 519-389-173.

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 that:

1. The Hearing in this matter will be held by video, starting on Thursday, September 14, 2023 commencing at 10 a.m., and two (2) days have been set aside.

2. The Procedural Order and Issues List, attached as Schedule A to this Decision, shall govern the proceedings.

15There will be no further notice and the Panel Member is not seized.

“Bita M. Rajaee”

BITA M. RAJAEE 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 A

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

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

CASE NO(S).: OLT-23-000127

PROCEDURAL ORDER

PROCEEDING COMMENCED UNDER Subsection 85(1) of the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002 c.33

Applicant(s)/Appellant(s) Ummati Cemetery Subject Municipal Approval of Cemetery Property Address/Description: Part Lot 18, Concession 3 (Lake Road) Municipality: Cramahe/Northumberland Municipal File No.: S09-CEM-06-19 OLT Case No.: OLT-23-000127 OLT File No.: OLT-23-000127 OLT Case Name: OLT-23-000127

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. The video hearing will begin on the 14th of September 2023 at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is 2 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 (see Attachment 1 for the meaning of these terms) are:

Parties: Ummati Cemetery, Township of Cramahe

5. 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.

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 26th, 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 6th, 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 19, 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 July 26th, 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 July 26th, 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 August 11th, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before September 1st, 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 within ten (10) days after the evidence is received 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 4th, 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 September 6th, 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 to Procedural Order

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 to Procedural Order

Issues List

1. Is the proposed cemetery in the public interest, including but not limited to the interests expressed in:

a. Section 2 of the Planning Act, including the protection of the agricultural resources of the Province and the appropriate location of growth and development.

b. The Provincial Policy Statement 2020, including policies:

• Part I: Preamble
• 1.1.5.2 (permitted uses on rural lands)
• 2.0 (Wise Use of Management of Resources)
• 2.3 (Agriculture) o 2.3.1 (prime agricultural areas) o 2.3.2 (designated prime agricultural areas) o 2.3.3 (permitted uses) o 2.3.6 (non-agricultural uses in prime agricultural areas)
• 4.0 (Implementation and Interpretation)

c. The Official Plan of the County of Northumberland, including policies

• A3.3 (Agricultural Area)
• C3 (Agricultural Area) o C3.1 (Objectives) o C3.2 (Location) o C3.3 (Permitted Uses) o C3.5 (Agriculture-Related Uses) o C3.10 (Other Non-Residential Uses) o C3.11 (Land Use Compatibility)
• A3.4 (Rural Area) o C4 (Rural Areas) o C4.2 (Location) o C4.4 (Permitted Uses) o C4.6 (Land Use Compatibility)

d. The Official Plan of the Township of Cramahe, including policies

• 4.4 (Agricultural Lands)
• 5.2 (Agricultural)
• 5.2.1 (Permitted Uses)
• 5.3 (Rural)
• 5.3.1 (Permitted Uses)
• 9.1.4.1 (Community Facility – Permitted Uses)

Notes:

1. This list is non-exhaustive, and the witnesses may identify other policies in their witness statements.

2. The identification of an issue does not mean that all parties agree that such issue, 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.

Attachment 3 to Procedural Order

Order of Evidence

1. Ummati Cemetery
2. Township of Cramahe
3. Ummati Cemetery (reply)

SUMMARY OF DATES

DATE	EVENT
June 26th, 2023	Exchange of preliminary witness lists (names, disciplines and order to be called) and last date to provide copies of revised proposal, including all revised plans and drawings (if any)
July 6th, 2023	Last date of Expert Witness Meetings
July 19, 2023	Confirmation and Filing of Issues lists and Agreed Upon Statement of Facts with the OLT Coordinator.
July 26th, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
August 11th, 2023	Notification to Tribunal if all hearing dates are still required
September 1st, 2023	Exchange of Visual Evidence (if any) and Joint Document Book
September 6th, 2023	Hearing Plan
September 14th, 2023	Hearing commences