minicounsel

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 15, 2023 CASE NO.: OLT-22-003082

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Roger Buurma Subject: Site Plan Property Address: 25700 Kerwood Road Municipality/UT: Township of Adelaide Metcalfe OLT Case No.: OLT-22-003082 Legacy Case No.: PL200497 OLT Lead Case No.: OLT-22-003082 Legacy Lead Case No.: PL200497 OLT Case Name: Buurma v. Adelaide Metcalfe (Township)

PROCEEDING COMMENCED UNDER subsection 36(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Roger Buurma Subject: Removal of Holding Symbol: Zoning By-law No. 34-2007 – Failure of the Township of Adelaide Metcalfe to announce a decision on the application Property Address: 25700 Kerwood Road Municipality/UT: Township of Adelaide Metcalfe OLT Case No.: OLT-22-003083 Legacy Case No.: PL200554 OLT Lead Case No.: OLT-22-003082 Legacy Lead Case No.: PL200497

Heard: February 15, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Roger Buurma	T. Johnson / E. Davis
Township of Adelaide Metcalfe	A. Baroudi

MEMORANDUM OF DECISION DELIVERED BY CARMINE TUCCI ON FEBRUARY 15, 2023 AND ORDER OF THE TRIBUNAL

1This matter before the Ontario Land Tribunal (the “Tribunal”) was with respect to the appeals by Appellant pursuant to s. 41(12) of the Planning Act (the “Act”), as a result of the failure of the Township of Adelaide Metcalfe (the “Township”) to approve the proposed Site Plan within the legislated timeframe, and pursuant to s. 36(3) of the Act, as a result of the Township’s failure to make a decision on an application for an amendment to the By-law to remove the holding symbol within the Legislated timeframe.

2The Site Plan application and the application to remove the holding provision are sought by the Appellant in relation to its lands, known municipally as 25700 Kerwood Road in the Township of Adelaide Metcalfe in the County of Middlesex (“Subject Lands”), to permit the construction and operation of an outdoor storage facility for pelletized bio-fertilizer to service the surrounding agricultural community.

3The purpose of the Case Management Conference (“CMC”) was to receive status updates from both parties to organize the Hearing of these appeals.

4The Tribunal was informed that the Parties were seeking to set a date for a Hearing in the Spring of 2024.

5The Tribunal requested from all Parties an updated Procedural Order, herein attached to this Decision.

6The Tribunal informed the Parties that OLT-led mediation is available should they want to continue their efforts to reach an early resolution on this matter.

7Failing an early resolution, the Parties have informed the Tribunal that they will require twelve (12) days for a Hearing of these appeals.

8The Tribunal hereby Schedules a Hearing of these appeals, commencing on Monday, April 15, 2024 at 10 a.m. Twelve (12) days have been set aside for the Hearing by video.

9Parties 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/442599157

Access Code: 442-599-157

1Parties 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

10Persons 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) 497-9391 or Toll-Free 1-888-455-1389. The access code is 442-599-157.

11Individuals 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.

12No further Notice will be given.

13The Member is not seized.

14So Orders the Tribunal.

“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

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-22-003082

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

PROCEEDING COMMENCED UNDER subsection 36(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended

PROCEDURAL ORDER

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

The video hearing will begin on April 15, 2024 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is twelve (12) days (until and including April 30, 2024). 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 parties and participants identified at the case management conference are set out in Attachment 1 (see Attachment 4 for the meaning of these terms).
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.
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.
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.
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

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 Friday, December 15, 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.
Expert witnesses in the same field shall have a meeting on or before Monday, January 15, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting, and if there is agreement, the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, February 16, 2024.
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.
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.
On or before Friday, February 16, 2024, 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.
On or before Friday, February 16, 2024, 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.
On or before Monday, March 11, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Monday, April 1, 2024, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within thirty (30) days (Monday, March 18, 2024) after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Monday, April 1, 2024.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, April 8, 2024 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.
All filings shall be served electronically on the parties and submitted electronically and in hard copy to the Tribunal. 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.
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.

SUMMARY OF DATES

DATE	EVENT
Friday, December 15, 2023	Exchange List of Proposed Witnesses (Para. 9)
Monday, January 15, 2024	Deadline for Expert Witness Meeting (Para. 10)
Friday, February 16, 2024	Deadline for Statement of Agreed Facts and Issues (para. 10)
Friday, February 16, 2024	Deadline for Witness Statements, Expert Witness Statements and Participant Statements (paras. 13 and 14)
Monday, March 11, 2024	Deadline for advising the Tribunal if all the reserved hearing dates are required (para. 15)
Monday, April 1, 2024	Deadline for Visual Evidence (para. 16)
Monday, March 18, 2024	Deadline for Reply Witness Statements and Reply Expert Witness Statements (para. 17)
Monday, April 1, 2024	Deadline for Joint Document Book (para. 18)
Monday, April 8, 2024	Deadline for Hearing Plan (para. 21)

ATTACHMENT 1

LIST OF PARTIES

Roger Buurma SV Law P.O. Box 1240 Guelph, ON N1H 2N6 Eric Davis Email: edavis@svlaw.ca Tel: 519.837.2100 ext. 304
Township of Adelaide Metcalfe Baroudi Law Professional Corporation Analee Baroudi Email: analee@baroudilaw.ca Tel: 519.200.3776

LIST OF PARTICIPANTS

None.

ATTACHMENT 2

ISSUES LIST

PLEASE NOTE: 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 appeal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the appeal will be a matter of evidence and argument at the hearing or the subject of a motion prior to the hearing.

Does the proposed method of storage of biosolid fertilizer in the site plan application have regard for the matters of provincial interest set out in section 2 of the Planning Act, in particular sub-sections 2(a), (b) and (o), and 3(5) with respect to the following issues? a. Odour impacts on surrounding properties b. Dust impacts on surrounding properties c. Potential contamination of water run-off d. Risk of fire e. Access for emergency vehicles i. Is a second access to the site required to accommodate emergency vehicles? ii. Is the fire route capable of handling fire trucks in the event of an emergency? f. Risk to safety of employees
Does the proposed method of storage of biosolid fertilizer in the site plan application have the potential to cause unacceptable adverse impacts to property owners in the surrounding area with respect to the following issues? a. Odour b. Dust c. Potential contamination of water run-off
Is the proposed site plan application consistent with the Provincial Policy Statement, including sections 1.1.1(c), 1.1.4.1 h), 1.2.6.1, 2.1.1, 2.2.1 (a),(b),(f2), and (i), and 2.2.2?
Does the proposed site plan application conform to the following policies of the County of Middlesex Official Plan: 2.2.1.2, 2.2.1.3, and 2.4.7?
To what extent should the Tribunal have regard for section 3.3.9 of the County of Middlesex Official Plan, which has been approved by Council through OPA 3 but not yet approved by the Minister?
Does the proposed site plan application conform to the following policies of the Township Official Plan: 1.3 c), 2.2, 2.2.1 b), d), f), h), l), and m), 2.5 a), d),e), f) and g), 3.1.1, ?
Does the proposed site plan application represent sound land use planning?
If the site plan is approved, what are the appropriate conditions?

ATTACHMENT 3

ORDER OF EVIDENCE

Roger Buurma
Township of Adelaide Metcalfe
Roger Buurma, in Reply, if any

ATTACHMENT 4

PURPOSE OF PROCEDURAL ORDER

Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the Case Management Conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

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.