Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 06, 2023

CASE NO(S).: OLT-22-002000 (Formerly PL210288)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Angus Glen Landowners’ Group Inc.

Subject: Request to amend the Official Plan – Failure of the City of Markham to adopt the requested amendment

Existing Designation: “Future Neighbourhood Area” and “Greenway”

Proposed Designated: To establish the Angus Glen Secondary Plan

Purpose: To establish the Angus Glen Secondary Plan for the purpose of guiding the development of a proposed master-planned community to consist of 6,000 housing units with a population of 18,900 and to also provide policy direction with respect to matters related to the Greenway System, including direction with respect to road linkages and the location of parks and stormwater management facilities

Property Address/Description: 411 hectares (1,015.6 acres) of land bounded by Major Mackenzie Drive to the south, Elgin Mills Road to the north, Warden Avenue to the west and Kennedy Road to the east

Municipality: City of Markham

Approval Authority File No.: OP-17-130159

OLT Case No.: OLT-22-002000

Legacy Case No.: PL210288

OLT Lead Case No.: OLT-22-002000

Legacy Lead Case No.: PL210288

OLT Case Name: Angus Glen Landowners’ Group Inc. v. Markham (City)

Heard: January 23 to January 27, 2023 inclusive; January 30, 2023 to February 3, 2023 inclusive; February 6-8 inclusive and February 10, 2023; February 13 to February 17, 2023 inclusive; February 20 to 24, 2023 inclusive; February 27 to March 2, 2023 inclusive, final Reply submissions March 8, 2023.

APPEARANCES:

Parties	Counsel
Angus Glen Landowners’ Group Inc. (“AGLOG”)	I. Kagan, K. Stitt, S. Kagan
City of Markham (“City”)	R. Coburn, V. Chai, D. Mertiri
Region of York (“Region”)	S. Whalen
Romandale Farms Limited (“Romandale”)	M. McDermid, R. Northey
York Region District School Board and York Region Catholic School Board (“School Boards”)	B. Sully
Toronto Region Conservation Authority (“TRCA”)	B. Montgomery

decision DELIVERED BY William R. middleton, S. DIXON, and a. sauve AND ORDER OF THE TRIBUNAL

Link to Interim Orders

PART 1: INTRODUCTION

1This proceeding is an appeal to the Ontario Land Tribunal (“OLT” or “Tribunal”) by AGLOG from the City’s failure to adopt an amendment to its Official Plan (“OP”) to establish the Angus Glen Secondary Plan for the block of land located in the City comprising 411 hectares (“ha”) (1,015.6 acres (“ac”)) of land bounded by Major Mackenzie Drive to the south, Elgin Mills Road to the north, Warden Avenue to the west and Kennedy Road to the east (“Subject Lands”). These Subject Lands are located within the Region, which is the upper tier municipality.

2The City began the planning process approximately a decade ago, for what was formerly known as the Future Urban Area and later as the North Markham Future Urban Area (“FUA”). The FUA is composed of four separate Blocks located in north Markham: the Berczy Glen Block; the Angus Glen Block; the Robinson Glen Block; and the Employment Block, which also contains what is known as the Victoria Glen neighbourhood area. This planning exercise was comprehensive and was intended to guide the future development of the entirety of the FUA lands, which required the preparation of a conceptual master plan (“CMP”). The City required that each of the Blocks in the FUA have a Secondary Plan to guide development and future Planning Act, R.S.O. 1990, c. P.13 (“PA”), approvals within the Block. The CMP included a conceptual community structure plan that would guide the development of the various Secondary Plans for the Blocks of the FUA. Secondary Plans for the Berczy Glen, Robinson Glen and Victoria Glen Blocks have been approved and incorporated into the City’s OP.

3The City and the numerous stakeholders, including various public bodies and all of the landowners, including Romandale, engaged in a lengthy, rigorous and detailed process to establish a conceptual foundation for comprehensive planning within the FUA, which included the completion of Phases I and 2 of the Class Environmental Assessment for Water, Wastewater, and Transportation, as well as a comprehensive, multi-volume Subwatershed Study for the entire FUA. The Municipal Class Environmental Assessment (“MCEA” or “Class EA”) was conducted pursuant to the Environmental Assessment Act, R.S.O. 1990 c. E18 (“EAA”) for the individual blocks. The completion and approval of the Secondary Plans for the individual blocks determined the land uses and policies for the individual blocks. The completion and deemed approval of the MCEAs (Phases 3 and 4) for the individual blocks were what determined the collector road systems for the individual blocks with due regard for the approvals of the collector road systems on adjacent blocks. The MCEA for the Angus Glen Block received deemed final approval on September 26, 2022.

4By the time of the video hearing (“VH”) held to determine the issues raised by the appeal, all Parties - save and except for Romandale - had arrived at a resolution of all issues between them. AGLOG, the City, the Region, the School Boards and the TRCA reached an agreement on the provisions of a new Angus Glen Secondary Plan, which was described and presented by those Parties at the VH as the “Settlement Plan”, now appended to this Decision as Attachment “A”, being the partially revised version delivered with the final argument submissions of AGLOG described below.

5The materials before the Tribunal at the VH included the following:

(a) Joint Document Book of the Parties, comprising 12 volumes and 99 tabs;

(b) Witness Statement Compendium of AGLOG, comprising 177 pages;

(c) Corrected paragraph 16 from Don Given’s Reply Witness Statement, comprising 1 page;

(d) Witness Statement Compendium of the City, comprising 257 pages;

(e) Witness Statement Compendium of the Region, comprising 33 pages;

(f) Witness Statement Compendium of Romandale, comprising 131 pages;

(g) Joint Visual Evidence of the AGLOG, City and Region, comprising 38 pages;

(h) Visual Evidence of Romandale, comprising 54 pages;

(i) Poulos Figure 4.3 Annotated, comprising 1 page;

(j) Growth Plan for the Greater Golden Horseshoe (Office Consolidation 2020);

(k) Romandale Notice of Application to Divisional Court for Judicial Review re: 2022 ROP, comprising 16 pages;

(l) York Region Transit System Map (January 2023);

(m) Regional Official Plan Comparison Chart;

(n) Google Earth Image of Columbia Way, Caledon;

(o) Protected Countryside for Columbia Way, Caledon;

(p) Transportation and Traffic Study Final Report for Columbia Way Class EA (April 30, 2021);

(q) Final Report Columbia Way Class Environmental Assessment, Caledon (October 13, 2021);

(r) Berczy Glen Block Landownership Map;

(s) Forhan letter to City Clerk (October 11, 2017);

(t) Extract from Berczy Glen Secondary Plan: Place of Worship Policies;

(u) Extract from Robinson Glen Secondary Plan: Place of Worship Policies;

(v) Extract from Berczy Glen Secondary Plan: Road Policies;

(w) Extract from Robinson Glen Secondary Plan: Road Policies;

(x) Extract from Victoria Glen Secondary Plan: Road Policies;

(y) AGLOG Closing Submissions with updated Settlement Plan, comprising 147 pages;

(z) City Closing Submissions, comprising 17 pages;

(aa) Region Closing Submissions, comprising 8 pages;

(bb) Romandale Closing Submissions, comprising 73 pages;

(cc) Romandale Book of Authorities, comprising 307 pages;

(dd) AGLOG Reply Submissions, comprising 62 pages; and,

(ee) AGLOG caselaw: Ghods decision, comprising 42 pages.

6Thus, the main protagonists at the VH were, on the one hand, AGLOG together with the City and the Region, as supported ‘silently’ for the most part by the School Boards and the TRCA (neither of the latter two entities called evidence or made any submissions to the OLT); and Romandale on the other hand. The witnesses who testified for AGLOG, the City and the Region were: Mr. Don Givens (Planning); Mr. Paul Lowes (Planning); Mr. Patrick Wong (Planning/Heritage); Mr. Alex Fleming (Transportation); Mr. Nick Poulos (Transportation); Mr. Ryan Wong (Transportation); Mr. Jason Ezer (Planning); Ms. Carolyn Glass and Ms. Sara Ross (Ecology). Romandale called the following witnesses: Mr. Al Shaw (Ecology); Mr. Nick Palomba (Transportation); and Mr. Robert Forhan (Planning).

7Romandale in its final argument contended:

…This hearing is an appeal under s. 22 of the Planning Act concerning an application for an official plan amendment initiated by a private landowners’ group - the Angus Glen Landowners Group Inc. (the “Landowners”). The Landowners bring this appeal to seek Tribunal approval of their earlier application to amend the Official Plan of the City of Markham. This official plan amendment – a.k.a. the “Secondary Plan” - concerns a portion of Markham’s Future Urban Area known as the Angus Glen Block. The Angus Glen block is one of the five blocks dividing the Future Urban Area… Romandale Farms Limited…is the sole party contesting this appeal…

From the outset of this hearing, the Landowners’ evidence and argument against Romandale has focused on two broad issues:

(a) Challenging years of Romandale requests to be excluded from the proposed Secondary Plan by insisting that they - as Landowners - have the right and mandate to impose planning policy and various uses on Romandale’s lands; and

(b) Challenging Romandale’s insistence that this Tribunal address Secondary Plan conformity with the 2017 Greenbelt Plan regarding proposed roads across the Greenbelt that border but are not on Romandale’s lands…

[above emphasis added]

8Of course, AGLOG, the City, the Region and all other Parties frame things rather differently. Counsel for the City noted that:

The Settlement Plan…is the result of a settlement amongst all of the…[Parties, including]…the public bodies…having an interest in the matter…

Counsel for the Region stated:

The Settlement Plan is the culmination of extensive effort between various parties, including the Angus Glen Landowners’ Group…the Region, the City of Markham… the Toronto and Region Conservation Authority…and the three school boards … The…Region…supports the Secondary Plan before the Tribunal (“Settlement Plan”…), as its concerns throughout the planning process and this appeal, have been addressed…

Finally, AGLOG’s counsel colourfully argued:

It is no secret that Romandale is quite litigious. We heard that it has an ongoing civil suit against the Angus Glen Golf Course. We know that it commenced two Judicial Review Proceedings challenging the…MCEA… for the collector road system in the Angus Glen block. Very recently, Romandale commenced a Judicial Review proceeding against the Region…, the Minister of Municipal Affairs and Housing (“MMAH”), the AGLOG and others, challenging the adoption by the Region and the modification and approval by MMAH of the 2022 Region of York Official Plan. As we also know, it sought a Section 25 (of the Ontario Land Tribunal Act) review of the Tribunal’s February 23, 2022 Decision and Order refusing Romandale’s motion for, among other things, an adjournment of this scheduled hearing.

PART TWO: TRIBUNAL MOTION RULINGS MADE DURING THE VIDEO HEARING

Motion 1: Objections / Evidence Regarding the MCEA

9Early in the VH, during the cross-examination by Romandale’s counsel of the heritage/ecology experts, Carolyn Glass and Sara Ross, AGLOG’s counsel raised an objection which then became a motion after the Tribunal directed briefing on the matter in accordance with Rule 10.10 of the OLT’s Rules of Practice and Procedure (“Rules”).

10In written motion submissions, AGLOG’s counsel maintained:

It being clear on the face of the record and not in dispute that:

a) A Municipal Class Environmental Assessment (“MCEA”) with respect to the collector roads (including Street D - Major Collector Road and Street A – Minor Collector Road), both which [sic] cross the Protected Countryside of the provincial Greenbelt, has been completed.

b) That the MCEA addressed, inter alia, conformity of the collector roads with the Greenbelt Plan including policy 4.2.1.2.

c) That Romandale expressed concerns with the MCEA to the City, AGLOG and the Minister of Environment, Conservation and Parks (“MECP”).

d) That MECP did not order an individual environmental assessment of the collector roads and that [sic] accordingly, by the time the within OLT hearing commenced, the MCEA was deemed to be approved.

e) That Romandale has commenced a Judicial Review Application challenging and seeking to set aside the MCEA; and

f) That based on the forgoing and without making any more general determination than in respect of the orderly conduct of the within hearing and the inappropriateness of rendering any decision pertaining to the merits of the Class EA;

1 That in fulfilling its duty under section 3(5)(b) of the Planning Act and section 7(1) of the Greenbelt Act, both of which require that the Tribunal’s decision on this appeal “conform with” the Greenbelt Plan, that the Tribunal will rely upon the…MCEA…which approved the collector road system in the Angus Glen Secondary Plan area on or about September 26, 2022.

2 That with respect to policy 4.2.1.1(b) of the Greenbelt Plan, the Tribunal will hear land use planning evidence and legal submissions respecting conformity with that policy and will render a decision on it because policy 4.2.1.1 specifically requires that, in addition to having an approved MCEA, one of the two objectives (a or b) must be met.

3 That with respect to Greenbelt Plan policy 4.2.1.2 (a-h), however, the Tribunal will rely upon the approved MCEA as proof of conformity with this policy given that the Environmental Study Report (July 2022) (“ESR”), on its face, dealt with all of the criteria in policy 4.2.1.2 including all of its subsections; and

4 That the parties are directed to tailor their evidence to matters which are relevant to this appeal and not matters which, even indirectly, seek to challenge or question the correctness of the approved MCEA.

(collectively, the “AGLOG Motion”)

11The City supported the AGLOG motion as follows:

The City…supports the submission and relief sought by…[AGLOG]…in the Informal Motion…and wishes to add the following submissions:

1. The undertaking of the collector road system for the Angus Glen Secondary Plan is an undertaking to which s. 15 of the Environmental Assessment Act applies.

2. Pursuant to s. 15.1.1 of the Environmental Assessment Act, the City is required by law to proceed with an undertaking to which s. 15 of the Environmental Assessment Act applies in accordance with the approved class environmental assessment (“Class EA”) for that undertaking.

3. The relief sought by AGLOG is necessary and desirable for the orderly conduct of the hearing and the avoidance of inconsistent decisions respecting the undertaking and the matters of conformity addressed by the approved Class EA.

12Romandale then responded to the AGLOG Motion in a very lengthy submission as follows:

Response to Yesterday’s LOG Objections….

2. The LOG’s motion is not responsive to the Tribunal’s request and is an abuse of process.

3. Paragraph 20 is the only paragraph from the LOG motion that purports to address yesterday’s objections to Romandale’s questions.

4. Instead of addressing the basis for yesterday’s objections and providing clarity on precisely what was being sought by the LOG, which was the reason for the Tribunal’s request, the LOG’s motion is about legal issues and advancing a collateral attack on Romandale’s Issues in the Issues List.

5. The focus of the LOG motion is about legal issues regarding conformity with the Greenbelt Plan.

6. If the LOG wanted to raise these issues to frame the hearing of evidence, it should have brought a preliminary motion with appropriate notice to the Tribunal and all Parties. Further, since the motion seeks to constrain Romandale from dealing with Issues set out in the Issues List, this motion could have been brought upon receipt of Romandale’s Issues List. It would then have taken place well in advance of the Hearing.

7. The LOG and other Parties have had full and fair notice of Romandale’s Issues since Romandale’s Issues List was first provided on November 1, 2021, over one year ago. Although Romandale provided a revised Issues List on September 11, 2022, it did not make substantive revisions to the Issues identified below regarding Greenbelt Plan conformity. All Parties, including the LOG, accepted Romandale’s Issues without objection. This is clear from the Issues List itself since the Procedural Order contains no qualification as to the inclusion or relevance of any of the issues on the Issues List, as can be found in other Procedural Orders.

8. …the LOG’s motion continues yesterday’s effort to disrupt Romandale’s cross-examination by seeking to prevent Romandale from leading or eliciting any evidence through cross-examination respecting conformity with Greenbelt Plan policy 4.1.2.2 as raised by Romandale through a number of issues including the following:

a. Issue 86: Does the Secondary Plan conform to the Greenbelt Plan, 2017, including, but not limited to, the following sections: 1.1, 1.2.1, 1.2.2.5(a), 1.4.1, 1.4.2, 1.4.3, 2.4, 3.2.1, 3.2.5.1(c), 3.2.5.5(a)(b), 4.2.1.1(a)(b), 4.2.1.2(a-f), 4.2.3.3, 5.3, 5.4.2, 5.6, 5.6.1.4, Schedules 1 and 4?

b. Issue 93: Should the City’s Conceptual Master Plan, including its Community Structure Plan and Municipal Class Environmental Assessment, provide the planning basis and authority for the Secondary Plan as set out in policy 1.4 of the Secondary Plan? [Note: revised]

c. Issue 94: Is the Transportation System in the Secondary Plan planned and designed in conformity with the applicable tests required by policies 4.2.1.1, 4.2.1.2 of the Greenbelt Plan? [Note: revised]

d. Issue 101: Is the proposed Transportation System in the Secondary Plan appropriate and does it represent good transportation, environmental and land use planning in accordance with Provincial, Regional and City planning policies and requirements, in particular the:

a. Proposed “Major Collector Road” referred to as “Street D” located on or adjacent to the Home Farm, as shown on Schedules C, G, J, L and M and Maps SP-1, SP-5, SP-6; and …

9. The timing of yesterday’s objections and now this motion are deeply problematic. Prior to yesterday, there was no objection to these Romandale issues. To the contrary, the LOG, the City and the Region have sought to address Greenbelt Plan conformity and these issues in their Witness Statements and Reply Witness Statements.

10. Yesterday’s objections unfairly disrupted a cross-examination. Through this motion, the LOG now seeks to prevent Romandale from calling a full and complete case on the Issues.

The Cross-Examination Questions are Relevant and Related to the Issues

11. Paragraph 20 in the LOG motion…simply asserts that the questions were not relevant.

12. This claim is plainly wrong. The cross-examination questions put to Ms. Glass and Ms. Ross thus far have all, or nearly all, been factual questions regarding what was assessed and the outcome of the assessment in the Conceptual Master Plan (“CMP”) Volume 2 Report, the Subwatershed Study (“SWS”), the Master Environmental Servicing Plan (“MESP”) and the Phases 3 and 4 Class Environmental Assessment (“Class EA”).

13. Ms. Glass and Ms. Ross identify all four of these documents in paragraph 23 of their Witness Statement as “Documents to be Referred to in Evidence” and provide an overview and history of all of these documents in paragraphs 24 to 27 of their Witness Statement. By directly referring to these documents in their direct evidence, they are a proper subject for cross-examination by Romandale.

14. As Ms. Glass has already confirmed in her answers thus far, the MESP was a document that she, along with others, prepared which provided technical support for the Secondary Plan that is now before the Tribunal. She also confirmed that the CMP and SWS provided direction for the MESP.

15. Other LOG witnesses to come in the future, such as Mr. Poulos on transportation, also provide evidence specifically in respect of the CMP, the MESP and the Class EA, including discussion of what those documents assessed and their findings. See for example Mr. Poulos’ Witness Statement paras. 3.1 to 3.5 and 4.11 and Reply Witness Statement paras. 8, 13, 18, 21, and 22.4 Again, by directly referring to these documents in his evidence, they become the proper subject of cross-examination by Romandale.

16. The LOG’s attempt to curtail cross-examination questions about the very documents that LOG witnesses – Ms. Glass and Ms. Ross, and other future witnesses - speak to directly in their Witness Statements seeks to deny Romandale the opportunity to present its case fully and fairly. Needless to say, this violates the rules of natural justice and procedural fairness…

Objection to Timing and Substance of Legal Issues Raised by the LOG Motion

18. The LOG motion goes way beyond yesterday’s objections. It unfairly and improperly seeks to re-cast the entire hearing and advance submissions on key legal issues.

Reliance on the Class EA

19. In paragraph 1, the LOG seeks to use an informal motion brought without proper notice to have this Tribunal address legal issues that are properly the subject of either a full Motion prescribed by the Tribunal’s Rules or legal submissions to be heard in the normal course at the close of the Hearing.

20. It is not appropriate to use this informal motion to address the legal significance of the Municipal Class Environmental Assessment in relation to Greenbelt Plan conformity.

21. This legal topic was a central part of Romandale’s judicial review over, centrally, the failure of the Conceptual Master Plan to address the Greenbelt Plan. The Tribunal has the Divisional Court decision in Volume 8 of the Joint Materials, Tab 74. Paragraphs 26-31 provide the Court’s analysis of the relationship of the Conceptual Master Plan - that includes the Class EA of the collector roads - to the Secondary Plan (OPA) that is before this Tribunal. See also paragraph 34 for the Court’s express finding that Romandale is not out of time to go back to the Court in the future to raise legal concerns about the Conceptual Master Plan on Class EA or OPA issues. Thus, as merely an opening point, this case is clearly relevant to the legal issues in this hearing and whether Romandale can or cannot raise issues with Greenbelt Plan conformity in relation to the Class EA and OPA.

22. While it may be the LOG’s position that the Tribunal should rely on the Class EA with no understanding or consideration of what that Class EA actually assessed or concluded, Romandale does not accept and expressly rejects this position.

23. Section 3(5) of the Planning Act states:

(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Tribunal, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

24. Section 7(1) of the Greenbelt Act, 2005 states:

7 (1) A decision that is made under the Ontario Planning and Development Act, 1994, the Planning Act or the Condominium Act, 1998 or in relation to a prescribed matter by a municipal council, local board, municipal planning authority, minister of the Crown or ministry, board, commission or agency of the Government of Ontario, including the Ontario Land Tribunal, shall conform with the Greenbelt Plan.

25. The Tribunal has statutory obligations to ensure that its decisions conform with the Greenbelt Plan. The LOG’s requested ruling asks the Tribunal to make that determination now without having heard the complete evidence of a single witness.

26. Pursuant to s.17(44) of the Planning Act, the Tribunal must hold a hearing on this appeal before making its decision. The Procedural Order agreed upon amongst the Parties and duly issued by the Tribunal sets out the issues to be heard in the Hearing and the process for doing so. The LOG’s requested ruling is therefore contrary to the Planning Act and the Procedural Order.

27. The LOG is requesting the approval of a Secondary Plan which includes mapping showing roads crossing the Greenbelt Plan area and policies respecting those roads. In order to approve those maps and policies, the Tribunal must be satisfied that doing so would conform with the Greenbelt Plan.

28. The Parties should be free to make submissions about whether and how that conformity has been achieved in closing argument. In order to do so, the Parties need to be able to lead and elicit evidence that supports the submissions that they intend to make. The LOG’s informal motion seeks to take that ability away from Romandale entirely by having the Tribunal determine now that it agrees with the LOG’s position without hearing any evidence or full legal argument.

29. Romandale will not be asking the Tribunal to make any findings about the correctness or adequacy of the Class EA. Romandale will be asking the Tribunal to make findings about the instrument before it, the Secondary Plan, and the road network and associated policies that are part of that Secondary Plan.

30. Romandale disagrees that the cases referred to by the LOG support the principle for which the LOG tenders them…As the cases do not deal with the question that the Tribunal is seeking to address, namely the scope of cross-examination, either from a substantive or procedural perspective, they are of no assistance to the Tribunal in deciding this motion.

31. On the basis of the above, Romandale requests that the LOG motion be dismissed in its entirety.”

[all of above emphasis added]

13AGLOG’s reply submissions were:

1. …The AGLOG’s objection to the line of questioning (cross-examination) by Ms. McDermid was “relevance”. If the question asked is not relevant to the determination that the Tribunal needs to ultimately make, then the question should be disallowed. Mr. Kagan’s objection went to the very heart of this matter; what is Romandale asking the Tribunal to do, in this hearing, about the location and alignment of the collector roads (i.e., the “where” and “how” will these roads cross the Greenbelt not whether or not they are allowed to cross the Greenbelt).

2. The questions of “where and how” were specifically, on the face of the approved Class EA, dealt with and approved. That means that these collector roads can, at law, be built in these locations and on these alignments.

3. When Mr. Kagan raised the objection on the basis of relevance the first time Ms. McDermid’s response was “they are relevant” but she never explained how….Mr. Kagan put a finer point on it by [sic] arguing that the questions are not relevant since the Class EA dealt with the criteria in Greenbelt policy 4.2.1.2, that the Tribunal should rely on that Class EA approval and that the Tribunal should not permit Romandale to effectively do that same EA analysis in this hearing…

4. Mr. Kagan then asked Ms. McDermid to confirm that the purpose of her questions (i.e., what is their relevance), is that she intends to have the Tribunal do its own independent analysis of Greenbelt policy 4.2.1.2 and not rely on the Class EA. Instead of Ms. McDermid responding, Mr. Northey did and answered that he would not and did not have to tell Mr. Kagan where Romandale was going with this. Respectively, that is incorrect. Unless the Tribunal knows what the purpose of the questioning is, it cannot determine relevance and cannot rule properly on the objection.

5. Mr. Kagan understood the purpose of the informal motion to be to set out his concerns/objection clearly so that Romandale could respond and the Tribunal could rule.

6. Romandale has still not said, clearly, what it intends to ask the Tribunal to do with the evidence it is eliciting. Romandale appears to be suggesting that it will wait until final argument to tell the parties and the Tribunal. The AGLOG does not accept this. If Romandale was going to recommend modifications to the collector roads (some or all of them), either to the text or the schedules, then it had to identify them in its Witness Statements.

7. Romandale says that the informal motion is improper because policy 4.2.1.2 was on the Issues List. That policy (although worded as policy 4.2, which of course includes 4.2.1.1 and 4.2.1.2) was on the earlier version of the Issues List (attached to the Tribunal’s November 22, 2021 Decision). That Issues List predated the approved MCEA by nearly a year. The MCEA was deemed to be approved on September 26, 2022. The updated Romandale Issues List, the one which guides this hearing, was produced on September 11, 2022 (approximately 2 weeks before the MCEA was approved). It is also attached to the report of like planning experts on September 9, 2022. The updated Issues List was sent to the Tribunal’s Case Coordinator around that time and the Tribunal ultimately issued the updated Procedural Order on October 21, 2022. While the date of issuance of the Procedural Order is after the MCEA was deemed approved, the Issues List itself pre-dated the MCEA approval by approximately 2 weeks. Accordingly, and consistent with the AGLOG submissions in the informal motion, there was no approved MCEA to rely upon at the time the updated Issues List was sent to the Tribunal for issuance and no one could know, on September 9th, whether the MECP would extend the time to make a decision on the MCEA or elevate it (bump it up) to an Individual EA. Accordingly, if there was not [sic] approved MCEA at the time of this hearing, then the Tribunal would not have an approved MCEA to rely upon to find conformity with the Greenbelt Plan.

8. This is why the AGLOG witnesses, in response to Greenbelt policy 4.2.1.2, rely on the approved MCEA. The AGLOG acknowledges that matters are fluid but Romandale’s response to the informal motion, in simply pointing to an issue on a September 9, 2022 Issues List, is not truly responsive to the objection which is based on a MCEA which was deemed approved after the September 9, 2022 Issues List.

9. It was not until the cross-examination by Ms. McDermid of Ms. Ross and Ms. Glass that it became necessary to raise the objection. The Tribunal then requested this informal motion.

10. In paragraph 26 of its response, Romandale states that the Tribunal must hold a hearing on this appeal. The AGLOG agrees and notes that this is a private appeal so a hearing is necessary. Holding a hearing does not mean, however, that a collateral attack on the approved MCEA is proper or appropriate or that the Tribunal is required to hear evidence that is not relevant.

11. In paragraph 29 Romandale says that it will not be asking the Tribunal to make any ruling on the correctness or adequacy of the MCEA. That is not an answer to the informal motion because it is trite law that the Tribunal has no jurisdiction over the approved MCEA. What Romandale is attempting to do through its questions, however, is to have the Tribunal second-guess the approved MCEA by focusing its questions on only environmental (or perhaps only environmental and transportation) aspects of the collector road system, whereas the MCEA considered many other facts which are listed in paragraph 21 of the AGLOG informal motion. This highlights the danger in the Tribunal treading into waters clearly covered by the MCEA. Romandale clearly disagrees with the MCEA and various phases of it, but that challenge belongs in its Judicial Review application and not in the Tribunal hearing…

[above emphasis added]

14At the VH, the Tribunal ruled that it was unnecessary at that early stage of the hearing to make a declaratory ruling with respect to the legal effect of the MCEA as it relates to the question of conformity to the Greenbelt Plan in this proceeding. The Tribunal anticipated that this matter would be dealt with in the final written / oral submissions of the Parties (which is further discussed in Part Three below). However, the Tribunal also determined that the hearing was not to be conducted as a ‘merits appeal or review’ – or repeat – of the MCEA.

15The Tribunal has well-recognized powers to control the conduct of its hearings and adopt practices in order to “offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings” – pursuant to sections 12(2) and 13 of the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched. 6 (“OLTA”) and Rule 1.3 of the Rules. Under Rules 10.10 and 10.11, the Tribunal may permit or initiate a motion during a hearing, which it did in these circumstances given the dispute between the Parties concerning certain matters of cross-examination.

16There were several objections made by counsel for AGLOG during the cross-examination by counsel for Romandale of the two witnesses on the Ecology Panel (Ms. Glass and Ms. Ross) for AGLOG. It became clear on Day 2 of the hearing that AGLOG’s counsel was of the view that certain questions posed were part of an attempt by Romandale’s counsel to elicit evidence designed to support an argument that the MCEA result to date and/or the MCEA process was incorrect, flawed or ought to be independently conducted by the OLT. The Tribunal requested briefings on this matter so that it would be clear what remedy is being sought by AGLOG and on what basis – and of course to receive a response from Romandale. Submissions from all active Parties were received during the evening on January 24 and by 3 p.m. on January 25.

17As noted by counsel for AGLOG, the MCEA was initiated under the EAA which required an environmental assessment for the collector road network in the Angus Glen Secondary Plan Area (and beyond). This is not in dispute. It is also not contested that Romandale has initiated a Judicial Review Application concerning the MCEA and that it is still pending before the Superior Court. Finally, there appeared to be no dispute that this Tribunal in this proceeding is not purporting to exercise parallel jurisdiction to review the correctness or process of the MCEA – and there was no indication from Romandale’s counsel that it believed the OLT has such jurisdiction.

18In the Tribunal’s view, the OLT is not empowered by statute to review the correctness of the MCEA or the MCEA process, nor to conduct the same analysis of the same issues dealt with in the MCEA – thus extensive questioning concerning those issues was improper – with some exceptions as noted below in paragraphs [20] and [22] – and would not assist the Tribunal.

19In terms of the continued cross-examination of the AGLOG Ecology Panel, the Tribunal requested that questions not be primarily directed to matters which suggested any conclusion as to the ‘correctness’ or ‘completeness’ of the MCEA process or of the MCEA result itself – nor as part of an apparent effort to convince the Tribunal to conduct its own enquiries in order to repeat all or part of the analysis set out in the MCEA. The Tribunal determined that such questions were not relevant to the matters at issue in this proceeding and, therefore, were improper.

20The Tribunal noted that examples of such improper questions could include the following:

(a) Questions seeking answers aimed solely at demonstrating what the MCEA process did or did not consider or questions seeking any critique of the MCEA or the MCEA process – in the Tribunal’s view, the answers to such questions are simply not assistive and would not limit whatever submissions the Parties might wish to make in final argument;

(b) Questions aimed directly or indirectly at supporting an argument that this Tribunal ought to conduct the same analysis as is reflected in the MCEA; and,

(c) Questions aimed solely at seeking opinions as to the meaning of or legal effect of the MCEA – again, in the Tribunal’s view, the answers to such questions are not assistive and would not limit final argument submissions.

21The Tribunal also noted that it would continue to deal with any objections to questions posed in direct, cross examination or re-direct if and as they arose and requested that (a) any such objections made should clearly identify the basis for same, and (b) that the response to the objection provide the proper basis for the question(s) under objection (unless the question(s) are withdrawn).

22As a matter of additional clarity, following its ruling described above in this Part Two, the Tribunal did, upon request of both counsel for AGLOG and Romandale, permit some limited questions about the MCEA and allowed witnesses to indicate whether they relied on it. As no further objections were raised about that determination, it was unnecessary for the Tribunal to provide additional particulars. Moreover, although Romandale arranged for transcription of the VH, at the date this Decision was prepared, no transcripts have been provided to the OLT (and may not yet have been ordered by any Party). Thus, it would be difficult for the Tribunal, using only its own notes, to create a precise record of each and every one of those questions and answers.

Motion 2: Motion by Romandale Seeking Leave to Admit Video Evidence

23On the 16th day of the hearing, at the outset of its case (following the conclusion of the other Parties’ cases), Romandale sought to introduce some video footage, presumably of its own lands and adjacent areas. This footage had not been provided to the Tribunal or the other Parties pursuant to the governing Procedural Order as part of any Romandale Witness Statements or of Romandale’s Visual Evidence brief. Romandale’s counsel relied on Rules 1.6 and 1.7, which state:

1.6 Tribunal May Exempt From Rules The Tribunal may grant all necessary exceptions from these Rules or from any procedural order, or grant other relief as it considers necessary and appropriate, to ensure that the real questions in issue are determined in a fair, just, expeditious and cost-effective manner.

1.7 Failure to Comply With Rules The Tribunal expects compliance with these Rules and adherence to Tribunal orders arising from the application of these Rules by all parties and participants. If a party or participant to any proceeding has not complied with a requirement of these Rules or a Tribunal order, such as a procedural order and any requirement included therein, then the Tribunal has the discretion to determine the consequences of non-compliance and may grant necessary relief or exercise any of its powers authorized by legislation or regulation.

24Romandale’s counsel contended that: the video was ”factual only for context”; would not be played in its entirety; was not intended to demonstrate potential impacts to the Romandale lands or the Greenbelt and would not be referenced as such by Romandale’s ecology witness, Mr. Shaw. Apparently, Mr. Shaw also did not receive the video until a short time before Romandale sought leave to admit it.

25Romandale’s counsel was unaware of the date the video was taken but did know that a consultant to Romandale created the video at the direction of their client. That consultant did not file a witness statement and did not testify in this hearing.

26Other relevant circumstances were that the other Parties had never been provided prior access to the Romandale lands to conduct video or photographs of their own. Therefore, counsel for both AGLOG and the City each claimed that they were prejudiced at this late stage and argued that there was no reason for this video not to have been included in the properly filed witness statements of Romandale. AGLOG’s counsel said he should not be “forced to call Reply evidence” and pointed out that the AGLOG witnesses had no prior opportunity to respond to this evidence. For its part, counsel for the City noted that his client had no right of Reply. The Region’s counsel took no position on this evidentiary dispute.

27AGLOG’s lawyers relied on two prior OLT decisions of former Vice Chair (“VC”) Susan de Avellar Schiller in Case Nos. PL170371 and PL200466, both of which denied leave to admit certain evidence and a Participant Statement.

28In Queenscorp (Mona Road) Inc. v. Mississauga, 2020 CarswellOnt 3788 (“Queenscorp”), a March 11, 2020 Decision in OMB Case No. PL170371, VC de Avellar Schiller noted:

22At 9:40 a.m., with the hearing of the merits scheduled to commence at 10 a.m., [a Party] Ms. Walmsley filed a large electronic file that she estimated involved more than 100 photos. Since the photos dated to as far back as 2009, the Tribunal was not persuaded that there was a reasonable and appropriate explanation for failing to provide this visual evidence in a timely way and in accordance with the requirements of the Procedural Order.

23With the failure to proceed with witnesses on her witness list and with issues she had identified as being ones she would pursue but then did not, the Tribunal finds that the extensive collection of photos was neither relevant nor helpful to the Tribunal in weighing the matters before the Tribunal in these proceedings. The Tribunal declined to admit the extensive collection of photos.”

[emphasis added]

29Later on, in Queenscorp, a similar issue arose and VC de Avellar Schiller ruled as follows:

32The City did not file a Reply witness statement to challenge Mr. Radecki’s opinion that…[certain]… trees were Carolina Poplars. Instead, the City sought to introduce a sur Reply witness statement from its ecologist, Paul Tripodo. Not only did this attempted filing occur well after the requisite filing dates, it occurred after the start of the hearing of the merits and even occurred after both Messrs. Westerhof and Ursic had completed their evidence and were off the stand…

33The Tribunal understands and appreciates that further analysis to double-check the categorization of a tree may take time and that the analysis results may not have been in the hands of Counsel for the City any earlier. However, there was ample opportunity for the further analysis to have been undertaken and filed within the normal deadlines of any Reply witness statements, as done by the experts called by Queenscorp. The Tribunal was not given any indication of unique or extraordinary circumstances that would explain the lack of normal filings in a Reply witness statement. With this context, the Tribunal declined the request to admit these materials.

[emphasis added]

30In Evergreen Environmental Inc. v. Oshawa, 2021 CanLII 41879 (ON LPAT) (“Evergreen”), a May 12, 2021 LPAT Decision in Case No. PL200466, in paragraphs [22] to [25], VC Schiller had to deal with a similar scenario:

22The Tribunal received two Participant Statements in accordance with the PO: Enbridge Gas Inc. (“Enbridge”) and Canadian Biogas Association (“CBA”). As Participants, Enbridge and CBA were limited to the submission of written statements. The Tribunal read and considered each of these two Participant Statements, filed in support of the Evergreen proposal.

23The Tribunal also received one Participant Statement, filed well outside of the deadline established in the PO. That Participant Statement was filed by the International Association of Heat & Frost Insulators & Allied Workers, Local 95 (“Local 95”) in support of the Evergreen proposal. No explanation for the very late filing was provided to the Tribunal.

24The PO, and its dates and deadlines, is not a suggestion or a guideline.

25With no explanation for the late filing, the Tribunal declined to provide relief from the requirements of the PO and declined to take in the Participant Statement of Local 95.

[above emphasis added]

31This Tribunal agrees with the approach taken by VC de Avellar Schiller in the Queenscorp and Evergreen cases summarized above. Romandale’s counsel was unable to offer a satisfactory explanation for its failure to follow the process for filing evidence set out in the Procedural Order. Even the witness Mr. Shaw, through whom the video was sought to be introduced, did not see it until just before the leave motion was brought.

32In these circumstances, the OLT did not grant leave under Rules 1.6 or 1.7 to admit this video evidence because:

(a) There was no adequate explanation for the profound lateness;

(b) No satisfactory reasons were given for not including such evidence as part of the Romandale case delivered in its witness statements;

(c) No prior opportunity was given to any other Party to respond through their witnesses or otherwise;

(d) It was impossible for the OLT to conclude that the video would not show potential impacts of proposed crossings in the Secondary Plan, notwithstanding the good faith representations of Romandale’s counsel that the witness Mr. Shaw did not intend to do so. In the Tribunal’s view, a video “showing what’s on the ground” in the Romandale lands could demonstrate those elements despite the contrary intentions of Mr. Shaw and counsel; and,

(e) The Tribunal agreed that AGLOG ought not to be put in the position of having to address this late-breaking video evidence by way of a Reply case – and noted that the City has no such right of Reply in any event.

PART THREE: KEY ISSUES AND ANALYSIS

1 Introduction / Overview

33The Tribunal notes that, in the absence of organized public resistance, it is unusual for an amendment to an OP to create a Secondary Plan for a significant parcel, that is wholeheartedly supported by both large lower and upper tier municipalities and all other interested public bodies - and the overwhelming majority of landowners in the block – to nonetheless become a hotly-contested dispute before the Tribunal. In fact, no Party cited any similar past case.

34This is not a scenario where, for example, one or more ratepayers’ associations, other community organization or environmental group obtained Party status to put forward broad community-based concerns or key public policy positions on ecological or environmental matters. This lengthy hearing before the Tribunal was required because a single owner of a relatively modest portion of the Angus Glen land block – Romandale – strenuously objected to the consensus Secondary Plan endorsed by the upper and lower tier municipalities with approval authority, and endorsed by all other Parties. Otherwise, it can be assumed that this matter would have instead proceeded as an OLT settlement hearing.

35AGLOG argues that despite the protracted hearing and voluminous evidence put before the Tribunal, it is still difficult to discern what specific changes to the Settlement Plan are sought by Romandale:

The only modifications which Romandale appears to have requested in their oral evidence are:

a. Removal of the Home Farm from the Settlement Plan, which position was advanced by Mr. Forhan [Romandale’s planning expert].

b. Modifications to maps SP3 and SP4 which position was advanced by Mr. Shaw [Romandale’s ecology expert] in his Witness Statement.

c. Move Street “A” westward a minimum of 100m to provide space between it and the Stone Gate driveway of the Home Farm, which was advanced through the oral testimony of Mr. Nick Palomba [Romandale’s transportation expert]...

…As confirmed by Romandale’s legal counsel on Thursday, January 26, 2023, Romandale was not proposing or requesting any modifications beyond the removal of the Home Farm from the Settlement Plan. It opposed [the] Streets “D” and “A” crossings of Greenbelt, but it was not proposing what should happen to those two streets as they met the east and west side of the Greenbelt…

36In addition to its request for the exclusion of all Romandale lands (described in further detail below in this Part Three), Romandale describes its resistance to the Settlement Plan reached by all other Parties in these interesting terms:

Romandale has not provided evidence or otherwise addressed the test for approval of the Secondary Plan as a whole. Therefore, Romandale takes no position on whether the Secondary Plan meets all applicable policies and plans…

[above emphasis added]

However, earlier in its Final Submissions, Romandale stated:

Issue 1: Greenbelt Plan conformity

(a) All lands in the Angus Glen block are subject to the public interest in planning, including all lands of the Landowners, all Romandale lands (known as the “Home Farm”), and include all Greenbelt Plan lands;

(b) Romandale has acted in conformity with the Greenbelt Plan for the 80 acres of undeveloped Greenbelt lands on the Home Farm, representing a majority of this 130-acre parcel of land;

(c) By contrast, roads across the Greenbelt are antithetical to the Greenbelt Plan’s purposes. Whereas the City Conceptual Master Plan – the foundational document for the City Future Urban Area and this Secondary Plan – advises that “Road crossings are an integral part of urbanization,” the Greenbelt Plan “identifies where urbanization should not occur” to provide “permanent protection” to “the ecological and hydrological features, areas and functions occurring on this landscape.”

(d) Here, in 2023, after years of ignoring the Greenbelt Plan, the Landowners have sought to assert Greenbelt Plan conformity for roads across the Greenbelt that they and the City have proposed since 2015. However, today’s assertions are occurring too late in the planning process for these proposed roads to meet conformity tests, redress gaps in fundamental information, or overcome historic leaps of logic – and fail to permanently protect the Greenbelt’s key natural heritage and hydrologic features.

(e) The Landowners and the City have also made clear the broader implications of these proposed roads – should this Tribunal decide that these new roads conform to the Greenbelt Plan, this approval will set the stage for multiple new road crossings of the Greenbelt.

[above emphasis added]

37Beyond its strenuous argument that the Settlement Plan does not comply with the Greenbelt Plan, Romandale also seeks to have its portion of the Angus Glen block excluded from the Settlement Plan:

Issue 2: Inclusion of Romandale’s Home Farm lands

(a) Romandale ceased to be a member of the North Markham Landowners’ Group in 2013 and was never a member of the Landowners. Romandale objected to future collector roads across its lands and the Greenbelt beginning in 2015. The Landowners did not apply for Secondary Plan approval until late 2017. It has thus been clear from the outset that the Landowners did not have Romandale’s support to plan for Romandale lands or locate any new public facilities or infrastructure on Romandale lands.

(b) Romandale’s actions at the Home Farm have demonstrated respect for Ontario’s planning system and the public interest by conforming to the Greenbelt Plan for all of the 80 acres designated as Greenbelt on the Home Farm lands.

(c) By contrast, the Landowners have failed to demonstrate – or even articulate – any planning need to impose their vision of urban development on lands they do not own. They have thereby failed the well-articulated test of the Ontario Municipal Board on whether to allow a private landowner to use an official plan amendment to impose a planning vision and new land uses on the lands of another landowner.

[above emphasis added]

38The Tribunal found it intriguing that Romandale, in final argument, buttressed by reference to certain jurisprudence, repeatedly characterized this appeal as entirely an effort “by private landowners” to impose urban development requirements on lands “they do not own”. This theme was reiterated throughout this hearing by Romandale’s counsel in various statements and in their cross-examinations, and even direct examinations of their own witnesses.

39However, in the Tribunal’s view, the effort by Romandale described above in paragraph [38] ignored the reality that the Secondary Plan / Settlement Plan is universally supported by all public authorities which have direct oversight (being the City and the Region) and which have fundamental interests (being the TRCA and School Boards) in the proper planning of such a large land block adjacent to several other land blocks which themselves have Secondary Plans. All of these public authorities have clearly defined responsibilities and accountabilities to act wholly in the public interest in this regard – and moreover are at least partly composed of democratically elected representatives.

40As already noted above in this Part Three, the Tribunal found it notable that no other community group, organization - or even any individual citizens - sought standing on this appeal or opposed the Settlement Plan.

41Thus, a contrasting enquiry might be to ask in what circumstances ought a single minority landowner within a significant urban land block be permitted to exempt itself from the planning requirements developed for the benefit of an entire city and regional municipality – and to oppose a comprehensive Secondary Plan extensively negotiated and agreed to by all stewards of the public interest in that city and region for a land block adjacent to several other blocks with approved Secondary Plans.

42In any event, there is no doubt that the OLT in reviewing for approval any Official Plan Amendment – in this case, the proposed Secondary Plan / Settlement Plan - must be satisfied that it has proper regard for all matters of provincial interest and policy under sections 1 and 3 of the PA; conforms with the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”) and any other applicable provincial policies (in this case, the Greenbelt Plan); is consistent with the Provincial Policy Statement, 2020 (“PPS”); accords with the requirements of the Region’s OP (“ROP”) and the City’s OP; and, finally, respects principles of good planning. This test is uncontroversial and was recently considered in another significant and hotly contested proceeding: CRAFT Acquisitions Corporation v. City of Toronto (2021) Carswell Ont. 7219 (L.P.A.T. Case No. PL200140) (“CRAFT Acquisitions”), in paragraphs [23] to [41].

43One notable difference between the instant case and CRAFT Acquisitions is that there is no prior municipal council decision for which this Tribunal must have regard for. Here, this is simply because the upper and lower tier municipalities have reached a consensus resolution with AGLOG on all issues pertaining to the Settlement Plan.

44Romandale has expressly conceded in final argument, as referenced above, that it has not provided “…evidence or otherwise addressed the test for approval of the Secondary Plan as a whole…” and that it therefore “…takes no position on whether the Secondary Plan meets all applicable policies and plans…”. Therefore, the only issue of policy conformance put forward by Romandale is its fervent assertion that the Settlement Plan contravenes the 2017 Greenbelt Plan. Indeed, Romandale committed approximately 46 pages and over 140 paragraphs of its 70-page written final argument to that position.

45Of course, AGLOG, the Region and the City starkly oppose the contention by Romandale that the Settlement Plan does not conform to the Greenbelt Plan. AGLOG in final submissions noted:

Romandale is not the protector of the public interest… the City, Region and TRCA are the protectors of the public interest in the first instance. The Minister of Environment, Culture and Parks (“MECP”) is the ultimate protector of the public interest respecting the MCEA and the protection of endangered species.

46Counsel for the Region stated:

The Settlement Plan is the culmination of extensive effort between various parties, including the Angus Glen Landowners’ Group… the Region, the City of Markham,… the Toronto and Region Conservation Authority, …and the three school boards…Nevertheless, the Region continued to participate in the appeal to assure the Tribunal that the Region’s concerns, as they relate to the remaining issues of Romandale Farms Limited,… the only non-settling party, have been addressed by the [Settlement] Plan…

The Region remains satisfied with the collector road network in the Settlement Plan on the basis of conformity with the ROP 2010, acceptance of the Plan by the TRCA and on the evidence presented by the AGLOG and the City, and their reliance on the approved MCEA…

47The City’s counsel maintained:

As evidenced by the Issues List, all of the Public Bodies had issues with the draft proposed Secondary Plan originally submitted by the AGLOG, and all of their issues have been resolved through the course of developing the Settlement Plan… The City and the numerous stakeholders, including the Public Bodies who are parties, the Public Bodies who chose not to become parties, and all of the landowners, including Romandale, engaged in a lengthy, rigorous and detailed process to establish a conceptual foundation for comprehensive planning within the North Markham Future Urban Area (the “FUA”), which included the completion of Phases I and 2 of the Class Environmental Assessment (the “Class EA”) for Water, Wastewater, and Transportation, as well as a comprehensive, multi-volume Subwatershed Study for the entire FUA…

Romandale has repeatedly and erroneously asserted that the Conceptual Master Plan (and in particular, the Community Structure Plan endorsed by City Council in October 2017) is a non-statutory instrument that pre-determined the outcomes of the Settlement Plan and the Class EA for the Angus Block… It is true that the Conceptual Master Plan is a non-statutory instrument. However, the Conceptual Master Plan did not pre-determine the outcomes of the Settlement Plan, nor did it pre-determine the outcomes of the completed…MCEA…pursuant to the Environmental Assessment Act…for the individual blocks. The completion and approval of the Secondary Plans for the individual blocks determined the land uses and policies for the individual blocks.…

[all above emphasis added]

2 The Settlement Plan Meets the Requirements of the PA, the Growth Plan, the PPS, the ROP and the City OP

48Romandale has essentially conceded that, but for its assertion of Greenbelt Plan non-conformance, it has no basis to oppose the Tribunal’s approval of the Settlement Plan. By “taking no position” in its final argument as described above in this Part Three, it has left this matter for the Tribunal to determine based on the evidence tendered by AGLOG, the City and the Region.

49The Tribunal accepts the opinion evidence of the following experts who were qualified at the VH to provide land use planning evidence in support of the Settlement Plan: Mr. Given (on behalf of AGLOG); Mr. Lowes (on behalf of the City); and Mr. Ezer (on behalf of the Region).

50Mr. Givens has 50 years of experience as a land use planner in Ontario and is a member of the Canadian Institute of Planners, a Registered Professional Planner with the Ontario Professional Planners Institute and is also a Professional Land Economist. He has great familiarity with secondary plans development in both the Region and the City. Mr. Lowes, who has a Bachelor of Environmental Studies, School of Urban and Regional Planning from the University of Waterloo and a Master of Environmental Studies from York University, also has more than 35 years in practice as a Registered Professional Planner and has worked on many projects in the Region and throughout the Greater Toronto Area (“GTA”) and Ontario similar to the proposed Settlement Plan. Mr. Ezer is a Senior Planner in the Planning and Economic Development Branch of the Corporate Services Department for the Region, has been a professional planner for 23 years and has been with the Region since 2010.

51The Tribunal preferred the thorough and sound analyses of Messrs. Givens, Lowes and Ezer to the extent of any conflict with the opinions of Mr. Forhan, who was qualified to provide land use planning opinion evidence on behalf of Romandale. Despite lengthy cross-examinations, the evidence of Messrs. Givens, Lowes and Ezer was not successfully challenged in the Tribunal’s view. Much of the cross-examination effort comprised of questioning regarding the history of the processes related to the MCEA and the City’s FUA, which, in the Tribunal’s view, was of only marginal assistance.

52Although he was an articulate witness with many years of apparent urban planning experience, the Tribunal found Mr. Forhan to be argumentative and, at times, decidedly partisan in both his direct and cross-examination testimony. Oddly, on other occasions, it also seemed to the Tribunal that he was unprepared, unwilling or simply unable to address many of the key questions posed to him during cross-examination.

53In the Tribunal’s view, the forceful submissions of counsel for AGLOG in final argument best summarize the difficulties with much of Mr. Forhan’s viva voce evidence:

Despite Mr. Forhan having drafted the Issues List, he was unable, during cross-examination, to answer some rather basic questions about why certain issues were placed by him on the Issues List given that he was unable to justify his, and Romandale’s, alleged concern with it. Perhaps the best examples of this are:

a. Issue 104 – Policy 7.1.1.4 which requires landowners to dedicate collector roads at no cost to the City.

i. Despite there being no collector roads on the Home Farm, he could not provide an explanation as to why he was concerned over the AGLOG agreeing to dedicate collector roads for free.

ii. When he was presented with the alternative to dedication, i.e. that the taxpayers foot the bill for the collector roads, he admitted that he had never considered the implications of that alternative.

b. Issue 105 – Policy 7.1.1.6 – Street A timing.

i. Despite having heard the oral evidence of Mr. Don Given which provided a complete explanation of how the Street “A” Greenbelt crossing would make it impossible for the golf course to maintain its Tier 1 Championship status but the Street “D” crossing would not have that effect, he nevertheless gave oral evidence, two weeks later, asking that policy 7.1.1.6 also apply to other collector roads. He did this even though none of the collector roads were on the Home Farm.

c. Issue 112(a) – the 5-year reservation on a place of worship… [“POW”]… site.

i. Recognizing that the POW reservation did not require the landowner to sell the land to any particular faith group (or any faith group at all) and recognizing that his evidence was that the Home Farm would not build out within the planned time horizon of the Settlement Plan, when asked why he then opposed that policy, he had no answer… When I proposed to him that this issue was really a big waste of time his response was that my question “had merit”; that’s it, nothing more…

iii. …he acknowledged that his concern with the Place of Worship policy was limited only to the one on the Home Farm and that he was not concerned with the application of that same policy to AGLOG lands; despite those being the lands that were planning to develop in the time horizon of the Settlement Plan. Respectfully, this makes no sense

d. Issue 117 – Cost Sharing

i. Mr. Forhan’s concern with this issue was not that he opposed cost sharing since, in his final analysis he did not take issue with cost sharing, but, instead, raised a concern that the Home Farm was being overburdened with community land uses. He held this opinion despite Mr. Given having dedicated 16 paragraphs in his Reply Witness Statement to detailed arithmetic showing the opposite to be the case.

54The Tribunal accepts all of the factual outlines and key summary opinions and conclusions of Messrs. Givens, Lowes and Ezer as set out in their respective witness statements and during their testimony at the VH, which can be summarized as follows:

(a) The Angus Glen Block remains the only FUA residential block without an approved Secondary Plan. Official Plan Amendment No. 24 for the Berczy Glen Secondary Plan was approved by the Region and came into full force and effect on July 25, 2019; Official Plan Amendment No. 26 for the Robinson Glen Secondary Plan was approved by the Region and came into full force and effect on July 25, 2019; and Official Plan Amendment No. 37 for the Victoria Glen Secondary Plan was approved by the Region and came into full force and effect on March 4, 2022;

(b) The Angus Glen Block is centrally located in the Markham FUA and totals approximately 401 ha (991 ac) from Part Lots 21 to 25, Concession 5, City of Markham. The Secondary Plan Area is bounded by Elgin Mills Road East (north boundary), Kennedy Road (east boundary), Major Mackenzie Drive East (south boundary) and Warden Avenue (west boundary);

(c) The City owns approximately 11.7 ha (28.9 ac) within the Secondary Plan Area at 3990 Major Mackenzie Drive East containing two arenas, swimming pool, gymnasium and meeting rooms (opened in 2004), library and Angus Glen Tennis Centre (opened in 2011), Gordon Stollery Park (opened in 2019), and Pingle House (designated heritage property under the Ontario Heritage Act). These lands and uses are collectively referred to as the Angus Glen Community Centre;

(d) AGLOG owns approx. 337 ha (832 ac) representing about 84% of the Secondary Plan Area. Three parcels on the south side of Elgin Mills Road East, that together total approximately 53 ha (130 ac) are owned by Romandale and Helen Roman-Barber. The Romandale Farm is the largest of these three parcels. Collectively, these lands are known as the "Romandale Lands”;

(e) The Settlement Plan contains several existing rural houses under the ownership of the AGLOG. Collectively within the Settlement Plan, there are five single detached homes and two barns of cultural heritage interest. One of these houses is located on the Romandale Lands. Angus Glen Golf Course occupies a large portion of the south and west of the Settlement Plan. Most recently, in 2000, the Angus Glen Golf Course expanded along Bruce Creek to the southerly limit of the Romandale Lands;

(f) Two watercourses, Bruce Creek and the Bruce Creek Tributary, cross the Settlement Plan. Bruce Creek runs north to south on the east side of the Settlement Plan. The Bruce Creek Tributary runs diagonally northwest to southeast in the southwest corner of the Secondary Plan Area. Each of the watercourses have contiguous natural heritage features;

(g) To the east of the Secondary Plan Area is the Robinson Glen Block which forms the easternmost area of the FUA. That Secondary Plan has been approved, designating lands for high, medium and low density housing forms, mixed uses, natural heritage, parks, schools and supporting infrastructure. Subsequent planning approvals and draft plans of subdivision cover most of these lands with construction and pre-servicing in progress;

(h) To the south of the Secondary Plan Area is an existing built out community known as Angus Glen. The area is characterized by mostly low density residential homes, a more recent medium density condominium development, a south section of the Angus Glen Golf Course, and a Neighbourhood Commercial block. To the west of the Settlement Plan Area is the Berczy Glen Block which forms the westernmost area of the FUA. This Block has been designated through the approval of the Berczy Glen Secondary Plan for low and medium density residential uses, mixed use blocks, natural heritage, parks, schools, place of worship and supporting infrastructure. Subsequent draft plans of subdivision have been approved resulting in construction and pre-servicing. Other areas of the Secondary Plan continue to be used for agriculture. A pre-existing estate residential subdivision (Jennings Gate Estates) predates the Secondary Plan and is located in the southwest corner of the Block;

(i) It is generally desirable to undertake City planning on a comprehensive basis. The City OP requires secondary plans to be prepared for all of the FUA except for lands at the northeast corner of 9th Line and Steeles Avenue. A concession block is the most appropriate geography upon which to develop a secondary plan as land use, transportation and servicing can be looked at comprehensively on a concession block basis;

(j) Subsequent to the August 2021 Secondary Plan, October 2021 MESP Response and October 2021 Community Development Plan re-submissions, the AGLOG, City, Region, TRCA, and school boards engaged in settlement discussions to resolve outstanding issues associated with the Secondary Plan application. The outcome of these discussions with the municipalities and agencies resulted in modifications to the Angus Glen Secondary Plan and Schedules, and ultimately led to a settlement with the City, Region, TRCA, York Region District School Board, York Region Catholic District School Board, and Conseil Scolaire Viamonde. The Settlement Plan was provided to the Tribunal and all Parties, including Romandale, in July 2022, (and in final form is as set out in Attachment ‘A’ hereto);

(k) The Settlement Plan incorporates modifications imposed by the City, which include refinements to the Greenway System to include natural heritage features as mapped by the City OP on the Romandale Lands with a note that further assessment is required through the development approvals process for these lands to confirm the Greenway System;

(l) There is no change to the collector road alignments and crossing locations from the August 2021 Secondary Plan. The collector roads shown on Amendment to Map 3 – Land Use, Amendment to Map 10 – Road Network, Amendment to Map 11 – Minor Collector Road Network, Map SP1 Detailed Land Use, and Map SP5 Road Network of the Settlement Plan continue to depict the general alignments as per the MCEA approval. The northern east-west collector road identified as Street ‘D’ and the north-south collector road identified as Street ‘E’ are located on the participating AGLOG lands and are not located on the Romandale Lands;

(m) The Settlement Plan demonstrates there has been appropriate regard to the matters of provincial interest under section 2 of the PA;

(n) The Settlement Plan conforms with all applicable requirements of the Growth Plan, 2020;

(o) The Settlement Plan is consistent with all applicable provisions of the PPS;

(p) The Settlement Plan conforms with all applicable requirements of both the ROP 2010 and the more recently approved ROP 2020. In particular, the proposed road network in the Settlement Plan is in conformance with both since they encourage the planning of both north-south and east-west continuous collector streets through each concession block and in all new urban developments as is set out in the Settlement Plan;

(q) The Angus Glen Secondary Plan is an amendment to the City’s OP and as such need not strictly conform with the City’s parent OP. To the extent of conflicts between the City’s parent OP and a Secondary Plan, the policies of the Secondary Plan prevail (per City OP Policy 10.1.2.7). In any event, the Settlement Plan generally conforms with the City OP;

(r) As supported by the expertise of the other witnesses, all environmental impact studies or equivalents, including natural heritage and hydrological evaluations, have been completed to the satisfaction of all commenting and approval agencies. This was completed through the SWS and MESP documents which have informed the Settlement Plan. Therefore, the Settlement Plan conforms to the policies of City OP Section 3.5 regarding environmental reporting. Any further detailed environmental studies will be completed only as necessary for individual development approval applications;

(s) The Settlement Plan was prepared in the context of an established urban area boundary expansion approved through ROP Amendment (“ROPA”) 3. ROPA 3 included the entire FUA in the City. This urban area boundary expansion was required to accommodate 2006 Growth Plan population and job growth targets and was intended to be developed by 2031 with urban uses to support that growth. The Angus Glen Block was comprehensively planned through the CMP to achieve these 2031 growth targets. As the Subject Lands will ultimately be developed in the future, it makes sense to plan for the entire Angus Glen Block, regardless of whether the Romandale Lands are developed immediately or at some later date;

(t) The ROP requires New Community Areas to be planned comprehensively and in a coordinated manner. The City conformed with the ROP and their own City OP policy, and followed their own process, a process that is common when planning a large geographic area such as the FUA involving four concession blocks, the largest of any area that came in through the Growth Plan in 2006;

(u) It is inevitable that the Romandale Lands will ultimately be developed. Even if the current owner chooses not to develop the property within their lifetime, subsequent owners may choose to develop these lands. By removing the Romandale Lands from the Settlement Plan, it would only delay the ultimate development process as these lands would then have to submit a Secondary Plan application and complete the required supporting documentation including an MESP in the future;

(v) There is no compelling or even good reason to exclude the Romandale Lands from the Settlement Plan. The Romandale Lands are clearly part of the Angus Glen Block and like other parts of the Subject Lands, contain both developable and undevelopable areas. The timing of development of any given owner is not a sufficient reason to exclude lands from an otherwise proper and appropriate comprehensive planning process;

(w) While there is no requirement for the Romandale Lands, or any lands within the FUA for that matter, to be used immediately for urban uses nor to immediately proceed with development approvals, principles of good planning require that the Angus Glen Block lands must be proactively planned to protect for future housing, jobs, institutions and recreational opportunities. The Settlement Plan does not prejudice nor preclude the Romandale Lands from continuing to be used for agricultural or other non-urban uses if that is the choice of the owner. There is also nothing that prevents Romandale from delaying any development even with land use designations approved and in place. Nothing in the Settlement Plan forces Romandale to develop its lands; and

(x) It is good planning to prepare a Secondary Plan for the entirety of the Angus Glen Block to create a complete community that contains the necessary roads, infrastructure, housing, community facilities, jobs and land uses.

55Apart from matters solely related to the issue of conformity with the 2017 Greenbelt Plan, dealt with below in Section 3 of this Part Three, there was also evidence called in relation to transportation matters related to the Settlement Plan. AGLOG tendered evidence from Nick Poulos, the Region presented evidence from Ryan Wong and the City called evidence from Alexander Fleming. Romandale’s transportation witness was Nick Palomba.

56Through its evidence, Romandale clearly sought to cast doubt as to the need for, and justification of, any collector roads across the Angus Glen block (being Street A and Street D described in the Settlement Plan), let alone a four-lane collector road (Street D). However, in the Tribunal’s view, Romandale was unsuccessful in this regard. The Tribunal found the collective written and oral evidence of Messrs. Poulos, Wong and Fleming to be more persuasive and compelling than that of Mr. Palomba. In any event, as aptly pointed out in AGLOG’s final argument:

Both of these matters were squarely and comprehensively dealt with through the MCEA process. It is not appropriate for this Tribunal to be asked to, in effect, second guess that approval through the back door…the evidence of Mr. Ryan Wong, the Region’s Transportation Planner…[was]… that reducing the number of lanes on Street “D” will not only negatively impact the residents of Angus Glen, but also those in Berczy Glen, Robinson Glen and the future urban area to the east of Robinson Glen.

Romandale complains, in this hearing, that Phases 1 & 2 of the MCEA and the transportation studies that informed those phases did not do the proper analysis, did not consider the options properly, etc. These are matters that they can take up with the Divisional Court in their current Judicial Review Application but are not relevant to the approval of the Settlement Plan. The Tribunal is entitled to and should rely upon an approved MCEA which was legally approved under the Environmental Assessment Act, and which is not before it in this (or any other) hearing…

[above emphasis added]

57Similarly, counsel for the City argued:

The undertaking of the collector road system for the Angus Glen Secondary Plan is an undertaking to which s.15 of the EAA Applies. Pursuant to s. 15.1.1 of the EAA, the City is required by law to proceed with an undertaking to which s. 15 of the EAA applies in accordance with the approved class environmental assessment for that undertaking… The MCEA for the collector road system of the Angus Glen Block has been deemed to be approved by force of law on or about September 26, 2022. It is not before the Tribunal for approval, and the Tribunal does not have the jurisdiction to approve, disapprove, vary, or modify the MCEA.

…It is the MCEA, and not the Settlement Plan, which determines the location of Streets D and A, as well as the locations of the remaining collector roads within the Block and within the FUA. Based on the deemed approval of the MCEA, the collector roads could be constructed without additional approvals under the Planning Act. However, any approvals would still be subject to any approvals that may be required under the Endangered Species Act, 2007 (the “ESA”) administered by the Ministry of the Environment, Conservation and Parks (the “MECP”).

[above emphasis added]

58The Tribunal further concurs that the Tribunal’s prior Decision regarding Romandale’s unsuccessful Section 23 Request for Review Decision and Order of VC R.G.M. Makuch, Case No. OLT-22-002000, December 12, 2022, OLT-22-002000 supported this same point made by the City’s counsel concerning the jurisdiction of the OLT.

3 The Secondary Plan / Settlement Plan Conforms to the 2017 Greenbelt Plan

59In light of the concessions made and positions taken by Romandale in final submissions, as already noted, non-compliance with the Greenbelt Plan, 2017 was the only basis upon which Romandale argued that the Tribunal should not approve the Settlement Plan. Here too, Romandale failed to convince the Tribunal. As a matter of clarity, the Tribunal also rejects the notion that the Romandale lands ought not to be included in the Settlement Plan and accepts and relies upon the opinions of Messrs. Given, Lowes and Ezer in that regard, as described above in Part Three.

60Romandale thematically argued that:

Romandale has acted in conformity with the Greenbelt Plan for the 80 acres of undeveloped Greenbelt lands on the Home Farm, representing a majority of this 130-acre parcel of land…By contrast, roads across the Greenbelt are antithetical to the Greenbelt Plan’s purposes. Whereas the City Conceptual Master Plan – the foundational document for the City Future Urban Area and this Secondary Plan – advises that “Road crossings are an integral part of urbanization,” the Greenbelt Plan “identifies where urbanization should not occur” to provide “permanent protection” to “the ecological and hydrological features, areas and functions occurring on this landscape.

Here, in 2023, after years of ignoring the Greenbelt Plan, the Landowners have sought to assert Greenbelt Plan conformity for roads across the Greenbelt that they and the City have proposed since 2015. However, today’s assertions are occurring too late in the planning process for these proposed roads to meet conformity tests, redress gaps in fundamental information, or overcome historic leaps of logic – and fail to permanently protect the Greenbelt’s key natural heritage and hydrologic features

61More specifically, Romandale contended that:

(a) The first condition of conformity is the proposed infrastructure must have approval under other regimes. As such, it is necessary that the proposed road infrastructure has approval under the MCEA. This first condition has several implications. First, this condition clearly recognizes overlap between the EAA and the Greenbelt Plan. Second, by the terms of the EAA (s.15.1.1), MCEA approval must come before the Greenbelt Plan. Similarly, Condition 1 within s.4.2.1.1 of the Greenbelt Plan makes environmental approval – such as MCEA approval – a necessary pre-condition of conformity to the Greenbelt Plan. By the terms of s.4.2.1.1 of the Greenbelt Plan, it is clear that Condition 1 – the existence of an environmental approval such as MCEA approval – is not itself sufficient to demonstrate compliance with the s.4.2.1.1;

(b) The Tribunal has statutory obligations under both section 3(5) of the PA and section 7(1) of the Greenbelt Act, 2005 to ensure that its decisions conform with the Greenbelt Plan. The MCEA was a process undertaken under separate and distinct legislation, the EAA, over which the Tribunal has no authority. “To blindly rely on this separate and distinct process, without even embarking on a review of what that process assessed, as the Landowners would have the Tribunal do, would be an error of law and an abdication of the Tribunal’s statutory obligations” [emphasis added];

(c) In fulfilling its statutory mandate to ensure that its decisions conform with the Greenbelt Plan, the Tribunal must assess all relevant policies in the Greenbelt Plan, notably in this case the policies in section 4.2.1, and must come to its own independent determination of whether conformity has been achieved;

(d) The Tribunal is charged with ensuring that its decision with respect to the Secondary Plan and its proposed collector road network is in conformity with the Greenbelt Plan, which includes policy 4.2.1.2. The determination of conformity is clearly a planning matter that is squarely before the Tribunal in this appeal. The possibility that the MCEA may have considered conformity with Greenbelt Plan policy 4.2.1.2 does not overrule or constrain the positive obligation on this Tribunal to itself address conformity;

(e) Section 4.2.1.2 of the Greenbelt Plan sets as the first priority the optimization of existing infrastructure across the Greenbelt, where practicable. After addressing the first priority, the second priority is to avoid key natural heritage and hydrologic features unless “need” to cross the key features “has been demonstrated” and “it has been established that there is no reasonable alternative” to crossing the key features;

(f) After addressing the first and second priorities, the third priority is to minimize impacts – in three distinctive ways: minimizing the amount of Greenbelt lands within the Natural Heritage System and Water Resource System traversed by the infrastructure; minimizing the negative impacts on the Greenbelt landscape caused by light intrusion, noise, and road salt; and minimizing the negative impacts, including disturbance, on key natural heritage and hydrologic features and related functions;

(g) The City gave no consideration to optimizing existing road infrastructure across the Greenbelt provided by Elgin Mills Road East, and therefore also failed to address whether it was possible to optimize this infrastructure. The City gave no consideration to avoiding key natural heritage and hydrologic features. As a result, the two proposed roads will each cross between four and nine key natural heritage features. Equally, the City gave no consideration to demonstrating need to cross the Greenbelt in the Angus Glen block;

(h) The Greenbelt Plan does not mean “urban area” when it refers to “urban centres” in s. 4.2.1.2 b) – it means that part of an urban area that can be considered a “centre”. Having regard for the needs referenced in sections 4.2 and 4.2.1.2 b), the Greenbelt Plan focuses on national, provincial and inter-regional needs in terms of what “centres” merit new road connections across the Greenbelt; and

(i) The fundamental question raised by s. 4.2.1.1 is why it exists. There is no similar policy in the PPS or in the Growth Plan. The obvious answer is that the Greenbelt Plan contains a complex, multi-component test to prevent new roads across the Greenbelt and key natural heritage and hydrological features. New urban roads across the Greenbelt are antithetical to the Greenbelt Plan’s purposes. Existing roads across the Greenbelt must be optimized (s. 4.2.1.2 c)); there must be demonstrated need to cross the Greenbelt (s. 4.2.12 d)); there must be no reasonable alternative to crossing the Greenbelt (s. 4.2.1.2 d)); the crossing must serve to connect urban centres and such centres with Ontario’s borders (s. 4.2.1.1 b))

62Romandale spent a great deal of time exploring these issues during its cross-examination of witnesses for AGLOG, the City and the Region. In its final argument, Romandale’s counsel pointed out that, in their view, there was no adequate effort by any of these Parties to investigate and to ensure that the requirements of the Greenbelt Plan as characterized by Romandale and summarized above had been met: the MCEA alone was not enough. Logically, Romandale also implicated and criticized the TRCA, the organization uniquely charged with oversight of such matters.

63As stated in a concluding section of its final argument, Romandale asserts:

Under the required independent assessment of conformity, Romandale submits that the only conclusion the Tribunal can reasonably come to, based on the evidence before it, is that the Secondary Plan fails to conform with the Greenbelt Plan for proposed roads across the Greenbelt.

With only limited exceptions…the Landowners, City and Region witnesses relied exclusively on the completed EA as proof of conformity. They thus failed to provide this Tribunal evidence or analysis to support their opinion on achieving conformity. On the other hand, despite objections from the Landowners, City and Region, the evidence that the Tribunal did hear on policy 4.2.1.2 through the cross-examinations of the Landowners, City and

Region witnesses and through Romandale’s witnesses clearly demonstrated that the requirements of policy 4.2.1.2 have not been met.

[above emphasis added]

64Moreover, Romandale in its final submissions cited and discussed much case law which it claimed supported its position as set out above in this Part Three.

65AGLOG, the City and the Region vigorously challenged Romandale’s detailed arguments that the Settlement Plan failed to conform to the requirements of the Greenbelt Plan.

66Counsel for AGLOG stated that “there is no debate that the MCEA had to conform with the Greenbelt Plan”, noting that Romandale relies on the requirement for conformity as the basis for their Judicial Review Application of the MCEA and that Mr. Forhan (Romandale’s planning expert) also admitted this during his cross-examination.

67AGLOG, in final argument, succinctly countered one of Romandale’s key arguments as follows:

Policy 4.2.1.1 deals with the “IF” question about infrastructure crossing the Protected Countryside of the Greenbelt. It answers the question of whether or not such a crossing is permitted by the Greenbelt Plan. This is readily apparent from the underlined words below:

4.2.1.1 All existing, expanded or new infrastructure subject to and approved under the Canadian Environmental Assessment Act, the Environmental Assessment Act, the Planning Act, the Aggregate Resources Act or the Telecommunications Act or by the National or Ontario Energy Boards, or which receives a similar environmental approval, is permitted within the Protected Countryside, subject to the policies of this section and provided it meets one of the following two objectives:

Although Mr. Forhan testified in chief that policy 4.2.1.1 may permit infrastructure to cross the Greenbelt, in cross-examination he agreed that it does permit such crossings provided it is:

i. Approved as part the MCEA or other listed statute [The parties agreed that this test has been met in this case]; and

ii. Meets one of the two objectives in 4.2.1.1(a) or (b). [The parties agree that (a) does not apply and that (b) applies. Romandale alone believes that (b) has not been met.]

Policy 4.2.1.2, on the other hand, deals with the “where” and “how” the infrastructure crosses the Greenbelt. This is readily apparent from the opening words of the policy “the location and construction”. ‘Location’ means “where” and ‘construction’ means “how”.

[above emphasis added]

68AGLOG argues that in terms of Greenbelt Plan policy 4.2.1.2 first, Romandale is specifically requesting that the Tribunal conduct its own inquiry into the criteria of 4.2.1.2 (a) – (h). To the contrary, AGLOG maintains that although the Tribunal must be satisfied that Greenbelt Plan conformity has been established, it can do so by relying upon the approved MCEA - which was required to adhere to the very same policies of the Greenbelt Plan. The Tribunal agrees and adamantly rejects the notion that to be satisfied based on the approved MCEA somehow constitutes “blind reliance” and “a legal error” amounting to the Tribunal’s abdication of its statutory obligations. The Tribunal finds it notable that despite the dramatic nature of such assertions, Romandale could marshal no jurisprudence to squarely support those bluntly stated propositions.

69The Tribunal concurs with counsel for AGLOG that:

The Tribunal need not and should not duplicate the work of the approved MCEA and that any alleged requirement to do so would be illogical and contrary [to] the overall legislative scheme. It would not make any sense for the approved MCEA to specifically and directly permit these same collector roads to cross the Greenbelt in these same locations, along the same alignment, with the same number of lanes, using a 110m span bridge, but then have the Tribunal do its own, separate inquiry from the MECP and come to a different conclusion. Even if the Tribunal did so, the approved MCEA would nevertheless remain approved…[which]… would allow those collector roads to be constructed as approved.

…for the purposes of conformity with policy 4.2.1.2, various witnesses were taken to the ESR and shown the pages where the MCEA specifically replicates and applies policy 4.2.1.2…Romandale can and has argued that the MCEA’s application of policy 4.2.1.2 is flawed, an argument that the AGLOG, the City and MECP obviously disagree with, but even Romandale cannot deny that the ESR dealt squarely with this policy. Romandale’s argument belongs in Divisional Court where they have squarely raised it.

…Romandale complains, in this hearing, that Phases 1 & 2 of the MCEA and the transportation studies that informed those phases did not do the proper analysis, did not consider the options properly, etc. These are matters that they can take up with the Divisional Court in their current Judicial Review Application but are not relevant to the approval of the Settlement Plan. The Tribunal is entitled to and should rely upon an approved MCEA which was legally approved under the Environmental Assessment Act, and which is not before it in this (or any other) hearing…

[above emphasis added]

70The City’s counsel agreed with AGLOG, arguing that the undertaking of the collector road system for the Angus Glen Secondary Plan is an undertaking to which s.15 of the EAA Applies. Pursuant to s. 15.1.1 of the EAA, the City is required by law to proceed with an undertaking to which s. 15 of the EAA applies in accordance with the approved class environmental assessment for that undertaking. They further argued, citing the result determined by former VC Makuch in re Section 23 Request for Review Decision Case No. OLT-22-002000, December 12, 2022, that:

The MCEA for the collector road system of the Angus Glen Block has been deemed to be approved by force of law on or about September 26, 2022. It is not before the Tribunal for approval, and the Tribunal does not have the jurisdiction to approve, disapprove, vary, or modify the MCEA… It is the MCEA, and not the Settlement Plan, which determines the location of Streets D and A, as well as the locations of the remaining collector roads within the Block and within the FUA. Based on the deemed approval of the MCEA, the collector roads could be constructed without additional approvals under the Planning Act. However, any approvals would still be subject to any approvals that may be required under the Endangered Species Act, 2007 (the “ESA”) administered by the Ministry of the Environment, Conservation and Parks (the “MECP”).

[above emphasis added]

71In final submissions, counsel for the Region also supported the positions taken by AGLOG and the City.

72The Tribunal concurs with the arguments made by AGLOG, the City and the Region. Much of the considerable effort made by both legal counsel acting for Romandale at this hearing was aimed at shedding doubt on the underlying analyses for, and conclusions reached in, the MCEA. However, with respect, this completely misses the point on this key issue. In the Tribunal’s view, the MCEA is not before it in this hearing for review or (dis)approval. The Tribunal is wholly unconvinced that Romandale has demonstrated any proper basis that should lead the Tribunal to reject it. Moreover, the Tribunal disagrees that by relying on the MCEA in these circumstances that it is somehow failing to properly or “independently” assess the issue of whether the Settlement Plan conforms with the Greenbelt Plan. Again, Romandale’s counsel offers no sound legal underpinning for this assertion. In any event, a review of the MCEA clearly demonstrates that it is the outcome of an extensive and reliable study process.

73Tabs 46, 47 and 48 of the Parties’ Joint Document Book contain the exhaustive detail comprising the MCEA conducted pertaining to the collector road system for the Angus Glen land block as required by the EAA. The report by GHD at Tab 46 is dated July 26, 2022 and comprises 230 pages. The Notice of Completion was dated July 28, 2022 (and the MCEA became effectively deemed complete two months later). The summary section of the GHD report provides a useful summary of the MCEA process and its background:

In accordance with the Municipal Class Environmental Assessment (MCEA), this report documents the planning and design process carried out for the North Markham Future Urban Area Collector Road Network Class Environmental Assessment (Angus Glen Block) (Project). The City of Markham’s (City’s) Official Plan 2014 plans for new neighbourhood and employment lands in North Markham. The identification of these lands for inclusion within the City’s urban area is one of the components of Markham’s strategy to accommodate assigned population and employment growth to 2031. The residential neighbourhood and employment lands encompass approximately 1,300 hectares (3,200 acres), north of Major Mackenzie Drive and east of the Hydro Corridor and Woodbine Avenue…

The City’s Official Plan designates these lands as ‘Future Urban Area’ and outlines a comprehensive process to be undertaken prior to development occurring including of the requirement for preparing a Conceptual Master Plan (CMP). As part of this planning process of the North Markham Future Urban Area (NM FUA), the City undertook a series of studies for the entirety of the NM FUA lands, which included a Subwatershed Study, a Transportation Study, and Water and Wastewater Servicing Studies. The results of these NM FUA wide studies were compiled and documented in the City’s NM FUA CMP, which is composed of three volumes:

Volume 1: Community Structure Plan and Key Policy Direction (September 2017)

Volume 2: Transportation, Water and Wastewater Master Plan (October 2018)

Volume 3: Subwatershed Study (Berczy, Bruce, Eckardt and Robinson Creeks) (December 2019)

The City undertook the NM FUA CMP in accordance with the MCEA satisfying Phase 1 (Problem or Opportunity) and Phase 2 (Alternative Solutions). The City’s NM FUA Conceptual Master Plan (Volume 2 – Transportation, Water and Wastewater Master Plan Class Environmental Assessment Study (Phases 1 and 2)), Final Report, dated October 23, 2018, was received for information by City Council on November 27, 2018.

The MCEA classifies the proposed collector road network collectively as a Schedule ‘C’ activity; and is therefore, subject to the full five phase planning and design process including completing Phase 3 (Alternative Design Concepts for the Preferred Solution) and Phase 4 (Environmental Study Report) prior to any new road construction taking place (Phase 5 (Implementation). With the City having completed Phases 1 and 2 of the MCEA, the majority of the private landowners within each of the four residential development blocks became the proponents for completing Phase 3 and Phase 4 on an individual block by block basis. The Angus Glen Landowners Group is the proponent for the North Markham FUA Collector Road Network Class EA (Angus Glen Block).

Commencing with the CSP established at the end of MCEA Phase 2, the proposed collector road network in the Angus Glen Block was reviewed. The alignments associated with two sections of the Collector Road Network were selected to be review in greater detail as part of Phase 3 of the MCEA.

The alternative alignments for the Bruce Creek North Crossing and Bruce Creek Tributary Alignments were comparatively evaluated. This led to the identification of the Northern Collector Road alignment with a 40 m bridge span to cross Bruce Creek and the Northern Collector Road Alignment low elevation scenario for the Bruce Creek Tributary as the preliminary recommended alignments. Based on consultation carried out as part of Phase 3 of the MCEA the Central Alignment 110 m multi span bridge was selected as the preferred design concept for the Bruce Creek North Crossing whereas the Northern Collector Road Alignment (Low Elevation) was confirmed as the preferred design concept for the Bruce Creek Tributary Collector Road Alignment. The Bruce Creek South Crossing location was refined slightly north and a 40 m single span bridge.

Next, the preliminary designs were prepared for both the preferred bridge spans as well as all the collector roads within the Angus Glen Block and their intersections with the boundary arterial roads. Using this preliminary design level of information, the potential adverse effects on the environment were confirmed, the proposed impact management measures were specified, and environmental monitoring programs were proposed as appropriate. In addition, post EA approvals and permits required as part of detailed design were noted as future work commitments.

As a result, the confirmed collector road network in the Angus Glen Block including the two new crossings of Bruce Creek and two crossings of the Bruce Creek Tributary will be built subject to EA Act approval and obtaining all post-EA permits and approvals in concert with the future development of the plans of subdivision.

[above emphasis added]

74The MCEA specifically considered and analyzed whether its proposed collector road network for the Angus Glen land block conformed with the Greenbelt Plan. There was also a comprehensive record of considerations given to Key Natural Heritage Features and Key Hydrologic Features throughout the FUA, including the Angus Glen Block, in the multi-volume Subwatershed Study that provided input to the MCEA. The Tribunal finds that the specific analysis set out commencing at section 6.3.5 of the MCEA and in Table 6.4 of the report was sound, coherent and richly detailed. As noted, all experts for AGLOG adopted and agreed with its conclusions, while Mr. Shaw and Mr. Forhan for Romandale did not. Some directly relevant passages include the following:

As stated in Section 3.2.1, the Greenbelt Plan 2017 applies to the valleylands/corridor associated with main tributary of Bruce Creek within the Angus Glen Block (Protected Countryside). As a result, the policies of Section 4.2 Infrastructure of the Greenbelt Plan have been considered at all phases of the MCEA, including with respect to the two collector road crossings of Bruce Creek. The Greenbelt Plan states that new infrastructure, which is subject to and approved under the Environmental Assessment Act (EA Act), is permitted within the Protected Countryside designation subject to the policies of Section 4.2.1 and provided it meets one of the following two objectives:

a) It supports agriculture, recreation and tourism, Towns/Villages and Hamlets, resource use or the rural economic activity that exists and is permitted within the Greenbelt; or

b) It serves the significant growth and economic development expected in southern Ontario beyond the Greenbelt by providing for the appropriate infrastructure connections among urban centres and between these centres and Ontario’s borders.

Since this Project is being carried out in accordance with the MCEA, the Project is subject to the EA Act and will be approved in accordance with this legislation following the filing of the Environmental Study Report (ESR) and 30-day comment period (assuming no outstanding Part 16 Order requests).

The Project meets the second objective by serving the significant urban growth and economic development to 2031 in Markham, as mandated by the Provincial Growth Plan and implemented through the York Region Official Plan 2010 and City of Markham Official Plan 2014.

Planned as a complete, transit-supportive, walkable urban community with a population of approximately 45,000 residents, the NM FUA lands also include urban centres, nodes, and corridors to provide residents with easy access to retail, personal services, schools, and parks. Further, the NM FUA lands have direct frontage on Major Mackenzie Drive, a corridor identified as a Regional Transit Priority Network (York Region Official Plan 2010 Map 11 Transit Network) that links other urban centres across York Region. The collector road network connects and serves significant growth in Markham’s urban settlement areas (i.e., ‘urban centres), providing continuous connections in accordance with York Region Official Plan Section 5.6.12 f). This is documented in the problem/ opportunity statement described in Section 3 of this ESR. Table 6.4 documents how the applicable policies of Section 4.2.1 of the Greenbelt Plan were considered as part of the MCEA and how the Project adheres to these policies.

[above emphasis added]

75Table 6.4 of the MCEA, comprising four detailed pages, then provided a thorough analysis of conformity to the Greenbelt Plan. The MCEA also dealt with matters such as need, optimizing existing infrastructure, minimizing impacts on the natural environment, the location and number of required collector roads, the alignment of same including the number of lanes, and all relevant matters in policy 4.2.1.2 of the Greenbelt Plan. Upon review of this content, and despite the efforts of Romandale’s counsel to shed doubt about it through its cross-examination of various witnesses, the Tribunal saw no evidence of any fundamental errors or lack of attention to the requirements of the Greenbelt Plan and does not accept any evidence to the contrary from Mr. Shaw and Mr. Forhan.

76Notably, Romandale itself made extensive submissions during the MCEA process which were clearly considered in the GHD report. Those submissions included the opinions of the same experts called by Romandale in this hearing: Mr. Shaw and Mr. Forhan. The submissions were made in 2021 and are set out in considerable detail in over 150 pages contained in the Parties’ Joint Document Book. Finally, as noted above in this Part Three, Romandale has already exercised its right to formally challenge the MCEA as set out in its August 30, 2022 Judicial Review Application as part of the record. In that Application, Romandale seeks, inter alia:

A declaration that the Notice of Completion… and Environmental Study Report for the North Markham Future Urban Area Collector Road Network Class Environmental Assessment (Angus Glen Block)… published on the City’s website by the Angus Glen Landowners’ Group Inc. …on July 28, 2022… violate and are in breach of Applicable Law, and the requirements of the MCEA process approved by the Minister of the Environment…

[above emphasis added]

77For the reasons stated above and further expanded upon below in this Part Three, this hearing should not serve as a parallel venue for a further collateral attack on the MCEA by Romandale. Nor is it necessary or even permissible for this Tribunal to rule upon the allegations already made by Romandale in its Judicial Review Application described above in paragraph [76]. The environmental assessment process was detailed, extensive and persuasive and the Tribunal is of the opinion that the MCEA fully addresses the issue of Greenbelt Plan conformity. All of the experts called by AGLOG adopted and relied upon it, and the Tribunal also does so, accepting their evidence in preference to all contrary assertions of Mr. Shaw and Mr. Forhan. In the Tribunal’s view, unless and until the Divisional Court or Court of Appeal determines that the MCEA must be set aside, it remains operative.

78The case law references cited by Romandale to support its arguments about what the Tribunal should and must do in considering the MCEA regarding the Greenbelt Plan consist largely of cherry-picked passages that, in the Tribunal’s view, ignore the elements of those cases that can be easily distinguished from the circumstances in this proceeding. Importantly, Romandale could not cite a single binding decision that clearly and convincingly establishes that this Tribunal cannot and should not rely on the MCEA in determining Greenbelt Plan conformity.

79In Kimvar Enterprises v. Simcoe County, 2007 CarswellOnt 8320, 58 O.M.B.R. 426 (“Kimvar”) the Class Environmental Process had not even begun. The dispute was about whether the OMB ought to proceed to deal with the Official Plan Amendment before it on appeal, and conformity with the Greenbelt Plan was not an issue for determination. At paragraphs [57] and [58] of Kimvar, VC Seaborn and Member Beccarea held:

The Opponents argued that significant approvals and permits required to implement the project remain outstanding and will likely take several years to complete. For this reason, Mr. Donnelly submitted that there is no urgency to the matter and any approval by the Board would be pre-mature. The examples that the Opponents focused on in their evidence included: the need for additional approvals under the Fisheries Act and/or the Navigatible (sic) Waters Protection Act; the potential for a screening under the Canadian Environmental Assessment Act; and at the provincial level, the necessity for Class E.A. to support the expansion of the wastewater treatment facilities.

As indicated previously, as an integral part of the planning instruments under appeal Kimvar has both recognized and provided for the reality that approvals may be needed under both provincial and federal legislation other than the Planning Act. Mr. Melling and Ms. Rosenthal submitted that their client is entitled to a decision from the Board with respect to the planning approvals it requires, accepting that all other regulatory requirements must be met for the project to proceed. The Board finds that Kimvar’s position is correct. The necessity for approvals under legislation other than the Planning Act, which guides the Board, is not a basis upon which to find the project is pre-mature. The Board is statutorily required to deal with any appeals that are made and come to a determination as to whether, among other things, the instruments represent good planning. The Board has indicated on numerous occasions that it has an obligation to hear an appeal and the fact that a different, but related, approval might be required should not deter the Board from proceeding with its mandate (Victoria Point Homes Inc. v. Orillia (City) (1998), 36 O.M.B.R. 254 (O.M.B.); East Gwillimbury (Town) Official Plan Amendment No. 89, Re (1998), 36 O.M.B.R. 307 (O.M.B.); 836769 Ontario Inc. v. Flamborough (Town), 2001 CarswellOnt 7198 (O.M.B.)).

80In this Tribunal’s view, the Decision in Kimvar does not assist Romandale in this case. Clearly, this Tribunal has also proceeded with this hearing to consider the proposed Secondary Plan / Settlement Plan, having ruled against Romandale’s earlier de facto adjournment request.

81Romandale’s counsel also relied on York (Regional Municipality) Official Plan Amendment No. 4, Re, 2000 CarswellOnt 10139 (“King City”). Yet in this Decision, the OMB noted at paragraph [3]:

As noted in the Board’s decision denying a motion for adjournment at the pre-hearing conference of June 16, 1999, the Environmental Assessment (EA) sanctioning the connection to the YDSS from King City was approved by the Minister of the Environment in January of 1996. After having had three (separate) requests for a “bump up” of the EA denied, the appellants have had recourse to their rights under the Planning Act (Act) to challenge planning policies which are seen as irreversibly changing the character of King City. During the pre-hearing process the Board cautioned the appellants that the hearing would not (and could not), be allowed to become an alternative EA appeal. Having stated the ground rules, the Board is nevertheless cognizant that the provision, timing and financing of services are proper matters to be considered in assessing the merits of land-use planning policies.

[above emphasis added]

82In fact, the above statement is analogous to the motion ruling made by this Tribunal in this proceeding as set out above in Part Two.

83In King City, the OMB went on in paragraphs [16] and [17] to state:

As stated on several occasions, the question in front of the Board is not what type of municipal sewage system but whether the OPA 54 policies requiring that all new development be serviced by a municipal sewage system represent “Good Planning”. The type of municipal sewage treatment for King City has essentially been answered through the EA process as a force main connection to the YDSS. Richard Hunter drew an inference from John Livey’s evidence that if the Board were to modify the planning documents by proposing an alternative system, an ‘addendum’ to the EA might be considered. In fairness to Richard Hunter, he was also quite candid in stating that there must be some form of municipal sewage servicing and that while his client is opposed to the YDSS, he himself had not precluded it.

With respect, consideration of alternative forms of sewage treatment is not a path this Board should or will go down. This is especially so in light of the admonition given during the pre-hearing conferences…

[above emphasis added]

84Thus, the OMB in King City accepted the outcome of the EA process and was not prepared to conduct its own independent analysis of ‘other options’. Again, in this Tribunal’s opinion, the King City case does not support Romandale’s position.

85Romandale also cited the OMB Decision in Lionheart Enterprises Inc. et. al. v. Richmond Hill, Decision No. 3289 issued November 23, 2006, O.M.B. Case No. PL020446. In this case a secondary plan was at issue but the MCEA process for the collector roads had not started therefore there was of course no approved MCEA which the Board could consider or rely upon. Thus, the Board dealt with the issue of need for the collector road crossings set out in the North Leslie Secondary Plan. Interestingly, the predecessor to the Greenbelt Plan, being the 2005 version, had not yet been enacted and at one point the hearing in Lionheart was adjourned to await its passage. In any event, the secondary plan in that case was approved by the OMB – and afterward, as noted by AGLOG’s counsel, the MCEA approved the collector road crossings. Lionheart is therefore clearly distinguishable from the circumstances of this proceeding and does not aid Romandale’s arguments. It is also notable that in that decision, the permitted collector road crossings of the Greenbelt were not changed.

86Romandale further relied on the cases of Ottawa (City) v. Sample, 2001 CarswellOnt 4408 (ONSC) (“Sample”) and Finch v Ottawa (City), 2001 CarswellOnt 7368 (OMB) (“Finch”). Finch is the OMB case and Sample is a decision of Justice Panet denying two motions for leave to appeal to the Divisional Court arising from the Finch Decision. Simply put, these cases do not support an argument that this Tribunal cannot – or must not - rely on an approved MCEA and do not otherwise assist Romandale.

87In Finch and Sample, a 1996 environmental assessment approved a certain wastewater servicing solution. However, certain residents and landowners objected to that approval asking the City of Ottawa to consider six different alternatives. Instead, Ottawa chose not to rely on the approved environmental assessment and hired an engineer who studied the alternatives and recommended one which was agreed to by Ottawa, leading to an addendum to the environmental assessment. This in turn lead to the subsequent adoption of Official Plan Amendment No. 5 which was appealed by groups opposed to the selected solution. All parties to the OMB hearing, including Ottawa, asked the OMB to weigh the competing engineering evidence respecting the alternatives and to render a decision approving one of them. However, the OMB declined to do so in light of the conflicting expert evidence. Ottawa sought leave to appeal to the Divisional Court, now arguing that the OMB had no jurisdiction to reconsider the approved environmental assessment. As noted, leave was denied.

88The unique circumstances and results reached in the Finch and Sample cases do not bolster Romandale’s position in this proceeding, notwithstanding Justice Panet’s refusal to rule that the Minister of the Environment has exclusive jurisdiction in the matter before the OMB (which, as noted by AGLOG’s counsel, seems unsurprising given what Ottawa had originally asked the OMB to do in those cases). This Tribunal emphasizes that its decision to rely on the MCEA in this appeal should not be construed as a finding that in every future case the OLT must also do the same. The Tribunal’s decision here is based on the detailed analysis set out in this MCEA, the totality of the expert opinion evidence weighed and considered and on the extensive legal arguments made by the Parties’ counsel – indeed, in the Tribunal’s view, the interpretation of the Greenbelt Plan and the determination of conformity through the consideration of this MCEA and the requirements of the PA is primarily a legal determination since no single expert is able to offer a comprehensive opinion on these ‘ultimate issues’ that the Tribunal can rely on.

89Romandale also suggests in final argument that due to the origins of this appeal (an application by AGLOG), AGLOG bears a special burden in seeking to have the Settlement Plan govern Romandale lands, relying on the case of Winess Developments Ltd., Re 1994 CarswellOnt 626, 23 M.P.L.R. (2d) 232 (“Winess”). In the Tribunal’s view, this case is again distinguishable on its facts. In Winess, an organization applied for an OPA on lands owned by another entity (not even including its own lands) to have it designated as employment lands and not residential lands. The neighbour entity had applied for a residential development which the City supported and opposed the OPA, as did the City. In this appeal, the City, the Region and all of the public authorities support the Settlement Plan with the inclusion of the Home Farm and all of the other lands in the Angus Glen block are also included. In Ghods Builders Inc. v. Toronto (City), 2021 CanLII 77591 (ON LT) - OLT Case No. PL110316-PL200313, a similar result was reached by the OLT: Despite the non-participating owners and the City of Toronto opposing the inclusion of their lands in a Site and Area Specific Policy, the Tribunal included those lands in the approved SASP and did not apply any substantial or overwhelming burden test on the applicant.

90AGLOG submitted two additional Decisions on the question as to whether the Tribunal is entitled to rely on the completed and approved MCEA: York Energy Centre LP v. King (Township), 2017 CanLII 5206 (ON LPAT) (“York Energy”) and Sorbara Group of Companies v Centre Wellington (Township), 2019 CanLII 96177 (ON LPAT) (“Sorbara Group”). The Tribunal agrees that both Decisions are supportive of AGLOG’s position.

91In York Energy, the Township enacted OP policies dealing with energy production facilities which were approved by the Region, then appealed by York Energy Centre LP. York Energy operated a gas fired facility which had been approved under a version of the Class EA process. York Energy also prepared an Environmental Review Report (analogous to the ESR in this proceeding). The Environmental Review Report was to determine what negative impacts may be experienced and how any such impacts might be mitigated. The Environmental Review Report also made determinations respecting conformity with the Greenbelt Plan including policies 4.2.1(b) and 4.2.1.2 (since the York Energy facility is within the Protected Countryside of the Greenbelt). At the OMB hearing dealing with the OP policies, an issue was raised as to whether or not the York Energy facility conformed with policy 4.2.1 of the Greenbelt Plan. At paragraphs [64] to [69], inclusive, the OMB made clear its reliance on the Environmental Review Report:

64The key policy of the Greenbelt Plan that had been the subject of consideration was s. 4.2.1. This policy applied in those areas designated as Protected Countryside (which is the designation applying to the YEC Lands). This policy declares that all existing, expanded or new infrastructure subject to and approved under various specified pieces of legislation (including the Environmental Assessment Act) is permitted subject to the policies of that section provided that it meets one of two objectives. The second of the two objectives is expressed in s. 4.2.1.b. The stated objective is that the infrastructure serves the significant growth and economic development expected in southern Ontario beyond the Greenbelt by providing for the appropriate infrastructure connections among urban growth centres and between these centres and Ontario’s borders.

65Apparently, the Township seized upon the reference to “connections” in the policy and determined that this confined the permission strictly to linear features. Its view was that the power generation facility did not fall within that characterization.

66The issue was finally put to rest by way of formal communications from the Province. In that regard, the Board was provided with a copy of a letter dated August 17, 2009 from the Honourable Minister of the Environment, John Gerretsen, to Stephen D’Agostino. The letter was in response to an elevation request which was made by Mr. D’Agostino on behalf of the Concerned Citizens of King Township. The upshot of the letter is a denial of the request for elevation but part of the letter directly deals with the issue of Greenbelt Plan conformity and comes to the conclusion that there has been compliance with the requirements of s. 4.2.1 of the Greenbelt Plan. It also goes on to speak to the locational requirements in s. 4.2.1.2 of minimizing the amount of Greenbelt occupied and limiting disturbance to natural features and expresses the Minister’s view that appropriate consideration of these requirements has been given.

67The official closure of the question of Greenbelt Plan conformity came in the form of a letter dated March 25, 2010 from Larry Clay, Director, Central Municipal Services Office, Ministry of Municipal Affairs and Housing, to Michael Melling. It appears that the letter sprang from the service of a summons on Mr. Clay to appear at the site plan appeal hearing which was before the Board in 2010.

68As the letter is succinct and puts the position of the Ministry very clearly, rather than paraphrase, its contents are reproduced herein:

In response to your summons for me to appear before the Ontario Municipal Board to provide evidence in OMB Case PL091010, I wanted to confirm the Province’s position on the matter of York Energy Centre’s proposal to construct a natural gas-fired electricity generating facility in King Township. It is the Province’s position that the proposed York Energy Centre facility, to be constructed on a 15.3 hectare site at 18781 and 18765 Dufferin Street in the Township of King does conform with the Greenbelt Plan. This position was articulated in a letter dated August 17, 2009 from the Honourable John Gerretsen, Minister of the Environment, to the Concerned Citizens of King Township as part of the Minister’s response to a request to elevate the project to a full individual environmental assessment under the Environmental Assessment Act.

69The Board takes this position to be controlling on the matter of Greenbelt Plan conformity with respect to the position being taken by the Appellant in its request for treatment of the Accessory Lands. Of course, there is no present concrete proposal, so there is no approved environmental assessment but, subject to securing that approval, there is no sufficient planning ground to assert a lack of Greenbelt Plan conformity to the extent that what may be proposed in the future can properly be characterized as infrastructure within the meaning of the Greenbelt Plan.

[above emphasis added]

92Sorbara Group dealt with a zoning by-law and subdivision appeal. The subdivision included the new alignment of a collector road that had been approved under an MCEA process. Residents opposed to the collector road voiced their concerns to the Minister of the Environment and Climate Change (“MECC”) and further unsuccessfully requested that MECC order an individual environmental assessment.

93In Sorbara Group, the LPAT held a settlement hearing on a draft Plan of Subdivision (“subdivision”) and Zoning By-law Amendment (“ZBA”) and noted the objections of several Participants who sought to have the Tribunal direct a further realignment of the collector road. Current OLT VC Tousaw stated as follows:

[3]The entire development, and particularly Phase 3, was planned concurrently with a Class Environmental Assessment (“EA”) for the realignment of Colborne Street. The EA approval of the selected option for the Colborne Street realignment is reflected in Phase 3 and is of ongoing concern to the Participants…

15the Tribunal finds that the subdivision and ZBA reflect and implement the realignment of Colborne Street, but the Tribunal has no jurisdiction on the reconfiguration of this collector road. That decision was made by the Minister under the EA process, and the bulk of issues raised by the Participants pertained to the Minister’s decision made some six years ago. The realignment of Colborne Street could proceed at any time at the initiative of the Township with or without this development. In addition, the existing Colborne Street road allowance, to be retained and controlled by the

Township, and to which the Participants may desire future access, is outside the boundaries of the subdivision and not before the Tribunal.

[above emphasis added]

94In any event, although the Tribunal finds that it is entitled to, and does in fact, rely on the approved MCEA for its determination that the Settlement Plan conforms with the Greenbelt Plan, it also expressly accepts and prefers the evidence of the transportation witnesses Messrs. Poulos and Fleming, also supported by Mr. Ryan Wong for the Region, wherever their collective evidence was contrary to the evidence of Mr. Palomba. The Tribunal finds that collector road ‘A’ together with the four-lane collector road ‘D’ are the logical and reasonable extensions of collector roads that correspond to those in the Berczy Glen and Robinson Glen Blocks adjacent to the Angus Glen Block.

95In the Tribunal’s opinion, the written evidence and oral testimony of Messrs. Poulos and Fleming, in particular, established the need for both collector roads as proposed – contested by Romandale in this hearing. In the Tribunal’s determination, their opinions were not successfully challenged on cross-examination, contrary to the assertions made in final submissions by Romandale. Moreover, while Mr. Palomba did not fully concede this issue, on cross-examination he did acknowledge that outside of the portion that crosses the Greenbelt, the location and alignment of Street “D” and Street “A” are appropriate for their entire length and for their intersections with Warden Avenue and Kennedy Road. In fact, he confirmed that but for the environmental aspects of the crossing of the Greenbelt, the collector road system was appropriate from a purely transportation perspective.

96The Tribunal finds it unnecessary to recount each and every conflicting detail of the testimony on this topic in light of the conclusions it has reached. On balance, the Tribunal was not persuaded by Romandale that there was any reason to doubt the correctness of the conclusions reached by Messrs. Poulos, Fleming or Wong.

97The Tribunal also rejects the contention by Romandale that the term “urban centres” in section 4.2.1.1 of the Greenbelt Plan means “Urban Growth Centres” as defined in the Growth Plan. This provision reads as follows:

All existing, expanded or new infrastructure subject to and approved under the Canadian Environmental Assessment Act, the Environmental Assessment Act, the Planning Act, the Aggregate Resources Act or the Telecommunications Act or by the National or Ontario Energy Boards, or which receives a similar environmental approval, is permitted within the Protected Countryside, subject to the policies of this section and provided it meets one of the following two objectives:

a) It supports agriculture, recreation and tourism, Towns/Villages and Hamlets, resource use or the rural economic activity that exists and is permitted within the Greenbelt; or

b) It serves the significant growth and economic development expected in southern Ontario beyond the Greenbelt by providing for the appropriate infrastructure connections among urban centres and between these centres and Ontario’s borders.

[above emphasis added]

98Romandale argued for a particular definition of the phrase “urban centres” to support its argument that collector roads ‘A’ and ‘D’ do not connect two urban centres. Romandale asserted that that the Greenbelt Plan does not mean “urban area” when it refers to “urban centres” in s. 4.2.1.2 b) – it means instead that part of an urban area that can be considered a “centre.” Having regard for the needs referenced in sections 4.2 and 4.2.1.2 b), the Greenbelt Plan focuses on national, provincial and inter-regional needs in terms of what “centres” merit new road connections across the Greenbelt.

99In this respect, Romandale primarily relied on the evidence of its land use planning expert Mr. Forhan (although conceding that the proper interpretation of this provision is a matter of law, not strictly land use planning evidence). Mr. Forhan testified that “urban centres” refers to only: Urban Growth Centres as defined and mapped in the Growth Plan; Regional Centres as defined and mapped in the ROP; Local Centres as defined and mapped in the City OP; Major Transit Station Areas as defined in the Growth Plan; and lands developed at much higher densities than designated greenfield areas, which during cross-examination he said meant “at least 150 persons and jobs per hectare”. Mr. Forhan further conceded during his cross-examination that in fact much of his ‘list’ corresponds to the definition of Strategic Growth Areas set out in the Growth Plan and also that his criterion of “at least 150 persons and jobs per hectare” is nowhere stated in the Greenbelt Plan. Finally, the Tribunal noted that Mr. Forhan also agreed that only arterial roads and provincial highways could ever meet his test, a contention made by Mr. Palomba in his viva voce evidence.

100During one juncture, Mr. Forhan admitted that he had never searched the Greenbelt Plan itself for the words “urban centre”, even though he was the architect of Romandale’s position on this issue. When presented with the fact that “minor urban centres” were identified and even mapped in the Greenbelt Plan’s Appendix 2, he still insisted that a road connecting them would not comply with his definition.

101The Tribunal did not find the evidence of Mr. Forhan on the meaning of “urban centres” in the Growth Plan to be useful, let alone persuasive. He demonstrated a strongly combative demeanour during his cross-examination by both counsel for AGLOG and the City which, in the Tribunal’s view, diminished his credibility as an independent expert.

102In any event, the Tribunal is of the view that the use of Mr. Forhan’s definitions leads to absurd results. While the existence of other multiple collector road crossings in the GTA is not by itself determinative of the issue of conformity with the Greenbelt Plan in this case, the Tribunal cannot agree with Romandale’s apparent suggestion that these crossings are irrelevant. It seems unlikely that many other GTA municipalities and similarly situated appellants and their respective experts and counsel (and indeed the Tribunal and its predecessors) completely misinterpreted the Greenbelt Plan over many years by erroneously permitting multiple past road crossings of the Greenbelt as well as infrastructure crossings for water, sewage and electricity – somehow missing the alleged ‘correctness’ of Mr. Forhan’s tortured analysis which was urged upon this Tribunal. Again, it must be recalled that the TRCA – which is the specialized organization charged with environmental stewardship of the Angus Glen Block lands – supported the MCEA and its conclusions and did not oppose the collector road crossings at issue here.

103The Tribunal found the following convincing summary contained in AGLOG’s final submissions to be in accordance with its own notes from this hearing:

The result of this Tribunal finding in favour of Romandale’s position respecting policy 4.2.1.1(b) is to essentially determine that the following crossings were likewise illegal as they too would violate policy 4.2.1.1(b) of the Greenbelt Plan (regardless of whether it is the 2005 or the 2017 version):

a. The two recently approved crossings of the Greenbelt’s Protected Countryside in the Berczy Glen block [approved by the Region of York]

b. The multiple crossings of the Greenbelt’s Protected Countryside in the North Leslie Secondary Plan29 [approved in 2006 by the former Ontario Municipal Board].

c. The two crossing of the Greenbelt’s Protected Countryside in the North Kleinburg-Nashville Secondary Plan [approved by the former Ontario Municipal Board in 2012]

d. The three crossings of the Greenbelt’s Protected Countryside in OPA 33 (the Block 27 Secondary Plan in Vaughan) [approved by the Region of York in May 2019]

e. The two crossings of the Greenbelt’s Protected Countryside in OPA 5031 (the Block 41 Secondary Plan in Vaughan) [approved by the Ontario Land Tribunal in August 2021]

f. The several mid-block collector road crossings of Highways 400 and 404 through the Greenbelt’s Protected Countryside as identified in the York Region Official Plan [approved by the Minister of Municipal Affairs and Housing in November 2022].

g. The collector road crossings in Seaton (Pickering) which are planned in the Central Pickering Development Plan, a provincial plan approved by the Province after the Greenbelt Plan (2005) was enacted.

h. Mr. Palomba’s own expansion and improvements to Columbia Way in Bolton from Highway 50 to Caledon Townline Road, which crosses the Greenbelt’s Protected Countryside; and

i. Planned expansions of both Major Mackenzie Drive and Elgin Mills Road East, in Markham, which expansions and improvements cross the Greenbelt’s Protected Countryside.

[above emphasis added]

104As a final note on this aspect, the Tribunal notes that Romandale assails AGLOG and the City for trying to “ignore the Greenbelt Plan” when they pointed out the multiple historical examples of road and infrastructure crossings of the Greenbelt. In the Tribunal’s view, it was certainly incumbent on Romandale’s several experts to deal with these significant facts. Yet, none of Romandale’s witnesses addressed them in their direct testimony even though the existence of the many crossings was set out in AGLOG’s visual evidence delivered well prior to this hearing.

105Finally, the Tribunal agrees with AGLOG and the City that the term “urban centres” in the Greenbelt Plan simply means urban areas. Such a definition also explains all the many other intra-block collector road and infrastructure crossings in the GTA, some of which are identified above in this Part Three. Moreover, this definition is coherent, reasonable, logical and is in accordance with the evidence of Messrs. Givens and Lowes which the Tribunal accepted in preference to that of Mr. Forhan for the many reasons described above in this Part Three. In any event, had the drafters of the Greenbelt Plan intended to include and incorporate concepts and definitions contained in the Growth Plan this would have been easy to accomplish – particularly given that both policy documents essentially emerged in their first editions during the same time period.

PART FOUR – CONCLUSIONS

106For the reasons set out in Part Two and Part Three above, and based on the evidence of the experts called by AGLOG, the City and the Region as described there, the Tribunal concludes that the Settlement Plan has proper regard for all matters of provincial interest as required by sections 2 and 3 of the PA; conforms with all applicable requirements of the Growth Plan; conforms with the Greenbelt Plan; is consistent with the applicable provisions of the PPS; and conforms with all applicable provisions of the City OP and the ROP.

107The Tribunal is also of the opinion that the Settlement Plan respects principles of good planning and represents a fair and reasonable resolution of all matters formerly in dispute between AGLOG, the City, the Region, the TRCA and the School Boards. It once again seems important to note that the Settlement Plan does not “prescribe” the collector road crossings that are the focal point for Romandale’s objections. As described above in Part Three, those roads were approved pursuant to the MCEA process under the EAA.

108Finally, the Tribunal is unconvinced that there is any sound basis under the PA or otherwise as a matter of provincial policy or law to exclude the Romandale Lands from the Settlement Plan. Indeed, it is the Tribunal’s opinion that to do so would not be in the public interest. It is instructive that throughout this proceeding Romandale essentially ignored that primary interest, focussing instead on its rights as a private landowner.

109The Tribunal is of the understanding that the Settlement / Secondary Plan appended hereto as Attachment ‘A’ now contains all revisions and modifications sought by and agreed to by AGLOG, the City, the Region, the TRCA and the School Boards, subject to the further modifications described in paragraphs 7 a., b., c. and d. of the final written submissions of AGLOG, which in turn referenced certain attachments to those final submissions.

INTERIM ORDERS

110The Tribunal Orders that:

(a) The appeal of Angus Glen Landowners’ Group Inc. (“AGLOG”) to amend the Official Plan of the City of Markham is allowed in part; and,

(b) The Secondary Plan appended hereto as Attachment ‘A’ is approved in principle (“Secondary Plan”).

111The final approval of the Secondary Plan shall be withheld by the Tribunal until:

(a) the delivery by counsel for AGLOG within 30 days of the date of this Interim Order of a final revised version of the Settlement Plan reflecting all modifications described in paragraph 7 a., b., c. and d. of the AGLOG Closing Submissions dated March 1, 2023 (the “Final Version”); and,

(b) the written confirmation by counsel for each of the City of Markham, the Region of York, the York Region District School Board, the York Region Catholic School Board and the Toronto Region Conservation Authority that they are in agreement with the Final Version.

112The Tribunal may be spoken to in the event that AGLOG, the City of Markham, the Region of York, the York Region District School Board, the York Region Catholic School Board and the Toronto Region Conservation Authority require the Tribunal’s assistance with respect to the Interim Orders described in paragraphs [108] and [109] above and regarding the issuance of an Order approving the Final Version.

“William R. Middleton”

William r. middleton

VICE-CHAIR

“S. Dixon”

S. DIXON

MEMBER

“A. Sauve”

A. Sauve

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.