Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 27, 2023
CASE NO(S).: OLT-22-003501
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: HJ Donegan Holdings Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To develop a subdivision comprising of single detached, semi detached and townhouse dwellings Reference Number: ZBA 14-2020 Property Address: Part of Lot 33, Concession 1 Municipality/UT: North Perth/Perth OLT Case No: OLT-22-003501 OLT Lead Case No: OLT-22-003501 OLT Case Name: HJ Donegan Holdings v. North Perth (Municipality)
PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Reference Number: NP 20-20 Property Address: Part of Lot 33, Concession 1 Municipality/UT: North Perth/Perth OLT Case No: OLT-22-003804 OLT Lead Case No: OLT-22-003501
Heard: August 24, 2022 by Video Hearing (“VH”)
APPEARANCES:
| Parties | Counsel |
|---|---|
| HJ Donegan Holdings Inc. (“Appellant/Applicant”) | Denise Baker |
| Municipality of North Perth | Sally McMullen |
| County of Perth | Steve O’Melia |
MEMORANUDM OF ORAL DECISION DELIVERED BY S. MANN ON AUGUST 24, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the first Case Management Conference (“CMC”) respecting an appeal by HJ Donegan Holdings Inc. (the “Applicant/Appellant”) following Municipality of Perth’s (“Municipality”) failure to render a decision respecting an application under s. 34(11) of the Planning Act (“Act”) concerning zoning by-law amendment as well as under s. 51(34) for the approval of plan of subdivision to permit the re-development of Part of Lot 33, Concession 1 in Listowel (“Site”), located within the unincorporated Town of Listowel.
2The Site encompasses an area of approximately 23 acres located within the southwest quadrant of the serviced urban area of Listowel. The site has a frontage of 286 metres (“m”) along Bassett Avenue South to the west, 20 m to the east along the western termination of Krotz Street West and 20 m to the east along the western termination of Erin Street West. The Site is bound to the north and east by existing residential subdivisions with various housing forms including single-detached, semi-detached and street fronting townhouse dwellings.
3The Appellant is seeking to develop a residential subdivision at the Site including 148 residential lots through of a mixture of the following:
a. 76 single detached dwellings;
b. 32 semi-detached dwellings;
c. 40 townhouse dwelling units;
d. 2 noise barriers;
e. 2 blocks for floodplain protection and stormwater management; and
f. 2 public road extensions and 1 new public road.
4The Appellant filed an application for approval of a plan of subdivision together with an application for zoning by-law amendment, which was deemed complete on September 25, 2020. The Appellant filed an appeal to the Tribunal as a result of the Municipality’s failure to render a decision within the statutory timeframe.
Service of Notice of CMC
5There was no issue with the Service of the Notice of this CMC, and so no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.
Requests for Status
6On consent of the parties, the Tribunal granted the 508818 Ontario Limited (“Erie Meats”) Party status. Erie Meats is the owner of 1400 Mitchell Road South (“EM Property”), lands which abut the Site, and have historically been used as an industrial food processing facility. Erie Meats argues that there is a serious land use compatibility issue with the Appellant’s application as the proposed development of residential homes would be close to the EM Property, raising issues of odour and noise emissions.
MEDIATION AND SETTLEMENT
7The Tribunal explored the possibility of mediation and settlement with the parties. The parties indicated that they may be interested in Tribunal-assisted mediation, and so the Tribunal directed them to contact the Ontario Land Tribunal Strategic Resolutions Advisor.
PROCEDURAL ORDER AND ISSUES LIST
8The Tribunal received and reviewed a draft Procedural Order from the parties. The Tribunal finds it acceptable and the proceedings shall be governed by it (see Schedule 1).
HEARING
9Upon request of the parties, the Tribunal set a 14-day hearing commencing on Monday, September 18, 2023 at 10 a.m. by VH. No further Notice is required for the hearing.
10Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/765631861
Access Code: 765-631-861
11Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
12Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.
13Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the VH to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
14The Tribunal Orders that:
a. The date and particulars of the hearing are set out above;
b. The Procedural Order appended as Schedule 1 shall govern the proceedings;
c. 508818 Ontario Limited is granted Party status;
d. The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.
“S. Mann”
S. MANN
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
SCHEDULE 1
ISSUE DATE: July 27, 2023
CASE NO(S).: OLT-22-003501
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: HJ Donegan Holdings Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To develop a subdivision comprising of single detached, semi-detached and townhouse dwellings Reference Number: ZBA 14-2020 Property Address: Part of Lot 33, Concession 1 Municipality/UT: North Perth/Perth OLT Case No: OLT-22-003501 OLT Lead Case No: OLT-22-003501 OLT Case Name: HJ Donegan Holdings v. North Perth (Municipality)
PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: HJ Donegan Holdings Inc. Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Reference Number: NP 20-20 Property Address: Part of Lot 33, Concession 1 Municipality/UT: North Perth/Perth OLT Case No: OLT-22-003804 OLT Lead Case No: OLT-22-003501
PROCEDURAL ORDER
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
The video hearing will begin on Monday, September 18, 2023 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is 15 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before March 3, 2023 and in accordance with paragraph 21 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before April 7, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before April 21, 2023.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before May 19, 2023 the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 21 below.
On or before May 19, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before September 8, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
On or before June 30, 2023 Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 21 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before September 8, 2023.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 8, 2023 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
This Member is [not] seized.
So orders the Tribunal.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
SUMMARY OF KEY DATES
| DATE | EVENT |
|---|---|
| March 3, 2023 | Exchange of witness lists |
| April 7, 2023 | Meeting of expert witnesses |
| April 21, 2023 | Agreed Statement of Facts |
| May 19, 2023 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| June 30, 2023 | Exchange of Reply Witness Statements (if any) |
| September 8, 2023 | Exchange of visual evidence (if any) |
| September 8, 2023 | Preparation of Joint Document Book |
| September 8, 2023 | Final Work Plan filed with the Tribunal |
| September 18, 2023 | Hearing commences |
ATTACHMENT 1: PARTIES AND PARTICIPANTS
| Appellant/Party | Counsel | Contact |
|---|---|---|
| HJ Donegan Holdings Inc. | Denise Baker | WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 Phone: 416-947-5090 dbaker@weirfoulds.com |
| County of Perth | Steven O’Melia | Miller Thomson LLP 295 Hagey Boulevard, Suite 300 Waterloo, Ontario N2L 6R5 Phone: 519.593.3289 somelia@millerthomson.com |
| Municipality of North Perth | Steven O’Melia | Miller Thomson LLP 295 Hagey Boulevard, Suite 300 Waterloo, Ontario N2L 6R5 Phone: 519.593.3289 somelia@millerthomson.com |
| 508818 Ontario Limited o/a Erie Meats | David Sunday John Doherty |
Gowling WLG LLP 345 King St W Suite #600, Kitchener, ON N2G 0C5 Phone: 519 575 7513/519-575-7518 david.sunday@gowlingwlg.com John.doherty@gowlingwlg.com |
ATTACHMENT 2: ISSUES LIST
Note: the identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing.
Do the applications to amend Zoning By-law No. 6-ZB-1999 and for a proposed Plan of Subdivision (No. NP 20-20) for the property located at Part of Lot 33, Concession 1, in the Municipality of North Perth, in the County of Perth (“Applications”) have regard for matters of provincial interest set out in section 2 of the Planning Act, including s. 2(h), (k), (l), (m), (n), (o), and (p)?
Does the proposed Plan of Subdivision (No. NP 20-20) have regard for matters set out in subsection 51(24) of the Planning Act, including (a), (b), (c), (d), and (g)?
Provincial Policy Statement, 2020
Are the Applications consistent with the Provincial Policy Statement, including policies 1.1.1(a) and (c); 1.1.3.1; 1.1.3.2; 1.1.3.9; 1.2.1; 1.2.3; 1.2.4; 1.2.6; 1.3.1; 1.3.2.1; 1.3.2.2; and 1.3.2.3?
To the extent the Applications propose a sensitive land use adjacent to a major facility, has it been demonstrated:
a. that the sensitive land use has been “planned and developed to avoid, or if avoidance is not possible, mitigate any potential adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and to ensure the long-term operational and economic viability of major facilities in accordance with provincial guidelines, standards and procedures”, as required by policy 1.2.6.1;
b. that the development proposal would protect “the long-term viability of existing or planned industrial, manufacturing or other uses that are vulnerable to encroachment”, as required by policy 1.2.6.2; and
c. in accordance with provincial guidelines, standards and procedures, that:
i. “there is an identified need for the proposed use;
ii. alternative locations for the proposed use have been evaluated and there no reasonable alternative locations;
iii. adverse effects to the proposed sensitive land use are minimized and mitigated; and
iv. potential impacts to industrial, manufacturing or other uses are minimized and mitigated”, all as required by policy 1.2.6.2.
Official Plan for the County of Perth, 2020
Do the Applications conform with the Official Plan for the County of Perth, 2020, including policies 2.3, 3(f), 3(j), 3(k), 3(iv), 6.4.8.6, 6.4.10, 6.5.4.5, 6.6.1.11, 6.6.3.6, 6.6.3.11, 6.6.3.14, 6.6.3.21, 16.2?
Should the Applications be approved, have options for mitigation in accordance with MOE Guideline D-6 “Compatibility Between Industrial Facilities and Sensitive Land Uses” or other measures as deemed appropriate by the local municipality in accordance with policy 6.4.10.1 been considered?
Official Plan for the Listowel Ward, Municipality Of North Perth, 2010
Do the Applications conform with the Official Plan for the Listowel Ward, Municipality Of North Perth, 2010, including policies 3.0, 5.2, 5.4, 5.5.14, 8.2, 8.5.8 8.5.12, 15.2?
In accordance with 8.5.12, are the Applications sufficiently supported by studies dealing with compatibility issues associated with the impact on neighbouring industrial use(s) or are further land use compatibility studies required?
Zoning
- Are the Applications and the requested rezoning in conformity with the applicable Official Plans and compatible with adjacent uses of land?
General
Do the Applications, as proposed, represent good planning?
What are appropriate Draft Plan of Subdivision conditions of approval should the proposed Applications be approved?
Have compatibility issues relating to noise, odour, and air quality been appropriately studied and modelled, potential for adverse effects assessed, and mitigation measures proposed?
Should mitigation measures be secured through requirements for agreements pursuant s. 51(25) of the Planning Act and/or the D-6 Guidelines in the event that the Applications are approved?
Is the residential development proposed by the Applications better suited in alternative locations in North Perth, which could be implemented through the County of Perth’s ongoing Official Plan Comprehensive Review and/or pursuant to PPS policies 1.1.3.9, 1.2.4, 1.3.2.2, and 1.3.2.3?
ATTACHMENT 3: ORDER OF EVIDENCE
H&J Donegan Holdings Inc.
County of Perth
Municipality of North Perth
508818 Ontario Limited o/a Erie Meats
HJ Donegan Holdings Inc., in reply
Attachment 4
Meaning of terms used in the Procedural Order:
A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
direct examination by the party presenting the witness;
direct examination by any party of similar interest, in the manner determined by the Tribunal;
cross-examination by parties of opposite interest;
re-examination by the party presenting the witness; or
another order of examination mutually agreed among the parties or directed by the Tribunal.