Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 26, 2023

CASE NO(S).: OLT-22-003595 (Formerly PL180319)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 2513564 Ontario Limited Subject: Application to amend Zoning By-law No. 5000 - Refusal or neglect of Township of Springwater to make a decision Existing Zoning: Agricultural Proposed Zoning: Residential (R2), Institutional (I), Open Space (OS) and Environmental Protection (EP) Purpose: To permit a proposed plan of subdivision Property Address/Description: 2212 Russell Road Municipality: Township of Springwater Municipality File No.: ZB-2006-003 OLT Case No.: OLT-22-003595 Legacy Case No.: PL180319 OLT Lead Case No.: OLT-22-003595 Legacy Lead Case No.: PL180319 OLT Case Name: 2513564 Ontario Limited v. Springwater (Township)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 2513564 Ontario Limited Subject: Proposed Plan of Subdivision - Failure of Township of Springwater to make a decision Purpose: To permit a proposed plan of subdivision Property Address/Description: 2212 Russell Road Municipality: Township of Springwater Municipality File No.: SU-2007-003 OLT Case No.: OLT-22-003596 Legacy Case No.: PL180320 OLT Lead Case No.: OLT-22-003595 Legacy Lead Case No.: PL180319

Heard: June 28, 2023 by video hearing

APPEARANCES:

Parties Township of Springwater 2513564 Ontario Ltd. County of Simcoe

Counsel Bruce Engell Leo Longo Bruce Engell Marshall Green (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST ON JUNE 28, 2023 AND ORDER OF THE TRIBUNAL

1This first Case Management Conference (“CMC”) was conducted for the appeals by 2513464 Ontario Ltd. (“Applicant”) of the non-decision of the Township of Springwater (“Township”) Council following its applications for a Zoning By-law Amendment and Plan of Subdivision approval to permit the proposed development at 2212 Russell Road (“Subject Property”).

2The purpose of the applications is to permit a development consisting of 215 single detached dwellings, blocks for a park, walking trails, leaching beds and stormwater pond.

3The Subject Property is 39 hectares (“ha”) in size and is currently designated as Agricultural in the Township of Springwater Official Plan. Pursuant to Official Plan Amendment No. 38 (“Midhurst Secondary Plan”), the lands are proposed to be designated as Midhurst Low Density Residential, Midhurst Transitional Residential and Environmental Protection 1.

4The Midhurst Secondary Plan was adopted by the Township on November 3, 2008 and was approved by the County with modifications on October 12, 2011. The Midhurst Secondary Plan was subsequently appealed by the Ministry of Municipal Affairs and Housing (“MMAH”), primarily due to challenging the sufficiency of population growth allocations as required by A Place to Grow, Growth Plan for the Greater Golden Horseshoe, 2017 (“Growth Plan”).

5To accommodate the allocation of the population projections, the Township proposed phasing the growth allocations. To resolve issues, special rules within the Growth Plan were implemented. This addressed some of the issues raised by the MMAH permitting withdrawal of their appeal in part as it related to some 300 ha of land within the settlement area.

6The Affidavit of Service of Natalie Hickey sworn on May 29, 2023 affirming compliance with respect to the Directions as to service of the Notice of this Case Management Conference is marked as Exhibit 1 to this CMC.

7One request for Party status was received by the County of Simcoe and is marked as Exhibit 2 to this CMC. There were no objections from the Applicant or the Township to the request for Party status. The Tribunal finds that the request is reasonable and appropriate. Accordingly, Party status is granted to the County of Simcoe.

8No requests for Participant status were received.

9The Tribunal was presented with a draft Procedural Order (“PO”) prior to the CMC. The Tribunal requested that a revised draft PO be submitted, on consent, to ensure that the issues of all Parties are included and that appropriate dates for the exchange of documents and meetings of expert witnesses are reflected. Counsel for the Applicant was directed to submit the draft PO before Friday, June 30, 2023 to the Case Coordinator.

10Having received the benefit of the revised draft PO prior to the issuance of this Decision and having examined the scoped Issues List (“IL”), the Tribunal deems the PO to be in force and effect to govern the proceedings at the hearing of the merits scheduled below. Any changes to the PO will require approval of the Tribunal.

11On consent of the Parties and based on the discussions during the CMC regarding the scope of the issues, the Tribunal determined it would be reasonable to schedule the hearing for five days.

12A hearing of the merits is scheduled to commence at 10 a.m. on Monday, October 30, 2023 by video hearing.

13Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://meet.goto.com/680885805

Access code: 680-885-805

14Parties 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

15Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is 680-885-805.

16Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

17The Tribunal orders its directions and rulings as set out above.

18The Procedural Order appended to this Decision as Schedule 1 is approved and in force and effect.

19There will be no further notice.

20The Member is not seized and may be spoken to through the Case Coordinator if there are any issues with respect to the implementation of this Order.

“W. Daniel Best”

W. DANIEL BEST 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.

SCHEDULE 1

CASE NO(S).: OLT-22-003595 (Formerly PL180319)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

PROCEDURAL ORDER

The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

The video hearing will begin on October 30, 2023 at 10:00 a.m. at the following location:

https://meet.goto.com/680885805

Access code: 680-885-805

The length of the hearing is 5 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 procedural order deadlines are found in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2. Unless the Tribunal directs otherwise, a person who wishes to become a party or participant at the hearing who is not listed in Attachment 2 must make the necessary motion to the Tribunal. The Tribunal may refuse to grant such status.
A preliminary list of issues to be adjudicated at the hearing are set out in the Issues List attached as Attachment 3. The parties will finalize this Issues List by July 21, 2023. Subsequent to the finalization of the Issues List, there will be no further changes 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 4 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.
The meaning of the terms used in this Procedural Order are identified in Attachment 5.
Any person granted status 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 their intended witnesses. This list must be delivered on or before August 1, 2023, and in accordance with paragraph 23 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 August 8, 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 coordinator on or before August 18, 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 15 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 15 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 15 below.
On or before August 30, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 23 below.
On or before August 30, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before September 20, 2023, and in accordance with paragraph 23 below.
On or before September 29, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
On or before October 4, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before October 13, 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 October 20, 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.

No further notice is required.

So orders the Tribunal.

ATTACHMENT 1 SUMMARY OF DATES

DATE	EVENT
July 21, 2023	Finalize Issues List
August 1, 2023	Exchange of witness lists (names, disciplines, CVs included)
August 8, 2023	Experts meeting prior to this date
August 18, 2023	Agreed Statement of Facts
August 30, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
September 20, 2023	Exchange of response to Witness Statements (if any)
September 29, 2023	Exchange of visual evidence (if any)
October 4, 2023	Deadline to advise OLT of any reductions in hearing time.
October 13, 2023	Finalize & submit Joint Document Book
October 20, 2023	Hearing Plan filed with the Tribunal
October 30, 2023	Hearing commences

ATTACHMENT 2 LIST OF PARTIES AND PARTICIPANTS

PARTIES:

APPLICANT/APPELLANT 2513564 Ontario Limited Leo Longo Aird & Berlis LLP Email: llongo@airdberlis.com

MUNICIPALITY Township of Springwater Bruce Engell WeirFoulds LLP Email: bengell@weirfoulds.com

COUNTY Simcoe County Marshall Green Senior Counsel Email: Marshall.Green@simcoe.ca

PARTICIPANTS: None

ATTACHMENT 3 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/or argument at the hearing.

Simcoe County

Are the municipal streets within the subdivision designed to a municipal standard that will allow for County waste collection vehicles to safely and consistently provide waste collection services to all the residential units?
Has the Owner agreed that County of Simcoe development charges be paid in accordance with the current County of Simcoe Development charges Bylaw and policies in effect at the time of Building Permit issuance?
As Street 1 is a potential future County Road, does the Street 1 right-of-way as shown on the proposed draft plan of subdivision allow for the development of a County Road that would meet the 60km/h design speed?
As Street 1 is a potential future 2-lane County Road with a required design speed of 60km/h,: a. does the proposed Zoning By-law Amendment require a 10m rear yard building and structure setback for all lots and blocks abutting the Street 1 right-of-way as per the County Road Setback By-law? b. are the lots and blocks abutting the Street 1 right-of-way as shown on the draft plan of subdivision deep enough to allow for their development of the proposed detached dwellings, semi-detached dwellings, and street townhouses considering the required 10m rear yard setback? c. have 15m x 15m daylighting triangles with an additional 0.3m reserve been identified on the draft plan of subdivision at the intersections of Gill Road and Russell Road with Street 1? d. have 10m x 10m daylighting triangles with an additional 0.3m reserve been identified on the draft plan of subdivision at all proposed municipal street intersections with Street 1? e. does the edge of the travelled surface of the proposed Street 8 (window street) abutting the south side of Blocks 322 and 323 achieve a setback of 7.5m from the Street 1 right-of-way limit as required by the County of Simcoe Road Setback By-law? f. are there too many intersections proposed with Street 1 that will impact the arterial function of this County Road? g. where access to individual residential lots and blocks abutting Street 1 will not be permitted, has a 0.3 m reserve been identified on the draft plan of subdivision adjacent to all residential lots and blocks abutting the Street 1 right-of-way?

Springwater Township

Does the draft plan conform to the layout of the Craig Road Extension which runs through the lands, intersection locations, geometry of road layout, site triangles, coordination with lands owned by others, and the layout of subdivision lots and uses relative to the Craig Road Extension?
What conditions of draft approval are appropriate to ensure the proper implementation of the Craig Road Extension and the draft plan lands adjacent to it?
What condition of draft approval are appropriate to deal with the availability of municipal services which have not yet been constructed?
Does the draft plan have appropriate park locations and configurations?
Does the draft plan have appropriate crosswalk and pedestrian safety measures to travel to and from park locations and around the draft plan?
Does the draft plan have an appropriate roads layout including any window streets and associated buffers?
Does the draft plan have an appropriate layout and configuration of lots and blocks?
Does the draft plan appropriately integrate the lands owned by others adjacent to the east end of Craig Road in the draft plans? Does the draft plan appropriately relate to the neighbouring subdivision to the south?
Does the stormwater management facility have appropriate landscaping and walking trail connections?
Does the environmental block have appropriate trail connections within the buffer area?
Does the draft plan appropriately address tree and hedgerow preservation measures?
Does the draft plan conform to the requirements of the Official Plan and Secondary Plan and satisfy the Township’s standards and what are the appropriate conditions of draft approval?
What is the appropriate form of zoning by-law to conform with the Official Plan and Secondary Plan and to allow for the implementation of the draft plan?
Should there be a holding symbol in the zoning and what are the appropriate conditions for lifting the holding symbol on the lands?

ATTACHMENT 4 ORDER OF EVIDENCE

Applicant/Appellant 2513564 Ontario Limited
Springwater Township
Simcoe County
Applicant/Appellant 2513564 Ontario Limited, in reply

ATTACHMENT 5

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.

53521445.1

2513564 Ontario Limited v. Springwater (Township), 2023 CanLII 69401

Case Summary