Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 04, 2023
CASE NO(S).: OLT-22-004497 OLT-23-000405
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Lisa and Rudy Irish
Subject: Minor Variance
Description: To permit Minor Variances to facilitate the new development and severances on 3 lots
Reference Number: A37-22
Property Address: 292 Main Street West
Municipality/UT: Grimsby/Niagara
OLT Case No.: OLT-22-004497
OLT Lead Case No.: OLT-22-004497
OLT Case Name: Irish v. Grimsby (Town)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Lisa and Rudy Irish
Subject: Consent
Description: To create a vacant new lot facing main street
Reference Number: B03-22
Property Address: 292 Main Street West
Municipality/UT: Grimsby/Niagara
OLT Case No.: OLT-22-004559
OLT Lead Case No.: OLT-22-004497
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Lisa and Rudy Irish
Subject: Consent
Description: To create a second new lot at the rear of the property
Reference Number: B04-22
Property Address: 292 Main Street West
Municipality/UT: Grimsby/Niagara
OLT Case No.: OLT-22-004561
OLT Lead Case No.: OLT-22-004497
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended
Appellant: Lisa and Rudy Irish
Subject: Objection to designation By-law 23-28
Description: “Swallowbeck II” with auxiliary buildings
Property Location: 292 Main Street West
Municipality: Grimsby/Niagara
OLT Case No.: OLT-23-000405
OLT Lead Case No.: OLT-22-004497
BEFORE:
DAVID BROWN
Friday, the 4th,
MEMBER
day of August, 2023
THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on November 14, 2023.
“Euken Lui”
EUKEN LUI REGISTRAR (A)
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.
Attachment A
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 04, 2023
CASE NO(S).: OLT-22-004497 OLT-23-000405
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Lisa and Rudy Irish
Subject: Minor Variance
Description: To permit Minor Variances to facilitate the new development and severances on 3 lots
Reference Number: A37-22
Property Address: 292 Main Street West
Municipality/UT: Grimsby/Niagara
OLT Case No.: OLT-22-004497
OLT Lead Case No.: OLT-22-004497
OLT Case Name: Irish v. Grimsby (Town)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Lisa and Rudy Irish
Subject: Consent
Description: To create a vacant new lot facing main street
Reference Number: B03-22
Property Address: 292 Main Street West
Municipality/UT: Grimsby/Niagara
OLT Case No.: OLT-22-004559
OLT Lead Case No.: OLT-22-004497
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Lisa and Rudy Irish
Subject: Consent
Description: To create a second new lot at the rear of the property
Reference Number: B04-22
Property Address: 292 Main Street West
Municipality/UT: Grimsby/Niagara
OLT Case No.: OLT-22-004561
OLT Lead Case No.: OLT-22-004497
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended
Appellant: Lisa and Rudy Irish
Subject: Objection to designation By-law 23-28
Description: “Swallowbeck II” with auxiliary buildings
Property Location: 292 Main Street West
Municipality: Grimsby/Niagara
OLT Case No.: OLT-23-000405
OLT Lead Case No.: OLT-22-004497
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 November 14, 2023 at 10:00 a.m. through the following video link:
https://meet.goto.com/558205565
Access code: 558-205-565
Parties 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 https://global.gotomeeting.com/install or a web application is available: https://app.gotomeeting.com/home.html
Persons who experience technical difficulties accessing the GoToMeeting application, or who only wish to listen to the event, can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889. The access code is 558-205-565
The parties’ initial estimation for the length of the hearing is 4 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.
A summary of key dates are set out in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2 (see Attachment 5 for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 3. 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 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.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday August 4, 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 Wednesday August 16, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties may prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Thursday August 31, 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 14 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 14 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 14 below.
On or before Monday September 25, 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 23 below.
On or before Monday September 25, 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.
On or before Tuesday October 10, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Wednesday October 25, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence Wednesday October 25, 2023and in accordance with paragraph 23 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Monday November 6, 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 Monday November 6, 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.
ATTACHMENT 1
SUMMARY OF KEY DATES
DATE
EVENT
Friday August 4, 2023
Exchange and filing of witness lists (including names, disciplines, CVs and order to be called)
Wednesday August 16, 2023
Experts Meeting Prior to this Date
Thursday August 31, 2023
File Agreed Statement of Facts
Monday September 25, 2023
Exchange and filing of Witness Statements, Expert Reports and Participant Statements.
Tuesday October 10, 2023
Parties to confirm with the Tribunal if all the reserved hearing dates are still required
Wednesday October 25, 2023
Exchange and filing of Reply Witness Statements
Wednesday October 25, 2023
Exchange of Visual Evidence
Monday November 6, 2023
File Joint Document Book and Hearing Plan
Tuesday November 7, 2023
Notice if witnesses will not give oral evidence
Tuesday November 14, 2023
Hearing Commences
ATTACHMENT 2
LIST OF PARTIES AND PARTICIPANTS
PARTIES
Lisa and Rusy Irish Applicant and Appellant
Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 Scott Snider and Anna Toumanians Tel: (905) 529-3476 Email: ssnider@tmalaw.ca/ Email: atoumanians@tmalaw.ca Counsel for Lisa and Rudy Irish
The Town of Grimsby
Aird & Berlis LLP Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Tom Halinski Tel: 416-865-7767 Email: thalinski@airdberlis.com Counsel for the Town of Grimsby
PARTICIPANTS
Caryn Pushka 290 Main Street West Grimsby, ON. L8P 1J8 Tel: 905-746-2915 Email: carynpushka@icloud.com
ATTACHMENT 3
ISSUES LIST
Overview of Approvals and Refusals for Issues List Interpretation
Requested Minor Variances for Lot 1
To permit a lot coverage of 24%, whereas 15% is permitted (denied)
To permit a rear yard setback of 7.5m, whereas 25% of the lot depth (12.09m) is required (denied)
Requested Minor Variances for Lot 2
To permit a lot frontage of 4.0m, whereas 18.0m is required (denied)
To permit a rear yard setback of 8.7m, whereas 25% of the lot depth (27.82m) is required (approved)
To permit an accessory building to be located closer to the street than the front wall of the dwelling (denied)
Requested Minor Variances for Lot 3
To permit a lot frontage of 4.0m, whereas 18.0m is required (approved)
To permit a rear yard setback of 32.5m, whereas 25% of the lot depth (41.08m) is required (approved)
To permit a minimum setback from the principal structure of 1.1m, where as 1.5m is required (approved)
To permit an accessory building to be located closer to the street than the front wall of the dwelling (approved)
Consent Application B02-22 (Lot 3): approved with conditions (conditions 8 and 14 appealed)
Condition 8: That “Part 12 – Easement in favour of Parts 2-9 for servicing” be denied. All lots are to be individually serviced and contained within their respective property.
Condition 14: That the Owner execute a Heritage Easement Agreement with the Town pursuant to the Ontario Heritage Act to protect those heritage attributes identified as the Edwardian Structure, Landscape, and Auxiliary Buildings as more particularly described in Staff Memorandum, titled Land Division Application -292 Main Street West, dated September 20th, 2022, and register such easement against title to the Property.
Consent Application B03-22 (Lot 1 and Lot 2): denied
Issues List
- Does the proposed development satisfy the four (4) part test for the approval of proposed minor variances 1,2,3 and 5 as identified in section 45(1) of the Planning Act? In particular,
a. Are these requested variances minor?
b. Are these requested minor variances desirable for the appropriate development of the subject lands?
c. Do these requested minor variances maintain the general intent and purpose of the Town of Grimsby Zoning By-Law 14-45?
d. Do these requested minor variances maintain the general intent and purpose of the Town of Grimsby Official plan?
Are minor variances 1,2,3 and 5 and Consent Application B03-22 consistent with the Provincial Policy Statement 2020?
Do requested minor variances 1,2,3 and 5 and Consent Application B03-22 conform with the Growth Plan for the Greater Golden Horseshoe 2020?
Do requested minor variances 1,2,3 and 5 and Consent Application B03-22 conform with the Town of Grimsby Official Plan?
Do requested minor variances 1,2,3 and 5 and Consent Application B03-22 conform with the Niagara Region Official Plan?
Is the requirement in Condition 8 of Consent Application B02-22 that all lots be individually serviced and contained within their respective properties consistent with the Provincial Policy Statement 2020, including the direction that requires the efficient use of land?
Are the heritage attributes listed in Condition 14 of Consent Application B02-22 appropriately identified?
Have the heritage attributes listed in the proposed heritage designation by-law been appropriately determined as having cultural heritage value or interest?
Does the proposed development adequately and appropriately protect cultural heritage resources?
Do the subject lands meet the criteria for designation under the Ontario Heritage Act?
Has the technical appropriateness of the proposed servicing been demonstrated?
Does Consent Application B02-22 have appropriate regard for the matters set out in subsection 51(24) of the Planning Act?
Note 1: Where an issue refers to a provision from the PPS or the Growth Plan or Official Plan(s) in addressing the issue, the planning document from which the provision is taken should be read in its entirety with all relevant provisions being considered. For greater certainty, the identification of a specific provision in an issue does not preclude the parties from referring to other provisions from the same planning document in addressing that issue.
Note 2: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.
ATTACHMENT 4
ORDER OF EVIDENCE
Lisa and Rudy Irish
Town of Grimsby
Lisa and Rudy Irish 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.