Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 22, 2023

CASE NO(S).: OLT-23-000261

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

Applicant and Appellant: Branthaven Creditview Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the construction of 60 single-detached residential dwelling units Reference Number: OZS-2022-0014 Property Address: 8940 Creditview Road Municipality/UT: Brampton/Peel OLT Case No.: OLT-23-000261 OLT Lead Case No.: OLT-23-000261 OLT Case Name: Branthaven Creditview lnc. v. Brampton (City)

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

Applicant and Appellant: Branthaven Creditview Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the construction of 60 single-detached residential dwelling units Reference Number: OZS-2022-0014 Property Address: 8940 Creditview Road Municipality/UT: Brampton/Peel OLT Case No.: OLT-23-000262 OLT Lead Case No.: OLT-23-000261

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

Applicant and Appellant: Branthaven Creditview Inc. Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit the construction of 60 single-detached residential dwelling units Reference Number: 21T-22001B Property Address: 8940 Creditview Road Municipality/UT: Brampton/Peel OLT Case No.: OLT-23-000263 OLT Lead Case No.: OLT-23-000261

Heard: August 11, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Branthaven Creditview Inc. (“Appellant”)	Nancy Smith
City of Brampton (“City”)	Brandon Carter
Kaneff Properties Limited	Mark Flowers
Credit Valley Residents Association (“CVRA”)	Jasbir Singh*

MEMORANDUM OF ORAL DECISION DELIVERED BY KURTIS SMITH ON AUGUST 11, 2023 AND ORDER OF THE TRIBUNAL

1This was the second Case Management Conference (“CMC”) pertaining to the appeals brought forward by the Appellant. The background of this matter was summarized by Member D. Arnold’s decision issued July 27, 2023.

2The purpose of the CMC was to approve the Procedural Order (“PO”) and Issues List (“IL”) to govern the proceedings leading up to and including the Hearing of the merits that has been previously scheduled by Member D. Arnold for November 15, 2023.

3Prior to the CMC the Draft PO and IL were circulated to the Parties. With the exception of the CVRA, all Parties found the Draft PO and IL acceptable.

4Days prior to the CMC, the CVRA provided the Parties with seven “discussion points which they considered issues for inclusion in the IL. Mr. Carter and Ms. Smith, Counsel for the City and Appellant respectively, rephrased those concern into acceptable broad issues for inclusion in the IL. The representatives of the CVRA reviewed their IL during the CMC and brought forward two additional concerns.

5Following a recess for the Parties to converse, all Parties consented to the amended Draft PO and IL as orally stated and visually presented during the CMC.

6Mr. Carter, Counsel for the City, communicated to the Tribunal that leading up to the Merit Hearing he expects City staff will have an opportunity to review the forthcoming engineering report and may be in a position to strike a portion of the City’s IL.

7The Tribunal stressed the need for all Parties and Participants to comprehend the PO & IL and the importance of upholding the timelines and requirements therein.

8Subsequent to the conclusion of the CMC, the Tribunal received and reviewed the finalized PO and IL from the Parties as discussed in paragraph [5] above. The Tribunal finds the PO and IL are acceptable and attached the PO, including the IL to this Order, as Schedule 1.

ORDER

9THE TRIBUNAL ORDERS THAT the Procedural Order appended as Schedule 1 to this Decision shall govern this proceeding.

"Kurtis Smith"

KURTIS SMITH 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

OLT Lead Case No.: OLT-23-000261

ONTARIO LAND TRIBUNAL

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

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 Partial Settlement Hearing (“Hearing”)

The video hearing will begin on November 15, 2023 at 10:00 a.m., for a period of 3 days ending on November 17, 2023, at:

GoTo Meeting: https://meet.goto.com/680885805 Access code: 680-885-805 Audio-only line: +1 (647) 497-9373 or (Toll Free) 1-888-299-1889 Audio-only access code: 680-885-805

The parties’ initial estimation for the length of the hearing is three (3) 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 September 8, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before September 22, 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 September 29, 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 September 29, 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 22 below.
On or before September 29, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before October 11, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before October 20, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
On or before October 20, 2023 the parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 3, 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 November 7, 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 Rule 7.
A summary of the filing dates is attached as Attachment 4.
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.

ATTACHMENT 1

PARTIES TO THE HEARING:

Branthaven Creditview Inc. Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 Nancy Smith Tel: (905) 529-3476 Email: nsmith@tmalaw.ca
City of Brampton Duncan, Linton LLP 45 Erb Street East Waterloo, ON N2J 1L7 Peter Hertz Tel: (519) 886-3340 Email: phertz@kwlaw.net Brandon Carter Email: bcarter@kwlaw.net
Kaneff Properties Limited Davies Howe LLP 425 Adelaide Street W. Toronto, ON M5V 3C1 Mark Flowers Tel: (416) 263-4513 Email: markf@davieshowe.com
Credit Valley Residents Association Jasbir Singh Tel: (647) 284-3021 Email: creditvalleyresidents@gmail.com jasbirsinghspore@gmail.com

PARTICIPANTS TO THE HEARING:

Satinder Malhotra Email: satinderk75@gmail.com
Nash Jeevrai Email: nash@goldcon.com
John Brennen Email: j.brennen@redstoneproductions.com
Sachin Kankran Email: sachin.kankran@gmail.com
Cheryl and Francis Roy Email: roy.cheryl@gmail.com Email: francis.roy@rogers.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 or relevant to the determination at the hearing will be matter of evidence and argument at the hearing.[1]

Kaneff Properties Limited (“Kaneff”)

Should the proposed draft plan of subdivision be revised to provide for one or more future road connections from proposed Street A to the Kaneff lands located to the west of the subject property to accommodate future residential development on a portion of the existing golf course?
Does the proposed east-west extension of Classic Drive at the northern limit of the proposed draft plan of subdivision require a portion of the Kaneff lands to the north and, if so, is it premature to approve all or a portion of the proposed development in the absence of the applicant securing such lands or otherwise making appropriate arrangements with Kaneff for the use of such lands? Alternatively, should the requirement for the proposed road extension be included in one or more conditions of draft plan approval, conditions for the issuance of an OLT Order and/or holding provisions in the zoning by-law amendment and, if so, what are the appropriate conditions and/or holding provisions?
Does the proposed development rely upon one or more easements for stormwater drainage from the subject property to the existing pond on the Kaneff lands to the west and, if so, is it premature to approve all or a portion of the proposed development in the absence of the applicant securing such easement(s) or otherwise making appropriate arrangements with Kaneff for the use of such lands? Alternatively, should the requirement to obtain such easement(s) or to make other appropriate arrangements for stormwater drainage be included in one or more conditions of draft plan approval, conditions for the issuance of an OLT Order and/or holding provisions in the zoning by-law amendment and, if so, what are the appropriate conditions and/or holding provisions?
Does the proposed development reflect a coordinated, integrated and comprehensive planning approach in relation to future residential development on the adjacent Kaneff lands to the north and west of the subject property?

Credit Valley Residents Association

Is the Branthaven Drainage System designed to adequately drain and not affect the already overwhelmed Lionhead Executive Estates Culvert Drainage System?
Are the proposed lot sizes appropriate?
Is a vegetation buffer appropriate along the rear yards of the existing Creditview Road lots that abut the proposed Classic Drive? If so, what should be provided? Has the potential use of retaining walls been satisfactorily addressed regarding the interaction with existing vegetation?
Have the grading considerations been satisfactorily addressed regarding the interaction with the existing lots? In particular, has the potential use of retaining walls been satisfactorily addressed regarding the interaction with the existing lots? Further, and in particular, has the potential creation of walk-out basements been satisfactorily addressed?
Has the adequacy of school sites been properly addressed?
Has parkland been properly addressed?

City of Brampton

Are there any issues arising from the technical review of the Draft Plan of Subdivision that necessitate adjustments, including:

a. has a satisfactory functional servicing and stormwater management report (the “FSR”) been provided;

b. have drainage patterns and related considerations been satisfactorily considered and addressed; and,

c. are the proposed grades and grading plan feasible?

What planning tools and agreements are needed and may be utilized to secure implementation of the recommendations of the FSR and any necessary adjustments arising from the technical review of the Draft Plan of Subdivision?

ATTACHMENT 3

ORDER OF EVIDENCE

Branthaven Creditview Inc.
City of Brampton
Kaneff Properties Limited
Credit Valley Residents Association
Branthaven Creditview Inc. (in reply, if required)

ATTACHMENT 4

SUMMARY OF FILING DATES

EVENT	DATE
List of Witness	September 8, 2023
Expert Witness Meetings	September 22, 2023
Agreed Statement of Facts & Remaining Issues	September 29, 2023
Witness and Expert Witness Statements	September 29, 2023
Reply Witness Statements	October 20, 2023
Visual Evidence	October 20, 2023
Joint Document Book	November 3, 2023
Hearing Plan	November 7, 2023
OLT Hearing Commences	November 15, 2023

Attachment to Sample Procedural Order

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.

1Note 1: Where an issue refers to a provision from the PPS or either of the Official Plans 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 parties reserve their rights to participate in the hearing relating to issues raised by other parties.

Branthaven Creditview Inc. v. Brampton (City), 2023 CanLII 78862

Case Summary