Fengate LiUNA Gardens Holdings LP v. Hamilton (City), 2023 CanLII 90016

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 26, 2023

CASE NO(S).: OLT-22-003989

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

Applicant/Appellant: Fengate LiUNA Gardens Holdings LP

Subject: Request to amend the Official Plan – Failure of City of Hamilton to adopt the requested amendments

Existing Designation: Local Commercial

Proposed Designation: “Medium Density Residential 3”, “Low Density Residential 2”, “General Open Space”

Purpose: To permit two 24-storey buildings, two 15-storey buildings, two four-storey stacked townhouse blocks, and five two-storey townhouse blocks

Property Address/Description: 526 Winona Road

Municipality: City of Hamilton

Reference No.: UHOPA-22-007

OLT Lead Case No.: OLT-22-003989

OLT Case No.: OLT-22-003989

OLT Case Name: Fengate LiUNA Gardens Holdings LP v. Hamilton (City)

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

Applicant/Appellant: Fengate LiUNA Gardens Holdings LP

Subject: Application to amend Zoning By-law No. 05-200 – Neglect or Refusal of application by City of Hamilton

Existing Zoning: Community Commercial (C3, 579) Zone

Proposed Zoning: To be determined

Purpose: To permit two 24-storey buildings, two 15-storey buildings, two four-storey stacked townhouse blocks, and five two-storey townhouse blocks

Property Address/Description: 526 Winona Road

Municipality: City of Hamilton

Reference No.: ZAC-22-015

OLT Lead Case No.: OLT-22-003989

OLT Case No.: OLT-22-003990

Heard: September 18, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Fengate LiUNA Gardens Holdings LP

D. Bronskill R. Friedman (Student-at-law)

City of Hamilton

B. Druxbury R. McVean

Robert Morash

N. Smith J. DeMarinis

Charles Puma

Self-Represented*

Dawn Simpson

Self-Represented*

MEMORANDUM OF ORAL DECISION DELIVERED ON SEPTEMBER 18, 2023 BY S. BRAUN AND ORDER OF THE TRIBUNAL

1This was to be the first day of a 10-day hearing to decide appeals by Fengate LiUNA Gardens Holdings LP (“Appellant”) against the failure of the City of Hamilton (“City”) to make decisions on applications for an Official Plan Amendment, Zoning By-law Amendment and Site Plan. Those applications contemplated the redevelopment of the property located at 526 Winona Road with two 24-storey buildings and two 15-storey buildings connected by a two-storey podium, two four-storey stacked townhouse blocks, and five two-storey townhouse blocks.

2On September 11, 2023, the City served and filed a Motion, returnable at the commencement of this hearing seeking, inter alia, an Order adjourning the hearing for a period of at least 30 days to allow the City’s witnesses a reasonable opportunity to review revisions to the development proposal (including changes to the proposed heights, massing and location of the proposed towers as well as reductions to overall unit count and further analysis and reports with respect to the traffic issues raised in the proceeding). The aforementioned revisions were included in Reply witness statements and visual evidence filed by the Appellant as recently as September 6, 2023.

3Paragraph 23 of the Procedural Order (“PO”) governing these proceedings provides:

If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties on or before May 26, 2023. The applicant acknowledges that any revisions to the proposal after that date, without the consent of the parties, may be grounds for the Tribunal to adjourn the hearing.

4On September 14, 2023, the Tribunal received Responding Motion materials from Mr. Morash as well as from the Appellant. Late in the evening on September 15, 2023, the Tribunal received the City’s Reply Motion Record.

5Since at least September 8, 2023, the Parties have been actively engaged in discussions not only with respect to shifting of counsels’ schedules to accommodate a short adjournment, but with respect to the narrowing of issues should a hearing ultimately be required. In the meantime, out of an abundance of caution, the Parties served and filed Motion materials, and arrived at today’s hearing event prepared to argue the Motion if necessary.

6At the outset of the hearing, the Tribunal was advised that, should the calendar permit, a request for a relatively short adjournment would be made on the consent of all Parties and accordingly, the hearing of the City’s Motion be unnecessary. The Tribunal was further advised that, should the adjournment be granted, a 10-day hearing would no longer be necessary and instead, an eight (8) day hearing would be sufficient.

7Rule 17 of the Tribunal’s Rules of Practice and Procedure specifies that hearing events will take place on the date set unless the Tribunal agrees to an adjournment and further specifies that last minute adjournments will only be granted for unavoidable emergencies. In this case, the prospect of a consent adjournment had been raised with the case coordinator in writing on September 11, 2023 but, due to constraints within the Tribunal’s calendar and the schedules of the counsel involved, the Parties were unable to arrive at a mutually agreeable date for a rescheduled hearing.

8Under the circumstances, the Tribunal finds it appropriate to grant the Parties’ request for the following reasons. Firstly, the request now comes on consent and results in a relatively short adjournment which, fortunately, the Tribunal’s calendar is able to accommodate. Secondly, the Tribunal is satisfied that procedural fairness and the public interest are served by allowing witnesses for the City and Mr. Morash an opportunity to thoroughly review and meaningfully respond to the recently revised proposal, as well as allowing the Parties time to engage in further discussions (including, if appropriate, a further meeting of the experts), aimed at settling or narrowing the issues in light of recent revisions.

9Accordingly, the video hearing is rescheduled for the following eight (8) days: November 29, 30, December 1 and 11-15, 2023 at 10 a.m. The Parties shall provide a written update to the assigned case coordinator on or before October 30, 2023, advising of any progress and whether all of the above noted hearing dates will still be required.

10The Tribunal directed the Parties to submit for approval, a revised PO with an updated schedule of deliverable dates, including dates for exchanging and filing of any additional materials in response to the revised proposal, the submission of a revised joint document book and an updated hearing workplan. The Tribunal has received reviewed, and approved same (attached hereto as Schedule 1).

11Parties 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:

Wednesday, November 29, 2023 at 10 a.m. (Three-day Merit Hearing)

GoTo Meeting: https://meet.goto.com/765093501

Access Code: 765-093-501

Audio-only telephone line: +1 (647)-497-9391 Toll-Free: +1 888-455-1389

Audio-only Access Code: 765-093-501

Monday, December 11, 2024, at 10 a.m. (Five-day Merit Hearing)

GoTo Meeting: https://meet.goto.com/765093501

Access Code: 765-093-501

Audio-only telephone line: +1 (647)-497-9391 Toll-Free: 1-888-455-1389

Audio-only access Code: 765-093-501

12Parties 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.

13Persons 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.

14Individuals 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.

15The Tribunal so orders and provides the foregoing directives for the purposes of the case management of these appeals. There will be no further notice and this Member is not seized, but may be available for further case management should the Tribunal’s calendar permit.

16So orders the Tribunal.

“S. Braun”

S. Braun

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. 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-22-003989

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

Applicant/Appellant: Fengate Liuna Gardens Holdings LP

Subject: Request to amend the Official Plan – Failure of City of Hamilton to adopt the requested amendments

Existing Designation: Local Commercial

Proposed Designation: “Medium Density Residential 3”, “Low Density Residential 2”, “General Open Space”

Purpose: To permit two 24-storey buildings, two 15-storey buildings, two 4-storey stacked townhouse blocks, and five 2-storey townhouse blocks

Property Address/Description: 526 Winona Road

Municipality: City of Hamilton

Reference No.: UHOPA-22-007

OLT Lead Case No.: OLT-22-003989

OLT Case No.: OLT-22-003989

OLT Case Name: Fengate Liuna Gardens Holdings LP v. Hamilton (City)

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

Applicant/Appellant: Fengate Liuna Gardens Holdings LP

Subject: Application to amend Zoning By-law No. 05-200 – Neglect or Refusal of application by City of Hamilton

Existing Zoning: Community Commercial (C3, 579) Zone

Proposed Zoning: To be determined

Purpose: To permit two 24-storey buildings, two 15-storey buildings, two 4-storey stacked townhouse blocks, and five 2-storey townhouse blocks

Property Address/Description: 526 Winona Road

Municipality: City of Hamilton

Reference No.: ZAC-22-015

OLT Lead Case No.: OLT-22-003989

OLT Case No.: OLT-22-003990

1. 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

2. The video hearing will begin on November 29, 2023 at 10:00 a.m.

3. The length of the hearing is eight (8) days (November 29-30, December 1, December 11-15). 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.

4. 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).

5. 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.

6. 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.

7. 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.

8. 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

9. 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 June 2, 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.

10. Expert witnesses in the same field shall have a meeting on or before June 23, 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 June 23, 2023.

11. 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.

12. 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.

13. On or before July 21, 2023, the parties shall provide copies of witness statements and/or expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before July 21, 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.

15. On or before August 14, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before September 4, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before October 18, 2023 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare an updated joint document book which shall be shared with the OLT case co-ordinator on or before November 17, 2023.

19. 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.

20. 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.

21. The parties shall update the Tribunal on or before October 30, 2023, as to whether all of the hearing days are required. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 24, 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.

22. 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.

23. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties on or before May 26, 2023. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for the Tribunal to adjourn the hearing.

24. 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.

SUMMARY OF DATES

DATE	EVENT
May 26, 2023	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
June 2, 2023	Exchange of witness lists (names, disciplines and order to be called)
June 23, 2023	Experts Meeting and Agreed Statement of Facts
July 21, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
August 11, 2023	Exchange of Reply Witness Statements (if any)
September 4, 2023	Exchange of visual evidence (if any)
October 18, 2023	Exchange of Any Additional Materials in Response to Revised Plans
October 30, 2023	Parties to Update Tribunal on Length of Hearing
November 17, 2023	Preparation of Joint Document Book
November 24, 2023	Final Work Plan filed with the Tribunal
November 29, 2023	Hearing commences

ATTACHMENT 1 PARTIES/PARTICIPANTS

Parties

1. Fengate Liuna Gardens Holdings LP David Bronskill (416) 597-4299 dbronskill@goodmans.ca

2. City of Hamilton Rachel McVean/Patrick MacDonald (905) 546-2424, x.2622/(905) 546-2424, x. 4708 rachel.mcvean@hamilton.ca/patrick.macdonald@hamilton.ca

3. Robert Morash Jessica De Marinis/Nancy Smith (905) 529-3476, x. 2240/(905) 529-3476, x. 2780 jdemarinis@tmalaw.ca/nsmith@tmalaw.ca

4. Dawn Simpson (289) 442-5720 dawnsimpson.kw@gmail.com

5. Charles Puma (416) 903-0885 cpuma@jempak.com

Participants

1. Anna Chiodo (289) 456-5620 annachiodo17@gmail.com
2. Alfred and Doris Chiu aceng@cogeco.ca
3. Gurtej Chohan (416) 895-4855 g_chohan@hotmail.com
4. Wilfredo Florece (289) 656-1079 w.florece777@gmail.com
5. Joseph Harrison (905) 643-9181 ginsum2018@gmail.com
6. Stefanie Howard (647) 546-4096 stefaniehoward@outlook.com
7. Joze Jerman (905) 928-5519 j.jerman@hotmail.com
8. Mary Katkic (905) 745-3931 mkatkic58@gmail.com
9. Joseph Kozak (905) 510-6408 drjkozak@gmail.com
10. David Kraulis (905) 321-8495 david@kraulis.com
11. Michael Mattina (416) 707-4404 mmattina@outlook.com
12. Mike Milko (905) 928-8565 milkomike4@gmail.com
13. John and Brenda Van Stralen (905) 920-0890 jb@vanstralen@hotmail.com
14. Holly Watts (905) 929-1542 holly3watts@gmail.com
15. Marianne Wilson (416) 700-0485 marriannewilson@outlook.com
16. Carolyn Zizzo (905) 643-1847 crzizzo@gmail.com

ATTACHMENT 2 CONSOLIDATED ISSUES LIST

Issue	Party
Section 2 of the Planning Act

1. Does the proposal have appropriate regard for matters of provincial interest as set out Section 2 of the Planning Act, including but not limited to the matters set out in subsections (f), (h), (l), (o), (p), (q) and (r)? | Robert Morash Provincial Policy Statement (2020) |
2. Is the development proposal consistent with the Provincial Policy Statement (2020), including but not limited to policies 1.1.1, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.6.1, 1.6.4, 1.6.6.1 and 1.6.7? | City, Robert Morash Growth Plan for the Greater Golden Horseshoe (2019) |
3. Does the development proposal conform to the Growth Plan for the Greater Golden Horseshoe (2019, as amended), including but not limited to policies 1.2.1, 2.2.1, 3.1, 3.2.1, 3.2.2, and 5.2.5.8? | City, Robert Morash Urban Hamilton Official Plan (UHOP) |
4. Does the proposal conform to the policies of UHOP, including but not limited to B.2.4, B.3.3.1.1 a) b) c), B.3.3.1.4, B.3.3.1.5, B.3.3.1.8, B.3.3.2, B3.3.2.5, B3.3.2.6, B3.3.2.9, B3.3.3.2, C.4.0, C.4.1, C.4.2.3, C.4.2.5, C.4.2.11, C.4.4, C.4.4.4, C4.5.15, C.5.0, C.5.3.11, C.5.3.13, C.5.3.15, E.1.0, E.2, E.2.6, E.3.0, E.3.6? | City, Robert Morash
5. Does the proposal conform with the policies of UHOP Volume 2 (Urban Lake Shore Area Secondary Plan), including but not limited to policy B.7.3.1.7? Does the proposed development meet the general intent and purpose of the Urban Lakeshore Area Secondary Plan which is for low and medium density development? | City, Robert Morash General Planning Issues |
6. Does the proposal maintain or enhance the character of the area or neighbourhood? Does the proposal cause an unacceptable adverse impact on the use and enjoyment of surrounding properties? | City, Robert Morash, Dawn Simpson, Charles Puma
7. Is the proposal compatible with the neighbourhood and surrounding existing uses? Does the proposal provide appropriate transition in building height? | City, Robert Morash, Dawn Simpson, Charles Puma
8. Are the proposed scale, density, intensification, and height of the proposal appropriate for this location? Is the proposal’s density and height an overdevelopment of the site? Is the proposed density and location compatible with the existing and/or planned form of public transportation? | City, Robert Morash, Dawn Simpson, Charles Puma
9. Does the proposal have any adverse impacts on the surrounding existing development with respect to overlook, privacy, buffering between neighbouring land uses and traffic, and if so, have those impacts been appropriately mitigated? | City, Robert Morash, Dawn Simpson, Charles Puma
10. Does the proposal represent good land use planning and is it in the public interest? | City, Dawn Simpson, Charles Puma, Robert Morash Engineering |
11. Does the proposal satisfy all requirements and comments identified by development approvals related to grading, stormwater management and servicing? Does the proposed sanitary sewer design meet City standards? Has the applicant submitted a revised Functional Servicing Report and Stormwater Management Report with detailed drawings to demonstrate how the Development Engineering comments have been addressed? | City
12. Can stormwater quality and quantity be managed appropriately by the design of the proposal, including but not limited to: a. responsibilities on-site and off site the stormwater conveyance construction costs, enclosing and diversion of the existing tributary including cost and ongoing maintenance in accordance with City’s financial policies b. conveyance of stormwater, including location of outlets for external drainage; c. design and location of the proposed stormwater management; d. site grading, and drainage. | City
13. Does the proposed lot configuration, including road network, support the City’s grading and drainage requirements? | City
14. Are there impacts to the sanitary system? Can the proposal be accommodated by existing water and wastewater services? | City, Robert Morash Transportation |
15. Are there impacts to the road network? Would the proposal result in a functional road network to safely support the anticipated traffic associated with the development by preventing or satisfactorily mitigating adverse impacts, including but not limited to access, road infrastructure improvements, traffic control, site layout, pedestrian facilities and vehicle maneuverability? | City
16. Is the amount of parking proposed appropriate, including but not limited to short-term vehicle and cycling spaces? Will the proposal create adverse impacts to on-street parking? | Robert Morash, Dawn Simpson, Charles Puma
17. Are additional sidewalks and cycling lanes required in the vicinity of the subject lands to ensure safety for future residents of the proposal and residents in the vicinity of the proposal? | Robert Morash, Dawn Simpson, Charles Puma Environmental Concerns |
18. Will the proposal have a negative effect on the habits of migratory birds? Does the proposal have a negative impact to the environment or to any other species | Dawn Simpson, Charles Puma
19. Does the height of the proposal create adverse effects on weather/wind patterns or vortices which could negatively impact the area, the neighbourhoods and/or farmlands? | Dawn Simpson, Charles Puma Proposed Zoning By-law Amendment |
20. Are the proposed site-specific performance standards compatible and in keeping with the intent of the Zoning By-law, including Zoning By-law 05-200 and Stoney Creek Zoning By-law 3692-92? Are the proposed site-specific performance standards compatible with Zoning By-law 05-2055 and in keeping with the intent of the Stoney Creek Zoning By-law 3692-92, including but not limited to short-term vehicle and cycling spaces and vehicle parking ratios? | City, Dawn Simpson, Charles Puma
21. Does the proposed zoning by-law amendment sufficiently regulate matters of built form, including height and density? | Robert Morash, Dawn Simpson, Charles Puma Site Plan Matters (City Only) |
22. Is the proposed site plan application premature, pending the outcome of the official plan amendment and zoning by-law amendment appeals? | City
23. Does the proposed site plan application require any modifications to satisfy the City’s plans, by-laws, and guidelines, including but not limited to the UHOP, the City’s Site Plan Guidelines, Engineering Guidelines, applicable comments received to date from City departments, and the implementing official plan and zoning by-law amendments proposed by the appellant that is under appeal? If so, what are the appropriate conditions of site plan approval? | City

ATTACHMENT 3 ORDER OF EVIDENCE

1. Fengate Liuna Gardens Holdings LP

3. City of Hamilton

5. Robert Morash

7. Dawn Simpson/Charles Puma

9. Fengate Liuna Gardens Holdings LP, in reply (if any)

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.