Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
September 26, 2023
CASE NO(S).:
OLT-22-004020
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, C. P. 13, as amended
Appellant:
1077955 Ontario Inc.
Appellant:
2575950 Ontario Inc.
Appellant:
2595286 Ontario Inc.
Appellant:
Carson Reid Homes Ltd. & South Edge Ltd.
Appellant:
Gordon Street Inc.
Appellant:
Ikonkar Group Inc. and 2298667 Ontario Inc.
Appellant:
Neumann Group
Appellant:
Options for Homes
Appellant:
The Corporation of the Township of Puslinch
Appellant:
Thomasfield Homes Limited
Subject:
Proposed Official Plan Amendment No. 79
Municipality:
City of Guelph
OLT Lead Case No.:
OLT-22-004020
OLT Case No.: OLT Case Name:
OLT-22-004020 Carson Reid Homes Ltd. & South Edge Ltd. v. Guelph (City)
Heard:
September 05, 2023 by video hearing
APPEARANCES:
Parties
Counsel
The Corporation of the Township of Puslinch
2021 Gordon Street Inc.,
2093 Gordon Street Inc.,
Michael and Sarah Watt
(“Gordon Street Inc.”)
Herbert Neumann,
Frank Cerniuk,
Sieben Holdings Limited,
H and J Produce Limited,
McEnerny Industries Limited
(“Neumann Group”)
2575950 Ontario Inc.
2595286 Ontario Ltd.,
Pinegrove Developments Inc.
Carson Reid Homes Ltd.
South Edge Ltd.
Ikonkar Group Inc.
2298667 Ontario Inc.
Options for Homes for Non-Profit Corporation (Greater Toronto Area)
1077955 Ontario Inc.
Thomasfield Homes Ltd.
Springfield Golf & Country Club
City of Guelph
Timberworx Custom Homes Inc.
Foundation for the Support of International Medical Training Inc.
T. Sanderson S. O’Melia (in absentia)
J. Meader S. Snider (in absentia)
S. Kaufman (in absentia)
J. Meader S. Snider (in absentia)
S. Kaufman (in absentia)
J. Meader S. Snider (in absentia) S. Kaufman (in absentia)
G. Guiga
K. Thompson
G. Guiga
K. Thompson
G. Guiga
K. Thompson
M. Schuman C. MacDougall (in absentia)
R. Kehar C. deSereville D. Baker (in absentia)
B. O’Callaghan
J. Fraser (in absentia)
P. Pickfield A. Thornton
I. White (Student-At-Law)
J. Minnes
A. Baroudi
MEMORANDUM OF ORAL DECISION DELIVERED BY a. mASON AND C. HARDY ON sEPTEMBER 05, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the third Case Management Conference (“CMC”) with respect to a number of appeals of the adoption by the City of Guelph (“City”) of Official Plan Amendment No. 79 through By-Law No. (2022)-20712 (“OPA 79”) introducing the Clair-Maltby Secondary Plan (“Secondary Plan”). The Secondary Plan deletes existing land use policies and designations that apply to the Clair-Maltby lands, amends schedules and adds a new Section to the City Official Plan (“OP”) that includes the Secondary Plan. The appeals are brought pursuant to s. 17(24) of the Planning Act (“Act”) by entities and property owners affected by OPA 79.
STATUS REPORT AND REVISED PROCEDURAL ORDER
2The Parties advised that eight days of Tribunal facilitated mediation and additional discussions have resulted in a refinement of issues and the exchange of proposed modifications to OPA 79. Nonetheless, the Parties require additional time to develop those discussions and provide a revised Issues List to the Tribunal in advance of the Hearing. As a result, the Parties requested an amended schedule of deadlines to those set out in the original Procedural Order presented to the Tribunal at the second CMC on February 17, 2023, and appended to the Decision issued March 14, 2023 (the “Original PO”).
3The Original PO varies from the standard Tribunal structured Procedural Order by establishing a staggered set of exchange dates. In the Original PO, the Parties agreed, and the Tribunal approved, the exchange of witness statements, expert witness statements and visual evidence for the Appellants and non-appellant Parties to be one month prior to the date set for the City to exchange such documents. This staggered exchange of documents was intended by the Parties to provide flexibility in working towards scoping the Issues List as a result of ongoing settlement discussions while also keeping the proceeding moving forward in furtherance of an efficient and expeditious hearing.
4The City presented a list of new proposed dates maintaining the staggered exchange of documents structure to provide additional time for settlement discussions and refinement of the Issues List.
5The Tribunal heard submissions from Counsel representing various Appellants that it was desirable to revert to the standard Procedural Order structure at this time and set one date for exchange of documents in order to provide the maximum amount of time for settlement discussions to take place before the Hearing.
6Upon hearing the submissions of Counsel, the Tribunal determined that no prejudice would be suffered by any Party by maintaining the staggered approach to document exchange with revised dates. It was determined that this approach provides the most flexibility for the Parties to continue settlement discussions and efforts at refining issues, while providing for efficiency in case preparation leading to a more focused Hearing. The Tribunal directed the City to revise the Original PO to incorporate the new schedule of dates (the “Revised PO”) which were set by the Tribunal at the CMC.
7Following the CMC, the City submitted the Revised PO attached as Schedule 1 to this Decision, which has been reviewed and approved by the Tribunal and shall govern these proceedings.
8Counsel for Foundation for the Support of International Medical Training Inc. advised that it no longer wishes to shelter under Issue 39(a) on the Issues List. Further, it was clarified that it does wish to shelter under Issues 41(a through e inclusive). On the consent of all Parties, the Tribunal directed that the Issues List that will be provided on the date set out in the Revised PO in Schedule 1 shall reflect such clarification.
NEXT HEARING EVENT
9The City requested that the Tribunal schedule a further CMC subsequent to the circulation of the Council approved version of OPA 79. It was submitted that a further CMC will better organize the Hearing and also enable the Parties to bring any settlements or partial settlements forward in advance of the Hearing. There were no objections raised by any Party to the scheduling of a further CMC and various Parties provided submissions in support of this approach.
10The Tribunal agreed to schedule a further CMC by video hearing on Tuesday, December 05, 2023 commencing at 10 a.m.
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:
https://global.gotomeeting.com/join/442599157
Access code: 442-599-157
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: +1 (647) 497-9391 or (Toll-Free) 1-888-455-1389. The access code is 442-599-157.
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 CMC 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
15The Tribunal orders that the Revised Procedural Order set out as Schedule 1 is approved and shall govern the proceedings.
16The Tribunal orders that a fourth Case Management Conference shall be held on December 05, 2023 commencing at 10 a.m. by video hearing as instructed in paragraph 11 above.
17No further notice will be given.
18The Panel Members are not seized.
“A. Mason”
A. MASON
MEMBER
“C. Hardy”
C. HARDY
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.: OLT-22-004020
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, C. P. 13, as amended
Appellant:
1077955 Ontario Inc.
Appellant:
2575950 Ontario Inc.
Appellant:
2595286 Ontario Ltd.
Appellant:
Carson Reid Homes Ltd. & South Edge Ltd.
Appellant:
Gordon Street Inc.
Appellant:
Ikonkar Group Inc. and 2298667 Ontario Inc.
Appellant:
Neumann Group
Appellant:
Options for Homes Non-Profit Corporation (Greater Toronto Area)
Appellant:
The Corporation of the Township of Puslinch
Appellant:
Thomasfield Homes Limited
Subject:
Proposed Official Plan Amendment No. 79
Municipality:
City of Guelph
OLT Lead Case No.:
OLT-22-004020
OLT Case No.: OLT Case Name:
OLT-22-004020 Carson Reid Homes Ltd. & South Edge Ltd. V. Guelph (City)
PROCEDURAL ORDER (Revised)
- 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 January 22, 2024 at 10 a.m. at:
GoToMeeting: https://global.gotomeeting.com/join/442599157
Access Code: 442-599-157
Audio only telephone line: +1(647)497-9391 or 1-888-455-1389
Audio-only access code: 442-599-157
The parties’ initial estimation for the length of the hearing is 8 weeks. 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 Attachment 4 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 seeks to add issues to the issues list 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
On or before October 4, 2023 the City shall provide to the Tribunal and the other parties the City’s proposed modified version of Official Plan Amendment 79.
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 October 13, 2023 and in accordance with paragraph 25 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. Also on or before October 13. 2023 the parties shall file with the Tribunal a revised issues list for hearing.
Expert witnesses in the same field shall have a meeting on or before October 27, 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, and a Preliminary Hearing Plan with the OLT case co-ordinator on or before November 3, 2023. The Preliminary Hearing Plan must set out the proposed order of witness testimony, evidence areas covered by each witness, and preliminary estimates with respect to the other information set out in paragraph 23 below.
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 or 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 14 or 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 14 or 15 below.
On or before November 10, 2023, the appellant parties, and any non-appellant parties, shall provide copies of their witness and expert witness statements and visual evidence to the Corporation of the City of Guelph (the “City”) and to the OLT case co-ordinator and in accordance with paragraph 25 below.
On or before November 30th, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before December 1, 2023, the City shall provide copies of its witness and expert witness statements, and visual evidence, to the appellant parties, non-appellants party and to the OLT case co-ordinator and in accordance with paragraph 25 below.
A fourth case management conference with be convened on December 5, 2023 commencing at 10 a.m. at:
https://global.gotomeeting.com/join/442599157
Access code: 442-599-157
If the appellants and/or non-appellant parties wish to reply to any issues raised in the witness statements of the City , they shall provide reply witness and expert witness statements, and reply visual evidence, to the City and to the OLT case co-ordinator on or before December 22, 2023 in accordance with paragraph 25 below.
On or before December 22, 2023 a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 25 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
If a model will be used as visual evidence, all parties must have a reasonable opportunity to view it before the hearing as of the time of servicing and filing of the visual evidence.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 10, 2024.
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 final hearing plan with the Tribunal on or before January 15, 2024 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 served electronically on the parties and submitted electronically and in hard copy to the Tribunal unless the Tribunal indicates that a hard copy is not required. 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.
SUMMARY OF DATES
DATE
EVENT
October 4, 2023
City to provide modified version of OPA 79 (para.9)
October 13, 2023
Exchange List of Proposed Witnesses (para. 10) Revised Issues List filed with Tribunal (para.10)
October 27, 2023
Deadline for Expert Witness Meeting (para. 11)
November 3, 2023
Deadline for Statement of Agreed Facts and Issues and Preliminary Hearing Plan (para. 11)
November 10, 2023
Deadline for Witness Statements, Expert Witness Statements and visual evidence of Appellants and Non-Appellant Parties (para. 14)
November 30st , 2023
Deadline for advising the Tribunal if all the reserved hearing dates are required (para. 15)
December 1, 2023
Deadline for Witness Statements, Expert Witness Statements and visual evidence of Respondent City (para. 16)
December 5, 2023
4th Case Management Conference
December 22, 2023
Deadline for Reply Witness Statements (if any), Reply Expert Witness Statements (if any) and Reply visual evidence (if any) of Appellant and Non-Appellant Parties, Deadline for Participant Statements (paras. 18 and 19)
January 10, 2024
Deadline for Joint Document Book (paras. 21)
January 15, 2024
Deadline for Final Hearing Plan (para. 24)
January 22, 2024
Commencement of Hearing