Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 22, 2023
CASE NO(S).: OLT-22-004820
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1063755 Ontario Ltd.
Appellant: Municipality of West Grey
Subject: Proposed Official Plan Amendment No. 11
Description: To implement the 2021 Growth Management Strategy and additional housekeeping changes
Property Address: Grey County Wide Amendment
Municipality/UT: County of Grey
Reference Number: Grey County OPA No.11; Grey County By-law 5145-22
OLT Case No.: OLT-22-004820
OLT Lead Case No.: OLT-22-004820
OLT Case Name: 1063755 Ontario Ltd v. Grey (County)
Heard: September 14, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1063755 Ontario Limited (Magwood Family Farms) | M. Goldstein |
| Municipality of West Grey | L. Longo |
| County of Grey | S. Hahn, M. Hodgson |
| Town of Hanover | D. Koev, S. D’Agostino (in absentia) |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON SEPTEMBER 14, 2023 AND ORDER OF THE TRIBUNAL
1This was the second Case Management Conference (“CMC”) held for the purposes of further organizing appeals by 1063755 Ontario Limited (“Magwood Family Farms”) and the Municipality of West Grey, against the decision of the County of Grey to adopt Official Plan Amendment No.11 which prescribes policies with respect to the direction of future growth.
2The Tribunal raised the issue of opportunities for settlement, including the use of Tribunal-assisted mediation, and was advised that the Parties are open to pursuing either informal discussions or formal mediation, and are aware of how to avail themselves of the resource of Tribunal-assisted mediation should they wish to do so in the future.
3At the request of the Parties, the Tribunal scheduled a 10-day video hearing which will commence on Monday, May 27, 2024 at 10 a.m.
4Parties 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:
GoToMeeting: https://meet.goto.com/677087597
Access Code: 677-087-597
5Parties 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.
6Persons 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 as indicated above.
7Individuals 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.
8The Parties submitted a draft Procedural Order (“PO”) and Issues List in advance of the CMC. The Tribunal reviewed same and directed minor revisions thereto. In accordance with the Tribunal’s directions, the Parties filed a revised PO on consent, which is now approved as contained in Attachment 1, and which shall govern these proceedings leading up to and including the scheduled hearing.
9The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.
10There will be no further notice and this Member is not seized but may be available for case management.
11The Tribunal Orders its directions as given above.
“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 (“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-22-004820
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1063755 Ontario Ltd.
Appellant: Municipality of West Grey
Subject: Proposed Official Plan Amendment No. 11
Description: To implement the 2021 Growth Management Strategy and additional housekeeping changes
Property Address: Grey County Wide
Municipality/UT: County of Grey
Reference Number: Grey County OPA #11; Grey County By-law 5145-22
OLT Case No.: OLT-22-004820
OLT Lead Case No.: OLT-22-004820
OLT Case Name: 1063755 Ontario Ltd v. Grey (County)
- 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 May 27, 2024 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is 10 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 identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms). The Town of Hanover is a Non-Appellant Party pursuant to Rule 8.3 of the Ontario Land Tribunal’s Rules of Practice and Procedure.
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 February 13, 2024 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 March 14, 2024 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 March 22, 2024.
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 April 3, 2024, 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 April 3, 2024, 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 April 23, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before May 17, 2024, 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 May 3, 2024, 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 May 17, 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 preliminary hearing plan with the Tribunal on or before May 17, 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 submitted electronically. 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.
ATTACHMENT 1 Parties and Participants
County of Grey Barristonlaw LLP 151 Ferris Lane, Suite 202 Barrie, ON, L4M 6C1 Sarah Hahn SHahn@barristonlaw.com Matthew J. Hodgson MHodgson@barristonlaw.com
The Town of Hanover (Non-Appellant Party) Thomson, Rogers Suite 3100, 390 Bay Street Toronto, ON M5H 1W2 Stephen J. D’Agostino sdagostino@trlaw.com
Municipality of West Grey Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Leo Longo llongo@airdberlis.com
1063755 Ontario Ltd. 66 Wellington St W Suite 4100, Toronto, ON M5K 1B7 Denise Baker dbaker@weirfoulds.com Micah Goldstein mgoldstein@weirfoulds.com
ATTACHMENT 2- ISSUES LISTS
1063755 Ontario Ltd.
Is it intended that the proposed Future Secondary Plan Areas become settlement areas? If so, is policy 3.4 (21) appropriate as it applies to the lands owned by 1063755 Ontario Limited given the existing and continuing livestock operation?
What is intended by policy 3.4.3? What are “win-win agreements”? How will landowners be considered in the context of “mutually beneficial or win-win agreements”? What is the test to consider “where feasible”?
Given the proposed expanded Future Secondary Plan Areas, is it appropriate to allow municipalities to consider densities that are less than 25 units per net hectare for Primary Settlement Areas as set out in policy 3.5(5)?
Is policy 3.5(5) which only requires overall minimum residential densities for new development of 25 units per net hectare in Primary Settlement Areas appropriate and is it consistent with the policies of the Provincial Policy Statement including but not limited to policies 1.1.1, 1.1.2, 1.1.3, 1.1.4, 1.1.5, 1.2, 2.3, 4.0?
Is the identification of Future Secondary Plan Areas in policy 3.5.1(3) and as shown on Schedule A-5 as lands subject to Official Plan Amendment (with a notation that they are subject to policy 3.5.1(4)), consistent with the Provincial Policy Statement including but not limited to policies 1.1.1, 1.1.2, 1.1.3, 1.1.4, 1.1.5, 1.2, 2.3, 4.0?
Does the identification of additional Future Secondary Plan Areas in policy 3.5.1(3) and as shown on Schedule A-5 as lands subject to Official Plan Amendment (with a notation that they are subject to policy 3.5.1(4)) conform to the County’s Official Plan and in particular the policies in 3.3, 3.4, 3.5, 3.5.1, and the definition of Comprehensive Review?
Where in Official Plan Amendment 11 is policy 3.5.1(4) which is referred to on Schedule A-5 as pertaining to the new Future Secondary Plan Areas? If such a policy does not exist, is it appropriate that Schedule A-5 refer to such a policy?
What is the justification for the deletion of policy 3.5.1(3)(b) which reads: “Any lands to be added to the “Hanover / West Grey Secondary Plan” shall not be designated or zoned for development purposes” from the Official Plan through Official Plan 11? Is such a deletion appropriate?
Municipality of West Grey
Were OPA 11 Items 7 & 47 an outcome of the County’s 2021 Growth Management Strategy?
Can OPA 11 Items 7 & 47’s creation of two new Future Secondary Plan areas be considered a “housekeeping” amendment?
Are OPA 11 Items 7 & 47 inconsistent with: a. ss. 1.1(d) & (e) and 2(m) of the Planning Act? b. Part 1 of the PPS 2020? c. Part V, ss. 1.1.3.8, 1.2.1 and 1.2.4 of the PPS 2020?
Did inserting two new Future Secondary Plan areas into County OPA 11, based solely on the Town of Hanover’s study, constitute required transparent public engagement in this case?
Are OPA 11 Items 7 & 47 premature: a. in the absence of servicing agreements? b. in the absence of meaningful public engagement? c. based solely on the Town of Hanover’s independent Growth Management Study?
Should the two new Future Secondary Plan areas have been the subject of a discrete County OPA process with distinct public notification and engagement opportunities?
ATTACHMENT 3 – ORDER OF EVIDENCE
- County of Grey
- Town of Hanover
- Municipality of West Grey
- 1063755 Ontario Ltd.
- County of Grey in Reply
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.