Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 15, 2024

CASE NO(S).: OLT-24-000725

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

Applicant and Appellant: CP REIT Ontario Properties Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the rezoning of the Subject Property from "Highway Commercial CH-22" to "Highway Commercial (CH-*)"

Reference Number: Z22-23

Property Address: 13311 Loyalist Parkway

Municipality/UT: Prince Edward

OLT Case No.: OLT-24-000725

OLT Lead Case No.: OLT-24-000725

OLT Case Name: CP REIT Ontario Properties Limited v. Prince Edward (County)

Heard: October 4, 2024 by video hearing

APPEARANCES:

Parties Counsel

CP REIT Ontario Properties Limited (“Appellant / Applicant”) Pitman Patterson, and Katie Butler

Prince Edward County (“County”) Jennifer Savini, and Daniel Querques (student-at-law)

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON October 4, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting an appeal by CP REIT Ontario Properties Limited. The appeal arises following a non-decision by the County. The purpose of the proposed Zoning By-law Amendment (“ZBA”) is to rezone the subject property (Municipally known as 13311 Loyalist Parkway) from "Highway Commercial CH-22" to "Highway Commercial (CH-*)" to permit the construction of two new commercial buildings on the property. The current zoning is site-specific, allowing only the current grocery store and gas bar on the property.

Service of Notice of CMC

2There is no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal is in receipt of the Affidavit of Service, which is marked as Exhibit 1.

Requests for Status

3No one attended the CMC seeking either Party or Participant status.

MEDIATION AND SETTLEMENT

4Through the course of discussing prospects of settlement, the parties informed the Tribunal that the Applicant is currently attempting to file a corresponding Site Plan Approval (“SPA”) application, but the County has so far refused to accept it, claiming that it cannot be considered in advance of the approval of the present ZBA application. On this basis, the County is declining to deem the SPA application ‘complete’. There was some discussion about the soundness of the County’s position on this issue. The Tribunal confirmed that the SPA matter is not currently before the Tribunal.

5Within this context, the parties informed the Tribunal that they are jointly seeking Tribunal-led mediation, in hopes of resolving both the ZBA appeal and the SPA issues. They further confirmed that they will keep the Tribunal apprised of any developments on this front.

PROCEDURAL ORDER AND ISSUES LIST

6In the event that the present appeal remains unresolved, the Tribunal received and reviewed a draft Procedural Order (“PO”) from the Parties. The Tribunal finds it acceptable and the proceedings shall be governed by it (see Attachment 1).

HEARING

7Upon request of the Parties, the Tribunal set a five-day hearing commencing on Monday, April 28, 2025, at 10 a.m. by video hearing. No further Notice is required for the hearing.

https://global.gotomeeting.com/join/909787981

Access code: 909-787-981

8Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay, and log into the video hearing no later than 15 minutes before the start of the event to test their video and audio connections. The desktop application can be downloaded at GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html

9Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-455-1389 or +1 (647) 497-9391. The access code is as indicated above.

10Individuals 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.

ORDER

11The Tribunal Orders that:

1. The date and particulars of the hearing are set out above; and

2. The Procedural Order appended as Attachment 1 shall govern the proceedings.

12The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS

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.

Attachment 1

CASE NO.: OLT-24-000725

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

Applicant and Appellant: CP REIT Ontario Properties Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the rezoning of the Subject Property from "Highway Commercial CH-22" to "Highway Commercial (CH-*)"

Reference Number: Z22-23

Property Address: 13311 Loyalist Parkway

Municipality/UT: Prince Edward

OLT Case No.: OLT-24-000725

OLT Lead Case No.: OLT-24-000725

OLT Case Name: CP REIT Ontario Properties Limited v. Prince Edward (County)

PROCEDURAL ORDER

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 April 28, 2025 at 10:00 a.m. and end on May 2, 2025, on GoTo meeting.

3. The parties’ initial estimation for the length of the hearing is five (5) 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.

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 Friday, January 17, 2025 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 Monday, February 3, 2025 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 Wednesday, February 12, 2025.

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 Wednesday, March 19, 2025, 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.

14. On or before Wednesday, March 19, 2025, 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 Monday, March 24, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Thursday, April 17, 2025, 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 Wednesday, April 2, 2025 after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Thursday, April 17, 2025.

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 14 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 6 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Tuesday, April 22, 2025 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. 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. 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.

24. A summary of the key dates in this Order is set out at Attachment 4.

This Member is [not] seized.

So orders the Tribunal.

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.

Attachment 1 – Parties and Participants

Appellant/Applicant (CP REIT Ontario Properties Limited)

Represented by:

Borden Ladner Gervais LLP Bay Adelaide Centre, East Tower 22 Adelaide St. W. Toronto, ON M5H 4E3

Pitman Patterson 416-367-6109 ppatterson@blg.com

Katie Butler 416-367-6353 kbutler@blg.com

Approval Authority (Prince Edward County)

Represented by:

Templeman LLP 205 Dundas Street East Suite 200 P.O. Box 234 Belleville, ON K8N 5A2

Jennifer Savini jsavini@tmlegal.ca

Attachment 2 – Issues List

In respect of the application to amend the zoning by-law from “Highway Commercial CH-22” to a site-specific “Highway Commercial (CH-*)” (the “ZBA”) at 13311 Loyalist Parkway, Prince Edward County (the “Subject Property”):

Consolidated Issues List

1. Does the ZBA have regard to the matters of provincial interest such as subsections 2 (f), (h), (k), (l), (p), and (r) of the Planning Act?

2. If applicable, is the ZBA consistent with the Provincial Policy Statement, 2020 (the “PPS 2020”), including, without limitation, the vision, the definition of “Settlement Areas”, and the following Policies?

   a. 1.1.1(a); b. 1.1.3.2, 1.1.3.4 and 1.1.3.6; and c. 1.3.1(a).

3. If applicable, is the ZBA consistent with the Provincial Planning Statement, 2024 (the “PPS 2024”), including, without limitation, the vision, the definition of “Settlement Areas”, and the following Policies?

   a. 2.1.4; b. 2.1.6, including without limitation 2.1.6(a); c. 2.3.1.2; d. 2.3.1.3; e. 2.4.1.2; f. 2.4.1.3; g. 2.8.1.1(a), (b), and (d); h. 3.1.1 i. 3.1.3 j. 3.1.4 k. 3.2.1 l. 3.2.2 m. 3.2.3 n. 3.3.1 o. 3.3.3 p. 3.6.8; and q. 3.9.

4. Does the ZBA conform with the County’s Official Plan (2021) (“COP”), including, without limitation, the following?

   a. The “Urban Centre” designation (implemented by the Secondary Plan); b. 3.3.7; c. 3.4.1; d. 3.4.2; e. 3.4.3; f. 3.4.5; g. 3.4.5.1; h. 4.1.1; i. 4.3.2.1; j. 5.0.2; k. 5.1.3.3; l. 5.1.5.6; and m. 5.1.5.7.

5. Does the ZBA conform with the Picton Urban Centre Secondary Plan, 2015 (the “Secondary Plan”), including without limitation the following?

   a. The COP “Urban Centre” designation (implemented by the Secondary Plan); b. The “Town Gateway Area” Secondary Plan designation; c. 2.5; d. 3.1; e. 4.1;

6. With respect to the County Zoning By-law (1816-2006):

   a. Is the ZBA harmonious with the balance of the County Zoning By-law (1816-2006)? b. Does the ZBA conform with the County Zoning By-law (1816-2006) including without limitation the following?

   i. 21.3.4; and ii. 21.3.10.

7. Does the ZBA represent good planning?

8. Is the proposed rezoning premature, pending confirmation of the location of the collector road proposed to traverse the Subject Property?

NOTE: Identification of an issue on this list does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

Attachment 3 – Order of Evidence

1. Appellant/Applicant
2. County
3. Appellant’s/Applicant’s Reply, if any

Attachment 4 – Summary of Key Dates in Procedural Order

Step in Proceeding Date to be completed

Witness List (with CVs) Friday, January 17, 2025 (101 days prior to the start of the hearing)

Last Day for Experts Meeting Monday, February 3, 2025 (84 days prior to the start of the hearing)

Agreed Statement of Facts and Issues Wednesday, February 12, 2025 (75 days prior to the start of the hearing)

Witness, Expert and Participant Statements Exchange Wednesday, March 19, 2025 (40 days prior to the start of the hearing)

Notify Tribunal if all hearing dates are required Monday, March 24, 2025 (at least 35 days prior to the start of the hearing)

Reply Witness, Expert and Participant Statements Exchange Wednesday, April 2, 2025 (26 days prior to the start of the hearing)

Last Day to change written evidence (by motion) Monday, April 14, 2025 (at least 14 days prior to the start of the hearing)

Joint Document Book & Visual Evidence Thursday, April 17, 2025 (at least 11 days prior to the start of the hearing)

Last Day for Party to Notify if Submitted Written Evidence Not Forming Part of Record Tuesday, April 22, 2025 (at least 6 days prior to the start of the hearing)

Preliminary Hearing Plan Tuesday, April 22, 2025 (at least 6 days prior to the start of the hearing)

Hearing April 28, 2025 – May 2, 2025 (5 days)