Canadian National Railway Company v. Burlington (City), 2024 CanLII 102828

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 16, 2024

CASE NO(S).: OLT-24-000801

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Canadian National Railway Company

Subject: Proposed Official Plan Amendment No. 142

Description: To permit a mixed-use development consisting of three high-rise buildings with a maximum of 30, 32, and 34 storeys with 1165 residential units

Reference Number: 505-01/22

Property Address: 1120 Cooke Boulevard

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-24-000801

OLT Lead Case No.: OLT-24-000801

OLT Case Name: Canadian National Railway Company v. Burlington (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Canadian National Railway Company

Subject: By-law No. 2020.472

Description: To permit a mixed-use development consisting of three high-rise buildings with a maximum of 30, 32, and 34 storeys with 1165 residential units.

Reference Number: 520-01/22

Property Address: 1120 Cooke Boulevard

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-24-000800

OLT Lead Case No.: OLT-24-000801

OLT Case Name: Canadian National Railway Company v. Burlington (City)

Heard: October 2, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Adi Developments (Masonry) Inc. (Applicant)

Raj Kehar
Denise Baker (in absentia)

Canadian National Railway Company (Appellant)

Max Reedijik
Isaish Banach (in absentia)
Katarzyna Sliwa (in absentia)

City of Burlington

Andrea Peebles
Brittany Maione

MEMORANDUM OF ORAL DECISION DELIVERED BY J. Innis ON October 2, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting Appeals by Canadian National Railway Company (“CN Rail”). The Appeals arise following the City of Burlington’s (“City”) decision to approve an Official Plan Amendment and Zoning By-law Amendment that would facilitate a mixed-use development consisting of three high-rise buildings with a maximum of 30, 32 and 34 storeys, with a total of 1165 residential units, on lands known municipally as 1120 Cooke Boulevard (“Subject 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

3Counsel for the Alinea Land Corporation and P&L Livestock Limited (collectively known as “Alinea Group”) attended the CMC seeking Party status. The Alinea Group is the owner of 1200 King Road (“King Road Lands”), which are located in close proximity to the Subject Property and the CN Rail Aldershot freight rail yard. There are currently active Appeals and Applications before the City in regard to the King Road Lands. Counsel for the Alinea Group sought Party status, as factual and expert opinion evidence may arise during this appeal that could directly impact the King Road Lands matter. Both the City and the Applicant supported the request for Party status, and in addition, the City raised potential concerns regarding res judicata.

4CN Rail objected to the Party status request, stating that the Alinea Group does not have a direct interest in the proposed development or the associated planning instruments. Furthermore, CN Rail’s Counsel suggested that the Alinea Group could access confidential evidentiary documentation through other means and emphasized that Tribunal decisions are not binding on each other, as each case should be evaluated on its own merits.

5The Tribunal deferred the request for Party status and directed Counsel for the Alinea Group to file a written Motion in accordance with Rule 10.3 in the Tribunal’s Rules of Practice and Procedure. Should the Parties agree to revised and shorten timeline for submissions for motion material, they may submit this request on consent to the Tribunal.

6No one else attended the CMC seeking either Party or Participant status.

MEDIATION AND SETTLEMENT

7The Tribunal explored the possibility of mediation and settlement with the Parties. The Parties both expressed openness to resolution discussions and/or Tribunal led mediation. They further confirmed that they will keep the Tribunal apprised of any developments with their resolution efforts, which the Tribunal finds satisfactory.

PROCEDURAL ORDER AND ISSUES LIST

8The Tribunal received and reviewed a draft Procedural Order from the Parties. The Tribunal finds it acceptable and the proceedings shall be governed by it (see Schedule A).

9Following the outcome of any potential motion regarding the potential adding of a Party, the Parties are to revise the Procedural Order and provide this to the Tribunal on consent.

HEARING

10Upon request of the Parties, the Tribunal set a seven-day hearing commencing on Monday, March 17, 2025, at 10 a.m. by Video Hearing. No further Notice is required for the hearing.

11Parties and Participants 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.

GoTo Meeting: https://meet.goto.com/943363669

Access Code: 943-363-669

12Parties and Participants 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: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.

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.

ORDER

15THE TRIBUNAL ORDERS that:

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

2. The Procedural Order appended as Schedule A shall govern the proceedings.

16The Member may be spoken to through the Case Coordinator if any issues arise.

“J. Innis”

J. INNIS

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 A

ISSUE DATE: October 16, 2024

CASE NO(S).: OLT-24-000801

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Canadian National Railway Company

Subject: Proposed Official Plan Amendment No. 142

Description: To permit a mixed-use development consisting of three high-rise buildings with a maximum of 30, 32, and 34 storeys with 1165 residential units

Reference Number: 505-01/22

Property Address: 1120 Cooke Boulevard

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-24-000801

OLT Lead Case No.: OLT-24-000801

OLT Case Name: Canadian National Railway Company v. Burlington (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Canadian National Railway Company

Subject: By-law No. 2020.472

Description: To permit a mixed-use development consisting of three high-rise buildings with a maximum of 30, 32, and 34 storeys with 1165 residential units.

Reference Number: 520-01/22

Property Address: 1120 Cooke Boulevard

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-24-000800

OLT Lead Case No.: OLT-24-000801

OLT Case Name: Canadian National Railway Company v. Burlington (City)

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 March 17, 2025, at 10:00 a.m., for a duration of 7 days (March 17-25, 2025), at the following electronic link https://meet.goto.com/943363669

3. The parties’ initial estimation for the length of the hearing is 7 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 November 25, 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.

10. Expert witnesses in the same field shall have a meeting on or before December 6, 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 December 20, 2024.

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 January 16, 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 January 16, 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 February 10, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before March 7, 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. On or before February 10, 2025, 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.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 7, 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 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 prepare and file a preliminary hearing plan with the Tribunal on or before March 10, 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 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. 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 Key Dates

DATE	EVENT
November 25, 2024	Exchange of witness lists
December 6, 2024	Experts meeting prior to this date
December 20, 2024	Agreed Statement of Facts
January 16, 2025	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
February 10, 2025	Exchange of response to Witness Statements (if any)
February 10, 2025	Confirmation of Hearing Dates
March 7, 2025	Exchange of visual evidence (if any)
March 7, 2025	Finalize Joint Document Book
March 10, 2025	Final Work Plan filed with the Tribunal
March 17-25, 2025 (7 days)	Hearing commences

ATTACHMENT 1: PARTIES AND PARTICIPANTS

Appellant/Party

Canadian National Railway Company

Counsel

Katarzyna Sliwa
Isaiah Banach
Max Reedijk

Contact

Dentons LLP
Suite 400, 77 King Street West
Toronto, ON M5K 0A1

Katarzyna Sliwa
Phone: 416-863-4628
kat.sliwa@dentons.com

Isaiah Banach
Phone: 416-863-4501
isaiah.banach@dentons.com

Max Reedijk
Phone: 416-863-4726
max.reedijk@dentons.com

Appellant/Party

City of Burlington

Counsel

Andrea Peebles
Brittany Maione

Contact

Legal Department
PO Box 5013, 426 Brant Street
Burlington, ON L7R 3Z6

Andrea Peebles
Phone: 905.335.7600 ext. 7645
andrea.peebles@burlington.ca

Brittany Maione
Phone: 905.335.7600
brittany.maione@burlington.ca

Appellant/Party

Adi Developments (Masonry) Inc.

Counsel

Denise Baker

Contact

WeirFoulds LLP
Suite 10, 1525 Cornwall Road
Oakville, ON L6J 0B2

Denise Baker
Phone: 416-947-5090
dbaker@weirfoulds.com

ATTACHMENT 2: ISSUES LIST

1. What is the appropriate mitigation for the proposed development to address noise impacts?
2. Is it premature to approve the OPA and ZBA in the absence of mitigation measures that have been accurately identified?
3. How will any required mitigation measures for the proposed development be secured?
4. If residential development is feasible on all or a portion of the Subject Lands what policies should be contained in the OPA and provisions in the ZBA to ensure the implementation and maintenance of any necessary on-site receptor mitigation and phasing to address any environmental and land use impacts?
5. What planning tools and agreements are needed and may be utilized to secure implementation of recommendations of technical studies and other requirements identified through the review and consideration of the OPA and ZBA?
6. Is residential development or other sensitive uses on the Subject Lands in the proposed OPA and ZBA good planning?
7. Do the proposed OPA and ZBA have sufficient regard to matters of provincial interest as outlined in Sections 2(h), (j), (k), (m), (o), (p), and (r) of the Planning Act?
8. Are the proposed OPA and ZBA consistent with the Provincial Policy Statement, 2020 (PPS), specifically Part III, Part IV and Part V Policies 1.0, 1.1.1, 1.1.2, 1.1.3, 1.1.3.2, 1.1.3.4, 1.1.3.7, 1.2.1, 1.2.3, 1.2.4, 1.2.6, 1.3.1, 1.3.2, 1.4.1, 1.4.3(b)(1), 1.4.3(f), 1.6.1, 1.6.2, 1.6.4, 1.6.7, 1.6.8, 1.6.9.1, 1.7.1, 1.8.1, 3.0, 4.0, and associated definitions?
9. Does the proposed OPA and ZBA conform with a Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (Growth Plan), specifically sections 1.1, 1.2, 1.2.1, 1.2.3, 2.1, 2.2.1.3(c), 2.2.1.4 (a), (b), (d), (f); 2.2.2.3, 2.2.4.9, 2.2.5.1, 2.2.5.2, 2.2.5.5, 2.2.5.8, 2.2.5.12, 2.2.5.14, 3.1, 3.2.1, 3.2.2.1, 3.2.2.2, 3.2.4, 3.2.5, 4.2.10.1(a), 4.2.10.1(c), 4.2.10.1(i), 4.2.10.2(a), 5.2.3.1, 5.2.4.5, 5.2.5.4, Schedule 6 and associated definitions?

[NOTE: Issues 8 and 9 will be reviewed and may be deleted upon the coming into force of the new Provincial Planning Statement, 2024, and the applicable transitional rules]

10. Are the proposed OPA and ZBA consistent with the Provincial Planning Statement, 2024 (PPS), Chapter 1 and policies 2.1.6, 2.3.1.1, 2.3.1.2, 2.3.1.3, 2.3.1.4, 2.4.1.1, 2.4.1.2, 2.4.1.3, 2.4.2.2, 2.4.2.3, 2.4.2.6, 2.4.3.1, 2.8.1.1, 2.8.1.2, 2.8.1.3, 2.8.1.4, 2.8.2.1, 2.8.2.2, 2.8.2.3, 2.8.2.4, 2.8.2.5, 2.9.1, 3.1.1, 3.1.2, 3.1.3, 3.2, 3.3.1, 3.3.2, 3.3.3, 3.4.1, 3.5.1, 3.5.2, 5.1.1, 6.1.1, 6.1.5, 6.1.7, 6.1.8, 6.1.11, 6.1.12, 6.2.1, 6.2.7 and associated appendices and definitions?
11. Does the proposed OPA and ZBA conform with the Halton Region Interim Office Consolidation (November 10, 2021), specifically sections and policies 34, 35, 61(1), 72.1(1), 72.1(6), 72.1(10), 72.1(10.1), 77(5)(f)(i), 79(1), 79(3), 79(10), 79(11)(b), 79.3(10.1), 79.3(12), 79.3(13), 81(5), 81(6), 81.2(4)(f), 81.4(4), 83.2(2), 83.2(3), 83.2(5), 83.2(6), 83.2(7), 142(8), 143(9),143(10). 143(11), 143(12), 143(13), 169(1.1), 169(1.3), 169(1.4), 170(4.2), 172(14.1), 172(15), 173(1), 173(1.1), 173(1.2), 173(30.1), 173(31), 173(32) and associated definitions, tables, maps and schedules?
12. Does the proposed OPA and ZBA conform with the Official Plan for the Halton Planning Area (Office Consolidation May 16, 2024, specially sections and policies 34, 35, 61(1), 61(2), 72, 72.1(1), 72.1(6), 72.1(10), 72.1(10.1), 77 (5) (f.1), 79(1), 79(3), 79(10), 79.3 (10.1), 79.3 (12), 79.3(13), 81(5), 81 (6), 81.2(4)(f), 81.4(4), 82.3, 82.4, 82.5, 82.6, 82.7, 83.2(7), 83.2(8), 142(8), 143(9), 143(10), 143(11), 143(12)(a), 143(12)(b), 143(13), 169(1), 169(1.1), 169(1.3), 169(1.4), 169(5), 169(6), 170(4.2), 172(14), 172(14.1), 172(15), 173(1), 173(1.1), 173(1.2), 173(7), 173(30.1), 173 (31),173 (32) and associated definitions, tables, maps and schedules?
13. Does the proposed OPA and ZBA conform with the City of Burlington Official Plan, 1997 (Office Consolidation December 2019), specifically sections and policies: Part I - 3.0 (b), 3.0(c), 3.0(e), 30.(f), 3.0(g); Part II - 2.7.3(b), 2.7.3(n), 2.7.3(o), 3.2(e), 3.2(f), 3.7, 6.5; Part III - 5.3.2(e), 5.3.2(g), 5.3.4( f); Part VI - 1.2 (a), 1.3 (c), 2.1.2 (c), 2.1.2 ( f), 2.2, and; associated schedules, maps and definitions?
14. Does the proposed OPA and ZBA conform with the City of Burlington Official Plan, 2020 (interim working version February 2021) specifically sections and policies 2.2.2(a), 2.2.2(b), 2.2.2(c), 2.3.7, 2.4.1(b), 2.4.2(1)(b), 3.1.3(2)(b), 4.1.2(a)(xiii), 4.6, 4.6.1, 4.6.2, 5.1.2 , 5.4.7, 5.4.8 (a), 6.1.2(j), 6.2.1(1)(g), 6.2.5(1)(a), 6.2.5(2)(b), 6.2.5(c), 6.2.5(d), 6.2.5(e), 6.2.5(f), 6.2.5(g), 7.1.1(h), 7.1.1(k), 7.1.2(b), 7.3.2(1)(i)(i), 7.4.1(b), 8.1.2(1)(n), 8.1.2(1)(u), 8.1.2(2)(g), 8.1.2(3)(c), 8.1.2(3)(j), 8.1.3(1)(b), 8.1.3(1)(f), 8.1.3(1)(g), 8.1.3(2)(p), 8.1.3(8.1)(a), 8.1.3(8.1)(b), 8.1.3(8.1)(c), 8.1.3(8.2)(a), 8.1.3(8.2)(l), 8.6, 12.1.2(2), 12.1.2(2.2), 12.1.3(4)(m), 12.1.5, and associated schedules, maps and definitions?
15. Does the proposed OPA and ZBA conform with OPA 2 (Council adopted, pending approval), specifically sections and policies 8.1.2(1)(a), 8.1.2(1)(e), 8.1.2(1)(h), 8.1.2(3.2), 8.1.2(6), 8.1.2(8.1)(e), 8.1.2(8.3)(a), 8.1.2(10.1.1)(f) (xii), 8.1.2(10.1.1)(h)(v)(e), 8.1.2(10.1.1)(h)(vi), and associated schedules, maps and definitions?
16. Do the proposed OPA and ZBA and the supporting acoustic assessment for the proposed development:
    1. consider the appropriate assumptions in assessing the environmental impacts on the proposed development?
    2. meet the applicable indoor noise criteria for transportation sources?
    3. meet the applicable guidelines at the outdoor amenity areas?
    4. rely on an appropriate consideration of the transportation noise sources and the cumulative impact of all the stationary noise sources and the required acoustical mitigation measures?
    5. appropriately take into consideration the frequency content/character of the noise sources and the following federal documents:

i. “Guidelines for the Resolution of Complaints Concerning Railway Noise and Vibration”, Canadian Transportation Agency, October, 2008;

ii. “Railway Noise Measurement and Reporting Methodology”, Canadian Transportation Agency, August 2011; and

iii. “Guidance for Evaluating Human Health Impacts in Environmental Assessment: NOISE”, Health Canada, January 2017?

17. Do the proposed OPA and ZBA have regard to the Federation of Canadian Municipalities/Railway Association of Canada Guidelines for New Development in Proximity to Railway Operations (“FCM/RAC Guidelines”)? How should the FCM/RAC Guidelines be applied?
18. Do the proposed OPA and ZBA have regard to the D1 and D6 Guidelines, including their applicability with provincial policy and the local and regional Official Plans?
19. Do the proposed OPA and ZBA have regard to NPC-300 and its requirements, including acoustic assessment and feasibility under the Class 1 or Class 4 designation and in the context of the role of the Canadian Transportation Agency in addressing noise complaints?
20. Has Air Quality been appropriately studied in conformance with MECP D-6 Series and related guidelines and statutes to address potential fugitive emissions and compatibility with surrounding land uses, with particular focus on current and future locomotive use, adverse effects from diesel locomotives, assessment of receptors (doors, windows, outdoor amenity areas) and location of residential units?

ATTACHMENT 3: ORDER OF EVIDENCE

Canadian National Railway Company

City of Burlington

Adi Developments (Masonry) Inc.

Canadian National Railway Company, in reply

ATTACHMENT 4: DEFINITIONS

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.