Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 04, 2024
CASE NO(S).: OLT-24-000393
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2610823 Ontario Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a mixed-use community consisting of 1,344 dwelling units, including 679 detached dwellings, 155 on-street townhomes and 510 multi-residential dwelling units
Reference Number: AM-2021-16
Property Address: 8970 & 9015 Stanley Avenue
Municipality/UT: City of Niagara Falls / Region of Niagara
OLT Case No.: OLT-24-000393
OLT Lead Case No.: OLT-24-000393
OLT Case Name: 2610832 Ontario Inc. v. Niagara Falls (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2610823 Ontario Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a mixed-use community consisting of 1,344 dwelling units, including 679 detached dwellings, 155 on-street townhomes and 510 multi-residential dwelling units
Reference Number: AM-2022-015
Property Address: 8970 & 9015 Stanley Avenue
Municipality/UT: City of Niagara Falls / Region of Niagara
OLT Case No.: OLT-24-000394
OLT Lead Case No.: OLT-24-000393
Heard: October 15, 2024 by Telephone Conference Call
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2610832 Ontario Inc. | Meredith Baker |
| City of Niagara Falls | Paul DeMelo |
| Regional Municipality of Niagara | Alexander Suriano |
| Cytec Canada Inc. | Al Burton |
MEMORANDUM OF ORAL DECISION DELIVERED BY KURTIS SMITH ON October 15, 2024 AND ORDER OF THE TRIBUNAL
PURPOSE
1Counsel for 2610832 Ontario Inc. (“261”) requested that a Telephone Conference Call (“TCC”) be scheduled to seek assistance in settling the wording of issues relating to OLT Case No. OLT-24-000393.
2Prior to the TCC, the Parties were directed to provide the Tribunal with a maximum of two-page submissions to clearly explain the disagreement of the Issues List.
TRIBUNAL DIRECTIONS
Region’s Issues List
3261’s concern is with the inclusion of “Issue 5” that reads as follows: “Do the applications conform with the Niagara Official Plan 2022 (“New OP”), including but not limited to policy 7.12.2.5?”
4Policy 7.12.2.5 states that
Development applications deemed complete prior to the date of this Plan’s approval shall be permitted to be processed, and a decision made under the Local and Regional Official Plan policies, as well as Provincial policies that existed when the application was deemed complete.
5The reason for the concern is that the Applications were deemed complete prior to the approval of the New OP, therefore 261 takes the position that Issue 5 is not an issue of dispute.
6On the other hand, the Regional Municipality of Niagara (“Region”) wishes to keep Issue 5 in order for the Tribunal to fully understand how and why conformity of the Region’s Official Plan may be determined by the prior 2014 Region Official Plan (“Old OP”).
7The Tribunal directed the Parties to retain Issue 5 with a slight modification to narrow the Issue 5 to policy 7.12.2.5 only. Removal of the issue would “create a hole” in the Issues List pertaining to conformity to the New OP.
City’s Issues List
8Following the written submissions of the City, only two matters were left to be resolved. (1) Similar to the Region’s Issues List, 261 takes the position that the New OP directs that the Applications be reviewed and a decision be made under the Old OP; and (2) the Issues List needs to be updated to include the 2024 Provincial Planning Statement (“2024 PPS”).
9Resulting from the oral submissions of the City and 261, the Tribunal directed the Parties to revise the Issues List to relocate and combine all the issues relating to the 2022 OP into a singular Issue. The Tribunal also directed the Parties to include issues of consistency with the 2024 PPS. As the transitionary policies of the 2024 PPS are unknown at this time, the 2022 PPS issues are to remain on the Issues List.
Procedural Order and Issues List
10The Tribunal directed the Parties to update and submit the revised Draft Procedural Order and Issues List, on consent as determined during the TCC, to the Tribunal for review and approval on or before October 21, 2024, which is now attached to this Decision.
ORDER
11THE TRIBUNAL ORDERS that the Procedural Order included as Schedule 1 to this Order shall govern the proceedings leading up to and including the Merit Hearing for this matter.
12The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“Kurtis Smith”
Kurtis Smith
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(S).: OLT-24-000393
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2610832 Ontario Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a mixed-use community consisting of 1,344 dwelling units, including 679 detached dwellings, 155 on-street townhomes and 510 multi-residential dwelling units
Reference Number: AM-2021-16
Property Address: 8970 & 9015 Stanley Avenue
Municipality/UT: City of Niagara Falls / Region of Niagara
OLT Case No.: OLT-24-000393
OLT Lead Case No.: OLT-24-000393
OLT Case Name: 2610832 Ontario Inc. v. Niagara Falls (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2610832 Ontario Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a mixed-use community consisting of 1,344 dwelling units, including 679 detached dwellings, 155 on-street townhomes and 510 multi-residential dwelling units
Reference Number: AM-2022-015
Property Address: 8970 & 9015 Stanley Avenue
Municipality/UT: City of Niagara Falls / Region of Niagara
OLT Case No.: OLT-24-000394
OLT Lead Case No.: OLT-24-000393
DRAFT PROCEDURAL ORDER
The Tribunal orders that:
- 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
- A hearing respecting matters under the Planning Act is scheduled to proceed by video as follows:
Monday, March 24, 2025 at 10 a.m.
GoTo Meeting: https://meet.goto.com/370987861
Access code: 370-987-861
Audio-only line: (Toll Free) 1-888-455-1389 or +1 (647) 497-9391
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. The procedural order deadlines are generally summarized in Attachment “1” to this Order.
The parties and participants identified at the case management conference are set out in Attachment “2” to this Order.
The issues are set out in the Issues List attached as Attachment “3” to this Order. 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 “4” 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 November 1st, 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, the Acknowledgment of Expert’s Duty form, and the area of expertise in which the witness is prepared to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other parties on or before November 15th, 2024.
Expert witnesses in the same field shall have a meeting on or before December 6th, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties may prepare and file a Statement of Agreed Facts and Issues with the OLT case coordinator on or before December 20th, 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 and include the curriculum vitae and Acknowledgment of Expert Duty form previously provided in paragraph 9. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that they intend to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same as the delivery of expert witness statements, as in paragraph 13.
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 January 17th, 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 or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.
On or before January 17th, 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.
On or before February 21st, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before February 7th, 2025, the 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 March 14th, 2025.
On or before March 20th, 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.
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 March 14th, 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.
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.
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.
ATTACHMENT “1”
SUMMARY OF KEY DATES
| Date | Hearing Event |
|---|---|
| November 1st, 2024 | Exchange of List of Witnesses and the order in which they will be called – para. 9 |
| November 15th, 2024 | Notice of Motion (if required) to challenge witness(es) – para. 9 |
| December 6th, 2024 | Expert Witness Meeting – para. 2 |
| December 20th, 2024 | Filing of Statement(s) of Agreed Facts and Issues – para. 10 |
| January 17th, 2025 | Exchange of Witness & Participant Statements – paras. 13 and 14 |
| February 7th, 2025 | Exchange of Reply Evidence/Statements – para. 16 |
| February 21st, 2025 | Confirmation to Tribunal if all reserved hearing dates are still required – para. 15 |
| March 14th, 2025 | Filing of Joint Document Book – para. 17 |
| March 14th, 2025 | Filing of Hearing Plan – para. 21 |
| March 20th, 2025 | Exchange of Visual Evidence – para. 18 |
| March 17, 2025 | Notification to Tribunal and Parties if witness not to provide oral evidence – para. 20 |
| March 24, 2025 | Contested Hearing (if required) – para. 2 |
ATTACHMENT “2”
PARTIES AND PARTICIPANTS
PARTIES
2610832 ONTARIO INC. TMA LAW 25 Main Street West, Suite 2010 Hamilton, ON L8P 1H1 Counsel : Nancy Smith / Meredith Baker / Jennifer Ricci Email : nsmith@tmalaw.ca mbaker@tmalaw.ca riccilaw2008@gmail.com
CITY OF NIAGARA FALLS KAGAN SHASTRI DeMELO WINER PARK LLP 188 Avenue Road Toronto, ON M5R 2J1 Counsel : Paul DeMelo Email : pdemelo@ksllp.ca
REGIONAL MUNICIPALITY OF NIAGARA AIRD & BERLIS LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Counsel : Alexander J Suriano / Naomi Mares Email : asuriano@airdberlis.com nmares@airdberlis.com
PARTICIPANTS
John Morocco Tel: 905-658-0274 Email : johnmorocco@bell.net
Sarah Ward Tel: 289-687-5106 Email : 99sarahward@gmail.com
Martine Esraelian Tel : 905-964-6721 Email : martine.esraelian@gmail.com
Niagara Peninsula Conservation Authority Counsel : Tim Duncan, Fogler Rubinoff LLP Tel : 416-941-8817 Email : tduncan@foglers.com
Stanlee Hickey Tel: 905-295-6074 Email: srdh55@hotmail.com
Leslie Laan Tel : 905-325-3070 Email : llaan2@sympatico.ca
ATTACHMENT “3”
ISSUES LIST
ISSUES LIST OF THE CITY of NIAGARA FALLS
Official Plan Amendment
Does the Official Plan Amendment (“OPA”) sufficiently address the Planning Act which establishes that the adequate provision of employment opportunities is a matter of provincial interest?
Is the proposed Official Plan Amendment to designate the subject lands as Residential appropriate with respect to Provincial Policy Statement (2020) Policies 1.1.1 a), b), c) and d) and 1.1.2 and Policy 2.1.6 a) of the Provincial Planning Statement (2024)?
Does the proposed Official Plan Amendment to change the designation from Resort Commercial Open Space, Environmental Protection and Environmental Conservation to Residential, Commercial and Environmental Protection Area address the issue for the requirement to provide opportunities for employment and employment areas as outlined in Provincial Policy Statement (2020) Policies 1.3.1, 1.3.2, 1.3.2.1, 1.3.2.2 and 1.3.2.3, Provincial Growth Plan (2019) Guiding Principles 1.2.1, and Policies 2.2.5, 2.2.5.5, 2.2.5.6 and 2.2.5.18 and Policies 2.8.2.1, 2.8.2.2, 2.8.2.3 and 2.8.2.4 of the Provincial Planning Statement (2024).
How does the proposed OPA to designate the subject lands as Residential address the requirement to plan to meet as a minimum Provincial and Regional growth forecast as outlined in Provincial Growth Plan (2019) Policies 2.2.1.1, 2.2.1.2 and 2.2.1.4 and Niagara Regional Official Plan (2014) 4.A.1.9, 4.B.4.1, 4.C.5.1 and 4.C.6.1and City of Niagara Falls Official Plan (1993) Growth Objectives 5, 6 and 12 and Policy 2.8.1 a),b),c),e) of the Provincial Planning Statement (2024)?
How does the proposed OPA to designate the subject lands as Residential address the requirement to protect employment areas near major goods movement facilities and corridors as outlined in Provincial Policy Statement (2020) Policy 1.3.2.6 and Provincial Growth Plan (2019) Policies 2.2.5.5 Niagara Regional Official Plan 2014 3.A Niagara Economic Gateway, City of Niagara Falls Official Plan (1993) Section 8?
How does the proposed OPA to designate the subject lands as Residential address the requirement to protect existing and proposed employment areas from land use compatibility issues with non employment uses as outlined in Provincial Policy Statement (2020) Policies 1.2.6.2 and Provincial Growth Plan (2019) Policy 2.2.5.7 a)? and Niagara Region Official Plan (2014) Policies 3.A.3.25, 3.C.3, and 9.F.5(a), City of Niagara Falls Official Plan (1993) Section 8 and Policy 2.8.1.3 and Policies 3.5.1 and 3.5.2 of the Provincial Planning Statement (2024)?
Although the 2022 ROP , and in particular Policies 2.1.1.1, 2.1.1.2, 2.1.1.3, 2.1.1.4, 2.1.1.8, 4.2.1.12, 4.2.1.14, 4.2.2.1, 4.2.2. and 4.2.2.3 are not determinative, should said policies still be considered in the determination of the subject applications and if so to what extent are such policies relevant and appropriate to be considered as part of the disposition of the subject appeals?
How does the proposed OPA to designate the subject lands as Residential align with the strategic direction of the Provincial Economic Gateway Centre and Zone designation as outlined in Provincial Growth Plan (2019) Policy 2.2.5.18, Niagara Region Official Plan policies 3A Niagara Economic Gateway and City of Niagara Falls Official Plan (1993) Section 8?
Does the OPA and its request for a Residential designation for the subject lands represent good land use planning and is in the public interest?
Zoning By-law Amendment
How does the proposed development conform to the Regional Official Plan (2014) and City of Niagara Falls Official Plan from an environmental perspective?
How does the proposed development sufficiently demonstrate that it will have no significant negative impact on the Core Natural Heritage System and on adjacent natural heritage features and their functions?
How does the proposed development address the regulatory limits of the Conservation Authority?
Is the proposed development premature in advance of the completion of the Grassy Brook Secondary Plan, especially in consideration of Policy 14.I.3.1 of the Niagara Region Official Plan (2014)?
Does the proposed development sufficiently address Provincial D-6 Guidelines with respect to land use compatibility?
How does the proposed development address Schedule B of the City’s Official Plan which establishes a Phasing Plan for the servicing of urban lands?
How does the proposed development conform to the general objectives of the City’s Official Plan, particularly as it relates to the protection of natural heritage features and their functions, and the protection of areas suited for employment uses from non-employment uses (i.e. residential)?
IssueS List of Niagara Region
- Do the applications have regard for matters of provincial interest identified in Section 2 of the Planning Act, including but not limited to subsections:
(a) the protection of ecological systems, including natural areas, features and functions;
(d) the conservation of features of significant architectural, cultural, historical, archaeological, or scientific interest;
(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;
(h) the orderly development of safe and healthy communities;
(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;
(j) the adequate provision of a full range of housing, including affordable housing;
(k) the adequate provision of employment opportunities;
(o) the protection of public health and safety
Provincial Planning Statement (PPS 2020)
- Are the applications consistent with the Provincial Policy Statement, 2020, including but not limited to policies:
1.1.1(a), (b), (c), (e), (g), (h)
1.1.3.2
1.2.1 (a), (c), (d), (e), (f)
1.2.6.1
1.2.6.2
1.3.1(d)
1.3.2.2
1.3.2.3
1.6.1
1.6.7.1
1.6.7.4
1.6.8.3
2.1.1
2.1.2
2.1.4
2.1.5
2.1.6
2.1.7
2.1.8
2.2.1(e)
2.6.2
2.6.5
3.2.2
Provincial Planning Statement, 2024
- Are the applications consistent with the Provincial Planning Statement, in the event that it comes into force on October 20, 2024?
A Place to Grow: Growth Plan for the Greater Golden Horseshoe (Growth Plan 2020)
- Do the applications conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, including but not limited to policies:
2.2.5.7 (a) and (c)
2.2.5.8
2.2.5.14
3.2.7.2
4.2.1.4
4.2.2.3 (a)
4.2.4.3
5.2.5.5(a)
Niagara Official Plan (NOP 2022)
- Do the applications conform with the Niagara Official Plan 2022, in particular policy 7.12.2.5?
Regional Official Plan (ROP 2014)
- Do the applications conform with the Regional Official Plan 2014, including but not limited to policies:
Employment Lands: 3.A.3.10 and 3.A.3.11
Land Use Compatibility: 3.A.3.25, 3.C.3, and 9.F.5(a)
Provision of Land to Accommodate Growth to 2031: 4.A.1.9
Supply of Designated Employment Lands: 4.B.4.1
Greenfield Development: 4.C.5.1 and 4.C.6.1
Natural Heritage: 7.B.1.8, 7.B.1.9, 7.B.1.10, 7.B.1.11, 7.B.1.13, 7.B.1.15, and 7.B.1.18
Staging and Phasing of Development: 8.B.15
Archaeology: 10.C.2.1.13
Servicing Capacity
- Are the applications premature as a result of the sewage capacity constraints in the South Side High Lift Sewage Pumping Station sewer shed, and as a result do they conform to Regional Official Plan 2014 policies 4.A.1.12, 4.F.1.3, and 14.I.3.1?
Natural Heritage
- Does the Environmental Impact Study submitted with the applications conform to Regional Official Plan 2014 policy 7.B.2.1 and provide adequate information to evaluate the Regional Official Plan 2014 policies listed above related to natural heritage?
Good Planning
- Does the proposed development represent good planning and is it in the public interest?
Draft By-law and Official Plan Amendment
- Are the form and content of the proposed draft Zoning By-law and Official Plan Amendments appropriate?
Implementation
- In the event the applications are approved in whole or in part, should the Tribunal Order be withheld until the Region has confirmed:
a. that the final form and content of the Zoning By-law Amendment and Official Plan Amendment are satisfactory to the Commissioner of Growth Strategy and Economic Development or their delegate; and,
b. that certain conditions regarding the availability of servicing capacity requested by the Region have been fulfilled to the satisfaction of the Commissioner of Public Works?
ATTACHMENT “4”
ORDER OF EVIDENCE
2610832 ONTARIO INC.
CITY OF NIAGARA FALLS
REGIONAL MUNICIPALITY OF NIAGARA
2610832 ONTARIO INC. (REPLY)
ATTACHMENT “5”
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 authorization 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.