Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 16, 2024
CASE NO(S).: OLT-23-000266
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Cao Man & Lu Tien
Subject: Application to amend the Zoning By-law – Appeal of Decision
Description: To facilitate the development of a dwelling and accessory structures on subject property
Reference Number: ZA 24-2021
Property Address: Part of Lot 12, Concession 10
Municipality: Town of Gravenhurst
OLT Case No.: OLT-23-000266
OLT Lead Case No.: OLT-23-000266
OLT Case Name: Cao Man v. Gravenhurst (Town)
Heard: February 7, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Cao Man Lu Tien |
Cao Man* |
| Town of Gravenhurst | Edward Veldboom |
MEMORANDUM OF ORAL DECISION DELIVERED BY G.A. CROSER ON FEBRUARY 7, 2024 AND ORDER OF THE TRIBUNAL
1This was the third Case Management Conference (“CMC”) to be held in the Appeal by Cao Man and Lu Tien (“Appellants”) of the failure of the Town of Gravenhurst (“Town”) to permit rezoning of the property known municipally as Part of Lot 12, Concession 10 (“Subject Property”) from Residential Rural (RR-5) to Residential Waterfront (RW-6).
2The Subject Property’s current zoning of RR-5 requires frontage on a publicly maintained road in order to be considered a ‘buildable lot’. As such, Mr. Man cannot presently build on the site. Mr. Edward Veldboom, on behalf of the Town, noted that even if the Subject Property was zoned RW-6, it would not entitle Mr. Man to build on the Subject Property as there is no public access to the waterway.
STATUS UPDATE
3The Tribunal asked the Parties for an update on the progress of this file, noting that this is the third CMC on this matter.
4At the second CMC there was discussion about alternative means of addressing the issue of access to the Subject Property. Mr. Veldboom stated that no Application had been received by the Town from Mr. Man with respect to obtaining rights to use or occupy municipal land as a means of accessing the Subject Property.
5Mr. Man commented that Mr. Veldboom has been very helpful and that his issue was with the Town’s “infrastructure” department. Mr. Man stated that there is a bridge that people use to access lots which do not have frontage on a publicly maintained road, and he does not understand why he cannot do the same. Mr. Veldboom explained to the Tribunal that the bridge is a legacy structure and is not maintained by the Town. The roadway in question is an unassumed road and the dwellings that utilize this bridge and road existed before the amalgamation of the Town.
6It was explained to Mr. Man that changing the zoning of the Subject Property was the only matter before the Tribunal. Matters relating to the merging or severing of lots or the unassumed road were beyond the Tribunal’s jurisdiction with respect to this Appeal. Based on Mr. Veldboom’s comments, it was clear to the Tribunal that even if Mr. Man was successful in changing the zoning of the Subject Property, that this would not automatically entitle Mr. Man to build on the site. Mr. Man acknowledged this fact and confirmed that he was willing to wait on the other issues.
7The Parties agreed to schedule a Hearing on the Merits (“Merit Hearing”). Mr. Man inquired as to how the Hearing could be adjourned if he required more time. The Tribunal directed Mr. Man to Rule 17 of the Tribunal’s Rules of Practice and Procedure and outlined the process in the event that the Town did not consent to the adjournment.
PROCEDURAL ORDER AND ISSUES LIST
8Mr. Veldboom provided a draft Procedural Order (“PO”) and Issues List (“IL”) in advance of the CMC. The Tribunal reviewed the IL, and Mr. Man had no concerns with the content of the PO or IL. Mr. Veldboom agreed to update the PO to include the hearing dates. This has been received by the Tribunal and is attached to this Decision as Schedule 1.
9The Tribunal reminded Mr. Man that if he chose to engage the services of a planner or lawyer, then he should plan on making those inquiries soon, given the fact that deadline dates in the PO begin in March.
MEDIATION
10The Tribunal raised the question of mediation and inquired if the Parties had considered this approach. Mr. Man was open to this. Mr. Veldboom commented that he was trying to find ways to work with Mr. Man and explore alternative avenues to obtaining access to the Subject Property. The Parties were reminded that Tribunal-led mediation could be scheduled by contacting the Case Coordinator.
MERIT HEARING
11A two-day Merit Hearing was scheduled for this matter, commencing on Monday, June 10, 2024, at 10 a.m. by Video Hearing.
12Parties 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://global.gotomeeting.com/join/979388733
Access code: 979-388-733
13Parties 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
14Persons 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) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted above.
15Individuals 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 Video Hearing 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
16THE TRIBUNAL ORDERS that a Hearing on the Merits is scheduled for Monday, June 10, 2024, at 10 a.m. by Video Hearing as set out above.
17THE TRIBUNAL FURTHER ORDERS that the Procedural Order and Issues List set out in Schedule 1 to this Order has been approved and shall govern the proceedings.
18The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“G.A. Croser”
G.A. CROSER
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-23-000266
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Cao Man & Lu Tien
Subject: Application to amend the Zoning By-law – Appeal of Decision
Description: To facilitate the development of a dwelling and accessory structures on subject property
Reference Number: ZA 24-2021
Property Address: Part of Lot 12, Concession 10
Municipality: Town of Gravenhurst
OLT Case No.: OLT-23-000266
OLT Lead Case No.: OLT-23-000266
OLT Case Name: Cao Man v. Gravenhurst (Town)
PROCEDURAL ORDER
- 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 June 10, 2024 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is two (2) 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 and participants identified at the case management conference are set out in Attachment 1 (see Attachment 4 for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who 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 March 21, 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 April 5, 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 April 10, 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 12 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 26, 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 26, 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 May 6, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before May 31, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 21 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 31, 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 June 3, 2024 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 June 3, 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 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.
Summary of Key Dates
| Date | Hearing Event |
|---|---|
| March 21, 2024 | Deadline to exchange expert witness list |
| April 5, 2024 | Meeting of like experts |
| April 10, 2024 | Exchange and file Agreed Statement of Facts |
| April 26, 2024 | Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons |
| April 26, 2024 | Exchange of Participant Statements |
| May 6, 2024 | Confirm with Tribunal if all reserved hearing dates are still required. |
| May 31, 2024 | Exchange of Visual Evidence |
| May 31, 2024 | Provide joint document book to case coordinator |
| June 3, 2024 | Hearing Plan |
| June 3, 2024 | Notification to Tribunal and Parties if witness not to provide oral evidence |
| June 10, 2024 (10 a.m.) | Hearing start date |
ATTACHMENT 1: PARTIES AND PARTICIPANTS
Parties
- Cao Man, Lu Tien
- Town of Gravenhurst
Participants
None
ATTACHMENT 2: ISSUES LIST
Is the proposed Zoning By-law Amendment consistent with the PPS 2020, and in particular section 1.1.5?
Does the proposed Zoning By-law Amendment conform with the Town of Gravenhurst Official Plan, and in particular sections D3, I6.10, J1.7 and J2.3.5?
Do the subject lands have appropriate water access which is a pre-requisite to making the subject lands developable under the proposed RW-6 Zoning?
If the subject lands do have appropriate water access, can the subject lands comply with section 6.1 of the Zoning By-law?
ATTACHMENT 3: ORDER OF EVIDENCE
- Appellant – Cao Minh Man
- Town of Gravenhurst
- Appellant – Cao Minh Man – Reply
ATTACHMENT 4
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.