Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 11th, 2024
CASE NO.:
OLT-24-000751
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
1000403721 Ontario Corp.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the redevelopment of the site with a 6-storey mixed-use building
Reference Number:
PZ-16-23
Property Address/Description:
75-79 Erie Avenue
Municipality:
Brantford/Brant County
OLT Case No.:
OLT-24-000751
OLT Case Name:
1000403721 Ontario Corp. v. City of Brantford
BEFORE:
WILLIAM MIDDLETON
Wednesday, the 11th
DUTY VICE
day of December, 2024
THIS MATTER having come before the Tribunal for a Case Management Conference with the Tribunal’s Decision and Procedural Order issued on November 13th, 2024;
AND THE TRIBUNAL having received a request on consent of the Parties to amend some of the dates contained in the Procedural Order;
THE TRIBUNAL ORDERS that the following dates from the Procedural Order are amended:
Parties to exchange witness statements and expert witness statements (paragraph 9) changed from December 9, 2024, to December 20, 2024;
Final date to challenge identification of expert witnesses (paragraph 9) changed from December 16, 2024, to January 6, 2025;
Deadline for expert witnesses to meet and resolve/reduce the issues for the hearing from January 20, 2025, to January 27, 2025.
“Euken Lui”
EUKEN LUI
ACTING REGISTRAR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ISSUE DATE: NOVEMBER 13, 2024 CASE NO.: OLT-24-000751
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
1000403721 Ontario Corp.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the redevelopment of the site with a 6-storey mixed-use building
Reference Number:
PZ-16-23
Property Address/Description:
75-79 Erie Avenue
Municipality:
Brantford/Brant County
OLT Case No.:
OLT-24-000751
OLT Case Name:
1000403721 Ontario Corp. v. City of Brantford
Amended – December 6, 2024
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 April 8, 2025, at 10:00 a.m.
The length of the hearing is four (4) 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 found in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2. See Attachment 4 for the meaning of these terms.
The issues are set out in the Issues List attached as Attachment 3. 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 December 20, 2024, and in accordance with paragraph 23 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. 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 of Practice and Procedure and notice of same must be served on the parties on or before January 6, 2025.
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, and updated supporting documents and reports to the other parties on or before December 2, 2024. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.
Expert witnesses in the same field shall have at least one meeting on or before January 27, 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 coordinator on or before March 24, 2025.
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 14 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 parties at the same time as the delivery of witness statements, as in paragraph 14.
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 14 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 14 below.
On or before February 7, 2025, the parties shall provide copies of their witness statements and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 23 below
On or before February 7, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 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 March 4, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before March 19, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 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 coordinator a written response to any written evidence within twenty (20) days after the evidence is received and in accordance with paragraph 23 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before March 31, 2025.
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 April 1, 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 or as permitted in paragraph 10. The Tribunal’s Rule 17 applies to such requests.
The Tribunal may conduct mediation on consent of all parties, on consent of those parties who wish to participate in mediation, or if the Tribunal sees fit.
The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.
This Member is not seized.
So orders the Tribunal.
BEFORE:
William Middleton
December 11th, 2024
TRIBUNAL REGISTRAR
ATTACHMENT 1 SUMMARY OF DATES
DATE
EVENT
December 2, 2024
Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
December 20, 2024
Exchange of witness lists (names, disciplines and order to be called)
January 6, 2025
Last date to challenge identification of expert witness
January 27, 2025
Experts meeting prior to this date
February 7, 2025
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
February 27, 2025
Exchange of Reply Witness Statements (if any)
March 4, 2025
Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
March 19, 2025
Exchange of visual evidence (if any)
March 24, 2025
Agreed Statement of Facts
March 31, 2025
Finalize Joint Document Book
April 1, 2025
Final Work Plan filed with the Tribunal
April 8, 2025
Hearing commences
ATTACHMENT 2 PARTIES/PARTICIPANTS
Parties
- 1000403721 Ontario Corp.
Counsel: Cristin Hunt, Goodmans LLP chunt@goodmans.ca 416.597.5908
- City of Brantford
Counsel:
Geoff Daley
519.759.4150 ext. 5150
Participants
N/A
ATTACHMENT 3 ISSUES LIST
PLEASE NOTE: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the appeal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the appeal will be a matter of evidence and argument at the hearing or the subject of a motion prior to the hearing.
City of Brantford
Does the application have appropriate regard to the matters of provincial interest in section 2 of the Planning Act, R.S.O., CHAPTER P.13, and in particular subsections (f), (h), (h.1), (j), (k), (m), (n), (o), (p), (q) and (r)?
Is the zoning by-law amendment application consistent with the Provincial Policy Statement, 2020, including policies 1.1.3.2, 1.1.3.3, and 1.4?
Does the zoning by-law amendment application conform to the Growth Plan for the Greater Golden Horseshoe, including policies 1.2.1, 2.2.1, 2.2.2, 2.2.6, and 3.2.2?
Does the zoning by-law amendment application conform to the City of Brantford’s Official Plan including policies 5.2.1(e), 5.2.1(h), 5.2.1(j), 5.2.1(u)(iii), 5.2.1(u)(iv), 5.3(f) and 7.1(n-r)?
Is the zoning by-law amendment application consistent with the Provincial Policy Statement, 2024, including policies 2.2.1, 2.4.1.2 and 2.4.1.3?
Does the proposed development application represent over intensification of the site?
Does the proposed development application provide a sufficient supply of parking for both the proposed residential and commercial uses?
Are either of the following parking allocations appropriate given the nature of the proposed development:
a. 15 residential parking spaces, 3 commercial parking spaces and 10 bicycle parking spaces; or
b. 18 residential parking spaces, 3 new on-street parking spaces for general use and 10 bicycle parking spaces.
Does the provision of three (3) general use on-street parking spaces represent sufficient parking to support the proposed ground floor commercial uses?
Will the development of three (3) new on-street parking spaces intended to service the proposed ground floor commercial use have a negative impact on traffic?
ATTACHMENT 4 ORDER OF EVIDENCE
1000403721 Ontario Corp.
City of Brantford
1000403721 Ontario Corp. reply, if any
ATTACHMENT 5
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 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.