Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 11, 2024 CASE NO(S).: OLT-24-000839

PROCEEDING COMMENCED UNDER subsection 28.1(20) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: John & Laurie Deshane Respondent: Crowe Valley Conservation Authority Subject: Refusal of application Description: Appeal the decision to refuse approval of a redevelopment permit application Property Location: 85 Fire Route 19C Reference Number: CVCA Permit Application 166/23 Municipality/UT: Havelock-Belmont-Methuen/Peterborough OLT Case No.: OLT-24-000839 OLT Lead Case No.: OLT-24-000839 OLT Case Name: Deshane v. Crowe Valley Conservation Authority

Heard: October 31, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Laurie & John Deshane (“Applicant/Appellant”)	Raj Kehar
Township of Havelock-Belmont-Methuen (“Township”)	Eli Bordman

MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This event was the first Case Management Conference (“CMC”) convened for an Appeal brought by John and Laurie Deshane (“Appellant”). The Appeal arises pursuant to s. 28.1(20) of the Conservation Authorities Act following the refusal by the Crowe Valley Conservation Authority (“CVCA”) on a permit application for the property municipally known as 85 Fire Route 19C (“Subject Property”) in the Township of Havelock-Belmont-Methuen.

2The Applicant is seeking to develop the subject site with a two-storey single residential dwelling with septic system and driveway on a current vacant lot.

MEDIATION

3The Parties indicated that they will be seeking Tribunal-led mediation in an effort to resolve the outstanding issues. Pending these efforts and advanced discussions, the Parties are directed to advise the Case Coordinator as to whether any or all of the outstanding issues have been resolved and if there are any changes in the number of days that have been set aside for the hearing.

PROCEDURAL ORDER AND ISSUES LIST

4The Tribunal directed the Parties to provide a final Procedural Order (“PO”) for consideration, which has since been received, reviewed and approved. It is attached to this Decision as Appendix 1 and shall govern the proceedings. The Parties are to seek the approval of the Tribunal should any revisions to the PO be required after seeking mediation.

HEARING DATE

5The Parties jointly requested that the Tribunal schedule an eight-day hearing for the Appeal based on the range of topics contained in the Issues List and the proposed number of witnesses required, and scheduled an eight-day Video Hearing as follows commencing on Monday, May 26, 2025, at 10 a.m.

6Parties and/or Participants and/or Observers are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

GoTo Meeting: https://meet.goto.com/996288525

Access code: 996-288-525

7Parties and/or 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html.

8Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497-9391 or (toll-free) 1-888-455-1389. The access code is: 996-288-525.

9Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

10The Tribunal inquired as to whether there were any other matters to be addressed, which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated that there were none.

ORDER

11THE TRIBUNAL ORDERS THAT: The Procedural Order attached as Appendix 1, is approved and shall govern these proceedings.

12This Member will remain available to assist the Parties with the case management of this matter subject to the Tribunal’s calendar..

“D. Chipman”

D. CHIPMAN MEMBER

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.

APPENDIX 1

CASE NO.: OLT-24-000839

PROCEEDING COMMENCED UNDER subsection 28.1(20) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: John & Laurie Deshane Respondent: Crowe Valley Conservation Authority Subject: Refusal of application Description: Appeal the decision to refuse approval of a redevelopment permit application Property Location: 85 Fire Route 19C Reference Number: CVCA Permit Application 166/23 Municipality/UT: Havelock-Belmont-Methuen/Peterborough OLT Case No.: OLT-24-000839 OLT Lead Case No.: OLT-24-000839 OLT Case Name: Deshane v. Crowe Valley Conservation Authority

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 , at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is eight (8) 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.

4. The parties and participants identified at the case management conference are set out in 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.

5. 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, except if the Issues List is modified to reduce issues, or in order to address changes to the Planning Act, Provincial Policy Statement and/or Growth Plan or other relevant provincial policy, or through mediation or pursuant to a settlement between any of the parties, or is otherwise on consent of the parties.

6. 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.

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. 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 (date – at least 55 days prior to the start of the hearing) 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 (date) 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 Tribunal’s Case Co-ordinator on or before (date – at least 15 days prior to the start of the hearing).

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 (date – at least 45 days prior to the start of the hearing), the parties shall provide copies of their witness statements, including expert witness statements, and/or brief outlines (if any), to the other parties and to the Tribunal’s Case Co- ordinator and in accordance with paragraph 22 below.

14. On or before (date – at least 45 days prior to the start of the hearing), 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 (date – at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before (date), 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 (date – at least 20 days prior to start of the hearing), Parties may provide to all other parties and the Tribunal’s Case Co-ordinator taa 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 Tribunal’s Case Co-ordinator on or before (date – at least 10 days prior to the start of the hearing).

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 (date – at least 7 days prior to the start of the hearing), 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 court 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 Tribunal’s Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal's Video Hearing Guide, or as may be amended. Section 22 applies regardless if the hearing event is in person or electronic.

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.

ATTACHMENT 1

SUMMARY OF KEY DATES

Date	Hearing Event
TBD	Exchange of List of Witnesses
TBD	Expert Witness Meeting
TBD	Filing of Statement(s) of Agreed Facts and Issues
TBD	Exchange of Witness Statements
TBD	Delivery of Participant Statements
TBD	Confirmation to Tribunal if all reserved hearing dates are still required
TBD	Exchange of Visual Evidence
TBD	Exchange of Reply Witness Statements
TBD	Filing of Joint Document Book
TBD	Filing of Hearing Plan
TBD	Hearing Commences

ATTACHMENT 2

PARTIES

PARTIES

1. John & Laurie Deshane WeirFoulds LLP Suite 201, 1320 Cornwall Road Oakville, Ontario L6J 7W5

Raj Kehar 416-845-3237 rkehar@weirfoulds.com

2. Crowe Valley Conservation Authority Bay Adelaide Centre – East Tower Suite 3600, 22 Adelaide Street West Toronto, Ontario M5H 4E3

Eli Bordman 416-865-6690 ebordman@grllp.com

PARTICIPANTS

ATTACHMENT 3

ISSUES LIST

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 Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

1. Should the application be denied on the basis of safety, having regard to issues of Riverine Flooding, Wetland Preservation and lack of safe access in the circumstances of a flooding and/or erosion event?

2. Does the application propose development activities subject to the prohibition at subsection 28(1) of the Conservation Authorities Act (the “Act”)?

a) Is the “development activity” within “hazardous lands” under paragraph 28(1)(2)(i) of the Act?

b) Is the “development activity” within “wetlands” under paragraph 28(1)(2)(ii) of the Act?

c) Is the “development activity”, which the parties are agreed is subject to riverine hazards adjacent or close to an inland lake within an area that may be affected by flooding under paragraphs28(1)(2)(iii) and 28(1)(2)(iv) and as defined by O. Reg 41/24?

d) Is the “development activity”, which the parties are agreed is subject to riverine hazards and adjacent or close to an inland lake, within an area that may be affected by erosion under paragraphs28(1)(2)(iii) and 28(1)(2)(iv)?

3. If yes to any of (1)(a)-(d), is it the opinion of the Tribunal that:

a) The proposed development is not likely to affect the control of

• Flooding;
• Erosion; or
• Unstable soil or bedrock;

pursuant to paragraph 28.1(1)(a) of the Act?

4. If yes to any of 1(a)-(d), and pursuant to paragraph 28.1(1)(b) of the Act,

a) Is the proposed development activity not likely to create conditions or circumstances that in the event of a natural hazard, might jeopardize health or safety of persons?

b) Is the proposed development activity not likely to create conditions or circumstances that, in the event of a natural hazard, result in the damage or destruction of property?

Wetland Issues

5. Does the proposed development constitute development within the setback of a wetland inconsistent with section 7.3.1(a), 7.3.1(b), 7.3.1(d) 7.4.2.1 of the Crowe Valley Conservation Authority (“CVCA”) “Watershed Planning and Regulations (O. Reg. 41/24) Manual” May, 2024 (the “2024 WPRM”), the Provincial Planning Statement, 2024 at section 4.1.8?

Safe Access/Flooding Issues

6. Does the proposed development include safe access consistent with section 3.8.4 and 5.3.13.3 of the CVCA 2024 WPRM, the Provincial Planning Statement, 2024 at section 5.2.3(c), and Appendix 6: Floodproofing of Technical Guide: River and Streams Systems – Flood Hazard Limit (MNRF, 2002)?

7. Does the proposed development meet floodproofing standards consistent with section 5.4.1 and Appendix C of the CVCA 2024 WPRM, the Provincial Planning Statement, 2024 at section 5.2.8(a), and Appendix 6: Floodproofing of Technical Guide: River and Streams Systems – Flood Hazard Limit (MNRF, 2002)?

8. Does the proposed development constitute development within the Regulatory floodplain and/or the flooding hazard inconsistent with section 5.2.1, 5.2.7, 5.3.13.1 of the CVCA 2024 WPRM, the Provincial Planning Statement, 2024 at section 5.2.2(a), 5.2.2(b)?

9. In view of the prohibition against development activities under subsection28(1) and the criteria for issuing a permit under subsection 28.1(1) of the Act, does the application meet the requirements of CVCA’s 2024 WPRM to the interpretation of these requirements?

Planning Act Issues

10. In view of the prohibition against development activities under subsection 28(1) and the criteria for issuing a permit under subsection 28.1(1) of the Act, does the application have regard to the protection of public health and safety and the appropriate location of development in accordance with subsections 2(o) and 2(p) of the Planning Act?

11. In view of the prohibition against development activities under subsection 28(1) and the criteria for issuing a permit under subsection 28.1(1) of Act; the relevant provincial interests in the Planning Act identified in Issue No. 10 above; and, the requirement, pursuant to subsection 3(5) of the Planning Act, that decisions of the Tribunal shall be consistent with policy statements that are in effect on the date ofthe decision; is the application inconsistent with section 5.0 of the Provincial Planning Statement (2024) in that it proposes development that would create an unacceptable risk to public health or safety or of property damage, and/or creates new or aggravates existing hazards?

12. In view of the prohibition against development activities under subsection 28(1) and the criteria for issuing a permit under subsection 28.1(1) of the Conservation Authorities Act; the relevant provincial interests in the Planning Act identified in Issue No. 10 above; and, the requirement, pursuant to subsection 3(5) of the Planning Act, that decisions of the Tribunal shall be consistent with policy statements that are in effect on the date of the decision; is the application consistent with policies 5.2.2(a), 5.2.2 (b), 5.2.2(c), 5.2.3(c) and 5.2.3(d) of the Provincial Planning Statement (2024)?

13. In view of the prohibition against development activities under subsection 28(1) and the criteria for issuing a permit under subsection 28.1(1) of the Conservation Authorities Act; the relevant provincial interests in the Planning Act identified in Issue No. 10 above; and, the requirement, pursuant to subsection 3(5) of the Planning Act, that decisions of the Tribunal shall be consistent with policy statements that are in effect on the date of the decision; is the application consistent with policies 4(a) of the Provincial Planning Statement (2024)?

14. In view of the prohibition against development activities under subsection 28(1) and the criteria for issuing a permit under subsection 28.1(1) of the Act; the relevant provincial interests in the Planning Act identified in Issue No. 10 above; and, the requirement, pursuant to subsection 3(5) of the Planning Act, that decisions of the Tribunal shall be consistent with policy statements that are in effect on the date of the decision; in refusing the application, was CVCA acting in a manner consistent with policy 5.2.4 of the Provincial Planning Statement (2024) in that it was preparing for the impacts of a changing climate that may increase the risk associated with natural hazards?

ATTACHMENT 4

ORDER OF EVIDENCE

1. John and Laurie Deshane
2. Crowe Valley Conservation Authority
3. John and Laurie Deshane, in reply