Kennedy Road Holdings Limited v Toronto (City), 2024 CanLII 126568

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 19, 2024

CASE NO(S).: OLT-24-000586

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Kennedy Road Holdings

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of two towers, 21 and 42 storeys in height

Reference Number: 22 121988 ESC 20 OZ

Property Address: 708-712 Kennedy Road

Municipality: Toronto

OLT Case No.: OLT-24-000586

OLT Lead Case No.: OLT-24-000586

OLT Case Name: Kennedy Road Holdings Limited v Toronto (City)

Heard: October 18, 2024 by video hearing

APPEARANCES:

Parties

Counsel

Kennedy Road Holdings Ltd.

Joe Hoffman

City of Toronto

Jamie Dexter

MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON OCTOBER 18, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Ontario Land Tribunal (the “Tribunal”) was with respect to the Appeals of the non-decision of the City of Toronto (the “City”) regarding an Application to amend Zoning By-law No. 569-2013.

2The Application proposes to intensify underutilized lots, and replace two low-rise buildings with two towers that are 21 and 42 storeys in height. "Tower A", which is 21 storeys in height, would front Kennedy Road with a six-storey podium facing the street. "Tower B", which is 42 storeys in height, would be located toward the rear (west) of the Property, with a three-storey podium.

3The Property is located on the west side of Kennedy Road, south of Eglinton Avenue East. The Property is generally rectangular in shape, approximately 1,254 square metres in size. Existing on the Property are two four-storey apartment buildings comprising 98 rental dwelling units, with surface parking at the rear.

4Access to the Property is proposed through a private driveway from Kennedy Road with a vehicular turnaround area between the buildings where access to the below-grade parking garage is located. The proposal would include a Privately Owned Public Accessible Open Space (“POPS”) at the northwest corner of the Property, which is proposed to be accessed off the private driveway that would be subject to an easement in favour of the City. The POPS would serve as an extension of existing abutting greenspace and adjacent to a landscaped area on the Property that is proposed to include a pet relief area and playground.

5The development proposes 682 residential units (including 98 rental replacement units) with a range of unit types and sizes, contributing towards a mix of availability housing options. A large proportion of new family sized apartment units are proposed, with approximately 47% of all units consisting of two- and three-bedroom units. Collectively, the proposal has a total of 49,877 square metres of gross floor area.

6City Council failed to make a decision within the statutory timeframe.

CASE MANAGEMENT CONFERENCE

7The purpose of the Case Management Conference (the “CMC”) was to receive status updates from all Parties to organize the hearing of these Appeals.

8The Tribunal received an Affidavit of Service sworn by Linda Roberts and marked as Exhibit 1.

9The Tribunal heard the Parties are evaluating an opportunity for a settlement through Tribunal led mediation.

10Further the Parties are seeking a ten (10) day hearing.

11The Tribunal hereby schedules a hearing of these appeals commencing on Monday, July 21, 2024 at 10 a.m. Ten (10) days have been set aside.

12Parties are asked to log into the CMC at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/687587165

Access Code: 687-587-165

13Parties and observers 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 CMC 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

16THE TRIBUNAL ORDERS THAT:

a. The case management directives set out above are so ordered.

b) The Procedural Order attached as Schedule A shall govern the conduct of this proceeding.

17No further notice will be given.

18The Member is not seized.

“Carmine Tucci”

CARMINE TUCCI

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

CASE NO.: OLT-24-000586

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Kennedy Road Holdings Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Proposed Zoning: Site Specific to be determined

Purpose: To permit the development of two towers, 21 and 42 storeys in height

Property Address/Description: 708-712 Kennedy Road

Municipality: City of Toronto

Municipal File No:. 22 121988 ESC 20 OZ

OLT Case No.: OLT-24-000586

OLT File No.: OLT-24-000586

OLT Case Name: Kennedy Road Holdings Limited v Toronto (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 hearing will begin on July 21, 2025, at 10:00 a.m. as directed in the Tribunal's Decision and Order.

3. The length of the hearing will be ten (10) 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 listed in Attachment 2 to this Order.

5. The Issues are set out in the Issues List attached as Attachment 3 to this Order. The Parts will attempt to resolve the issues prior to the hearing on the merits of the appeal. There will be no changes to the Issues List unless the Tribunal permits, and a Party who asks for changes may have costs awarded against it.

6. The order of evidence is 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 shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.

8. If the hearing is to proceed electronically, 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 (https://olt.gov.on.ca/guides/).

Requirements Before the Hearing

9. 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, updated supporting documents and reports, to the other Parties on or before February 19, 2025 unless otherwise agreed to by the parties. If the Applicant provides a revised proposal, the parties shall have the right to reasonably revise the issues list to address the revision(s). If the Applicant provides a revised proposal after the last date for revised plans above without the consent of the parties, it may be grounds for a request to adjourn the hearing.

10. 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, the expert witness(es)' curriculum vitae and Acknowledgement of Expert Duty form(s), and the order in which the witnesses will be called. This list must be delivered at least on or before March 24, 2025. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed 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 April 14, 2025.

11. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the Parties and the Tribunal at least fifteen days (15) days prior to date for Expert Witness Statements as stated in Section 15 (on or before May 5, 2025), if agreement is reached.

12. 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 the curriculum vitae and Acknowledgment of Expert Duty Form previously provided as in Section 10. Copies must be provided as in Section 15. 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 Section 15.

13. A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before May 20, 2025 or the witness may not give oral evidence at the hearing. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

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 Section 15.

15. On or before May 20, 2025, the Parties shall provide copies of their expert witness statements (full disclosure including reports) to the other Parties.

16. On or before June 6, 2025, the Parties may provide to all other Parties a written response to any written evidence.

17. On or before June 11, 2025, the Parties shall advise the Tribunal of whether any hearings dates scheduled for this matter may be released from the Tribunal's calendar. This request may only be made on consent of all of the Parties. If no hearing dates are intended to be released from the Tribunal's calendar, no Party is required to advise the Tribunal anything further in that regard.

18. On or before June 23, 2025, the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving Party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion.

20. A Party who provides a witness’ written evidence 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. On or before June 23, 2025, the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.

22. The Parties shall prepare a Joint Document Book on or before July 2, 2025, and which one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with Section 23.

23. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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. 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, dated July 2, 2020, or as may be amended. Section 23 applies regardless if the hearing event is in-person or electronic.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by Section 9. The Tribunal’s Rule 17 applies to such requests.

25. 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.

26. 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.

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

February 19, 2025

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

March 24, 2025

Exchange of witness lists (names, disciplines and order to be called)

April 14, 2025

Last date to challenge identification of expert witness

May 5, 2025

Experts meeting prior to this date

May 5, 2025

Agreed Statement of Facts

May 20, 2025

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

June 6, 2025

Exchange of Reply Witness Statements (if any)

June 11, 2025

Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)

June 23, 2025

Exchange of visual evidence (if any)

June 23, 2025

Final Work Plan filed with the Tribunal

July 2, 2025

Finalize Joint Document Book

July 21, 2025

Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

*Counsel/Agent

Kennedy Road Holdings Limited

Joe Hoffman Goodmans LLP Bay Adelaide Centre - West Tower 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 Email: jhoffman@goodmans.ca Tel: 416.597.5168

City of Toronto

Gabe Szobel and Jamie Dexter City of Toronto, Legal Services Metro Hall, 26th Floor 55 John Street Toronto, Ontario M5V 3C6 Gabe Szobel E-mail: gabe.szobel@toronto.ca Tel: 416.338.1889 Jamie Dexter E-mail: Jamie.dexter@toronto.ca Tel: 416.394.2799

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. The identification of an issue on this list by a Party indicates that Party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the Tribunal have jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the Tribunal.

A. City of Toronto

Planning Act

1. Does the proposed development have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including subsections 2 (f), (h), (j), (n), (o), (p), (q), and (r)?

2. Would approval of the proposed development by the Tribunal have regard for the decision of City Council and the information and material that City Council considered in making its decision as required by Section 2.1 of the Planning Act?

Provincial Policy Statement, 2020

3. Is the proposed development consistent with the Provincial Policy Statement (2020) as required by Section 3(5) of the Planning Act, including with respect to the following policies?

a. 1.1.1;

b. 1.1.3.2;

c. 1.1.3.3;

d. 1.1.3.7;

e. 1.2.1;

f. 1.4.3;

g. 1.5;

h. 1.6.1;

i. 1.6.5;

j. 1.6.6;

k. 1.6.7;

l. 1.6.8;

m. 1.7;

n. 1.8;

o. 2.2; and

p. 4.6.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020)

4. Is the proposed scale of development and transition of built form to adjacent areas appropriate and is the proposed intensification appropriate considering other objectives of the Growth Plan for the Greater Golden Horseshoe (2020)?

5. Does the proposed development conform to and not conflict with the Growth Plan for the Greater Golden Horseshoe (2020) as required by Section 3(5) of the Planning Act, including with respect to the following policies?

a. 1.2.1;

b. 2.2.1.4;

c. 2.2.2.3;

d. 2.2.4.10;

e. 2.2.6;

f. 3.2.1.1;

g. 3.2.1.2;

h. 3.2.3;

i. 3.2.5;

j. 3.2.6;

k. 3.2.7;

l. 3.2.8;

m. 4.2.5;

n. 5.2.4; and

o. 5.2.5.

Provincial Planning Statement, 2024

6. Is the proposed development consistent with the Provincial Planning Statement (2024) as required by Section 3(5) of the Planning Act, including with respect to the following policies?

a. 2.1;

b. 2.2;

c. 2.3.1;

d. 2.4;

e. 2.9;

f. 3.1;

g. 3.6;

h. 3.7;

i. 3.9;

j. 4.1;

k. 4.6;

l. 5.2; and

m. 6.1.

City of Toronto Official Plan

7. Does the proposed development conform with the policies of the City of Toronto Official Plan, including the policies related to:

a. Structuring Growth in the City (Section 2.2);

b. Healthy Neighbourhoods (Section 2.3.1, and specifically but not exclusively 2.3.1.2, 2.3.1.3, 2.3.1.5, and 2.3.1.6);

c. Bringing the City Together, Transportation (Section 2.4);

d. Public Realm (Section 3.1.1, and specifically but not exclusively 3.1.1.9, 3.1.1.13, and 3.1.1.16);

e. Built Form (Section 3.1.3 and Section 3.1.4);

f. Housing (Section 3.2.1);

g. Parks and Open Spaces (Section 3.2.3);

h. Natural Environment (Section 3.4, and specifically but not exclusively 3.4.3, 3.4.8, 3.4.9, 3.4.11, and 3.4.13);

i. Apartment Neighbourhoods (Section 4.2, and specifically but not exclusively 4.2.2 and 4.2.3); and

j. Implementation (Sections 5.3.1, 5.3.2, 5.6)?

Land Use Planning and Urban Design

8. Does the proposed development represent a scale of development and density that is appropriate for the site and surrounding area, and does it provide an appropriate transition in scale and massing to adjacent areas?

9. Does the proposed development fit appropriately within the existing and planned built form context, including with respect to its setbacks, stepbacks, scale, and density, considering the applicable policies and guidelines?

10. Is the proposed setback to the future open space block appropriate?

11. Is the proposed development compatible with the scale, including height and massing, of the existing apartment buildings adjacent to the site?

12. Does the proposed development appropriately mitigate wind impacts from the development on the public realm, amenity spaces, and adjacent properties?

13. Does the proposed development appropriately address shadow impacts from the development on the public realm and adjacent properties?

14. Are the proposed building main entrances directly accessible and clearly visible from a public street?

15. Does the proposal provide adequate space for the preservation of existing trees and the new tree plantings as required by the Toronto Green Standard?

City of Toronto Guidelines

16. Does the proposed development meet the intent and purpose of the following City of Toronto Guidelines and standards?

a. Tall Building Design Guidelines (2013);

b. Growing Up: Planning for Children in New Vertical Communities (2020);

c. Toronto Green Standard v.4 (2022);

d. Streetscape Manual User Guide (2019);

e. Complete Street Guidelines; and

f. Pet Friendly Design Guidelines and Best Practices for New Multi-unit Buildings (2019).

Housing

17. Does the proposed development conform to the policies of the City’s Official Plan's City-wide goals to require developments to provide a full range of housing options that include form, tenure, and affordability?

Amenity Space

18. Does the proposed development provide for sufficient indoor and outdoor amenity space?

Transportation

19. Does the proposed development implement the Complete Street objectives and guidelines, in particular as it relates to Kennedy Road?

Servicing, Access, and Loading

20. Does the proposed development have adequate municipal services in place to support the development, including adequate sanitary, storm and water capacity, including water pressure?

21. Does the proposed development implement appropriate stormwater management measures and groundwater management measures?

22. Should any improvements to the municipal infrastructure be required to support the proposed development, should the Zoning By-law Amendment contain a Holding (H) provision to that effect?

23. Does the proposed development provide appropriate and adequate access to the below-grade parking garage and loading/service area?

24. Does the proposed development provide for adequate loading to support the development?

Public Interest and Good Planning

25. Does the proposed development provide for good planning and urban design, and is it in the public interest?

Conditions

26. If the proposed Zoning By-law Amendment is approved by the Tribunal, in whole or in part, should the Tribunal's final order be withheld until it has been advised by the City Solicitor that the following are addressed? That:

a. the final form and content of the Zoning By-law are to the satisfaction of the City Solicitor and the Interim Chief Planner and Executive Director, City Planning Division;

b. the Owner has at its sole cost and expense:

i. submitted a revised Functional Servicing Report and Stormwater Management Report, Hydrogeological Review, including the Foundation Drainage Report ("Engineering Reports") to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water;

ii. secured the design and provision of financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Engineering Reports, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water, should it be determined that improvements or upgrades are required to support the development, according to the accepted Engineering Reports, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water;

iii. implemented the accepted Engineering Reports and confirmed that the implementation does not require changes to the proposed amending By-laws or any required changes have been made to the proposed amending By-laws to the satisfaction of the Interim Chief Planner and Executive Director, City Planning Division and the City Solicitor, including the use of a Holding ("H") symbol regarding any upgrades to existing municipal servicing infrastructure as may be required;

iv. submitted a revised Transportation Impact Study or addendum acceptable to the General Manger, Transportation Services and the Chief Engineer and Executive Director, Engineering and Construction Services, and that such matters arising from such study be secured if required;

v. submitted a revised Arborist Report or addendum and a Tree Protection Plan acceptable to the General Manager, Parks, Forestry and Recreation;

vi. made revisions to meet the Toronto Green Standard requirements to the satisfaction of the Interim Chief Planner and Executive Director, City Planning Division;

vii. satisfied outstanding comments to the satisfaction of the Toronto and Region Conservation Authority;

viii. submitted a revised Housing Issues Report to the satisfaction of the Interim Chief Planner and Executive Director, City Planning Division; and

c. City Council has approved Rental Housing Demolition application No. 22 137044 ESC 20 RH under Chapter 667 of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006 to permit the demolition of the ninety-eight (98) existing rental dwelling units on the lands, and the Owner has entered into, and registered on title to the lands, an agreement pursuant to Section 111 of the City of Toronto Act, 2006, to secure, among other matters, the following:

i. the provision of ninety-eight (98) replacement rental dwelling units consisting of four (4) studio units, forty-four (44) one-bedroom units, and fifty (50) two-bedroom units;

ii. the rents of the ninety-eight (98) replacement rental units shall be based on the rents of the existing rental units by their respective bedroom types at the time of application and secured for a period of at least ten (10) years beginning from the date of first occupancy of each replacement rental unit; and

iii. the provision of an acceptable Tenant Relocation and Assistance Plan for all Eligible Tenants of the ninety-eight (98) existing rental units proposed to be demolished, addressing the right to return to occupy one of the replacement rental units at similar rents, the provision of rent gap assistance, and other assistance to lessen hardship. The Tenant Relocation and Assistance Plan shall be developed in consultation with, and to the satisfaction of, the Interim Chief Planner and Executive Director, City Planning Division.

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence.

1. Kennedy Road Holdings Limited

2. City of Toronto

3. Kennedy Road Holdings Limited (reply, if any)

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

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. If an unincorporated group wishes to become a Party, 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, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as Parties can.

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a Party 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 intends to present as evidence at the hearing.

Witness Statements:

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 the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A Party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the Parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.

1414-7793-9728