Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 29, 2024
CASE NO(S).:
OLT-22-003300
(Formerly PL170869)
OLT-22-004723
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Bushland Heights Limited
Appellant: Via-Ru Limited
Subject: By-law No. 2017-66
Municipality: Township of King
OLT Case No.: OLT-22-003300
Legacy Case No.: PL170869
OLT Lead Case No.: OLT-22-003300
Legacy Lead Case No.: PL170869
OLT Case Name: Bushland Heights Limited v. King (Township)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 611428 Ontario Limited
Subject: By-law No. 2022-053
Description: Rural Countryside Zoning By-Law
Reference Number: Z-2020-03
Property Address: Town Wide
Municipality/UT: Township of King/Regional Municipality of York
OLT Case No.: OLT-22-004723
OLT Lead Case No.: OLT-22-004723
OLT Case Name: 611428 Ontario Limited et al. v. King (Township)
Heard: January 15, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Township of King
Tom Halinski
Jasmine C. M. Fraser
Via-Ru Limited
Steven Ferri
Mandy Ng (in absentia)
Bushland Heights Limited
Steven Ferri
Mandy Ng (in absentia)
611428 Ontario Limited
Steven Ferri
Mandy Ng (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON JANUARY 15, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the fourth Case Management Conference ("Fourth CMC") pursuant to section 34(19) of the Planning Act ("Act") by Via-Ru Limited and Bushland Heights Limited ("Appellants) of the Township of King’s ("Township") Comprehensive Zoning By-law No. 2017-66, which is the Township’s Urban By-law.
2This matter has a long-standing history, having first come before the Ontario Municipal Board, as the Tribunal was then known, in 2017. It was previously under file number PL170869. Three pre-hearing conferences ("PHC"), as CMCs were then called, took place on January 18, 2018, July 3, 2018, and November 2, 2018. There are no other Parties or Participants involved in this matter, apart from the Appellants and the Township. At the last PHC, the Parties advised that they were engaging in discussions in order to scope the issues to be adjudicated. The Parties advised in 2023 that they were ready for this matter to be adjudicated.
3At the Fourth CMC, the Township’s Counsel explained that, since 2018, the Appellants’ Appeals have been scoped to the lands owned by those Appellants, as well as certain policies as they pertain to the "Future Use" provisions and zones. The Parties agree that it is now time to move forward with these Appeals and the issues at play are ready to be addressed.
HEARING TOGETHER OF APPEALS
4Concurrently, there is a file before the Tribunal under file number OLT-22-004723, with respect to seventeen appeals filed in relation to the replacement of the Township of King’s Comprehensive Zoning By-law No. 74-53, which is to be replaced by Zoning By-Law No. 2022-053 ("ZBL 2022-053"), passed by the Township’s Council on September 26, 2022. ZBL 2022-053 is the Township’s Rural By-law.
5One of the Appellants in the OLT-22-004723 file is 611428 Ontario Limited ("Ontario"). Ontario has raised a number of issues with ZBL 2022-053, some of which pertain to future residential zones. These overlap with some of the issues raised in the subject file, OLT-22-003300, namely the "Future Use" provisions. As such, Ontario and the Township proposed that those issues be addressed simultaneously with some of the issues raised by the Appellants in OLT-22-003300.
6The Tribunal inquired as to how best the Parties proposed that Ontario be added to this subject Appeal. Both Parties agreed that it would be best for Ontario’s "Future Use" issues, raised in OLT-22-004723, to be heard together with this appeal. A consolidation or addition of Ontario as an added Party would not be appropriate as Ontario’s other issues were to remain under OLT-22-004723.
7Upon hearing submission from the Parties, the Tribunal agreed that this would be the appropriate course of action, and that Ontario’s issues could be appropriately heard together with those raised in the subject Appeal. Thus, in the interest of a fair and expeditious proceeding, and in accordance with Rule 16.1 of the Tribunal’s Rules of Practice and Procedure, this subject appeal, OLT-22-003300, will be heard together with a part of Ontario’s appeal in OLT-22-004723.
PROCEDURAL ORDER AND ISSUES LIST
8The Parties provided a draft Issues List ("IL") prior to the CMC, and advised that the IL was going to be further refined, with specific policies at issue identified, subsequent to the CMC. Moreover, the Parties advised that the Procedural Order ("PO"), to be provided subsequent to the CMC, would closely mirror the Tribunal’s sample PO.
9The Township’s Counsel undertook to revise and re-submit for approval of the Tribunal a revised PO and IL. This has now been provided and is attached to this Decision as Schedule A.
MEDIATION AND SETTLEMENT
10The Tribunal raised the issue of opportunities for settlement discussions, reminding the Parties that, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services. The Parties advised that discussions were ongoing with the aim of resolving as many issues as are possible to resolve.
HEARING DETAILS
11Due to the issues listed on the IL, and the number of Parties and potential witnesses, the Tribunal agreed that a four-day Hearing would be sufficient. A Video Hearing has now been scheduled for four days, commencing at 10 a.m. on Tuesday, November 12, 2024, and continuing to Friday, November 15, 2024.
12The Hearing is scheduled to proceed by video as follows:
GoToMeeting: https://global.gotomeeting.com/join/660145013
Access Code: 660-145-013
13On those dates, the Parties 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. Persons 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: Toll-Free: 1-888-299-1889 or +1 (647) 497-9373. The Access Code is: 660-145-013.
14Parties 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
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 Hearing 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 as follows:
a. Some of the issues raised by 611428 Ontario Limited in its appeal under Tribunal file OLT-22-004723 will now be heard together with the issues raised by the Appellants in this subject Appeal, in accordance with Rule 16 of the Tribunal’s Rules of Practice and Procedure.
b. The Procedural Order and Issues List, attached to this Decision as Schedule A, shall govern these proceedings.
c. The Video Hearing in this matter will commence at 10 a.m. on Monday, November 12, 2024 and four days have been set aside.
17The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise with the implementation of this Order.
"Bita M. Rajaee"
BITA M. RAJAEE
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.
SCHEDULE A
CASE NO(S).: OLT-22-003300
(Formerly PL170869)
OLT-22-004723
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Bushland Heights Limited
Appellant: Via-Ru Limited
Subject: By-law No. 2017-66
Municipality: Township of King
OLT Case No.: OLT-22-003300
Legacy Case No.: PL170869
OLT Lead Case No.: OLT-22-003300
Legacy Lead Case No.: PL170869
OLT Case Name: Bushland Heights Limited v. King (Township)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 611428 Ontario Limited
Subject: By-law No. 2022-053
Description: Rural Countryside Zoning By-Law
Reference Number: Z-2020-03
Property Address: Town Wide
Municipality/UT: Township of King/Regional Municipality of York
OLT Case No.: OLT-22-004723
OLT Lead Case No.: OLT-22-004723
OLT Case Name: 611428 Ontario Limited et al. v. King (Township)
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 Tuesday, November 12, 2024 at 10:00 a.m. at the following link:
Access Code: 660-145-013
Audio-only telephone line: 1-888-299-1889 (Toll Free) or +1 (647) 497-9373
Audio-only access code: 660-145-013
The video hearing is scheduled for 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 are set out in Attachment 2.
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. An issue can be removed from the Issues List without a formal order of the Tribunal with the consent of all Parties.
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. 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 Friday, July 5, 2024 and in accordance with paragraph 21 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 Friday, July 19, 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 Friday, August 2, 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 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 7.4 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the Township, such report(s) shall be provided to the other Parties at the same as the delivery of expert witness statements.
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.
On or before Friday, September 6, 2024, the Parties shall provide copies of their witness and/or expert witness statements to the other Parties and to the OLT case co-ordinator and in accordance with paragraph 21 below.
On or before Friday, October 4, 2024, the Parties may provide to all other Parties and the OLT case co-ordinator a written response to any written evidence.
On or before Friday, October 4, 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.
On or before Friday, October 11, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
The Parties shall cooperate to prepare a Joint Document Book which shall be shared with the OLT case co-ordinator on or before Friday, November 1, 2024.
A party 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 Friday, November 1, 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, where feasible, 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 Tribunal’s 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.
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
Friday, July 5, 2024
Exchange of witness lists (names, disciplines and order to be called)
Friday, July 19, 2024
Experts’ meeting
Friday, August 2, 2024
Agreed statements of facts (if any)
Friday, September 6, 2024
Exchange of witness statements, summoned witness outlines, and expert reports
Friday, October 4, 2024
Exchange of reply witness statements (if any)
Friday, October 4, 2024
Exchange of visual evidence (if any)
Friday, October 11, 2024
Deadline for advising the Tribunal if all the reserved hearing dates are required
Friday, November 1, 2024
Preliminary hearing plan filed with the Tribunal
Friday, November 1, 2024
Joint document book filed with the Tribunal
Tuesday, November 12, 2024
Hearing
ATTACHMENT 2
LIST OF PARTIES AND PARTICIPANTS
PARTIES
Township of King
c/o Tom Halinski (thalinski@airdberlis.com) and
Jasmine C.M. Fraser (jcmfraser@airdberlis.com)
Bushland Heights Limited
c/o Steven C. Ferri (sferri@LN.Law) and
Mandy Ng (mng@LN.Law)
Via-Ru Limited
c/o Steven C. Ferri (sferri@LN.Law) and
Mandy Ng (mng@LN.Law)
611428 Ontario Limited
c/o Steven C. Ferri (sferri@LN.Law) and
Mandy Ng (mng@LN.Law)
PARTICIPANTS
None
ATTACHMENT 3 ISSUES LIST
Note: The identification and wording of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is relevant, appropriate, accurately-worded, or that the Tribunal has jurisdiction over it. The identification of an issue by a party indicates that party’s framing of the question and intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other parties the case they need to meet.
Site-Specific Issues
Bushland Heights Limited
- Should the Tribunal amend By-law 2017-66 as it relates to 13245 Jane Street in accordance with the zoning approved in OLT Case No. PL180116?
Issues re: "Future Use" Zone in King Township Zoning By-law 2017-66
Bushland Heights Limited and Via-Ru Limited
- Do the appealed policies and schedules at issue meet applicable tests:
a. Does the future use zone comply with the requirements of the Planning Act, including sections 2, 3, 26 and 27?
b. Is the future use zone consistent with the Provincial Policy Statement, including Part 1 Preamble, policies 1.1.1, 1.1.2, 1.1.3.1 to 1.1.3.7, 1.4, 1.7.1?
c. Is the future use zone in conformity with the Growth Plan for the Golden Horseshoe, including policies 2.2.1.2, 2.2.1.3, 2.2.6, 2.2.7, 5.2.5.5?
d. Is the future use zone in conformity with the York Region Official Plan, including policies 2.1.4, 2.3.44, 4.1.3, 4.2.3, ,4.2.5, 4.2.7, 7.3.1?
e. Is the future use zone in conformity with the applicable King Official Plan, including Schedule D3 and Policy 5.6?
If the answer to issue #2 is no, what revisions are required to By-law 2017-66?
Is the future use zone overly restrictive?
Issues re: "Future Use" Zone in King Township Zoning By-law No. 2022-053
611428 Ontario Limited (originally issues in OLT Case No. OLT-22-004723)
Does the "Future Use" zone in King Township Zoning By-law No. 2022-053 conform to the Planning Act, including sections 2 and 26?
Does the proposed "Future Use" zone in King Township Zoning By-law No. 2022-053 conform to applicable Provincial plans, including the Growth Plan, Greenbelt Plan, and Oak Ridges Moraine Plan?
Is the proposed "Future Use" zone in King Township Zoning By-law No. 2022-053 consistent with applicable Provincial policies, including the Provincial Policy Statement, 2020?
Does the proposed "Future Use" zone in King Zoning By-law 2022-053 conform to the applicable municipal policies of the York Region Official Plan 2010 and King Township Official Plan?
Does the proposed "Future Use" zone in King Township Zoning By-law No. 2022-053 represent good planning and is it in the public interest?
Is the proposed "Future Use" zone in King Township Zoning By-law No. 2022-053 overly restrictive?
If Issues 5 to 9 above are answered in the negative and/or if Issue 10 above is answered in the positive, what modifications to King Township Zoning By-law No. 2022-053 are required?
ATTACHMENT 4
ORDER OF EVIDENCE
Township of King
Bushland Heights Limited
Via-Ru Limited
611428 Ontario Limited
Reply by Township of King (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 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.
55941420.2