Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 28, 2024
CASE NO.:
OLT-22-004691
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Brian Riley
Applicant: Subject:
David & Shawna Kennie Zoning By-law Amendment
Description:
To permit current use of autobody repair establishment
Property Address:
199 Sideroad 5B
Municipality/UT:
South Bruce/Bruce
Municipal File No.:
Z-2022-088
OLT Case No.:
OLT-22-004691
OLT Lead Case No.:
OLT-22-004691
OLT Case Name:
Riley v. South Bruce (Municipality)
BEFORE:
S. BRAUN
Wednesday, the 28th
MEMBER
day of February, 2024
THE TRIBUNAL ORDERS that further to the Decision issued on April 24, 2023, the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on October 16, 2024. The Tribunal has set aside 7 day(s) for the hearing.
“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.
SCHEDULE A
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 Wednesday, October 16, 2024 at 10:00 a.m. at Go-To Meeting: https://global.gotomeeting.com/join/765631861 Access Code: 765-631-861 and is scheduled for a total of seven (7) days.
The parties’ initial estimation for the length of the hearing is seven (7) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1.
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible. 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, June 2, 2023, and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before Friday, June 30, 2023, 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 an updated Statement of Agreed Facts and Issues with the OLT case coordinator on or before Friday, July 28, 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.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before Friday August 23, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 22 below.
On or before Friday, July 28, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before Friday, August 30, 2024, the parties shall confirm with the Tribunal if all of the reserved hearing dates are still required.
On or before Friday, September 20, 2024, 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.
Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence by Friday, September 13, 2024, and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before Friday, September 20, 2024.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 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, October 4, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
This Member is [not] seized.
So orders the Tribunal.
ATTACHMENT 1
List of Appellants/Parties/Participants
APPELLANT
- Appellant - Brian Riley:
191 Sideroad 5B
Formosa, Ontario, N0W 1W0 brian_g_riley@live.com
Legal Counsel for the Appellant: Siskinds LLP
275 Dundas Street, Unit 1
London, ON N6B 3L1
Paula Lombardi
519.660.7878
PARTIES
- Approval Authority - Municipality of South Bruce
21 Gordon Street, East
Teeswater, Ontario, N0G 2S0
Leanne Martin, CAO/Clerk lmartin@southbruce.ca
Legal Counsel for the Municipality:
115 King Street South, Suite 300
Waterloo, Ontario N2J 5A3
Thomas Sanderson 519-593-2432 tsanderson@millerthomson.com
- Applicants Shawna and David Kennie
199 Sideroad 5B
Formosa, Ontario, N02 1Wo
Legal Counsel for the Applicants:
SmithValeriote Law Firm LLP 105 Silvercreek Pkwy. N., Suite 100 Guelph, Ontario N1H 6S4
Eric Davis
519 837 2100 edavis@svlaw.ca
PARTICIPANTS
None
ATTACHMENT 2
Issues List
Notes: The identification of an issue does not mean that all parties agree to such issue, or the manner in which the issue is phrased, is appropriate or is relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination of the hearing will be a matter of evidence and argument at the hearing.
Planning Act
- Does the proposed zoning by-law amendment to permit the Agriculture Commercial Industrial Special (ACI-40) zone allowing for farm equipment repair, farm-related autobody repair establishment, Farm Implement Establishment and Automobile Service Station uses, in addition to all uses permitted in the ACI Zone as applied to the Subject Land have sufficient regard for matters of provincial interest set out in section 2 of the Planning Act specifically sections 2(b), 2(g), 2(h) and 2(o)?
Provincial Policy Statement, 2020
- Is the proposed Agriculture Commercial Industrial Special (ACI-40) zone consistent with policies 1.1.1 c), 1.2.6, 1.2.6.1, 2.3.3, 2.3.3.1, and 2.3.6.1 b)?
Permitted Uses in Ontario’s Prime Agricultural Areas (Publication 851)
- Is the Agriculture Commercial Industrial Special (ACI-40) zone in keeping with the intent and purpose of the Permitted Uses Guidelines, Ministry of Agriculture, Food and Rural Affairs, Section 2.2 Agriculture-Related Uses?
County of Bruce Official Plan
Is the proposed Agriculture Commercial Industrial Special (ACI-40) zone appropriate and does it confirm to the Agricultural Areas policies as set out in the County of Bruce Official Plan?
Do the proposed Agriculture Commercial Industrial Special (ACI-40) zone conform to the following policies of the County of Bruce Official Plan: 5.5.4, 5.5.4.1, 5.5.4.2 and 5.5.9?
Are the proposed uses set out in the Agriculture Commercial Industrial Special (ACI-40) zone secondary and directly related to the principal use of the Subject Land?
Is the proposed use of the Subject Land including the Farm Implement Establishment and Automobile Service Station related to, supportive of, or required or necessary to be situated in close proximity to farming operations?
Municipality of South Bruce Zoning By-law
Does the Subject Land comply with the minimum lot area requirements set out in section 16.3 for the ACI zone for non-residential uses in the Municipality of South Bruce Zoning By-law for the non-residential uses?
Does the Subject Land and proposed ACI-40 Zone comply with the provisions set out in section 13 General Provisions for Industrial Zones?
Does the Subject Land and proposed ACI-40 Zone comply with the provisions set out in section 3 General Provisions for All Zones, including but not limited to section 3.3, 3.14, 3.15, 3.24, 3.25, 3.26 and 3.26.6?
MECP D-6 Guidelines
- Does the use of the Subject Land for the Automotive Refinishing Facility as defined by the Ministry of Environment, Conservation and Parks meet the required setbacks with respect to the automotive refinishing and sandblasting operation(s) including the D-6 Guidelines?
General
Are the proposed uses compatible with the surrounding Agricultural zone?
Do the proposed uses including the Farm Implement Establishment and Automobile Service Station result in unacceptable and adverse impacts being particulate matter on the surrounding residential uses and natural features?
Are the proposed new uses including the Farm Implement Establishment and Automobile Service Station appropriate for the Subject Land and does it represent good planning?
ATTACHMENT 3: Order of Evidence
The Approval Authority, Municipality of South Bruce – Factual Overview Only
The Appellant, Brian Riley
The Applicants, Dave and Shawna Kennie
The Approval Authority, Municipality of South Bruce
The Appellant, Brian Riley - Reply Only
SUMMARY OF DATES
DATE
EVENT
Friday, June 2, 2023
Exchange of witness lists (names, disciplines and order to be called)
Friday, June 30, 2023
Experts meeting prior to this date
Friday, July 28, 2024
Agreed Statement of Facts - update
Friday, August 23, 2024
Exchange of Witness Statements, summoned witness outlines, and Expert Reports
Friday, August 30, 2024
Confirmation of Hearing Dates Required
Friday, September 13, 2024
Exchange of Reply Statements
Friday, September 20, 2024
Exchange of Visual Evidence (if any)
Friday, September 20, 2024
Finalize Joint Document Book
Wednesday, October 4, 2024
Final Hearing Plan filed with the Tribunal
Wednesday, October 16, 2024
Hearing commences