Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 08, 2024
CASE NO(S).: OLT-23-000863
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2
Appellant: Joseph Beltrano
Appellant: Mary Horvath and Teddy Vritsios
Appellant: Paul and Maya McCarty
Appellant: Brad and Melanie McKellar
Applicant: Jordan Heckman
Owner: Chad Whittington
Subject: Approval of a Development Permit Application
Description: Proposed to construct a two storey accessory structure
Reference Number: N/R/2022-2023/262
Property Address: 15 Woodcrest Drive
Municipality/UT: Grimsby/Niagara
OLT Case No.: OLT-23-000863
OLT Lead Case No.: OLT-23-000863
OLT Case Name: Beltrano v. Ontario (NEC)
Heard: January 26, 2024 by video hearing
APPEARANCES:
Parties
Counsel*/Representative
Joseph Beltrano
Self-represented
Paul and Maya McCarty
Self-represented
Mary Horvath and Teddy Vritsios
Self-represented
Brad and Melanie McKellar
Self-represented
Chad Whittington
Colin Léger*
MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON JANUARY 26, 2024 AND ORDER OF THE HEARING OFFICE
1This Decision arises from the second Case Management Conference (“CMC”) for the Appeals brought by Joseph Beltrano, Paul and Maya McCarty, Mary Horvath and Teddy Vritsios, and Brad and Melanie McKellar (together, “Appellants”) regarding the issuance of a development permit by the Niagara Escarpment Commission (“NEC”) for the subject property located at 15 Woodcrest Drive (“subject property”), in the Town of Grimsby, Ontario. The subject property is owned by Chad Whittington (“Applicant”).
2At the first CMC on December 28, 2023, the Appellants requested additional time so that they could retain legal counsel and then determine which expert witnesses they would call at a future hearing. The Parties were also asked to refine their Issues List by referencing applicable laws/policies that apply to each. The Parties indicated some interest in settlement discussions and the Hearing Officer asked Counsel for the Applicant to initiate discussions to narrow the issues and possibly resolve some, if not all of them. An updated Procedural Order/Issues List (“PO/IL”) was provided to the Tribunal before the second CMC.
3A representative from the NEC attended the first CMC as a Friend of the Hearing Office and provided some guidance to the Parties. The Hearing Office contacted the NEC regarding their participation in the second CMC and received no response and they did not attend.
4The Hearing Officer received the following updates at this Hearing:
a. The Appellants asked that Mr. Beltrano speak on their behalf, and he told the Hearing Officer that the Appellants have revised the IL and provided an updated copy. The Appellants will not have legal counsel representation and they have investigated having an expert witness in the environmental field but have not confirmed a plan for this.
b. Mr. Léger indicated that the Parties did meet in January which did not result in a resolution. They have an agreement on the organizational structure of the draft PO but his client does not agree to the inclusion of the “majority of the issues raised by the appellants.” He believes that several of the issues are outside of the jurisdiction of the Hearing Office and do not relate to appropriate policy or legislation. He is supportive of setting a hearing date should they be unable to settle the issues.
5The Hearing Officer surveyed the Parties concerning their interest in Tribunal-led mediation, but the Parties indicated that it is not necessary. Mr. Beltrano indicated that the Appellants are open to settling this matter and that they have submitted an idea to the Applicant, which has not been responded to by the NEC at this time.
6During the first CMC, the Parties were instructed to revise the IL “so that it concisely states each issue and provides references to the specific laws and/or policies that apply, such as specific policies in the Niagara Escarpment Plan and/or the Provincial Policy Statement, 2020.” The updated IL was reduced from 14 to nine (9) issues but required additional revisions to comply with the direction previously given. Counsel for the Applicant referenced Objective 7 of the Niagara Escarpment Plan, which states that its purpose is to “support municipalities within the Niagara Escarpment Plan Area in their exercise of the planning functions conferred upon them by the Planning Act” to support his position that the issues need to be planning related matters.
7The Hearing Officer heard submissions from the Parties on each issue from the updated list. In summary, Mr. Beltrano indicated that concerns of the Appellants remain the same (water run-off, compatibility, air quality and noise, and permitted uses) and following the review of the issues, acknowledged that they have struggled with connecting the issues to appropriate and specific legislation. He indicated that it is his preference that the Hearing Officer make final decisions regarding the IL.
8The Applicant expressed concerns with the IL related to its general lack of clarity, references to inappropriate sections of the Provincial Policy Statement 2020 (“PPS”), the use of legislation outside of the Planning Act and not applicable to the subject property, and the lack of specific section references in the Niagara Escarpment Plan (2017) and Vegetation Protection Plan. Mr. Léger indicated that it would be difficult to move toward a settlement or a hearing without these concerns being addressed.
9The Hearing Officer provided the following directions to the Parties:
a. The Appellants are to review and update the IL based on the direction provided at the first CMC, submissions heard during this CMC and the additional Municipal Record documentation provided to the Appellants related to conditions imposed on the Applicant by the Municipality.
b. On or before February 9, 2024, the Appellants are to share an updated IL with the Applicant and again attempt to find consensus on the issues. Where there is still disagreement, the Parties are to provide written submissions on those specific items to the Hearing Office.
10The Hearing Office received an updated PO/IL which was submitted by the Applicant with the consent of the Appellants on February 20, 2024. Mr. Léger indicated that the Parties agree on the PO deadlines but that there is no agreement on the two issues that remain and the Appellants have informed him that they are unwilling to discuss any further changes.
11The Hearing Officer received and considered additional submissions from the Parties between February 20, 2024 and March 1, 2024 regarding the IL and hereby approves the PO/IL found in Schedule 1.
12The Hearing Office directs that a two-day Hearing commence at 10 a.m. on Tuesday, April 30, 2024, by video and the PO found in Schedule 1 is in full force and effect upon issuance of this decision.
13Parties 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:
https://global.gotomeeting.com/join/979388733
Access code: 979 388 733
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
15Persons 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: Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is as indicated above.
16Individuals 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 Case Coordinator having carriage of this case.
ORDER
17THE HEARING OFFICER ORDERS THAT:
- the Procedural Order found in Schedule 1 is approved and is in full force and effect.
18There will be no further notice.
19This Hearing Officer is not seized.
“Gregory J. Ingram”
GREGORY J. INGRAM
HEARING OFFICER
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 1
CASE NO(S).: OLT-23-000863
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2
Appellant: Joseph Beltrano
Appellant: Mary Horvath and Teddy Vritsios
Appellant: Paul and Maya McCarty
Appellant: Brad and Melanie McKellar
Applicant: Jordan Heckman
Owner: Chad Whittington
Subject: Approval of a Development Permit Application
Description: Proposed to construct a two storey accessory structure
Reference Number: N/R/2022-2023/262
Property Address: 15 Woodcrest Drive
Municipality/UT: Grimsby/Niagara
OLT Case No.: OLT-23-000863
OLT Lead Case No.: OLT-23-000863
OLT Case Name: Beltrano v. Ontario (NEC)
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 30, 2024, at 10 a.m.
The parties’ initial estimation for the length of the hearing is 2 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 (see the sample procedural order for the meaning of these terms).
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 – 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 February 20, 2024, 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 March 1, 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 March 15, 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 March 15, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before March 15, 2024, 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 March 26, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before April 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 co-ordinator a written response to any written evidence within ten (10) days after the evidence is received 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 co-ordinator on or before April 19, 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 April 23, 2024, 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 23, 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.
Summary of Key Dates
Date Hearing Event
February 26, 2024 Deadline to exchange expert witness list
March 01, 2024 Meeting of like experts
March 15, 2024 Exchange and file Agreed Statement of Facts
March 15, 2024 Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons
March 15, 2024 Exchange of Participant Statements
March 26, 2024 Confirm with Tribunal if all reserved hearing dates are still required.
April 19, 2024 Exchange of Visual Evidence
April 19, 2024 Provide joint document book to case coordinator
April 23, 2024 Hearing Plan
April 23, 2024 Notification to Tribunal and Parties if witness not to provide oral evidence
April 30, 2024 Hearing start date
ATTACHMENT 1: PARTIES AND PARTICIPANTS
Parties
- Niagara Escarpment Commission
Andrej Obradovic, Planner for the NEC
- Chad & Bonnie Whittington (Applicants)
Garrod Pickfield LLP
9 Norwich St. W
Guelph, ON N1H 2G8
Colin Léger
T: 519.837.0500
- Mary Horvath & Teddy Vritsios (Appellants)
Maryliz0729@gmail.com & Theo0324@gmail.com
- Joseph Beltrano (Appellant)
- Paul & Maya McCarty (Appellants)
- Brad & Melanie McKellar (Appellants)
ATTACHMENT 2: ISSUES LIST
NOTE: Identification of an issue on this list does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the matter. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.
Joseph Beltrano, Paul & Maya McCarty, Mary Horvath and Teddy Vritsios Issues
- To ensure the development proposal conforms to the following Provincial Policy Statement (2020) policies, has an environmental assessment been completed to appropriately inform, measure, and eliminate all negative impacts of stormwater infiltration to neighbouring property?
c. 1.6.6.7.d)
d. 1.6.6.7.e)
e. 1.6.6.7.f)
- To uphold compatibility with the surrounding area in terms of scale, form, height, preservation of character, and to support long-term economic prosperity, does the development proposal conform to the following Provincial Plan Statement policy:
f. 1.7.1 e)
ATTACHMENT 3: ORDER OF EVIDENCE
Mary Horvath & Teddy Vritsios (Appellants)
Joseph Beltrano (Appellant)
Paul & Maya McCarty (Appellants)
Brad & Melanie McKellar (Appellants)
Chad & Bonnie Whittington (Applicants)
Reply by Appellants
ATTACHMENT 4
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.