Ballymore Building (Midhurst) Corp. v. Springwater (Township), 2024 CanLII 19744

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 10, 2024

CASE NO(S).: OLT-23-000464 OLT-22-003517 Formerly PL131344

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

Applicant and Appellant: Ballymore Building (Midhurst) Corp. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the site-specific development standards associated with the Proposed Development Reference Number: ZB-2021-004 Property Address: 1224 Carson Road Municipality/UT: Township of Springwater OLT Case No.: OLT-23-000464 OLT Lead Case No.: OLT-23-000464 OLT Case Name: Ballymore Building (Midhurst) Corp. v. Springwater (Township)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Carson Trail Estates Inc. Subject: Proposed Plan of Subdivision - Failure of County of Simcoe to make a decision Purpose: To permit a draft plan of subdivision Property Address/Description: Part Lot 15, Conc. 5 Municipality: Township of Springwater Municipality File No.: SP-T-1202 OLT Case No.: OLT-22-003517 Legacy Case No.: PL131344 OLT Lead Case No.: OLT-22-003517 Legacy Lead Case No.: PL131344 OLT Case Name: Carson Trail Estates Inc. v. Simcoe (County)

Heard: December 4, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel/Agent*
Ballymore Building (Midhurst) Corp. (“Appellant / Applicant”)	Daniel Artenosi
Township of Springwater	Bruce Engell
County of Simcoe	Samantha Trottola
Ryan Cameron	Self-Represented*

MEMORANDUM OF ORAL DECISION DELIVERED BY J. INNIS ON DECEMBER 4, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) respecting an appeal by Ballymore Building (Midhurst) Corp. (“Applicant”) and related to lands municipally known as 1224 Carson Road (“Subject Property”), in the Township of Springwater (“Town”). The appeal arises following a non-decision concerning a Zoning By-law Amendment (“ZBA”) application to permit redevelopment, to allow for 127 single detached units, 24 street townhouses, 40 rear lane townhouses, a 0.34 hectare parkette, public road connections, a road widening along Carson Road, and one future development block.

2During the first CMC on Tuesday, September 5, 2023, there was a decision by the Tribunal to hold a second CMC to address a request for consolidation of OLT Case No. OLT-23-000464 with OLT Case No. OLT-22-003517 (Legacy Case No. PL131344 (“Legacy Case”)). The Legacy Case was an appeal for a Draft Plan of Subdivision (“DPS”) for the Subject Property and made by the property’s previous owner. That appeal was the subject of mediation in 2020, which led to a settlement with the previous owner agreeing to submit site-specific Official Plan Amendment (“OPA”) and ZBA applications for the Subject Property. In 2021, both applications were filed, and the Township and County of Simcoe (“County”) confirmed that the OPA was no longer required for the proposed development to proceed.

3The second CMC allowed for proper Notice to be served to all Parties and Participants of the Legacy Case to appear before the Tribunal on the request by the Applicant for consolidation.

4285622 Ontario Ltd. has the Party status under the Legacy Case and was not present at the CMC.

5Counsel for the Applicant requested that OLT Case Nos. OLT-23-000464 and OLT-22-003517 be consolidated so that the appeal matters related to the Subject Property for a ZBA and a DPS could be heard at the same time. The Parties from both cases, confirmed their responsibilities and willingness to participate in a consolidated hearing. Rule 16 of the Ontario Land Tribunal (“OLT”) Rules of Practice and Procedure (“RULE”) states that:

16.1 Consolidating Proceedings or Hearing Matters Together:

The Tribunal may order that two or more proceedings or any part of them, be consolidated, heard at the same time, or heard one after the other, or stay or adjourn any matter until the determination of any other matter, subject to any applicable statutory or regulatory restrictions.

16.2 Effect of Consolidating Proceedings:

When two or more proceedings are consolidated,

a. statutory procedural requirements for any of the original separate proceedings apply, where appropriate, to the consolidated proceeding;

b. parties to each of the original separate proceedings are parties to the consolidated proceeding; and

c. evidence to be presented in each of the separate proceedings is evidence in the consolidated proceeding.

6On consent, the Tribunal finds the request for consolidation to be acceptable.

SERVICE OF NOTICE OF CASE MANAGEMENT CONFERENCE

7There was no issue with the service of the Notice of this CMC. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.

PARTY AND PARTICIPANT STATUS

8No one attended the CMC seeking either Party or Participant status.

9Counsel for Midhurst Rose Alliance did reaffirm their client’s eagerness to retain their Participant Status, as was granted under OLT Rule 16.2.

10All Participants of OLT Case No. OLT-22-003517 will retain their Participant Status under the consolidation and are required to submit a revised Participant Statement in accordance with the approved Procedural Order (“PO”) in Attachment 1.

MEDIATION AND SETTLEMENT

11The Tribunal explored the possibility of mediation and settlement with the parties. The parties both expressed openness to resolution discussions and/or Tribunal led-mediation. They further confirmed that they will keep the Tribunal apprised of any developments with their resolution efforts, which the Tribunal finds satisfactory.

PROCEDURAL ORDER AND ISSUES LIST

12The Tribunal received and reviewed a draft PO from the Parties. On consent, the Parties requested a 5-day hearing on the merits for the consolidated cases.

13Given the consolidation of the hearings, Counsel for the Applicant requested an opportunity to revise the draft PO and Issues List (“IL”) to better reflect the consolidation and to provide all Parties an opportunity to revise their IL.

14Ryan Cameron advised the Tribunal that he would not be adding issues or calling expert witnesses for the merit hearing.

15The Tribunal directed that a revised draft PO and IL be submitted, on consent, by December 11, 2023.

16The Tribunal finds that the revised draft PO and IL received to be acceptable, and the proceedings shall be governed by it (see Schedule 1).

HEARING

17Upon request of the Parties, the Tribunal set a 5-day hearing commencing on Monday, May 27, 2024, at 10 a.m. by video hearing. No further Notice is required for the hearing.

18Parties and Participants 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/765631861

Access code: 765-631-861

19Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

20Persons 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) 497-9391 or (Toll-Free) 1-888-455-1389. The access code is as indicated above.

21Individuals 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

22THE TRIBUNAL ORDERS that:

a. That the OLT Case Nos. OLT-23-000464 and. OLT-22-003517 proceedings be consolidated.

b. The date and particulars of the hearing are set out above.

c. The Procedural Order appended as Schedule 1 shall govern the proceedings.

23The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“J. Innis”

J. Innis

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 1

CASE NOS.: OLT-22-000464 OLT-22-003517 (Formerly PL131344)

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

Applicant and Appellant: Ballymore Building (Midhurst) Corp. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the site-specific development standards associated with the Proposed Development Reference Number: ZB-2021-004 Property Address: 1224 Carson Road Municipality/UT: Township of Springwater OLT Case No.: OLT-23-000464 OLT Lead Case No.: OLT-23-000464 OLT Case Name: Ballymore Building (Midhurst) Corp. v. Springwater (Township)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Carson Trail Estates Inc. Subject: Proposed Plan of Subdivision - Failure of County of Simcoe to make a decision Purpose: To permit a draft plan of subdivision Property Address/Description: Part Lot 15, Conc. 5 Municipality: Township of Springwater Municipality File No.: SP-T-1202 OLT Case No.: OLT-22-003517 Legacy Case No.: PL131344 OLT Lead Case No.: OLT-22-003517 Legacy Lead Case No.: PL131344 OLT Case Name: Carson Trail Estates Inc. v. Simcoe (County)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the Parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Monday, May 27, 2024 at 10 a.m. at [GOTO Mtg.: https://global.gotomeeting.com/join/765631861 Access code: 765-631-861]

3. The length of the hearing will be 5 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 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 Parties 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 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. 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/tribunals/lpat/).

Requirements Before the Hearing

9. A Party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other Parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before February 7, 2024. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and is to provide a copy of their curriculum vitae.

10. Expert witnesses in the same discipline(s) shall have at least one meeting on or before February 27, 2024 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting(s) 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 the Parties and the Tribunal on or before March 13, 2024

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided, as in paragraph 14. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence, as in paragraph 14.

13. On or before March 28, 2024, a Participant shall provide copies of their written participant statement to the other Parties and to the Tribunal 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.

14. On or before March 28, 2024, the Parties shall provide copies of their witness and expert witness statements to the other Parties and to the Tribunal case coordinator and in accordance with paragraph 22 below.

15. On or before April 22, 2024, the Parties shall confirm with the Tribunal if all the hearing dates are still required.

16. On or before April 29, 2024, the Parties shall provide copies of their written response(s) to any written evidence to the other Parties and to the Tribunal in accordance with paragraph 22 below.

17. On or before May 7, 2024, the Parties shall file with the Tribunal a detailed Hearing Plan that identifies the following, at a minimum: the Parties participating in the hearing, preliminary matters to be addressed (if any), 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 “Hearing Plan”). The Hearing 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 Hearing Plan throughout the Hearing Event. In the event of a disagreement between the Parties about the Hearing Plan, the Tribunal may be spoken to.

18. The Parties shall prepare a Joint Document Book on or before May 7, 2024, 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 paragraph 22 below.

19. On or before May 13, 2024, the Parties shall provide copies of their visual evidence to the other Parties and the Tribunal in accordance with paragraph 22 below.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with Rule 10 of the Tribunal’s Rules.

21. 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.

22. All filings 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 should it request same. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7 of the Tribunal’s Rules. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, or as may be amended.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. Rule 17 of the Tribunal’s Rules shall apply to such requests.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
February 7, 2024 (110 days prior to hearing)	Exchange of Witness Lists
February 27, 2024 (90 days prior to hearing)	Experts meeting(s) prior to this date
March 13, 2024 (75 days prior to hearing)	Deadline to File Any Agreed Statement(s) of Facts
March 28, 2024 (60 days prior to hearing)	Exchange of Witness Statements and Experts Reports, Participant Statements (if any), and summoned witness outlines (if any)
April 22, 2024 (35 days prior to hearing)	Parties to Advise if Any Hearing Dates Can be Released
April 29, 2024 (28 days prior to hearing)	Exchange of Reply Witness Statements (if any)
May 7, 2024 (20 days prior to hearing)	Filing of Hearing Plan and Joint Document Book
May 13, 2024 (14 days prior to hearing)	Exchange of visual evidence (if any)
May 27, 2024 – May 31, 2024	OLT Hearing

ATTACHMENT 2

LIST OF PARTIES

A. PARTIES

1. Ballymore Building (Midhurst) Corp. Counsel/*Agent: Daniel Artenosi / Michael Cara Overland LLP Yonge Norton Centre 5255 Yonge Street, Suite 1101 Toronto, ON M2N 6P4 Email: dartenosi@overlandllp.ca / mcara@overlandllp.ca Tel: 416.730.0320 / 416.730.8844

2. The Corporation of the Township of Springwater Counsel/*Agent: Bruce Engell Weirfoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K !B7 Email: bengell@weiroulds.com Tel: 416.947.5081

3. The Corporation of the County of Simcoe Counsel/*Agent: Zarah Walpole / Samantha Trottola County of Simcoe, Legal Services 1110 Highway 26 Midhurst, ON L9X 1N6 Email: zarah.walpole@simcoe.ca / Samantha/trottola@simcoe.ca Tel: 705.726.9300 ext. 1627 / 705.726.9300 ext. 1532

4. Ryan Cameron 1238 Carson Road Springwater, ON L9X 0T7 Email: ryancameron19@gmail.com Tel: 705.794.3101

B. PARTICIPANTS

1. Carson Road Developments Inc., Midhurst Valley Developments Inc. and Midhurst East Developments Inc. Counsel/*Agent: Susan Rosenthal Davies Howe LLP 425 Adelaide Street West Toronto, ON M5V 3C1 Email: susanr@davieshowe.com Tel: 416.263.4518

2. Midhurst Rose Alliance Inc. Counsel/*Agent: Ira Kagan Kagan Shastri Demelo Winer Park LLP 188 Avenue Road Toronto, ON M5R 2J1 Email: ikagan@ksllp.ca Tel: 416.368.2100 ext. 226

3. The Estate of Marie Louse Frankcom Counsel/*Agent: James J. Feehely Feehely Fastaldi Lawyers 5 Mill Street East, Box 370 Tottenham, ON L0G 1W0 Email: jfeehely@fglawyers.ca Tel: 905.936.5102

4. Rebecca Stehle 1230 Carson Road Springwater, ON L9X 0T7 Email: rstehle@live.ca Tel: 705.791.0612

5. 285622 Ontario Ltd. Counsel/*Agent: *Diana Alpeza Email: alpeza.di@gmail.com

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 having 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.

County of Simcoe:

1. Have draft plan conditions been prepared to the satisfaction of the County of Simcoe that address the County’s waste collection services, County Forests, and Development Charges interests related to this subdivision development?

Township of Springwater:

2. Have draft plan conditions been prepared to the satisfaction of the County of Simcoe that address the County’s waste collection services, County Forests, and Development Charges interests related to this subdivision development?

3. Does the proposed Zoning By-law Amendment (“ZBA”) have regard for matter of provincial interest, as per Section 2 of the Planning Act?

4. Is the proposed ZBA consistent with the Provincial Policy Statement (“PPS”), and A Place to Grow: Growth Plan for the Greater Golden Horseshoe?

5. Does the proposed development conform to the policies of the Township of Springwater Official Plan, including the Midhurst Secondary Plan?

6. Is there adequate servicing available for the subdivision and are the proposed connections appropriate?

7. Is a stormwater management pond required and should it be included in the zoning and on the draft plan?

8. Should a mixed use block, with commercial uses and seniors housing, be included in the zoning, in accordance with the Minutes of Settlement?

9. Is the road network appropriate (including the public laneways, accesses sight triangles) and in accordance with Township engineering standards?

10. Does the proposed development represent good land use planning?

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. The Order of Evidence will be described in greater detail in the Hearing Plan that is filed with the Tribunal.

1. Ballymore Building (Midhurst) Corp. (Applicant/Appellant)
2. Township of Springwater
3. County of Simcoe
4. Ryan Cameron
5. Reply by Ballymore Building (Midhurst) Corp. (if necessary)