Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 15, 2024
CASE NO.:
OLT-23-001009
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Magnum General Contracting Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit the development of 78 townhouse units
Reference Number:
SOP/01/2020
Property Address:
Part of Lot 18, Concession 5, known as Part 2, Plan 40R-20203 (north parcel) and Block 123, Plan 40M-2029 (south parcel), Ward 2
Municipality/UT:
Scugog/Durham
OLT Case No.:
OLT-23-001009
OLT Lead Case No.:
OLT-23-001009
OLT Case Name:
Magnum General Contracting Inc. v. Scugog (Township)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Magnum General Contracting Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the development of 78 townhouse units
Reference Number:
Z/08/2020
Property Address:
Part of Lot 18, Concession 5, known as Part 2, Plan 40R-20203 (north parcel) and Block 123, Plan 40M-2029 (south parcel), Ward 2
Municipality/UT:
Scugog/Durham
OLT Case No.:
OLT-23-001010
OLT Lead Case No.:
OLT-23-001009
BEFORE:
A. CLOS
Friday, the 15th
MEMBER
day of March, 2024
THE TRIBUNAL ORDERS that further to the Decision issued on January 25th, 2024, the Procedural Order, as agreed to between the Parties and attached hereto as Attachment “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 August 26th, 2024. The Tribunal has set aside 5 days 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.
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 Monday August 26, 2024 at 10:00 a.m.
The length of the hearing is 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 parties and participants are set out in Attachment 1. See Attachment 4 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 shall provide a mailing address, email address and a telephone number to the Tribunal as soon as possible. Any person who retains 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, the expert witness(es)’ curriculum vitae and Acknowledgment of Expert Duty form(s), and the order in which the witnesses will be called. This list must be delivered on or before May 3, 2024. For expert witnesses, a party is to identify the area of expertise in which the witness is proposed to be qualified.
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, and updated supporting documents and reports to the other parties on or before April 5, 2024. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.
Expert witnesses in the same field shall have at least one meeting before the hearing to try to resolve or reduce 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 on or before June 14, 2024, if agreement is reached.
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. 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 parties at the same time as the delivery of witness statements, as in paragraph 12.
A witness (including any expert witness) or participant must provide to the Tribunal and the parties a witness statement (full disclosure including reports) or participant statement, respectively, on or before June 28, 2024, or the witness may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, except as permitted by the Ontario Land Tribunal Act, 2021 and the Tribunal’s Rules of Practice and Procedure.
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.
On or before July 8, 2024, the parties may provide to all other parties a written response to any written evidence.
On or before July 22, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before July 31, 2024, 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, and all parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.
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.
On or before August 15, 2024, 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.
The parties shall prepare a Joint Document Book on or before August 9, 2024, and which, if requested by the Tribunal, 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 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 should it request same. 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, or as may be amended. Paragraph 23 applies regardless of if the hearing event is in-person or electronic.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted in paragraph 10. The Tribunal’s Rule 17 applies to such requests.
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.
The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 4.
This Member is not seized.
So orders the Tribunal.
SUMMARY OF DATES
DATE
EVENT
April 5, 2024
Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
May 3, 2024
Exchange of witness lists (names, disciplines and order to be called)
May 31, 2024
Experts meeting prior to this date
June 14, 2024
Agreed Statement of Facts
June 28, 2024
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
July 8, 2024
Exchange of Reply Witness Statements (if any)
July 22, 2024
Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
July 31, 2024
Exchange of visual evidence (if any)
August 15, 2024
Final Work Plan filed with the Tribunal
August 9, 2024
Finalize Joint Document Book
August 26, 2024
Hearing commences
ATTACHMENT 1 PARTIES/PARTICIPANTS
Parties
Magnum General Contracting Inc. Katarzyna Sliwa/Michael James (416) 863-4628/(416) 863-4597 katarzyna.sliwa@dentons.com/michael.james@dentons.com
Township of Scugog Mark Joblin/ Alexandra Whyte (416) 748-4756/(416)748-4777
ATTACHMENT 2 ISSUES LIST
Note: The identification of an issue does not mean that all parties agree that such issues, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.
Township of Scugog
Do the proposed OPA and ZBA have regard to all of the matters of provincial interest outlined in Section 2 (h), (o), and (r) of the Planning Act?
Are the proposed OPA and ZBA consistent with the hydrogeological policies in Section 2.2 of the PPS?
Do the proposed OPA and ZBA conform to the hydrogeological policies in Sections 2.2.2, 2.2.4, and 2.3.21 of the Region of Durham Official Plan?
Do the proposed OPA and ZBA conform to the hydrogeological policies in Sections 2.2 e), 3.15 b), 3.20 b) & c), 6.13.7, 9.3 d) of the Township of Scugog Official Plan?
Have the hydrogeological and water balance impacts of the proposed development been adequately studied, and will these impacts be appropriately mitigated? Is it good planning to establish a specific use and specific built form based on the hydrogeological studies provided and the existing site conditions?
Does the proposed OPA and ZBA conform to the urban design policies of the Township of Scugog Official Plan being 3.18 & 4.1.6?
Are the proposed retaining walls appropriate for long term use in the proposed development, and do they meet the requirements of the Township’s Design Criteria and Standards?
If the proposed OPA and ZBA are approved, should the proposed ZBA be subject to holding conditions in connection with submission of technical studies or measures to mitigate the impact of development on groundwater and water balance?
ATTACHMENT 3 ORDER OF EVIDENCE
Magnum General Contracting Inc.
Township of Scugog
Magnum General Contracting Inc. in reply (if any)
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.