Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 14, 2024
CASE NO(S).: OLT-23-001157
PROCEEDING COMMENCED UNDER subsection 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2.
Objector: Andrew Lauder Objector: Anita Lorelli Objector: Antonio Rodrigues and Tara Burns et al. Subject: Proposed Amendment to the Niagara Escarpment Plan Description: To amend the Niagara Escarpment Plan to allow for the development of on-farm diversified uses and agricultural-related uses outside of prime agricultural areas. Reference Number: Niagara Escarpment Plan Amendment No. PC 225 22 Property Address: The entire Niagara Escarpment Plan (“NEP”) Area Municipality/UT: Niagara/Niagara OLT Case No: OLT-23-001157 OLT Lead Case No: OLT-23-001157 OLT Case Name: Plan Amendment (PC 225 22)
Heard: February 26, 2024 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Niagara Escarpment Commission | Ken Hare and Mariam Awan |
| Jill Kantelberg | David Bronskill |
| Peter Blaiklock | self-represented* |
| Jim Muzyka | self-represented* |
| City of Burlington | Andrea Peebles |
MEMORANDUM OF ORAL DECISION DELIVERED BY Hugh S. Wilkins ON FEBRUARY 26, 2024 AND ORDER OF THE HEARING OFFICE
1This Decision arises from a Case Management Conference (“CMC”) held on February 26, 2024 regarding a proceeding under s. 10(3) of the Niagara Escarpment Planning and Development Act relating to proposed Amendment No. PC 225 22 (“proposed amendment”) to the Niagara Escarpment Plan. The proposed amendment would amend agricultural policies in the Plan. Twenty-one written objections to the proposed amendment were received by the Niagara Escarpment Commission (“Commission”). This resulted in the Commission appointing the Niagara Escarpment Hearing Office (“Hearing Office”) to conduct a hearing for the purpose of receiving representations on the proposed amendment.
2The Tribunal acts in its role as the Hearing Office in this proceeding.
3A list of the persons who filed written objections (“Objectors”) is attached to this Decision and Order as Schedule 1.
4At the CMC, the Hearing Office addressed the status of the Objectors in the proceeding, heard requests for Added Party status, provided directions on the preparation of a draft Procedural Order and Issues List, and scheduled a further CMC.
The Status of the Objectors
5As a preliminary matter, the Hearing Office addressed at the CMC the issue of whether the Objectors are Parties to the proceeding.
6Section 10(3) of the Niagara Escarpment Planning and Development Act sets out how a hearing under that section is triggered and how people may engage at the hearing. It states that a hearing is triggered by the receipt by the Commission of objections to a proposed amendment and that the purpose of the hearing is to receive representations respecting the proposed amendment. Section 10(3) states (with emphasis added):
10(3) If written objections to the proposed amendments are received by the Commission before the expiration of the time for making comments, the Commission shall, and if no written objections are received within that time the Commission may, appoint one or more hearing officers for the purpose of conducting one or more hearings within the Niagara Escarpment Planning Area or in the general proximity thereof for the purpose of receiving representations respecting the proposed amendments by any person desiring to make representations.
7The details of the hearing process is elaborated on in s. 10(6). It states that the persons proposing the amendments (in this case, the Commission) must present the proposed amendments at the hearing and provide justification for them. It states that any persons who make presentations may be questioned on any aspect of the amendments by “any interested person”. It also states that the Tribunal’s Rules of Practice and Procedure (“Hearing Office’s Rules”) apply to the conduct of the hearing. Section 10(6) states (with emphasis added):
10(6) At a hearing under subsection (3), the persons proposing the amendments or their representatives shall present the proposed amendments and the justification therefor and shall make available for public inspection research material, reports, plans and the like that were used in the preparation of the amendments and, subject to the rules of procedure adopted by the hearing officers for the conduct of the hearing, the persons presenting the amendments and any other persons who make presentations at the hearing may be questioned on any aspect of the amendments by any interested person.
The Hearing Office notes that the reference to the questioning by “any interested person” envisions a relatively wide engagement of the public at the hearing, subject to the Hearing Office’s Rules.
8The nature of the hearing as a public inquiry is identified in s. 10(7) of the Niagara Escarpment Planning and Development Act, which states that s. 33 of the Public Inquiries Act, 2009 applies to the hearing. Section 33 of the Public Inquiries Act, 2009 sets out how evidence is to be presented at a public inquiry hearing.
9Section 10(8) of the Niagara Escarpment Planning and Development Act states that the Hearing Office is to provide the Commission with a summary of the representations made at the hearing together with a report with reasons stating whether the proposed amendments should be accepted, rejected, or modified. Under s. 10(9) of the Act, the Commission is to consider the Hearing Office’s report and the public comments that it has received and submit its recommendations on the proposed amendments to the Minister. Under s. 10(11), after receiving the Commission’s recommendations, the Minister is to make the decision on whether to approve, modify, or refuse the proposed amendments.
10As noted above, s. 10(6) contemplates that the Hearing Office’s Rules apply to the conduct of the hearing. Rule 1.2 provides the definition of “Party”. It states that Parties are persons entitled by the applicable statute to be a Party and includes those persons whom the Hearing Office accepts or adds as Parties on such terms as the Hearing Office may determine. A Party must have a direct or genuine interest in the matter, be impacted by the Hearing Office’s recommendations arising from the hearing, and/or assist the Hearing Office in making its recommendations. Rule 1.2 also defines “Participant”. It states that “Participant” means a person who is not a party to a proceeding and is only permitted to make or file a written statement to the Hearing Office upon such terms as the Hearing Office may determine. This is based on s. 17 of the Ontario Land Tribunal Act, which states that a person who is not a Party may only make written submissions with respect to a proceeding before the Tribunal (or, in the present case, the Hearing Office).
11Based on the above-noted provisions of the Niagara Escarpment Planning and Development Act, the Hearing Office found that the legislative intent of s. 10 is that the hearing is to be held in the nature of a public inquiry so that the Hearing Office may gather information and prepare a report with recommendations to the Commission. The hearing is triggered by Objectors and is convened for the purpose of receiving representations respecting the proposed amendments by any person desiring to make representations. As noted above, the Niagara Escarpment Planning and Development Act envisions the wide engagement of the public at the hearing, including the ability of “interested persons” to ask questions to witnesses. The Hearing Office found that the Objectors who triggered the hearing are interested persons. The Hearing Office found that it would be inconsistent with the Niagara Escarpment Planning and Development Act to restrict Objectors to solely making written submissions as Participants and not allow them to question witnesses as envisioned under the Act. Therefore, it granted Party status to each of the Objectors in the present proceeding.
Requests for Added Party Status
12At the CMC, Jim Muzyka and the City of Burlington (“City”) each requested Party status. Both Mr. Muzyka and the City demonstrated that they have direct and genuine interests in the matter, will be impacted by the Hearing Office’s recommendations, and can assist the Hearing Office in making its recommendations. None of the Parties objected to having Mr. Muzyka or the City added as Parties and the Hearing Office granted each of them Party status, as requested.
Directions on the Preparation of a draft Procedural Order and Issues List, and the Scheduling of a Further CMC
13In order to raise issues or present evidence at the hearing, the Parties must comply with the Hearing Office’s directions on identifying issues and filing witness lists and witness statements as set out in the Procedural Order to be issued in this proceeding.
14The Commission requested that the Hearing Office direct the Parties to send their proposed issues to the Commission by Wednesday, April 10, 2024, after which consultations would be held and a draft Procedural Order and Issues List would be prepared and filed with the Hearing Office. These documents would then be reviewed and finalized by the Hearing Office at a further CMC. The other Parties at the CMC agreed with this course of action, as does the Hearing Office.
15The Hearing Office directed that by Wednesday, April 10, 2024, each Party is to provide the Commission with: (a) input on whether they support or disagree or are neutral towards each of the proposed amendments, and the reason/rationale for their agreement or disagreement; (b) if they disagree, the specific request they are making for each amendment (e.g. delete or modify it); (c) if a Party is seeking to modify a policy, provide the proposed alternate policy language in tracked change format; and (d) a preliminary list of anticipated witnesses, and if they are experts, their discipline, and the focus of the evidence that they will provide.
16The Hearing Office scheduled a further CMC for Tuesday, May 28, 2024 at 10 a.m. to proceed by video hearing.
17Parties are asked to log in to 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/687587165
Access code: 687-587-165
18Parties 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.
19Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889. The access code is 687-587-165.
20Individuals 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 Video Hearing 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 Hearing Office’s Case Coordinator having carriage of this case.
21The Hearing Office requests that the Parties file with the Hearing Office draft Procedural Order and Issues List by Monday, May 27, 2024.
ORDER
22THE HEARING OFFICE ORDERS THAT each of the Objectors is a Party and that the City of Burlington and Jim Muzyka are Added Parties in this proceeding.
23THE HEARING OFFICE ORDERS THAT, by Wednesday, April 10, 2024, each Party is to provide the Niagara Escarpment Commission with: (a) input on whether they support or disagree or are neutral towards each of the proposed amendments, and the reason/rationale for their agreement or disagreement; (b) if they disagree, the specific request they are making for each amendment (e.g. delete or modify it); (c) if a Party is seeking to modify a policy, provide the proposed alternate policy language in tracked change format; and (d) a preliminary list of anticipated witnesses, and if they are experts, their discipline, and the focus of the evidence that they will provide.
24There will be no further notice.
25This Hearing Officer is not seized.
"Hugh S. Wilkins"
HUGH S. WILKINS 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
List of Objectors
- Greg Ashbee
- Martha Baillie
- Tom Bernard
- Peter Blaiklock
- Lynn Connell
- Donna and Michael Cummings
- Phil Dyment
- Jill Kantelberg
- Andrew Lauder
- Tom Lewarne
- Anita Lorelli
- John MacDonald
- Marie McFarlane
- Krista McKee and Adam Garbutt
- Petra Mattes
- Erica Miller
- Dianna Miotto
- Antonio Rodrigues and Tara Burns
- David Simpson
- Robin Vaile
- Mark Wallace