Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 26, 2024

CASE NO(S).: OLT-23-001085

PROCEEDING COMMENCED UNDER subsection 85(1) of the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c.33

Applicant and Appellant: Vince Gagilardi Subject: Establishment of Cemetery or Crematorium Description: To establish a cemetery Property Address: 3369 Line 13 Municipality/UT: Bradford West Gwillimbury/Simcoe OLT Case No.: OLT-23-001085 OLT Lead Case No.: OLT-23-001085 OLT Case Name: Gagilardi v. Bradford West Gwillimbury (Town)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Site Plan Reference Number: D11-18-11 Property Address: 3369 Line 13 Municipality/UT: Bradford West Gwillimbury/Simcoe OLT Case No.: OLT-23-001152 OLT Lead Case No.: OLT-23-001085

Heard: March 22, 2024 by Telephone Conference Call

APPEARANCES:

Parties	Counsel
Vince Gagliardi	Stephanie Fleming, Russell Cheeseman (in absentia)
Town of Bradford West Gwillimbury	Matthew Helfand, Leo Longo (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY S. Dixon ON March 22, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“CMC”) for appeals filed by Vince Gagliardi (“Appellant”) pursuant to s. 85(1) of the Funeral, Burial and Cremation Services Act (“FBCSA”) and to s. 41(12) of the Planning Act regarding applications to permit the establishment of a cemetery on the lands municipally known as 3369 Line 13 in the Town of Bradford West Gwillimbury (“Subject Lands”).

2Council for the Town of Bradford West Gwillimbury (“Town”) refused the Appellant’s application under the FBCSA to establish a cemetery on the Subject Lands on the basis that the application was not in the public interest.

3The Appellant also filed a site plan application under the Planning Act. The Town did not make a decision on same within the prescribed statutory timeframe and the site plan appeal was filed on that basis.

4The two appeals are being heard together for administrative purposes.

PARTICIPANTS

5At the first CMC, the following seven individuals were granted Participant Status: Hoyun Lee, Sandy Chilvers, Gordon Edwards, Laura Sist, Jamie Roca, Chris Lubker, and Aria Mozzone.

6The Tribunal is in receipt of all but one Participant Statement from the above Participants. In accordance with the attached Procedural Order, all Participant Statements are due to be submitted to the Tribunal by no later than Friday, September 6, 2024.

HEARING, PROCEDURAL ORDER AND ISSUES LIST

7At the first CMC, the Tribunal scheduled a five-day Hearing of Merits commencing Monday, October 21, 2024 at 10 a.m. by Video Hearing.

8The Parties subsequently filed a Draft Procedural Order and Draft Issues List with the Tribunal prior to the second CMC. The Tribunal has reviewed same and hereby approves the attached Procedural Order and Issues List, which shall govern the proceedings for this matter.

ORDER

9THE TRIBUNAL ORDERS that the Procedural Order and Issues List attached as Schedule 1 to this Order are approved and in effect and shall govern the proceedings for this matter.

“S. Dixon”

S. DIXON 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 NO(S).: OLT-23-001085

PROCEEDING COMMENCED UNDER: subsection 85(1) of the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 34, as amended

Applicant/Appellant: Vince Gagliardi Subject: Appeal of refusal to establish a cemetery Description: To establish a cemetery Property Address: 3369 Line 13 Municipality/Upper Tier: Bradford West Gwillimbury/Simcoe OLT Case No.: OLT-23-001085 OLT Lead Case No.: OLT-23-001085 OLT Case Name: Gagliardi v Bradford West Gwillimbury (Town)

PROCEEDING COMMENCED UNDER: subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Subject: Site Plan Reference Number: D11-18-11 Property Address: 3369 Line 13 Municipality/Upper Tier: Bradford West Gwillimbury/Simcoe OLT Case No.: OLT-23-001152 OLT Lead Case No.: OLT-23-001085

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 October 21, 2024 at 10:00 a.m. via video hearing.

3. The parties’ initial estimation for 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. 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.

6. 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.

7. 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.

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.

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 Friday, May 3, 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.

10. Expert witnesses in the same field shall have a meeting on or before Friday, August 2, 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 Friday, August 9, 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. 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.

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 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.

13. On or before Friday, September 6, 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.

14. On or before Friday, September 6, 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.

15. On or before Friday, September 6, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, October 11, 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.

17. 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.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, October 11, 2024.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, October 14, 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.

22. 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.

23. 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.

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.

Attachment 1

List of Parties and Participants

PARTIES

1. Vince Gagliardi Russell D. Cheeseman & Stephanie Fleming Municipal Law Chambers rdcheese@aol.com sfleming@mlawc.com

2. Town of Bradford West Gwillimbury Leo F. Longo & Matthew Helfand Aird & Berlis llongo@airdberlis.com mhelfand@airdberlis.com

PARTICIPANTS

1. Hoyun Lee
2. Sandy Chilvers
3. Gordon Edwards
4. Laura Sist
5. Jamie Roca
6. Chris Lubker
7. Aria Mozzone

Attachment 2

Issues List

1. Is approval of the proposed Site Plan under section 41 of the Planning Act premature pending determination of the issue of “Public Interest” under the Funeral, Burial and Cremation Services Act?

2. Have the appropriate conditions to cemetery/Site Plan approval been established?

3. Does the proposed cemetery/Site Plan represent good planning?

4. Is the proposed cemetery consistent with the PPS 2020, in particular policy 1.1.1 (b)?

5. Does the proposed cemetery/Site Plan have regard for matters of provincial interest listed in section 2 of the Planning Act, in particular sections (h), (i), (m) and (n)?

6. Has the applicant provided all necessary technical justification to demonstrate that the proposed cemetery/Site Plan should be approved?

7. Has the applicant demonstrated that there will be no negative environmental impacts from the proposed cemetery/Site Plan?

8. Is the establishment of a cemetery on the subject lands in the public interest, including with respect to the following questions:

i) Is there a demonstrated need for the proposed cemetery?

ii) Is the proposed cemetery justified on the basis of population projections for the municipality and the availability of land to accommodate population growth?

iii) Is the proposed cemetery justified on the basis of population demographics for the municipality, including mortality rates?

iv) Does the proposed cemetery have adequate regard for determinants of health and income polarization?

v) Does the proposed cemetery have adequate regard for religious and cultural needs of death and disposition within the municipality?

vi) Does the proposed cemetery have adequate regard for religious community use trends?

Attachment 3

Summary of Procedural Dates

Date	Event
Friday, May 3, 2024	Witness List
Friday, August 2, 2024	Final day for expert witness meeting
Friday, August 9, 2024	Statement of Agreed Facts and Issues filed
Friday, September 6, 2024	Expert witness and witness statements due
Friday, September 6, 2024	Written participant statement due
Friday, September 6, 2024	Confirmation of Required Hearing Days
Monday, September 16, 2024	Response to written evidence due
Friday, October 11, 2024	Visual evidence due
Friday, October 11, 2024	Joint Document Book due
Monday, October 14, 2024	Preliminary hearing plan due
Monday, October 21, 2024	Hearing