Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 15, 2024
CASE NO(S).: OLT-23-001072
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Middleburg Developments Inc.
Subject: Proposed Official Plan Amendment – Appeal of Decision
Description: To modify and approve Amendment No. 147 to the Official Plan of the Town of Georgina
Reference Number: LOPA.19.G.0033 (OPA 147)
Property Address: Part Lots 16 & 17 Concession 3
Municipality: Region of York
OLT Case No.: OLT-23-001072
OLT Lead Case No.: OLT-23-001072
OLT Case Name: Middleburg Developments Inc. v. York (Region)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Middleburg Developments Inc.
Appellant: 1819213 Ontario Inc.
Subject: Zoning By-law Amendment – Appeal of Decision
Description: To create a new zoning bylaw for the Countryside Area that implements the policies of the Town of Georgina Official Plan.
Reference Number: Town File No. 03.05BT
Property Address: Part Lots 16 & 17 Concession 3
Municipality/UT: Town of Georgina/Region of York
OLT Case No.: OLT-23-001307
OLT Lead Case No.: OLT-23-001072
OLT Case Name: 1819213 Ontario Inc. v. Georgina (Town)
Heard: March 25, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Middleburg Developments Inc. | A. Lusty N. Koschany (Student-at-law) |
| Region of York Town of Georgina 1819213 Ontario Inc. |
Did Not Appear J. Hart A. Biggart (in absentia) R. Uukkivi |
MEMORANDUM OF ORAL DECISION DELIVERED ON MARCH 25, 2024 BY S. DEBOER AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1The Tribunal convened a Case Management Conference (“CMC”) with respect to the appeals by Middleburg Developments Inc. (“Middleburg”) and 1819213 Ontario Inc. (“1819213”) pursuant to s. 17(36) and 34(19) of the Planning Act due to the approval by the Region of York (“York”) of and the Township of Georgina (“Township”) Official Plan Amendment 147 (“OPA 147”), and the Township’s approval of Zoning By-law Amendment 500-2023-006 (“ZBA”).
2The municipal addresses pertaining to the appeals are Part Lots 16 and 17 Concession 3 for Middleburg, and Lots 16 and 17 Concession 3, and Part Lot 1 Concession 2 for 1819213 (“Subject Lands”).
3The purpose of OPA 147 is to establish a new vision and growth plan for the Keswick Secondary Plan. The purpose of the ZBA is to implement the updated policies and mapping of the Town of Georgina Official Plan.
4The Affidavit of Service of Notice of the CMC by Christopher Raynor, dated February 21, 2024, was marked as Exhibit 1.
5The Region of York did not appear before the Tribunal concerning this matter.
PARTY OR PARTICIPANT REQUESTS
6The Tribunal did not receive any Party or Participant requests prior to nor during the CMC.
OPPORTUNITIES FOR RESOLUTION
7The Parties stated that they are aware of Tribunal-led mediation; however, the Parties stated that it is not needed at this time.
PROCEDURAL ORDER AND ISSUES LIST
8It was the request of Mr. Lusty that the hearing of the Middleburg appeals be held in phases, such that the OPA issues could be heard prior to the ZBA issues. Mr. Lusty added that the issues pertaining to the OPA and ZBA are site-specific to his client’s lands only. The Township agreed with this request. Mr. Lusty and the Township agreed that a four-day hearing would be appropriate to hear the issues concerning the OPA matter; once the OPA appeal had been decided, a further CMC pertaining to Middleburg’s ZBA issues might then be scheduled. The Tribunal finds this request to be the most efficient way to hear this matter concerning Middleburg’s issues. A draft Procedural Order (PO) with an agreed upon Issues List (IL) was received by the Tribunal prior to this hearing event. The Tribunal has reviewed the PO and IL and approves of its contents. The attached PO and IL will govern the hearing of the OPA matter.
9Mr. Uukkivi confirmed for the Tribunal that the 1819213 appeal is also site-specific and does not affect the appeals by Middleburg. Mr. Lusty agreed with the comments of Mr. Uukkivi. It was the request of Mr. Uukkivi and the Township that a separate CMC be held in order to finalize the PO and IL concerning 1819213’s site-specific ZBA issues. The Tribunal agreed with this proposal.
SCHEDULING OF THE HEARING
10The Tribunal has scheduled a second CMC pertaining to 1819213’s site-specific ZBA for finalizing and approving of a PO and IL and to schedule a Hearing. The one-day CMC is set to proceed by video commencing on Thursday, May 2, 2024 at 10 a.m.
11Pertaining to the Middleburg’s KSP hearing, the Parties agreed that a four-day (4-day) hearing of the KSP issues would be appropriate. The Tribunal agreed with this request. As such, the Tribunal has scheduled a 4-day Video Hearing to commence on Tuesday, August 6, 2024 at 10 a.m.
12The Video Hearings are scheduled to proceed as follows:
Case Management Conference (1819213 Ontario Inc.’s Appeal):
Thursday, May 02, 2024 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/719383509 Access code: 719-383-509 Audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889 Audio-only access code: 719-383-509
Hearing of the Merits (Middleburg Developments Inc.’s OPA Appeal):
Tuesday, August 06, 2024 at 10 a.m. to Friday, August 09, 2024 (4 days) GoTo Meeting: https://global.gotomeeting.com/join/927921077 Access code: 927-921-077 Audio-only line: +1 (647) 497-9391 or Toll-Free 1-888-299-1889 Audio-only access code: 927-921-077
13Parties and Participants 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.
14Parties 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.
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 in to an audio-only telephone line.
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 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 Tribunal’s Case Coordinator having carriage of this case.
ORDER
17THE TRIBUNAL ORDERS that a four-day (4-day) Video hearing concerning the OPA matter shall commence on August 6, 2024 at 10 a.m.
18The Procedural Order is to govern the procedures leading up to and including the Video Hearing as set out in Schedule 1 to this Order and is in full force and effect on the issue date of this Order.
19THE TRIBUNAL ORDERS that a second CMC shall occur by Video Hearing on May 2, 2024 at 10 a.m., pertaining to the site-specific ZBA appeal of 1819213 Ontario Inc.
20The Member is not seized.
21No further notice shall be provided.
“S. deBoer”
s. deboer
MEMBER
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.
SCHEDULE 1
CASE NO(S).: OLT-23-001072
PROCEEDINGS COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Middleburg Developments Inc.
Subject: Proposed Official Plan Amendment – Appeal of decision
Description: To modify and approve Amendment No. 147 to the Official Plan of the Town of Georgina
Reference Number: LOPA.19.G.0033 (OPA 147)
Property Address: Part Lots 16 & 17 Concession 3
Municipality: Region of York
OLT Case No.: OLT-23-001072
OLT Lead Case No.: OLT-23-001072
OLT Lead Case Name: Middleburg Developments Inc. v. York (Region)
PROCEEDINGS COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Middleburg Developments Inc.
Subject: Zoning By-law Amendment – Appeal of Decision
Description: To create a new zoning by-law for the Countryside Area that implements the policies of the Town of Georgina Official Plan
Reference Number: Town File No. 03.05BT
Property Address: Part Lots 16 & 17 Concession 3
Municipality/UT: Town of Georgina / Region of York
OLT Case No.: OLT-23-001307
OLT Lead Case No.: OLT-23-001072
OLT Lead Case Name: 1819213 Ontario Inc. v. Georgina (Town)
Procedural Order
The Tribunal may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order.
The hearing of the appeals shall be phased. The first phase shall be heard and decided. Depending on the outcome of the first phase, a case management conference will be held to confirm the issues and set down the hearing for the second phase.
Organization of the First Phase Hearing
The video hearing for the first phase will begin on August 6, at 10:00 a.m. via videoconference. No further notice shall be required.
The parties’ initial estimation for the length of the first phase hearing is 4 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 listed as Attachment 1.
The issues for the first and second phases are set out in the Issues List attached as Attachment 2. There will be no changes to the list as it applies to the first phase unless the Tribunal permits, and a party who asks for changes may have costs awarded against it. The issues for the second phase will be confirmed at a future case management conference, if required.
The order of evidence for the first phase 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 First Phase 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 April 8, 2024, and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Acknowledgement of Expert’s Duty Form, Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
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 May 21, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 22 below.
On or before May 21, 2024, a participant shall provide copies of their written participant statement to the other parties and to the OLT case co-ordinator 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 July 2, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required. If the parties agree that no hearing dates are intended to be released from the Tribunal’s calendar, no party is required to advise the Tribunal of anything further in this regard.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before July 8, 2024, in accordance with paragraph 22 below.
On or before July 17, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 29, 2024.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 30, 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.
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.
All filings shall be submitted electronically and, when requested, 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.
A summary of the various procedural dates is contained in Attachment 4.
This Member is not seized.
So orders the Tribunal.
ATTACHMENT 1
LIST OF PARTIES AND PARTICIPANTS
PARTIES
Middleburg Developments Inc. Alex Lusty Davies Howe LLP The Tenth Floor, 425 Adelaide Street West Toronto, ON M5V 3C1 alexl@davieshowe.com Tel: (416) 977-7088 Fax: (416) 977-8931
Town of Georgina Andrew Biggart Ritchie Ketcheson Hart Biggart Barristers & Solicitors 206 – 1 Eva Road Toronto, ON M9C 4Z5 abiggart@ritchieketcheson.com Tel: (416) 622-6601 ext. 1003 Fax: (416) 622-4713
Regional Municipality of York Samantha Whalen York Region Administrative Centre 17250 Yonge Street Newmarket, ON L3Y 6Z1 Samantha.Whalen@york.ca Tel: 1 (877) 464-9675
PARTICIPANTS
Nil
ATTACHMENT 2
ISSUES LIST
Phase 1 – Settlement Area Boundary
Does the Keswick Secondary Plan Settlement Boundary have regard to the matters of provincial interest set out in s. 2 (h), 2(j), 2(m), and 2(p) of the Planning Act?
Does the Keswick Secondary Plan Settlement Boundary conform to the York Region Urban Area Boundary as required by s. 17(34.1)(a) of the Planning Act?
Provincial Policy Statement, 2020
Is the Keswick Secondary Plan Settlement Boundary consistent with section 1.1.3.1 of the PPS regarding settlement areas being the focus of growth and development?
Does the Keswick Secondary Plan Settlement Boundary represent a coordinated, integrated, and comprehensive approach to urban area delineation between the Town and Region consistent with section 1.2.1 of the PPS?
Is the Keswick Secondary Plan Settlement Boundary consistent with the direction provided by section 1.2.4(b) of the PPS regarding the upper-tier identification of growth areas?
Growth Plan, 2020
Would making the Settlement Boundary of the Keswick Secondary Plan and the York Region Urban Area Boundary congruent constitute a settlement area boundary expansion for the purposes of s. 2.2.8.2 of the Growth Plan?
Does the Keswick Secondary Plan Settlement Boundary represent a coordinated approach to land use planning in conformity with s. 5.2.3.1 of the Growth Plan?
Greenbelt Plan, 2017
- Are the Subject Lands within the Towns/Villages category in the Greenbelt Plan given the direction regarding the determination of precise settlement area boundaries found in s. 3.4.1 of the Greenbelt Plan?
York Region Official Plan, 2022
Were the Subject Lands previously within the Urban Area shown on Map 1 of the York Region Official Plan 2010?
Are the Subject Lands within the Urban Area shown on Map 1 of the York Region Official Plan 2022?
Are the Subject Lands within the Community Area as shown on Map 1A of the York Region Official Plan 2022?
Are the Subject Lands within the Designated Greenfield Area as shown on Map 1B of the York Region Official Plan 2022?
Does the Keswick Secondary Plan Settlement Boundary conform with Maps 1, 1A and 1B of the York Region Official Plan 2022?
Does the Keswick Secondary Plan conform to the Community Area policies in sections 4.2.1, 4.2.4, 4.2.5, 4.2.8, 4.2.9, 4.2.10, 4.2.20 of the York Region Official Plan 2022?
Implementation
Should the Tribunal modify the Settlement Boundary as shown on Schedules A, B, C, D, E, and F, of the Keswick Secondary Plan to be congruent with the York Region Urban Area Boundary? If so, should coordinate modifications be made in the Town of Georgina Official Plan?
If no modification is made the Keswick Secondary Plan Settlement Boundary, how should the unmodified Settlement Boundary be interpreted and applied given s. 27(4) of the Planning Act?
Phase 2 – Land Use
- To be determined.
ATTACHMENT 3
ORDER OF EVIDENCE
Middleburg Developments Inc.
Town of Georgina
Middleburg Developments Inc. in reply (if any)
ATTACHMENT 4
SUMMARY OF PROCEDURAL DATES
| DATE | EVENT |
|---|---|
| April 8, 2024 | Exchange of witness lists (names, disciplines and order to be called) |
| May 21, 2024 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| July 2, 2024 | Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any) |
| July 8, 2024 | Exchange of Reply Witness Statements (if any) |
| July 17, 2024 | Exchange of Visual Evidence (if any) |
| July 29, 2024 | Finalize Joint Document Book |
| July 30, 2024 | Final Hearing Plan filed with the Tribunal |
| August 6, 2023 | Hearing commences |