Matthias Muller v. Woolwich (Town), 2024 CanLII 38870

ISSUE DATE: April 22, 2024

CASE NO(S).: OLT-23-001284

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

Applicant and Appellant: Mattias Müller Subject: Consent Description: To sever the subject property to create one new residential lot Reference Number: B 15/2022 Property Address: 6 Covered Bridge Drive Municipality: Woolwich OLT Case No.: OLT-23-001284 OLT Lead Case No.: OLT-23-001284 OLT Case Name: Matthias Muller v. Woolwich (Town)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

Applicant and Appellant: Mattias Müller Subject: Consent Description: To sever the subject property to create one new residential lot Reference Number: B 16/2022 Property Address: 6 Covered Bridge Drive Municipality: Woolwich OLT Case No.: OLT-23-001286 OLT Lead Case No.: OLT-23-001284 OLT Case Name: Matthias Muller v. Woolwich (Town)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Mattias Müller Subject: Minor Variance Description: To sever the subject property to create one new residential lot Reference Number: A 13/2022 Property Address: 6 Covered Bridge Drive Municipality: Woolwich OLT Case No.: OLT-23-001287 OLT Lead Case No.: OLT-23-001284 OLT Case Name: Matthias Muller v. Woolwich (Town)

Heard: March 27, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Matthias Müller (“Applicant”)	Steven O’Melia
Township of Woolwich	Kevin Thompson
Regional Municipality of Waterloo	Fiona McCrea

MEMORANDUM OF ORAL DECISION DELIVERED BY J. Innis ON March 27, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting an Appeal by the Applicant which arises following the refusal by the Committee of Adjustment for the Township of Woolwich (“Town”) for a Consent and Minor Variance for lands municipally known as 6 Covered Bridge Lane, Woolwich.

Requests for Status

2Counsel for the Regional Municipality of Waterloo (“Region”) attended the CMC seeking Party status. The Region is a commenting agency with respect to Applications for consent to sever to ensure conformity with Regional Official Plan Policies regarding lot creation and matters related to source water protection. Further, the Region has delegated authority from the Province to comment on matters pertaining to archeology. Counsel for the Region confirms that they understand the role and obligations of a Party and are prepared to fulfill such a role and satisfy such obligations. On consent of the Parties, the Tribunal granted Party status to the Region.

3No one else attended the CMC seeking either Party or Participant status.

MEDIATION AND SETTLEMENT

4The Tribunal explored the possibility of mediation and settlement with the Parties. They 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

5The Tribunal received and reviewed a draft Procedural Order and Issues List from the Parties. The Tribunal finds it acceptable, and the proceedings shall be governed by it (see Schedule A).

6Should the Parties determine through the scoping of the Issues List that a reduction in the length of the hearing is acceptable, they are to notify the Tribunal on consent as soon as possible.

HEARING

7Upon request of the Parties, the Tribunal set a five-day hearing commencing on Monday, August 12, 2024, at 10 a.m. by Video Hearing. No further Notice is required for the Hearing.

8Parties and 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:

GoToMeeting: https://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

9Parties and 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

10Persons 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: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.

11Individuals 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

12THE TRIBUNAL ORDERS that:

The date and particulars of the Video Hearing is set out above;
The Procedural Order appended as Schedule A shall govern the proceedings; and
The Regional Municipality of Waterloo is granted Party status.

13The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“Jennifer Innis”

JENNIFER 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 A

CASE NO(S).: OLT-23-00001284

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

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 12, 2024 at 10 a.m. at the following link: https://global.gotomeeting.com/join/519389173
The parties’ initial estimation for the length of the hearing is five (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 identified at the case management conference 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 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 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 May 17, 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.
Expert witnesses in the same field shall have a meeting on or before May 31, 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 June 7, 2024.
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 June 24 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.
On or before June 24, 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.
On or before July 5, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before July 22, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by no later than July 5, 2024 in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before August 2, 2024.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before August 2, 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.
All filings shall be submitted electronically or 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.

This Member is not seized.

So orders the Tribunal.

SUMMARY OF DATES

DATE	EVENT
May 17, 2024	Exchange List of Proposed Witnesses (para. 9)
May 31, 2024	Deadline for Expert Witness Meeting (para. 10)
June 7, 2024	Deadline for Statement of Agreed Facts and Issues (para. 10)
June 24 2024	Deadline for Witness Statements, Expert Witness Statements, and Participant Statements (paras. 13 to 14)
July 5, 2024	Deadline to confirm if all hearing dates are still required (para. 15)
July 22 2024	Deadline for Visual Evidence (para. 16)
July 5, 2024	Deadline for Reply Witness Statements (para. 17)
August 2, 2024	Deadline for Joint Document Book / Hearing Plan (paras. 18 and 20)

ATTACHMENT 1 LIST OF PARTIES

PARTIES	COUNSEL
1. Matthias Müller Appellant/Applicant	Miller Thomson LLP 115 King Street South, Suite 300 Waterloo ON M5K 1B7 Steven O’Melia Email: somelia@millerthomson.com Tel: 519.593.3289
2. Township of Woolwich Municipality	SmithValeriote Law Firm LLP 245 Hanlon Creek Boulevard, Unit 102 Guelph ON N1C 0A1 Kevin Thompson Email: kthompson@svlaw.ca Tel: 519.821.4146 Jamie Cockburn Email: jcockburn@svlaw.ca Tel: 519.837.2100
3. Region of Waterloo Added Party	The Regional Municipality of Waterloo 150 Frederick Street, 8th Floor Kitchener, ON, N2G4J3 Fiona McCrea Tel: 519-575-4518 Email: fmccrea@regionofwaterloo.ca

OLT CASE COORDINATOR

Jessica Hampton Case Coordinator Planner

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Email: jessica.hampton@ontario.ca Tel: 437.228.8893

ATTACHMENT 2 ISSUES LIST

The identification of an issue on this list does not mean that all parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

Does the minor variance application satisfy the four tests set out in Section 45(1) of the Planning Act? Specifically, are the proposed variances minor, appropriate for the development of the land, and in keeping with the general intent and purpose of the Zoning By-law and Official Plan?
Do the proposed consent and minor variance applications have appropriate regard to the matters of provincial interest set out in Section 2 of the Planning Act?
Does this proposed consent application have appropriate regard he to the criteria set out in subsection 51(24) of the Planning Act, specifically clauses 51(24)(a), (c), (d), (f), (g), and (h)?
Is this proposed development of one additional residential lot consistent with the Provincial Policy Statement, 2020?*
Does the proposed development conform to the Growth Plan for the Greater Golder Horseshoe, 2019, as amended?
Does this proposed development of one additional residential lot conform to the Township of Woolwich Official Plan, in particular Sections 7.8 and 12.8?
Does this proposed development of one additional residential lot satisfactorily address the requirements of the Region of Waterloo Official Plan related to the creation of new lots, specifically Section 6.G?
Has the applicant demonstrated that a buildable envelope exists and that the retained lands are appropriate to accommodate a single-detached dwelling and septic?
Has the applicant demonstrated that a permanent safe access can be provided without impacting the tree line and that the lot fabric is consistent with the surrounding area?
Have the Grand River Conservation Authority (GRCA) comments regarding environmental feature setbacks, slope stability and hydrogeology been addressed, and is the GRCA satisfied that the GRCA’s proposed conditions of severance approval are appropriate?
Have the Region of Waterloo comments related to hydrogeology and servicing been appropriately addressed, and are Regional staff satisfied that the Region’s proposed conditions of severance approval are appropriate?
Is the proposed access easement appropriate as a suitable road access for the proposed new residential lot?
Have all potential impacts to the West Montrose Cultural Heritage Landscape been appropriately investigated and addressed?
Are the proposed conditions of severance approval appropriate in order to ensure the appropriate development of the subject property? In particular, if this consent is approved, would it be appropriate to make it conditional upon a further easement for the proposed septic attenuation area?
Do the proposed applications constitute good planning and are they in the public interest?

*Note: On April 6, 2023, the Province released a proposal to combine the PPS and Growth Plan into a new land use policy document and this proposal continues to be posted to the Environmental Registry of Ontario. The comment period closed on August 4, 2023; a proposed new planning policy instrument has not been released. As such additional or different policies may be applicable/relevant should the proposal come into force and effect, and the Issues List may be updated accordingly.

ATTACHMENT 3 ORDER OF EVIDENCE

Matthias Müller
Township of Woolwich
Matthias Müller (in reply)

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.