Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 09, 2024

CASE NO(S).: OLT-21-001262

PROCEEDING COMMENCED UNDER subsection 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended.

Appellant: Sartorio (Sarto) Provenzano

Respondent: Central Lake Ontario Conservation Authority

Subject: Appeal of refusal to grant permission for development

Property Address: 46 West Beach Road, Bowmanville

Municipality: Municipality of Clarington

OLT Case No.: OLT 21-001262

OLT Case Name: Provenzano v. Central Lake Ontario Conservation Authority

Heard: April 2, 22, and 23, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Sartorio (Sarto) Provenzano (“Appellant”)	Conner Harris, Leah Cummings
Central Lake Ontario Conservation Authority (“CLOCA”)	Kenneth Jull, Christina Tassopoulos (articling student)

MEMORANDUM OF ORAL DECISION DELIVERED BY ASTRID J. CLOS AND NAZANIN EISAZADEH AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The continued Merit Hearing in this matter was scheduled to proceed for 13 days commencing Tuesday, April 2, 2024. However, through a series of various events and motions as described in this Decision, it has been further adjourned, the details of which are set out further below.

2The Appeal is made pursuant to s. 28(15) of the Conservation Authorities Act (“CA Act”) of the refusal of the Central Lake Ontario Conservation Authority (“CLOCA”) to issue a development permit for the property municipally addressed as 46 West Beach Road (“Subject Property”) located in the Municipality of Clarington.

3The original Merit Hearing commenced on June 22, 2023, following various pre-hearing motions which were ultimately resolved between the Parties. On June 22, 2023, opening statements were received from both Parties, along with a portion of the examination-in-chief of the Applicant’s first witness, Sartorio Provenzano (“Appellant”). Upon returning from the lunch break, the Parties advised that they had reached a provisional settlement of the Appeal as a whole. Accordingly, the Parties jointly requested that the Hearing be adjourned, and a Settlement Hearing be convened on the last date originally scheduled for the hearing, being July 6, 2023. The Panel granted that request.

4Regrettably, on July 6, 2023, on what ought to have been the Settlement Hearing, the Parties advised that settlement negotiations had fallen through, and final settlement was not able to be reached. Accordingly, that hearing event was converted to a further Case Management Conference (“CMC”) wherein the continued Merit Hearing of the matter was rescheduled for 13 days to recommence on April 2, 2024, or what ought to have been the present hearing event.

5In the interim, the Province of Ontario announced amendments to the CA Act that would go into effect on April 1, 2024¹ (“Legislative Amendments”). Prior to the commencement of the Merit Hearing, the Panel requested an update from the Parties respecting whether they were in agreement regarding any potential impact that the recent Legislative Amendments may have on the Appeal or the revised hearing plan that was filed on March 20, 2024. This request precipitated the receipt of submissions from the Parties on March 28, 2024, wherein they diverged on the impact of the Legislative Amendments to both the Appeal and the Hearing Plan that had been contemplated, necessitating the hearing of motions respecting the impact of the Legislative Amendments and the Respondent’s request for adjournment. Additional procedural motions and cross-motions were brought by the Parties and heard in respect of (i) amendments to the Applicant’s Witness List; (ii) pre-hearing examinations of new proposed witnesses; and (iii) a site visit (the “Motions”). These Motions were heard orally on April 2, 22 and 23, 2024. The balance of this Decision deals with each Motion in turn.

IMPACT OF LEGISLATIVE AMENDMENTS AND MOTION FOR ADJOURMENT

Appellant’s Position and Submissions

6The Appellant took the position that the new provisions of the CA Act, including the recent Legislative Amendments as well as the new regulation made thereunder² (“O.Reg 41/24”), are applicable and now govern the present Appeal. Briefly, Conner Harris, Counsel for the Appellant, submitted that the Legislative Amendments did not alter the relevant considerations and questions raised by the Appeal, nor the relevant evidence required to be adduced, and therefore, the Appeal should proceed as scheduled to be heard on its merits without adjournment.

7The main basis for the Appellant’s position is that while the law had been largely amended in form, it had not been amended in substance. Mr. Harris stated further that this proceeding is a Hearing de novo, which is based on its own evidentiary record. The Tribunal does not owe deference to the CLOCA Board’s reasons or decision. The Tribunal steps into the shoes of the Conservation Authority and has jurisdiction to take the actions that the Authority could at first instance. The Tribunal should therefore make its determination based on the law in force as of the date of this de novo hearing.

8Mr. Harris conceded that the Tribunal finds itself in a unique position with respect to the timing and application of the Legislative Amendments which does not appear to have arisen directly before it or its predecessors. Accordingly, in support of his position, Mr. Harris pointed to various other decisions including, inter alia, a number from the Appeal Division of the Immigration and Refugee Board to demonstrate consistent rulings for the applicability and governance of new or amended legislation and regulations to de novo hearings³. In particular, Mr. Harris pointed to the decision of Patel v Canada (Minister of Citizenship and Immigration)⁴, to demonstrate that the Supreme Court’s decision in R. v. Dineley (“Dineley”) does not apply where an Applicant does not benefit from substantive rights that would require the previous version of a regulation to be applied. Mr. Harris argued that similarly, the Appellant in the present case has no accrued right to have his Application heard under the old CA Act, and that if his Application was sent back to CLOCA, it would be determined under the CA Act as Amended and the new O.Reg 41/24. He stated that since the present Appeal is a Hearing de novo, this Tribunal should make its determination based on the law in force as of the date of the Hearing.

9Following a detailed review of the changes to the definitions and provisions of the Amended CA Act and O.Reg 41/24, Mr. Harris reiterated his submission that the Amendments are largely in form and not substance, which in his view, weighs in favour of the Panel considering the Amendments in its analysis of the underlying Appeal.

10In respect of the Respondent’s position on this issue, Mr. Harris stated that the Tribunal should have no concern respecting issues of procedural fairness in applying the Legislative Amendments and proceeding with the Hearing as scheduled. First, Mr. Harris argued that the Province has the prerogative to elect to implement the Legislative Amendments as of April 1, 2024, with no duty of procedural fairness owed to any Party when implementing legislative changes, which is what has occurred in this case and is a decision outside of the control of the Tribunal.

11Second, Mr. Harris submitted that the Legislative Amendments at issue did not appear spontaneously without prior notice. They were passed by the legislature approximately two and a half years ago, in November 2022, and the Respondent ought to have been aware since the Province’s announcement on February 16, 2024, that the Amendments would be in force as of April 1, 2024. Mr. Harris contended that the Parties should be presumed to know the law governing the matter, including the Legislative Amendments, which they’ve had ample time to consider in preparing their respective cases.

12Finally, Mr. Harris stated that an adjournment of the Hearing would cause substantial prejudice to the Appellant who has testified that he has been residing with his mother since the purchase of the Subject Property in approximately July 2019, unable to reside at the Subject Property as a result of the denial by CLOCA of his permit application. Mr. Harris stated rescheduling the Hearing would add months of undue delay in having the merits of the application heard and decided.

Respondent’s Position and Submissions

13CLOCA took the position that the new provisions of the CA Act, including the recent Legislative Amendments as well as the new O.Reg 41/24, are not applicable and do not govern the present Appeal. Briefly, Kenneth Jull, Counsel for CLOCA, submitted that the substantive law that applies is not retroactive and is the law that existed at the time of the Board Hearing, from which the Appeal lies to this Tribunal. Notwithstanding this position, CLOCA conceded that from a policy perspective, there is merit in applying the new amendments. However, he stated it would be a breach of procedural fairness to attempt to apply any interpretations based on new law and amendments without permitting all of the experts an opportunity to review that new law and revise their opinions, if necessary. Therefore, Mr. Jull submitted, should the Tribunal be of the view that the Amendments are applicable, procedural fairness would necessitate an adjournment.

14On his first position that the former CA Act applies, Mr. Jull cited the Dineley decision, wherein the Supreme Court of Canada proclaimed that new legislation that affects substantive rights, as opposed to procedural ones, will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively. Mr. Jull pointed to paragraph 10 of that decision wherein the Supreme Court stated the principles as follows:

There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256, at pp. 266-67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, at pp. 331-32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and 62; Wildman, at p. 331).⁵

15Mr. Jull submitted this case is one in which the Amendments affect substantive and not just procedural rights. In this regard, he referred to the four areas of risk under the CA Act that would be caused by the proposed development of the Subject Property:

i. Riverine flooding hazard; ii. Lake Ontario flood plain hazard; iii. Dynamic beach hazard; and iv. No safe access in emergencies

16He further pointed out that this Hearing has already commenced, and this is simply a continuation of that Hearing from June of 2023. All of the expert reports that have been filed with the Tribunal and that are being relied upon by both Parties, were prepared based on the law that existed at the time the Hearing commenced in June of 2023. None of the witnesses have filed supplementary materials or opinions on the application of the new Amendments and it would be a breach of procedural fairness to require the Parties to proceed to a Hearing without knowing what the expert witnesses will say in relation to the Amendments and their application. This would amount to trial by ambush and contravenes the rule in Browne v. Dunn⁶.

17Mr. Jull recognized that s.52(3) of the Legislation Act⁷ stands contrary to his position as it states that proceedings commenced under former Acts or regulations shall be continued under, or in conformity with new, the new or amended legislation and regulation as much as possible. Mr. Jull further recognized that as a Hearing de novo, this Tribunal has the power to hear witnesses and make factual and legal findings separate from the CLOCA Board that heard the initial Appeal. However, he suggested that de novo hearings must still be fair proceedings, and in this case, the only fair way to proceed is on the basis of the expert evidence as filed based on the former law as it existed in 2023.

18Notwithstanding his first position, Mr. Jull conceded that there is merit from a policy perspective in having the Tribunal apply the new Amendments. In this regard, he concedes that this is not a case where an offence has occurred or construction has been conducted illegally without a permit, in which case the former provisions of the CA Act would have to be applied. Therefore, the Appellant could, if he wished, abandon the present Appeal and put in a new application under the new Amendments. However, proceeding in this fashion may very well amount to this case being the first heard and decided by the Tribunal on the basis of the new law and Legislative Amendments. Given the large number of witnesses (approximately 17 in total) and the nature of the substantive issues in dispute, procedural fairness would require an adjournment so that the expert witnesses are permitted the necessary time and opportunity to meaningfully prepare updated reports and opinions on the impact of the Legislative Amendments to the issues in dispute, rather than hastily proceeding to a Hearing without those updated opinions on the very day after the Amendments have come into effect.

Analysis and Findings on the Applicable Legislation and Request for Adjournment

19Having considered the submissions of the Parties and the authorities filed, the Panel ruled that the Legislative Amendments to the CA Act and new O.Reg 41/24, both which took effect on April 1, 2024, are the governing law applicable to the underlying Appeal for the following key reasons.

20First, the Panel determined that the Tribunal, as an administrative body exercising statutory authority, must apply the governing legislation currently in effect which is the CA Act as amended and the new O.Reg 41/24 enacted thereunder.

21Second, the decision of Dineley has no application to the current Appeal, chiefly, because the Appeal currently before the Tribunal is a Hearing de novo wherein the Tribunal is permitted to accept and hear new evidence and make factual and legal findings outside of the four corners from that heard by the CLOCA Board on the initial application. The Panel further agreed that the decision of Patel v Canada (Minister of Citizenship and Immigration)⁸, is analogous to the present case in distinguishing from the application of Dineley. More specifically, the Panel agreed that Mr. Provenzano has no accrued right to have his application heard under the old CA Act, and that if his application was sent back to CLOCA, it would be determined under the CA Act as Amended and the new O.Reg 41/24.

22Third, and as guided by s.12(2) of the Ontario Land Tribunal Act (“OLT Act”)⁹, the Panel found that applying the Amendments and new O.Reg 41/24 to the underlying Appeal offers the best opportunity for the most fair, just and expeditious resolution of the merits of this proceeding, particularly in light of the fact that a new application could be submitted by the Appellant under the current law, as amended, which if denied by CLOCA at first instance, could result in a new Appeal for the same development proposal before this very Tribunal.

23Having determined that the underlying Appeal must be considered against the new legislative Amendments, the Panel turned to the Respondent’s request for an adjournment. In balancing procedural fairness with potential prejudice, the Panel determined that procedural fairness weighed more heavily and necessitated an adjournment in order to allow the Parties and their experts an opportunity to conduct a thorough review of the Amendments and their application to the issues in dispute, convene meetings among the experts to determine if narrowing, scoping or resolution of any of the issues is possible, and to prepare and file updated materials as may be necessary or relied upon at the Hearing which address the new law in effect.

24Having made its ruling and granted an adjournment of the Merit Hearing, the Panel directed that the balance of hearing dates be vacated other than April 22, 2024, on which date the Parties were directed to return before the Panel for a further CMC, and April 23 and 24, 2024, which were reserved for the Hearing of the balance of the Motions. The Panel further directed that the following nine (9) days which were initially reserved for the continued Merit Hearing, were to be efficiently used by the Parties to:

i. Conduct the cross-examinations on the Affidavits filed by the respective Parties in support of the balance of the Motions by April 9, 2024;

ii. Facilitate a meeting(s) among their respective expert witnesses and attend the April 22nd CMC prepared with a revised Procedural Order inclusive of their position on whether the recent Amendments have any impact on the existing Issues List and/or further impact on their respective Witness Lists;

iii. Should any disagreement arise from the Parties’ respective positions on the impact of the Legislative Amendments to the existing Issues List and/or their respective Witness Lists, or should any further motions arise therefrom, to have the necessary materials filed so that said Motions may be heard with the pending Motions returnable April 22 and 23, 2024, if practicable; and

iv. To continue discussions to determine if any of the alluded to procedural issues among the Parties respecting legal and evidentiary objections to documents, as well as the issues on the pending Motions, may be narrowed or resolved, otherwise to be prepared to address those concerns if no resolution is possible.

CASE MANAGEMENT CONFERENCE: APRIL 22, 2024

25On April 22, 2024, a further CMC was convened. Mr. Harris reported that an experts’ meeting had been held to review the Issues List in the context of the recent Legislative Amendments and new O.Reg 41/24. He advised that the Parties would be proceeding to a Hearing on the full Issues List as previously drafted, with no request for amendment to those issues. He added that the Parties and their experts would continue to work together to determine if a narrowing of the issues was possible and if so, would provide a revised scoped Issues List.

26With respect to the Witness Lists, Mr. Harris and Mr. Jull both reported that there were no requested changes, other than the relief sought on the pending Motions, to their respective Witness Lists on account of the recent Legislative Amendments.

27With the above two agenda items addressed, the Parties confirmed there was no additional relief sought to be added to the pending Motions. The pending Motions could proceed as scheduled the following day on April 23, 2024, as the Parties had successfully conducted their respective cross-examinations on the Affidavits of Sarto Provenzano, sworn March 26, 2024, and Chris Darling sworn March 28, 2024, filed in support of those Motions.

28The Parties also advised that they had reached an agreement with respect to addressing the objections to various documents filed for the purpose of the Merit Hearing. The agreement entails the refiling of a Joint Book containing all documents with which the Parties take no issue, and the filing of a separate Book of “Opposed” Documents containing all documents with which the Parties will retain their right to assert their objection. In this manner, the admissibility of the opposed documents may be determined individually by the Panel through the course of the Merit Hearing and/or filed and marked separately, as may be necessary. The Panel endorsed this approach as acceptable, and directed that all materials be clearly marked and refiled with the Case Coordinator in advance of the Merit Hearing, inclusive of covering letter indexing all materials to be relied upon at the hearing.

29The Parties were directed to work cooperatively in setting mutually agreeable filing deadlines for the document books, which shall be set out in a revised timetable within a revised Procedural Order that is to be filed no later than Monday, May 13, 2024. The Parties may request a further CMC through the Case Coordinator should any dispute arise in this regard and require the assistance of the Panel.

30Finally, having conferred with their respective clients and witnesses, through mutual agreement of the Parties, and the confirmed availability of the Panel within the Tribunal calendar, a total of (12) days down from (13), were set for the continued Merit Hearing in this matter to proceed by way of Video Hearing between June 25, 2024, and September 10, 2024. The exact dates and particulars of the log-in details for the Merit Hearing are set out at the end of this Decision below.

31At the request of the Parties, the Panel scheduled a further Telephone Conference Call (“TCC”) on Friday June 14, 2024, commencing at 10 a.m. The purpose of the TCC is to resolve any remaining procedural matters in dispute between the Parties prior to the commencement of the Merit Hearing on Tuesday June 25, 2024. Should this TCC no longer be required, the Parties were directed to advise the Case Coordinator in advance of Friday June 14, 2024, in order that the date be released from the Tribunal calendar. The particulars of the call-in details for the TCC are also set out at the end of this Decision below.

THE BALANCE OF THE PENDING MOTIONS: APRIL 23, 2024

32The balance of the remaining and pending Motions were heard on April 23, 2024. Those Motions were reduced to the following requested relief:

i. The Appellant filed a Notice of Motion dated March 26, 2024, seeking:

a) An Order allowing Mr. Provenzano to amend his Witness List to add Ms. Nova Hardcastle, and issuing a summons compelling her attendance at the Merit Hearing pursuant to Rule 13.1 of the Ontario Land Tribunal Rules of Practice and Procedure (“OLT Rules”);

b) An Order allowing Mr. Provenzano to amend his Witness List to substitute Mr. John Dungavell for Mr. Mike Passey under summons, and issuing a summons compelling Mr. Dungavell’s attendance at the Merit Hearing pursuant to Rule 13.1 of the OLT Rules;

c) An Order that the Tribunal conduct a site visit to the Subject Property, as well as a list of 10 additional neighbouring properties termed “relevant precedent properties in the immediate area”, pursuant to Rule 22.4 of the OLT Rules.

ii. The Respondent filed a Notice of (Cross) Motion on March 28, 2024, seeking:

a) An Order that following the cross-examination of Mr. Provenzano on his Affidavit sworn in support of the Appellant’s motion (conducted April 9, 2024), that the Respondent have an opportunity to make submissions on the relevance and propriety of the additional witnesses that the Appellant sought to summon, as well as the opportunity to move to strike specific witnesses;

b) An Order for the examination of any witnesses not struck and summoned by the Tribunal prior to the Merit Hearing; and,

c) In the event that this Tribunal granted the Appellant’s requested site visit, an Order that the protocol for the site visit, including the scope of the site visit, be established.

33At the commencement of the Motion Hearing, the Parties advised that through further discussions they had come to a tentative resolution of the majority of relief sought on the Motions.

Amendment of the Appellant’s Witness List and Pre-Hearing Examinations:

34Mr. Harris advised a summons had been previously issued by the Tribunal for Mr. Passey’s attendance as witness, as he was previously employed with the Ministry of Natural Resources and Forestry (“MNRF”) in a position within the relevant branch that provided guidance to Conservation Authorities. His anticipated evidence was in the area of policy development and scope of mapping by Conservation Authorities respecting natural hazards, which Mr. Harris submitted will be at issue in the Hearing. Mr. Harris advised that while Mr. Passey continues to be employed with the MNRF, his role has changed such that his position is now within a different branch of the MNRF, no longer in a position to provide the best evidence respecting guidance to Conservation Authorities. This precipitated the Appellant’s request to substitute Mr. Dungavell for Mr. Passey. Mr. Harris submitted that Mr. Dungavell is the head of the MNRF branch operating as the advisory function to Conservation Authorities and was in fact Mr. Passey’s former supervisor. He further submitted that because Mr. Dungavell holds both a higher and current position, that this was the best person to adduce evidence from at the Hearing. Mr. Harris conceded that neither individual was being called to provide evidence on behalf of the MNRF, but that their experience within their role would inform the evidence, was relevant to the issues, and that the substitution was being requested for the purpose of tendering the best and most current evidence.

35With respect to Ms. Hardcastle, Mr. Harris submitted that she is the previous owner and occupant of the Subject Property with relevant evidence that would be of assistance to the Tribunal, particularly in light of the objections made during the course of Mr. Provenzano’s examination in chief at the start of the Merit Hearing on June 22, 2023. During Mr. Provenzano’s examination, objections were made to the introduction of photographs of the Subject Property in Mr. Provenzano’s possession but taken by Ms. Hardcastle. In addition, Mr. Harris submitted that as the prior owner and occupant of the property, Ms. Hardcastle could speak to the context of the home, layout of the home, issues related to the characterization of the home, and in particular to the characterization of the second level over which there is dispute between the Parties. Mr. Harris stated this evidence was relevant to the history and use of the property and to give effect to the visual evidence. Mr. Harris added that with the adjournment of the Hearing, there would be no prejudice to the Respondent or material impact to a revised Hearing Plan given the limited scope of her anticipated evidence.

36Mr. Jull questioned the relevance of both Mr. Dungavell and Ms. Hardcastle’s anticipated evidence as set out by Mr. Harris. Briefly, he stated that Mr. Dungavell would have limited evidence being tendered neither as expert nor on behalf of the MNRF and has never been to the Subject Property. Similarly, Mr. Jull questioned the relevance of Ms. Hardcastle’s anticipated evidence, as he submitted that the matter does not raise Planning Act issues related to non-conformity or prior use of the dwelling. Notwithstanding, Mr. Jull took an unopposed position with respect to relief requested to add Ms. Hardcastle and Mr. Dungevell as witnesses to the Appellant’s Witness List on the basis that: (i) Mr. Dungavell would not be providing evidence on behalf of the MNRF, nor would be tendered as an expert witness; and (ii) that the prior procedure set out in the Order of Member Clos dated May 25, 2023, respecting pre-hearing examinations of summoned witness also be permitted with respect to these two additional witnesses. In exchange, Mr. Harris stated his client would agree to the Respondent’s pre-hearing examination request of the two additional witnesses, and further confirmed that his client was not seeking to tender Mr. Dungavell as neither expert, nor as a witness to provide binding evidence on behalf of the MNRF.

Site Visit

37The motion and cross-motion respecting a site visit can be described as a three-part request: (i) a visit to the Subject Property for which neither party is opposed to in theory; (ii) the Appellant’s request for a visit to 10 additional neighbouring properties termed “relevant precedent properties in the immediate area” of which the Respondent is opposed; and (iii) two additional properties conceded to by the Respondent as potentially meriting a site visit.

38Mr. Harris argued that in accordance with OLT Rule 22.4, the requested site visit to the Subject Property and 10 other identified properties where permits have been issued by CLOCA is necessary due to the uniqueness of this case. Mr. Harris argued that what makes this particular case unique is that it deals with the reconstruction and renovation of an existing dwelling in an area where photos, maps and drone visual evidence could not substitute observing the Subject Property and area context firsthand. Unlike most cases in the planning context which take a particular development and zoom out to the broader policy and planning context, Mr. Harris argued that this case does the opposite wherein the broader policy and planning framework is being narrowed down and applied to a very particular property in a particular area, and therefore the Subject Property and neighbouring properties in the surrounding area are of particular importance.

39Through a site visit, Mr. Harris stated that the Panel would observe what the Parties are dealing with on the ground, and would have an opportunity to directly understand the complex technical and expert evidence that would be led at the hearing, prior to the site visit. In particular, Mr. Harris submitted that the visit would assist the Panel in dealing with the key issues of distance from certain hazards, safe access to the site and a comparison of the existing dwelling to the proposed dwelling. With respect to the 10 neighbouring properties, Mr. Harris stated they could be viewed from street level so as not to disturb the owners or occupants of those properties. He states because those properties are ones which were approved for development by CLOCA, they are relevant precedents in support of the Appellant’s case. The fact that CLOCA will argue they can be distinguished, maintains the relevance and importance of the Panel observing those properties directly.

40Mr. Harris was not opposed to working amicably to put in place a protocol which would address concerns regarding such things as the permitted attendees to the visit or recording of the event. Mr. Harris added that with the adjournment of the Hearing, the Tribunal would be provided with the opportunity to set and implement that protocol and to schedule the visit itself.

41In response, Mr. Jull expressed that the Respondent was not opposed to a site visit to the Subject Property. Mr. Jull submitted that the issues and anticipated technical evidence, are sufficiently complex that the Panel may determine that it would benefit from the opportunity to attend the property in person in order to better understand that evidence. However, he stated the Respondent’s position as follows:

42First, given a site visit is not a substitute for evidence but rather a tool for receiving that evidence, it may be premature for the Panel to determine whether the visit would be of benefit prior to the hearing of that evidence. In this regard, Mr. Jull turned to the Ontario Labour Relations Board decision in KONE Inc. (“KONE”)¹⁰. The Board in KONE dealt with a request to “take a view” of a property, which Mr. Jull stated was akin to a site visit by this Tribunal. In that decision, the Board held that a determination on the request for taking-a-view was premature until the anticipated evidence of a technical nature had been adduced so that the Board could properly assess whether taking-a-view would be of assistance.¹¹ Given this Panel is expected to hear expert evidence of a very technical nature, Mr. Jull stated that it may very well be determined by the Panel that a site visit would be of assistance, or even necessary. However, that an informed decision should occur after receiving the anticipated evidence.

43Second, if the Panel grants an Order for a site visit, there should be a protocol in place that includes a list of permitted attendees and a recording of events so that there is a proper record of any comments made by the Parties or others in attendance at the visit.

44Third, with respect to the request for a visit to the 10 neighbouring “precedent” properties, Mr. Jull submitted they were neither relevant nor within this Tribunal’s jurisdiction to make rulings respecting other properties owned by persons who are not party to this Appeal. Even if viewed only from street level, Mr. Jull argued that none of the said property owners or occupants were listed as witnesses in the Hearing. He stated further that they are not relevant to the current Appeal as nine out of ten of those properties involved development applications prior to 2014 when the policy regime was less stringent than under the current law. In this regard, Mr. Jull pointed to this Tribunal’s decision in Peebles v. Toronto Region Conservation Authority,¹² wherein a Panel differently constituted recognized that introducing “precedent” properties not before the Tribunal was not appropriate as each application must be decided on its own merit.¹³

45Fourth, Mr. Jull’s final stated position was that if this Panel was so inclined to grant a site visit, there were only two additional properties that could provide environmental context that might justify inclusion in the visit. Those two additional properties encompass development applications that were submitted in 2019 and 2020, under the same historic policy regime (effective March 2014 – March 31, 2024) that was in place at the time Mr. Provenzano submitted his application that is the subject of the current Appeal.

Ruling on the Motions

46Having considered the oral and written submissions of the Parties, the evidence and authorities filed, the unopposed position of CLOCA on portions of the Motions, and the areas where agreement had been reached among the Parties, the Panel ruled as follows.

47First, the Panel granted the requested relief to add Ms. Hardcastle to the Appellant’s Witness List, and directs that a summons for her attendance be issued.

48Second, the Panel granted the requested relief to substitute Mr. Dungavell for Mr. Passey on the Appellant’s witness list, and directs that a summons for his attendance be issued.

49The Panel was satisfied that the addition and substitution of said witnesses offered the best and most current evidence available and would not cause any prejudice to the Respondent or delay in the Hearing. The Appellant was directed to advise Mr. Passey in writing, that an Order to quash his Summons to Witness would be issued, to circulate a copy of this Decision and Order to Mr. Passey once issued, and to make the necessary request in writing to the Registrar with the appropriate forms in order to facilitate the issuance of summons for Ms. Hardcastle and Mr. Dungavell in a timely fashion.

50Third, the Panel granted the requested relief for the examinations of Ms. Hardcastle and Mr. Dungavell by Counsel for the Respondent prior to the continued Merits Hearing. However, the Panel clarified that the granting of this relief was not being made on the basis of an established procedure that was being followed; rather, is made on the basis of the Appellant’s consent and the agreement reached between the Parties in narrowing the issues in dispute on the Motions.

51Fourth, and finally, the Panel denied the three-part request that it conduct a site visit to (i) the Subject Property; (ii) the Appellant's 10 additional neighboring precent properties; and (iii) the Respondent’s two additional properties deemed potentially relevant.

52Requests for a site visit are made pursuant to Rule 22.4 of the OLT Rules and are granted where the presiding Panel decides that a site visit would be of benefit in obtaining a fair understanding of any evidence which is the subject of the proceeding. Such requests must also be considered in the context of the general practices and procedures of the OLT as set out in s.12(2) of the OLT Act, and which in the Panel’s opinion, offer the best opportunity for a fair, just, and expeditious resolution of the merits of a proceeding.

53Mr. Jull correctly articulated that site visits are not a substitute for evidence but rather a tool to assist the Panel in understanding the evidence adduced at the Hearing. Based on the evidence to date, and submissions of the Parties, the Panel has not received a compelling argument as to the reasons why this case is so unique that it is evident on its face that it requires a site visit. The Panel further agrees with the position of the Respondent that without having heard the expert evidence or evidence of the technical nature alluded to that is anticipated, it is not in a position to properly assess whether a site visit would assist in the determinations of fact that must be made and are germane to the issues in dispute.

54Accordingly, the Panel ruled that the request for a site visit is premature and was denied. This Decision does not preclude the Parties from renewing such a request after the Hearing of the expert evidence as contemplated by the tentative Hearing Plan which includes a date for such motion to be brought forward.

NEXT EVENTS AND DETAILS

Procedural Order

55A revised Procedural Order with updated timetable is to be filed no later than Monday, May 13, 2024.

Telephone Case Conference

56A TCC has been scheduled to proceed on Friday, June 14, 2024, commencing at 10 a.m.

57Individual(s) are directed to call 416-212-8012 or (Toll Free) 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874 to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case.

Merit Hearing

58A (12) day continued Merit Hearing has been scheduled on the following dates to be held by way of Video Hearing commencing at 10 a.m. on each day:

Tuesday, June 25, 2024, to Friday, June 28, 2024 GoToMeeting: https://global.gotomeeting.com/join/692665589 Access Code: 692-665-589

Tuesday, July 2, 2024, to Friday, July 5, 2024 GoToMeeting: https://global.gotomeeting.com/join/719383509 Access Code: 719-383-509

Wednesday, August 7, 2024, to Friday, August 9, 2024 GoToMeeting: https://global.gotomeeting.com/join/660145013 Access Code: 660-145-013

Tuesday, September 10, 2024 GoToMeeting: https://meet.goto.com/558205565 Access Code: 558-205-565

59Parties and Participants 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:

60Parties 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

61Persons 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.

62Individuals 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

THE TRIBUNAL ORDERS that:

1. The Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended, and Regulation 41/24 made thereunder, both in effect as of Monday, April 1, 2024, are the applicable legislation and regulation that now govern this Appeal;

2. The Motion to adjourn brought by the Respondent is granted and the continued Merit Hearing is adjourned to the following (12) dates: June 25, 26, 27, 28, July 2, 3, 4, 5, August 7, 8, 9, and September 10, 2024, each day commencing at 10 a.m;

3. A Telephone Case Conference is scheduled, returnable Friday, June 14, 2024, commencing at 10 a.m;

4. A revised draft Procedural Order shall be filed by the Parties with the Case Coordinator by no later than Monday, May 13, 2024;

5. The Motion brought by Appellant for an amendment of his Witness List to add Ms. Nova Hardcastle as a witness is hereby granted and the Tribunal Registrar is directed to grant the issuance of a summons to witness requiring the attendance of Ms. Nova Hardcastle at the continued Merit Hearing in this matter;

6. The Motion brought by the Appellant for an amendment of his Witness List to remove Mr. Mike Passey as a witness is hereby granted, and that the summons to witness requiring the attendance of Mr. Mike Passey at the continued Merit Hearing in this matter is hereby quashed;

7. The Motion brought by Appellant for an amendment of his Witness List to add Mr. John Dungavell as a witness is hereby granted and the Tribunal Registrar is directed to grant the issuance of a summons to witness requiring the attendance of Mr. John Dungavell at the continued Merit Hearing in this matter;

8. The testimony of Mr. John Dungavell under summons be limited to factual testimony and not that of an expert witness;

9. The Motion brought by the Respondent for the examination of Ms. Nova Hardcastle and Mr. John Dungavell prior to the continued Merit Hearing in this matter is granted and that the Appellant or a representative be permitted to attend and observe all such examinations;

10. The Motion brought by the Appellant for the Tribunal to conduct a site visit is hereby denied; and

11. This Order is to be implemented in accordance with the directions provided in this Decision.

63This Panel is seized of the matter.

64No further notice is required.

“Astrid J. Clos”

Astrid j. clos Member

“Nazanin Eisazadeh”

nAZANIN EISAZADEH 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.

Footnotes

1. 1An Act to amend various statutes, to revoke various regulations and to enact the Supporting Growth and Housing in York and Durham Regions Act, under the More Homes Built Faster Act, 2022, S.O. 2022, c. 21, Schedule 2 (“Bill 23”).
2. 2Prohibited Activities, Exemptions and Permits, O.Reg 41/24 made under the Conservation Authorities Act R.S.O. 1990, c. C27.
3. 3See Dalumay v. Canada (Citizenship and Immigration), 2012 FC 1179; see also Kaur Gill v. Canada (Citizenship and Immigration), 2012 FC 1522; see also Sran v Canada (Citizenship and Immigration), 2017 FC 389.
4. 4Patel v Canada (Minister of Citizenship and Immigration), 2016 FC 1221.
5. 5R. v. Dineley, 2012 SCC 58 at para 10.
6. 6Brown v. Dunn 6 R 67 (H.L.).
7. 7Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s.52(3).
8. 8Patel v Canada (Minister of Citizenship and Immigration), 2016 FC 1221.
9. 9Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6.
10. 10KONE Inc. [2023] O.L.R.D. No. 1442.
11. 11KONE Inc. [2023] O.L.R.D. No. 1442 at paras 8-10.
12. 12Peebles v. Toronto Region Conservation Authority, 2024 CanLll28386 (ONT LT).
13. 13Peebles v. Toronto Region Conservation Authority, 2024 CanLll28386 (ONT LT) at para 115.