2564669 Ontario Inc. and 520039 Ontario Limited v. Otonabee (Township), 2024 CanLII 43241

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

May 10, 2024

CASE NO(S).:

OLT-23-000625

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

2564669 Ontario Inc. and 520039 Ontario Limited

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To facilitate the development of a residential subdivision

Reference Number:

Z12-21

Property Address:

Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and part 1 of 1

Municipality/UT:

Otonabee-South Monaghan/Peterborough

OLT Case No.:

OLT-23-000625

OLT Lead Case No.:

OLT-23-000625

OLT Case Name:

2564669 Ontario Inc. and 520039 Ontario Limited v. Otonabee (Township)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

2564669 Ontario Inc. and 520039 Ontario Limited

Subject:

Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description:

To facilitate the development of a residential subdivision

Reference Number:

15CD-21001

Property Address:

Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and part 1 of 1

Municipality/UT:

Otonabee-South Monaghan/Peterborough

OLT Case No.:

OLT-23-000626

OLT Lead Case No.:

OLT-23-000625

OLT Case Name:

2564669 Ontario Inc. and 520039 Ontario Limited v. Otonabee (Township)

Heard:

March 13, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

2564699 Ontario Inc. and 520039 Ontario Limited

Kathleen Kinch Jenna Khoury-Hanna

Township of Otonabee-South Monaghan

Edward Veldbloom

County of Peterborough

Edward Veldbloom

Dave Earl

Richard J. Taylor

MEMORANDUM OF ORAL DECISION DELIVERED ON MARCH 13, 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 filed by 2564699 Ontario Inc. and 520039 Ontario Limited (“Appellants”) pursuant to s. 34(11) and s. 51(34) of the Planning Act due to the Township of Otonabee-South Monaghan and the County of Peterborough’s (“Municipality”) failure to make a decision on the applications pertaining to the property Municipally known as Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and Part 1 of 1.

2The purpose of the applications would be to permit the development of a residential subdivision of 20 residential lots under a Development Plan of Condominium.

3The Affidavit of Service by Allison Bird dated January 26, 2024, was marked as Exhibit 1 to the CMC.

PARTY REQUESTS

4The Tribunal was made aware prior to the CMC that there would be an additional Party request from Dave Earl, who was represented by Richard J. Taylor. Mr. Taylor stated that the Party status form was submitted to the Tribunal three days before this CMC event. The reasoning for the Party request was due to Mr. Earl’s concerns of stormwater management pertaining to his property, which abuts the Appellant’s lands.

5After discussions with the Parties, the Tribunal ruled that Mr. Earl should be a Party to this matter, as his lands abut to the Appellant’s lands.

PARTICIPANT REQUESTS

6Multiple persons that attended the CMC requested to remain as observers to the proceedings. One person was granted Participant status, this being Scott Milne.

OPPORTUNITIES FOR RESOLUTION

7The Parties stated that they are actively in private discussions and Tribunal-led mediation is not needed at this time.

PROCEDURAL ORDER AND ISSUES LIST

8The Parties stated that a draft Procedural Order (“PO”) and Issues List (“IL”) has not been finalized, however, is very close to completion. With the addition of Mr. Earl as a Party to this matter, this would add only one witness to the PO since Mr. Earl’s issues are very specific. Mr. Earl’s counsel stated that they may even revoke their Party status if they were to receive the stormwater management documents from the Municipality. If his client’s engineer were satisfied as to the newest stormwater management proposal, then his client would happily rescind his Party status, and become a Participant to this matter.

9The Municipality agreed that Mr. Earl could have access to these requested documents for analysis. The Tribunal directed the County to send the requested documents to Mr. Earl by no later than Friday, April 5, 2024. Mr. Earl would then have until Friday, April 26, 2024, to complete his review and update his intended status with the Tribunal. A finalized PO and IL would then be submitted to the Tribunal for review by Tuesday, April 30, 2024.

10Since the time of the hearing, the Tribunal has received confirmation that having reviewed the documents, Mr. Earl will remain a Party to the Proceedings. The Tribunal has received an updated PO and IL, which includes Mr. Earl remaining as a Party to this matter. After reviewing the PO and IL, the Tribunal approves its contents. The attached PO and IL will govern the hearing of the Merits of this matter.

SCHEDULING OF THE HEARING

11The Parties stated that a two or three-day hearing would be appropriate for this matter. Due to the addition of Mr. Earl as a Party, the Tribunal felt that a three-day hearing would be more appropriate.

12The Tribunal has scheduled a Hearing of the Merits to occur by Video Hearing commencing on Wednesday, July 10, 2024, at 10 a.m. for a duration of three days.

13Parties 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:

[13]

GoToMeeting: https://global.gotomeeting.com/join/765631861

Access Code: 765-631-861

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 into an audio-only telephone line: +1 (647) 497-9391 or Toll-Free: 1 888 455 1389. The access code is as indicated above.

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 three (3) day Video hearing shall commence on Wednesday, July 10, 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 Member is not seized.

20No further notice will be provided.

“S. deBoer”

Steve 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

Procedural Order

CASE NO(S).: OLT-23-000625

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

2564669 Ontario Inc. and 520039 Ontario Limited

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To facilitate the development of a residential subdivision

Reference Number:

Z12-21

Property Address:

Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and part 1 of 1

Municipality/UT:

Otonabee-South Monaghan/Peterborough

OLT Case No.:

OLT-23-000625

OLT Lead Case No.:

OLT-23-000625

OLT Case Name:

2564669 Ontario Inc. and 520039 Ontario Limited v. Otonabee (Township)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

2564669 Ontario Inc. and 520039 Ontario Limited

Subject:

Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description:

To facilitate the development of a residential subdivision

Reference Number:

15CD-21001

Property Address:

Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and part 1 of 1

Municipality/UT:

Otonabee-South Monaghan/Peterborough

OLT Case No.:

OLT-23-000626

OLT Lead Case No.:

OLT-23-000625

OLT Case Name:

2564669 Ontario Inc. and 520039 Ontario Limited v. Otonabee (Township)

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

1. The video hearing will begin on Wednesday, July 10, 2024, at 10 am

https://global.gotomeeting.com/join/765631861

2. The parties’ initial estimation for the length of the hearing is 3 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.

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

4. 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.

5. 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.

6. 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.

7. 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

8. 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 Wednesday, May 8, 2024 and in accordance with paragraph 21 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.

9. Expert witnesses in the same field shall have a meeting on or before Friday, May 24, 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 Monday June 26, 2024.

10. 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.

11. 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.

12. On or before Friday May 24, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

13. On or before Friday May 31, 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 21 below.

14. On or before Friday, May 31, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

15. On or before Tuesday June 4, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 21 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday June 28, 2024. Any supplementary document books of individual parties shall be filed with the Tribunal by Friday, July 5, 2024.

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Tuesday July 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.

21. 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.

22. 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.

Attachment 1 – Parties and Participants

Parties

1. 2564669 Ontario Inc. & 520039 Ontario Limited
2. The County of Peterborough & The Township of Otonabee-South Monaghan
3. David Earl

Participants

1. Scott Milne

Attachment 2 – Issues

1. Whereas this is an appeal from non-decision by municipal approval authorities, and with respect to the Appellants, the County and the Township, whether the Draft Plan of Condominium and Zoning By-Law Amendment Applications are:
   1. Consistent with the directives of the 2020 Provincial Policy Statement;
   2. In conformity of the policy directives of the 2019 A Place to Grow, Growth Plan for the Greater Golden Horseshoe;
   3. Is in keeping with the general purpose and intent of the policy directives of both the County of Peterborough (Pre-July 2022 version) and the Township of Otonabee-South Monaghan Official Plans;
   4. Is in keeping with the general purpose and intent of the regulatory provisions of the Township of Otonabee-South Monaghan Zoning By-law; and
   5. Is representative of good planning.
2. With respect to Party David Earl, a party to the matter on a scoped basis pursuant to the Case Management Conference direction, and subject to response from the other parties, the following issues:
   1. whether the stormwater management for the proposed development meets the above legal tests on this appeal; and
   2. Whether the proposed one entrance to the Plan of Condominium is appropriate.

Attachment 3 – Order of Evidence

1. 2564669 Ontario Inc. & 520039 Ontario Limited
2. The County of Peterborough & The Township of Otonabee-South Monaghan
3. David Earl
4. Reply of 2564669 Ontario Inc. & 520039 Ontario Limited, County and Township to the issues contained in paragraph 2 of the issues list