Valrose Paris Limited v. Brant (County), 2024 CanLII 458

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 02, 2024

CASE NO(S).: OLT-22-004674

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

Applicant/Appellant: Valrose Paris Limited

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

Description: Zoning By-law amendment to facilitate the development of a subdivision

Reference Number: ZBA35-22-SL

Property Address: 848 Watt’s Pond Road

Municipality: County of Brant

OLT Case No.: OLT-22-004674

OLT Lead Case No.: OLT-22-004674

OLT Case Name: Valrose Paris Limited v. Brant (County)

Heard: November 21, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Valrose Paris Limited	Russell D. Cheeseman Stephanie Fleming
County of Brant	Jyoti V. Zuidema Rochelle Welshman

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON NOVEMBER 21, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“Second CMC”) with respect to an appeal under section 34(11) of the Planning Act by Valrose Paris Limited (“Applicant”) from the failure of the County of Brant (“County”) to make a decision on an application for a Zoning By-Law Amendment (“ZBA Application”) with respect to lands municipally known as 848 Watt’s Pond Road in the County (“Subject Property”). The purpose of the ZBA Application is to facilitate the development of a subdivision.

2This matter has a somewhat long history. Previously, the Applicant had submitted a ZBA Appeal and a Draft Plan of Subdivision (“PoS”) pertaining to the Subject Property. The County and the Applicant reached a settlement on a proposed ZBA, draft PofS, and conditions of draft plan approval. The settlement was presented to the Tribunal, known as LPAT at the time, and was approved by Member Bryan W. Tuckey, as detailed and Ordered in his Decision issued on November 12, 2020, which approved the ZBA, Draft PofS, and Conditions of draft plan approval. The Tribunal file number for that matter was PL171016.

3Since Member Tuckey’s Decision, the Applicant has been working to clear the Conditions of Final Approval for the PoS. During this process and the related red-line revision to the Plan of Subdivision, it was determined that the proposed development would require an additional Zoning By-law Amendment to reduce the minimum exterior side-yard setback requirement from 4.5 metres (“m”) to 3.0 m, and to increase the maximum permitted height from 10.5 m to 11.0 m within any portion of the Subject Property zoned R1-54. Hence, the Applicant filed the ZBA Application. The County failed to make a decision on it and the Applicant filed the subject appeal with the Tribunal.

4A CMC previously took place on May 5, 2023 (“First CMC”), wherein it was confirmed that adequate Notice had been provided for this matter and no further Notice was required. Moreover, the following were granted Participant status: Angie Crichton, Fernanda Albert, Susan Buck, Mary Taylor, and Michael Reilly. Lastly, a Hearing was scheduled to take place by video hearing beginning on Monday, April 15, 2024, at 10 a.m. and scheduled for ten days until Friday, April 26, 2024. The particulars of that Hearing are contained in the Decision with respect to the First CMC issued on May 23, 2023.

SECOND CMC

5At the First CMC, the Parties indicated that they intended to further scope and discuss the nature of the issues pertaining to this matter, as well as attempt to resolve some of them. As such, this second CMC was scheduled to allow the Parties to finalize the Procedural Order (“PO”) and Issues List (“IL”), or, in the alternative, if the Parties were able to reach a settlement, a Hearing could take place to consider the settlement.

6Prior to the Second CMC, the Parties advised that they had yet to reach a settlement, though discussions were ongoing. At the Second CMC, the Applicant’s Counsel advised the Tribunal that a number of issues were close to being resolved. An Environmental Impacts Assessment (“EIS”) had been prepared and submitted to the County the prior week. If accepted, this could resolve Issues 1-5 on the IL. With respect to Issue 6, both Parties indicated that this was very close to being resolved. Subsequent to the CMC, the Parties advised that it had resolved and could be crossed off of the IL. The balance of the issues remained, which were policy-related issues, and the Parties were continuing to discuss those in pursuit of reaching a settlement. Both believed that a complete settlement was likely and that it was likely that they would request that one of the scheduled Hearing dates be converted to a hearing to consider a settlement.

7However, in the case that a settlement was not achieved, the County advised that it may ask that the Hearing be converted to an in-person Hearing as there was community interest in this matter and the community was more comfortable attending a Hearing in person. The Tribunal directed that requests for conversion of the hearing type would be considered by the Chair and granted if appropriate. If the Parties wish to change the Hearing from a Video Hearing to an In-Person one, they must submit this request in writing to the Case Coordinator not less than sixty (60) days before the start of the Hearing.

8The Parties provided an updated draft PO and IL at the start of the Second CMC, which was reviewed and ratified by the Tribunal.

9With respect to mediation and settlement, the Parties advised that they were continuing their discussions and did not require the assistance of the Tribunal at this time. The Parties were directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

ORDER

10THE TRIBUNAL ORDERS that the Procedural Order and Issues List, attached to this Decision as Schedule A, shall govern these proceedings.

11The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE

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.

CASE NO: OLT-22-004674

ONTARIO LAND TRIBUNAL

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

Applicant/Appellant: Valrose Paris Limited

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

Description: Zoning By-law amendment to facilitate the development of a subdivision

Reference Number: ZBA35-22-SL

Property Address: 848 Watt’s Pond Road

Municipality: County of Brant

OLT Case No.: OLT-22-004674

OLT Lead Case No.: OLT-22-004674

OLT Case Name: Valrose Paris Limited v. Brant (County)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Monday, April 15, 2024 at 10:00 a.m

3. The parties’ initial estimation for the length of the hearing is ten (10) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday, December 29, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before Friday, January 26, 2024, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, February 2, 2024.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before Friday, February 16, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before Friday, February 16, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

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

16. On or before Friday, April 5, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, March 1, 2024 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, April 5, 2024.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Wednesday, April 10, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests

This Member is not seized.

So orders the Tribunal.

Attachment 1

PARTIES

1. Valrose Paris Limited

2. County of Brant

PARTICIPANTS

1. Angie Crichton

2. Fernanda Albert

3. Susan Buck

4. Mary Taylor

5. Michael Reilly

Attachment 2

Issues List

Natural Heritage Features protection under the jurisdiction of subsection 2(a) of the Planning Act:

1. Is the rezoning consistent with the Provincial Policy Statement and County of Brant Official Plan with regards to significant wildlife habitat and the habitat of endangered and threatened species including adjacent lands?

2. Will the rezoning result in harm to migratory birds, their eggs and/or nests and potentially be in contravention of the Migratory Birds Convention Act such that there would be violation of under subsection 2(a) of the Planning Act, which requires the Tribunal in carrying out its responsibilities, shall have regard to “the protection of ecological systems, including natural areas, features and functions”?

3. Are the setbacks adequate such as to ensure that development and site alteration will not have a negative impact on the natural features or on their ecological functions (specifically Great Blue Herons) pursuant the Provincial Policy Statement and specifically policy 2.1.5 and policy 2.1.8 and that development and site alteration will be in accordance with provincial and federal requirements?

4. How is the rezoning carrying out the recommendations of the Environmental Impact Study (EIS) and associated Noise Study? Are special provisions needed with regard to recommended mitigation measures?

5. Do additional lands need to be rezoned to Natural Heritage (NH) or Natural Heritage Vegetation Protection Zone (NH1) to implement or reflect the recommendations of the EIS and associated Noise Study?

Traffic and Transportation under subsection 2(f) of the Planning Act:

6. Does the Zoning By-Law Amendment affect the ability to provide adequate on-street parking as per the on-street parking guidelines adopted by Council on January 31, 2023? Does the proposed rezoning conflict with “the adequate provision and efficient use of …transportation ..systems” as stipulated under subsection 2(f) of the Planning Act?

Planning: General and Land Use Conflicts and Compatibility

7. Is the proposed Zoning By-Law Amendment consistent with the 2020 Provincial Policy Statement, specifically sections 2.1.2, 2.1.5(d), and 2.1.8?

8. Is the proposed Zoning By-Law Amendment meeting the intent of Sections 2.3.2 of the County of Brant Official Plan?

9. Does the proposed Zoning By-Law Amendment have regard for matters of provincial interest specifically, Sections 2(a), (d), (m), (n), and (p) within the Planning Act?

10. Should the Ontario Land Tribunal be provided both the redline revision to the Draft Plan of Subdivision and the Zoning By-Law Amendment in order to make an informed decision?

11. Will the new draft of the Provincial Policy Statement, 2020 be in place, and if those policies are in place, do the old policies of the PPS apply? Or will the new policies apply?

12. Given the agreement by the Applicant to wait to proceed with this development until after the registration of the Watt’s Pond Subdivision (formerly known as Gusenbauer), would a holding provision be appropriate to ensure the timing as contemplated? Would doing so accord with subsection 2(h) which requires “the orderly development of safe and healthy communities”?

Note: the identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

Attachment 3

ORDER OF EVIDENCE

1. Valrose Paris Limited

2. County of Brant

3. Valrose Paris Limited, in Reply

ATTACHMENT 4

SUMMARY OF FILING DATES

EVENT	DATE
List of Witness	December 29, 2023
Expert Witness Meetings	January 24, 2024
Agreed Statement of Facts & Remaining Issues	February 2, 2024
Witness and Expert Witness Statements	February 16, 2024
Reply Witness Statements	March 1, 2024
Hearing Plan	April 10, 2024
Joint Document Book	April 5, 2024
Visual Evidence	April 5, 2024
OLT Hearing Commences	April 15, 2024, at 10:00 a.m. Ten (10) days