Old Second South Inc. v. Springwater (Town), 2024 CanLII 48194

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

May 22, 2024

CASE NO(S).:

OLT-24-000188

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

Applicant and Appellant:

Old Second South Inc.

Subject:

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

Description:

To permit the development of a residential subdivision containing 36 lots.

Reference Number:

ZB-2021-001

Property Address:

3024 Old Second South

Municipality:

Springwater

OLT Case No.:

OLT-24-000188

OLT Lead Case No.:

OLT-24-000188

OLT Case Name:

Old Second South Inc. v. Springwater (Town)

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

Applicant and Appellant:

Old Second South Inc.

Subject:

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

Description:

To permit the development of a residential subdivision containing 36 lots.

Reference Number:

SU-2021-001

Property Address:

3024 Old Second South

Municipality:

Springwater

OLT Case No.:

OLT-24-000189

OLT Lead Case No.:

OLT-24-000188

Heard:

April 29, 2024 by Video Hearing (“VH”)

APPEARANCES:

Parties

Counsel

Old Second South Inc.

Michael Cara

Rowan Barron (student at law)

Township of Springwater

Bruce Engell

County of Simcoe

Samantha Trottola

MEMORANDUM OF ORAL DECISION DELIVERED BY ASTRID J. CLOS ON April 29, 2024 AND ORDER OF THE TRIBUNAL

1This was the first Case Management Conference (“CMC”) convened for appeals brought by Old Second South Inc. (“Applicant/Appellant”) pursuant to s. 34(11) of the Planning Act (“Act”) of a Zoning By-law Amendment (“ZBA”) and s. 51(34) of the Act of a Draft Plan of Subdivision (“DPS”) related to the property municipally addressed as 3024 Old Second South (“Subject Property”) located in the Township of Springwater (“Township”).

2The Subject Property is located in the Midhurst Settlement Area with approximately 168 metres (“m”) of frontage on Old Second South. The property is rectangular in shape with an approximate area of 22.22 hectares (“ha”). The Subject Property is currently vacant.

3The Appellant submitted the original ZBA and DPS applications in February 2021. On March 22, 2021, the ZBA and DPS were deemed to be complete applications. A series of resubmissions were made by the Appellant responding to comments provided by the Township, the latest was submitted on October 31, 2023.

4The purpose of the ZBA and DPS is to implement a 36 single detached residential lot subdivision including a municipal road, stormwater management block and an approximately 11.621 ha area environmental protection block located on the west half of the site (“Proposed Development”). The Proposed Development is proposed to be serviced by individual private wells and septic systems.

5The approval authorities did not make a decision regarding the ZBA and DPS within the statutory timeframes and the applications were subsequently appealed.

6The Affidavit of Service sworn on April 10, 2024, was entered as Exhibit 1.

STATUS REQUESTS

7In response to the notice, Party status was requested by the County of Simcoe (“County”), the approval authority for the DPS application. Samantha Trottola indicated that the County is attending to ensure that the standard conditions regarding waste management collection will be included in the DPS. Given the County’s role as an approval authority for the DPS and with no opposition from the other Parties, the Tribunal granted the requested Party status to the County of Simcoe.

8In response to the notice, three Participant status requests were received by the Tribunal from Madison MacIntyre, Don Allen and Allan Sutton. The Tribunal reviewed these requests. Based on the interest demonstrated in this matter and with no opposition from the Parties, the Tribunal granted the requests for Participant status to Madison MacIntyre, Don Allen and Allan Sutton.

PROCEDURAL ORDER

9The Procedural Order (“PO”) filed with the Tribunal on May 13, 2024, has been reviewed and is approved by the Tribunal (Schedule 1).

MERIT HEARING

10The Parties jointly requested that the Tribunal schedule a 10-day Merit Hearing (“MH”). The Tribunal canvassed the availability of the Parties and accordingly scheduled a MH to commence at 10 a.m. on Tuesday, November 12, 2024, to Tuesday, November 26, 2024 (excluding Monday, November 18, 2024) by VH.

11Parties 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:

https://global.gotomeeting.com/join/442599157

Access code: 442-599-157

12Parties 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

13Persons 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 442-599-157.

14Individuals 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.

15The Parties were reminded that Tribunal-led mediation is available at their convenience by contacting the Case Coordinator.

ORDER

16The Tribunal orders that:

a. Party status is granted to the County of Simcoe,

b. Participant status is granted to Madison MacIntyre, Don Allen and Allan Sutton,

c. The Procedural Order (included as Schedule 1) filed with the Tribunal by the Parties on May 13, 2024 is approved,

d. A 10-day Merit Hearing is scheduled at 10 a.m. on Tuesday, November 12, 2024 to Tuesday, November 26, 2024 (excluding Monday, November 18, 2024), by Video Hearing.

17This Member is not seized.

18No further notice will be provided

“Astrid J. Clos”

ASTRID J. CLOS

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 1

Procedural Order

CASE NO(S).: OLT-24-000188

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

Applicant and Appellant:

Old Second South Inc.

Subject:

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

Description:

To permit the development of a residential subdivision containing 36 lots.

Reference Number:

ZB-2021-001

Property Address:

3024 Old Second South

Municipality:

Springwater

OLT Case No.:

OLT-24-000188

OLT Lead Case No.:

OLT-24-000188

OLT Case Name:

Old Second South Inc. v. Springwater (Town)

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

Applicant and Appellant:

Old Second South Inc.

Subject:

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

Description:

To permit the development of a residential subdivision containing 36 lots.

Reference Number:

SU-2021-001

Property Address:

3024 Old Second South

Municipality:

Springwater

OLT Case No.:

OLT-24-000189

OLT Lead Case No.:

OLT-24-000188

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 November 12, 2024 at 10:00 a.m. at https://global.gotomeeting.com/join/442599157. The Access code is: 442-599-157.

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

5. The issues are set out in the Issues List attached as Attachment 3. 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 4 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 Tuesday July 25, 2024 and in accordance with paragraph 23 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 Wednesday August 14, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties shall prepare and file any Statement(s) of Agreed Facts and Issues with the OLT case coordinator on or before Thursday August 29, 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 14 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 14 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 14 below.

13. On or before Friday September 13, 2024 the parties shall provide copies of any witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 23 below.

14. On or before Friday September 13, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 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 Tuesday October 8, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Wednesday October 23, 2024 the parties shall provide copies of their written response(s) to any written evidence to the other parties and to the Tribunal in accordance with paragraph 23 below.

17. On or before Friday September 13, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

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

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with the Tribunal’s Rules of Practice and Procedure.

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 Tuesday November 5, 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

SUMMARY OF DATES

DATE

EVENT

Thursday July 25, 2024

(110 days prior to hearing)

Exchange of Witness Lists

Wednesday August 14, 2024

(90 days prior to hearing)

Experts meeting(s) prior to this date

Thursday August 29, 2024

(75 days prior to hearing)

Deadline to File Any Agreed Statement(s) of Facts

Friday September 13, 2024

(60 days prior to hearing)

Exchange of Witness Statements and Experts Reports, Participant Statements (if any), and summoned witness outlines (if any)

Tuesday October 8, 2024

(35 days prior to hearing)

Parties to Advise If Any Hearing Dates Can Be Released

Monday October 14, 2024

(29 days prior to hearing)

Exchange of Reply Witness Statements (if any)

Wednesday October 23, 2024

(20 days prior to hearing)

Exchange of Visual Evidence (if any)

Tuesday November 5, 2024

(7 days prior to hearing)

Filing of Work Plan and Joint Document Book

Tuesday November 12, 2024 – Tuesday November 26, 2024

(not sitting on November 18)

Hearing

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel/*Agent

Old Second South Inc. (Applicant/Appellant)

Daniel Artenosi / Michael Cara

Overland LLP

Yonge Norton Centre

5255 Yonge Street, Suite 1101

Toronto, ON M2N 6P4

Email: dartenosi@overlandllp.ca / mcara@overlandllp.ca

Tel: 416.730.0320 / 416.730.8844

The Corporation of the Township of Springwater

Bruce Engell

Weirfoulds LLP

66 Wellington Street West, Suite 4100

Toronto, ON M5K !B7

Email: bengell@weiroulds.com

Tel: 416.947.5081

The Corporation of the County of Simcoe

Zarah Walpole / Samantha Trottola

County of Simcoe, Legal Services

1110 Highway 26

Midhurst, ON L9X 1N6

Email: zarah.walpole@simcoe.ca / samantha/trottola@simcoe.ca

Tel: 705.726.9300 ext. 1627 / 705.726.9300 ext. 1532

A. PARTICIPANTS

Counsel/*Agent

Allan Sutton

Email: allan.alfred.sutton@gmail.com

Tel: (289) 221-2464

Don Allen

Email: don@allentrustee.ca

Tel: (705) 302-4253

Madison MacIntyre

Email: madison@madistontaylordesign.com

Tel: (416) 477-3414

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. The identification of an issue on this list by a Party indicates that Party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the Tribunal having jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the Tribunal.

Issues List of the Township of Springwater:

1. Is the proposed development consistent with the PPS, including policies 1.5.1, 1.6.6, and 1.6.7?
2. Does the proposed development conform to the Growth Plan, including policies 3.2.1, 3.2.2, 3.2.6, 3.2.7, 4.2, and 4.2.5?
3. Does the proposed development conform with the County Official Plan, including policy 4.7?
4. Does the proposed development conform with the Township’s Official Plan, including policies 3.5, 8.6.8 and 9.1.2?
5. Does the proposed development conform with the Midhurst Secondary Plan, including policies 3.3, 5.6, 8.1, 9.2, and 9.7?
6. Is the proposed development premature and not in the public interest in relation to its design and its impact on neighbouring developable lands in respect of the proposed servicing for the subdivision?
7. Does the proposed development conform with the Midhurst Secondary Plan in respect of the intent of the Midhurst Village designation?
8. Is it appropriate for the proposed development to proceed on private services when municipal servicing is becoming available to such that it can provide servicing for these lands in a more compact and efficient manner, and in a manner which would also support development of neighbouring developable lands?
9. Do the subject lands fall within the exception in section 5.6.b of the Midhurst Secondary Plan? If so, in considering the particulars of this case, are the subject lands appropriate for the application of the exception?
10. Does the proposed subdivision fail to provide appropriate road connections to allow interconnection of the road network with the contemplated development of the neighbouring lands in the Midhurst Village designation?
11. Does the proposed development fail to provide for appropriate parkland?
12. Does the proposed development fail to provide for an appropriate underground Fire Storage tank to support fire response for the development?
13. Does the proposed development fail to provide an appropriate channelized outlet from the proposed stormwater management pond?
14. Pursuant to the policies of the Midhurst Secondary Plan, has the applicant made appropriate cost-sharing arrangements with the Midhurst Landowners Group?
15. What conditions of draft approval would be appropriate?
16. Is the proposed form of zoning by-law appropriate? Should there be a holding symbol and what provisions should it include?

Issues List of the County of Simcoe:

1. Has the subdivision been designed with municipal road standards to ensure that County of Simcoe waste management collection can occur, and has the appropriate clause been incorporated into the draft plan agreement?

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence. The Order of Evidence will be described in greater detail in the Hearing Plan that is filed with the Tribunal.

1. Old Second South Inc. (Applicant/Appellant)

2. Township of Springwater

3. County of Simcoe

4. Reply by Old Second South Inc. (if necessary)

Attachment to Procedural Order

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.