Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 28, 2024 CASE NO.: OLT-23-000360

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

Applicant/Appellant: Snowy Owl Woods Holdings Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a development of 43 single detached dwellings and a block for a 10 to 21-unit apartment building Reference Number: ZB02-2022 Property Address: 3852 Ganaraska Road Municipality/UT: Port Hope/Northumberland OLT Case No: OLT-23-000360 OLT Lead Case No: OLT-23-000360 OLT Case Name: Snowy Owl Woods Holdings Inc. v. Port Hope (Municipality)

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

Applicant/Appellant: Snowy Owl Woods Holdings Inc. Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit a development of 43 single detached dwellings and a block for a 10 to 21-unit apartment building Reference Number: SU01-2022 Property Address: 3852 Ganaraska Road Municipality/UT: Port Hope/Northumberland OLT Case No: OLT-23-000361 OLT Lead Case No: OLT-23-000360

BEFORE: M. A. SILLS VICE CHAIR

Tuesday, the 28th day of May, 2024

THIS MATTER having come before the Tribunal, and the Tribunal in its Decision issued on September 5, 2023, having scheduled a ten-day hearing commencing on June 3, 2024, with the procedural order subsequently issued on December 1, 2023;

AND THE TRIBUNAL having been advised by the parties that the issues for the hearing have been scoped and that the hearing would be reduced in length;

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the rescheduled hearing scheduled to commence on Wednesday, September 11, 2024.

“Euken Lui” ACTING REGISTRAR

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

ATTACHMENT “A”

CASE NO(S).: OLT-23-000360 and OLT-23-000361

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

Applicant/Appellant: Mistral Development Inc. Subject: Application to amend the Zoning by-law – Refusal or neglect to make a decision Description: To permit a development of 43 single detached dwellings and a block for a 10 to 21-unit apartment building Reference Number: ZB02-2022 Property Address: 3852 Ganaraska Road Municipality/UT: Port Hope/Northumberland OLT Case No: OLT-23-000360 OLT Lead Case No: OLT-23-000360 OLT Case Name: Snow Owl Woods Holdings Inc. v. Port Hope (Municipality)

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

Applicant/Appellant: Mistral Development Inc. Subject: Proposed Plan of subdivision—Failure of Approval Authority to make a decision Description: To permit the development of 42 single detached dwellings and a block for a 10 to 21-unit apartment building Reference Number: SU01-2022 Property Address: 3852 Ganaraska Road Municipality/UT: Port Hope/Northumberland OLT Case No: OLT-23-000361 OLT Lead Case No: OLT-23-000360 OLT Case Name: Snow Owl Woods Holdings Inc. v. Port Hope (Municipality)

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. On May 10, 2024, the Tribunal approved the adjournment of the scoped hearing which was scheduled to commence on June 3, 2024 for 10 days.

3. The adjourned video hearing will begin on September 11, 2024 at 10:00 a.m., for a duration of 3 days.

Link: https://global.gotomeeting.com/join/927921077

Access Code: 927-921-077

4. 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.

5. The parties and participants identified at the first case management conference held on August 11, 2023 are set out in Attachment 1.

6. The scoped issues are set out in the Issues List attached as Attachment 2. When finalized, 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.

7. 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.

8. A summary of the applicable procedural dates, as outlined at paragraphs 11 to 24 of this Order, is set out in Attachment 4.

9. 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.

10. 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

11. 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. The Parties filed with the Tribunal witness lists and corresponding Curriculum Vitae on March 18, 2024, with the Municipality providing subsequent curriculum vitae on March 25, 2024. Given the scoped issues and adjournment of the hearing, the Parties will be filing new witness lists to reflect the scoped issues for the hearing. The new witness list must be delivered on or before June 3, 2024 and in accordance with paragraph 24 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.

12. Expert witnesses in the same field shall have a meeting on or before June 14, 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 July 8, 2024.

13. 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.

14. 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 15 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 15 below.

15. On or before July 29, 2024 the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.

16. On or before July 29, 2024 a participant may provide copies of their updated written participant statement reflecting the scoped issues list in this procedural order, to the other parties in accordance with paragraph 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before August 16, 2024 and in accordance with paragraph 24 below.

18. On or before August 12, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

19. On or before August 16, 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.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before August 16 2024.

21. 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.

22. 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.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 4, 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.

24. 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.

25. 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.

BEFORE: Name of Member: Date:

TRIBUNAL REGISTRAR

Attachment to Sample 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.

Attachment 1

List of Parties and Participants

Parties:

1. Mistral Development Inc. c/o Katarzyna Sliwa, Isaiah Banach, and Jessica Jakubowski Dentons Canada LLP 416.863.4628 kat.sliwa@dentons.com Isaiah.banach@dentons.com jessica.jakubowski@dentons.com

2. The Municipality of Port Hope c/o Jennifer Savini Templeman LLP 613.966.2620 jsavini@tmlegal.ca

Participants:

1. Kevin Killin
2. Christiane Husemann
3. Greg Burns
4. Glen Deeth
5. Richard Yoshida
6. Jane Zednik
7. Christopher Sanderson
8. Skweda O’Bomsawin
9. Sandra Vervoort
10. Timothy Kehoe
11. Loriann and John Sharp
12. Gillian Devereaux
13. Rob Quartly
14. Eveline Frair
15. Steve Kahn and Holly Blefgen
16. Edward Garland
17. Bill and Carol Ann Moore Ede
18. Susan Connors
19. Marian Martin

Attachment 2

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.

Issues List – Municipality of Port Hope

1. Does the development proposal, consisting of Zoning By-law Amendment and Subdivision Application (collectively the “development proposal”), for the Subject Lands have appropriate regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act, including the matters set out in sections 2(a), 2(d), 2(n) and 2(p) therein?

2. Does the development proposal have appropriate regard for the criteria set out in section 51(24) (a), (b), (c), (d) and (g) of the Planning Act?

3. Is the development proposal consistent with policy 2.1 of the Provincial Policy Statement (2020) (“PPS”)?

4. Does the development proposal conform with the County of Northumberland Official Plan, in particular, the following policies:

• Section A2 10;
• Sections B16 d);
• Section C6;
• Sections D1.1 c), e), h), D1.5 b) [excluding subsection b)i)];
• Sections D 1.9.2, D1.9.3, D1.10, D7.2 and D7.4;
• Section E1.2 and E1.4 [excluding subsection d].

5. Does the development proposal conform with the Municipality of Port Hope Official Plan, in particular, the following policy sections?

• Section B4;
• Section C5.2.2
• Section C11;
• Section E3.1;
• Section E6.

6. Policy 2.1.5 (e) of the PPS states that development and site alteration shall not be permitted in significant areas of natural and scientific interest unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions. Has the Appellant/Proponent adequately and sufficiently demonstrated that the proposed development will result in no negative impacts to the natural features or ecological functions associated with the significant areas of natural and scientific interest?

7. Has the Proponent/Appellant prepared an adequate Impact Assessment of natural heritage features for the Garden Hill Outwash Earth Science ANSI including identifying the location of significant landform features; describing their significance; and noting their sensitivity to development? Further, have specific impacts from the proposed development on the significant landform features been identified and documented and have reasonable mitigative measures, as may be required, been prepared?

8. What are the appropriate conditions of draft plan approval to address the hydrogeological study for the development proposal on the Subject Lands?

Attachment 3

Order of Evidence

1. Mistral Development Inc.
2. Municipality of Port Hope
3. Mistral Development Inc., in reply

Attachment 4

Summary of Procedural Dates

Event	Date
List of Witnesses	June 3, 2024
Meeting of Experts	June 14, 2024
Statement of Agreed Facts/Opinions	July 8, 2024
Witness and Expert Witness Statements	July 29, 2024
Updated Participant Statements	July 29, 2024
Confirmation of Hearing Dates	August 12, 2024
Reply Witness and Expert Witness Statements	August 16, 2024
Visual Evidence	August 16, 2024
Joint Document Book	August 16, 2024
Preliminary Hearing Plan	September 4, 2024
Hearing	September 11, 2024