Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 04, 2024 CASE NO(S).: OLT-24-000109

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: LJM Developments Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the re-development of the subject lands into a seasonal residential development Reference Number: PLOP-HA-2020-036 Property Address: 63 Pyle Road (Concession 1, Part Lot 11 Geographic Township of Sherbrooke) Municipality/UT: Haldimand/Haldimand OLT Case No.: OLT-24-000109 OLT Lead Case No.: OLT-24-000109 OLT Case Name: LJM Developments v. Haldimand (County)

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

Applicant/Appellant: LJM Developments Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the re-development of the subject lands into a seasonal residential development Reference Number: PLZ-HA-2020-037 Property Address: 63 Pyle Road (Concession 1, Part Lot 11, Geographic Township of Sherbrooke) Municipality/UT: Haldimand/Haldimand OLT Case No.: OLT-24-000110 OLT Lead Case No.: OLT-24-000109

Heard: May 17, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
2601939 Ontario Inc.	Russell Cheeseman Stephanie Fleming
County of Haldimand	T.A. Richardson Sara Premi (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON May 17, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This hearing was the second Case Management Conference (“CMC”) concerning an appeal by 2601939 Ontario Inc. (“LJM Developments Inc.”) due to the County of Haldimand’s (“County”) failure to make a decision on an Official Plan Amendment (“OPA”) pursuant to s. 22(7) and a Zoning By-Law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act (“Act”) to permit the redevelopment of the property known as 63 Pyle Road in the County (“Subject Lands”).

2LJM Developments Inc. seeks to redevelop the Subject Lands into a seasonal residential development, consisting of 173 seasonal cottages, one community centre (including a multi-use sports field and double tennis court), and outdoor facilities such as a multi-use trail and other open space (“Proposed Development”).

3To facilitate the Proposed Development, the proposed OPA changes the designation for the Subject Lands from 'Agriculture’ to 'Resort Residential Node’, and the requested ZBA changes the designation from 'Agriculture’ and 'Hazard Land’ to 'Seasonal Residential’.

4This CMC was added to give Counsel for the Municipality an opportunity to receive direction on this matter so that a draft Procedural Order (“PO”) could be brought before the Tribunal. The additional time also provided a second opportunity for those seeking Party or Participant status to come forward. No additional requests were received and the Tribunal considers this opportunity now closed.

MEDIATION

5Mr. Cheeseman indicated that his client is interested in Tribunal-led mediation and while Mr. Richardson did not have direction from the Council to participate in mediation, he was supportive of at least beginning the process. The Case Coordinator for this file provided the Parties with information to begin the mediation process.

PROCEDURAL ORDER

6A draft PO was received before the CMC. The Tribunal heard submissions from the Parties related to the Issues List (“IL”). The Appellant’s Counsel expressed concerns with issues based on policies related to ‘settlement areas’. He contended that the proposed development is completely outside of a settlement area, so such policies do not apply. Counsel for the Municipality was granted fifteen minutes to consult with the Municipal planning staff on this issue before responding.

7Counsel for the Municipality indicated that the Council is not in support of the Proposed Development and submitted that the policies referred to in the IL are the “key to the County’s opposition.” He consented to remove Policy 2.2.1.5 from the draft IL. The final PO draft was submitted following the CMC and is now approved.

8The Tribunal confirmed that a 13-day Hearing is still required and will commence on Monday, November 4, 2024, at 10 a.m. by video, excluding Monday, November 11, 2024, and Monday, November 18, 2024, as the Tribunal will not be sitting on these dates.

Starting: Monday, November 4, 2024 at 10 a.m. Ending: Friday, November 22, 2024 at 5 p.m. Exception: Note the following dates on which the Panel will not be sitting: Monday, November 11, 2024 and Monday, November 18, 2024 GoTo Meeting: https://meet.goto.com/357283957 Access code: 357-283-957 Audio-only telephone line: +1 (647) 497-9391 or (Toll Free) 1-888-455-1389 Audio-only access code: 357-283-957

9Parties and Participants are asked to log into the Video Hearings at least 15 minutes before the start of the event to test their video and audio connections.

10For all Video Hearings, the Parties and Participants are asked to access and set up the application well before 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.

11Persons 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.

12Individuals 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 Hearings 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.

13The Member is not seized, and no further notice is required.

ORDER

14THE TRIBUNAL ORDERS THAT:

1. The Procedural Order, attached as Schedule 1 to this Order, is approved and in full effect.

“Gregory J. Ingram”

GREGORY J. INGRAM 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

CASE NO.: OLT-24-000109

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: LJM Developments Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the re-development of the subject lands into a seasonal residential development Reference Number: PLOP-HA-2020-036 Property Address: 63 Pyle Road (Concession 1, Part Lot 11 Geographic Township of Sherbrooke) Municipality/Upper Tier: Haldimand/Haldimand OLT Case No.: OLT-24-000109 OLT Lead Case No.: OLT-24-000109 OLT Case Name: LJM Developments v Haldimand (County)

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

Applicant/Appellant: LJM Developments Subject: Request to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the re-development of the subject lands into a seasonal residential development Reference Number: PLZ-HA-2020-037 Property Address: 63 Pyle Road (Concession 1, Part Lot 11 Geographic Township of Sherbrooke) Municipality/Upper Tier: Haldimand/Haldimand OLT Case No.: OLT-24-000110 OLT Lead Case No.: OLT-24-000109

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, November 4, 2024 at 10 a.m. via videoconference.

GoTo Meeting: https://meet.goto.com/357283957 Access code: 357-283-957 Audio-only telephone line: +1 (647) 497-9391 or (Toll Free) 1-888-455-1389 Audio-only access code: 357-283-957

3. The parties’ initial estimation for the length of the hearing is 13 days, excluding Monday November 11, 2024 and Monday November 18, 2024, as the Tribunal will not be sitting on these dates. 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, August 23, 2024 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, September 6, 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, September 13, 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, September 20, 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, September 20, 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 Monday, September 30, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, October 25, 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 within ten (10) days after the evidence is received 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, October 25, 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 Monday, October 28, 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.

Summary of Procedural Dates

Date	Event
Friday, August 23, 2024	Witness List
Friday, September 6, 2024	Final day for expert witness meeting
Friday, September 13, 2024	Statement of Agreed Facts and Issues filed
Friday, September 20, 2024	Expert witness and witness statements due
Friday, September 20, 2024	Written participant statement due
Monday, September 30, 2024	Response to written evidence due
Monday, September 30, 2024	Hearing date confirmation
Friday, October 25, 2024	Visual evidence due
Friday, October 25, 2024	Joint Document Book due
Monday, October 28, 2024	Preliminary hearing plan due
Monday, November 4, 2024	Hearing

Attachment 1

List of Parties and Participants

1. LJM Developments Russell D. Cheeseman & Stephanie Fleming Municipal Law Chambers rdcheese@aol.com sfleming@mlawc.com

2. County of Haldimand Tom Richardson & Sara Premi Sullivan Mahoney tarichardson@sullivan-mahoney.com sjpremi@sullivan-mahoney.com

Participants

3. Stuart Adams 1900 North Shore Dr Lowbanks ON N0A 1K0

4. Adrian & Hortense Verburg 38 Villella Rd RR2 Lowbanks ON N0A 1K0 verburgam@aol.com

Attachment 2

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, or the manner in which the issue is expressed, is either relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a Party indicates that Party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other Parties the case they need to meet. No Party shall make submissions or tender evidence on an issue not identified on the Issues List without leave of the Tribunal.

1. Does the proposed development and do the proposed applications have regard for matters of Provincial interest as set out in Section 2 of the Planning Act including subsections (a), (b), (c), (f), (h), (p).

2. Is the proposed development consistent with the Provincial Policy Statement (2020), in particular, but not limited to, the following Sections:

Part V: Policies Policy 1.1.1 including paragraphs (a), (c), (d) and (g); Policy 1.1.2; Policy 1.1.3.1; Policy 1.1.3.2; Policy 1.1.3.8; Policy 1.1.3.9.

3. Does the proposed development conform to the Growth Plan (2020), in particular, but not limited to, the following Sections:

Policy 2.2.1.1; Policy 2.2.1.2; Policy 2.2.1.4;

4. Does the proposed development conform to the Official Plan of Haldimand County, in particular, but not limited to, the following Sections:

Policy 2.C.2) 4. Policy 3.A.1 including 5.;6.;7; 8; Policy 4.A.2. Policy 4.A.5. Policy 4.B.2. Policy 4.B.3. Policy 4.F.2 Policy 4.F.6 Policy 4.F.7 Policy 4.F.9 Policy 5.B.2.1 Policy 5.B.2.4

5. Does the proposed development represent good planning and is it in the public interest?

Attachment 3

Order Of Evidence

1. LJM Developments
2. County of Haldimand
3. LJM Developments in reply

Attachment 4

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.