Marsville Estates Inc. v. East Garafraxa (Township), 2024 CanLII 5511

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 22, 2024

CASE NO(S).: OLT-22-004307

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

Applicant/Appellant: Marsville Estates Inc.

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

Description: To permit the development of a 59-unit residential subdivision

Reference Number: Z5-20

Property Address: 63076 County Road 3

Municipality/UT: East Garafraxa/Dufferin

OLT Case No.: OLT-22-004307

OLT Lead Case No.: OLT-22-004307

OLT Case Name: Marsville Estates Inc. v. East Garafraxa (Township)

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

Applicant/Appellant: Marsville Estates Inc.

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

Description: To permit the development of a 59-unit residential subdivision

Reference Number: S1-20

Property Address: 63076 County Road 3

Municipality/UT: East Garafraxa/Dufferin

OLT Case No.: OLT-22-004308

OLT Lead Case No.: OLT-22-004307

Heard: December 15, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Marsville Estates Inc.

Andrew Jeanrie Stephanie Brazzell (in absentia)

Township of East Garafraxa

Stan Floras

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON DECEMBER 15, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the third Case Management Conference (“Third CMC”) before the Tribunal, with respect to appeals under subsections 34(11) and 51(34) of the Planning Act, by Marsville Estates Inc. (“Applicant”) from the failure of the Township of East Garafraxa (“Township”) to make a decision within the statutory timeframes on applications for a Zoning By-law Amendment and a Plan of Subdivision Application (“Applications”) with respect to lands municipally known as 63076 County Road 3 in the Township (“Subject Property”). The purpose of the Applications is to facilitate a proposal by the Applicant to permit a 59-unit residential subdivision.

2The Applications originally contemplated the development of an 80-unit residential subdivision and would have redesignated part of the Subject Property from employment uses (“Employment Lands”) to residential. An Official Plan Amendment application was submitted, which is now on hold pending Dufferin County's Municipal Comprehensive Review (“MCR”) Lands Need Assessment, which would impact any redesignation. That portion of the Subject Property, namely the Employment Lands, is now to be included in Phase 2 of a phased approach to development (“Phase 2 Plan”). The Applications were amended in February 2021, at which time the number of units was reduced to 78, and again, in May 2022, to its current form.

3A first Case Management Conference (“First CMC”) took place on this matter on November 28, 2022, wherein it was confirmed that adequate Notice had been provided and no further Notice was required. A Telephone Conference Call (“TCC”) took place on February 17, 2023, at which a Procedural Order and Issues List were finalized. Moreover, a 13-day Hearing was scheduled to take place on Wednesday, November 29, 2023 until Friday, December 15, 2023. A third CMC had been scheduled to take place on Friday, May 26, 2023 to address any procedural matters, such as motions. However, the Parties advised that this matter was proceeding to Tribunal-assisted mediation and that another CMC was unnecessary at that stage. Thus, the CMC of May 26th was cancelled.

4The Parties engaged in mediation over a number of days and advised the Tribunal by September 2023 that 8 of the 13 scheduled Hearing days could be released, as a number of issues had resolved. With respect to the remaining issues, the Parties advised that they were continuing their discussions in the hopes of resolving same. By the end of November 2023, it became apparent that a full resolution would not be possible. However, the Parties remained reluctant to attend a Hearing due to their continued discussions. As such, they requested that the Tribunal convert the Hearing to a CMC, utilizing one of the scheduled Hearing dates and releasing the remaining dates, in order to allow the Parties to have additional time to attempt to resolve the outstanding issues in dispute. This request was granted by the Tribunal.

5As such, this Third CMC took place on December 15, 2023, where the Parties updated the Tribunal regarding the discussions that had taken place to date and the remaining outstanding matters. Moreover, they presented the Tribunal with an updated draft Procedural Order (“PO”) and Issues List (“IL”), which was reviewed and ratified at the Third CMC. Lastly, though the Parties remained hopeful that they may be able to resolve this matter between themselves, they requested that a 7-day electronic Hearing be scheduled for some time in May of 2024.

6Upon hearing the submissions from Counsel to both Parties, the Tribunal granted this request, with details provided below.

7With 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 again, they may make a written request to the Tribunal through the Case Coordinator for those services.

HEARING DETAILS

8The Parties advised that, based on the updated IL and the number of witnesses that are contemplated, a Hearing length of 7 days would be appropriate. The Tribunal enquired as to the Phase 2 Plan, and whether that would need to be considered when scheduling the Hearing to avoid duplication of issues and duplicate Hearings. The Applicant indicated that the Phase 2 Plan was separate and stagnant at this stage, and as such, this Hearing could be scheduled without having to wait for that one.

9Accordingly, a Video Hearing will commence at 10 a.m. on Thursday, May 02, 2024 until Friday, May 10, 2024, for 7 days.

10Parties are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/519389173

Access code: 519-389-173

11Parties 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

12Persons 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) 497-9373 or (Toll Free): 1-888-299-1889. The access code is 519-389-173.

13Individuals 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.

ORDER

14The Tribunal Orders as follows:

a. The updated Procedural Order and Issues List, attached as Schedule A, shall govern these proceedings.

b. The Hearing in this matter will be held by video hearing starting on Thursday, May 02, 2024, commencing at 10 a.m. and seven (7) days have been set aside.

15The Member is not seized, but may be contacted through the Case Coordinator should procedural issues arise with respect to implementing this Order.

“Bita M. Rajaee”

BITA M. RAJAEE 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 to the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Schedule A

CASE NO(S).: OLT-22-004307

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

Applicant(s)/Appellant(s): Marsville Estates Inc.

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

Description: To permit the development of a 59-unit residential subdivision

Reference Number: Z5-20

Property Address: 63076 County Road 3

Municipality/UT: East Garafraxa/Dufferin

OLT Case No.: OLT-22-004307

OLT Lead Case No.: OLT-22-004307

OLT Case Name: Marsville Estates Inc. v. East Garafraxa (Township)

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

Applicant(s)/Appellant(s): Marsville Estates Inc.

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

Description: To permit the development of a 59-unit residential subdivision

Reference Number: S1-20

Property Address: 63076 County Road 3

Municipality/UT: East Garafraxa/Dufferin

OLT Case No.: OLT-22-004308

OLT Lead Case No.: OLT-22-004307

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 Thursday, May 2, 2024 at 10:00 a.m. virtually at:

GoTo Meeting: https://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

Audio-only Telephone Line: +1 (647) 497-9373 (Toll-Free) 1-888-299-1889

Audio-only Access Code (as above): 519-389-173

3. The length of the hearing will be seven (7) 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. The procedural order deadlines are generally found in Attachment 1.

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 Wednesday, January 17, 2024 (date – at least 106 days prior to the start of the hearing) 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. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other parties on or before Monday, January 22, 2024 (date - 101 days before the hearing is scheduled to commence).

10. Expert witnesses in the same field shall have a meeting on or before Thursday, February 8, 2024 (date – at least 25 days prior to the date for Expert Witness Statements as stated in paragraph 13) 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 16, 2024 (date – at least 17 days prior to the date for Expert Witness Statements as stated in paragraph 13).

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 Monday, March 4, 2024 (date – at least 59 days prior to the start of the hearing), 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 23 below.

14. On or before Tuesday, February 6, 2024 (date – at least 86 days prior to the start of the hearing), 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, April 2, 2024 (date – at least 30 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Tuesday, April 9, 2024 (date), 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within twenty-three (23) days after the evidence is received and in accordance with paragraph 23 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 19, 2024 (date – at least 13 days prior to the start of the hearing).

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 Tuesday, April 9, 2024 (date – at least 23 days prior to the start of the hearing) 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. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties on or before Tuesday, November 21, 2023. The applicant acknowledges that any revisions to the proposal before or after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

23. 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.

24. 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.

25. The purpose of this procedural order and the meaning of the terms used in this procedural order are set out in Attachment 5.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

November 21, 2023

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

January 17, 2024 (106 days prior to hearing)

Exchange of witness lists (names, disciplines and order to be called)

January 22, 2024 (101 days prior to hearing)

Last date to challenge identification of expert witness

February 6, 2024 (86 days prior to hearing)

Exchange of Participant Statements

February 8, 2024 (25 days before Witness Statement Date)

Experts meeting prior to this date

February 16, 2024 (17 days prior to Exchange of Witness Statements)

Agreed Statement of Facts

March 4, 2024 (59 days prior to hearing)

Exchange of Witness Statements, summoned witness outlines, and Expert Reports

March 27, 2024 (23 days after evidence is received)

Exchange of Reply Witness Statements (if any)

April 2, 2024 (30 days prior to hearing)

Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)

April 9, 2024 (23 days prior to hearing)

Exchange of visual evidence (if any)

April 9, 2024 (23 days prior to hearing)

File Preliminary Hearing Plan

April 19, 2024 (13 days prior to hearing)

Finalize Joint Document Book

May 2, 2024

Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel

Township of East Garafraxa

Jeffrey Wilker Stan Floras Thomson Rogers Law 390 Bay Street, Suite 3100 Toronto ON M5H 1W2 E-mail: jwilker@thomsonrogers.com Tel: 416-868-3118 Fax: 416-868-3134 E-mail: sfloras@thomsonrogers.com Tel: 416-868-3150 Fax: 416-868-3134

Appellant: Marsville Estates Inc.

Andrew Jeanrie Stephanie Brazzell Bennett Jones LLP 3400 One First Canadian Place PO Box 130 Toronto ON M5X 1A4 E-mail: jeanriea@bennettjones.com Tel.: 416-777-4814 E-mail: brazzells@bennettjones.com Tel: 416-777-7819

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, appropriate, or that a given issue correctly states the applicable law or test to be applied to the matter before the Tribunal. 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 have jurisdiction over such matters in each circumstance or that any party has retained all of its right to make arguments or bring evidence as to whether an issue itself is appropriate, represents the applicable law or the test to be applied, and/or is good planning. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

In addition, parties have reserved their right to adopt any issues submitted by the appellants and parties to the proceeding.

A. Marsville Estates Inc.

1. Is the proposed Zoning By-Law Amendment good planning and in the public interest?

2. Is the proposed Plan of Subdivision good planning and in the public interest?

B. Township of East Garafraxa

Planning Policy

1. Do the applications for plan of subdivision and rezoning have regard for matters of provincial interest identified in the Planning Act, including, but not limited to, sections 2(a), (f), (h), (i). (k), (o) and (r)?

2. Are the applications for plan of subdivision and rezoning consistent with the Provincial Policy Statement, 2020, including, but not limited to, policies 1.1.1 a), b), c), e), g) and h); 1.1.2; 1.1.3.2 in particular a), and b); 1.1.3.6; 1.1.4.1 in particular a), c), e), f) and h); 1.1.4.2; 1.1.4.3; 1.5.1 a) and b); 1.6.1;1.6.4; 1.6.6; 1.6.7.1; 2.1;2.2; 3.1.2 and 4.0?

3. Do the applications for plan of subdivision and rezoning conform to A Place to Grow, Growth Plan for the Greater Golden Horseshoe including, but not limited to, policies 1.2.1, in particular bullet points 1, 3, 4, 5, 6, and 7; 2.2.9.1; 2.2.9.2; 2.2.9.6; 3.2.1.1; 3.2.3.4; 3.2.6.1; 3.2.6.2; 3.2.7.2; 4.2.2.6; and 4.2.5.2?

4. Do the applications for plan of subdivision and rezoning conform to the applicable goals, objectives and policies of the County of Dufferin Official Plan, Office Consolidation, July 2017, including, but not limited to, policies 1.1.5, in particular a), b), e), f), i), k), n) and o);1.2.1; 3.1, in particular a), b), c), d), f) and, g); 3.2; 3.3, in particular 3.3.1 and 3.3.3; 3.7.1; 3.7.2. in particular b) and i); 3.7.4; 3.8.2 in particular a), b), d), e), f), and i); 3.9.1; 3.10.2; 5.1, in particular a), b), d) and f); 5.2; 5.3; 5.3.2; 5.3.4; 5.3.5; 5.3.9;5.3.10, 5.3.11;5.4.1; 5.4.2;6.3.5, in particular a), b, c) and d); 7.1, in particular a), b), c), d), e), g) and k); 7.2; 7.2.1 in particular b), c), d), h) and i); 7.2.2; 7.2.3; 7.3; 8.6 in particular 8.6.1, 8.6.2, 8.6.3 and 8.6.6; 8.8 and Official Plan Schedules in particular, A, B, E, E1, G, H, and Appendix 2.

5. Do the applications for plan of subdivision and rezoning conform to the applicable goals, objectives and policies of the Township of East Garafraxa Official Plan (Township Official Plan, Office Consolidation 2023, including but not limited to, policies 3.0; 4.0; 5.4, in particular 5.4.2.1, 5.4.3, 5.4.5 and 5.4.6; 5.5; 5.7; 5.8; 5.10; 6; 7.3; 7.4; 7.6 -7.12; 7.15-7.19; 7.22-7.26;8.1;8.4-8.6; 9.1;9.6 and 10.0.

Employment Lands

6. Is it appropriate and good planning to consider approval of a plan of subdivision and rezoning for the lands designated “Community Residential” and “Environmental Protection” in the Township Official Plan on Schedule “A-1”, absent any certainty as to the use, development plans and related technical evaluation of proposed development for the neighbouring lands designated “Employment” in the Township Official Plan?

7. Has there been sufficient study of the Employment Lands to ensure the applications for plan of subdivision and rezoning are compatible with employment uses as may be authorized under the “Employment” designation in the Township Official Plan?

8. How will access to the Employment Lands be provided - directly from County Road 24? – via a service road? – some other alternative? Will the traffic generated by the employment lands be compatible with the traffic generated by the residential area if the access off County Road 3 is the only access to the subdivision?

9. Have the traffic impacts related to development of Block 66 as employment lands been adequately considered and mitigated?

10. Have appropriate landscape berms been provided between the employment uses within and external to the plan of subdivision and the proposed residential use to minimize noise and visual nuisances arising from the employment area per Section 5.5.7 of the Official Plan?

Subsection 51(24) of Planning Act

12. Does the draft plan of subdivision satisfactorily address all criteria set out in Subsection 51(24) of the Planning Act?

Proposed Lot Fabric

13. Is a park required in the proposed subdivision, or is it more appropriate for cash-in-lieu of parkland to be provided to allow for establishment of a park of a more appropriate size in an alternative more central location in the settlement area? If a park is required in the proposed subdivision, does the size, configuration, and location of the park meet the requirements of the Township and good practice, and is it located as required in Section 5.8.4 a) and f) of the Township Official Plan?

14. Are pedestrian/active transportation (i.e. walkway and trails) connections located in accordance with good practice and proper engineering standards and are appropriate pedestrian/active transportation connections being provided to the East Garafraxa Public School?

15. Is the proposed subdivision satisfactorily served with one entrance to County Road 3, or is an additional entrance required for emergency access including for fire department vehicles?

16. Does the road geometry/configuration discourage opportunities for traffic to by-pass the intersection of County Road 24 and County Road 3 through the subdivision if more than one entrance to the subdivision is required?

17. Have all dead end roads been provided with the temporary turning circles sized to accommodate fire department vehicles, snow removal equipment and waste removal trucks?

18. Have appropriate arrangements been made for fire break lots?

19. Are adequate amenity spaces provided on each lot when considering the consumption of lot area by septic systems, noise berms, the potential for secondary units in accessory buildings, swimming pools etc.?

Noise

20. Have appropriate landscape berms or other buffering been provided between the residential use and County Roads 3 and 24 to minimize noise and visual nuisances per Section 5.5.7 of the Official Plan?

Road Cross Section

21. Has the proposed rural cross section been demonstrated to be functional, and does it have regard for criteria established by Council in section 5.4.5 of the Official Plan or should an urban cross section be utilized?

Groundwater

22. Has proper consideration been given to the high groundwater table to ensure ditches will not be consistently wet and can be maintained if the subdivision is designed with a rural cross section?

23. Has proper consideration been given to high groundwater table and whether it will affect the design elements of the residential dwellings as required in Section 5.4.5 c) of the Township Official Plan in order that the built form and building materials are reflective of the Communities character?

Stormwater Management

24. Is the stormwater management block appropriately sized to accommodate the residential subdivision and By-law number 26-2023, considering the higher imperviousness of employment lands as required in Section 7.17 of the Township’s Official Plan and have adequate provisions been made to convey upstream drainage through the subdivision lands.

Water

25. Have satisfactory arrangements (financial or by landowner agreement) been made to upgrade and connect to the Marsville Water System?

26. Is draft plan approval premature given the required expansion of the Township’s water system, and the necessary arrangements to complete works on lands not currently owned by the Township and need to financially secure these works to expand the water system?

27. Has the plan of subdivision provided for easements or blocks necessary to loop the watermain?

Environmental Site Assessment

28. Have the lands been adequately tested for soil or groundwater contamination including, but not limited to, the completion of a Phase 2 Environmental Site Assessment?

Traffic

29. Are adequate sight lines provided for the proposed entrance location(s) onto existing roads, with sufficient set-backs from the Public School?

Landscaping

30. Are the rear yards adequately buffered where they back onto County Road or employment lands?

31. Does the proposed subdivision design, including streetscape, visual and landscape elements, maintain the small-town character of Marsville as required by Section 5.4.5 of the Township’s official plan.?

Ecological

32. Has the development proposal properly considered the significant forest as required by the Provincial Policy Statement, Growth Plan, County Plan and Section 7.9 of the Township’s Official Plan, including an appropriate buffer?

33. Has the development proposal properly considered habitat of rare and vulnerable species considered significant wildlife habitat such as the Special Concern Eastern Wood Peewee and its habitat as required by Provincial Policy Statement, Growth Plan, County Plan and Section 7.10 of the Township Official Plan?

34. Has the development proposal properly considered species at risk bats and its habitat as required by Provincial Policy Statement, Growth Plan, County Plan and Section 7.10 of the Township Official Plan?

35. Has it been demonstrated that the proposed draft plan and rezoning will not cause any negative impacts on the natural environment, including ground or surface water features, or the woodlot?

Draft Zoning By-Law (Planning input)

36. Do the proposed zoning regulations appropriately implement the proposed plan of subdivision and are the proposed regulations consistent with the Provincial Policy Statement, and in conformity with the Growth Plan, County Official Plan and Township Official Plan including the proposed minimum lot area; parking; and lot coverage regulations?

Draft Plan Conditions

37. What draft plan conditions are appropriate to address the criteria in subsection 51(24) and (25) of the Planning Act, should the Tribunal approve the proposal?

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.

1. Marsville Estates Inc.
2. Township of East Garafraxa
3. (Reply if any) Marsville Estates Inc.

ATTACHMENT 5

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.