ISSUE DATE: June 13, 2024
CASE NO(S).: OLT-24-000239
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O. 18
Applicant: McCowan Elgin Developments Inc.
Description: Designate the Property as a property of Cultural Heritage Value or interest
Reference Number: Heritage Permit Application
Property Address: 10690 McCowan Road
Municipality/UT: Markham/York
OLT Case No.: OLT-24-000239
OLT Lead Case No.: OLT-24-000239
OLT Case Name: McCowan Elgin Developments Inc. v. Markham (City)
Heard: May 15, 2024 via Video Hearing
| Parties | Counsel |
|---|---|
| McCowan Elgin Developments Inc. | Ira Kagan, Doug Pateman |
| City of Markham | Maggie Cheung-Madar |
MEMORANDUM OF ORAL DECISION DELIVERED BY WARREN MORRIS ON MAY 15, 2024 AND ORDER OF THE TRIBUNAL
1This Decision arises from a Case Management Conference (“CMC”) regarding an appeal brought by McCowan Elgin Developments Inc. (“McCowan”) of a decision of the City of Markham designating 10690 McCowan Road (also known as, The William Henry Meyer House) (the “Property”) as a property of Cultural Heritage value or interest pursuant to s. 29(11) of the Ontario Heritage Act (the “OHA”).
2Both prior to and at the CMC, there were no new requests for either Party or Participant status. As such, the sole Parties to this proceeding are McCowan and the City of Markham.
3No draft Procedural Order was filed with the Tribunal in advance of the CMC.
4At the CMC, Counsel for both Parties agreed that the matter would require two to three days of hearing time as each Party would likely have one heritage expert witness and perhaps an additional witness.
5Both Parties had previously retained experts and have prepared reports. Since expert reports had already been exchanged, Counsel submitted that a procedural order would not be necessary and requested that it be dispensed with. After some discussion, it was agreed that large parts of the model draft procedural order pertaining to documents/disclosure time frames would not be required. Nonetheless, the Member determined that there were some aspects of the draft Procedural Order that would assist the proceeding and requested that Counsel communicate with each other to produce an agreed upon draft Procedural Order for Tribunal approval. During the CMC, the following items were identified as matters that should be addressed:
- A description of the issue(s) in dispute, specifically which two (or more) of the required criteria in the OHA was the City of Markham relying on to make the heritage designation;
- Order of evidence at the hearing;
- 35 days prior to the beginning of the hearing, confirmation to the Tribunal that all hearing dates are still required;
- Prepare and file a joint document book 10 days prior to the hearing; and,
- Prepare and file a preliminary hearing plan at least seven days prior to the hearing.
6Counsel for McCowan indicated that time was not of the essence since his client did not have imminent plans to redevelop the property. After consulting with Counsel regarding availability, the Member secured January 15, 16 and 17, 2025 as dates for the Hearing.
HEARING DETAILS
7The Hearing is scheduled to proceed by video on Wednesday, January 15, 2025 to Friday, January 17, 2025, starting at 10 a.m.
8Parties 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/909787981
Access code: 909-787-981
9Parties 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
10Persons 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: (Toll-Free) 1(888) 455-1389 or +1 (647) 497-9391. The access code is indicated above.
11Individuals 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
12THE TRIBUNAL ORDERS that:
- Hearing dates are set for Wednesday, January 15 to Friday, January 17, 2025, commencing at 10 a.m. each day; and,
- The Procedural Order attached as Schedule 1 shall govern the future conduct of this proceeding.
“Warren Morris”
WARREN MORRIS
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(S).: OLT-24-000239
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18.
Applicant: McCowan Elgin Developments Inc.
Description: Designate the Property as a property of Cultural Heritage value or interest
Reference Number: Appeal of Heritage Designation
Property Address: 10690 McCowan Road
Municipality/UT: Markham/York
OLT Case No: OLT-24-000239
OLT Lead Case No: OLT-24-000239
OLT Case Name: McCowan Elgin Developments Inc. v. Markham (City)
The Tribunal orders that:
- 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
- The video hearing will begin on January 15, 2025 and will be conducted virtually.
https://global.gotomeeting.com/join/909787981
Access code: 909-787-981
The length of the hearing is three (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.
The parties and participants identified at the case management conference are set out in Attachment 1 (see Attachment 3 for the meaning of these terms).
The issue(s) 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.
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.
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.
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
Parties shall contact the OLT Case Co-ordinator on or before Wednesday December 11, 2024 to advise whether the three scheduled days are still required for the hearing.
The parties shall cooperate to prepare a Joint Document Book which shall be filed with the OLT Case Co-ordinator on or before January 8, 2025.
The written evidence for this hearing has already been prepared and exchanged by both parties prior to the first Case Management Conference. The City’s written evidence is the staff reports to the Development Services Committee and City Council (dated October 17 and 18 and December 12 and 13, 2023) including its attachments, which informed City Council’s decision to designate the property. The Appellant’s written evidence is the Cultural Heritage Evaluation Report (dated February 6, 2024 prepared by LHC Heritage Planning & Archaeology Inc.) and which was attached to the appeal letter. 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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 8, 2025 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.
All filings shall be submitted electronically. 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.
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 Key Dates
| Date | Event |
|---|---|
| Wednesday May 15, 2024 | First Case Management Conference |
| December 11, 2024 | Confirm required number of hearing days with OLT case coordinator |
| January 8, 2025 | Filing of Joint Document Book |
| January 8, 2025 | Filing of Hearing Plan |
| January 15, 2025 | Hearing commences |
Attachment 1: Parties and Participants
| Party | Representation |
|---|---|
| McCowan Elgin Developments Inc. | Ira T. Kagan/ Doug Pateman Kagan Shastri DeMelo Winer Park LLP 188 Avenue Road Toronto, ON, M5R 2J1 T: 416-368-2100 ext. 226/ / 261 E: ikagan@ksllp.ca / dpateman@ksllp.ca |
| City of Markham | Maggie Cheung-Madar Legal Services Department 101 Town Centre Boulevard Markham, ON L3R 9W3 T : 905-477-7000 x 3583 E : mcheung-madar@markham.ca |
| Participant | Representation |
|---|---|
| None |
Attachment 2: Issues List
- Are the minimum two heritage criteria [as required by section 29(1) of the Ontario Heritage Act and O. Reg. 9/06 as amended by O. Reg. 569/22] satisfied for the subject property and therefore should be designated? a. If so, what are the criteria that are satisfied? b. If so, are any modifications required to the Statement of Significance to reflect those criteria?
Attachment 3: 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 4: Order of Evidence
Order of Evidence
- City of Markham
- McCowan Elgin Developments Inc
- City of Markham- Reply (if any)