Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 17, 2024
CASE NO(S).: OLT-23-001248
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Appellant: George Thompson
Subject: By-law No. 78-23
Description: To permit the rezoning of 25 acres of land, to satisfy condition 10 of Draft Plan.
Reference Number: ZBA23-12
Property Address: 4701 Stirling Marmora Road Concession 9, Part of lot 13
Municipality/UT: Stirling-Rawdon/Hastings County
OLT Case No.: OLT-23-001248
OLT Lead Case No.: OLT-23-001248
OLT Case Name: Thompson v. Stirling-Rawdon (Township)
Heard: May 28, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| George Thompson (“Appellant”) | Mark Pedersen |
| Township of Stirling-Rawdon (“Township”) | Jennifer Savini |
| 2693773 Ontario Inc. (“Applicant”) | Brendan O’Connor* |
MEMORANDUM OF ORAL DECISION DELIVERED BY C. I. MOLINARI AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened a Case Management Conference (“CMC”) in respect of an Appeal filed pursuant to s. 34(19) of the Planning Act, as amended, against the decision of the Township to approve Zoning By-law Amendment No. 78-23 (“ZBA”), being a condition of a draft Plan of Subdivision conditionally approved to facilitate the development of a 13-lot subdivision on an approximately 25 acre property known municipally as 4701 Stirling Marmora Road (“Property”).
2The ZBA rezones the Property from ‘Marginal Agriculture (MA) Zone’ and ‘Residential Second Density (R2) Zone’ (“R2”) to R2, ‘Environmental Protection (EP) Zone’ and Open Space (OS) Zone’.
3The Appellant appealed the ZBA on the basis that the Property is within the Ministry of Agriculture, Rood and Rural Affairs’ Minimum Distance Separation (“MDS”) Formulae of an existing dairy barn on the Appellant’s property (related to MDS I setback distances between proposed new development and existing livestock facilities) and the planned future construction of a new dairy barn on the Appellant’s property (related to MDS II setback distances between proposed new, enlarged or renovated livestock facilities and other existing or approved development).
BACKGROUND
4The Tribunal held a Motion Hearing on April 12, 2024, to determine a request by the Township to dismiss the Appeal based on the contention that the Notice of Appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the Appeal. The Township asserted that the Property is within the Hamlet boundary and therefore the ZBA is exempt from the MDS formulae and guidelines.
5Through the submissions made at the Motion Hearing, it was made evident that the Hamlet boundary on the County of Hastings Official Plan (“County OP”) mapping bisects the Property. The Tribunal was not directed to any policy expressly stating that the entire extent of a property shall be deemed within a Hamlet boundary if not all of the property is within the boundary. The Tribunal thus found that there remains a legitimately contested land use planning related question for the Tribunal to adjudicate, namely, whether the Property is entirely, partly, or not at all within the Hamlet designation in the County OP.
6On that basis, the Tribunal dismissed the Township’s Motion to Dismiss the Appeal, thereby allowing the Appeal to proceed. The Tribunal thus set the present CMC to allow time for the Appellant to retain Counsel to participate in the drafting of the Procedural Order (“PO”) and to set a hearing date for the Merit Hearing.
NOTICE
7An Affidavit of Service, sworn on March 27, 2024, attesting to the giving of notice for this proceeding, was found to be adequate by the Tribunal at the Motion hearing.
PARTIES / PARTICIPANTS
8No requests for Party or Participant status were received by the Tribunal either ahead of or during the CMC.
9As this is a third-party appeal, the Applicant is not a statutory Party and the Tribunal formally added the Applicant as a Party to the Appeal on consent of the Parties.
PROCEDURAL ORDER AND ISSUES LIST
10In advance of the CMC, the Tribunal was in receipt of a draft PO with the inclusion of a draft Issues List (“IL”).
11Ms. Savini noted that there was some dispute between the Parties regarding Issue 8 on the IL related to the serving of notice by the Township of the statutory public meeting for the consideration of the ZBA. She noted that the matter could be addressed through the disclaimer at the top of the IL which speaks to addressing any points of contention at the Merit Hearing. The Tribunal noted that Issue 8 is not something that could be adjudicated on in any event.
12Ms. Savini undertook to finalize the draft PO with the IL and to have it filed with the Tribunal on the consent of the Parties by Friday, May 31, 2024, for approval and issuance with this Decision.
NEXT STEPS
13Ms. Savini requested a two-day Merit Hearing in the fall of 2024 to which Mr. Pedersen and Mr. O’Conner agreed. Mr. Pedersen requested a second CMC as there are, in his words, “moving parts to the Appeal”. Ms. Savini thought a second CMC was not necessary and the Tribunal concurred, as there is only one land use planning matter in dispute related to the extent of the hamlet boundary and the IL has a narrow focus related to the MDS.
MEDIATION
14The Tribunal advised the Parties of the availability of Tribunal-assisted mediation. In the event that they wish to avail themselves of this resource, the Parties may make a request for mediation through the Case Coordinator.
MERIT HEARING
15With the agreement of the Parties, the Tribunal scheduled a two-day Merit Hearing set to commence on Wednesday, November 20, 2024, by Video Hearing.
16Parties 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:
GoToMeeting: https://global.gotomeeting.com/join/638422541
Access Code: 638-422-541
17Persons 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): 1-888-299-1889 or + 1 (647) 497-9373. The Access Code is as indicated above.
18Parties 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
19Individuals 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.
POST-HEARING UPDATE
20The Tribunal received the final draft PO submitted on consent of the Parties, as appended as Schedule A to this Decision.
ORDER
21THE TRIBUNAL ORDERS that the Procedural Order and Issues List set out as Schedule A is deemed in force and effect and shall govern the Hearing of the Merits.
22No further notice is required.
23The Member is not seized of this matter.
“C. I. Molinari”
C. I. MOLINARI
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 A
CASE NO(S).: OLT-23-001248
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Appellant: George Thompson
Subject: By-law No. 78-23
Description: To permit the rezoning of 25 acres of land, to satisfy condition 10 of Draft Plan.
Reference Number: ZBA23-12
Property Address: 4701 Stirling Marmora Road Concession 9, Part of lot 13
Municipality/UT: Stirling-Rawdon/Hastings County
OLT Case No.: OLT-23-001248
OLT Lead Case No.: OLT-23-001248
OLT Case Name: Thompson v. Stirling-Rawdon (Township)
PROCEDURAL ORDER
- 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 November 20, 2024, at 10 a.m. by video at the following link: https://global.gotomeeting.com/join/638422541
The parties’ initial estimation for the length of the hearing is two (2) 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 the sample procedural order for the meaning of these terms).
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.
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.
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
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 August 1, 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.
Expert witnesses in the same field shall have a meeting on or before August 30, 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 September 13, 2024.
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.
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.
On or before September 30, 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.
On or before September 30, 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.
On or before October 4, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before November 1, 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.
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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 1, 2024.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 8, 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.
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.
This Member is not seized.
So orders the Tribunal.
Attachment to Procedural Order
Meaning of terms used in the Procedural Order:
A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
direct examination by the party presenting the witness;
direct examination by any party of similar interest, in the manner determined by the Tribunal;
cross-examination by parties of opposite interest;
re-examination by the party presenting the witness; or
another order of examination mutually agreed among the parties or directed by the Tribunal.
Attachment 1
List of Parties and Participants
Parties:
Municipality - The Township of Stirling-Rawdon c/o Jennifer Savini Templeman LLP 613.966.2620 jsavini@tmlegal.ca
Applicant – 2693773 Ontario Inc. c/o Brendan O’Connor oconnorplanning@gmail.com
Appellant - George Thompson c/o Mark Pedersen O’Flynn Weese LLP mpedersen@owtlaw.com
Attachment 2
Issues List
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
Are the subject lands, in whole or in part, designated Hamlet in the County of Hastings Official Plan?
Does the Minimum Distance Separation Formula apply to the subject Zoning By-law Amendment Application?
If the Minimum Distance Separation Formula applies, what Minimum Distance Separation setbacks are generated from livestock facilities situated in the vicinity of the subject lands?
Are the subject lands, in whole or in part, situated within any applicable Minimum Distance Separation setbacks?
Is the subject Zoning By-law Amendment Application consistent with the Provincial Policy Statement?
Is the subject Zoning By-law Amendment Application in conformity with the County of Hastings Official Plan?
Is the subject Zoning By-law Amendment Application consistent with the intent of the Township of Stirling-Rawdon Zoning By-law?
Did the Township of Stirling-Rawdon, in convening and giving Notice of its statutory Public Meeting respecting the subject Zoning By-law Amendment Application, act contrary to the Planning Act.
What implications, if any, does the information in the Notice of Public Meeting have on assessment of the application before the Tribunal?
Attachment 3
Order of Evidence
Applicant
Township
Appellant
Applicant in reply
Township in reply
Attachment 4
Summary of Procedural Dates
| Event | Date |
|---|---|
| List of Witnesses | August 1, 2024 |
| Meeting of Experts | August 30, 2024 |
| Statement of Agreed Facts/Opinions | September 13, 2024 |
| Witness and Expert Witness Statements | September 30, 2024 |
| Participant Statements | September 30, 2024 |
| Confirmation of Hearing Dates | October 4, 2024 |
| Reply Witness and Expert Witness Statements | October 10, 2024 |
| Visual Evidence | November 1, 2024 |
| Joint Document Book | November 1, 2024 |
| Preliminary Hearing Plan | November 8, 2024 |
| Hearing | November 20-21, 2024 |