1685078 Ontario Inc. v. Caledon (Town), 2024 CanLII 62414

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 26, 2024

CASE NO(S).: OLT-23-001195

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

Applicant/Appellant: 1685078 Ontario Inc.

Subject: Application to amend the Zoning By-law – Failure of Approval Authority to make a decision

Description: To facilitate the development of 21 new residential dwellings

Reference Number: RZ 08-05

Property Address: 0 Highway 9, Part of Lots 28 & 29, Concession 9

Municipality: Town of Caledon

OLT Case No.: OLT-23-001195

OLT Lead Case No.: OLT-23-001195

OLT Case Name: 1685078 Ontario Inc. v. Caledon (Town)

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

Applicant/Appellant: 1685078 Ontario Inc.

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

Description: To facilitate the development of 21 new residential dwellings

Reference Number: 21T-08001C

Property Address: 0 Highway 9, Part of Lots 28 & 29, Concession 9

Municipality: Town of Caledon

OLT Case No.: OLT-23-001196

OLT Lead Case No.: OLT-23-001195

Heard: June 11, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

1685078 Ontario Inc. (“Appellant”)

Town of Caledon (“Town”)

Michael Cook John Alati (in-absentia)

Paula Boutis

Caledon Residences Inc.

Laura Dean Matthew Helfand (in-absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY gregory j. INGRAM on june 11, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This was the second Case Management Conference (“CMC”) concerning 1685078 Ontario Inc.’s Appeals due to the Town’s failure to decide on an Application for a Zoning-By-law Amendment (“ZBA”) under s. 34(11) of the Planning Act, R.S.O. 1990 (“Act”), and Draft Plan of Subdivision (“DPS”) under s. 51 (34) within the timeframes prescribed in the Act for the property known as 0 Highway 9, Part of Lots 28 & 29, Concession 9 (Albion) in the Town of Caledon (“Subject Lands”).

2The Appellant seeks to construct 21 new residential dwellings with site-specific provisions related to lot area, lot frontage, setbacks, and to establish provisions for structure envelopes on estate sized lots. The proposal as presented would create reforestation areas and establish an extension of an existing roadway.

3The following is a summary from the first CMC:

• The Affidavit of Service was entered as Exhibit 1, and it was determined that no further notice was required.
• Party Status was granted to Caledon Residences Inc.
• Participant Status was granted to John Joyce.
• The Parties were made aware of Tribunal led mediation and indicated that discussions were ongoing between the Parties and third-party mediation was not necessary.
• The Parties requested a second CMC to allow time for discussions to continue with the hope of reaching a settlement. It was also determined that should a settlement not be reached that the Parties would present a draft Procedural Order (“PO”) at the next CMC.

UPDATE AND HEARING PLANNING

4The Tribunal heard submissions from the Parties regarding the status of this case. The Parties requested a hearing date be set and provided the Tribunal with a draft PO.

5The Appellant remains optimistic that a resolution may be reached with the Municipality as the primary issue involves the Ministry of Transportation. Counsel was less optimistic with respect to resolving the issues with Caledon Residences Inc. and does not foresee a resolution at this time.

6A final draft PO was submitted following the CMC which was reviewed and approved by the Tribunal. It is included with this Decision as Schedule 1.

7A five-day Hearing is scheduled to commence on Monday, November 4, 2024, at 10 am, by video.

8Parties and Participants 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/442599157

Access code: 442-599-157

9Parties and Participants 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 an audio-only telephone line: (Toll-Free) 1-888-455-1389 or +1 (647) 497-9391. The access code is as 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 Video Hearing to ensure that they are properly connected to the event at the correct time. Questions before the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

12THE TRIBUNAL ORDERS THAT:

1. A five-day Hearing will commence as per the details set out in paragraphs [7] and [8] above; and

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

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

“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

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 10:00 a.m. as directed in the Tribunal’s Decision and Order and confirmed here:

GoToMeeting: https://global.gotomeeting.com/join/442599157

Access code: 442-599-157

3. The Parties’ initial estimation of the length of the hearing is five (5) 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 listed in Attachment 2 to this Order.

5. The issues are set out in the Issues List attached as Attachment 3 to this Order. The Parties will attempt to resolve the issues prior to the hearing on the merits of the appeal. There will be no changes to the Issues List unless the Tribunal permits, and a Party who asks for changes may have costs awarded against it. However, issues may be removed as matters are resolved and issues may be revised in response to changes to the proposed developments.

6. The order of evidence is 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. If the hearing is to proceed electronically, 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 (https://olt.gov.on.ca/wp-content/uploads/2023/02/Video-Hearing-Guide.html).

Requirements Before the Hearing

9. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised plans to the other Parties on or before Monday, July 8, 2024. The applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

10. 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, the expert witness(es)' curriculum vitae, and the order in which the witnesses are intended to be called. This list must be delivered on or before Monday, July 8, 2024. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed 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.

11. Expert witnesses in the same discipline(s) shall have at least one meeting on or before Tuesday, August 6, 2024 to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the Parties and the Tribunal on or before Friday, August 16, 2024, if this meeting takes place and if agreement is reached. 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, and the curriculum vitae and Acknowledgment of Expert Duty Form. Copies must be provided as in paragraph 14. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that they intend to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other Parties at the same as the delivery of expert witness statements, as in paragraph 15.

12. A participant must provide to the Tribunal and the Parties a participant statement on or before Friday, August 30, 2024. Participants are only permitted to provide written evidence to the Tribunal, excepted as permitted by the Ontario Land Tribunal Act, 2021 and the Tribunal's Rules of Practice and Procedure.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the Party calling them must file a brief outline of the expert’s evidence, as in paragraph 15.

14. On or before Friday, August 30, 2024, the Parties shall provide copies of their expert witness statements to the other Parties.

15. On or before Friday, October 4, 2024, the Parties may provide to all other Parties a written response to any written evidence.

16. On or before Monday, September 30, 2024, the Parties shall advise the Tribunal of whether any hearings dates scheduled for this matter may be released from the Tribunal's calendar. This request may only be made on consent of all of the Parties. If no hearing dates are intended to be released from the Tribunal's calendar at that time, no Party is required to advise the Tribunal anything further in that regard.

17. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving Party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion.

18. The Parties shall prepare and provide to the Tribunal a Joint Document Book on or before Friday, October 25, 2024. All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with paragraph 23.

19. On or before Monday, October 28, 2024, the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

20. A Party who provides a witness’ written evidence 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. On or before Monday, October 28, 2024, the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Work Plan”). The Work Plan should guide the Hearing Event, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.

22. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). If requested, the Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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 Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. Paragraph 23 applies regardless if the hearing event is in-person or electronic.

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.

24. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

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

July 8, 2024 (53 days prior to exchange of witness statements)

Deadline for the Applicant to submit any revised proposal

July 8, 2024 (119 days prior to hearing)

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

August 6, 2024 (90 days prior to hearing)

Experts meeting prior to this date

August 16, 2024 (14 days prior to exchange of witness statements)

Agreed Statement of Facts

August 30, 2024 (66 days prior to hearing)

Exchange of Witness Statements, summoned witness outlines, and Participant Statements

September 30, 2024 (35 days prior to hearing)

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

October 4, 2024 (31 days prior to hearing)

Exchange of Reply Witness Statements (if any)

October 25, 2024 (10 days prior to hearing)

File Joint Document Book

October 28, 2024 (7 days prior to hearing)

Exchange of visual evidence (if any)

October 28, 2024 (7 days prior to hearing)

Final Work Plan filed with the Tribunal

November 4, 2024

Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

Parties

1. 1685078 Ontario Inc.

Davies Howe LLP The Tenth Floor 425 Adelaide St. W. Toronto, ON M5V 3C1

John Alati Email: johna@davieshowe.com Tel: 416.263.4509

Michael Cook Email: michaelc@davieshowe.com Tel: 416.263.4515

2. Town of CALEDON

The Corporation of the Town of Caledon 6311 Old Church Rd Caledon ON L7C 1J6

Paula Boutis Email: paula.boutis@caledon.ca Tel: 905.584.2272 x.4091

3. Caledon Residences Inc.

Aird & Berlis LLP 181 Bay Street Suite 1800 Toronto, ON M5J 2T9

Matthew Helfand Email: mhelfand@airdberlis.com Tel: 416.865.4624

Laura Dean

Email: ldean@airdberlis.com

Tel: 416.865.7706

PARTICIPANTS

1. John Joyce Email: palgrave17419@hotmail.com Tel: 905.880.8559

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 or appropriate. 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. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the Tribunal.

1. 1685078 Ontario Inc.

2. If the draft plan of subdivision is to be approved, what are the appropriate conditions of approval?

3. Town of Caledon

4. Is the Proposed Development consistent with Section 1.2.1(a) of the Provincial Policy Statement, 2020?

5. Is the Proposed Development consistent with Section 1.6.8.3 of the Provincial Policy Statement that states new development proposed on adjacent lands to an existing or planned corridor should be compatible with the corridor and designated to avoid, mitigate, or minimize negative impacts on and from the corridor and transportation facilities?

6. Does the Proposed Development conform to Section 5.9.5.2.9(a)(iv) of the Town Official Plan? Will the Proposed Development be able to obtain approval from the Ministry of Transportation?

7. Does Proposed Development conform to Section 6.2.1.4 of the Town of Official Plan, which requires satisfying the requirements of the Ministry of Transportation?

8. Does the Proposed Development conform to Section 7.1.14.6 of the Town Official Plan? Has the location of the access point onto Mount Pleasant been coordinated with the Town and MTO?

9. Does the Proposed Development have regard to the criteria in section 51(24) of the Planning Act, specifically, subjections (a), (c) and (e)?

10. Is the Proposed Development good planning and in the public interest?

11. Caledon Residences Inc.

12. Does the proposed development benefit from or rely on infrastructure that was installed by Caledon Residences Inc. in respect of the Caledon Estates subdivision?

13. Should cost sharing be a condition of draft plan approval to address infrastructure installed by Caledon Residences Inc. which benefits, or is relied on by, the proposed development?

14. What is the appropriate wording of a cost sharing condition?

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. 1685078 Ontario Inc.

2. Town of Caledon

3. Caledon Residences Inc.

4. Reply by 1685078 Ontario Inc.

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

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. If an unincorporated group wishes to become a Party, 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 authorization 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, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure. Paragraph 17 of the Ontario Land Tribunal Act, 2021 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 and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a Party 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 intends to present as evidence at the hearing.

Witness Statements:

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 the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A Party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the Parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.