Sergeant v. Rideau Valley Conservation Authority, 2024 CanLII 68157

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 09, 2024

CASE NO(S).: OLT-24-000125

PROCEEDING COMMENCED UNDER subsection 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: Karen Sergeant

Respondent: Rideau Valley Conservation Authority

Subject: Appeal of decision denying retroactive approval of a 62-foot long armour stone wall and related proposed developments adjacent to the Rideau River

Property Location: 6079 James Bell Drive

Reference Number: RV3-59/23

Municipality: City of Ottawa

OLT Case No: OLT-24-000125

OLT Lead Case No: OLT-24-000125

OLT Case Name: Sergeant v. Rideau Valley Conservation Authority

Heard: May 2, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Karen Sergeant

Self-represented Wayne Styles* Ian Watson*

Rideau Valley Conservation Authority

Charlotte Watson

DECISION DELIVERED BY Jennifer campbell AND ORDER OF THE TRIBUNAL

1This Decision arises from a Case Management Conference (the “CMC”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding the appeal brought by Karen Sergeant (the “Appellant”) concerning a letter of decision dated December 21, 2023 and issued by the Rideau Valley Conservation Authority (the “Respondent”) denying a revised application for retroactive approval of certain developments, including a 62-foot long armour stone wall and related construction, adjacent to the Rideau River at the property located at 6079 James Bell Drive, Ottawa, Ontario (the “Property”).

2At the CMC, the Parties considered requests for Participant status, identified issues to be adjudicated at a hearing and discussed the potential for settlement.

3Prior to the CMC, the Tribunal received requests for Participant status from (i) Mark and Kim Villa who are neighbours of the Appellant; and (ii) Wayne Styles who is an architectural technologist working on the proposed development. The Tribunal provided an explanation of the role of a Participant in Tribunal proceedings, and after discussion, the Appellant indicated that she was requesting that each of Mr. and Mrs. Villa and Mr. Styles withdraw their respective requests for Participant status given that she would instead be calling them as witnesses at the Hearing. Mr. Styles thereupon confirmed that he withdrew his request for Participant status, and as a result, he was not granted Participant status in these proceedings.

4Following the CMC, the Tribunal sought to confirm if Mr. and Mrs. Villa were also withdrawing their request for Participant status, however the Tribunal was unable to confirm such withdrawal. The Tribunal does not otherwise have any basis to object to their request for Participant status, and accordingly, Mr. and Mrs. Villa will be granted Participant status in the proceedings.

5The Parties jointly submitted a draft Procedural Order (“PO”) in advance of the CMC, which itemized two issues to be adjudicated at a hearing as follows:

1. Whether the Appellants should be granted permission by the Rideau Valley Conservation Authority (“RVCA”) to undertake the development proposed in their November 15, 2023 Application to undertake development within the jurisdiction of the RVCA, specifically:

A) Install an approximately 62’ feet long armour stone retaining wall of 29” to 48” (2 blocks – 3 blocks) in height at toe of slope adjacent to the Rideau River.

B) Install 7’ wide, 13’ deep access stairs and relocate to opposite side of tree. The relocated stairs are approximately 6’ 11 ¾” (2.13 metres) in height.

C) Install armour stone adjacent to the relocated stairs.

D) Install armour stone wall surrounding mature tree.

E) Approximately 62’ (19 metres) of existing slope behind proposed wall to be cut back to a 2.5:1 - 3:1 slope ratio. Slope to be planted with natural vegetation and covered with appropriate erosion control blanket.

F) The existing interlock surrounding dwelling on table land to be expanded around the eastern side of the dwelling with additional interlock.

G) Leveling out of existing concrete pad with new gravel and interlock installed on concrete pad.

2. Determination of this issue requires a determination of whether the development complies with the applicable legislation, regulations and policies, specifically the Conservation Authorities Act, regulations thereunder (O. Reg. 174/06) and the RVCA’s Development Policies.

6A discussion ensued regarding whether the issues denoted in the draft PO could be more specific, and the Parties agreed that they would work together to narrow the second issue.

7Following the CMC, the Parties submitted a final PO which further narrowed the issues as had been agreed, as follows:

1. Whether the Appellants should be granted permission by the Rideau Valley Conservation Authority (“RVCA”) to undertake the development proposed in their November 15, 2023 Application to undertake development within the jurisdiction of the RVCA, specifically:

A) Install an approximately 62’ feet long armour stone retaining wall of 29” to 48” (2 blocks – 3 blocks) in height at toe of slope adjacent to the Rideau River.

B) Install 7’ wide, 13’ deep access stairs and relocate to opposite side of tree. The relocated stairs are approximately 6’ 11 ¾” (2.13 metres) in height.

C) Install armour stone adjacent to the relocated stairs.

D) Install armour stone wall surrounding mature tree.

E) Approximately 62’ (19 metres) of existing slope behind proposed wall to be cut back to a 2.5:1 - 3:1 slope ratio. Slope to be planted with natural vegetation and covered with appropriate erosion control blanket.

F) The existing interlock surrounding dwelling on table land to be expanded around the eastern side of the dwelling with additional interlock.

G) Leveling out of existing concrete pad with new gravel and interlock installed on concrete pad.

2. Determination of this issue requires a determination of whether the development complies with the applicable legislation, regulations and policies, specifically Section 28 of the Conservation Authorities Act, regulations thereunder (O. Reg. 174/06: Rideau Valley Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses), specifically Sections 2 and 3 of O. Reg. 174/06, and the RVCA’s Policies Regarding Development including the Construction/Reconstruction of Building and Structures, Placing of Fill and Alterations to Waterways under Section 28 of the Conservation Authorities Act of Ontario. Specifically, Sections 1.1, 2.0, 2.7, 3.0 and 3.1 of the Policies.

8At the CMC, the Parties indicated that there may be potential for settlement discussions which they would pursue if available. However, the Parties indicated that they would like to proceed to set dates for a hearing and confirmed they would notify the Tribunal as soon as possible if the matter was settled prior to the scheduled hearing dates.

9The Tribunal confirms that a hearing in respect of this matter will be held by video hearing from Thursday, October 3, 2024 to Friday, October 4, 2024, commencing at 10 a.m.

GoToMeeting: https://global.gotomeeting.com/join/909787981

Access Code: 909-787-981

10Parties 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.

11Parties 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

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) 497-9391 or (Toll-Free) 1-888-455-1389. The access code is as indicated above.

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 THAT:

(a) Mark and Kim Villa are granted Participant status in these proceedings; and

(b) The Procedural Order appended to this Order as Appendix “I” shall govern the future conduct of this proceeding.

“Jennifer Campbell”

JENNIFER CAMPBELL

HEARING OFFICER

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.

APPENDIX I

CASE NO.: OLT-24-000125

PROCEEDING COMMENCED UNDER subsection 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: Karen Sergeant

Respondent: Rideau Valley Conservation Authority

Subject: Appeal of decision denying retroactive approval of a 62-foot long armour stone wall and related proposed developments adjacent to the Rideau River

Property Location: 6079 James Bell Drive

Reference Number: RV3-59/23

Municipality: City of Ottawa

OLT Case No: OLT-24-000125

OLT Lead Case No: OLT-24-000125

OLT Case Name: Sergeant v. Rideau Valley Conservation Authority

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 October 3, 2024 at 10:00 am at: virtual hearing

The parties’ initial estimation for the length of the hearing is 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.

3. 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).

4. 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.

5. 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.

6. 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.

7. 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

8. 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 9, 2024 (date – at least 55 days prior to the start of the hearing ) 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.

9. 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.

10. 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.

11. On or before August 19, 2024 (date – at least 45 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 22 below.

12. On or before August 29, 2024 (date – at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

13. On or before September 3, 2024 (date), 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.

14. 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.

15. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before September 3, 2024 (date – at least 10 days prior to the start of the hearing).

16. 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.

17. 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.

18. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 26, 2024 (date – at least 7 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.

19. 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.

20. 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.

“Attachment 1 – Parties”

Parties to #OLT-24-000125

Appellant: Karen Sergeant

Appellant’s Representative: Ian Watson and Joelle Watson

Email: joellelaf1221@gmail.com

Respondent: Rideau Valley Conservation Authority

Respondent’s Representative: Charlotte Watson

Email: cwatson@bellbaker.com

Bell Baker LLP

Barristers and Solicitors

116 Lisgar Street, Suite 700

Ottawa, ON K2P 0C2

“Attachment 2 – List of Issues”

List of Issues:

1. Whether the Appellants should be granted permission by the Rideau Valley Conservation Authority (“RVCA”) to undertake the development proposed in their November 15, 2023 Application to undertake development within the jurisdiction of the RVCA, specifically:

A) Install an approximately 62’ feet long armour stone retaining wall of 29” to 48” (2 blocks – 3 blocks) in height at toe of slope adjacent to the Rideau River.

B) Install 7’ wide, 13’ deep access stairs and relocate to opposite side of tree. The relocated stairs are approximately 6’ 11 ¾” (2.13 metres) in height.

C) Install armour stone adjacent to the relocated stairs.

D) Install armour stone wall surrounding mature tree.

E) Approximately 62’ (19 metres) of existing slope behind proposed wall to be cut back to a 2.5:1 - 3:1 slope ratio. Slope to be planted with natural vegetation and covered with appropriate erosion control blanket.

F) The existing interlock surrounding dwelling on table land to be expanded around the eastern side of the dwelling with additional interlock.

G) Leveling out of existing concrete pad with new gravel and interlock installed on concrete pad.

2. Determination of this issue requires a determination of whether the development complies with the applicable legislation, regulations and policies, specifically Section 28 of the Conservation Authorities Act, regulations thereunder (O. Reg. 174/06: Rideau Valley Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses), specifically Sections 2 and 3 of O. Reg. 174/06, and the RVCA’s Policies Regarding Development including the Construction/Reconstruction of Building and Structures, Placing of Fill and Alterations to Waterways under Section 28 of the Conservation Authorities Act of Ontario. Specifically, Sections 1.1, 2.0, 2.7, 3.0 and 3.1 of the Policies.

“Attachment 3 – Order of Evidence”

Order of Evidence:

Morning of hearing: Brief opening statements of both parties. Appellant presents its case and Respondent cross-examines.

Afternoon of hearing: Respondent presents its case and Appellant cross-examines.

Afternoon of hearing: Closing submissions.