Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 30, 2024

CASE NO(S).: OLT-24-000068

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

Applicant/Appellant: Tyler Becker

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit the development of a 5-unit cluster townhouse

Reference Number: Z-2023-059

Property Address: 88 5th Avenue SW

Municipality/UT: Arran-Elderslie/Bruce

OLT Case No: OLT-24-000068

OLT Lead Case No: OLT-24-000068

OLT Case Name: Becker vs Arran-Elderslie (Municipality)

Heard: July 2, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Tyler Becker	Colin Léger
Municipality of Arran-Elderslie	Kevin Thompson Jamie Cockburn
Christian Warnica	Harpreet Kukreja
Michelle Warnica	Harpreet Kukreja

MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER GOLD ON JULY 2, 2024, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a second Case Management Conference (“CMC”) for an Appeal brought by Tyler Becker (“Applicant”) pursuant to s.34(11) of the Planning Act to permit development of a 5-unit cluster townhouse at the property municipally described as 88 5th Avenue (“Subject Property”) located in the Municipality of Arran-Elderslie (“Municipality”). The Applicant appeals the refusal of a Zoning By-law Amendment (“ZBA”) to permit this development. At the first CMC on May 9, 2024, Christian Warnica and Michelle Warnica were granted party status.

PROCEDURAL ORDER

2A draft Procedural Order (“PO”) had not been finalized in advance of the CMC. The Tribunal ordered that a draft PO be submitted to the Tribunal on or before July 9, 2024. The Tribunal received a draft PO on consent that it has reviewed and finds acceptable. The fixed dates for the Hearing on the Merits and for the pre-Hearing timeline, are provided for in the PO, appended to this Decision as Attachment 1.

HEARING

3Following consultation respecting the Tribunal’s calendar and the availability of Counsel and the Parties, a four-day Hearing on the Merits, by Video Hearing (“VH”) was agreed upon, commencing on Tuesday, October 29, 2024, at 10 a.m.

4Parties 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:

https://meet.goto.com/943363669

Access code: 943-363-669

5Parties 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

6Persons 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 same as mentioned above.

7Individuals 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

8THE TRIBUNAL ORDERS THAT:

1. A four-day Merit Hearing by Video shall commence on Tuesday, October 29, 2024, at 10 a.m.

2. The Procedural Order appended as Attachment 1 to this Decision shall govern the conduct of this proceeding.

3. This Member is not seized.

“Jennifer Gold”

JENNIFER GOLD 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.

CASE NO(S).: OLT-24-000068

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

Appellant/Applicant: Tyler Becker

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit the development of a 5-unit cluster townhouse

Reference Number: Z-2023-059

Property Address: 88 5th Avenue SW

Municipality/UT: Arran-Elderslie/Bruce

OLT Case No: OLT-24-000068

OLT Lead Case No: OLT-24-000068

OLT Case Name: Becker vs Arran-Elderslie (Municipality)

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

1. The video hearing will begin on October 29, 2024, at 10:00 am.

2. The parties’ initial estimation for the length of the hearing is 4 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 Attachment 4 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 09, 2024, in accordance with paragraph 21 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. Expert witnesses in the same field shall have a meeting on or before August 23, 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 August 30, 2024.

10. 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 12 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.

11. 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 12 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 12 below.

12. On or before September 13, 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 21 below.

13. On or before September 13, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

14. On or before September 24, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before October 18, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. 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 21 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 18, 2024.

18. 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.

19. 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 October 22, 2024, that the written evidence is not part of their record.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 22, 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.

21. 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.

22. 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.

SUMMARY OF KEY DATES

Date	Hearing Event
August 09, 2024	Deadline to exchange expert witness list
August 23, 2024	Meeting of like experts
August 30, 2024	Exchange and file Agreed Statement of Facts
September 13, 2024	Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons
September 13, 2024	Exchange of Participant Statements
September 24, 2024	Confirm with Tribunal if all reserved hearing dates are still required.
October 18, 2024	Exchange of Visual Evidence
October 18, 2024	Provide joint document book to case coordinator
October 22, 2024	Hearing Plan
October 22, 2024	Notification to Tribunal and Parties if witness not to provide oral evidence
October 29, 2024	Hearing start date

ATTACHMENT 1: PARTIES AND PARTICIPANTS

Parties

1. Tyler Becker (Applicant/Appellant)
2. Municipality of Arran-Elderslie
3. Christian and Michelle Warnica (Non-appellant party)

Participants None

ATTACHMENT 2: ISSUES LIST

Note: The identification of an issue does not mean that all parties agree that such issues, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the appeals 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.

1. Does the proposed Zoning By-law Amendment Application (ZBLA) have appropriate regard to the matters of provincial interest set out in Section 2(f), (h), (n), (o), and (p) of the Planning Act?
2. Is the proposed ZBLA consistent with the Provincial Policy Statement, 2020, including but not limited to section 1.6.6.7?*
3. Does the proposed ZBLA conform to the Municipality of Arran-Elderslie Official Plan, including but not limited to sections 3.1.7 and 5.5?
4. Has the applicant demonstrated that suitable lot grading and storm water drainage can be achieved?
5. Has the applicant’s SWM facility been appropriately designed so as to ensure no adverse impacts on abutting private property? a. If not, should the density of the proposed ZBLA be reduced?
6. Does the proposed ZBLA constitute good planning and is it in the public interest?

*Note: On April 10, 2024, the Province released an updated proposal to combine the PPS and Growth Plan into a new Provincial Planning Statement issued pursuant to s.3 of the Planning Act and this proposal continues to be posted to the Environmental Registry of Ontario. As such, additional or different policies may be applicable/relevant should the proposal come into force and effect, and the Issues List may be updated accordingly.

ATTACHMENT 3: ORDER OF EVIDENCE

1. Appellant – Tyler Becker
2. Municipality of Arran-Elderslie
3. Christian and Michelle Warnica
4. Appellant – Tyler Becker – Reply

ATTACHMENT 4

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.