Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 30, 2024
CASE NO(S).: OLT-24-000448
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Xin Yin Inc. (The Mahayana Pure Land Temple)
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of a two-storey place of worship.
Reference Number: OPA 21.003
Property Address: 5310 and 5322 Aurora Road
Municipality: Whitchurch-Stouffville
OLT Case No.: OLT-24-000448
OLT Lead Case No.: OLT-24-000448
OLT Case Name: The Mahayana Pure Land Temple et al v. Whitchurch-Stouffville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Xin Yin Inc. (The Mahayana Pure Land Temple)
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of a two-storey place of worship.
Reference Number: ZBA 21.005
Property Address: 5310 and 5322 Aurora Road
Municipality: Whitchurch-Stouffville
OLT Case No.: OLT-24-000449
OLT Lead Case No.: OLT-24-000448
Heard: July 17, 2024, by Video Hearing
APPEARANCES:
Parties Xin Yin Inc. (The Mahayana Pure Land Temple) (“Applicant”) Counsel Matthew Helfand
Parties Town of Whitchurch-Stouffville (“Town”) Counsel Kacie Layton
MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS ON JULY 17, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant seeks to develop the site municipally known as 5310 and 5322 Aurora Road in the Town (“Subject Property”) to construct a two-storey place of worship. To this end, the Applicant had applied to amend the City’s Official Plan (“OPA”) and for a Zoning By-law amendment (“ZBA”). The Appeals are brought pursuant to sections 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”), due to the City’s failure to make a decision within the prescribed times.
2On Wednesday, July 17, 2024, the Tribunal held its first Case Management Conference (“CMC”) to organize the Appeals, address status requests and establish next steps in this proceeding.
TITLE OF PROCEEDINGS
3Counsel for the Applicant informed the Tribunal that there is only one Applicant and that “The Mahayana Pure Land Temple” is not an incorporated entity and is a name used by the Applicant. Accordingly, the Tribunal directed that the Title of Proceedings be amended to refer to the Applicant as “Xin Yin Inc. (The Mahayana Pure Land Temple)”.
NOTICE
4There are no issues raised with service of Notice of the CMC and as such, no further notice is required. The Tribunal is in receipt of the Affidavit of Service of Notice of the CMC sworn on June 19, 2024, which was marked as Exhibit 1 to this CMC.
STATUS REQUEST
5The Tribunal received a written request for Party status from Bruce Shilton who resides in the vicinity of the Subject Property. He wishes to become a Party in order to challenge the Tribunal`s jurisdiction to hear the Appeals before the Town has ruled on the OPA and ZBA. The Applicant objected to adding Mr. Shilton and suggested that he instead be granted Participant’s status. Counsel for the Applicant advanced that Mr. Shilton was seeking to be disruptive and not to assist the Tribunal. Further, the Act provides for an appeal in such cases where a Municipality fails to make a decision in a timely manner. The Town took no position on the request.
6The Tribunal denies Mr. Shilton`s request to become a Party since the grounds for his potential Motion would clearly be unsuccessful, as the Act expressly provides that the Applicant has the right to bring an appeal to the Tribunal if a Municipality fails to make a decision in the timeframe prescribed by the statute. At the CMC, Mr. Shilton illustrated that he intended to be disruptive rather than helpful to the Tribunal. The Tribunal directed nevertheless that Bruce Shilton be added as a Participant instead, thus providing him with the opportunity to make written representations on these Appeals.
7The Tribunal was also in receipt of seven requests for Participant status from Fred Schleicher, Thomas Schmidt, Margaret Shilton, Karen Wolfram, Rocky and Liz DiBello, Michael Micieli and LK Aurora Inc. The Applicants consented to adding them as Participants. The Tribunal directed that Fred Schleicher, Thomas Schmidt, Margaret Shilton, Karen Wolfram, Rocky and Liz DiBello, Michael Micieli and LK Aurora Inc. be granted Participant status, in addition to Mr. Shilton.
OPPORTUNITIES FOR SETTLEMENT
8Counsel for the Parties advised that they have not engaged in Tribunal settlement or mediation discussions but were aware of the process to seek Tribunal assisted mediation.
9The Parties are directed to advise the Tribunal, as soon as possible, of any settlement, and are encouraged to narrow the issues.
NEXT STEPS
10A draft Procedural Order, including an Issues List, was provided to the Tribunal prior to the CMC. Counsel for both Parties undertook to work cooperatively to refine the Issues List, which the Applicant had only recently received.
11Counsel for the Applicant submits that the Tribunal should set a date for a seven-day Merit Hearing. The Town did not object. Having heard from the Parties and given the number of expert witnesses to be heard, the Tribunal concludes that it would be reasonable to set the Appeals down for a seven-day Merit Hearing. Accordingly, the Tribunal directs that a seven-day Merit Hearing commence on Monday, May 5, 2025, at 10 a.m. by video hearing. The Tribunal will not sit on Monday, May 12 and Tuesday, May 13, 2025.
12The Parties are directed to provide the Tribunal with an agreed upon draft Procedural Order and Issues List by no later than Wednesday, July 31, 2024. They were so provided on July 29, 2024.
13Individuals 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
14Individuals 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.
15Individuals 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 as indicated above.
16Individuals 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
17THE TRIBUNAL ORDERS
a. its directions in this Decision; and,
b. the Procedural Order, including the Issues List, attached as Attachment A to this Order, is approved.
“Jean-Pierre Blais”
JEAN-PIERRE BLAIS
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.
Attachment A
CASE NO(S).: OLT-24-000448
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Xin Yin Inc. (The Mahayana Pure Land Temple)
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of a two-storey place of worship.
Reference Number: OPA 21.003
Property Address: 5310 and 5322 Aurora Road
Municipality: Whitchurch-Stouffville
OLT Case No.: OLT-24-000448
OLT Lead Case No.: OLT-24-000448
OLT Case Name: The Mahayana Pure Land Temple et al v. Whitchurch-Stouffville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Xin Yin Inc. (The Mahayana Pure Land Temple)
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of a two-storey place of worship.
Reference Number: ZBA 21.005
Property Address: 5310 and 5322 Aurora Road
Municipality: Whitchurch-Stouffville
OLT Case No.: OLT-24-000449
OLT Lead Case No.: OLT-24-000448
Procedural Order
Organization of the Hearing
The hearing will commence on May 5, 2025 at 10 a.m. The Tribunal will not be sitting on May 12 and 13 and will end on May 15, 2025 by video hearing.
The parties’ initial estimation for the length of the hearing is seven 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.
Parties 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.
GoTo Meeting: https://global.gotomeeting.com/join/442599157
Access code: 442-599-157
Parties 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 at: https://app.gotomeeting.com/home.html
Persons 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) 299-1389. Access code is 442-599-157
Individuals 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.
The parties and participants identified at the case management conference are set out in Attachment 1.
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. Notwithstanding the foregoing, the Issues List may be amended on the consent of the parties to remove Issues that are resolved or no longer relevant.
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.
The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.
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 February 4, 2025 and in accordance with paragraph 26 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 February 14, 2025 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 February 19, 2025.
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 17 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 17 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 15 above.
On or before March 17, 2025, 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 26 below.
On or before March 17, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 26 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 April 7, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before April 25, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 26 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 26 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 25, 2025.
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 April 25, 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 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.
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.
A summary of the various procedural dates is contained in Attachment 5.
This Member is not seized.
So orders the Tribunal.
ATTACHMENT 1
LIST OF PARTIES / PARTICIPANTS
Parties:
The Mahayana Pure Land Temple and Xin Yin Inc. Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9 Matthew Helfand Tel: 416.865.4624 Email: mhelfand@airdberlis.com
Town of Whitchurch-Stouffville Ritchie Ketcheson Hart & Biggart 206 - 1 Eva Road Toronto ON M9C 4Z5 Andrew Biggart Tel: 416-622-6601 Email: abiggart@ritchieketcheson.com
Participants:
Bruce Shilton Email: bruceshilton@yahoo.ca
Margaret Shilton Email: margaretshilton@yahoo.com
Fred Schleicher Email: fresch57@outlook.com
Karen Wolfram Email: kwolfrom@rogers.com
LK Aurora Inc. (c/o Howard Buckman) Email: hbuckman@hotmail.com
Michael Micieli Email: mhm@rogers.com
Rocky DiBello Email: rockydibello@rogers.com
Tom Schmidt Email: tomschmidt00@outlook.com
ATTACHMENT 2
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 relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a Party indicates that Party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other Parties the case they need to meet. No Party shall make submissions or tender evidence on an issue not identified on the Issues List without leave of the Tribunal.
Does the application conform with the provisions of policy 11.6.3.1 of the Town’s OP?
Has the Applicant provided sufficient information and materials to the Town to address the need to increase the capacity and water servicing allocation for the proposed redevelopment?
Has the Applicant provided sufficient information and justification that the proposed Zoning By-law Amendment to reduce the required amount of parking under the Town’s Comprehensive Zoning By-law from 112 parking spaces to 32 parking spaces, is appropriate for the proposed redevelopment and additional dwelling units?
Will the proposed redevelopment cause unacceptable adverse impacts upon the adjacent road networks in the surrounding areas, given the decrease of parking supply for the redevelopment, increased traffic from the proposed place of worship, and additional dwelling units, as proposed by the Applicant?
Does the application conform with the provisions of policy 12.7.2.3 xiv) of the Town’s OP?
After considering all of the above issues, do the proposed Zoning By-law Amendment and Official Plan Amendment constitute good land use planning?
ATTACHMENT 3
ORDER OF EVIDENCE
- Xin Yin Inc (The Mahayana Pure Land Temple)
- Town of Whitchurch-Stouffville
- Xin Yin Inc (The Mahayana Pure Land Temple) in reply (if any)
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.
ATTACHMENT 5
SUMMARY OF DATES
DATE EVENT
February 4, 2025 (90 days prior to hearing) Exchange of witness lists (names, disciplines and order to be called)
February 14, 2025 (80 days prior to hearing) Experts meeting prior to this date, if such meeting occurs
February 19, 2025 (75 days prior to hearing) Agreed Statement of Facts, if meeting occurs and matters agreed to
March 17, 2025 (50 days prior to hearing) Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
March 27, 2025 (10) days after the evidence is received) Exchange of written response to written evidence (if any)
April 7, 2025 (30 days prior to hearing) Parties shall confirm with the Tribunal if all the reserved hearing dates are still required
April 25, 2025 (10 days prior to hearing) Exchange of visual evidence (if any)
April 25, 2025 (10 days prior to hearing) Final Hearing Plan filed with the Tribunal
April 25, 2025 (10 days prior to hearing) Finalize Joint Document Book
May 5, 2025 Hearing commences (7 days)