Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 31, 2024

CASE NO(S).: OLT-23-000675

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

Applicant/Appellant: The Blue Meadows Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: ZBA to permit the development of 97 residential rowhouse units, 2 commercial buildings containing 75 units above and 18 live/work freehold units

Reference Number: P3163

Property Address: Part of Lots 40-44 Arthur St, Lots 40-44 NE side Louisa St, Park Lots 11 12 SW Louisa St, Part of Park Lots 11 12 NE side of Alice St, and Part of Louisa Street

Municipality/UT: Town of The Blue Mountains/Grey County

OLT Case No: OLT-23-000675

OLT Lead Case No: OLT-23-000675

OLT Case Name: The Blue Meadows Inc. v Blue Mountains/Grey

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

Applicant/Appellant: The Blue Meadows Inc.

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

Description: DPS to permit the development of 97 residential rowhouse units, 2 commercial buildings containing 75 units above and 18 live/work freehold units

Reference Number: 42T-2022-02

Property Address: Part of Lots 40-44 Arthur St, Lots 40-44 NE side Louisa St, Park Lots 11 12 SW Louisa St, Part of Park Lots 11 12 NE side of Alice St, and Part of Louisa Street

Municipality/UT: Town of The Blue Mountains/Grey County

OLT Case No: OLT-23-000676

OLT Lead Case No: OLT-23-000675

Heard: November 29, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
The Blue Meadows Inc. (“Appellant”)	Al Burton
Town of Blue Mountains (“Town”)	Denise Baker
Grey County (“County”)	Denise Baker (Erroll Treslan, in absentia)
Robert Mitchell	Self-Represented

DECISION DELIVERED BY A. Sauve on november 29, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) for this matter. The Appellant is the owner of lands legally described as Part of Lots 40 – 44 Southwest of Arthur Street, All of Lots 40 – 44 Northeast of Louisa Street, All of Park Lots 11 and 12 Southwest of Louisa Street, Town of The Blue Mountains in Grey County. (“Subject Property”)

2The Town and County received a Zoning By-Law Amendment Application and a Draft Plan of Subdivision Application to permit the Appellant to subdivide the Subject Property into 22 blocks, which are to be comprised of several housing types, such as rowhouses, units above commercial spaces and live/work rowhouses. Both Applications were deemed complete on April 11, 2022. The Town and the County have since failed to make a decision within the statutory timeframe.

PARTY AND PARTICIPANT STATUS REQUESTS

3The Tribunal received one Party Status Request from Robert Mitchell who is a direct neighbour of the Proposed Development and was found to have a material interest in this matter. There were no objections. Mr. Mitchell has also retained a Planner to assist him as a Party.

4The Tribunal also received three Participant status requests from Melissa Hutton, Pamela Spence and Blue Mountain Ratepayers Association. All were granted Participant status on consent.

MEDIATION AND SETTLEMENT

5The Parties were informed of the availability of Tribunal led Mediation. The Parties will be attempting to resolve this matter prior to the Hearing and will inform the Case Coordinator if the Hearing dates are to be converted into a Settlement Hearing.

TRIBUNAL DISPOSITION

6Subsequent to this CMC, the Parties submitted a draft Procedural Order (“PO”). The Tribunal approves the draft PO which will come into full force and effect upon this Decision issuance. The approved PO is attached as “Schedule A” to this Decision.

7The Tribunal is prepared to schedule a five-day (5) Merit Hearing commencing on Monday, July 15 to Friday, July 19, 2024, by Video Hearing at 10 a.m.

HEARING TECHNICAL DETAILS

8Parties and Participants are asked to log in to 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/765631861

Access Code: 765-631-861

9Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9391 or Toll-Free 1-888-455-1389. The Access Code is as indicated above.

10Parties 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

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 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

12Accordingly, the Tribunal Orders That:

a. A five-day (5) Merit Hearing convene on Monday, July 15, 2024, at 10 a.m.;

b. Robert Mitchell is granted Party status to this proceeding;

c. Melissa Hutton, Pamela Spence and Blue Mountain Ratepayers Association are granted Participant status to this proceeding; and

d. The Procedural Order found in Schedule A is approved and is in full force and effect.

13No further notice will be given.

14The Member is not seized.

“A. Sauve”

A. SAUVE

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-23-000675

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

Applicant/Appellant: The Blue Meadows Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: ZBA to permit the development of 97 residential rowhouse units, 2 commercial buildings containing 75 units above and 18 live/work freehold units

Reference Number: P3163

Property Address: Part of Lots 40-44 Arthur St, Lots 40-44 NE side Louisa St, Park Lots 11 12 SW Louisa St, Part of Park Lots 11 12 NE side of Alice St, and Part of Louisa Street

Municipality/UT: Town of The Blue Mountains/Grey County

OLT Case No: OLT-23-000675

OLT Lead Case No: OLT-23-000675

OLT Case Name: The Blue Meadows Inc. v Blue Mountains/Grey

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

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

Description: DPS to permit the development of 97 residential rowhouse units, 2 commercial buildings containing 75 units above and 18 live/work freehold units

Reference Number: 42T-2022-02

Property Address: Part of Lots 40-44 Arthur St, Lots 40-44 NE side Louisa St, Park Lots 11 12 SW Louisa St, Part of Park Lots 11 12 NE side of Alice St, and Part of Louisa Street

Municipality/UT: Town of The Blue Mountains/Grey County

OLT Case No: OLT-23-000676

OLT Lead Case No: OLT-23-000675

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

The video hearing will begin on Monday, July 15, 2024 at 10 a.m. at https://global.gotomeeting.com/join/765631861

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

3. The parties and participants identified at the case management conference are set out in Attachment 1.

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 Friday, January 12, 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.

9. Expert witnesses in the same field shall have a meeting on or before Friday, February 16, 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 Friday, March 8, 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 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.

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 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.

12. On or before Friday, April 5, 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.

13. On or before Friday, April 5, 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.

14. On or before Friday, June 7, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before Friday, June 7, 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.

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 22 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 Friday, July 5, 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 7 days before the hearing 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 Friday, July 5, 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.

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

Parties

Applicant/Appellant – The Blue Meadows Inc. Counsel – Al Burton Thomson Rogers Lawyers 3100 - 390 Bay Street Toronto, ON M5H 1W2 416-868-3113 aburton@trlaw.com

Town of the Blue Mountains Counsel – Denise Baker WeirFoulds LLP 10 – 1525 Cornwall Road Oakville, ON L6J 0B2 416-947-5090 dbaker@weirfoulds.com

County of Grey Counsel – Erroll Treslan The Alliance Lawyers 142 10th Street West, P.O. Box 730 Owen Sound, ON N4K 5W9 519-376-7450 etreslan@owensoundlawyers.com

Robert Mitchell 416-662-3283 robertmitchell@amspartners.ca

Participants

Melissa Hutton mhutton60@hotmail.com

Blue Mountains Ratepayers’ Association Jim Torrance 905-510-0557 jimtorrance55@gmail.com

Pamela Spence 416-953-1360 pjspence@rogers.com

Attachment 2

Issues List for the Town of the Blue Mountains

1. Does the proposed draft plan of subdivision meet the tests under subsection 51(24) of the Planning Act?
2. If so, what are the appropriate conditions of draft plan approval?
3. Does the proposed development conform to the Town’s Official Plan and in particular policies A3.3, A3.4, B3.1.1, B3.1.4, B3.1.5, B3.1.9 and E7?
4. Does the proposed development respect the character of adjacent residential properties?
5. Is the proposed development compatible with adjacent residential properties?
6. Does the proposed development include adequate buffering in locations where the proposed medium density uses abut the low density residential designation?
7. Does the proposed development result in negative impacts on the surrounding properties in the form of shadowing, loss of privacy or the creation of overlook conditions?
8. Does the proposed development adequately protect the lands designated Hazard?
9. Has adequate parkland been provided for the proposed development?
10. Does the proposed development represent good planning?

Issues List for Robert Mitchell

Robert Mitchell has adopted the Town’s Issues List as above and adds the following issues:

1. Does the proposed development conform to the Town’s Official Plan and in particular policies A3.10, A4.1, B3.1, B3.1.3, B3.1.5.3, B3.10.5, B3.10.5.1, B5.4, B5.4.1, D1.6, D4.3, D5, D6.3, E1.1 E1.3, E1.6 and E11?
2. Has the proposed Zoning By-law Amendment had regard to Section 24 (2), Section 34 and Section 36 of the Planning Act?
3. Does the proposed draft Plan of Subdivision comply to the intent and purpose of the Town Official Plan and Zoning By-law?
4. Does the proposed Zoning By-law Amendment require the incorporation of an exception standard to the R2 Zone?
5. Does the proposed Zoning By-law Amendment need to be amended to incorporate a Residential One Zone to recognize proposed single detached dwellings?
6. Do the proposed park configurations reflect the design policies of the Official Plan?
7. Does the development plan provide for a smooth transition between uses?

Attachment 3

Order of Evidence

Appellant/Applicant – The Blue Meadows Inc.

Town of the Blue Mountains

County of Grey

Robert Mitchell

Reply – Appellant/Applicant – The Blue Meadows Inc.