ISSUE DATE: August 09, 2024
CASE NO(S).: OLT-23-001262
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2
Appellants: See Attachment 1 – Appellant List
Applicant: Alexis Brenner and Andrew Duncan
Respondent: Niagara Escarpment Commission
Subject: Conditions of Approval for a Development Permit
Description: To appeal the conditional approval of a Development Permit Application to recognize existing uses on the subject property
Reference Number: G/A/2023-2024/259
Property Address: 576799 Concession 9
Municipality/UT: Chatsworth/Grey
OLT Case No.: OLT-23-001262
OLT Lead Case No. : OLT-23-001262
OLT Case Name: Brough v. Ontario (Niagara Escarpment Commission)
Heard: July 17, 2024 by Video Hearing
Parties
Counsel*/Representative
Alexis Brenner and Andrew
Eric Gillespie*
Duncan
Susan Reeve, Donald Brough,
John Goudy*
Shirley Torrie, Beatrice and
Veronica Balogh, Linda Hyder,
and Ange and Brad Torrie
Paul Dreossi
self-represented
Armand and Barbara Labute
John Goudy, acting as agent
MEMORANDUM OF ORAL DECISION DELIVERED BY GeoRGE POLITIS and hugh s. wilkins ON JUly 17, 2024
1This Decision arises from Case Management Conference (“CMC”) held on July 17, 2024 regarding appeals brought by Susan Reeve, Donald Brough, Shirley Torrie, Beatrice and Veronica Balogh, Linda Hyder, Ange and Brad Torrie, Paul Dreossi, and Armand and Barbara Labute (together, “Appellants”) of the decision made by the Niagara Escarpment Commission (“Commission”) granting a development permit to Alexis Brenner and Andrew Duncan (“Applicants”) relating to the lands located at 576799 Concession 9 (“subject lands”), in the Municipality of Chatsworth (Holland), in the County of Grey.
2The Tribunal acts in its role as the Niagara Escarpment Hearing Office (“Hearing Office”) in these proceedings.
3At the CMC, the Parties provided an update on the status of the proceedings. The Parties stated that they were unable to agree on the pathway forward or on a settlement regarding the appeals. The Hearing Officers directed that hearing dates be set.
4The Parties described the number and types of witnesses that each intended to call and advised the Tribunal that given the expected number of witnesses to testify, five days would be required for the Merit Hearing.
5Subsequent to the CMC, the Parties filed a draft Procedural Order and Issues List, which the Tribunal has now reviewed and approves as attached to this Decision as Attachment 2.
6The Tribunal recommended that the Parties request Tribunal-assisted mediation, which the Parties agreed to consider.
7The Tribunal scheduled the hearing to commence on Monday, October 21, 2024, at 10 a.m. by video. Five days have been set aside for the hearing.
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:
https://global.gotomeeting.com/join/909787981
Access Code: 909-787-981
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 into an audio-only telephone line: (Toll Free) 1-888-455-1389 or +1 (647) 497-9391. The access code is the same as mentioned 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 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.
12There will be no further notice.
13These Hearing Officers are not seized.
“George Politis”
GEORGE POLITIS
HEARING OFFICER
“Hugh S. Wilkins”
HUGH S. WILKINS
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.
ATTACHMENT 1
Appellant List
Appellant Name
Appeal No.
Susan Reeve and Donald Brough
009583
Linda Hyder
009584
Armand and Barbara Labute
009585
Shirley Torrie
009586
Ange and Brad Torrie
009587
Beatrice and Veronica Balogh
009588
Paul Dreossi
009589
ATTACHMENT 2
CASE NO(S).: OLT-23-001262
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellants: See Attachment 1 – List of Parties/Participants
Applicants: Alexis Brenner and Andrew Duncan
Respondent: Niagara Escarpment Commission
Subject: Conditional Approval of a Development Permit Application
Description: To appeal conditional approval of a Development Permit Application for recognizing the existing use of various activities occurred on the subject property
Reference Number: G/A/2023-2024/259
Property Address: 576799 Concession 9
Municipality/UT: Chatsworth/Grey
OLT Case No.: OLT-23-001262
OLT Lead Case No.: OLT-23-001262
OLT Case Name: Brough v. Ontario (Niagara Escarpment Commission)
PROCEDURAL ORDER
- 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, October 21, 2024 at 10:00 a.m. The Hearing will run until Friday, October 25, 2024 inclusive.
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.
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).
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.
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.
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 Tuesday, August 27, 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 along with the witness list.
The parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, October 4, 2024.
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.
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.
On or before Friday, September 6, 2024, the parties shall provide copies of their witness outlines and expert witness statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 22 below.
On or before Friday, September 6, 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.
On or before Monday, September 16, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Friday, October 4, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, October 4, 2024 in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, October 11, 2024.
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 Friday, October 11, 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.
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.
These Hearing Officers are not seized.
So orders the Tribunal.
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
List of Parties/Participants
Parties
Counsel/Agent
Alexis Brenner and Andrew Duncan (Applicants)
Eric K. Gillespie Professional Corporation 393 University Avenue, Suite 2000 Toronto, Ontario M5G 1E6 Eric K. Gillespie 416-703-6362 egillespie@gillespielaw.ca
Niagara Escarpment Commission
Brandon Henderson, Planner Brandon.Henderson@ontario.ca
Donald Brough and Susan Reeve (Appellants – Appeal No. 009583)
Scott Petrie LLP 200-252 Pall Mall Street London, Ontario N6A 5P6 John D. Goudy 519-433-5310 jgoudy@scottpetrie.com
Linda Hyder (Appellant – Appeal No. 009584
Shirley Torrie (Appellant – Appeal No. 009586)
Ange and Brad Torrie (Appellants – Appeal No. 009587)
Beatrice and Veronica Balogh (Appellants – Appeal No. 009588)
Armand and Barbara Labute (Appellants – Appeal No. 009585)
Armand and Barbara Labute 824519 Massie Road R.R.#5 Chatsworth, ON N0H 1G0
Paul Dreossi (Appellant – Appeal No. 009589)
Paul Dreossi pdreossi@icloud.com
Participants
Counsel/Agent
Sandra Hibovski
Sandra Hibovski shibovski@gmail.com
Attachment 2
ISSUES LIST
Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal 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.
Is the Proposed Development is an “Existing Use” as defined by the operative version of the NEP?
Is the Proposed Development consistent with the Provincial Policy Statement, including policies:
a. 1.1.5.2 (permitted uses);
b. 1.1.5.3 (recreational, tourism and other economic opportunities); and,
c. 1.1.5.4 (rural service levels)?
- Are the Proposed Development and Conditions of Approval in the Notice of Decision for Development Permit Application G/A/2023-2024/259 in accordance with all applicable policies, including the purpose of and objectives of the Niagara Escarpment Plan, development criteria, and all objectives for the Escarpment Protection Area in the Niagara Escarpment Plan, including:
a. 1.4.3 (permitted uses);
b. 1.4.3.2 (on-farm diversified uses);
c. 1.4.3.7 (unserviced camping);
d. 2.2 (general development criteria);
e. 2.3 (existing uses);
f. 2.8 (agriculture); and,
g. 2.8.7 (on-farm diversified uses)?
Is the Proposed Development consistent with Sections 5.2.1 and 5.2.2 (on-farm diversified use) of the Grey County Official Plan?
If the Proposed Development is approved, what conditions of approval should be imposed?
Attachment 3
Order of Evidence
Appellants – Donald Brough and Susan Reeve; Linda Hyder; Shirley Torrie; Brad and Ange Torrie; Beatrice and Veronica Balogh
Appellant – Paul Dreossi
Appellants – Armand and Barbara Labute
Applicants – Alexis Brenner and Andrew Duncan
Appellants – Armand and Barbara Labute – Reply, if any
Appellants – Paul Dreossi – Reply, if any
Appellants – Donald Brough and Susan Reeve; Linda Hyder; Shirley Torrie; Brad and Ange Torrie; Beatrice and Veronica Balogh – Reply, if any