ISSUE DATE: August 21, 2024
CASE NO(S).: OLT-24-000124
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Greg Monck
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the change of rezoning from 'Hamlet Residential with Exception (HR-1) Zone' to 'Hamlet Residential with Exception (HR-6) to allow agricultural uses on subject lands.
Reference Number: ZBA 11/23
Property Address: 9347 Currie Road
Municipality/UT: Dutton Dunwich/Elgin
OLT Case No.: OLT-24-000124
OLT Lead Case No.: OLT-24-000124
OLT Case Name: Monck v. Dutton Dunwich/Elgin (Municipality)
Heard: August 19, 2024
APPEARANCES:
Parties
Counsel/Representative*
Cynthia and Gregory Monck
Gregory Monck*
Municipality of Dutton Dunwich
Amy Dale
MEMORANDUM OF ORAL DECISION DELIVERED BY A. SAUVE ON AUGUST 19, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1The Tribunal convened a Case Management Conference ("CMC") in respect to an Appeal filed by Cynthia and Gregory Monck (the "Appellant") pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended ("Act"), against the refusal of an Application to Amend the Zoning By-law ("ZBA") by the Municipality of Dutton Dunwich ("Municipality"). The ZBA sought to permit agricultural uses in addition to the residential uses currently permitted on the lands located a 9347 Currie Road ("Subject Lands"). This is the second CMC of this matter.
2At the previous CMC the Parties were instructed to create a new Procedural Order and Issues List ("PO"). Each Party had supplied their own Issues List and the Tribunal had found that neither were adequate. The Tribunal received an updated PO (SCHEDULE A) prior to this CMC; however, Mr. Monck had not participated in its creation. The Parties advised the Tribunal that a video meeting had been scheduled for the Parties to discuss the PO, but Mr. Monck did not attend. Mr. Monck informed the Tribunal that he had experienced technical difficulties with his computer, that left him unable to attend. Mr. Monck did not inform the Municipality of his computer troubles.
3The Tribunal ensured that each Party had a copy of the updated PO and a copy of Mr. Monck's original Issues List from the previous CMC. Mr. Monck was not satisfied that the updated PO addressed the issues that he believed were of importance.
4The Tribunal took the Parties through all 32 Issues that Mr. Monck had originally identified. The Tribunal found that all but one was not appropriate planning issues raised. The one issue that was appropriate was already included in the updated PO.
5Mr. Monck is a lay person and did not grasp what type of Issues could be included on an Issues List. Most of what had been put forward by Mr. Monck in his Issues List were more evidentiary or historical questions that were not necessarily relevant to the legal test for this type of appeal. The elements of the legal test for this type of appeal were explained to Mr. Monck.
6The Tribunal then turned its attention to the PO provided by the Municipality. The concerns raised at the previous CMC have been addressed. Mr. Monck agreed that the issues presented in the updated PO were the appropriate issues for the legal test of this issue. Mr. Monck also agreed to the Order of Evidence included in the PO provided by the Municipality.
MEDIATION
7Tribunal led mediation was discussed, and Mr. Monck expressed his desire to attempt that possibility. Counsel for the Municipality did not have instructions to pursue Tribunal led mediation but will seek instructions. The Parties were advised to contact the Case Coordinator if they wish to proceed with this option.
GOING FORWARD
8It was agreed that one further CMC would be necessary for the Parties to potentially pursue Tribunal led mediation. However, the Tribunal advised that at the next CMC it would be expected that Hearing dates be set if mediation is not fruitful.
9If mediation is not successful, the Parties advised that they would need a two-day Hearing. The Municipality intends to call one witness and Mr. Monck expects to call himself and his wife as a witness. A larger portion of time is likely necessary as Mr. Monck is unfamiliar with the nuts and bolts of a Hearing.
10[20] The Tribunal scheduled a further CMC to be held on Monday, October 1, 2024, at 10 a.m., by videoconference.
11Parties and Participants are asked to log in to the Hearing by video at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/344779885
Access Code: 344-779-885
12Parties 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.
13Persons 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) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is indicated above.
14Individuals 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 event may be directed to the Tribunal's Case Coordinator having carriage of this case.
ORDER
15THE TRIBUNAL ORDERS the directions as set out in this Decision.
"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-24-000124
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Greg Monck
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the change of rezoning from 'Hamlet Residential with Exception (HR-1) Zone' to 'Hamlet Residential with Exception (HR-6) to allow agricultural uses on subject lands.
Reference Number: ZBA 11/23
Property Address: 9347 Currie Road
Municipality/UT: Dutton Dunwich/Elgin
OLT Case No.: OLT-24-000124
OLT Lead Case No.: OLT-24-000124
OLT Case Name: Monck v. Dutton Dunwich/Elgin (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
The video hearing will begin on XX, XX X, 202X at 10:00 am for a period of XX days on XX, XX, X, 202X.
The parties' initial estimation for the length of the hearing is one day. 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.
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 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 XXX, XX, 202X 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.
Expert witnesses in the same field shall have a meeting on or XXX, XX, 202X 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 XXX, XX, 202X.
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 XXX, XX, 202X, 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.
On or before XXX, XX, 202X, 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 XXX, XX, 202X, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before XXX, XX, 202X, 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 XXX, XX, 202X, and 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 XXX, XX, 202X. The Parties agree that the Joint Document Book will be marked as an Exhibit at the hearing.
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 XXX, XX, 202X, 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.
Attachment 4 is a Table of Deadlines summarizing the dates in this Procedural Order.
This Member is [not] seized. So orders the Tribunal.
ATTACHMENT 1
Parties and Participants
Parties
Greg Monck (Applicant/Appellant)
The Corporation of the Municipality of Dutton Dunwich
Participants
Mike Maginn
Zoe der Kinderen
Rick Schnarr
Deborah and Alexander Milne
Terri Tofflemire
ATTACHMENT 2
Issues List
Is the proposed application consistent with the Provincial Policy Statement, 2020 (1.1.4.1 a), 1.1.4.2, 1.1.4.3, 1.1.5.2, 1.1.5.4 and 1.1.5.8)?
Does the proposed application conform to the policy direction of the County of Elgin Official Plan (B2.5 and C1.1)?
Does the proposed application conform to the policy direction of the Municipality of Dutton Dunwich Official Plan (7.4.2, 7.4.3 a), 7.4.3 b), 7.4.3 c) and 7.4.3 i) ii))?
Does the proposed application comply with the intent and purpose of the Municipality of Dutton Dunwich Zoning By-law (11.1.1 and 11.3.1)?
Is the proposed agricultural use compatible with the surrounding area?
ATTACHMENT 3
Order of Evidence
Tracey Pillon-Abbs, Planner for the Municipality of Dutton Dunwich to provide background information on the appeal and the relevant planning documents
Greg Monck (Applicant/Appellant)
The Corporation of the Municipality of Dutton Dunwich
- Tracey Pillon-Abbs – to provide expert planning advice on behalf of the Municipality
ATTACHMENT 4
Table of Deadlines
Action
Deadline
Exchange and file Witness Lists and Expert Witness CVs
XXX, XX, 202X
Meeting of Experts
XXX, XX, 202X
File Agreed Statement of Facts
XXX, XX, 202X
Advise Tribunal if all four days of hearing time is still required
XXX, XX, 202X
Exchange and file Witness Statements and Participant Statements
XXX, XX, 202X
Exchange and file Reply Statements
XXX, XX, 202X
Exchange and file Visual Evidence
XXX, XX, 202X
File Joint Document Brief and Hearing Plan
XXX, XX, 202X