2381423 Ontario Inc. v South Huron (Municipality), 2024 CanLII 92111

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

September 18, 2024

CASE NO(S).:

OLT-24-000636

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant:

2381842 Ontario Inc. c/o Manorwood Homes Inc.

Subject:

Application to amend the Official Plan –

Failure to make a decision within statutory period

Description:

To facilitate 5 storey residential building

Reference Number:

OPAZ-2-2022

Property Address:

70799 and 70791 London Road

Municipality/UT:

South Huron/Huron

OLT Case No:

OLT-24-000636

OLT Lead Case No:

OLT-24-000636

OLT Case Name:

2381423 Ontario Inc. v South Huron (Municipality)

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

Applicant/Appellant:

2381842 Ontario Inc. c/o Manorwood Homes Inc.

Subject:

Application to amend the Zoning By-law –

Failure to make a decision within statutory period

Description:

To facilitate 5 storey residential building

Reference Number:

OPAZ-2-2022

Property Address:

70799 and 70791 London Road

Municipality/UT:

South Huron/Huron

OLT Case No:

OLT-24-000637

OLT Lead Case No:

OLT-24-000636

Heard:

August 28, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

2381423 Ontario Inc. c/o Manorwood Homes Inc.

Paula Lombardi

Municipality of South Huron

Edward Veldboom

County of Huron

Greg Stewart

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON AUGUST 28, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) before the Tribunal with respect to appeals under ss. 22(7) and 34(11) of the Planning Act by 2381423 Ontario Inc. c/o Manorwood Homes Inc. (“Applicant”) resulting from the failure of the Municipality of South Huron (“Municipality”) to make a decision within the statutory timeframe on applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”), which relate to lands located at 70799 and 70791 London Road in the Municipality (“Subject Property”).

2The purpose of the OPA and ZBA is to facilitate the development of a five-storey residential building, consisting of a total of 85 dwelling units, on the Subject Property.

3At the CMC, the Tribunal canvassed Counsel, who confirmed that there was no issue with the service of the Notice of CMC. The Tribunal is in receipt of the following Affidavits of Service (“AOS”), which were marked as Exhibits, as follows:

a. Exhibit 1A: AOS by Andrea Ann Edward with respect to service affected on July 9, 2024 at 10:12 a.m. and sworn on July 16, 2024;

b. Exhibit 1B: AOS by Tyra Constance Ward with respect to service affected on July 9, 2024 at 1:00 p.m., and sworn on July 16, 2024;

c. Exhibit 1C: AOS by Andrea Ann Edward with respect to service affected on July 9, 2024 at 10:32 a.m. and sworn on July 16, 2024;

d. Exhibit 1D: AOS by Tyra Constance Ward with respect to service affected on July 9, 2024 at 1:30 p.m., and sworn on July 16, 2024; and

e. Exhibit 1E: AOS by Andrea Ann Edward with respect to service affected on July 9, 2024 between 10:34 and 10:56 a.m. and sworn on July 16, 2024.

4These Affidavits confirm that Notice was adequately provided. As such, no further notice is required.

STATUS REQUESTS

5The statutory Parties to this Appeal are the Applicant and the Municipality.

6No requests for Party or Participant status were received prior to the CMC.

7At the CMC, the County of Huron (“County”) appeared and sought Party status as it is the approval authority for the OPA. The other Parties consented to the County’s involvement. The Tribunal found that the County was an appropriate Party and would assist the Tribunal in its adjudication of the issues in dispute.

PROCEDURAL ORDER AND ISSUES LIST

8A draft Procedural Order (“PO”) and Issues List (“IL”) were provided prior to the CMC. These were reviewed at the CMC and the Tribunal provided some directions, mainly pertaining to various timelines by which materials and/or updates are to be provided to the Tribunal.

9The Parties were further directed to provide the final and updated PO and IL, with the additions of the issues of the County (if any) who had been added at the CMC, or a status update, to the Tribunal, by September 27, 2024. The Parties have now provided the PO and IL, which are approved as attached to this Decision.

MEDIATION AND SETTLEMENT

10The Tribunal raised the issue of mediation and settlement discussions. The Parties advised that they would work together to try to narrow the issues with the goal of resolving them. At this time, they did not feel that Tribunal-assisted mediation was necessary.

11The Parties were directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Hearing, and should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

HEARING DETAILS

12Given the number of Parties, potential issues, and potential witnesses, the Tribunal agreed that a five-day Merit Hearing would be sufficient. A Hearing has been scheduled to take place commencing on Monday, March 31, 2025, at 10 a.m. to and including Friday, April 4, 2025.

13The Parties 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/979388733

Access Code: 979-388-733

14The Parties 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

15Persons 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 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 as follows:

a. The County of Huron is a Party in this proceeding.

b. The Hearing in this matter is scheduled to take place as described above in this Decision.

c. The Procedural Order and Issues List, attached as Schedule A, shall govern this proceeding.

18There will be no further notice.

19This Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE

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: OLT-24-000636

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant:

2381842 Ontario Inc. c/o Manorwood Homes Inc.

Subject:

Application to amend the Official Plan –

Failure to make a decision within statutory period

Description:

To facilitate 5 storey residential building

Reference Number:

OPAZ-2-2022

Property Address:

70799 and 70791 London Road

Municipality/UT:

South Huron/Huron

OLT Case No:

OLT-24-000636

OLT Lead Case No:

OLT-24-000636

OLT Case Name:

2381423 Ontario Inc. v South Huron (Municipality)

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

Applicant/Appellant:

2381842 Ontario Inc. c/o Manorwood Homes Inc.

Subject:

Application to amend the Zoning By-law –

Failure to make a decision within statutory period

Description:

To facilitate 5 storey residential building

Reference Number:

OPAZ-2-2022

Property Address:

70799 and 70791 London Road

Municipality/UT:

South Huron/Huron

OLT Case No:

OLT-24-000637

OLT Lead Case No:

OLT-24-000636

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

2. The video hearing will begin on Monday, March 31^st, 2025 starting at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is five (5) days ending on Friday, April 4, 2025. 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.

4. 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).

5. 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.

6. 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.

7. 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.

8. 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

9. 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 Monday, January 6, 2025 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.

10. Expert witnesses in the same field shall have a meeting on or before Friday, January 17, 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 an updated Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, January 31, 2025.

11. 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.

12. 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.

13. On or before Friday, February 14, 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 22 below.

14. On or before Friday, February 14, 2025, 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.

15. On or before Monday, February 3, 2025, the parties shall confirm with the Tribunal if all of the reserved hearing dates are still required.

16. On or before Tuesday, March 18, 2025, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by Monday, February 24, 2025 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Tuesday, March 18, 2025.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, March 24, 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.

22. All filings shall be submitted electronically, and hard copies provided upon request of the Tribunal or Party. 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

23. 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 DATES

DATE

EVENT

Monday, January 6, 2025

Exchange of witness lists (names, disciplines, and order to be called)

Friday, January 17, 2025

Experts meeting prior to this date

Friday, January 31, 2025.

Agreed Statement of Facts

Friday, February 14, 2025

Exchange of Witness Statements, summoned witness outlines, and Expert Reports

Monday, February 3, 2025

Confirmation of Hearing Dates Required

Monday, February 24, 2025

Exchange of Reply Statements

Tuesday, March 18, 2025

Exchange of Visual Evidence (if any)

Tuesday, March 18, 2025

Finalize Joint Document Book

Monday, March 24, 2025

Final Hearing Plan filed with the Tribunal

Monday, March 31, 2025

Hearing commences

ATTACHMENT 1

LIST OF PARTIES

PARTY

COUNSEL

Municipality of South Huron

322 Main Street South PO Box 759 Exeter, Ontario N0M 1S6

Russell, Christie, LLP 305 Memorial Avenue, P.O. Box 158 Orillia, Ontario L3V 6J3

Edward B. Veldboom Email: eveldboom@russellchristie.com Tel: 705.325.1326 (ext. 237)

Huron County

1 Courthouse Square Goderich, ON N7A 1M2

Donnelly Murphy Lawyers PC 18 The Square Goderich ON N7A 3Y7

Greg Stewart Email: gstewart@dmlaw.ca Tel: 519.524.2154 ext. 206

2381842 Ontario Inc. c/o Manorwood Homes Inc.

Siskinds LLP

275 Dundas Street, Unit 1

London, ON N6B 3L1

Paula Lombardi

Email: paula.lombardi@siskinds.com

Tel: 519.660.7878

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.

1. Does the proposed Official Plan Amendment and Zoning By-law Amendment (collectively referred to as the “Amendments”) to permit a multi-unit residential development (the “Development”) have regard to matters of Provincial Interest in s.2 of the Planning Act?

2. Are the Amendments consistent with the Provincial Policy Statement (2020), including, but not limited to, policies 1.1.1, 1.1.2, 1.1.3, 1.4, 1.5.1, 1.6, and 1.7?

3. Are the Amendments consistent with the Provincial Planning Statement (2024) including, but not limited to, policies 2.2 and 3.1?

4. Do the Amendments have regard for the County of Huron Official Plan (2021 Consolidation), including, but not limited to Section 7?

5. Do the Amendments conform with the South Huron Official Plan?

6. Do the Amendments conform to South Huron’s Comprehensive Zoning By-law?

7. Can the Development be appropriately serviced, including municipal water, sanitary and storm services?

8. Is the proposed site-specific zoning for the Development appropriate, including, but not limited to the provision of off-street parking?

9. Do the Amendments appropriately have regard for South Huron’s draft new planning policies?

10. Are the Amendments appropriate, represent good land use planning, and in the public interest, in consideration of the Planning Act, PPS (2020), PPS (2024), County of Huron Official Plan, South Huron Official Plan (Consolidated 2014), the Huron County Residential Intensification Guidelines (2020), and the South Huron Zoning By-law 69-2018, amongst others?

ATTACHMENT 3: Order of Evidence

General Order of Evidence (subject to refinement in final hearing plan):

(a) Appellant

(b) South Huron

(c) Huron County

(d) Appellant in 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.