2869614 Ontario Inc. v. Amherstburg (Town), 2024 CanLII 97538

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 04, 2024

CASE NO(S).: OLT-24-000486

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 2869614 Ontario lnc.

Applicant: 2869614 Ontario lnc.

Subject: Proposed Official Plan Amendment

Description: To permit the incorporation of new Secondary Plan policies and corresponding land use and transportation schedules for the Howard Industrial Park District into the Town of Amherstburg’s Official Plan.

Reference Number: County File No. 37-OP-2023-014 and Amherstburg File No. OPA-24

Property Address: Lands between County Road 8 and North Sideroad and County Road 9 and Concession Road 8

Municipality: Amherstburg

OLT Case No.: OLT-24-000486

OLT Lead Case No.: OLT-24-000486

OLT Case Name: 2869614 Ontario Inc. v. Amherstburg (Town)

Heard: September 25, 2024 by video hearing (“VH”)

APPEARANCES:

Parties

Counsel

2869614 Ontario Inc. (Appellant)

Ed Hooker

Town of Amherstburg

Analee Baroudi

County of Essex

David Sundin

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON September 25, 2024, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) respecting an appeal by 2869614 Ontario Inc. The Appellant has appealed the passing of Official Plan Amendment 24.

Requests for Status

2No one attended the CMC seeking either Party or Participant status.

MEDIATION AND SETTLEMENT

3The Parties indicated that prospects of a settlement are promising, but confirmation of a settlement is pending while counsel for the County awaits instructions from his client. Consequently, the Tribunal confirmed that the Parties may seek a written-settlement motion return-date if a settlement is ultimately reached. Otherwise, the matter will proceed to the already scheduled merit hearing.

PROCEDURAL ORDER AND ISSUES LIST

4For the purposes of a merit hearing (if necessary), the Parties presented the Tribunal with a draft Procedural Order. The Tribunal finds it acceptable.

ORDER

5The Tribunal Orders that the Procedural Order appended as Attachment 1, shall govern the proceedings.

6The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS

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 1

CASE NO(S).: OLT-24-000486

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 2869614 Ontario lnc.

Applicant: 2869614 Ontario lnc.

Subject: Proposed Official Plan Amendment

Description: To permit the incorporation of new Secondary Plan policies and corresponding land use and transportation schedules for the Howard Industrial Park District into the Town of Amherstburg’s Official Plan.

Reference Number: County File No. 37-OP-2023-014 and Amherstburg File No. OPA-24

Property Address: Lands between County Road 8 and North Sideroad and County Road 9 and Concession Road 8

Municipality: Amherstburg

OLT Case No.: OLT-24-000486

OLT Lead Case No.: OLT-24-000486

OLT Case Name: 2869614 Ontario Inc. v. Amherstburg (Town)

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 January 28, 2025 at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is 3 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.

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

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. The Appellant shall provide to the Tribunal and the other parties any proposed modifications to the text and Schedules of OPA 24 on or before October 1, 2024.

10. 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 October 10, 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.

11. Expert witnesses in the same field shall have a meeting on or before October 24, 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 Updated Issues List, if any, with the OLT case co-ordinator on or before November 7, 2024.

12. 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.

13. 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.

14. On or before December 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.

15. On or before December 5, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before December 5, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before December 19, 2024.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 13, 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 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 13, 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.

23. 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.

24. 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 1

LIST OF PARTIES AND PARTICIPANTS

Parties

1. 2868614 Ontario Inc. – the Appellant/Applicant
2. Town of Amherstburg
3. County of Essex

Attachment 2

APPLICANT’S ISSUES LIST

The following are the Appellant’s Issues. Inclusion of any issue below does not imply that any other party to the proceeding shares the concerns identified by the Appellant.

1. Is OPA #24, specifically, sections 9.3.3.1, 9.5.1, 9.6.1 (given subsections 9.6.1.2 and 9.6.1.4), 9.6.4, 9.6.5 and Schedules A, B and C (herein the “impugned provisions and schedules”) consistent with the following sections of the Provincial Policy Statement, 2020:

a) 1.3 Employment noting 1.3.1 c & e

b) 1.3.2.1 Employment Areas noting particularly 1.3.2.1

c) 1.6.3

d) 1.6.6

2. Do the impugned provisions and schedules of OPA #24 conform with subsections 2.10 a), b) and d) and section 4.6 of the Essex County Official Plan

3. Can the impugned provisions and schedules of OPA #24 be internally reconciled with other provisions of the Town of Amherstburg Official Plan being:

2.6.2, 2.6.3, 2.6.4, 4.5.1, and 6.5 and its Schedules

Attachment 3

ORDER OF EVIDENCE

1. Opening Statements

2. Appellant Evidence

3. Town of Amherstburg Evidence

4. County of Essex Evidence

5. Appellant Reply Evidence