Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 06, 2024

CASE NO(S).: OLT-23-000126, OLT-23-000882

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: John Rose Subject: By-law No. 2023-03 Description: to allow for development on vacant lands and redevelopment for properties that contain a residential dwelling Reference Number: BL 2023-03 Property Address: Lots 18, 19 & 20, Concession 5 & 6 (Paradise Point and Grandview Beach) Municipality/UT: Township of Tay OLT Case No.: OLT-23-000126 OLT Lead Case No.: OLT-23-000126 OLT Case Name: Rose v. Tay (Township)

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

Appellant: John Rose Subject: Proposed Official Plan Amendment Description: To allow for development on vacant lands and redevelopment for properties that contain a residential dwelling Reference Number: OPA-23045 Property Address: Lots 18, 19 & 20, Concession 5 & 6 (Paradise Point and Grandview Beach) Municipality/UT: Township of Tay OLT Case No.: OLT-23-000882 OLT Lead Case No.: OLT-23-000882 OLT Case Name: Rose v. Tay (Township)

Heard: January 12, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
John Rose	Self-Represented*
Township of Tay	C. Emmett
County of Simcoe	C. Emmett (for Z. Walpole, in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON JANUARY 12, 2024 AND ORDER OF THE TRIBUNAL

1This was the second Case Management Conference (“CMC”) in the matter of an appeal by John Rose (“Appellant”) from the passing of Zoning By-law No. 2023-03 (“ZBL”) in the Township of Tay (“Township”), pursuant to s. 34(19) of the Planning Act.

2The Application proposes to amend the ZBL to allow for development to occur on vacant lands and to amend the provisions to allow for the redevelopment of properties that currently contain a residential dwelling unit.

3At the first CMC, the Tribunal received a request to consolidate the appeals of OLT-23-000126 and OLT-23-000882. At that time, the presiding Member was not provided with the access to review the materials for the OLT-23-000882 file.

4The OLT-23-000882 is an appeal on behalf of the Appellant, arising from the approval of the Official Plan Amendment (“OPA”) to replace the existing policies for the subject lands in the Township Official Plan.

5After reviewing the materials, at the request of the Parties, and with the concurrence of the Tribunal, these matters are consolidated.

STATUS REQUEST

6The Tribunal received one Participant status request for OLT-23-000882. At the second CMC, the Tribunal inadvertently missed a Participant status request from Jeremy Rayner. After consolidating the files, the Tribunal granted Participant status to:

Thomas Werner, and
Jeremy Rayner

HEARING DATES

7Prior to the second CMC, the Parties requested a two-day Merit Hearing.

8A two-day Merit Hearing is scheduled to commence on Thursday, April 11, 2024 at 10 a.m., by Video Hearing.

9Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/660145013

Access code: 660-145-013

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

11Persons 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted above.

12Individuals 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 Video Hearing 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.

13The Tribunal is in receipt of the Procedural Order (“PO”). The Tribunal has reviewed and approved the PO and is appended as Schedule 1 to this Decision.

ORDER

14The Tribunal Orders the above directives.

15This Member is not seized.

16There will be no further notice.

“P. Tomilin”

P. TOMILIN MEMBER

Ontario Land Tribunal Website: 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 1

CASE NO(S).: OLT-23-000126, OLT-23-000882

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

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

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 April 11, 2024 (date) at 10:00 a.m. at _______________________. [Optional: An evening session will be held on ........]
The parties’ initial estimation for the length of the hearing is 2 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 procedural order deadlines are generally found in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 3. 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 4 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 February 16, 2024 (date – at least 55 days prior to the start of the hearing ) 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.
Expert witnesses in the same field shall have a meeting on or before March 20, 2024 (date) 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 March 27, 2024 (date – at least 15 days prior to the start of the hearing).
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 February 26, 2024 (date – at least 45 days prior to the start of the hearing), 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 February 26, 2024 (date – at least 45 days prior to the start of the hearing), 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 March 7, 2024 (date – at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before March 7, 2024 (date), 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 within ten (10) days after the evidence is received 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 April 1, 2024 (date – at least 10 days prior to the start of 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 April 2, 2024 (date – at least 7 days prior to the start of the hearing) 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.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1 – SUMMARY OF DATES

DATE	EVENT
(at least 55 days prior to the start of the hearing)	Exchange of witness lists (names, disciplines and order to be called)
	Last date to challenge identification of expert witnesses
(at least 22 days prior to the start of the hearing)	Experts’ Meeting
(at least 15 days prior to the start of the hearing)	Experts’ Agreed Statement of Facts and Issues (if any)
(at least 45 days prior to the start of the hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
(at least 25 days prior to the start of the hearing)	Exchange of Reply Witness Statements (if any)
(at least 35 days prior to the start of the hearing)	Exchange of visual evidence (if any)
(at least 35 days prior to the start of the hearing)	Parties to confirm if all hearing dates required
(at least 10 days prior to the start of the hearing)	Filing of Joint Document Book and Hearing Plan
TBD	Hearing commences

ATTACHMENT 2 – PARTIES

Party	Representative/ Contact Information
John Rose	John Rose T: E: johnflrose@rogers.com
Township of Tay	Barriston LLP 151 Ferris Lane, Suite 300 Barrie, ON L4M 6C1 Carly Emmett T: 705-792-9200 E: cemmett@barristonlaw.com
County of Simcoe	Simcoe County Legal Services Department 1110 Highway 26 Midhurst, ON L9X 1N6 Zarah Walpole T: 705-719-4626 E: zarah.walpole@simcoe.ca

ATTACHMENT 3 – 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.

Issues of the Appellant, John Rose

Does the OPA and ZBA contradict provisions of the Provincial Policy Statement 2020 including section 1.6.6.5 regarding partial services:
- Does the development of vacant lots, increased development of existing residences constitute “infilling and minor rounding out of existing services”?
- Has the Hydrogeological Assessment (HG Study) demonstrated that the site conditions are suitable for the long-term provision of such services with no negative impacts?
- What is the effect of deficiencies in method, timing, and testing in the HG Study on its conclusions, including the failure to consider: a. increased development of existing residences; b. conversion of seasonal cottages into year-round homes; and c. unregulated Short Term Rental Accommodations.
- Do the provisions of the OPA and ZBA provide for controlled and limited development as intended without specifying conditions under which future development or redevelopment could be allowed?
Are the OPA and ZBA contrary to the Township of Tay Official Plan, including Sections 3.6 and 4.1?
- Does allowing new development on septic systems, without addressing the impact of redevelopment, STRA’s and expansion on existing lots adequately protect the environment and ecosystems of Severn Sound as required by Section 3.6?
- Is the new development and redevelopment contrary to Section 4.1.1.3 that requires all development be serviced and connected to the Centralized Sewage Treatment Plan?
Does the OPA and ZBA contradict the County of Simcoe Official Plan, including sections 4.7.6 and 4.7.12 of which restricts partial services?
- Has a study concluded that municipal sewage services cannot be implemented?
- Has the HG Study adequately demonstrated that there will be no negative impacts from allowing new development, STRA’s and redevelopment on septic services?
Does the OPA and ZBA ensure that water quality conditions in the study area, including a Provincially Significant coastal Wetland (PSW), are protected in accordance with Provincial Policy Statement 2.2, including the protection of private wells and groundwater?

ATTACHMENT 4 – ORDER OF EVIDENCE

John Rose, Appellant/Applicant
The Corporation of the Township of Tay
REPLY (if any) – John Rose, Appellant/Applicant

SCHEDULE “A”

Appellant [Self-Representative]: John Rose johnflrose@rogers.com

Municipality [Representative]: Township of Tay c/o Carly Emmett CEmmett@barristonlaw.com

County: County of Simcoe c/o Zarah Walpole Zarah.Walpole@simcoe.ca

Public Objectors:

SCHEDULE “B”

Attachment to Sample 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.

Rose v. Tay (Township), 2024 CanLII 9776

Case Summary