Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 17, 2025
CASE NO(S).: OLT-24-001069
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Losani Homes (1998) Ltd.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the designation and zoning of the Subject Lands for residential development with a townhouse block.
Reference Number: OP-01-24
Property Address: 501 Shellard Lane
Municipality: Brantford
OLT Case No.: OLT-24-001069
OLT Lead Case No.: OLT-24-001069
OLT Case Name: Losani Homes (1998) Ltd. v. Brantford (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Losani Homes (1998) Ltd.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the designation and zoning of the Subject Lands for residential development with a townhouse block.
Reference Number: PZ-13-24
Property Address: 501 Shellard Lane
Municipality: Brantford
OLT Case No.: OLT-24-001070
OLT Lead Case No.: OLT-24-001069
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Losani Homes (1998) Ltd.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit the designation and zoning of the Subject Lands for residential development with a townhouse block.
Reference Number: 29T-16502
Property Address: 501 Shellard Lane
Municipality: Brantford
OLT Case No.: OLT-24-001071
OLT Lead Case No.: OLT-24-001069
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Losani Homes (1998) Ltd.
Request for: Request for Directions
Heard: April 14, 2025 by Written Motion
APPEARANCES:
| Parties | Counsel |
|---|---|
| Losani Homes (1998) Ltd. ("Losani") | Jennifer Meader |
| City of Brantford ("City") | Geoff Daley |
DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is a motion for production ("Motion for Production") of the Skelton Brumwell Supplemental Report, ("SB Supplemental report") which was undertaken by the City in relation to Losani’s land use planning applications ("Applications"). Losani filed appeals under s.22(7), s.34(11) and s.51(34) of the Planning Act, for 501 Shellard Lane (the Subject Lands).
2The City retained Skelton Brumwell and Associates Inc. ("Skelton Brumwell") to conduct the peer review ("SB Peer Review"). The SB Peer Review was completed by June 19, 2024 and shared with Losani on June 28, 2024.
3In October 2024, Losani became aware that Skelton Brumwell entered onto the Subject Lands, to collect data for an additional report. Losani understood that the purpose of this work was an analysis of whether the Subject Lands contain any additional Core Natural Area features other than the disputed wetland. Losani learned that this work culminated in the SB Supplemental Report.
4Counsel for Losani requested on several occasions that the City disclose the SB Supplemental Report, including but not limited to, by phone on November 15, 2024 and February 10, 2025, and by email on February 18, 2025.
5On December 13, 2024, the City’s counsel wrote to Losani’s counsel acknowledging the existence of the SB Supplemental Report and pointed to the terms and conditions of the application forms as justification for Skelton Brumwell’s attendance on the Subject Lands, without prior notice to Losani. City counsel explained that the purpose of the SB Supplemental Report was to gather information to complete technical studies in relation to the Applications.
6On February 18, 2025, Counsel for the City advised that it would disclose the SB Supplemental Report only on the following conditions:
- Production of the SB Supplemental Report is completely without prejudice;
- The SB Supplemental Report may not be relied on during the course of a hearing unless the City calls Skelton Brumwell as an expert witness and the City intends to rely on the report or Skelton Brumwell’s expert evidence during the course of the hearing.
Phased Hearing
7On January 23, 2025, at the first Case Management Conference, Losani and the City together sought to have the hearing of the Appeal proceed in two phases. Losani and the City agreed on, and the Tribunal (a different Panel) ordered, the following language to describe the purpose of Phase 1:
The purpose of Phase 1 of the hearing is to determine whether a portion of the subject lands are appropriately designated Core Natural Area in the City’s Official Plan and Zoning By-law. Phase 1 will determine whether any portion of the lands currently designated Core Natural Area should be designated Residential, and if so the extent to which the subject lands should be designated Residential in both the City’s Official Plan and Zoning By-law. In order to assess this issue, which will be detailed through the Issues List, both parties anticipate calling witnesses to give expert evidence in the following disciplines: hydrology, ecology, land use planning, and engineering.
("Purpose of Phase 1")
8As of the date of this motion, the parties have not agreed to, and the Tribunal has not issued, an Issues List.
Losani’s Motion for Production
THE MOTION:
9The motion ("Motion") was filed March 26, 2025 with the Tribunal. It is supported by an affidavit of planner Daniel Borrelli, sworn March 24, 2025 and by an affidavit of lawyer Mark de Jong, sworn March 21, 2025.
10The motion is for an Order requiring the City of Brantford ("City") to produce, on a with-prejudice basis, the Skelton Brumwell Report that was undertaken with respect to the lands municipally known as 501 Shellard Lane ("Subject Lands") around September or October 2024 ("SB Supplemental Report"), and such further and other relief as counsel ("Counsel") may advise and the Tribunal may permit.
11The Motion is filed as regards Rules 7, 9 and 10 of the Ontario Land Tribunal’s Rules of Practice and Procedure ("Rules").
Issues List
12To date, the Parties have not finalized an issues list ("Issues List"). In part, it is Losani’s position that an Issues List cannot be agreed upon until such time as Losani has had the opportunity to review the SB Supplemental Report.
13Other than any potential new issues arising from the SB Supplemental Report, the general subject matters, and disciplines in the current draft of the Issues List ("Draft Issues List"), many of the issues are not in dispute. Rather, the Parties dispute the language and characterization of some of the issues.
14As directed in the Purpose of Phase 1, the Draft Issues List includes issues related to hydrology, ecology, land use planning, and engineering.
Learning of the SB Supplemental Report
15Losani learned of the existence of the SB Supplemental Report through a series of conversations between Daniel Borrelli and City staff in October 2024.
City Refused to Produce the SB Supplemental Report
16Both Parties’ counsels spoke over the phone regarding the SB Supplemental Report on a number of occasions, including November 15, 2024 and February 10, 2025.
17On December 13, 2024, Counsel for the City wrote regarding the SB Supplemental Report that attendance at subject site was to gather information to complete technical studies or peer review reports.
18Appellant’s Counsel made the final request for disclosure by email on February 18, 2025. Counsel for the City advised that the City would disclose the SB Supplemental Report only upon certain conditions.
Grounds
19This is a Motion for Production of the SB Supplemental Report, which was undertaken in relation to Losani’s land use planning applications for the Subject Lands. The SB Supplemental Report was prepared on the direction of the City and prior to Losani filing its appeal in this matter.
20The SB Supplemental Report is relevant to the issues in the Hearing, namely those issues related to hydrology, ecology, and the presence of natural heritage features. It is necessary for the Tribunal to have the best evidence available to make a fair and informed decision, and necessary to allow Losani to know the case to meet and to be able to prepare effectively for the Hearing.
21The SB Supplemental Report remains in the City’s possession yet the City has refused to disclose same on a with-prejudice basis.
Response by the City
22The City’s response to motion was filed April 3, 2025, supported by an affidavit of law clerk Tommara McMillan, sworn April 2, 2025 and intermediate development planner Lindsay King, sworn April 3, 2025.
23In its response to the Motion, the City stated that production is unnecessary for the Issues List and understanding of the case. The City concedes that the document requested is relevant to the issues but does not concede that the document is necessary for disposition of the issues in the Phase 1 Hearing. Further, the SB Supplemental Report is not yet necessary as the City has not committed to calling and qualifying the author of the document, and has not committed on relying on the SB Supplemental Report, despite its relevance. It seeks to dismiss the motion. Alternatively, production of the SB Supplemental Report is without prejudice; and the SB Supplemental Report may not be relied on during the course of the Phase 1 hearing unless the City calls Skelton Brumwell as an expert witness and the City intends to rely on the SB Supplemental Report or Skelton Brumwell’s expert evidence during the course of the Hearing.
24The City’s Notice of Response to Motion was filed one day late through inadvertence, and it seeks an extension under Rule 3.2 of the Tribunal’s Rules of Practice and Procedure.
25The Tribunal notes that issues for Phase 1 have not been agreed upon and Parties intend to take out a motion for directions to scope the issues for the Phase 1 Hearing later.
DISPOSITION
26In rule 10.3, Tribunal Rules of Practice and Procedure, the Response to Motion is to be filed within seven (7) days of the motion being filed. The motion was filed on March 26, 2025 and the Response to Motion was filed on April 3, 2025; i.e., one day out of time. Rule 1.3 requires the Tribunal’s Rules to be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings. Rule 3.2 allows the Tribunal the discretion to extend time for filing the response. As the City is only a day out of time, the Tribunal is inclined to give the City benefit of the doubt and relax the strict time requirement of its response. The Tribunal thus extends the time for City’s response to motion as requested for a fair and expeditious resolution of the motion.
27The Tribunal considers Rule 9 of the Tribunal’s Rules, s.12 of the Ontario Land Tribunal Act (OLTA), and Rule 29.2.03 of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194 ("Rules of Civil Procedure").
28Rule 9.1 of the Tribunal Rules:
9.1 Order for Discovery The Tribunal may make an order for discovery for a party to obtain necessary information from another party. Such an order will be made only on motion and only if the party has requested information and it has been refused or no answer has been received. The notice of motion shall be accompanied by an affidavit, which sets out the efforts made to obtain the desired information and the reasons that demonstrate that the information sought is both necessary and relevant to the disposition of the issues in the proceeding. The Tribunal may order:
a. any person to provide an affidavit containing a list of relevant documents in the possession of the person;
b. the delivery of relevant documents;
c. an examination or cross-examination of any person or party;
d. an examination for discovery by written questions;
e. the inspection and testing of property;
f. the examination of a witness before the commencement of a proceeding (under the Rules of Civil Procedure); or
g. any other form of discovery; and
h. that conditions be imposed concerning the timing and scope of discovery.
29The test in Rule 9.1 to obtain the desired information is that "the information sought is both necessary and relevant to the disposition of the issues in the proceeding."
30As regards relevance, the City has conceded that the SB Supplemental Report is relevant. However, it argues that it is not a necessary document for the proceeding since the City has not committed to calling the author of said document as a witness. Until the City has decided on the witness, the information is not necessary for determination in the proceeding.
31The City submitted that the Tribunal has refused to order production of relevant expert reports in Rosebay Construction Inc. v. Grimsby (Town), 2022 CarswellOnt 1952 ("Rosebay"), wherein, although a landowner’s valuation report was "clearly relevant" to the issues in the hearing, production was "not necessary" for the town to make its own assessment of the value of the land.
32A reading of Rosebay will reveal that the Tribunal found that production of the documents requested was not ordered because it would be unfair, prejudicial to the applicant, and delay the proceedings. In that matter, the Town had already done an appraisal based on the direct comparison method. The objective of the discovery was to enable the town to get another appraisal done, using another methodology, based on information to be supplied by the applicant. The Tribunal there found that it would be unfair and not efficient, prejudicial to the applicant, and result in delay and more time consuming pre-hearing processes. Rosebay does not assist the City.
33The Tribunal notes in the instant case the fallacy in the contention that the City has not committed on calling a witness so the document need not be disclosed, since the City does not have exclusive control of requiring a witness to appear at a proceeding. The Appellant could take out a witness summons to compel the author to attend as a witness and similarly require the author to furnish the authored document at the hearing of the proceeding. The required document then becomes necessary as regards the City’s argument for necessity. Nonetheless, the test in rule 9.1 only requires reasons to demonstrate that the information sought is both necessary and relevant to the disposition of the issues in the proceeding.
34The Appellant submits that Skelton Brumwell had earlier undertaken a peer review in a main report. The SB Supplemental Report was carried out at the instruction of the City also for the purpose of the peer review. Hence, the Tribunal finds that the additional report is another part of Skelton Brumwell’s peer review, which makes the SB Supplemental Report a relevant part of the peer review and investigation. It is demonstrated that the additional report is relevant. The City concedes that it is relevant.
35The Appellant contends that the additional Skelton Brumwell report needs to be disclosed to allow it to ascertain whether any further study needs to be done by the appellant as regards an issue of concern raised, if any, in the SB Supplemental Report. The Tribunal finds that this relates to the object of the peer review which was to ascertain the extent of the Core Natural Area (CNA) features on the Subject Lands and to address issues regarding ecology and hydrology. The Subject Lands designation is a principal matter in the Phase 1 hearing and the SB Supplemental Report may inform the Issues List.
36The Tribunal notes that the Appellant has fulfilled the prerequisites of a discovery motion when its repeated requests for the document were refused by the City. Further, the Tribunal acknowledges that the Appellant has demonstrated the reasons why the document requested is necessary and relevant.
37Section 12 (2) of the OLTA states:
The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceeding.
38Rule 29.2.03 of the Rules of Civil Procedure on proportionality in discovery:
General
29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s. 25.
Overall Volume of Documents
(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.
O. Reg. 438/08, s. 25.
39Pursuant to rule 29.2.03(2), the Tribunal finds that the request is not unduly onerous or disproportionate to an excessive degree. It is reasonable for the City to produce the document. The City will not be prejudiced as it can still decide whether or not to call the author as a witness. As the document is in the custody of the City, there is no high expense in forwarding to the Appellant and the production will not interfere with the orderly progress of the proceeding.
FINDINGS
40The Tribunal finds that the SB Supplemental Report is relevant and necessary for the determination whether more issues need to be listed or whether further study needs to be conducted to place the best evidence before the Tribunal.
41The Tribunal finds that the document requested will assist the Tribunal in its determination of the issues with appropriate evidence in this proceeding.
42The Tribunal finds that the production of the requested document is a fair, just and expeditious resolution of the proceeding.
43The Tribunal finds that pursuant to rule 29.2.03(2) of the Rules of Civil Procedure regarding proportionality, the request for the document is reasonable, justifiable and is not in an excessive volume.
CONCLUSION
44The Tribunal will allow the Motion for Production of the requested document.
45The City shall produce the SB Supplemental Report to the Appellant with prejudice. There is no evidence that the SB Supplemental Report was created under a "without prejudice" settlement negotiation, and the City’s attempt at exclusive control of the right to a witness offends the principle that there is no property in a witness, expert or otherwise (see Charlebois v. SSQ, Life Insurance Company Inc. 2015 ONSC 2568 at para 31, per Ellies J.).
ORDER
46THE TRIBUNAL ORDERS that the Motion for Production is granted. The City of Brantford is hereby ordered to:
produce, on a with-prejudice basis, the Skelton Brumwell Report that was undertaken with respect to the lands municipally known as 501 Shellard Lane ("Subject Lands") around September or October 2024 ("SB Supplemental Report").
furnish the SB Supplemental Report to the Appellant within two (2) weeks from the date of this Order.
"T.F. Ng"
T.F. NG 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.