Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 04, 2025

CASE NO(S).:

OLT-24-000448

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

Applicant and Appellant:

Xin Yin Inc. (The Mahayana Pure Land Temple)

Subject:

Request to amend the Official Plan – Failure to adopt the requested amendment

Description:

To permit the development of a two-storey place of worship.

Reference Number:

OPA 21.003

Property Address:

5310 and 5322 Aurora Road

Municipality:

Whitchurch-Stouffville

OLT Case No.:

OLT-24-000448

OLT Lead Case No.:

OLT-24-000448

OLT Case Name:

The Mahayana Pure Land Temple et al v. Whitchurch-Stouffville (Town)

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

Applicant and Appellant:

Xin Yin Inc. (The Mahayana Pure Land Temple)

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit the development of a two-storey place of worship.

Reference Number:

ZBA 21.005

Property Address:

5310 and 5322 Aurora Road

Municipality:

Whitchurch-Stouffville

OLT Case No.:

OLT-24-000449

OLT Lead Case No.:

OLT-24-000448

Heard:

May 6-9, 2025, by Video Hearing and written on May 23, 2025

APPEARANCES:

Parties

Counsel

Xin Yin Inc. (The Mahayana Pure Land Temple) (“Applicant”).

Matthew Helfand

Town of Whitchurch-Stouffville (“Town”)

Andrew Biggart

DECISION DELIVERED BY T.F. NG AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant seeks to develop the site municipally known as 5310 and 5322 Aurora Road in the Town (“Subject Property”) to construct a two-storey place of worship. The Applicant had applied to amend the Town’s Official Plan (“OPA”) and the Zoning By-law (“ZBA”). The Appeals were brought pursuant to sections 22(7) and 34(11) of the Planning Act (“Act”), due to the Town’s failure to make a decision within the prescribed times.

2Over the course of four days from, May 6 to May 9, 2025, a hearing was conducted as scheduled, with several expert witnesses being called.

3On the 3^rd^ day of hearing (May 8), the parties’ counsels and the panel member convened in chambers, where counsels submitted on whether a revised ZBA would be allowed for the appeal. The Tribunal ruled against the Applicant’s request.

4At the commencement of the 4^th^ day of hearing (May 9), Parties indicated that they desired to jointly request an adjournment of the matter to enable the parties to undertake a negotiation to resolve the appeals and consent to a Tribunal led mediation. The request arose from the rulings that this Tribunal made relating to the Applicant’s oral motion to amend the ZBA and present a revised ZBA for the purpose of the Appeal.

5The Town’s counsel objected strenuously to a revised ZBA being put for the appeal. The Tribunal ruled against the proposed revised ZBA.

Grounds of Adjournment Request

6Counsel for the Applicant submitted the following.

SUMMARY OF ORAL SUBMISSIONS/WITH WRITTEN OUTLINES SUBMISSIONS BY MAY 23, 2025

7Both parties have agreed to an adjournment.

8Applicant’s counsel stated his understanding of the Tribunal’s ruling on May 8, 2025, for the benefit of the parties.

9During the cross examination of the Applicant’s witnesses, Mr. Biggart, counsel for the Town, asked questions about alleged deficiencies in the Applicant’s draft zoning by-law.

10During Mr. Angelakis’ testimony on May 8, Mr. Angelakis provided his opinion in respect of the Applicant’s draft by-law. There was no dispute that these specific concerns were raised by Mr. Angelakis, in the applicant counsel’s view, for the first time in this hearing.

11Applicant’s counsel, Mr. Helfand attempted to cross examine Mr. Angelakis on his opinions of a revised draft by-law. Mr. Biggart objected to that line of questioning, and the Tribunal sustained that objection.

12At the end of the hearing on May 8, Applicant’s counsel sought an advanced ruling on his right to call reply evidence in support of an updated draft zoning by-law instrument.

13It was his submission that the Town had, for the first time in this hearing, raised issues with the draft by-law, because those issues were not raised in the processing of the application and by-law, not included on the issues list, and not raised in any witness statements. It was also his submission that there was no prejudice to the Town in calling such evidence in reply because it was responsive to a new issue and was responsive to the substance of the Town’s apparent concerns.

14Mr. Biggart had objected to the request to call reply on an updated zoning by-law. Mr. Biggart submitted his disagreement that the Town was raising a new issue. He submitted that it was not appropriate to provide reply evidence on a revised ZBA, and he disagreed on the issue of prejudice. Mr. Biggart also offered that if Applicant’s counsel intended to bring forward a modified by-law, then an adjournment may be appropriate.

15The Tribunal sustained the Town’s objection and ruled that the Applicant would not be permitted to present a revised draft zoning by-law through reply evidence. The Tribunal also suggested that an adjournment would be an option.

16Mr. Biggart and Mr. Helfand had conferred and both parties agreed to an adjournment.

17The parties have also agreed to use this opportunity to engage in good faith mediation with each other, starting as early as June. The parties are seeking and securing those instructions.

ORDER REQUESTED

18The Applicant requested the following disposition from the Tribunal:

1. The Tribunal adjourn this matter;

2. The Tribunal orders the parties to attend a Case Management Conference;

3. The Tribunal gives an order permitting or encouraging the parties to proceed to Tribunal led mediation without the need for a mediation assessment;

4. The Tribunal makes a formal written ruling with reasons on the objection to applicant counsel’s cross examination of Mr. Angelakis which was sustained by the Member;

5. The Tribunal makes a formal written ruling with reasons on the objection to the request to call reply evidence on a modified draft by-law;

6. The Tribunal orders that a status hearing to occur in mid-July;

7. An Order that if this matter returns to a contested hearing, the Applicant will not be prohibited from presenting evidence on a revised zoning by-law and/or revised proposal, subject to the terms of a future procedural order so that both parties have the opportunity to seek the appropriate instructions and file the appropriate evidence.

19The Tribunal notes that the Parties advised that they have had discussions on the 3^rd^ day of the hearing and also on the 4^th^ day, leading to the parties’ conclusion that a request to adjourn the matter was in the best interests and which would allow the parties to mediate immediately upon the remaining issues.

20Parties requested the Tribunal member to note to the mediation team that they could dispense with the mediation assessment since parties want the mediation, have the issues scoped and are willing to and consent to the mediation. A prompt scheduling of a mediation date from the mediation panel is desired.

Objection on line of questioning sustained

21Reasons:

1. The Tribunal ruled that cross examination of the witness based on a potential revised draft zoning bylaw is not appropriate as the ZBA before the Tribunal is the duly filed and submitted draft ZBA. This draft ZBA is for adjudication.

2. The Applicant had closed its case, having completed testimony of its land use planner and its transportation engineer, relying on the submitted ZBA and affirming that the draft ZBA represents good planning.

3. The Town’s counsel had completed cross examination of the applicant’s witnesses based on the filed ZBA instrument (and the OPA instrument).

4. The Town’s counsel is entitled to cross on the filed instruments and point out any alleged inadequacies or deficiencies.

5. As regards a proposed revised draft ZBA, the Town’s counsel and the Town’s expert witnesses have prepared for the submitted draft ZBA and not the proposed revised draft ZBA which has not been presented to or previewed by the Town.

6. A new version of the draft will amount to a surprise to the Town which gives rise to procedural unfairness.

7. Further, there is prejudice to the Town as the town had begun its case where its first witness had completed his testimony and was under cross examination.

8. Since all parties relied on the filed draft ZBA, and the applicant’s witnesses have both confirmed, in their opinion evidence, that the submitted draft ZBA is good planning and ought to be approved, the Applicant should be held to that position.

Revised Draft Zoning By-law not permitted

22Reasons:

1. The Tribunal ruled that reply evidence in the form of a revised draft ZBA replacing the submitted draft ZBA is not allowed as the instrument before the Tribunal for adjudication is the draft ZBA purposefully prepared and submitted by the Applicant and which was confirmed by its experts as good planning.

2. A unilaterally proposed revised ZBA is not an instrument that the Tribunal can deal with without occasioning prejudice to the Town (which strenuously objected to the proposed revised draft ZBA being a replacement for the submitted draft ZBA for reason of surprise, non-opportunity to preview or to obtain the Town’s experts’ opinion evidence before a hearing, and prejudice to the position of the Town).

3. Similarly, the Applicant had closed its case with complete opinion evidence from its two experts that the submitted draft ZBA, the instrument as drafted with the provisions and regulations, is good planning and ought to be approved. Permitting the Applicant to switch to a new revised draft, in the face of strong opposition by the Town, amounts to adjudication of a new specific draft instrument that the Town had no opportunity to review prior to a hearing. This will be procedural unfairness that the Tribunal will not contemplate.

4. Further, reply evidence in the form of a new revised draft ZBA, will need supporting evidence from the Applicant. Again, the Applicant had given experts’ opinion evidence to support the submitted draft ZBA, not the proposed revised draft.

5. The Tribunal finds that the evidence to support the revised draft will necessitate examination of all witnesses and will consume the parties and the Tribunal’s scarce resources. After closure of the Applicant’s case, this additional requirement amounts to an unfair procedural process for the appeals.

6. The Tribunal finds that in the circumstances of this case, the fair and expeditious manner to proceed was to hold the parties to the documents submitted, evidence opinion provided, the witness statements filed, and the draft instruments filed for the Tribunal’s adjudication on the proposed development.

Disposition

23The Tribunal finds that it is in the Public Interest for the parties to have the adjournment in order to find an amicable solution to the appeals with respect to this proposed development for a religious worship building.

24Counsels’ plea for an adjournment of this part heard matter is reasonable in the circumstances as parties have demonstrated a willingness and earnestness to resolve the dispute.

25The Tribunal views that the parties’ sincere approach in requesting a fast-tracked mediation, dispensing with a mediation assessment, shows the degree of recognition counsels have for the efficacy of a Tribunal led mediation.

26In this particular matter, mediation would be suitable since the parties have narrowed issues during the course of the hearing down to essentially the traffic and parking rates; and parking demands for parking spaces at the proposed development site.

27The Tribunal reiterates that on the eve of the adjournment, one of the two remaining Town’s expert witnesses has not completed his cross examination, and the other remaining Town’s witness has not begun his testimony on behalf of the Town. The Tribunal has yet to weigh all the evidence of witnesses at the hearing to have any conclusionary findings.

28The Tribunal will accommodate the Applicant’s request for a potential resolution of the Applicant’s appeals with the adjournment requested.

CASE MANAGEMENT CONFERENCE

29The Tribunal will schedule a one-day CMC on Thursday, July 24, 2025, at 10 a.m. by video hearing. There will be no further notice and the Member is seized.

30The Parties are directed to provide the Tribunal with a status update on the mediation undertaken. In the event a settlement is achieved, the CMC may be converted to a settlement hearing. If Parties fail to resolve the appeals, the orders in this decision will guide the parties, going forward, with respect to the continued hearing of the part heard appeals.

31Individuals 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:

GoToMeeting: https://global.gotomeeting.com/join/979388733;

Access Code: 979-388-733

32Individuals 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.

33Individuals 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: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

34Individuals 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

35THE TRIBUNAL ORDERS by consent that:

1. This matter is adjourned.

2. A Case Management Conference is fixed on Thursday July 24, 2025 at 10:00 am by Video Hearing;

3. The case management conference may be converted to a settlement hearing.

4. This matter shall proceed to Tribunal led mediation preferably without the need for a mediation assessment;

5. If this matter returns to a continued part heard contested hearing, the Applicant will be permitted to present evidence on a revised zoning by-law and/or a revised proposal.

6. Parties are permitted to jointly file a revised procedural order to govern the continued part heard appeals.

“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.