Krapez v. Ontario (Niagara Escarpment Commission), 2025 CanLII 74716

minicounsel

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

OLT-25-000127

July 25, 2025

August 26, 2025

RE: Krapez v. Ontario (Niagara Escarpment Commission)

Correction to: Correcting both Hearing event detail’s Phone Number and Toll Free Phone number

Originally:

Corrected to:

8Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll Free: 1 (888) 455-1389. The access code is: 656-004-293.

15Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll Free: 1 (888) 455-1389. The access code is: 927-921-077.

15Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497-9391 or Toll Free: 1-888-299-1889. The access code is: 927-921-077.

“Matthew D.J. Bryan”

MATTHEW BRYAN

REGISTRAR

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.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 25, 2025

CASE NO(S).:

OLT-25-000127

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant:

Mark and Elizabeth Krapez

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Refusal of a Development Permit Application to recognize the establishment of an agriculture use (vineyard), storage tent, asphalt parking lot, placement of four storage bins, and four portable washrooms, and general landscaping on an existing lot

Reference No.:

P/C/2022-2023/175

Property Address/Description:

2521 Escarpment Road

Municipality/Upper Tier:

Caledon/Peel

OLT Case No.:

OLT-24-000127

Heard:

July 21, 2025 by Video Hearing

Parties

Counsel

Mark and Elizabeth Krapez

Eric Gillespie Colleen Diamond (summer student)

Niagara Escarpment Commission

Demetrius Kappos Margaret McCloskey

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON JULY 21, 2025 AND ORDER OF THE TRIBUNAL

1On July 21, 2025, a hearing was convened to adjudicate an appeal brought by Mark and Elizabeth Krapez (“Appellants”) regarding the refusal by the Niagara Escarpment Commission (“Commission”) of a development permit application relating to the lands located at 2521 Escarpment Road (“subject property”), in the Town of Caledon.

Whether to Phase the Hearing

2At the commencement of the hearing, the Appellants requested that the hearing be held in two phases. The first phase would address the Appellants’ issues relating to whether the proposed uses on the subject property are existing uses and/or are exempted from the requirement to obtain a development permit. If the Appellants were not successful in the first phase, the hearing would be re-commenced in a second phase, which would address the Commission’s issues relating to consistency with the Provincial Planning Statement, 2024 (“PPS”) and conformity with the Niagara Escarpment Plan (“NEP”) and applicable Official Plans.

3The Hearing Officer determined that the most cost-effective, efficient, and expeditious manner in which to adjudicate the appeal is to have the hearing held at one time and not in phases. The Hearing Officer found that his decision must be consistent with the PPS and must conform with the NEP and applicable Official Plans, including when determining the Appellants’ issues relating to existing uses and exemptions. On this basis, the Hearing Officer found that the hearing should be held at one time so that all of the necessary evidence and submissions can be considered in a fair and efficient manner.

Adjournment and Amendment to the Procedural Order

4On the request of the Parties, the Hearing Officer directed that the hearing is adjourned to provide the Parties with sufficient time to prepare and address all of the issues taking into account the Hearing Officer’s direction that the hearing be held at one time and not in phases.

5The Tribunal adjourned the existing 5-day hearing and scheduled new dates for a 4-day hearing commencing on Tuesday, November 18, 2025 at 10 a.m. by video hearing.

6The Parties and/or Participants and/or Observers are asked to log in to the hearing on November 18, 2025 by video at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/656004293

Access Code: 656-004-293

7Parties and/or 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html.

9Individuals 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.

10The Hearing Officer directed that the Procedural Order for this proceeding, attached to the Order dated June 19, 2025, is amended to address the change in hearing dates and by adding the following paragraphs directing the exchange of materials for the hearing relating to the Commission’s issues:

The Appellants shall serve the other Parties and file with the Tribunal its responding materials to the Niagara Escarpment Commission’s Issues 4 and 5 in the Issues List, attached as Attachment 2 to this Procedural Order, by no later than Monday, October 27, 2025.
The Niagara Escarpment Commission shall serve the other Parties and file with the Tribunal any reply materials regarding its Issues 4 and 5 in the Issues List, attached as Attachment 2 to this Procedural Order, by no later than Monday, November 10, 2025.

Motion to Dismiss

11The Commission stated that it may wish to bring a motion to dismiss the appeals and requested that the date of August 26, 2025 be scheduled for the hearing of that motion.

12The Tribunal scheduled a one-half day motion hearing commencing on Tuesday, August 26, 2025 at 2 p.m.

13The Parties and/or Participants and/or Observers are asked to log in to the motion hearing by video at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/927921077

Access Code: 927-921-077

14Parties and/or 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html.

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.

17The Hearing Officer directed that the Commission is to serve the other Parties and file its motion materials by no later than Wednesday, August 6, 2025. The Appellants are directed to serve and file their responding materials for the motion by no later than Friday, August 15, 2025. The Commission is directed to serve and file any reply materials regarding the motion by no later than Thursday, August 21, 2025.

ORDER

18THE TRIBUNAL ORDERS THAT the hearing is adjourned and directs the scheduling of new dates for the hearing and the scheduling of the Commission’s motion to dismiss as set out in the above Decision.

19THE TRIBUNAL FURTHER ORDERS THAT that the Amended Procedural Order attached as Appendix 1 to this Order and Decision governs this proceeding.

20There will be no further notice.

21This Hearing Officer is not seized.

“Hugh S. Wilkins”

HUGH S. WILKINS

HEARING OFFICER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Appendix 1

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll Free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunal ontarien de l’aménagement du territoire 655 rue Bay, suite 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web: olt.gov.on.ca

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant:

Mark and Elizabeth Krapez

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Reference No.:

P/C/2022-2023/175

Property Address/Description:

2521 Escarpment Road

Municipality/Upper Tier:

Caledon/Peel

OLT Case No.:

OLT-25-000127

OLT Lead Case No.:

OLT-25-000127

OLT Case Name:

Krapez v. Ontario (Niagara Escarpment Commission)

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 ~~July 21,~~ ~~2025~~ Tuesday, November 18, 2025 at 10:00 a.m. ~~The Hearing will run until July 25, 2025 inclusive.~~
The parties’ initial estimation for the length of the hearing is 54 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 parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
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.
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.
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 at least 65 days before the commencement 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 along with the witness list.
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 12 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 12 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 12 below.
At least 55 days before the commencement of the hearing, the parties shall provide copies of their witness outlines and expert witness statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 22 below.
At least 55 days before the commencement 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.
The expert witnesses of the parties of like disciplines shall meet at least 35 days before the hearing to prepare a Statement of Agreed Facts and Issues which the parties shall file with the OLT case co-ordinator at least 30 days before the commencement of the hearing.
Parties may provide to all other parties and the OLT case co-ordinator written reply statements, if any, in response to any written evidence at least 25 days before the commencement of the hearing, in accordance with paragraph 22 below.
At least 25 days before the commencement of the hearing, the parties shall confirm with the Tribunal if all of the reserved hearing dates are still required.
At least 14 days before the commencement of the hearing, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator at least 14 days before the commencement 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 at least 7 days before the commencement 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.
The Appellants shall serve the other Parties and file with the Tribunal its responding materials to the Niagara Escarpment Commission’s Issues 4 and 5 in the Issues List, attached as Attachment 2 to this Procedural Order, by no later than Monday, October 27, 2025.
The Niagara Escarpment Commission shall serve the other Parties and file with the Tribunal any reply materials regarding its Issues 4 and 5 in the Issues List, attached as Attachment 2 to this Procedural Order, by no later than Monday, November 10, 2025.

This Hearing Officer is not seized.

So orders the Tribunal.

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.

Attachment 1

List of Parties/Participants

Parties

Counsel/Agent

Mark and Elizabeth Krapez (Appellants)

Eric K. Gillespie Professional Corporation 393 University Avenue, Suite 2000 Toronto, Ontario M5G 1E6 Eric K. Gillespie (LSO#37815P) 416-703-6362 egillespie@gillespielaw.ca

Niagara Escarpment Commission (Respondent)

Ministry of Natural Resources Legal Services Branch 99 Wellesley St. W. Rm 3420, Whitney Block Toronto, Ontario M7A 1W3 Demetrius Kappos (LSO#42866C) 416-254-7258 demetrius.kappos@ontario.ca Margaret McCloskey (LSO#89819K) 416-505-2140 margaret.mccloskey@ontario.ca

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.

Appellants’ Issues

Are portions of the Proposed Development as set out in the Notice of Decision of the Niagara Escarpment Commission dated January 23, 2025 exempt from the need for a Development Permit?
For those portions of the Proposed Development that are not exempt per Issue 1, do they meet the Niagara Escarpment Plan on the basis of being existing uses?
Regarding Appellants’ Issues #1 and #2, in particular, do the following exemptions and/or existing use provisions apply:

Agricultural use, Vineyard #3 (South) Exempt, Vineyard #1 and #2 Existing;
± 360 sq m (± 3,875 sq ft) agricultural storage tent Exempt;
1,750 sq m (± 18, 836 sq ft) asphalt parking lot to accommodate 50 vehicles Exempt;
The placement of four (4) storage bins Exempt;
The placement of four (4) portable washrooms Exempt;
General landscaping Exempt; and
Tennis court Exempt.

NEC Issues

Is the Proposed Development seeking a Niagara Escarpment Development Permit:

a. inconsistent with Sections 4.1.1 and 4.1.5 of the 2024 Provincial Planning Statement 2024 (“PPS”)?

b. in conflict with Part 2.7.2 of the Niagara Escarpment Plan 2017 (“NEP”)?

c. not in conformity with Sections 2.3.2, 2.3.2.2 and 2.3.2.6 and 2.14.17 of the Region of Peel’s Official Plan (“ROP”)?

d. not in conformity with Sections 3.2.3.1.1, 3.2.4.4, 3.2.4.8, 3.3.3.2.2, 5.1, 5.2.5, 5.7.3.1.2, 5.7.3.1.6, 6.7.190, 6.7.191 and 6.7.192 of the Town of Caledon’s Official Plan (“TCOP”)?

In particular, are the lands impacted by the development sought to be approved after the fact:

a) a key natural heritage feature, in particular a significant woodland, under s. 2.7 of the NEP?

b) designated Core Area of the Greenlands System under s. 2.3.2 of the ROP and Core Woodland of the Greenlands System under s. 2.3.2.2 of the ROP?

c) designated Environmental Policy Area under s. 5.7 of the TCOP?

d) significant woodlands under both the ROP and the TCOP?

significant woodlands under the PPS?

Attachment 3

Order of Evidence

Appellants – Mark and Elizabeth Krapez

Respondent – Niagara Escarpment Commission

Appellants – Reply, if any

Krapez v. Ontario (Niagara Escarpment Commission), 2025 CanLII 74716

Case Summary

Krapez v. Ontario (Niagara Escarpment Commission), 2025 CanLII 74716

Case Summary