Gagliardi v. Bradford West Gwillimbury (Town), 2025 CanLII 79651

ISSUE DATE: August 8, 2025

CASE NO(S).: OLT-23-001152

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Vincenzo Gagliardi

Subject: Site Plan

Description: To establish a cemetery

Reference Number: D11-18-11

Property Address: 3369 Line 13

Municipality/UT: Bradford West Gwillimbury/Simcoe

OLT Case No.: OLT-23-001152

OLT Lead Case No.: OLT-23-001085

OLT Case Name: Gagliardi v. Bradford West Gwillimbury (Town)

Heard: August 7, 2025, by Video Hearing

APPEARANCES:

Parties

Counsel/Representative

Vince Gagliardi

Russell Cheeseman Stephanie Fleming

Town of Bradford West Gwillimbury

Leo Longo

MEMORANDUM OF ORAL DECISION DELIVERED BY nazanin eisazadeh ON August 7, 2025, AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This matter was originally scheduled by the Tribunal as a one-day Merit Hearing to dispose of the appeal filed by Vince Gagliardi (“Applicant”) pursuant to s.41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Planning Act”), for approval of a Site Plan Application (“SPA”) by the Town of Bradford West Gwillimbury (“Town”) respecting the development of a cemetery at the lands municipally known as 3369 Line 13 within the Town (“Subject Property”).

2At the request of the Parties, the Tribunal converted the Hearing to a Case Management Conference (“CMC”), in order to address several preliminary issues.

3Dating back to November of 2023, the Applicant had originally filed two Appeals before this Tribunal: (i) the current SPA Appeal, and (ii) a preceding Appeal pursuant to s.85(1) of the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33, as amended (“Funeral Act”) bearing Ontario Land Tribunal Case No. 23-001085 (“Funeral Act Appeal”).

4As reflected in two prior CMC Decisions leading up to the Hearing of what was ultimately limited to the Funeral Act Appeal, the two matters were initially “administratively consolidated”, and the two Appeals were initially directed to be “heard together for administrative purposes”. There has never been a formal Tribunal Order consolidating the two matters under Rule 16.2 of the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”).

5Also flowing from the two prior CMC Decisions, seven individuals were granted Participant Status, specifically to both matters – they are: Hoyun Lee, Sandy Chilvers, Gordon Edwards, Laura Sist, Jamie Roca, Chris Lubker, and Aria Mozzone. Initial Participant Statements were received from all seven individuals in late 2023 and early 2024. A Procedural Order (“PO”) inclusive of Issues List (“IL”) identifying the issues governing both Appeals was also endorsed and ordered, and a five-day Merit Hearing was scheduled to be heard commencing October 21, 2024.

6The Merit Hearing commenced on October 21, 2024, concluding in four days on October 24, 2024, before a Panel differently constituted (“Funeral Act Hearing”). A Decision arising from that Hearing was issued on November 7, 2024, by Member Clos (“Funeral Act Decision”).

7At the outset of the Funeral Act Hearing, the Tribunal dealt with a preliminary issue raised by the Town, which was opposed by the Applicant, regarding a separation of the proceedings on the basis that the SPA was premature pending a determination on the Funeral Act Appeal. Following submissions, the Tribunal determined that the question of the public interest pursuant to the Funeral Act must be decided first, and accordingly, separated the proceedings. As reflected in the Funeral Act Decision, the Tribunal ruled as follows (emphasis added):

[20] The Tribunal considered the submissions of the Parties and ruled that with respect to the two matters before the Tribunal, the question of public interest pursuant to the Funeral Act must be decided first. In accordance with Rule 16.1 of the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”), the Tribunal orders that the two appeals be heard one after the other. Accordingly, the Funeral Act appeal will be adjudicated at the current Merit Hearing. The Site Plan appeal will be considered at a separate Hearing to be scheduled by the Tribunal at the request of the Parties upon the issuance of this Decision and Order.

[21] The Merit Hearing for the Funeral Act appeal then continued and was fully heard. The Site Plan appeal will be the subject of a subsequent hearing. This Member is not seized of the Site Plan matter.

8Within the same Decision, the Tribunal disposed of the Funeral Act Appeal, ultimately finding that the request to establish a cemetery on the Subject Property is in the public interest, and therefore granted the approval pursuant to s.84(1) of the Funeral Act.

9The Town subsequently filed: (i) a request for review of the Funeral Act Decision pursuant to s.23 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c.4, Sched. 6, as amended (“s.23 Request”); and (ii) an application for judicial review to the Divisional Court (“JR Application”).

10The basis for the s.23 Request was two-fold: (i) that the Tribunal made an error of law by misapprehending essential evidence advanced by the Applicant related to the “need” for the proposed cemetery; and (ii) that the Tribunal made an error of law by misinterpreting the scope of matters that can be subject to site plan control, which influenced its decision under the Funeral Act.

11The s.23 Request was dismissed by way of the Tribunal’s disposition letter dated February 20, 2025 (“Disposition Letter”). The JR Application was initially held in abeyance pending the outcome of the Disposition Letter. The Tribunal understands that the JR Application is currently still alive, and that the Applicant is in the process of perfecting a “motion to dismiss for delay” sometime this week.

THE SPA APPEAL

12Following the issuance of the Disposition Letter, the Tribunal issued its standard notice letter for a one-day Merit Hearing scheduled in respect of the SPA Appeal, dated July 4, 2025 (“Notice Letter”).

13The Notice Letter set out the standard ten-day deadline prior to the Hearing for the filing of any documents or materials on which the Parties intended to rely that were not already filed with the Tribunal. The standard ‘Schedule C’ was appended to the Notice Letter which sets out Rule 7 of the Rules, respecting Documents, Exhibits, Filing and Service. Pertinent, is Rule 7.4 respecting the prefiling of Witness Statements and Reports, as well as Rule 7.7 respecting the filing of Participant Statements.

14Ten-days prior to the scheduled Hearing, on July 28, 2025, the Town filed two additional Witness Statements not previously filed with the Tribunal on the Funeral Act Hearing – they are: (i) the Witness Statement of Alan Wiebe, Manager of Community Planning with the Town, dated July 25, 2025, along with Acknowledgment of Expert’s Duty Form (“Expert Form”) and Curriculum Vitae (“CV”); and (ii) the Witness Statement of Diana Petramala, professional land economist, dated July 25, 2025, along with Expert Form and CV.

15There were no additional documents filed by the Applicant.

THE PRELIMINARY ISSUES

16The Merit Hearing was converted to a CMC to address preliminary issues arising from the Town’s filing of additional materials – they may be categorized as follows: (i) the admissibility of the Town’s two additionally filed witness statements; and (ii) the impact of the Tribunals decision on the first issue to the balance of the administrative and procedural steps leading up to the ultimate Merit Hearing.

17In high-level summary fashion, the Applicant argued that the Town’s filing of the two additional witness statements ought not be permitted on the following two fundamental grounds:

i. Notwithstanding that the SPA Appeal was separated to be heard after the Funeral Act Appeal, the Hearing remained a Continuation of the first Hearing on the Funeral Act Appeal that is governed by the same original PO and IL, which included deadlines for all materials with no provision for further filing of additional witness statements or materials.

ii. That the substance of the two additional witness statements raises two key new issues on the SPA that are improper. The first relates to potential ground water contamination that the Tribunal has already determined may be properly dealt with by way of SPA conditions within the Funeral Act Decision. The second relates to prematurity of the SPA allegedly requiring a condition of phasing given the Applicant’s evidence on the ‘need assessment’ for cemetery lands, which: (i) was an issue limited to the Funeral Act Appeal, on which issue the Town chose not to tender its own expert witness; (ii) is not a relevant or proper issue on an appeal of a SPA; and, (iii) amounts to the Town splitting its case and a “second kick at the cat”, which is improper and ought not to be permitted.

18In response, the Town’s position can be summarized, very briefly, as follows:

i. The Hearing is not a Continuation; the suggestion of consolidation was opposed by the Town at the outset of the Funeral Act Hearing; and the determination by the Tribunal within the Funeral Act Decision is very clear that the SPA Appeal was a separate matter to be heard subsequent to the Funeral Act Appeal, for which subsequent Hearing the Presiding Member was not seized.

ii. The substance of the two witness statements are, respectively, both relevant and proper. On the issue of the jurisdiction of a site plan condition to deal with the potential ground water contamination issues, any comments made by the Tribunal within the Funeral Act Decision are in obiter, as that matter dealt strictly with the Funeral Act Appeal. The Tribunal’s commentary in this regard related only to the question of whether the use as a cemetery was in the public interest under the Funeral Act, and the Tribunal was very circumspect in its discussion regarding site plan conditions within the Funeral Act Decision, stating expressly that those issues were not before it on that Hearing and that the Tribunal would not fetter the discretion of the presiding Member on the SPA Appeal Hearing.

iii. On the issue of prematurity of the SPA requiring a condition of phasing: (i) it is well within the ambit of s.41 of the Planning Act; (ii) it is a valid planning issue that is appropriately raised at the time of the SPA Appeal Hearing to ensure that the matter is deal with in the best possible way and consistent with planning policy under the Planning Act; (iii) the issues raised are encompassed within issue two, asking whether appropriate conditions to the SPA have been established, and issue three, asking whether the proposed SPA represents good planning under the Planning Act, within the IL; and (iv) it does not amount to a further attempt to appeal portions of the Funeral Act Decision. The Town is not disputing whether the cemetery use is within the public interest under the Funeral Act, which issue has been determined pending the outcome of the JR Application. Rather, the issue before the Tribunal on the SPA Application is whether the proposed SPA is premature respecting the entirety of the approximate 31.4 acres of the Subject Property, based on the Applicant’s own evidence and land need assessment, and whether phasing the proposed SPA is appropriate.

19The Town further submitted that given the outstanding JR Application, and upon the Tribunal’s determination of the foregoing issues, the most efficient way to proceed would be to either: (i) stay the SPA Appeal pending a determination of the JR Application; or (ii) make a determination that any Order arising from the SPA Appeal would be withheld pending the outcome of the JR Application.

SUMMARY OF DISPOSITION

ADMISSIBILITY OF THE TOWN’S ADDITIONAL MATERIALS FILED

20Upon careful consideration of the respective Parties’ submissions and on the Tribunal’s own record, the Tribunal found it evident that the two Appeals were never formally Ordered to be consolidated, and only procedurally connected to be heard together at the outset for administrative purposes of efficiency. At the start of the Funeral Act Hearing, this administrative issue was raised and addressed. Within the Funeral Act Decision, the Presiding Member made it clear that the two matters were to be separated, with the SPA Appeal to be considered at a “separate” and “subsequent” Hearing, for which Hearing the Presiding Member was not seized. Accordingly, the Tribunal does not view the SPA Appeal Hearing as a Continuation but rather a separate Hearing that is to be heard on the basis of its own record. In this regard, the Tribunal noted that it issued its standard Notice Letter to all Parties setting out its standard ten-day deadline for the filing of any additional new materials not already filed. To that end, and contrary to the submissions of the Applicant, the Tribunal did not view the Parties to be “stuck with” the materials that were previously filed on the Funeral Act Appeal for the purposes of the SPA Appeal.

21The appropriate question then left to be determined, regarded whether the additional materials filed by the Town are relevant to the issues to be determined on the SPA Appeal. The Tribunal expressed some initial concern that much of what was presented by the Town as to the relevance of the substance of its two new witness statements did appear at first instance to overlap with the Town’s grounds for its s.23 Request of the Funeral Act Decision. To this end, the Tribunal appreciated the concerns raised regarding a “second kick at the cat”. Ultimately, however, the Tribunal was of the view that issues two and three within the IL were sufficiently wide enough to encompass the more defined issues as to: (a) whether the proposal to implement concrete liners or impermeable burial chambers in order to reduce the impact of potential contaminants to groundwater resources is an appropriate condition; and (b) whether requiring the phasing of the SPA is an appropriate condition that represents good planning on account of prematurity of the SPA, given the established evidence on the “need assessment” for cemetery lands. The Tribunal determined that any comments in respect of site plan conditions within the Funeral Act Decision related only to the determination of public interest under the Funeral Act, and ultimately have no bearing on the determinations to be made on the SPA Appeal. Additionally, the Tribunal accepted the Town’s submission that the issue respecting SPA prematurity is distinct from the grounds argued for its s.23 Request, in that it deals specifically with the question of what is considered appropriate and good planning under the Planning Act on a SPA, and not on the question of what is in the public interest under the Funeral Act. The Tribunal also found that there is no legislative or other requirement that would compel the Town to raise the issue of phasing under strictly the Funeral Act Appeal.

22Accordingly, the Tribunal ruled that the two additional witness statements of Mr. Wiebe and Ms. Petramala, as filed by the Town, are relevant and permissible.

IMPACT TO BALANCE OF ADMINISTRATIVE AND PROCEDURAL REQUIREMENTS

No Stay of Proceedings

23With the aforementioned determinations made, the Tribunal was tasked with addressing the balance of administrative and procedural matters governing the SPA Appeal.

24Respecting a stay of proceedings, and on the basis of the direction provided by the Divisional Court in Pleasant View Protection Corp. v. Niagara Escarpment Commission, 2025 ONSC 3426, the Tribunal did not find exceptional circumstances were established by the Town to warrant the requested stay of proceedings pending the outcome of the JR Application. The Tribunal agreed with the Applicant that proceeding with the SPA Appeal was the Applicant’s prerogative and at the Applicant’s own risk.

25Accordingly, and after canvassing the availability of Counsel and their witnesses, the Tribunal scheduled a four-day Merit Hearing on the SPA Appeal to commence on Tuesday, February 10, 2026, at 10:00 a.m. by way of Video Hearing pursuant to the details provided further below.

26The Tribunal further directed that any arguments the Parties wished to make regarding the request to withhold a potential Order that may arise from the SPA Appeal Hearing, shall be made to the Presiding Member of the SPA Appeal Hearing and is to be determined by the Tribunal at that time.

Revised Procedural Order and Issues List

27Given the Tribunal’s ruling and the new Merit Hearing date as scheduled, the Parties were directed to work out a revised PO inclusive of a new timetable for deliverables, as well as a “clean” version of the IL by removing issues now disposed of by way of the Funeral Act Decision, and clearly defining the sub-issues to issues two and three, as generally set out and directed with paragraph [21] of this Decision.

28The Parties agreed that they could work cooperatively with one another on the PO, as directed, and requested that the Presiding Member seize herself of a further CMC should one be necessary to address any issues arising from the rulings and directions set out within this Decision, including any disagreement as to the appropriate language of defining the sub-issues to issues two and three. The Tribunal so granted the request and directed that the revised PO is to be filed no later than Friday, August 15, 2025.

Participant Statements

29The Tribunal acknowledged that its Notice Letter set out a ten-day deadline for the filing of documents and materials, and received no further written statements from the Participants who were granted status. Notwithstanding, given the findings made in respect of the separation of the SPA Appeal at the outset of the Funeral Act Hearing, and balance of rulings made within this Decision setting a new Hearing date and directing the filing of a revised PO, the Tribunal determined that the PO shall include a filing deadline provision for any updated written Participant statement. In addressing concerns raised by the Applicant regarding the potential for inconsistent Participant Statements to be made or filed, the Tribunal directed that such issues may be dealt with by way of preliminary motions, which may be brought prior to the commencement, or at the start of the Merit Hearing. To the extent the Town identifies any of the Participants as a lay witness to be called, as was done at the Funeral Act Hearing, the Applicant may address any potential inconsistent statement or credibility concern by way of cross-examination.

The SPA Record: Filing of Documents and Materials

30There remained some confusion as to the documents and materials that would form the “record” for the SPA Appeal, and what materials remained required to be filed. The Tribunal clarified that, given the SPA Appeal was ordered to be heard by way of a separate and subsequent Hearing within the Funeral Act Decision, the SPA Appeal was governed by a new record separate and apart from the record that was formed for the Funeral Act Appeal. In other words, the documents filed for the purposes of the Funeral Act Appeal would not automatically be transferred to form part of the record for the purposes of the SPA Appeal. Any documents or materials that were formerly filed for the purposes of the Funeral Act Appeal, to the extent that the Parties wish to rely on for the purposes of the SPA Appeal, were directed to be refiled along with any additional documents or materials not already filed that the Parties wished to rely on – to the extent they are relevant to the issues in dispute. To this end, the Tribunal directed that the revised PO shall include a timetable for the delivery of any additional witness statements that the Applicant wished to file, along with a deadline for reply statements as would be set out in a PO in the normal course. The filing deadlines for all documents and materials will be set out within the revised PO that the Parties have indicated they will work on cooperatively towards filing.

THE MERIT HEARING

31A four-day Merit Hearing on the SPA Appeal is scheduled to commence on Tuesday, February 10, 2026, at 10:00 a.m. by Video Hearing.

32Parties and/or Participants and/or Observers are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/519389173;

Access code: 519-389-173

33Parties 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

34Persons 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 1-888-299-1889. The access code is: 519-389-173

35Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

ORDER AND DIRECTIONS

36The Hearing of the SPA Appeal is a separate Tribunal proceeding from that of the Funeral Act Appeal, which was heard and disposed of by way of the Funeral Act Decision of Member Clos dated November 7, 2024, and is not a Continuation of that Hearing or proceeding.

37The Witness Statements of Alan Wiebe dated July 25, 2025, and of Diana Petramala dated July 25, 2025, are permitted to be filed by the Town in respect of its case under the SPA Appeal.

38A four-day Merit Hearing in respect of the SPA Appeal has been scheduled to commence on Tuesday, February 10, 2026, at 10:00 a.m. by Video Hearing pursuant to the details and credentials set out at paragraph [31] of this Decision.

39A revised PO inclusive of revised IL pursuant to the Tribunal’s directions set out within this Decision shall be filed by no later than Friday, August 15, 2025. This Member shall remain seized of any issues arising between the Parties in respect of the revised PO and IL.

40This Member is not seized in respect of the balance of the matters that pertain to this proceeding or of the Hearing on the Merits.

41There will be no further notice.

“N. Eisazadeh”

n. eisazadeh

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.