Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 3, 2025

CASE NO.: OLT-24-000419

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

Applicant and Appellant: Brian Lewis

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

Description: Amendment to permit alterations to a Settlement Area boundary

Reference Number: OPA 6

Property Address: 1119 County Road 20

Municipality/UT: Kingsville / Essex

OLT Case No.: OLT-24-001196

OLT Lead Case No.: OLT-24-000419

OLT Case Name: Lewis v. Kingsville (Town)

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

Applicant and Appellant: Brian Lewis

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

Description: To permit the adjustment of the Settlement Area Boundary through a land swap

Reference Number: OPA 18

Property Address: 1119 County Road 20

Municipality/UT: Kingsville / Essex

OLT Case No.: OLT-24-000419

OLT Lead Case No.: OLT-24-000419

OLT Case Name: Lewis v. Kingsville (Town)

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

Applicant and Appellant: Brian Lewis

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

Description: To permit the adjustment of the Settlement Area Boundary through a land swap

Reference Number: ZBA-2024-2

Property Address: 1119 County Road 20

Municipality/UT: Kingsville / Essex

OLT Case No.: OLT-24-000420

OLT Lead Case No.: OLT-24-000419

BEFORE:

M.A. SILLS VICE-CHAIR

Monday, the 3rd day of February, 2025

THE TRIBUNAL ORDERS that further to the Decision issued on August 22, 2024, the above matters have been adjourned until receipt of the appeal of County OPA 6;

AND THE TRIBUNAL having received the appeal of County OPA 6 and having consolidated said appeal with the appeals of OPA 18 and ZBA-2024-2;

THE TRIBUNAL ORDERS that the new Procedural Order prepared and agreed to between the Parties attached hereto as Schedule “A” shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on April 8, 2025. The Tribunal has set aside 3 days for the hearing.

“Euken Lui”

EUKEN LUI ACTING 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.

“Schedule A”

PROCEDURAL ORDER

1. 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

2. The video hearing will begin on April 8, 2025, at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is three (3) 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see Attachment 4 for the meaning of these terms).

5. 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.

6. 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.

7. 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.

8. 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

9. 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 January 31, 2025, 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.

10. Expert witnesses in the same field shall have a meeting on or before February 14, 2025 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 February 28, 2025.

11. 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.

12. 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.

13. On or before March 7, 2025, 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.

14. On or before March 7, 2025, 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.

15. On or before March 14, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before March 28, 2025, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by March 21, 2025, after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 28, 2025.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 4, 2025 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.

22. All filings shall be submitted electronically and, if requested by the OLT case-coordinator, 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.

23. 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.

SUMMARY OF DATES

DATE	EVENT
January 31, 2025	Exchange List of Proposed Witnesses (Para. 9)
February 14, 2025	Deadline for Expert Witness Meeting (Para. 10)
February 28, 2025	Deadline for Statement of Agreed Facts and Issues (para. 10)
March 7, 2025	Deadline for Witness Statements, Expert Witness Statements and Participant Statements (paras. 13 and 14)
March 14, 2025	Deadline for advising the Tribunal if all the reserved hearing dates are required (para. 15)
March 28, 2025	Deadline for Visual Evidence (para. 16)
March 21, 2025	Deadline for Reply Witness Statements and Reply Expert Witness Statements (para. 17)
March 28, 2025	Deadline for Joint Document Book (para. 18)
April 4, 2025	Deadline for Hearing Plan (para. 21)
April 8, 2025	Hearing begins

ATTACHMENT 1

LIST OF PARTIES

1. Brian Lewis SV Law 245 Hanlon Creek Boulevard, Unit 102 Guelph, ON N1C 0A1 Eric Davis Email: edavis@svlaw.ca Tel: 519.837.2100 ext. 304

2. The Town of Kingsville The Town of Kingsville 2021 Division Road North Kingsville, Ontario N9Y 2Y9 William Good Email: wgood@kingsville.ca Tel: 519.733.2305

3. County of Essex County of Essex 360 Fairview Ave W Essex, ON N8M 1Y6 David Sundin Email: dsundin@countyofessex.ca Tel: 519.776.6441 ext. 1345

LIST OF PARTICIPANTS

1. Yvonne Schepens Email: yvonelis@hotmail.com Tel.: 519.981.6399

2. Jodie Malott Email: malottjodie@gmail.com Tel: 226.345.7603

3. Stewart Barber Email: stewed2@gmail.com Tel.: 226.979.4024

4. Stephen Higgins Email: steve@puremobilewash.com Tel.: 519.791.6640

ATTACHMENT 2

ISSUES LIST

PLEASE 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 appeal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the appeal will be a matter of evidence and argument at the hearing or the subject of a motion prior to the hearing.

1. Does the proposed ‘swap’ of land use designations to accommodate a proposed Settlement Area Boundary Adjustment on a portion of the Subject Property (hereinafter defined) have regard for matters of Provincial Interest as set out in Section 2 of the Planning Act, namely subsections (a), (b), (h), (j), (n), (o), and (p)?

2. Is the proposed ‘swap’ of land use designations to accommodate a proposed Settlement Area Boundary Adjustment on a portion of the Subject Property consistent with the Provincial Planning Statement 2024, namely sections 2.1.1, 2.1.4, 2.1.6 a)-c), 2.2.1 b) 2.,and c), 2.3.1.1,2.3.1.1.2 a)-b), 2.3.1.3, 2.3.2.1, 2.3.2.2, 3.1.1, 3.6.1, 3.6.8, 3.7.1, 4.1.1,4.1.2, 4.1.8, 4.1.9, 4.2.1, 4.2.2, 5.2.2, 5.2.3,5.2.8?

3. Does the proposed ‘swap’ of land use designations to accommodate a proposed Settlement Area Boundary Adjustment on a portion of the Subject Property conform to the County of Essex Official Plan, namely sections 1.5, a), b), f), q), 2.2 a) - c), 2.4.1 a) - c) and g), 3.2.2 b), h), i), 3.2.5 a), c), e), g) iii), 3.2.6 e), f), 3.2.7, 3.4.3 a), c), 3.4.4 a)?

4. Does the proposed ‘swap’ of land use designations to accommodate a proposed Settlement Area Boundary Adjustment on a portion of the Subject Property conform to the Town of Kingsville Official Plan, as amended, namely sections 1.6 paragraph 2,1.6.2 a), c), and e), 2.1.1 a), b), c), f), h), m), x) and y) 3.1.1 a) 3.6.4.1 a), and 4.2.1 a)?

5. Does the proposed ‘swap’ of land use designations to accommodate a proposed Settlement Area Boundary Adjustment on a portion of the Subject Property maintain the general intent and purpose of the Town of Kingsville Zoning By-law 1-2014 as amended, namely sections 6.7 and 7?

6. Does the proposed the proposed ‘swap’ in land use designations to accommodate a proposed Settlement Area Boundary Adjustment on a portion of the Subject Property represent good land use planning?

7. Is the Appeal of the application regarding an amendment to the County of Essex Official Plan premature and/or is the Appeal improper given the Appellant's formal request that the application to amend the County of Essex Official Plan be deferred sine die?

For the foregoing issues, the term “Subject Property” means the portion of the property known municipally as 1119 County Road 20 (legally described as CON 1 WD PT LOT 17 S PT LOT 18) in the Town of Kingsville owned by Brian Elby Lewis that was the subject of the Official Plan Amendment and Zoning By-law Amendment Applications.

ATTACHMENT 3

ORDER OF EVIDENCE

1. Brian Lewis
2. The Town of Kingsville
3. The County of Essex
4. Brian Lewis, in Reply, if any

ATTACHMENT 4

PURPOSE OF PROCEDURAL ORDER

Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the Case Management Conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

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.