Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 05, 2025
CASE NO(S).: OLT-23-001031
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: 1463292 Ontario Inc.
Subject: Request to amend the Official Plan – Refusal of request
Description: To permit the development of 57 new dwelling units
Reference Number: OPA.1516.03
Property Address: 1020, 1024, 1028, 1032 and 1042 Sixth Line
Municipality/UT: Oakville/Halton
OLT Case No.: OLT-23-001031
OLT Lead Case No.: OLT-23-001031
OLT Case Name: 1463292 Ontario Inc. v. Oakville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: 1463292 Ontario Inc.
Subject: Application to amend the Zoning By-law – Refusal of application
Reference Number: Z.1516.03
Property Address: 1020, 1024, 1028, 1032 and 1042 Sixth Line
Municipality/UT: Oakville/Halton
OLT Case No.: OLT-23-001032
OLT Lead Case No.: OLT-23-001031
PROCEEDING COMMENCED UNDER subsection 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18
Applicant/Appellant: Taylor Rogers
Subject: Heritage Permit Application – Appeal of Refusal
Description: Heritage Permit Application for alteration and removal of cultural heritage
Reference Number: Hp039/23-42.20S
Property Address: 1042 Sixth Line
Municipality/UT: Town of Oakville
OLT Case No.: OLT-24-000240
OLT Lead Case No.: OLT-24-000240
OLT Case Name: Rogers v. Oakville (Town)
PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c. O.18
Applicant/Appellant: Taylor Rogers
Subject: Refusal/conditions of an application to alter a heritage designated property
Description: Heritage Permit Application for alteration and removal of cultural heritage
Reference Number: Hp039/23-42.20S
Property Address: 1042 Sixth Line
Municipality/UT: Town of Oakville
OLT Case No.: OLT-24-000241
OLT Lead Case No.: OLT-24-000240
Heard: January 13 to January 22, 2025, and January 27, 2025, by Video Hearing
APPEARANCES:
Parties
Counsel
1463292 Ontario Inc. (“Appellant”)
L. Johnston M. Nemanic G. Mutlu
Town of Oakville
A. Biggart J. Huctwith
MEMORANDUM OF ORAL DECISION DELIVERED BY G.A CROSER ON JANUARY 27, 2025 AND INTERIM ORDER OF THE TRIBUNAL
Link to Interim Order
INTRODUCTION
1A fifteen-day Hearing on the Merits of the above-noted files commenced on January 13, 2025. The Hearing was initially scheduled to include 18 witnesses; however, on the fourth day, the Tribunal was informed that issues with respect to stormwater management were resolved, so only 16 witnesses would be providing expert opinion evidence to the Tribunal. Each expert had signed the Tribunal’s Acknowledgement of Expert Duty form (“Acknowledgement”).
EXPERT WITNESSES
2On January 22, 2025, an expert witness for the Appellants acknowledged during cross-examination that they had been in contact via e-mail with another expert witness for the Appellants, who had already provided their opinion evidence to the Tribunal. The Appellants’ legal team were not copied on this email exchange. Counsel for the Town of Oakville (“Town”), Mr. Biggart, requested that the email exchange be immediately forwarded for his review before continuing his cross-examination. Mr. Biggart’s position was that the Town was entitled to see what evidence the expert had relied upon or rejected in preparing for oral testimony. Counsel for the Appellants, Ms. Mutlu, declined to forward the emails and cited Rule 9.1 of the Tribunal’s Rules of Practice and Procedure, which states that a Tribunal order for discovery will be made via a motion.
3After the lunch break, further oral submissions were made on whether the emails should be disclosed. The Tribunal floated the idea of forwarding the email exchange to the Member for review and letting the Member decide what, if any, of the email exchange and email attachments should be provided to the Town. Ms. Mutlu rejected this suggestion, citing litigation privilege. Mr. Johnston, also counsel for the Appellants, offered to produce redacted emails, but this suggestion was declined by Mr. Biggart.
4It was decided among the Parties that the Tribunal would stand down until Monday, January 27, 2025. This brief adjournment was granted so that counsel could seek instructions from their respective clients. The Tribunal directed Counsel to appear before the Member at 2 p.m. on Monday, January 27, 2025, to determine how the Hearing would proceed.
STATUS UPDATE
5In advance of the Monday meeting, the Appellants provided the full email exchange between the two experts to the Town and the Tribunal. Based on the content of the emails, Mr. Biggart stated that the Appellants’ appeal should be dismissed with prejudice on the basis of perjury and violations of the Acknowledgement. Mr. Johnston counter-suggested that the Member dismiss the evidence of both witnesses or give little weight to the evidence of the experts, but these were rejected by the Town. The Town’s position was that either the Appellants withdraw their appeal or it would bring a motion to dismiss with the expectation of costs if successful.
6The Tribunal’s mandate requires it to resolve disputes fairly, effectively, and efficiently, and the Member acknowledges that adjourning the Hearing at the halfway point is not the most efficient use of the Tribunal’s limited resources. However, this is a novel matter, and the decision to either dismiss an appeal mid-hearing or strike significant evidence based on the conduct of expert witnesses should not be made lightly.
MOTION TO DISMISS
7The Tribunal adjourned the Hearing and determined that the Motion to Dismiss would proceed in writing. The Parties agreed on the following dates for the exchange of written material:
February 7, 2025: Town to file Notice of Motion to dismiss the Appeal;
February 24, 2025: Appellants to file Responding Motion Record; and
February 28, 2025: Town to file Reply to Responding Motion (if required)
8The Parties agreed that while the Appellants’ expert technically remains under cross-examination and is still subject to the requirements set out in the Acknowledgement, counsel for the Appellants will be in communication with said expert for the sole purpose of preparing an Affidavit.
9The Parties were asked to canvas mutually agreeable dates off-line so that the remainder of the Hearing could be scheduled in the Tribunal’s calendar. This will act as a placeholder should the Tribunal determine that the Hearing on the Merits of this matter should proceed.
INTERIM ORDER
10THE TRIBUNAL ORDERS THAT:
The Motion to Dismiss directives set out above are so ordered; and
The Parties are required to provide available dates to continue the hearing to the Case Coordinator.
11No further notice is required.
12The Member is seized.
“G.A. Croser”
G.A. CROSER
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.