CITATION: Craft et al. v. City of Toronto et al, 2019 ONSC 1151
DIVISIONAL COURT FILE NO.: 723/18
DATE: 20190215
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
CRAFT ACQUISITIONS CORP. and P.I.T.S. DEVELOPMENT INC.
Applicants
– and –
CITY OF TORONTO, CANADIAN NATIONAL RAILWAY COMPANY and TORONTO TERMINALS RAILWAY COMPANY LTD.
– and –
LOCAL PLANNING APPEAL TRIBUNAL
Respondents
– and –
HALTON COALITION, CITY OF MISSISSAUGA, CITY OF HAMILTON, CLUBLINK CORP. ULC and CLUBLINK HOLDINGS LTD., GREATER OTTAWA HOME BUILDERS’ ASSOCIATION AND ONTARIO HOME BUILDERS’ ASSOCIATION, TORONTO PORT AUTHORITY
Proposed Intervenors
Ira Kagan, Paul DeMelo, David Winer and Kristie Jennings, for the Applicants
B. Heisey for Respondents, Canadian National Railway Company and Toronto Terminals Railway Co. Ltd.
B. O’Callaghan, Kelly Matsumoto, and Kiersten Franz for Respondent, City of Toronto
S. Floras for the Local Planning Appeal Tribunal
B. van Niejenhuis for proposed Intervenor Halton Coalition (Corp. of Oakville, Municipality of Halton, Halton Hills, and Town of Milton)
A. Maxwell and L. Magi proposed Intervenor, City of Mississauga
D. Earthy and J. Wice for proposed Intervenor, City of Hamilton
M. Flowers and K. Gossen for proposed Intervenor ClubLink Corp and ClubLink Holdings Ltd.
M. Polowin and R. Aburto for proposed Intervenor Greater Ottawa Home Builders’ Association and Ontario Home Builders’ Association
R. Swan, A. Jeanrie, and I. Thompson for proposed Intervenor Toronto Port Authority
HEARD at Toronto: February 13, 2019
THORBURN J.
OVERVIEW
[1] At the Local Planning Appeal Tribunal (“LPAT”) hearing in respect of File number PL80210, LPAT advised that the appeal would proceed by way of an oral hearing and LPAT would be calling land use planning expert witnesses.
[2] It was agreed that there was significant ambiguity in the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23 Sch.1 (“the Act”) in respect of LPAT’s power to call evidence. LPAT therefore stated a case for the opinion of the Divisional Court pursuant to its right to do so under the Act.
[3] Several other upcoming LPAT hearings including one involving the Toronto Port Authority, have not proceeded pending the determination of the Stated Case in this proceeding.
[4] The parties seek clarification of rights in respect of section 38 appeals from Planning Act decisions made by a municipality or approval authority in respect of an official plan or zoning by-law or the failure of a municipality to make a decision in respect of an official plan or zoning by-law, except for an appeal,
(a) that is in respect of a new decision that the municipality or approval authority was given an opportunity by the Tribunal to make, where the Tribunal determined that the decision is inconsistent with a policy statement issued under subsection 3 (1) of the Planning Act, fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan;
(b) where the Tribunal has received a notice from the Minister responsible for the Planning Act, in accordance with the Planning Act, that a matter of provincial interest is, or is likely to be, adversely affected by the plan or by-law or the parts of the plan or by-law in respect of which the appeal is made; or
(c) that is an appeal under subsection 22 (7) or 34 (11) of the Planning Act in respect of the failure of a municipality to make a new decision that it was given an opportunity by the Tribunal to make.
[5] The parties agree that the legislation is not clear as to whether evidence may be adduced on a Planning Act appeal or whether the hearing must proceed solely on the record of a municipality. The power of the Tribunal to call or compel witnesses is also unclear.
[6] The Stated Case has been scheduled before a panel of the Divisional Court to answer the following three questions:
(1) Since the terms “examine” and “cross-examine” have different meanings under the Statutory Powers Procedure Act, does the word “examine” prevent a party from cross-examining a witness?
(2) Do the principles of natural justice and procedural fairness allow the parties on a hearing pursuant to sections 38(1) and (2) of LPAT, an opportunity to ask questions of a witness called and examined by the Tribunal? If yes, are their questions limited to matters arising from questions asked by the Tribunal?
(3) Where the Tribunal directs production of affidavits pursuant to subsection 33(2)(c), does the limitation in section 42(3)(b) of the LPAT Act prevent the cross-examination of an affiant before a hearing and the introduction of a cross-examination transcript in a hearing? If not, can the evidence obtained in cross-examination be referred to in submissions in a hearing?
[7] The City of Toronto (“the City”) will ask the panel to address a fourth question, which is:
Does the LPAT have jurisdiction to require the parties to provide additional evidence to the Tribunal? (The City cites s. 33(2) of the LPAT Act, for an appeal under s. 38(1), given the more restricted nature of appeals under ss. 38(1) and (2), as set out in Rule 26 of the LPAT’s Rules of Practice and Procedure and O. Reg. 102/18).[^1]
[8] The City takes the position that this fourth question is a threshold question that must be answered in order to answer the other three questions. The Applicants disagree with this assertion and they object to the City’s request to add a fourth question not posed by LPAT.
[9] The Stated Case will be heard for two hours on the afternoon of April 24th and for a full day on April 25th, 2019. The panel will decide how to answer the three questions and whether the fourth question is a threshold issue that must be addressed in order to answer the other three questions.
[10] The appeal of PL80210 is scheduled to proceed before the LPAT on May 27, 2019. An answer to the questions raised in the Stated Case must therefore be rendered before then.
[11] Six parties seek leave to intervene in this proceeding. The sixth, Toronto Port Authority, seeks to be added as a party and only if that request is not granted, seeks to be added as an intervenor.
[12] This motion is to decide:
a. Who can intervene and or be added as a party and on what terms;
b. Timing for the filing of evidentiary records, authorities and facta; and
c. Time allotted for oral submissions, if any.
[13] At the outset of this hearing, all parties took the position that they did not want to await the filing of the Responding party’s material and the parties’ facta before hearing these motions to decide whether to grant intervenor status. As such, the positions of the parties have not yet been finalized.
THE POSITIONS OF THE PARTIES
[14] The Applicants, Craft Acquisitions Corp. and P.I.T.S. Development Inc. (together referred to as “Craft”) do not oppose the request of the six proposed intervenors to allow them to participate, subject to the following concerns:
a. The LPAT Appeal scheduled to commence on May 27, 2019 must not be delayed as this would cause the Applicants prejudice in respect of the $2 billion proposal;
b. Several other appeals have also been adjourned pending the outcome of this Stated Case and they too would be delayed if this case were delayed; and
c. Craft opposes the request of Toronto Port Authority (“Port”) to be granted party status, as distinct from the request for intervenor status of the other five proposed intervenors. (Port seeks party status in order to obtain independent appeal rights from the decision on this Stated Case.) Craft does not oppose Port’s alternative request to be added as an intervenor.
[15] The Respondent, City does not oppose the proposed intervenors being granted intervenor status or their request to file written material as set out in their motion records or make brief oral submissions.
[16] The City disputes Port’s contention that this Court has no jurisdiction to address the further question suggested by the City, and disputes its request to respond to this issue. The City points out that Port was not a party to the hearing and as an intervenor with no party status, ought not to be permitted to oppose the formulation of the Stated Case.
[17] The City points out that Port’s position is that the addition of the fourth question will prejudice its rights if it is decided that the LPAT does not have the jurisdiction to require the parties to provide additional evidence to the Tribunal. It is the outcome of the question not the fact that the question is added to the Stated Case that they take issue with.
[18] The Respondents, Canadian National Railways and the Toronto Terminals Railway (together referred to as “CNR”) do not oppose the proposed intervenors being granted intervenor status given that this Court has now allocated an additional two hours (beyond the one day originally allocated for this matter). CNR also seeks to ensure that a timetable is set to ensure the timely delivery of written material.
[19] LPAT is a statutory party to this proceeding pursuant to section 36(2) of the Act. LPAT conducts and determines all appeals relative to land use planning disputes and municipal governance of land use, and has chosen to state this case at the first hearing in which its interpretation has been called into question, confirming its importance to municipal and planning litigation in the province.
[20] LPAT does not object to the proposed intervenors’ request for intervenor status provided the hearing can be heard in the timeframe provided, and limits are placed on the length of materials filed and oral submissions.
POSITION OF THE PROPOSED INTERVENORS
Halton Coalition
[21] Halton Coalition seeks leave to file a 20 page factum, a book of authorities if necessary, and a supplemental record that contains the affidavits filed on this motion. Halton also seeks to be granted 30 minutes to make oral submissions.
[22] Unlike the City of Toronto, the members of Halton Coalition consist of lower-tier Oakville and upper-tier Region of Halton. Halton Coalition claims that as a two-tier municipal structure, the issue will affect the Halton Coalition members in a way that is different from single-tier municipalities like Toronto.
[23] Two-tier municipalities are routinely subject to appeals under the Act. In two-tier municipalities, power and responsibility is shared among the municipality, the region, and the province while in cities like Toronto, responsibility is either municipal or provincial.
[24] In a two-tier municipality for example, a lower-tier municipality’s official plan is subject to approval by the upper-tier municipality acting as approval authority. The upper-tier regional authority may approve, reject or modify it. Lower-tier municipalities that made submissions to the upper-tier municipality can appeal the upper-tier municipality’s approval, rejection or modification of the lower-tier municipality’s official plan, subject to procedural restrictions set out in the Act.
[25] If an official plan is exempt from approval pursuant to a lower-tier municipality’s official plan, an upper-tier municipality can appeal that approval authority. However, if the official plan is an upper-tier municipality or single-tier municipality, the approval authority with a right to appeal is the Minister. As such, upper-tier municipalities can act as both approval authority with their rights of appeal and as proponents of an official plan that may be subject to appeals to which they are respondents.
[26] Both upper and lower-tier municipalities can therefore be subject to appeal procedures to which they are both parties.
[27] Halton Coalition states that it is likely to make a useful contribution given its lengthy and in-depth engagement in the development and passage of the legislation, and the particular concerns of 6.6 million residents who reside in two-tier municipalities respecting this legislation.
[28] Halton Coalition intends to address the legislative intent behind sections 38-42 of the Act, the context of this Stated Case, and the proper approach to standard of review analysis.
City of Hamilton
[29] The City of Hamilton (“Hamilton”) seeks to deliver a factum and make short oral submissions.
[30] Hamilton has nine active LPAT appeals which will be directly affected by the outcome of this Stated Case. In those cases, Hamilton has taken the position that LPAT’s Rules requiring parties to file fresh affidavit evidence is contrary to the Act and Regulations.
[31] Hamilton’s primary interest is in advocating for the increased level of deference granted to municipalities by the legislative changes enacted in Bill 138, which Hamilton says, envisage a true appellate review of Council’s initial decision in official plan and zoning matters, not a hearing de novo.
[32] Hamilton’s submissions will focus on the rights of direct examination and cross-examination in the context of the two-stage appeal process set out in sections 38-42 of the Act, the standard of review in the Planning Act, and reference to Hansard.
[33] Hamilton points out that since there has been no argument or decision on the issues raised by the Stated Case, it is not clear where there are common approaches to the interests, priorities or issues amongst the proposed intervenors.
City of Mississauga
[34] The City of Mississauga (“Mississauga”) seeks leave to file a factum and book of authorities if required and the affidavit filed on this motion. Mississauga also seeks to present oral argument.
[35] Mississauga is the sixth largest municipality in Canada. It regularly processes complex land use planning applications and is frequently required to respond to appeals of City Council’s planning decisions which are not made to the LPAT.
[36] Mississauga has a significant demonstrated interest in this legislative reform and was actively involved in provincial consultations in respect of the changes to the planning appeals system. It filed numerous written submissions as part of the consultative process that lead to the adoption of the Act and made oral submissions to the Standing Committee on Social Policy. Mississauga sought increased deference to Council’s planning decisions and to reduce the length and complexity of planning appeals by restricting section 38 appeals to a review of the record of the material that was before Council.
[37] Mississauga claims it therefore has a real, substantial and identifiable interest in the legal interpretation of section 33 and 42 of the Act particularly in the context of section 38 appeals and should be granted intervenor status.
ClubLink Corp and ClubLink Holdings Ltd.
[38] ClubLink Corp and ClubLink Holdings Ltd (“ClubLink”) seek to file affidavit evidence, a factum and make brief oral submissions.
[39] ClubLink is Canada’s largest owner and operator of golf clubs with 33 locations in Ontario and Québec. They own the land which is the site of the Glen Abbey Golf Club and an adjacent property that has no association with the golf club. The Glen Abbey property is approximately 232 acres.
[40] ClubLink submitted an application to the Town of Oakville to permit the redevelopment of the golf course and replace it with a mixed-use development of 3,222 residential dwelling units, 127,000 square feet of office and retail space and a series of parks and open spaces that would make up approximately 54% of the area.
[41] The Town Council unanimously refused ClubLink’s Official Plan Amendment and Zoning By-Law amendment applications.
[42] ClubLink appealed the decision to LPAT. A 20-week hearing has been scheduled to commence in July of 2020 where the parties will be able to call witnesses and cross-examine witnesses called by other parties.
[43] ClubLink has an interest in the subject matter as the decision will have a direct bearing on the preparation, conduct and duration of the LPAT hearing of its four appeals.
[44] ClubLink takes the position that section 10.1 of the Statutory Powers Procedure Act, and the principles of natural justice and procedural fairness dictate that parties should be entitled to call evidence and cross-examine witnesses called by others. Whether cross-examination should occur before and/or during a hearing should be within the discretion of the LPAT.
[45] If ClubLink is not allowed to adduce evidence and cross-examine on evidence tendered by others, it will be adversely effected and much needed evidence will not be before the LPAT.
[46] The questions of law to be addressed in this Stated Case are almost identical to questions of law to be determined by the LPAT in ClubLink’s appeals. Lastly, ClubLink asserts that its inclusions as an intervenor will not cause undue delay or prejudice and none of the parties to the Stated Case object to its intervening.
The Ontario Home Builders’ Association and Greater Ottawa Home Builders’ Association
[47] The Ontario Home Builders’ Association (“OHBA”) and Greater Ottawa Home Builders’ Association (“HBA”) together, seek an order permitting them to file a joint factum no more than 10 pages long, a book of authorities, and oral submissions that will not exceed twenty minutes.
[48] The OHBA and HBA represent a significant number of builders, developers, renovators, designers, trade contractors, suppliers and financial institutions.
[49] The OHBA and HBA claim they have a separate and distinct interest and perspective.
[50] The OBHA has built over 700,000 homes since 2007. The OBHA are key stakeholders that appear regularly before the LPAT (formerly the Ontario Municipal Board). Their members have an interest in evidence-based decision-making.
[51] The HBA seeks to intervene only in respect of the third question: whether cross-examination of an affiant before a hearing and the introduction of a cross-examination transcript in a hearing is permitted. The OBHA takes the position that cross-examination should be permitted and that section 42 of the Act should be interpreted to permit it.
[52] The HBA takes the position that section 42(3) of the LPAT does not preclude cross-examination, introduction of transcripts, nor does it fetter the Tribunal’s powers to control its own process.
Toronto Port Authority
[53] The Toronto Port Authority seeks party status and or intervenor status. Port is a federal enterprise established pursuant to the Canada Marine Act, S.C. 1998, c. 10. Port owns and operates the Billy Bishop airport, the Port of Toronto and other marina. As such, it is involved in municipal zoning and regulatory matters that can lead to appeals before the LPAT.
[54] Port has an appeal before the LPAT where it challenges a city by-law. As part of its appeal, Port filed an affidavit from a professional land use planner. The City has not objected to the filing of this affidavit. If this Court answers the City’s further questions, the answer to the City’s further question: Does LPAT have jurisdiction to require the parties to provide additional evidence to the Tribunal?” may have a serious effect on Port.
[55] Port takes the position that section 42 of the Act and section 3 of Regulation 102/18 do not prevent a party from cross-examining a witness called by the LPAT. Questions should be limited to matters arising from questions asked by the LPAT. However, LPAT should be authorized to allow cross-examination at the hearing if it is most efficient or in the interests of justice. Moreover section 42 does not prevent a party from cross-examining an affiant before a hearing or introducing a cross-examination transcript.
[56] Port seeks party status to enable it to appeal a decision of this court in respect of the fourth question.
[57] Port submits that if it is not permitted to appeal this Stated Case as a party, its hearing before LPAT will proceed on the basis of the answer given by this Court to the fourth question. If Port disagrees and wishes to appeal the decision of this Court in respect of its answer to the fourth question, Port must await the outcome of its LPAT hearing, appeal that decision to the Divisional Court, assert that the question was wrongly answered, and if the Divisional Court does not agree, seek to appeal that decision,
[58] This would cause undue delay and prejudice for Port whose case is already waiting for the decision of this court in order to commence its own LPAT proceeding. The better course, Port suggests, is to have a final determination of the answer to the fourth question before resuming any of the LPAT proceedings that have been adjourned.
THE RULE IN RESPECT OF INTERVENORS
The Rule
[59] Rule 13 provides as follows:
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. R.R.O. 1990, Reg. 194, r. 13.01 (1).
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. R.R.O. 1990, Reg. 194, r. 13.02; O. Reg. 186/10, s. 1.
13.03 (1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them. R.R.O. 1990, Reg. 194, r. 13.03 (1); O. Reg. 292/99, s. 4; O. Reg. 186/10, s. 2; O. Reg. 82/17, s. 16.
Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.
[60] An intervenor is not a party. An intervenor cannot therefore introduce new issues or claim new relief; it is limited to addressing issues already contained in the pleadings. As noted by Stratas J.A. in Tseil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174,
Intervenors are guests at a table already set with the food already out on the table. Intervenors can comment from their perspective on what they see, smell and taste. They cannot otherwise add food to the table in any way.
The Factors to be considered in deciding whether to grant Intervenor Status
[61] The factors to be considered in deciding whether to allow a person or entity to intervene are:
i. the nature of the case;
ii. the issues involved;
iii. the likelihood that the proposed intervenor can make a useful and distinct contribution to the resolution of the appeal not otherwise offered by the parties; and
iv. whether the intervention will cause injustice to the parties or undue delay.
(R. v. Finta, 1993 132 (SCC), [1993] 1 S.C.R. 1138 at para. 5 and Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.) at p. 167.)
What Constitutes a “Useful and Distinct Contribution”?
[62] A contribution is not useful if it simply repeats issues and arguments put forward by the parties although some overlap may be permitted. (Halpern v. Toronto (City) Clerk (2000), 2000 29029 (ON SCDC), 51 O.R. (3d) 742 at para. 18 (Div. Ct.).)
[63] There must be a real, substantial and identifiable interest in the subject matter, and an important and a distinct perspective to be articulated that is different from that of the parties. A well-recognized group with special expertise and a broadly identifiable membership base may be better able to provide a useful and distinct contribution to the resolution of the matter. Intervention is especially helpful where the interest of the more vulnerable are at stake and the outcome will be beyond the private rights of parties. (Reference re Workers’ Compensation Act 1983 (Nfld), [1989] 2 SCR 335, 1989 23 (SCC) at paras. 11-12.)
[64] The Ontario Court of Appeal has recognized the desirability of having “all of the relevant possibilities brought to its attention, including submissions on the impact of its judgment, not only on the parties, but on those not before the court.” This is true even where only certain aspects of the ultimate decision may bear on the rights at issue and where the intervenor may bring only a slightly different perspective to be considered. (Childs et al v. Desormeaux, [2003] OJ No 3800 (QL), 2003 47870 (OCA) at para 15.)
[65] The fact that the proposed intervenor is not indifferent to the outcome of the appeal is not a reason to deny it the right to intervene. (Oakwell Engineering Ltd. v. Enernorth Industries Inc., [2006] O.J. No. 1942 (C.A.) at para. 9.) However, a secondary consideration to the main considerations when there are multiple applicants for leave to intervene, the court should take into account the general desire that there should, in the end result, be some balance between the positions to be advocated when granting intervenor status. (Trinity Western University v. Law Society of Upper Canada, 2014 ONSC 5541.)
ANALYSIS AND CONCLUSION
[66] It is agreed that the four factors have been addressed in this case:
a. The “nature of the case” and “issues involved” factors are satisfied as important planning issues have been raised which engage both the public interest, public policy and the rights and interests of significant players in the real estate area: those issues include how LPAT proceedings are to be conducted and whether or not evidence may be called at those hearings. This will be significant in terms of how parties conduct their cases before the LPAT and what powers the LPAT may have to order evidence to be adduced;
b. The “likelihood that the proposed intervenor can make a useful and distinct contribution” factor is met as, in addressing these important issues, it is useful to hear from distinct groups with expertise and experience. Some of the proposed intervenors made submissions in respect of the proposed legislation. All of the proposed intervenors represent significant groups and distinct interests as outlined above. Moreover, those groups are well balanced: on the one hand municipalities, and on the other, owners and operators of businesses who have appeared regularly before the LPAT or its predecessor the OMB; and
c. No injustice or undue delay would result from allowing the proposed intervenors to file short submissions and make brief oral submissions to the court as additional time has been allotted to allow them to make brief written submissions and the parties agree that this will not unduly delay the disposition of the Stated Case.
[67] As such, all six parties should be permitted to intervene in this important case to file material and make brief oral submissions where appropriate.
Should Port be permitted to be added as a Party?
[68] For the reasons set out below, I do not agree that Port should be made a party rather than an intervenor in this proceeding.
[69] Rule 13 of the Rules of Civil Procedure clearly states that on a motion by a party seeking leave to intervene as a party, the court “shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding”.
[70] I am aware that,
a. It is fortuitous that this proceeding was the one in which LPAT sought a Stated Case;
b. Port’s LPAT proceeding is awaiting the outcome of this Stated Case occasioning delay for Port; and
c. Port has an interest in the outcome in respect of how LPAT section 38 appeals will be conducted.
[71] However, these legitimate concerns on the part of Port cannot obviate the requirement for me to consider “whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding”.
[72] The parties to this proceeding are Craft, the City and CNR. There is no question that, should Port appeal the decision of this Court where none of the parties has elected to do so, that would unquestionably delay the determination of their rights as the LPAT hearing could not proceed pending the decision on appeal. The project at issue in this case is a $2 billion proposal to create a parkland that would be held up notwithstanding the interest of any of the parties.
[73] For these reasons, Port is granted intervenor status but not party status.
CONDITIONS APPLICABLE TO THE INTERVENTIONS
[74] Usually when intervenor status is granted, the intervenor is permitted to make limited oral submissions. However, it is ultimately up to the panel hearing the judicial review application to determine how much time they will give the parties and intervenors to make submissions. By that point, the panel will have all of the facta and be able to make a more informed decision as to the need for, and benefit to be gained from, oral submissions by the intervenors. Nothing here is intended to interfere with the panel’s discretion.
[75] With this in mind, the following conditions are imposed on each of the intervenors:
a) The intervenors will not adduce any evidence or raise any new issues save for the affidavits, evidence and issues raised on these motions;
b) The factum of each intervenor will be limited to no more than 20 pages;
c) The Applicants, Craft will file their Application Record and factum on March 22, 2019. The Respondents, City and CNR will file their Responding Record and factum on April 5, 2019. LPAT will also file its material on April 5, 2019. The intervenors will file their material by April 12, 2019, and Craft may file a reply factum if necessary, on April 19, 2019;
d) The intervenors will have two hours among them to make any oral submissions which, on the request of all six intervenors, is to be allocated amongst themselves;
e) The three intervenors who represent or are municipalities (Halton Coalition, Hamilton and Mississauga) with make their oral submissions after the Applicants has made its oral submissions. The three remaining intervenors (ClubLink, OHBA and Port) will make their oral submissions after the Respondent and LPAT have made their oral submissions;
f) The intervenors will make every reasonable effort to avoid duplication of submissions of others;
g) Service of all materials will be done electronically; and
h) None of the intervenors will seek costs.
___________________________ thorburn J.
Date of Release: February 15, 2019
CITATION: Craft et al. v. City of Toronto et al, 2019 ONSC 1151
DIVISIONAL COURT FILE NO.: 723/18
DATE: 20190215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CRAFT ACQUISITIONS CORP. and P.I.T.S. DEVELOPMENT INC.
Applicants
– and –
CITY OF TORONTO, CANADIAN NATIONAL RAILWAY COMPANY and TORONTO TERMINALS RAILWAY COMPANY LTD.
– and –
LOCAL PLANNING APPEAL TRIBUNAL
Respondents
– and –
HALTON COALITION, CITY OF MISSISSAUGA, CITY OF HAMILTON, CLUBLINK CORP. ULC and CLUBLINK HOLDINGS LTD., GREATER OTTAWA HOME BUILDERS’ ASSOCIATION AND ONTARIO HOME BUILDERS’ ASSOCIATION, TORONTO PORT AUTHORITY
Proposed Intervenors
REASONS FOR DECISION
THORBURN J.
Date of Release: February 15, 2019
[^1]: Pursuant to Rules 26.12(e) and 26.15(c), the parties must provide an Appeal Record that,
... may contain a copy of any document or part of any document that is contained in the municipal record or, in the alternative to avoid duplication, the Appellant may reference any document or part of a document contained in the municipal record that they intend to rely on. At a minimum, the appeal record shall contain:
e) an affidavit by a person, or persons, setting out the material facts associated with the application, and where the person can be qualified to offer opinion evidence on a matter, that person’s opinion with respect to the matters in issue in relation to the appeal of the decision or non-decision, along with a signed copy of the acknowledgment form attached to the Rules, and the person’s résumé supporting their qualification to present opinion evidence.
Rule 26.24 sets out the Tribunal’s power to require a party to produce documentation or a witness as follows:
Requiring the Attendance of a Witness
In addition to its other powers in the conduct of a hearing, the Tribunal may require the attendance at the hearing of any person whose affidavit or declaration formed part of the appeal record or the responding appeal record, or whose report or submission formed part of any record filed, and the Tribunal may examine any such person(s). The Tribunal may also require that any party produce documentation that the Tribunal may find relevant, and to appear before the Tribunal to answer any questions related to that documentation.