Hello everyone
So what is new with the LPAT/OMB appeal for Waverly Woods/Harbourtown?
Earlier this year we were busy preparing for the Hearing which was scheduled for May 25, 2020. Well we all know what happened: COVID. To prepare for the Hearing, there is an official document called the Procedural Order. This document identifies who may participate in the hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. Typically the appellant (CVFE), municipality (Town of FE), and the applicant (developer) meet and identify the issues and the process they want the Tribunal to include in the Procedural Order for the actual Hearing.
At a PreHearing Conference on March 4, 2020, in preparation for the Hearing which was scheduled for May 25, 2020, the Tribunal decided that CVFE would be granted a one-week extension of the dates for exchange of witness (expert) statements. The new date was Thursday April 23, 2020. What is curious about this date is that the developer's team denied our witnesses (experts) site access in spring/summer of 2019. So in reality, our witnesses (experts) were still doing their site visits in 2020 or waiting for the appropriate time of the season to do them. Why did the developer's team demand witness (expert) statements without or before our experts actually visited the property and saw what the issues really are?
The Town and the developer's team then asked for a Case Managment Conference. Case Management Conferences are scheduled by the Tribunal to organize the Hearing. The usual purpose is for the Tribunal to hear submissions on the content of a Procedural Order and to issue an official Procedural Order at a later date. However on March 20, 2020, the Government of Ontario made an Emergency Order under the Emergency Management and Civil Protection Act that suspended limitation periods and procedural time periods relevant to tribunal proceedings. The suspension was retroactive to March 16, 2020 and as of today is still in place.
At our Case Management Conference on June 12, 2020, the developer’s lawyer asked the Tribunal to proceed with the exchange of witness statements so that the Hearing can proceed as soon as possible once the Emergency Order is repealed. There are several problems with this request as noted by our lawyer David Donnelly. Normally witness statements are provided closer to the Hearing so the witnesses (experts) don't have to prepare twice. Without a Hearing date, this would cost CVFE more money for our witnesses.
The Tribunal agreed with our lawyer's submission that all the timelines have been suspended and there has been no indication of when in-person appearances will be permitted. The Tribunal agreed that ordering the exchange of witness statements at this time would increase the cost to CVFE and would serve no real benefit during the continued uncertainties of the Tribunal scheduling.
As of today, the Emergency Order has been extended to July 22, 2020.
So what was their motivation to request the exchange of witness statements at this time? As mentioned by the developer's lawyer interested in a possible resolution of some issues.
A history of the LPAT process for Waverly Woods/Harbourtown thus far can be found here https://www.omb.gov.on.ca/ecs/CaseDetail.aspx?n=PL180447
* Please donate to help us cover our legal and expert costs. Go to this link https://www.forterievoices.org/donation or send a donation to Community Voices of Fort Erie, P.O. Box 273, Fort Erie, Ontario L2A 2S0. All donations go towards our legal and expert costs. We require experts to testify at the Hearing in areas like Planning, Ornithology, Wetlands, Hydrology, Military History and Built Heritage.
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