Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 22, 2021
CASE NO(S).: PL210040, PL200150
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1085 Clearview Limited Partnership Appellant: 1246235 Ontario Inc. Appellant: 1602211 Ontario Ltd. Appellant: 2084 Lakeshore Holdings Ltd. Et Al; and others Subject: Proposed Official Plan Amendment for Burlington New Official Plan Municipality: City of Burlington OLT Case No.: PL210040 OLT File No.: PL210040 OLT Case Name: 1085 Clearview Limited Partnership v. Halton (Reg. Mun)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Sofina Foods Inc. Appellant: Wal-Mart Canada Corp. Appellant: Reserve Properties Ltd. Appellant: Vrancorp Group; and others Subject: Proposed Official Plan Amendment No. 119 Municipality: City of Burlington OLT Case No.: PL200150 OLT File No.: PL200150 OLT Case Name: Sofina Foods Inc. v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Wal-Mart Canada Corp. Appellant: Burlington Healthcare Centre Inc. Appellant: Better Life Development Appellant: Emshih Developments Inc.; and others Subject: By-law No. 2020.418 Municipality: City of Burlington OLT Case No.: PL200150 OLT File No.: PL200151
Heard: October 15, 2021 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Regional Municipality of Halton | K. Yerxa |
| City of Burlington | A. Biggart B. Hurley |
| Appellants and Added Parties listed in Attachment 1 |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. TOUSAW ON OCTOBER 15, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This further Case Management Conference (“CMC”) was convened for two related files being heard together for case management purposes:
- PL200150, being Official Plan Amendment 119 (“OPA”) and Zoning By-law Amendment No. 2020-418 (“ZBA”) passed by the City of Burlington (“City”) on January 30, 2020; and
- PL210040, being a new Official Plan (“OP”) adopted by the City on April 26, 2018 and modified and approved by the Regional Municipality of Halton (“Region”) on November 30, 2020.
2The OPA and ZBA raise matters of an urban growth centre and major transit station area arising from a planning study during Interim Control By-law No. 2019-10 (“ICBL”). Similar matters are raised again in appeals to the new OP. The ICBL remained in effect due to the appeals lodged against the ZBA.
3With today’s Decision, the ICBL now only remains in effect in the specific area to which the ZBA applies, being the vicinity of the Burlington GO Station. The Tribunal had granted previous motions for specific properties that resulted in the release of the ICBL, and with today’s Decision, the “freeze” is lifted for all remaining areas under the ICBL except that covered by the ZBA.
Parties and Participants
4The Tribunal, with consent of the Parties, granted two changes to the list of Parties and Participants as follows.
5Daintry Klein was previously granted Added Party status to Appeal 22 on behalf of an unincorporated group called “We Love Millcroft”. Ms. Klein requested that her name be replaced by the newly incorporated group, now called Millcroft Greenspace Alliance.
6Kirk Robinson, representing the group “Millcroft Coalition Against Development”, requested that his status as Added Party be changed to Participant.
7Counsel for Metrolinx advised that its Added Party status to the OPA and ZBA was absent on the Attendance List from the previous CMC. That error is now corrected in today’s Attachment 1. Any further updates or corrections to Attachment 1 may be directed to the Case Coordinator.
HEARING PLAN
8The City advised that, thanks to constructive dialogue with the Parties, a final Issues List (“IL”) is nearing completion and a master Procedural Order (“PO”) is anticipated to set out the hearing phases, with each phase requiring its own PO in due course. The PO will anticipate that the current “hearing together for case management purposes” will be extended to each phase of hearing on the merits. A further CMC was requested to finalize the master PO and potentially the Phase 1 PO (with exchange dates to be determined).
9Recognizing that further discussion will occur, the Parties consented to the City’s request to submit the PO in writing for the Tribunal’s consideration, and in the unlikely event of outstanding process issues, a CMC be held by video conference.
10The Tribunal directed as follows:
- The City will file the PO for approval in writing, on consent of the Parties, by Friday, November 26, 2021. The request may also suggest a timeframe for a future CMC as may be appropriate for the next phase, and such CMC may be scheduled by the Tribunal’s Written Decision.
- In the event that consent is not reached, a CMC is scheduled for 10 a.m. on Tuesday, November 30, 2021 as set out below. No further notice will be given.
11Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/190450245
Access Code: 190-450-245
12Parties and 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 GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
13Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
14Individuals 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 video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
MOTION
15The City filed a motion seeking to release the “freeze” on all remaining affected lands under the ICBL, except for those lands subject to the ZBA under appeal. The Parties accept that the indirect route to releasing the freeze on certain lands is appropriate in these circumstances. Although the ICBL is not before the Tribunal, the ZBA – arising from the study completed during the ICBL period – is before the Tribunal. An Order of finding on the ZBA in turn invokes a release of the ICBL through s. 38(6.1) of the Planning Act (“Act”).
16No responses were filed in opposition to the motion. Emshih Developments Inc. (“Emshih”) filed a response in support of the City Motion as it includes and applies to four properties in Emshih’s ownership. Emshih advised that it takes no position on the Motion in relation to its property and appeal within the area affected by the ZBA.
17The City sought relief from the Tribunal’s notice requirements, having served the Motion one day late. Metrolinx advised that it did not receive notice. Crystal Homes, as an appellant to the new OP only, did not receive notice and advised that other Appellants to only the OP may also not have been notified. The City noted that, although these matters are being heard together for case management purposes, this Motion hearing applies only to the ZBA.
18With the Parties’ consent, the Tribunal agreed to proceed with the Motion, and would canvass the Parties again before rendering a ruling on notice. Having received no objection at the end of the proceeding, the Tribunal granted the City’s request on Notice of Motion.
19The Motion Record was marked as Exhibit 1, and the Tribunal qualified Alison Enns, a Registered Professional Planner (“RPP”) employed by the City to provide opinion evidence in land use planning via the written affidavit.
20As noted earlier, of importance here is the subtle difference between the Motion request and the Decision herein. The City requests “an order removing certain lands from the area covered by City of Burlington Interim Control By-law No. 10-2019.” However, the Tribunal finds, with the agreement of the Parties, that such direct order is not available under s. 38 of the Act.
21The ICBL itself is not before the Tribunal. What is before the Tribunal is a ZBA passed by the City following a study that was commissioned as required for an ICBL. With appeals lodged against the ZBA, the ICBL remains in effect until an order is rendered on the ZBA, as follows (emphasis added):
38(6.1) If the period of time during which an interim control by-law is in effect has expired and the council has passed a by-law under section 34 consequent on the completion of the review or study within the period of time specified in the interim control by-law, but there is an appeal of the by-law under subsection 34(19), the interim control by-law continues in effect as if it had not expired until the date of the order of the Tribunal or until the date of a notice issued by the Tribunal under subsection 34(23.1) unless the interim control by-law is repealed.
22Under s. 38(6) of the Act, one of the ways that prior zoning returns in force is where “the extent of the area covered” by the ICBL “is reduced” (emphasis added):
38(6) Where the period of time during which an interim control by-law is in effect has expired and the council has not passed a by-law under section 34 consequent on the completion of the review or study within the period of time specified in the interim control by-law, or where an interim control by-law is repealed or the extent of the area covered thereby is reduced, the provisions of any by-law passed under section 34 that applied immediately prior to the coming into force of the interim control by-law again come into force and have effect in respect of all lands, buildings or structures formerly subject to the interim control by-law.
23Thus, the nuance here agreed by the Parties is that if the Tribunal renders an order on the ZBA as to whether or how it relates to areas outside the ZBA area, then the ICBL will statutorily cease for such areas. Put another way, the Tribunal may make a finding by Order on the ZBA which has the effect of releasing properties from the ICBL pursuant to s. 38(6.1) of the Act.
24This Motion is similar to others granted by the Tribunal for properties affected by the continued ICBL. The ICBL affects a large area of the City but its resulting ZBA arising from the study affects only a small land area in the vicinity of the Burlington GO Station. These factors result in many properties that are seeking development approvals to remain “frozen” by the ICBL, despite not being affected by the implementing ZBA. The City clarified here that its Motion does not include properties already released from the ICBL by previous Tribunal Decisions.
25Ms. Enns, through her affidavit and supporting documentation, supports releasing all remaining properties affected by the ICBL that lie outside of the area affected by the ZBA. Such result would release the ICBL from a large area of central Burlington extending from the lakefront to Queen Elizabeth Way, except for the area affected by the ZBA.
26Ms. Enns confirms that the area sought for release is outside of, and not affected by, the ZBA. She also attests that releasing the ICBL as requested will enable development to proceed under the zoning requirements in effect when the ICBL was originally passed, which continue to conform with local and provincial policies applicable to the City.
27On Ms. Enns’ evidence, the Tribunal finds that the ZBA does not apply to the area requested for release from the ICBL, and that such finding satisfies all statutory tests: suitable regard for s. 2 of the Act; consistent with the Provincial Policy Statement, 2020; conforms with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020; and conforms with the Region and City’s Official Plans.
28On the uncontested planning evidence of Ms. Enns, and on the consent of the Parties, the Tribunal granted the Motion, as set out below. The Tribunal accepts that while the ICBL is not before the Tribunal, it may make a finding by Order on the ZBA which has the effect of releasing a property from the ICBL pursuant to s. 38(6.1) of the Act. In this case, the ZBA has no effect on the requested area and the provisions of prior zoning will resume in effect upon this Decision. The Tribunal relies in part on its broad powers under its enabling legislation, including s. 9(1) of the Ontario Land Tribunal Act and s. 23(1) of the Statutory Powers Procedure Act.
29For clarity, the Tribunal is not approving the ZBA in any way, but rather is issuing an Order of finding on the ZBA for the purpose of invoking a release of the ICBL from certain lands. Such finding is that the ZBA does not apply to the area set out in this Motion. The resulting reinstatement of prior zoning is conducted by the Act itself.
30At the close of today, counsel for Crystal Homes requested that Ms. Enns’ Affidavit be applicable to this Motion only, and not be admissible in any future phase of these hearings, given that these files are likely to be heard together. Counsel implied that there may be questions related to statements of process contained in the affidavit, but did not object to its application for today’s Motion. The City noted the unlikely use of this Affidavit in subsequent proceedings and preferred it remain on the record in the usual manner.
31The Tribunal reserved its Decision on this one sub-issue and now makes its Order to deny the request. Ms. Enns is a RPP who attests in the affidavit to provide evidence that is fair, objective and non-partisan. No Party challenged the City on the content of the affidavit in support of the Motion. In another context during a later phase of this proceeding, should Ms. Enns’ Affidavit be relied upon, Parties may counter specific matters through their own evidence or question a witness. The Tribunal is satisfied that ample opportunity exists in this lengthy process to address facts and evidence of relevance to each appeal.
ORDER
32The Tribunal grants abridgement to the City’s Notice of Motion.
33The Tribunal Orders that the City’s Motion is granted only to the extent of finding that ZBA No. 2020-418, enacted to implement the results of the study conducted for ICBL No. 2019-10, does not apply to lands outside the area affected by that ZBA, and on such Order, s. 38(6.1) of the Act is invoked to release all lands outside the ZBA area from the ICBL. This Order does not apply to properties previously in receipt of a similar Order resulting from site-specific Motions.
34Crystal Homes’ request to sequester Ms. Enns’ Affidavit is denied.
35The CMC rulings and directions as issued orally and set out in this Decision are so ordered.
36This Member is not seized but is available through the Case Coordinator for case management purposes.
“S. Tousaw”
S. TOUSAW 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.
PL210040/PL200150 – Attachment 1
| PL210040 Appellant Name(s) | Number | Does the Appellant have an appeal under File PL200150 OPA 119 & ZBA? | Counsel/ Representative |
|---|---|---|---|
| Ontario Stone, Sand & Gravel Association (OSSGA) | 1 | David White and Marc Kemerer | |
| United Burlington Retail Portfolio Inc. | 2 | Aaron Platt/ Samantha Lampert | |
| Crystal Homes | 3 | Michael Melling/ Alex Lusty | |
| Landform Development Group and 2413350 Ontario Inc. | 4 | Yes | Denise Baker |
| 1085 Clearview Limited Partnership (1085 Clearview GP Inc.) | 5 | Denise Baker | |
| West End Home Builders Association | 6 | Yes | Denise Baker |
| 440 Elizabeth Street Holdings Ltd | 7 | Yes | Denise Baker |
| 2084 Lakeshore Holdings Ltd. and 2084 Lakeshore (2048) LP Ltd | 8 | Yes | Denise Baker |
| Emshih Developments Inc. (800 Burloak Drive) | 9 | Nancy Smith/ Jennifer Meader | |
| Emshih Developments Inc. (895-901 Brant and 2250 Fairview Street) | 10 | Yes | Nancy Smith/ Jennifer Meader |
| Emshih Developments Inc. (372-380 and 433-439 Brant Street) | 11 | Yes | Nancy Smith/ Jennifer Meader |
| Carriage Gate Homes Inc., Lakeshore (Burlington) Inc. and Old Lakeshore (Burlington) Inc. | 12 | Yes | Scott Snider |
| 1820473 Ontario Inc. and Molinaro Group of Companies | 13 | Scott Snider | |
| Victoria-Brant Ltd., 2022 Victoria Avenue Inc., 2018 Victoria Avenue Inc., and 1664450 Ontario Inc. | 14 | Scott Snider | |
| Renimmob Properties Ltd. | 15 | Yes | Scott Snider |
| Penta Properties Inc., Paletta International Corporation and P&L Livestock Ltd. | 16 | Scott Snider | |
| Brookfield Properties, InteRent REIT and CLV Group Inc. (Fairview Limited Partnership) | 17 | Yes | Scott Snider/ Shelley Kaufman |
| Withdrew appeal | 18 | ||
| New Horizon Development Group | 19 | Patrick Harrington/ Leo Longo | |
| Brad Wilson | 20 | Self-represented | |
| Wal-Mart Canada Corp. | 21 | Yes | Roslyn Houser |
| Millcroft Greens Corporation | 22 | Patrick Harrington/ Leo Longo | |
| RK (Burlington Mall) Inc. | 23 | Joel D. Farber | |
| Withdrew Appeal | 24 | ||
| Pine Street Burlington Corp. | 25 | Yes | Denise Baker |
| Adi Developments (Masonry) Inc. | 26 | Yes | Denise Baker |
| Withdrew Appeal | 27 | ||
| Withdrew Appeal | 28 | ||
| RioCan Holdings Inc. | 29 | Joel D. Farber | |
| 335 Plains Holdings Inc. and 355 Plains Holdings Inc. | 30 | Denise Baker | |
| Camarro Developments Inc. (789-795 Brant Street) | 31 | Denise Baker | |
| Camarro Developments Inc. (519-527 Brant Street) | 32 | Denise Baker | |
| Camarro Developments Inc. (1062 and 1074 Cooke Blvd) | 33 | Denise Baker | |
| Infinity Developments Group Inc. | 34 | Denise Baker | |
| Spruce Partners Inc. and Amico Properties Inc. | 35 | Yes | Denise Baker |
| 5135 Fairview Holdings Inc. | 36 | Denise Baker | |
| S & G Consulting Inc., Branthaven 735 Oval Inc., and Branthaven Development Corp. | 37 | Yes | Denise Baker |
| 1602211 Ontario Ltd. | 38 | Denise Baker | |
| William Love | 39 | Self-Represented | |
| Nelson Aggregate Co. | 40 | David White and Marc Kemerer | |
| Mac’s Convenience Stores Inc. | 41 | Max Laskin/ Matthew Lakatos-Hayward | |
| Core FSC Lakeshore GP Incorporated | 42 | Yes | David Bronskill/ Matthew Lakatos-Hayward |
| Vrancorp Group | 43 | Yes | David Bronskill/ Matthew Lakatos-Hayward |
| Reserve Properties Ltd. | 44 | Yes | David Bronskill/ Matthew Lakatos-Hayward |
| 2584979 Ontario Inc. | 45 | David Bronskill/ Matthew Lakatos-Hayward | |
| Burlington Healthcare Centre Inc. | 46 | Yes | Andrew Jeanrie |
| Emshih Development Inc. (901 Guelph Line) | 47 | Nancy Smith | |
| Mattamy James Street Limited Partnership | 48 | Withdrawn | Scott Snider |
Added Parties
| Name | Counsel/ Representative |
|---|---|
| Fairview GO Ltd. | Jennifer Meader/ Scott Snider |
| Conserving Our Rural Ecosystems of Burlington Inc. (“CORE”) | Denisa Mertiri / David R. Donnelly |
| Millcroft Greenspace Alliance | Daintry Klein (Rep.) |
| Metrolinx (PL200150 only) | Adriana Pilkington |
Participants
| Name | Counsel/ Representative |
|---|---|
| Tom Muir | Self-Represented |
| Anne and David Marsden | Self-Represented |
| Millcroft Coalition Against Development | Kirk Robinson (Rep.) |
Additional Appellants for PL200150 Only
| Name | Number | Counsel/ Representative |
|---|---|---|
| Sofina Foods | 1 | Calvin Lantz |
| Welwyn Interests Inc. | 8 | Denise Baker |
| Adi Developments (Masonry) Inc. | 13 | Denise Baker |
| 850 Brant Street Properties Inc. | 22 | Scott Snider |