Jindal Developments Ltd. v. Brampton (City), 2021 CanLII 112418

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

November 02, 2021

CASE NO(S).:

PL210289

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

Applicant and Appellant:

Jindal Developments Ltd.

Subject:

Request to amend the Official Plan - Refusal of request by City of Brampton

Existing Designation:

Residential and Neighbourhood Retail

Proposed Designated:

High Density Cluster Residential

Purpose:

To permit residential and commercial development

Property Address/Description:

1965-1975 Cottrelle Boulevard

Municipality:

City of Brampton

Approval Authority File No.:

C08E08.008

OLT Case No.:

PL210289

OLT File No.:

PL210289

OLT Case Name:

Jindal Developments Ltd. v. Brampton (City)

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

Applicant and Appellant:

Jindal Developments Ltd.

Subject:

Application to amend Zoning By-law No. 270-2004 - Refusal of Application by City of Brampton

Existing Zoning:

Commercial Two - Special Section 1851 (C2-1851)

Proposed Zoning:

R4A(3)-2569

Purpose:

To permit apartment building and stacked townhouses

Property Address/Description:

1965-1975 Cottrelle Boulevard

Municipality:

City of Brampton

Municipality File No.:

C08E08.008

OLT Case No.:

PL210289

OLT File No.:

PL210290

Heard:

September 15, 2021 by video hearing (“VH”)

APPEARANCES:

Parties

Counsel/Representative*

Jindal Developments Ltd.

Matthew Hodgson

City of Brampton

Steven O'Melia

Cynthia Sri Pragash

Cynthia Sri Pragash*

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON September 15, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting an appeal by Jindal Developments Ltd. (the “Appellant/Applicant”) following the decision of the City of Brampton (“City”) to refuse its Official Plan Amendment and Zoning By-law Amendment applications to permit the development of the lands located at 1965-1975 Cottrelle Boulevard with a stepped seven-storey condominium apartment building with 72 residential units, two-blocks of stacked residential townhouses containing a total of 24 units, and a single two-storey office building intended to facilitate the headquarters of the property owner's company.

2City staff recommended approval of the application.

3There is significant public opposition against it.

Service of Notice of CMC

4There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal is in receipt of the Affidavit of Service, which was marked as Exhibit 1.

Requests for Status

5The following persons attended the CMC seeking party status:

• Cynthia Sri Pragash (on behalf of the unincorporated citizens group “BramptonMatters”)

• Azad Goyat

• Rupinder and Jasbeer Kharbanda

• Nisha Sandu

• Toni Moracci

6Ms. Sri Pragash introduced herself as the spokesperson for a citizens’ group called BramptonMatters. Asked if the group was incorporated, she confirmed that it was not, but promised that it will be shortly.

7Ms. Sri Pragash explained that BramptonMatters is primarily concerned about the proposed development’s negative impact on the area’s capacity to serve the commercial needs of the surrounding community, due to the application purporting to change commercial zoning of the lands to residential. She stated that the area is already deficient in walkable commercial areas to serve the local community and to provide associated employment. She also expressed opposition to the proposed density of the development, plus traffic concerns.

8Counsel for the Appellant/Applicant was not entirely opposed to Ms. Sri Pragash being granted party status on behalf of BramptonMatters, but he expressed some concern about the group’s ability to contribute to the proceedings. He also noted that the group’s concerns about diminished commercial lands in the area is already listed in the draft Issues List that the parties had jointly submitted to the Tribunal for the purpose of the CMC.

9Counsel for the City was generally supportive of granting the group party status.

10Ms. Sri Pragash assured the Tribunal that the group’s involvement in the proceedings would be beneficial, she would work and cooperate with counsel of the main parties to define the issues, and she would need only half a day to provide any evidence that the group might choose to present. She also confirmed that the existing issues listed on the parties’ draft Issues List, pertaining to concerns about diminished commercial space, probably covers their main concerns.

11Given these submissions, the Tribunal finds it appropriate to grant party status to Cynthia Sri Pragash as an individual. The citizens group BramptonMatters has no status as an unincorporated entity.

12The Tribunal notes that, at the discretion of the member(s) hearing this matter, Ms. Sri Pragash may be substituted with the group BramptonMatters as a party to these proceedings if the group becomes an incorporated group before the hearing. To be clear, such a substitution would be dependant upon Ms. Sri Pragash’s consent and the discretion of the member hearing the matter. The Tribunal notes, at the same time, that there is nothing to prevent Ms. Sri Pragash from working with BramptonMatters (as an incorporated or unincorporated group) to present a unified case, keeping in mind that only Ms. Sri Pragash has actual status as a party at this time.

13Azad Goyat also sought party status. He explained that he also represents a group of residents, but that he is also working with Ms. Sri Pragash and her group, BramptonMatters. Mr. Goyat explained his interests in the matter, which effectively mirrored that of BramptonMatters, as explained by Ms. Sri Pragash. He confirmed that he would be willing to work with Ms. Sri Pragash and BramptonMatters to present a unified case, and Ms. Sri Pragash confirmed that she would similarly be willing to work with him.

14As a result of Mr. Goyat’s shared interests in the issues of this matter with Ms. Sri Pragash, his ongoing work with Ms. Sri Pragash and BramptonMatters, and their interest in working with him, the Tribunal finds that it would not assist the Tribunal to also grant Mr. Goyat party status. To do so would be redundant from an evidence and issues standpoint, especially since they are willing to work together and are already working together.

15The Tribunal notes that, upon it informing Mr. Goyat of its decision to deny him party status, he requested participant status. On consent of the parties, the Tribunal granted him participant status.

16Rupinder and Jasbeer Kharbanda, and Nisha Sandu all confirmed that they are part of the group BramptonMatters and are working with Ms. Sri Pragash. As a result of Ms. Sri Pragash being granted party status, they all withdrew their request for party status.

17Toni Moracci ultimately sought participant status, rather than party status. He explained that he lives in the area and is handicapped. He explained that he is interested in the matter because he is also concerned about losing commercially zoned lands in the area which might otherwise provide accessible commercial services to him.

18Before he confirmed his request for participant status, Mr. Moracci asked the Tribunal if his status as a participant would impact on his ability to be called as a witness. The Tribunal put this concern to the parties, who all agreed that it should not be an issue. The Tribunal agreed and confirmed that Mr. Moracci could provide a participant statement and also testify as a witness, if he is so called by one of the parties.

MEDIATION AND SETTLEMENT

19The Tribunal explored the possibility of mediation and settlement with the parties. While all of the parties expressed openness to the idea, they all also agreed that this case is probably not a great candidate for mediation due to the parties’ opposing views and little room for compromise.

PROCEDURAL ORDER AND ISSUES LIST

20The Tribunal received and reviewed a draft issues list prepared by the Appellant/Applicant and City prior to the CMC. The Tribunal notes that the list states potential issues in a proper form, albeit without the input of the new party, Ms. Sri Pragash. As stated above, Ms. Sri Pragash reviewed some of it at the hearing, but has not had a chance to review all of it. She also expressed interest in retaining counsel, who would presumably wish to review it in order to provide advice to his or her client.

21As a result, the Tribunal ordered the parties to finalize a draft Procedural Order (“PO”) within 30 days, which is appended to this Decision as Attachment 1. The Tribunal finds the draft PO acceptable, and the proceedings shall accordingly be governed by it.

HEARING

22Upon request of the parties, the Tribunal set a six-day hearing commencing on Monday, February 14, 2022 at 10 a.m. by VH. No further Notice is required for the hearing.

23Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/617090741

Access Code: 617 090 741

24Parties 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.

25Persons 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): 1 888 455 1389 or +1 (647) 497-9391. The Access Code is as indicated above.

26Individuals 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 VH 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.

ORDER

27The Tribunal Orders that:

1. The date and particulars of the hearing are set out above;

2. The Procedural Order appended as Attachment 1 shall govern the proceedings;

3. Cynthia Sri Pragash is granted party status. The Tribunal notes that, at the discretion of the member(s) hearing this matter, Ms. Sri Pragash may be substituted with the incorporated body, BramptonMatters, as a party to these proceedings;

4. Azad Goyat and Toni Moracci are granted participant status. Mr. Moracci may provide a participant statement and also testify as a witness, if he is so called by one of the parties; and

5. The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS

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.

ATTACHMENT 1

ONTARIO LAND TRIBUNAL

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

Applicant and Appellant:

Jindal Developments Ltd.

Subject:

Request to amend the Official Plan - Refusal of request by City of Brampton

Existing Designation:

Residential and Neighbourhood Retail

Proposed Designated:

High Density Cluster Residential

Purpose:

To permit residential and commercial development

Property Address/Description:

1965-1975 Cottrelle Boulevard

Municipality:

City of Brampton

Approval Authority File No.:

C08E08.008

OLT Case No.:

PL210289

OLT File No.:

PL210289

OLT Case Name:

Jindal Developments Ltd. v. Brampton (City)

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

Applicant and Appellant:

Jindal Developments Ltd.

Subject:

Application amend Zoning By-law No. 270-2004 - Refusal of Application by City of Brampton

Existing Zoning:

Commercial Two - Special Section 1851 (C2-1851 )

Proposed Zoning:

R4A(3)-2569 - Residential Apartment A(3)

Purpose:

To permit apartment building and stacked townhouses

Property Address/Description:

1965-1975 Cottrelle Boulevard

Municipality:

City of Brampton

Municipality File No.:

C08E08.008

OLT Case No.:

PL210289

OLT File No:

PL210290

OLT Case Name:

Jindal Developments Ltd. v. Brampton (City)

(DRAFT) 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 February 14, 2022 at 10:00 a.m. in accordance with direction to be provided by the Tribunal.

3. The parties’ initial estimation for the length of the hearing is 6 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.

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 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

8. The parties shall provide the issues they want included on the Issues List on or before ­–November 5, 2021.

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 ­November 12, 2021 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 January 21, 2022 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 January 31, 2022.

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 December 15, 2021, 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 December 29, 2021, the parties may provide to the other parties and the OLT case co-ordinator a written response to any written received and in accordance with paragraph 22 below.

15. On or before January 7, 2022, 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.

16. On or before January 31, 2022, 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. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 4, 2022.

18. Any documents filed in advance which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before February 11, 2022. Additional cross-examination documents identified after that date will be provided in the same manner as soon as practicable prior to the cross-examination of the witness in question, if possible, it being recognized that given the nature of cross-examination some documents that are relevant to cross-examination may only be identified or become apparent during the course of a witness’s testimony.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.

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 January 31, 2022 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 in hard copy if requested by the Tribunal caseworker. 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.

This Member is not seized.

So orders the Tribunal.

SUMMARY OF DATES

DATE

EVENT

November 5, 2021

Parties to exchange Issues Lists.

November 12, 2021

Parties to exchange lists of witnesses (names, disciplines and order to be called)

December 15, 2021

Witness Statements, expert reports and the written evidence of witnesses to be exchanged

December 29, 2021

Reply Witness Statements and the reply written evidence of witnesses (if any) to be exchanged

January 7, 2022

Participant Statements to be exchanged

January 31, 2022

Parties to exchange copies of visual evidence

January 31, 2022

Parties to file draft Hearing Plan with the Tribunal

February 4, 2022

Parties to file Joint Document Book with Tribunal

February 14, 2022

Hearing commences

ATTACHMENT “1”

LIST OF PARTIES/PARTICIPANTS

PARTIES

Party

Counsel / Representative

Jindal Developments Ltd.

Matthew J. Hodgson Barriston LLP 151 Ferris Lane Suite 202 Barrie, Ontario L4M 6C1 Email: mhodgson@barristonlaw.ca Tel: 705.792.9200

City of Brampton

Steven J. O'Melia Miller Thomson LLP Accelerator Centre 295 Hagey Blvd Suite 300 Waterloo, ON N2L 6R5 Email: somelia@millerthomson.com Tel: 519.593.3289

Cynthia Sri Pragash

Cynthia Sri Pragash Email:bramptonmatters@outlook.com Tel: 416.500.1810

PARTICIPANTS

Participant

Email

Azad Goyat

metro_metroinsurance@yahoo.ca

Tony Moracci

ucalltony@aol.com

ATTACHMENT “2”

ISSUES LIST

Proposed Official Plan Amendment (“OPA”)

1. Does the proposed OPA have appropriate regard to matters of provincial interest as required by section 2 of the Planning Act?

2. Is the proposed OPA consistent with the Provincial Policy Statement, 2020, including without limitation policies 1.1.1, 1.1.2, 1.1.3, 1.2.6, 1.4, 1.6.7, 4.0 and 6.0?

3. Does the proposed OPA conform to A Place to Grow Growth Plan for the Greater Golden Horseshoe 2020, including without limitation sections 1.2.1, 2.1, 2.2.1, 2.2.2, 2.2.6, 2.2.7.1, 3.2.1, 3.2.2, 3.2.3, 4.2.10, 5.2.1, 5.2.4, and 7?

4. Does the proposed OPA conform to the Region of Peel Official Plan, including without limitation policies 1.3.6, 5.1.1, 5.1.2, 5.1.3, 5.2, 5.3.1, 5.3.2, 5.5.1, 5.5.2, 5.5.3, 5.8.1, 5.8.2, 5.8.3, 5.9.1, 5.9.2, 5.9.4, 5.9.9, 5.9.10, 7.1, 7.2, 7.3, 7.4 and Schedules D4 and E.

5. Does the proposed OPA conform to the City of Brampton Official Plan, including without limitation policies 2.1, 2.4.2, 2.4.3, 2.4.5, 3.1, 3.2.1, 3.2.2, 3.2.6, 3.2.8, 4.2.1, 4.2.5, 4.2.7, 4.2.8, 4.3.1, 4.3.4, 4.3.5, 4.3.6, 4.5.1, 4.5.2, 4.11 and Schedules A, A2, B and G of the Bram East Secondary Plan.

6. Is it appropriate to redesignate lands currently designated “Neighbourhood Retail” in the Bram East Secondary Plan to eliminate retail uses and permit solely residential uses?

Proposed Zoning By-law Amendment (“ZBA”)

1. Does the proposed ZBA have appropriate regard to matters of provincial interest in section 2 of the Planning Act?

2. Is the proposed ZBA consistent with the Provincial Policy Statement, 2020, including without limitation policy 1.4.3?

3. Would the proposed ZBA conform to A Place to Grow Growth Plan for the Greater Golden Horseshoe 2020Growth Plan for the Greater Golden Horseshoe, including without limitation policies 1.2.1 and 2.2.7.1?

4. Does the proposed ZBA conform to the Region of Peel Official Plan, including without limitation policies 5.3.1.4, 5.3.1.6, 5.3.2.2, , 5.3.2.6, 5.5.1.1, 5.5.1.5, 5.5.1.6, 5.8.1, and 5.8.2?

5. Does the proposed ZBA conform to the City of Brampton Official Plan, including without limitation policies 4.2.1.2, 4.2.1.3, 4.2.1.14?

6. Is it appropriate and in the public interest to rezone lands currently zoned “Commercial Two” to eliminate commercial uses and permit solely residential uses?

Issues for Both Proposed Instruments

1. Is it appropriate and desirable to remove the existing approved permissions for commercial use and replace them with residential use permissions?

2. Would the height and density of the development that would be permitted by the proposed planning instruments be compatible with the existing surrounding residential development?

3. Would the increase in density in the proposed development create adverse traffic impacts?

4. What level of regard should be given to the City of Brampton’s refusal to approve the proposed amendments to the City’s planning instruments?

5. Would the proposed OPA and ZBA constitute good land use planning and are they in the public interest?

ATTACHMENT “3”

ORDER OF EVIDENCE

1. Jindal Developments Ltd.

2. Cynthia Sri Pragash

3. City of Brampton