The Corporation of the City of Pickering v. Ajax (Town), 2021 CanLII 125765

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 29, 2021 CASE NO.: PL210028

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

The Corporation of the City of Pickering

Appellant:

Pickering Properties

Subject:

By-law No. Z2/19

Municipality:

Town of Ajax

OLT Case No.:

PL210028

OLT File No.:

PL210028

OLT Case Name:

The Corporation of the City of Pickering v. Ajax (Town)

BEFORE:

M. RUSSO

Monday, the 29th

Member

day of November, 2021

THIS MATTER having come on for a public hearing and the Tribunal having directed the parties to submit a revised draft procedural order and issues list;

AND THE TRIBUNAL having received the revised materials provided by the parties on consent;

THE TRIBUNAL ORDERS that the Procedural Order set out as “Schedule A” to this Order shall be in full force and effect.

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

Ontario Land Tribunal

Website: 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.

SCHEDULE A

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 April 25, 2022 (date) at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 10 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 (see the sample procedural order for the meaning of these terms).

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 intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. 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 (https://olt.gov.on.ca/appeals-process/video-hearing/).

Requirements Before the Hearing

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 December 24, 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 25, 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 February 9, 2022 (date – at least 75 days prior to the start of the hearing).

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 February 24, 2022, 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 February 24, 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.

15. On or before April 18, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with section 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties shall provide to all other parties and the OLT case co-ordinator copies of their reply witness and reply expert witness statements on or before March 25, 2022 and in accordance with section 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be uploaded to the OLT’s file share server, pursuant to the directions provided by the OLT case co-ordinator, on or before April 20, 2022.

18. Any documents 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.

19. A person wishing to change written evidence (except where an error is being corrected), including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

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 April 18, 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 filing shall be electronic and in hard copy. 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 email shall be governed by 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.

24. A summary of the procedural dates are set out in Attachment 4.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual, group or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Subsection 33.2 of the Local Planning Appeal Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

The order of examination of witnesses: is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

Party

Counsel/Representative

CPSP Annandale Limited Partnership & CPSP Annandale Nominee Inc.

Tara Piurko

Miller Thomson LLP

Scotia Plaza 40 King Street West, Suite 5800 P.O. Box 1011 Toronto, Ontario M5H 3S1

Email: tpiurko@millerthomson.com

Tel: 416-595-2647

Fax: 416-595-8695

The Corporation of the Town of Ajax

Bruce Engell

WeirFoulds LLP

4100 – 66 Wellington St. W. PO Box 35, TD Bank Tower Toronto, ON Canada M5K 1B7

E-mail: bengell@weirfoulds.com

Tel: 416-947-5081

Fax: 416-365-1876

The Corporation of the Regional Municipality of Durham

Kevin Ryan & Robert Woon

Solicitors, Corporate Services Department The Regional Municipality of Durham

605 Rossland Road East, 4th Floor P.O. Box 623 Whitby ON L1N 6A3

Kevin Ryan

Email: kevin.ryan@durham.ca Tel: 905-668-7711, ext.

Robert Woon

Email : robert.woon@durham.ca

Tel: 905-668-7711, ext. 3867

Pickering Developments (401) Inc., Pickering Developments (Squires) Inc., Pickering Developments (Bayly) Inc. (collectively “Pickering Developments”)

Ira Kagan

Kagan Shastri LLP

188 Avenue Road

Toronto ON Canada

M5 R 2J1

Email: ikagan@ksllp.ca

Tel: 416-368-2100 ext. 226

Fax: 416-324-4224

The Corporation of the City of Pickering

Quinto Annibale & Mark Joblin

Loopstra Nixon LLP 135 Queens Plate Drive, Suite 600

Toronto ON Canada

M9W6V7

Email: qannibale@loonix.com

mjoblin@loonix.com Tel: 416-746-4710 Fax: 416-746-8319

ATTACHMENT 2

ISSUES LIST

Pickering Developments:

Planning Act, R.S.O. 1990, c. P.13

1. Does the By-law 52-2020 have regard to sections 2 (e), (f), (h), (i), (j), (k), (l), (n), (o), (p), (q), and (r) of the Planning Act?

Provincial Policy Statement, 2020

2. Is By-law 52-2020 consistent with policies 1.1.1(c), 1.1.1(e) and (g), 1.1.3.2(b), 1.2.1(a), 1.3.1(e), 1.3.2.1 and 1.6.7.1, as well as the related definitions, of the Provincial Policy Statement, 2020?

Growth Plan for Greater Golden Horseshoe

3. Does By-law 52-2020 conform to sections 1.2.1, 3.1, 3.2, 3.2.1.1, 3.2.2 and 5.1, as well as the related definitions, of A Place to Grow: The Growth Plan for the Greater Golden Horseshoe, as amended?

Durham Regional Official Plan (DROP)

4. Does By-law 52-2020 conform to item 3 of the Introduction to the DROP and policies 6.2.1, 6.3.1, 11.1.1, 11.1.3, 11.3.4 and 11.3.34 of the DROP?

Town of Ajax Official Plan

5. Does By-law 52-2020 conform to policies 1.2(b) and (m), 2.5.4, 2.5.4.1, 4.1, 4.1.1, 4.1.2, 4.2, 5.0(b), (c) and (d) and 7.1.15(c) - (f) and (i) of the Town of Ajax Official Plan?

General

6. Should the Town have required the study of the transportation impacts which might result from By-law 52-2020 prior to the passage of same? Is it good planning to have deferred such a study to the site plan approval stage?

7. Without the submission of a Traffic Impact Study, is the enactment of By-law 52-2020 by the Town of Ajax premature?

8. By deferring a transportation study to the site plan approval stage, does By-law 52-2020 secure the appropriate transportation improvements which might result from the proposed development? Can the site plan approval stage legally secure any and all required transportation improvements, including off-site improvements?

9. Does By-law 52-2020 secure the identification of the cumulative impacts of the subject development with others in the area and ensure that all required transportation improvements are made? Does By-law 52-2020 ensure that the applicant will be required to share in the cost of such improvements?

10. Is the “H” in By-law 52-2020 authorized by section 36 of the Planning Act and the Town’s Official Plan?

11. Should the Town of Ajax have required the submission and undertaken a review of a Traffic Impact Study in advance of the approval of the rezoning application?

12. Does By-law 52-2020 secure payment of appropriate development costs for all Regional and local servicing and transportation infrastructure improvements required for the development of the subject lands?

13. Is By-law 52-2020 in the public interest and does it represent good land use planning?

14. Is the proposed development that is the subject of By-law 52-2020 appropriate for the development of the subject land?

City of Pickering

Planning Act, R.S.O. 1990, c. P.13

15. Does By-law 52-2020 have regard to sections 2 (f) and (l) of the Planning Act?

Provincial Policy Statement, 2020

16. Is By-law 52-2020 consistent with policies 1.1.1(e) and (g), 1.1.3.2(b), 1.2.1(a), 1.3.1(e), 1.3.2.1 and 1.6.7.1, as well as the related definitions, of the Provincial Policy Statement, 2020?

Growth Plan for Greater Golden Horseshoe

17. Does By-law 52-2020 conform to sections 1.2.1, 3.1, 3.2.1.1, 3.2.2 and 5.1, as well as the related definitions, of A Place to Grow: The Growth Plan for the Greater Golden Horseshoe, as amended?

Durham Regional Official Plan (DROP)

18. Does By-law 52-2020 conform to item 3 of the Introduction to the DROP and policies 6.2.1, 6.3.1, 11.1.1, 11.1.3, 11.3.4 and 11.3.34 of the DROP?

General

19. Should the Town have required the study of the transportation impacts which might result from By-law 52-2020 prior to the passage of same? Is it good planning to have deferred such a study to the site plan approval stage?

20. Without the submission of a Traffic Impact Study, is the enactment of By-law 52-2020 by the Town of Ajax premature?

21. By deferring a transportation study to the site plan approval stage, does By-law 52-2020 secure the appropriate transportation improvements which might result from the proposed development? Can the site plan approval stage legally secure any and all required transportation improvements, including off-site improvements?

22. Does By-law 52-2020 secure the identification of the cumulative impacts of the subject development with others in the area and ensure that all required transportation improvements are made? Does By-law 52-2020 ensure that the applicant will be required to share in the cost of such improvements?

23. Does By-law 52-2020 secure payment of appropriate development costs for all Regional and local servicing and transportation infrastructure improvements required for the development of the subject lands?

24. Is By-law 52-2020 in the public interest and does it represent good land use planning?

ATTACHMENT 3

ORDER OF EVIDENCE

1. CPSP Annandale Limited Partnership & CPSP Annandale Nominee Inc.

2. The Corporation of the Town of Ajax

3. The Corporation of the Regional Municipality of Durham

4. The Corporation of the City of Pickering

5. Pickering Developments (401) Inc., Pickering Developments (Squires) Inc., Pickering Developments (Bayly) Inc. (collectively “Pickering Developments”)

6. CPSP Annandale Limited Partnership & CPSP Annandale Nominee Inc. (Reply)

ATTACHMENT 4

SUMMARY OF PROCEDURAL DATES

Event

Timing

Date

List of Witnesses

On or before 120 days prior to Hearing Date

December 24, 2021*

Meeting of Experts

On or before 90 days before the Hearing Date

January 25, 2022

Statement of Agreed Facts/Opinions, etc…

On or before at least 75 days prior to Start of Hearing

February 9, 2022

Witness and Expert Witness Statements

On or before 60 days prior to Hearing Date

February 24, 2022

Written Participant Statement

On or before 60 days before the Hearing Date

February 24, 2022

Reply Witness and Expert Witness Statements

On or before 30 days prior to Hearing

March 25, 2022*

Motion to Change Written Evidence

15 days before the Tribunal hears the motion

April 8, 2022*

Visuals

On or before 7 days before the Hearing

April 18, 2022

Preliminary Hearing Plan

On or before 7 days prior to the Hearing

April 18, 2022

Joint Document Book

On or before no later than 5 days prior to Hearing

April 20, 2022

Hearing

April 25th to May 6th, 2022 (10 day hearing)

• Indicates a date that fell on a Saturday, Sunday or statutory holiday and the date was moved to the business day immediately prior to the scheduled day.