Medallion Developments (Castlefields) Limited v. Ajax (Town), 2021 CanLII 129314

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 10, 2021

CASE NO(S).: PL180017

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

Applicant and Appellant: Medallion Developments (Castlefields) Limited

Subject: Request to amend the Official Plan - Failure of the Town of Ajax to adopt the requested amendment

Existing Designation: High Density Residential (HDR) and Medium Density Residential (MDR)

Proposed Designation: Site Specific (To be determined)

Purpose: To permit the development of a 14 storey apartment, 5 eight storey apartment buildings, 64 townhouses and a one storey commercial building

Property Address/Description: Northeast corner of Rossland Road East and Audley Road North

Municipality: Town of Ajax

Approval Authority File No.: OPA17-A1

OLT Case No.: PL180017

OLT File No.: PL180017

OLT Case Name: Medallion Developments (Castlefields) Limited v. Ajax (Town)

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

Applicant and Appellant: Medallion Developments (Castlefields) Limited

Subject: Application to amend Zoning By-law No. 95-2003 - Refusal or neglect of the Town of Ajax to make a decision

Existing Zoning: Residential Multiple Six (RM6) Zone and Neighbourhood Commercial (NC) Zone

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit the development of a 14 storey apartment, 5 eight storey apartment buildings, 64 townhouses and a one storey commercial building

Property Address/Description: Northeast corner of Rossland Road East and Audley Road North

Municipality: Town of Ajax

Municipality File No.: Z1/17

OLT Case No.: PL180017

OLT File No.: PL180018

Heard: December 2, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Medallion Developments (Castlefields) Limited (“Applicant/Appellant”)

Andy Margaritis and Hannah Ruby (student-at-law)

Town of Ajax (“Town”)

Bruce Engell

Regional Municipality of Durham (“Region”)

Kelly Rodrigues (student-at-law)

Castlefields Residents Association Corporation (“Association”)

Taso Pappas* and Amelia Maharaj*

MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON DECEMBER 2, 2021 AND ORDER OF THE TRIBUNAL

1This is the third Case Management Conference (“CMC”) scheduled to further consider a request for party status by a group of residents now incorporated as Castlefields Residents Association Corporation (“Association”). At the CMC, held on October 15, 2021, the Association was directed to report back to the Tribunal as to its efforts to retain counsel.

2The Tribunal is advised that the Association has been unable to retain counsel for the hearing but would continue to seek party status. It is noted that the Association had retained counsel on a very limited basis to assist it with the finalization of the Procedural Order (“PO”) and Issues List.

3Counsel for the Applicant/Appellant objected to the Association being granted party status on the grounds that the Association had not met the conditions imposed upon it by the Tribunal, either in the letter or spirit of the direction given by the Tribunal. Mr. Pappas, on behalf of the Association, maintained that the Association had made best efforts to meet the directions of the Tribunal and would continue to cooperate and proceed to a hearing of this matter.

4Counsel had provided the Tribunal with a draft PO for consideration. The Association was objecting to the wording of Paragraph 9, which provides that the parties were required to provide their list of witnesses no later than January 10, 2022, and that in the event that a party did not include a witness with the technical expertise to address such party’s technical related issues, then such issues would be struck from the Issues List, upon written request, being made to the Tribunal.

5The Tribunal was satisfied that the Association has a clear interest in this matter, was acting in good faith and would cooperate in the finalization of the PO and Issues List. Mr. Pappas also undertook to provide its list of witnesses by February 1, 2022. The Association was therefore granted party status.

6The Tribunal directed that parties would provide their lists of witnesses no later than February 1, 2022 and that Paragraph 9 of the PO would remain as proposed.

7With respect to the Issues List, counsel for the Applicant/Appellant submitted that Issue 2 dealing with conformity with the Region’s Official Plan should be refined by the Association. Mr. Pappas agreed that he would by end of day December 3, provide the specific policies which the Association argued, were not being conformed with by the proposal.

8The hearing is scheduled to commence on Thursday, May 5, 2022 at 10 a.m. by video.

9Parties and participants 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/538930893

Access code: 538-930-893

10Parties 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

11Persons 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 538-930-893.

12Individuals 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 hearing by video 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.

13Two days have been set aside.

14This proceeding shall be governed by Schedule 1 hereto.

15There will not be any further notice.

16I am not seized.

17It is so ordered.

“R.G.M. Makuch”

R.G.M. MAKUCH

VICE-CHAIR

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 1

CASE NO(S).: PL180017

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

Applicant(s)/Appellant(s): Medallion Developments (Castlefields) Limited

Subject: Request to amend the Official Plan - Failure of the Town of Ajax to adopt the requested amendment

Property Address/Description: Northeast corner of Rossland Road East and Audley Road North

Municipality: Town of Ajax

Municipal File No.: OPA17-A1

OLT Case No.: PL180017

OLT File No.: PL180017

OLT Case Name: Medallion Developments (Castlefields) Limited v. Ajax (Town)

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

Applicant(s)/Appellant(s): Medallion Developments (Castlefields) Limited

Subject: Application to amend Zoning By-law No. 95-2003 - Refusal or neglect of the Town of Ajax to make a decision

Property Address/Description: Northeast corner of Rossland Road East and Audley Road North

Municipality: Town of Ajax

Municipal File No.: Z1/17

OLT Case No.: PL180017

OLT File No.: PL180017

OLT Case Name: Medallion Developments (Castlefields) Limited v. Ajax (Town)

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 May 5, 2022 at 10 a.m. at the following link: https://global.gotomeeting.com/join/538930893, Access code: 538-930-893.

3. The parties’ initial estimation for the length of the hearing is 2 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. The procedural order deadlines are found in Attachment 1.

4. The parties and participants (see “Attachment 5” for the meaning of these terms) identified at the case management conference are set out in Attachment 2.

5. The issues are set out in the Issues List attached as Attachment 3. 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 4 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 telephone 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.

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 February 1, 2022 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. In the event a Party files a list of witnesses that does not include a witness with the technical expertise to address such Party’s technically related issues, said issues shall be struck from the Issues List set out in Attachment 3 upon written request made to the Tribunal.

10. Expert witnesses in the same field shall have a meeting on or before 90 days prior to the hearing date 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 within three (3) weeks of said meeting.

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 60 days before the hearing date, 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 60 days before the hearing date, 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 21 days after the date in paragraph 13, the parties may provide to all other Parties and the OLT case co-ordinator any written response to any written evidence in accordance with paragraph 22 below.

16. On or before 15 days prior to the hearing date, 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. On or before 10 days prior to the hearing date, the parties shall provide copies of any responding visual evidence to all of the other Parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before 10 days prior to the hearing date.

19. 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, on or before the day before said document is to be put to the opposing party’s witness.

20. A person wishing to change written evidence, 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before 10 days prior to the hearing date, 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.

23. All filings shall be submitted electronically. 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.

24. 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.

Attachment 1

SUMMARY OF DATES

DATE

EVENT

July 30, 2021

Castlefields Residents Association Corporation to have confirmed incorporation.

September 27, 2021

Castlefields Residents Association Corporation to provide summary of its position and issues.

October 15, 2021

Case Management Conference No. 2.

December 2, 2021

Case Management Conference No. 3.

February 1, 2022

Exchange of witness lists (names, disciplines, and order to be called)

90 days prior to the hearing date

Experts meeting prior to this date

Within three (3) weeks of experts meeting

Agreed Statement of Expert Witnesses

60 days before the hearing

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

21 days after the exchange Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

Exchange of Reply Witness Statements

15 days before the hearing

Exchange of visual evidence

10 days before the hearing

Draft Hearing Plan to Tribunal Responding Visual Evidence Joint Document Book

May 5, 2022

Hearing commences

Attachment 2

LIST OF PARTIES AND PARTICIPANTS

PARTY

1. Medallion Developments (Castlefields) Limited Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, ON M5V 3C1 Attention: Aaron I. Platt Email: aaronp@davieshowe.com Tel: 416-263-4500 Fax: 416-977-8931

2. Town of Ajax WeirFoulds LLP 4100 – 66 Wellington Street West PO Box 35, TD Bank Tower Toronto, ON M5K 1B7 Attention: Bruce Engell Email: bengell@weirfoulds.com Tel: 416-806-5081 Fax: 416-365-1876

3. Regional Municipality of Durham Regional Municipality of Durham 605 Rossland Road East Whitby, ON L1N 0B7 Attention: Robert Woon Email: Robert.Woon@durham.ca Tel: 905-668-7711 Fax: 905-668-4752

4. Castlefields Residents Association Corporation Attention: Amelia Maharaj Email: Prettylittlebutterfly1975@gmail.com Mailing Address: Anthony Beckford c/o Castlefields Residents Association Corporation 16 Darlet Avenue Ajax, ON L1Z 0G3

Attachment 3

ISSUES LIST

Issues of the Castlefields Residents Association Corporation

1. Is the proposed official plan amendment consistent with the policies in the Provincial Policy Statement, including sections 1.1.1(c) and (g), 1.1.3.2(b), and 1.4.3(c)?

2. Does the proposed by-law amendment and official plan amendment conform with the policies of the Durham Regional Official Plan, including sections 4.3.2 and 8.2.1?

3. Is the proposed by-law amendment consistent with the policies in the Provincial Policy Statement, including sections 1.1.1(c) and (g), 1.1.3.2(b), and 1.4.3(c)?

4. Does the proposed by-law amendment conform with the policies of the Town of Ajax Official Plan (“OP”), including:

   1. To ensure that necessary emergency service facilities are in place prior to or coincident with development, as set out in section 3.1.1 of the OP;
   2. In respect of infill development along corridors set out in section 3.2.2.5 of the OP;
   3. The Urban Design Framework, particularly with respect to Building Scale as set out in section 3.2.4.1(b) of the OP; and
   4. The compatibility criteria set out in section 2.5.2.2(d) of the OP?

5. Does the proposed by-law amendment and official plan amendment permit a development that would have an undue adverse impact on traffic and the transportation network, including the user of this network, in the surrounding area?

6. Does the proposed official plan amendment and by-law amendment represent appropriate and good land use planning?

Attachment 4

ORDER OF EVIDENCE

1. Medallion Developments (Castlefields) Limited
2. Town of Ajax
3. Castlefields Residents Association Corporation
4. Medallion Developments (Castlefields) Limited, Reply if any.

Attachment 5

PURPOSE OF PROCEDURAL ORDER

Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek Party status in this proceeding, meet to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to Order following the conference. The Tribunal will hear submissions on the content of this procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Appeal Guide matching your appeal type and the Tribunal’s Rules from the Tribunal, which are available on the Tribunal’s website

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 Party, 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. Party 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 Party 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 Party. (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 Party of opposite interest;
• re-examination by the Party presenting the witness; or
• another order of examination mutually agreed among the Party or directed by the Tribunal.