Sycamore Construction Ltd. v. King (Township), 2021 CanLII 134635

December 23, 2021

TO: All recipients of the Ontario Land Tribunal Decision issued on December 8, 2021

RE: OLT CASE NO.: PL210117, DECISION ISSUED DECEMBER 8, 2021

On December 8, 2021 the Ontario Land Tribunal issued its Decision (“Decision”) on the above noted case.

Rule 24.4 of the Ontario Land Tribunal Rules of Practice and Procedure states that the Tribunal may at any time correct a technical or typographical error made in a decision or order.

The Tribunal has corrected the Decision under the authority of this rule by appending the Procedural Order to the decision as Schedule 1.

A corrected version of the Decision issued on November 18, 2021 is enclosed with this communication. This enclosed Decision replaces the Decision issued on December 8, 2021.

Thank you.

“Euken Lui”

Encl.

ISSUE DATE: December 08, 2021

CASE NO(S).: PL210117

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

Applicant and Appellant: Sycamore Construction Ltd. and 2395959 Ontario Inc.

Subject: Application to amend Zoning By-law No. 74-53, as amended, and Zoning By-law No. 2017-66, as amended - Neglect of the Township of King to make a decision

Existing Zoning: To amend the existing Residential Urban (R1), Institutional (I) and Open Space (O) zoning designations under Zoning By-law No. 74-53, as amended, and to amend the existing Future (F) zoning designation under Zoning By-law No. 2017-66, as amended

Proposed Zoning: To amend Zoning By-law No. 74-53, as amended, to Residential Urban (Schomberg) One – Exception Section 7A.11 (R1S-1[H]) Holding, Residential Urban (Schomberg) Two – Exception Section 7B.7 (R1S-2[H]) Holding, Institutional – Exception Section 21.35 (I[H]) Holding, Institutional – Exception 21.36 (I), Open Space – Exception Section 26.70 (O[H]) Holding, Environmental Protection (EP[H]) Holding and to amend Zoning By-law No. 2017-66, as amended, to Residential Single Detached – Exception Section 6.5.1.40 (R1-40[H]) Holding, Residential Single Detached – Exception Section 6.5.1.41 (R1-41[H]) Holding, Environmental Protection (EP) Holding and Institutional – Exception Section 9.5.1.5 (1-5[H]) Holding

Purpose: To permit the development of a residential plan of subdivision containing 51 single detached residential lots and a new public road

Property Address/Description: Part of the East Half of Lot 32, Concession 9

Municipality: Township of King

Municipality File No.: Z-2017-11

OLT Case No.: PL210117

OLT File No.: PL210117

OLT Case Name: Sycamore Construction Ltd. and King (Township)

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Sycamore Construction Ltd. and 2395959 Ontario Inc.

Subject: Conditions of approval of draft plan of subdivision

Property Address/Description: Part of the East Half of Lot 32, Concession 9

Municipality: Township of King

Municipal File No.: 19T-17-K02

OLT Case No.: PL210117

OLT File No.: PL210118

Heard: October 15, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Sycamore Construction Ltd. And 2395959 Ontario Inc.	Quinto Annibale
Township of King	Tom Halinski

MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL ON OCTOBER 15, 2021 AND ORDER OF THE TRIBUNAL

BACKGROUND

1This is the second Case Management Conference (“CMC”) conducted with respect an Appeal from Sycamore Construction Ltd. And 2395959 Ontario Inc. (“the Appellants”) pursuant to s. 34(11) of the Planning Act regarding the Township of King’s failure to make a decision within the statutory time frames for the Appellant’s proposed Zoning By-law Amendment.

2The municipal address of the subject property is Part of the East Half of Lot 32, Concession 9, Township of King. The lands are located at Roselena Drive and Church Street in Schomberg.

3The application under appeal is intended to permit the proposed development of 51 residential lots and a new public road on the subject lands. This development will represent the second phase of the Forestbrook Hills subdivision.

Procedural Order and Issues List

4A draft Procedural Order with an attached proposed Issues List was submitted on consent of the Parties in advance of the CMC.

5Mr. Halinski, on behalf of the Township, advised the Tribunal that he may need some additional time to refine some issues with respect to the proposed Zoning By-law Amendment, but he stated there were no issues with respect to the draft plan of subdivision at this time.

6Counsel on consent suggested that two weeks would be sufficient to refine the Issues List.

Opportunities for Settlement Discussion

7The Tribunal canvassed the Parties as to whether they have engaged in settlement discussions. Both Parties expressed an interest in pursuing settlement discussions prior to the hearing and will advise the Case Co-Ordinator regarding status.

The Hearing

8The Parties suggested that, if a settlement is not resolved through mediation, a five-day hearing would be sufficient given the issues at hand.

9The Hearing is scheduled to proceed by video conference on Monday, February 14, 2022 at 10 a.m. for a total of five days.

10Parties 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/622627181

Access code: 622-627-181

11Parties 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.

12Persons 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 622-627-181.

13Individuals 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.

ORDER

14A Procedural Order was finalized and received by the Tribunal shortly after this CMC and is attached as Schedule 1. As such, it is in full force and effect.

15Should a settlement be reached through mediation, the Case Co-Ordinator should be advised in advance of the Hearing.

16The Member is not seized and is available for case management, schedule permitting.

17No further notice will be given.

“T. Prevedel”

T. PREVEDEL

MEMBER

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

Procedural Order

ISSUE DATE: December 8, 2021 CASE NO.: PL210117

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

Applicant and Appellant: Sycamore Construction Ltd. & 2395959 Ontario Inc.

Subject: Application to amend Zoning By-law No. 74-53, as amended, and Zoning By-law No. 2017-66, as amended - Neglect of the Township of King to make a decision

Purpose: To permit the development of a residential plan of subdivision containing 51 single detached residential lots and a new public road

Property Address/Description: Part of the East Half of Lot 32, Concession 9

Municipality: Township of King

Municipality File No.: Z-2017-11

LPAT Case No.: PL210117

LPAT File No.: PL210117

LPAT Case Name: Sycamore Construction Ltd. & King (Township)

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Sycamore Construction Ltd. & 2395959 Ontario Inc.

Subject: Conditions of approval of draft plan of subdivision

Property Address/Description: Part of the East Half of Lot 32, Concession 9

Municipality: Township of King

Municipal File No.: 19T-17-K02

LPAT Case No.: PL210117

LPAT File No.: PL210118

The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

The video hearing will begin on Monday, February 14, 2022 at 10a.m.
The length of the hearing will be 5 days. The length of the hearing may be shortened as issues are reordered as settlement is achieved.
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).
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.
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 consent or by Order of the Tribunal.
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.
Any person who intends on participating 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

A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the municipal clerk a list of the witnesses and the order in which they will be called. This list must be delivered on or before December 23, 2021. 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. Any challenge by a party to the area of expertise in which a witness is proposed to be qualified and provide expert evidence must be brought no later than December 30, 2021 by way of a Motion in accordance with the Tribunal’s Rules.
Expert witnesses in the same field shall have a meeting on or before January 10, 2022 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties and the municipal Clerk on or before January 10, 2022.
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 section 12. 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.
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 section 12. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section 12.
On or before January 18, 2022 the parties shall provide copies of their witness and expert witness statements to the other parties and to the municipal Clerk of the Township of King.
On or before January 18, 2022 a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before February 4, 2022 the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and file with the Clerk a written response to any written evidence on or before February 1, 2022.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with the Tribunal’s Rules.
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.
The parties shall cooperate to prepare Joint Document Books. A final copy of the Joint Document Books shall be shared with the OLT case co-ordinator on or before February 4, 2022 in digital PDF format and hard copy. All parties are entitled to receive digital and/or hard copies of the Joint Document Books according to their preference, and in such quantities of paper copies as they may request. Costs for producing the Joint Document Books shall be shared amongst the parties, however each party shall bear their own printing costs for any hard copies they request.
The parties shall prepare and file a hearing plan with the Tribunal on or before February 7, 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.
Documents may be delivered by personal delivery, registered or certified mail or email, or otherwise as the Tribunal may direct. The delivery of documents by email shall be governed by the Tribunal’s Rules (Rule 7) on this subject. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification.
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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Sycamore Construction Ltd. & 2395959 Ontario Inc. Counsel/*Agent: Quinto Annibale, Brendan Ruddick Loopstra Nixon LLP 135 Queens Plate Drive, Suite 600 Toronto, ON M9W 6V7 E-mail: qannibale@loonix.com/ bruddick@loonix.com Tel: 416-748-4757
Township of King Counsel/*Agent: Tom Halinski Aird & Berlis LLP 181 Bay Street Suite 1800 Toronto, ON M5J 2T9 E-mail: thalinski@airdberlis.com Tel: 416-865-7767

B. PARTICIPANTS

Paolo Sacilotto

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

Sycamore Construction Ltd. & 2395959 Ontario Inc.

Are conditions 1, 3, 4, 8, 11, 17, 18, 24, 29, 31, 33-35, 36, 38, 39, 43, 45, 50, 52, 55-57, 59, 60, 61, 70, 76, 77, 81 and 87 as expressed in the Conditions of Draft Approval reasonable, relevant, necessary, and equitable?
Does the requirement to modify the proposed road connection with Roselena Drive per condition 1 conform to the approved secondary plan and new Township of King Official Plan? Is this requirement contrary to the Transportation Master Plan? Should condition 1 be amended to remove the requirement to modify the proposed road connection?
If condition 1 is not amended to remove the requirement to modify the proposed road connection with Roselena Drive should the condition be amended to provide that any such modification will be undertaken at no cost to the Owner and that the Owner be compensated for the resultant loss of parkland, open space, and removal of vegetation?
Should paragraph 2 of condition 3 be revised to delete the following text “to comply with all of the financial, legal, and engineering requirements as adopted by Council for the Township of King and”?
Should condition 4 be amended to add the words “unless otherwise agreed to by the Township or unless such services are DC recoverable projects” after “at no cost to the Township” to allow for DC recoverable projects?
Should condition 8 be deleted in its entirety on the basis that it is redundant as the requirement is already provided for in condition 2G?
Should condition 11 be amended to provide for the assignment of water and sanitary sewer allocation to “blocks” in addition to “units/lots” to allow for the potential servicing of Block 52 consistent with condition 52?
Should conditions 17 and 18 be revised to provide that the surveyor certificate will confirm the area of all lots and blocks within the Plan but not compliance with the provisions of the Township of King zoning by-law?
Should condition 24 be amended to take into account the over-dedication of parkland provided for in Phase 1 of the Subdivision? Should condition 24 be further amended to recognize that lands dedicated for the purpose of trails, access, public uses, woodlot additions and woodland restoration areas shall be recognized as counting towards the parkland dedication requirement? Should condition 24 be further amended to remove a reference to the provision of “cash-in-lieu” on the basis that the parkland dedication requirements have been and will be met entirely through the dedication of land?
Should condition 29 be amended to require that open space and trails be consistent with a public open space master plan that includes trails to be prepared by the Township? Should condition 29 be further amended to state that any work undertaken by the Owner with respect to the design or construction of a trail/walkway system shall be subject to Development Charge credits?
Should conditions 31 and 77 be deleted in their entirety such that future maintenance of landscaping features, including fences, acoustic devices, retaining walls, etc. once completed according to approved plans, would be the responsibility of the Township of King or individual homeowners and once the land on which the infrastructure is located is dedicated or lots are sold, as the case may be?
Should conditions 33 and 87 be deleted in their entirety on the basis that there are no adjacent residential uses and screening from parks and trails is unnecessary?
Should condition 34, which requires the Owner to reconstruct Church Street across the entire frontage of the Draft Plan to a full urban standard be deleted in its entirety? Similarly, should condition 43 be amended to remove the requirement that the updated FSR include a plan and section view of the reconstructed Church Street alignment?
Should condition 35, which requires the Owner to provide pedestrian connectivity from the Draft Plan to 149 Church Street be deleted in its entirety?
Should condition 38 be deleted in its entirety given that the requirement is already provided for in condition 16?
Should the first sentence of condition 39, requiring the Owner to provide a financial contribution equal to the full life cycle cost of Foundation Drain Collector systems dedicated to the Township be deleted in its entirety?
Should conditions 45 and 50 be amended to provide that any external upgrades that are provided by the Owner are eligible for Development Charges credits? Should condition 45 be amended to clarify how the Owner’s “share” will be determined.
Is condition 52 consistent with condition of draft approval number 6A imposed by the Township of King Committee of Adjustment in consent application file 04-B-21 or should it be revised?
Should conditions 55, 56, and 57 be deleted in their entirety?
Should condition 59 be amended to require that compensation will be paid to the Owner as a result of any lands that are required to be dedicated to accommodate the drainage channel north of lot 51 and for the cost of designing and constructing any retaining wall that is required to be constructed on lot 51?
Should the last sentences of conditions 60 and 61, which would require the Owner to provide a financial contribution equal to the full lifecycle cost of any LID infrastructure constructed in the Township’s right of way be deleted in their entirety?
Is condition 70 as drafted necessary and appropriate?
Should condition 76 be deleted in its entirety?
Should condition 81 be revised to acknowledge that such external payments will be eligible for Development Charges credits?
Should condition 87 be deleted in its entirety?

The Township of King

Should the proposed Zoning By-law Amendment be modified to reflect the Tribunal's determination respecting issues 1 through 25 and, if so, how?

ATTACHMENT 3

ORDER OF EVIDENCE

NOTE: Where parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence.

Evidence-in-Chief

Sycamore Construction Ltd. & 2395959 Ontario Inc.
Township of King

Reply Evidence

Sycamore Construction Ltd. & 2395959 Ontario Inc.

ATTACHMENT 4

Meaning of terms used in the Procedural Order:

A 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. An unincorporated group cannot be a party and 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 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). Section 17 of the Ontario Land 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 a list of reports or materials 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 supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

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

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

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 5

KEY DATES

Item	Deadline
Witness List	December 23, 2021
Motions challenging qualifications of Experts	December 30, 2021
Expert’s Meetings	January 10, 2022
Agreed Statement of Facts and Issues	January 10, 2022
(Expert) Witness Statements, Participant Statements, Outlines of Evidence	January 18, 2022
Reply Witness Statements	February 1, 2022
Hearing Plan	February 7, 2022
Visual Evidence	February 4, 2022
Joint Document Books to be provided to all Parties and the Tribunal	February 4, 2022
Hearing Commences	February 14, 2022