Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

December 17, 2021

CASE NO(S).:

OLT-21-001045

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13., as amended

Referred by:

Velmar Centre Property Limited

Subject:

Site Plan

Property Address/Description:

4101 Rutherford Road

Municipality:

City of Vaughan

OLT Case No.:

OLT-21-001045

OLT File No.:

OLT-21-001049

OLT Case Name:

Velmar Centre Properties Limited v. Vaughan (City)

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

Applicant and Appellant:

Velmar Centre Property Limited

Subject:

Request to amend the Official Plan - Failure of the City of Vaughan to adopt the requested amendment

Existing Designation:

Low-Rise Mixed-Use

Proposed Designation:

To maintain the Low-Rise Mixed-Use designation but to increase the maximum permitted building height and floor space index from 4-storeys and 1.5 times the area of the lot to 7-storeys and 3.15 times the area of the lot respectively

Purpose:

To permit the development of a 7-storey mixed-use residential building consisting of 139 residential units with 12,420 square metres of residential gross floor area, 615 square metres of commercial gross floor area

and a floor space index of 3.15

Property Address/Description:

4101 Rutherford Road

Municipality:

City of Vaughan

Approval Authority File No.:

OP.19.003

OLT Case No.:

OLT-21-001045

OLT File No.:

OLT-21-001045

OLT Case Name:

Velmar Centre Property Limited v. Vaughan (City)

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

Applicant and Appellant:

Velmar Centre Property Limited

Subject:

Application to amend Zoning By-law No. 1-88, as amended - Neglect of the City of Vaughan to make a decision

Existing Zoning:

C3 Local Commercial Zone, subject to site specific Exception 9(814)

Proposed Zoning:

RA2 Apartment Residential Zone, together with the

necessary site-specific zoning to implement the proposed development

Purpose:

To permit the development of a 7-storey mixed-use residential building consisting of 139 residential units with 12,420 square metres of residential gross floor area, 615 square metres of commercial gross floor area and a floor space index of 3.15

Property/Address/Description:

4101 Rutherford Road

Municipality:

City of Vaughan

Municipality File No.:

Z.19.008

OLT Case No.:

OLT-21-001045

OLT File No.:

OLT-21-001048

Heard:

November 9 and December 1, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

Velmar Centre Property Limited

Michael Melling and Alex Lusty

City of Vaughan

Marc Kemerer and Candace Tashos

Weston Downs Ratepayers Association

Paul DeMelo

Kevin Doan

Self-represented

Nick Ciappa

Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON NOVEMBER 9 AND DECEMBER 1, 2021 AND ORDER OF THE TRIBUNAL

1This is the first Case Management Conference (“CMC”) respecting appeals by Velmar Centre Property Limited (“Applicant/Appellant”) against the City of Vaughan’s (“City”) failure to render decisions on its applications for Official Plan and Zoning By-law Amendments as well as for Site Plan Approval pursuant to sections 22(7), 34(11) and 41(12) of the Planning Act (the “Act”).

2The subject property is known municipally as 4101 Rutherford Road and is located at the southwest corner of Rutherford Road and Velmar Drive, and is adjacent to Velmar Downs Park to the southwest. The proposal is to permit the development of a seven-storey mixed-use residential building consisting of 139 residential units having 12, 420 square metres (m²) of residential gross floor area (“GFA”) and 615 m² of commercial GFA and a floor space index of 3.15.

3Requests for party status were made by and granted on consent to:

1. Kevin Doan

2. Nick Ciappa

3. Weston Downs Ratepayers’ Association

4The consent by the Applicant/Appellant to the granting of party status to Kevin Doan and Nick Ciappa was conditional on Messrs. Doan and Ciappa agreeing: to not delay the proceedings and to the setting of a hearing date forthwith; to not delay the filing of a preliminary motion intended by Mr. Doan; and, acknowledging that they are required to attend the hearing in its entirety and that they are aware that costs can be awarded by the Tribunal against a party. Provided that such conditions were in place, the Tribunal was satisfied that the addition of these three parties would enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding without prejudicing or delaying the timely determination of the Appeals. Both Mr. Doan and Mr. Ciappa have consented to these conditions.

5Requests for participant status were made by and granted to:

1. Anthony Turrin

2. Hiten Patel

6The Tribunal heard submissions from counsel respecting the draft issues list entered as Exhibit 2. A number of the issues included in this document were struck and some were amended on the grounds that some of these were duplicitous and some used language that imported tests that do not exist in the Act or in the various applicable policy documents. The Tribunal provided directions to the parties and counsel agreed that they would continue to have discussions respecting this issues list and to finalize it together with the Procedural Order (“PO”) no later than Friday, November 19, 2021.

7The Tribunal was advised prior to the CMC on November 9, that Mr. Doan had, on October 26, notified all of the parties that he intended to include what he described as a preliminary issue in the draft issues list, and, requested that it be ruled on before any expert reports are produced by the parties. The issue was initially articulated as follows:

Do the parties agree that they will not tender legal opinions through any of their expert witnesses? If any party disagrees, the Tribunal is requested to rule on the preliminary issue of whether or not any of the experts (planners, architects, engineers…) being made available by the parties is qualified to provide legal opinions in the proceedings.

8Also prior to the November 9 CMC, it appears that Mr. Doan expanded his preliminary list of issues and produced numerous revised versions of the proposed questions and ultimately, consented to the version of the Issues List produced for the November 9 CMC. It is noted that the parties had agreed to a timeline, for the hearing in writing, of a motion to determine certain issues in advance of the hearing. Mr. Doan’s proposed issues to be determined in the Motion were expanded to a number of related questions, and the parties ultimately consented to the “Preliminary Issues” for the Motion, as follows:

9It appears that this issue was expanded to a number of related questions and that the parties ultimately consented to the “Preliminary Issues” listed below:

1. Is any party permitted to adduce expert evidence which amounts to a legal opinion, or to evidence on an issue of mixed law and fact in the appeals?

2. If the answer to the above question is no, are any of the following issues of mixed law and fact, and beyond the scope of expert evidence in the appeals, namely, whether the applications:

3. meet the respecting and reinforcing test as set out under policy 2.2.3.2 of the Vaughan Official Plan;

4. conform to the Vaughan Official Plan;

5. conform to the Growth Plan;

6. are consistent with the Provincial Policy Statement; and

7. represent good planning?

10The parties also indicated, at the time, that they had come to an agreement respecting the timelines for the hearing of this motion in writing for inclusion in the PO.

11The Tribunal was subsequently advised that the Parties were having difficulty finalizing the terms of the PO and would require the assistance of the Tribunal to resolve these. The CMC was reconvened on December 1. The issues to be addressed by the Tribunal are the following:

1. Mr. Doan is suggesting that the Notice of CMC issued for the November 9, 2021 CMC was somehow null and that the recipients of this notice should be served with a corrected notice given that the “Explanatory Note” attached to the Notice, suggests that the proposal is for a six-storey building, whereas the proposal is for a seven-storey building;

2. Mr. Doan’s identified motion for certain preliminary issues and an additional motion respecting a constitutional question; and,

3. Mr. Ciappa’s objection to including the address of his place of residence in the PO.

CMC Issue 1 – Service of the Notice of the CMC

12With respect to Issue 1, Mr. Doan submitted that he was raising this issue because as an officer of the court, he felt he was obliged to bring it to the Tribunal’s attention notwithstanding that he had failed to raise it at the CMC on November 9, when the Affidavit of Service of the Notice of CMC was filed with the Tribunal and entered as an exhibit. The Tribunal finds that Mr. Doan’s concerns are without merit. The Title of Proceedings for both the Official Plan and Zoning By-law Amendment appeals clearly indicate that the proposal is to increase the maximum permitted building height from four storeys to seven-storeys. Furthermore, the same Title of Proceedings, states that the “Purpose” is to permit the development of a seven-storey mixed-use residential building. There is no evidence before the Tribunal of any prejudice to any member of the public as a result of the reference to a six-storey building in the “Explanatory Note”. The Tribunal confirms that the reference to six storeys in the Explanatory Note does not in any way render the Notice of CMC null or void and that adequate notice of the CMC was provided to the public as set out in Exhibit 1 filed at the CMC.

CMC Issue 2 – Motion Relating to Preliminary Issues

13With respect to Issue 2, it appears that Mr. Doan subsequent to the CMC on November 9, added a constitutional question to the “Preliminary Issues” for the Motion and that after considerable “back and forth”, the parties agreed to the “Final Preliminary Issues” listed below:

1. Constitutional Question : Is the scope of power or authority given to experts by the Ontario Land Tribunal ultra vires the Tribunal and unconstitutional?

2. Is a planner who is qualified as an expert before the Ontario Land Tribunal to provide opinion evidence in land use planning permitted by law to provide opinion evidence on a question of mixed law and fact, and on whether a proposed development:

3. Is good planning in the public interest:

4. has had regard for, and appropriately implements, matters of provincial interest as set out in s. 2 of the Planning Act;

5. is consistent with the Provincial Policy Statement, 2020

6. conforms to the Growth Plan for the Greater Golden Horseshoe 2020

7. conforms to the York Region Official Plan

8. conforms to the Vaughan Official Plan 2010 (VOP)

9. maintains the overall intent and objectives, or meets the general intent of the VOP, and

10. respects and reinforces the existing physical character and uses of the surrounding area pursuant to section 9.1.2.2 of the VOP?

14Subsequently on November 24, Mr. Doan advised counsel for the Applicant/Appellant as follows:

From my continuing review and consideration, the problems related to flawed expert evidence appear to clearly exist(s) at the Tribunal in my respectful view. However, the problems appear not to be limited only to this Tribunal but more broadly.

Accordingly, I intend to seek other actions which appear to offer broader remedies by steps taking themselves elsewhere, rather than conducting a preliminary Motion at the Tribunal, which Motion would also incur costs disproportionately to any Applicant involved, whether your client or anyone else’s client.

In the result, I confirm that I hereby consent to the preliminary issues and those dates relating to the Motion be removed from the draft PO.

15Counsel for the Applicant/Appellant filed a revised draft PO, removing the preliminary issues per the above correspondence.

16Counsel for the Applicant/Appellant raises this as an issue now because Mr. Doan, according to counsel, was now resiling from his agreement to drop these issues and intends to raise these same issues later in the proceeding and possibility at the hearing, without providing specifics.

17It is clear from the materials before it that the parties have had extensive discussions respecting this motion and that Mr. Doan from the beginning referred to this as a “preliminary issue”, which should be heard and ruled on before any of the expert reports are produced.

18The Tribunal agrees with counsel for the Applicant/Appellant and finds that the matters raised by Mr. Doan in his preliminary issues are generic inquiries respecting the Tribunal’s jurisdiction and the proper scope of expert evidence from land use planners as a class of experts.

19The Tribunal also agrees that it is unnecessary for the existence of a specific factual context for the preliminary issues to be determined as the issue are framed and intended to be answered in the general terms, in which these are being expressed. These are not particular to the land use planners who will tender written and /or oral evidence in the case at hand.

20It is also quite clear that any land use planning witness who will be filing an expert report and testifying at the hearing of these appeals, will be answering the questions raised in the preliminary issues submitted by Mr. Doan and that these witnesses will be proffering factual and opinion evidence to back up their conclusions on the different questions raised.

21Accordingly, any challenges on the basis of the Final Preliminary Issues should be made prior to any of the witnesses preparing and filing their expert reports in order to avoid the costs associated with preparing initial reports, and the possibility of preparing and filing subsequent reports depending on the Tribunal’s findings on any such challenge.

22The Tribunal has a wide discretion to control its proceedings in a manner that ensures the most just, fair, efficient, expeditious and cost-effective resolution available to it. In this case, this will be achieved by directing that Mr. Doan bring the above-mentioned motion, in accordance with the Tribunal’s order outlined below.

23The Tribunal therefore orders that any motion respecting the Final Preliminary Issues as outlined above to be made by Mr. Doan shall be filed and served on or before December 10, 2021, in accordance with the timelines set out in the PO being Attachment 1 hereto. In the event that Mr. Doan fails or refuses to bring such motion in accordance with this Decision, he is prohibited from raising the Final Preliminary Issues or any similarly-intended questions or objections at any time during the balance of the proceeding listed above or any similarly intended questions or objections at any time during the balance of this proceeding.

24The Tribunal notes that Rule 11.1 provides that where a party intends to raise a question about the constitutional validity or applicability of a matter before the Tribunal, notice of a constitutional question shall also be served and filed on the Attorney General of Canada and the Attorney General of Ontario with proof of service as soon as the issues requiring notice are known, and in any event, at least 15 days before the question is argued.

CMC Issue 3 - Disclosure of Party’s Address of Residence

25With respect to Issue 3, it is noted that Mr. Ciappa’s address of residence is included in the Affidavit of Service filed as Exhibit 1 at the CMC on November 9. It is also noted that Mr. Ciappa, at the time, did not object to his residential address being part of the Tribunal’s public record in this case.

26It is trite to suggest that the purpose for including addresses and contact information of an individual in a PO is to facilitate communication with and among Parties including the service of documents. Mr. Ciappa is not opposed to including his cellular phone number as well as his e-mail address in the PO.

27While Mr. Ciappa’s residential address is clearly relevant to his status as a party in this matter, the Tribunal will not order that it be included in the PO, but, directs as is provided in the Rules, that the Applicant/Appellant may effect personal service of any documents related to this proceeding on Mr. Ciappa at his personal residential address either personally, by ordinary mail, by e-mail or by all of these methods of service. Furthermore, Mr. Ciappa is ordered to provide notice to all parties to this proceeding of any change to his personal residential address as soon as practicable following any such move. Mr. Ciappa has acknowledged that the Tribunal cannot guarantee that his personal residential address would not be shared with the public by anyone who may obtain knowledge of such. He also acknowledged that he could be asked questions on cross-examination as to his personal residential address.

Scheduling and Procedural Order

28The hearing is scheduled to commence on September 19, 2022 at 10 am. by video.

29Parties 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/692665589

Access code: 692-665-589

30Parties 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

31Persons 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 692-665-589.

32Individuals 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.

33Fifteen days have been set aside.

34This proceeding shall be governed by Attachment 1 hereto.

35There will not be any further notice.

36I am not seized.

37It 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.