Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 15, 2021
CASE NO(S).:
PL210032
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
4005 Hickory Drive Ltd.
Appellant:
Calloway REIT (Mississauga) Inc.
Appellant:
Choice Properties REIT
Appellant:
First Capital (Meadowvale) Corporation; and others
Subject:
Proposed Official Plan Amendment No. CD.03- REI - OPA 115
Municipality:
City of Mississauga
OLT Case No.:
PL210032
OLT File No.:
PL210032
OLT Case Name:
Calloway REIT (Mississauga) Inc. v. Mississauga (City)
Heard:
December 7, 2021
APPEARANCES:
Parties
Counsel
City of Mississauga (“City”)
L. Magi
Sheridan Retail Inc.
L. Johnston/M. Nemanic
Calloway REIT (Mississauga) Inc. First Capital (Meadowvale) Corporation
D. Bronskill
4005 Hickory Drive Ltd.
M. Laskin
Prime Real Estate Group Inc.
M. Cara
Choice Properties REIT
D. Betlej
The Children’s Centre South Common Court Inc.
P. Bottos
MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON DECEMBER 7, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal held a Case Management Conference (“CMC”) for which there was an ambitious agenda including:
a. a Motion for partial approval of Official Plan Amendment No. 115 (“OPA 115”) and the scoping of issues on consent;
b. a draft Procedural Order and draft Issues List;
c. a request for a phased hearing in which Phase 1 would include written submissions followed by a 5 days of legal argument;
d. a request for a 25 day hearing for Phase 2;
e. notice that the parties were going to seek Tribunal-led mediation; and
f. notice that there could possibly be a 3rd Phase to the hearing process.
2For the reasons set out below, the Tribunal granted the Motion for partial approval, but deferred consideration of the draft Procedural Order, the phasing requests and the hearing requests to a further CMC set for Thursday, February 17, 2022 commencing at 10 a.m. by VH, and recommended that the parties make a request for Tribunal-led mediation.
MOTION
3Exhibit 1 to the CMC is the Motion Record of the City seeking partial approval of OPA 115, relying on the affidavit of Ben Phillips, Manager of Official Plan with the City, and the motion comes on consent.
4The affidavit provides that the parties have agreed to scope their respective issues and paragraphs 20, 21, 22, 23, and 24 of Mr. Phillips’ affidavit contain the outstanding policies remaining under appeal.
5Mr. Phillips opines that the unappealed portions of OPA 115 represent good land use planning, are consistent with the Provincial Policy Statement, conform to A Place to Grow: the Growth Plan for the Greater Golden Horseshoe, conform to the Region of Peel Official Plan, and the City’s Official Plan. He further opines that there is no land use planning ground as to why the appeals should not be scoped and that the unappealed balance of OPA 115 come into force and effect.
6The Tribunal having read the affidavit of Mr. Phillips, and having heard the submissions of counsel, allowed the motion and granted partial approval of OPA 115, and provided directions to the counsel of the City for modest refinements to the draft Order (found in Exhibit 1, Tab E) which amended Order is now appended to the Tribunal’s Decision as Attachment 1 and forms part of this Decision.
DRAFT PROCEDURAL ORDER AND ISSUES LIST
7Exhibit 2 is the draft Procedural Order and Exhibit 3 is the draft Consolidated Issues List.
8These exhibits anticipate a phased hearing approach and a that there will be a request for Tribunal-led mediation.
9Exhibit 2 provides for: written submissions and requests a 5 day hearing of legal argument only addressing legal questions for Phase 1, and a 25 day hearing for Phase 2. There are draft issues for Phase 3 but that is to be finalized after the outcome of Phase 1.
10While counsel for the City believed that there was a consensus among counsel on how Phase 1 might proceed, under questioning from the Tribunal it became abundantly clear that not all counsel shared the City’s vision for the Phase 1 hearing process.
11While Exhibit 2 clearly outlines a process of written submissions leading up to a 5 day hearing of legal argument addressing only the legal questions in Exhibit 3, some counsel indicated that they want to call oral evidence and to be able cross examine on expected affidavit evidence from the City.
12Counsel for the City was completely surprised by these submissions.
13In these circumstances, the Tribunal suggested, and the parties were agreeable to, a short postponement of the proceedings, to allow all counsel to review and reconsider how Phase 1 might proceed.
14Thus, the Tribunal set a further CMC for Thursday, February 17, 2021 commencing at 10 a.m. by VH.
15Parties 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/171746605
Access code: 171-746-605
16Parties 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
17Persons 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: (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 171-746-605.
18Individuals 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.
19The Tribunal also directed that the parties:
a. communicate and attempt to arrive at a consensus on the conceptual approach to Phase 1;
b. Communicate with Sandra Chan at the Tribunal with regard to seeking Tribunal-led mediation; and
c. If the parties agree on a revised draft Procedural Order and Issues List, that it be filed with the Tribunal’s Case Coordinator as soon as possible for review by the Tribunal in preparation for the CMC on Thursday, February 17, 2022.
20There will be no further notice
21I am not seized.
22As noted above, appended to this Decision is Attachment 1 which forms part of this Decision.
23Scheduling permitting, I may be available for case management purposes.
24This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
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.
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 10, 2021
CASE NO.:
PL210032
IN THE MATTER of subsection 17(24) of the Planning Act, RSO 1990, c P.13, as amended,
Appellant: 4005 Hickory Drive Ltd.
Appellant: Calloway REIT (Mississauga) Inc.
Appellant: Choice Properties REIT
Appellant: First Capital (Meadowvale) Corporation
Appellant: Prime Real Estate Group
Appellant: Sheridan Retail Inc.
Subject: Proposed Official Plan Amendment No. CD.03-REI – OPA 115
Municipality: City of Mississauga
OLT Case No.: PL210032
OLT File No.: PL210032
OLT Case Name: Calloway REIT (Mississauga) Inc. v. Mississauga (City)
BEFORE:
BLAIR S. TAYLOR
Friday day, the 10th^th^
MEMBER
day of December, 2021
THIS MATTER having come before the Tribunal in a motion heard on October 14, 2021, and having heard submissions of the Parties, THE TRIBUNAL ORDERS AS FOLLOWS:
Official Plan Amendment 115, known as Reimagining the Mall (“OPA 115”), came into effect on the day after the last day for filing a notice of appeal, being January 7, 2021, in accordance with the provisions of subsection 17(27) of the Planning Act, RSO 1990, c P.13, with the exceptions as described in paragraphs 20, 21, 22, 23, and 24 and shown in Exhibit “D” to the affidavit of Ben Phillips, sworn October 4, 2021.
The coming into effect of certain portions of OPA 115 shall be strictly without prejudice to, and shall not have the effect of:
(a) limiting the resolution of an appellant’s appeal;
(b) affecting a party’s right to seek to modify, delete or add to the unapproved associated text; or
(c) limiting the jurisdiction of the Tribunal to consider and approve modifications, deletions or additions on a general, area or site-specific basis.
The coming into effect of certain portions of OPA 115 is without prejudice to the positions taken by the parties to any site-specific and/or area-specific appeal so that if those appeals proceed to a hearing, either on their own or as may be consolidated with other appeals, the City will not take the position that the Tribunal ought not to approve site- or area-specific modifications to the affected sections, tables, definitions, maps, schedules, and associated text, on the basis that they deviate from or are inconsistent with such sections, tables, definitions, maps, schedules, and associated text on a City-wide basis (or as approved in respect of other lands which are subject to the same sections, tables, definitions, maps, schedules, and associated text). However, this does not affect the City’s right to assert that the approved sections, tables, definitions, maps, schedules, and associated text should be applied to the specific sites or areas without modification on the basis that they constitute good planning;
Notwithstanding anything ordered above, the City has not conceded that any portions of the OPA 115 that have not come into effect are properly under appeal and the City has reserved the right to bring motions or take any other action to have the breadth and scope of any appeal determined by the Tribunal at a future date.
Any potential settlements may be brought forward for approval by the Tribunal by way of telephone conference call upon prior notice and circulation of the information to the parties.
Notwithstanding the above, the Tribunal hereby retains jurisdiction to consider and approve modifications to any policies, schedules, maps, figures, definitions, tables, and associated text, etc., approved herein, as may be appropriate to dispose of any of the outstanding appeals before the Tribunal.
“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.