Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 13, 2021

CASE NO(S).: PL200634

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Damas Development Inc.
Subject: Proposed Official Plan Amendment (OPA 726)
Municipality: City of London
LPAT Case No.: PL200634
LPAT File No.: PL200634
LPAT Case Name: Damas Development Inc. v. London (City)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Damas Development Inc.
Subject: Proposed Official Plan Amendment (OPA 27)
Municipality: City of London
LPAT Case No.: PL200634
LPAT File No.: PL200635

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

Appellant: Damas Development Inc.
Subject: By-law No. Z-1-202886
Municipality: City of London
LPAT Case No.: PL200634
LPAT File No.: PL200636

Heard: June 17, 2021 by video hearing

APPEARANCES:

Parties
Counsel/Representative*

City of London
Aynsley Anderson*

Damas Development Inc.
Hesham Baroudi

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON JUNE 17, 2021 AND ORDER OF THE TRIBUNAL

1The Ontario Land Tribunal (“OLT” or “Tribunal”) convened a video hearing on June 17, 2021 to conduct the first Case Management Conference (“CMC”) in this proceeding. This matter involves an appeal by Damas Development Inc. (“Damas” or the “Appellant”) under: (a) s. 17(24) of the Planning Act, R.S.O 1990, c. P. 13 (“Act”) of the adoption by the Council of the City of London (“City”) of Official Plan Amendment No. 726 (“OPA 726”) which amended the City’s Official Plan; and (b) s. 34(19) of the Act, of the City Council’s decision to amend its Zoning By-law No. Z.-1-202886 (“ZB”) in respect of the lands known municipally as 129 Meadowlily Road South in the City owned by the Appellant (“Subject Lands”). The effect of the changes under OPA 726 and the ZB is to create a new boundary for the Meadowlily Woods Environmentally Significant Area (“Meadowlily ESA”) which in turn allegedly precludes development of the Subject Lands by Damas.

2The matters to be dealt with at this CMC were: (i) to consider any requests for Party or Participant status; (ii) to receive submissions concerning a draft Procedural Order; and (iii) to consider any further related matters raised by the Parties or Participants.

Requests for Party and Participant Status

3The following individuals sought Participant status: Sandy Levin and Anna Maria Valastro. Mr. Levin is a City resident and member of its Environmental and Ecological Planning Advisory Committee, and a former City councillor. Neither Party objected to his request for Participant status.

4Ms. Valastro is a community activist with a keen interest in environmental issues and took an active role at the City’s public meetings related to the Subject Lands and the appeals. She filed her request one day late which seemed to be the sole basis for an objection from counsel for Damas, made in writing prior to the CMC. Counsel for the City had no objections to Ms. Valastro’s request for Participant status, but relayed on behalf of Damas’ counsel (who was unable to attend the CMC due to another OLT hearing) a consent submission that as a condition of granting Ms. Valastro’s request, she be confined to only the written submission she made along with her late request.

5Taking into account the relevant provisions of the Tribunal’s Rules of Practice and Procedure (“Rules”) and of the Ontario Land Tribunals Act, 2021, S.O. 2021, c. 4, including but not limited to those provisions which empower the OLT to relieve as against any timelines in the interests of achieving an expeditious and just determination of this proceeding, the Tribunal granted Participant status to Mr. Levin and to Ms. Valastro in this matter. The Tribunal declined to impose any conditions on either Participant limiting their right to file a written submission in accordance with the Rules within the timelines set out in the Procedural Order governing this case.

6No other person present at the CMC sought Party or Participant status.

Procedural Order and Related Matters

7Counsel on behalf of the City, and also Damas, indicated that the Parties expected to be able to file a consent draft Procedural Order (“PO”) within 2 weeks of the CMC and that they had agreed that this case would require a 7-day hearing which they hoped could be scheduled to be heard either in early December 2021 or, failing that, in early 2022.

8Subsequent to the CMC, the OLT received the Parties’ draft PO, which reflected the Parties’ further agreement to narrow the scope of the appeal. The Appellant now limits its appeal to only the area delineated in the PO (“Appealed Area”) as set out in Attachment 1 hereto. More precisely, the Parties now agree that the issues to be heard on appeal pertaining to the boundary for the Meadowlily ESA, OPA 726 and the ZBA are limited to the Appealed Area. This is now reflected in the PO submitted by the Parties’ counsel and need not be the subject of a further specific Order by the Tribunal.

ORDER

9The Tribunal orders as follows:

(a) The hearing of these appeals shall commence on Tuesday, April 12, 2022, at 10 a.m. and shall continue until April 22, with the exception of April 15 and April 18 (which are both statutory holidays). The Parties 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/549346933

Access Code: 549-346-933

For the video hearing, all Parties, witnesses or observers 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.

Individuals are directed to connect to each of the events on the assigned dates at the correct time. It is the responsibility of the persons participating in the hearings 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.

Persons who experience technical difficulties accessing either of the video hearing events using 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 as indicated above.

(b) This proceeding shall be governed by the Procedural Order issued by the Tribunal as set out in Attachment 1 hereto. In the event that the Parties wish to further revise any of the dates set out in the Procedural Order, they may request this on a timely basis from the Tribunal.

“William R. Middleton”

WILLIAM R. MIDDLETON

MEMBER

Ontario Land Tribunal

Website: www.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.

PL200634 – Attachment 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Damas Development Inc.
Subject: Proposed Official Plan Amendment (OPA 726)
Municipality: City of London
LPAT Case No.: PL200634
LPAT File No.: PL200634
LPAT Case Name: Damas Development Inc. v. London (City)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Damas Development Inc.
Subject: Proposed Official Plan Amendment (OPA 27)
Municipality: City of London
LPAT Case No.: PL200634
LPAT File No.: PL200635

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

Appellant: Damas Development Inc.
Subject: By-law No. Z-1-202886
Municipality: City of London
LPAT Case No.: PL200634
LPAT File No.: PL200636

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 Tuesday, April 12, 2022 commencing at 10 a.m. and shall continue until April 22, 2022, as follows:

GoTo Meeting: https://global.gotomeeting.com/join/549346933

Audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391

Access Code: 549-346-933

3. The parties’ initial estimation for the length of the hearing is 7 days. The Tribunal will not be sitting on April 15, 2022 (Good Friday) or April 18, 2022 (Easter Monday). 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.

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 16, 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.

10. Expert witnesses in the same field shall have a meeting on or before February 22, 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 March 28, 2022.

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 March 7, 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 March 7, 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 March 14, 2022, 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.

16. Parties may provide to all other parties and the OLT Case Co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Co-ordinator on or before April 1, 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, on or before April 8, 2022.

19. 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.

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 1, 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 filings shall be submitted electronically 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 by email shall be governed by the 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.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES AND PARTICIPANTS

1. City of London (Party)
2. Damas Development Inc. (Party)
3. Sanford Levin (Participant)
4. Anna Maria Valastro (Participant)

ATTACHMENT 2

ISSUES LIST

“Appealed Area” is shown in Schedule A

1. Is the inclusion of the Appealed Area within the boundaries of the ESA consistent with sections 1.1.1(a), 1.1.3.1, 1.1.3.2(a) of the Provincial Policy Statement 2020?
2. Is the inclusion of the Appealed Area in the ESA consistent with policy 1367 of the London Plan? a. Does the Appealed Area contain old fields and cultural woodlands and if so to what extent is it consistent with the EMG to include these areas in the ESA boundary? b. Is the Appealed Area habitat for Monarch and, if so, is inclusion of the habitat consistent with the EMGs?
3. Do either of 1368 and 1369 apply to the appealed instruments, i.e. does the Appealed Area constitute the addition of a new ESA, required to conform with 1368, or does the Appealed Area constitute “certain lands adjacent to” and required to conform with 1369?
4. If 1369 applies, did sufficient site-specific evaluation, including application of the Guideline Documents for ESAs Identification, Evaluation and Boundary Delineation occur to justify inclusion of the Appealed Area?
5. Should the Appealed Area be assessed in isolation, and if so, does the Appealed Area satisfy two or more of the criteria for Environmentally Significant Areas in policy 1371, if applicable?
6. If the Appealed Area is excluded from the ESA would the remainder of the ESA meet the criteria in policy 1371?
7. Does inclusion of the Appealed Area represent sound land use planning in the public interest?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Damas Development Inc. (Party)
2. City of London (Party)

Attachment to Sample Procedural Order

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.