Arnon Corp./Gilad Properties Ltd. v. Ottawa (City), 2021 CanLII 66096

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 21, 2021

CASE NO(S).:

PL190586

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

Appellant:

Arnon Corp./Gilad Properties Ltd.

Appellant:

Dov (495 Richmond) Ltd.

Appellant:

Richcraft Homes

Appellant:

T.K.S. Holdings Inc.; and others

Subject:

By-law No. BL 2019-353

Municipality:

City of Ottawa

OLT Case No.:

PL190586

OLT File No.:

PL190586

OLT Case Name:

Arnon Corp./Gilad Properties Ltd. v. Ottawa (City)

Heard:

June 30, 2021 via telephone conference call

APPEARANCES:

Parties

Counsel

City of Ottawa

Timothy Marc

Uniform Properties Ltd.

Michael Polowin (did not appear)

T.K.S. Holdings Inc.

Laura Robinson and Emma Blanchard

Dov (495 Richmond) Ltd.

Eileen Costello

Arnon Corp./Gilad Properties Ltd. and Richcraft Homes Ltd.

Philip Osterhout and Ursula Melinz

MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON JUNE 30, 2021 AND ORDER OF THE TRIBUNAL

1This is the second Case Management Conference respecting appeals against Zoning By-Law No. 2019-353, which introduces new zoning provisions affecting the construction of high-rise buildings.

2Counsel for the City of Ottawa (“City”) provided the Tribunal with an update on the status of the remaining appeals and advised that following discussions, the parties are prepared to proceed to a hearing.

3Counsel for Uniform Properties Ltd. (“Uniform”) did not appear but indicated via e-mail correspondence that its appeal was not yet withdrawn and will remain as a party. The Tribunal was advised that Uniform has an application before City Council and that if successful, the appeal will then be withdrawn

4The hearing is scheduled for Monday, July 11, 2022 commencing at 10 a.m. via video conference.

5Ten (10) days have been set aside.

6Parties 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/540412965

Access code: 540 412 965

7Parties 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.

8Persons 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 540 412 965.

9Individuals 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.

10The proceeding will be governed by Schedule 1 hereto.

11I am not seized.

12There will not be any further notice.

13It 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.

SCHEDULE 1

ONTARIO LAND TRIBUNAL

TRIBUNAUX DE L’AMÉNAGEMENT DU TERRITOIRE ONTARIO

ISSUE DATE: July 21, 2021 CASE NO(S).: PL190586

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

Appellant:

Arnon Corp./Gilad Properties Ltd.

Appellant:

District Realty Corporation

Appellant

Richcraft Homes Ltd.

Appellant:

Dov (495 Richmond) Ltd.; and others

Subject:

By-law No. BL 2019-353

Municipality:

City of Ottawa

LPAT Case No.:

PL190586

LPAT File No.:

PL190586

LPAT Case Name:

Arnon Corp./Gilad Properties Ltd. v. Ottawa (City)

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 July 11, 2022 at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is 10 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.

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 after April 1, 2022, 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 May 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 June 20, 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 LPAT case co-ordinator on or before June 24, 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 May 30, 2022, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the LPAT case co-ordinator and in accordance with paragraph 22 below.

14. Not applicable (no participants).

15. On or before June 27, 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 June 20, 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 July 4, 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 June 20, 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.

BEFORE:

Name of Member: R.G.M. Makuch

Date: July 21, 2021

TRIBUNAL REGISTRAR

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.

ATTACHMENT 1

PARTIES

1. Richcraft Homes Ltd.

2. Arnon Corporation/Gilad Properties Limited

3. Dov (495 Richmond) Limited

4. T.K.S. Holdings Inc.

5. Uniform Properties Ltd.

6. City of Ottawa

ATTACHMENT 2

ISSUES

General

1. Is Zoning By-law Amendment 2019-353consistent with the Planning Act?

2. Is Zoning By-law Amendment 2019-353 consistent with the Provincial Policy Statement (PPS) (2020)?

3. Is Zoning By-law Amendment 2019-353 in conformity with the Official Plan in general and Sections 2.1, 2.2, 2.5.1 and 4.11 specifically?

4. Is the protection of public views properly regulated by a Zoning By-law?

5. Is Zoning By-law Amendment 2019-353 in keeping with and supportive of the PPS and Official Plan’s intensification goals? Specifically, in addition to the Official Plan sections referenced in Issue 3, is Zoning By-law Amendment 2019-353 compatible with

(a) Section 2.2.2 (Target Areas for Intensification),

(b) 2.2.2.4 (Target Areas on Rapid Transit and Transit Priority Networks) and

(c) 3.6.6 (Central Area Designation) of the Official Plan?

6. Is it appropriate for the Zoning By-law Amendment 2019-353 regulations to remove development rights under City of Ottawa Zoning By-law (2008-250) on properties without an equal amount of compensation? [**Issue may be removed but parties to advise if so at least 10 weeks prior to hearing date]

7. Has the City met the test for downzoning under Zoning By-law Amendment 2019-353 by demonstrating a compelling public interest?

8. Is it appropriate to remove anticipated development rights without compensation where there is an existing disconnect between planning policies under the Provincial Policy Statement 2020 and the City of Ottawa Official Plan and current development rights under City of Ottawa Zoning By-law (2008-250)?

9. Are the required 20 metre separation distances between towers (for properties located inside the Greenbelt but outside the MD zone), as required by the Zoning By-law Amendment 2019-353 regulations, appropriate?

10. If a separation distance between towers is appropriate, is it appropriate to define this within a Zoning By-law given the existence of Council-approved Urban Design Guidelines for High-Rise Buildings (2018) and Official Plan policies dealing with urban design and compatibility/compatible development?

11. If a high-rise zoning setback is appropriate as a Zoning By-law regulation, is it appropriate to have one standard apply across three areas of the City~~,~~ or should site-specific, contextual, and geographic locational circumstances considering provincial and City of Ottawa Official Plan policies and urban design guidelines be applied to determine what the appropriate setback is for each site?

12. Are the tower setbacks from shared property lines, as specified in theZoning By-law Amendment 2019-353 regulations, appropriate and do they represent good planning?

13. Is it appropriate to establish tower setbacks as Zoning By-law regulations? Or should site specific, contextual, geographic locational circumstances and design options be considered to determine what the appropriate tower setback should be?

14. Is it appropriate and necessary to establish minimum lot areas for high-rise developments as proposed within the Zoning By-law Amendment 2019-353 regulations if increased tower setbacks from shared lot lines and tower separation distances are also required?

a. If the answer is yes, have the minimum lot areas been established correctly?

Site Specific

15. With respect to the properties listed below:

a. Should the property be excluded from the by-law due to site specific development approval or other factors?

b. Does the failure of the by-law to account for site specific context, represent good planning?

c. Specifically, is the imposition of a minimum lot area appropriate or necessary when the application of tower setbacks on sites could render the lot area redundant?

d. If the answer to a/b is “no”; can the by-law be amended to provide greater flexibility for site specific context, in a manner consistent with the PPS and in conformity with the City OP?

i) 19 Centrepointe Drive to be considered by Council on July 21, 2021

ii) 1002 Karen Way

iii) 143 Didsbury Road

iv) 180 and 190 Besserer Street

v) 1564-1574 Carling

vi) 335 Roosevelt Avenue

vii) 264 Rideau Street

a. In addition to the Official Plan sections referenced in Issue 3 and above, is Zoning By-law Amendment 2019-353 in conformity with Section 2.2.2 (Target Areas for Intensification), 2.2.2.4 (Target Areas on Rapid Transit and Transit Priority Networks) and 3.6.6 (Central Area Designation) of the Official Plan?

b. Is Zoning By-law Amendment 2019-353 in conformity with the Secondary Plan for the Central Area

16 . With respect to 495 Richmond Road:

a. Does the failure of the by-law to account for site specific context, such as the location of 495 Richmond Road adjacent to Open Space lands, represent good planning?

b. Specifically, is the imposition of a minimum lot area appropriate or necessary when the application of tower setbacks on sites such as 495 Richmond Road could render the lot area redundant?

c. If the answer to a/b is "no"; can the by-law be amended to provide greater flexibility for site specific context, in a manner consistent with the PPS and in conformity with the City OP?

17 On a site specific basis, with respect to the indicated sites, is

a. Heritage (180 and 190 Besserer)(495 Richmond) or

b. Adjacency to open space/parks (19 Centrepointe)(495 Richmond)

a relevant constraint and, if so, is it a constraint which would limit the ability to develop a high rise building?

ATTACHMENT 3

ORDER OF EVIDENCE

1. City Overview

2. Richcraft Homes Ltd.

3. Arnon Corporation/Gilad Properties Limited

4. Dov (495 Richmond) Limited

5. T.K.S. Holdings Inc.

6. Uniform Properties Ltd.

7. City of Ottawa

Subject to modification in accordance with the Hearing Plan.