Penta Properties Inc. v. Burlington (City), 2021 CanLII 72208

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 03, 2021

CASE NO(S).: PL210150

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

Appellant: Penta Properties Inc.

Subject: By-law No. BL 2020-424

Municipality: City of Burlington

LPAT Case No.: PL210150

LPAT File No.: PL210150

LPAT Case Name: Penta Properties Inc. v. Burlington (City)

Heard: June 28, 2021 by Video Hearing ("VH")

APPEARANCES:

Parties	Counsel
Penta Properties Inc. ("Appellant")	S. Snider
Giampaolo Investments Limited ("Applicant")	P. Morley/L. English
City of Burlington	B. Hurley

MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON JUNE 28, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant sought a rezoning of the lands known municipally as 961, 970 Zelco Drive, and 4425 South Service Road ("Subject Lands") to permit a motor vehicle wrecking yard where the Applicant currently operates a metal recycling facility.

2The City Planning staff recommended approval of the rezoning application and City Council approved it.

3The Appellant (whose property abuts the Subject Lands) appealed alleging that the rezoning was inconsistent with the Provincial Policy Statement 2020 ("PPS"), failed to conform with A Place to Grow: the Growth Plan for the Greater Golden Horseshoe 2020 ("Growth Plan"), the Regional Official Plan, and the City's Official Plan on the grounds that the rezoning would be incompatible with the nearby land uses located within a mobility hub.

4The Tribunal held a Case Management Conference ("CMC") where it addressed all matters as set out in Rule 19.1 of the Tribunal's Rules of Practice and Procedure, and set down a 5 day hearing for December 13, 2021 by VH, all for the reasons set out below.

DECISION

5At the CMC, the Tribunal heard a status update from the parties which included being advised that the Applicant's actual desired use is for a mobile drainage unit on site. This has led to on-going off-line discussions between the Appellant and the Applicant, and there may be some opportunity for resolution.

6The parties had provided a draft Procedural Order and Issues List as found in Exhibit 2.

7Based on the submissions of the parties, the Tribunal directed modifications to Exhibit 2, including: a 5 day hearing, the production of modelling for both the air quality and noise issues, the earlier submission of a draft hearing plan, the submission of a Joint Document Book, and a second note.

8The Tribunal tasked counsel for the Applicant to make the modifications to Exhibit 2 and to provide same, on consent, to the Case Coordinator for consideration by the Tribunal.

9The modified Procedural Order is appended hereto as Attachment 1.

10The Tribunal set a five (5) day hearing for Monday, December 13, 2021 commencing at 10 a.m. by VH.

[11] Parties 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/543951325 Access code: 543-951-325

12Parties 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

13Persons 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) 497-9391 or (Toll-Free) 1(888) 455-1389. The access code is 543-951-325.

14Individuals 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.

15In the event that the off-line discussions result in a proposed settlement of the matter, the Tribunal directs that the proposed settlement may proceed by a written hearing process, pursuant to s. 21 of the Tribunal's Rules of Practice and Procedure. In that event, the Tribunal directs that the parties will file:

a. Any Minutes of Settlement;

b. A revised draft Zoning By-law Amendment;

c. An affidavit by a land use planner; and,

d. Written submissions in support of the proposed settlement.

16There will be no further notice.

17I am not seized.

18Scheduling permitting, I may be available for case management purposes.

19This 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.

OLT CASE NO(S).: PL210150

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

Appellant: Penta Properties Inc.

Subject: By-law No. BL 2020-424

Municipality: City of Burlington

OLT Case No.: PL210150

OLT File No.: PL210150

OLT Case Name: Penta Properties Inc. v. Burlington (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 December 13, 2021 at 10 a.m. through video link https://global.gotomeeting.com/join/543951325. When prompted, enter the code: 543-951-325.

3. The parties' initial estimation for the length of the hearing is 5 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. A summary of key dates are set out in Attachment 1.

5. The parties and participants identified at the case management conference are set out in Attachment 2.

6. The issues are set out in the Issues List attached as Attachment 3. 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.

7. The order of evidence shall be as set out in Attachment 4 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.

8. 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.

9. 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

10. 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 September 14, 2021 and in accordance with paragraph 24 below. A party who intends to call an expert witness must include a copy of the witness' Curriculum Vitae, the acknowledgement of expert's duty and a description of the area of expertise in which the witness is prepared to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before September 20, 2021 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 November 29, 2019.

12. 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 15 below. Instead of a witness statement, the expert may file their entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert's testimony.

13. On or before October 20, 2021, a party who intends to adduce evidence with respect to noise or air quality shall provide any modelling respecting noise or air quality on which it may rely. Noise modelling will be in CadnaA format. Air quality modelling shall include (1) any emissions calculations, including assumptions and support for any control efficiencies, and (2) modelling files, including input and output files, Building Profile Input Program, and meteorological data.

14. 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 15 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 15 below.

15. On or before October 20, 2021, 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 24 below.

16. On or before October 20, 2021, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

17. On or before November 29, 2021, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before November 19, 2021 and in accordance with paragraph 24 below.

19. The parties shall cooperate to prepare a joint document book which shall be filed with the OLT case co-ordinator on or before December 3, 2021.

20. 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.

21. 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.

22. 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.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 8, 2021 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.

24. 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 Rule 7 of the Tribunal's Rules.

25. 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

SUMMARY OF KEY DATES

DATE	EVENT
September 14, 2021 (90 days prior to hearing)	Exchange of witness lists (names, disciplines and order to be called)
September 20, 2021 (84 days prior to hearing)	Experts meeting prior to this date
October 8, 2021 (66 days prior to hearing)	Work Plan filed with the Tribunal
October 8, 2021 (66 days prior to hearing)	Parties to advise Tribunal is any hearing dates can be released
October 20, 2021 (54 days prior to hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports, Participant Statements and modelling.
November 19, 2021 (24 days prior to hearing)	Exchange of Reply Witness Statements (if any)
November 29, 2021 (14 days prior to hearing)	File Agreed Statement of Facts
November 29, 2021 (14 days prior to hearing)	Exchange of visual evidence (if any)
December 3, 2021 (10 days prior to hearing)	File Joint Document Book
December 6, 2013 (7 days prior to hearing)	Notice witness will not give oral evidence
December 13, 2021	Hearing commences

ATTACHMENT 2

LIST OF APPELLANTS, PARTIES AND PARTICIPANTS

APPELLANT

Penta Properties Inc. Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3

Scott Snider Tel: (905) 529-3476 Email: ssnider@tmalaw.ca

Anna Toumanians Tel: 905-529-3476 Email: atoumanians@tmalaw.ca

PARTIES

Giampaolo Investments Limited. Borden Ladner Gervais LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West, Suite 3400 Toronto, ON, Canada M5H 4E3

Piper Morley Tel: (416) 367-6591 Email: pmorley@blg.com

Lee English Tel: (416) 367-6169 Email: lenglish@blg.com

City of Burlington City of Burlington Legal Department 426 Brant Street, P.O. Box 5013 Burlington, ON L7R 3Z6

Blake Hurley Tel: 905-335-7600 ext. 7611 Email: blake.hurley@burlington.ca

ATTACHMENT 3

ISSUES LIST

Issues List of Giampaolo Investments Limited.

1. Is the proposed ZBLA consistent with the Provincial Policy Statement, 2020 and in particular policies 1.2.6.1, 1.2.6.2, 1.3.1, 1.3.2.1, 1.3.2.2, 1.3.2.3, 1.3.2.6?

2. Does the proposed ZBLA conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe and in particular policies 2.2.5 and 3.2.4?

3. Does the proposed ZBLA conform with the Region of Halton Official Plan and in particular policies 72(10) and (10.1), 77(5)(f), 77(7), 77.1, 77.2, 77.4, 78, 168, and 169?

4. Does the proposed ZBLA conform with the Burlington Official Plan and in particular policies 3.3.1 and 3.3.2?

5. Does the proposed ZBLA conform with the Burlington Official Plan (2018) and in particular policies 2.3.2, 2.3.3, 5.1.2, 5.2.2, and 5.4.1?

6. Does the proposed ZBLA represent good planning?

Issues List of Penta Properties Inc.

7. Is the proposed ZBLA consistent with the policies of the Provincial Policy Statement 2020 that speak to promoting efficient development and land use patterns, optimizing the use of land, minimizing land consumption, ensuring land use compatibility between major facilities and sensitive land uses, and supporting the highest and best land use and in particular policies 1.0, 1.1.1, 1.1.2, 1.1.3, 1.2.6, 1.3.1, 1.4 and 1.7?

8. Does the introduction of a motor vehicle wrecking yard in close proximity to a Major Transit Station Area conform to the direction in the Growth Plan 2020 as it relates to encouraging intensification in areas where Major Transit Station Areas exist or are planned and in particular policies 2.1, 2.2.1.2, and 2.2.4?

9. Does the proposed ZBLA conform to the Region of Halton Official Plan policy objectives for intensification areas to provide a diverse and compatible mix of land uses and in particular policy 78(4)?

10. Does the proposed ZBLA conform to the Burlington Official Plan policies that speak to compatibility of employment uses with other land uses and in particular policies Part I: 3.0 and Part III: 3.2.1, 3.3.1, 3.3.2?

11. Will the introduction of a motor vehicle wrecking yard be compatible with existing and planned development in the surrounding area?

12. Will the introduction of a motor vehicle wrecking yard cause adverse impacts relating to noise and air quality?

13. Does the proposed ZBLA represent good land use planning?

14. Does the proposed ZBLA have regard to the provisions of the Planning Act as set out in sections 2(h) and (p)?

Note 1: Where an issue refers to a provision from the PPS or the Growth Plan or either of the Official Plans in addressing the issue, the planning document from which the provision is taken should be read in its entirety with all relevant provisions being considered. For greater certainty, the identification of a specific provision in an issue does not preclude the parties from referring to other provisions from the same planning document in addressing that issue.

Note 2: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

ATTACHMENT 4

ORDER OF EVIDENCE

1. Penta Properties Inc.
2. Giampaolo Investments Limited.
3. City of Burlington
4. Penta Properties Inc., in reply

ATTACHMENT 5

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.