Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 07, 2021

CASE NO(S).: PL140042

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Abode Varsity Living Inc.

Appellant: Lambden Farm Trust

Appellant: Loblaw Properties Ltd.

Appellant: Thomasfield Homes Limited

Appellant (jointly): D Four Guelph Developments Limited, Fieldgate Commercial Developments Limited, Greenways Group Guelph, Living Rivers; and others

Subject: Proposed Official Plan Amendment No. 48

Municipality: City of Guelph

OLT Lead Case No.: PL140042

OLT Case No.: PL140042

OLT Case Name: Whiteley v. Guelph (City)

Heard: August 5, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Abode Varsity Living Inc.	Kristie Jennings
Loblaws Properties Limited	Tom Halinski and Jasmine Chung
Silvercreek Guelph Development Ltd. et al	Tom Halinski and Jasmine Chung
City of Guelph	Peter Pickfield and Allison Thornton

MEMORANDUM OF ORAL DECISION DELIVERED BY M.A. SILLS ON AUGUST 5, 2021 AND ORDER OF THE TRIBUNAL

1This Case Management Conference (“CMC”) follows from a status report provided by the parties during a telephone conference call on July 31, 2020 in regard to outstanding appeals of the City of Guelph (the “City”) Official Plan Amendment No. 48 (“OPA 48”). OPA 48 applies to all lands within the municipal boundaries of the City.

2OPA 48 was approved by the Minister of Municipal Affairs and Housing in December 2013, and with the exception of the outstanding site-specific appeals, by the former Ontario Municipal Board in 2017. There are currently three outstanding appeals of OPA 48: the Abode Appeal, the Loblaws Appeal, and the Silvercreek Appeal.

3The parties in the Silvercreek Appeal are currently engaged in discussions regarding a potential settlement. The Tribunal will expect an update on the status of these discussions in advance of the next CMC.

4Another CMC by video hearing has been scheduled for Friday, October 15, 2021 at 10 a.m.

5Parties 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/505350837

Access code: 505 350 837

6Parties 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.

7Persons 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 505 350 837.

8Individuals 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.

9As reported during a status update telephone conference call on July 29, 2020, and again at the current CMC, Abode Varsity Living Inc. and the City have not been able to resolve the issues in that appeal. At the request of the parties the Tribunal has scheduled a 10-day video hearing on the merits beginning Monday, February 14, 2022, at 10 a.m.

https://global.gotomeeting.com/join/329361917

Access code: 329 361 917

10Persons 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 329 361 917.

Settlement

11Loblaws Properties Limited and the City have reached a settlement that resolves the remaining policy issues raised in that appeal. The terms of the settlement are confirmed in duly executed Minutes of Settlement signed on July 29, 2021, marked as Exhibit 12 in the Tribunal’s file record.

12By way of background, the polices proposed through OPA 48 provide an implementation framework for the Provincial Growth Plan for the Greater Golden Horseshoe, and in effect, provides clarity and direction to the requirements for developing lands while ensuring that growth targets, densities and land needs are met in accordance with City approved growth management policies. OPA 48 was adopted by City Council on June 5, 2012, and subsequently approved by the Ministry of Municipal Affairs and Housing on December 11, 2013.

13The proposed settlement results in property-specific modifications to certain policies of OPA 148 as they pertain to Loblaws properties located at:

• 115 Watson Parkway North (formerly 72 Watson Road North);
• 1750 Gordon Street;
• 84, 124, 158, 174, 190, and 202 Clair Road East;
• 960-1045 Paisley Road;
• 297-299 Eramosa Road;
• 111-191 Silvercreek Parkway North;
• 35 Harvard Road;
• 160, 170, 200 and 210 Kortright Road West; and
• 98 Farley Dive.

14Specifically, the settlement agreement effects changes to policies of OPA 48 in the following manner:

• Section 8.6: policy 8.6.1 has been modified to delete the phrase “buildings shall have front facades” as the phrase is unnecessary within the policy.
• Section 8.6: policy 8.6.2 has been modified to add the phrase “and/or visible from” to allow for flexibility in the design of buildings where direct access to the street may not be feasible.

15Melissa Castellan Aldunate provided viva voce and affidavit (Exhibit 13) contextual and land use planning evidence to support the proposed settlement. She is a registered professional planner and a Member of the Canadian Institute of Planners with 20 years of practical experience and is accordingly qualified by the Tribunal. She is currently the City’s Manager of Policy Planning and Urban Design.

16Based on a comprehensive policy review, it is Ms. Aldunate’s professional opinion that the proposed modifications uphold policy directions approved by City Council and provide clarity and consistency of language with respect to the urban design policies and community mixed-use node policies and associated land use designations. Specifically, the modifications provide clarification and ensure consistency of language and application with respect to the objectives and policies.

17From a land use planning policy perspective, it is her opinion that the proposed policies as modified conform with the Growth Plan for the Greater Golden Horseshoe 2019, are consistent with the Provincial Policy Statement 2020, and uphold the policy directions established through the background studies to the Official Plan Update. The proposed modifications are consistent with previous City-approved official plan and Tribunal decisions for affected properties. The modifications to these policies provide improved clarity, consistency and legibility, are in the public interest and represent good planning. She recommended that these policies modifications be approved.

18The Tribunal accepts and concurs with the expert planning evidence and opinions of Ms. Aldunate to find that the modifications being proposed to OPA 48 are appropriate. The Tribunal is satisfied that these modifications maintain the intent of the policy direction established by OPA 148 while serving to improve the clarity of these policies.

ORDER

19The Tribunal orders that the appeal by Loblaws Properties Limited is allowed in part, and Official Plan Amendment 48, as approved by the Ontario Minister of Municipal Affair and Housing, is hereby modified by deleting paragraphs 1 and 2 of Section 8.6 Built Form: All Built Forms other than Low Rise Residential Forms in their entirety and replaced with the following:

• Section 8.6.1: New buildings shall address the street. Buildings will enhance the rhythm and frequency of the immediate vicinity, and where appropriate, will have entrances and windows that face the street.
• Section 8.6.2: The principal entrances of commercial and mixed-use buildings shall be oriented toward and/or visible from the street and provide direct user entrances from adjacent streets and walkways. Blank facades facing a street, open space or park shall not be permitted.

“M.A. Sills”

M.A. SILLS

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.

SCHEDULE 1

ISSUE DATE: September 07, 2021 CASE NO(S): PL140042

ONTARIO LAND TRIBUNAL

Tribunal Ontarien de L'aménagement de Territoire

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Abode Varsity Living Inc.

Appellant: Lambden Farm Trust

Appellant: Loblaw Properties Ltd.

Appellant: Thomasfield Homes Limited

Appellant (jointly): D Four Guelph Developments Limited, Fieldgate Commercial Developments Limited, Greenways Group Guelph, Living Rivers; and others

Subject: Proposed Official Plan Amendment No. 48

Municipality: City of Guelph

OLT Case No.: PL140042

OLT File No.: PL140042

OLT Case Name: Whiteley v. Guelph (City)

PROCEDURAL ORDER – ABODE VARSITY LIVING APPEAL PHASE

1. The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

2. The video hearing will begin on February 14, 2022, at 10:00 a.m. via video.

3. The length of the hearing will be about 10 days. The length of the hearing may be shortened as issues are reordered as settlement is achieved.

4. The parties to the hearing are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 3. Except for scoping or removing issues, there will be no changes to this list unless the Tribunal permits. A party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as listed 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.

7. Any person intending to participate in the hearing should provide a mailing address, email address and telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any such person who will be retaining a representative (legal counsel or agent) 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 (http://olt.gov.on.ca/tribunals/lpat).

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 Friday, September 17, 2021, and in accordance with paragraph 23 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 Friday, December 24, 2021, 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 Tuesday January 25, 2022. Any discussions held at a meeting of expert witnesses shall be considered confidential and without prejudice, and shall not be shared at the hearing, with the exception of the Statement of Agreed Facts and the remaining issues to be addressed at the hearing resulting from any such meeting.

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, together with any reports or other documents listed in the Expert Witness Statement and not previously made available to the other party or otherwise publicly available. Copies of these must be provided in accordance with paragraph 14 below. The Expert Witness Statement shall also include: an acknowledgement of expert’s duty form and the area(s) of expertise. 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 in accordance with paragraph 14 below.

13. On or before Friday, October 15, 2021, the parties shall provide to each other and the LPAT case co-ordinator, copies of proposed modifications to OPA 48, if any.

14. On or before Tuesday, November 16, 2021, the parties shall provide copies of their Witness and/or Expert Witness Statements to the other parties and to the LPAT case co-ordinator and in accordance with paragraph 23 below.

15. On or before Tuesday November 30, 2021, a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before Friday, January 14, 2022, parties shall provide copies of their Reply Witness Statements, if any, to all other parties and the LPAT case co-ordinator in accordance with paragraph 23 below.

17. On or before Monday, January 31, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. The parties shall cooperate to prepare a Joint Document Book, which shall be uploaded to the LPAT’s file share server, pursuant to the directions provided by the LPAT case co-ordinator, on or before Monday, February 7, 2022.

19. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be uploaded to the LPAT’s file share server, pursuant to the directions provided by the LPAT case co-ordinator, on or before the day they are used. Such documents shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing.

20. A person wishing to change written evidence, including witness statements, after Witness Statements and Reply Witness Statements have been filed 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.

21. A party who provides written evidence of a witness to the other parties must have that witness attend the hearing to give oral evidence, unless the party notifies the Tribunal on or before Monday, January 31, 2022, that the written evidence is not part of their record.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, February 4, 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.

23. All filings shall be electronic 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.

24. 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.

25. A summary of the various filing dates is contained in Attachment 5.

This Member is not seized.

So orders the Tribunal.

Name of Member: M.A. Sills

Date: September 07, 2021

_____________________________________

TRIBUNAL REGISTRAR

ATTACHMENT 1

PARTIES

Parties

1. ABODE VARSITY LIVING INC. Ira T. Kagan Kagan Shastri LLP 188 Avenue Road Toronto, ON M5R 2J1 Tel: 416.368.2100 ext. 226/244 Email: ikagan@ksllp.ca / kjennings@ksllp.ca

2. CITY OF GUELPH Peter Pickfield Garrod Pickfield LLP 9 Norwich St. W. Guelph, ON N1H 2G8 Tel: 519.837-0500 ext. 223 Email: pickfield@garrodpickfield.ca

Allison Thornton, Associate Solicitor Legal, Realty and Court Services, City of Guelph 1 Carden Street Guelph, ON N1H 3A1 Tel 519-822-1260, ext. 2438 Email: allison.thornton@guelph.ca

Participant

UNIVERSITY OF GUELPH Dana Butler Coordinator, Special Projects & Strategic Priorities Office of the Vice President (Finance and Operations) University of Guelph 50 Stone Rd E. Guelph, ON N1G 2W1 Tel 519-824-4120 ext. 52586 Email: dbutle02@uoguelph.ca

ATTACHMENT 2

MEANING OF TERMS

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 3

ISSUES LIST[^1][^2]

1. Should OPA 48 be modified to contain specific policies with respect to purpose-built student housing on lands in the vicinity of the University of Guelph, particularly on lands not owned by the University of Guelph?

2. Without limiting the generality of the foregoing:

a. Are the establishment of specific policies with respect to purpose-built student housing within the purpose and scope of OPA 48?

b. Has the need for these policies been established?

c. Are the requested modifications required to achieve consistency with the PPS 2020? and

d. Are the requested modifications required to achieve conformity with the Growth Plan for the Greater Golden Horseshoe?

3. If the answer to Issue 1 is yes,

a. What, if any, modifications are warranted to OPA 48 to encourage purpose-built student housing?

b. What, if any, modifications are warranted to OPA 48 with respect to the land use designations, height limits and density limits in OPA 48, for the areas under appeal, with respect to purpose-built student housing?

c. What, if any, modifications are warranted to OPA 48 for reduced parkland dedication requirements for purpose-built student housing?

d. What, if any, modifications are warranted to OPA 48 for reduced common amenity area requirements (indoor and/or outdoor) for purpose-built student housing, including what should qualify as such in the applicable zoning by-law?

e. What, if any, modifications are warranted to OPA 48 for reduced parking standards?

ATTACHMENT 4

ORDER OF EVIDENCE[^3]

1. City (Factual Overview of OPA 48)

2. Abode

3. City

4. Abode – Reply [if any]

ATTACHMENT 5

SUMMARY OF FILING DEADLINES

EVENT	DATE
Parties to exchange their List of Witnesses	Friday, September 17, 2021
Parties to provide any proposed policy modifications to OPA 48	Friday, October 15, 2021
Parties to exchange their Witness and Expert Witness Statements and reports/documents to be relied upon	Tuesday, November 16, 2021
Participants to serve on Parties, and file with the Tribunal, Participant Statements	Tuesday, November 30, 2021
Expert Witness Meeting(s) Deadline	Friday, December 24, 2021
Parties to exchange their Reply Witness Statements	Friday, January 14, 2022
Parties to file Agreed Statement of Facts and Issues	Tuesday January 25, 2022
Parties to exchange their Visual Evidence	Monday, January 31, 2022
Parties to advise Tribunal if Written Evidence is no longer part of their record	Monday, January 31, 2022
Parties to File a Preliminary Hearing Plan	Friday, February 4, 2022
Joint Document Book Filed	Monday February 7, 2022
OLT Hearing Commences	Monday, February 14, 2022

Footnotes

1. 1The 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.
2. 2This appeal and the issues in this phase are geographically limited to those portions of the Gordon Street and Stone Road Intensification corridors identified on the map attached to the Abode Notice of Appeal letter dated December 16, 2013.
3. 3Participants are limited to written submissions and do not call witnesses or make oral submissions.