Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 10, 2021

CASE NO(S).: PL210098

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Transmetro Limited

Subject: Failure of Town of Oakville to announce a decision respecting Proposed Official Plan Amendment No. OPA1613.63

Municipality: Town of Oakville

OLT Lead Case No.: PL210098

OLT Case No.: PL210098

OLT Case Name: Transmetro Limited v. Oakville (Town)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Transmetro Limited

Subject: Application to amend Zoning By-law No. 2014-014 - Neglect of Town of Oakville to make a decision

Existing Zoning: Low Density Residential (RL5-0)

Proposed Zoning: Medium Density Residential (RM4)

Purpose: To permit a three-storey, 14-unit apartment building

Property Address/Description: 358 Reynolds Street

Municipality: Town of Oakville

Municipality File No.: Z.1613.63

OLT Lead Case No.: PL210098

OLT Case No.: PL210099

Heard: August 31, 2021 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel
Transmetro Limited	Peter Gross (for Denise Baker)
Town of Oakville	Nadia Chandra
Region of Halton	Jing Bo Yu

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON AUGUST 31, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) of the Ontario Land Tribunal for Case No. PL210098. The matter concerns appeals by Transmetro Limited (the “Appellant”) under s. 17(40) and 22(7) of the Planning Act, for an Official Plan Amendment and Zoning By-law Amendment to permit a three-storey, 14-unit apartment building. These appeals arise following Council for the Town of Oakville's (the “Town”) failure to make a decision on the application within the statutory timelines.

2The subject property is located at 358 Reynolds Street in the Town, which is designated as Low Density Residential in the Livable Oakville Official Plan and is zoned Low Density Residential (RL5-0) in the Zoning By-law No. 2014-014.

3The Application proposes to redesignate the subject property from Low Density Residential to Medium Density Residential (RM4 zone) to permit both the built form and the residential density of the proposed three-storey, 14-unit apartment building.

Service of Notice of THE CMC

4The parties confirmed that there is no issue with service of the Notice of this CMC, the Tribunal accepts this, and so no further notice is required. The Tribunal is in receipt of the Affidavit of Service, which was marked as Exhibit 1.

Requests for Status

5The Tribunal received a written request for Party status from the Region of Halton (“Region”). The Region described its interest in the matter as being focussed on “consistency with the Provincial Policy Statement as it relates to specific matters of suitability of the soil from a site contamination perspective for the intended land use”. On consent of the Appellant and the Town, the Tribunal granted the Region party status.

6The Tribunal also received written requests for Participant status from four groups / persons:

• Trafalgar Chartwell Residents’ Association (“TCRA”)
• Sally Reynolds
• Thomas Vandepeer
• Daniel Prosser

7The TCRA, represented by Jette James, is an incorporated body and confirmed that the proposed development is within its community. Ms. Reynolds, Mr. Vandepeer and Mr. Prosser confirmed that their residences are in close proximity of the proposed development. The four proposed participants share similar issues regarding the proposed development, including:

• Effect on area heritage;
• Height, density and mass of the proposed building;
• Proximity to neighbourhood homes;
• Orientation of proposed balconies;
• Privacy;
• Noise and light pollution;
• Environmental concerns re: potential destruction of trees; and,
• Traffic.

8On consent of the parties, the Tribunal granted participant status to each of the above requested participants.

MEDIATION AND SETTLEMENT

9The Tribunal explored the possibility of mediation and settlement with the parties. All of the parties indicated that they are already engaged and remain open to such discussions. The parties indicated that they would advise the Tribunal if they wish to engage in mediation.

PROCEDURAL ORDER AND ISSUES LIST

10The Appellant provided a draft Procedural Order (“PO”) to the Tribunal. All matters of the PO were reviewed and consented to by all Parties. The PO was also reviewed by the Tribunal and deemed to be adequately specific and complete. Upon securing dates for the hearing of the matter, the Tribunal requested the Appellant to modify the PO to include the subject dates and return it to the Tribunal to be appended to this Decision and Order. The Tribunal received the revised PO, attached as Schedule 1 to this Order and Decision.

Hearing

11The Tribunal sets a five-day hearing commencing for Monday, February 7, 2022 commencing at 10 a.m. by VH. No further Notice is required for the hearing.

12Parties, participants and witnesses 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/139670829

Access code: 139-670-829

13Parties, participants and witnesses 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.

14Persons 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: +1 (647) 497-9373 or (Toll Free): 1 (888) 299-1889. The Access Code is as indicated above.

15Individuals 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 VH 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.

ORDER

16The Tribunal Orders as follows:

1. The date and particulars of the hearing are set out above.
2. The Region of Halton is granted party status.
3. The following are granted participant status:
   • Trafalgar Chartwell Residents’ Association (“TCRA”)
   • Sally Reynolds
   • Thomas Vandepeer, and
   • Daniel Prosser
4. The Procedural Order and Issues List attached as Schedule 1 to this Order and Decision shall govern this proceeding.

17The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS MEMBER

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ONTARIO LAND TRIBUNAL

Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Transmento Limited

Subject: Failure of Town of Oakville to make a decision respecting Proposed Official Plan Amendment No. OPA1613.63

Municipality: Town of Oakville

OLT Lead Case No.: PL210098

OLT Case No.: PL210098

OLT Case Name: Transmento Limited v. Oakville (Town)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Transmento Limited

Subject: Application to amend Zoning By-law No. 2014-014 - Neglect of Town of Oakville to make a decision

Existing Zoning: Low Density Residential (RL5-0)

Proposed Zoning: Medium Density Residential (RM4)

Purpose: To permit a three-storey, 14-unit apartment building

Property Address/Description: 358 Reynolds Street

Municipality: Town of Oakville

Municipality File No.: Z.1613.63

OLT Lead Case No.: PL210098

OLT Case No.: PL210099

PROCEDURAL ORDER

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 7, 2022 at 10 a.m. as follows:

   GoTo Meeting: https://global.gotomeeting.com/join/139670829 Audio-only telephone line: +1 (647) 497-9373 or (Toll Free): 1 (888) 299-1889 Access Code: 139-670-829

3. The parties’ initial estimate 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. The parties and participants identified at the case management conference are set out in Attachment 1.

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 consent 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 (https://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 September 24, 2021. 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. If the Applicant/Appellant intends to present in its witness statements revisions to the proposal (official plan amendment and/or zoning by-law amendment) from the one filed with the Town, the Applicant/Appellant shall provide copies of the revised proposal, including revised text, plans and drawings, together with copies of any new or updated technical reports it intends to rely on in support of the revised proposal to the other parties on or before November 8, 2021. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

11. Expert witnesses in the same field shall have a meeting on or before November 24, 2021 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties on or before December 9, 2021.

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 14. 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.

13. 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 14. 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 14.

14. On or before December 24, 2021 the parties shall provide copies of their witness and expert witness statements to the case coordinator and the other parties in accordance with paragraph 23.

15. On or before December 24, 2021 a participant shall provide copies of their written participant statement to the case coordinator and the other parties in accordance with paragraph 23. 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 January 28, 2022 the parties shall provide copies of their visual evidence to the OLT case coordinator and all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and file with the Clerk a written response to any written evidence on or before January 24, 2022 in accordance with paragraph 23.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before January 28, 2022.

19. On February 4, 2022 the parties shall provide to all parties and the Tribunal, in password protected format, any documents that will be used by the party in the cross-examination of an opposing party’s witness. The password protected documents shall 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, 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 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.

22. The parties shall prepare and file a hearing plan with the Tribunal on or before January 28, 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 filing shall be electronic unless hard copy is directed by the Tribunal to be provided. 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 Tribunal’s 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.

This Member is not seized.

So orders the Tribunal.

Attachment 1: Parties and Participants

Appellant/Party	Counsel	Contact
Transmetro Limited (Appellant)	Denise Baker	WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 Phone: 416-947-5090 dbaker@weirfoulds.com
Town of Oakville	Nadia Chandra	The Corporation of the Town of Oakville 1225 Trafalgar Road Oakville, ON L6H 0H3 Phone: 905 845 6601 Ext. 3912 n.chandra@oakville.ca
Regional Municipality of Halton	Jing Bo Yu	Halton Region 1151 Bronte Road Oakville, ON L6M 3L1 905-825-6000, ext. 7597 JingBo.Yu@halton.ca

Participant	Contact
Sally Reynolds	350 Reynolds St. Oakville, ON L6J 3L8 Phone: 905-399-3129 (h); 905 399 3129 (c) sreynolds6@yahoo.ca
Daniel Prosser	272 Macdonald Road Oakville, ON L6J 2A7 daniel.g.prosser@gmail.com 416-662-9827
Trafalgar Chartwell Residents’ Association (Jette James)	Trafalgar-Chartwell Residents’ Association 106-482 South Service Road East Box 177 Oakville, ON L6J 2X6 905-339-7844 info@trca.ca; jettepjames@gmail.com
Tom Vandepeer	350 Reynolds St. Oakville, ON L6J 3L8
Tom and Colleen Dugard[*]	323 Trafalgar Road Oakville, ON L6J 3H3 tomandcolleen@sympatico.ca

Attachment 2: Issues List

Note: 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 the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing.

Town of Oakville

1. Do the applications conform to the policies and evaluative criteria for residential intensification outside of Growth Areas set out in Section 4.3 and 11 of the Livable Oakville Plan?
2. Does the proposed development satisfy the criteria established under section 11.1.9 of the Livable Oakville Official Plan in order to maintain and protect the existing neighbourhood character of the area?
3. Would the built form and density proposed through the applications adequately maintain and protect the existing neighbourhood character, and in particular, does the proposed built form create unacceptable adverse impacts on adjacent existing properties and the character of the existing neighbourhood?
4. Do the applications conform with the cultural heritage policies set out in Section 5 of the Livable Oakville Plan?
5. Do the applications conform with neighbourhood patterns established under the Trafalgar Road Heritage Conservation District Plan?
6. Do the applications appropriately implement the urban design policies within Section 6 of the Livable Oakville Plan, and in particular, Section 6.4 (Streetscape) and Section 6.9 (Built Form)?
7. Do the applications result in a development that adequately preserves and enhances the town’s urban forest as set out in Section 6.10.2 and 10.1.1(e) of the Livable Oakville Plan?
8. Do the applications conform with the Town’s Transportation Master Plan under Section 8 of the Livable Oakville Official Plan?
9. Does the proposed development conform with Section 10.10 of Livable Oakville and the Town’s Stormwater Management Master Plan, particularly with regard to the proposed removal of the existing ditch on Macdonald Road as well as the grading and drainage along the western and southern portions of the site?

Region of Halton

1. If approved should a holding provision (“H” symbol) be applied to the Zoning By-law Amendment requiring the Owner submit a Ministry of the Environment, Conservation and Parks acknowledged Record of Site Condition that identifies the subject lands are suitable for their intended use, to the satisfaction of Halton Region?

Attachment 3: Order of Evidence

1. Transmetro Limited
2. Town of Oakville
3. Region of Halton
4. Reply of Transmetro Limited

Attachment 4

Attachment to Procedural Order

Meaning of terms used in the Procedural Order:

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. If an unincorporated group wishes to become a party, 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, group 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 the witness’ opinions on those issues; and a list of reports 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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.

[*] Seeking party status; status not yet granted.