1918318 Ontario Inc. v. Peterborough (City), 2021 CanLII 88684

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 13, 2021

CASE NO(S).: PL210057

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

Applicant and Appellant: 1918318 Ontario Inc.

Subject: Application to amend Zoning By-law No. 1997-123 – Refusal of Application by City of Peterborough

Existing Zoning: R.1,4h, R.2,4h Residential District

Proposed Zoning: SP.295 (F) Residential District with exceptions

Purpose: To permit an existing triplex and to recognize the property’s location on a flood plain

Property Address/Description: 793 Crawford Dr.

Municipality: City of Peterborough

Municipality File No.: Z2009

OLT Case No.: PL210057

OLT File No.: PL210057

OLT Case Name: 1918318 Ontario Inc. v. Peterborough (City)

Heard: August 30, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
1918318 Ontario Inc.	M. Kathleen Kinch, Jenna Khoury-Hanna
City of Peterborough	Alan Barber

MEMORANDUM OF ORAL DECISION DELIVERED BY G.C.P. BISHOP ON AUGUST 30, 2021 AND ORDER OF THE TRIBUNAL

1This is the first Case Management Conference (“CMC”) with respect to an appeal by 1918318 Ontario Inc. (the “Applicant/Appellant”) against the City of Peterborough’s (the “City”) denial of an application for a Zoning By-law Amendment (“ZBA”) affecting a property known municipally as 793 Crawford Drive (“subject property”), in the City.

2The amendment, if approved, would legalize the subject property’s use as a triplex, contrary to the current zoning. The existing dwelling on the subject property was originally constructed as a duplex in 1974 and was converted to a triplex by adding a dwelling unit to the basement, without a building permit, sometime after the existing dwelling was constructed.

3There were no requests for party or participant status.

4M. Kathleen Kinch, counsel for the Applicant/Appellant, had circulated a draft Procedural Order (“PO”) but Alan Barber, counsel for the City, was unable to respond until just before this hearing event. Neither counsel expressed any issue in settling the PO within the next week or so and supplying same to the Tribunal.

5Mr. Barber indicated that this hearing is based on a single issue with respect to the location of the property within a floodplain area as presented through a letter from the Otonobee Region Conservation Authority (“ORCA”), dated May 19, 2020. This letter was received by the City as part of the circulation process of the application on the proposed ZBA.

6If this matter comes before the Tribunal, the Applicant/Appellant expects to call two witnesses in the form of a Planner and an Engineer, and the City expects to call a Planner from the City, the Planner that authored the May 19, 2020 letter from the ORCA and potentially another Planner from the ORCA.

7Given the single and narrow issue, both parties agree that a two-day hearing is sufficient to complete this matter. To this end, the Tribunal has set aside two days for this hearing event, which will begin on Tuesday, November 23, 2021, commencing at 10 a.m. by video.

[8] 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/740696437

Access code: 740-696-437

9Parties 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

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: +1 (647) 497-9373 or (Toll Free) 1(888) 299-1889. The access code is 740-696-437.

11Individuals 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.

12The Tribunal has received the draft PO and the proceeding will be governed by the PO appended to this Decision as Attachment 1.

13I am not seized but will continue with the case management, schedule permitting.

14The Affidavit of Service has been marked as Exhibit 1 and the Tribunal confirms there will be no further notice required.

15It is so Ordered.

“G.C.P. Bishop”

G.C.P. BISHOP 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.

ATTACHMENT 1

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

Applicant and Appellant: 1918318 Ontario Inc.

Subject: Application to amend Zoning By-law No. 1997-123 – Refusal of Application by City of Peterborough

Existing Zoning: R.1,4h, R.2,4h Residential District

Proposed Zoning: SP.295(F) Residential District with exceptions

Purpose: To permit an existing triplex and to recognize the property’s location on a flood plain

Property Address/Description: 793 Crawford Dr

Municipality: City of Peterborough

Municipal File No.: Z2009

OLT Lead Case No.: PL210057

OLT Case No.: PL210057

OLT Case Name: 1918318 Ontario Inc. v. Peterborough (City)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on November 23, 2021 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 2 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 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 September 13, 2021 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 October 7, 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 OLT case co-ordinator on or before November 2, 2021.

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 September 30, 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 22 below.

14. On or before September 30, 2021 a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before November 9, 2021, 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 November 9, 2021. 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 November 16, 2021.

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 9, 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.

21. 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.

22. 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 List of Parties & Participants

1. 1918318 Ontario Inc.
2. City of Peterborough

ATTACHMENT 2 Issues List

1. Whether the proposed application for a zoning by-law amendment should be approved as good planning in the public interest and more specifically:

a. Whether the Otonabee Region Conservation Authority’s floodplain mapping is final, accurate and applicable to the subject property?

b. If the floodplain mapping is final, accurate and applicable to the subject property, whether the application should nevertheless be approved taking into account:

i. The planning considerations in section 3.1 of the Provincial Policy Statement 2020 (“the PPS”), including sections 3.1.2 and 3.1.7 of the PPS. Was section 3.1.7 of the PPS applied correctly?

ii. The planning considerations in the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). Was section 2.2.1.2e and the definition of hazardous lands applied correctly?

iii. The planning considerations in the Official Plan and the regulations contained in the City’s comprehensive zoning by-law.

iv. Site-specific considerations, including evidence (or lack thereof) of flood inaccessibility or damage from past historic flood events, potential for mitigation, the City’s issuance of building permits for the subject property, the pattern of zoning approvals for similar properties in the area, the absence of proposed development/change in historic use, and benefits of the application in relation to growth and housing policy considerations.

ATTACHMENT 3 Order of Evidence

1. 1918318 Ontario Inc.
2. City of Peterborough