Bice Builders Ltd. v. Niagara-on-the-Lake (Town), 2021 CanLII 97491

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 04, 2021

CASE NO(S).: PL180833

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Niagara-on-the-Lake Medical Centre Inc.

Subject: Proposed Official Plan Amendment No. 75

Municipality: Town of Niagara-on-the-Lake

OLT Case No.: PL180833

OLT File No.: PL180833

OLT Case Name: Bice Builders Ltd. v. Niagara-on-the-Lake (Town)

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

Appellant: Niagara-on-the-Lake Medical Centre Inc.

Subject: By-law No. 4316DG-18

Municipality: Town of Niagara-on-the-Lake

OLT Case No.: PL180833

OLT File No.: PL180834

PROCEEDING COMMENCED UNDER subsection 12(1) of the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1, and Rule 9.01 of the Tribunal’s Rules of Practice and Procedure

Request by: R & B Family Holdings Ltd.

Request for: Request for Directions

Heard: In writing

APPEARANCES:

Parties

Counsel

Niagara-on-the-Lake Medical Centre Inc.

Rocco Vacca

Town of Niagara-on-the-Lake

Callum Shedden

Robert Di Lallo

R & B Family Holdings Ltd.

Thomas G. Hanrahan

Bice Builders Ltd.

Thomas A. Richardson

DECISION DELIVERED BY SUSAN de AVELLAR SCHILLER AND ORDER OF THE TRIBUNAL

1This Decision deals with a dispute about whether certain affidavits should form part of the evidence in the event this matter proceeds to a disputed hearing of the merits.

2Simply stated, R & B Family Holdings Ltd. (“Applicant”) opposes the introduction of three affidavits filed by the Niagara-on-the-Lake Medical Centre Inc. (“Medical Centre”).

3The Town of Niagara-on-the-Lake (“Town”) opposes one of these affidavits but, in the alternative, asks that a further affidavit from the Town be admitted if this affidavit from the Medical Centre is admitted.

4The differing positions are grounded in two matters: whether the affidavits are relevant and whether, if relevant, they are necessary for the Tribunal to adjudicate the matter in a hearing of the merits.

5The Tribunal is satisfied that the affidavits should be accepted, including the Town’s further affidavit. These are the Tribunal’s reasons.

6In its responding motion materials, the Applicant included an Affidavit by Susan Smyth, sworn January 17, 2020. Her Affidavit sets out her response to the Medical Centre materials on the issues of the conversion policies and the adequacy of the market study. These two issues are part of a central theme of the submissions of the Medical Centre.

7The Applicant did not ask, in the alternative, that Ms. Smyth’s Affidavit be accepted as relevant to determine the issues. Nonetheless, the Affidavit of Ms. Smyth addresses the issues contained in the Medical Centre’s affidavit materials. The Tribunal has determined that the three affidavits filed by the Medical Centre, and the further affidavit filed by the Town, are relevant and necessary to determine the matters in issue. For fairness, the Tribunal accepts the Affidavit of Ms. Smyth as similarly necessary to determine the matters in issue in the event the Applicant intends to rely upon it in the hearing of the merits.

Background

8The Applicant wishes to develop a medical centre in the community of Virgil in the Town. In support of this intention, the Applicant applied for an official plan amendment and a zoning by-law amendment. On September 17, 2018, Council for the Town approved Official Plan Amendment (“OPA”) No. 75 and Zoning By-law Amendment (“ZBLA”) No. 4316DG-18 in order to permit the proposed development.

9Bice Builders Ltd. (“Bice”) and the Medical Centre appealed these adopted instruments to this Tribunal.

10An earlier Case Management Conference (“CMC”) set the directions for filing materials for this written motion. All parties, including Bice, filed materials for this motion. Shortly thereafter, Bice advised the Tribunal that it had entered into Minutes of Settlement with the Town and that Bice was withdrawing its appeals.

11Bice’s appeal was quite focused and differs in its core concern from that of the Medical Centre. Since Bice has withdrawn its appeal, the Tribunal will not deal further with Bice’s submissions in this motion.

12The Medical Centre also appealed these adopted instruments. The Medical Centre has maintained its appeals.

A Changing Legislative Regime

13These matters have had earlier CMCs. They have also been subject to several, sometimes overlapping, changes to applicable statutes and to applicable regulations.

14These matters were initially subject to the Planning Act (“Act”) and the Local Planning Appeal Tribunal Act, 2017 (“LPATA”) as they read on April 3, 2018, commonly referred to as the Bill 139 regime. Under that regime, the grounds for appeal in matters like these were limited to a challenge that the adopted planning instruments were not consistent with the Provincial Policy Statement (“PPS”) and did not conform to applicable provincial plans. The appeals initially filed were made in this context.

15A change to the legislation became effective on September 3, 2019, commonly referred to as the Bill 108 regime. This regime broadened the possible grounds for appeal and the tests against which appeals would be decided. At an earlier CMC, these matters were understood to come under this Bill 108 regime. Important in this regard is that the two appellants at the time were permitted to file a supplementary notice of appeal to expand the more limited grounds of appeal initially filed, given the changes to the legislation.

16Similarly, the expectation was that the changes to the LPATA meant that the procedures and requirements for the hearing of the merits would be different from that of the earlier iteration of the LPATA. In particular, that applied to the question of who, and under what circumstances, would be able to introduce evidence for the hearing of the merits.

17Effective November 15, 2019, the versions of these two legislative regimes that would govern the hearing of the merits changed again. In summary, the hearing of the merits for these appeals would, and is subject to, the procedures of the LPATA as it read on September 2, 2019, and the provisions of the Act as it read on September 3, 2019.

18While the hearing procedure reverted back to the Bill 139 regime, the hearing substance remained as it was in the Bill 108 regime. This meant that the expanded grounds for appeal, arising from the Act as it read on September 3, 2019, continue to be matters the Medical Centre is putting before the Tribunal as part of its challenge to OPA 75 and the ZBLA. The Medical Centre takes the position that these affidavits are relevant to the issues it has raised and necessary for the Tribunal to determine these matters.

ISSUES, ANALYSIS AND FINDINGS

19OPA 75 and the ZBLA have the effect of permitting the Applicant’s proposed development of a medical centre. In doing so, these planning instruments convert residential lands to commercial lands.

The Issues

20The Medical Centre has raised four principal issues in its notice of appeal, original and supplementary, summarized by the Tribunal as whether these planning instruments:

1. are consistent with the PPS;

2. conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”);

3. conform to the Region of Niagara (“Region”) Official Plan (“ROP”); and,

4. conform to the policies of the Town’s Official Plan (“OP”), in particular policy 6.5.

21These four issues work together.

Consistency with the PPS and Conformity with the Growth Plan

22For the issue of consistency with the PPS, the Medical Centre focuses on two matters: the conversion to commercial uses that removes serviced urban lands from the residential land supply and the impact of additional traffic on the safety of the road network users.

23For the issue of conformity with the Growth Plan, the Medical Centre focuses on the question of whether the conversion with the removal of lands from the residential land supply would impair the Town’s ability to meet its residential intensification targets.

24Section 3(5) of the Act requires any decision of the Tribunal in these matters to be consistent with the PPS in effect at the time of the decision and to conform to applicable Provincial plans in effect at the time of the decision. In this case, it would be the PPS 2020 and the Growth Plan 2019. These are often referred to as the consistency and conformity tests.

25The Tribunal agrees that the issues of consistency and conformity were front and centre in the version of the Act and the LPATA under which the appeal by the Medical Centre was made. Importantly, by reference to the iteration of the Act that governs the substance of these proceedings, consistency and conformity retain their prominence but are not the only tests to be considered.

Conformity with the ROP

26For the issue of conformity with the ROP, the Medical Centre focuses on the same issue raised for the Growth Plan but, here, cites what the Medical Centre considers to be policies in the ROP that are similar to those in the Growth Plan. In this case, with a lower tier OPA, the question of whether the amendment conforms to the upper tier official plan is an appropriate issue for the hearing.

Conformity with OP Policy 6.5

27The focus for the question of conformity with the OP is slightly different. This issue focuses particularly on the criteria for a new or expanded designation of lands for commercial use that is set out in Policy 6.5. This Policy calls explicitly for a retail market impact study for any new or expanded commercial designation. This Policy also sets out the 10 matters to be addressed in the study. The Medical Centre takes the position that the retail market study was inadequate and the requirements of Policy 6.5 were not met.

28Narrowing the issues for the hearing, to those of the consistency and conformity tests, removes the issue of conformity with Policy 6.5 of the OP. The Tribunal notes two streams of submissions that are effectively in support of this result. The first is reference to s. 38(1) of the LPATA and the second is composed of the submissions by the Applicant and the Town that are presented as a response in substance to the Affidavit of Richard Brady, sworn December 18, 2019.

29The Medical Centre takes the position that the retail market study, referenced in the OP Policy 6.5, is required in this case and that the study filed and before Council when it made its decision was deficient and not in conformity with the requirements of this Policy.

30The Applicant and Town firmly disagree with the Medical Centre’s characterization in this regard.

31For the purposes of this Motion, the Tribunal makes no finding on the substance of the dispute regarding conformity with OP Policy 6.5. This issue is appropriately decided in the hearing of the merits.

The Affidavits

32The Medical Centre wishes to have the Tribunal accept three affidavits as relevant and necessary for the Tribunal to determine the matters in issue. These are the Affidavit of Anthony Annunziata of December 19, 2018, the Affidavit of Jason Burgess of December 20, 2018, and the Affidavit of Mr. Brady of December 18, 2019.

33The Annunziata Affidavit includes a planning report on which Mr. Annunziata appears to rely. This material appears to have been filed to address the question of conformity with OP Policy 6.5 and some traffic concerns.

34Mr. Burgess’s Affidavit included his analysis and critique of the market study submitted by the Applicant. In that regard, it also addressed the criteria in OP Policy 6.5.

35Mr. Brady’s Affidavit and the attached report address the conversion policies and impact on the availability of residential lands to meet residential intensification targets.

36The Affidavits of Messrs. Annunziata and Burgess were part of the Appeal Record filed by the Medical Centre. The Appeal Record is properly before the Tribunal in these matters. Additionally, the Town had a full opportunity to file a Responding Appeal Record after the Medical Centre’s Appeal Record was filed.

37The Affidavit of Mr. Brady was filed after the Appeal Record, the Responding Appeal Record and the shifting sands of the legislative framework governing these proceedings. It was also filed in response to the Tribunal’s invitation to all parties to file any additional affidavits they considered necessary to recognize the fact that the planning tests in these proceedings were to be governed by the Act as it read on September 3.

38The Town asks, in the alternative, that the Affidavit of Mark Iamarino of January 20, 2020, be accepted as relevant and necessary for the Tribunal to determine the matters in issue in these proceedings. The Town submits that Mr. Iamarino’s Affidavit forms the Town’s response to the Affidavit of Mr. Brady.

39As noted earlier, the Applicant filed the Affidavit of Ms. Smyth in its response materials.

Conclusion

40The Applicant, and to a certain extent the Town, submit that the only issues for the hearing are the questions of consistency and conformity. For the reasons set out above, the Tribunal disagrees with these submissions and finds that the Medical Centre’s issues of conformity with both the ROP and with the OP are reasonable, appropriate and relevant. As such, the Tribunal further finds that the affidavits and associated exhibits of Messrs. Annunziata, Burgess, Brady and Iamarino are relevant and necessary to determine the issues.

41Under the version of the LPATA that governs hearing procedure in these matters, only the Tribunal may call or examine witnesses. Both the Medical Centre and the Town ask that the Tribunal have their respective affiants attend the hearing of the merits to be examined by the Tribunal. The written materials are substantial in these matters.

42The Tribunal sees no need for oral evidence with an examination of any of the affiants by the Tribunal. These requests are denied.

43The Tribunal notes one additional element. With the passage of time, the applicable version of the PPS, as noted above, is the version that came into effect in 2020. If these matters proceed to a contested hearing, those affiants who provided opinions on consistency with the PPS are directed to file brief and concise affidavits stating whether their expert professional opinions on consistency have changed when the PPS 2020 is considered. If they have changed, the affidavit is to include a brief statement of the change of the opinion, and why it has changed. These affidavits are to be filed not later than 30 days prior to the scheduled date for the hearing of the merits.

44This Motion did not address the question of whether any hearing of the merits in these matters would be oral or solely in writing. Given the volume of written materials, and with no witnesses being examined, the Tribunal may direct that these matters are appropriate for a written hearing.

ORDER

45The Tribunal orders that the following affidavits, and associated exhibits, are relevant and necessary for the Tribunal to decide the matters in dispute:

1. The Affidavit of Anthony Annunziata, sworn December 19, 2018.

2. The Affidavit of Jason Burgess, sworn December 20, 2018.

3. The Affidavit of Richard Brady, sworn December 18, 2019.

4. The Affidavit of Mark Iamarino, sworn January 20, 2020.

5. The Affidavit of Susan Smyth, sworn January 17, 2020, in the event R & B Family Holdings Ltd. intends to rely on this Affidavit in the hearing of the merits.

“Susan de Avellar Schiller”

SUSAN de AVELLAR SCHILLER

VICE-CHAIR

Ontario Land Tribunal

Website: www.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.