Antonio Buttice et al. v. City of Windsor, 2022 CanLII 115373

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 02, 2022

CASE NO(S).: OLT-22-003819

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

Appellant: Antonio Buttice et al.

Subject: By-law No. 67-2022

Municipality: City of Windsor

OLT Case No.: OLT-22-003819

OLT Lead Case No.: OLT-22-003819

OLT Case Name: Buttice v. Windsor (City)

PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, R.S.O. 2021, c. 4 Sched. 6

Request by: Antonio Buttice et al.

Request for: Request for Directions

Heard: October 21, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

2811035 Ontario Inc.

Analee Baroudi

City of Windsor

Wira Vendrasco

Antonio Buttice

Raymond Colautti

Rod and Paula Rankin

Raymond Colautti

Roger and Jen Bastiaan

Raymond Colautti

Dr. Norman and Beverly Marshall

Raymond Colautti

Cherie and Brian Laughton

Raymond Colautti

Charlotte Colautti Patricia McConville

Raymond Colautti Raymond Colautti

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision results from the first Case Management Conference (“CMC”) conducted in respect to the Appeal from Antonio Buttice, Rod and Paula Rankin, Roger and Jen Bastiaan, Dr. Norman and Beverly Marshall, Cherie and Brian Laughton, Charlotte Colautti and Patricia McConville pursuant to s. 34(19) of the Planning Act against the City of Windsor’s (the “City”) decision to approve the Zoning By-law Amendment (the “ZBA”) application to the City of Windsor Zoning By-law No. 8600.

2The Tribunal marked the Affidavit of Service of the Notice of the CMC by Anna Ciacelli sworn on September 8, 2022, as Exhibit No. 1 to the Hearing.

3The nature of the appeal is that the proposed amendments to Zoning By-Law No. 8600 are not consistent with the Provincial Policy Statement 2020 (the “PPS”), and do not conform to the policy direction of the City of Windsor (the “City”) Official Plan in general, and the Heritage Conservation policies specifically.

BACKGROUND

4The municipal address of the Subject Properties (the “SP”) are 1913, 1925 and 1949 Devonshire Court, in the City.

52811035 Ontario Inc. (the “Applicant”) is requesting an amendment to Zoning By-law No. 8600 to allow multiple dwellings as an additional permitted use subject to additional provisions. The Applicant proposes to construct multiple dwellings with a maximum building height of 15 metres (“m”) containing 23 dwelling units over four storeys. A total of 30 parking spaces including two accessible parking spaces, 21 bicycle spaces and one loading space are a part of the proposal.

6The SP is on the location of a former Heritage Register – the former St. George’s Church. The church was demolished in 2016, under the Approval of the City’s Council. The SP is located within the Walkerville Heritage Area in the City’s Official Plan.

REQUESTS FOR STATUS

7At this CMC, there were not any further requests for Party Status, or Participant Status. The Tribunal was informed that the Appellant that will be leading the Appeal is Antonio Buttice. All of the other Appellants will not be calling any witnesses. The other Appellants will be providing a written statement and will testify as lay witnesses at the Hearing. Council for the Applicant and the City agreed with this process.

Mr. Buttice’s Motion of Discovery

8Raymond Colautti informed the Tribunal of a Motion of Discovery under Rule 9 of the Ontario Land Tribunal’s Rules of Practice and Procedure. The Notice of Motion filed on October 6, 2022, was marked as Exhibit No. 2 to the Hearing.

9The motion filed concerned the request by the Appellant to receive materials and information from the City pertaining to the proposed development and the re-zoning of the SP. The Appellant stated that all the information requested is not available on the City’s website. Mr. Colautti stated that many requests have been made to the City and the Applicant with regards what Mr. Colautti believes to be pertinent information to make their Appeal case relevant.

10The information that is being requested is listed below:

Emails, Memorandums and other correspondence, hard copy or electronic:

a. All emails, correspondence, memos exchanged to and from the developer, the developer's consultants and anyone at the planning department in the City of Windsor relating to the proposed development and the re-zoning of the subject properties.

b. All emails, correspondence, memos exchanged to and from Tracey Pillon-Abbs and Adam Szymczak concerning the proposed development and the subject rezoning application.

c. All emails, correspondence, memos exchanged to and from Adam Szymczak (City of Windsor Planning Department) and Thom Hunt (City of Windsor Planning Department) concerning the proposed development and the subject rezoning application.

d. All emails, correspondence, memos exchanged to and from Jim Abbs (City of Windsor Planning Department) and Thom Hunt (City of Windsor Planning Department) concerning the proposed development and the subject rezoning application.

e. All emails, correspondence, memos exchanged to and from Tracey Pillon-Abbs (Pillon Abbs Inc.) and Thom Hunt (City of Windsor Planning Department) concerning the proposed development and the subject rezoning application.

f. All emails, correspondence, memos exchanged to and from Tracey Pillon-Abbs (Pillon Abbs Inc.) and Jim Abbs City of Windsor Planning Department) concerning the proposed development and the subject rezoning application.

g. All emails, correspondence, memos exchanged to and from Tracey Pillon-Abbs (Pillon Abbs Inc.) and Councillor Chris Holt and/ or Councillor Rino Bortolin concerning the proposed development and the subject rezoning application.

h. All emails, correspondence, memos exchanged to and from Tracey Pillon-Abbs (Pillon Abbs Inc.) and Kristina Tang (City of Windsor staff) concerning the proposed development and the subject rezoning application.

i. All emails, correspondence, memos exchanged to and from Councillor Chris Holt and any City of Windsor Staff concerning the proposed development and the subject rezoning application.

j. All emails, correspondence, memos exchanged to and from Councillor Chris Holt, and/or Councillor Rino Bortolin and Mike Spineti (a principal of the proponent corporation) concerning the proposed development and the subject rezoning application.

Audio-Visual Recordings

k. Copy of the audio-visual recording made of the complete public open house meeting in May 2022.

l. Copy of the audio-visual recording made of the complete DHSC meeting on 7 March 2022.

m. Copy of the audio-visual recording made of the complete City Council meeting on 21 March 2022.

Prior Requests for/consultations with prior property owner and staff at the City of Windsor Re: Possible Re-Zoning Application

n. Produce any files, notes, memoranda, emails and correspondence related to any inquiries for re-zoning of the subject properties, and the feasibility of such re-zoning made by the prior owner to City of Windsor staff subsequent to the issuance of the Demolition permit for the former St. George's Church.

Shadow Studies by the Applicant for the Built Heritage Impact Study

o. Produce the metadata and qualitative data used to produce the shadow study.

p. Produce any other shadow studies, or iterations of this shadow study including metadata and qualitative data associated therewith.

11Mr. Colautti stated that these documents will be able to show that there was a very serious issue of bias by City Staff and Council in making its decision to approve the Zoning By-law Amendment (the “ZBA”). Mr. Colautti stated that the raw data for the shadow study is necessary in order for the Appellant’s shadow expert to give their opinion based on the same data.

Response by the Applicant and the City

12In their joint response to the Motion, Analee Baroudi stated that the documents being requested are not relevant or necessary for the Tribunal to make a determination of the issues of the appeal. Many of the issues being raised by the Appellant are not proper issues that can be heard under the power of the Tribunal.

13Ms. Baroudi stated that the Tribunal is to hear matters only under the Tribunal’s jurisdiction. The Tribunal has the power to make a decision on whether the proposed ZBA is consistent with the PPS, conforms to the City Official Plan (the “OP”), conforms to the City’s Zoning By-law (the “ZBL”) and that the ZBA has regards for matters of provincial interest as set out in s. 2 of the Planning Act.

14Ms. Baroudi stated that the Tribunal’s power is to approve or disapprove the ZBA based on the information and planning evidence presented to Council in making its decision. Council is to make a decision based on the principles of good land use planning.

15Ms. Baroudi stated that the request by the Appellant for the raw data with regards to the shadow study is not in the possession of the Applicant. She stated that this data is not necessary to determine the issues. The Shadow Impact Study was only needed as part of the Built Heritage Impact Study.

ANALYSIS

16In making its ruling on the Motion, the Tribunal has taken into consideration the written submissions on the motion by the Parties. The Tribunal has also taken into consideration Rule 9 of the Ontario Land Tribunal’s Rules of Practice and Procedure (the “Tribunal Rules”), Rule 29.2.03 of the Rules of Civil Procedure regarding Proportionality in Discovery, and s. 12 of the Ontario Land Tribunal Act, 2021 (“OLTA”).

17Under Rule 9 of the Tribunal Rules, Rule 9.1 states:

9.1 Order for Discovery The Tribunal may make an order for discovery for a party to obtain necessary information from another party. Such an order will be made only on motion and only if the party has requested information and it has been refused or no answer has been received. The notice of motion shall be accompanied by an affidavit, which sets out the efforts made to obtain the desired information and the reasons that demonstrate that the information sought is both necessary and relevant to the disposition of the issues in the proceeding. The Tribunal may order:

(a) any person to provide an affidavit containing a list of relevant documents in the possession of the person;

(b) the delivery of relevant documents;

(c) an examination or cross-examination of any person or party;

(d) an examination for discovery by written questions;

(e) the inspection and testing of property;

(f) the examination of a witness before the commencement of a proceeding (under the Rules of Civil Procedure); or

(g) any other form of discovery; and

(h) that conditions be imposed concerning the timing and scope of discovery.

18For this Motion, Rule 9.1(b) of the Tribunal’s Rules is the most relevant to the Tribunal. Even though relevancy is a subjective term, the power of the Tribunal is to review and analyze the information presented to a deciding body (whether that is a City Council or other deciding body such as a Committee of Adjustment) and either uphold or overturn such decision.

19The Tribunal takes into regard the materials presented before the deciding body, along with other relevant planning materials provided from either the Applicant or Appellant when making its decision. The Tribunal does not have jurisdiction over the process in which these materials are produced to the Tribunal. It is the responsibility of the Parties to show factual land planning evidence to the Tribunal as to why their position is the correct argument to the matter before it.

20With regards to Rule 29.2.03 of the Rules of Civil Procedure regarding Proportionality in Discovery, the Rule states:

General

29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s. 25.

Overall Volume of Documents

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person. O. Reg. 438/08, s. 25.

21With consideration to the Motion, the Tribunal finds that Rule 29.2.03(2) is the most relevant to this matter. The Tribunal stated above that land use planning evidence is the factual evidence that is used to make its decision. Internal emails between City Staff, Councillors and/or Applicants are not applicable items of evidence that can be used by the Tribunal in determining the merits of a case. The amount of materials that would have to be provided by the City are excessive in nature in relation to the subject matter before the Tribunal.

22From the OLTA, s. 12(2) states:

The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceeding.

23The purported purposes of the request for discovery is to present the Tribunal with the best evidence available in order for a fair and wholesome decision. However, the request can be deemed inappropriate by the Tribunal if the Tribunal feels the discovery information being requested will not provide any factual land planning evidence to help with its decision.

FINDINGS

24The Tribunal finds that most of the items being requested by the Appellant are not relevant in helping the Tribunal come to a decision on the merits of the Appeal itself.

25The Tribunal finds that under Rule 9(1), most of the items requested will not help nor will the Tribunal be able to give weight to those items in its final determination.

26The Tribunal finds that under Rule 29.2.03(2) of the Rules of Civil Procedure regarding Proportionality in Discovery, most of the requested items are excessive and not relevant in order for the Tribunal to make a final determination.

27The Tribunal finds that under s. 12(2) of the OLTA, the Tribunal has the authority to determine the practices, procedures and rules that will offer the best opportunity for a fair, just, and expeditious resolution of the merits of the proceedings.

DECISION

28Based on the evidence provided including the submissions by all the Parties, the Tribunal will exercise its discretion for the Motion of Discovery in three specific areas as requested by the Appellant.

29The City is to provide the Appellants with a copy of the public portion of the audio-visual recording of the Development and Heritage Standing Committee’s of the City (the “DHSC”) meeting of March 7, 2022 and a copy of the audio-visual public portion of the recording of the City’s Council meeting of March 21, 2022. The Tribunal notes that the audio-visual recordings being requested by the Appellant are to be used to provide the Tribunal with land planning evidence pertaining to the Appellants’ position on the merits of the case.

30The Applicant is to provide the Appellants the metadata and qualitative data that was used by ADA Architects Inc. to finalize the shadow study. All other items being requested as a part of the Motion will be dismissed.

31The Tribunal is aware that a written Motion to Dismiss may be filed by the Applicant as per Rule 10.3 of the Tribunal Rules after the disposition of this Decision has been finalized.

ORDER

32THE TRIBUNAL ORDERS that the Motion of Discovery is approved, in part. The City of Windsor is hereby ordered to:

1. provide the Appellants a copy of the public portion of the audio-visual recording made of the Development and Heritage Standing Committee of the City of Windsor’s meeting that took place on March 7, 2022; and,

2. provide the Appellants a copy of public portion of the audio-visual recording made of the City Council meeting that took place on March 21, 2022.

33THE TRIBUNAL ORDERS that 2811035 Ontario Inc. is to provide the Appellants with the metadata and qualitative data used by ADA Architects Inc. to produce the shadow study.

“S. deBoer”

S. deBOER

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.