1047 Richmond Investment LP v. Ottawa (City), 2022 CanLII 115385

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 29, 2022

CASE NO(S).: OLT-22-004190

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: 1047 Richmond Investment LP

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: OPA and ZBA to develop subject property into three mixed-use buildings

Reference Number: D01-01-22-0001

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-22-004190

OLT Lead Case No.: OLT-22-004190

OLT Case Name: 1047 Richmond Investment LP v. Ottawa (City)

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

Applicant/Appellant: 1047 Richmond Investment LP

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: OPA and ZBA to develop subject property into three mixed-use buildings

Reference Number: D01-02-22-0012

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-22-004191

OLT Lead Case No.: OLT-22-004190

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

Request by: City of Ottawa

Request for: Request for Directions

Heard: November 16, 2022 by Video Hearing ("VH")

APPEARANCES:

Parties

Counsel

1047 Richmond Investment LP

Michael Polowin and Alice Mihailescu

("Appellant"/"Applicant")

City of Ottawa

Timothy Marc

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON NOVEMBER 16, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference ("CMC") respecting an appeal by the Applicant. The appeal arises following a non-decision concerning the Applicant's Official Plan Amendment ("OPA") and Zoning By-law Amendment ("ZBA") applications to permit a three-tower development at 1047 Richmond Road in the City of Ottawa ("City").

Service of Notice of CMC

2There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.

Requests for Status

3No one attended the CMC seeking either party of participant status.

MEDIATION AND SETTLEMENT

4The Tribunal explored the possibility of mediation and settlement with the parties. The parties confirmed that there is "a large gulf" between their respective positions, but they are both always open to the possibility of settlement. The parties confirmed that they will keep the Tribunal apprised of any developments with their resolution efforts, which the Tribunal finds satisfactory.

PROCEDURAL ORDER AND ISSUES LIST

5The Tribunal received and reviewed a draft Procedural Order ("PO") from the parties. The Tribunal finds it acceptable and, subject to the outcome of the City's motion described below, the proceedings shall be governed by it (see Schedule 1). The Tribunal recognizes that the draft PO can only logically apply if the City is unsuccessful with its motion.

MOTION BY THE CITY RE: APPLICATION OF THE CLERGY PRINCIPLE

6The City explained that it has recently completely repealed and replaced its entire Official Plan ("OP") with the new OP having been approved by the province and in force as of November 4, 2022.

7Furthermore, the City submitted that this action, of completely repealing and replacing the former OP (as opposed to merely updating or amending it), has the effect of "ousting the Clergy Principle […] by operation of law" as it relates to any unresolved OPA applications that were filed with the City prior to November 4, 2022. Consequently, the City submits, any unresolved OPA applications that are currently before the Tribunal, seeking an OPA of the former City OP, should be dismissed and the Applicant be compelled to submit a fresh OPA application in relation to the new OP.

8The parties agree that, if the City is correct, the present appeal before the Tribunal should likely be dismissed. However, the Applicant firmly contests the City's principal position insofar as the effect of the new OP, having completely repealed and replaced the former OP, renders the Clergy Principle inapplicable. The Applicant takes the position that the Clergy Principle still applies and the present case may proceed as an OPA application concerning the former OP.

9In light of their respective opposing positions, the parties also both agree that, as a matter of efficiency, a motion by the City should be heard in advance of a hearing on the merits to resolve this narrow question of law concerning the applicability of the Clergy Principle in the present situation. The Tribunal finds the same, since a merit hearing may serve no purpose whatsoever if the City is successful with its position on the law.

10In addition, the parties also agree, as a matter of further efficiency, that the Tribunal should consider consolidating any other City OPA appeals currently before the Tribunal (for the purpose of the above-described motion only) that similarly involve an unresolved application filed with the City prior to November 4, 2022. The City confirmed that there are five or six such appeals involving an OPA application concerning the former City OP. The Tribunal again finds same, since the City confirmed that this same legal issue will come up in each of these other cases and it would be a waste of resources to litigate it multiple times concurrently and possibly result in inconsistent findings of the Tribunal. Furthermore, the Tribunal finds that the Tribunal will benefit from receiving multiple perspectives on the issue within a single hearing.

11Upon these submissions and discussions with counsel, the Tribunal finds it prudent to proceed as follows:

1. A CMC shall be scheduled to deal with the logistics of the proposed motion, including to confirm the parties of the Motion, date and length of the motion, order of submissions, and time limits (if any) of submissions by the respective parties;

2. The City shall forthwith make a request to the Registrar to have other City OPA appeals currently before the Tribunal, which similarly involve unresolved applications filed with the City prior to November 4, 2022, consolidated with the present case for the purpose of the above-described motion only; and,

3. The aforementioned request to the Registrar shall be copied to the other parties of those other matters, together with a copy of this Decision, with directions to attend the next CMC to discuss the logistics of the proposed motion.

SECOND CMC and HEARING

12The Tribunal set a second CMC hearing commencing on Wednesday, March 1, 2023, at 10 a.m. by VH. No further Notice is required.

13Upon request of the parties, the Tribunal set a five (5)-day hearing on the merits commencing on Monday, November 6, 2023 at 10 a.m. by VH. It is understood that these dates may be vacated if the City is successful with its motion. It is also understood that this hearing may need to be rescheduled depending on the timing of the outcome of the proposed motion. No further Notice is required for the hearing.

14The hearings are scheduled to proceed by video as follows:

Wednesday, March 1, 2023 at 10 a.m. (one day hearing) GoTo Meeting: https://global.gotomeeting.com/join/927921077 Access code: 927-921-077 Audio-only telephone line: +1 (647) 497-9391 or Toll Free 1-888-299-1889 Audio-only access code: 927-921-077

Monday, November 6, 2023 at 10 a.m. (five-day hearing) GoTo Meeting: https://global.gotomeeting.com/join/638422541 Access code: 638-422-541 Audio-only line: +1 (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 638-422-541

15Parties 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.

16Parties 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

17Persons 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.

18Individuals 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.

ORDER

19The Tribunal Orders that:

1. The date and particulars of the second Case Management Conference ("CMC") and hearing on the merits are set out above;

2. The Procedural Order appended as Schedule 1 shall govern the proceedings, subject to the outcome of the City of Ottawa's ("City") motion;

3. The purpose of the above-described CMC shall be to deal with the logistics of the proposed motion, including to confirm the parties of the Motion, date and length of the motion, order of submissions, and time limits (if any) of submissions by the respective parties;

4. The City shall forthwith make a request to the Registrar to have other City appeals currently before the Tribunal, which similarly involve unresolved applications filed with the City prior to November 4, 2022, consolidated with the present case for the purpose of the above-described motion only.

5. The aforementioned request to the Registrar shall be copied to the other parties of those other matters, together with a copy of this Decision, with directions to attend the next CMC to discuss the logistics of the proposed motion. A representative of each party copied as part of this request to the Registrar shall attend the next CMC as directed;

6. Nothing in this Order shall be construed to limit a party of any other City OPA appeal currently before the Tribunal, which similarly involves an unresolved application filed with the City prior to November 4, 2022, but was not included in a prior request to the Registrar by the City to have its matter consolidated with the present case for the purpose of the above-described motion, from making its own request to the Registrar;

7. For the purpose of this Order, "City of Ottawa OPA appeals currently before the Tribunal" includes all appeals which have been filed either before or after the issuance of this Order and remain unresolved as of March 1, 2023; and,

8. The Member is seized for the purpose of the second CMC, scheduling permitting, but not for the purposes of the above-described Motion or the hearing on the merits. In any event, the Member 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.

SCHEDULE 1

Case No.: OLT-22-004190

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: 1047 Richmond Investment LP

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: OPA and ZBA to develop subject property into three mixed-use buildings

Reference Number: D01-01-22-0001

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-22-004190

OLT Lead Case No.: OLT-22-004190

OLT Case Name: 1047 Richmond Investment LP v. Ottawa (City)

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

Applicant/Appellant: 1047 Richmond Investment LP

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: OPA and ZBA to develop subject property into three mixed-use buildings

Reference Number: D01-02-22-0012

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-22-004191

OLT Lead Case No.: OLT-22-004190

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 6, 2023 at 10 a.m.

3. The parties' initial estimation 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 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 7, 2023 (60 days) 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 16, 2023 (21 days) 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 October 14, 2023 (14 days).

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 22, 2023 (45 days) 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 23, 2023 (45 days) 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 October 3, 2023 (34 days) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before October 23, 2023 (14 days), 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within 11 days (October 3, 2023) after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 23, 2023 (14 days).

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 23, 2023 (14 days) 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.

22. 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.

23. 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 to Sample Procedural Order

Meaning of terms used in the Procedural Order:

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 1

PARTIES

1. 1047 Richmond Investment LP
2. City of Ottawa

PARTICIPANTS

None

ATTACHMENT 2

ISSUES

Note: The identification of an issue on this list does not mean that all Parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the Hearing.

Any Party may call or not call evidence on any issue; however, no Party is obligated to call evidence on any particular issue or every issue.

DRAFT ISSUES

1. Are the proposed Official Plan Amendment ("OPA") and Zoning By-law Amendment ("ZBA") consistent with the policies of the Provincial Policy Statement ("PPS", 2020) as amended from time to time, including but not limited to Sections 1.1.1, 1.1.3.2, 1.1.3.4, 1.4.3, 1.7.1 and 1.8.1? In addition, does the proposed OPA and ZBLA permit a development that would meet the intent of Provincial policy on housing, and the City of Ottawa's declared housing crisis?
2. Does the proposed OPA and ZBA conform to the directions and policy of the City of Ottawa Official Plan in force at the time of application (the "OP"), including but not limited to Sections 2.2.2, 2.5.1, 2.5.6, 3.6.3 and 4.11?
3. Is the Application to be evaluated on the basis of the OP under the Clergy Principle?
4. Does the proposed OPA and ZBA conform to the policies of the new Council-adopted City of Ottawa Official Plan, 2021 (the "New OP")? How much weight is to be given to the New OP?
5. Does the proposed OPA and ZBA conform to the intent, vision and guiding principles of the Cleary and New Orchard Area Specific Policy ("ASP"), including but not limited to Sections 3.1, 4, 4.4, 5 and 6?
6. Does the proposed OPA and ZBA permit a development that would meet the purpose and intent of the City of Ottawa's Zoning By-law (2008-250)?
7. Does the proposed OPA and ZBA align with Council-approved guidelines, including the Transit-Oriented Design Guidelines, the Urban Design Guidelines for Development along Traditional Mainstreets, the Urban Design Guidelines for High-Rise Buildings, and the Bird-Safe Design Guidelines?
8. Does the proposed OPA and ZBA permit a development that is supported by the transportation network and is it transit-supportive?
9. Does the proposed OPA and ZBA represent appropriate and good land use planning?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 1047 Richmond Investment LP
2. City of Ottawa
3. Reply 1047 Richmond Investment LP