Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 06, 2022

CASE NO(S).: OLT-21-001824

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

Appellant: THINQ Technologies Ltd., Katalyst Properties Inc., and 1625976 Ontario Ltd. Appellant: Woodfield Community Association Applicant: Auburn Developments Inc. Subject: Proposed Official Plan Amendment Description: To permit a 17 storey, 173 unit development Reference Number: OPA 747 Property Address/Municipality/UT: 560-562 Wellington Street, London/Middlesex OLT Case No.: OLT-21-001824 OLT Lead Case No.: OLT-21-001824 OLT Case Name: THINQ Technologies Ltd v. London (City)

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

Subject: Zoning By-Law Description: To permit a 17 storey, 173 unit development Reference Number: BL 548-2021 Property Address: 560-562 Wellington Street Municipality/UT: London/Middlesex OLT Case No.: OLT-21-001825 OLT Lead Case No.: OLT-21-001824

Heard: April 22, 2022 by video hearing

APPEARANCES:

Parties	Counsel
City of London	Aynsley Anderson
Auburn Developments Inc. (“Applicant”)	Piper Morley
Woodfield Community Association (“Appellant”)	Alex Ciccone
THINQ Technologies Ltd., Katalyst Properties Inc., 1625976 Ontario Ltd., Katherine Hodgkinson and Greg Bruzas (“Appellants”)	Paula Lombardi
Hazel Elmslie	Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH AND P. TOMILIN ON APRIL 22, 2022 AND ORDER OF THE TRIBUNAL

1This is the first Case Management Conference (“CMC”) respecting these matters.

2The issuance of this Order governing these appeals was delayed awaiting receipt of the Procedural Order from the parties.

3Hazel Elmslie was granted Party status. Ms. Elmslie is sheltering under the Woodfiled Community Association, THINQ Technologies Ltd., Katalyst Properties Inc., 1625976 Ontario Ltd., Katherine Hodgkinson and Greg Bruzas. She understands that she is limited to the issues raised in those appeals.

4The following individuals requested and were granted participant status on consent:

• Ben Lansink
• Mary Ann Hodge
• Architectural Conservatory of Ontario London
• Anna Maria Valastro
• Jill Jacobson

HEARING

5The hearing is scheduled to commence on Monday, March 27, 2023 at 10 a.m. Eight days have been set aside.

https://global.gotomeeting.com/join/909787981

Access Code: 909-787-981

6Parties 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.

7Parties 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.

8Persons 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: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.

9Individuals 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 video hearing 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.

10The parties have been made aware of the availability of Tribunal-assisted mediation.

PROCEDURAL ORDER AND FURTHER ATTENDANCE TO RESOLVE ISSUES

11The parties were directed to provide the Procedural Order to govern the hearing of these appeals following the CMC. This was delayed. Requests were made by the Tribunal for delivery of the Procedural Order and Issues List without compliance. Following the imposition and passing of a deadline for delivery of the Procedural Order, the Tribunal provided notice pursuant to s. 19(2) of the Ontario Land Tribunal Act that the proceedings would be dismissed due to non-compliance with the Tribunal’s directive, the Procedural Order and Issues List was finally provided.

12Save and except for the outstanding matter of the Order of the evidence set out in Schedule 3, these proceedings shall be governed by the Procedural Order and Issues List appended as Attachment “1” hereto.

13If counsel are unable to resolve the matter of the Order of the evidence and provide a final draft of “Attachment 3, Order of Evidence” to the Tribunal by January 6, 2023, they, or any one party, may make a written request for an appearance before the Tribunal to determine the contentious issues. Following the date of that request, each of the parties will provide brief written submissions as to the matters in contention, and their respective positions, in the matter of the Order of the Evidence, within seven (7) days of the date the request is made, and not later. Upon receipt of the written submissions, the Tribunal will then schedule and provide notice for a 9 a.m. Telephone Conference Call at the earliest available date on the Tribunal’s calendar.

14There will not be any further notice.

15We are not seized.

“R.G.M. Makuch”

R.G.M. Makuch VICE-CHAIR

“P. Tomilin”

p. tomilin MEMBER

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.

OLT-21-001824 – Attachment 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

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

Appellant: THINQ Technologies Ltd., Katalyst Properties Inc., and 1625976 Ontario Ltd. Appellant: Woodfield Community Association Applicant: Auburn Developments Inc. Subject: Proposed Official Plan Amendment Description: To permit a 17 storey, 173 unit development Reference Number: OPA 747 Property Address/Municipality/UT: 560-562 Wellington Street, London/Middlesex OLT Case No.: OLT-21-001824 OLT Lead Case No.: OLT-21-001824 OLT Case Name: THINQ Technologies Ltd v. London (City)

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

Subject: Zoning By-Law Description: To permit a 17 storey, 173 unit development Reference Number: BL 548-2021 Property Address: 560-562 Wellington Street Municipality/UT: London/Middlesex OLT Case No.: OLT-21-001825 OLT Lead Case No.: OLT-21-001824

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 Monday, March 27, 2023 at 10 a.m. at the following link:

GoTo Meeting: https://global.gotomeeting.com/join/909787981

Audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391

Access Code: 909-787-981

3. The parties’ initial estimation for the length of the hearing is 8 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 December 22, 2022 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 January 16, 2023 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 Coordinator on or before February 1, 2023.

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 February 17, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with paragraph 22 below.

14. On or before February 17, 2023, 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 March 10, 2023, 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 Coordinator 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 Coordinator on or before March 17, 2023.

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 February 20, 2023 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 AND PARTICIPANTS

A. PARTIES

	PARTIES	COUNSEL/REPRESENTATIVE
1.	Auburn Developments Inc. (Applicant)	Borden Ladner Gervais LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West Toronto, ON M5H 4E3 Piper Morley Email: pmorley@blg.com Tel: (416) 367-6591 Lee English Email: lenglish@blg.com Tel: (416) 367-6169
2.	THINQ Technologies Ltd., Katalyst Properties Inc., 1625976 Ontario Ltd. (Appellant)	Siskinds 275 Dundas Street, Unit 1 London, ON N6B 3L1 Paula Lombardi Email: paula.lombardi@siskinds.com Tel: (519) 660-7878
3.	Woodfield Community Association (Appellant)	Garrod Pickfield LLP Environmental, Municipal and Planning Law 9 Norwich Street West Guelph, ON N1H 2G8 Alex Ciccone Email: aciccone@garrodpickfield.ca Tel: (519) 837-0500
4.	Hazel Elmslie	63 Arcadia Crescent London, ON N5W 1P5 Email: hazelelmslie@hotmail.com Tel: (519) 434-4629
5.	City of London	Legal Service Department 1014-300 Dufferin Avenue P.O. Box 5035, Stn. B London, ON N6A 4L9 Aynsley Anderson Email: aanderson@london.ca Tel: (519) 661-2489 Aynsley Hovius Email: ahovius@london.ca Tel: (519) 661-2500 ext. 2484

B. PARTICIPANTS

1.	Ben Lansink	ben@lansink.ca
2.	Mary Ann Hodge	hodgemav@gmail.com
3.	Architectural Conservatory of Ontario London	kelley.mckeating@sympatico.ca
4.	AnnaMaria Valastro	bettyboop07@execulink.com
5.	Jill Jacobson	jilljacobson@gtn.net

ATTACHMENT 2

CONSOLIDATED ISSUES LIST

Note: The identification of an issue does not mean that all parties agree to such issue, or the manner in which the issue is phrased, is appropriate or is 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 of the hearing will be a matter of evidence and argument at the hearing.

Parties

• THINQ refers to THINQ Technologies Ltd., Katalyst Properties Inc., and 1625976 Ontario Ltd.
• Woodfield refers to the Woodfield Community Association
• Elmslie refers to Hazel Elmslie

No.	Description	Party	Sheltering
	Provincial Policy Statement, 2020
1.	Is the proposed development consistent with the PPS, 2020, including but not limited to policies: 1.0; 1.1.1; 1.1.3 (specifically 1.1.3.2.b, 1.1.3.3 and 1.1.3.4); 1.4.3; 1.7.1, 2.6.1 and 2.6.3?	THINQ Woodfield	Elmslie
	1989 Official Plan
2.	Is the proposed development compatible with the character, scale and intensity of the surrounding residential neighbourhood and does it maintain, protect and conserve the West Woodfield Heritage Conservation District and does it conform with the following policies of the 1989 Official Plan:
2.1	2.4.1: City structure policies	THINQ Woodfield	Elmslie
2.2	Residential Designation Policies including: - 3.1.1: General Objectives - 3.1.4: Multi-Family, High Density Residential Objectives - 3.3: Multi- Family, Medium Density Residential - 3.4.3: Scale of Development - 3.5.4: Woodfield Neighbourhood - 3.5.19 Near campus Neighbourhood Policies (including 3.5.19.10: Low Density Residential Designations) - 3.7 Planning Impact Analysis	THINQ Woodfield	Elmslie
2.3	4.1.3: Downtown Boundaries	THINQ Woodfield	Elmslie
2.4	Chapter 10: Policies for Specific Area of the 1989 Official Plan	THINQ Woodfield	Elmslie
2.5	Chapter 11: Urban Design Principles	THINQ Woodfield	Elmslie
2.6	Chapter 13: Heritage Resource Policies, including but not limited to: - 13.3.5: Implementation of Heritage Conservation District Plans - 13.3.8.4: West Woodfield	THINQ Woodfield	Elmslie
2.7	19.2: Secondary Plans and Guideline Documents	THINQ Woodfield	Elmslie
	West Woodfield Heritage Conservation District Plan
3.	Does the proposed development protect and conserve the West Woodfield Heritage Conservation District Plan and is the proposed development in-keeping with the character of the neighbourhood and does it conform with the following policies:
3.1	Heritage District Goals, Objectives and Principles contained in sections 3.0, 3.1 and 3.2	THINQ Woodfield	Elmslie
3.2	4.3: New Development	THINQ Woodfield	Elmslie
3.3	8.1: Key Elements	THINQ Woodfield	Elmslie
3.4	8.2.3: Design Guidelines, New Buildings Residential	THINQ Woodfield	Elmslie
3.5	9.1: Streetscape Key Elements 9.3: Private Elements	THINQ Woodfield	Elmslie
	General
4.	Are the special provisions setbacks proposed, increased lot coverage and special landscaped open space provisions appropriate and functional for the proposed development and do that take into consideration impacts on the adjacent properties including but not limited shadowing impacts?	THINQ Woodfield*	Elmslie
	*Woodfield shares this issue with respect to setback but not with respect to shadowing.
5.	Does the proposed development represent an overdevelopment of the land in that it is unable to accommodate the proposed density and meet the zoning by-law requirements?	THINQ Woodfield	Elmslie
6	Does the proposed development provide adequate buffering or transition to the adjacent low rise built forms in the immediate area?	THINQ Woodfield	Elmslie
7	Does the proposed development represent good planning?	THINQ Woodfield	Elmslie

ATTACHMENT 3

ORDER OF EVIDENCE*

1. Auburn Developments Inc.
2. City of London
3. THINQ Technologies Ltd., Katalyst Properties Inc., and 1625976 Ontario Ltd.
4. Woodfield Community Association
5. Hazel Elmslie
6. Auburn Developments Inc. Reply
7. City of London Reply

*Attachment 3: Order of Evidence will be determined by the Tribunal at a later date.

SUMMARY OF FILING DATES

DATE	EVENT
December 22, 2022	Exchange of witness lists (names, disciplines and order to be called)
January 16, 2023	Experts meeting prior to this date
February 1, 2023	Agreed Statement of Facts
February 17, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
February 20, 2023	Final Hearing Plan filed with the Tribunal
March 3, 2023	Exchange of Reply Witness Statements (if any)
March 10, 2023	Exchange of Visual Evidence (if any)
March 17, 2023	Finalize Joint Document Book
March 27, 2023	Hearing commences

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.