Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 18, 2022

CASE NO(S).: OLT-22-002023 (Formerly PL200651)

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

Applicant and Appellant: Whitby Brock Estates Inc.

Subject: Request to amend the Official Plan - Failure of Town of Whitby to adopt the requested amendment

Existing Designation: "Mixed use" - Town's OP; "Medium Density Residential" - DSP

Proposed Designated: "High Density Residential"

Purpose: To permit the development of a 7-storey residential apartment building comprised of 119 residential units with an overall height of 26.45 m

Property Address/Description: 423-435 Brock Street North

Municipality: Town of Whitby

Approval Authority File No.: OP-2019-W/05

OLT Case No.: OLT-22-002023

Legacy Case No.: PL200651

OLT File No.: OLT-22-002023

Legacy File No.: PL200651

OLT Case Name: Whitby Brock Estates Inc. v. Whitby (Town)

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

Applicant and Appellant: Whitby Brock Estates Inc.

Subject: Application to amend Zoning By-law No. 2585 - Neglect of Town of Whitby to make a decision

Existing Zoning: “Residential 4 - Downtown (H-R4-DT", "(H)"

Proposed Zoning: "Residential 6 - Downtown (R6-DT)"

Purpose: To permit the development of a 7-storey residential apartment building comprised of 119 residential units with an overall height of 26.45 m

Property Address/Description: 423-435 Brock Street North

Municipality: Town of Whitby

Municipality File No.: Z-19-19

OLT Case No.: OLT-22-002023

Legacy Case No.: PL200651

OLT File No.: OLT-22-002023

Legacy File No.: PL200652

Heard: February 7, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Whitby Brock Estates Inc. (“Appellant”)	Michael Cara, Chris Tanzola
Town of Whitby (“Town”)	Andrew Biggart
Regional Municipality of Durham	Robert Woon

MEMORANDUM OF ORAL DECISION BY A. CORNACCHIA ON FEBRUARY 7, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1A third Case Management Conference (“CMC”) was held to deal with changes to the Procedural Order (“PO”) issued by the Tribunal on October 19, 2021 and to provide an update.

2The Appellant filed this appeal with the Tribunal due to the Town’s failure to make decisions within the statutory time periods under the Planning Act (“Act”) regarding applications for an official plan amendment and zoning by-law amendment. These proposed amendments were to facilitate the construction of a seven-storey apartment building comprising 119 residential units being a mixture of one, two, and three-bedroom units at the property known municipally as 423-435 Brock Street North.

3At the CMC, the Tribunal was advised that the parties are working cooperatively with one another. It is anticipated that a revised development proposal will be submitted by the Appellant to the Town for review by Town Council on or about February 22, 2022.

4The parties have finalized an Agreed Statement of Facts annexed as Attachment A. Based on the discussions that have occurred between the parties, they collectively proposed various modifications to the PO identified in Attachment B which were reviewed during the CMC. The Tribunal approved these changes and requested that an amended restated PO be submitted to the Tribunal within two (2) business days which is annexed as Attachment C and is approved.

5The parties will communicate with the Tribunal regarding the progress of their discussions and notify the Tribunal if the hearing will take less time and some of the reserved dates can be released for other matters. The parties also requested permission to communicate with the Tribunal for direction regarding the sole Participant if settlement is reached by the parties.

ORDER

6The Tribunal orders as follows:

1. The Procedural Order annexed as Attachment C shall replace the previous Procedural Order and is approved by the Tribunal.

2. Subject to the scheduling requirements of the Tribunal the Member may be available for further case management relating to the Participant and reducing the amount of hearing time allocated to this case.

3. The Member is not seized.

“A. Cornacchia”

A. CORNACCHIA 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.

Ontario Land Tribunal

Procedural Order

ISSUE DATE: February 18, 2022 CASE NO.: PL200651

PROCEEDING COMMENCED UNDER subsection 22(27) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Whitby Brock Estates Inc.

Subject: Request to amend the Official Plan - Failure of Town of Whitby to adopt the requested amendment

Existing Designation: “Mixed use” - Town’s OP; “Medium Density Residential” - DSP

Proposed Designation: “High Density Residential”

Property Address/Description: 423-435 Brock Street N.

Municipality: Town of Whitby

Municipality File No.: OP-2019-W/05

OLT Case No.: PL200651

OLT File No.: PL200651

OLT Case Name: Whitby Brock Estates Inc. v. Whitby (Town)

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

Applicant and Appellant: Whitby Brock Estates Inc.

Subject: Application to amend Zoning By-law No. 2585 - Neglect of Town of Whitby to make a decision

Existing Zoning: “Residential 4 - Downtown (H-R4-DT", "(H)"

Proposed Zoning: “Residential 6 – Downtown (R6-DT)”

Purpose: To permit the development of a 7-storey residential apartment building comprised of 119 residential units with an overall height of 26.45m

Property Address/Description: 423-435 Brock Street N.

Municipality: Town of Whitby

Municipality File No: Z-19-19

OLT Case No.: PL200651

OLT File No.: PL200652

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 hearing will begin on Monday March 21, 2022 at 10:00 a.m. by video conference.

3. The length of the hearing will be 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. The procedural order deadlines are generally found in Attachment 1.

4. A final case management conference shall take place by video conference on February 7, 2022 at 10:00 a.m. for a status update for the hearing.

5. The Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order.

6. The Issues are set out in the Issues List attached as Attachment 3 to this Order. 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.

7. The order of evidence is set out in Attachment 4 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 consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

8. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.

9. If the hearing is to proceed electronically, 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. (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

10. 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 Monday November 22, 2021. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and is to provide a copy of their curriculum vitae.

11. Expert witnesses in the same discipline(s) shall have at least one meeting on or before Tuesday December 14, 2021 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting(s) the experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to the Parties and the Tribunal on or before Wednesday January 12, 2022.

12. 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, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided as in Section 15. 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.

13. 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 Section 15.

14. On or before Thursday March 3, 2022, a Participant shall provide copies of their written participant statement to the other Parties and to the Tribunal 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 Thursday March 3, 2022, the Parties shall provide copies of their witness and expert witness statements to the other Parties and to the LPAT case coordinator and in accordance with paragraph 22 below.

16. On or before Wednesday March 9, 2022, the Parties shall provide copies of their written response(s) to any written evidence to the other Parties and to the Tribunal in accordance with paragraph 22 below.

17. On or before Friday March 11, 2022, the Parties shall file with the Tribunal a detailed Work Plan that identifies the following, at a minimum: the Parties participating in the hearing, preliminary matters to be addressed (if any), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for examination in chief, cross-examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event. In the event of a disagreement between the Parties about the Work Plan, the Tribunal may be spoken to.

18. The Parties shall prepare a Joint Document Book on or before Friday March 11, 2022, and which one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with paragraph 22 below.

19. On or before Friday March 11, 2022, the Parties shall provide copies of their visual evidence to the other Parties and the Tribunal in accordance with paragraph 22 below.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with Rule 10 of the Tribunal’s Rules.

21. 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 prior to the hearing date that the written evidence is not part of their record.

22. All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7 of the Tribunal’s Rules.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. Rule 17 of the Tribunal’s Rules shall apply to such requests.

24. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

25. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member ) Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
Monday November 22, 2022	Exchange of witness lists
Tuesday December 14, 2021	Experts meeting(s) prior to this date
Wednesday January 12, 2022	Filing of Agreed Statement of Facts
Monday February 7, 2022	Final Case Management Conference
Thursday March 3, 2022	Exchange of Witness Statements and Experts Reports, Participant Statements (if any), and summoned witness outlines (if any)
Wednesday March 9, 2022	Exchange of Reply Witness Statements (if any)
Friday March 11, 2022	Filing of Work Plan and Joint Document Book
Friday March 11, 2022	Exchange of visual evidence (if any)
Monday March 21, 2022 – Friday March 25, 2022	OLT Hearing

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

*Counsel/Agent

1. Whitby Brock Estates Inc. (Applicant/Appellant) Christopher Tanzola, Michael Cara Overland LLP Yonge Norton Centre 5255 Yonge Street, Suite 1101 Toronto, ON M2N 6P4 Email: ctanzola@overlandllp.ca / mcara@overlandllp.ca Tel: 416.730.0645 / 416.730.8844

2. Town of Whitby Andrew Biggart Ritchie Ketcheson Hart & Biggart LLP 1 Eva Road, Suite 206 Etobicoke, ON M9C 4Z5 Email: abiggart@ritchieketcheson.com Tel: 416.622.6601

3. Region of Durham Kevin Ryan Regional Municipality of Durham 605 Rossland Road East Whitby, ON L1N 6A3 Email: kevin.ryan@durham.ca Tel: 905.668.7711 Ext: 2093

B. PARTICIPANTS

1. Steven and Elizabeth Siple (420 Perry Street) Email: siple77@bell.net Tel: 416.283.3540

ISSUES LIST

A. Town of Whitby

Principles of Development

1. Prejudice & Prematurity: Are the WBEI applications premature and therefore prejudice the ongoing municipal comprehensive review process to update the Downtown Whitby Secondary Plan, as required in policy 4.3.3.3.3.2 of the Town’s Official Plan?

2. Precedence: Would approval of the applications set an undesirable precedent within the area along Brock Street North that is proximate to the subject site, in consideration of the Downtown Whitby Secondary Plan area, and other intensification areas/corridors of the Town of Whitby?

Town of Whitby Official Plan

3. Do the WBEI applications conform to and meet the overall goals, intent, and guiding principles (including policies 2.1.1 and 11.3.2) of the Town of Whitby’s Official Plan?

4. Do the proposed heights integrate and transition appropriately with the planned/existing heights of the surrounding area in conformity to the Town’s Official Plan (including policy 11.3.6.4)?

5. Are the uses proposed by WBEI compatible with the existing and future land uses and densities intended for this area either currently or through the completion of the ongoing Downtown Whitby Secondary Plan update?

6. Is the proposed increase to the maximum permitted building height from 3 storeys to 7 storeys appropriate as set-out on Schedule “I” – Downtown Secondary Plan Building Height, including policies 6.2.3.12.3 and 11.3.3.3?

7. Is the proposed increase in the maximum permitted medium-residential density from 75 units per net hectare to at least 370 units per net hectare appropriate, in consideration of the Town’s Official Plan (including policy 11.3.6.2 (b))?

Zoning By-law Amendment

8. Given the current Holding provision applicable to the subject lands, have the WBEI applications sufficiently assessed the servicing capacities within the Downtown area in relation to the sanitary sewers, municipal water, and storm water servicing facilities?

9. Does the proposed Zoning By-law amendment conform to the Town’s Official Plan, and does it properly address/justify and give consideration to: (a) compatibility with adjacent uses of land; (b) suitability of the land for the proposed purpose and uses; (c) adequacy of vehicular access; (d) the failure of the proposed development to meet minimum parking requirements, and the adequacy of parking stall sizes; (e) height and density of the proposed development; (f) lot coverage and setback requirements; (g) the requirement for a minimum 5 metre wide strip of land to be taken as a road widening across the Brock Street North frontage of the subject property; and (h) impacts to site plan and site development approvals.

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence. The Order of Evidence will be described in greater detail in the Work Plan that is filed with the Tribunal.

Whitby Brock Estates Inc. (Applicant/Appellant) Town of Whitby Region of Durham Reply by Whitby Brock Estates Inc. (Applicant/Appellant)

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

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. If an unincorporated group wishes to become a party, 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 authorization 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, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as parties can.

Written and Visual Evidence: Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party 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 intends to present as evidence at the hearing.

Witness Statements: 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 the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.