Burlington 71 Plains Inc. v. Burlington (City), 2022 CanLII 13995

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 25, 2022

CASE NO(S).: OLT-21-001021, OLT-21-001022

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

Applicant and Appellant: Burlington 71 Plains Inc.

Subject: Request to amend the Official Plan – City of Burlington to adopt the requested amendment

Existing Designation: Mixed Use Corridor Employment and Mixed Use Corridor – General

Proposed Designated: Mixed Use Corridor General and allow for site specific provisions

Purpose: To permit two mixed-use mid-rise buildings of 10 and 12 storeys

Property Address/Description: 53-71 Plains Road East and 1025 Cooke Boulevard

Municipality: City of Burlington

Approval Authority File No.: 505-11/17 & 520-22/17

OLT Lead Case No.: OLT-21-001021

OLT Case No.: OLT-21-001021

OLT Case Name: Burlington 71 Plains Inc. v. Burlington (City)

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

Applicant and Appellant: Burlington 71 Plains Inc.

Subject: Application to amend Zoning By-law No. 2020 - Neglect of the City of Burlington Norfolk County to make a decision

Existing Zoning: Mixed Use Corridor – Employment (MXE) and Mixed Use Corridor - General (MXG) Zones

Proposed Zoning: Mixed Use Corridor - General (MXG) Zone with site specific exceptions

Purpose: To permit two mixed-use mid-rise buildings of 10 and 12 storeys

Property Address/Description: 53-71 Plains Road East and 1025 Cooke Boulevard

Municipality: City of Burlington

Municipality File No.: 505-11/17 & 520-22/17

OLT Lead Case No.: OLT-21-001021

OLT Case No.: OLT-21-001022

Heard: February 15, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Burlington 71 Plains Inc. (“Appellant”)	David Bronskill
City of Burlington (“City”)	Blake Hurley
Regional Municipality of Halton Hills (“Region”)	Kelly Yerxa

MEMORANDUM OF ORAL DECISION DELIVERED BY A. CORNACCHIA ON FEBRUARY 15, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1A second Case Management Conference (“CMC”) was held on February 15, 2022 regarding the Appellant’s appeal under s. 22(7) and s. 34(11) of the Planning Act (“Act”) regarding the failure of the City of Burlington (“City”) to make a decision regarding applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) relating to the property located at the municipal addresses of 53-71 Plains Road East and 1025 Cooke Boulevard, City of Burlington, Ontario. (“Subject Property”).

2The Appellant proposes two mixed--use, mid-rise buildings of 10 and 12 storeys with retail and service commercial uses at the street level and 450 residential units above (“Proposed Development”) for the Subject Property. Two applications were filed with the City to facilitate the Proposed Development:

a. an application for an OPA changing the existing designation from Mixed Use Corridor- General and Employment to Mixed Use Corridor- General with site specific exceptions, and

b. an application for a ZBA changing the existing zoning from Mixed Use Corridor - General (MXG) and Mixed Use Corridor - Employment (MXE) to "Mixed Use Corridor - General (MXG) Zone" with site specific exceptions to increase permitted height and density and allow the proposed uses and revise development standards as necessary to permit the development.

3The City did not make decisions on these applications by the deadlines stipulated by the Act and Appellant filed this appeal with the Tribunal in response.

4The CMC dealt with the following matters:

1. Requests for Status
2. A case update,
3. Draft Procedural Order (“Draft PO”), and
4. Scheduling the Hearing.

5There were no further requests for status made at the CMC. The parties provided an update on their discussions and the resolution of the Draft PO. They are actively discussing the resolution of various issues relating to the hearing and the Draft PO provides a list of issues to be resolved by the Tribunal. They hope to resolve some of these issues prior to the hearing of this matter.

6The parties requested that the Tribunal set the matter down for a hearing. A nine-day hearing was scheduled commencing on Monday, October 31, 2022 at 10 a.m. by video hearing.

7Parties 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:

https://meet.goto.com/656004293

Access code: 656-004-293

8Parties 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

9Persons 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: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 656-004-293.

10Individuals 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.

11Based on the scheduled hearing, the parties advised the Tribunal that they will resolve the dates for the Draft PO and Mr. Bronskill will submit the final Draft PO, on consent to the Case Coordinator for approval by the Tribunal within two (2) business days after the CMC.

12The final Draft PO attached as Appendix 1 was submitted on February 16, 2022 to the Tribunal by Mr. Bronskill, with the consent of the other parties, and is approved by the Tribunal.

DECISION

13THE TRIBUNAL ORDERS that:

• The Procedural Order attached as Appendix 1 is hereby approved.

14The hearing of this matter is scheduled for nine (9) days commencing on Monday, October 31, 2022 at 10 a.m. by video hearing.

15There will be no further notice.

16The Member is not seized.

17Schedule permitting, the Member may be available for case management purposes.

“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.

APPENDIX 1

ISSUE DATE: February 25, 2022 CASE NO(S).: OLT-21-001021

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

Applicant and Appellant: Burlington 71 Plains Inc.

Subject: Request to amend the Official Plan – City of Burlington to adopt the requested amendment

Existing Designation: Mixed Use Corridor Employment and Mixed Use Corridor – General

Proposed Designated: Mixed Use Corridor General and allow for site specific provisions

Purpose: To permit two mixed-use mid-rise buildings of 10 and 12 storeys

Property Address/Description: 53-71 Plains Road East and 1025 Cooke Boulevard

Municipality: City of Burlington

Approval Authority File No.: 505-11/17 & 520-22/17

OLT Case No.: OLT-21-001021

OLT File No.: OLT-21-001021

OLT Case Name: Burlington 71 Plains Inc. v. Burlington (City)

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

Applicant and Appellant: Burlington 71 Plains Inc.

Subject: Application to amend Zoning By-law No. 2020 - Neglect of the City of Burlington Norfolk County to make a decision

Existing Zoning: Mixed Use Corridor – Employment (MXE) and Mixed Use Corridor - General (MXG) Zones

Proposed Zoning: Mixed Use Corridor - General (MXG) Zone with site specific exceptions

Purpose: To permit two mixed-use mid-rise buildings of 10 and 12 storeys

Property Address/Description: 53-71 Plains Road East and 1025 Cooke Boulevard

Municipality: City of Burlington

Municipality File No.: 505-11/17 & 520-22/17

OLT Case No.: OLT-21-001022

OLT File No.: OLT-21-001022

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 October 31, 2022 at 10:00 a.m.

3. The length of the hearing will be nine (9) 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. The Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order.

5. 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.

6. 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 the Parties' consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. 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.

8. 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

9. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing to try to resolve or reduce the issues for the hearing. 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 all of the Parties and the Tribunal on or before September 2, 2022.

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 June 30, 2022. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or July 15, 2022.

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, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided as in Section 14. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other Parties at the same as the delivery of expert witness statements, as in Section 14.

12. A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before September 23, 2022, or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.

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 14.

14. On or before September 23, 2022, the Parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other Parties.

15. On or before October 7, 2022, the Parties may provide to all other Parties a written response to any written evidence.

16. On or before September 2, 2022, the Parties shall advise the Tribunal of whether any hearings dates scheduled for this matter may be released from the Tribunal's calendar. This request may only be made on consent of all of the Parties. If no hearing dates are intended to be released from the Tribunal's calendar, no Party is required to advise the Tribunal anything further in that regard.

17. On or before October 21, 2022, the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving Party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion.

19. A Party who provides a witness’ written evidence 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. On or before September 2, 2022, the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), 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.

21. The Parties shall prepare a Joint Document Book on or before on or before October 21, 2022, and which one (1) hard copy will be filed with the Tribunal at least 10 days 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 Section 22.

22. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal shall be provided a hard copy of documents and materials. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. Section 22 applies regardless if the hearing event is in-person or electronic.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by Section 16. The Tribunal’s Rule 17 applies 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.

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
June 30, 2022	Exchange of witness lists (names, disciplines and order to be called)
July 15, 2022	Last date to challenge identification of expert witness
August 12, 2022	Experts meeting prior to this date
September 2, 2022	Agreed Statement of Facts
September 2, 2022	Final Work Plan filed with the Tribunal
September 2, 2022	Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
September 23, 2022	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
October 7, 2022	Exchange of Reply Witness Statements (if any)
October 21, 2022	Exchange of visual evidence (if any)
October 21, 2022	Finalize Joint Document Book
October 31, 2022	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. Burlington 71 Plains Inc. David Bronskill, Goodmans LLP dbronskill@goodmans.ca 416.597.4299

2. City of Burlington Blake Hurley blake.hurley@burlington.ca 905.335.7600, x. 7611

3. Regional Municipality of Halton Kelly Yerxa kellyg.yerxa@halton.ca 905.825.6000, x. 7740

PARTICIPANTS

1. Tom Muir, betty.muir@sympatico.ca

ATTACHMENT 3

ISSUES LIST

City of Burlington

1. Do the proposed amendments have regard for matters of Provincial interest identified in the Planning Act?
2. Are the proposed Official Plan Amendment and Zoning By-law Amendment consistent with the Provincial Policy Statement given the location and context of the subject lands, and considering the level of intensification proposed?
3. Are the proposed Official Plan Amendment and Zoning By-law Amendment in conformity with to A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2020 given the proposed scale of development and proposed transition of built form to adjacent areas, specifically considering policies 1.2.1, 1.2.3, 2.2.1, 2.2.5, 5.1, 5.2.5(6), 5.2.5(8)?
4. Does the Subject Proposal conform to policies in the Regional Official Plan, including with respect to servicing and site contamination and remediation?
5. What weight should be given to Regional Official Plan Amendment 48 as approved by the Minister of Municipal Affairs and Housing on November 10, 2021?
6. What weight should be given to the following policies of the City’s new Official Plan as approved by the Region on November 30, 2020 and currently under appeal:
   1. Chapter 1 – 1.8
   2. Chapter 2 – 2.3, 2.4
   3. Chapter 3 – 3.5
   4. Chapter 4 – 4.3.2, 4.4.2(2)
   5. Chapter 5 – 5.1, 5.2, 5.4.7, 5.4.8
   6. Chapter 6 – 6.2.2(2), 6.2.4(1), 6.2.4(2)(j)(k), 6.2.10
   7. Chapter 7
   8. Chapter 8 – 8.1.3(7), 8.1.3(8)
   9. Chapter 12 – 12.1.1(2), 12.1.1(3), 12.1.2, 12.8.1
   10. Chapter 13 – Definitions (definitions included in the aforementioned policies)
   11. Schedules A,B,B-1, B-2,C,G

If weight is to be assigned, what are the implications of the application of the policies to the Proposed Development?

7. Are the proposed Official Plan Amendment and Zoning By-law Amendment in conformity with, and do they maintain the intent of, the policies of the City’s Official Plan, including:
   1. Part I – 3.0(h)
   2. Part II – 6.0 (6.1,6.2, 6.5, 6.6)
   3. Part III - 2.5.1, 2.5.2, 5.0 (5.1, 5.2,5.3) 6.3
   4. Part VI- 2.3, 2.7
   5. Part VIII – Definitions (definitions included in the aforementioned policies)
   6. Schedules A, B,
8. Does the Proposed Development represent an appropriate level of density and intensification for the subject lands and does the proposed density and intensification conform with or maintain the intent of the City’s Intensification Strategy as implemented through the City’s Official Plan?
9. Is the proposed residential use appropriate in the Mixed Use Corridor- Employment designation that applies, in part, to the subject lands?
10. Does the Proposed Development represent appropriate urban design in addressing matters including height, density, form, massing, bulk, scale, siting, transitions, building articulation, setbacks and spacing having regard for the site and the character of the surrounding lands?
11. Do the proposed 10 and 12-storey buildings represent an appropriate building height?
12. Is the height and massing of the proposed podium appropriate given the existing and planned surrounding development context?
13. What weight should be given to the applicable Council-approved design guidelines? If weight is to be assigned, what are the implications of the application of the guidelines to the Proposed Development?
14. Does the Proposed Development provide for appropriate streetscapes with a pedestrian scale?
15. Does the Proposed Development provide a sufficient number of parking spaces, including bicycle and accessible parking?
16. Would the Proposed Development result in adverse shadow impacts on the subject property, adjacent public realm or nearby residential properties?
17. Are setbacks to hardscaped surfaces and the underground parking structure sufficient to support mature landscaping and provide an adequate visual and spatial buffer? Are the proposed landscape buffers adequate?
18. What is the appropriate amount of parkland to be dedicated to the City through the Proposed Development of the site?
19. Is the amount of amenity area proposed within the Proposed Development appropriate?
20. Would the Proposed Development result in any negative impacts to adjacent properties relating to stormwater, grading, groundwater, noise, etc.?
21. If approved by the Tribunal, what are the appropriate Planning Act section 37 benefits in relation to the Proposed Development?
22. Does the Proposed Development represent good land use planning?

Regional Municipality of Halton

1. Will the issue around site contamination be addressed through a Record of Site Condition (RSC)?
2. Is it appropriate to require an “H” in the amendment to City of Burlington Zoning By-law 2020 on condition that the “H” can be lifted once the RSC is filed?

ATTACHMENT 4

ORDER OF EVIDENCE

1. Burlington 71 Plains Inc.
2. City of Burlington
3. Regional Municipality of Halton
4. Burlington 71 Plains Inc., in reply (if any)

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.

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