NDA Investments Limited v. Oshawa (City), 2022 CanLII 15840

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 04, 2022

CASE NO(S).: OLT-21-001534

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Subject: Site Plan

Referred by: Melanie Mayhew-Hammond

Property Address/Description: 5251 Ritson Road North

Municipality: City of Oshawa

OLT Case No.: OLT-21-001534

OLT File No.: OLT-21-001534

OLT Case Name: NDA Investments Limited v. Oshawa (City)

Heard: In writing

APPEARANCES:

Parties	Counsel
City of Oshawa	Melanie Mayhew-Hammond
NDA Investments Limited, David Biddle and Alexandra Sciuk	Alan Heisey

DECISION DELIVERED BY R.G.M. MAKUCH AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is an appeal by NDA Investments Ltd. (“NDA” or “Applicant/Appellant”) respecting an application for Site Plan Control Approval to permit the construction of a new single detached dwelling and detached garage on a parcel of land known municipally as 5251 Ritson Road North.

2The Property is located on the Oak Ridges Moraine, which is an environmentally sensitive, geological landform in south central Ontario, which stretches 160 kilometers from the Trent River in the east to the Niagara Escarpment in the west, covering approximately 470,000 acres.

3On consent of the Applicant/Appellant, the City of Oshawa (“City”) hired Cambium Inc. to engage in a peer review of the site plan application and the attached Natural Heritage Evaluation prepared by Niblett Associates Inc.

4The Central Lake Ontario Conservation Authority (“CLOCA”) also reviewed the Application in accordance with their delegated provincial and municipal requirements.

5NDA subsequently filed this appeal and a hearing has been scheduled for Tuesday, April 5 and Wednesday, April 6, 2022.

CITY MOTION FOR ADJOURNMENT

6The City now brings a Motion for an Order of the Tribunal to adjourn the hearing of the appeal from Tuesday, April 5 and Wednesday, April 6, 2022 to a date to be agreed upon by the Parties subject to the Ontario Land Tribunal's (“OLT” or “Tribunal”) availability.

The City’s Grounds for the Adjournment

7The City argues that it is imperative that CLOCA be available to assist the Tribunal at the hearing to support the City's position respecting statutory conservation requirements and how the Applicant/Appellant’s proposal for site development currently adversely impacts the land, contrary to provincial and municipal land use policies.

8The City maintains that CLOCA will provide evidence as to how the development plan can be modified to potentially benefit the natural heritage system and conform with other developments in the area. The City states that CLOCA has delegated responsibilities to represent the provincial government's interests on applications submitted under the Planning Act, and as such, it is fundamentally necessary and relevant for the Tribunal to hear and consider their opinion on the Application.

9Kathy Luttrell is the Natural Heritage Ecologist for CLOCA and has previously been qualified as an expert witness before the Tribunal. The City requires her expertise for this hearing as she has knowledge of the matter and has contributed to the City's and CLOCA's review of the initial and revised applications.

10Ms. Luttrell is unavailable for testimony between the dates Monday, April 4 to Monday, April,11, 2022 because she had previously committed to testifying as an expert witness in OLT Case No. PL190638, in the City of Whitby.

11The City further maintains that it will be fundamentally prejudiced if it is unable to change the date of the hearing as they will be unable to present critical evidence respecting key natural heritage and hydrological features that the Tribunal must consider prior to rendering a decision under the Planning Act.

12The City maintains that it is not seeking a lengthy adjournment, just a change of date to allow all Parties to be available and the request will not prejudice the Applicant/Appellant, who has not provided a valid reason, or any reason, for refusing the adjournment request.

13The City argues that the adjournment is required for the Tribunal to be able to make a fair, just and expeditious resolution of the appeal on the merits of the proceedings.

APPLICANT/APPELLANT’S RESPONSE TO CITY’S MOTION FOR ADJOURNMENT AND CROSS MOTION

14The Applicant/Appellant seeks an order of the Tribunal:

a) Refusing the City's request for Adjournment of the Hearing Date Tuesday, April 5 and Wednesday, April 6, 2022;

b) Substituting the Appellant from NDA Investments Ltd. for the current registered owners of 5251 Ritson Road North - the proposed Appellants David Biddle and Alexandra Sciuk;

c) Requiring the City to produce an Issues List and a List of Conditions of Approval no later than March 2, 2022, to the Tribunal and the Appellants;

d) Requiring the Parties to provide the Tribunal and the Parties with a list of witnesses and their areas of expertise no later than Monday, March 7, 2022;

e) Requiring the Parties to serve and file expert and non-expert witness statements on or before Monday, March 14, 2022 on each other and the Tribunal;

f) Requiring the Parties to serve and file Responding Witness statements on each other and the Tribunal on or before Monday, March 21, 2022;

g) Requiring the City to provide a draft Site Plan Agreement to the Appellant and the Tribunal on or before Friday, March 25, 2022.

Motion for Adjournment

15NDA argues that the City’s Motion should be dismissed because the proposed witness Ms. Luttrell is one of a number of employees at CLOCA with technical knowledge and expertise at CLOCA and has not provided the Tribunal with any evidence of efforts made by it to retain another expert in the areas that Ms. Luttrell is qualified in.

16Counsel for NDA provided a long list of individuals employed by CLOCA who could provide the expert evidence related to this matter.

17Counsel for NDA notes that the City required it to pay for a peer review (chosen by the City) of the site plan application and that a Natural Heritage Evaluation was prepared by Niblett Associates Inc. The City could call its peer reviewer as a witness in the appeal and there is no evidence that the City’s peer reviewer natural ecologist was unavailable for the hearing.

18Ms. Luttrell is a witness for the municipality (Whitby) in OLT Case No. PL190638, Optilinx Systems Inc., which commences on Monday, April 4, 2022 proceeding for seven (7) days and not sitting on Monday, April 11, 2022.

19The Appellant's Counsel (John Ewart) in OLT Case No. PL190638 referred to the above has indicated that he is prepared to accommodate the timing of Ms. Luttrell in that case to ensure her availability to testify in this proceeding. He will agree according to counsel for NDA to call his environmental testimony the first day of the hearing.

20Counsel for NDA argues that the within site plan application in this case was filed on December 12, 2019 and that NDA had the right to file an appeal to the Tribunal under s. 41 of the Planning Act 30 days after filing the site plan application, over two (2) years ago but only appealed the failure to approve the site plan on October 15, 2021.

21Counsel maintains that adjourning this hearing until the Fall of 2022 will result in unacceptable prejudice to it.

Cross Motion

22The Cross Motion seeks an order of the Tribunal substituting David Biddle and Alexandra Sciuk for NDA as Appellants.

23The evidence in support of the cross motion shows that NDA, the former owner of the subject property, was at all times material to this proceeding, a company owned by the mother of Mr. Biddle, Linda Biddle and that Mr. Biddle was, and is, a director of NDA with signing authority. NDA and Mr. Biddle's mother, Linda, purchased the subject property with the intention it would ultimately be the property of Mr. Biddle where he could build his personal residence. It is submitted that Mr. Biddle had an equitable interest in the title to the subject property sufficient to constitute an ownership interest in the subject property and that he and Ms. Sciuk acquired registered ownership in the property from NDA on December 2, 2021.

24Furthermore, NDA has consented to Mr. Biddle and his partner Ms. Sciuk assuming and continuing the within site plan application appeal.

25Mr. Biddle is Vice President of DG Biddle and Associates and is the Applicant in the within application for site plan control.

26The cross motion also seeks an order of the Tribunal setting out directions with respect to certain prehearing matters including the production of an Issues List, which was requested from the City on February 15, 2022 in advance of the hearing but that the City has thus far failed to do so.

ANALYSIS AND FINDINGS

27The materials before the Tribunal on this Motion are the following:

a) The City’s Notice of Motion dated February 9, 2022 including the Affidavit of Tim Ryan, sworn February 9, 2022;

b) Notice of Response by the Appellant to the City’s Motion and Cross-Motion by Appellant dated February 17, 2022 including the Affidavit of David Biddle, sworn February 16, 2022;

c) City’s Notice of Response to Cross-Motion by the Appellant and Notice of Reply dated February 18, 2022 including the Affidavit of Tim Ryan, sworn February 9, 2022, previously filed; and,

d) Appellant’s Notice of Reply to the Response of the City to Cross-Motion dated February 22, 2022.

28The Tribunal has considered the Affidavit evidence before it on this Motion as well as the submissions of counsel and finds that the City’s motion for an adjournment of the hearing scheduled for Tuesday, April 5 and Wednesday, April 6, 2022 should be dismissed for the reasons that follow.

29The onus is on the City to satisfy the Tribunal that its request for an adjournment is warranted under the circumstances. Scheduled dates for hearings are considered by the Tribunal to be peremptory and will only be adjourned or changed under exceptional circumstances. The City has simply not established that the circumstances of this case warrant an adjournment. The City did not provide any evidence that it had made any efforts to inquire as to any accommodations, which could be made to permit Ms. Luttrell to testify at both hearings or to have another witness with her expertise testify in this hearing.

30The Affidavit evidence shows that the hearing in Case No. PL190638 is scheduled on Tuesday, April 4 to Friday, April 8, 2022 and Tuesday, April 12 and Wednesday, April, 13, 2022 and that counsel for the Appellant in that case has indicated that Ms. Luttrell’s testimony can be accommodated so that she could testify in this hearing without a scheduling conflict.

31The evidence shows that the prejudice to the Appellant resulting from an adjournment of the Tuesday, April 5 to Wednesday, April 6, 2022 hearing far outweighs any prejudice to the City.

32The Tribunal finds that denial of the adjournment sought by the City will result in a more just, expeditious and cost-effective determination of this appeal on its merits.

33With respect to the request for an order of the Tribunal setting out certain requirements for pre-hearing exchanges of information and documents, the Tribunal finds that such an order would be of assistance in securing a just, expeditious and cost-effective determination of this appeal on its merits resulting in a more efficient use of the Tribunal’s time in the hearing of this appeal. The Tribunal finds that the Appellant’s proposal is appropriate to the modification of the dates for exchanges of documents.

ORDER

34Accordingly, the Tribunal orders that:

a) the City of Oshawa's request for Adjournment of the Hearing scheduled for Tuesday, April 5 and Wednesday, April 6, 2022 is denied;

b) the Appellant NDA Investments Ltd. is substituted for the current registered owners of 5251 Ritson Road North - the proposed Appellants David Biddle and Alexandra Sciuk;

c) the City of Oshawa is directed to produce an Issues List and a List of Conditions of Approval no later than Wednesday, March 9, 2022 to the Tribunal and the Appellants;

d) requiring the Parties to provide the Tribunal and the Parties with a List of Witnesses and their areas of expertise no later than Monday, March 14, 2022;

e) the Parties are directed to serve and file expert and non-expert witness statements no later than Monday, March 21, 2022 on each other and the Tribunal;

f) the Parties are required to serve and file any Responding Witness statements on each other and the Tribunal no later than Monday, March 28, 2022; and

g) the City of Oshawa is required to provide a draft Site Plan Agreement to the Appellant and the Tribunal no later than Friday, March 25, 2022.

“R.G.M. Makuch”

R.G.M. MAKUCH

VICE-CHAIR

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.