Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 21, 2022

CASE NO(S).: OLT-21-001279

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

Appellant: Sandra Milton

Applicant: Stephen Bartolo

Subject: Zoning By-law

Description: Develop 8-Storey Mixed-use Building

Reference Number: By-law 2021-216

Property Address: 216 Murray Street, City of Ottawa

Municipality/UT: Ottawa/Ottawa

OLT Case No: OLT-21-001279

OLT Case Name: Milton v. Ottawa (City)

Heard: January 12, 2022 by video hearing and completed in writing on January 26, 2022

APPEARANCES:

Parties

Sandra Milton

Counsel

Eric Gillespie

Parties

City of Ottawa

Counsel

Timothy Marc

Parties

Shepherds of Good Hope (SGH)

Counsel

Michael Polowin Jacob Polowin

DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This video hearing was conducted to hear two motions regarding an appeal by Sandra Milton (“Appellant”/”Milton”) filed under Section 34(19) of the Planning Act (“Act”).

2The Shepherds of Good Hope (“SGH”) has property known municipally as 216 Murray Street in the City of Ottawa (“City”). The Applicant applied for a Zoning By-law Amendment (“ZBA”) to develop their property. The City of Ottawa passed By-law No. 21-216 on July 15, 2021 with approved amendments.

3The proposed development is an eight-storey mixed-use with building containing a community health and resource centre and 48 residential dwelling units in the upper storeys. The application is to rezone the subject property from “R4UD [1667] S77” (Residential Fourth Density Zone, Subzone UD, Urban Exception 1667, Schedule 77) to “R5S [2721] S77” (Residential Fifth Density Zone, Subzone S, Urban Exception ‘2721’, Schedule 77) in the City of Ottawa Zoning By-law.

4The proposed zoning will achieve an increase in building height to a maximum of 33.5 metres (“m”) through amending Schedule 77, and site-specific provisions to prohibit a shelter, and reduced visitor parking, landscaping, amenity area, and yard setbacks.

5The proposed development is subject to federal funding under the City’s rapid housing initiative, which plans to provide supportive housing to the homeless, with priority given to women and indigenous people.

6The Applicant with direct interest in the matter was granted party status with consent of the City and the Appellant.

7There were no additional requests for party or participant status to the Tribunal and none were granted.

PRELIMINARY MATTERS

8At the start of the hearing into the City’s and Applicant’s motions, counsel for the Appellant requested an in-camera session with the Tribunal to discuss some confidential matters. This was allowed by the Tribunal and all parties and observers were dismissed from the video except for the counsel representing the Appellant, the City and the Applicant. The video hearing was locked to prevent anyone else joining or participating during the in-chamber discourse.

9The Tribunal based on preliminary submissions at the closed door discussions, assessed and determined that the oral hearing will not proceed and instead the hearing will continue in writing. All parties consented to this approach and the timelines. The associated direction and the Order was issued and confirmed in writing on the same day on January 12, 2022 as follows:

PREAMBLE:

• At the first Case Management Conference held on January 12, 2022, the parties made submissions regarding some preliminary matters of adjournment and possible conflict of interest situation for the Appellant’s counsel. There were alternate proposals and approaches submitted. The parties on consent agreed to continue with the hearing in writing subject to the direction thereof from the Tribunal.

• All parties agreed and the Tribunal determines that all the evidence and Affidavits received as of the start of this hearing at 10 a.m. on January 12, 2022 are final and no further changes or additions are permitted to the same.

ORDER TO CONTINUE HEARING IN WRITING

10The Applicant was granted party status having direct interest in this matter.

11The submission made by the moving party, SGH on January 11, 2022 and conveyed to the Tribunal and all the parties represents SGH’s written submission in the matter regarding their motion.

12The City shall provide its final written submission on City’s motion by 9 a.m. on January 17, 2022.

a) SGH shall provide its response to City’s submission by 10 a.m. on January 18, 2022.

13The Appellant shall provide its response to both motions; the City’s and SGH’s; no later than 4:30 p.m. on January 21, 2022.

14The moving parties shall submit their final reply to responses no later than January 26, 2022;

a) The City shall provide reply response to City’s motion; and

b) SGH shall provide reply response to SGH motion.

15The only deviation permitted from these timelines would be if Lawpro determines and informs the Tribunal by January 19, 2022 that Counsel Gillespie (and the law firm he is part of) shall withdraw from the file and not further represent the Appellant in these proceedings.

16The parties shall adhere to the following framework in making their submissions electronically with double spaced letter size paper format with size 12 font;

a) Moving party and responding party submissions shall be no more than 30 pages excluding cover and back page for each motion;

b) Reply submission by moving parties shall be no more than 10 pages excluding cover and back page;

c) Any case law attachments are excluded from the page limits.

17These directions are so ordered.

HEARING CONTINUED IN WRITING

18The parties made their submissions as directed in Tribunal’s Order from January 12, 2022. As a result, the written hearing was completed on January 26, 2022.

19There are two Motions before the Tribunal in this hearing. The Motions are by the City and SGH. For the reasons that follow the Tribunal determines as follows;

1. The Motion by the City is allowed, and the Appeal is dismissed.

2. The Motion by SGH is allowed and the Appeal against By-law No. 2021-216 for the City of Ottawa is dismissed.

MOTION BY THE CITY

20The City filed a Motion which sought the following;

1. An Order dismissing the above-noted appeal (the “Milton Appeal”) without a hearing; and

2. Such further and other relief as this Honourable Tribunal may deem just.

21The material filed regarding the City’s Motion and considered by the Tribunal includes the following and additionally the Tribunal will have regard for the material that was before the approval authority when they made their decision:

a. OLT_21_001279_City of Ottawa_Notice of Motion

b. OLT_21_001279_City of Ottawa_Affidavit of Andrew McCreight sworn on December 16, 2021

c. OLT-21-001279_City of Ottawa_Submissions on Motions

d. OLT-21-001279 - SGH Reply to City Submissions(49114881.1)

e. 220121 1187 PLD Appellant Responding Submissions re City

f. 220106 OLT-21-001279 PLD Motion Record of the Appellant

i. Includes Affidavit of Sarah Quildon affirmed on 5 January 2022

g. OLT_21_001279_City of Ottawa_Reply Submission

SUBMISSIONS AND ANALYSIS

22In order to determine the City’s motion, the Tribunal must find if the Appellant filed their appeal as prescribed in Subsection 34(19) of the Act:

Appeal to Tribunal

(19) Not later than 20 days after the day that the giving of notice as required by subsection (18) is completed, any of the following may appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal:

1. The applicant.

2. A person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.

3. The Minister. 2006, c. 23, s. 15 (10); 2017, c. 23, Sched. 3, s. 10 (4); 2019, c. 9, Sched. 12, s. 6 (4); 2021, c. 4, Sched. 6, s. 80 (1).

23In regard to the calculation of the prescribed eligible period for filing an appeal under s. 34(19) of the Act, there is a requirement on the approval authority; in this case, the City; to provide due notice as per s. 34(18) of the Act:

Notice of passing of by-law

(18) If the council passes a by-law under this section, except a by-law passed pursuant to an order of the Tribunal made under subsection (11.0.2) or (26), the council shall ensure that written notice of the passing of the by-law is given in the prescribed manner, no later than 15 days after the day the by-law is passed,

(a) to the person or public body that made the application, if any;

(b) to each person and public body that filed a written request to be notified of the decision; and

(c) to any prescribed person or public body. 2015, c. 26, s. 26 (8); 2017, c. 23, Sched. 5, s. 93 (2).

24The Appellant’s Affiant, Sarah Quildon submits that she contacted the City to confirm how the Appeal material were to be served. She states that through her call with someone at the City, she was directed that the Appeal be sent in two emails for service: 311@ottawa.ca and dioinquiry@ottawa.ca. She states that she sent and served the Appeal on August 4, 2021.

25The Affiant for the City, Andrew McCreight affirms that per Ontario Regulation 545/06, subsection 6(2) the notice of the passing of the by-law was served via e-mail to the Appellant and other distribution list. Mr. McCreight stated that the notice provided two methods for effecting service: mailing to 110 Laurier Avenue West or scheduling an appointment at City Hall (110 Laurier Avenue West).

26Mr. McCreight further states that the deadline for service was August 4, 2021 at 4:30 pm.

27Mr. McCreight also states that the explanatory note provided two contacts for further information. He added that the details for the two contacts included their e-mail addresses and phone numbers. The City submitted that neither the identified contacts were contacted to assist with proper service, nor the Appeal was served at the specified place of service.

28The City further submitted in their reply to response as follows:

“The Responding Party, Sandra Milton, seeks to draw a distinction between the Explanatory Note and Notice of Passing and not consider as relevant that two individuals, Andrew McCreight and Steve Gauthier were identified as contacts in the Explanatory Note. Ontario Regulation 545/06, subsection 6(9) requires that the Explanatory Note accompany the Notice of Passing: (9) In addition to the explanation required by clause 34 (18.1) (a) of the Act, the notice shall include the following:

1. An explanation of the purpose and effect of the by-law.

29The Appellant submitted that the Act s. 34(19) is ambiguous in terms of where to serve the Appeal by focussing on the following language (emphasis added) in s. 34(19):

“... may appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal ....”

30SGH adopted the City’s argument and submissions pertaining to their motion while submitting that the matter of possible costs be pursued by them.

31Tribunal finds that there was little conflicting evidence in terms of what Affiant Quildon attempted to do in effecting service of their Notice of Appeal and the City’s submissions as well as the evidence in the affidavit of Mr. McCreight’s for the City. The City noted that Ms. Quildon has failed to identify who provided her with directions regarding the two e-mail addresses that she ended up sending the Appeal material to.

32The Tribunal finds that equally, the statement of the Affiant for the City, Mr. McCreight has not been contested and there is little dispute about his statements in his Affidavit.

33The Appellant is banking on the language in s. 34(19) to portray that this ambiguity somehow makes the direction in the notice of passing of the by-law somehow redundant or not to be conformed with. The Tribunal finds that the direction for service in the notice of passing of the by-law are unambiguous and are further assistive in case difficulties arise in providing due service for an appeal. The Tribunal finds that there is no conflict of the notice of passing of the by-law with s. 34(19) direction.

34The Tribunal notes that the Appellant provided no information that the service was processed as directed in the notice of passing of the by-law. Additionally, Ms. Quildon did no make any affirmation that she contacted either of the two contacts identified in the notice of passing of the by-law by the deadline of August 24, 2021 at 4:30 pm.

35The Tribunal finds that the efforts of Ms. Quildon do not satisfy the requirement of service as directed by s. 34(19) of the Act while the City provided due notice of passing of the by-law in accordance with s. 34(18) of the Act.

36The Tribunal concludes that the Appellant failed to effect proper service of their Appeal upon the City as required by s. 34(19) of the Act.

37The Tribunal ORDERS that the motion of the City is allowed, and the Appeal by Sandra Milton is dismissed.

38Should the parties seek to make an application for costs, they shall duly proceed as per Rule 23 of the Ontario Land Tribunal Rules of Practice and Procedure.

SGH MOTION

39SGH filed a motion to dismiss the Appeal by Sandra Milton without a hearing as follows:

(a) An Order dismissing the Milton Appeal without a hearing pursuant to s. 34(25) of the Planning Act;

(b) The costs of this Motion; and

(c) Such further and other relief as the Tribunal may deem just.

40The material filed regarding the SGH motion and considered by the Tribunal includes the following and additionally the Tribunal will have regard for the material that was before the approval authority when they made their decision:

a. OLT 21-001279 - SGH Notice of Motion(48817512.1)

b. OLT-21-001279 SGH Written Submissions(49027814.1)

c. OLT-21-001279 Affidavit of Nadia De Santi sworn on Dec 20 2021 (48786123.1)

d. OLT_21_001279_City of Ottawa_Notice of Response to Motion

e. 220121 1187 PLD Appellant Responding Submissions re SGH

f. 220106 OLT-21-001279 PLD Motion Record of the Appellant

i. Includes Affidavit of Michael Manett sworn on 5 January, 2022

g. OLT-21-001279 SGH Reply Submissions(49252627.1)

41The City supports the SGH motion. It disagrees with Appellant Affiant Michael Manett’s assertion (page 404, para 14) that just because the City is partially funding the development that there is bias in planning assessments and City consideration of the same. The City also disagrees with Affiant Manett’s reference to possible updates to the Official Plan and asserts that the application was duly processed under the Official Plan in force at the time of the Application’s consideration. The City submits that the Appeal contravenes s. 34(19.0.1) and 34(25) of the Act.

42The Act s. 34(19.0.1) and s. 34(25) state as follows (emphasis added):

Appeal to Tribunal

Same

(19.0.1) If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document. 2019, c. 9, Sched. 12, s. 6 (5).

Dismissal without hearing

(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

ii. the appeal is not made in good faith or is frivolous or vexatious,

iii. the appeal is made only for the purpose of delay, or

iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

2. The appellant has not provided written reasons for the appeal.

3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

4. The appellant has not paid the fee charged by the Tribunal.

5. The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal. 2019, c. 9, Sched. 12, s. 6 (8); 2021, c. 4, Sched. 6, s. 80 (1).

43The prescription in s. 34 (19) also provides direction in this matter as to what is expected to be in a Notice of Appeal (emphasis added) and informs s. 34(25)(1);

a notice of appeal setting out the objection to the by-law and the reasons in support of the objection

44SGH addressed the following two issues in their motion:

1. Should the Milton Appeal be dismissed pursuant to s. 34(25)(3) of the Planning Act for contravention of s.34(19.0.1)?

2. Should the Milton Appeal be dismissed pursuant to s. 34(25)(1) of the Planning Act?

45SGH provided an Affidavit by a Land Use Planner, Nadia De Santi sworn on December 20, 2021. The Appellant provided a responding Affidavit of a Land Use Planner, Michael Manett sworn on 5 January, 2022.

46SGH submits that the Notice of Appeal by the Appellant lacks the details as per s. 34(19.0.1) and what is directed for consideration in s. 34(25)(1) of the Act with appropriate remedy made available to the Tribunal by s. 34(25) of the Act for each such contravention to dismiss the Appeal without a hearing in the merits.

47Counsel for the Appellant provided the following rationale for justifying the conformance of their Notice of Appeal with respect to s. 34(19.0.1) of the Act (extracted from the appeal application package dated August 4, 2021 by counsel Eric K. Gillespie):

Ms. Milton’s concerns are supported by the following:

1. The ZBA does not comply with the Ontario Planning Act, Subsections 2 (h), (i), (j), (n), (o), (p), (q) and (r).

2. The ZBA is inconsistent with the Provincial Policy Statement (“PPS”): Part IV Vision for Ontario’s Land Use Planning System, Part V Section 1.0 Building Healthy Communities, Section and 2.6 Cultural Heritage and Archaeology.

48The Tribunal finds the material and explanations in the Notice of Appeal that it fails to provide the requisite information required as follows succinctly (extracted from s. 34(19.0.1) and emphasis added) in the Act:

the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document

49There simply are no explanation in the Notice of Appeal as to “how” the identified sections or subsections lead to possible inconsistency with or non-conformity with the Act or the Provincial Policy Statement (“PPS”).

50Affiant for the Appellant, Mr. Manett equally fails to establish any level of clarity when he simply referred to the Affidavit of Ms. De Santi to opine that the policies she has considered and assessed that support the application require further consideration. Mr. Manett also alludes that the concerns raised by the Appellant were not duly considered during planning assessment at the City. He further alleges bias in the planning review process and approval of the application. Mr. Manett’s evidence makes no further inroads into establishing how the Appeal meets the onus set per s. 34(19.0.1) of the Act.

51The Appellant submits that they have identified specific policies in the PPS and that the Tribunal would be well aware what appellants often serve. The Appellant adds that most Appellants often include list of concerns and apprehensions. The Appellant submits that this will lead to the identification of an Issues List and a hearing. It may be the experience of the Appellant counsel and/or the Appellant but the Tribunal notes that the legislation makes direct guidance with usage “must explain” and if the legislation wanted it be interpreted as must identify or flag policies only or like it would have stated so. The Appellant argument if taken to the extreme it will make s. 34(19.0.1) where Appellant could just jot down a policy number to thwart the intent of the legislation and just always be assured of a hearing leading to absurd results not intended by specific direction in the legislation. The Tribunal simply cannot subvert the Act by imposing or creating its own narrative or descriptions that the Act requires of an Appellant to provide in their Notice of Appeal.

52The Tribunal having reviewed and considered the Notice of Appeal, having regard for the material that was before the approval authority when they made their decision, the Affidavits of Ms. De Santi and Mr. Manett and submissions by the parties and all the exhibits, concludes that, the Appeal does not meet the statutory requirements set in s. 34(19.0.1) of the Act.

53In reviewing aspects of the Notice of Appeal the Tribunal assesses the motion in the context of s. 34(19) of the Act which directs the Appellant to provide reasons and in absence of the same allows the Tribunal to dismiss an appeal without a hearing. Namely (emphasis added);

a notice of appeal setting out the objection to the by-law and the reasons in support of the objection

54Counsel for the Appellant provided the following rationale for justifying the appeal request with respect to satisfying s. 34(19) of the Act and submitting that s. 34(25)(1) does not apply (extracted from the appeal application package dated August 4, 2021 by Counsel Eric K. Gillespie) :

1. The ZBA does not comply with the City of Ottawa’s Official Plan: Sections 2.5, 4.3, 4.5, 4.6, 4.11 and 10.4.

2. The ZBA does not comply with of the City of Ottawa’s Official Plan Annex 8A, Annex 8B and Annex 12, Section 4.11 Urban Design and Compatibility of Views Policy 3.

3. The ZBA does not comply with the City of Ottawa’s Central Area Secondary Plan, Volume 2.

4. The ZBA does not comply with the City of Ottawa’s Zoning By-law 2008-The ZBA does not comply with the City of Ottawa`s Strategic Plan 2019-22.

5. The ZBA does not comply with the City of Ottawa’s Urban Design Guidelines for Transit- Oriented Development.

6. The ZBA does not comply with the City of Ottawa’s Urban Design Review Panel process. The ZBA does not comply with the City of Ottawa’s Housing First Policy.

7. The ZBA does not comply with the City of Ottawa’s High Social Impact Projects Program.

8. The ZBA does not comply with the City of Ottawa’s Planning Primer – Heritage Planning Elective.

9. The ZBA does not comply with the City of Ottawa’s Guide to Cultural Heritage Impact Statements.

10. The ZBA does not comply with the City of Ottawa’s Lowertown Heritage Conservation District.

11. The ZBA misinterprets and misapplies the International Council of Monuments and Sites (“ICMOS”) guidelines relied upon by the Applicant.

55SGH submits that a listing of possible planning instruments and policy numbers is simply “bald and unsubstantiated allegations”. Mr. Manett asserts that the aspects related to such headings were not appropriately addressed during the City planning staff reviews and the City during the approval process. He further asserts that the Tribunal would provide impartial venue for proper assessments versus the possible biased activities at the City from staff and the approval authority.

56Mr. Manett asserts that cross-examination at the Tribunal would further ensure that the true merits are determined. While it may be thought of as such, there is nothing in the Act that requires that the Tribunal needs to be involved in all matters to ensure such ideals. The planning staff and the approval authorities are well established per statute to carry out the same duties. Further, Mr. Manett adds little in providing Appellant’s “reasons in support of the objection” beyond generally repeating “does not comply”. Mr. Manett provides little information as to why it does not comply so that a planning policy based basis for a possible valid appeal before the Tribunal may be established.

57The Tribunal having considered the Notice of Appeal, the Affidavits of Ms. De Santi and Mr. Manett; having regard for the material that was before the approval authority when they made their decision and submissions by the parties finds that the Appeal does not satisfy the statutory requirement set in s. 34 (25)(1)(i) of the Act which directs that the Notice of Appeal must disclose apparent land use planning grounds (subsection as excerpted below):

1. The Tribunal is of the opinion that,

i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

The Tribunal notes that simply qualifying with “does not comply” in a list of policy document titles or sections which refer to Zoning By-laws, City Official Plan, and other possibly documents does not disclose any apparent land use planning grounds in the form of reasons that could support such a notice of appeal.

58Tribunal notes that an Appellant needs to satisfy all the subsections in s. 34 (25), as applicable. The contravention of any clause in s. 34(25) directs the Tribunal for dismissal without a hearing.

59The Tribunal finds and concludes that the Appellant has not provided explanation as to; how the by-law is inconsistent with, fails to conform with or conflicts with the Act and the PPS; as required under s. 34 (19.0.1) of the Act and thus contravenes s. 34(25)(3) of the Act.

60The Tribunal is of the opinion that the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal and hence the Appellant contravenes s. 34(25)(1)(i) of the Act.

61The Tribunal ORDERS that the Appeal of Sandra Milton against By-law No. 2021-216 of the City of Ottawa is dismissed.

62The directions in this decision are so ordered.

“Jatinder Bhullar”

JATINDER BHULLAR

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.