Bradel Properties Ltd. v. London (City), 2022 CanLII 23502

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 24, 2022

CASE NO(S).:

OLT-22-002051

(Formerly PL190539)

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

Applicant and Appellant:

Bradel Properties Ltd.

Subject:

Application to amend Zoning By-law No. Z.-1 Refusal of Application by the City of London

Existing Zoning:

h-3 DA1(1) D350 H95 DAl(3) D350 H95 T-71

Proposed Zoning:

h-3 DA1(1) D350 H95 DAl(3) D350 H95 T-71

Purpose:

Extension of Temporary Use By-law T-71 to maintain existing parking lot

Property Address/Description:

324 York Street

Municipality:

City of London

Municipality File No.:

TZ-9069

OLT Case No.:

OLT-22-002051

Legacy Case No.:

PL190539

OLT Lead Case No.:

OLT-22-002051

Legacy Lead Case No.:

PL190539

OLT Case Name:

Bradel Properties Ltd. v. London (City)

Heard:

February 14, 2022 via Video Hearing

APPEARANCES:

Parties

Counsel

Bradel Properties Ltd.

Analee Baroudi

City of London

Vanetia R

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE AND JATINDER BHULLAR ON FEBRUARY 14, 2022 AND ORDER OF THE TRIBUNAL

1This was the second Case Management Conference (“CMC”) for an Appeal by Bradel Properties Ltd. (the “Appellant”) against City of London (“City”) Council’s refusal to extend a Temporary Use By-law (“TUBL”) for a further three years. The property is known municipally as 324 York Street (the “Subject Property”) and has an area of 1,495 square metres (0.37 acres).

2It is noted that a six-month extension had been granted prior to the current application.

3Counsel agreed that the need for the parking lot would be an issue at the hearing. Ms. Baroudi explained that the Subject Property is well situated for a surface parking lot and was a very busy parking lot prior to the pandemic. She advised that her client is not opposed to redevelopment of the Subject Property; however, a parking study would be required and is currently not feasible due to the pandemic’s effects on parking demand. Both Parties agreed that a Traffic Study in the Fall of 2022, would be appropriate to allow time to have a study reflective of the current use during that period.

4The Parties on consent proposed a four (4) day hearing in either late January or early February 2023. According to the Parties, it is anticipated that four experts in total, two experts from each Party, will provide evidence. According to the Parties, this proposed timeframe would allow for review of the Traffic Study. Witness experts are to share their respective reports and time to narrow down any outstanding issues prior to the hearing.

5The Tribunal orders that a hearing will be held by video on Tuesday, February 7, 2023, commencing at 10 a.m.

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:

https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

7Parties are asked to set up the video hearing 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 1-888-299-1889 or +1 (647) 497-9373. 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 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.

10There will be no further notice.

THE FINALIZATION OF A PROCEDURAL ORDER AND ISSUES LIST

11The Parties on consent provided a draft Procedural Order (“PO”) to the Tribunal. The Parties requested an additional two weeks to finalize the PO including the Issues List with all dates to be included in the final Order.

12The Tribunal allowed the parties to submit to the Tribunal the final draft of the PO including the Issues List by Monday, March 7, 2022. The Tribunal has since received the final draft of the Procedural Order and Issues List. The Final Procedural Order as approved by the Tribunal is appended to this Order as Schedule 1.

MEDIATION OR SETTLEMENT

13The Tribunal reviewed the opportunity for a Tribunal-led mediation if it will assist in this matter. The Parties informed the Tribunal that they continue in dialog and, at this time, do not see the utility of Tribunal-led mediation but will inform the Case Coordinator if they do decide to seek Tribunal services in this regard.

CONCLUSION

14The Parties do not anticipate the need for a third CMC. The Parties raised no further matters for the fair and expeditious resolution of these appeals.

15These Members are not seized but may be spoken to for case management purposes subject to the availability on the Tribunal’s calendar.

16The directions in this Decision are so ordered.

“Eric S. Crowe”

ERIC S. CROWE

MEMBER

“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.

SCHEDULE 1

CASE NO.: OLT-22-002051

(Formerly PL190539)

ONTARIO LAND TRIBUNAL

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

Applicant and Appellant:

Bradel Properties Ltd.

Subject:

Application to amend Zoning By-law No. Z.-1 Refusal of Application by the City of London

Existing Zoning:

h-3 DA1(1) D350 H95 DAl(3) D350 H95 T-71

Proposed Zoning:

h-3 DA1(1) D350 H95 DAl(3) D350 H95 T-71

Purpose:

Extension of Temporary Use By-law T-71 to maintain existing parking lot

Property Address/Description:

324 York Street

Municipality:

City of London

Municipality File No.:

TZ-9069

OLT Case No.:

OLT-22-002051

Legacy Case No.:

PL190539

OLT Lead Case No.:

OLT-22-002051

Legacy Lead Case No.:

PL190539

OLT Case Name:

Bradel Properties Ltd. v. London (City)

PROCEDURAL ORDER

The Tribunal orders that:

1. The Tribunal may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order.

Organization of the Hearing

2. The video hearing will begin on February 7th, 2023 at 10:00 a.m. virtually unless further notice is provided. All Parties and Participants shall attend the hearing.

3. The length of the hearing will be 4 days. The length of the hearing may be shortened as issues are resolved or settlement is achieved.

4. The Parties and Participants identified at the prehearing conference are:

Parties

Bradel Properties Inc.

The City of London

Participants

5. The Issues are to be set out in the Issues List attached as Appendix A.

There will be no changes to this list unless the Tribunal permits it. A Party who asks for changes may have costs awarded against it.

6. The order of evidence shall be:

Bradel Properties Inc.

The City of London

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 or by Order of the Tribunal.

Requirements Before the Hearing

7. All Parties shall provide a mailing address, email address, and telephone number to the Tribunal. Any such person who retains a representative (legal counsel or agent) subsequent to the prehearing conference must advise the other Parties and the Tribunal of the representative’s name, mailing address, email address and phone number.

8. A Party who intends to call witnesses, whether by summons or not, shall provide to the Parties and the Tribunal a list of the witnesses and the order in which they will be called. This list must be delivered by at least Friday, December 16, 2022. For expert witnesses, a Party is to include a copy of the curriculum vitae and the area of expertise in which the witness is proposed to be qualified.

9. Expert witnesses in the same field shall have a meeting before the hearing to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the Parties, Participants, and the Tribunal.

10. An expert witness shall prepare an expert witness statement, which shall include: an acknowledgement of expert’s duty form, the area(s) of expertise, any reports prepared by the expert, and any other reports or documents to be relied on at the hearing. Copies of this must be provided as in section [13]. 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.

11. All non-expert witnesses must provide to the Tribunal and the Parties a witness or Participant statement before the hearing, as in section [13] or the witness or Participant may not give oral evidence at the hearing.

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 and his or her area of expertise, as in section [13].

13. On Monday, January 9th, 2022, the Parties shall provide copies of their witness and expert witness statements to the other Parties and the Tribunal. The Participants shall provide copies of their Participant statements to the Parties, Participants, and the Tribunal. The Parties shall prepare a Joint Document Book to be filed with the Tribunal on the first day of the hearing. A paper copy of any document proposed to be entered into evidence or relied upon shall be provided at the hearing unless ordered otherwise by the presiding Member.

14. On Wednesday, January 18, 2023, the Parties shall provide copies of their visual evidence to all of the other Parties, Participants, and the Tribunal. If a model is proposed to be used the Tribunal must be notified before the hearing. All Parties and Participants must have a reasonable opportunity to view it before the hearing.

15. Parties may provide to all other Parties, Participants, and the Tribunal a written response to any written evidence on Wednesday, February 1, 2023. Only Parties may provide a written response to evidence.

16. The Parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Co-ordinator on Monday, January 30, 2023.

17. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing pursuant to the directions provided by the OLT Case Co-ordinator, on Friday, February 3, 2023.

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

(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. The parties shall prepare and file a preliminary hearing plan with the Tribunal on Monday, January 30, 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 off tome 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.

20. A Party who provides the written evidence of a witness must have that witness attend the hearing to give oral evidence, unless the Tribunal and the Parties are notified by at least Tuesday, January 31, 2023 that the written evidence is not part of their record.

21. Documents may be delivered in person, by email, courier, by facsimile or registered or certified mail, or otherwise as the Tribunal may direct. The delivery of documents by fax and email shall be governed by the Tribunal’s Rule 7 on this subject. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification.

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.

These Members are not seized.

So orders the Tribunal.

APPENDIX “A” – ISSUES LIST

1. Does the ZBA conform to policies 4.1, 4.1.5, 4.1.6, 4.1.10(iv), and 19.4.5 in the 1989 Official Plan?

2. To what extent is the Tribunal required to have regard for policies 799, 800_4, 800_5, and 803 in the London Plan, which are now in force but were not in force on the date the Application was submitted?

3. Does the ZBA conform to policies 1672_, 1673_, and 1673_A in the London Plan?

4. Does the ZBA represent good land use planning?

5. Is the ZBA consistent with sections 1.1.3.2.a, 1.6.7.4, and 1.7.1 of the Provincial Policy Statement, 2020?

6. Is the ZBA required to be consistent with the Downtown Parking Strategy? If the answer is yes, is the ZBA consistent with the Downtown Parking Strategy, specifically 1.1, 1.6.5, Figure 1 – Parking Utilization by Study Sub-Area, and Figure 5 – Potential Future Development Sites?

7. Is the ZBA consistent with Our Move Forward: London’s Downtown Plan, specifically Map 5 (page 21), Redevelopment Opportunities (page 21), and section 5.2 (page 63)?