SO Development Inc. v. Oshawa (City), 2022 CanLII 25737

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 28, 2022

CASE NO(S).: OLT-22-002197 (Formally PL180364)

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

Applicant and Appellant: SO Development Inc.

Subject: Application to amend Zoning By-law No. 60-94 - Refusal or neglect of City of Oshawa to make a decision

Existing Zoning: UR (Urban Reserve)

Proposed Zoning: Appropriate Residential Zones

Purpose: To permit a proposed draft plan of subdivision and temporary sales office

Property Address/Description: South of Renaissance Drive, West of Park Road South

Municipality: City of Oshawa

Municipality File No.: Z-2016-15

OMB Case No.: PL180364

OMB File No.: PL180364

OMB Case Name: SO Development Inc. v. Oshawa (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: SO Development Inc.

Subject: Proposed Plan of Subdivision - Failure of City of Oshawa to make a decision

Purpose: To permit a proposed draft plan of subdivision and temporary sales office

Property Address/Description: South of Renaissance Drive, West of Park Road South

Municipality: City of Oshawa

Municipality File No.: S-O-2016-15

OMB Case No.: PL180364

OMB File No.: PL180365

Heard: March 9, 2022 via video hearing

APPEARANCES:

Parties Counsel

SO Developments Inc. Michael Melling

City of Oshawa Adam Kosnick

Region of Durham K. Ryan

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

1The Tribunal held a Case Management Conference (“CMC”) respecting the Phase 2 portion of the application submitted for a proposed amendment to the City’s Zoning By-law No. 60-94 (“ZBA”) and for a proposed Draft Plan of Subdivision. The appeal results from the failure of the City to make a decision on the ZBA and the Draft Plan of Subdivision within the legislated timeframes pursuant to ss. 34(11) and 51(34) of the Planning Act (“Act”).

2The purpose of this CMC was to update the Tribunal on the matter, review the working draft of the Procedural Order as well as set down an additional four days for the Phase 2 hearing beginning August 29, 2022.

3After discussions occurred on the specific dates for the exchange of documents and the timelines for the meeting of expert witnesses, the Tribunal received the revised Draft Procedural Order, on consent, on Friday March 18, 2022.

4Mr. Ryan advised the Tribunal that the Region will consider the extent to which they wish to participate in the upcoming hearing. The Order of Evidence within the Procedural Order has noted the Region of Durham’s participation. The Tribunal advised the Region in order to fully participate, they will need to abide by the Procedural Order governing the required procedures.

5Mr. Melling informed the Tribunal upon his retirement at the end of April, the Applicant will be represented by Ms. McDermid and Mr. Platt who will be provided carriage of the file.

6The Tribunal after considering the Draft Procedural Order approves the content.

7The Phase 2 hearing is scheduled to proceed by video on August 29, 2022 at 10 a.m. for 19 days.

8The Parties 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://global.gotomeeting.com/join/661568493 Access Code: 661-568-493

9Parties 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.

10Persons 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 661-568-493.

11Individuals 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.

ORDER

12THE TRIBUNAL ORDERS that the Procedural Order, attached hereto as Appendix “1” shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing scheduled to commence on Monday, August 29, 2022 at 10 a.m. by Videoconference with no sitting on September 5, 2022. The length of the hearing will be 19 days.

13This Member is seized and may be spoken to through the Case Coordinator if any issues arise.

“D. Chipman”

D. chipman

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.

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: SO Developments Inc.

Subject: Application to amend Zoning By-law No. 60-94 – Refusal or neglect of City of Oshawa to make a decision

Existing Zoning: UR (Urban Reserve)

Proposed Zoning: Appropriate Residential Zones

Purpose: To permit a proposed draft plan of subdivision and temporary sales office

Property Address/Description: South of Renaissance Drive, West of Park Road South

Municipality: City of Oshawa

Approval Authority File No.: Z-2016-15

OLT Case No.: OLT-22-002197 (Legacy Case No. PL180364)

OLT Case Name: SO Developments Inc. v. Oshawa (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: SO Developments Inc.

Subject: Proposed Plan of Subdivision – Failure of City of Oshawa to make a decision

Purpose: To permit a proposed draft plan of subdivision and temporary sales office

Property Address/Description: South of Renaissance Drive, West of Park Road South

Municipality: City of Oshawa

Municipal File No.: S-O-2016-15

OLT Case No.: OLT-22-002197 (Legacy Case No. PL180364)

PROCEDURAL ORDER

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

1. This Procedural Order governs Phase 2 of the Hearing.

2. The video hearing will begin on Monday August 29, 2022 at 10:00 A.M. at the following link:

GoToMeeting: https://global.gotomeeting.com/join/661568493

Access Code: 661-568-493

Audio-only telephone line: +1(647)497-9373 (Toll Free): 1-888-299-1889

Audio-only access code: 661-568-493

3. The length of the hearing will be 19 hearing days. No hearing will be held on September 5, 2022. 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.

4. The parties (see Attachment “4” for the meaning of these terms) identified at the Case Management Conference are listed in Attachment “1” to this Order.

5. The issues for the Phase 2 Hearing are set out in Attachment “2” to this Order. However, the Parties may add issues to the Issues List on or before Tuesday April 19, 2022 as a result of the disclosure contemplated in Section 9 below. After Tuesday April 19, 2022, there will be no further changes to the Issues List unless the Tribunal permits, and a party who asks for changes may have costs awarded against it, except if the Issues List is modified on consent of the parties, through mediation or pursuant to a settlement between any of the parties.

6. The Order of Evidence for the hearing is listed in Attachment “3” 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 should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. 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.

Requirements Before the Hearing

9. SO Developments Inc. shall advise the parties, participants and the OLT case coordinator on or before Friday April 1, 2022 if it intends to rely on the resubmission of the applications submitted to the City on November 9, 2021 (the “November Resubmission”), at the Phase 2 hearing. If SO Developments Inc. intends to present and rely on revisions to the November Resubmission at the Phase 2 Hearing, it shall provide such revised applications to the parties, the OLT case coordinator and those participants who have provided email addresses on or before Friday April 1, 2022. The revised applications shall be accompanied by supporting materials including, but not limited to, a draft plan of subdivision, draft zoning by-law amendment, functional servicing and stormwater management report and related grading and servicing plans, open space concept plan, and landscape plans and details.

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 Friday, May 6, 2022 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before Tuesday May 31, 2022 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case coordinator on or before Wednesday June 15, 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. Copies of this must be provided as in paragraph 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.

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 paragraph 13. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

14. On or before Thursday June 30, 2022 the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 22 below.

15. On or before Thursday June 30, 2022 a participant shall provide copies of their written participant statement to the other parties 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.

16. Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before Thursday July 28, 2022 and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before Friday August 19, 2022.

18. On or before Monday August 15, 2022 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. 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 coordinator, on or before the morning that cross examination is to occur.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. 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.

21. A party who provides a witness’ written evidence or expert witness statement 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 that same is not part of their record.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday August 22, 2022 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 of time 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.

23. All filings shall be electronic and in hard copy. 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 Rule 7.

24. 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.

This Member is seized. So Orders the Tribunal.

SUMMARY OF DATES

DATE EVENT

Friday April 1, 2022 SO Developments Inc. to advise of revisions to the applications it intends to rely on at the hearing, and to provide any revised applications and supporting documentation as per section 9.

Tuesday, April 19, 2022 Parties may add issues to the Issues List up until this date.

Friday May 6, 2022 Parties to exchange lists of witnesses (names, disciplines, and order to be called)

Tuesday May 31, 2022 Expert witnesses in the same field shall have a meeting

Wednesday June 15, 2022 Parties must prepare and file a Statement of Agreed Facts and Issues

Thursday June 30, 2022 Witness Statements, expert reports, Participant Statements, and the written evidence of witnesses to be exchanged

Thursday July 28, 2022 Reply Witness Statements and the reply to written evidence of witnesses (if any) to be exchanged

Monday August 15, 2022 Parties to exchange copies of visual evidence

Friday August 19, 2022 Joint document book to be filed

Monday August 22, 2022 Parties to file draft hearing plan with the OLT case coordinator

On or before the morning that cross examination is to occur. Password protected cross examination documents to be exchanged and filed with the OLT case coordinator

Monday August 29, 2022 Hearing commences

Attachment 1

LIST OF PARTIES

PARTIES

1. SO Developments Inc.

Michael Melling and Meaghan McDermid Davies Howe LLP 425 Adelaide Street West, 10th Floor Toronto, Ontario M5V 3C1 Email: michaelm@davieshowe.com meaghanm@davieshowe.com Tel: 416-977-7088 Fax: 416-977-8931

2. City of Oshawa

Adam Kosnick Legal Services City of Oshawa 50 Centre Street South Oshawa, Ontario L1H 3Z7 Email: akosnick@oshawa.ca Tel: 905-436-3311 ext. 3847 Fax: 905-436-5689

3. Region of Durham

Kevin Ryan Region of Durham, Legal Department 605 Rossland Road East P.O. Box 623 Whitby, Ontario L1N 6A3 Email: kevin.ryan@durham.ca Tel: 905-668-7711 Fax: 905-668-4752

Participants

Diana Shermet Williamson Email: Diana.shermet@gmail.com

Christine Bailie Email: christineplussteve@gmail.com

Robert Crosier Email: crosier@rogers.com

Paul Krowchuk 1532 Lakeside Street Oshawa, ON L1J 3Y3

Debra Brown Email: Pap8@sympatico.ca

Noella Byfield Email: Love_skittles@hotmail.com

Gail Mason Email: Gm76plus1@yahoo.ca

Paul Hughes Email: Paul@hugheshvac.ca

Barbara O’Brien Email:stopthewaterfrontsprawl@gmail.com; obrienbarb2@gmail.com

Brian Nicholson Email: Bnicholson2000@rogers.com

Dale Russell Email: yourcdneeds@yahoo.com

12 Szanne Mcnutt Email: Szanne.mcnutt@gmail.com

Attachment 2

DRAFT ISSUES LIST – phase 2 hearing

All issues identified below are raised by the City except those identified with an asterisk (*) which identifies issues particularly raised by SO Developments Inc. or where identified as an issue of the Region.

The inclusion of an issue on this list does not indicate that all parties have agreed that it is relevant to the determination of the appeals and does not preclude any party from challenging the relevance or appropriateness of any issue.

Each party shall be entitled to choose which issues it will call evidence in response to. Parties are not required to call evidence on all issues on this list.

A. Stormwater, Servicing and Road Issues

The Provincial Policy Statement, 2020 (“2020 PPS”)

1. Are the proposed Zoning By-law Amendment and Draft Plan of Subdivision consistent with the 2020 PPS, including but not limited to the policies contained in sections:

(a) 1.5.1 (Public Services, Recreation, Parks, Trails and Open Space;

B. Additional Land Use Planning Issues

The City of Oshawa Official Plan (October 2016) (the “OOP”)

1. Do the proposed Zoning By-law Amendment and Draft Plan of Subdivision conform to the OOP, including but not limited to policies contained in sections:

(a) 2.3 (Residential), and 2.3.4.3 in particular;

(b) 2.6 (Open Space and Recreation), and 2.6.1.3., 2.6.2 and 2.6.3 in particular;

(c) 3.4 (Walking and Cycling System);

(d) 5.5.2 (Lake Ontario Waterfront);

(e) 6.4 (Residential Intensification); and

(f) 9 (Implementation), and 9.3, 9.5, and 9.7 in particular?;

Planning Act Criteria

3. Do the proposed Zoning By-law Amendment and Draft Plan of Subdivision have appropriate regard to Section 2 of the Planning Act and specifically subsections 2(a), (h.1), (i), (l) and (r).

4. Does the proposed Draft Plan of Subdivision comply with Section 51(24) of the Planning Act by having appropriate regard to the criteria contained therein, and in particular subsection 51(24) (a), (c), (f), (g), (i) and (k)?

Parkland

5. Is the proposed park block in the proposed draft plan of subdivision sufficient and appropriate dedication of land for park and other recreation purposes in accordance with Section 51.1 of the Planning Act, the Oshawa Official Plan and the City’s Parkland Dedication By-law?

6. Is the proposed land for park and other recreational purposes in an appropriate location?

7. Is the proposed design and function of the proposed park block in the proposed draft plan of subdivision appropriate and based on community needs?

8. Does the proposed design of the proposed park provide suitable flexibility to program a park that meets the needs of the community and the City?

9. Does the proposed design of the park protect the new significant wildlife habitat for monarch butterflies?

10. Is a payment to the City in lieu of parkland dedication required for the proposed draft plan of subdivision?

11. Is the proposed design of the proposed park block in accordance with the City’s policies related to base park obligations for subdividers as set out in City Staff Report DS-00-81 and DS-00-185?

Open Space

12. Do the proposed Zoning By-law Amendment and Draft Plan of Subdivision provide for safe and accessible pedestrian connections between the proposed Street ‘A’ and the adjacent waterfront trail?

Natural Heritage

13. Do the proposed phasing plan and associated landscaping details ensure that appropriate monarch butterfly significant wildlife habitat compensation plantings will be established and in the appropriate time periods.

Zoning

14. Is the proposed Zoning By-law Amendment appropriate with respect to but not limited to minimum lot frontage, minimum lot area, minimum front yard depth, minimum rear yard depth, minimum exterior side yard depth, maximum lot coverage, maximum building height, and minimum landscaped open space in the front yard for the proposed residential lots, and with respect to a temporary sales office?

15. Is an “h” holding symbol appropriate to address items such as stormwater management matters, transportation matters, servicing matters, hydrogeological matters, natural heritage matters, the environmental condition of the site, parkland dedication, parkland development and a subdivision agreement?

16. If the answer to issue 15 is in the affirmative, what are the appropriate interim permitted uses of the “h” holding symbol, if any?

17. *If the answer to issue 15 is in the affirmative, what are the appropriate conditions for the lifting of the “h” holding symbol?

18. Is the proposed zoning for the Blocks 159 and 160 appropriate for protecting the new significant wildlife habitat for monarch butterflies?

Good Planning

19. Do the proposed Zoning By-law Amendment and Draft Plan of Subdivision represent good planning?

The Region and City Issues

20. In the event that the Tribunal approves the proposed Draft Plan of Subdivision, what are the appropriate conditions of approval?

Attachment 3

Order of Evidence

1. SO Developments Inc.

2. City of Oshawa

3. Region of Durham

4. Reply by SO Developments Inc.

Attachment 4

PURPOSE OF PROCEDURAL ORDER

Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek Party status in this proceeding, meet to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to Order following the conference. The Tribunal will hear submissions on the content of this procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Appeal Guide matching your appeal type and the Tribunal’s Rules from the Tribunal, which are available on the Tribunal’s website

meaning of terms used in the procedural order

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 Party, 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. Party do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorisation 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 (CMC), must ask the Tribunal to permit this.

A Participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A Participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the Hearing (only a Party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a Party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a Participant to attend a Hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A Participant may also be asked questions by the Party should the Tribunal direct a Participant to attend a Hearing to answer questions on the content of their written submission.

A Participant must be identified and be accorded Participant status by the Tribunal at the CMC. A Participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the Hearing, nor receive notice of mediation. A Participant cannot ask for costs, or review of a decision, as a Participant does not have the rights of a Party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters, and witness statements which a Party or Participant 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 or Participant intends to present as evidence at the Hearing.

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 he or she 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 his or her (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 wishes to address and the submission of the Participant on those issues; and a list of reports, if any, which the Participant wishes to refer to in their statement.

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 Party. (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 Party of opposite interest;

• re-examination by the Party presenting the witness; or

• another order of examination mutually agreed among the Party or directed by the Tribunal.