1085 Clearview Limited Partnership v. Halton (Reg. Mun.), 2022 CanLII 32484

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

April 22, 2022

CASE NO(S).:

OLT-22-002219

(Formerly) PL210040

OLT-22-002483

(Formerly) PL200150

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

1085 Clearview Limited Partnership

Appellant:

1246235 Ontario Inc.

Appellant:

1602211 Ontario Ltd.

Appellant:

2084 Lakeshore Holdings Ltd. Et Al; and others

Description:

Proposed Official Plan Amendment for Burlington New Official Plan

Municipality:

City of Burlington

OLT Case No.:

OLT-22-002219

Legacy Case No.:

PL210040

OLT Lead Case No.:

OLT-22-002219

Legacy Lead Case No.:

PL210040

OLT Case Name:

1085 Clearview Limited Partnership v. Halton (Reg. Mun.)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Sofina Foods Inc.

Appellant:

Wal-Mart Canada Corp.

Appellant:

Reserve Properties Ltd.

Appellant:

Vrancorp Group; and others

Description:

Proposed Official Plan Amendment No. 119

Municipality:

City of Burlington

OLT Case No.:

OLT-22-002483

Legacy Case No.:

PL200150

OLT Lead Case No.:

OLT-22-002483

Legacy Lead Case No.:

PL200150

OLT Case Name:

Sofina Foods Inc. v. Burlington (City)

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

Appellant:

Wal-Mart Canada Corp.

Appellant:

Burlington Healthcare Centre Inc.

Appellant:

Better Life Development

Appellant:

Emshih Developments Inc.; and others

Description:

By-law No. 2020.418

Municipality:

City of Burlington

OLT Case No.:

OLT-22-002484

Legacy Case No.

PL200151

OLT Lead Case No.:

OLT-22-002483

Legacy Lead Case No.

PL200150

Heard:

February 24, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Regional Municipality of Halton

K. Yerxa

City of Burlington

A. Biggart

B. Hurley

Appellants and Added Parties listed

in Schedule 1

DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This further Case Management Conference (“CMC”) was convened for two related files being heard together for case management purposes, and now contained within the Tribunal’s new consolidated Cases Nos. OLT-22-002219 and OLT-22-002483:

• OLT-22-002483, being Official Plan Amendment 119 (“OPA”) and Zoning By-law Amendment No. 2020-418 (“ZBA”) passed by the City of Burlington (“City”) on January 30, 2020; and

• OLT-22-002219, being a new Official Plan (“OP”) adopted by the City on April 26, 2018 and modified and approved by the Regional Municipality of Halton (“Region”) on November 30, 2020.

2The OPA and ZBA raise matters of an urban growth centre and major transit station area arising from a planning study during Interim Control By-law No. 2019-10 (“ICBL”). Based on previous Decisions of the Tribunal, the ICBL remains in effect only within the area to which the ZBA applies.

3Some of the appeals to the new OP relate to matters raised in the appeals to the OPA and ZBA. Appeals to the new OP also address many general and site-specific matters not associated with the OPA and ZBA.

PARTIES

4The Tribunal, with consent of the Parties, granted Added Party status related to the new OP to two existing Parties to the OPA/ZBA: Metrolinx; and Douglas Roy Leggat / 850 Brant Street Properties Inc.

5The Tribunal deferred a decision on the request for Added Party status to the new OP from Sofina Foods Inc. (“Sofina”) at the request of other Parties for time to review Sofina’s issues sought for sheltering under. The Parties will discuss matters further and Sofina may raise the Added Party request, as appropriate, at the next CMC.

POTENTIAL CONSOLIDATED HEARING

6To date, these matters have been heard together for case management purposes only. The City advised that it intends to file a Motion, likely with consent of all Parties, requesting an Order that these matters be consolidated for hearing, such that the anticipated phased hearing plan can address all matters under both the new OP and OPA/ZBA. A consolidated hearing would remove the need for Added Party status requests, and Decisions on the merits of appeals would determine the final designations and policies.

7Such Motion may be heard in writing or by video conference at the request of the Parties.

MASTER PROCEDURAL ORDER

8The City, in consultation with all Parties, presented a Master Procedural Order (“MPO”) for the new OP appeals, setting out a general phasing of hearings by subject matter, and instructions for the creation of a detailed Procedural Order (“PO”) prior to each phase of hearing. The MPO contains an extensive listing of all Appellants’ issues, which will be refined and scoped as appropriate for each phase of hearing.

9Following the CMC, the City made minor corrections and updates to the MPO as requested by certain Parties, now attached as Schedule 2.

10The Tribunal approves the MPO as contained in Schedule 2 and recognizes that it represents a plan for a series of phased hearings by topic, which may require modification or adjustment by a Tribunal Order as these matters proceed. The Parties will present changes to the MPO as necessary in the event these matters are consolidated as noted above.

VALID APPEALS

11The City advised that it is in discussions with certain Appellants related to the validity of certain appeals related to such matters as prior participation in the planning process or whether certain policies are protected from appeal by the Planning Act. The Parties may raise these matters with the Tribunal as may be necessary.

12The City also advised that it may file a Motion in due course to confirm by a Tribunal Order which parts of the new OP are not under appeal and thus in full force and effect.

PHASE 1A HEARING

13The City presented a draft PO for the first hearing, being Phase 1A – Agriculture, which was being finalized with the Parties, and requested that the hearing be scheduled. Following this CMC, the City filed the final draft PO with consent of the Parties.

14The Tribunal approves the draft Phase 1A PO, attached as Schedule 3, for a 10-day hearing to be held on Monday, April 3 to Wednesday, April 19, 2023 commencing at 10 a.m., with no sitting on April 7, 10 and 17, 2023. The City is directed to complete the Phase 1A PO, based on this hearing schedule, and request the Tribunal’s final approval of the Phase 1A PO at the next CMC. No further notice will be given.

GoTo Meeting: https://meet.goto.com/638422541

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

Access Code: 638-422-541

15Parties 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.

16Parties 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.

17Persons 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 with the Access Code as indicated above.

18Individuals 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 video hearing 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.

SITE PLAN APPEAL – OLT-21-001331

19An Appellant to the new OP and OPA/ZBA known as Fairview LP (consisting of Brookfield Properties, InteRent REIT, and CLV Group Inc.) has a related appeal for its site plan application and seeks to have these matters heard together for settlement. The City and Fairview LP advised that if City Council endorses the settlement, they will be prepared to have this matter heard at the next CMC scheduled below.

20The Tribunal’s Case Coordinator for the site plan appeal will circulate Notice of these matters being heard together at the next CMC.

21If it wishes to proceed, Fairview LP is directed to circulate its Motion for settlement and accompanying planning evidence to all Parties to the OP, OPA/ZBA and site plan appeal in compliance with Rule 10 of the Tribunal’s Rules of Practice and Procedure.

NEXT CMC

22The next CMC is scheduled for 10 a.m. on Friday, May 6, 2022 as set out below. No further notice will be given.

GoTo Meeting: https://meet.goto.com/709076365

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

Access Code: 709-076-365

23The attendance instructions of paragraphs [15] through [18] above also apply here.

ORDER

24The Tribunal’s rulings and directions as set out in this Decision are so ordered.

25This Member is not seized but is available through the Case Coordinator for case management purposes.

“S. Tousaw”

S. tousaw

MEMBER

Ontario Land Tribunal

Website: www.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.

OLT-22-002219/OLT-22-002483 – Schedule 1

PL210040 Appellant Name(s)

Number

Does the Appellant have an appeal under File PL200150 OPA 119 & ZBA?

Counsel/ Representative

Ontario Stone, Sand & Gravel Association (OSSGA)

1

David White and Marc Kemerer

United Burlington Retail Portfolio Inc.

2

Aaron Platt/ Samantha Lampert

Crystal Homes

3

Michael Melling/ Alex Lusty

Landform Development Group and 2413350 Ontario Inc.

4

Yes

Denise Baker

1085 Clearview Limited Partnership (1085 Clearview GP Inc.)

5

Denise Baker

West End Home Builders Association

6

Yes

Denise Baker

440 Elizabeth Street Holdings Ltd

7

Yes

Denise Baker

2084 Lakeshore Holdings Ltd. and 2084 Lakeshore (2048) LP Ltd

8

Yes

Denise Baker

Emshih Developments Inc. (800 Burloak Drive)

9

Nancy Smith/ Jennifer Meader

Emshih Developments Inc. (895-901 Brant and 2250 Fairview Street)

10

Yes

Nancy Smith/ Jennifer Meader

Emshih Developments Inc. (372-380 and 433-439 Brant Street)

11

Yes

Nancy Smith/ Jennifer Meader

Carriage Gate Homes Inc., Lakeshore (Burlington) Inc. and Old Lakeshore (Burlington) Inc.

12

Yes

Scott Snider

1820473 Ontario Inc. and Molinaro Group of Companies

13

Scott Snider

Victoria-Brant Ltd., 2022 Victoria Avenue Inc., 2018 Victoria Avenue Inc., and 1664450 Ontario Inc.

14

Scott Snider

Renimmob Properties Ltd.

15

Yes

Scott Snider

Penta Properties Inc., Paletta International Corporation and P&L Livestock Ltd.

16

Scott Snider

Brookfield Properties, InteRent REIT and CLV Group Inc. (Fairview Limited Partnership)

17

Yes

Scott Snider/ Shelley Kaufman

Withdrew appeal

18

New Horizon Development Group

19

Patrick Harrington/ Leo Longo

Brad Wilson

20

Self-represented

Wal-Mart Canada Corp.

21

Yes

Roslyn Houser

Millcroft Greens Corporation

22

Patrick Harrington/ Leo Longo

RK (Burlington Mall) Inc.

23

Joel D. Farber

Withdrew Appeal

24

Pine Street Burlington Corp.

25

Yes

Denise Baker

Adi Developments (Masonry) Inc.

26

Yes

Denise Baker

Withdrew Appeal

27

Withdrew Appeal

28

RioCan Holdings Inc.

29

Joel D. Farber

335 Plains Holdings Inc. and 355 Plains Holdings Inc.

30

Denise Baker

Camarro Developments Inc. (789-795 Brant Street)

31

Denise Baker

Camarro Developments Inc. (519-527 Brant Street)

32

Denise Baker

Camarro Developments Inc. (1062 and 1074 Cooke Blvd)

33

Denise Baker

Infinity Developments Group Inc.

34

Denise Baker

Spruce Partners Inc. and Amico Properties Inc.

35

Yes

Denise Baker

5135 Fairview Holdings Inc.

36

Denise Baker

S & G Consulting Inc., Branthaven 735 Oval Inc., and Branthaven Development Corp.

37

Yes

Denise Baker

1602211 Ontario Ltd.

38

Denise Baker

William Love

39

Self-Represented

Nelson Aggregate Co.

40

David White and Marc Kemerer

Mac’s Convenience Stores Inc.

41

Max Laskin/ Matthew Lakatos-Hayward

Core FSC Lakeshore GP Incorporated

42

Yes

David Bronskill/

Matthew Lakatos-Hayward

Vrancorp Group

43

Yes

David Bronskill/

Matthew Lakatos-Hayward

Reserve Properties Ltd.

44

Yes

David Bronskill/

Matthew Lakatos-Hayward

2584979 Ontario Inc.

45

David Bronskill/ Matthew Lakatos-Hayward

Burlington Healthcare Centre Inc.

46

Yes

Andrew Jeanrie

Emshih Development Inc. (901 Guelph Line)

47

Nancy Smith

Mattamy James Street Limited

Partnership

48

Withdrawn

Scott Snider

Added Parties

Fairview GO Ltd.

Jennifer Meader/ Scott Snider

Conserving Our Rural Ecosystems of Burlington Inc. (“CORE”)

Denisa Mertiri / David R. Donnelly

Millcroft Greenspace Alliance

Daintry Klein (Rep.)

Metrolinx

Adriana Pilkington

Participants

Tom Muir

Self-Represented

Anne and David Marsden

Self-Represented

Millcroft Coalition Against Development

Kirk Robinson (Rep.)

Additional Appellants for PL200150 Only

Sofina Foods

1

Calvin Lantz

Welwyn Interests Inc.

8

Denise Baker

Adi Developments (Masonry) Inc.

13

Denise Baker

850 Brant Street Properties Inc.

22

Scott Snider

OLT-22-002219/OLT-22-002483 – Schedule 2

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

1085 Clearview Limited Partnership

Appellant:

1246235 Ontario Inc.

Appellant:

1602211 Ontario Ltd.

Appellant:

2084 Lakeshore Holdings Ltd. Et Al; and others

Description:

Proposed Official Plan Amendment for Burlington New Official Plan

Municipality:

City of Burlington

OLT Case No.:

OLT-22-002219

Legacy Case No.:

PL210040

OLT Lead Case No.:

OLT-22-002219

Legacy Lead Case No.:

PL210040

OLT Case Name:

1085 Clearview Limited Partnership v. Halton (Reg. Mun.)

Procedural Order

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

Organization of the Hearing

2. The Parties and Participants are listed in Attachment 1 to this Order.

3. The hearing of the appeals will be phased. The phases to the hearing are set out in Attachment 2. The phases shall be heard in the order listed in Attachment 1 unless otherwise ordered by the Tribunal.

4. There shall be a Procedural Order issued for each phase.

5. The issues for all of the phases are listed in Attachment 3 (the “Master Issues List”). There will be no changes to the Master Issues List except by the consent of all parties or by an order of the Tribunal.

6. Issues from the Master Issues List shall be allocated among each phase of the hearing and attached to the respective Procedural Order, as approved by the Tribunal.

7. Each Procedural Order issued for each phase shall contain the following paragraphs with the appropriate information completed depending upon the hearing date assigned to each phase:

a. The hearing will begin on (year) at a.m./p.m. at in the Municipality of [Optional: An evening session will be held on ]

b. The length of the hearing will be about days. The length of the hearing may be shortened as issues are reordered as settlement is achieved.

c. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

d. The issues are set out in the Issues List attached as Attachment 2. 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.

e. The order of evidence shall be as set out 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 consent or by Order of the Tribunal.

f. 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 – ideally before the case management conference. 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.

Requirements Before the Hearing

8. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the municipal clerk a list of the witnesses and the order in which they will be called. This list must be delivered on or before (insert date). 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.

9. Expert witnesses in the same field shall have a meeting on or before 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 and the municipal Clerk.

10. 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 section [12]. 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. 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 [12]. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section [12].

12. On or before [a minimum of 30 calendar days before the hearing date], the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the municipal Clerk of .

13. On or before , a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

14. [Optional] On or before , the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing. Parties may provide to all other parties and file with the Clerk a written response to any written evidence within seven (7) days after the evidence is received.

15. 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).

16. A party who provides written evidence of a witness 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.

17. The parties shall prepare and file a hearing plan with the Tribunal on or before 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.

18. Documents may be delivered by personal delivery, registered or certified mail or email, or otherwise as the Tribunal may direct. The delivery of documents by email shall be governed by the Tribunal’s Rules (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.

19. 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 not seized.

So orders the Tribunal.

ATTACHMENT 1

list of parties and participants

Parties

Counsel/Representative

City of Burlington

R. Andrew Biggart / Christina A. Kapelos Ritchie Ketcheson Hart & Biggart LLP 1 Eva Road, Suite 206 Toronto, ON M9C 4Z5 Blake Hurley City of Burlington – Legal 426 Brant Street, P.O. Box 5013 Burlington, ON L7R 3Z6

Regional Municipality of Halton

Kelly Yerxa Halton Region – Legal Services 1151 Bronte Road Oakville, Ontario L6M 3L1

Ontario Stone, Sand & Gravel Association (OSSGA)

David White / Marc Kemerer Devry Smith Frank LLP 95 Barber Greene Road, Suite 100 Toronto, ON M3C 3E9

United Burlington Retail Portfolio Inc.

Aaron Platt / Samantha Lampert Davies Howe LLP 425 Adelaide Street West, 10th Floor Toronto, ON M5V 3C1

Crystal Homes

Michael Melling / Alex Lusty Davies Howe LLP 425 Adelaide Street West, 10th Floor Toronto, ON M5V 3C1

Landform Development Group and 2413350 Ontario Inc.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

1085 Clearview Limited Partnership (1085 Clearview GP Inc.)

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

West End Home Builders Association

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

440 Elizabeth Street Holdings Ltd.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

2084 Lakeshore Holdings Ltd. and 2084 Lakeshore (2048) LP Ltd

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

Emshih Developments Inc. (800 Burloak Drive)

Nancy Smith / Jennifer Meader Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Emshih Developments Inc. (895-901 Brant and 2250 Fairview Street)

Nancy Smith / Jennifer Meader Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Emshih Developments Inc. (372-380 and 433-439 Brant Street)

Nancy Smith / Jennifer Meader Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Carriage Gate Homes Inc., Lakeshore (Burlington) Inc. and Old Lakeshore (Burlington) Inc.

Scott Snider Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

1820473 Ontario Inc. and Molinaro Group of Companies

Scott Snider Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Victoria-Brant Ltd., 2022 Victoria Avenue Inc., 2018 Victoria Avenue Inc., and 1664450 Ontario Inc.

Scott Snider Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Renimmob Properties Ltd.

Scott Snider Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Penta Properties Inc., Paletta International Corporation and P&L Livestock Ltd.

Scott Snider Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Brookfield Properties, InteRent REIT and CLV Group Inc. (Fairview Limited Partnership)

Scott Snider / Shelley Kaufman Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

New Horizon Development Group

Patrick Harrington / Leo Longo Aird Berlis LLP 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9

Brad Wilson

Self-represented

Wal-Mart Canada Corp.

Roslyn Houser / Matthew Lakatos-Hayward Goodmans LLP 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7

Millcroft Greens Corporation

Patrick Harrington / Leo Longo Aird Berlis LLP 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9

RK (Burlington Mall) Inc.

Joel D. Farber Fogler, Rubinoff LLP 77 King Street Wests, Suite 3000 Toronto, ON M5K 1G8

Pine Street Burlington Corp.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

Adi Developments (Masonry) Inc.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

RioCan Holdings Inc.

Joel D. Farber Fogler, Rubinoff LLP 77 King Street West Suite 3000 Toronto, ON M5K 1G8

335 Plains Holdings Inc. and 355 Plains Holdings Inc.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

Camarro Developments Inc. (789-795 Brant Street)

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

Camarro Developments Inc. (519-527 Brant Street)

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

Camarro Developments Inc. (1062 and 1074 Cooke Blvd)

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

Infinity Developments Group Inc.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

Spruce Partners Inc. and Amico Properties Inc.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

5135 Fairview Holdings Inc.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

S & G Consulting Inc., Branthaven 735 Oval Inc., and Branthaven Development Corp.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

1602211 Ontario Ltd.

Denise Baker WeirFoulds LLP 66 Wellington Street West, Suite 4100 Toronto, ON M5K 1B7

William Love

Self-Represented

Nelson Aggregate Co.

David White / Marc Kemerer Devry Smith Frank LLP 95 Barber Greene Road, Suite 100 Toronto, ON M3C 3E9

Mac’s Convenience Stores Inc.

Max Laskin / Matthew Lakatos-Hayward Goodmans LLP 333 Bay Street Suite 3400 Toronto, ON M5H 2S7

Core FSC Lakeshore GP Incorporated

David Bronskill / Matthew Lakatos-Hayward Goodmans LLP 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7

Vrancorp Group

David Bronskill / Matthew Lakatos-Hayward Goodmans LLP 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7

Reserve Properties Ltd.

David Bronskill / Matthew Lakatos-Hayward Goodmans LLP 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7

2584979 Ontario Inc.

David Bronskill / Matthew Lakatos-Hayward Goodmans LLP 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7

Burlington Healthcare Centre Inc.

Andrew Jeanrie Bennet Jones LLP 100 King Street West, Suite 3400 Toronto, ON M5X 1A4

Emshih Development Inc. (901 Guelph Line)

Nancy Smith Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Mattamy James Street Limited Partnership

Scott Snider Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Fairview GO Ltd.

Jennifer Meader / Scott Snider Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Conserving Our Rural Ecosystems of Burlington Inc. (“CORE”)

Denisa Mertiri / David R. Donnelly Donnelly Law 276 Carlaw Avenue, Unit 203 Toronto, ON M4M 3L1

Millcroft Greenspace Alliance

Daintry Klein (Rep.)

Metrolinx

Adrianna Pilkington / Signe Leisk Cassels Brock & Blackwell LLP 2100-40 King Street West Toronto, ON M5H 3C2

Douglas Roy Leggat & 850 Brant Street Properties Inc.

Shelley Kaufman Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T2

Participants

Representative

Tom Muir

Self-Represented

Anne and David Marsden

Self-Represented

Millcroft Coalition Against Development

Kirk Robinson (Rep.)

ATTACHMENT 2

Phase 1: Rural

Phase 1A: Agriculture

Phase 1B: Natural Heritage

Phase 1C: Aggregates

Phase 2: Implementation / Development Approvals Process

Phase 3: Growth Framework/Urban Structure/Land Use

Phase 4: Downtown Urban Centre & Urban Design

Phase 5: Major Transit Station Areas

Phase 6: Supporting Growth

Phase 6A: Parkland

Phase 6B: Public Service Facilities, Infrastructure & Utilities

Phase 7: Housing

Phase 8: Employment

Phase 9: Site-Specific

OLT-22-002219/OLT-22-002483 – Schedule 3

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

1085 Clearview Limited Partnership

Appellant:

1246235 Ontario Inc.

Appellant:

1602211 Ontario Ltd.

Appellant:

2084 Lakeshore Holdings Ltd. Et Al; and others

Description:

Proposed Official Plan Amendment for Burlington New Official Plan

Municipality:

City of Burlington

OLT Case No.:

OLT-22-002219

Legacy Case No.:

PL210040

OLT Lead Case No.:

OLT-22-002219

Legacy Lead Case No.:

PL210040

OLT Case Name:

1085 Clearview Limited Partnership v. Halton (Reg. Mun.)

Procedural Order

(Phase 1A – Agriculture)

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

Organization of the Hearing

2. The video hearing will begin on ___________________ at 10 a.m., at ________________________. The Parties will work together when preparing the hearing Work Plan to accommodate any identified scheduling constraints.

3. The length of the hearing will be ____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 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 it. A party who seeks changes to this list may have costs awarded against it.

6. The order of evidence is tentatively set out in Attachment 4 to this Order and shall be confirmed between the Parties and reflected in the hearing Work Plan. 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. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and 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/appeals-process/video-hearing/).

Requirements Before the Hearing

9. 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 _________________. For expert witnesses, a party is to identify the area of expertise in which the witness is proposed to be qualified and a copy of their curriculum vitae.

10. 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 ________________, if agreement is reached.

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 time 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 _______________, or the witness may not give oral evidence at the hearing and the participant’s statement may not be considered by the Tribunal. 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 _______________, the Parties shall provide copies of their witness statements and expert witness statements (in accordance with section 11 herein) to the other Parties and to the Tribunal.

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

16. On or before ___________________, 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.

17. 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.

18. 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.

19. On or before _______________, 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.

20. The Parties undertake to make best their efforts to avoid duplicative evidence to the extent possible.

21. The Parties shall prepare a Joint Document Book on or before _________________ and one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in an accessible electronic format in accordance with Section 23.

22. If a Party intends to seek approval of revised official plan policies at the hearing, the Party shall provide copies of the revised policy language to the other Parties with their witness statements as exchanged in accordance with Section 14.

23. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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 23 applies regardless if the hearing event is in-person or electronic.

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.

25. The Tribunal may conduct mediation on consent of all Parties, or on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

26. 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.

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

(60 days prior to hearing)

Exchange of witness lists (names, disciplines and order to be called)

(50 days prior to hearing)

Last date to challenge identification of expert witness

(50 days prior to hearing)

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

(20 days prior to hearing)

Exchange of Reply Statements (if any)

(14 days prior to hearing)

Exchange of visual evidence (if any), Joint Document Book (with 1 hard copy to Tribunal) and Agreed Statement of Facts filed with the Tribunal (if agreement)

(10 days prior to hearing)

Hearing Plan

Hearing commences

ATTACHMENT 2

list of parties and participants

Parties

Counsel/Representative

Appellant

Property

City of Burlington

Andrew Biggart / Christina Kapelos Ritchie Ketcheson Hart & Biggart LLP 1 Eva Road, Suite 206 Toronto, ON M9C 4Z5 Email: abiggart@ritchieketcheson.com Email: tkapelos@ritchieketcheson.com Blake Hurley City of Burlington – Legal 426 Brant Street, P.O. Box 5013 Burlington, ON L7R 3L1 Email: blake.hurley@burlington.ca

Regional Municipality of Halton

Kelly Yerxa Halton Region – Legal Services 1151 Bronte Road Oakville, ON L6M 3L1 Email: Kelly.Yerxa@halton.ca

Penta Properties Inc., Paletta International Corporation and P&L Livestock Ltd.

Scott Snider/Shelley Kaufman Turkstra Mazza 15 Bold Street Hamilton, ON L8P 1T3 Email: ssnider@tmalaw.ca Email: skaufman@tmalaw.ca

16

Various

Ontario Stone, Sand & Gravel Association (OSSGA) / Nelson Aggregate Co.

David White / Marc Kemerer Devry Smith Frank LLP 95 Barber Greene Road, Suite 100 Toronto, ON M3C 3E9 Email: david.white@devrylaw.ca Email: marc.kemerer@devrylaw.ca

1/40

N/A

ATTACHMENT 3

ISSUES LIST

Note 1: The identification of an issue on this Issues List is intended to provide notice to all parties that a party will lead evidence and/or argument on the matter. This identification does not serve as an acknowledgement of relevancy to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing. Any party may adopt/address any issue regardless of who raised the issue. An issue will not be removed from the Issues List unless all parties are in agreement.

Note 2: The starred (*) issues have both agricultural and natural heritage components. The Parties agree these issues will be dealt with in Phase 1A insofar as they relate to the Agricultural policies of the Burlington Official Plan.

Note 3: The starred (**) issues have both agricultural and aggregate components. The Parties agree these issues will be dealt with in Phase 1A insofar as they relate to the Agricultural policies of the Burlington Official Plan.

Penta Properties Inc., Paletta International Corporation and P&L Livestock Ltd. (“Penta”)

1. Are the following proposed City of Burlington Official plan policies in conformity with Halton Region Official Plan, 1995 (as amended), the Growth Plan and consistent with PPS 2020 policies:

• 4.2.1(e)

• 4.2.1(f)

• *4.2.1(g)

• *4.2.3(l)

• *4.2.5(e)

• *4.3.2(f)

• 5.5.1

• 9.1.1 a)

• 9.2.2 c)

• 9.2.3 a) (i)

• 9.3.2(c)

• 12.1.12(4.1)(d)(v)

2. How do the proposed policies protect and promote all forms of agriculture and normal farm practices?

3. How do the proposed implementation policies that limit surplus farm dwelling severances through prescriptive policies, achieve the fundamental purpose of the Provincial Policy Statement 2020’s lot creation policies?

4. How might adding an additional objective to policy 5.5.1 promote a proper balance between agricultural viability and natural heritage policies that impact farming?

5. *What rationale did the City utilize to claim that buffer lands and vegetation protection zones near Natural Heritage System form part of that System? How does this promote and protect agriculture?

6. *Does Section 4.3.2(f) provide sufficient direction or should it specifically consider whether tree removal was done legally or in accordance with normal farm practices?

7. Does the Burlington Official Plan 2020 represent good planning and is it in the public interest as it relates to agriculture and normal farm practices?

8. Do the proposed modifications have regard for matters of Provincial Interest identified in the Planning Act, in particular Part I, section 2?

Ontario Stone, Sand & Gravel Association (“OSSGA”) / Nelson Aggregate Co. (“Nelson”)

9. Should 5235 Cedar Springs Road be included within the “Agricultural Area” and “Agricultural Land Base” designations on Official Plan Schedules I, J and M?

10. **Do the policies of Chapter 4 of the Growth Plan apply within the Greenbelt Area, which includes the Greenbelt Plan Area and Niagara Escarpment Plan Area?

11. **Are/do the following sections of the Official Plan:

• 1.4.4 b)

• 2.1

• 2.2.1(c)

• 2.2.3

• 5.5

• 9.1

• 9.2

a) consistent with the Provincial Policy Statement 2020, including, but not limited to policies 1.2.6 and 2.3;

b) conform to the Growth Plan, including, but not limited to subsection 1.2.3 and Chapter 4 (if deemed applicable); and

c) conform to the Niagara Escarpment Plan, including but not limited to subsections 1.5 and 2.8?

12. Should the definition of ‘Prime Agricultural Area’ in Chapter 13 of the Official Plan be revised to be consistent with the PPS and other applicable Provincial Plans?

13. Should the ‘Greenbelt Area’ by a defined term in the Official Plan?

ATTACHMENT 4

ORDER OF EVIDENCE

1. City of Burlington

2. Penta

3. OSSGA/Nelson

4. City of Burlington (in reply, if any)

ATTACHMENT 5

Meaning of Terms used in the Procedural Order

A 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. An unincorporated group cannot be a party and 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 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 parties 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 a list of reports or materials 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 supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

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.