ISSUE DATE: August 23, 2022
CASE NO.: OLT-21-001766
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, C. P. 13, as amended
Appellant: Cadillac Fairview Corporation
Appellant: CP REIT Ontario Properties & BMO Assurance Company
Subject: Proposed Official Plan Amendment No. OPA 745 - Masonville Secondary Plan Area
Municipality: City of London
OLT Case No.: OLT-22-001766
OLT Lead Case No.: OLT-22-001766 OLT Case Name: Cadillac Fairview Corporation v. London (City)
S. BRAUN MEMBER Tuesday, the 23rd day of August, 2022
THE TRIBUNAL ORDERS that the Procedural Order, attached hereto, shall be in full force and effect.
"Euken Lui"
Euken Lui ACTING REGISTRAR 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.
PROCEDURAL ORDER
ONTARIO LAND TRIBUNAL
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Appellant: Cadillac Fairview Corporation Appellant: CP REIT Ontario Properties & BMO Assurance Company Subject: Proposed Official Plan Amendment No. OPA 745 - Masonville Secondary Plan Area Municipality: City of London OLT Case No.: OLT-21-001766 OLT Lead Case No.: OLT-21-001766 OLT Case Name: Cadillac Fairview Corporation v. London (City)
- 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
- The video hearing will begin on June 26th, 2023 at 10:00 a.m. and continue for four (4) days. The hearing will then resume for three (3) additional days, beginning July 4th, 2023, at
Link: https://meet.goto.com/979388733
Access Code: 979-388-733
Phone Nos.: Canada (Toll Free) 1-888-299-1889 or Canada +1 (647) 497-9373
The parties' initial estimation for the length of the hearing is seven (7) 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 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).
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.
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 the parties' consent, subject to the Tribunal's approval, or by Order of the Tribunal.
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.
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
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 April 24, 2023, 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.
Expert witnesses in the same field shall have a meeting on or before May 5, 2023 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 co-ordinator on or before May 12, 2023.
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 below. 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.
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 below. 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.
On or before May 26, 2023 the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before May 26, 2023, 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.
On or before Tuesday, May 23, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before May 26, 2023, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fourteen (14) days (on or before Friday, June 9, 2023) after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before June 16, 2023.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before June 19, 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 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.
All filings shall be submitted electronically 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 the Rule 7.
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 to Sample Procedural Order 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.
Attachment 1
Parties:
Appellant/Party Counsel Contact
The Cadillac Fairview Corporation Limited
Denise Baker Chantal deSereville
WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 Phone: 416-947-5090 dbaker@weirfoulds.com cdesereville@weirfoulds.com
CP REIT Ontario Properties Limited BMO Life Assurance Company
Pitman Patterson Katie Butler
Borden Ladner Gervais LLP 22 Adelaide Street West Suite 3400 Toronto, ON, M5H 4E Phone: 416.367.6353 KButler@blg.com PPatterson@blg.com
City of London
Aynsley Anderson
Solicitor City of London 300 Dufferin Ave London, ON Phone: 519.639.7408 Aanderso@london.ca
Attachment 2
Issues List
OLT 21-001766
Issues List of Cadillac Fairview
Is Schedule 2, in so far as it shows a Park on the lands owned by Cadillac Fairview appropriate, taking into consideration both existing and proposed uses for the site?
Is it appropriate that the only Park shown on Schedule 2 for the southeast quadrant of the plan area is on the lands owned by Cadillac Fairview, despite there being other private landowners within the southeast quadrant?
What is intended by policy 3.2.1(ii)? How is this policy intended to be implemented?
What are the terms of reference for the Conceptual Master Development Plan as referenced in policy 3.7?
If Urban Parks are to be smaller than traditional neighbourhood parks, why is the City requiring a 1.75ha park on the southeast quadrant of the plan area?
If the City intends for the parks to be equitably distributed throughout the plan area (policy 2.3), why is the City requiring a 1.75ha park on the southeast quadrant of the plan area, but only .5ha of park area within the north east and north west quadrants?
Upon what basis did the City determine the requirement for a 1.75ha park on the southeast quadrant of the plan area?
How does the City intend to acquire a 1.75ha Park on the southeast quadrant of the plan area?
Should there be policies that allow for parkland credit for the provision of POPS space?
OLT-21-001766
Issues List
CP REIT Ontario Properties Limited ("Choice") and
BMO Life Assurance Company ("BMOLA")
In respect of the policies of the Masonville Secondary Plan (the "Plan") appealed by Choice and BMOLA, being Policies 3.1.1, 3.1.2, 3.1.3.1, 3.8, 4.1, 4.2.1, 5.1, 5.2, 6.5, 7.9
and Schedules 2, 3 and 5 (the "Appealed Policies"),
Do the Appealed Policies represent good planning, either generally and/or site- specifically in relation to the Choice and BMOLA lands at 1740 Richmond Street?
Do the Appealed Policies have appropriate regard for matters of provincial interest as set out in Section 2 of the Planning Act?
Are the Appealed Policies consistent with the Provincial Policy Statement, 2020 ("PPS"), including without limitation the following provisions?
a. Part IV and Policies 1.1.1a), 1.1.1b), 1.1.1e), 1.6.1, 1.6.3a), 1.6.3b), 1.7.1
c), including without limitation the requirements for efficient, cost-effective and optimized land use and the good management of land and infrastructure;
b. Policies 1.1.1a), 1.1.1b), 1.1.3.7b), 1.3.1a), 1.3.1b), 1.3.2.1, 1.6.1, 1.7.1b),
including without limitation the requirements that residential uses be encouraged, that a range and mix of residential and employment uses (including commercial uses) be appropriately accommodated, and that infrastructure and land use planning be based on and responsive to current and projected market needs;
c. Policies 1.1.10, 1.2.6.1, 1.2.6.2, 1.3.1a), 1.3.1b), 1.7.1a), 1.7.1b), including
without limitation the requirements that financial well-being and long-term economic prosperity of the Province and municipalities in the long-term be sustained, that authorities promote economic competitiveness, that authorities preserve land for current and future employment uses, given current and future needs, and protect them from adverse effects and impacts from proposed sensitive land uses, and that authorities plan and develop to avoid land use incompatibility;
d. Policies 1.1.1a), 1.1.1b), 1.1.1e), 1.1.3.7b), including without limitation the requirement to promote integrated land use planning, growth management and infrastructure planning, and that "planning authorities should establish and implement phasing policies to ensure the orderly progression of development within designated growth areas and the timely provision of the infrastructure and public service facilities required to meet current and projected needs";
- Do the Appealed Policies conform with and are they harmonious with the City of London's 1989 Official Plan*, including without limitation the following provisions?
a. Policies 2.1.3 i), vii) and viii), Policies 2.2.1 i), ii), vi) and vii), Policies 2.3.1 i), ii), v) and vii), Policies 2.4.1 ii), iii), vii), ix), xiv), xvii) and xviii), Policy 2.5.5, Policy 2.6.2, Policy 2.6.5, Policies 2.6.9 ii) (c), (e), and (h), Policy
2.6.9. vi), Policy 2.7.4, Policies 4.1.2 i) and iii), Policy 4.1.6, Policy 4.1.7 ii),
Policy 4.1.8, Policy 4.1.10, Policy 4.2.1, Policy 4.2.2, Policy 4.3.1, Policy
4.3.2, Policy 4.3.3, Policy 4.3.5, and Chapters 11 & 19 and the relevant policies thereunder.
*Plan was in force at the time of consideration by Council
- Do the Appealed Policies conform with and are they harmonious with the City of London's new official plan known as The London Plan**, including without limitation the following provisions?
a. Policies 52.5, 809, 810, 813.2**, 813.4**, 1570.4, 1570.11, 1615, 1616.
**Plan/Policy was under appeal at the time of consideration by Council, but subsequently approved by the Tribunal on May 25, 2022
NOTE: Identification of an issue on this list does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the matter. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.
DATED June 23, 2022
BORDEN LADNER GERVAIS LLP 22 Adelaide Street West Bay Adelaide Centre, East Tower Toronto, ON M5H 4E3
Pitman Patterson T: 416.367.6109 E: ppatterson@blg.com
Katie Butler T: 416.367.6353 E: kbutler@blg.com
Counsel for CP REIT Ontario Properties Limited and BMO Life Assurance Company
TO: THE CORPORATION OF THE CITY OF LONDON 300 Dufferin Avenue, Room 1014 London, ON N6A 4L9
Aynsley Anderson (LSO #62093V) T: 519.639.7408 F: 519.661.5530 E: aanderson@london.ca
Counsel for the Corporation of the City of London
AND TO: WEIRFOULDS LLP Suite 10, 1525 Cornwall Rd Oakville, ON L6J 0B2
Denise Baker
T: 416.947.5090
Counsel for Cadillac Fairview Corporation Limited
AND TO: ONTARIO LAND TRIBUNAL 655 Bay Street, Suite 1500 Toronto, ON M5G 1E5
John H. Norris
Case Coordinator – Planner T: 437.231.4888 E: John.Norris2@ontario.ca
Attachment 3
Order of Evidence:
City factual overview;
Cadillac Fairview case;
City case in response to Cadillac Fairview issues only;
Choice/ BMOLA case;
City case in response to Choice/ BMOLA only