Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 2, 2022

CASE NO(S).: OLT-21-001732

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

Appellant: Hintonburg Community Association
Subject: Proposed Official Plan Amendment No. 264
Property Address: 26, 36 and 40 Armstrong Street, 961, 967, 969, 973 and 979 Wellington Street West
Municipality: City of Ottawa
OLT Case No.: OLT-21-001732
OLT Lead Case No.: OLT-21-001732
OLT Case Name: Hintonburg Community Association v. Ottawa (City)

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

Appellant: Hintonburg Community Association
Subject: By-law No. 2021-341
Property Address: 26, 36 and 40 Armstrong Street, 961, 967, 969, 973 and 979 Wellington Street West
Municipality: City of Ottawa
OLT Case No.: OLT-21-001733
OLT Lead Case No.: OLT-21-001732

Heard: August 22, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
Hintonburg Community Association (“Appellant”)	Kristi Ross
ML Wellington Realty Investments Inc. (“Applicant”)	Michael Polowin and Jacob Polowin
City of Ottawa (“City”)	Timothy Marc

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON AUGUST 22, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting an appeal by the Appellant following the City’s decision to allow Zoning By-law and Official Plan amendments to permit the Applicant’s proposed development, consisting of a new twelve-storey mixed-use building to contain commercial/retail uses at grade, and residential units above.

2The proposed building is proposed to have a total of 248 residential units and 148 parking stalls within three levels below grade, and 268 bicycle parking stalls.

3The project requires amendments to the Scott Street Secondary Plan (“SSSP”) and Wellington Street West Secondary Plan (“WSWSP”), involving:

• removal of 26, 36 and 40 Armstrong Street from the Scott Street Secondary Plan boundary and Low Rise Residential designation;
• extension of the boundary of the Wellington Street West Secondary Plan to include 26, 36 and 40 Armstrong Street within the Traditional Mainstreet designation; and
• an increased building height of 12 storeys.

4The proposed zoning amendment would create a uniform zoning designation for the subject lands to facilitate the development and create a new uniform Traditional Mainstreet Exception Zone and height schedule for the consolidated lands, noting that the current zoning does not permit the use of an apartment dwelling, high-rise or the proposed heights.

5The appeal grounds include:

• the proposed development is not consistent with the PPS;
• the OPA does not conform with the overall policy regime of the City’s OP nor the overall policy regime in the two Secondary Plans it amends;
• a high-rise development cannot be justified because the site is a “gateway”;
• non-conformity with the applicable High-Rise Guidelines; and
• the proposal generally does not constitute good planning.

Service of Notice of CMC

6The parties expressed no issue with service of the Notice of this CMC. The Tribunal is in receipt of an Affidavit of Service.

7The Tribunal notes that there was a typographical error on the Affidavit of Service respecting the date when the Affidavit was sworn. However, the Tribunal finds that this error has no prejudicial effect regarding actual notice, so no further notice is required. Counsel for the City promised to provide the Tribunal with a corrected copy of the Affidavit of Service for the Record.

Requests for Status

8No applications for status were filed in advance of the CMC and no one attended the CMC seeking either party or participant status.

MEDIATION AND SETTLEMENT

9The Tribunal explored the possibility of mediation and settlement with the parties. The parties both expressed openness to resolution discussions and/or Tribunal led mediation. The Tribunal left it in the hands of the parties to initiate either Tribunal led mediation or self-directed resolution efforts.

PROCEDURAL ORDER AND ISSUES LIST

10The Tribunal received and reviewed a draft Procedural Order from the parties. The Tribunal finds it acceptable and the proceedings shall be governed by it (see Schedule 1 attached hereto).

HEARING

11The Tribunal notes that the parties contemplated a 5-day hearing, but the Applicant requested a 4-day hearing if it means that the matter can be heard sooner. The Applicant further suggested that, if the matter is ultimately pressed for time to be completed in 4 days, then the parties could resort to written closing submissions to finish on time. The Tribunal canvassed the other parties with respect to this proposal and the parties all agreed that it is reasonable if it means that the matter can be scheduled sooner.

12The Applicant further indicated that it had taken approximately 8 months for the present CMC to be heard and it is prejudiced by the delay. The Tribunal responded by confirming that it is sensitive to such prejudice and assured that it would make its best efforts to have the matter heard as soon as possible.

13Upon checking with the Tribunal scheduler, the Tribunal found that the earliest a 5-day hearing can be heard is commencing January 31, 2023, but a 4-day hearing can be heard as early as commencing November 22, 2022, or, alternatively, commencing December 12, 2022. Unfortunately, the Appellant’s land use planning expert is unavailable for the November date, but all of the parties are available for the December date.

14Therefore, upon request of the parties, the Tribunal set a 4-day hearing commencing on Monday, December 12, 2022, at 10 a.m. by video hearing. No further Notice is required for the hearing.

15Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/442599157

Access code: 442-599-157

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: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is 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 VH 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

19The Tribunal Orders that:

1. The date and particulars of the hearing are set out above;
2. The Procedural Order appended as Schedule 1 shall govern the proceedings;
3. The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS

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.

SCHEDULE 1

OLT-21-001732

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

Appellant: Hintonburg Community Association
Subject: Proposed Official Plan Amendment No. 264
Property Address: 26, 36 and 40 Armstrong Street, 961, 967, 969, 973 and 979 Wellington Street West
Municipality: City of Ottawa
OLT Case No.: OLT-21-001732
OLT Lead Case No.: OLT-21-001732
OLT Case Name: Hintonburg Community Association v. Ottawa (City)

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

Appellant: Hintonburg Community Association
Subject: By-law No. 2021-341
Property Address: 26, 36 and 40 Armstrong Street, 961, 967, 969, 973 and 979 Wellington Street West
Municipality: City of Ottawa
OLT Case No.: OLT-21-001733
OLT Lead Case No.: OLT-21-001732

1. 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

2. The video hearing will begin on December 12, 2022 at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is 4 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.

4. 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).

5. 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.

6. 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.

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 – 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.

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. 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 55 days prior to the hearing date (October 18, 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.

10. Expert witnesses in the same field shall have a meeting on or before 21 days before the hearing date (November 21, 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 co-ordinator on or before 14 days prior to the start of the hearing (November 28, 2022).

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. 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.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence 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.

13. On or before 38 days before the hearing date (November 4, 2022) 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.

14. On or before 38 days before the hearing date (November 4, 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.

15. On or before 14 days before the hearing date (November 28, 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.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fourteen (14) days (November 18, 2022) after the evidence is delivered 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 co-ordinator on or before 14 days prior to the hearing (November 28, 2022).

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 13 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

19. 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 (December 5, 2022) that the written evidence is not part of their record.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before 21 days prior to the hearing (November 21, 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.

21. All filings shall be submitted electronically. 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.

22. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

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 and Participants

Parties

1. Hintonburg Community Association
2. City of Ottawa
3. ML Wellington Realty Investments Inc.

Attachment 2

Issues

1. Are Official Plan Amendment No. 264 (the “OPA”), and Zoning By-law 2021-341 (the “Rezoning”) good land use planning?

2. Do the proposed OPA and the Rezoning conform to the City of Ottawa’s Official Plan (including any Secondary Plan shown to be applicable)?

3. Will the OPA and the Rezoning result in undue adverse impacts on adjacent existing development and / or the community?

4. Does the project contemplated in the OPA and the Rezoning have due regard to the Urban Design Guidelines for High-rise Buildings?

5. Is the OPA consistent with the PPS?

6. Is the Rezoning consistent with the PPS?

7. Is a high-rise building an appropriate built form for the architectural context of the Site or its planned function?

Attachment 3

Order of Evidence

1. Non-opinion overview by ML Wellington Realty Investments Inc.

2. Hintonburg Community Association

3. ML Wellington Realty Investments Inc.

4. City of Ottawa

5. Reply-Hintonburg Community Association