Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 12, 2022 CASE NO(S).: OLT-22-003309

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

Appellant: Shanae Management Inc. Applicant: Shannondale Developments Subject: Zoning By-law Reference Number: BL 2022-024 Property Address: 134 152 Shanley Street Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-22-003309 OLT Lead Case No: OLT-22-003309 OLT Case Name: Shanae Management Inc v Kitchener (City)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Shannondale Developments Request for: Request for Dismissal Without a Hearing Heard: August 29, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Shanae Management Inc.	Conner Harris
City of Kitchener	Katherine Hughes
2701098 Ontario Inc. (o/a Shannondale Developments)	John Campion and Lauren Rakowski

DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL

INTRODUCTION

12701098 Ontario Inc. (“Applicant”) owns the property known municipally as 134-152 Shanley Street (“subject property”) and applied to the City of Kitchener (“City”) for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBLA”) to permit the development of an eight (8)-storey residential building containing 166 dwelling units.

2By way of background, the subject property was purchased by the Applicant in 2019. It had been previously occupied and used for industrial purposes and, as a result of that use, is now environmentally contaminated and in need of remediation. From 2007 onward, there have been a number of Orders from what is currently known as the Ministry of the Environment, Conservation and Parks (“MECP”) in respect of remediation of the environmental contamination both on and off the subject site. With respect to off-site remediation in particular, there are also ongoing proceedings before this Tribunal pursuant to the Environmental Protection Act involving the previous owners of the subject property (Continental Imperial Exploration Ltd. and Andrew Spylo).

3The OPA reads as follows:

The City of Kitchener Official Plan (2014) is hereby amended as follows:

a) Amend Map No. 3 - Land Use by:

i. Designating the Area of Amendment as 'Medium Rise Residential' instead of 'Low Rise Residential', as shown on the attached Schedule 'A';

b) Amend Map No. 5- Specific Policy Areas by:

i. Adding Specfic Policy Area No. 18 to the Area of Amendment, as shown on the attached Schedule 'B'; and

c) Amend Site Specific Policy 15.0.12.18 as follows:

18. 134 and 152 Shanley Street

Notwithstanding the Medium Rise Residential land use designation and policies of the lands located at 134 and 152 Shanley Street:

a) the maximum Floor Space Ratio will be 3.0;

b) the maximum building height will be 28 metres; and

c) A Holding provision pursuant to Section 17. E. 13 will apply to residential uses, day care uses and other sensitive uses. The Holding provision will not be removed until such time as a Record of Site Condition has been acknowledged by the Province and a release has been issued by the Region.

4The ZBLA would rezone the property as Medium Rise Residential Six Zone (RES-6) with Site Specific Provision (189) and Holding Provision (24). Site Specific Provision 189 sets out: a maximum building height of 27.75 metres (“m”); maximum floor space ratio of 3.0; onsite parking requirements; various minimum setbacks; permitted uses; and prohibits geothermal energy systems. Holding Provision 24 states, in part, that no redevelopment shall be permitted until the Region of Waterloo is in receipt of a letter from the MECP advising that a Record of Site Condition has been completed to the satisfaction of the MECP.

5The OPA and ZBLA applications were evaluated and recommended for approval by planning staff at the City’s Development Services Department (“Staff Report”, January 5, 2022) and on February 28, 2022, both applications were approved by the City. On April 20, 2022, the Regional Municipality of Waterloo (“Region”), being the upper-tier approval authority for OPAs, gave notice of its approval of the OPA and there were no appeals of that decision, which became final and binding on May 11, 2022.

6Shanae Management Inc. (“Shanae”/“Appellant”) is the owner of 18 Wilhelm Street, located approximately 50 m away from the subject property. Shanae did not appeal the OPA, but did appeal the ZBLA pursuant to s. 34(19) of the Planning Act¹ (“Act”) on April 4, 2022. The Notice of Appeal (“Notice”) raises concerns in relation to:

• increased height and density being incompatible with the character of the surrounding neighbourhood, which is comprised of predominantly low-rise and low density residential and commercial uses;

• increased density resulting in adverse impacts in relation to parking and traffic management on surrounding streets designed to support a low-density residential neighbourhood; and

• the need for remediation off-site of environmental contamination which has migrated from the subject site to surrounding properties.

MOTION TO DISMISS

7The Applicant seeks an Order of the Tribunal dismissing the appeal without a hearing pursuant to, inter alia, s. 34(25) of the Act and s. 19(1)(c) of the Ontario Land Tribunal Act² (“OLTA”). Although not raised by the Parties to this Motion, the Tribunal hereby grants Party status to the Applicant as owner of the lands subject to this Appeal.

8Section 34(25) of the Act empowers the Tribunal to dismiss an appeal of a zoning by-law amendment without a hearing if it is of the opinion that any one of the following grounds are met:

i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal, ii. The appeal is not made in good faith or is frivolous or vexatious, iii. The appeal is made only for the purpose of delay, or iv. The appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

9In addition to the foregoing, the Tribunal is empowered, by virtue of s. 19(1)(c) of the relatively recently enacted OLTA, to dismiss an appeal if it is “of the opinion that the proceeding has no reasonable prospect of success”.

10The following materials were before the Tribunal for consideration:

a) Exhibit 1 - Applicant’s Motion Record (including sworn Affidavit of Terrence Tyers)

b) Exhibit 1A - Applicant’s Factum and Book of Authorities;

c) Exhibit 2 – Shanae’s Motion Record (including sworn Affidavit of Daoud Yaqoob)

d) Exhibit 2A – Shanae’s Factum and Book of Authorities;

e) Exhibit 3 – Transcript (Cross-Examination of T. Tyers)

f) Exhibit 4 - Applicant’s Reply Factum

g) Exhibit 5 – Transcript (Cross-Examination of Daoud Yaqoob)

h) Exhibit 5A – Region of Waterloo Notice of Decision re: Official Plan Amendment

11The Tribunal notes that neither Party submitted any expert land use planning or environmental evidence in support of their respective positions on the Motion. Rather, they relied upon affidavit evidence from representatives of their clients (neither of whom possess any land use planning or environmental expertise) and transcripts of cross examinations on those affidavits.

12The Tribunal also notes that the City of Kitchener did not file responding materials and took no position on the Motion, but appeared at this hearing event to observe and, if necessary, assist the Tribunal.

Submissions of the Applicant

13The Applicant attacks the present appeal broadly on two fronts. Firstly, it is submitted that it should be dismissed on the grounds that it holds no reasonable prospect of success because Shanae’s failure to appeal the OPA is fatal to its appeal of the ZBLA. The OPA, now in full force and effect, permits a building height of 28 m and a Floor Space Ratio (“FSR”) of 3.0 to permit an eight storey multiple unit residential building containing 166 residential units. The Applicant’s position is that, as the impugned ZBLA reflects exactly what the now-amended Official Plan dictates, the Tribunal is not at liberty to overturn or revise the ZBLA, which must conform to the now-in-force OPA.

14Secondly, the Applicant argues that the appeal ought to be dismissed on the grounds that it is frivolous and vexatious, as Shanae’s true intent is not to raise genuinely-held land use planning concerns for the Tribunal’s consideration but rather, to misuse the appeal process and concomitant delay/costs as leverage to obtain remediation of its property at the Applicant’s expense. With reference to a series of MECP Orders and a Certificate of Property Use (“CPU”), which was also not appealed by Shanae, the Applicant asserts that the responsibility for off-site remediation rests with the previous owner of the subject property.

15In support of this second ground of attack, the Tribunal was urged to consider a series of email communications, as well as certain statements made by Daoud Yaqoob during cross-examination on his Affidavit. It was submitted that these amount to a threat to sustain the present appeal unless the Applicant agrees to pay the costs of off-site remediation, despite it having been absolved of the responsibility to do so by the MECP. Further, insofar the Notice of Appeal raises off-site environmental mediation, the Applicant submits this argument is “out of time and out of place” and ultra vires the Tribunal in the context of this proceeding.

16In addition, the Applicant notes that OPA and ZBLA were approved following extensive community consultation and were supported by numerous detailed studies/ reports (including the Staff Report) which address adherence to applicable legislative and policy documents as well as the very concerns raised by Shanae (height and density, parking, environmental issues). As Shanae has made no effort to obtain any expert reports or other expert evidence contrary to all of the foregoing, the Applicant submits Shanae has not “put its best foot forward” and the cumulative effect of its actions and lack of action amount to a “tapestry of inappropriate behaviour”, which belies a serious and genuine appeal.

Submissions of the Appellant

17Shanae’s position is that its appeal is not frivolous or vexatious and should be permitted to proceed to a full hearing, as the Notice discloses legitimate land use planning grounds and sets out, in a detailed manner with reference to specific policies in the Provincial Policy Statement (“”PPS”); A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”); the City of Kitchener Official Plan (“COP”); and Region of Waterloo Official Plan (“ROP”), the ways in which the impugned ZBLA is inconsistent with/does not conform with same.

18While it was submitted that Shanae had no standing to appeal the OPA and there was some debate amongst the Parties on this point, counsel for Shanae argued that even if his client could/should have appealed the OPA, failure to do so is not fatal to the within appeal. He submitted that the OP is not a “straight-jacket” and the ZBLA need not be a “copy and paste” thereof, positing that changes could be made to the ZBLA such as a decrease in density and/or height, as long as such a decrease could be seen to maintain the overall intent of the OP. As a further example, he offered that the inclusion of a traffic management plan or traffic calming measures within the ZBLA would not offend the OP.

19In response to the Applicant’s second ground of attack, it was submitted that the communications relied upon by the Applicant were entered into with an eye to resolving the appeal. Shanae asserts that what the Applicant presents is not a complete record of the communications between the parties (all of which occurred under the guise of settling the appeal) but rather, amounts to “cherry-picking” in a “one-sided manner” selective portions of such communications to paint Shanae in a poor light. As such, Shanae takes the position that these communications ought to be struck from the record or, at the very least, ignored by the Tribunal for the purposes of making its decision on this Motion, as they are presumptively protected by settlement privilege. In support of the foregoing, Shanae relies upon Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, wherein it is noted that negotiations undertaken with the intent of settling an action are inadmissible.

20Counsel for Shanae submitted that the lack of expert evidence/reports is a “red herring” because expert evidence will be scoped according to a Procedural Order and Issues List which have not yet been established, given that this Motion was brought in advance of a Case Management Conference (“CMC”).

21Brampton Areas 52, 53 Landowners Group Inc. v. Brampton (City), 2019, CarswellOnt 13823, notes that frivolous has been defined to mean characterized by lack of seriousness, and vexatious describes action instituted without grounds for the purpose of causing trouble or annoyance. It was submitted that: serious and proper grounds have been raised in the Notice; time and money have been expended on these proceedings; and there is an intention to secure appropriate evidence and reports to be relied on at a hearing, all of which are demonstrative of the seriousness with which Shanae approaches this appeal.

ANALYSIS AND FINDINGS

22The Tribunal is cognizant that rights of appeal should not be taken away “whimsically, readily and without serious consideration of the circumstances of each case”³. The Tribunal is also cognizant of the need to ensure that valuable resources not be expended unwisely in the pursuit of appeals which have no prospect of success. On the totality of the evidence and authorities before it, the submissions of the Parties’ counsel and a serious consideration of the circumstances of this case, the Tribunal finds the Motion should succeed for the following reasons.

23As previously mentioned, Shanae offered no expert evidence in support of the concerns raised in the Notice either before Council or in response to this Motion. While Shanae indicated that it intends to marshal its expert evidence at some point in the future and relies upon there having been no CMC, the Tribunal would note that although a CMC may be part of the life-cycle of a ZBLA appeal, many matters now proceed directly to a hearing on the merits⁴. The Tribunal agrees that Shanae has not “put its best foot forward” and has not fulfilled its responsibility as noted by the Court in Zellers Ltd. v. Royal Cobourg Centres Ltd., [2001] O.J. No 3792, O.N.S.C.,

The responsibility falls on the shoulders of the appellants to demonstrate through their conduct in pursuing the appeal, including their gathering of evidence to make their case, that the issues raised in their Notice of Appeal justifies a hearing.

24Although the Notice employs detailed planning language and references specific PPS, GP and OP policies, the Tribunal was not persuaded this Appeal has a reasonable prospect of success. The decision on the OPA is now final in light of the lack of any appeal having been filed on or before May 10, 2022. The content of the impugned ZBLA is virtually the same as the now-in-force OPA in terms of the fundamental planning considerations it addresses. The issues raised in the Notice, all of which were addressed in the favourable Staff Report, fall on all fours with the content of the OPA.

25In the absence of reliable land use planning evidence to the contrary, the Tribunal finds it difficult to imagine a scenario in which it could find in favour of the Shanae on the ZBLA appeal without stepping out of conformity with the OP. The Tribunal agrees with the submissions of counsel for the Applicant, that the impugned ZBLA is driven by, and must conform to, the now-amended and in-force OP. For example, the height and density set out in the OPA inform the finer details specified within the ZBLA, such as the parking ratio.

26While the Tribunal acknowledges that the OPA establishes a “maximum” height and density, such that a ZBLA could limit height and density below the “maximum”, it finds that the Applicant has completed all necessary studies through its applications with the City to establish that such maximum is appropriate for the site and area. Under the circumstances, the Tribunal finds that the appeal has “no reasonable prospect of success.”

27With respect to the environmental issues raised in the Notice, Shanae’s concerns are confined to matters of off-site contamination and the lack of a specific provision within the ZBLA to regulate or remediate same. The Applicant asserts that MECP Orders and the CPU make clear what is required in terms of both on and off-site environmental contamination and who is responsible for what in this regard and therefore, the issue raised by Shanae is not within the jurisdiction of the Tribunal in the context of this appeal. Counsel for Shanae submitted that such evidence is best left to be considered in the context of a hearing, as it goes directly to the merits of the environmental issues raised.

28By virtue of s. 19(1)(c) of the OLTA, the Tribunal is empowered to dismiss an appeal if is it of the opinion that there is no reasonable prospect of success and, as such, a cursory consideration of the merits in the view of the evidence before it is appropriate in the context of a Motion at which the Tribunal is requested to exercise such power. Again, in the absence of any evidence to the contrary, the Tribunal agrees with counsel for the Applicant and finds off-site environmental remediation is an issue involving different parties and different legislation. Moreover, the OPA and ZBLA Holding provision are site specific. Future development of surrounding properties and environmental remediation/protection of those properties are beyond the scope of this ZBLA which should and does affect only the subject site.

29In the opinion of the Tribunal, based on all of the foregoing, the present appeal cannot be considered to have a reasonable prospect of success and will be dismissed in accordance with the Applicant’s first ground of attack and s. 19(1)(c) of the OLTA. Given the above, it is unnecessary for the Tribunal to consider the remaining grounds and particularly whether the appeal is frivolous or vexatious.

OTHER MATTERS

30Finally, the Tribunal notes that in addition to the core relief sought by the Applicant the Notice of Motion requests Shanae be ordered to pay the costs of the Motion. The Tribunal will make no such order at this time.

31While the Applicant is entitled to submit a detailed written request for costs in accordance with Rule 23 of the Tribunal’s Rules of Practice and Procedure, all of the following ought to be borne in mind: costs are not automatically awarded to a successful party in Tribunal proceedings but rather, only awarded in rare circumstances. There is a relatively high threshold to be met and Rule 23.9 sets out a non-exhaustive list of improper conduct which might attract such relief, but also makes it clear that the Tribunal is not bound to order costs even in circumstances where it finds such conduct has occurred.

ORDER

32UPON APPEAL to this Tribunal by Shanae Management Inc. of a decision of the City of Kitchener to approve Zoning By-law Amendment No. 2022-024;

33AND UPON MOTION to this Tribunal by 2701098 Ontario Inc. for an Order dismissing the appeal under subsection 34(25) of the Planning Act and subsection 19(1)(c) of the Ontario Land Tribunal Act, and after the hearing of the Motion,

34THE TRIBUNAL ORDERS that the appeal by Shanae Management Inc. is dismissed.

“S. Braun”

S. BRAUN MEMBER

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Footnotes

1. 1R.S.O. 1990, c. P. 13, as amended.
2. 2S.O. 2021 c. 4. Sched. 6.
3. 3Toronto (City) v. East Beach Community Assn, 1996 CarswellOnt 5740, [1996] O.M.B.D. 1890, 42 O.M.B.R. 5095.
4. 4Whereas under its former governing legislation, the Local Planning Appeal Tribunal Act, S.O. 2017, c. 23, the Tribunal was required to convene a CMC for appeals of certain planning instruments, there is no similar requirement in the OLTA.