Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 21, 2022
CASE NO(S).: OLT-22-002882
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: National Capital Commission
Subject: Request to amend the Official Plan – Refusal of request
Description: OPA and ZBA to permit the development of a diplomatic precinct of up to five embassies and a federal park
Reference Number: D01-01-19-0011
Property Address: 1 and 19 Sir John A. MacDonald Parkway
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-22-002882
OLT Lead Case No.: OLT-22-002882
OLT Case Name: National Capital Commission v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Application to amend the Zoning By-law – Refusal of application
Reference Number: D02-02-19-0072
Property Address: 1 and 19 Sir John A. MacDonald Parkway
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-22-002883
OLT Lead Case No.: OLT-22-002882
Heard: September 1, 2022 by video hearing
APPEARANCES:
Parties Counsel
National Capital Commission (“NCC”) Ursula Melinz and Philip Osterbout
City of Ottawa (“City”) Timothy Marc
Mechanicsville Community Association Kristi Ross (“MCA”)
MEMORANDUM OF ORAL DECISION DELIVERED BY SHARY VINCENT ON SEPTEMBER 1, 2022 AND ORDER OF THE TRIBUNAL
1The National Capital Commission (“NCC”) has appealed the refusal by Council of applications to amend the Official Plan and Zoning By-law pursuant to s. 22(7) and s. 34(11) of the Planning Act, respectively. The requests sought the necessary permissions required in order for the NCC to create a diplomatic precinct comprised of five embassies and a federal park all on lands known municipally as 1 and 19 Sir John A MacDonald Parkway.
2The Affidavit of Service attesting to proper notice having been given, was filed as Exhibit 1.
3In response to the notice, a request for party status was filed on behalf of the Mechanicsville Community Association (“MCA”) together with four requests for Participant status. The request for Party status by the MCA was challenged by the NCC upon receipt, which prompted the MCA to bring a formal motion returnable at the case management conference.
4The Tribunal heard the oral submissions made by counsel for the MCA, the NCC and the City and reviewed the submissions filed, together with the accompanying authorities, and ultimately conferred Party status to the MCA. The Tribunal was satisfied that the direct interest of the MCA could be ably presented through their counsel and retained planning witness and would assist the Tribunal in ultimately weighing the evidence to be considered at a hearing on the merit of the appeals. While the NCC argued that the granting of Party status would result in duplication and related inefficiencies as the position of the MCA would be represented through the evidence of the City, the Tribunal was live to the prospect of daylight between the positions and, given that the appeal was pursuant to s. 34(11), the MCA would not be constricted in their case by the sheltering provisions of Rule 8.3 of the Tribunal’s Rules of Practice and Procedure. The MCA and the City, nevertheless agreed to coordinate their case strategies, as was evidenced by the cooperative efforts of all counsel in the preparation of a draft Procedural Order and Issues list in readiness for today’s proceeding and the joint ask for a five-day hearing.
5The requests for Participant status were granted to Deborah Bates, Daniel Daly, Thomas Moon, and Patricia Turk with the caution that all submissions to be submitted in accordance with the Procedural Order are to be limited to matters addressed in the Issues list, and to questions falling completely within the jurisdiction of the Tribunal.
6Accordingly, a five-day hearing commencing on Monday, May 1, 2023 at 10 a.m. is scheduled.
7Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/660145013
Access Code: 660-145-013
8Parties 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.
9Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
10Individuals 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.
11No further notice is required, and the Member is not seized but may be spoken to should issues arise in the execution of the directions in this Order.
ORDER
12The hearing of the merit of the appeals shall commence on Monday, May 1, 2023, and shall be governed by the Procedural Order, attached hereto and forming part of this Order.
“Sharyn Vincent”
sharyn vincent
VICE-CHAIR
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-22-002882 – Attachment
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: National Capital Commission
Subject: Request to amend the Official Plan – Refusal of request
Description: OPA and ZBA to permit the development of a diplomatic precinct of up to five embassies and a federal park
Reference Number: D01-01-19-0011
Property Address: 1 and 19 Sir John A. MacDonald Parkway
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-22-002882
OLT Lead Case No.: OLT-22-002882
OLT Case Name: National Capital Commission v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Application to amend the Zoning By-law – Refusal of application
Reference Number: D02-02-19-0072
Property Address: 1 and 19 Sir John A. MacDonald Parkway
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-22-002883
OLT Lead Case No.: OLT-22-002882
Procedural Order
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
- The video hearing will begin on Monday, May 1, 2023 at 10 a.m. with the following link:
GoTo Meeting: https://global.gotomeeting.com/join/660145013
Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373
Access Code: 660-145-013
The parties’ initial estimation for the length of the hearing is 5 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.
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 March 2, 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 April 8, 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 Coordinator on or before April 17, 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 March 17, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with paragraph 22 below.
On or before March 17, 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 March 27, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before April 17, 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 Coordinator a written response to any written evidence within ten (10) days (March 27, 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 Coordinator on or before April 17, 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 April 17, 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
list of parties AND PARTICIPANTS
A. PARTIES
PARTIES COUNSEL
National Capital Commission Soloway Wright LLP 427 Laurier Avenue West, Unit 700 Ottawa, ON K1R 7Y2 Ursula Melinz Email: melinzu@solowaywright.com Tel: (613) 782-3214 Philip Osterhout Email: posterhout@solowaywright.com Tel: (613) 782-3202
City of Ottawa Legal Services, Innovative Client Services Department 110 Laurier Avenue West Ottawa, ON K1P 1J1 Timothy Marc Email: timothy.marc@ottawa.ca Tel: (613) 580-2424 ext. 21444
Mechanicsville Community Association Kristi Ross 33 Bower Street Ottawa, ON K1S 0K2 Email: kristi.ross@gmail.com Tel: (613) 769-9384
B. PARTICIPANTS
PARTICIPANTS
Deborah Bates Email: debleated@gmail.com Tel: (613) 983-1778
Daniel Daley Email: d.daley@sympatico.ca Tel: (613) 729-3180
Thomas Moon Email: tmoon@uottawa.ca Tel: (613) 233-6922
Patricia Turk Email: tmoon1@bell.net Tel: (613) 233-6922
ATTACHMENT 2
ISSUES LIST
Note: The identification of an issue on this list does not mean that all Parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the Hearing.
Any Party may call or not call evidence on any issue; however, no Party is obligated to call evidence on any particular issue or every issue.
Defined Terms
Amendments – Collectively the OPAs and ZBA.
Official Plan Amendments – OPAs – an amendment to Ottawa’s Official Plan and the local Secondary Plan, the Scott Street Secondary Plan.
Zoning By-law Amendment – ZBA
Subject Lands – 1 & 19 Sir John A. Macdonald Parkway, 3.7 hectares owned by the NCC
DRAFT ISSUES
NCC
What is the NCC’s planned land use for the Subject Lands?
How should the NCC’s mandate and land use planning documents be reflected in Ottawa’s Official Plan and Zoning Bylaw in this instance?
PPS, OP & Zoning Bylaw
- Are the proposed Official Plan Amendments and Zoning By-law Amendment consistent with the Provincial Policy Statement 2020 specifically considering policies:
1.1.1 (a, b, e, i), 1.1.3.1, 1.1.3.2 (a, b, e, f), 1.1.3.6, 1.2.1,
1.3.1 (a, b, c, d, e), 1.5.1, 1.6.7.4 and 1.8.1 (g)?
- Do the Official Plan Amendments represent good land use planning considering the current in force Ottawa Official Plan specifically considering policies:
a. 2.2.2 Managing Intensification Within the Urban Area,
b. 2.5.1 Building Liveable Communities
c. 3.6.1 General Urban Area, and
d. 3.3.1 Major Open Space?
Does the Scott Street Secondary Plan amendment, specifically policy 3.0 (4)(a and e), represent good land use planning?
Does the proposed ZBA conform with the current Official Plan as amended by the OPAs?
Amendments
Do the proposed Amendments conform to and implement the land use policies of the NCC?
Do the proposed Amendments represent good land use planning?
How much weight and regard should the Tribunal give to the decision of council?
Are City Council’s grounds for refusal based on legitimate land use planning considerations?
Should the changes as recommended by Planning Committee, be included in the Amendments to be approved?
Should the changes as moved and adopted by Council, before rejection of the Applications, be included in the Amendments to be approved?
What Amendments should be approved considering the applications submitted?
Greenspace
- Does the proposed development provide for the appropriate amount of greenspace in consideration of:
i. The Planning Act
ii. The Ottawa Official Plan
iii. The Community Design Plan and the Scott Street Secondary Plan
iv. Is the consideration of the amount of development that is occurring in the area relevant and if so does this proposed development provide appropriate greenspace
v. The federal ownership of the lands.
- Does the development provide appropriate landscaping and buffers relative to the adjacent lands?
Connectivity
Does the development provide appropriate connectivity between adjacent blocks?
Does the development provide for appropriate sidewalk and transportation infrastructure in relation to the Subject Lands?
ATTACHMENT 3
ORDER OF EVIDENCE
- National Capital Commission
- Mechanicsville Community Association
- City of Ottawa