Bertone Montreal Road LP v. Ottawa (City), 2022 CanLII 95938

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

October 14, 2022

CASE NO(S).:

OLT-22-003966

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant:

Bertone Montreal Road LP

Subject:

Application to amend the Zoning By-law – neglect to make a decision

Description:

Zoning amendment to develop a 26-storey mixed use building

Reference Number:

D02-02-21-0038

Property Address:

1649 Montreal Road and 741 Blair Road

Municipality/UT:

Ottawa/Ottawa

OLT Case No:

OLT-22-003966

OLT Lead Case No:

OLT-22-003966

OLT Case Name:

Bertone Montreal Road LP v. Ottawa (City)

Heard:

October 6, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

Bertone Montreal Road LP

Michael Polowin and Kelly Duquette

City of Ottawa

Timothy Marc

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON OCTOBER 6, 2022 AND ORDER OF THE TRIBUNAL

1The Tribunal convened the first Case Management Conference (“CMC”) for the above noted matter. Bertone Montreal Road LP (“Appellant”) filed appeals against the City of Ottawa (“City”) for failing to make a decision for a Zoning By-law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act. The property is known municipally as 1649 Montreal Road and 741 Blair Road in the City (“subject property”).

2The effect of the ZBA is to permit the development of a high density development comprised of a 26 storey mixed use building with a four storey podium. Commercial/retail uses are proposed on the first floor with the remaining building being used for residential uses.

3The Affidavit of Service sworn September 9, 2022, is marked as Exhibit 1. No further notice is required.

4The Tribunal has no additional requests for party status.

5The Tribunal has two requests for participant status being Judy de Lue and the Rothwell Heights Property Owners Association (“RHPOA”) represented at this proceeding by Jane Brammer and Emma Blanchard. The Tribunal grants both participant status requests with consent of the Appellant and the City.

6Mr. Polowin, counsel for the Appellant, provided background information with respect to the application for the benefit of the Tribunal and all present. Parties expect that evidence will be required with respect to land use planning, urban design, transportation, and parking. Mr. Polowin advised that the City and the Appellant have come to an agreement with respect to the issues in the Procedural Order (“PO”) Issues List. A draft PO is presented to the Tribunal for review and approval at this CMC. City and the Appellant requested the Tribunal schedule a five day merits hearing.

7Mr. Marc, counsel for the City, is in general agreement with Mr. Polowin’s description of the matter before the Tribunal and is prepared to take a leadership role in finalizing the PO.

8Mr. Polowin advised the Tribunal that the only item of dispute with respect to the draft PO is whether the RHPOA should be allowed to submit an addendum to its participant statement 45 days prior to the hearing as prescribed in the draft PO. He noted that the RHPOA has already provided a fulsome participant statement in keeping with Tribunal procedures and it is not appropriate that they are granted a ‘second kick the can’.

9It is Mr. Polowin’s submission that the detailed material provided to the Tribunal is in sufficient detail to outline the RHPOA issues with respect to the Appellants proposal. It is of ‘grave concern’ that the RHPOM will possibly receive land use planning and legal advice which would find its way into a second statement. A participant may only give a statement in writing, cannot give evidence and are not generally available to be qualified or be subject to cross examination during the course of a hearing. If the RHPOA wants a planner to comment, it should have asked for party status, in which case the planner’s evidence is subject to cross examination.

10Ms. Blanchard representing the RHPOA, submitted that the Tribunal has the authority to establish a process that is fair, just and expedites a hearing. The RHPOA plans only to provide a submission from an engaged community association with a direct interest in this matter. They will not present expert testimony, provide a planning report nor provide opinion evidence. RHPOA has not been circulated the draft PO presently before the Tribunal, and therefore have not had the opportunity to review the issues list and in an effort to refine and update the associations participant statement in keeping with the defined issues.

11Ms. Blanchard further advised the Tribunal that submission supplied as part of a participants status request form, were the comments of the RHPOA that were made during the public comment and public meeting process in 2021. It is not uncommon for an association to seek advice from experts in an effort to better understand and explain the issues so that they are properly informed. It is fair and reasonable for the RHPOA to submit, as may be required, a refined participant statement 45 days before the hearing as found in paragraph 14 of the draft PO.

12Mr. Marc noted that the draft PO does include the opportunities for a participant to provide copies of their written participant statement to the other parties on or before 45 days before the hearing. He submitted that it is appropriate for paragraph 14 to remain in the final PO.

13Tribunal-led mediation is offered and discussed. Both parties noted they will continue to work together in an effort to scope or reduce issues and are of the opinion that such mediation may be helpful in the future. Parties are advised they may ask for Tribunal led mediation at their convenience.

TRIBUNAL DISPOSITON

14The Tribunal grants Participant Status to Judy de Lue and the RHPOA.

15The Tribunal is prepared to schedule a five day Merits Hearing commencing on Monday, April 24, 2023 at 10 a.m by video hearing.

16The Tribunal finds that it is appropriate for the RHPOA (or any participant) to have the opportunity to review an approved issues list found in a PO and make necessary refinements to their previously submitted participant statement before the hearing. It is a good thing that the RHPOA is taking the initiative to seek professional assistance as it illustrates how important this matter is to the association. Their commitment to understand the matter and articulate a cogent participant statement to assist the Tribunal is appreciated.

17The Tribunal finds that a refined participant statement from the RHPOA is relevant and therefore admissible. The weight given this statement will be in the hands of the Member responsible to adjudicate the hearing. Should the Appellant determine there are issues they need to explore with respect to the RHPOA participant statement, consideration may be given at the hearing. Therefore, paragraph 14 will remain in the final PO and all participants may refine statements in keeping with the paragraph.

18The Tribunal approves the draft PO which will come into full force and effect upon decision issuance. The approved PO is attached as Attachment 1 to this decision.

HEARING TECHNICAL DETAILS

19A five day Merits Hearing will convene on Monday, April 24 to Friday, April 28, 2023, by video hearing at 10 a.m.

20Parties 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/927921077

Access Code: 927-921-077

21Parties 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 at: https://app.gotomeeting.com/home.html

22Persons 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: +1 (647) 497-9391 or Toll Free 1-888-299-1889. The access code is 927-921-077.

23Individuals 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 hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

24Accordingly, the Tribunal Orders:

a. A five day Merits Hearing is to convene on Monday, April 24, 2023.

b. The Procedural Order found in Attachment 1 is approved and is in full force and effect.

c. Participant Status is granted to Judy de Lue and the Rothwell Heights Property Owners Association.

25No further notice will be given.

26The Member is not seized.

“Bryan W. Tuckey”

BRYAN W. TUCKEY

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.

ATTACHMENT 1

PROCEDURAL ORDER

OLT-22-003966

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O.

1990, c. P. 13, as amended.

Applicant/Appellant: Bertone Montreal Road LP

Subject: Application to amend the Zoning By-law – neglect to make a decision

Description: Zoning amendment to develop a 26-storey mixed use building

Reference Number: D02-02-21-0038

Property Address: 1649 Montreal Road and 741 Blair Road

Municipality/UT: Ottawa/Ottawa

OLT Case No: OLT-22-003966

OLT Lead Case No: OLT-22-003966

OLT Case Name: Bertone Montreal Road LP v. Ottawa (City

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 April 24, 2023 at 10 a.m.

GoTo Meeting: https://global.gotomeeting.com/join/927921077

Access Code: 927-921-077

3. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

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 February 23, 2023 (60 days)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 March 31, 2023 (24 days) 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 April 4, 2023 (20 days).

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 March 10, 2023 (45 days) 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 March 10, 2023 (45 days) 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 March 20, 2023 (35 days) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before April 4, 2023 (20 days), 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days (March 20, 2023) after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 4, 2023 (20 days).

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 4, 2023 (20 days) 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.

22. 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.

23. 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

1. Bertone Montreal Road LP

2. City of Ottawa

PARTICIPANTS

1. Julie de Loe - juliedeloe@gmail.com

2. Rothwell Heights Property Owners Association (c/o Jane Brammer, chair@rhpoa.ca)

ATTACHMENT 2

ISSUES

1. Is the proposed By-law Amendment consistent with the policies in the Provincial Policy Statement (PPS)?

2. Does the proposed By-law Amendment conform with the strategic directions and policy of the City of Ottawa Official Plan (the “OP”), including but not limited to:

a. Does the proposed By-law Amendment conform with the strategic directions set out in section 2.2.2 of the City of Ottawa Official Plan (the “OP”), in respect of intensification along Arterial Mainstreets?

b. Does the proposed By-law Amendment conform with the policies in respect of development in the Arterial Mainstreet land use designation set out in section 3.6.3 of the Official Plan?

c. Does the proposed By-law Amendment permit a development that conforms with the compatibility criteria in the Official Plan set out in sections 2.5.1 and 4.11, including with respect to building height, building form, orientation and massing, density, and compatibility with the existing context and planned function of the area?

3. Does the proposed By-law Amendment permit a development that would meet the purpose and intent of the Ottawa 2008-250 Zoning By-law?

4. Does the proposed Zoning By-law amendment permit a development that is supported by the transportation network and is transit-supportive? Is the proposed development consistent with the City’s goals for Montreal and Blair Roads, as captured in the Municipal Class Environmental Assessment (EA) Study for the Montreal-Blair Road Transit Priority Corridor.

5. Does the proposed By-law Amendment represent appropriate and good land use planning?

6. Does the proposed by-law amendment have regard for:

a. Urban Design Guidelines for Development Along Arterial Mainstreets; and

b. Urban Design Guidelines for High-Rise Buildings

7. Does the proposed by-law amendment properly address the provision of parking?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Bertone Montreal Road LP

2. City of Ottawa

3. Reply - Bertone Montreal Road LP