Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 11, 2022
CASE NO(S).:
OLT 21-001637
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
SmartCentres REIT, 2603849 Ontario Ltd. and 2603849 Ontario Ltd.
Subject:
Request to amend the Official Plan - Failure of Town of Oakville to adopt the requested amendment
Existing Designation:
Medium Density Residential and Main Street 1
Proposed Designated:
Main Street 1
Purpose:
To permit a five-storey retirement building with commercial space
Property Address/Description:
105 and 115-159 Garden Drive
Municipality:
Town of Oakville
Approval Authority File No.:
OPA 1617.46
OLT Case No.:
OLT-21-001637
OLT File No.:
OLT-21-001637
OLT Case Name:
SmartCentres REIT v. Oakville (Twn.)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
SmartCentres REIT, 2603849 Ontario Ltd. and 2603849 Ontario Ltd.
Subject:
Application to amend Town of Oakville Comprehensive Zoning By-law 2014-014 - Refusal or neglect of Town of Oakville to make a decision
Existing Zoning:
Medium Residential
Proposed Zoning:
Central Business District (Site Specific)
Purpose:
To permit a five-storey retirement building with commercial space
Property Address/Description:
105 and 115-159 Garden Drive
Municipality:
Town of Oakville
Municipality File No.:
Z.1617.46
OLT Case No.:
OLT-21-001637
OLT File No.:
OLT-21-001638
Heard:
February 2, 2022 by video hearing
APPEARANCES:
Parties
Counsel
2603848 Ontario Ltd., 2603849 Ontario Ltd. and SmartCentres REIT
D. Baker
Town of Oakville
J. Huctwith
Region of Halton
J. Yu C. Self (Student-at-law)
MEMORANDUM OF ORAL DECISION DELIVERED BY VICE-CHAIR STEVEN COOKE ON FEBRUARY 2, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was a Case Management Conference (“CMC”) for the appeals by 2603848 Ontario Ltd., 2603849 Ontario Ltd. and SmartCentres REIT (the “Applicants”) for the failure of the Town of Oakville (the “Town”) under s. 22 (7) to adopt a requested amendment to the Official Plan, s. 34 (11) failure to make a decision of a request to amend a zoning by-law, and s. 41 (12) site plan application of the Planning Act, R.S.O. 1990, c. P.13, as amended.
2The Applicants propose to construct a five (5)-storey retirement building with commercial space at grade level for the properties municipally known as 105, 115 – 159 Garden Drive.
3The purpose of the CMC was to establish Party status, Participant status, hearing dates, and to review the draft Procedural Order (“PO”).
4At the outset of the CMC, Ms. Huctwith informed the Tribunal that she would be Co-Counsel for the Town with Mr. Biggart who was not able to attend the CMC.
PARTY STATUS
5On behalf of the Regional Municipality of Halton (the “Region”) Mr. Yu appeared as Counsel to request that the Region be granted Party status to the proceedings siting interests that directly effect the Region Official Plan.
6The Parties informed the Tribunal that they have already been in discussions with the Region and had no objections to the request for Party status. Having heard no objections from the statutory Parties and having reviewed the requestion application form the Tribunal is satisfied and grants the Region Party status.
PARTICIPANT STATUS
7Chris Di Fonzo requested Participant status to the proceedings. Mr. Di Fonzo is a local resident that has concerns with the proposed development of the Subject Site that includes pedestrian safety and conformity to the Town Official Plan.
8The Parties informed the Tribunal that they had all received a copy of the request prior to the CMC and had no objections. On the consent of the Parties and review of the application the Tribunal grants Participant status to Mr. Di Fonzo.
9The Tribunal further instructs that Participant Statements are to be submitted in written form to the Tribunal Case Co-Ordinator and all other Parties on or before Friday, August 5, 2022.
DRAFT PROCEDURAL ORDER
10Ms. Baker informed the Tribunal that the Parties had already been in discussion and gave an overview of the draft PO. She further indicated that the Parties are requesting a hearing of seven (7)-days. The Town and the Region supported the summary and the request of a seven (7)-day hearing.
11The Tribunal instructed Ms. Baker to complete the draft PO template with the appropriate dates and submit it to the Tribunal Case Co-Ordinator with the consent of the other Parties. On Friday, February 4, 2022, the Tribunal has received, reviewed, and approves the PO included with this Order as Attachment 1.
HEARING DATES
12A hearing of the merits has been scheduled for a seven (7)-day video hearing that will begin on Monday, September 19, 2022 at 10 a.m.
13Parties 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://meet.goto.com/687587165
Access code: 687-587-165
14Parties 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
15Persons 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) 497-9373 or Toll Free 1-888-299-1889. The access code is 687-587-165.
16Individuals 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 event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
17No further notice is required.
18The Member is not seized.
19So Orders the Tribunal.
“Steven Cooke”
STEVEN COOKE
VICE-CHAIR
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.
ATTACHMENT 1
ISSUE DATE:
CASE NO(S).: OLT-21-001637
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: SmartCentres REIT, 2603849 Ontario Ltd. and 2603849 Ontario Ltd.
Subject: Request to amend the Official Plan - Failure of Town of Oakville to adopt the requested amendment
Existing Designation: Medium Density Residential and Main Street 1
Proposed Designated: Main Street 1
Purpose: To permit a five-storey retirement building with commercial space
Property Address/Description: 105 and 115-159 Garden Drive
Municipality: Town of Oakville
Approval Authority File No.: OPA 1617.46
OLT Case No.: OLT-21-001637
OLT File No.: OLT-21-001637
OLT Case Name: SmartCentres REIT v. Oakville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: SmartCentres REIT, 2603849 Ontario Ltd. and 2603849 Ontario Ltd.
Subject: Application to amend Town of Oakville Comprehensive Zoning By-law 2014-014 - Refusal or neglect of Town of Oakville to make a decision
Existing Zoning: Medium Residential
Proposed Zoning: Central Business District (Site Specific)
Purpose: To permit a five-storey retirement building with commercial space
Property Address/Description: 105 and 115-159 Garden Drive
Municipality: Town of Oakville
Municipality File No.: Z.1617.46
OLT Case No.: OLT-21-001637
OLT File No.: OLT-21-001638
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Site Plan
Referred by: SmartCentres REIT, 2603848 Ontario Ltd. &
2603849 Ontario Ltd.
Property Address/Description: 105 and 115-159 Garden Drive
Municipality: Town of Oakville
OLT Case No.: OLT-21-001637
OLT File No.: OLT-21-001741
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 September 19, 2022 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is 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 Friday May 13, 2022 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 June 24, 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 July 15, 2022.
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 August 5, 2022, the parties shall provide copies of their witness and/or expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before August 5, 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.
On or before September 9, 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.
On or before August 19, 2022, the parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence 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 September 9, 2022.
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 September 9, 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.
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.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
Attachment 1: Parties and Participants
Appellant/Party
Counsel
Contact
2603848 Ontario Ltd., 2603849 Ontario Ltd. and SmartCentres REIT
Denise Baker
WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 Phone: 416-947-5090 dbaker@weirfoulds.com
Town of Oakville
Jennifer Huctwith
Jennifer Huctwith 1225 Trafalgar Rd Oakville, ON L6H 0H3 Phone: 905-845-6601, ext.3017 jennifer.huctwith@oakville.ca Ritchie Ketcheson Hart & Biggart LLP Andrew Biggart 1 Eva Rd, Etobicoke, ON M9C 4Z5 Phone: 416-622-6601 x227 abiggart@ritchieketcheson.com
Regional Municipality of Halton
Jing Bo Yu
Jing Bo Yu Regional Municipality of Halton 1151 Bronte Road Oakville, ON L6M 3L1 Phone: 289-795-2444 jingbo.yu@halton.ca
Participant
Contact
Chris DiFonzo
cmdifonzo@icloud.com; 416-819-9663
Attachment 2: Issues List
Note: the identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing.
Town of Oakville
Do the applications have regard for matters included in Section 2 of the Planning Act?
Would the approval or refusal of the proposed applications be consistent with the Provincial Policy Statement (2020)?
Would the approval or refusal of the applications conform with the Growth Plan for the Greater Golden Horseshoe (2019) as amended?
Do the applications conform with the Kerr Village Growth Area policies under Section 23 of the Livable Oakville Official Plan?
Do the applications for amendments to the Kerr Village Growth Area policies conform with the policies of the Livable Oakville Plan, including conforming with or having sufficient regard to the evaluation criteria for site specific Official Plan amendments set out in Section 28.2?
Do the proposed applications implement the Guiding Principles found in section 2.2 in the Livable Oakville Official Plan?
Do the applications appropriately implement the provisions of Section 3 (Urban Structure) of the Livable Oakville Plan and Section 4 (Managing Growth and Change) in the Livable Oakville Official Plan as these policies relate to providing an appropriate degree of intensification within the Growth Area in a manner which creates mixed use centres with viable main streets (3.6 and 4.1)?
Do the applications appropriately implement the urban design policies within Section 6 of the Livable Oakville Plan, and in particular, Section 6.1 (General), Section 6.4 (Streetscape), and Section 6.9 (Built Form) 6.10 (Landscaping), and 6.11 (Pedestrian Access and Circulation) and 6.12 (Vehicular Access and Circulation)?
Do the applications have regard for the Livable by Design Urban Design Manual as provided in policy 6.1.2 and the specific Urban Design Guidelines for the Maurice Drive area as provided in Section 23.7.6 d) of the Livable Oakville Official Plan?
Does the design of the proposed building provide appropriate transitions in height and adequate setbacks from existing residential uses to mitigate negative adverse impacts?
Do the applications result in a development that adequately preserves and enhances the town’s urban forest as set out in Section 6.10.2 and 10.1.1(e) of the Livable Oakville Plan, particularly in relation to the proposed removal of an existing Black Walnut tree on the subject lands?
Does the design of the proposed development, including setbacks, adequately address the relationship between the building and Lakeshore Road West Right of Way in terms of providing direct and accessible pedestrian access?
Do the applications conform with the Town’s Physical Services policies under Section 9 of the Livable Oakville Official Plan, specifically Sections 9.1.7 as it relates to setbacks from the existing Hydro infrastructure on Lakeshore Road West?
Do the regulations of the draft by-law appropriately implement the proposed development?
ISSUES APPLYING ONLY TO SITE PLAN
Does the proposed development conform with Section 10.10 of the Livable Oakville Official Plan with regards to stormwater management and the required grade changes along Lakeshore Road West?
If a site plan for the development is to be approved, what conditions are required to mitigate impacts on adjacent residents and achieve compliance with town standards and good planning?
Region of Halton
- If approved should a Holding Provision (“H” symbol) be applied to the Zoning
By-law Amendment requiring the Owner submit an Environmental Site
Assessment that is compliant with O. Reg. 153/04 indicating that the
environmental condition of the site is suitable for its proposed land use and
implement any recommendations of such a report and a Letter of Reliance to the
satisfaction of the Region of Halton?
Issues Applying Only for Site Plan
- If a site plan for the development is to be approved, are the following Regional
Site Plan Conditions appropriate?
a) The Owner shall contact the Regional Services Permit Section for review and approval of the proposed water and sanitary servicing, to obtain water and sanitary sewer Services Permits, and pay all necessary fees.
As part of the Services Permit Review, the Owner will be required to comply with Halton Region’s multi-unit servicing policy as set out in report PPW01-96, specifically Section 3.3.
Any existing water service, sanitary service lateral, watermains and/or sanitary sewers to be disconnected from the system and abandoned must be decommissioned per the standards and specifications of the Region of Halton. The Owner is advised to contact Halton’s Permits and Development Inspection Section for details on abandoning water and sanitary services.
b) The Owner shall provide a letter confirming that the development will be serviced by private collection for waste, recycling and organics to the satisfaction of the Region of Halton.
Attachment 3: Order of Evidence
2603848 Ontario Ltd., 2603849 Ontario Ltd. and SmartCentres REIT
Town of Oakville
Region of Halton
2603848 Ontario Ltd., 2603849 Ontario Ltd. and SmartCentres REIT
Attachment 4
Attachment to 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.