Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 03, 2023 CASE NO(S).: OLT-22-004282

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

Appellant: Dementia Care (London) Inc. Subject: By-law No. Z.-1-223042 Description: To permit a development of three mixed-use buildings with 490 residential units Reference Number: Z.-1-223042, Z-9199 Property Address: 689 Oxford Street West Municipality/UT: London/Middlesex OLT Case No.: OLT-22-004282 OLT Lead Case No.: OLT-22-004282 OLT Case Name: Dementia Care (London) Inc. v. London (City)

Heard: October 19, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
The Corporation of the City of London	Aynsley Hovius Christina McCreery
2399731 Ontario Ltd. c/o Westdell Developments Inc.	Analee Baroudi
Dementia Care (London) Inc.	Kim Mullin Ashley Seely

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON OCTOBER 19, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision relates to appeals brought pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) resulting from the City of London’s (“City”) approval of an application for a Zoning By-law Amendment (“ZBA”). The ZBA relates to the property known municipally as 689 Oxford Street West (“Subject Property”).

22399731 Ontario Ltd. c/o Westdell Developments Inc. (“Westdell”) applied to the City to rezone the Subject Property to facilitate a redevelopment proposal. Westdell appealed the City’s approval of the ZBA on the narrow Issue of the City requiring 30 affordable housing units to be distributed equally between each of three proposed buildings. Dementia Care (London) Inc. (“Dementia Care”) appealed the ZBA approval for concerns relating to traffic, parking and shadows.

3The City brought a Motion to Dismiss both appeals for different reasons, which was considered and decided by a Panel differently constituted. In the Motion to Dismiss decision, the Tribunal limited the scope of both appeals as is set out in further detail below. A helpful timeline and an in-depth overview of the ZBA application was set out in the Motion to Dismiss decision issued on September 13, 2023.

4On October 19, 2023, the Tribunal held its first Case Management Conference (“CMC”) at which it addressed procedural issues, a review of a draft Procedural Order (“PO”) and Issues Lists (“IL”) and the scheduling of dates for a Merit Hearing.

PROCEDURAL MATTERS

5The Tribunal confirmed with the Parties that there were no Issues with service of Notice for the CMC and as such, no further notice is required. The Tribunal was in receipt of the Declaration of Michael Schulthess relating to service of notice dated September 1, 2023, which was marked as Exhibit 1.

REQUESTS FOR STATUS

6Prior to the CMC, the Tribunal did not receive any requests for Party or Participant status. In response to the Tribunal’s inquiry at the CMC, there were no persons or entities present at the CMC requesting Party or Participant status.

OPPORTUNITIES FOR SETTLEMENT

7Counsel for the City advised the Tribunal that through recent discussions with Westdell, its sole Issue had been resolved. The Tribunal was further advised that the City and Westdell were not yet prepared to circulate the modified ZBA to Dementia Care for review. Westdell anticipated that the revisions to the ZBA could be circulated to Dementia Care the week following the CMC.

8The City and Dementia Care jointly advised the Tribunal that they have not yet engaged in any settlement discussions. The City did not feel that Tribunal-led mediation would be beneficial at this point, however, Dementia Care did advise that they would be interested in mediation. The Tribunal encouraged the Parties to request Tribunal-led mediation through the Case Management Coordinator if needed.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

9The Parties submitted a first draft of a PO and IL in advance of the CMC, which was reviewed by the Tribunal. The Parties advised that exchange dates and details in the PO will be finalized once Hearing dates were set and further advised that the IL of Dementia Care was not submitted on consent.

10At the CMC, Counsel for Dementia Care submitted that the order of evidence set out in the draft PO required amendment and in response, the City noted that it wished to present its evidence first and have a right of reply. After a brief discussion, the Parties agreed to discuss the order of evidence further following the CMC. Counsel for the City undertook to submit a final draft PO to the Tribunal for review and approval, on or before Thursday, October 26, 2023.

11Prior to the CMC, the Tribunal had considered a Motion to Dismiss the appeals brought by the City. In its disposition, among other rulings, the Tribunal limited the scope of the Dementia Care appeal as follows:

…Dementia Care will not be permitted to raise issues or present evidence challenging the use, density and height established by Zoning By-law Amendment No. Z.-1-223042 (save and except to the extent that evidence may be led as to matters of density and height which directly relate to the issues raised in the appeal, i.e. traffic, parking, shadows, land use compatibility and risks to public health and safety).

12The City disputed the scope of Dementia Care Issues 4, 7, 8, 9, 10 and 12 and in advance of the CMC, provided the Tribunal with a chart setting out the disputed Issues and the City’s reasoning for disputing each Issue. At the CMC, Westdell advised the Tribunal that it supported the City’s position with respect to the disputed Issues.

13There was lengthy discussion at the CMC regarding the disputed Issues and unfortunately, there was insufficient time to reach a resolution. The CMC commenced at 8:30 a.m. as Counsel had prior commitments starting at 10 a.m. on the day of the CMC.

14The Parties agreed to engage in further discussion in an attempt to reach agreement on the disputed Issues. Dementia Care agreed with the City that Issue 12 was redundant, and as such, the remaining Issues in dispute are Issues 4, 7, 8, 9 and 10.

15The Parties were directed to work together following the CMC in an effort to reach an agreement on the wording of the disputed Issues. In the event the Parties were unable to reach agreement on the IL, the Tribunal scheduled a second CMC for November 17, 2023.

16Following the CMC, the Parties jointly advised the Tribunal that the disputed Issues on the IL had been resolved, and the second CMC date is no longer required. The Tribunal commends the Parties for working together to resolve the outstanding Issues.

17Following the CMC, the Parties submitted a final PO and IL attached as Schedule 1 to this Decision, which the Tribunal has reviewed and approved, and the proceedings shall be governed by it.

SCHEDULING HEARING DATES

18The Parties jointly requested that the Tribunal schedule a 7-day Hearing for the appeal.

19Upon hearing the submissions of the Parties, the Tribunal agreed with the proposed number of hearing days required, and scheduled a 7-day Video Hearing as follows commencing on Wednesday, May 15, 2024, at 10 a.m. The Tribunal will not sit on Monday, May 20, 2024.

20On that date, the Parties 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.

21The Merit Hearing is scheduled to proceed by Video Hearing as follows:

GoToMeeting: https://global.gotomeeting.com/join/660145013

Access Code: 660-145-013

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: Toll-Free: 1-888-299-1889 Or + 1 (647)-497-9373. The Access Code is as indicated above.

23Parties 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

24Individuals 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.

ORDER

25The Tribunal directs that the second Case Management Conference originally scheduled for Friday, November 17, 2023, has been released from the calendar.

26The Tribunal orders that the Hearing in this matter shall be held by Video Hearing commencing on Wednesday, May 15, 2024, at 10 a.m. Seven days (7) have been set aside. The Tribunal will not sit on Monday, May 20, 2024.

27The Tribunal orders that the Procedural Order and Issues List appended as Schedule 1 shall govern these proceedings.

28The Member is not seized, however, will remain available for Case Management subject to the Tribunal’s calendar.

29No further notice will be given.

“C. Hardy”

c. hardy

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.

SCHEDULE 1

CASE NO(S).: OLT-22-004282

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

Appellant: Dementia Care (London) Inc. Subject: By-law No. Z.-1-223042 Description: To permit a development of three mixed-use buildings with 490 residential units Reference Number: Z.-1-223042, Z-9199 Property Address: 689 Oxford Street West Municipality/UT: City of London OLT Case No.: OLT-22-004282 OLT File No.: OLT-22-004282 OLT Case Name: Dementia Care (London) Inc. v. London (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 May 15, 2024, at 10:00 a.m. and continue for three days, and recommence on May 21, 2024 and continue for four additional days at https://global.gotomeeting.com/join/660145013

3. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see Attachment 4 for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before February 15, 2024, 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 1, 2024, 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 March 28, 2024.

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 15, 2024, 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 15, 2024, 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 April 10, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before May 1, 2024, 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 April 15, 2024, 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 May 3, 2024.

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 May 6, 2024, 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 or 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.

Summary of Key Dates

Date	Hearing Event
February 15, 2024	Deadline to exchange expert witness list
March 1, 2024	Meeting of like experts
March 15, 2024	Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons
March 15, 2024	Exchange of Participant Statements
March 28, 2024	Exchange and file Agreed Statement of Facts
April 10, 2024	Parties to confirm with Tribunal if hearing dates still required
April 15, 2024	Exchange of Reply Witness Statements
May 1, 2024	Exchange of Visual Evidence
May 3, 2024	Provide joint document book to case coordinator
May 6, 2024	Hearing Plan
May 15, 2024	Hearing start date

ATTACHMENT 1: PARTIES AND PARTICIPANTS

Parties:

1. Approval Authority (City of London) 300 Dufferin Ave., London, ON N6B 1Z2 Aynsley Hovius T: 519-639-7408 E: ahovius@london.ca Christina McCreery T: 519-670-3926 E: cmccreery@london.ca

2. Applicant (2399731 Ontario Ltd.) Baroudi Law Professional Corporation 902 Thistleridge Crecent London, ON N6K 0B8 Analee Baroudi T: 519-200-3776 E: analee@baroudilaw.ca

3. Appellant (Dementia Care (London) Inc.) Wood Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5 Kim Mullin T: 416-203-5633 E: kmullin@woodbull.ca Ashley Seely T: 613-981-1859 E: aseely@woodbull.ca

ATTACHMENT 2: ISSUES LIST

Impugned Provisions: 2(b)(i) through (vi) - building design; 2(b) Regulations (i) through (xv) re: site design, 3(a)(b)(i) parking spaces, 3(b)(b)(i) parking spaces, 4(a)(b)(i) parking spaces, 4(b)(b)(i) parking spaces, Schedule 1 Site Concept and Building Renderings

1. Do the Impugned Provisions have appropriate regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act, including the matters set out in sections 2(d), 2(h), 2(n), 2(p) and 2(r) therein?

2. Are the Impugned Provisions consistent with the relevant policies of the Provincial Policy Statement (2020) (the “PPS”), in particular, but not limited to, the following policy sections:

-Policy Section 1.1.1 (Managing and Directing Land Use);

-Policy Sections 1.1.3.2 , 1.1.3.3 and 1.1.3.4 (Settlement Areas);

-Policy Section 1.4.3(f) (Housing); and

-Policy Sections 1.6.1 and 1.6.7 (Infrastructure and Public Service Facilities)?

3. Do the Impugned Provisions conform with policies the City of London New Official Plan (the “London Plan”), that were in force and effect at the time the application was submitted in June, 2021, in particular, but not limited to, the following policy sections:

-Policy Sections 59, 61 and 62 (Key Directions);

-Policy Sections 83 (City Structure);

• Policy Sections 193, 194, 197, 199, 221, 235, 252, 253, 256, 284, 286, 289, 292, 293 and 298, (City Building/Urban Design);

-Policy Section 326, 365 (Mobility);

-Policy Sections 810(3) and 813(3) (Transit Village).

4. Was the Traffic Impact Study for the proposed development prepared in accordance with all applicable standards and guidelines, including the City’s Transportation Impact Assessment Guidelines and Access Management Guidelines?

5. Are off-site road and intersection improvements required to ensure safe and efficient turning movements at the intersections of (i) Capulet Walk and Oxford Street West; (ii) Capulet Lane and Oxford Street West; or (iii) Capulet Lane and Capulet Walk?

6. Should a holding provision be included in the Zoning By-law Amendment to secure any required off-site road and intersection improvements?

7. Does the development permitted by the Impugned Provisions represent an overdevelopment of the site?

8. Are additional regulations required to mitigate impacts on the neighbouring property located at 35-41 Capulet Walk?

9. Does the development permitted by the Impugned Provisions represent good land use planning and is it in the public interest?

ATTACHMENT 3: ORDER OF EVIDENCE

1. City of London (Municipal Authority)
2. Westdell (Applicant)
3. Dementia Care (London) Inc. (Appellant)
4. Reply by City of London (Municipal Authority)
5. Reply by Westdell (Applicant)

ATTACHMENT 4

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.