Whitehorn Investments Limited v. Richmond Hill (City), 2023 CanLII 106638

Ontario Land Tribunal

ISSUE DATE: November 9, 2023

CASE NO.: OLT-23-000670

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Whitehorn Investments Limited, Stephen-Mitchell, Realty Limited, 891566 Ontario Limited and Ledbrow Investments Ltd.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the development of two towers, 42 and 45 storeys in height.

Reference Number: D01-20015

Property Address: 9301, 9325 and 9335 Yonge Street

Municipality/UT: Richmond Hill/York

OLT Case No: OLT-23-000670

OLT Lead Case No: OLT-23-000670

OLT Case Name: Whitehorn Investments Limited v. Richmond Hill (City)

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

Applicant/Appellant: Whitehorn Investments Limited, Stephen-Mitchell, Realty Limited, 891566 Ontario Limited and Ledbrow Investments Ltd.

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

Description: To permit the development of two towers, 42 and 45 storeys in height.

Reference Number: D02-20029

Property Address: 9301, 9325 and 9335 Yonge Street

Municipality/UT: Richmond Hill/York

OLT Case No: OLT-23-000671

OLT Lead Case No: OLT-23-000670

BEFORE:

ERIC S. CROWE MEMBER

Thursday, the 9th day of November, 2023

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment "A" to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on July 2, 2024.

"Euken Lui"

EUKEN LUI ACTING REGISTRAR

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 "A"

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Whitehorn Investments Limited, Stephen-Mitchell, Realty Limited, 891566 Ontario Limited and Ledbrow Investments Ltd.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the development of two towers, 42 and 45 storeys in height.

Reference Number: D01-20015

Property Address: 9301, 9325 and 9335 Yonge Street

Municipality/UT: Richmond Hill/York

OLT Case No: OLT-23-000670

OLT Lead Case No: OLT-23-000670

OLT Case Name: Whitehorn Investments Limited v. Richmond Hill (City)

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

Applicant/Appellant: Whitehorn Investments Limited, Stephen-Mitchell, Realty Limited, 891566 Ontario Limited and Ledbrow Investments Ltd.

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

Description: To permit the development of two towers, 42 and 45 storeys in height.

Reference Number: D02-20029

Property Address: 9301, 9325 and 9335 Yonge Street

Municipality/UT: Richmond Hill/York

OLT Case No: OLT-23-000671

OLT Lead Case No: OLT-23-000670

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 hearing will be held by video hearing, and will begin on July 2, 2024 at 10:00 a.m. The video hearing can be accessed at: https://meet.goto.com/370987861 (Access Code 370-987-861)

3. The length of the hearing will be 12 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 procedural order deadlines are generally found in Attachment 1.

4. The Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order.

5. The Issues are set out in the Issues List attached as Attachment 3 to this Order. 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 is set out in Attachment 4 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 consent, subject to the Tribunal's approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative's name, address, email address and the phone number.

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. (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

9. If the Appellant intends to seek approval of a revised proposal at the hearing, the Appellant shall provide copies of the revised proposal, including all revised plans, drawings, studies, reports and proposed instruments to be relied upon, to the other Parties by no later than February 2, 2024. The Appellant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

10. 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 at least March 4, 2024. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and is to provide a copy of their curriculum vitae. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal's Rules and notice of same must be served on the other Parties on or before March 19, 2024

11. Expert witnesses in the same discipline(s) shall have at least one meeting on or before April 3, 2024 to try to resolve or reduce the issues for the hearing. Following the experts' meeting(s) the experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to the Parties and the Tribunal at least on or before April 18, 2024.

12. 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, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided, as in paragraph 14. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in the Tribunal's Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same time as the delivery of expert witness statements, as in paragraph 14.

13. 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 14.

14. On or before May 3, 2024, the Parties shall provide copies of their witness and expert witness statements to the other Parties and to the Tribunal case coordinator and in accordance with paragraph 21 below.

15. On or before June 3, 2024, the Parties shall provide copies of their written response(s) to any written evidence to the other Parties and to the Tribunal in accordance with paragraph 21 below.

16. On or before June 12, 2024 the Parties shall file with the Tribunal a detailed Work Plan that identifies the following, at a minimum: the Parties participating in the hearing, preliminary matters to be addressed (if any), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for examination in chief, cross-examination and any re-examination (if any) (the "Work Plan"). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event. In the event of a disagreement between the Parties about the Work Plan, the Tribunal may be spoken to.

17. The Parties shall prepare a Joint Document Book on or before June 12, 2024, and which one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with paragraph 21.

18. On or before June 17, 2024 the Parties shall provide copies of their visual evidence to the other Parties and the Tribunal in accordance with paragraph 21.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with Rule 10 of the Tribunal's Rules.

20. A Party who provides a witness' written evidence 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. All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7 of the Tribunal's Rules.

22. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. Rule 17 of the Tribunal's Rules shall apply to such requests.

23. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

24. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member ) Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
February 2, 2024	Any revised proposal to be circulated
March 4, 2024	Exchange of Witness Lists
March 19, 2024	Deadline to Challenge Witnesses or Qualifications
April 3, 2024	Experts meeting(s) prior to this date
April 18, 2024	Deadline to File Any Agreed Statement(s) of Facts
May 3, 2024	Exchange of Witness Statements and Experts Reports, Participant Statements (if any), and summoned witness outlines (if any)
June 3, 2024	Exchange of Reply Witness Statements (if any)
June 12, 2024	Filing of Work Plan and Joint Document Book
June 17, 2024	Exchange of visual evidence (if any)
July 2, 2024	OLT Hearing

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

*Counsel/Agent

1. Whitehorn Investments Limited, Stephen-Mitchell, Realty Limited, 891566 Ontario Limited and Ledbrow Investments Ltd. (Applicant/Appellant)

Chris Barnett Osler, Hoskin and Harcourt LLP 100 King Street West 1 First Canadian Place Suite 6200, P.O. Box 50 Toronto, ON M5X 1B8 Email: cbarnett@osler.com Tel: 416.862.6651

2. City of Richmond Hill

Carlton Thorne Assistant City Solicitor Legal Services | Office of the City Manager 225 East Beaver Creek, 8th Floor Email: carlton.thorne@richmondhill.ca Tel: 905-747-6479

3. Canadian National Railway Company

Katarzyna Sliwa/Kevin Pirak Dentons Canada LLP 77 King Street West, Suite 400 Toronto-Dominion Centre Toronto, ON, Canada M5K 0A1 Email: kat.sliwa@dentons.com/ kevin.pirak@dentons.com Tel: 416 863 4628/416 863 4566

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. The identification of an issue on this list by a Party indicates that Party's intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the Tribunal having jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the Tribunal.

1) City of Richmond Hill

1. Does the development proposal consisting of Official Plan and Zoning By-law Amendments for the subject lands (collectively the "development proposal") have regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act, including the matters set out in sections 2(a)(i)(f)(h)(j)(o)(p) and (r) therein?

2. Is the development proposal consistent with the relevant policies of the Provincial Policy Statement (2020) (the "PPS"), including as may be amended or superceded by the Province of Ontario? With respect to the 2020 PPS, is the development proposal consistent with, in particular, but not limited to, the following policy sections?:

• 1.1.3 (Settlement Areas);
• 1.4 (Housing);
• 1.5.1 (Public Spaces, Recreation, Parks, Trails and Open Space);
• 1.6 (Infrastructure and Public Service Facilities);
• 2.1 (Natural Heritage); and,
• 4.6 (Implementation and Interpretation)?

3. Is the development proposal in conformity with the Growth Plan for the Greater Golden Horseshoe (2020) (the "Growth Plan"), including as may be amended or superceded by the Province of Ontario? With respect to the 2020 Growth Plan, is the development proposal in conformity with, in particular, but not limited to, the following policy sections?:

• 2.2.6 (Housing);
• 3.2.2 (Transportation);
• 4.2 (Policies for Protecting What is Valuable);
• 4.2.2 (Natural Heritage System); and,
• 4.2.5 (Public Open Space)?

4. Is the development proposal in conformity with the relevant policies in the 2010 York Region Official Plan (the "2010 ROP"), in particular, but not limited to, the following policy sections?:

• 2.0 (Sustainable Natural Environment);
• 2.1 (Regional Greenlands System);
• 2.2 (Natural Features);
• 2.3 (Water Systems);
• 3.5 (Housing Our Residents);
• 5.2 (Sustainable Cities, Sustainable Communities);
• 5.3 (Intensification); and,
• 5.4 (Regional Centres and Corridors)?

5. Does the development proposal have appropriate regard for the relevant policy sections in the 2022 York Region Official Plan (the "2022 ROP"), in particular, but not limited to, the following policy sections?:

• 2.3 (Supporting Complete Communities);
• 3.0 (A Sustainable Environment);
• 3.1 (Planning for Natural Systems);
• 3.2 (Regional Greenlands System);
• 3.4 (Natural Features);
• 4.1 (The Urban System);
• 4.2 (Community Areas);
• 4.4 (Intensification); and,
• 6.0 (Servicing our Communities)?

6. Does the development proposal maintain the intent and principles of, and does it conform with, the City of Richmond Hill's Official Plan (the "Plan"), in particular, but not limited to, the following policy sections?:

• 3.1.3 (City Structure);
• 3.1.4 (Integrating Land Uses);
• 3.1.5 (Housing);
• 3.1.8 (Parkland);
• 3.1.9 (Servicing Our Community);
• 3.2.1, 3.2.1.3 (Environment);
• 3.4 (Place-Making), including but not limited to, 3.4.1 and 3.4.4;
• 3.5 (Connectivity and Mobility);
• 4.4 (Key Development Areas);
• 4.10 (Greenway System); and,
• Any other policy sections related thereto?

7. Does the development proposal have appropriate regard for the 2018 draft Yonge and Carrville/16th Key Development Area Secondary Plan (the "2018 draft Secondary Plan") as endorsed by Council, and the Yonge Street and 16th Avenue Key Development Area Policy Directions and Recommendation Report, in particular, but not limited to, the following policy sections of the 2018 draft Secondary Plan?:

• 11.2.2 (Height);
• 11.2.3 (Density);
• 11.2.5 (Built Form);
• 11.2.7 (Housing);
• 11.3 (Parks and Urban Open Space System);
• 11.4 (Connectivity and Mobility); and,
• 11.5.7 (Servicing).

8. Does the development proposal have appropriate regard for the draft Official Plan Amendment 18.5 (Yonge Street and Carrville/16th Avenue Key Development Area, City File MOPA-22-0001)?

9. Does the development proposal have appropriate regard for the City of Richmond Hill's Urban Design Guidelines, in particular, but not limited to, the following sections and guidelines?:

• 3.6 (Streetscapes);
• 5.2 (Building Placement, Orientation and Streetscape Interface);
• 5.4 (Site Circulation and Parking); and,
• 6.6 (Tall Buildings).

10. Does the development proposal represent an overdevelopment of the site?

11. Does the development proposal adequately provide at-grade commercial, retail or community uses in a mixed-use building format in accordance with the Plan?

12. Has the appropriateness and feasibility of the development proposal been identified and satisfactorily addressed with respect to matters related to, but not necessarily limited to, height, density, transportation, traffic, access, parking, vehicular and pedestrian connectivity, the provision of an appropriate public road network, the provision of public parkland and urban open spaces, the provision for conveyance of natural heritage system lands, outdoor amenity space, waste management and servicing, including conformity with the City's approved Urban Master Environmental Servicing Plan?

13. Is the proposed Zoning By-law Amendment appropriate, including with respect to whether the proposed instruments sufficiently regulate matters including, but not limited to, built form, height, density, massing, scale, setbacks, step backs, non-residential gross floor area, access, parking and amenity area in a manner consistent with good planning?

14. In the event that the Tribunal approves the proposed Official Plan and Zoning By-law Amendments, in principle, should: (a) the final order respecting the Official Plan Amendment application be withheld until such time as the City advises the Tribunal that the Official Plan Amendment has been finalized to the satisfaction of the Commissioner of Planning and Building Services; and, (b) the final order respecting the Zoning By-law Amendment application be withheld until such time as the City advises the Tribunal that: (i) the draft Zoning By-law Amendment has been finalized to the satisfaction of the City's Commissioner of Planning and Building Services; and, (ii) the related Site Plan application for the development has been finalized to the satisfaction of the Commissioner of Planning and Building Services.

15. Is the development proposal appropriate and does it represent good planning?

2) Canadian National Railway Company

Planning Act and Planning Policies

1. Do the proposed Official Plan Amendment ("OPA") and Zoning By-law Amendment ("ZBA") have sufficient regard to matters of provincial interest as outlined in sections 2 (f), (h), (l), (m), (n), (o), (p) and (r) of the Planning Act?

2. Do the proposed OPA and ZBA take into consideration matters addressed by the Places to Grow Act, 2005, in particular section 14(4)?

3. Are the proposed OPA and ZBA: a) consistent with the Provincial Policy Statement 2020 ("PPS") specifically Part III, Part IV and Part V policies 1.0, 1.1.1, 1.1.2, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.2.1 a), b) and d), 1.2.3, 1.3.1, 1.4.3 (b)(1.), 1.4.3(f), 1.6.1, 1.6.2, 1.6.3, 1.6.4, 1.6.7.1, 1.6.7.2, 1.6.7.3, 1.6.8.1, 1.6.8.2, 1.6.8.3, 1.6.8.4, 1.6.8.5, 1.6.9.1, 1.7.1 a), c), g), k); 4.0 and associated definitions; b) conform with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe Growth Plan 2020 ("Growth Plan") specifically sections: 1.2, 1.2.1, 1.2.3, 2.1, 2.2.1.3(c), 2.2.1.4, 2.2.2.3, 2.2.5.1, 2.2.5.2, 2.2.5.5, 2.2.5.8, 3.1, 3.2.1.1, 3.2.1.2, 3.2.1.4, 3.2.1.5, 3.2.2.1, 3.2.2.2, 3.2.4, 3.2.5., 4.2.10.1 (a), (c) and (i), 4.2.10.2 (a), 5.2.3.1, 5.2.4.5, 5.2.5.8 and associated schedules and definitions; c) have regard to 2022 Region of York Official Plan, specifically sections: 1.4, 2.1.3.a, 2.1.4.a, 2.1.4.d, 2.2, 2.2.2, 2.2.4, 2.2.5, 2.2.10, 2.3, 2.3.1, 2.3.2, 2.3.4, 2.3.5, 2.3.11, 2.3.28, 2.3.46, 2.3.50, 4.1, 4.1.2, 4.1.3, 4.1.5, 4.2.1, 4.2.17, 4.2.18, 4.4, 4.4.1, 4.4.3, 4.4.4, 4.4.9, 4.4.12, 4.4.14, 4.4.18, 4.4.19, 4.4.20, 4.4.34.c, 4.4.36, 4.4.37, 4.4.38, 4.4.42 (a, b), 4.4.47, 4.4.49, 6.0, 6.1, 6.1.1, 6.2, 6.2.1, 6.2.5, 6.3.37, 6.3.52, 6.3.53, 6.3.58, 6.5.3, 7.0, 7.1, 7.3.2, 7.3.8.a, 7.4.11 and associated schedules and definitions; d) conform with the 2010 Region of York Official Plan, specifically sections: 1.2, 1.4, 3.0, 3.1, 3.1.1, 3.1.3, 3.1.5, 3.2, 3.2.5, 3.2.6, 3.2.10, 4.0, 4.1.1, 4.1.3, 4.1.1(Typo in Official Plan), 4.2.2, 4.2.5, 4.2.7, 4.4.4, 5.1, 5.2, 5.2.5, 5.2.8, 5.2.9, 5.3, 5.3.2, 5.3.3, 5.3.5, 5.3.10, 5.4, 5.4.1, 5.4.2, 5.4.3, 5.4.4, 5.4.5, 5.4.11, 5.4.14, 5.4.30, 5.4.31, 5.4.34, 7.0, 7.1.7, 7.2, 7.2.65, 7.2.69, 7.2.70, 7.2.71, 7.2.72, 7.2.74, 7.2.75, 7.2.79, 7.2.80, 7.2.81, 7.5.3, 7.5.4, 8.4.2, 8.4.9, 8.4.14 and associated schedules and definitions; e) conform with the approved City of Richmond Hill Official Plan (As approved in July 2010, as amended) specifically sections: 1.1, 1.2, 1.5, 2.1, 2.2, 3, 3.1, 3.1.2, 3.1.3, 3.1.3.1, 3.1.3.2, 3.1.3.3, 3.1.3.4, 3.1.3.5, 3.1.3.6, 3.1.3.9, 3.1.3.10, 3.1.4, 3.1.4.1, 3.1.4.2, 3.1.4.3, 3.1.6, 3.1.6.2, 3.1.6.3, 3.1.9.8, 3.3, 3.3.2, 3.3.2.2, 3.3.2.4, 3.3.2.9, 3.3.3.2, 3.3.3.2.1, 3.3.3.2.2, 3.3.3.2.3, 3.3.3.2.4, 3.3.3.2.7, 3.4, 3.4.1, 3.4.1.1, 3.4.1.2, 3.5.1, 3.5.1.1, 3.5.1.2.a.v, 3.5.1.2.c, 3.5.1.6, 3.5.8, 3.5.8.4, 3.5.8.5, 3.5.8.6, 3.5.9, 4.1.1.1, 4.1.1.2, 4.1.1.3, 4.1.2, 4.4, 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.4.1.4, 4.4.1.6, 4.4.1.7, 4.4.1.8, 4.4.1.10, 4.6, 4.6.1, 4.6.1.1, 4.6.1.2, 4.6.1.4, 4.6.1.5, 4.6.1.6, 5.1.3, 5.1.5, 5.6, 5.6.1, 7.1.2 and associated schedules and definitions;

GGH Transportation Plan

4. Should the OPA and ZBA have regard to the 2051 Greater Golden Horseshoe Transportation Plan, and if so, do these instruments have proper regard for them?

Railway Operations

5. Do the OPA and ZBA give consideration to CN's statutory rights, obligations and the legislation that governs CN operations including sections 5, 95, 95.1, 95.2, 95.3, and 98 of the Canada Transportation Act (S.C. 1996), c. 10 and sections 8(1), 19, 47.1 of the Railway Safety Act (1985, c.32) and associated guidelines and regulations? Specifically, in relation to its mandate to carry products, including dangerous goods, operate a railway, noise, vibration and odour emissions, and its ability to add additional infrastructure on railway lands?

Freight Supportive Guidelines

6. Do the Province of Ontario's Freight Supportive Guidelines apply to the development application, and if so, does the proposed development meet the requirements of these Guidelines?

FCM/RAC Guidelines / NPC-300 / Federal Guidelines

7. Do the proposed OPA and ZBA have regard to the Federation of Canadian Municipalities/Railway Association of Canada Guidelines for New Development in Proximity to Railway Operations ("FCM/RAC Guidelines")? How should the FCM/RAC Guidelines be applied?

8. Should the acoustic assessment take into consideration the frequency content/character of the noise sources and the following federal documents:

• "Guidelines for the Resolution of Complaints Concerning Railway Noise and Vibration", Canadian Transportation Agency, October, 2008;
• "Railway Noise Measurement and Reporting Methodology", Canadian Transportation Agency, August 2011; and
• "Guidance for Evaluating Human Health Impacts in Environmental Assessment: NOISE", Health Canada, January 2017?

9. Do the proposed OPA and ZBA have regard to NPC-300 and its requirements, including acoustic assessment and feasibility under Class 1 and Class 4 and in the context of the role of the Canadian Transportation Agency in addressing noise complaints?

10. Do the proposed OPA and ZBA rely on an appropriate assessment of the transportation noise sources in the area (i.e. all sources and with current data) and the required building component requirements to meet the applicable indoor noise criteria?

11. Do the proposed OPA and ZBA rely on an appropriate consideration of the cumulative impact of all transportation noise sources and the required acoustical mitigation measures?

Mitigation/Implementation

12. If the proposed development is approved, how will any required mitigation measures be secured and enforced by the municipality?

13. Is the use of condominium declarations an appropriate means to secure long term mitigation measures? If it is not, should the development be approved?

14. If development of sensitive land uses is feasible and good planning, should any private agreements under NPC-300, environmental easements and agreements under the Industrial Mining and Lands Compensation Act be required for the residential development of the Subject Lands?

15. Is residential development or other sensitive uses on the Subject Lands in the proposed OPA and ZBA good planning?

16. If residential development is feasible on all or a portion of the Subject Lands, what policies should be contained in the OPA to ensure the implementation and maintenance of any necessary on-site receptor mitigation and phasing to address any environmental and land use impacts?

17. What planning tools and agreements are needed and may be utilized to secure implementation of recommendations of technical studies and other requirements identified through the review and consideration of the OPA and ZBA?

Drainage

18. Have drainage patterns and related considerations been satisfactorily considered and addressed?

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence. The Order of Evidence will be described in greater detail in the Work Plan that is filed with the Tribunal.

1. Whitehorn Investments Limited et al. (Applicant/Appellant)

2. Parties in Opposition to Applicant/Appellant.

3. Reply by Whitehorn Investments Limited et al (if necessary)

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

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. If an unincorporated group wishes to become a party, 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 authorization 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, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal's Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as parties can.

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party 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 intends to present as evidence at the hearing.

Witness Statements:

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 the witness will discuss and the witness' opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert's (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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person's or group's background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness' evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.