McCormick Village Inc. v. London (City), 2023 CanLII 106647

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

November 7^th, 2023

CASE NO.:

OLT-22-004698 OLT-22-004699

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant:

McCormick Village Inc.

Subject:

Proposed Official Plan Amendment No. 74

Description:

To permit OPA and ZBA to redevelop an existing cookie factory with mixed-use housing

Property Address:

1156 Dundas Street

Municipality/UT:

City of London

Reference Number:

C.P-1512 (bv)-261

OLT Case No.:

OLT-22-004698

OLT Lead Case No.:

OLT-22-004698

OLT Case Name:

McCormick Village Inc. v. London (City)

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

Applicant/Appellant:

McCormick Village Inc.

Subject:

By-law No. Z.-1-223068

Description:

To permit OPA and ZBA to redevelop an existing cookie factory with mixed-use housing

Property Address:

1156 Dundas Street

Municipality/UT:

City of London

Reference Number:

Z-1-223068

OLT Case No.:

OLT-22-004699

OLT Lead Case No.:

OLT-22-004698

BEFORE:

CARMINE TUCCI

Wednesday, the 7^th

MEMBER

day of November, 2023

THE TRIBUNAL ORDERS that further to the Decision issued on August 22, 2023 the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on February 5, 2024. The Tribunal has set aside 5 days for the hearing.

“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.

SCHEDULE A Procedural Order

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 February 5, 2024 at 10:00 a.m. and is scheduled for a total of Five (5) days.

3. The parties’ initial estimation for the length of the hearing is five (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 (see the sample procedural order 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 Friday, November 10, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before Friday, November 24, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before December 8, 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 Friday, December 22, 2023, 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 Friday, December 22, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before Wednesday, December 20, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, January 12, 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 on or before Friday, January, 12, 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 Friday, January 26, 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 Monday, January 29, 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 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.

BEFORE:

Name of Member: Carmine Tucci

Date: November 7, 2023

____________________________

TRIBUNAL REGISTRAR

ATTACHMENT 1

List of Appellants/Parties/Participants

APPELLANTS

1. McCormick Villages Inc.

Cliff Zaluski President cliff@sierraconstruction.ca

Legal Counsel for McCormick Villages

Siskinds LLP

275 Dundas Street, Unit 1

London, ON N6B 3L1

Paula Lombardi

519.660.7878

paula.lombardi@siskinds.com

PARTIES

1. Approval Authority – City of London

315 King Street West Chatham, ON N7M 5K8

Legal Counsel for the City:

Legal Services City of London 300 Dufferin Avenue

London, ON N6B 1Z2

Aynsley Hovius, Solicitor

519.639.7408 ahovius@london.ca

PARTICIPANTS

1. None Identified

ATTACHMENT 2

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/or argument at the hearing.

ISSUES LIST

1. Does the proposed development have sufficient regard to the matters of provincial interest set out in section 2 of the Planning Act, including sections 2(h), (j), (p), and (r).

2. Are the adopted Zoning By-law Amendment “H18” (Maximum Height 18 m) restriction and Maximum Density of 125 units per hectare for Block 3:

a. Consistent with the Provincial Policy Statement, including sections 1.0, 1.1.1, 1.1.2, 1.1.3, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.2.1, 1.4.3, 1.6.1, 1.7.1(e) and 2.6.1?

b. In general conformity with London Plan policies 43_, 52_, 54_, 55_, 57_, 58_, 59_, 60_, 61_, 79_, 80_, 83_, 86_, 916_, 1058_, 1059_, and 1636_?

c. In general conformity with McCormick Area Secondary Plan policies 20.8.1.3, 20.8.1.4, 20.8.2.2, 20.8.2.3,20.8.2.4, 20.8.3.4, 20.8.4.6, and 20.8.5.2?

d. Appropriate taking into account any potential impacts on the adjacent properties?

3. Does the proposed public walkway corridors constitute “land conveyed or dedicated for parkland” as described in the Planning Act, including section 51.1?

4. Does Section 51(25(c)) of the Planning Act authorize the City of London to impose a condition requiring the transfer of lands solely for use in the realignment of Ashland Avenue?

5. Does the proposed development represent good planning?

ATTACHMENT 3: ORDER OF EVIDENCE

1. Appellant, McCormick Villages Inc.

2. Approval Authority, City of London

3. Appellant, McCormick Villages Inc. Reply Only

ATTACHMENT 4: SUMMARY OF DATES

DATE

EVENT

Friday, November 10, 2023

Exchange of witness lists (names, disciplines, and order to be called)

Friday, November 24, 2023

Experts meeting prior to this date

Friday, December 6, 2023

Agreed Statement of Facts

Participant Statements – Not applicable

Friday, December 22, 2023

Exchange of Witness Statements, summoned witness outlines, and Expert Reports

Wednesday, December 20, 2023

Confirmation of Hearing Dates Required

Friday, January 12, 2024

Exchange of Reply Statements

Friday, January 12, 2024

Exchange of Visual Evidence (if any)

Friday, January 26, 2024

Finalize Joint Document Book

Monday, January 29, 2024

Final Hearing Plan filed with the Tribunal

Monday, February 5, 2024

Hearing commences

ATTACHMENT 5

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.