Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 09, 2023
CASE NO(S).: OLT-22-004757
PROCEEDING COMMENCED UNDER subsection 42(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Bayview Hospitality Holdings Ltd.
Subject: Determination of Value of Land – Payment Under Protest
Description: To facilitate the development of three 10 storey mixed use buildings
Reference Number: D07-20-0171
Property Address: 6301 Campeau Drive
Municipality/UT: City of Ottawa
OLT Case No.: OLT-22-004757
OLT Lead Case No.: OLT-22-004757
OLT Case Name: Bayview Hospitality Holdings Ltd. v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 41(12.0.1) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Bayview Hospitality Holdings Ltd.
Subject: Site Plan – Appeal Requirements of Approval
Description: To facilitate the development of three 10 storey mixed use buildings
Reference Number: D07-12-20-0171
Property Address: 6301 Campeau Drive
Municipality/UT: City of Ottawa
OLT Case No.: OLT-23-000829
OLT Lead Case No.: OLT-22-004757
Heard: November 1, 2023, by video hearing
APPEARANCES:
Parties
Counsel
Bayview Hospitality Holdings Inc.
C. McConkey P. Osterhout U. Melinz
City of Ottawa
T. Marc
MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY AND A. MASON ON NOVEMBER 1, 2023 AND ORDER OF THE TRIBUNAL
1The Tribunal convened the first Case Management Conference (“CMC”) in respect of the appeal by Bayview Hospitality Holdings Inc. (‘Appellant”). The Appellant has filed an appeal pursuant to s. 42(12) of the Planning Act (“Act”) against the City of Ottawa (“City”) regarding a dispute with the City on the value of land for park land and a payment under protest. There is a corresponding matter regarding an appeal of the Site Plan Application (“SPA”) pursuant to s. 41(12.0.1) of the Act (Tribunal Case No. OLT-23-000829). The property is municipally known as 6301 Campeau Drive in the City of Ottawa (“subject property”).
2The Tribunal served notice on September 29, 2023, and no further notice is required.
3There are no additional requests for Party or Participant status at this proceeding.
BACKGROUND
4Ms. McConkey, Counsel for the Appellant, provided background with respect to the appeal for the benefit of the Tribunal and Parties. The proposal is a mixed-use development consisting of high-rise and townhome built forms and commercial uses. The dispute that is the subject of this proceeding relates to the amount of cash-in-lieu payment which the City requires for park land purposes. The appeal against the SPA is in respect of the City’s conditions that relate to park land matters in the site plan agreement.
5Ms. McConkey had three requests of the Tribunal:
a. The scheduling of a virtual merits hearing lasting five days in mid-2024.
b. The scheduling of Tribunal-led mediation early in 2024. This mediation is encouraged by the Tribunal. All Parties consented to and understood it is in their hands to initiate mediation.
c. A draft Procedural Order (“PO”) is complete, save and except the final refinement of Issues in the Issues List and the establishment of dates for the filing of necessary material. All Parties advised the Tribunal, that a PO will be submitted within a week of the date of this CMC. With this commitment, the Tribunal is agreeable to schedule a Merits Hearing.
TRIBUNAL FINDINGS
6The Tribunal is prepared to schedule a five-day Merits Hearing on these matters.
7Ms. McConkey will finalize and submit the PO to the Tribunal no later than 4:30 p.m. on Tuesday, November 7, 2023. Should the PO not be submitted in that time frame, this Tribunal may consider releasing the hearing dates.
8Should the Tribunal-led mediation be successful, the Parties will notify the Tribunal through the Case Coordinator as soon as possible so that hearing dates may be released for the use of other Tribunal matters.
MERIT HEARING TECHNICAL DETAILS
9A five-day Merits Hearing will convene on Monday, July 8, 2024, by Video Hearing at 10 a.m.
10Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/719383509
Access code: 719-383-509
11Parties 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
12Persons 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 719-383-509.
13Individuals 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
14Accordingly, the TRIBUNAL ORDERS THAT:
a. A Merits Hearing will convene on Monday, July 8, 2024, by Video Hearing at 10 a.m.
b. The Procedural Order attached as Schedule 1 is in full force and effect.
15The Tribunal Panel is not seized.
16There is no further notice.
“Bryan W. Tuckey”
BRYAN W. TUCKEY
MEMBER
“A. Mason”
A. Mason
member
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
SCHEDULE 1
CASE NO(S).: OLT-22-004757
PROCEEDING COMMENCED UNDER subsection 42(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Applicant/Appellant: Bayview Hospitality Holdings Ltd.
Subject: Determination of Value of Land – Payment Under Protest
Description: To facilitate the development of three 10 storey mixed use buildings
Property Address/Description: 6301 Campeau Drive
Municipality: City of Ottawa
Municipal File No.: D07-20-0171
OLT Lead Case No.: OLT-22-004757
OLT Case No.: OLT-22-004757
OLT Case Name: Bayview Hospitality Holdings Ltd. v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 41(12.0.1) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Applicant/Appellant: Bayview Hospitality Holdings Ltd.
Subject: Site Plan – Appeal Requirements of Approval
Description: To facilitate the development of three 10 storey mixed use buildings
Property Address/Description: 6301 Campeau Drive
Municipality: City of Ottawa
Municipal File No.: D07-20-0171
OLT Lead Case No.: OLT-22-004757
OLT Case No.: OLT-23-000829
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 July 8, 2024, at 10 a.m.
The parties’ initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1.
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 Monday May 13, 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.
Expert witnesses in the same field shall have a meeting on or before Friday June 7, 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 Friday June 21, 2024.
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 Friday May 24, 2024, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before Friday May 24, 2024, participants 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 Tuesday May 21, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Monday June 17, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Monday June 3, 2024, 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 Monday June 17, 2024.
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 June 28, 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.
All filings shall be submitted electronically and in hard copy, unless otherwise directed by the Tribunal. 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.
Attachment 1
List of Parties
Party
Counsel / Representative
Bayview Hospitality Holdings Ltd. (Applicant / Appellant)
Soloway Wright LLP 700-427 Laurier Avenue West Ottawa, ON K1R 7Y2 Ursula K. Melinz Tel: 613-782-3214 Fax:613-238-8507 melinzu@solowaywright.com Crystal McConkey Tel: 613-782-3217 Fax:613-238-8507 cmcconkey@solowaywright.com
City of Ottawa (Respondent)
Timothy Marc Tel: 613-580-2424 x 21444 Timothy.marc@ottawa.ca
Attachment 2
Issues List
Has Bayview Hospitality Holdings Ltd. (“Bayview”) demonstrated that its parkland obligations for the development of 6301 Campeau Drive, Ottawa, were previously satisfied?
If parkland obligations have not been satisfied, what is the appropriate land area to be used for calculating parkland obligations owing for the development of 6301 Campeau Drive?
If parkland obligations have not been satisfied, is it appropriate for the City of Ottawa to require a payment for cash in lieu of parkland where the public use of public path and privately owned open space land is also being requested as a condition of development?
a. If a cash-in-lieu of parkland payment is required what is an appropriate amount?
b. If it is not appropriate for the City to require cash in lieu of parkland where land is available and offered for conveyance of parkland, how much land is appropriate for conveyance in order to satisfy parkland obligations for 6301 Campeau Drive?
- Is it reasonable for the City to condition Bayview to construct a public pedestrian trail on 6301 Campeau Drive, in addition to requiring cash in lieu of parkland payment?
a. If it is reasonable, who ought to bear the cost for constructing a public pedestrian trail on 6301 Campeau Drive?
i. If Bayview, is Bayview entitled to parkland credit?
b. If it is reasonable, who ought to bear the cost for maintaining and insuring a public pedestrian trail on 6301 Campeau Drive?
i. If Bayview, is Bayview entitled to parkland credit?
- Does the City have jurisdiction to condition Bayview to construct a public pedestrian trail on and near 6475 Campeau Drive to connect to City parks and streets as a condition of development of 6301 Campeau Drive?
a. If so, is the condition reasonable?
b. If it is reasonable, who ought to bear the cost for constructing a public pedestrian trail on and near 6475 Campeau Drive?
i. If Bayview, is Bayview entitled to parkland credit?
c. If it is reasonable, who ought to bear the cost for maintaining and insuring a public pedestrian trail on 6475 Campeau Drive?
i. If Bayview, is Bayview entitled to parkland credit?
Has Bayview demonstrated that its parkland obligations for the development of 6475 Campeau Drive, Ottawa, have been satisfied?
Has Bayview demonstrated that parkland has been provided for 6301 and 6475 Campeau Drive?
Attachment 3
Order of Evidence
Bayview Hospitality Holdings Ltd. (Applicant/Appellant)
City of Ottawa
Applicant/Appellant Reply, if any