Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 14, 2023

CASE NO(S).: OLT-23-000367

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

Applicant/Appellant: 785 Wonderland Road Inc.

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

Description: To permit a mixed-use development on the Westmount Shopping Centre lands consisting of townhouses, apartment buildings and commercial uses

Reference Number: OZ-9565

Property Address: 755, 765, 785, 815 Wonderland Road South

Municipality/UT: London/Middlesex

OLT Case No.: OLT-23-000367

OLT Lead Case No.: OLT-23-000367

OLT Case Name: 785 Wonderland Road Inc. v. London (City)

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

Applicant/Appellant: 785 Wonderland Road Inc.

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

Description: To permit a mixed-use development on the Westmount Shopping Centre lands consisting of townhouses, apartment buildings and commercial uses

Reference Number: OZ-9565

Property Address: 755, 765, 785, 815 Wonderland Road South

Municipality/UT: London/Middlesex

OLT Case No.: OLT-23-000368

OLT Lead Case No.: OLT-23-000367

Heard: August 9, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
785 Wonderland Road Inc.	Leo Longo
City of London	Aynsley Hovius and Christina McCreery

MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON AUGUST 9, 2023 AND ORDER OF THE TRIBUNAL

1The matter before the Ontario Land Tribunal (the “Tribunal”) was with respect to the Appeals under ss. 22(7) and 34(11) of the Planning Act for the failure of London City Council to make a decision within the statutory timeframe.

2The purpose of this first Case Management Conference (the “CMC”) was to receive updates from all Parties to organize the hearing of these Appeals.

3785 Wonderland Road Inc. applied to the City of London (the “City”) to permit a mixed-use development on the Westmount Shopping Centre. The development would incorporate new residential development, including townhouses and apartment buildings with the existing shopping centre building and parking areas. Approximately 20,000 square metres of commercial floor area (office) and 900 residential units are proposed.

4The subject property is located at 755-815 Wonderland Road North and is known as the Westmount Shopping Centre. The site is approximately 11.57 hectares in size. It currently contains a two-storey building containing a variety of commercial, office, restaurant, commercial recreation and cinema uses. There is a large surface parking area as well as a two-level underground parking garage. It is surrounded by Village Green Avenue to the north, Viscount Road to the south, Wonderland Road South to the east and Woodcrest Boulevard to the west.

5The subject lands are designated as ‘Shopping Area’ Place Type in the London Official Plan. This designation permits commercial and residential uses, and encourages mixed use buildings; however, not at the scale proposed. The proposed Official Plan Amendment would add site specific provisions to the Shopping Area Place Type, permitting building heights of 16 stories, and increasing the gross floor area maximum to 40,000 square metres.

6The proposed Zoning By-law Amendment would amend the City’s Zoning By-law from 'Regional Shopping Area (RSA2(3))' to a site specific RSA2(_) zone, permitting the office capacity and adding permitted uses such as Business Service Establishments, Automobile Sales Boutiques, Craft Breweries, Artisan Workshops, and Call Centres. Commercial and Private Schools and Kennel will continue to be permitted as special provision. The City’s Zoning By-law would also be amended to allow Residential R5-6 and R9-7 zones to permit the residential uses, with a Height ("H") provision to increase the permitted building height to 65 metres or 16-stories.

7The Appellant submitted an Affidavit of Service, sworn by Natalie Hickey, and is marked as Exhibit 1.

8The Tribunal received six (6) requests for Participant status:

1. David and Nancy Hessel;
2. Delia and Art Bouffard;
3. Beth Schroeder;
4. Wendy Murray;
5. Willeta Biddle; and
6. Gary and Diane Price.

9The Tribunal granted Participant status with no objections from the Parties.

10The Tribunal was advised that the Parties are seeking a five (5) day Hearing.

11The Tribunal hereby schedules a Hearing of these Appeals commencing on Monday, March 18, 2024 at 10 a.m. Five (5) days have been set aside. The Hearing is scheduled to proceed by video.

12Parties 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/996288525

Access code: 996-288-525

13Parties 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

14Persons 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) 497-9391 or (Toll Free) 1-888-455-1389. The access code is the same as the access code noted above.

15Individuals 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.

16An updated Procedural Order and Issues List is herein included as Schedule 1.

17No further notice will be given.

18The Member is not seized.

“Carmine Tucci”

CARMINE TUCCI

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-23-000367

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

Applicant/Appellant: 785 Wonderland Road Inc.

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

Description: To permit a mixed-use development on the Westmount Shopping Centre lands consisting of townhouses, apartment buildings and commercial uses

Reference Number: OZ-9565

Property Address: 755, 765, 785, 815 Wonderland Road South

Municipality/UT: London/Middlesex

OLT Case No.: OLT-23-000367

OLT Lead Case No.: OLT-23-000367

OLT Case Name: 785 Wonderland Road Inc. v. London (City)

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

Applicant/Appellant: 785 Wonderland Road Inc.

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

Description: To permit a mixed-use development on the Westmount Shopping Centre lands consisting of townhouses, apartment buildings and commercial uses

Reference Number: OZ-9565

Property Address: 755, 765, 785, 815 Wonderland Road South

Municipality/UT: London/Middlesex

OLT Case No.: OLT-23-000368

OLT Lead Case No.: OLT-23-000367

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 March 18, 2024 at 10:00 a.m. at the following location:

https://meet.goto.com/996288525

Access code: 996-288-525

Audio only telephone line: +1 (647) 497-9391 or (Toll Free) 1-888-455-1389

Access code: 996-288-525

3. 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 procedural order deadlines are found in Attachment 1.

4. The parties and participants identified at the case management conference are set out in Attachment 2. Unless the Tribunal directs otherwise, a person who wishes to become a party or participant at the hearing who is not listed in Attachment 2 must make the necessary motion to the Tribunal. The Tribunal may refuse to grant such status.

5. A preliminary list of issues to be adjudicated at the hearing are set out in the Issues List attached as Attachment 3. The parties will finalize this Issues List on or before November 28, 2023. Subsequent to the finalization of the Issues List, there will be no further changes 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 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 the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. The meaning of the terms used in this Procedural Order are identified in Attachment 5.

8. Any person granted status 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.

9. 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

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 their intended witnesses. This list must be delivered on or before December 1, 2023 and in accordance with paragraph 23 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.

11. Expert witnesses in the same field shall have a meeting on or before December 11, 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 15, 2023.

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. Copies of this must be provided as in paragraph 15 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.

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 15 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 15 below.

14. On or before January 12, 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 23 below.

15. On or before January 12, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before February 2, 2024, and in accordance with paragraph 23 below.

17. On or before February 16, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. On or before February 23, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 1, 2024.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 8, 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.

23. 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.

24. 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.

No further notice is required.

So orders the Tribunal.

ATTACHMENT 1 SUMMARY OF DATES

DATE	EVENT
November 28, 2023	Finalize Issues List
December 1, 2023	Exchange of witness lists (names, disciplines, CVs included)
December 11, 2023	Experts meeting prior to this date
December 15, 2023	Agreed Statement of Facts
January 12, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
February 2, 2024	Exchange of response to Witness Statements (if any)
February 16, 2024	Exchange of visual evidence (if any)
February 23, 2024	Deadline to advise OLT of any reductions in hearing time.
March 1, 2024	Finalize & submit Joint Document Book
March 8, 2024	Hearing Plan filed with the Tribunal
March 18, 2024	Hearing commences

ATTACHMENT 2 LIST OF PARTIES AND PARTICIPANTS

PARTIES:

APPLICANT/APPELLANT

785 Wonderland Road Inc. Leo Longo Aird & Berlis LLP Email: llongo@airdberlis.com

MUNICIPALITY

City of London Aynsley Hovius City Legal Services Email: ahovius@london.ca

PARTICIPANTS:

Wendy Murray Garry & Diane Price Willeta Biddle David & Nancy Hessel Art & Della Bouffard Beth Schroeder

ATTACHMENT 3 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/or argument at the hearing.

Section 2 of the Planning Act

1. Does the proposed development have appropriate regard for matters of provincial interest, as set out in section 2, specifically (f), (h), (j), (k), (l), (p), (q) & (r)?

Provincial Policy Statement

2. Is the proposed development consistent with the following sections of the Provincial Policy Statement 2020:

a. 1.1.1(a)(b)(e) b. 1.1.3.2(a)(e)(f) c. 1.1.3.3 d. 1.1.3.4 e. 1.1.3.6 f. 1.3.1 g. 1.3.2.1 h. 1.4.1?

The London Plan

3. Does the proposed development conform to the following London Plan policies:

a. 128 b. 194 c. 790 d. 791 e. 799-14 f. 874 g. 876_3 h. 876_4 i. 876_5 j. 877 k. 878 l. 879 m. 882 n. 883 o. 1730 p. 1731 q. 1732 r. Table 8?

4. Is the proposed site-specific policy seeking an increase in office capacity on the subject lands appropriate given the current zoning permissions and scale of existing building?

Zoning Issues

5. Is the proposed maximum density of 250 units per hectare for the portions of the subject lands appropriate?

6. Is the proposed maximum height of 16-storeys appropriate for the portion of the subject lands addressing Wonderland Road South?

7. Does the proposed zoning appropriately transition from higher intensity uses along the major roadways to the medium and low density residential uses adjacent the subject lands?

8. Is the proposed office capacity cap appropriate for the subject lands?

9. Should the following holding provisions be applied:

a. h-5: public site plan review; b. h-54: noise mitigation for residential along arterial; c. h-63: noise mitigation between residential and commercial; d. h-123: Urban Design Brief and review by the Urban Design Peer Review Panel; e. h-149: sanitary and stormwater servicing reports; f. h-213: sanitary servicing capacity and sewer outlet is available; g. h-(_): new holding provision to require a master plan be prepared to the City’s satisfaction.

ATTACHMENT 4 ORDER OF EVIDENCE

1. Applicant/Appellant - 785 Wonderland Road Inc.
2. City of London
3. Applicant/Appellant - 785 Wonderland Road Inc., in reply

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.

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