Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 15, 2023

CASE NO(S).: OLT-22-003362 (Formerly PL190422)

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

Applicant and Appellant: Aspen Garden Bowmanville Ltd Subject: Application to amend Zoning By-law No. 84-63- Refusal or neglect of Town of Clarington to make a decision Description: To permit the construction of a 136-unit residential subdivision Reference Number: ZBA2018-0027 Property Address: Lot 17, Concession 1 Municipality/UT: Municipality of Clarington OLT Case No.: OLT-22-003362 Legacy Case No.: PL190422 OLT Lead Case No.: OLT-22-003362 Legacy Lead Case No.: PL190422 OLT Case Name: Aspen Garden Bowmanville Ltd. v. Clarington (Municipality)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Aspen Garden Bowmanville Ltd Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit the construction of a 136-unit residential subdivision Reference Number: S-C 2018-0001 Property Address: Lot 17, Concession 1 Municipality/UT: Municipality of Clarington OLT Case No.: OLT-22-003363 Legacy Case No.: PL190423 OLT Lead Case No.: OLT-22-003362 Legacy Lead Case No.: PL190422

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Aspen Garden Bowmanville Ltd. Subject: Site Plan Description: To permit the construction of a 136-unit residential subdivision Reference Number: SPA 2019-0005 Property Address: Lot 17, Concession 1 Municipality/UT: Municipality of Clarington OLT Case No.: OLT-22-003364 Legacy Case No.: PL190424 OLT Lead Case No.: OLT-22-003362 Legacy Lead Case No.: PL190422

Heard: December 1, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Aspen Garden Bowmanville Ltd.	Evan Barz Chris Barnett (in absentia)
Municipality of Clarington	Robert Woon (as agent) Robert Maciver (in absentia)
Region of Durham	Robert Woon

MEMORANDUM OF ORAL DECISION DELIVERED BY S. VINCENT AND F. LAVOIE ON DECEMBER 1, 2023 AND ORDER OF THE TRIBUNAL

1This Decision and Order arises from the third Case Management Conference (“CMC”) held regarding an appeal filed by Aspen Garden Bowmanville Ltd. (the “Appellant”) pursuant to sections 34(11), 51(34), and 41(12) of the Planning Act, R.S.O. 1990, c. P.13, in respect of the failure by Council for the Municipality of Clarington (the “Municipality”) to make a decision on the Appellant’s revised applications for Zoning By-law Amendment, Draft Plan of Subdivision, and Site Plan Control to create 113 residential units on the Appellant’s property, which is legally described as Lot 17, Concession 1 (the “Property”).

2The Tribunal had previously directed the parties to file written submissions outlining the explicit jurisdiction of the Tribunal to grant Bowmanville Village Inc (“BVI”). Party Status. The Parties advise they are continuing their discussions on the cost sharing issue and with regards to the jurisdictional issue of BVI’s Party Status request. In the event the Parties cannot agree, the Tribunal directs them to advise the case coordinator to schedule a Telephone Conference Call (“TCC”).

3With respect to the issue of which version of the Provincial Policy Statement applies, the Parties jointly submit that the 2020 PPS applies to these appeals.

4The Parties also filed a draft Procedural Order (“PO”) and Issues List, which the Tribunal hereby approves. They requested five days be set aside for the Merit Hearing.

5The Tribunal scheduled a five-day Merit Hearing commencing on Monday, May 6, 2024, at 10 a.m.

6Parties 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://meet.goto.com/680885805

Access Code: 680-885-805

7Parties 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.

8Persons 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 680-885-805.

9Individuals 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 Video Hearing 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

10THE TRIBUNAL ORDERS:

a. That the draft Procedural Order and Issues List appended as Schedule 1 to this Order and Decision are approved;

b. That the Hearing on the Merits will commence by video on the date set out above in this decision. Five days have been set aside for the Hearing; and

c. This Panel is not seized.

“S. Vincent”

S. VINCENT VICE-CHAIR

“F. Lavoie”

F. LAVOIE 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.: OLT-23-003362 (Formerly PL190422)

ONTARIO LAND TRIBUNAL

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

Applicant and Appellant: Aspen Garden Bowmanville Ltd. Subject: Request to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the construction of a 136-unit residential subdivision Municipal Reference Number: ZBA2018-0027 Property Address/Description: Lot 17, Concession 1 Municipality: Municipality of Clarington / Region of Durham OLT Case No.: OLT-22-003362 Legacy Case No.: PL190422 OLT Lead Case No.: OLT-22-003362 Legacy Lead Case No.: PL190422 OLT Case Name: Aspen Garden Bowmanville Ltd. v Clarington (Municipality)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Aspen Garden Bowmanville Ltd. Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit the construction of a 136-unit residential subdivision Municipal Reference Number: S-C 2018-0001 Property Address/Description: Lot 17, Concession 1 Municipality: Municipality of Clarington / Region of Durham OLT Case No.: OLT-22-003363 Legacy Case No.: PL190423 OLT Lead Case No.: OLT-22-003362 Legacy Lead Case No.: PL190422

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Aspen Garden Bowmanville Ltd. Subject: Site Plan Description: To permit the construction of a 136-unit residential subdivision Municipal Reference Number: SPA 2019-0005 Property Address/Description: Lot 17, Concession 1 Municipality: Municipality of Clarington / Region of Durham OLT Case No.: OLT-22-003364 Legacy Case No.: PL190424 OLT Lead Case No.: OLT-22-003362 Legacy Lead Case No.: PL190422

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 May 6, 2024 at 10 a.m.

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 2.

5. The issues are set out in the Issues List attached as Attachment 4. 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 witnesses on or before February 6, 2024, 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. Any party who intends to challenge the qualifications of an expert witness shall bring a written motion for the challenge on or before February 18, 2024.

10. Expert witnesses in the same field shall have a meeting on or before March 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 March 15, 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 22, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties, the participants, and to the OLT Case Co-ordinator and in accordance with paragraph 23 below.

14. On or before March 22, 2024, a participant shall provide copies of their written participant statement to the other parties and the OLT Case Co-ordinator 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.

15. The Parties may provide to all other parties and the OLT Case Co-ordinator a written response to any written evidence before April 8, 2024.

16. On or before April 1, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before April 26, 2024, the parties shall provide copies of their visual evidence to all of the other parties, the participants, and the OLT Case Co-ordinator 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. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 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 April 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. At the time of cross-examination, the Parties shall provide to all Parties and the Tribunal, in a password protected format, any documents that will be used by the Party in cross-examination of an opposing Party's witness, unless the presiding Member directs otherwise. The password protected documents shall only be accessible to the Tribunal and the other Parties if they are introduced as evidence at 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.

So orders the Tribunal.

Attachment to Sample Procedural Order

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.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
February 6, 2024	Exchange of witness lists (names, disciplines and order to be called)
February 18, 2024	Last date to challenge qualifications of expert witnesses
March 7, 2024	Last date of Expert Witness Meetings
March 15, 2024	Agreed Upon Statement of Facts
March 22, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
April 8, 2024	Exchange of Reply Witness Statements (if any)
April 1, 2024	Notification to Tribunal if all hearing dates required
April 26, 2024	Exchange of Visual Evidence (if any) and Joint Document Book
April 29, 2024	Hearing Plan
May 6, 2024	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. Aspen Garden Bowmanville Ltd.
2. Municipality of Clarington
3. Region of Durham

PARTICIPANTS

1. John Colville

ATTACHMENT 3

ORDER OF EVIDENCE

1. Aspen Garden Bowmanville Ltd.
2. Municipality of Clarington
3. Region of Durham
4. Aspen Garden Bowmanville Ltd. (Reply)

ATTACHMENT 4

ISSUES LIST

NOTE: THE IDENTIFICATION OF AN ISSUE ON THIS ISSUES LIST DOES NOT MEAN THAT ALL PARTIES AGREE THAT SUCH AN ISSUE, OR THE MANNER IN WHICH IT IS APPROPRIATE OR RELEVANT FOR THE PROPER DETERMINATION OF THE APPEALS. THE EXTENT OF THE APPROPRIATENESS AND/OR RELEVANCE OF THE ISSUE MAY BE A MATTER OF EVIDENCE AND/OR ARGUMENT AT THE HEARING.

1. Are the applications consistent with Policy 1.6.6 and 2.2.1(i) of the Provincial Policy Statement?

2. Do the applications conform with Policy 3.2.7 of the Growth Plan for the Greater Golden Horseshoe?

3. Do the applications conform with Sections 2.3.16, 2.3.20, 2.3.43, 5.2.4, 8B.2.3(f), and 14.7 of the Durham Region Official Plan (ROP)?

4. Do the applications conform with Chapter 3, in particular Sections 3.4.16 and 3.4.17, Chapter 9, in particular Section 9.4.5h) of the Clarington Official Plan?

5. Does the proposed plan of subdivision satisfy the criteria of subsection 51(24) of the Planning Act, particularly subsections 51(24)(a) and (h)?

6. Have the impacts of the proposed development been adequately studied, and will the impacts be appropriately mitigated, in particular:

(a) have the development limits/constraints of the site been appropriately identified, including evaluation of the Vegetation Protection Zone related to the woodland features and wildlife habitat?

(b) are the proposed sight triangles and road widths adequate and do they meet municipal standards?

(c) does the proposed grading of the site exceed the maximum 5% slope?

(d) does the proposal demonstrate the appropriateness of altering the drumlin landform feature and the use of retaining walls through a Slope Stability Analysis and Geotechnical Report?

(e) have appropriate Functional Servicing and Stormwater Management Reports been provided to confirm that the proposed development meets applicable standards and guidelines?

7. Can the proposed development meet applicable technical standards and guidelines, including:

(a) are the proposed retaining walls appropriate, and do they meet municipal standards and guidelines?

(b) is the proposed grading plan appropriate, in particular as it relates to the maximum permissible slope?

(c) has an Environmental Impact Statement (EIS) been prepared that appropriately addresses limits of development, and Vegetation Protection Zones?

(d) have appropriate Functional Servicing and Geotechnical Reports been submitted?

(e) is the amenity space appropriately situated on the site, and is it accessible and free from undue constraint and has it been adequately demonstrated that the design of the medium density block achieves the requirements of the “Amenity Guidelines for Medium and High Density Residences”?

(f) has it been adequately demonstrated that Low Impact Development measures are an appropriate treatment train approach for stormwater management on the site?

(g) has it been adequately demonstrated that the applications meet the Draft Plan of Subdivision and Site Plan Checklists contained within the “Green Development Framework and Implementation Plan”?

8. Has the appellant appropriately addressed the site servicing and engineering comments from the Region?

9. Does the proposal provide for appropriate on-street parking?

10. If the proposal is approved in principle, what are the appropriate zoning categories and performance standards for the zoning by-law?

11. If the proposal is approved, should the proposed zoning by-law amendment be subject to holding conditions in connection with provision of services, measures to protect natural areas, measures to mitigate the impact of development, or submission of technical studies?

12. If a draft plan of subdivision and site plan is approved, what are the appropriate draft plan conditions and conditions of approval?

13. Do the applications represent good land use planning?

ATTACHMENT 5

CONTACT INFORMATION FOR PARTIES

1. Aspen Garden Bowmanville Ltd.

Chris Barnett Osler, Hoskin & Harcourt LLP 100 King Street West Suite 6200 Toronto, ON M5X 1B8 CBarnett@osler.com

Evan Barz Osler, Hoskin & Harcourt LLP 100 King Street West Suite 6200 Toronto, ON M5X 1B8 EBarz@osler.com

2. Municipality of Clarington

Robert Maciver Municipality of Clarington 40 Temperance Street Bowmanville, ON L1C 3A6 rmaciver@clarington.net

3. Regional Municipality of Durham

Robert Woon The Regional Municipality of Durham 605 Rossland Road East Whitby, ON L1N 6A3 Robert.woon@durham.ca