Phoenix Harbour Old Montreal Road Inc. v. Ottawa (City), 2023 CanLII 123748

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 28, 2023

CASE NO(S).: OLT-23-000954

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

Applicant/ Appellant: Phoenix Harbour Old Montreal Road Inc.

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

Description: To develop a residential subdivision on the subject lands

Reference Number: D02-02-18-0021

Property Address: 1146-1208 Old Montreal Road

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-23-000954

OLT Lead Case No.: OLT-23-000954

OLT Case Name: Phoenix Harbour Old Montreal Road Inc. v. Ottawa (City)

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

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Reference Number: D07-16-18-0001

Property Address: 1146-1208 Old Montreal Road

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-23-000955

OLT Lead Case No.: OLT-23-000954

Heard: December 8, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Phoenix Harbour Old Montreal Road

Michael Polowin

Inc.

Jacob Polowin (in-absentia)

City of Ottawa

Timothy Marc

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON December 8, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) concerning Phoenix Harbour Old Montreal Road Inc.’s (“Appellant”) appeal due to the City of Ottawa’s (“City”) failure to make a decision on Applications for a Zoning-By-law Amendment (“ZBA”) and a Draft Plan of Subdivision (“DPS”) within the timeframes prescribed in the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”).

2The Applications support the development of a residential subdivision, including residential apartments, semi-detached dwellings, townhouses, stacked townhouse units and a municipal park. The proposed development will also have lands dedicated to the Cardinal Creek corridor and a new public street. The proposed development is for the property municipally addressed as 1146, 1154, part of 1172, 1176, 1180 and 1208 Old Montreal Road in the City of Ottawa (“Subject Lands”).

3The proposed ZBA would change the zoning for the Subject Lands from RU- Rural Countryside, RR7 (19r) – Rural Residential Subzone 7, exception 19r, and, RR7-Rural Residential Subzone 7 to Residential Fourth Density, Subzone Z (R4Z) and Open Space (01) to permit the dwelling types in the proposed DPS and to permit parkland.

4The same Affidavit of Service was sworn on October 30, 2023, and again on November 20, 2023. The Affidavits of Service were filed with the Tribunal before the Hearing, and with the consent of the Parties, it was determined that no further notice was required. The Affidavits of Service were marked as Exhibit 1.

STATUS REQUEST

5A Party status request was received from Ursula Melinz acting as Counsel on behalf of Tamarack (Cardinal Creek) Corporation (“Tamarack”). The Tribunal received the request on December 6, 2023, and was informed that the late request was due to notice issues.

6Ms. Melinz indicated that Tamarack is the largest owner in the existing community and that the plan for the area was done by Tamarack. She indicated that the City required that a land-owner group be established when the area was first developed, and her client’s primary concern is that the Appellant satisfy its obligations under the cost-sharing agreement in place for the area as a condition of development. It is not her intention to prolong the proceedings and Tamarack “does not intend to participate in the hearing as to whether the Tribunal should grant the zoning amendment and subdivision appeals.” Ms. Melinz suggested that deferring the decision on Party status for Tamarack will give her time to discuss her client’s concern with the other Parties, which could potentially result in a resolution between them.

7Counsel for the Appellant and the City indicated support for deferring the Party status request decision as they also felt additional time could result in a resolution of the concerns expressed by Tamarack.

8The Tribunal deferred a decision on Tamarack’s Party status request with the consent of the Parties. The Tribunal acknowledges the benefit of additional time to resolve the concerns expressed in the request for Party status.

MEDIATION

9The Parties have been involved in ongoing negotiations and have high expectations that they will be able to resolve any issues related to this appeal without Tribunal-lead mediation.

HEARING PLANNING

10The Tribunal was provided with a Draft Procedural Order (“PO”), including an Issues List (“IL”), before the hearing on the consent of the Parties. Counsel for the City will add specific dates to the PO once a hearing date is set and return the draft to the Tribunal for final review.

11The Parties requested that a six-day hearing be set beginning in August 2024, and indicated that they would bring experts in land use planning, parks planning, natural/environmental and geotechnical planning to provide evidence.

12The Parties requested that a CMC be set for late January 2024 to receive an update from the Parties and to determine whether Tamarack still seeks to be granted Party status.

13Counsel for Tamarack indicated her support for this plan and offered that her client may want to add an issue to the IL related to appropriate sub-division conditions for the proposed development at a future date, should they be later granted Party status.

14The Tribunal acknowledges that in the event that Tamarack is later granted Party status, the Tribunal will determine whether any additional issues need to be added to the PO.

15The Tribunal received and approved the revised PO, including an IL, on Monday, December 11, 2023. The approved PO is included as Schedule 1 below and shall govern the procedures leading up to, and including, the Video Hearing for this matter.

16A hearing has been scheduled for six days, to commence on Tuesday, August 6, 2024, at 10:00 a.m.

17A second CMC has been scheduled for Friday, February 9, 2024, beginning at 10 a.m. by video. The details to access the Video Hearings for the second CMC and the six-day hearing are noted in paragraphs [18] to [21] below.

18Parties are asked to log into the Video Hearings at least 15 minutes before the start of the event to test their video and audio connections:

Friday, February 9, 2024 at 10 a.m. (second CMC)

GoTo Meeting: https://global.gotomeeting.com/join/979388733

Access code: 979-388-733

Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889

Audio-only access code: 979-388-733

Tuesday, August 6, 2024 at 10 a.m. (six-day hearing)

GoTo Meeting: https://global.gotomeeting.com/join/979388733

Access code: 979-388-733

Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889

Audio-only access code: 979-388-733

19Parties 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

20Persons 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.

21Individuals 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 Hearings to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

22THE TRIBUNAL ORDERS THAT:

1. A further Case Management Conference shall commence on Friday, February 9, 2024, at 10 a.m. by video, as per the details set out above.

2. The six-day hearing shall commence on Tuesday, August 6, 2024, at 10:00 a.m. by video.

3. The Procedural Order appended to this Order as Schedule 1 shall govern the procedures leading up to and including the hearing.

“Gregory J. Ingram”

GREGORY J. INGRAM

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-23-000954

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

Applicant/Appellant

Phoenix Harbour Old Montreal Road Inc.

Subject:

Application to amend the Zoning By-law – Refusal or

neglect to make a decision

Description:

To develop a residential subdivision on the subject lands

Reference Number:

D02-02-18-0021

Property Address:

1146-1208 Old Montreal Road

Municipality/UT:

Ottawa/Ottawa

OLT Case No:

OLT-23-000954

OLT Lead Case No:

OLT-23-000954

OLT Case Name:

Phoenix Harbour Old Montreal Road Inc. v. Ottawa (City)

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

Subject:

Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Reference Number:

D07-16-18-0001

Property Address:

1146-1208 Old Montreal Road

Municipality/UT:

Ottawa/Ottawa

OLT Case No:

OLT-23-000955

OLT Lead Case No:

OLT-23-000954

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 August 6, 2024 at 10 a.m.

GoTo Meeting: https://global.gotomeeting.com/join/979388733

Access code: 979-388-733

Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889

Audio-only access code: 979-388-733

3. The parties’ initial estimation for the length of the hearing is 6 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 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 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 April 30, 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.

10. Expert witnesses in the same field shall have a meeting on or before July 2, 2024, and use their 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 July 16, 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 May 7, 2024, the parties shall provide copies of their expert and other witness statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 21 below.

14. Parties may provide to all other parties and the OLT case co-ordinator a written response to any witness statements within ten (10) days (May 17, 2024) after the evidence is received and in accordance with paragraph 21 below.

15. On or before July 2, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before July 16, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 16, 2024.

18. 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.

19. A party who provides a witness statement 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 witness statement is no longer to be considered by the Tribunal.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 23, 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.

21. 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 Rule 7.

22. 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.

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

LIST OF PARTIES

1. Phoenix Harbour Old Montreal Road Inc.

2. City of Ottawa

ATTACHMENT 2

ISSUES LIST

PHOENIX OLD MONTREAL ROAD

1. Are the proposed Zoning By-law Amendment (“ZBLA”) and Draft Plan of Subdivision (“DPS”) applications consistent with the policies in the Provincial Policy Statement (PPS)?

2. Under which official plan are the applications to be evaluated?

3. Do the proposed ZBLA and DPS applications conform to the directions and policy of the City of Ottawa Official Plan in force at the time of the application (the “OP”), including, but not limited to Sections 2.2.2, 2.5.1, 3.6.1, 4.7, and 4.11?

4. Do the proposed ZBLA and DPS applications conform to the policies of the 2022 Official Plan (“new OP”), including but not limited to Sections 2.2.1, 3.2, 3.3, 4.1, 4.2, 4.4, 4.6, 4.9, 5.4, 6.3, and 12.0? How much weight is to be given to the New OP?

5. What legal status does the Cardinal Creek Village Concept Plan have?

a. Do the proposed ZBLA and DPS applications have appropriate regard for the Cardinal Creek Village Concept Plan?

6. What legal status does the Greater Cardinal Creek Subwatershed Management Plan (the “GCCSMP have?

a. Do the proposed ZBLA and DPS applications provide appropriate protection for the watercourse, consistent with the requirements of the GCCSMP?

b. Does the stormwater management plan proposed by the DPS application fulfill the GCCSMP stormwater management objectives?

c. What should be the required setback from Cardinal Creek?

d. Should limits/restrictions be imposed on grading and site alteration within the setbacks from surface water features?

7. Does the Environmental Impact Study sufficiently address stormwater management objectives?

8. Have the environmental impacts of this development been examined sufficiently?

9. What legal status do the Urban Design Guidelines for Greenfield Neighbourhoods have?

a. Do the proposed ZBLA and DPS applications have appropriate regard for the Urban Design Guidelines for Greenfield Neighbourhoods, if applicable?

10. Is the proposed slope of Street No. 1 in the DPS application appropriate?

11. Does the emergency overland flow from Private Street No. 2 appropriately mitigate any impacts on the neighbouring property?

12

a. Are the proposed retaining walls within the DPS application appropriate public infrastructure?

b. Can the City be required to assume ownership of the retaining walls?

13. Does the park block proposed in the DPS represent an appropriate parkland dedication for the proposed development? Is there appropriate park frontage, usable for public access? Can the requested amenities for the parkette be provided within the park block as proposed while meeting the City’s park design standards?

14. Does the City have the authority to require the applicant to construct a multi-use pathway which connects to the City’s network?

15. Does the City have the authority to require conveyance of the land for a multi-use pathway?

a. If so, should the land for the multi-use pathway be credited against parkland?

16. Do the proposed ZBLA and DPS application represent good land use planning?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Phoenix Harbour Old Montreal Road Inc.

2. City of Ottawa

3. Reply by Phoenix Harbour Old Montreal Road Inc.