du territoire
Ontario Land Tribunal
Tribunal ontarien de l’aménagement
ISSUE DATE: February 28, 2023
CASE NO(S).:
OLT-22-003866
OLT-22-003867
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Burlington 2020 Lakeshore Inc.
Subject: Request to amend the Official Plan – Refusal of request
Description: The applications propose to demolish the existing hotel and restaurant and construct a new mixed-use building in a 2-tower format atop a 5-6 storey podium, with tower heights ranging from 30-35 storeys, and associated underground parking.
Reference Number: 505-04/19
Property Address: 2020 Lakeshore Road
OLT Case No.: OLT-22-003866
OLT Lead Case No.: OLT-22-003866
OLT Case Name: Burlington 2020 Lakeshore Inc. v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Burlington 2020 Lakeshore Inc.
Subject: Application to amend the Zoning By-law – Refusal of application
Description: The applications propose to demolish the existing hotel and restaurant and construct a new mixed-use building in a 2-tower format atop a 5-6 storey podium, with tower heights ranging from 30-35 storeys, and associated underground parking.
Reference Number: 521-11/21
Property Address: 2020 Lakeshore Road
OLT Case No.: OLT-22-003867
OLT Lead Case No.: OLT-22-003866
Heard: January 27, 2023, by Video Hearing
APPEARANCES:
Parties
Counsel
Burlington 2020 Lakeshore Inc.
M. Lakatos-Hayward, David Bronskill (in absentia)
City of Burlington
C. Barnett, B. Hurley
Regional Municipality of Halton
B. Maione
Bridgewater Hospitality Inc. and The Pearle Hotel & Spa Inc.
K. Stitt, I. Kagan (in absentia), S. Kagan (in absentia)
DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
Introduction
1This Case Management Conference (“CMC”) prepares for a hearing on the merits of appeals by Burlington 2020 Lakeshore Inc. (“Applicant”/ “Appellant”) to the refusal by the City of Burlington (“City”) of applications for Official Plan Amendment and Zoning By-law Amendment affecting 2020 Lakeshore Road, Burlington (“site”).
2The site is located at the end of Brant Street, on the south side of Lakeshore Road, next to parkland and Lake Ontario. The Applicant proposes to replace the existing mid-rise hotel with two mixed-use towers including commercial/office space, a hotel, and residential apartments.
Next Steps
3Counsel for the City advised the Tribunal that a Review of the Motion decision, dated January 3, 2023, has been filed with the Tribunal by the Applicant. The Motion before the Tribunal sought a determination as to the date on which the Official Plan Amendment and Zoning By-law Amendment applications were “made” with the City by Burlington 2020 Lakeshore Inc. with respect to its lands at 2020 Lakeshore Road.
4Once the outcome of the requested Review is determined, the way forward in these proceedings will be clearer to all Parties.
5Mr. Barnett indicated that while the decision is pending, on the consent of all Parties, a hearing in second quarter of 2024 would be appropriate to be set aside with a request by the City that they retain the right to adjourn the hearing date and set a new date pending the outcome of the Review.
6The Tribunal canvassed the Parties as to the number of witnesses anticipated to provide testimony. It was determined that a 15-day hearing of the merits would be appropriate.
7The attached Procedural Order, received on consent, is approved and now deemed by the Tribunal to be in force and effect governing the proceedings.
Mediation
8Mr. Lakatos-Hayward indicated that the Appellant will be seeking Tribunal-led mediation once the Review has concluded. The Tribunal advised they may reach out to the Case Co-ordinator for assistance in this regard. In the case of an agreed settlement, the Parties are directed to contact the Case Coordinator to ensure all necessary documents are received by the Tribunal, dates for the merit hearing are released and a Settlement Hearing is scheduled.
9The three-week (15 days) hearing of the merits will commence on Tuesday, April 9, 2024, at 10 a.m.
GoToMeeting Link: https://global.gotomeeting.com/join/927921077
Audio-Only Line: 1-888-299-1889 (Toll Free) OR +1 (647) 497-9391
Access code: 927-921-077
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.
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 as mentioned above.
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.
14No further notice will be given.
15The Tribunal Member is not seized but may be spoken to for Case Management purposes, subject to availability on the Tribunal’s calendar.
D. Chipman
D.CHIPMAN
MEMBER
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.
Case No. OLT-22-003866
ONTARIO LAND TRIBUNAL
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Burlington 2020 Lakeshore Inc.
Subject: Request to amend the Official Plan – Refusal of request
Description: The Applications propose to demolish the existing hotel and restaurant and construct a new mixed-use building in a 2-tower format atop a 5-6 storey podium, with tower heights ranging from 30 to 35 storeys, and associated underground parking.
Property Address/Description: 2020 Lakeshore Road
Municipality: City of Burlington
Reference Number: 505-04/19
OLT Case No.: OLT-22-003866
OLT Lead Case No.: OLT-22-003866
OLT Case Name: Burlington 2020 Lakeshore Inc. v Burlington (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Burlington 2020 Lakeshore Inc.
Subject: Request to amend the Zoning By-law – Refusal of application
Reference: The Applications propose to demolish the existing hotel and restaurant and construct a new mixed-use building in a 2-tower format atop a 5-6 storey podium, with tower heights ranging from 30 to 35 storeys, and associated underground parking.
Property Address/Description: 2020 Lakeshore Road
Municipality: City of Burlington
Municipality File No.: 521-11/21
OLT Case No.: OLT-22-003867
OLT Lead Case No.: OLT-22-003866
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 April 29, 2024 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is fifteen (15) 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 2.
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.
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. 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 witnesses on or before January 2, 2024. 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 January 5, 2024.
Expert witnesses in the same field shall have a meeting on or before February 14, 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 5, 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 22 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 22 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 22 below.
On or before March 15, 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 22 below.
On or before March 15, 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 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
The Parties may provide to all other parties, the City Clerk, and the OLT Case Co-ordinator a written response to any written evidence within March 29, 2024.
On or before March 25, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before April 19, 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 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 19, 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 April 22, 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.
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.
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.
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
January 2, 2024
Exchange of witness lists (names, disciplines and order to be called)
January 5, 2024
Last date to challenge qualifications of expert witnesses
February 14, 2024
Last date of Expert Witness Meetings
March 5, 2024
Agreed Upon Statement of Facts
March 15, 2024
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
March 25, 2024
Notification to Tribunal if all hearing dates required
March 29, 2024
Exchange of Reply Witness Statements (if any)
April 19, 2024
Exchange of Visual Evidence (if any) and Joint Document Book
April 22, 2024
Hearing Plan
April 29, 2024
Hearing commences
ATTACHMENT 2
LIST OF PARTIES/PARTICIPANTS
PARTIES:
Burlington 2020 Lakeshore Inc.
City of Burlington
Halton Region
Bridgewater Hospitality Inc. & The Pearle Hotel & Spa Inc.
PARTICIPANTS:
Ron Porter
Donald Fletcher
Tom Muir
ATTACHMENT 3
ORDER OF EVIDENCE
Burlington 2020 Lakeshore Inc.
City of Burlington
Halton Region
Bridgewater Hospitality Inc. & The Pearle Hotel & Spa Inc.
Burlington 2020 Lakeshore Inc. (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.
City of Burlington
Do the Applicant’s Official Plan Amendment and Zoning By-law Amendment Applications (the “Planning Applications”) have sufficient regard to the matters of provincial interest in s. 2 of the Planning Act?
Are the Planning Applications consistent with the Provincial Policy Statement, 2020?
Do the Planning Applications conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (as amended)?
Do the Planning Applications conform to the Halton Region Official Plan?
Do the Planning Applications conform to the City of Burlington Official Plan (1997, as amended) and the City of Burlington New Official Plan (2020)?
Do the Planning Applications meet the intent of the City of Burlington’s Urban Design Guidelines and Tall Building Guidelines (2017)?
Is the development proposed through the Planning Applications (the “Development”) at an intensity and scale that exceeds an appropriate level, taking into account its existing and planned context?
Is the Development in keeping with the physical character and planned context of Downtown Burlington?
Does the Development represent appropriate urban design in addressing matters including height, density, built form, massing, scale, siting, transitions, building articulation, setbacks, stepbacks, and spacing having regard for the site and the character of the surrounding lands?
Does the Development appropriately avoid and/or mitigate shadow impacts and/or wind impacts, in accordance with the City of Burlington’s Shadow Study Guidelines and Terms of Reference, and Wind Study Guidelines?
Does the Development provide sufficient parkland dedication in accordance with the applicable policy regime?
Does the Development support the local role and function of, or reflect, the place of 2020 Lakeshore Road in the hierarchy of Strategic Growth Areas identified in the Regional Urban Structure policies of the Halton Region Official Plan?
Does the design of the Development strengthen and enhance the character of 2020 Lakeshore Road as a landmark location within the City of Burlington?
Do the Planning Applications adequately address the integration of the Development with adjacent lands, the preservation of lake views, and enhancements to the public realm, as required by special policy 5.5.9.2(l) of the City of Burlington Official Plan?
Is there sufficient transit service that is existing or planned to accommodate the intensity of the Development?
Have the Planning Applications demonstrated conformity with the City of Burlington Official Plan and Stormwater Management Design Guidelines with respect to stormwater management and hydrogeology?
Do the Planning Applications demonstrate that the Development will be adequately served with water, wastewater, and stormwater servicing?
Does the Development provide adequate off-street (i.e., on-site) parking for automobiles and bicycles?
Is the Development compatible with surrounding developments with respect to noise?
Is the Development compatible with its surroundings from a safety and health impacts perspective?
Do the Planning Applications demonstrate that effects of the Development on vegetation have been minimized and/or that appropriate compensation is provided for significant loss of vegetation?
Do the Planning Applications conform with the City of Burlington’s objectives and policies for waterfront development as reflected in the City of Burlington’s Official Plan?
Does the Development provide buffering, setback and amenity area such that an appropriate transition between existing and proposed buildings is provided?
Do the Planning Applications satisfy the intent of the Downtown Streetscape Guidelines?
If the subject applications were to be approved by the Tribunal, should a Holding Symbol be applied to the property until a Record of Site Condition and Risk Assessment are filed with and accepted by the Ministry of Environment, Conservation, and Parks (MECP), and any related contamination concerns are addressed?
Do the Planning Applications represent good planning and are they in the public interest?
Do the Planning Applications have sufficient regard for City of Burlington Official Plan Amendment 119?
Does the Development provide indoor and outdoor amenity area in sufficient amounts and with appropriate configuration and design to accommodate the leisure and recreation needs of future residents of the Development?
Does the Development take into consideration the planned width of Lakeshore Road?
Halton Region
Regional Official Plan, 2009 (as amended)
- Are the proposed Official Plan Amendment and Zoning By-law Amendment (hereinafter the “Amendments”) consistent with the Region’s Growth Management policies, Urban Area policies, and Strategic Growth Area policies of the Region’s Official Plan, including: Sections 44, 47, 50, 50.2, 51.3, 55, 55.1, 55.2, 55.3, 72, 72.1, 75, 77 (1, 2.1, 5, 6), 78 – 82 (excluding 80, 81, 81.1, 81.2, 81.3, 81.4)?
Regional Official Plan Amendment No. 49
- What regard, if any, is to be had to policies of Regional Official Plan Amendment No. 49? If regard is to be had, what are the implications of those policies on the Amendments, specifically the following: sections 51.3(1), 55.4, Table 1, 2, 2A, 82.1 & 82.2?
Site Contamination
- Has the potential for contamination on the subject lands been adequately assessed and appropriately addressed in accordance with Section 147(17) of the Region of Halton’s Official Plan, 2009 (as amended) and the Region’s Guideline (Protocol) for Reviewing Development Applications with Respect to Contaminated or Potentially Contaminated Sites?
Waste Management
- Is the proposed built form being considered through the Official Plan Amendment and Zoning By-law Amendment appropriately designed to permit Regional waste collection in accordance with Section 148 of the Region of Halton’s Official Plan, 2009 (as amended), and the Region’s Development Design Guidelines for Source Separation of Solid Waste?
Servicing
Have Policies 58(1.1) and 89(3) of the ROP been adequately addressed? Is there an adequate supply of water and treatment of wastewater for the proposed use has been or will be secured to the satisfaction of the Region through the appropriate allocation and connection to Halton’s municipal water and wastewater system?
If the proposed development is approved, what are the appropriate zoning provisions, and Holding provisions?
Bridgewater Hospitality Inc. & The Pearle Hotel & Spa Inc.
Where (and on which street) should the vehicle access for the proposed development be?
What are the appropriate heights of the proposed buildings (in metres and/or storeys)?
What are the appropriate locations on the property for the proposed buildings?
What is the appropriate density for the proposed development?
What is the appropriate parking rate for the proposed uses?
ATTACHMENT 5
CONTACT INFORMATION FOR PARTIES
- Burlington 2020 Lakeshore Inc.
David Bronskill Partner Goodmans LLP
333 Bay Street, Suite 3400
Toronto, ON M5H 2S7
Matthew Lakatos-Hayward Goodmans LLP
Associate 333 Bay Street, Suite 3400
Toronto, ON M5H 2S7
- City of Burlington
Blake Hurley Corporate Counsel
City of Burlington 426 Brant Street 5013
Burlington, ON L7R 3Z6
Chris Barnett
Partner
Osler, Hoskin & Harcourt LLP 100 King Street West Suite 6200 Toronto, ON M5X 1B8
Evan Barz
Partner
Osler, Hoskin & Harcourt LLP 100 King Street West Suite 6200 Toronto, ON M5X 1B8
- Halton Region
Brittany Maione
Assistant Corporate Counsel Regional Municipality of Halton
1151 Bronte Road Oakville, ON L6M 3L1
- Bridgewater Hospitality Inc. & The Pearle Hotel & Spa Inc.
Ira T. Kagan
Kagan Shastri LLP
188 Avenue Road
Toronto, ON M5R 2J1
Kristie Stitt
Kagan Shastri LLP
188 Avenue Road
Toronto, ON M5R 2J1
Sarah Kagan
Kagan Shastri LLP
188 Avenue Road
Toronto, ON M5R 2J1