SmartCentres v. Oakville (Town), 2023 CanLII 1767

Ontario Land Tribunal

ISSUE DATE: January 9, 2023

CASE NO.: OLT-22-004052

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, C. P. 13, as amended

Appellant: SmartCentres, SmartREIT (Oakville II) Inc. and SmartREIT (Oakville) Inc.

Subject: Failure of Town of Oakville to announce a decision respecting Proposed Official Plan Amendment 22

Municipality: Town of Oakville

OLT Lead Case No.: OLT-22-004052

OLT Case No.: OLT-22-004052

OLT Case Name: SmartCentres v. Oakville (Town)

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

Applicant and Appellant: SmartCentres, SmartREIT (Oakville II) Inc. and SmartREIT (Oakville) Inc.

Subject: Application to amend Zoning By-law No. 2014-014 – Neglect or Refusal of application by Town of Oakville

Existing Zoning: MU2-178 (Mixed Use Main Street 2) and MU4-178 (Mixed Use Urban Core)

Proposed Zoning: MU2-178 (Mixed Use Main Street 2) and MU4-178 (Mixed Use Urban Core) – with special provisions

Purpose: To permit a mixed-use building consisting of two residential towers

Property Address/Description: 256, 260 and 294 Hays Boulevard and 271 Oak Park Boulevard

Municipality: Town of Oakville

Municipal File No.: OPA1413.34

OLT Lead Case No.: OLT-22-004052

OLT Case No.: OLT-22-004053

M.A. SILLS

VICE-CHAIR

Monday, the 9th day of January, 2023

THE TRIBUNAL ORDERS that the Procedural Order, attached hereto, shall be in full force and effect.

"Euken Lui"

Euken Lui

ACTING REGISTRAR

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.

PROCEDURAL ORDER

OLT-22-004052

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 8, 2023 at 10:00 a.m.

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 generally found in Attachment 1.

4. The parties and participants identified at the case management conference are set out in Attachment 2 to this Order. See Attachment 5 for the meaning of these terms.

5. The issues are set out in the Issues List attached as Attachment 3. 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 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. 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 the witnesses and the order in which they will be called. This list must be delivered on or before January 9, 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.

10. Expert witnesses in the same field shall have a meeting on or before February 10, 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 February 24, 2023 and in accordance with paragraph 23 below.

11. If the Applicant/Appellant intends to present in its witness statements revisions to the proposal (official plan amendment and/or zoning by-law amendment) from the one filed with the Town and as was revised as of May 30, 2022, the Applicant/Appellant shall provide copies of the revised proposal, including revised text, plans and drawings, together with copies of any new or updated technical reports it intends to rely on in support of the revised proposal to the other parties on or before February 10, 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 14 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 14 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 14 below.

14. On or before March 10, 2023, 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 March 10, 2023, 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 March 24, 2023 in accordance with paragraph 23 below.

17. On or before April 3, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before April 21, 2023, 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.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 24, 2023.

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 April 28, 2023 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.

So orders the Tribunal.

BEFORE:

Name of Member: MA SILLS

Date: Jan 9, 2023

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
January 9, 2023	Exchange of witness lists (names, disciplines and order to be called)
February 10, 2023 February 24, 2023	Experts Meeting Agreed Statement of Facts
February 10, 2023	Provision of revised plans, if any
March 10, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
March 24, 2023	Exchange of Reply Witness Statements (if any)
April 3, 2023	Parties to confirm with the Tribunal if all the reserved hearing dates are still required
April 21, 2023	Exchange of visual evidence (if any)
April 24, 2023	Preparation of Joint Document Book
April 28, 2023	Hearing Plan filed with the Tribunal
May 8, 2023	Hearing commences

ATTACHMENT 2 – LIST OF PARTIES AND PARTICIPANTS

LIST OF PARTIES

Party	Counsel	Contact
SmartCentres, SmartREIT (Oakville II) Inc, and SmartREIT (Oakville) Inc.	Denise Baker	WeirFoulds LLP Barristers & Solicitors 1525 Cornwall Road, Suite 10 Oakville, ON L6J 0B2 Denise Baker T: 416-947-5090 dbaker@weirfoulds.com
Town of Oakville	Nadia Chandra	Town of Oakville 1225 Trafalgar Road Oakville, ON L6H 0H3 Nadia Chandra T: 905-845-6601, ext. 3912 nadia.chandra@oakville.ca
Region of Halton	Brittany Maione	Region of Halton Brittany Maione T: 905-825-6000 Brittany.maione@halton.ca

ATTACHMENT 3 - ISSUES LIST

Town of Oakville

Built Form

1. Without the public benefit of the former Section 37 (bonusing), are the Applications premature pending the Town's Uptown Core Review, and do the Applications adequately consider the impact of the proposed development on the Town's urban structure as provided for in the Livable Oakville Plan, including sections 3, 4, 11 (preamble), and Schedule A1, in conformity with section 2.2.1 of the Growth Plan and consistent with section 1.1 and 1.4 of the Provincial Policy Statement?

2. Is the proposed height appropriate?

3. Has the above grade parking structure been appropriately integrated into the architectural design of the podium? Has it been appropriately screened from public view?

4. Do the Applications implement the town's urban design polices as provided for in the Livable Oakville Plan, including section 6?

Uses

5. Are the sizes of the commercial units appropriate?

6. Does the proposed development incorporate active uses at grade?

7. Does the proposed development adequately provide for private and public/community amenity space?

8. Do the Applications have appropriate regard for matters of provincial interest with respect to the adequate provision of a full range of housing, including affordable housing, as required by Section 2(j) of the Planning Act?

Parking

9. Is the proposed parking structure appropriately designed?

10. Is the proposed parking rate appropriate for the proposed development?

Outdoor Amenity

11. Is the design of the proposed outdoor amenity space appropriate?

Region of Halton

1. If the proposed development is approved, is it appropriate to insert the following Holding provision in the zoning by-law:

The Holding symbol may be removed from the zoning designation by way of an amending zoning by-law when the following has been completed:

i) Prior to any servicing or grading of the site and to the satisfaction of Halton Region, the Owner submits to Halton Region a Ministry of the Environment, Conservation and Parks (MECP) acknowledged Record of Site Condition (RSC), that is certified by a qualified person as defined in Ontario Regulation 153/04 and indicates that the environmental condition of the site is suitable for its proposed land use. The Owner also submits all supporting environmental documentation such as Phase One and Two Environmental Site Assessment and remediation reports etc. to Halton Region for review. The author of the environmental reports and Record of Site Condition submitted to the Region must extend third party reliance to Halton Region. The Owner complies with Ontario Regulation 153/04 and Halton Region's Protocol for Reviewing Development Applications with respect to Contaminated or Potentially Contaminated Sites, to the satisfaction of Halton Region.

Notwithstanding subsection i) above, this Holding provision does not prevent the issuance of a building permit necessary to authorize the removal of soil, rock or fill for the purpose of making an excavation; or the erection of a retaining structure or other structure to support the sides of the excavation, that are erected to assist in the conduct of an investigation in relation to property, or for any other activity necessary to accommodate site remediation for the purpose of filing a Record of Site Condition.

ATTACHMENT 4 – ORDER OF EVIDENCE

1. SmartCentres, SmartREIT (Oakville II) Inc, and SmartREIT (Oakville) Inc.
2. Town of Oakville
3. Region of Halton
4. SmartCentres, SmartREIT (Oakville II) Inc, and SmartREIT (Oakville) Inc. in reply (if any)

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 authorization 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.