8185 Bridgeport Inc. v. Waterloo (City), 2023 CanLII 26239

Ontario Land Tribunal

Issue Date: March 31, 2023 Case No(s).: OLT-22-004241

Proceeding Commenced Under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 8185 Bridgeport Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit 3 mixed-use towers with shared podiums Reference Number: OPA 36 Property Address: 81 – 85 Bridgeport Road E. Municipality/UT: City of Waterloo OLT Case No: OLT-22-004241 OLT Lead Case No: OLT-22-004241 OLT Case Name: 8185 Bridgeport Inc. v. Waterloo (City)

Proceeding Commenced Under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 8185 Bridgeport Inc. Subject: Application to amend the Zoning By-law – Neglect to make a decision Description: To permit 3 mixed-use towers with shared podiums Reference Number: Z-22-05 Property Address: 81 – 85 Bridgeport Road E. Municipality/UT: City of Waterloo OLT Case No: OLT-22-004242 OLT Lead Case No: OLT-22-004242

Heard: February 8, 2023, by Video Hearing

Appearances

Parties	Counsel
8185 Bridgeport Inc.	Jennifer Meader Jessica De Marinis
City of Waterloo	Susan Smith
Region of Waterloo	Fiona McCrea

Memorandum of Oral Decision Delivered by David Brown on February 8, 2023, and Order of the Tribunal

Introduction and Background

1The Tribunal convened a Case Management Conference (“CMC”) in respect of the appeals filed by 8185 Bridgeport Inc. (the “Appellant”) against the City of Waterloo’s (the “City”) failure to make a decision on an application to Amend the Official Plan and the Zoning By-law within the timeframes prescribed in the Planning Act, R.S.O. 1990, c. P. 13, as amended (the “Act”). The lands that are the subject of the applications are located at 81 and 85 Bridgeport Road East (the “Subject Lands”) and the proposal is to redevelop the Subject Lands with a mixed-use building comprised of three residential towers having heights ranging from 16 to 22 storeys joined by a six-storey podium base. The development proposes 494 residential units, 600 square metres of grade-related retail floor space, and a total of 508 parking spaces.

2An Affidavit of Service sworn on January 17, 2023, attesting to the giving of Notice for this proceeding, was filed and marked as Exhibit 1.

3No requests for status were received by the Tribunal.

4The Parties filed a draft Procedural Order (“PO”) and Issues List (“IL”) for consideration by the Tribunal.

5Ms. Meader advised that the Parties are seeking a 15-day Hearing for this matter. The Appellant, having reviewed the IL, submits that they will present up to seven witnesses in response, including: a planner, an architect, a servicing (civil) engineer, an environmental engineer, a hydrogeologist, an acoustic engineer, and a traffic engineer.

6In response to feedback from the City, Ms. Meader advised that the City Issue 1(e) should be revised to include section 12.3.1 and City Issue 4 should be revised to add “including affordable housing” at the end of the sentence.

7The Tribunal noted duplication of issues between the City and the Region and directed that these matters be consolidated appropriately by the Parties.

8In respect to the draft PO, the Tribunal directed that paragraph 20 be revised to reflect the current requirements as it relates to electronic documentation submissions.

9The Tribunal directed the Parties to provide a revised PO and IL for the Tribunal’s review and issuance.

10The Parties indicated a willingness to work together with the goal of negotiating a settlement of the matter, or, at a minimum, scoping and/or resolving some of the issues identified in the IL.

11A Video Hearing has been scheduled for 14 days, to commence on Monday, October 30, 2023, at 10:00 a.m. The Tribunal will not sit on Monday, November 13, 2023.

12Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://meet.goto.com/348282861

Access code: 348-282-861

13Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

14Persons who experience technical difficulties accessing the GoToMeeting application, or who only wish to listen to the event, can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or Toll-Free: 1 888 299 1889. The access code is 348-282-861.

15Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the 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.

16The Tribunal received the revised PO, including an IL, on February 22, 2023. The PO is attached to this decision and shall govern the procedures leading up to and including the Video Hearing for this matter.

Order

17THE TRIBUNAL ORDERS that a 14-day Video Hearing shall commence on Monday, October 30, 2023, at 10:00 a.m., excluding Monday, November 13, 2023, as per the details set out above.

18The Procedural Order to govern the procedures leading up to and including the Video Hearing is appended to this Order as Schedule 1 and shall come into force and effect on the date of issue of this Order.

19The Member is not seized.

20There will be no further notice provided.

“David Brown”

DAVID BROWN 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.

Schedule 1

Case Nos.: OLT-22-004241

Proceeding Commenced Under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

Applicant and Appellant: 8185 Bridgeport Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit 3 mixed-use towers with shared podiums Reference Number: OPA 36 Property Address: 81 – 85 Bridgeport Road E. Municipality/UT: City of Waterloo OLT Case No.: OLT-22-004241 OLT Lead Case No.: OLT-22-004241 OLT Case Name: 8185 Bridgeport Inc. v. Waterloo (City)

Proceeding Commenced Under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

Applicant and Appellant: 8185 Bridgeport Inc. Subject: Application to amend the Zoning By-law – Neglect to make a decision Description: To permit 3 mixed-use towers with shared podiums Reference Number: Z-22-05 Property Address/Description: 81 – 85 Bridgeport Road E. Municipality/UT: City of Waterloo OLT Case No.: OLT-22-004242 OLT Lead Case No.: OLT-22-004241

Procedural Order

THE TRIBUNAL ORDERS that:

1. The Tribunal may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order.

Organization of the Hearing

The Video Hearing is scheduled to proceed as follows:

Date: Monday, October 30, 2023 at 10:00 a.m. – Friday, November 17, 2023 (excluding Monday, November 13, 2023)

GoTo Meeting: https://meet.goto.com/348282861 Audio only telephone line: +1 (647) 497-9373 or toll free: 1-888-299-1889 Access Code: 348-282-861

2. The hearing is scheduled for 14 days, ending on November 17, 2023. The Tribunal will not sit on Monday, November 13, 2023. The length of the hearing may be shortened as issues are resolved or settlement is achieved. 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.

3. The parties and participants identified at the case management conference are set out in Attachment 1.

4. The issues are set out in the Issues List attached as Attachment 2. Except for scoping or removing issues, there will be no changes to this list unless the Tribunal permits it. A party who asks for changes may have costs awarded against it. Notwithstanding the foregoing, should the Appellant propose any modification(s) to the applications/proposal prior to or at the hearing, the City and the Region reserve the right to add to /modify the issues list in response to such modifications.

5. The order of evidence shall be as listed 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 consent or by Order of the Tribunal.

Requirements Before the Hearing

6. All parties (or their representatives) shall provide a mailing address, email address, and telephone number to the Tribunal. Any such person who retains a representative (legal counsel or agent) subsequent to the prehearing conference must advise the other parties and the Tribunal of the representative’s name, mailing address, email address and phone number.

7. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the City Clerk a list of the witnesses and the order in which they will be called. A preliminary witness list must be delivered by June 2, 2023, and confirmation of list of witness and order in which they will be called shall be provided by August 1, 2023. For expert witnesses, a party is to include a copy of the curriculum vitae and the area of expertise in which the witness is proposed to be qualified.

8. Expert witnesses in the same field shall meet to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties and the City Clerk, on or before June 30, 2023.

9. An expert witness shall prepare an Expert Witness Statement that shall include: an acknowledgement of expert’s duty form, the area(s) of expertise, any reports prepared by the expert, and any other reports or documents to be relied on at the hearing. Copies of this must be provided as in item 13 below. Instead of an Expert 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.

10. A participant must provide to the Tribunal, the City Clerk, and the Parties a Participant Statement by August 31, 2023.

11. 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 and his or her area of expertise, as in item 13 below.

12. On or before August 31, 2023, the parties shall provide copies of their Witness and/or Expert Witness Statements to the other parties. A paper copy of any document proposed to be entered into evidence or relied upon shall be provided at the hearing unless ordered otherwise by the presiding Member.

13. On or before September 29, 2023, the parties shall provide copies of Reply Witness Statements, if any, to the other parties and the City Clerk.

14. On or before October 13, 2023, the parties shall provide copies of their visual evidence to all of the other parties. If a model is proposed to be used the Tribunal must be notified before the hearing. All parties must have a reasonable opportunity to view it before the hearing.

15. The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal case co-ordinator on of before October 23, 2023.

16. A person wishing to change written evidence, including witness statements, after witness statements and reply witness statements have been filed must make a written motion to the Tribunal in accordance with the Tribunal’s Rules 34 to 38.

17. A party who provides the written evidence of a witness to the other parties must have that witness attend the hearing to give oral evidence, unless the Tribunal and the parties are notified at least 7 days before the hearing that the written evidence is not part of their record.

18. On or before October 10, 2023, the parties shall prepare and file a hearing plan with the Tribunal at least 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.

19. 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 10 MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

20. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rules apply to such requests.

21. A summary of the various filing dates is contained in Attachment 4.

This Member is not seized.

So orders the Tribunal.

Attachment 1

PARTIES

1. 8185 Bridgeport Inc. Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 Jennifer Meader Tel: 905.529.3476 Email: jmeader@tmalaw.ca Jessica De Marinis Tel: 905.529.3476 Email: jdemarinis@tmalaw.ca

2. The Corporation of the City of Waterloo 100 Regina Street South Waterloo, ON N2J 4A8 Susan Smith Tel: 519.747.6100 Email: susan.smith@waterloo.ca

3. The Regional Municipality of Waterloo 150 Frederick Street Kitchener, ON N2G 4J2 Fiona McCrea Tel: 519.575.4518 Email: fmccrea@regionofwaterloo.ca

Attachment 2

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet but shall not preclude any other party from calling evidence on the issue.

The Regional Municipality of Waterloo

1. Do the applications conform to the Region of Waterloo Official Plan, including policies 2.G.18 and 2.G.10?
2. Do the applications appropriately address site contamination including, but not limited to, completion of a Record of Site Condition and receipt of an acknowledgment letter from the Ministry of the Environment, Conservation and Parks?
3. Do the applications appropriately address noise impacts, from all the proposed buildings, adjacent stationary and transportation sources?

The Corporation of the City of Waterloo

4. a) Do the applications have appropriate regard to the matters of Provincial interest, as set out in Section 2 of the Planning Act? b) Are the applications consistent with the Provincial Policy Statement, 2020 (PPS) including policies 1.1, 1.4, 1.5, 1.6, 3.1? c) Do the applicants conform to the Growth Plan for the Greater Golden Horseshoe (Growth Plan), including policies 2.2.1, 2.2.6, 3.2.5, 3.2.6, 3.2.7? d) Do the applications conform to the Region of Waterloo Official Plan, including policies 2.D.1., 2.D.2, 2.G.10, 2.G.13, 2.G.14, 2.G.18, 3.1, 3.A.2, 3.B.3, 10.D.12, 10.E.5? e) Do the applications conform to the City of Waterloo Official Plan, including policies 1.4, 2.2, 2.3, 3.1, 3.2, 3.3, 3.4, 3.6, 3.9, 3.10, 3.11, 4.1, 4.5, 5.1, 5.2, 5.4, 6.1, 6.3, 6.4, 6.5, 6.6, 8.1, 8.4, 8.6, 8.7, 10.1, 10.2, 12.2.9 and 12.3.1?

5. Do the applications constitute good planning?

6. Does the proposed development adequately address matter of height and density, including built form, transitioning to adjacent RMU-20 parcels, shadowing, and wind impacts?

7. Does the proposed development provide for an appropriate mix and range of housing, including affordable housing?

8. a) Does the proposed development demonstrate compatibility and integration with surrounding land uses? b) Does the proposed development contribute to an animated streetscape, having regard to matters including building height, mixing of uses, massing architectural design, character, setbacks, siting and landscaping, parking, and public spaces?

9. Do the applications confirm the adequacy of services (including capacity and fire flows) for the proposed development?

10. Does the proposed development provide for necessary infrastructure, including utilities?

11. Are the proposed parking rates adequate?

12. Does the proposed development provide for appropriate urban design, in conformity with the policies of the City’s Official Plan and the City’s Urban Design Manual?

13. Does the proposed development provide for appropriate flood proofing measures, align with flood related policies and/or regulations contained in the City’s Official Plan and Zoning By-law, align with all other policies/regulations, including policies under Section 3.1 of the PPS, and align with the regulations of the Grand River Conservation Authority?

14. Does the proposed development adequately address parkland requirements?

Attachment 3

ORDER OF EVIDENCE

1. 8185 Bridgeport Inc.
2. The Corporation of the City of Waterloo
3. The Regional Municipality of Waterloo
4. 8185 Bridgeport Inc. in reply

Attachment 4

Summary of Filing Dates

EVENT	DATE
Preliminary List of Witnesses	June 2, 2023
Agreed Statement of Facts & Remaining Issues	June 30, 2023
Final List of Witnesses	August 1, 2023
Witness and Expert Witness Statements	August 31, 2023
Participant Statement	August 31, 2023
Reply Witness Statement	September 29, 2023
Hearing Plan	October 10, 2023
Visual Evidence	October 13, 2023
Joint Document Book	October 23, 2023
OLT Hearing Commences	October 30, 2023