Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 28, 2023
CASE NO(S).:
OLT-22-002219
(Formerly PL210040)
OLT-22-002483
(Formerly PL200150)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant:
1085 Clearview Limited Partnership
Appellant:
1246235 Ontario Inc.
Appellant:
1602211 Ontario Ltd.
Appellant:
2084 Lakeshore Holdings Ltd. et al.; and others
Description:
Proposed Official Plan Amendment for Burlington New Official Plan
Municipality:
City of Burlington
OLT Case No.:
OLT-22-002219
Legacy Case No.:
PL210040
OLT Lead Case No.:
OLT-22-002219
Legacy Lead Case No.:
PL210040
OLT Case Name:
1085 Clearview Limited Partnership v. Halton (Reg. Mun.)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant:
Sofina Foods Inc.
Appellant:
Walmart Canada Corp.
Appellant:
Reserve Properties Ltd.
Appellant:
Vrancorp Group; and others
Description:
Proposed Official Plan Amendment No. 119
Municipality:
City of Burlington
OLT Case No.:
OLT-22-002483
Legacy Case No.:
PL200150
OLT Lead Case No.:
OLT-22-002483
Legacy Lead Case No.:
PL200150
OLT Case Name:
Sofina Foods Inc. v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant:
Walmart Canada Corp.
Appellant:
Burlington Healthcare Centre Inc.
Appellant:
Better Life Development
Appellant:
Emshih Developments Inc.; and others
Description:
By-law No. 2020.418
Municipality:
City of Burlington
OLT Case No.:
OLT-22-002484
Legacy Case No.:
PL200151
OLT Lead Case No.:
OLT-22-002483
Legacy Lead Case No.:
PL200150
Heard:
January 31, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Regional Municipality of Halton
K. Yerxa
(“Region”)
City of Burlington (“City”)
A. Biggart, B. Hurley and C. Kapelos
Appellants and Parties listed in
REVISED Schedule 1 (attached)
decision DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This further Case Management Conference (“CMC”) was convened for the purpose of providing a status update and information to the Tribunal concerning steps that the City will be taking to bring the Official Plan (“OP”) into conformity with the Regional Official Plan Amendment No. 49 (“ROPA 49”) and Bill 23.
2The City stated that since the release of ROPA 49 and Bill 23 both legal and policy changes have occurred. Modifications to the City OP will be considered by Council and completed by May 2023.
3This CMC sets the path for the Phase 1 portions as outlined in the Master Procedural Order attached to the April 22, 2022, CMC Decision. The Tribunal notes that Phase 1A has been set down for a 10-day hearing to commence on Monday, April 3, 2023.
4The matter of setting the remaining Phase 1 hearings and a further CMC was the topic of this CMC.
Tribunal Note
5As a housekeeping measure, the Tribunal informed the Parties that the Decision of January 4, 2023, contained Schedule 1 which identified the Parties and their respective Counsel as well as the appeals associated with each Appellant. The representative for Metrolinx was referred to as Adriana Pilkington, this should have identified Christie Gibson as Counsel who attended the CMC.
6Further, the Tribunal notes that Metrolinx is an added party to both OLT-22-002219/OLT-22-002483 and that an element of confusion occurred as Schedule 1 does list both file numbers at the top right hand corner but because under the title Added Parties in the chart that lists “Metrolinx (PL200150 only)” on page 12, it is assumed that Metrolinx is an added party to PL200150 only (also referred to as OLT-22-002483) and not the other file PL210040, which is OLT-22-002219. The Tribunal having received a revised Schedule 1 ensured of the correctness of representation and case numbers is attached to this Decision and shall be used going forward unless notified by the Parties.
Hearing Next Steps
Phase 1B
7It was requested by the City that the Tribunal set aside 10-days for the hearing of the merits for Phase 1B – Natural Heritage for both Urban and Rural lands.
8The City explained, that despite Phase 1B being assigned to the Phasing of “Rural” aspects of Natural Heritage, it would be prudent to include the entirety of the City’s Natural Heritage appeals in the one hearing of the merits. In doing so, the City stated it would move the planning process along in a timelier fashion to a resolution of the appeals, which would be in the interest of all Parties.
9Denise Baker raised concerns with the grouping of the Urban and Rural under Phase 1B-Rural-Natural Heritage. It was her opinion that the Urban-Natural Heritage portion of the Appeals should be applied to the Phase 3 (Growth Framework/Urban Structure/Land Use) portion of the phasing as this would allow all Parties an understanding, which OP policies will be affected with ROPA 49.
10She indicated that compressing the Parties to exchange documents within the timeframe set out by the City is not appropriate.
11She advised that having the City implement OP amendments required by the introduction of ROPA 49, disregards public consultation required through a Municipal Comprehensive Review which circumvents the Planning Act.
12Andrew Biggart contended that it was unusual for a municipality to go back to the drawing board. He also stated that the timing for the exchange of documents would not be compressed if the Procedural Order for Phase 1B was approved at the July CMC.
13Kelly Yerxa informed the Tribunal that ROPA 49 followed a comprehensive public process with Ministry involvement. Public consultation and document postings on both the Region’s and Ministry site resulted in no appeals to ROPA 49 being received.
14Ms. Gibson suggested the Phase 1B Parties consider Tribunal-led mediation. The Tribunal informed the Parties should they wish Tribunal-led mediation, they are at liberty to contact the Case Coordinator for assistance.
15Having heard the submissions, the Tribunal directs that a 10-day hearing commence Monday, December 4, 2023, at 10 a.m. for the hearing of the merits of Phase 1B for the entirety of the City’s Natural Heritage appeals.
Monday, December 4, 2023, at 10 a.m. (10-day hearing)
GoTo Meeting: https://global.gotomeeting.com/join/765631861 Access code: 765-631-861 Audio-only line: (Toll Free) 1-888-455-1389 or +1 (647) 497-9391 Audio-only access code: is as indicated above
16Parties 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.
17Parties 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
18Persons 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 with the Access Code as indicated above.
19Individuals 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.
Phase 1C
20The City informed the Tribunal that there are no issues between the Parties and the City with regard to moving Phase 1C – Aggregates to a determined hearing date. It was proposed, on consent, that three days would be sufficient to cover the issues for Phase 1C. Based on the number of witnesses expected to be called, the Tribunal concurred. The Tribunal having had the benefit of Phase 1C Procedural Order, on consent of the Parties, prior to the issuance of this Decision appends the submission as Schedule 2 and considers it in force and effect to govern the proceedings of the upcoming hearing of the merits.
21The Tribunal directs that a three-day hearing will commence on Wednesday, October 11, 2023, at 10 a.m.
Wednesday, October 11, 2023, at 10 a.m. (three-day hearing)
GoTo Meeting: https://global.gotomeeting.com/join/909787981 Access code: 909-787-981 Audio-only line: (Toll-Free) 1-888-455-1389 or +1 (647) 497-9391 Audio-only access code: is as indicated above
22Please refer to paragraphs 16 to 19 for the Tribunal’s hearing instructions.
23The City requested a further CMC to discuss any Procedural Order amendments resulting from the introduction of ROPA 49 and Bill 23 which may impact any Phases going forward.
Further CMC
24Mr. Biggart stated that with modifications expected to the OP, a further CMC would identify any required adjustments needed to the Master Procedural Order.
25A Procedural Order would be finalized and submitted following the City’s anticipated modifications to the Official Plan to conform to ROPA 49 and Bill 23 for consideration by the Tribunal at the CMC.
26It was suggested that a July 2023 date would allow for the City to apply the amendments, receive instructions from Council and construct a Procedural Order based on the outcome of the aforementioned.
27The Tribunal directs that a one-day CMC will commence on Friday, July 7, 2023, at 10 a.m.
Friday, July 7, 2023, at 10 a.m. (one day CMC hearing)
GoTo Meeting: https://global.gotomeeting.com/join/979388733 Access code: 979-388-733 Audio-only line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: is as indicated above.
28Please refer to paragraphs 16 to 19 for the Tribunal’s hearing instructions.
ORDER
29The Tribunal’s directions as set out in this Decision are so ordered.
30The Tribunal directs that the REVISED Schedule 1, as attached, is in use unless further instructed by the Parties going forward.
31No further notice will be given.
32This Member is not seized but is available through the Case Coordinator for case management purposes.
“D. Chipman”
D. CHIPMAN
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 2
CASE NO(S).:
OLT-22-002219
(Formerly PL210040)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant:
1085 Clearview Limited Partnership
Appellant:
1246235 Ontario Inc.
Appellant:
1602211 Ontario Ltd.
Appellant:
2084 Lakeshore Holdings Ltd. et al.; and others
Description:
Proposed Official Plan Amendment for Burlington New Official Plan
Municipality:
City of Burlington
OLT Case No.:
OLT-22-002219
Legacy Case No.:
PL210040
OLT Lead Case No.:
OLT-22-002219
Legacy Lead Case No.:
PL210040
OLT Case Name:
1085 Clearview Limited Partnership v. Halton (Reg. Mun.)
PROCEDURAL ORDER
(PHASE 1C – AGGREGATES)
- The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written order.
Organization of the Hearing
The video hearing will begin on Wednesday October 11, 2023 at 10:00 a.m., for 3 days. The Parties will work together when preparing the hearing Work Plan to accommodate any identified scheduling constraints.
The length of the hearing will be 3 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.
The Parties and Participants to this phase are listed in Attachment 2 to this Order.
The Issues are set out in the Issues List attached as Attachment 3 to this Order. There will be no changes to this list unless the Tribunal permits it. A party who seeks changes to this list may have costs awarded against it.
The order of evidence is set out in Attachment 4 to this Order and shall be confirmed between the Parties and reflected in the hearing Work Plan. 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. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and phone number.
If the hearing is to proceed electronically, 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.
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 August 8, 2023. For expert witnesses, a party is to identify the area of expertise in which the witness is proposed to be qualified and a copy of their curriculum vitae.
Expert witnesses in the same discipline(s) shall have a meeting on or before August 25, 2023 to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the Parties and the Tribunal on or before September 27, 2023 if agreement is reached.
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, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided as in Section 14. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other Parties at the same time as the delivery of expert witness statements, as in Section 14. A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before September 1, 2023 or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.
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 Section 14.
On or before September 1, 2023 the Parties shall provide copies of their witness statements and expert witness statements (in accordance with section 11 herein) to the other Parties and to the Tribunal.
On or before September 21, 2023 the Parties may provide to all other Parties a written response to any written evidence.
On or before September 27, 2023 the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving Party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion.
A Party who provides a witness’ written evidence 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.
On or before September 29, 2023 the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.
The Parties undertake to make best their efforts to avoid duplicative evidence to the extent possible.
The Parties shall prepare a Joint Document Book on or before September 27, 2023 and one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in an accessible electronic format in accordance with Section 23.
If a Party intends to seek approval of revised official plan policies at the hearing, the Party shall provide copies of the revised policy language to the other Parties with their witness statements as exchanged in accordance with Section 14.
All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, effective June 29, 2021, or as may be amended. Section 23 applies regardless if the hearing event is in-person or electronic.
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.
The Tribunal may conduct mediation on consent of all Parties, or on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.
The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.
This Member is [not] seized.
So orders the Tribunal.
ATTACHMENT 1
SUMMARY OF DATES
DATE
EVENT
August 8, 2023
Exchange of witness lists (names, disciplines and order to be called)
August 18, 2023
Last date to challenge identification of expert witness
August 25, 2023
Meeting of Experts
September 1, 2023
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
September 21, 2023
Exchange of Reply Statements (if any)
September 27, 2023
Exchange of visual evidence (if any), Joint Document Book (with 1 hard copy to Tribunal), and Agreed Statement of Facts filed with the Tribunal (if agreement)
September 29, 2023
Hearing Plan
October 11, 2023
Hearing commences for 3 days
ATTACHMENT 2
LIST OF PARTIES/PARTICIPANTS
PHASE 1C – AGGREGATES
Parties
Counsel/Representative
Appellant
City of Burlington
Andrew Biggart/Christina Kapelos Ritchie Ketcheson Hart & Biggart LLP 1 Eva Road
Toronto, ON M9C 4Z5
Blake Hurley
City of Burlington – Legal 426 Brant Street
Burlington, Ontario L7R 3L1
Regional Municipality of Halton
Kelly Yerxa
Halton Region – Legal Services 1151 Bronte Road
Oakville, Ontario L6M 3L1
Ontario Stone, Sand & Gravel Association (OSSGA) / Nelson Aggregate Co.
David White / Mark Kemerer
Devry Smith Frank LLP
95 Barber Greene Rd #100 Toronto, Ontario M3C 3E9
1/40
Conserving Our Rural Ecosystems of Burlington Inc. (“CORE”)
David R. Donnelly
Donnelly Law
276 Carlaw Avenue, Suite 203 Toronto, Ontario M4M 3L1
Added Party
ATTACHMENT 3
ISSUES LIST
Note: The identification of an issue on this Issues List is intended to provide notice to all parties that a party will lead evidence and/or argument on the matter. This identification does not serve as an acknowledgement of relevancy to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing. The Parties agree these issues will be dealt with in Phase 1C insofar as they relate to the Aggregates policies of the Burlington Official Plan.
ISSUE(S)
APPELLANT(S)
- Are/do the following sections of the Official Plan:
1.4.4
2.1, 2.2.1(c), 2.2.2(d),2.2.3,2.3.5 and 2.3.6
3.5
4.1, 4.2, 4.4, 4.6 and 4.10
5.5
9.1, 9.2, 9.3 and 9.4, and
12.1.1(2)(b), 12.1.1(2.2)(c)
a) consistent with the Provincial Policy Statement 2020, including, but not limited to policies 1.2.6, 1.6.7, 1.6.8, 1.8, 2.1, 2.2, 2.3.6, 2.5 and 2.6, and
b) conform to the Growth Plan, including, but not limited to section 1.2.3 or Chapter 4 (if deemed applicable); and
c) conform to the Niagara Escarpment Plan, including but not limited to parts 1.2.2, 1.5, 1.9, 2.6, 2.7, 2.8, 2.9, and 2.10.
Ontario Stone, Sand & Gravel Association
Nelson Aggregate Co.
ATTACHMENT 4
ORDER OF EVIDENCE
City of Burlington
OSSGA
Nelson Aggregate Co.
Conserving Our Rural Ecosystems of Burlington Inc. (“CORE”)
City of Burlington (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 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.