3223701 Ontario Inc. v. Ottawa (City), 2023 CanLII 26307

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 29, 2023

CASE NO(S).: OLT-22-004606

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

Applicant/Appellant

3223701 Canada Inc.

Subject:

Application to amend the Zoning By-law – Refusal of application

Description:

To permit the development of two four-storey apartment buildings with 258 residential units.

Reference Number:

D02-02-20-0094

Property Address:

100 Steacie Drive

Municipality/UT:

Ottawa/Ottawa

OLT Case No:

OLT-22-004606

OLT Lead Case No:

OLT-22-004606

OLT Case Name:

3223701 Ontario Inc. v. Ottawa (City)

Heard:

February 14, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

3223701 Canada Inc.

U. Melinz T. Stanton

City of Ottawa (the “City”)

T. Marc

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON FEBRUARY 14, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This first Case Management Conference (“CMC”) was held to prepare for a Hearing on the merits of the Appellant’s appeal to the Tribunal of the City’s refusal of an application for a Zoning By-law Amendment (the “Appeal”) to permit the development of the lands municipally known as 100 Steacie Drive in the City of Ottawa (the “Subject Property”) with two four-storey apartment buildings.

2The Tribunal entered into evidence as Exhibit 1 and Exhibit 2 respectively two Affidavits of Service of Sandra Tree each sworn on January 10, 2023, and is satisfied that same demonstrates proper notice such that no further notice is required in these proceedings.

PARTY AND PARTICIPANT STATUS

3There were no requests for Party status in the subject proceedings.

4The following persons requested Participant status in the subject proceedings:

(a) Robert Bishop – Mr. Bishop submitted a written request for Participant status. In this request, Mr. Bishop stated that he resides within close proximity to the Subject Property and identified concerns including density and traffic concerns relating to the proposed development of the Subject Lands. The Tribunal is satisfied that Mr. Bishop is raising genuine land use planning issues and, on no opposition of the Parties, granted Participant status to Mr. Bishop in the subject proceedings.

(b) Susan Maslin – Ms. Maslin submitted a written request for Participant status and attended the CMC. Ms. Maslin advised that she resides at 27 Lismer Crescent which is located in close proximity to the Subject Lands. Ms. Maslin identified land use planning concerns including land use compatibility, traffic, and noise matters. The Tribunal is satisfied that Ms. Maslin is raising genuine land use planning issues and, on no opposition of the Parties, granted Participant status to Ms. Maslin in the subject proceedings.

(c) Kanata Beaverbrook Community Association (the “KBCA”) – Neil Thomson attended the CMC as a representative on behalf of the KBCA’s written request for Participant status. The request identifies Mr. Thomson as being President of the KBCA and the Tribunal requested that Mr. Thomson provide the required written authorization to act as KBCA’s representative to the case co-ordinator. Mr. Thomson advised that the KBCA has land use planning concerns about the proposed development including land use compatibility, traffic, transit and pedestrian safety matters. The Tribunal is satisfied that the KBCA is raising genuine land use planning issues and, on consent of the Parties, granted Participant status to the KBCA.

(d) Catherine Roberts – Ms. Roberts submitted a written request for Participant status wherein she raised land use planning concerns pertaining to traffic including the traffic impact assessment. The Tribunal is satisfied that Ms. Roberts is raising genuine land use planning issues and, on consent of the Parties, granted Participant status to Ms. Roberts.

(e) Edwin Watts – Mr. Watts submitted a written request for Participant status and attended the CMC in furtherance of his land use planning concerns including traffic, parking, density and land use compatibility. The Tribunal is satisfied that Mr. Watts is raising genuine land use planning issues and, on consent of the Parties, granted Participant status to Mr. Watts.

(f) Marianne Wilkinson – Ms. Wilkinson submitted a written request for Participant status and attended the CMC in furtherance of her land use planning concerns including land use compatibility, transit, and access to educational and recreational services. The Tribunal is satisfied that Ms. Wilkinson is raising genuine land use planning issues and, on consent of the Parties, granted Participant status to Ms. Wilkinson.

(g) Andrew Carran – Mr. Carran submitted a written request for Participant status and attended the CMC in furtherance of his land use planning concerns including traffic, building height, proximity to the railway line, stormwater management, density and compatibility. With regard to the issue of stormwater management, counsel for the Appellant noted that this is not an issue identified in the draft Issues List that has been prepared and submitted on consent of the City and the Appellant. The Tribunal is satisfied that the Appellant may raise any concerns in this regard at the Hearing before the presiding Tribunal for its consideration as to the relevance and weight given to such issues raised by Participants. The Tribunal is satisfied that Mr. Carran is raising genuine land use planning issues and, on consent of the Parties, granted Participant status to Mr. Carran.

(h) Gail Currie and Christopher Davis – Ms. Currie and Mr. Davis submitted a written request for Participant status and attended the CMC in furtherance of their joint request wherein they identify concerns pertaining to transit, density, and compatibility. The Tribunal is satisfied that Ms. Currie and Mr. Davis are raising genuine land use planning issues and, on consent of the Parties, granted joint Participant status to Ms. Currie and Mr. Davis.

HEARING DATES AND PROCEDURAL ORDER

5The Parties estimate that five Hearing days will be required for the adjudication of the Appeal. The Parties identified the need for expert evidence in the areas of land use planning, noise, and transportation and also submitted a draft Issues List as part of a draft Procedural Order to the Tribunal, which is consistent with these areas of expert evidence. Based on the foregoing, the Tribunal is satisfied that five Hearing days is a reasonable estimate of Hearing duration.

6The Parties were directed to provide a further revised draft Procedural Order on or before Tuesday, February 28, 2023 that includes the required dates in accordance with the Hearing dates identified below in this Order.

7The Parties provided the further revised draft Procedural Order as directed at the CMC, and the finalized Procedural Order for the subject proceedings attached as Schedule A to this Order, is approved.

MEDIATION OR SETTLEMENT

8The Parties indicated that there does not appear to be utility in pursuing mediation in furtherance of narrowing or resolving any of the issues of the Appeal at this time. The Tribunal’s Case Coordinator may be contacted in the event that the Parties wish to pursue an opportunity for Tribunal-facilitated mediation.

ORDER

9The Tribunal orders as follows:

(a) The following persons are granted participant status in the subject proceedings:

i. Robert Bishop

ii. Susan Maslin

iii. Kanata Beaverbrook Community Association

iv. Catherine Roberts

v. Edwin Watts

vi. Marianne Wilkinson

vii. Gail Currie and Christopher Davis (jointly)

viii. Andrew Carran

(b) The Hearing by video of the Appeal will commence on Monday, June 12, 2023 at 10 a.m. for five (5) days and in accordance with the Procedural Order approved pursuant to this Order.

10The Hearing is scheduled to proceed by video on Monday, June 12, 2023 at 10 a.m.

11Parties 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://global.gotomeeting.com/join/765631861

Access code: 765-631-861

12Parties 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

13Persons 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) 497-9391 or Toll Free 1-888-455-1389. The access code is 765-631-861.

14Individuals 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.

15The Member is not seized in this matter but will remain available for continued case management to the extent that the Tribunal calendar permits.

16No further notice is required or will be given.

“D. Arnold”

D. ARNOLD

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 “A” – Procedural Order

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

Applicant/Appellant: 3223701 Canada Inc.

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit the development of two four-storey apartment buildings with 258 residential units

Reference Number: D02-02-20-0094

Property Address: 100 Steacie Drive

Municipality/UT: Ottawa/Ottawa

OLT Case No: OLT-22-004606

OLT Lead Case No: OLT-22-004606

OLT Case Name: 3223701 Ontario Inc. v. Ottawa (City)

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 June 12, 2023 at 10 am and it is scheduled for 5 days to conclude on June 16, 2023.

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.

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

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 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 April 13, 2023 (60 days prior to the hearing date) 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 May 22, 2023 (21 days before the hearing date) 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 May 29, 2023 (14 days prior to the start of the hearing date).

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 April 28, 2023 (45 days before the hearing date), 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 22 below.

14. On or before April 28, 2023 (45 days before the hearing date), a participant shall provide copies of their written participant statement to the other parties 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.

15. On or before May 8, 2023 (35 days prior to the start of the hearing date), the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before May 29, 2023 (14 days before the hearing date), the parties shall provide copies of their visual evidence to all of the other parties 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days (May 8, 2023) after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before May 29, 2023 (14 days prior to the hearing date).

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 29, 2023 (14 days prior to the start of the hearing date) 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.

22. 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.

23. 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.

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

PARTIES

1. 3223701 Canada Inc.
2. City of Ottawa

PARTICIPANTS

1. Gail Currie and Christopher Davis
2. Marianne Wilkinson
3. Susan Maslin
4. Edwin Watts
5. Neil Thomson – Kanata Beaverbrook Community Association
6. Catherine Roberts
7. Andrew Carran
8. Robert Bishop

ATTACHMENT 2

ISSUES LIST

Note: The identification of an issue on this list does not mean that all Parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to 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.

Any Party may call or not call evidence on any issue; however, no Party is obligated to call evidence on any particular issue or every issue.

Defined Terms

Zoning By-law Amendment – ZBA

Subject Lands – 100 Steacie Drive

Planning - PPS, OP & Zoning Bylaw

1. Is the proposed ZBA consistent with the Provincial Policy Statement 2020 considering policies:

Development and Land Use Patterns - 1.1.1, 1.1.3

Land Use Compatibility - 1.2.6

Housing - 1.4

Public Spaces, Recreation, Parks, Trails and Open Spaces - 1.5

Transportation Systems - 1.6.7

Transportation & Infrastructure Corridors – 1.6.8

Rail facilities – 1.6.9

Natural Heritage 2.1

1. Does the ZBA represent good land use planning considering the 2003 Official Plan (as amended), the OP that was in force at the time of application and decision of Council, considering policies:

2.2.2 Managing Intensification Within the Urban Area,

2.5.1 Building Liveable Communities,

3.6.1 General Urban Area,

4.7 Environmental Protection,

4.8.1 Floodplains Environmentally Sensitive Areas

4.8.7 Environmental Noise Compatibility

1. Does the proposed ZBA conform with the new Official Plan, considering policies:

6.6.3.2 - Kanata North Special/Economic District Policies

5.4 - Suburban West transect policies (including Evolving Overlay 5.6)

10.2.1 - Environmental Noise Control

1. How much weight should be given to the New Official Plan policies?

2. Does the ZBA maintain the intent and purpose of the previous and new OP?

3. Is the proposed ZBA, and hence corresponding residential use, compatible with the surrounding land uses?

4. Do the proposed Amendments represent an appropriate use of the land and good land use planning?

Connectivity

1. Does the development provide appropriate connectivity with the existing and planned transportation network, particularly with respect to pedestrians?

Transportation and Transit

1. Will the proposed residential use cause unacceptable impacts on intersection operations?

Specifically, the intersections of March/Teron & Steacie Rd.

1. Does the proposed residential use have appropriate access to Transit?

Community Amenities

1. Does the proposed residential development have appropriate access to community amenities?

Noise & Compatibility

1. Is the ZBA to permit residential uses compatible with the surrounding land uses in regard to noise and vibration?

2. Has the applicant satisfied the requirements of the OP and Ottawa Noise Guidelines regarding the Noise Assessment?

3. Are there noise mitigation measures that should be implemented associated with the proposed residential use?

Council Decision

1. How much weight and regard should the Tribunal give to the decision of council?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 3223701 Ontario Inc.
2. City of Ottawa
3. Reply by 3223701 Ontario Inc.