Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 19, 2023

CASE NO.: OLT-21-001709

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

Applicant/Appellant: 1611905 Ontario Limited

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

Description: To permit the development of two high-density residential blocks

Reference Number: 2-06-20

Property Address: Part Lot 2 Concession 7

Municipality: St. Thomas

OLT Case No: OLT-21-001709

OLT Lead Case No: OLT-21-001709

OLT Case Name: 1611905 Ontario Limited v. St. Thomas (City)

BEFORE:

SHARYN VINCENT VICE-CHAIR

Wednesday, the 19th day of April, 2023

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on May 23, 2023.

“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.

ATTACHMENT “A”

ISSUE DATE: April 19, 2023 CASE NO(S).: OLT-21-001709

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

Applicant/Appellant: 1611905 Ontario Limited

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

Description: To permit the development of two high-density residential blocks

Reference Number: 2-06-20

Property Address: Part Lot 2, Concession 7

Municipality: St. Thomas

OLT Case No.: OLT-21-001709

OLT Lead Case No.: OLT-21-001709

OLT Case Name: 1611905 Ontario Limited v. St. Thomas (City)

PROCEDURAL ORDER

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 23, 2023 at 10 a.m. at https://global.gotomeeting.com/join/660145013 using access code: 660-145-013

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 (see the sample procedural order for the meaning of these terms).

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 January 23, 2023 and in accordance with paragraph 21 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 22, 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 April 13, 2023.

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 4, 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 22 below.

14. On or before April 18, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before May 8, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before April 14, 2023 in accordance with paragraph 21 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before May 15, 2023.

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 16, 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.

21. 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.

22. 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:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

PARTIES

No.	List of Parties	Lawyers / Representative*
1	1611905 Ontario Limited (in respect of OLT-21-001709) and Shawside Development Limited (in respect of OLT-21-001710)	Loopstra Nixon 135 Queens Plate Drive, Suite 600 Toronto, ON M9W 6V7 Quinto M. Annibale Brendan Ruddick and Alexandra Whyte Tel: 416-748-4757 / 416-748-5126 E-mail: qannibale@loonix.com bruddick@loonix.com awhyte@loonix.com
2	City of St. Thomas	Baroudi Law 150 Dufferin Avenue, Suite 702 London, ON N6A 5N6 Analee Baroudi Tel: 519-438-3776 Email: analee@baroudilaw.ca

PARTICIPANTS

Katie Labrie

Email: Katiemackenzie6@hotmail.com

ATTACHMENT 2

ISSUES LIST

City of St. Thomas (in respect of OLT-21-001709)

1. Does approval of the Zoning By-law Amendment application as it relates to the proposed high density residential blocks have regard to matters of provincial interest in section 2 of the Planning Act including the matters set out in subsections 2(h), 2(n), 2(p) and 2(r) therein?

2. Is the proposed Zoning By-law Amendment as it relates to the proposed high density residential blocks consistent with the Provincial Policy Statement, 2020? In particular, but not limited to the following policy sections:

• Policy Sections 1.1.1, 1.1.3.2, 1.1.3.3 and 1.1.3.4 (Settlement Areas)
• Policy Sections 1.4.3 c), d) and e) (Housing).

3. Is the proposed Zoning By-law Amendment as it relates to the proposed high density residential blocks in conformity with the City of St. Thomas Official Plan? In particular, but not limited to the following policy sections:

• Policy Section 5.1.2 (i) and (ii) (Goals-Residential);
• Policy Section 5.1.3.1 (Policies-Residential);
• Policy Section 5.1.3.4 (vi), (viii), (ix), (xiv), (xv) and (xvi) (High Density Residential);
• Policy Section 5.1.3.5 (Comprehensively Planned Housing).

4. Does the Zoning By-law Amendment as it relates to the proposed high density residential blocks authorize an appropriate level of height, density and intensification for the subject lands having regard for the site, adjacent properties and the character of the surrounding lands?

5. Does the proposed development as it relates to the proposed high density residential blocks provide for an appropriate streetscape?

6. Does the proposed development as it relates to the proposed high density residential blocks provide for an appropriate amount of amenity area?

7. Does the proposed Zoning By-law Amendment as it relates to the proposed high density residential blocks sufficiently regulate matters of built form including height, density, massing, scale, setbacks, lot coverage and landscaping having regard for the site, adjacent properties and the character of the surrounding lands?

8. Does the proposed development as it relates to the proposed high density residential blocks represent good land use planning and is it in the public interest?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 1611905 Ontario Limited and Shawside Development Limited
2. City of St. Thomas
3. 1611905 Ontario Limited and Shawside Development Limited (reply)

ATTACHMENT 4

SUMMARY OF KEY DATES

DEADLINE/DATE	EVENT
January 23, 2023	Parties to exchange lists of witnesses and the order in which they will be called, including a copy of the Curriculum Vitae and discipline.
February 22, 2023	Expert witnesses in the same field shall have a meeting.
April 13, 2023	Parties file a Statement of Agreed Facts and Issues with the OLT case coordinator.
April 4, 2023	Witness Statements, Expert Reports, Participant Statements, and the written evidence of witnesses to be exchanged.
April 14, 2023	Reply Witness Statements and the reply to written evidence of witnesses (if any) to be exchanged.
May 8, 2023	Parties to exchange copies of Visual Evidence.
May 16, 2023	Parties to file Preliminary Hearing Plan with the OLT case coordinator.
May 15, 2023	Parties to file Joint Document Book with the OLT case coordinator.
April 18, 2023	Parties to advise Tribunal whether all scheduled hearing days are required.
May 23, 2023	Hearing commences.

ATTACHMENT 5

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.