Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 28, 2023
CASE NO(S).: OLT-22-004680
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: FGL Kerns Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of a four-storey retirement home with ground floor for commercial use
Reference Number: 520-02/21
Property Address: 1600 Kerns Road
Municipality/UT: Burlington/Halton
OLT Case No.: OLT-22-004680
OLT Lead Case No.: OLT-22-004680
OLT Case Name: FGL Kerns Inc. v. Burlington (City)
Heard: April 25, 2023 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
FGL Kerns Inc. (“Applicant/Appellant”)
R. Kehar D. Baker (absent)
City of Burlington (“City”)
B. Hurley
Regional Municipality of Halton
B. Maione (absent)
Conservation Halton
K. Stavrakos (absent)
Kirstin Silvera and Joanna Wice
Self-represented*
Douglas Stewart
Self-represented* (absent)
MEMORANDUM OF ORAL DECISION DELIVERED BY S. TOUSAW ON APRIL 25, 2023 AND ORDER OF THE TRIBUNAL
Purpose
1This second Case Management Conference (“CMC”) was convened for an appeal by the Applicant to the absence of a decision by the City on a Zoning By-law Amendment (“ZBA”) affecting 1600 Kerns Road, Burlington (“site”).
2The Applicant proposes a four-storey building with commercial uses at grade and a retirement home of 118 units above.
3In compliance with the Tribunal’s directions from the first CMC, the Applicant filed a completed Procedural Order in advance of this CMC, with consent of all Parties, including Douglas Stewart, the requestor being considered for Party status today.
4Certain Parties were not present at this CMC, potentially due to a misunderstanding that the CMC was not proceeding given that no outstanding procedural issues remained. The Parties in attendance confirmed that all listed Parties had agreed with the draft Procedural Order (“PO”) and had no objection to Mr. Stewart being granted Party status. On that basis, the Tribunal proceeded with this CMC.
Party Status
5With consent of the Parties, the Tribunal granted Party status to Mr. Stewart. Mr. Stewart intends to call a planning witness and is directed to avoid duplication of submissions at the hearing with that of the City or other aligned Parties.
Procedural Order
6The Tribunal approved the PO, being Attachment 1, as filed with consent of the Parties. The Tribunal amended the PO only to correct the spelling of Cathy “Lovett” and to reference Mr. Stewart as a Party.
7In the course of developing evidence for the hearing, the Parties were reminded to consider mediation, should it become appropriate for the reduction or resolution of issues.
8The Parties aligned in opposition to the Applicant were directed to avoid the duplication of oral evidence and submissions at the hearing on the merits.
Hearing
9The hearing will proceed as scheduled at the first CMC and repeated below.
10The Hearing on the merits will be held by video conference at 10 a.m. on Monday, October 2, 2023 for nine days (the Tribunal is not sitting October 9, 2023). No further Notice will be given.
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/344779885
Access code: 344-779-885
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 344-779-885.
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.
ORDER
15The Tribunal Orders its directions and findings as set out above.
16This Member is not seized but may be contacted through the Case Coordinator should issues arise.
“S. Tousaw”
S. tousaw
VICE-CHAIR
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 1
CASE NO(S).: OLT-22-004680
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant and Appellant: FGL Kerns Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of a four-storey retirement home with ground floor for commercial use
Reference Number: 520-02/21
Property Address: 1600 Kerns Road
Municipality/UT: Burlington/Halton
OLT Case No.: OLT-22-004680
OLT Lead Case No.: OLT-22-004680
OLT Case Name: FGL Kerns Inc. v. Burlington (City)
PROCEDURAL ORDER
- 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
The video hearing will begin on Monday October 2, 2023 at 10:00am. The Hearing will run until October 13, 2023, however the Tribunal will not sit on October 9, 2023.
The parties’ initial estimation for the length of the hearing is 9 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 to this Order.
The parties and participants identified at the case management conference are set out in Attachment 2.
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.
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.
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.
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
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 Friday June 2, 2023, 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.
Expert witnesses in the same field shall have a meeting on or before Friday June 30, 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 Monday July 10, 2023.
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.
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.
On or before Friday August 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.
On or before Friday August 4, 2023, 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.
On or before Friday September 1, 2023, parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 22 below.
On or before Tuesday September 5, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Friday September 22, 2023, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday September 22, 2023.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday September 22, 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.
All filings shall be submitted electronically. 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.
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.
ATTACHMENT 1
SUMMARY OF KEY DATES
Date
Hearing Event
Friday June 2, 2023
Exchange of List of Witnesses
Friday June 30, 2023
Expert Witness Meeting
Monday July 10, 2023
Filing of Statement(s) of Agreed Facts and Issues
Friday August 4, 2023
Exchange of Witness Statements
Friday August 4, 2023
Delivery of Participant Statements
Friday September 1, 2023
Exchange of Reply Witness Statements
Friday September 22, 2023
Exchange of Visual Evidence
Tuesday September 5, 2023
Confirmation to Tribunal if all reserved hearing dates are still required
Friday September 22, 2023
Filing of Joint Document Book
Friday September 22, 2023
Filing of Hearing Plan
Monday October 2, 2023
Hearing Commences
ATTACHMENT 2
PARTIES AND PARTICIPANTS
PARTIES
FGL Kerns Inc.
WeirFoulds LLP
1525 Cornwall Rd, Suite 10
Oakville, ON Canada
L6J 0B2
Denise Baker
905-829-5090
City of Burlington
City of Burlington
426 Brant St
Burlington, ON Canada
L7R 3Z6
Blake Hurley
Region of Halton
Region of Halton
1151 Bronte Road
Oakville, Ontario
L6M 3L1
Brittany Maione
Conservation Halton
O’Connor MacLeod Hanna LLP
700 Kerr Street
Oakville, Ontario L6K 3W5
Konstantine Stavrakos
905-842-8030 ext. 3361
Joanna Wice
647-213-1455
Kirstin Silvera
905-630-6994
Doug Stewart
647-622-1615
PARTICIPANTS
Cathy Lovett, President of Condo Corporation HCC32
Tel: 905-220-2818
ATTACHMENT 3
ISSUES LIST
City of Burlington
- Is the proposed Zoning By-law Amendment consistent with the Provincial Policy Statement, 2020 (PPS) with respect to complete communities and natural hazards, and with specific consideration for the following PPS sections?
a. Healthy, Liveable and Safe Communities – 1.1.1 c)
b. Transportation Systems – 1.6.7.4
c. Natural Hazards – 3.1.1 b)
d. Implementation and Interpretation – 4.6
- Does the proposed Zoning By-law Amendment conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended, with respect to complete communities and natural hazards, with specific consideration for the following policies?
a. Guiding Principles – 1.2.1
b. Managing Growth – 2.2.1 (4)
c. Employment – 2.2.5 (15)
- Does the proposed Zoning By-law Amendment conform to policies in the Regional Official Plan with respect to complete communities and natural hazards, with specific consideration for the following policies?
a. Urban Area and the Regional Urban Structure – 72.1
- Is the proposed Zoning By-law Amendment in conformity with, and does it maintain the intent of, the policies of the City’s Official Plan, including:
a. Guiding Principles – Part I – 3.0 (a)
b. Natural Heritage – Part II – 2.4
c. Housing Intensification – Part III – 2.5.2
d. Neighbourhood Commercial Designation – Part III – 4.6.1
e. Definitions – Part VIII (definitions included in the aforementioned policies)
- Does the proposed Zoning By-law Amendment have appropriate regard for the City’s New Official Plan, as approved by Halton Region on November 30, 2020 and currently under appeal, including:
a. A Healthy and Greener City – Chapter 1 – 1.4.4 f)
b. Natural Heritage System – Chapter 4 – 4.2.1 i)
c. Natural Heritage System – Chapter 4 – 4.2
d. Local Centre Designation – Chapter 8 – 8.1.3 (1)
e. Local Centre Designation – Chapter 8 – 8.1.3 (5.1)
f. Local Centre Designation – Chapter 8 – 8.1.3 (5.2)
g. Definitions – Chapter 13 (definitions included in the aforementioned policies)
- Does the Zoning By-law Amendment also require an Official Plan Amendment given the proposed residential use on the ground floor?
a. Neighbourhood Commercial Designation – Official Plan (1997, as amended) Part III, Section 4.6.2 b)
b. Local Centre Designation – Official Plan (2020) Chapter 8, Section 8.1.3 (5.2) b)
- If the proposed Zoning By-law Amendment is approved, should a Holding provision be included to require the dedication of the lands associated with the erosion hazard limit once the limits have been confirmed?
a. Part II, Subsection 2.11.3 g) – Official Plan (1997, as amended)
Does the proposed Zoning By-law Amendment provide sufficient amenity area?
Does the proposed Zoning By-law Amendment provide sufficient space for an appropriate landscape buffer?
Does the proposed Zoning By-law Amendment represent good land use planning?
Region of Halton
Is the proposed Zoning By-law Amendment consistent with the Provincial Policy Statement 2020, specifically regarding the issues identified herein and to be addressed in the context of the Halton’s Regional Official Plan 2009 (as amended) (ROP), including:
- Natural Heritage System
i. Provincial Policy Statement: Section 2.1 (Natural Heritage) & Section 3.1 (Natural Hazards)
Is the proposed Zoning By-law Amendment in conformity with the Regional Natural Heritage System (RNHS) goals, objectives, and policies of the ROP, including:
- Sections 114 and 114.1
- Sections 115.2, 115.3, and 115.4
- Section 116.1, 117.1, and 118
- Definitions of Part VI (definitions included in the aforementioned sections)
Has it been demonstrated that the proposed Zoning By-law Amendment would result in no negative impacts to the RNHS, in accordance with Section 118 of the ROP?
Does the proposed development implement appropriate setbacks and protection of the Regulated Flood Plans as required by ROP Policy 118(11) and (12)?
Has the potential for contamination on the subject lands been adequately assessed and appropriately addressed in accordance with Section 147(17) of the Region of Halton’s Official Plan, 2009 (as amended) and the Region’s Guideline (Protocol) for Reviewing Development Applications with Respect to Contaminated or Potentially Contaminated Sites. If approved, have the appropriate Holding provisions been put in place to address the Region’s Site Contamination policies (Section 147(17)?
Does the proposed Zoning By-law Amendment represent good land use planning as it relates to the Regional Natural Heritage System and site contamination?
Conservation Halton
Is the application consistent with Section 3.1.1-3.1.7 of the Provincial Policy Statement (2020)?
Have the erosion hazards been adequately assessed, and limits delineated in accordance with the Ontario Ministry of Natural Resources Technical Guide –River and Stream Systems: Erosion and Hazard Limit (2002) and Geotechnical Principles for Stable Slopes (1998)?
Does the application comply with Ontario Regulation 162/06, including the regulatory tests, and Conservation Halton’s Policies and Guidelines for the Administration of Ontario Regulation 162/06 and Land Use Planning, dated April 27, 2007 (last amended, November 26, 2020)?
Joanna Wice and Kirstin Silvera
- Does the proposed zoning by-law amendment conform with and maintain the intent of the City's Official Plan, including:
a. Neighbourhood Commercial Designation - Part III, policy 4.6.2
- Does the proposed zoning by-law amendment have appropriate regard for the City's New Official Plan, as approved by Halton Region on November 30, 2020 and currently under appeal, including:
a. Urban Design and Built Form, Existing Community Areas - Chapter 7 - 7.3.2
b. Urban Design and Built Form, Primary and Secondary Growth Areas - Chapter 7 - 7.3.2(1)
Ms. Wice and Silvera adopt the following issues by the City of Burlington:
Is the proposed Zoning By-law Amendment in conformity with, and does it maintain the intent of, the policies of the City’s Official Plan, including:
a. Guiding Principles – Part I – 3.0 (a)
c. Housing Intensification – Part III – 2.5.2
d. Neighbourhood Commercial Designation – Part III – 4.6.1
- Does the proposed Zoning By-law Amendment have appropriate regard for the City’s New Official Plan, as approved by Halton Region on November 30, 2020 and currently under appeal, including:
d. Local Centre Designation – Chapter 8 – 8.1.3 (1)
e. Local Centre Designation – Chapter 8 – 8.1.3 (5.1)
f. Local Centre Designation – Chapter 8 – 8.1.3 (5.2)
- Does the proposed Zoning By-law Amendment represent good land use planning?
Douglas Stewart
- Does the proposed zoning by-law amendment conform with and maintain the intent of the City's Official Plan, including:
a. Neighbourhood Commercial Designation - Part III, policy 4.6.2
Mr. Stewart adopts the following issues by the City of Burlington:
Is the proposed Zoning By-law Amendment in conformity with, and does it maintain the intent of, the policies of the City’s Official Plan, including:
a. Guiding Principles – Part I – 3.0 (a)
c. Housing Intensification – Part III – 2.5.2
d. Neighbourhood Commercial Designation – Part III – 4.6.1
- Does the proposed Zoning By-law Amendment have appropriate regard for the City’s New Official Plan, as approved by Halton Region on November 30, 2020 and currently under appeal, including:
d. Local Centre Designation – Chapter 8 – 8.1.3 (1)
e. Local Centre Designation – Chapter 8 – 8.1.3 (5.1)
f. Local Centre Designation – Chapter 8 – 8.1.3 (5.2)
- Does the proposed Zoning By-law Amendment represent good land use planning?
ATTACHMENT 4
ORDER OF EVIDENCE
FGL Kerns Inc.
City of Burlington
Region of Halton
Conservation Halton
Joanna Wice / Kirstin Silvera / Douglas Stewart
FGL Kerns Inc., in reply