Wang v. Ottawa (City), 2023 CanLII 432

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

January 05, 2023

CASE NO(S).:

OLT-22-002736

PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c. O. 18, as amended

Appellant:

Jianbin Wang

Subject:

Appeal of Refusal of Permit for Construction

Property Address:

480 Cloverdale Road (Rockcliffe Park Heritage Conservation District)

Legal Description:

PART OF LOT E ON PLAN 4M-61; PART OF DEVONSHIRE ROAD, AS CLOSED BY JUDGES ORDER LT30380 BEING DESCRIBED AS PARTS 1 AND 2 ON PLAN 4R-33510; SUBJECT TO AN EASEMENT AS IN LT30380; ROCKCLIFFE PARK

Municipality:

City of Ottawa

OLT Case No.:

OLT-22-002736

OLT Case Name:

Wang v. Ottawa (City)

Heard:

December 2, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Jianbin Wang

Philip Osterhout

(“Applicant”/“Appellant”)

Crystal McConkey

City of Ottawa

Christine Enta

(“City”)

Rockcliffe Park Residents Association (“RPRA”)

Michele Collum-Hayman*

Kim Ratushny

Katie Black

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON december 2, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This third Case Management Conference (“CMC”) was convened for the Applicant’s appeal to the City’s refusal under the Ontario Heritage Act (“OHA”) of a permit for the construction of a dwelling at 480 Cloverdale Road (“site”), in the Rockcliffe Park neighbourhood, in the City.

Party Status Request

2The request for Party status to be transferred from Michael Kelen to the Rockcliffe Park Residents Association (“RPRA”) was granted without objections from the Parties as RPRA had filed relevant Party status request and proof of incorporation to the Case Coordinator.

Draft Procedural Order and Issues List

3Philip Osterhout, Counsel for the Applicant, advised that a draft Procedural Order and draft agreed Issues List of the Applicant and the City have been circulated to the other Parties for comments. Kim Ratushny and RPRA have filed their respective Issues List. RPRA’s list adopted Ms. Ratushny’s list with a couple of clarifications and is generally the same as Ms. Ratushny’s list.

4The Parties were to finalize the Procedural Order and the Issues List for the hearing, which the Parties indicated some five days were required. Since there were three sets of Issues filed, the Tribunal reviewed the three lists to obtain an understanding of the respective issues raised. As noted, the RPRA’s list was generally the same as Ms. Ratushny’s list (save for two clarifications). As the issues were narrowed, it became clear that it was a comparison of the agreed draft issues of the Applicant’s/the City’s as compared against Ms. Ratushny’s list. Having reviewed these lists, the Tribunal determined that Attachment 2 in the Procedural Order has taken into consideration all relevant issues raised by Ms. Ratushny and RPRA. The six issues listed clearly encapsulated all relevant issues and pertinent sections of the relevant legislative framework raised by Ms. Ratushny and RPRA except for the “legal jurisdictional” issue advised by Katie Black, counsel for Ms. Ratushny.

5In gist, the legal jurisdictional issue, as framed, was “If the new construction does not comply with s. 7.4.2(3) of the Rockcliffe Park Heritage Conservation District Plan (“RPHCDP”), is there legal jurisdiction to issue a heritage permit to the Applicant under s. 42 of the Ontario Heritage Act?”

6Ms. Ratushny also generally framed the issue as: “If there is any non-compliance with other sections of the RPHCDP, is there legal jurisdiction to issue a heritage permit?”

7The Tribunal notes that for jurisdictional challenges, the Party making the challenge should file a motion, supported by an affidavit and authorities to enable an appropriate determination after fulsome submissions by Parties.

8Ms. Black did insist that the issue should be listed for the hearing. Counsels for the Applicant and the City disagreed as, in their view, a jurisdiction issue is not proper at a full hearing where Parties would have expended time and resources in preparation for the hearing.

9The Tribunal’s view is that it is appropriate to scope the issues for hearing without including the jurisdiction issue. Since the Attachment 2 issues have substantially listed the parties’ relevant issues, including s.7.4.2(3) of RPHCDP for hearing, the Tribunal approves the Draft Procedural Order and the attached list of six issues for the hearing. The challenging party will be able to file a motion to determine the jurisdiction issue, if desired, before the hearing.

Disposition

10A five-day hearing will be fixed for the appeal as requested, and Parties will forward a Procedural Order with the deadlines filled in, to the case coordinator within two weeks of this CMC.

HEARING

11A five-day hearing is scheduled to commence on Monday, June 5, 2023 to Friday, June 9, 2023, by video hearing at 10 a.m.

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. The hearing details are as follows:

https://global.gotomeeting.com/join/909-787-981

Access code: 909-787-981

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) 497-9391 or (Toll Free) 1 (888) 455-1389. The access code is as indicated above.

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 hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

16The Tribunal Orders that:

a. Party status is granted to the Rockcliffe Park Residents Association (“RPRA”) replacing Michael Kelen.

b. A five-day hearing will commence at 10 a.m. by video hearing on Monday June 5, 2023 to Friday, June 9, 2023.

c. The Draft Procedural Order filed with the Attachment 2 list of six agreed issues for hearing is hereby approved.

d. the Parties are to forward a Procedural Order with the deadlines filled in together with the approved issues list to the Case Coordinator on or before Friday, December 16, 2022. The Procedural Order with the approved issues list has been filed and is attached as Attachment 1 to this decision.

e. the Procedural Order shall govern the proceedings.

17No further notice will be given.

18The Member is not seized.

“T.F. Ng”

T.F. NG

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.

ATTACHMENT 1

PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended

Appellant:

Jianbin Wang

Subject:

Appeal of Refusal of Permit for Construction

Property Address:

480 Coverdale Road (Rockcliffe Park Heritage Conservation District)

Legal Description:

Part of Lot E on Plan 4M-61; Part of Devonshire Road, as closed by Judges Order LT30380 being described as Parts 1 and 2 on Plan 4R-33510, subject to an easement as in LT30380, Rockcliffe Park

Municipality:

City of Ottawa

OLT Case No.:

OLT 22-002736

OLT Case Name:

Wang v. Ottawa (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 June 5, 2023 at 10 a.m.

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. The Rockcliffe Park Residents Association and Ms. Ratushny have already provided their lists following a prior Order of the Tribunal. The Appellant and the City must deliver their lists on or before December 9, 2022 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 15, 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 May 23, 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 21, 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 21, 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.

15. On or before May 1, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before May 15, 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.

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 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 26, 2023.

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 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

List of Parties

Party

Counsel / Representative*

Jianbin Wang (Applicant / Appellant)

Soloway Wright LLP 700-427 Laurier Avenue West Ottawa, ON K1R 7Y2 Philip Osterhout Tel: 613-782-3202 Fax:613-238-8507 posterhout@solowaywright.com Crystal McConkey Tel: 613-782-3217 Fax:613-238-8507 cmcconkey@solowaywright.com

City of Ottawa

L. Christine Enta Tel: 613-580-2424 x 13579 Christine.Enta@ottawa.ca

Rockcliffe Park Residents Association

Michael Kelen* Tel: 613-316-7437 michaelkelen@gmail.com Michelle Hayman* mmcollum@gmail.com Linda Dicaire* linda.dicaire@gmail.com

Kim Ratushny kimratushny@hotmail.com

Black & Associates 352 Elgin Street Ottawa ON K2P 1M8 Katie Black Tel: 613-617-6699 katie@black-law.ca

Attachment 2

Issues List

1. Is the proposed development consistent with Section 2.6 of the Provincial Policy Statement, 2020?

2. Does the proposed development comply with Section 4.6.1 and Section 4.11.5-4.11.6 of the City of Ottawa Official Plan?

3. Does the proposed development comply with Section 3.3.1 of the Former Village of Rockcliffe Park Secondary Plan?

4. Does the proposed development comply with the Rockcliffe Park Heritage Conservation District Plan, specifically:

a) Section 5.0, Statement of Objectives;

b) Section 6.0, Statement of Cultural Heritage Value;

c) Section 7.1 District Policies

d) Section 7.3.3, Landscape Guidelines;

e) Section 7.4.2, Guidelines for New Buildings;

f) Section 7.4.3, Landscape Guidelines – New Buildings and Additions

5. How are the Rockcliffe Park Heritage Conservation District Plan Guidelines to be considered and applied?

6. How are the Standards & Guidelines for the Conservation of Historic Places in Canada to be considered and applied?

Attachment 3

Order of Evidence

1. Jianbin Wang (Applicant)

2. City of Ottawa

3. Rockcliffe Park Resident’s Association

4. Kim Ratushny

5. Applicant Reply, if any.