Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 16, 2023

CASE NO(S).: OLT-22-004279

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: AnnaMaria Valastro Subject: Proposed Official Plan Amendment No. 66 Description: To permit a 23-storey mixed-use building Reference Number: OPA 66 Property Address: 84-86 St. George Street & 175-197 Ann Street Municipality/UT: City of London OLT Case No.: OLT-22-004279 OLT File No.: OLT-22-004279 OLT Case Name: Valastro v. London (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: AnnaMaria Valastro Subject: By-law No. Z.-1 Description: To permit a 23-storey mixed-use building Reference Number: Z.-1-223039 Property Address: 84-86 St. George Street & 175-197 Ann Street Municipality/UT: City of London OLT Case No.: OLT-22-004280 OLT File No.: OLT-22-004279

Heard: February 10, 2023 by video hearing

APPEARANCES:

Parties	Counsel
St. George & Ann Block Limited	Patrick Harrington
AnnaMaria Valastro	Colin Léger
City of London	Aynsley Hovius

MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON FEBRUARY 10, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) regarding Appeals by AnnaMaria Valastro (“Appellant”) against the enactment of an Official Plan Amendment and a Zoning By-law Amendment by the City of London (“City”) as requested by St. George & Ann Block Limited (“Applicant”). The Applicant has various properties known municipally as 84-86 St. George Street & 175-197 Ann Street (“Subject Property”). The Applicant plans to build a 23-storey mixed use building with about 216 residential units and retail space of about 500 square metres (“m²”).

2The Affidavit of Service for the first CMC sworn by Michael Schulthess on January 3, 2023 was determined to be duly processed and marked as Exhibit 1.

3The Applicant with direct interest in the matter was granted Party status with consent of the Parties.

4There were no other requests received for the granting of status.

5The Appellant states that the proposal represents overdevelopment and damaging to heritage character context.

6The Tribunal appraised the Parties regarding Tribunal-led mediation services but the Parties were not ready to immediately engage in such process.

7The issues underlying the appeals were further discussed to assess possible setting of a hearing. The Appellant stated that they plan to call a land use planning and a heritage planning witness. The Applicant stated that they plan to call witnesses in the area of land use planning, urban design and heritage planning.

8The Parties jointly requested that a hearing with a duration of 10 days be set. The Parties agreed to submit a draft Procedural Order to the Tribunal no later than February 24, 2023. This has since been received and the approved Procedural Order to govern the hearing is attached as Schedule 1.

9The Tribunal set a hearing with the duration of nine days commencing on Monday, November 6, 2023 at 10 a.m.

10Parties also requested that a CMC be set at a time prior to the hearing for a review and update regarding the time leading up to the hearing. The Tribunal set a second CMC to be conducted by video for Monday, June 05, 2023.

11The CMC and hearing are scheduled to proceed by video as follows. No further Notices are required:

Monday, June 05, 2023 at 10 a.m. (one-day CMC) GoTo Meeting: https://global.gotomeeting.com/join/765631861 Access code: 765-631-861 Audio-only telephone line: +1 (647) 497-9391 or Toll-Free 1-888-455-1389 Audio-only access code: as indicated above

Monday, November 06, 2023 at 10 a.m. (nine-day hearing) GoTo Meeting: https://global.gotomeeting.com/join/687587165 Access code: 687-587-165 Audio-only line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889 Audio-only access code: as indicated above

12Parties are asked to log into the video CMC and hearing at least 15 minutes before the start of the event to test their video and audio connections.

13Parties 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.

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 CMC and 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.

16This Member is not seized but will provide case management support should any issues arise prior to the start of the second CMC.

17There will be no further notice.

18The directions in this decision are so ordered.

“Jatinder Bhullar”

JATINDER BHULLAR 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 1

Procedural Order OLT-22-0044279

ISSUE DATE: As the Decision CASE NO(S).: OLT-22-004279

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: AnnaMaria Valastro Subject: Proposed Official Plan Amendment No. 66 Description: To permit a 23-storey mixed-use building Reference Number: OPA 66 Property Address: 84-86 St. George Street & 175-197 Ann Street Municipality/UT: City of London OLT Case No.: OLT-22-004279 OLT File No.: OLT-22-004279 OLT Case Name: Valastro v. London (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: AnnaMaria Valastro Subject: By-law No. Z.-1 Description: To permit a 23-storey mixed-use building Reference Number: Z.-1-223039 Property Address: 84-86 St. George Street & 175-197 Ann Street Municipality/UT: City of London OLT Case No.: OLT-22-004280 OLT File No.: OLT-22-004279

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 November 6, 2023, at 10:00 a.m.

3. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see Attachment 4 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. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide details of the revised proposal, including revised plans and drawings, to the other parties on or before August 18, 2023, unless otherwise agreed to by the parties. If the applicant provides a revised proposal, the parties shall have the right to revise and/or augment the issues list.

10. 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 September 1, 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.

11. Expert witnesses in the same field shall have a meeting on or before September 12, 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 September 18, 2023.

12. 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.

13. 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.

14. On or before September 22, 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.

15. On or before September 22, 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.

16. On or before October 2, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before October 27, 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.

18. 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.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 27, 2023.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 30, 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.

23. All filings shall be submitted electronically or 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.

24. 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.

Summary of Key Dates

Date	Hearing Event
August 19, 2023	Applicant to provide revised proposal (if applicable)
September 1, 2023	Deadline to exchange expert witness list
September 12, 2023	Meeting of like experts
September 17, 2023	Exchange and file Agreed Statement of Facts
September 22, 2023	Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons
September 22, 2023	Exchange of Participant Statements
October 2, 2023	Parties to confirm with Tribunal if hearing dates still required
October 27, 2023	Exchange of Visual Evidence
October 27, 2023	Provide joint document book to case coordinator
October 30, 2023	Hearing Plan
October 30, 2023	Notification to Tribunal and Parties if witness not to provide oral evidence
November 6, 2023	Hearing start date

ATTACHMENT 1: PARTIES AND PARTICIPANTS

Parties:

1. Approval Authority (City of London) 300 Dufferin Ave., London, ON N6B 1Z2 Aynsley Hovius T: 519.639.7408 E: ahovius@london.ca Christina McCreery T: 519.670.3926 E: cmccreery@london.ca

2. Applicant (St. George & Ann Block Limited) Aird & Berlis LLP Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Patrick Harrington T: 416.865.3424 E: pharrington@airdberlis.com

3. Appellant (AnnaMaria Valastro) Garrod Pickfield LLP 9 Norwich Street Guelph, ON N1H 2G8 Colin Léger T: 519.837.0500 E: cleger@garrodpickfield.ca

ATTACHMENT 2: ISSUES LIST

NOTE: Identification of an issue on this list does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the matter. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

1. Does the proposed development consisting of Official Plan and Zoning By-law Amendments for the subject lands (collectively the “development proposal”) have appropriate regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act, including the matters set out in sections 2(d), 2(h), 2(n), 2(p) and 2(r) therein?

2. Is the development proposal consistent with the relevant policies of the Provincial Policy Statement (2020) (the “PPS”), in particular, but not limited to, the following policy sections: -Part 1; -Policy Section 1.1.1 (Managing and Directing Land Use); -Policy Sections 1.1.3.2 and 1.1.3.3 (Settlement Areas); and -Policy Sections 2.6.1 and 2.6.3 (Cultural Heritage and Archaeology)?

3. Does the development proposal maintain the intent and principles of, and does it conform with the City of London 1989 Official Plan (the “1989 Plan”), in particular, but not limited to, the following policy sections: -Policy Sections 2.3.1vi and vii (Planning Principles) -Policy Sections 2.4.1ix and xix (City Structure Policies) -Policy Sections 3.1.1, 3.1.4, (Residential Designation); -Policy Sections 3.4.2, 3.4.3 (Multi-Family, High Density Residential Designation); -Policy Sections 3.5.1 (Talbot Mixed-Use Area); -Policy Section 3.5.19 (Near Campus Neighbourhoods); -Policy Section 3.6.5 (Convenience Commercial); -Policy Section 11.1.1 (Urban Design); -Policy Sections 13.1, 13.2.3, 13.2.3.1, 13.6.2 (Cultural Heritage Value); and -Policy Section 19.4.4 (Bonus Zoning)?

4. a) Does the development proposal maintain the intent and principles of, and does it conform with the following policies of the City of London New Official Plan (the “London Plan”) that were in force and effect at the time the applications were submitted: -Policy Sections 55, 57(7), 61 and 62 (Key Directions); -Policy Sections 194, 221, 235, 252, 253 and 256 (City Building/Urban Design); -Policy Sections 554, 568, 583, 585, 586 and 587 (Cultural Heritage); and -Policy Sections 1025, 1027, 1031 and 1038C (Talbot Mixed-Use Area)?

b) Does the development proposal maintain the intent and principles of, and does it generally conform with the following policies of the London Plan that were in force and effect subsequent to the submission of the applications: -Policy Sections 83 and 86 (City Structure); -Policy Sections 193, 197, 199, 200, 284, 286, 287, 289, 293 and 298 (City Building/Urban Design); -Policy Sections 565 (Cultural Heritage); -Policy Sections 918, 935, Table 10 and Table 11, 953 (Neighbourhoods Place Type); -Policy Sections 964, 965, 968 and 970 (Near Campus Neighbourhoods)?

c) Does the development proposal maintain the intent and principles of, and does it generally conform with the following policies of the London Plan that are not yet in force and effect: -Policy Sections 1025, 1027 and1031 (Talbot Mixed-Use Area)?

5. Will the proposed development create adverse privacy and overlook impacts on neighbouring properties?

6. Does the proposed development create an appropriate streetscape?

7. Is the proposed development compatible with the established character of the surrounding lands?

8. Does the proposed development provide for an appropriate transition to adjacent and surrounding properties?

9. Does the development proposal represent an overdevelopment of the site?

10. Does the Zoning By-law Amendment sufficiently regulate matters of built form including, height, massing, scale, setbacks, stepbacks, lot coverage, and amenity area having regard for the subject lands, adjacent property and the character of the surrounding lands?

11. Does the development proposal represent good land use planning and is it in the public interest?

ATTACHMENT 3: ORDER OF EVIDENCE

1. St. George & Ann Block Limited (Applicant)
2. City of London (Municipal Authority)
3. AnnaMaria Valastro (Appellant)
4. Reply by St. George & Ann Block Limited (Applicant)
5. Reply by City of London (Municipal Authority)

ATTACHMENT 4

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.