Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
June 26, 2023
CASE NO(S).:
OLT-22-004664
PROCEEDING COMMENCED UNDER subsection 42(4.9) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
D.D. Acquisition Partnership et al.
Subject:
Parkland Dedication appeals
Description:
Parkland Dedication By-law
Reference Number:
By-law No. 2022-101
Property Address:
City Wide
Municipality/UT:
City of Kitchener
OLT Case No.:
OLT-22-004664
OLT Lead Case No.:
OLT-22-004664
OLT Case Name:
D.D. Acquisition Partnership v. Kitchener (City)
Heard: May 23, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
City of Kitchener
K. Hughes
Momentum Developments Inc.
B. Carter
C. Manning
Kitchener Stirling Developments Limited
Kitchener Charles Developments Limited
M. McDermid
Polocorp Inc.
S. O’Melia
Vanmar Developments Inc.
Urban Legend Developments Limited
K. Mullin
E. Bashura
VIVE Development Corporation
King Charles Properties (Kitchener) Limited
K. Mullin
E. Bashura
30 Duke Street Limited
J. Meader (in absentia)
N. Smith*
2526607 Ontario Limited
Woodhouse Group
Copper Bay Homes
Woodhouse Investments
Vanguard Developments
A. Ciccone
550 King Street GP Inc.
A. Ciccone
D.D. Acquisitions Partnership
J. Farber
M. Rutledge (in absentia)
Innovation Developments Kitchener Limited
P. Harrington
Lexington Park Real Estate Capital Inc.
2517293 Ontario Limited
K. Sliwa (in absentia)
M. Reedijk
MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON MAY 23, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal has convened the first Case Management Conference (“CMC”) for the above-noted matter, a total of 17 entities as illustrated in the appearances having filed an appeal against the City of Kitchener (“City”) to adopt the Parkland Conveyance By-law No. 2022-101 (“By-law”) pursuant to s. 42 (4.9) of the Planning Act.
2The effect of the By-law is to establish the City’s requirements for the conveyance of land for park or other public recreational purposes as a condition of development, redevelopment, or approval of a plan of subdivision. The By-law provides the City’s specific application of the Planning Act conditions, including interpretations, exemptions, and requirements of conveyances.
3The Affidavit of Service sworn April 27, 2023 meets the requirements of the Tribunal and is marked as Exhibit 1. No further notice is required.
4There were Party status requests from Lexington Park Real Estate Capital Inc. and 2517293 Ontario Ltd. in keeping with Rule 8.2 of the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”). The Tribunal finds that these entities satisfy the “legislative tests necessary to be a party (‘Party’)”. All other Parties consented to the addition of Lexington Park Real Estate Capital Inc. and 2517293 Ontario Ltd. as Parties. Therefore, the Tribunal grants full Party status to these entities in these proceedings.
5The Tribunal notes there are no requests for Participant status at this proceeding.
BACKGROUND
6Ms. Hughes, Counsel for the City, provided background with respect to the By-law for the benefit of the Tribunal and Parties. The By-law was adopted by City Council on August 22, 2022. The By-law is supported by a number of studies and a parks plan identified as Places and Spaces: A Parks and Open Space Strategy for Kitchener.
7Ms. Hughes advised the Tribunal that the City has commenced without-prejudice meetings with some of the Appellants. There have been no Issues Lists received from any Party so no Procedural Order was presented to the Tribunal at this CMC nor was there a request to schedule a Merit Hearing. She also noted that some of the Issues may be scoped in keeping with changes found in Bill 23.
8Ms. Hughes will take the lead in preparing a Procedural Order for consideration of the Tribunal and plans to commence discussions with all Parties now that they have been established by the Tribunal. Ms. Hughes requested:
a. that the Tribunal schedule a second CMC;
b. all Parties provide their particularized Issues to be included in the Procedural Order well in advance of the second CMC to allow the City to review and have without-prejudice discussions with Parties in an effort to reduce, scope or narrow Issues; and
c. that the Tribunal explore the opportunity to make use of Rule 8.4 of the Rules – Common Interest Class should there be common Issues offered by Parties.
9All Parties consented to the requests of the City save and except the use of Tribunal Rule 8.4 in these proceedings. Mr. O’Melia noted that Rule 8.4 is inappropriate in this matter because the Tribunal must “appoint a person of that class of parties to represent the class in the proceeding” and these proceedings do not lend themselves to such an appointment.
10Ms. Mullin added that some of her clients have Applications at the City and await a determination on how the City will implement the By-law. In all cases, her clients will attempt to streamline issues to the best of their ability as the Issues List process proceeds. Therefore, many issues could be narrowed, resulting in no need to define a Common Issue Class.
11The Parties are aware of the availability of Tribunal-led mediation. Parties are of the opinion it is premature to request such mediation but that this may be a possible path for this matter and understand that they may request this mediation at their convenience.
FINDINGS
12The Tribunal is given the indication that all Parties are committed to work together in an effort to better understand, refine or reduce issues to be found in the Procedural Order Issues List. The Tribunal expects that these discussions will happen. At the next CMC, the Tribunal anticipates receipt of a draft Procedural Order from the City for its consideration. However, should this not be the case, Ms. Hughes is to contact the Tribunal Case Coordinator in advance of the CMC.
13The Tribunal is prepared to schedule a full-day CMC to commence at 10 a.m. on Wednesday, September 6, 2023.
14The Tribunal is not inclined to establish a Common Interest Class pursuant to Rule 8.4 of the Rules at this CMC. This finding does not preclude a similar request being made at a future CMC once issues have been defined.
CASE MANAGEMENT CONFERENCE TECHNICAL DETAILS
15A full-day Case Management Conference will convene on Wednesday, September 6, 2023 by Video Hearing at 10 a.m.
16Parties are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/687587165
Access code: 687-587-165
17Parties 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 at: https://app.gotomeeting.com/home.html
18Persons 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) 497-9373 or Toll Free 1-888-299-1889. The access code is 687-587-165.
19Individuals 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
20A full-day Case Management Conference is scheduled to commence at 10 a.m. on Wednesday, September 6, 2023.
21The Tribunal directs that all Parties provide their particularized Issues to the City of Kitchener and all other Parties no later than 4.30 p.m. Friday, June 30, 2023.
22Lexington Park Real Estate Capital Inc. and 2517293 Ontario Ltd. are granted Party status to these proceedings.
23The Tribunal member may be spoken to if there are any issues with respect to the implementation of these directions.
24No further notice will be given.
25The Tribunal Member is not seized.
“Bryan W. Tuckey”
BRYAN W. TUCKEY
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.