CORRECTION NOTICE

OLT CASE NO(S).:

OLT-21-001738

DECISION ISSUE DATE(S):

June 28, 2023

CORRECTION NOTICE ISSUE DATE:

June 30, 2023

Correction to:

1. In the “APPEARANCES” section, it lists Carleton Thorne as the lawyer for the City of Burlington, when in fact it should be Blake Hurley.

ORIGINALLY:

CORRECTED TO:

2. In paragraph 5, it refers to the fifth CMC hearing as taking place on October 10, 2023 (which is correct), but in “ATTACHMENT 4” it lists the date as October 2, 2023 which is incorrect.

ORIGINALLY:

CORRECTED TO:

“Euken Lui”

EUKEN LUI 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.

ISSUE DATE:

June 28, 2023

CASE NO(S).:

OLT-21-001738

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Emshih Developments Inc.

Subject:

Request to amend the Official Plan – Failure to adopt the requested amendment

Description:

To permit a large scale, neighbourhood commercial development

Property Address:

700 & 800 Burloak Drive

Municipality/UT:

Burlington/Halton

Municipality File No.:

505-06/04

OLT Case No.:

OLT-21-001738

OLT Lead Case No.:

OLT-21-001738

OLT Case Name:

Emshih Developments Inc. v. Burlington (City)

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

Applicant and Appellant:

Emshih Developments Inc.

Subject:

Application to amend Zoning By-law - Refusal or neglect to make a decision

Description:

To permit a large scale, neighbourhood commercial development

Property Address:

700 & 800 Burloak Drive

Municipality/UT:

Burlington/Halton

Municipality File No.:

520-11/04

OLT Case No.:

OLT-21-001739

OLT Lead Case No.:

OLT-21-001738

Heard: May 24, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Emshih Developments Inc.

Jessica De Marinis Nancy Smith (in absentia)

City of Burlington - (“City”)

Carlton Thorne

Regional Municipality of Halton

Kelly Yerxa

MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS ON MAY 24, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant owns the property located at 700 and 800 Burloak Drive, in the City (“Subject Property”) and submitted applications to amend the City’s Official Plan (“OPA”) and Zoning By-law (“ZBA”) to permit commercial development on both sites.

The Appeals are brought pursuant to sections 22(7) and 34(11) of the Planning Act due to the failure of the City to make a decision in the prescribed time.

2On May 24, 2023, the Tribunal held its fourth Case Management Conference (“CMC”) to organize the appeals and establish next steps in this proceeding.

OPPORTUNITIES FOR SETTLEMENT

3Counsel for the Parties advised that there continues to be a prospect for issues being resolved through settlement discussions.

NEXT STEPS

[4] A draft Procedural Order, including an Issues List, was provided to the Tribunal prior to the CMC. The Tribunal noted that the Issues List was fulsome but, based on the discussion at the CMC, it needed refinement. Counsel for the Parties indicated that they were prepared to work quickly to refine the Issues List and finalize the Procedural Order. Counsel for the City undertook to provide the Tribunal by end of day on Wednesday June 7, 2023 an agreed upon final Procedural Order and Issues List.

Those documents were received by the Tribunal.

5Having heard the positions of Counsel, the Tribunal found that setting a further CMC was reasonable in the circumstances and directed that a fifth CMC be held by video hearing commencing on Tuesday October 10, 2023 at 10:00 a.m.

6Parties 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.

7The CMC is scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/765631861

Access Code: 765-631-861

8Persons 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: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.

9Parties 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

[10] Individuals 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.

11If settlement discussions are successful, that CMC would be converted into a settlement hearing. The Tribunal directed the Parties to inform the Tribunal by no later than October 2, 2023 whether or not a settlement has been reached on the outstanding issues. If a settlement hearing is to be held on the date set for the CMC, settlement materials are to be provided to the Tribunal on or before October 6, 2023. If settlement is not reached, Parties were directed to advice the Tribunal by no later than October 2, 2023 whether or not the CMC is still required for the proper conduct of the case.

12The Tribunal further ordered that, if settlement is not reached, setting a five-day merit hearing is reasonable in the circumstances, and directed that the hearing commence on Monday, February 26, 2024, to Friday, March 1, 2024.

13Parties 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.

14The CMC is scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/278736685

Access Code: 278-736-685

15Persons 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: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.

16Parties 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

17Individuals 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

18THE TRIBUNAL ORDERS its directions as set out in this Decision.

19THE TRIBUNAL FURTHER ORDERS that Procedural Order, including the Issues List, attached as Attachment A to this Order is approved.

20The Member is not seized, however, will remain available for case management, subject to the Tribunal’s calendar.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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 A

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. A further Case Management Conference will be held on October 10, 2023 at 10:00 a.m. through video link https://global.gotomeeting.com/join/765631861. When prompted, enter code 765-631-861.

3. The video hearing will begin on February 26, 2024 at 10:00 a.m. through video link https://global.gotomeeting.com/join/278736685. When prompted, enter the code . 278-736-685.

4. The length of the hearing will be 5 days. The length of the hearing may be shortened as issues are reordered as settlement is achieved.

5. The parties and participants identified at the Case Management Conference are set out in Attachment 1.

6. 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.

7. 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.

8. 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.

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 October 30, 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.

10. Expert witnesses in the same field shall have a meeting on or before December 1, 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 Tribunal Case Co-ordinator on or before December 15, 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 15 below.

13. On or before January 15, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the Tribunal Case Co- ordinator and in accordance with paragraph 22 below.

14. On or before January 15, 2024, 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 February 9, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before February 9, 2024, 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. On or before February 5, 2024, the parties shall provide copies of their reply witness statements and expert’s reply witness statements to the other parties and to the Tribunal Case Co-ordinator and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal Case Co-ordinator on or before February 20, 2024.

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 February 20, 2024 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 during the hearing.

22. 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. A summary of the relevant dates is in Attachment 4.

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.

ATTACHMENT 1

PARTIES & PARTICIPANTS

1. Emshih Development Inc.

2. City of Burlington

3. The Regional Municipality of Halton

ATTACHMENT 2

ISSUES LIST

City of Burlington

1. Are the proposed Official Plan Amendment and Zoning By-law Amendment consistent with the Provincial Policy Statement 2020 given the location and context of the subject lands, specifically considering policies 1.1.1 f), 1.1.3 g) and 1.3.3.1?

2. Is the proposed Official Plan Amendment and Zoning By-law Amendment consistent with and have appropriate regard for the Land Use Compatibility policies of the Provincial Policy Statement 2020, specifically considering policies 1.2.6.1 and 1.2.6.2?

3. Is the proposed Official Plan Amendment and Zoning By-law Amendment consistent with and have appropriate regard for the Airport, Rail and Marine Facilities policies of the Provincial Policy Statement 2020, specifically considering policy 1.6.9.1?

4. Does the proposed Official Plan Amendment and Zoning By-law Amendment conform to and have appropriate regard for the Moving Goods policies of the Growth Plan specifically, policy 3.2.4.2a?

5. Does the proposed Official Plan Amendment and Zoning By-law Amendment conform to policies in the Regional Official Plan with respect to land use compatibility and sensitive land uses, specifically, policies 79.3 (12), 83.2 (7) c) and 143 (12)?

6. Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the sensitive land use compatibility policies of the Burlington Official Plan, 1997, specifically, Part ll, policies 2.7.3 n) and o)?

7. What regard should be had to the City’s 2020 Official Plan as approved by Halton Region on November 30, 2020, and currently under appeal? If regard is to be given, what are the implications of the application of the policies to the proposed amendments, particularly policies:

• Land Use Compatibility Policies – Chapter 4, Policy 4.6.2 a); and

• Rail Policies – Chapter 6, Policies 6.2.5(2) c) and d).

8. Has the development, as proposed, demonstrated compatibility with respect to air quality, noise and vibration, without requiring mitigation on employment lands, with the existing and planned development of the employment lands and the rail facilities to the northwest in accordance with the Ministry of Environment, Conservation and Parks (MECP) D-Series Guidelines for Land Use Compatibility?

9. Do the submission materials submitted in support of the proposed Official Plan Amendment and Zoning By-law Amendment continue to be relevant and sufficient for the purpose of assessing the proposal?

10. If the proposed development is approved, are any mitigation measures required to permit a sensitive land use on the subject site, such as noise barriers, warning clauses, building components and an increased separation distance?

11. If the proposed development is approved, should the zoning by-law amendment include a Holding provision to require, to the satisfaction of the City, the submission of:

• a Functional Servicing and Stormwater Management Report; and

• updated environmental documentation.

The Regional Municipality of Halton

1. Burloak Drive is a Regional road. Has adequate consideration of the traffic impacts from the proposed development on the adjacent road network been undertaken to ensure safe and efficient access to the site from Burloak Drive as required by the Region’s Official Plan?

2. The subject site is located in close proximity to an employment area and a number of major facilities (industrial uses, transportation and utility infrastructure). As required by the Region’s Official Plan, have adequate air quality, noise and vibration studies been undertaken to determine whether there are adverse impacts and whether those impacts can be mitigated and how?

3. Has the potential for contamination on the subject lands been adequately assessed and appropriately addressed in accordance with the policies of the Regional Official Plan and the Guidelines thereunder?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Emshih Development Inc.

2. Region of Halton

3. City of Burlington

4. Emshih Development Inc., in reply, if necessary

ATTACHMENT 4

SUMMARY OF FILING DATES