Kilworth Heights West Ltd. v. Middlesex Centre (Mun), 2023 CanLII 61496

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 04, 2023

CASE NO(S).: OLT-23-000028

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

Applicant and Appellant: Kilworth Heights West Ltd.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit standalone residential buildings, complementary proposed commercial uses, in the form of townhouse dwellings

Reference Number: ZBA-14-2020

Property Address: Block 231, Plan 33M761

Municipality/UT: Municipality of Middlesex Centre

OLT Case No.: OLT-23-000028

OLT Lead Case No.: OLT-23-000028

OLT Case Name: Kilworth Heights West Ltd. v. Middlesex Centre (Mun)

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

Appellant: Kilworth Heights West Ltd.

Subject: By-law No. 2022-113

Description: To permit standalone residential buildings, complementary proposed commercial uses, in the form of townhouse dwellings

Reference Number: ZBA-14-2020

Property Address: Block 231, Plan 33M761

Municipality/UT: Municipality of Middlesex Centre

OLT Case No.: OLT-23-000145

OLT Lead Case No.: OLT-23-000028

OLT Case Name: Kilworth Heights West Ltd. v. Middlesex Centre (Mun)

Heard: June 21, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Kilworth Heights West Ltd.

Analee Baroudi

Municipality of Middlesex Centre

Paula Lombardi

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON JUNE 21, 2023 AND FINAL ORDER OF THE TRIBUNAL

1This is the first Case Management Conference (“CMC”) conducted relating to appeals brought pursuant to s. 34(19) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”). The appeals were filed by Kilworth Heights West Ltd. (“Appellant”) regarding property legally described as Block 231, Plan 33M761, Municipality of Middlesex Centre (“Subject Property”).

2The Subject Property is approximately 1.68 hectares located in Komoka-Kilworth Village in the Municipality of Middlesex Centre (“Municipality”) and is currently vacant with frontage of approximately 159 metres (m”) on Glendon Drive and approximately 107 m on Crestview Drive. The Subject Property is part of the broader Kilworth Heights West Subdivision which will be constructed in 5 phases, with the Subject Property being developed as Phase 1. A Plan of Subdivision relating to the development was approved in 2019.

3The Zoning By-law Amendment application (“ZBA”) proposes to rezone the Subject Property from C1-15(h-7) Zone to site-specific Village Commercial (C1-XX) Zone to facilitate the development of the Subject Property into a mixed-use block. The proposal has undergone various revisions in response to comments received from the Municipality and also in response to the public meeting conducted in October 2022. The most recent proposal consists of several one-storey commercial buildings with surface parking and 68 three-and-a-half-storey back-to-back townhouse residential dwelling units with common amenity areas, an internal private road and a total of 85 parking spaces.

4On December 14, 2022 the Municipality passed By-law Number 2022-113 approving only the commercial components of the ZBA application. The Municipality did not approve the residential components of the ZBA and advised the Appellant that a Notice of Refusal would not be issued for the residential components of the ZBA application.

5The Appellant appealed the failure of the Municipality to include the residential provisions as applied for in the ZBA pursuant to s. 34(19) of the Act. The Appellant further appealed the failure of the Municipality to make a decision within statutory timeframes of the Act with respect to the residential components of the ZBA application pursuant to s. 34(11) of the Act.

6At the CMC, the Tribunal confirmed with the Parties that there was only one ZBA application which contained both commercial and residential components. The Tribunal then requested clarification from the Appellant regarding its decision to bring appeals under both s. 34(11) and s. 34(19) of the Act. The Tribunal noted that it is unclear how the decision of the Municipality on the ZBA application could be characterized as a refusal or a non-decision.

7Counsel for the Appellant advised that the appeal was brought pursuant to both sections of the Act out of an abundance of caution given that there was no formal Notice of Refusal issued by the Municipality with respect to the residential components of the ZBA application. In response to this concern, Counsel for the Municipality confirmed that the Municipality does not object to, nor will it raise any issues with, the Appellant proceeding under only s. 34(19) of the Act.

8Counsel for the Appellant agreed to withdraw the appeal under s. 34(11) and proceed with the appeal solely under s. 34(19) of the Act. The Tribunal agreed with this approach, acknowledged the Municipality’s confirmation that it will not object to this approach during the proceedings and confirmed that the failure of the Municipality to issue a Notice of Refusal will not invalidate the appeal under s. 34(19). The Tribunal’s records will reflect the withdrawal of the Appellant’s appeal under s.34(11).

NOTICE

9The Tribunal confirmed with the Parties that there were no issues with service of Notice for the CMC and as such, no further notice is required. The Tribunal was in receipt of the sworn Affidavit of Service of Megan Kamermans dated May 18, 2023, which was marked as Exhibit 1.

STATUS REQUESTS

10Prior to the CMC, the Tribunal did not receive any requests for Party status or Participant status. In response to the Tribunal’s inquiry, there were no other persons or entities present at the CMC requesting Party or Participant status.

OPPORTUNITIES FOR SETTLEMENT

11The Parties jointly advised the Tribunal that no formal settlement discussions have taken place yet but did note that Counsel have worked well together in the past and will canvass opportunities for settlement as they arise. Counsel for the Appellant further noted that settlement opportunities will be explored now that a formal Issues List is in place.

DRAFT PROCEDURAL ORDER

12The Parties submitted a draft Procedural Order and Issues List (“PO”) in advance of the CMC, which was reviewed by the Tribunal. The Parties advised that exchange dates and details in the PO will be finalized once hearing dates were set.

13The Parties agreed that an amended draft PO would be submitted to the Tribunal for review and approval on or before Wednesday, July 5, 2023. Counsel for the Appellant noted that certain filing deadlines, such as the exchange of witness statements, may be well in advance of the scheduled hearing in order to facilitate settlement discussions.

14On June 28, 2023 the Parties submitted a revised PO on consent which the Tribunal has reviewed and approved. The PO attached as Schedule “A” to this Decision will govern the pre-hearing procedural requirements and the hearing of this appeal.

NEXT STEPS

15The Parties jointly requested that the Tribunal schedule a five (5)-day hearing for the appeal. The Parties collectively intend to call six (6) witnesses and determined that the hearing could be completed in five (5) days.

16The Tribunal agreed with Counsels’ assessment of the length of hearing and scheduled a five (5)-day video hearing commencing Monday, March 4, 2024.

17Parties 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/656004293

Access code: 656-004-293

18Parties 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

19Persons 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 1-888-299-1889. The access code is 656-004-293.

20Individuals 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

21The Tribunal orders that the appeal brought by Kilworth Heights West Ltd. pursuant to s.34(11) of the Act is withdrawn.

22The Tribunal orders that the Procedural Order and Issues List attached as Schedule “A” to this Decision shall govern the proceedings.

23The Tribunal orders that the hearing in this matter will be held by video hearing commencing on Monday, March 4, 2024 at 10 a.m. Five days have been set aside.

24The Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.

25No further notice will be given.

“C. Hardy”

c. hardy

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.

SCHEDULE A

ISSUE DATE: July 04, 2023 CASE NO(S).: OLT-23-000028

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

Applicant and Appellant: Kilworth Heights West Ltd.

Subject: Refusal to approve By-law No. 2022-113

Description: To permit standalone residential buildings, complementary proposed commercial uses, in the form of townhouse dwellings

Reference Number: ZBA-14-2020

Property Address: Block 231, Plan 33M761

Municipality/UT: Municipality of Middlesex Centre

OLT Case No.: OLT-23-000145

OLT Case Name: Kilworth Heights West Ltd. v. Middlesex Centre (Mun)

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 March 4, 2024 at 10:00am.

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. Attachment 4 contains a Table of Deadlines.

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.

9. 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

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 August 9, 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 September 8, 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 25 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 January 19, 2024, 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 January 19, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before February 2, 2024 in accordance with paragraph 22 below.

17. 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.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 23, 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 23, 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 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 – PARTIES AND PARTICIPANTS

PARTIES

1. Kilworth Heights West Ltd. (Applicant and Appellant)

2. Municipality of Middlesex Centre

ATTACHMENT 2 – ISSUES LIST

1. Is the decision of Council to exclude the requested residential permissions for the subject property from the ZBA inconsistent with the following policies of the Provincial Policy Statement 2020: Part IV Vision for Ontario’s Land Use Planning System, 1.1.1, 1.1.3, 1.3, 1.4, 1.6, and 1.7?

2. Does the decision of Council to exclude the requested residential permissions for the subject property from the ZBA fail to conform to the following sections of the County of Middlesex Official Plan: 2.3.5, 2.3.7, 2.4.2, and 3.2.4

3. Does the decision of Council to exclude the requested residential permissions for the subject property from the ZBA fail to conform to the following sections of the Municipality of Middlesex Centre Official Plan: 5.1, 5.3.1, 5.3.2, 5.3.3, 5.7.1, 5.7.2(a), 5.7.3, 6.1(a),(b),(d), and (h), 6.3(a)(c)(f) and (g) 9.2

4. Are the Subject Lands subject to the same policies as applied to lands designated employment?

5. Are the impacts to Glendon Drive from the proposed access point on Crestview Drive appropriate and does it facilitate the flow of traffic?

6. Do the requested residential permissions represent sound land use planning, are they in the public interest, and good planning?

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Municipality of Middlesex Centre – Factual Overview Only

2. Kilworth Heights West Ltd. (Applicant and Appellant)

3. Municipality of Middlesex Centre

4. Kilworth Heights West Ltd. in Reply

ATTACHMENT 4 – TABLE OF DEADLINES