Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 19, 2023 CASE NO(S).: OLT-22-004187
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2697331 Ontario Inc. Subject: Proposed Official Plan Amendment No. Description: To permit the development of three (3) residential apartment buildings and twelve (12) townhouse blocks Reference Number: OPA-2022-02 Property Address: 1289 Wellington Street East Municipality/UT: Aurora/York OLT Case No.: OLT-22-004187 OLT Lead Case No.: OLT-22-004187 OLT Case Name: 2697331 Ontario Inc. v. Aurora (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2697331 Ontario Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the development of three (3) residential apartment buildings and twelve (12) townhouse blocks Reference Number: ZBA-2022-02 Property Address: 1289 Wellington Street East Municipality/UT: Aurora/York OLT Case No.: OLT-22-004188 OLT Lead Case No.: OLT-22-004187
Heard: July 10, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2697331 Ontario Inc. | K. Sliwa, J. Jakubowski, and L. Zink (summer student) |
| Town of Aurora | C. Kapelos |
| Region of York | S. Whalen |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON JULY 10, 2023 AND ORDER OF THE TRIBUNAL
1This was the second Case Management Conference (“CMC”) with respect to appeals brought by 2697331 Ontario Inc.(“Appellant”) regarding the refusal by the Town of Aurora (“Town”) of the Appellant’s applications for Official Plan and Zoning By-law Amendments to facilitate a residential development at 1289 Wellington Street East (“subject property”).
2At the first CMC, held in December 2022, the Tribunal granted Party status to the Region of York and scheduled a ten (10)-day hearing for February and March 2024.
3At the CMC held on July 10, 2023, the Tribunal received an update on the status of the proceedings, finalized a draft Procedural Order and Issues List, and scheduled a third CMC for December 2023. There were no requests for Party or Participant status made at the second CMC.
Updates
4The Parties provided updates to the Tribunal. The Appellant stated that a study is being undertaken by the Town regarding the planning for future development in the vicinity of the subject property. It stated that an interim control by-law has been passed to stop development in the area until the report is completed. The Appellant stated that a report on the study is scheduled to be provided to Town Council on Wednesday, November 22, 2023. The Appellant stated a desire to pursue the appeal regardless of the outcome of the Town’s report.
5The Town stated that it may wish to file a revised Issues List after the report has been provided to Council in November. The Town agreed to engage in discussions with the other Parties and, on consent, agreed to provide the other Parties, and file with the Tribunal, any proposed amendments to the Procedural Order and/or the Issues List as soon as possible after the Wednesday, November 22, 2023 Council meeting.
6The Parties submitted that there would be sufficient time to prepare for the scheduled hearing commencing in late February 2024 based on this timetable.
7The Tribunal urged the Parties to work together to narrow and resolve the issues in dispute and to consider the possibly of using Tribunal-assisted mediation.
Procedural Order and Issues List
8The Parties filed a draft Procedural Order and Issues List in advance of the CMC. They requested, and the Tribunal agreed, to have the draft Procedural Order and Issues List issued subject to the understanding that changes may be requested after the report to Council in November 2023. The Tribunal has reviewed and approves the Procedural Order and Issues List attached as Attachment 1 to this Order and Decision.
Scheduling of a Further CMC
9The Parties requested on consent, and the Tribunal agreed to, the scheduling of a further CMC to be held soon after the November 22, 2023 Council meeting in order to provide final directions regarding preparations for the hearing and to address any proposed amendments to the draft Procedural Order and Issues List.
10The third CMC will commence at 9 a.m. on Friday, December 1, 2023 by video hearing.
11Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/765631861
Access code: 765-631-861
12Parties 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
13Persons 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: Audio-only telephone line: +1 (647) 497-9391or (Toll-Free) 1-888-455-1389. The access code is 765-631-861.
14Individuals 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.
15The Tribunal requests that the Parties file with the Tribunal any proposed amendments to the Procedural Order and Issues List by no later than noon on Thursday, November 30, 2023.
ORDER
16The Tribunal approves the Procedural Order and Issues List attached as Attachment 1 to this Order and Decision.
17There will be no further notice.
18This Member is not seized.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
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
CASE NO(S).: OLT-22-004187
PROCEEDING COMMENDED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990 P. 13, as amended
Applicant/Appellant: 2697331 Ontario Inc.
Subject: Proposed Official Plan Amendment
Description: To permit the development of three (3) residential apartment buildings and twelve (12) townhouse blocks
Reference Number: OPA-2022-02
Property Address: 1289 Wellington Street East
Municipality/UT: Town of Aurora/ The Regional Municipality of York
OLT Case No: OLT-22-004187
OLT Lead Case No: OLT-22-004188
OLT Case Name: 2697331 Ontario Inc. v. Aurora (Town)
PROCEEDING COMMENDED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990 P. 13, as amended
Applicant/Appellant: 2697331 Ontario Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of three (3) residential apartment buildings and twelve (12) townhouse blocks
Reference Number: ZBA-2022-02
Property Address: 1289 Wellington Street East
Municipality/UT: Town of Aurora/ The Regional Municipality of York
OLT Case No: OLT-22-004187
OLT Lead Case No: OLT-22-004188
OLT Case Name: 2697331 Ontario Inc. v. Aurora (Town)
PROCEDURAL ORDER
- 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
- The video hearing will begin on Monday February 26, 2024 at 10:00 a.m., for a duration of 10 days.
Link: https://global.gotomeeting.com/join/927921077
Access code: 927-921-077
The parties’ initial estimation for the length of the hearing is 10 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.
The parties and participants identified at the first case management conference held on December 1, 2023, are set out in Attachment 1.
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.
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.
A summary of the applicable procedural dates, as outlined at paragraphs 10 to 24 of this Order, is set out in Attachment 4.
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.
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
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 9, 2023 and in accordance with paragraph 23 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.
Expert witnesses in the same field shall have a meeting on or before November 28, 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 December 5, 2023.
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 14 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.
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 14 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 14 below.
On or before December 11, 2023 the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.
On or before December 11, 2023 a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
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 23 below.
On or before December 20, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before February 5, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 9, 2024.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday February 12, 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.
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.
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.
Attachment to Sample Procedural Order
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.
Attachment 1
List of Parties and Participants
Parties:
- 2697331 Ontario Inc.
c/o Katarzyna Sliwa & Jessica Jakubowski Dentons Canada LLP 416.863.4628 kat.sliwa@dentons.com jessica.jakubowski@dentons.com
- The Regional Municipality of York
c/o Samantha Whalen Solicitor, The Regional Municipality of York 905.830.4444 ext. 71435 Samantha.foster@york.ca
- The Town of Aurora
c/o Andrew Biggart Partner, Ritchie Ketcheson Hart & Biggart LLP 416.622.6601 Abiggart@ritchieketcheson.com
Attachment 2
Issues List
The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.
Issues List of the Town of Aurora
Do the proposed applications have regard for matters of Provincial interest as outlined in the Planning Act?
Are the proposed applications consistent with the Provincial Policy Statement, 2020, (PPS), given the location and context of the subject lands and the density proposed, with specific consideration for sections: 1.1.1, 1.1.3.1, 1.1.3.2, 1.4, 1.5.1, 1.6.6.1, 1.6.6.2, 1.6.6.6, 1.6.6.7, 1.6.7, 1.7.1, 1.8.1, 2.1, 2.2 and 3.1?
Do the proposed applications conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), as amended, with specific consideration for sections: 2.2.1, 2.2.7, 3.2.2, 3.2.3, 3.2.6, 3.2.7, 4.2.1, 4.2.2, 4.2.4 and 4.2.10?
Do the proposed applications conform to the Town of Aurora Official Plan and OPA 30 (Bayview Northeast 2B Secondary Plan), with specific consideration for Official Plan sections 3.1, 3.3, 4.1 b), 4.2, 4.3, 4.4, 5.1, 5.2, 6.1, 6.2, 6.3, 6.4, 6.5, 6.7, 6.11, 12.1, 12.5, 12.6.1, 12.6.2, 12.6.3, 12.6.4 and 14?
Do the proposed applications conform to the Lake Simcoe Protection Plan, 2009, with specific consideration for the policies contained in Chapters 4 and 6?
Do the proposed applications comply with the South Georgian Bay Lake Simcoe Source Protection Plan, with specific consideration for the policies LUP-12 and LUP-13?
Are the proposed applications appropriate in terms of compatibility with the existing area and in terms of avoiding any potential negative impacts on the surrounding community?
Are the proposed applications appropriate given that the scale and planned level of intensification is for lands that are located outside of the Town’s strategic growth areas, including the Aurora Promenade and GO Major Transit Station Area?
Is the development limit appropriately determined and adhered to with respect to key natural heritage and key hydrologic features and their respective vegetation protection zones and natural hazards?
Do the proposed applications provide adequate parking supply, visitor parking, and transportation and traffic management internally as well as for the surrounding area to accommodate the level of intensification and density being proposed?
Do the proposed applications represent appropriate urban design and have regard for the streetscape and public realm in addressing matters including but not limited to height, scale, siting, transitions, building articulation, setbacks, buffers and screening?
Do the proposed applications provide appropriate turning radius requirements and maneuverability for trucks, loading, emergency service access and waste removal?
Do the proposed applications provide appropriate snow storage?
Can the proposed applications accommodate a parkette, and is sufficient amenity area provided for residents with there also being appropriate noise attenuation?
Do the proposed applications appropriately account for stormwater management and wellhead protection?
Is a Holding provision required to be added to the proposed Zoning By-law with respect to any potential servicing capacity constraints?
Have all of the comments pertaining to the applications been addressed from the Town comment letter dated June 9, 2022, including but not limited to matters of land use planning, natural heritage, natural hazards, hydrogeological review, accessibility, parks and vegetation management, development limits, transportation, engineering, servicing, and water resources?
Issues List of the Regional Municipality of York
Has the development limit been appropriately determined in accordance with applicable planning policies and criteria with respect key natural heritage and key hydrologic features and their required respective vegetation protection zones and natural hazards?
Are the proposed encroachments into the key natural heritage features/ key hydrologic features, and their vegetation protections zones appropriate?
Have the proposed applications applied York Region’s significant woodland criteria appropriately?
Is the proposed removal of the significant woodlands consistent with Section 2.1 of the PPS, 2020?
Are the applications consistent with the Provincial Policy Statement 2020, including, without limitation, Policy Nos. 1.1.1 b), 1.1.1.c), 1.1.3.1, 1.1.3.2, 1.6.6.1, 1.6.6.2, 1.6.6.6, 1.6.6.7, 2.1.1, 2.1.2, 2.1.3, 2.1.5, 2.1.7, 2.1.8, 2.2.1 d., 2.2.1 e., 2.2.1 f., 2.2.1 g., 2.2.1.i. 3.1?
Do the applications conform to the Growth Plan 2020, including, without limitation, Policy Nos. 4.2.2.2, 4.2.2.3, 4.2.2.4, 4.2.2.6, 4.2.4.3?
Do the applications conform to the Lake Simcoe Protection Plan, 2009, including, without limitation, Policy Nos. 4.8– 4.11-DP, 6.32 – 6.34-DP, 6.40-DP?
Do the applications comply with the South Georgian Bay Lake Simcoe Source Protection Plan including, without limitation, Policy Nos. LUP-12 and LUP-13?
Do the applications conform to the York Region Official Plan, 2010 including, without limitation, Policy Nos. 2.1.4, 2.1.5, 2.1.7, 2.1.9, 2.1.10, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.2.9, 2.2.10,2.2.13, 2.2.14 2.2.22, 2.2.23,2.2.26, 2.2.35 – 2.2.42, 2.2.44 – 2.2.49, 2.3.2, 2.3.3, 2.3.4, 2.3.22, 2.3.25, 2.3.26, 3.5.6, 5.2, 5.5, 7.3, Definitions –Significant Woodlands & Woodlands?
Have the Region of York’s comments (dated April 27, 2022) been satisfactorily addressed, including but not limited to matters related to planning, natural heritage, natural hazards, transportation, servicing and water resources?
Have the LSRCA’s comments (dated March 28, 2022 – HydroG Review, March 29, 2022 & April 4, 2022– Engineering Review, April 22, 2022 – Natural Heritage Review, April 25, 2022- Cover letter) been satisfactorily addressed?
Should the proposed development be subject to a Holding provision (“H”) to ensure servicing capacity and allocation is available for the development?
If applicable, how does the York Region Official Plan, 2022, site specific policy, 4.2.30 apply? Do the applications conform to Policy No. 4.2.30?
Attachment 3
Order of Evidence
- 2697331 Ontario Inc.
- Town of Aurora
- The Regional Municipality of York
- 2697331 Ontario Inc. (in reply)
Attachment 4
Summary of Procedural Dates
| Event | Date |
|---|---|
| List of Witnesses | October 9, 2023 |
| Meeting of Experts | November 28 , 2023 |
| Statement of Agreed Facts/Opinions | December 5, 2023 |
| Witness and Expert Witness Statements | December 11, 2023 |
| Participant Statements | December 11, 2023 |
| Confirmation of Hearing Dates | December 20, 2023 |
| Reply Witness and Expert Witness Statements | December 20, 2023 |
| Visual Evidence | February 5, 2024 |
| Joint Document Book | February 9, 2024 |
| Preliminary Hearing Plan | February 12, 2024 |
| Hearing | February 26, 2024 |