Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 18, 2023 CASE NO.: OLT-23-000116

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Camarro Development Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the development of a 31 storey mixed-use building Reference Number: 505-07/22 Property Address: 789-795 Brant Street Municipality/UT: City of Burlington OLT Case No.: OLT-23-000116 OLT Lead Case No.: OLT-23-000116 OLT Case Name: Camarro Development 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: Camarro Development Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To rezone the property to permit the development Reference Number: 520-08/22 Property Address: 789-795 Brant Street Municipality/UT: City of Burlington OLT Case No.: OLT-23-000117 OLT Lead Case No.: OLT-23-000116

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended Applicant and Appellant: Camarro Development Inc. Subject: By-law 03-2023 Reference Number: Heritage BL 03-2023 Property Address: 795 Brant Street Municipality/UT: City of Burlington OLT Case No.: OLT-23-000168 OLT Lead Case No.: OLT-23-000116

BEFORE: JEAN-PIERRE BLAIS MEMBER Monday, the 10th Day of July 2023

THESE MATTERS having come before the Tribunal for a case management conference on May 17, 2023;

AND THE TRIBUNAL having directed the parties to submit a draft Procedural Order and Issues List;

AND THE TRIBUNAL having received a draft Procedural Order and Issues List, on consent;

THE TRIBUNAL ORDERS that the Procedural Order and Issues List attached hereto as Schedule “1” is in full force and effect.

“Euken Lui” EUKEN LUI ACTING 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.

SCHEDULE 1

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. The video hearing will begin on April 15, 2024.

3. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order 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. 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 Friday December 15, 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 Friday January 19, 2024 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 Friday February 2, 2024.

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 13 below.

13. On or before Friday February 16, 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.

14. On or before Friday February 16, 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 Monday March 11, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Thursday March 28, 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 Friday March 22, 2024, Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Thursday March 28, 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 Friday April 5, 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. 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: Jean-Pierre Blais Date: July 10, 2023

TRIBUNAL REGISTRAR

SUMMARY OF KEY DATES

DATE	EVENT
Friday December 15, 2023	Exchange of Witness Lists
Friday January 19, 2024	Expert Witness Meetings
Friday February 2, 2024	Agreed Statement of Facts
Friday February 16, 2024	Exchange of Witness Statements, Summoned Witness Outlines, and Expert Reports
Friday March 22, 2024	Exchange of Reply Witness Statements (if any)
Monday March 11, 2024	Date to Notify Tribunal if Reserved Dates are Required
Thursday March 28, 2024	Exchange of visual evidence (if any)
Thursday March 28, 2024	Filing of Joint Document Book
Friday April 5, 2024	Hearing Plan filed with the Tribunal
Monday April 15, 2024	Hearing commences

ATTACHMENT 1: PARTIES AND PARTICIPANTS

Parties

Appellant/Party	Counsel	Contact
335 Plains Holdings Inc. and 355 Plains Holdings Inc.	Denise Baker	WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 dbaker@weirfoulds.com
City of Burlington	Blake Hurley Andrea Peebles	Legal Department 426 Brant Street Burlington, ON L7R 3Z6 Blake.Hurley@burlington.ca Andrea.Peebles@burlington.ca
Regional Municipality of Halton	Kelly Yerxa	Legal Services Division 1151 Bronte Road Oakville, ON L6M 3L1 905-825-6000 x 7740 KellyG.Yerxa@halton.ca

ATTACHMENT 2: ISSUES LIST

Note: 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 and . The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing.

Camarro Development Inc.

1. Is By-law 03-2023 appropriate, and do the resulting designation meet the relevant criteria for designation under the Ontario Heritage Act and O.Reg all of the criteria?
2. Was the designation by-law passed for the purpose of thwarting the development application which had been filed prior to the designation by-law being passed?

City of Burlington

1. Is the proposed Official Plan Amendment and Zoning By-law Amendment consistent with the Provincial Policy Statement, 2020 (PPS) with specific considerations for the following PPS sections? a. Managing and Directing Land Use to Achieve Efficient and Resilient Development and Land Use Patterns – 1.1.1 c) b. Sewage, Water and Stormwater – 1.6.6.7 c. Cultural Heritage and Archaeology – 2.6.1 d. Cultural Heritage and Archaeology – 2.6.3 e. Natural Hazards – 3.1.1 c) f. Natural Hazards – 3.1.2 c) g. Definitions – 6.0
2. Does the proposed Official Plan Amendment and Zoning By-law Amendment conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended with specific consideration for the following policies? a. Managing Growth – 2.2.1 (2) and (4) b. Urban Growth Centres – 2.2.3 c. Cultural Heritage Resources – 4.2.7 d. Definitions - 7
3. Is the proposed Official Plan Amendment and Zoning By-law Amendment in conformity with, and does it maintain the intent of the policies of the Official Plan, including; a. Sustainability and the Environment – Part II, 2.0 b. Design – Part II, 6.0 c. Cultural Heritage Resources – Part II, 8.0 d. Mixed Use Activity Area – Part III, 5.0 e. Mixed use Corridors (General, Employment and Commercial Corridor) – Part III, 5.3 f. Definitions – Part VIII
4. Does the proposed Official Plan Amendment and Zoning By-law Amendment have appropriate regard for the City’s New Official Plan, as approved by Halton Region on November 30, 2020 and currently under appeal, including: a. The Urban Structure – Chapter 2, 2.3.1 b. Primary Growth Areas – Chapter 2, 2.4.2(1) c. Cultural Heritage Resources – Chapter 3, 3.5 d. Water Resources – Chapter 4, 4.4 e. Strategic Economic Development Areas – Chapter 5.4 f. Design Excellence – Chapter 7 g. Downtown Urban Centre – Chapter 8, 8.1.1(3) h. Upper Brant Precinct – Chapter 8, 8.1.1(3.8) i. Downtown Watercourse and Natural Heritage System Designation – Chapter 8, 8.1.1(3.16) j. Definitions – Chapter 13
5. Does the proposed development appropriately incorporate the heritage building at 795 Brant Street?
6. Does the proposed development dedicate an adequate amount of retail at the ground floor?
7. Does the proposed development represent appropriate urban design in addressing matters including height, density, built form, massing, scale, sitting transitions, building articulation, setbacks, stepbacks, and spacing having regard for the site and the character of the surrounding lands?
8. Does the proposed development have appropriate regard for the applicable Council-approved design guidelines, including Tall Building Design Guidelines (2017), Stormwater Management Design Guidelines (2020), and Sustainable Building and Development Guidelines (2018)?
9. Can the existing street network in the vicinity of the subject lands accommodate the proposed the proposed development and increased traffic volumes?
10. Does the proposed development provide sufficient bicycle and vehicle parking rates? Is there sufficient justification for the proposed reduced bicycle and vehicle parking rates?
11. Does the proposed development have meet the intent of the of the Zoning By-law with respect to the following regulations: a. Part 1, Subsection 2.12, Visibility Triangles b. Part 1, Subsection 2.25, Off-Street Parking and Loading Requirements c. Part 1, Subsection 2.26(1), Parking Space Size and Accessibility d. Part 1, Subsection 2.26(5), Parking Structures e. Part 1, Subsection 2.26(9), Designated Accessible Parking Spaces f. Part 5, Subsection 4.6, Parking g. Part 5, Subsection 4.12, Loading and Unloading
12. Does the proposed development provide a dog relieving area that is easily accessible to the main entrance as well as serve the needs of guide dogs or other service animals?
13. Do the setbacks to the underground parking structure provide sufficient soil volumes to allow for the establishment of mature trees as well as allow for existing trees to be maintained?
14. Does the submitted Functional Servicing Report accurately address the City’s Stormwater Management Design Guidelines and the July 27, 2022 Pre-Consultation Package?
15. Does the proposed Zoning By-law Amendment provide sufficient amenity area?
16. Does the proposed Official Plan Amendment and Zoning By-law Amendment represent good planning?

Region of Halton

1. Site Servicing: Policies 58 (1.1), 77(5) (m) and 89 of the ROP require the proposed amendments and proposed built form to be supported by adequate servicing analysis. Has this been achieved through an updated Functional Servicing Report addressing the Regional staff comments set out in Appendix “A” of the Region’s comment letter addressed to the City and dated January 11, 2023?
2. Site Contamination: Has the RSC and reliance letter been provided in accordance with Policy 147(7) of the ROP and its Guideline (Protocol) for Reviewing Development Applications with Respect to Contaminated or Potentially Contaminated Sites? If not, is it appropriate to require a Holding symbol and provision that identifies the need for an RSC as part of the approval of the proposed zoning by-law amendment?
3. Waste Management: Pursuant to Policy 148 of the ROP, has the Waste Management Plan addressed the Region’s Development Design Guidelines for Source Separation of Solid Waste to the Region’s satisfaction in order to ensure efficient and safe collection of solid waste collection?

ATTACHMENT 3: ORDER OF EVIDENCE

1. Camarro Development Inc.
2. City of Burlington
3. Region of Halton
4. Camarro Development Inc.

ATTACHMENT 4: DEFINITIONS

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.