1989 Appleby Latch Limited v. Burlington (City), 2023 CanLII 66852

Ontario Land Tribunal

ISSUE DATE: July 20, 2023 CASE NO.: OLT-23-000070

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

Applicant/Appellant: 1989 Appleby Latch Limited Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the construction of two 20-storey high rise residential condominium buildings connected by a 6-storey podium with at grade retail Reference Number: 505-05/22 Property Address: 1989 Appleby Line Municipality/UT: Burlington/Halton OLT Case No.: OLT-23-000070 OLT Lead Case No.: OLT-23-000070 OLT Case Name: 1989 Appleby Latch Limited v. Burlington (City)

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

Applicant/Appellant: 1989 Appleby Latch Limited Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the construction of two 20-storey high rise residential condominium buildings connected by a 6-storey podium with at grade retail Reference Number: 520-06/22 Property Address: 1989 Appleby Line Municipality/UT: Burlington/Halton OLT Case No.: OLT-23-000071 OLT Lead Case No.: OLT-23-000070

BEFORE: M. A. SILLS, VICE CHAIR Thursday, the 20th Day of July 2023

THESE MATTERS having come before the Tribunal for a hearing event on April 5, 2023;

AND THE TRIBUNAL having issued a decision on April 19, 2023;

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

“Euken Lui” EUKEN LUI ACTING REGISTRAR

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

The Tribunal orders that:

1The 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

2The hearing is scheduled to proceed by video as follows:

Date: Monday, September 11, 2023 to Tuesday, September 19, 2023 GoTo Meeting: https://global.gotomeeting.com/join/660145013 Access Code: 660-145-013 Audio only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 660-145-013

3The parties’ initial estimation for the length of the hearing is 7 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 procedural order deadlines are generally found in Attachment “1” to this Order.

4The parties and participants identified at the Case Management Conference are listed in Attachment “2” to this Order.

5The Issues are set out in the Issues List attached as Attachment “3” to this Order. 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.

6The order of evidence shall be as set out in Attachment “4” hereto. 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.

7Any 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.

8Any 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

9A 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 Wednesday, June 28, 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. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other parties on or before Friday, July 7, 2023.

10Expert witnesses in the same field shall have a meeting on or before Friday, July 14, 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 coordinator on or before Friday, July 21, 2023.

11An 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.

12Expert 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.

13On or before Friday, August 11, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 23 below.

14On or before Friday, July 28, 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.

15On or before Friday, August 4, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16On or before Friday, September 1, 2023, 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.

17On or before Friday, August 18, 2023, the parties may provide to all other parties and the OLT case coordinator a written response to any written evidence in accordance with paragraph 23 below.

18The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before Friday, September 1, 2023.

19A 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.

20A 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.

21The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, September 1, 2023, 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.

22All 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.

23No 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

SUMMARY OF KEY DATES

Date	Hearing Event
Wednesday, June 28, 2023	Exchange of List of Witnesses and the order in which they will be called – para. 9
Friday, July 7, 2023	Notice of Motion (if required) to challenge witness(es) – para. 9
Friday, July 14, 2023	Expert Witness Meeting – para. 10
Friday, July 21, 2023	Filing of Statement(s) of Agreed Facts and Issues – para. 10
Friday, July 28, 2023	Delivery of Participant Statements – para. 14
Friday, August 4, 2023	Confirmation to Tribunal if all reserved hearing dates are still required – para. 15
Friday, August 11, 2023	Exchange of Witness Statements – para. 13
Friday, August 18, 2023	Exchange of Reply Evidence/Statements – para. 17
Friday, September 1, 2023	Exchange of Visual Evidence – para. 16 Filing of Joint Document Book – para. 18 Notification to Tribunal and Parties if witness not to provide oral evidence – para. 20 Filing of Hearing Plan – para. 21
Monday, September 11, 2023	Contested Hearing (if required) – para. 2

ATTACHMENT 2

PARTIES AND PARTICIPANTS

PARTIES

1989 APPLEBY LATCH LIMITED Jason Park / Olivia Rasekhi Kagan Shastri DeMelo Winer Park LLP 2302 - 250 Yonge Street Toronto, ON M5B 2L7 T: 416.645.4572 / 416.645.4532 E: jpark@ksllp.ca / orasekhi@ksllp.ca

CITY OF BURLINGTON Blake Hurley Deputy Corporation Counsel 426 Brant Street, P.O. Box 5013 Burlington, ON L7R 3Z6 T: 905.335.7600 ext. 7611 E: blake.hurley@burlington.ca

REGIONAL MUNICIPALITY OF HALTON Brittany Maione Legislative & Planning Services Legal Services 1151 Bronte Road Oakville, ON L6M 3L1 T: 905-825-6000 E: Brittany.Maione@halton.ca

UPPER APPLEBY DEVELOPMENTS INC. Sarah Turney Fasken Martineau DuMoulin LLP 333 Bay Street, Suite 2400 Toronto, ON M5H 2T6 T: 416.865.4542 E: sturney@fasken.com

PARTICIPANTS

Andrew Hall T: 905.599.3448 E: hello@andrewhallburlington.com

Enbridge Pipelines Inc. Jamie Cole, McCarthy Tétrault LLP T: 416.601.7811 E: jpcole@mccarthy.ca

Mathew Van Camp T: 289.242.5690 E: mathewvancamp@gmail.com

Steve Overend T: 905.988.8977 E: steve2aero@yahoo.ca

Christina Saunders T: 403.609.9267 E: saundersc2022@gmail.com

HSCC 550 Shannon Wood T: 289.259.7834 E: sjwhscc550@gmail.com

HSCC 494 Terry Gibb T: 905.464.1979 E: gibbterry@yahoo.ca

Jonathan Schlenker T: 289.337.6906 E: jonathanschlenker@hotmail.com

Elizabeth Nettleford T: 365.999.2709 E: liz.nettlefold@gmail.com

ATTACHMENT 3

ISSUES LIST

City of Burlington

1. Are the Planning Applications consistent with the Provincial Policy Statement, 2020 (PPS) given the location and context of the subject lands, and the level of intensification proposed, and with specific consideration for the following PPS sections? a) 1.1.1 c, i b) 1.1.3.4 c) 1.2.1 d, f, d) 1.2.6 – land use compatibility e) 1.6.7 transportation f) 1.6.8 transportation and infrastructure corridors g) 1.7 long-term economic prosperity h) 3.2 human-made hazards i) 4.6 Implementation and interpretation j) 6.0 definitions referred to in the policies above

2. Do the Planning Applications conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended, given the proposed scale of development and proposed transition of built form to adjacent areas, with specific consideration for the following policies? a) 1.2.1 guiding principles b) 2.2.1(3), (4) managing growth c) 2.2.2(3) d) 3.2.2, 3.2.3, 3.2.4 – transportation e) 3.2.5 – infrastructure corridors f) 4.2.10.1 – sustainability g) 5.2.5.6 design policies and guidelines h) Definitions (definitions included in the aforementioned policies)

3. Do the Planning Applications conform to the Halton Region Official Plan with respect to growth management, land use compatibility, noise impacts, air quality, site contamination, municipal services, transportation, waste management?

4. Are the proposed Official Plan Amendment and Zoning By-law Amendment in conformity with, and do they maintain the intent of, the policies of the City’s Official Plan, including: a) Part I – 3.0 (a, b, c, h) guiding principles b) Part II – 2.7 sustainable design and compatibility, 2.8 contaminated and potentially contaminated sites, 3.0 (3.2, 3.3, 3.4, 3.5, 3.6, 3.9) transportation and travel demand management, 5.0 utilities, 6.0 (6.1, 6.2, 6.3, 6.4, 6.5, 6.6) design. c) Part III - 2.2.1, 2.2.2, 2.5.1, 2.5.2, 5.6.3, 5.6.4, 5.6.15, 5.6.16 Land use policies – urban area d) Part VII Schedules and Tables e) Part VIII – Definitions (definitions included in the aforementioned policies)

5. Do the proposed Official Plan Amendment and Zoning By-law Amendment have appropriate regard for the City’s New Official Plan, currently subject to appeal, including: a) Chapter 2 – 2.2.2, 2.3, 2.4; b) Chapter 4 – 4.1 climate change and air quality, 4.6 land use compatibility, 4.7 contaminated sites; c) Chapter 6 – 6.1 general, 6.2 transportation, 6.3 utilities; d) Chapter 7 – 7.1 general, 7.2 public realm, 7.3.2(1) urban design and built form, 7.4 sustainable design; e) Chapter 8 – 8.1, 8.1.1, 8.1.1(4.4, 4.12), 8.6; f) Chapter 12 – 12.1.1(3) i), 12.1.2(2 to 2.2), g) Chapter 13 – Definitions (definitions included in the aforementioned policies) h) Chapter 14 – Schedules i) Appendices

6. Is the proposed development compatible with on-site, adjacent, or surrounding utilities, infrastructure, and transportation corridors?

7. Does the Proposed Development represent an appropriate intensity of development for the subject lands?

8. Does the proposed development provide indoor and outdoor amenity area in adequate amounts and with appropriate configuration and design to accommodate the leisure and recreation needs of future residents?

9. Does the proposed development represent good land use planning?

10. Does the Proposed Development represent appropriate urban design in addressing matters including built form, massing, setbacks, stepbacks, and spacing/building separation, having regard for the site and the existing context of the surrounding lands?

11. Does the Proposed Development have appropriate regard for the applicable Council-approved design guidelines, including the Tall Building Guidelines (2017), Pedestrian-level Wind Study Guidelines and Terms of Reference (2020), Shadow Study Guidelines and Terms of Reference (2020), Uptown Mixed-Use Centre Urban Design Guidelines (1994), Stormwater Management Design Guidelines (2020), Sustainable Building and Development Guidelines (2018), and Lighting Design Guidelines (2008)?

12. Does the proposed development appropriately avoid and/or mitigate shadow impacts and pedestrian-level wind impacts on the surrounding area?

13. Does the proposed development provide adequate setbacks to allow for appropriate streetscapes along Appleby Line and an appropriate interface with the adjacent utility corridor?

14. Do the traffic and parking analyses presented in the Transportation Impact Study (prepared by Paradigm Transportation Solutions Ltd.,) accurately assess and evaluate the development impacts? Specifically: a) The existing and proposed future site generated peak-hour trips, b) The Land Use Code (LUC), c) Proposed traffic increases and trip distribution; and d) The traffic and operational impacts to the existing roadway network.

15. Does the design and location of the proposed access arrangement (two restricted access driveways to the site) meet the design requirements of the City and/or the Region and is it appropriate for this level of development, in the context of the existing roadway network and surrounding communities.

16. Has sufficient detail been provided about the proposed Mitigation Strategy and does the proposed Mitigation Strategy adequately mitigate the anticipated impacts to the existing roadway network?

17. Does the proposed development provide adequate parking supply? Is the proposed parking rate (occupant and visitor and commercial) appropriate and in-line with the recently updated city parking standards?

18. Does the proposed development provide sufficient detail about the Transportation Demand Management (TDM) measures to encourage a change in driver behaviour and meet the requirements and justification for reducing the parking supply?

Region of Halton

1. Do the amendments conform with the Regional Official Plan, 2009 (as amended by ROPA 48 and 49), including: a. Halton’s Regional Structure: Sections 50.2 (1), 51.3 (1), 55.3, Table 1, Table 2, Table 2A, Table 2B b. Development Criteria: Section 58 c. Urban Area and the Regional Structure: Sections 75, 77(2.1), 77 (2.3), and 77(5) d. Regional Urban Structure: Sections 78, 78.1, e. Strategic Growth Area: Sections 79, 79.1, 79.2, 79.3, 82, 82.1, 82.2

2. Is the proposed use and built form compatible with, or mitigated from land use impacts from adjacent major facilities and transportation facilities as required by Provincial and Regional planning policy and any implementing Guidelines.

3. Are the proposed restricted right-in/right-out accesses (to Appleby Line (Regional Road 20), to Upper Middle Road (Regional Road 38) and recommendation for U-turns for some of the site trips (entering, exiting) as a result of the restricted access appropriate?

4. Has the applicant actively and creatively pursued a shared access with any properties to the south in order to improve the safety of accessing Appleby Line and Upper Middle Road via the existing area signalized intersections?

5. Has there been sufficient information and detailed analysis prepared in the transportation report (by Paradigm Transportation Solutions Ltd., May 2022) provided by the applicant to fully and accurately assess the development impacts and proposed mitigation measures such as, among other things: a. A Functional Operation and Safety Analysis Report by a Professional Transportation Safety Consultant regarding the proposed U-turns as a daily solution, for some of the site trips, for access management for the proposed development, including the required weaving maneuvers for site traffic at numerous area intersections along both Appleby Line and Upper Middle Road, specifically during the a.m. and p.m. peak hours; b. Accurate and detailed analysis of all of the locations potential U-turns will occur by site traffic along this section of Appleby Line and Upper Middle Road, other than at the one intersection identified in the Study; c. The impacts to all intersections, area businesses and other road users (pedestrians, cyclists, auto and transit) with the introduction of U-turns to the area road network as a daily solution for access management. d. The recommendations to provide additional storage for both eastbound and westbound left-turn lanes on Ironstone Drive at the intersection with Appleby Line and the lack of this feasible recommendation due to the existing spacing to the nearest accesses and due to the existing width of Ironstone Drive.

6. Has the potential for contamination on the subject lands been adequately assessed and appropriately addressed in accordance with Section 147(17) of the Region of Halton’s Official Plan, 2009 (as amended) and the Region’s Guideline (Protocol) for Reviewing Development Applications with Respect to Contaminated or Potentially Contaminated Sites. If approved, have the appropriate Holding provisions been put in place to address the Region’s Site Contamination policies (Section 147(17)?

SERVICING ISSUES

7. Is the proposed built form being considered through the Amendments appropriately designed to permit Regional waste collection In accordance with Section 148 of the Region of Halton’s Official Plan, 2009 (as amended), and the Region’s Development Design Guidelines for Source Separation of Solid Waste? If approved, what are the appropriate zoning provisions that address and protect for the safe and efficient collection of solid waste?

8. Is the proposed built form being considered be appropriately designed to extend the Halton Region watermain northerly along the east side of Appleby Line from Ironstone Drive to the proposed development and then westerly across Appleby Line to the Region’s trunk/transmission watermain, utilizing the existing service connection at the main?

Upper Appleby Developments Inc.

1. Does the proposed development have appropriate regard for matters of provincial interest as set out in section 2 of the Planning Act, including 2(q) and 2(r)?

2. Is the proposed development consistent with the Provincial Policy Statement, in accordance with section 3 of the Planning Act, including, in particular, policies 1.1.1, 1.1.3.3, 1.1.3.4, 1.4.3 and 1.7.1?

3. Does the proposed development represent an appropriate level of intensification and density within the context of the surrounding neighborhood?

4. Will the proposed development cause unacceptable adverse impacts upon lands in the surrounding area?

5. Does the built form proposed in the Appellant’s application conform with policies 2.3.1(e), 7.3, 8.1.1(1)(d), 8.1.1(2)(b), 8.1.1(3.19) and 8.1.1(4) of the City of Burlington’s Official Plan?

6. Do the transportation impacts of the proposed development (including the right-in/right-out driveways, reduced onsite parking, and anticipated increase in traffic and queue lengths) conform with policy 8.1.1(4.12) of the City of Burlington’s Official Plan?

7. Is the proposed development’s impact on servicing and stormwater consistent with policy 1.6.6.1 of the Provincial Policy Statement? Are the upgrades recommended in the Appellant’s Functional Servicing & Stormwater Management Report sufficient?

8. Does the density and height of the proposed development conform with policies 2.3.1(e), 8.1.1(3.19.3), 8.1.1(3.19.6) and 8.1.1(4) of the City of Burlington’s Official Plan?

ATTACHMENT 4

ORDER OF EVIDENCE

1. 1989 Appleby Latch Limited
2. City of Burlington
3. Region of Halton
4. Upper Appleby Developments Inc.
5. Reply by 1989 Appleby Latch Limited (if any)

ATTACHMENT 5

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.