Blacks Point Development Inc. v. Cambridge (City), 2023 CanLII 71702

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 02, 2023 CASE NO(S).: OLT-22-004762

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Blacks Point Development Inc.

Appellant: Canadian National Railway Company

Appellant: 742824 and 742825 Ontario Ltd. (Lammer Development Group)

Subject: Proposed Official Plan Amendment

Description: To permit the development of residential and commercial uses and permit a maximum height of 10 storeys for lands municipally known as 211 & 215 Queen Street West.

Reference Number: OR01/21

Property Address: 211-215 Queen Street West

Municipality/UT: City of Cambridge/Region of Waterloo

OLT Case No.: OLT-22-004762

OLT Lead Case No.: OLT-22-004762

OLT Case Name: Blacks Point Development Inc. v. Cambridge (City)

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

Applicant/Appellant: Blacks Point Development Inc.

Appellant: Canadian National Railway Company

Appellant: 742824 & 742825 Ontario Limited (Lammer Development Group)

Subject: Zoning By-law Amendment

Description: To permit the development of a mixed-use residential and commercial development through reuse of existing buildings and the development of a new 10 storey residential building.

Reference Number: OR01/21

Property Address: 211-215 Queen Street West

Municipality/UT: City of Cambridge/Region of Waterloo

OLT Case No.: OLT-22-004686

OLT Lead Case No.: OLT-22-004762

BEFORE:

BITA M. RAJAEE & S. BOBKA

This 2nd day,

MEMBER(S)

August, 2023

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on March. 25, 2024.

“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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT “A”

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on March 25, 2024 (date) at 10:00 a.m. using the following electronic meeting platform:

GoTo Meeting: https://meet.goto.com/680885805

Access code: 680-885-805

Audio-only line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373

Audio-only access code: 680-885-805

The following dates are excluded:

March 29, 2024 (Good Friday);

April 1, 2024 (Easter Monday);

April 8, 2024

3. The parties’ initial estimation for the length of the hearing is 25 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 November 24, 2023 in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before December 26, 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 January 10, 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 January 25, 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 January 25, 2024, 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 December 18, 2023, the parties shall provide a status update to the Tribunal including an indication as to whether all of the hearing dates remain required.

16. On or before March 5, 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. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before February 23, 2024 after the evidence is received and 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 March 15, 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 on or before March 18, 2024 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 March 18, 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.

Summary of Key Dates

Date

Event

November 24, 2023

Exchange of Witness Lists (names, disciplines and order to be called)

December 18, 2024

Parties to provide a status update to the Tribunal

December 26, 2023

Experts Meeting

January 10, 2024

File a Statement of Agreed Facts and Issues

January 25, 2024

Exchange Witness, Expert Witness and Participant Statements

February 23, 2024

Exchange of Reply Witness Statements (if any)

March 5, 2024

Provide copies of visual evidence to all parties (if any)

March 15, 2024

Preparation of Joint Document Book

March 18, 2024

Final Work Plan Filed with Tribunal

March 25, 2024

Hearing Commences

ATTACHMENT 1

PARTIES AND PARTICIPANTS

Party

Contact Information

Blacks Point Development Inc.

Duncan Linton LLP Lawyers 45 Erb Street, East Waterloo, ON N2J 1L7 Peter Hertz phertz@kwlaw.net 519-886-3340

Canadian National Railway Company

Dentons Canada LLP 77 King Street West, Suite 400 Toronto-Dominion Centre Toronto, ON M5K 0A1 Katarzyna Sliwa Kat.sliwa@dentons.com Mary Ellen Bench Maryellen.bench@dentons.com Diana Betlej diana.betlej@dentons.com 416-863-4628

742824 & 742825 Ontario Limited (Lammer Development Group)

Turkstra Mazza Associates 15 Bold Street Hamilton, ON, L8P 1T3 Scott Snider ssnider@tmalaw.ca Shelley Kaufman skaufman@tmalaw.ca 905-529-3476

City of Cambridge

Duxbury Law Professional Corporation 500 – 1 King Street West Hamilton, ON L8P 1A4 Brian Duxbury brian@duxburylaw.ca 905-570-1242 Nicole Auty autyn@cambridge.ca 519-740-4683 ext. 4210

Region of Waterloo

Senior Solicitor, Development & Property - The Regional Municipality of Waterloo Fiona McCrea FMcCrea@regionofwaterloo.ca 519-575-4518

Participant

Dr. Derek Coleman dcoleman@agesplan.com 519-658-6085

ATTACHMENT 2

ISSUES LIST[1]

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. The extent to which the issues are appropriate or relevant to the determination at the hearing will be matter of evidence and argument at the hearing.

Issues List of Blacks Point Development Inc.

1. Is there any lawful authority for the inclusion of the holding provision at s. 6(b) of By-Law No. 22-050 (the “Access Hold”)?

2. Is the Access Hold impermissibly vague?

3. Is the Access Hold an impermissible attempt to impose conditions or terms that go to the commercial relations between Blacks Point Development Inc., and 742824 Ontario Limited/742825 Ontario Limited?

4. Is the Access Hold an impermissible tax?

5. Is the Access Hold contrary to the City of Cambridge Official Plan?

6. Is the Access Hold an impermissible bonus contrary to s. 106 of the Municipal Act, 2001, S.O. 2001, c. 25?

7. Is approval of Blacks Point Development Inc.’s applications for a zoning by-law and official plan amendment contained in municipal file No. OR01/21 (the “Applications”) in conformity with sections 1.1, 2(f), (h), (j), (n), (o), (p), and (r) of the Planning Act, R.S.O. 1990, c. P.13?

8. Is approval of the Applications consistent with policies 1.1.1 a), b), c) and e), 1.1.3.2 a), 1.1.3.3, 1.1.3.4, 1.2.6, 1.4.3, 1.5.1, 1.6.8.1, and 3.6 of the Provincial Policy Statement (2020)?

9. Is approval of the Applications in conformity with policies 2.2.1.4 d), 3.2.2.1, 3.2.2.2, 3.2.2.3, 3.2.3.4 of the Growth Plan for the Greater Golden Horseshoe (2020)?

10. Is approval of the Applications in conformity with sections 5.1, 5.A.3, 5.A.25, 5.A.41 of the Regional Official Plan?

11. Is approval of the Applications in conformity with sections 2.7.3, 5.11, 6.3.1, 6.7.3, and 6.7.4 of the City of Cambridge Official Plan?

Issues List of 742924 and 742825 Ontario Limited (Lammer Development Group)

1. Do the proposed official plan amendment and proposed zoning by-law amendment have appropriate regard for the matters of provincial interest set out in section 2 of the Planning Act, R.S.O. 1990, c. P. 13, as amended, including but not limited to ss. 2 (f), (h), (j), (n), (o), (p), (q), (r) as well section 1.1 of the Planning Act?

2. Are the proposed official plan amendment and proposed zoning by-law amendment consistent with the Provincial Policy Statement 2020, in particular but not limited to policies 1.1.1 (a), (b), (c) and (e), 1.1.3.2 (a), 1.1.3.3, 1.1.3.4, 1.2.1, 1.4.3, 1.6.1, 1.6.7, 1.6.8.1, 1.7.1(c), (d), (g) and 1.8.1 (a), (b), (c)?

3. Do the proposed official plan amendment and proposed zoning by-law amendment conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), in particular but not limited to policies 1.2.1, 2.1, 2.2.1.4 d), 3.1, 3.2.1.1, 3.2.1.2, 3.2.1.3, 3.2.2.1, 3.2.2.2, 3.2.2.3 and 3.2.3.4?

4. Do the proposed official plan amendment and proposed zoning by-law amendment conform to the Regional Official Plan, in particular but not limited to policies 5.1, 5.A.3, 5.A.25 and 5.A.41?

5. Does the proposed zoning by-law amendment conform to the City Official Plan, in particular but not limited to policies 2.7.3, 5.11, 6.3.1, 6.7.3 and 6.7.4?

6. Is the proposed Holding Provision to ensure an appropriate interconnected access to lands not owned by the applicant to the west prior to site plan appropriate? Alternatively, is it more appropriate from a planning perspective to ensure the access issue is fully addressed as part of the proposed official plan amendment and zoning by-law amendment approval process?

7. Have the traffic justifications accounted for potential uses on the west lands, particularly in recognition of the shared access, existing permitted uses and the planned intent to convert the west lands to residential uses? Is it necessary to account for this impact to ensure a coordinated approach to orderly development and to ensure adequate and efficient transportation?

8. Is it appropriate from a traffic and safety perspective to permit the development of this area without a second access point? If not, what other road access may be appropriate?

9. Will the existing registered right-of-way (ROW) access to the neighbouring lands to the west be impeded by the proposed development?

10. Has the proposed development properly considered the existing registered right-of-way (ROW) access to the neighbouring lands to the west or has the development potential on the neighbouring lands been impeded by the proposed development in recognition of the shared access point and ROW?

11. Are the parking ratio reductions as approved appropriate to support the level of development proposed? Does the proposed parking have the potential to impede the existing ROW?

12. Is the proposal for no minimum interior side yard appropriate on the west side of the subject lands where the City Zoning By-law requires 4.5 metres?

13. Do the proposed official plan amendment and proposed zoning by-law amendment represent good planning and are they in the public interest?

Issues List of Canadian National Railway Company

Planning Act and Planning Policies

1. Do the proposed Official Plan Amendment (“OPA”) and (“ZBA”) have sufficient regard to matters of provincial interest as outlined in sections 2 (f), (h), (l), (m), (n), (o), (p) and (r) of the Planning Act?

2. Do the proposed OPA and ZBA take into consideration matters addressed by the Places to Grow Act, 2005, in particular section 14(4)?

3. Are the proposed OPA and ZBA:

a) consistent with the Provincial Policy Statement 2020 (“PPS”) specifically Part III, Part IV and Part V policies 1.0, 1.1.1, 1.1.2, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.2.1 a), b) and d), 1.2.3, 1.3.1, 1.4.3(f), 1.6.1, 1.6.2, 1.6.3, 1.6.4, 1.6.7.1, 1.6.7.2, 1.6.7.3, 1.6.8, 1.6.9, 1.7.1 a), c), g), k); 4.0 and associated definitions;

b) conform with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe Growth Plan 2020 (“Growth Plan”) specifically sections: 1.2, 1.2.1, 1.2.3, 2.1, 2.2.1.3(c), 2.2.1.4, 2.2.2.3, 2.2.5.1, 2.2.5.8, 3.1, 3.2.1.1, 3.2.1.2, 3.2.1.4, 3.2.1.5, 3.2.2.1, 3.2.2.2, 3.2.4, 3.2.5.1, 3.2.5.2, 4.2.10.1 (a), (c) and (i), 4.2.10.2 (a), 5.2.3.1, 5.2.4.5, 5.2.5.6, 5.2.5.8 and associated schedules and definitions;

c) conform with and have regard to the 2051 Greater Golden Horseshoe Transportation Plan;

d) Conform with the approved Region of Waterloo Official Plan (as approved by the OMB June 18, 2015, as amended) specifically sections: 1.B, 1.E, 2.B, 2.D.1, 2.G.10, 2.G.13, 2.G.14, 2.G.15, 3.A.2, 3.A.3, 4.1, 4.3, 4.B.5, 5.1, 5.A.3, 5.A.40, 5.A.41, 10.D.10, 10.D.11, 10.D.12 and associated schedules and definitions;

e) Conform with the adopted Region of Waterloo Official Plan (ROPA 6) on August 18th, 2022, specifically sections: 1.2.2, 1.2.3, 1.3, 1.5, 2, 2.A.2, 2.A.4, 2.C.2.2 a), g); 2.D.4.1, 2.D.6.1, 2.F.2.b, f; 2.I.2.1, 2.I.2.2, 2.I.2.3 and associated schedules and definitions;

f) Conform with the City of Cambridge Official Plan, specifically sections: 2.2 g, I, k; 2.6.1.7; 2.7.1.2.d; 2.7.3; 2.8.2.5, 2.8.3.6, 5.1.b, 5.2.1, 5.7.5, 5.10, 5.11, 5.14.e, h, l, o; 5.15; 6.1 a, c; 6.2.3, 6.9; 6.13.1; 8.1.1, 8.4.2.1, 8.4.3.c, d; 10.3, 10.7, 10.10, 10.11 and associated schedules and definitions.

g) have regard to the Federation of Canadian Municipalities/Railway Association of Canada Guidelines for New Development in Proximity to Railway Operations (“FCM/RAC Guidelines”)?

Railway Operations

4. Do the OPA and ZBA give consideration to CN’s statutory rights, obligations and the legislation that governs CN operations including sections 5, 95, 95.1, 95.2, 95.3, 98, 100, 101, 102 and 103 of the Canada Transportation Act (S.C. 1996), c. 10 and sections 8(1), 19, 47.1 of the Railway Safety Act (1985, c.32) and associated guidelines and regulations? Specifically, in relation to its mandate to carry products, including dangerous goods, operate a railway, noise, vibration and odour emissions, and its ability to add additional infrastructure on railway lands?

Freight Supportive Guidelines

5. Does the proposed development meet the requirements of the Province of Ontario’s Freight Supportive Guidelines?

FCM/RAC Guidelines/NPC-300/CN Guidelines

6. How should the FCM/RAC Guidelines be applied in assessing and evaluating the proposed OPA and ZBA?

7. Do the proposed OPA and ZBA have regard to the FCM/RAC Guidelines?

8. Has the development been designed to meet the noise and vibration guidelines as outlined in the FCM/RAC, NPC-300 and CN guidelines?

Mitigation/Implementation

9. If the proposed development is approved, how will any required mitigation measures be secured and enforced by the municipality?

10. Is the use of condominium declarations an appropriate means to secure long term mitigation measures? If it is not, should the development be approved?

11. If development of sensitive land uses is feasible and good planning, should any private agreements under NPC-300, environmental easements and agreements under the Industrial Mining and Lands Compensation Act be required for the residential development of the Subject Lands?

12. Is residential development or other sensitive uses on the Subject Lands in the proposed OPA and ZBA good planning?

13. If residential development is feasible on all or a portion of the Subject Lands what policies should be contained in the OPA to ensure the implementation and maintenance of any necessary on-site receptor mitigation and phasing to address any environmental and land use impacts?

14. What planning tools and agreements are needed and may be utilized to secure implementation of recommendations of technical studies and other requirements identified through the review and consideration of the OPA and ZBA?

15. Have drainage patterns and related considerations been satisfactorily considered and addressed.

Railway crossing

16. Is the proposed railway crossing feasible?

17. Is it appropriate to leave the railway crossing determination to the Site Plan Application process?

18. Have the appropriate railway crossing considerations and associated upgrades been satisfactorily secured?

19. Should the City of Cambridge protect for a joint access with adjoining lands to share the proposed railway crossing? If yes, should the OPA and ZBLA be updated accordingly?

Issues of the City of Cambridge

1. Is the development of the subject property appropriate or feasible for development in the absence of suitable provisions or arrangements being made for access to the property across the rail line of Canadian National Railway Company?

2. Have appropriate arrangements been planned for traffic movements to and from the subject property and the adjacent property and is the current configuration for access to the subject property appropriate?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Applicant

2. City of Cambridge

3. Region of Waterloo

4. Appellant (2) Canadian National Railway Company

5. Appellant (1) Lammer Development Group

6. Applicant in Reply

1Note 1: Where an issue refers to a provision from the PPS or the Growth Plan or either of the Official Plans in addressing the issue, the planning document from which the provision is taken should be read in its entirety with all relevant provisions being considered. For greater certainty, the identification of a specific provision in an issue does not preclude the parties from referring to other provisions from the same planning document in addressing that issue.

Note 2: The parties reserve their rights to participate in the hearing relating to issues raised by other parties.