Parrish & Heimbecker Limited v. Cambridge (City), 2023 CanLII 73693

ISSUE DATE:

August.08, 2023

CASE NO:

OLT-22-004797

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

Applicant: North Development Corporation Appellant: Parrish & Heimbecker Limited Subject: Zoning By-law Amendment 22-059 Reference Number: OR07/21 Property Address: 255 King Street West Municipality/UT: City of Cambridge/Region of Waterloo OLT Case No.: OLT-22-004797 OLT Lead Case No.: OLT-22-004797 OLT Case Name: Parrish & Heimbecker Limited v. Cambridge (City)

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

Applicant: North Development Corporation Appellant: Parrish & Heimbecker Limited Subject: Official Plan Amendment No.56 Reference Number: OR07/21 Property Address: 255 King Street West Municipality/UT: City of Cambridge/Region of Waterloo OLT Case No.: OLT-23-000135 OLT Lead Case No.: OLT-22-004797 OLT Case Name: Parrish & Heimbecker Limited v. Cambridge (City)

BEFORE:

Carrie Hardy

This 8th day,

MEMBER

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 January 30, 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 January 30, 2024 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 13 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Attachment 4 contains a Table of Deadlines.

8. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

9. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

10. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before July 21, 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.

11. Expert witnesses in the same field shall have a meeting on or before August 25, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before September 1, 2023.

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 15 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 15 below.

14. On or before September 14, 2023, the parties shall exchange any noise modelling to be relied upon at the hearing subject to the confidentiality provisions at paragraphs 25-30 below.

15. On or before October 27, 2023, 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 23 below.

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

17. On or before December 8, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by December 1, 2023 and in accordance with paragraph 23 below.

19. The parties shall cooperate to prepare a joint document book (to be assembled by the Appellant) and a Combined Witness Statement Brief (to be assembled by the Applicant) both of which shall be shared with the OLT case co-ordinator on or before December 15, 2023.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before December 15, 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.

23. 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.

24. 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.

Confidentiality

25. Confidential information has and will be exchanged between the parties to this proceeding. Collectively, the following is designated as "Confidential Information”:

(a) The noise/acoustical modelling for the facility of the Appellant (Parrish & Heimbecker Limited (“P&H”)) at 166 King Street West, Cambridge (the “P&H Facility”), the base data and assumptions produced by P&H, other P&H-provided source information, including any other information produced pursuant to this Order and any modelling and/or analysis that is produced by other parties to this matter based on information provided by P&H in whole or in part, or that provides information regarding the operations and processes at P&H, except for that in the public domain or that is or may come to be in the lawful possession of a party without the need for P&H’s permission;

(b) All documents, information, materials and evidence that contain or refer to the information in paragraph (a); and

(c) Any other information designated by the Tribunal as confidential.

26. The non-disclosure agreement with respect to the exchange of Confidential Information in the context of this proceeding between P&H and North Development Corporation (the Applicant) dated February 27, 2023 remains valid, and the signatories remain bound by that agreement.

27. In the event that the Applicant, or a representative or consultant of the Applicant, wishes to receive Confidential Information, they shall enter into and execute the said non-disclosure agreement, with appropriate modifications to be prepared by legal counsel to P&H to the satisfaction of Counsel for the Applicant for the context of preparing and exchanging witness statements and expert reports in accordance with this Order, prior to being provided with the Confidential Information.

28. In the event that the Region and/or the City wish to receive Confidential Information, such party shall execute a version of the said non-disclosure agreement that also addresses the provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, as amended, to be prepared by legal counsel to P&H, prior to being provided with the Confidential Information.

29. Any information or materials required to be filed pursuant to this Order that contain Confidential Information shall be sealed.

30. When Confidential Information and or related evidence and argument will be disclosed and or made, the Tribunal will order the hearing be closed to all individuals, except for non-party public sector witnesses appearing under summons, that have not signed a non-disclosure agreement respecting the Confidential Information.

This Member is not seized

So orders the Tribunal

ATTACHMENT 1 – PARTIES AND PARTICIPANTS

PARTIES

1. North Development Corporation (Applicant)

2. Parrish & Heimbecker Limited (Appellant)

3. City of Cambridge

4. Region of Waterloo

ATTACHMENT 2 – ISSUES LIST

In respect of the proposed development of three (3) residential towers of 14-16 storeys with a maximum of 600 dwelling units and ground floor commercial/retail space (the “Proposed Development”) at 255 King Street West, in the City of Cambridge (the “Subject Lands”), and the associated Official Plan Amendment No. 56 (the “OPA”) and Zoning By-law No. 22-059 (the “ZBA”),

1. Are the OPA and ZBA consistent with the Provincial Policy Statement 2020 (the “PPS”), including Part IV (vision), Policies 1.1.1, 1.1.3.2 (a), 1.1.3.2 (b), 1.1.3.2 (e), 1.1.3.2 (f), 1.1.3.3, 1.1.3.4, 1.2.1(a),(b)(d),(e),(f),(g),(h), 1.2.6.1, 1.2.6.2, 1.3.1, 1.3.2.1, 1.3.2.2, 1.3.2.3, 1.3.2.6, 1.4.3 (b), 1.4.3 (c), 1.4.3 (d), 1.4.3 (e), 1.7.1(a),(b),(c),(e),(f), and (i), 2.3.2 and Section 4 (Implementation and Interpretation)?

2. Do the OPA and ZBA conform to A Place to Grow: The Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”), including Section 1.2 (vision), Section 1.2.1 (Guiding Principles), Section 2.1, Policies 2.2.1.2 (a), 2.2.1.4, 2.2.2.1 (a), 2.2.2.3, 2.2.4.9 (a),(c), and (d), 2.2.5.1, 2.2.5.5, 2.2.5.6, 2.2.5.7, 2.2.5.8, 2.2.6.1 (a), and 2.2.6.2, and Section 4.1, 4.2.6.7(b)?

3. Do the OPA and ZBA conform to the Regional Official Plan (the “ROP”), including, Chapter 2 (introduction, goal, objectives), Policies 2.C.2, 2.D.1, 2.D.2, 2.D.6, 2.G.10, and 3.A.2?

4. Doe the OPA and ZBA conform to the City of Cambridge Official Plan (the “City’s Official Plan”), including Policies 2.6.1.1, 2.6.1.6, 2.6.3.1, 2.6.3.2, 2.6.3.3, 2.6.3.5, 2.6.6.4, 2.8e), 2.8.3.1, 2.8.3.3, 3.B.6.2 (introduction), 3.B.6.2.3, 8.3.1, 8.4.2.1a), c), e), f), i), 8.4.2.2a), b), d), 8.4.3, 8.4.6.5, 8.4.6.8, 8.5.1, 8.5.2.5.1, 8.5.2.5.2, and 8.10.14 (including Figure 18)?

5. Has the Applicant addressed potential noise impacts from stationary noise as required by the Ministry of the Environment, Conservation and Parks (MECP) NPC-300 Environmental Noise Guidelines (the “NCP-300 Guidelines”)? How should applicable regulations and guidelines, including without limitation the NPC-300 Guidelines and D-6 Guidelines, be applied by the Tribunal in respect of the OPA & ZBA?

6. Does the Proposed Development require any on-site or off-site noise mitigation measures related to off-site stationary noise sources, in respect of current and future operations? If so,

   1. how will such mitigation measures and implementation be secured, at whose cost, and does the Tribunal have the jurisdiction over same?
   2. do they adequately address the requirements of applicable regulations and guidelines, including without limitation the MECP NCP-300 Guidelines and the D-6 Guidelines?
   3. Should the OPA and ZBA be approved if the Appellant P&H refuses to permit at-source mitigation?

7. Has the principle of residential land use been already established on the Site through the existing site specific permissions on the Site?

8. What is the existing standard P&H has to meet with respect to noise under the existing residential permissions on the Subject Site? Will the proposed development increase that standard, thereby creating an additional requirement to mitigate impacts over and above what already exists?

9. Does P&H have a current Environmental Activity Sector Registration (the “EASR”) from the MECP with respect to the current operations? If so, is P&H’s compliance with the applicable sound limitations and on-site mitigation requirements of the EASR relevant, and does the Tribunal have jurisdiction to find whether or not there is compliance?

10. Are the OPA and ZBA, compatible with the existing P&H Facility and surrounding land uses? If not, should they be modified to ensure that the proposed development and the P&H Facility can co-exist (for example through use of a Holding Provision, separation distance, or design solutions)?

11. Do the OPA and ZBA, by permitting the Proposed Development, represent good planning and do they have appropriate and sufficient regard for the matters of provincial interest enumerated in subsections 2(b), (h), (k), (l), (n), (o), (p) of the Planning Act?

12. Is the approval of the OPA and/or ZBA premature?

    1. Are detailed building designs required, and should same be the basis for approval of the OPA and ZBA?
    2. Are detailed environmental studies (including noise studies) required to demonstrate that the proximate employment uses, including P&H, will not be adversely affected by the Proposed Development, and vice versa? Or, if such reports have been prepared, are they sufficient to demonstrate avoidance of adverse effects relative to the current and future operations on the P&H Facility?
    3. What is the appropriate sequence of mitigation, including issuance of the Tribunal’s order?

13. Even if the approval authority designates the area covered by the OPA and ZBA as a Class 4 area as defined in NPC-300, should mitigation be required at Class 1 levels to avoid complaints and to protect industry? If so, is separation of uses or some other form of mitigation appropriate and how would this be reflected in the OPA and ZBA?

CAVEAT – the Parties do not agree that all of these issues are relevant, properly worded, or applicable. Any objections relating to the issues will be dealt with at the hearing including through written evidence and/or a potential request for costs. Objections relating to issues may also be dealt with through a preliminary motion prior to the hearing.

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Background Non-Opinion Evidence (Given by Applicant - limited to 1 hour)

2. Parrish & Heimbecker Limited (Appellant)

3. North Development Corporation (Applicant)

4. City of Cambridge

5. Region of Waterloo

6. Parrish and Heimbecker Limited (Appellant) – Reply Evidence

ATTACHMENT 4 – SUMMARY OF DEADLINES

Item

Deadline

Witness lists

July 21, 2023

Experts Meetings Completed

August 25, 2023

Agreed Statement of Facts

September 1, 2023

Updated Issues List (If any)

September 6, 2023

Exchange of Modelling by Noise Experts to be used at the hearing subject to confidentiality provisions

September 14, 2023

Witness Statements

October 27, 2023

Visual Evidence

December 8, 2023

Reply Witness Statements

December 1, 2023

Hearing Plan Joint Document Brief (to be assembled by Appellant) Combined Witness Statement Brief (to be assembled by Applicant)

December 15, 2023