115 Bridgeport Inc. and 1648386 Ontario Ltd. v. Waterloo (City), 2023 CanLII 76843

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 16 2023

CASE NO(S).: OLT-23-000161

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

Applicant and Appellant: 115 Bridgeport Inc. and 1648386 Ontario Ltd.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the development of a mixed-use residential and commercial development

Reference Number: OPA 40

Property Address: 109, 115, 133 Bridgeport Road E and 30 Weber Street N

Municipality/UT: City of Waterloo

OLT Case No.: OLT-23-000161

OLT Lead Case No.: OLT-23-000161

OLT Case Name: 115 Bridgeport Inc. and 1648386 Ontario Ltd. v. Waterloo (City)

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

Applicant and Appellant: 115 Bridgeport Inc. and 1648386 Ontario Ltd.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of a mixed-use residential and commercial development

Reference Number: Z-22-10

Property Address: 109, 115, 133 Bridgeport Road E and 30 Weber Street N

Municipality/UT: City of Waterloo

OLT Case No.: OLT-23-000162

OLT Lead Case No.: OLT-23-000161

Heard: July 13, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
115 Bridgeport Inc. and 1648386 Ontario Ltd.	Jennifer Meader
City of Waterloo	Susan Smith
Regional Municipality of Waterloo	Fiona M. McCrea

MEMORANDUM OF ORAL DECISION DELIVERED ON JULY 13, 2023 BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The Tribunal convened a Case Management Conference (“CMC”) with respect to the appeals by 115 Bridgeport Inc. and 1648386 Ontario Ltd. (“Appellants”) against the City of Waterloo’s (“City”) failure to make a decision on the Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) within the statutory timeframes as prescribed in the Planning Act, R.S.O 1990, c. P. 13, as amended (“Act”). The intent of the applications is to allow the redevelopment of the lands municipally known as 109, 115, 133 Bridgeport Road East and 30 Weber Street North, in the City of Waterloo (“Subject Lands”).

2The development purposes to demolish the existing buildings on site and to construct a three-tower, mixed-use development which will include 622 residential units and approximately 345 square metres of commercial space on the main floor. The Subject Lands are approximately 1.17 hectares in size, and anticipate having road frontages on Bridgeport Road East, Weber Street North, and Royal Street once road widening has been completed. The Subject Lands are located in a “Major Node” of the City and are located in an area of broad mix uses, including day-to-day commercial uses and are well served by existing public transit.

3The Tribunal marked the Affidavit of Service by Victoria Peacock dated June 20, 2023, as Exhibit 1 to the hearing.

PARTY REQUESTS

4There were no other Party requests made before or during the hearing.

PARTICIPANT REQUESTS

5There were no Participant requests received by the Tribunal prior to the hearing.

MOTION TO CONSOLIDATE

6Prior to the commencement of the CMC, the Tribunal was made aware of the intent of the Appellant to bring a Motion to Consolidate (“Motion”) with the above noted appeals, and the currently active appeals before the Tribunal for the lands municipally known as 81-85 Bridgeport Road East in the City. The Ontario Land Tribunal (“OLT”) case file for this active appeal is OLT-22-004241.

7At the beginning of the hearing, the Parties notified the Tribunal of their intent to not bring the Motion before the Tribunal. The Parties have begun active discussions concerning a settlement towards OLT file OLT-22-004241. The Parties agreed that these discussions could possibly lead to a settlement on this matter as well the aforementioned OLT-22-004241 since the issues are similar for both files. If a settlement in both matters occurs before the hearing of the merits of OLT-22-004241, then a settlement hearing may occur concurrently for both files.

8The Parties agreed that the request before the Tribunal during this CMC should be that of setting a hearing date for this matter. The Parties requested a hearing date of fifteen (15) days commencing after February 15, 2024. The Tribunal asked the Parties if the hearing could be completed in fourteen (14) days instead of the requested fifteen (15) days. The parties agreed that if a settlement is not completed prior to the commencement of the hearing, that fourteen (14) days would be sufficient to complete the merits of the matter.

PROCEDURAL ORDER AND ISSUES LIST

9The Parties stated that a draft Procedural Order (“PO”) and Issues List (“IL”) would be similar to OLT File OLT-22-004241. The Parties agreed that a draft PO and IL will be sent to the Case Coordinator by August 01, 2023.

10The Tribunal has received the PO and IL and approves with its contents. The attached PO and IL will govern the hearing of the merits of this matter.

SCHEDULING OF THE HEARING

11The Tribunal has scheduled a hearing of the merits by Video Hearing commencing on February 20, 2024, at 10 a.m. for a duration of 14 days.

12Parties and 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://meet.goto.com/357283957

Access Code: 357-283-957

13Parties and 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: https://app.gotomeeting.com/home.html.

14Persons 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: +1 (647) 497-9391 or Toll-Free: 1-888-455-1389. The access code is 357-283-957.

15Individuals 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 Video Hearing 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.

ORDER

16THE TRIBUNAL ORDERS: A fourteen (14) day Video hearing commence on Tuesday, February 20, 2024, at 10 a.m.

17The Procedural Order is to govern the procedures leading up to and including the Video Hearing as set out in Attachment 1 to this Order and is in full force and effect on the issue date of this Order.

“S. deBoer”

S. deBOER

MEMBER

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.

Schedule 1

CASE NOS.: OLT-23-000161

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

Applicant and Appellant: 115 Bridgeport Inc. and 1648386 Ontario Ltd.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the development of a mixed-use residential and commercial development

Reference Number: OPA 40

Property Address: 109, 115, 133 Bridgeport Road E and 30 Weber Street N

Municipality/UT: City of Waterloo

OLT Case No.: OLT-23-000161

OLT Lead Case No.: OLT-23-000161

OLT Case Name: 115 Bridgeport Inc. and 1648386 Ontario Ltd. v. Waterloo (City)

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

Applicant and Appellant: 115 Bridgeport Inc. and 1648386 Ontario Ltd.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of a mixed-use residential and commercial development

Reference Number: Z-22-10

Property Address: 109, 115, 133 Bridgeport Road E and 30 Weber Street N

Municipality/UT: City of Waterloo

OLT Case No.: OLT-23-000162

OLT Lead Case No.: OLT-23-000161

The Tribunal orders that:

1. The Tribunal may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order.

Organization of the Hearing

2. The hearing will commence on February 20, 2024 at 10 a.m. at https://meet.goto.com/357283957

3. The length of the hearing will be 14 days, ending on March 8, 2024. The length of the hearing may be shortened as issues are resolved or settlement is achieved. 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 identified at the case management conference are set out in Attachment 1 to this Order. All parties shall attend the first day of the hearing.

5. The issues are set out in the Issues List attached as Attachment 2. Except for scoping or removing issues, there will be no changes to this list unless authorized by the Tribunal. A party who asks for changes may have costs awarded against it. Notwithstanding the foregoing, should the Appellant(s) propose any modification(s) to the applications/proposals prior to or at the hearing, the City and the Region reserve the right to add to/modify the issues list in response to such modifications.

6. The order of evidence shall be as listed 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 consent or by Order of the Tribunal.

Requirements Before the Hearing

7. All parties (or their representatives) shall provide a mailing address, email address, and telephone number to the Tribunal. Any such person who retains a representative (legal counsel or agent) subsequent to the prehearing conference must advise the other parties and the Tribunal of the representative’s name, mailing address, email address and phone number.

8. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the City Clerk a list of the witnesses and the order in which they will be called. A preliminary witness list must be delivered by October 17, 2023, and confirmation of list of witness and order in which they will be called shall be delivered by November 21, 2023, to be delivered in accordance with paragraph 19 below. For expert witnesses, a party is to include a copy of the curriculum vitae and the area of expertise in which the witness is proposed to be qualified.

9. Expert witnesses in the same field shall meet to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties and the City Clerk on of before November 21, 2023.

10. An expert witness shall prepare an Expert Witness Statement that shall include: an acknowledgement of expert’s duty form, the area(s) of expertise, any reports prepared by the expert, and any other reports or documents to be relied on at the hearing. Copies of this must be provided as in item 19 below. Instead of an Expert 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.

11. 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 and his or her area of expertise, as in item 19 below.

12. On or before December 15, 2023, the parties shall provide copies of their Witness and/or Expert Witness Statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 19 below.

13. On or before January 12, 2024, the parties shall provide copies of Reply Witness Statements, if any, to the other parties and the City Clerk and to the OLT case co-ordinator in accordance with paragraph 19 below.

14. On or before January 26, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 19 below. If a model is proposed to be used the Tribunal must be notified before the hearing. All parties must have a reasonable opportunity to view it before the hearing.

15. The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal case co-ordinator on of before February 2, 2024.

16. A person wishing to change written evidence, including witness statements, after witness statements and reply witness statements have been filed must make a written motion to the Tribunal in accordance with the Tribunal’s Rules 34 to 38.

17. A party who provides the written evidence of a witness to the other parties must have that witness attend the hearing to give oral evidence, unless the Tribunal and the parties are notified at least 7 days before the hearing that the written evidence is not apart of their record.

18. On or before January 22, 2024, the parties shall prepare and file a hearing plan with the Tribunal at least 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.

19. All filings shall be submitted electronically and, if requested by the OLT case co-ordinator, in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10 MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

20. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rules apply to such requests.

21. A summary of the various filing dates is contained in Attachment 4.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES

1. 115 Bridgeport Inc. and 1648386 Ontario Ltd. Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 Jennifer Meader Tel: 905.529.3476 Email: jmeader@tmalaw.ca

2. The Corporation of the City of Waterloo The Corporation of the City of Waterloo 100 Regina Street South Waterloo, ON N2J 4A8 Susan Smith Tel: 519.747.6100 Email: susan.smith@waterloo.ca

3. The Regional Municipality of Waterloo 150 Fredrick Street Kitchener, ON N2G 4J2 Fiona McCrea Tel: 519.575.4518 Email: fmccrea@regionofwaterloo.ca

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet, but shall not preclude any other party from calling evidence on the issue.

The Regional Municipality of Waterloo

1. Do the applications appropriately address site contamination, including but not limited to completion of a Record of Site Condition and receipt of an acknowledgment letter from the Ministry of the Environment, Conservation and Parks?
2. Do the applications appropriately address noise impacts, from all the proposed buildings, adjacent stationary and transportation sources?
3. Do the applications comply with Section 59 of the Clean Water Act, 2006?

The Corporation of the City of Waterloo

Planning Act, Provincial Policy Statement, Growth Plan, and Official Plans

4. Do the applications have appropriate regard to the matters of Provincial interest, as set out in Section 2 of the Planning Act, R.S.O. 1990, c.P.13, as amended?
5. Are the applications consistent with the Provincial Policy Statement, 2020, including policies 1.1, 1.4, 1.5, 1.6 and 3.2?*
6. Do the applications conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, including policies 2.2.1, 2.2.6, 3.2.5, 3.2.6 and 3.2.7?*

(Note, on April 6, 2023, the Province released a proposal to combine the PPS and Growth Plan into a new land use policy document. The proposal is currently posted to the Environmental Registry of Ontario with the consultation set to close on June 5, 2023. As such additional or different policies may be applicable/relevant should the proposal come into force and effect, and the Issues List may be updated accordingly)

7. Do the applications conform to the Region of Waterloo Official Plan, as amended, including policies 2.D.1., 2.D.2, 2.G.10, 2.G.13, 2.G.14, 2.G.18, 3.1, 3.A.2, 3.B.3, 3.C.4, 5.A.25, 10.D.12, and 10.E.5?
8. Do the applications conform to the City of Waterloo Official Plan, including policies 1.4, 2.2, 2.3, 3.1, 3.2, 3.3, 3.4, 3.6, 3.9, 3.10, 3.11, 4.1, 4.5, 5.1, 5.2, 5.4, 6.1, 6.3, 6.4, 6.5, 6.6, 8.1, 8.4, 8.6, 8.7, 10.1, 10.2, 12.2.9 and 12.3.1?

Good Planning, Public Interest

9. Do the applications represent good planning and are they in the public interest?

Land Use

10. Does the proposed development provide for an appropriate amount of commercial space?
11. Does the proposed development provide for an appropriate amount of non-residential uses within the Major Node?
12. Does the proposed development provide for an appropriate mix and range of housing, including affordable housing?

Height and Density

13. Do the applications adequately demonstrate that the proposed height and density of the development is consistent with and conforms to all applicable planning policy?
14. Does the proposed development adequately address matters of height and density, including built form, transitioning to adjacent RMU-20 and low-density residential parcels, shadowing, and wind impacts?

Urban Design

15. Does the proposed development demonstrate compatibility and integration with surrounding land uses?
16. Does the proposed development contribute to an animated streetscape, having regarding to matters including building height, mixing of uses, massing architectural design, character, setbacks/stepbacks, siting and landscaping, parking, public spaces, and mitigating thermal/wind impacts?
17. Does the proposed development provide for appropriate urban design, in conformity with the policies of the City’s Official Plan and the City’s Urban Design Manual?

Infrastructure

18. Do the applications appropriately address infrastructure, including utility requirements?

Parkland

19. Does the proposed development adequately address parkland requirements?
20. Is the proposed green space and passive recreation space in the development sufficient?

Parking

21. Are the proposed parking rates adequate?
22. Is the propose parking structure an efficient use of the land?
23. Is underground parking achievable?
24. Is loading adequate and functional for the mixed-use development.

Transportation

25. Are the proposed site driveways, and configuration thereof, appropriate and adequate, including mitigation of impacts on Royal Street?

Zoning

26. Does the proposed development conform to all applicable zoning regulations?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 115 Bridgeport Inc. and 1648386 Ontario Ltd.
2. The Corporation of the City of Waterloo
3. The Regional Municipality of Waterloo
4. 115 Bridgeport Inc. and 16483864 Ontario Ltd. in reply

ATTACHMENT 4

Summary of Filing Dates

EVENT	DATE
Preliminary List of Witnesses	October 17, 2023
List of Witnesses	November 21, 2023
Agreed Statement of Facts & Remaining Issues	November 21, 2023
Witness and Expert Witness Statements	December 15, 2023
Reply Witness Statement	January 12, 2024
Hearing Plan	January 22, 2024
Visual Evidence	January 26, 2024
Joint Document Book	February 2, 2024
OLT Hearing Commences	February 20, 2024