Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 03, 2023
CASE NO(S).: OLT-22-004211
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Innovation Developments Kitchener Limited
Subject: Request to amend the Official Plan – Refusal of request
Description: Proposing to develop the Site with a 3-tower (38, 36, 25 storeys), mixed-use development containing 1,124 residential dwelling units.
Reference Number: OPA21/011/V/ES
Property Address: 146-162 Victoria Street South and 92-110 Park Street
Municipality/UT: Kitchener/Waterloo
OLT Case No.: OLT-22-004211
OLT Lead Case No.: OLT-22-004211
OLT Case Name: Innovation Developments Kitchener Limited v. Kitchener (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Innovation Developments Kitchener Limited
Subject: Application to amend the Zoning By-law – Refusal of application
Reference Number: ZBA/21/017/V/ES
Property Address: 146-162 Victoria Street South and 92-110 Park Street
Municipality/UT: Kitchener/Waterloo
OLT Case No.: OLT-22-004212
OLT Lead Case No.: OLT-22-004211
Heard: December 14, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Innovation Developments Kitchener Limited | Meaghan Barrett, Patrick Harrington (in absentia) |
| City of Kitchener | Katherine Hughes |
| Region of Waterloo | Fiona McCrea |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON DECEMBER 14, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the first Case Management Conference (“CMC”) with respect to appeals brought pursuant to s. 22(7) and 34(11) of the Planning Act by Innovation Developments Kitchener Limited (“Applicant/Appellant”) against the refusal of applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) in relation to the property located at 146-162 Victoria Street South and 92-110 Park Street (“subject property”/”site”). The effect of the proposed OPA is to permit a three tower (38, 36 and 25 storeys) mixed-use development with an increased floor space ratio of 11.7. The effect of the ZBA is to permit a mixed-use development having 1,124 residential units and 1,750 square metres of commercial space with a floor space ratio of 11.7.
2The Tribunal received a sworn Affidavit of Service dated November 14, 2022, confirming that Notice of this CMC was properly given, which was marked as Exhibit 1.
STATUS REQUESTS
3In response to the Notice, the Tribunal received a written request for Party status from Liveable Park and Victoria (“LPV”), an unincorporated entity. Sheldon Atos appeared at the CMC to speak to the request on behalf of LPV. LPV is an organization consisting of individuals who reside in the neighbourhood near the subject site, who oppose the applications.
4In response to questions from the Member, Mr. Atos indicated LPV does not intend to incorporate, does not intend to retain a legal representative or to call any expert or objective evidence in support of its position at a hearing on the merits.
5Counsel for the Applicant/Appellant opposed the request for Party status. It was submitted that:
an unincorporated entity cannot be granted status in Tribunal proceedings;
LPV’s request for status does not clearly articulate why LPV’s presence is necessary for the Tribunal to effectively adjudicate upon the matters before it, contrary to Rule 8.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”);
LPV’s presence is not, in fact, required for the Tribunal to effectively adjudicate the matters at issue, as the concerns raised by LPV in these proceedings are the same concerns raised throughout the process to date and which were already considered in the decision to refuse the applications. As such, those interests/concerns will be reflected and appropriately addressed through the evidence presented by the City and/or the Region at the hearing; and,
Given that the intent seems to be for LPV to provide non-opinion evidence or statements from its members on the proposed development, this is most appropriately done by way of written participant statement(s).
6Counsel for the City and the Region took no position on the request.
7Mr. Atos expressed concern that, as the City and Region have yet to receive instructions, it is possible that the City and/or the Region may choose not to appear in opposition to the appeal. In response, counsel for the Appellant submitted that the request for Party status should nevertheless be refused and instead, the Tribunal should consider granting Participant status, in the alternative. She added that, there is currently nothing on the record to indicate the City/Region will not defend the decision to refuse the applications but, in any event, Mr. Atos could, at a later date, make a motion to the Tribunal to change his status from Participant to Party if the City/Region chose not to oppose the Appeal.
8The Tribunal agreed with the submissions of the Appellant’s counsel and refused the request for Party Status. Mr. Atos was granted Participant Status as an individual and may file a written statement for consideration at the hearing which encapsulates the concerns held by the LPV.
9In response to the Notice, the Tribunal also received written requests for Participant Status from Gail Pool, Katherine Bitzer and Nicole Vasey. With the consent of the Parties, the Tribunal granted Participant Status to Ms. Pool and Ms. Bitzer.
10Ms. Vasey’s request form indicated that she wished to be granted Participant Status for the purpose of being permitted to observe the hearing. The Tribunal explained the difference between Participants and observers, that hearing events are open to the public and that, if Ms. Vasey simply wished to have notice of future hearing events as distinct from being able to file a written statement for consideration at the hearing, she could request to be added to the Tribunal’s mailing list. Following this explanation, Ms. Vasey clarified that it was not her intent to seek status of any kind. At her request, the Tribunal added her to the mailing list so that she may remain apprised of future hearing events in the matter.
11All Participants are reminded that, should they wish for their written statements to be considered by the Member/Panel presiding over a hearing on the merits, they will be required to submit same to the Tribunal (copying all other Parties) by a deadline to be specified in a future Procedural Order governing the proceedings.
NEXT STEPS
12The Parties jointly requested the Tribunal schedule a subsequent CMC, explaining that Counsel for the City and Region had been unable to obtain instructions from their clients as a result of delays associated with the recently held Municipal elections. Given the foregoing, the Parties indicated that while they are aware of opportunities for resolution, including Tribunal-assisted mediation, they are not in a position to explore same at this time.
13The Tribunal stressed the importance of ensuring that the second CMC is productive. To that end, counsel for the Appellant undertook to submit a draft Procedural Order and Issues List no later than Monday, February 27, 2023 for the Tribunal’s review and approval. The Parties are expected to arrive at the next CMC prepared to discuss all remaining procedural matters in order that a hearing date may be scheduled at that time.
14At the request of the Parties, the Tribunal scheduled a second CMC, which will be held by way of video hearing commencing at 10a.m. on Wednesday, March 1, 2023.
15Parties and Participants 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:
https://global.gotomeeting.com/join/344779885
Access Code: 344-779-885
16Parties and Participants 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.
17Persons 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: (Toll Free): 1-888-299-1889 or +1 (647) 497-9373. The access code is 344-779-885.
18Individuals 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 CMC by video 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.
OTHER MATTERS
19The Tribunal inquired as to whether there were any other matters to be addressed, which might assist in the fair, just and expeditious resolution of this matter.
20The Parties indicated there were none.
ORDER
21The Tribunal orders that:
a) the following individuals are Participants in this proceeding:
a. Sheldon Atos;
b. Gail Pool; and
c. Katherine Bitzer.
b) Nicole Vasey shall be added to the Tribunal’s mailing list;
c) a further Case Management Conference will be held by video hearing at 10 a.m. on Wednesday, March 1, 2023;
d) The Parties are directed to submit a draft Procedural Order and Issues List for the Tribunal’s review no later than Monday, February 27, 2023; and,
e) There will be no further notice and this Member is not seized but may be available for case management, should scheduling permit.
“S. Braun”
S. Braun
MEMBER
Ontario Land Tribunal
Website: www.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.