Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 24, 2023

CASE NO(S).: OLT-23-000449

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

Applicant/Appellant: 10184217 Canada Corporation

Subject: Request to amend the Official Plan – Refusal of request

Description: To permit an infill development of 30 residential units consisting of stacked townhouses and freehold townhouse dwellings

Reference Number: OR01/20

Property Address: 15 Clover Avenue

Municipality/UT: Cambridge/Waterloo

OLT Case No.: OLT-23-000449

OLT Lead Case No.: OLT-23-000449

OLT Case Name: 10184217 Canada Corporation v. Cambridge (City)

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

Applicant/Appellant: 10184217 Canada Corporation

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit an infill development of 30 residential units consisting of stacked townhouses and freehold townhouse dwellings

Reference Number: OR01/20

Property Address: 15 Clover Avenue

Municipality/UT: Cambridge/Waterloo

OLT Case No.: OLT-23-000450

OLT Lead Case No.: OLT-23-000449

Heard: August 15, 2023 by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel
10184217 Canada Corporation (“Appellant”/“Applicant”)	Denise Baker
City of Cambridge (“City”)	Nicole Auty

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON August 15, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) respecting an appeal by 10184217 Canada Corporation. The appeal arises following a refusal by the City regarding applications for a proposed Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) to permit an infill development of 30 residential units consisting of stacked townhouses and freehold townhouse dwellings at 15 Clover Avenue.

2The proposed OPA and ZBA applications (the “subject applications”) were supported by City planning staff; nevertheless, City Council refused the subject applications based on concerns and submissions by some area residents.

Service of Notice of CMC

3There was no issue with service of the Notice of this CMC; therefore, no further Notice is required. The Tribunal is in receipt of the Affidavit of Service, which is marked as Exhibit 1.

Requests for Status

4Bill Zakhary attended the CMC seeking Party status. His attendance, initially, was purportedly to represent a group of area residents; however, he subsequently confirmed that he did not have formal authority to represent anyone but himself.

5Mr. Zakhary’s Party status request form states that he is seeking Party status in order to allow himself to call a registered professional land use planner as a witness, and to also have the right to ask questions of other witnesses providing testimony and evidence at the hearing. However, Mr. Zakhary confirmed at the CMC that he anticipates that his involvement will be limited to calling just one witness, his land use planner.

6The Tribunal asked Mr. Zakhary if he has already retained a planning expert, and he confirmed that he (together with some other area residents) has retained Alan Ramsey. Mr. Zakhary went on to explain that Mr. Ramsey is working with him and other area residents to build their case in opposition to the subject applications. Further, he explained that Mr. Ramsey is advising them with respect to preparing their case, is otherwise guiding them through the appeal process, and that Mr. Ramsey would have been present at the present CMC to represent them if he was not currently away on vacation.

7The Tribunal then asked the Statutory Parties for submissions on Mr. Zakhary’s request for Party status. The City stated that they support the request, submitting that it will be beneficial to the Tribunal to have area residents present a case from the residents’ perspective. The Tribunal notes that only one resident, Mr. Zakhary, is seeking Party status, and that he does not represent anyone else.

8Counsel for the Appellant opposed the request, principally upon submitting that the residents’ concerns/issues in the matter have proven to be indistinct from those of the City. She noted that the City initially refused the subject applications based on the residents’ concerns expressed before City Council, contrary to their own staff’s recommendations, and further that the City has yet to identify any issues that are distinct from the concerns of the area residents, including Mr. Zakhary.

9As a general principle, Counsel for the Appellant submitted that a person should only be added as a Party if they will contribute to the fair, just and expeditious resolution of the merits of the matter – and that Mr. Zakhary’s proposed involvement as a Party will not achieve this. To the contrary, she submitted, Mr. Zakhary’s involvement will only be duplicative, and, as a result, unnecessarily lengthen the proceedings.

10Furthermore, Counsel for the Appellant submitted that the apparent partiality of Mr. Ramsey, as expressed by Mr. Zakhary, introduces an ongoing concern with respect to Mr. Ramsey’s ability to undertake his duties as an expert witness in this matter. Consequently, if Mr. Zakhary is made a Party solely as a means to allow him to call Mr. Ramsey as an expert witness, it will add yet another contentious issue to the matter, rather than positively contribute to the fair, just and expeditious resolution of the merits of the case.

11Upon considering the above, the Tribunal is persuaded to accept the Appellant’s submissions and refuse Mr. Zakhary’s request for Party status.

12While the Tribunal acknowledges that area residents’ distinct perspectives will often provide positive contributions to the fair and just resolution of a given matter, it is also acknowledged that adding parties will almost always add time, costs, and otherwise, lengthen proceedings. As a result, when considering a request for Party status, the Tribunal must balance the expected positive contributions of a proposed Party (i.e. that which comes from a distinct perspective) with the expected negative consequences associated with decreased efficiency (i.e. added time and costs).

13In the present case, the balance tips against granting Mr. Zakhary’s Party status request because it is not expected that he will add a perspective that is distinct from the City. The Tribunal finds that the City has essentially acknowledged that their opposition to the subject applications is premised on the same concerns raised by the area residents, having refused the subject applications on the basis of their concerns despite a positive opinion provided by their own planning staff. The Tribunal finds that the City has, effectively, stepped into a role as advocate for the area’s concerned citizens, including Mr. Zakhary. Consequently, it would be duplicative to add Mr. Zakhary as another Party. The Tribunal finds that, without Mr. Zakhary being expected to contribute a distinct perspective, his added involvement will not contribute to the fair and just resolution of the matter, leaving only a negative impact on the efficient resolution of the case. As a result, the Tribunal denies Mr. Zakhary’s Party status request.

14Furthermore, the Tribunal finds Mr. Zakhary’s account of Mr. Ramsey’s involvement in their case to be troubling. Based on Mr. Zakhary’s submissions, the Tribunal finds that Mr. Ramsey is effectively acting as an advocate for the area’s concerned residents. The Tribunal further finds that, if Mr. Ramsey is called to testify, his partiality will almost certainly be problematic when it comes time to consider the matter on its merits. Given that Mr. Zakhary confirmed that the only reason he is seeking Party status is to call Mr. Ramsey to testify, the Tribunal is obliged to consider whether Mr. Ramsey’s testimony will help or hinder the Tribunal’s ability to conduct a fair, just and expeditious resolution of the merits of the matter. The Tribunal finds that Mr. Ramsey’s testimony is more likely than not to be a hinderance, given the Tribunal’s above findings regarding his apparent lack of partiality. For this reason alone, the Tribunal also denies Mr. Zakhary’s request for Party status.

15Despite the above findings, the Tribunal finds that Mr. Zakhary shall be granted Participant status. The Tribunal finds that the issues described above, which led to the decision to deny Mr. Zakhary’s Party status request, do not apply to a Participant status request (i.e. the involvement of a Participant will not measurably effect the efficiency of the proceedings, and the concerns about Mr. Ramsey’s partiality do not apply because, as a Participant, Mr. Zakhary cannot call any witnesses). Furthermore, as an area resident, the Tribunal finds that Mr. Zakhary has a genuine interest in the matter and deserves the opportunity to express his concerns, in writing, even if his concerns happen to be duplicative of the issues identified by the City.

16No one else attended the CMC seeking either Party or Participant status. However, given the outcome of Mr. Zakhary’s Party status request, and the fact that the Tribunal is left with an impression that other residents might have refrained from seeking Participant status due to an assumption that their interests could be represented through Mr. Zakhary as a Party, the Tribunal will allow another month for the public to submit Participant statements for the Tribunal’s consideration.

MEDIATION AND SETTLEMENT

17The Tribunal explored the possibility of mediation and settlement with the Parties; however, the Parties confirmed that no such efforts have been undertaken, to date, because the City has yet to confirm its issues. The City asserts that it must wait for a resolution of Mr. Zakhary’s Party status request before confirming its issues. When questioned by the Tribunal about why it could not identify its own issues before knowing Mr. Zakhary’s status in the matter, the City did not provide a clear explanation. Nevertheless, it is clear that the Parties have not engaged in resolution efforts because, presently, there is no clear understanding of what they disagree on.

PROCEDURAL ORDER AND ISSUES LIST

18For the same reasons that there have been no resolution efforts between the parties, the parties have not produced a joint draft Procedural Order or Issues List. The Tribunal finds that the hold-up clearly rests with the City because the Appellant has drafted its best estimate of what the issues might be despite no confirmation from the City. Therefore, the Tribunal sets a deadline for the City to deliver its issues to the Appellant by Monday, September 11, 2023, and a deadline of Monday, September 18, 2023, for the Parties to file a joint draft Procedural Order and Issues List with the Tribunal.

HEARING

19Upon request of the Parties, the Tribunal set a five (5)-day hearing commencing on Monday, November 6, 2023 at 10 a.m. by VH. No further Notice is required for the hearing.

20Parties and Participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections.

https://global.gotomeeting.com/join/638422541

Access Code: 638-422-541

21Parties 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

22Persons 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 the same as the access code indicated above.

23Individuals 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 hearing 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.

ORDER

24The Tribunal Orders that:

1. The date and particulars of the hearing are set out above;
2. Bill Zakhary is granted Participant status; and
3. The City will deliver its Issues List to the Appellant no later than Monday, September 11, 2023, and the parties will jointly file with the Tribunal a draft Procedural Order and Issues List no later than Monday, September 18, 2023.

25The Member is not seized.

“K.R. Andrews”

K.R. ANDREWS 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.