Dementia Care (London) Inc. v. London (City), 2023 CanLII 85349

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 13, 2023

CASE NO(S).: OLT-22-004282

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

Appellant: Dementia Care (London) Inc.

Subject: By-law No. Z.-1-223042

Description: To permit a development of three mixed-use buildings with 490 residential units

Reference Number: Z.-1-223042, Z-9199

Property Address: 689 Oxford Street West

Municipality/UT: London/Middlesex

OLT Case No.: OLT-22-004282

OLT Lead Case No.: OLT-22-004282

OLT Case Name: Dementia Care (London) Inc. v. London (City)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: City of London

Request for: Request for Directions

Heard: In writing

APPEARANCES:

Parties

Counsel

The Corporation of the City of London

A. Hovius C. McCreery

2399731 Ontario Ltd. c/o Westdell Developments Inc.

A. Baroudi

Dementia Care (London) Inc.

K. Mullin E. Bashura

DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This decision and Order arise out of a Motion brought by the Corporation of the City of London (“City”) to dismiss, without a hearing, two appeals of By-law No. Z.-1-223042 (“By-law”).

22399731 Ontario Ltd. c/o Westdell Developments Inc. (“Westdell”/“Applicant”) owns the property at 689 Oxford Street West (“subject lands”/“site”), which is approximately 1.2 hectares in size and located on the northwest corner of Oxford Street West and Capulet Walk, north of Wonderland Road North. The subject lands are located within a Protected Major Transit Station Area (“PMTSA”), which came into force on May 28, 2021, following approval by the Ministry of Municipal Affairs and Housing (“MMAH”).

3Presently, the eastern portion of the site is occupied by a commercial plaza and the western portion is used for outdoor storage and vehicular parking. To the south and west is an active Canadian National (“CN”) Rail line. To the east, across Capulet Walk, are automobile services and commercial uses. There are residential uses to the north including the Highview Residences, located on the adjacent lands to the north at 35-41 Capulet Walk. The Highview Residences, owned and operated by Dementia Care (London) Inc. (“Dementia Care”), provides accommodation and assistance to 25 residents living with memory loss.

4In February 2020, the City received Westdell’s initial development application, which contemplated the construction of a 22-storey building containing 166 dwelling units on the westerly portion of the site. A revised application for the entire site was submitted in June 2021 and, following public and agency comments, further revisions were made in February and April 2022, with Notice of the final amendments issued on May 27, 2022. The application for the entire site (“Application”) is the subject of the present appeal.

5The Application sought a Zoning By-law Amendment (“ZBA”), rezoning the subject lands from “Highway Service Commercial/Restricted Service Commercial” to “Residential Special Provision Bonus/Highway Service Commercial/Restricted Service Commercial” to permit the development of three buildings containing a total of 490 residential units, to be constructed in two phases, as follows: Phase One - Building A: 17 storeys, 146 units; Phase Two - Building B: 18 storeys, 160 units and Building C: 21 storeys, 184 units. A total of 489 parking spaces were proposed in a three-level parking structure located adjacent to the CN Rail line and two levels of underground parking under Buildings B and C.

6Through the application review process, Westdell and City staff negotiated a Bonus Zone agreement in accordance with s. 37 of the Planning Act [1] (“Act”), as it had application prior to September 18, 2022, and s. 19.4.4 of the 1989 Official Plan (“1989 OP”), which provides that in exchange for public benefits which address municipal objectives (including, but not limited to: urban design, development of affordable housing, provision of underground parking, enhanced landscaping and publicly accessible open spaces), an increase in height and density above the limit otherwise provided by the Zoning By-law may be considered.

7In this instance the By-law, which was recommended to and ultimately approved by Council on July 5, 2022, includes site-specific provisions reflecting a bonusing agreement allowing for increased height and density in exchange for the following:

a) site and building design;

b) underground parking;

c) stacked parking adjacent to the CN Rail line; and

d) the provision of affordable housing

8The site and building design provisions are intended to substantively implement the site plan, renderings and elevations, including but not limited to: enhanced building and design features, setback podiums, step backs and architectural features intended to break up massing. With respect to parking, a provision is included which specifies that the parking structure adjacent to the western property line will function as an engineered crash walI for safety and impact mitigation associated with the CN rail line.

9Specific provisions are also included which require the Applicant to provide a total of 30 affordable housing units and which detail the length of the affordability period, rental rates and coordination of tenant placement. The number of affordable units was arrived at based upon 10% of the “lift” (the number of additional units, secured through bonusing, over and above what staff determined to be permitted). In this instance, 186 units were determined to be permitted so, of the 490 total units, 304 represent the lift and therefore, 10% equates to 30 units. The By-law further requires the affordable housing units to be distributed equally among each of the three buildings (i.e.: 1/3 of the total, or ten (10) units, in each building).

The Appeals

10Westdell’s appeal is narrowly focused upon the requirement for the 30 affordable units to be distributed equally between each of the three proposed buildings. It is argued that the foregoing is unfair and not in keeping with the City’s past practice, which has been to calculate the number of affordable housing units to be provided in a building based upon 10% of the lift for that building.

11Westdell submits that s. 37 benefits must be specific, fair, transparent and predictable, and the City’s proposed distribution lacks a “nexus” or rational connection between the extra height or density provided for each building and the s. 37 benefits. As affordable housing units come at a cost to the Applicant, and the three proposed buildings differ in density and are to be constructed at different times, Westdell takes the position that the affordable units should be proportionately distributed based upon 10% of the lift received through bonusing in each of the three buildings at the time each is constructed.

12Dementia Care’s appeal focuses upon impacts of the proposed development on the surrounding neighbourhood, including Highview Residences, raising concerns in relation to traffic, parking and shadows. It notes that access to sunlight is important to the mental and physical health of its residents and provides crucial behavioural cues (ie: alerting to time of day and associated activities) for those living with dementia. It further notes that increased traffic and congestion will result from vehicles attempting to access/exit the new residential buildings because of the current configuration of the nearby intersection. Finally, it is noted that providing only 489 parking spaces for 490 units will lead to vehicles parking along Capulet Walk, contributing to further traffic congestion and negatively affecting the ability of emergency services to access Highview Residences.

13Dementia Care asserts that the impugned By-law: is inconsistent with Provincial Policy Statement 2020 (“PPS”) policies which speak to avoidance/mitigation of risks to public health and safety and the need to coordinate and integrate transportation and land use planning; and lacks conformity with policies within the London Plan (the City’s current official plan), including those which speak to supporting aging in place and designing neighbourhoods to meet the needs of people of all ages and disabilities, as well as requiring building heights to step down to adjacent Neighbourhood Place Types.

Timeline

14For context, the following is a chronology of relevant events:

May 2016 City Council adopts new official plan (“London Plan”) to replace the

1989 Official Plan (“1989 OP”)

Dec 2016 London Plan receives Ministerial approval, but is subject to a number of outstanding appeals and is therefore not yet in force. 1989 OP remains in force

Feb 2020 City receives Westdell’s initial development application

Dec 8, 2020 City Council adopts PMTSA policies through Official Plan Amendment 30 (“OPA 30”) to the London Plan. Under OPA 30, the subject lands were identified as being part of a Transit Village PMTSA.

May 28, 2021 OPA 30 receives Ministerial approval

June 2021 Westdell submits revised application for development of the entire site

Feb-April 2022 Westdell makes further revisions resulting in the final Application

May 25, 2022 Tribunal issues decision in Lansink v. London (City), OLT-22-002286 (“Lansink”), approving the London Plan and repealing the 1989 OP. Despite the foregoing, the decision specifies that:

…notwithstanding the repeal of the 1989 Official Plan, any Planning Act application made prior to the date of this Order, can continue to be processed in accordance with policies that were in force prior to this Decision, including but not limited to the bonusing policies.

May 27, 2022 Notice of final amendments to Westdell’s application issued

June 20, 2022 City staff report on the Application considered by the Planning and Environment Committee, which passes a resolution recommending approval thereof

July 5, 2022 City Council accepts the recommendation and adopts the By-law

Aug 3, 2022 Appeal of the By-law filed by Dementia Care

Aug 10, 2022 Notice of Decision is re-issued (as it had not been previously circulated to all parties pursuant to subsection 34(18)). This resulted in the appeal period expiring on August 30, 2022.

Aug 24, 2022 Appeal of the By-law filed by Westdell

Sept 18, 2022 Expiry of existing s. 37 regime – municipalities no longer permitted

to enter into bonus zoning agreements to secure community benefits such as specified facilities, services or other matters

Nov 28, 2022 Enactment of Bill 23 - More Homes Built Faster Act, 2022 (“Bill 23”)

As part of the foregoing, s. 34(19.5) of the Act is amended to add reference to a new subsection (s. 34 (19.9)), which reads:

Subsection 34(19.5) does not apply to a zoning by-law that is passed more than one year after the later of the following comes into effect:

1. Official plan policies described in subsection 16(15) or subclauses 16(16)(b)(1) and (ii) for the protected major transit station area.

2. An amendment to the policies referred to in paragraph 1 of this subsection.

MOTION TO DISMISS

15The City attacks both appeals as being statute-barred, pursuant to s. 34(19.5) of the Act, or having no reasonable prospect of success, pursuant to s. 19(1)(c) of the Ontario Land Tribunal Act [2] (“OLTA”), and seeks the following relief:

a) an Order confirming the parts of the By-law that are appealable;

b) an Order declaring the appeals of Westdell and Dementia Care as statute-barred pursuant to s. 34(19.5) of the Act;

c) in the alternative, an Order dismissing the appeals of Westdell and Dementia Care in full, pursuant to s. 19(1)(c) of the OLTA;

d) its costs of the motion; and

e) such further and other relief as counsel may request and the Tribunal deems just

16The Motion was heard in writing, with the following materials before the Tribunal for consideration:

a) City’s Motion Record (including sworn Affidavit of Travis MacBeth);

b) City’s Factum and Book of Authorities;

c) Westdell’s Responding Motion Record (including sworn Affidavit of Maneesh Poddar);

d) Westdell’s Legal Submissions Brief and Book of Authorities;

e) Dementia Care’s Responding Motion Record (including sworn Affidavit of Allan Ramsay);

f) Dementia Care’s Book of Authorities; and

g) City’s Reply Record

17All three affiants are Registered Professional Planners previously qualified by this Tribunal and/or its predecessors to provide opinion evidence in matters of land use planning, and each provided a copy of their curriculum vitae and an executed acknowledgement of experts’ duty. Based on the foregoing, the Tribunal similarly qualifies Messrs. MacBeth, Ramsay and Ms. Poddar for the purposes of the present Motion.

The City’s Position

18The City submits that the Tribunal has no jurisdiction over an appeal that is statute-barred and notes that, at the time of these appeals, s. 34(19.5) of the Act prohibited appeals with respect to the parts of a by-law that establish use, density and height for lands located within a PMTSA. It is the City’s position that the Dementia Care and Westdell appeals relate to the use, height or density of lands in a PMTSA and are therefore, barred by statute.

34(19.5) Despite subsections (19) and (19.3.1), and subject to subsections (19.6) to

(19.9), there is no appeal in respect of,

(a) the parts of a by-law that establish permitted uses or the minimum or

maximum densities with respect to buildings and structures on lands in a

protected major transit station area that is identified in accordance with

subsection 16 (15) or (16); or

(b) the parts of a by-law that establish minimum or maximum heights with

respect to buildings and structures on lands in a protected major transit

station area that is identified in accordance with subsection 16 (15) or (16).

19The evidence of Mr. MacBeth is that the Bonus Zone application was for the entirety of the site to facilitate the proposed redevelopment and the entire site was subject to one Bonus Zone Agreement. In the opinion of Mr. MacBeth, it is appropriate to calculate affordable housing provisions of the Bonus Zone based on the entire property, rather than building-by-building. He further opines that the site design concept, which is to be substantively implemented through the Bonus Zone, functions in a coordinated manner and thus, all special provisions are interconnected in their ability to deliver the proposed height, density and form of development.

20The City submits that a non-bonus zone can establish use and impose restrictions on height, density, etc., all independently of each other and therefore, in respect of a non-bonus by-law in a PMTSA, it is fairly straightforward to isolate provisions that “establish” height and density, such that any one of the regulations can be adjusted in isolation from the others. In contrast, in a case such as this, where height and density within the bonus zone are established by Westdell and the City agreeing to an exact building design and site layout, the City argues it is not possible to isolate the provision setting the height or density limit because those limits were only adjusted to reflect the rest of the bonusing package.

21In the view of the City, as Westdell’s appeal seeks to open the Bonus Zone, any change to facilities, services or matters (like the provision of affordable housing units) would also require a consideration of height and density to ensure the benefits to Westdell and the City remain commensurate. However, it is the City’s view that no such changes are possible, as all components of a bonusing by-law which regulate height and density are immune from appeal by virtue of s. 34(19.5).

22With respect to the Dementia Care appeal, Mr. MacBeth opines that shadowing is directly tied to the height of the building, and traffic and parking are directly related to density and site layout. The City notes that height is regulated in s. 2 of the impugned by-law and in special provisions that “lock in” the building renderings and similarly, traffic and parking relate to non-appealable portions of the by-law and are “locked in” with the site design. The City reiterates that the Tribunal has no jurisdiction over the parts of a by-law that regulate use, height and density in a PMTSA and, accordingly, could make no decision which has the effect of changing any of the foregoing. It is additionally noted, with respect to parking, that only Westdell and the City are parties to the negotiated items exchanged for increased height and density, one of which is the provision of parking.

23Finally, the City acknowledges that the recently enacted Bill 23 introduced a requirement for municipalities to update their zoning by-laws within one year of implementing PMTSA policies and creates an exception to s. 34(19.5), as follows:

34 (19.9) Subsection (19.5) does not apply to a zoning by-law that is passed more than one year after the later of the following comes into effect:

1. Official plan policies described in subsection 16(15) or subclauses 16(16)(b)(i) and (ii) for the protected major transit station area.

2. An amendment to the policies referred to in paragraph 1 of this subsection.

24The City notes that its PMTSA policies were approved by the Province in May 2021, more than a year prior to Bill 23, and that the appeals were brought prior to Bill 23. It further notes the lack of any transitory language to indicate that s. 34(19.9) should apply to appeals brought prior to the enactment of the amendment. With reference to the presumption against retrospective operation of statutes, as discussed in Perrie v. Martin, 1986 CanLII 73 (SCC), [1986] 1 SCR 41, it is submitted that, in the absence of any language to express retroactivity, s. 34(19.9) must be presumed to have no such operation and therefore, no ability to create appeal rights which previously did not exist.

25Finally, the City drew the Tribunal’s attention to Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, which discusses statutory interpretation and the need to consider the context of the larger statutory scheme in which the provision exists, as well as a MMAH “Backgrounder to Bill 23” (Exhibit O to Mr. MacBeth’s Affidavit), which discusses initiatives intended to reduce approval timelines and quickly build communities centred around investments in province-wide transit expansion. In light of the foregoing, the City submits it would be contrary to the foregoing to interpret and apply the legislation in such a way as to punish the City for proactively enacting its PMTSA policies and enacting a by-law which implements those policies.

26In light of all the foregoing, it is submitted that, as the appeals of Dementia Care and Westdell only contest parts of the By-law that are unappealable, the Tribunal’s jurisdiction is properly exercised by declaring that no appeal exists. In the alternative, it is submitted that both appeals should be dismissed in accordance with s. 19(1)(c) of the OLTA, as having no reasonable prospect of success, given that they seek to challenge provisions of a by-law that cannot be appealed.

Westdell’s Position

27In response to the City’s Motion, Westdell submits that its appeal is valid and does not fall within the prohibition set out in s. 34(19.5), as it has not appealed parts of the By-law that establish permitted uses or minimum/maximum heights/densities on the site. Westdell challenges only the distribution of affordable units as set out in s. 2(a)(i) of the By-law, which states: “[A] total of thirty (30) affordable housing units, with (10) affordable housing units provided in each building constructed”.

28It is submitted that s. 2(a)(i) establishes the number of affordable units and the distribution thereof, whereas the permitted uses, maximum densities and heights are established in other parts of the By-law which Westdell has not appealed and agrees are beyond appeal by virtue of s. 34(19.5). It is noted that the isolated issue for the Tribunal to decide, should the appeal be permitted to proceed, is whether the distribution of affordable units in the aforementioned section is commensurate with the increased height and density in the By-law, considering the bonusing package as a whole.

29Westdell takes the position that a total of 30 affordable units is fair and appropriate, but only if those units are distributed proportionately between the three differently-sized buildings based upon 10% of lift for each building. The Affidavit of Ms. Poddar helpfully sets out Westdell’s proposed affordable unit distribution in the following chart:

Building A

Building B

Building C

Respective Site Area (ha)

0.568

0.2797

0.3554

Units permitted

85.2

41.955

53.31

Units proposed

146

160

184

Bonus units

60.8

118.045

130.69

Affordable Units (10% of the bonus units)

6

11

13

30Westdell refutes the City’s assertion that changes to the bonusing provisions will, or must, automatically result in changes to the density. It is submitted that, while s. 34(19.5) restricts the Tribunal’s jurisdiction to alter height and density, it does not similarly restrict the Tribunal from considering whether the height and density established is commensurate with the package of bonusing items, nor does it prevent the Tribunal from altering the distribution of units to ensure bonus items are commensurate, as such a change which would leave use, height and density provisions intact.

31Westdell supports the City’s Motion insofar as the Dementia Care appeal is concerned, submitting that it falls within the prohibition in s. 34(19.5) and cannot be saved under s. 34(19.9).

32In light of the foregoing, Westdell requests the Tribunal grant the City’s Motion in part, ordering:

a) that the City’s Motion to declare the Westdell appeal statute barred pursuant to s. 34(19.5) of the Act be dismissed;

b) that the City’s Motion to dismiss the Westdell appeal pursuant to s. 19(1)(c) of the OLTA be dismissed;

c) that s. 2(a)(i) of the ZBA is appealable and the only part of the ZBA that is under appeal by Westdell;

d) the only issue to be determined in the Westdell Appeal is whether the distribution of affordable units in that section is commensurate with the increased height and density in the ZBA, considering the bonusing package as a whole;

e) declaring that the Tribunal’s jurisdiction in the Westdell appeal is restricted to altering the distribution of affordable units in s. 2(a)(i) of the ZBA, if appropriate;

f) declaring that the Tribunal does not have the jurisdiction in the Westdell appeal to alter the permitted uses, minimum or maximum heights or minimum/maximum densities in the ZBA;

g) that the appeal by Dementia Care appeal is statute barred pursuant to s. 34(19.5) of the Act or, in the alternative, dismissed in its entirety under s. 19(1)(c) of the OLTA; and

h) that the ZBA is in full force and effect, save and except for section 2(a)(i), which remains under appeal by Westdell.

Dementia Care’s Position

33Dementia Care requests an Order dismissing the City’s motion in its entirety, taking the position that its appeal is not statute barred by s. 34(19.5) of the Act and, as such, should not be dismissed under s. 19(1)(c) of the OLTA, as it is not clear the appeal has no reasonable chance of success.

34Dementia Care argues:

For the City to establish that Dementia Care’s appeal should be dismissed under subsection 34(19.5) of the Act, the City must demonstrate that Dementia Care’s appeal attacks either one of the following parts of the ZBA: permitted uses or densities or heights.

Furthermore, the City must demonstrate that it has met the following conditions precedent:

i. at the time of the submission of Westdell’s application, the City’s official plan included PMTSA policies; and

ii. the City passed a zoning by-law implementing PMTSA official plan policies within one year after it included PMTSA policies in its official plan.

35Dementia Care submits that its appeal relates to land-use compatibility between the proposed development and the surrounding neighbourhood as it impacts use and enjoyment of outdoor areas, the adequacy of the existing transportation network to accommodate an increase in traffic and the adequacy of parking as well as consistency and conformity with the PPS and the London Plan – all issues which, it submits, are distinct from height and density.

36In contrast to the evidence offered by Mr. MacBeth, Mr. Ramsay opines that it is too simplistic to say that shadows are only related to building height and traffic only relates to density. He notes that shadow impacts may arise from many other factors such as siting/positioning of the building upon the lot as well as the size and configuration of building footprints, etc. Similarly, he notes that factors such as minimum/maximum resident and visitor parking rate requirements may impact traffic and he notes that holding zone provisions are commonly applied to ensure development is phased in accordance with the implementation of road and intersection improvements.

37It is submitted that an appeal cannot be dismissed pursuant to s. 34(19.5) solely because the disputed development is in a PMTSA but rather, the appeal must attack specifically permitted uses, densities or heights. Dementia Care takes issue with the City’s position that the By-law is a “package” which is fully insulated from appeal because the By-law is a bonus zoning by-law, which “locks in” a design.

38With reference to Clergy Properties Ltd. v. Mississauga City, 1996 CarswellOnt 5704 (OMB), which states that an application must be tested against the policy documents in place at the date of the application (the “Clergy Principle”), Dementia Care points out that, at the time Westdell submitted its original application, the applicable Official Plan was the 1989 OP, which did not contain any PMTSA policies but did contain bonusing policies, under which the application was processed and on which the City relies. It is argued that, in an attempt to insulate the By-law from appeal, the City is relying on the PMTSA policies and s. 34(19.5) of the Act while obtaining the benefit of the 1989 OP bonus zoning regime, and it should not be permitted to do both.

39In Dementia Care’s submission, the circumstances of this case and the Clergy Principle dictate that the 1989 OP, and not the London Plan, applies. In the alternative, if the London Plan is determined to be applicable, it is submitted that the City should not be able to rely upon the London Plan, as amended by OPA 30 because, at the time of the application, the London Plan did not include PMTSA policies.

40With respect to the recent amendment in s. 34(19.9), Dementia Care refutes the City’s position that in situations where PMTSA official plan policies were adopted before November 28, 2002, the one-year timeline specified in s. 34(19.9) should be calculated from November 28, 2022, and not from the date the PMTSA official plan policies came into force. Dementia Care submits that this would have been specified had this been the Legislature’s intent and, with reference to Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1976] SCJ No. 116 (“Gustavson”), further submits that the presumption against retrospective operation can be rebutted based on the language of the amendment. Accordingly, because no transition provisions are included, Dementia Care submits that, in this instance, an ordinary reading of s. 39(19.9) makes it clear that the limitation on appeals in s. 34(19.5) does not apply to a zoning by-law passed more than one year after PMTSA policies come into effect.

41In light of all the foregoing, Dementia Care submits the City has failed to establish the appeal is barred by s. 34(19.5). It is further submitted that the appeal has a reasonable prospect of success and, as the City’s alternative argument is premised upon the appeal being barred by statute, the appeal should not be dismissed under s. 19(1)(c) of the OLTA.

City’s Reply

42While the City maintains its position that the appeals are statute-barred, in reply to Dementia Care’s argument that, for the appeal to be barred by s. 34(19.5), it must be demonstrated that:

• the appeal attacks permitted uses, density or heights;

• at the time of the submission of Westdell’s application, the City’s official plan included PMTSA policies; and

• the City passed a zoning by-law implementing PMTSA official plan policies within one year after it included PMTSA policies in its official plan,

it is submitted that an alternative solution would be for the Tribunal to declare the use, density and height in force, as per the enacted by-law, allowing Dementia Care to proceed with its non-use, non-density, and non-height appeal and allowing Westdell to pursue an appeal of the affordable unit distribution in s. 2(a)(i).

43The City argues that Dementia Care’s reliance on the Clergy Principle is flawed for a number of reasons, including that the determinative framework for consideration did not change during the processing of the application and, with reference to the decision of the Court in Masters v. Claremont Development Corporation, 2021 ONSC 331 (“Masters v. Claremont”) as well as a number of recent decisions by this Tribunal and its predecessor, it is submitted the Clergy Principle exists to provide certainty to applicants, not appellants.

44Finally, it is submitted that Dementia Care has failed to provide any authority to rebut the strong presumption against the retrospective operation of s. 34(19.9), and that Gustavson (supra), which was relied upon by Dementia Care, confirms a decision maker should not “reach into the past and declare that the law or the rights of the parties as of an earlier date shall be taken to be something other than they were as of that earlier date”.

ANALYSIS AND FINDINGS

Westdell Appeal

45The Tribunal finds that Westdell’s challenge with respect to the discrete issue of the distribution of affordable units in s. 2(a)(i) of the By-law does not constitute an appeal of the parts of thereof which establish use, height or density. It is accepted that while s. 34(19.5) prohibits appeals of (and therefore restricts the Tribunal from making changes to) the parts of a by-law that establish permitted uses; minimum/maximum densities; and minimum/maximum heights, it does not prohibit a consideration of the bonusing items and the increased height and density in the course of making a determination as to whether these are, in fact, commensurate.

46Further, should the Tribunal find a redistribution of affordable units is required to ensure that the value of the increase in height and density received in exchange for bonusable items is commensurate, it does not follow that altering the distribution of the affordable units will result in a concomitant change to use, height or density, nor would it result in a change to the number of affordable units to be provided. While it is acknowledged that there is only one bonusing agreement, as opposed to separate agreements for each building, and the lift was calculated based on the entirety of the development on one site, ultimately, the resulting density and height, and the bonuses received therefor, will not change irrespective of whether the distribution of the affordable units is equal or proportional.

47Accordingly, Westdell’s appeal is permitted to proceed, with the sole issue for determination being whether the distribution of affordable units in s. 2(a)(i) of the By-law is commensurate with the increased height and density, considering the bonusing package as a whole.

Dementia Care Appeal

48The Tribunal finds that the applicable official plan is the London Plan, as amended by OPA 30. Notwithstanding the characterization of Westdell’s June 2021 application as “revised”, the Tribunal is of the view that it is, for all intents and purposes, a new application encompassing the entirety of the site, whereas the original application contemplated development only on the westerly portion thereof. At the time of the June 2021 Application, OPA 30 which included PMTSA policies had received Ministerial approval on May 28, 2021. It is noted that OPA 30 implements PMTSA policies in compliance with direction from the PPS and it is mandatory for the Tribunal to ensure consistency with the PPS, and Council, at the time of the consideration of the Application, was bound by OPA 30.

49With respect to Dementia Care’s assertion that the City cannot “cherry-pick” bonusing policies from the 1989 OP and PMTSA policies from the London Plan, a careful review of the language of the Order in Lansink (supra) leads the Tribunal to the conclusion that this is exactly what the City is empowered to do.

…notwithstanding the repeal of the 1989 Official Plan, any Planning Act application made prior to the date of this Order, can continue to be processed in accordance with policies that were in force prior to this Decision, including but not limited to the bonusing policies. (emphasis added)

The foregoing suggests that, for applications made prior to May 25, 2022, the City may choose to apply certain policies from the 1989 OP, rather than evaluating such applications under the entirety of same. In this instance, the City processed the Application in accordance with the bonusing policy in s. 19.4.4 of the 1989 OP while evaluating the application generally for conformity against the London Plan, which includes PMTSA policies.

50With respect to the Clergy Principle, the Tribunal agrees that it is only considered to be utilized as a means to provide certainty and assistance to an applicant and not a third-party appellant’s appeal and, as such, is not applicable in this instance. However, even if it were arguable by an appellant, the Court in Masters v. Claremont (supra), makes it clear that its application is “flexible and amenable to different treatment…depending on the circumstances being addressed”. On the circumstances of this case and the finding that the City’s treatment of the June 2021 Application was appropriate, insofar as it was evaluated for conformity generally against the London Plan, as amended by OPA 30, in combination with the “grandfathering” language of the Order in Lansink (supra), the Tribunal finds that this would not be an appropriate circumstance in which to apply the Clergy Principle.

51The Tribunal now turns to the question of s. 34(19.5) and whether it applies to bar this appeal. Ultimately, the Dementia Care appeal is about impacts and, while it is certainly acknowledged that shadowing, traffic impacts and adequacy of parking necessarily have some relation to concepts of use, height and density, the Tribunal accepts Mr. Ramsay’s opinion that such issues are not exclusively related thereto but are nuanced insofar as, for instance, shadowing can result from building placement on a site, and traffic impacts may result from existing road and intersection configurations.

52In making determinations on the appeals before it, the Tribunal is tasked with determining whether a proposed development is representative of good planning. The manner in which a building functions and relates to adjacent lands in matters of shadowing, privacy, compatibility and good planning may touch upon built-form and planning considerations including setbacks, step backs, urban design and podium design, all of which are logically interrelated to height but not related only to height. Similarly, traffic and parking issues do not relate to density alone, but also many other factors related to good planning.

53Accordingly, the Tribunal is not persuaded that the appeal, as filed by Dementia Care, falls completely within the four corners of s. 34(19.5) and, similarly, is not persuaded that it should be dismissed under s. 19(1)(c) of the OLTA for challenging unappealable sections of the By-law. Additionally, in light of the Tribunal’s finding, a discussion of s. 34(19.9) and whether it is retrospective in its operation is not germane to this determination.

54With respect to the City’s assertion that the provisions of the impugned By-law establishing height and density are inextricably packaged together with bonus items, including building and site design (such that virtually any change thereto will automatically affect provisions which establish height/density), the Tribunal is not persuaded that, for instance, the approved siting of the buildings is penultimate. Therefore, an exploration of the effect of the “packaging”, as characterized by the City, is best tested at a full hearing where the panel may entertain evidence that argues this point.

55Despite the finding that Dementia Care’s appeal is not statute-barred, the Tribunal is nevertheless cognizant of the limitations set out in s. 34(19.5) with respect to appeals of by-law provisions that establish use, height and density in a PMTSA and acknowledges the City’s suggested manner of proceeding as set out in its Reply materials. However, while unappealed portions of comprehensive by-laws are routinely proclaimed into force, the Tribunal is not similarly empowered to do so with the unappealed portions of a site-specific by-law. Instead, the Tribunal finds it appropriate to place limitations upon what can be argued at the hearing and, as such, Dementia Care will not be permitted to raise issues or present evidence which challenge use, density or height (save and except to the extent that evidence may be led as to matters of density and height which indirectly relate to the issues raised in the appeal, i.e. traffic, parking, shadows, land use compatibility and risks to public health and safety).

OTHER MATTERS

56The Tribunal notes that the relief requested by both the City and Dementia Care included a request for their respective costs of the Motion. The Tribunal, guided by Rule 23.9 of the Rules of Practice and Procedure which sets out a non-exhaustive list of improper conduct which might attract costs, will make no such order. In this instance, there exist no indicia of any improper conduct by any of the Parties which might cause the Tribunal to consider exercising its discretion to award costs.

ORDER

57UPON APPEAL to this Tribunal by Dementia Care (London) Inc. (“Dementia Care”) of a decision of the City of London to approve Zoning By-law Amendment No. Z.-1-223042; and

58AND UPON MOTION to this Tribunal by the City of London for an Order dismissing the appeal as being statute-barred under subsection 34(19.5) of the Planning Act or as having no reasonable prospect of success pursuant to subsection 19(1)(c) of the Ontario Land Tribunal Act, and after the hearing of the Motion,

59THE TRIBUNAL ORDERS that the motion to dismiss the appeal without a hearing is granted, in part. The appeal may proceed to a hearing, however Dementia Care will not be permitted to raise issues or present evidence challenging the use, density and height established by Zoning By-law Amendment No. Z.-1-223042 (save and except to the extent that evidence may be led as to matters of density and height which indirectly relate to the issues raised in the appeal, i.e. traffic, parking, shadows, land use compatibility and risks to public health and safety).

AND

60UPON APPEAL to this Tribunal by 2399731 Ontario Ltd. c/o Westdell Developments Inc. (“Westdell”) of a decision of the City of London to approve Zoning By-law Amendment No. Z.-1-223042; and

61AND UPON MOTION to this Tribunal by the City of London for an Order dismissing the appeal as being statute-barred under subsection 34(19.5) of the Planning Act or as having no reasonable prospect of success pursuant to subsection 19(1)(c) of the Ontario Land Tribunal Act, and after the hearing of the Motion;

62THE TRIBUNAL ORDERS that the motion to dismiss the appeal without a hearing is granted, in part. The appeal may proceed to a hearing, which will be restricted to a determination of the following issue: whether the distribution of affordable units in s. 2(a)(i) of Zoning By-law Amendment No. Z.-1-223042 is commensurate with the increased height and density in the By-law, considering the bonusing package as a whole.

“S. Braun”

S. BRAUN

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.

1R.S.O. 1990, c. P. 13, as amended.

2S.O. 2021, c. 4. Sched. 6.