11087258 Canada Inc. v. Oakville (Town), 2024 CanLII 102776

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 15, 2024

CASE NO(S).: OLT-24-000664 OLT-24-000643

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 11087258 Canada Inc.

Subject: Site Plan

Description: To permit the development of three warehouse buildings on the subject property

Reference Number: SP.1601.028/01

Property Address: 560, 570 and 580 Winston Churchill Boulevard

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-24-000664

OLT Lead Case No.: OLT-24-000664

OLT Case Name: 11087258 Canada Inc. v. Oakville (Town)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 772 Winston Churchill Limited Partnership

Subject: Site Plan

Description: To permit the development of two industrial buildings

Reference Number: SP.1601.029/01

Property Address: 700 and 750 Winston Churchill Boulevard

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-24-000643

OLT Lead Case No.: OLT-24-000643

OLT Case Name: 772 Winston LP v. Oakville (Town)

Heard: September 24, 2024, by Video Hearing

APPEARANCES:

Parties Counsel

772 Winston Churchill Limited Partnership Denise Baker

11087258 Canada Inc. Pitman Patterson Lee English

Town of Oakville Paul DeMelo Jennifer Huctwith

MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON SEPTEMBER 24, 2024 AND ORDER OF THE TRIBUNAL

1At the onset of this first Case Management Conference (“CMC”), the Tribunal was informed by the Parties in attendance that both Case Files OLT-24-000643 and OLT-24-000664 wish to be heard together. The Tribunal heard that as there are shared interests in certain servicing, infrastructure and similarity of site plan conditions, it would be beneficial in many aspects to coordinate a hearing of the merits collectively.

2The matter before the Ontario Land Tribunal (the “Tribunal”), was with respect to the appeals regarding the Town of Oakville’s (“Town”) failure of granting final Site Plan approval on both Tribunal Case Files.

OLT-24-000643

3772 Winston Churchill Limited Partnership proposed to construct two new industrial buildings on the 38.53-acre (“ac”) parcel. The proposed buildings are 34,490.92 square metres (“m²") and 28,972.27 m², respectively, and the proposed use will be warehousing and logistics, though there is no firm tenant at this time. Given the residential adjacencies, particular attention has been given to the building placement and site design, placing one building along the western-most property line with all truck loading spaces on the interior of the site. In effect, the building is intended to act as an acoustical barrier for the houses.

4The Appellant filed site application 1601/029/01 on June 29, 2021 – the application was approved June 27, 2022, subject to conditions.

OLT-24-000664

511087258 Canada Inc. owns approximately 38.53 ac of undeveloped land located on the west side of Winston Churchill Boulevard, south of the CN railway. The properties, known as 560, 570, and 580 Winston Churchill Boulevard, are zoned for the construction of three warehouse buildings.

6The Appellant submitted an application for site plan approval (“SPA”) in July 2019 to facilitate the development of three industrial buildings on the subject properties. In response to public input and Town staff comments, the Appellant resubmitted the SPA Application in March 2021 and again in December 2021. As revised, the SPA Application proposes the construction of three warehouse buildings with a total floor area of approximately 59,000 m2.

OVERVIEW

7On June 27, 2022, the Town's Planning and Development Council approved the SPA Applications, subject to conditions set out in the June 14, 2022 Staff report which included evaluating traffic, noise, and vibration mitigation measures before final approval and implementation.

8Appendix A of the June 14, 2022 Staff Report included:

The Owner shall evaluate the ultimate operating condition of the site, based on full build-out, and identify any required traffic, noise and vibration mitigation measures, prior to final approval of the site plan. This evaluation shall be reviewed by the Town's peer review consultants at the expense of the Owner. Installation of any mitigation measures identified and required by the evaluation shall be incorporated into the final plans and studies and implemented prior to occupancy of any of the proposed buildings.

9The Parties are collectively appealing, as the Town has not granted a final SPA on conditions they believe have been satisfied and thus be cleared.

PARTICIPANT REQUEST

10The Tribunal received one request for Participant status.

11The Joshua Creek Resident’s Association sought status due to the proximity of the proposed development to residents of their association.

12Ms. Baker opposed the request providing that the Associations’ information and claims are simply inaccurate and lack foundation. Mr. Patterson echoed the statement of Ms. Baker.

13Mr. DeMelo supported the request.

14The Tribunal took into consideration the assertions of all Parties and granted Participant status with provisions. The Joshua Creek Resident’s Association must clearly identify and present within their statement, only relevant and accurate facts for the consideration of the presiding Tribunal member.

NEXT STEPS

15The Appellants requested that the Town provide responses to specific requests including timelines for delivery of answers;

1. That the Town provide a list of the conditions that have been cleared and if not yet fulfilled, what is outstanding.

16The Town responded that within two weeks of this CMC, a detailed Matrix will be provided with all pertinent updates included.

2. That the Town provide a draft Site Plan Agreement.

17The Town provided that they will strive to present an agreement in draft by the end of October 2024.

3. That the Town provide an update regarding condition #10 of listed requirements.

18The Town provided that condition #10 will be addressed within the pending Matrix.

19The Parties acknowledged that a potential settlement of these appeals may be considered.

20The Tribunal heard that ten (10) days will be required for a hearing of these appeals.

21The Tribunal hereby schedules a Video Hearing of these appeals commencing on Monday, January 13, 2025, through to January 24, 2025, at 10 a.m. Ten days have been set aside.

22Parties are asked to log into the Merit Hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://meet.goto.com/765093501

Access Code: 765-093-501

23Parties and observers 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.

24Persons 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 the same as the Access Code noted above.

25Individuals 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.

ORDER

26The Procedural Order attached as Schedule A shall govern the conduct of this proceeding.

27No further notice will be given.

28The Member is not seized.

29So Orders the Tribunal.

“Carmine Tucci”

CARMINE TUCCI

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.

SCHEDULE A

CASE NO(S).: OLT-24-000664 OLT-24-000643

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 11087258 Canada Inc.

Subject: Site Plan

Description: To permit the development of three warehouse buildings on the subject property

Reference Number: SP. 1601.028/01

Property Address: 560, 570 and 580 Winston Churchill Boulevard

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-24-000664

OLT Lead Case No.: OLT-24-000664

OLT Case Name: 11087258 Canada Inc. v. Oakville (Town)

To be heard together with:

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 772 Winston Churchill Limited Partnership

Subject: Site Plan

Description: To permit the development of two industrial buildings

Reference Number: SP.1601.029/01

Property Address: 700 and 750 Winston Churchill Boulevard

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-24-000643

OLT Lead Case No.: OLT-24-000643

OLT Case Name: 772 Winston LP v. Oakville (Town)

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 13, 2025. The video conference access information is:

GoTo Meeting: https://meet.goto.com/765093501

Access Code: 765-093-501

3. The parties’ initial estimation for the length of the hearing is ten (10) 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. The procedural order deadlines are generally found in Attachment 1.

4. The parties and participants identified at the case management conference are set out in Attachment 2.

5. The issues are set out in the Issues List attached as Attachment 3. 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. However, issues may be removed as matters are resolved.

6. The order of evidence shall be as set out in Attachment 4. 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. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

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 the witnesses will be called or before October 15, 2024 in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae, a copy of their Acknowledgement of Expert’s Duty form and a description of the area of expertise in which the witness is prepared to be qualified.

11. Expert witnesses in the same discipline(s) shall have a meeting on or before October 25, 2024 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 November 4, 2024.

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. 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. On or before November 14, 2024, 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. Each expert witness statement must comply with the minimum content requirements specific in Rule 7 of the Ontario Land Tribunal’s Rules of Practice and Procedure.

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 on or before November 14, 2024. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence on or before November 14, 2024.

14. On or before November 14, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before December 9, 2024, and in accordance with paragraph 22 below.

16. On or before December 9, 2024, the parties shall advise the Tribunal whether any hearings dates scheduled for this matter may be released from the Tribunal's calendar.

17. On or before January 3, 2025 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 3, 2025.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with the Tribunal’s Rules.

20. 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 14 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 3, 2025, 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.

22. All filings shall be submitted electronically. 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 Tribunal’s Rule 7.

23. 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.

Attachment 1

Summary of Key Dates

DATE EVENT

October 15, 2024 Exchange of Witness Lists

October 25, 2024 Experts to meet before this date

November 4, 2024 File Agreed Statement of Facts

November 14, 2024 Exchange Witness Statements, summoned witness outlines, Experts Reports and Participant Statements

December 9, 2024 Exchange Reply Witness Statements Parties to advise Tribunal if any hearing dates can be released

January 3, 2025 Exchange Visual Evidence

January 3, 2025 File Joint Document Book

January 3, 2025 File Hearing Plan

January 13, 2025 Hearing Commences

Attachment 2

Parties and Participants

Status Name Counsel / Representative

Party (Applicant/Appellant) OLT-24-000664 11087258 Canada Inc. Borden Ladner Gervais LLP Pitman Patterson ppatterson@blg.com 416-367-6109 Lee English lenglish@blg.com 416-367-6169

Party (Applicant/Appellant) OLT-24-000643 772 Winston Churchill Limited Partnership WeirFoulds LLP Denise Baker dbaker@weirfoulds.com 416-947-5090

Party Town of Oakville Town of Oakville Paul DeMelo pdemelo@ksllp.ca 437-780-3435 Jennifer Huctwith jennifer.huctwith@oakville.ca 905-845-6601

Participant Joshua Creek Residents Association Elizabeth Chalmers elizabeth.chalmers08@outlook.com 289-242-4704

Attachment 3

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 and shall not be construed as the Tribunal have jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the Tribunal.

11087258 Canada Inc. and 772 Winston Limited Partnership Issues List

1. Does the failure or refusal of the Town of Oakville (“Town”) to clear all conditions imposed upon the June 27, 2022 approvals, under s. 41(4) of the Planning Act, of the plans and drawings to permit (1) the development of three warehouse buildings on the lands known municipally as 560, 570 and 580 Winston Churchill Boulevard, Oakville and (2) the redevelopment of two warehouse buildings on the lands municipally known as 700 and 750 Winston Churchill Boulevard (collectively, the “Conditions”), have regard to matters of provincial interest set out in s. 2 of the Planning Act, including s. 2(f), (h), (k), (l), (p), (q) and (r)?

2. Is the failure or refusal of the Town to clear all Conditions consistent with the Provincial Policy Statement, 2020, including policies 1.1.1(a), (c), (e) and (g), 1.1.2, 1.1.3.1, 1.1.3.2(a), (b), (c), (d) and (g), 1.1.3.4, 1.2.1(a) and (d), 1.3.1(a), (b), (c) and (e), 1.3.2.1, 1.6.1(a) and (b), 1.6.3(a), 1.6.6.1(a), (b), (c), (d), 1.6.6.2, 1.6.6.7(a), (b), (c), (d) and (f), 1.6.7.1, 1.7.1(a), (c), (j) and (k), 1.8.1(b), (c), (d), (e) and (f)?

3. Is the failure or refusal of the Town to clear all Conditions consistent with the Provincial Planning Statement, 2024, including policies 2.3.1.1, 2.3.1.2(a), (b) and (e), 2.8.1.1(a), (b), (c) and (e), 2.8.1.2, 2.8.2.1, 2.8.2.2, 2.8.2.3(a) and (e), 2.8.2.4, 2.9.1(b), (c), (d) and (e), 3.1.1(c), 3.1.2(a), 3.2.1, 3.6.1(a), (b), (c) and (d), 3.6.2 and 3.6.8?

4. Does the failure or refusal of the Town to clear all Conditions conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, including policies 2.2.1.1, 2.2.1.2(a) and (c), 2.2.1.4(a) and (f), 2.2.5.1, 2.2.5.4, 2.2.5.5, 2.2.5.6, 2.2.5.7(c), 3.2.1.1, 3.2.1.2(a), 3.2.2.1, 3.2.2.2(a) and (b), 3.2.4.1, 3.2.5.2, 3.2.6.2(b), 3.2.7.2(a), (b), (c) and (d)?

5. Does the failure or refusal of the Town to clear all Conditions conform with the Town of Oakville Official Plan, including policies 3.7, 6.9.1, 6.9.2, 6.9.3, 6.6.9, 6.9.9, 6.9.12, 6.11.1, 6.12.1, 6.12.2, 6.13.2, 6.13.4, 6.14.1, 6.14.2, 6.14.3, 6.14.4, 6.16.1, 6.16.2, 6.16.4, 8.1.2(f), 8.2.1, 8.2.4, 8.3.3, 8.4.3, 8.16.2, 10.4.1(d) and (f), 10.6.1(b), 10.10.1, 10.10.9, 13.1.1., 14.1.2, 14.1.3, 14.1.4, 14.4.1, 14.4.3?

6. Have all of the technical comments pertaining to the Conditions been addressed such that they can be cleared by the Tribunal?

7. Should the Conditions that have not yet been cleared by the Town be removed as unreasonable?

8. If site plan agreement(s) are required, what are the appropriate terms of the agreement(s)?

Town of Oakville Issues List

Issue applicable to both site plans applications:

9. Do the proposed site plans provide for appropriate and sufficient noise mitigation measures in order to address the combined impacts from full build-out?

10. Are revisions to the plans or conditions of approval required to address the outstanding comments in the:

    1. Draft Site Plan Comments Report dated August 18, 2024 (for 700 and 750 Winston Churchill Blvd. (formerly 772 Winston Churchill Blvd).
    2. Site Plan Comments Report dated August 16, 2024 (for 560, 570 and 580 Winston Churchill Blvd.)

Issue specific to 700 and 750 Winston Churchill Blvd.

11. Has the applicant sufficiently demonstrated that changes to the proposed site plan or off-site works would not be required to accommodate flood mitigation measures related to the off-site works? If changes to the site plan or off-site works, in particular the location of the access to Winston Churchill Boulevard, are required, would such changes be appropriate?

Attachment 4

Order of Evidence

Note: OLT-24-000664 to be heard together with OLT-24-000643

1. 772 Winston Limited Partnership
2. 11087258 Canada Inc.
3. Town of Oakville
4. 772 Winston Limited Partnership (in Reply)
5. 11087258 Canada Inc. (in Reply)