Roca Investment Holdings Inc. v. Ottawa (City), 2024 CanLII 106132

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 25, 2024

CASE NO(S).: OLT-24-000796

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Roca Investment Holdings Inc.

Subject: Minor Variance

Description: To permit the redevelopment of two lots for the construction of two semi-detached dwellings.

Reference Number: A-00135

Property Address: 1112 Lisgar Road

Municipality/UT: City of Ottawa

OLT Case No.: OLT-24-000796

OLT Lead Case No.: OLT-24-000796

OLT Case Name: Roca Investment Holdings Inc. v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Roca Investment Holdings Inc.

Subject: Minor Variance

Description: To permit the redevelopment of two lots for the construction of two semi-detached dwellings.

Reference Number: A-00136

Property Address: 1 Maple Lane

Municipality/UT: City of Ottawa

OLT Case No.: OLT-24-000797

OLT Lead Case No.: OLT-24-000796

OLT Case Name: Roca Investment Holdings Inc. v. Ottawa (City)

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

Request by: Roca Investment Holdings Inc.

Request for: Request for Directions

Heard: October 23, 2024 in writing

APPEARANCES:

Parties/Proposed Party*

Roca Investment Holdings Inc. (Moving Party / Appellant / Applicant)

City of Ottawa (“City”)

Rockcliffe Park Residents Association* (Respondent)

Counsel/Agent*

Michael Polowin Crystal McConkey

Timothy C. Marc

Susan Peterson*

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is a Motion brought by Roca Investment Holdings Inc., the Appellant / Applicant of the underlying appeal, seeking an order to deny Party status to the Rockcliffe Park Residents Association (“RPRA”) in advance of the matter’s merit hearing, which is scheduled to commence at 10 a.m. on Monday, October 28, 2024.

2The City did not participate in the present motion, and the Tribunal understands that it will similarly take no position at the upcoming merit hearing.

background

3The matter involves properties municipally known as 1112 Lisgar Road and 1 Maple Lane (“Subject Property”). The underlying appeal concerns the Appellant’s application under s. 45(2) (a)(i) of the Planning Act for permission to enlarge or extend an existing legally non-conforming duplex dwelling on the Subject Property. The Appellant’s plan is to demolish the existing duplex, which has apparently fallen into disrepair, and construct a new expanded duplex with a larger footprint.

4These plans, and the Appellant’s reliance on seeking permission under s. 45(2) (a)(i) of the Planning Act, are dependant upon the legal non-conforming status of the existing duplex, because current zoning does not otherwise allow semi-detached dwellings at the location. There is no dispute that the existing building was constructed before applicable zoning regulations existed, leading to circumstances whereby the existing building and its footprint may qualify for legal non-conforming status.

5Notably, the Subject Property is within the Rockcliffe Park Heritage Conservation District, which is a designated heritage district under Part V of the Ontario Heritage Act. Consequently, the Appellant cannot demolish or reconstruct the existing duplex without permission pursuant to the Ontario Heritage Act. On that front, the Appellant has obtained heritage permits from the City for the demolition and reconstruction of the building. As emphasized by the Appellant, such permission is well past any appeal deadline and the permits remain valid. As a result, there is nothing currently before the Tribunal involving provisions of the Ontario Heritage Act.

6After obtaining the above-described heritage permits, the Appellant applied for permission under s. 45(2) (a)(i) of the Planning Act to expand the existing footprint. This application was heard by Ottawa’s Committee of Adjustment on July 3, 2024. At that hearing, the City’s Planning, Development and Building Services Department provided comments, insofar as it opined that the plans satisfy the requisite statutory tests, including that the existing duplex is a legal non-conforming building.

7The RPRA also made oral submissions at the Committee of Adjustment hearing. Their comments included calling into question the legal non-conforming status of the building, concerns about the proposed increase to the building footprint, and concerns about the potential impact of the proposed development on the heritage character of the area.

8The Appellant takes the position that the RPRA’s issues with the legal non-conforming status of the building, and heritage concerns, were and remain irrelevant to the proceedings because both the City and the Appellant agree that the existing duplex dwelling has legal non-conforming status, and the heritage considerations are already settled by way of the heritage permits.

9At the conclusion of the Committee of Adjustment hearing, the application was refused by the committee, which led to the present appeal.

Appellant’s Grounds in Opposition to Request for Party Status

10The Appellant lists the following grounds in opposition to the RPRA’s request for Party status:

1. The Requester has no right to Party status in the circumstances;

2. The Requester is primarily concerned with heritage matters, which is not an issue properly before the Tribunal in this instance;

3. The Requester has not relied on any qualified objective evidence in their submissions before the COA. As the test for an application under s. 45(2)(a)(i) requires objective evidence, there is currently nothing that the Requester could contribute to assist the Tribunal in making its decision;

4. The Requester does not meet the test for Party status; and

5. Adding the Requester as a Party would prejudice the Appellant’s right to a fair, just, expeditious and cost-effective resolution of the issues.

11For the reasons that follow, the Tribunal finds that the Motion can be determined upon solely considering the fourth and fifth listed grounds. Consequently, the Tribunal declines to examine the other submitted bases for relief.

Analysis

12As submitted by the Moving Party, the well-established test for Party status requires the proposed Party to demonstrate that it: (1) has a direct interest in the matter; and (2) will assist the Tribunal in making its decision. Additionally, from a case management standpoint, the Tribunal is also responsible for ensuring that issues before the Tribunal are resolved in a fair, just, expeditious and cost-effective manner. Taken together, when considering a request for Party status, the Tribunal finds that a proposed Party must demonstrate that it:

1. has a direct interest in the matter; and

2. through its involvement in the proceedings as a Party, it would meaningfully contribute to a fair, just, expeditious and cost-effective hearing, as a means to assist the Tribunal in making a properly informed decision.

13Typically, to reach the above stated threshold, there is an expectation that the proposed Party:

1. has an adequate understanding of the Tribunal’s processes, practices and procedures;

2. is committed to attend all hearing events;

3. is aware of and prepared to undertake the Role and Obligations of a Party, as set out at Rule 8.1 of the Ontario Land Tribunal Rules of Practice and Procedure; and

4. intends to meaningfully participate in the proceedings in a manner which goes beyond that which can be accomplished through a written statement (as would be permitted if the individual was granted Participant status instead).

14Generally, in terms of what constitutes meaningful participation in a proceeding, it is not enough for a proposed Party to simply claim that it wishes to employ the rights of a party (i.e., to bring evidence, make oral submissions, and/or cross-examine opposing witnesses). To be granted Party status, the Tribunal must be satisfied that, through exercising such rights as a Party, the proposed Party will positively contribute to the decision making process by, for example, raising legitimate issues together with bringing meaningful and relevant evidence to address such issues (i.e. through qualified expert opinion evidence), provide oral submissions that could not be merely summarized in a written Participant Statement, and/or conduct cross-examination which is expected to be fruitful.

15In the present case, the Tribunal finds that the RPRA has not met the threshold for Party status. While it clearly has a direct interest in the matter, by virtue of it being the area’s residents’ association, the Tribunal does not find that it will likely meaningfully contribute to a fair, just, expeditious and cost-effective hearing, as a means to assist the Tribunal in making a properly informed decision.

16The Tribunal comes to this conclusion upon finding that the RPRA does not plan to call any evidence apart from lay-testimony from two Rockcliffe Park residents, Michele Hayman and Susan Peterson. Based on the evidence before it, the Tribunal finds that neither proposed witness has expert qualifications necessary to speak to any of the issues of this matter (including those issues likely to be raised by the RPRA), with all of the issues (as outlined at paragraphs 21-24 below) demanding expert testimony for the evidence to be meaningful and relevant. The Tribunal further finds that each of the proposed witnesses are members of the RPRA, so they could not be qualified as an objective, non-partisan expert witnesses in any event, even if they did possess the necessary qualifications.

17It is a further finding of the Tribunal that the concerns raised by the RPRA can be appropriately summarized in a written form, allowing the association to fairly express its concerns to be heard by the Tribunal through a Participant Statement, upon being granted Participant status instead of Party status.

18Finally, the main argument forwarded by the RPRA, in purported favour of their request for Party status, is that they will provide the Tribunal with an alternative perspective to consider, given that the City is not opposing the appeal. The Tribunal finds that such a bald claim is not enough, however, absent of also demonstrating anticipated meaningful participation in the proceedings.

19Upon these findings, the Tribunal has determined that Party status will be denied, and Participant status will be granted instead. The RPRA therefore has until the commencement of the hearing at 10 a.m. on Monday, October 28, 2024, to serve on the Parties and file with the Tribunal a Participant Statement of no more than five pages.

Issues List and Directions to the Appellant

20While the Tribunal has granted the relief sought, insofar as it has denied the RPRA’s request for Party status, the Tribunal does not agree with all of the submissions proffered by the Appellant as part of this motion.

21Notably, the Tribunal does not agree that the question concerning the status of the existing building as a legal non-conforming building has been definitively resolved for the Tribunal’s purposes, and it finds that this issue must be resolved to the Tribunal’s satisfaction for the relief being sought under s. 45(2) (a)(i) of the Planning Act to be granted. A determination of this question shall form part of the matter’s Issues List. As direction to the Appellant, the Tribunal expects the Appellant to provide evidence in support of its position, together with legal submissions on the subject. To be clear, it is not enough to show that the Appellant and the City are in agreement on this issue – the Tribunal must be similarly satisfied.

22Additionally, the Tribunal does not agree that heritage considerations are entirely off the table. More specifically, the Tribunal must consider satisfaction of s. 2 of the Planning Act, and have regard to ss. (d) “the conservation of features of significant architectural, cultural, [and] historical […] interest”, in particular. Additionally, the Tribunal must also be satisfied that the proposal is consistent with the Provincial Planning Statement, 2024 (“PPS”), in accordance with s. 3(5) of the Planning Act, and Policy 4.6 of the PPS in particular. A determination of these questions shall form part of the matter’s Issues List. As direction to the Appellant, the Tribunal expects that their Land Use Planning Expert be capable of referencing relevant reports or other documents which speak to the issue. The Tribunal will not insist upon testimony from a heritage expert, provided that the Appellant’s Land Use Planning Expert can show that he/she/they have appropriately considered heritage issues from a planning perspective, as contemplated by the PPS, through such reports or other documents. To be clear, while heritage considerations as contemplated by the Heritage Act are not an issue, the Tribunal must still be satisfied that heritage considerations as contemplated by the Planning Act (and by extension the PPS) are sufficiently addressed.

23Apart from these issues, the Tribunal accepts that the subject applications brought under s. 45(2) (a)(i) of the Planning Act, for permission to enlarge or extend an existing legally non-conforming duplex dwelling on the Subject Property, shall be evaluated on the basis of the following:

1. Whether the application is desirable for the appropriate development of the subject property; and

2. Whether the application will result in undue adverse impacts on the surrounding properties and neighbourhood.

24The Tribunal accordingly finds that the above-described issues shall collectively form the Issues List of this matter. The Appellant may seek further clarification and/or directions from the present Member at the commencement of the merit hearing.

ORDER

25THE TRIBUNAL ORDERS that:

1. the motion by Roca Investment Holdings Inc., opposing the Party status request by the Rockcliffe Park Residents Association, is granted and the Rockcliffe Park Residents Association’s request for Party status is denied. Instead, the Tribunal grants Participant status to the Rockcliffe Park Residents Association, and they have until the commencement of this matter’s merit hearing, at 10 a.m. on Monday, October 28, 2024, to serve and file a Participant Statement of no more than five pages; and

2. the Issues List generally described above at paragraphs 21-24 shall govern the proceedings.

“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.