Litwillow Holdings Ltd. v. Brampton (City), 2024 CanLII 106141

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 25, 2024

CASE NO(S).: OLT-24-000777

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

Applicant/Appellant: Litwillow Holdings Ltd.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of a high-rise mixed-use building containing 330 units with commercial spaces at grade.

Reference Number: OZS-2021-0010

Property Address: 2 Bartley Bull Parkway

Municipality/UT: Brampton/Peel

OLT Case No.: OLT-24-000777

OLT Lead Case No.: OLT-24-000777

OLT Case Name: Litwillow Holdings Ltd. v. Brampton (City)

Heard: October 11, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Litwillow Holdings Ltd.

Jason Park

Doug Pateman

City of Brampton

Bruce Engell

Eugenia Bashura (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON OCTOBER 11, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) regarding an appeal pursuant to section 34(11) of the Planning Act (“Act”) by Litwillow Holdings Ltd. (“Applicant”) regarding the City of Brampton’s (“City”) denial of a Zoning By-law Amendment (“ZBA”) in relation to the property located at 2 Bartley Bull Parkway (“Subject Property”). The proposal is for a high-rise mixed-use building with 330 units, comprising of studio, one, two and three-bedroom units, with commercial spaces at grade.

NOTICE

2An Affidavit of Service was received, confirming that proper notice of this CMC had been provided. The Tribunal marked this document as Exhibit 1. Upon review, and hearing no concerns from the Parties, the Tribunal determined that no further notice would be required.

STATUS REQUESTS

3The Tribunal received one request for Party status from the Toronto and Region Conservation Authority (“TRCA”), and one request for Participant status from three residents of the City: Donald MacKenzie, Josh Collins, and Jason Lodder, who submitted a joint request and joint statement.

4The TRCA’s request was in respect of natural hazard matters, as the Subject Property contains a valley corridor of the Etobicoke Creek Watershed and associated flood and erosion hazards, which are regulated by the TRCA. It is noted that TRCA staff raised no objection to the approval of the current proposal in principle, subject to outstanding stormwater management concerns being addressed at a future stage of the planning process. Counsel for the TRCA identified that their interest was to ensure that the proposed development was in accordance with provincial policy and the City’s Official Plan. Upon consideration, and hearing no concerns from the Parties, the Tribunal granted Party status to the TRCA.

5The concerns expressed in the Participant statement were in opposition to the proposal, and included the size and scale of the proposed development, as well as the potential undue traffic impacts. Upon consideration, and hearing no concerns from the Parties, the Tribunal jointly granted Participant status to Messrs. MacKenzie, Collins, and Lodder.

Update

6Counsel for the Applicant, Mr. Park, advised that a draft Procedural Order (“PO”), including Issues List, had been circulated to the Parties and was provided to the Tribunal on consent, in advance of this CMC. He highlighted that the Parties had agreed that an eight-day Hearing on the Merits would be appropriate and were jointly requesting that one be set in early 2025, subject to the availability on the Tribunal’s calendar.

7Counsel for both the City and the TRCA concurred with the course of action proposed by the Applicant, including the proposed timing.

TRIBUNAL-LED MEDIATION

8The Tribunal highlighted the availability of Tribunal-led mediation and encouraged the Parties, if interested, to contact the Case Coordinator to begin the intake process.

NEXT STEPS

9Upon consideration, the Tribunal agreed with the proposed path forward and set an eight-day Hearing on the Merits to commence Monday, March 10, 2025 at 10 a.m. by Video Hearing.

10Parties and Participants are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

GoTo Meeting: https://meet.goto.com/558205565

Access code: 558-205-565

11Parties 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html

12Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497-9373 or (toll free) 1-888-299-1889. The access code is: 558-205-565.

13Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

14The Tribunal identified some minor revisions to the PO. The Applicant agreed to take the lead on the submission of the final PO, and the Tribunal directed that it be submitted on or before Friday, October 25, 2024, for review and approval. It has since been received and approved and shall govern the proceedings.

ORDER

15The Tribunal Orders that:

a) the Toronto and Region Conservation Authority is granted Party status;

b) Donald MacKenzie, John Collins, and Jason Lodder are together granted Participant status;

c) an eight-day Hearing on the Merits has been set, as outlined in paragraph [9] above; and

d) the Procedural Order, included as Appendix 1, to this Order is approved.

16There will be no further notice and the Member is not seized on this matter.

“S. Bobka”

S. BOBKA

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.

APPENDIX 1

CASE NO(S).:

OLT-24-000777

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

Applicant/Appellant:

Litwillow Holdings Ltd.

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit the development of a high-rise mixed-use building containing 330 units with commercial spaces at grade.

Reference Number:

OZS-2021-0010

Property Address:

2 Bartley Bull Parkway

Municipality/UT:

Brampton/Peel

OLT Case No.:

OLT-24-000777

OLT Lead Case No.:

OLT-24-000777

OLT Case Name:

Litwillow Holdings Ltd. v. Brampton (City)

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 Hearing will begin on March 10, 2025, at 10:00 a.m. Unless otherwise subsequently ordered by the Tribunal, the Hearing shall proceed by videoconference.

3. The Parties’ initial estimation for the length of the Hearing is 8 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.

4. The Parties and Participants identified at the case management conference are set out in Attachment 1.

5. The issues for the Hearing are set out in the Issues List attached as Attachment 2. 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.

6. The order of evidence shall be as set out in Attachment 3. The Tribunal may limit the amount of time allocated for opening statements, direct evidence (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 it are set out in Attachment 4.

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 (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

10. If the applicant/appellant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports to the other parties on or before Friday, November 22, 2024 and in accordance with paragraph 25 below. The applicant/appellant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

11. 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 they will be called. This list must be delivered on or before Friday, December 6, 2024, and in accordance with paragraph 5 below. A Party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

12. Expert witnesses in the same field shall have a meeting on or before Thursday, December 19, 2024, and try to resolve or reduce the issues for the Hearing. Following the experts’ meetings, and if any agreement is reached, the Parties must prepare and file a Statement of Agreed Facts and Issues with the Case Co-ordinator on or before Friday, January 10, 2025

13. 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. Copies of this must be provided as in paragraph 16 below. Instead of an Expert 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.

14. Expert witnesses who are under summons and not paid to produce a report do not have to file an Expert Witness Statement; but the Party calling them must file an outline of the expert’s evidence as in paragraph 16 below.

15. A Party who intends to call a witness who is not an expert must file a Witness Statement, as in paragraph 16 below.

16. On or before Friday, January 17, 2025, the Parties shall provide copies of their Witness Statements and Expert Witness Statements to the other Parties and to the Case Co-ordinator and in accordance with paragraph 25 below.

17. On or before Friday, January 17, 2025, a Participant shall provide copies of their written Participant Statement to the Parties and to the Case Co-ordinator in accordance with paragraph 5 below. A Participant cannot present oral evidence or submissions at the Hearing unless ordered by the Tribunal.

18. On or before Friday, January 31, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

19. Parties may provide to all other Parties and the Case Co-ordinator a written response to any Written Evidence on or before Friday, February 21, 2025, and in accordance with paragraph 25 below.

20. On or before Friday February 28, 2025, the Parties shall provide copies of their visual evidence to all of the other Parties in accordance with paragraph 25 below. If a model will be used, all Parties must have a reasonable opportunity to view it before the Hearing.

21. The Parties shall cooperate to prepare a Joint Document Book which shall be shared with the Case Co-ordinator on or before Friday February 28, 2025.

22. A person wishing to change Written Evidence, including Witness Statements, must make a written Motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the Moving Party provide copies of the Motion to all other Parties 15 days before the Tribunal hears the Motion.

23. 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 and the other Parties by Monday, March 3, 2025 that the written evidence is not part of their record.

24. The Parties shall prepare and file a preliminary Hearing Plan with the Tribunal on or before Monday, March 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 direct, cross-examination and re-direct 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.

25. All filing shall be electronic, unless the Tribunal requests a hard copy(ies) of any document. 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 Rule 7.

26. 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.

This Member is not seized.

So orders the Tribunal.

SUMMARY OF PROCEDURAL DATES

DATE

EVENT

Friday, November 22, 2024

Proposal Revisions

Friday, December 6, 2024

Exchange of list of witnesses and the order in which they will be called

Thursday, December 19, 2024

Meeting of expert witnesses in the same field

Friday, January 10, 2025

Filing of agreed statement of facts

Friday, January 17, 2025

Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons, participant statements

Friday, January 31, 2025

Confirm number of days required for hearing

Friday, February 21, 2025

Exchange of responding evidence

Friday February 28, 2025

Exchange of visual evidence

Friday February 28, 2025

Filing of Joint Document Book

Monday, March 3, 2025

Filing of Hearing Plan

Monday, March 10, 2025

Hearing commences

Attachment “1” List of Parties/Participants

PARTIES

Party

Counsel / Representative

Litwillow Holdings Ltd.

Jason Park /Doug Pateman Kagan Shastri DeMelo Winer Park LLP 250 Yonge Street, Suite 2302, PO Box 65, Toronto, Ontario, Canada M5B 2L7 Email: jpark@ksllp.ca/dpateman@ksllp.ca Tel: (416) 645-4572 /(437) 780-3586

City of Brampton

Bruce Engell / Eugenia Bashura WeirFoulds LLP 66 Wellington Street West, Suite 4100, P.O. Box 35, Toronto-Dominion Centre, Toronto, Ontario, Canada. M5K 1B7 Email: bengell@weirfoulds.com Tel: (416) 947-5081 City of Brampton| Legislative Services City Hall West Tower, 9th Floor Brampton ON L6Y 4R2 Email: eugenia.bashura@brampton.ca Tel: (905)- 874-2682

Toronto and Region Conservation Authority

Tim Duncan / Matthew Rutledge Fogler, Rubinoff LLP 77 King St W Suite 3000, Toronto, ON M5K 1G8 Email: tduncan@foglers.com Tel: (416) 941-8817 Email: mrutledge@foglers.com Tel: (416) 864-7607

Participants

Participant

Email

Donald MacKenzie

adkmack@icloud.com

John Collins

johnco@sympatico.ca

Jason Lodder

jlodder@live.ca

Attachment “2”

Issues List

City of Brampton

1. Does the Proposed Zoning By-law Amendment (“ZBA”) have appropriate regard to matters of provincial interest as required by section 2 of the Planning Act including 2(h), 2(j), 2(n), 2(p), 2(q) and 2(r)?

2. Subject to any transition regulations that may be in effect, is the ZBA consistent with the Provincial Policy Statement, 2020, including without limitation policies: 1.1.1, 1.1.3.1, 1.1.3.2, 1.1.3.3 and 1.1.3.4?

3. Subject to any transition regulations that may be in effect, does the ZBA conform to A Place to Grow Growth Plan for the Greater Golden Horseshoe 2020, including without limitation sections: 1.2.1, 2.2.2(3) and 2.2.4(9)?

4. Subject to any transition regulations that may be in effect, is the ZBA consistent with the Provincial Planning Statement, 2024, including without limitation policies: 2.1.6, 2.3.1.2, 2.3.1, 2.4.1.3 and 2.4.2.3?

5. Does the ZBA conform to the Region of Peel Official Plan (Office Consolidation 2018), including without limitation policies: 5.3.1.3, 5.3.1.4, 5.3.2.2, 5.3.2.6, 5.3.3.2.5, 5.3.3.2.6, 5.5.3.2.7 and 5.5.3.2.9?

6. What weight, if any, should be given to the New Region of Peel Official Plan, April 2022? If weight is to be assigned, does the proposal take into account the New Region of Peel Official Plan, April 2022?

7. Does the ZBA conform to the City of Brampton Official Plan (Office Consolidation September 2020) including without limitation policies: 3.2.1.1, 3.2.1.3, 3.2.4.1, 3.2.5.1.1, 3.2.5.1.2, 3.2.5.1.4, 3.2.5.1.5, 3.2.6.2, 3.2.6.3, 3.2.6.4, 3.2.6.6, 4.2(b), 4.2.1.8, 4.2.7.1, 4.11.3, 4.11.3.1, 4.11.3.1.2, 4.11.3.2, 4.11.3.2.3, 4.11.3.2.6?

8. Does the ZBA conform to the Hurontario-Main Corridor Secondary Plan (SP 55), including without limitation policies: 4.1, 4.2, 5.1.1, 5.1.2, 5.3.1, 5.3.3, 5.11.1?

9. What weight, if any, should be given to the adopted, but under appeal, New City of Brampton Official Plan? If weight is to be assigned, does the proposal take into account the New City of Brampton Official Plan?

10. Are the proposed height of 29 storeys and density of 9.53 FSI appropriate for the site given the physical context of the surrounding area and the policy context set out in the Hurontario-Main Corridor Secondary Plan (SP 55)?

11. Is the proposal compatible with the surrounding area?

12. Does the proposal ensure an appropriate transition to the surrounding neighbourhood land uses?

13. Is it appropriate to include a maximum parking regulation in the ZBA?

14. Does the ZBA sufficiently regulate matters of built form including height, density, massing, scale, setbacks, stepbacks, lot coverage and landscaping having regard for the site, adjacent property and the character of the surrounding lands?

15. Does the proposal have appropriate regard for the Hurontario/Main Street Corridor Master Plan (2010)?

16. Does the proposal have appropriate regard for City of Brampton Development Design Guidelines?

17. Is the form and content of the proposed ZBA acceptable?

18. Do the ZBA constitute good land use planning and is it in the public interest?

Note 1: Where an issue refers to a provision from the PPS or the Growth Plan, either of the Official Plans or any guidelines in addressing the issue, the planning document from which the provision is taken should be read in its entirety with all relevant provisions being considered. For greater certainty, the identification of a specific provision in an issue does not preclude the parties from referring to other provisions from the same planning document in addressing that issue.

Note 2: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

Toronto and Region Conservation Authority

Note: The identification of an issue on this Issues List is intended to provide notice to all parties that a party will lead evidence and/or argument on the matter. The Issues List may be further refined and revised as necessary due to the Provincial Planning Statement, 2024, which is anticipated to come into effect on October 20, 2024

1. Are the subject property and proposed development located outside of all natural hazards (i.e., flood hazard and erosion hazard)?

2. Does the Zoning By-law Amendment (ZBA) adequately identify development constraints in discrete natural hazard blocks, and are appropriate Zoning By-law categories assigned to the blocks?

3. Are the proposed development and Zoning By-law Amendment consistent with the Provincial Policy Statement, 2020, including policies 3.1.1 and 3.1.2?

4. Are the proposed development and Zoning By-law Amendment consistent with the Provincial Planning Statement, 2024, including policies 5.2.1 and 5.2.2?

5. Do the proposed development and Zoning By-law Amendment have appropriate regard for the policies contained in the 2014 Living City Policies for Planning and Development in the Watersheds of the Toronto and Region Conservation Authority, including policies 7.3, 7.4 and 7.5?

Attachment “3” Order of Evidence

1. Litwillow Holdings Ltd.;

2. City of Brampton;

3. Toronto and Region Conservation Authority; and

4. Litwillow Holdings Ltd. (Reply, if any)

Meaning of terms used in the Procedural Order:

A Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other Parties, and making submissions on all of the evidence. An unincorporated group cannot be a Party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a Party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorization from the Party.

NOTE that a person who wishes to become a Party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A Participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A Participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a Party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a Party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a Participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A Participant may also be asked questions by the Parties should the Tribunal direct a Participant to attend a hearing to answer questions on the content of their written submission.

A Participant must be identified and be accorded Participant status by the Tribunal at the CMC. A Participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A Participant cannot ask for costs, or review of a decision, as a Participant does not have the rights of a Party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a Party or Participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a Party or Participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A Participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the Participant’s position on the appeal; a list of the issues which the Participant wishes to address and the submissions of the Participant on those issues; and a list of reports or materials, if any, which the Participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A Party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the Party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the Party presenting the witness;
• direct examination by any Party of similar interest, in the manner determined by the Tribunal;
• cross-examination by Parties of opposite interest;
• re-examination by the Party presenting the witness; or
• another order of examination mutually agreed among the Parties or directed by the Tribunal.