927 Wellington Street Inc. v. Ottawa (City), 2024 CanLII 115199

ISSUE DATE: November 15, 2024

CASE NO(S).: OLT-24-000203

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

Applicant and Appellant: 927 Wellington Street Inc.

Subject: Minor Variance

Description: To permit a change to the legal non-conforming use of the existing commercial building.

Reference Number: D08-01-22/A-00227

Property Address: 927 Wellington Street West

Municipality/UT: Ottawa

OLT Case No.: OLT-24-000203

OLT Lead Case No.: OLT-24-000203

OLT Case Name: 927 Wellington Street 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: 927 Wellington Street Inc.

Request for: Request for Directions

Heard: September 18, 2024 in writing only

APPEARANCES:

Parties	*Counsel/Representative**
927 Wellington Street Inc. (“Wellington” or “Applicant”)	M. Polowin C. McConkey
City of Ottawa (“City”)	*T. Marc
Party Status Requester: Hintonburg Community Association (“HCA”)	Linda Hoad Cheryl Parrott

DECISION DELIVERED BY William R. Middleton AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision concerns a motion brought by HCA seeking Party status in this proceeding (“Motion”), which is the appeal by Wellington pursuant to section 45(12) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”) concerning the refusal by the City’s Committee of Adjustment (“COA”) to grant certain minor variances with respect to the property municipally known as 927 Wellington Street West in the City. The appeal is scheduled for a hearing by the Tribunal from October 22 to October 25, 2024, inclusive.

2The materials before the Tribunal on the Motion were:

(a) Notice of Motion dated September 6, 2024, comprising 4 pages (including attachment);

(b) Motion Record of the Appellant, dated September 13, 2024, comprising 126 pages;

3The Tribunal noted that the City did not file any materials in respect of the Motion.

ARGUMENTS/ANALYSIS

4In its Notice of Motion seeking Party status, HCA stated (below emphasis added):

THE GROUNDS FOR THE MOTION ARE that the Hintonburg Community Association has an interest in the resolution of the issues to be heard and can offer important information that will contribute to a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.

5Attached to its Notice of Motion, in its Request for Party status, HCA stated (below emphasis added):

The Hintonburg Community Association Inc. (HCA) was founded in 1991 to act as spokesperson in promoting and protecting the interests of the community and to actively participate in the planning and future development of the Hintonburg area. The HCA is incorporated under the Ontario Not-for-Profit Corporations Act.

The boundaries of the Association are the east side of Holland Avenue to the west, the railway tracks to the east, the south side of Scott Street to the north and the Queensway to the south. The subject property is located within these boundaries.

The HCA participated in the Committee of Adjustment hearing of January 26 2024 in opposition to the granting of the application for permission for a change of use. We continue to be concerned about the impact of the proposed change of use on the adjacent community.

We intend to call one witness, Ms. Cheryl Parrott, who will present oral and visual evidence in support of our position that the requested change of use is not similar to or more compatible with the permitted uses in the Traditional Mainstreet zone.

Ms. Parrott has been a resident of Bayview Station Road near the subject site since 1979, and she is a founding member of the HCA who has served on the Board of Directors and the Zoning Committee.

We understand that Ms. Parrott is not an expert witness qualified to give opinion evidence. However she has lived experience of both the previous use and the current use and can offer important information about the impact of the requested change of use on the neighbours and the nearby community. This information will assist the Tribunal in resolving the question raised by this permission application – is the proposed use similar to or more compatible with the current permitted uses.

6In opposing the Motion, the Appellant’s counsel argued (below emphasis added):

The HCA has no statutory right to party status under the Planning Act, R.S.O. 1990, c. P.13;

The HCA has no right to party status under the Tribunal’s Rules of Practice and Procedure, made under subsection 13(1) of the Ontario Land Tribunal Act, 2021, effective October 13, 2023;

The HCA does not meet the test for party status in that it is plain and obvious on the face of the HCA’s motion that the HCA will not assist the Tribunal in making a determination of the issues.

The HCA does not meet the test for party status in that it is plain and obvious on the face of the HCA’s motion that the HCA is not sheltering under an issue raised in an appeal by an appellant party.

It would be contrary to the Tribunal’s established principles to allow party status in the circumstances as the HCA will not contribute to the fair, just, expeditious and cost-effective resolution of the issues.

7In its Reply, HCA contended (below emphasis added):

The Hintonburg Community Association’s evidence is not based on a “purported undue impact” or an “apprehension” of the impact of the requested change of use, but on actual experience of the already established change of use…

The HCA does not propose to call evidence from qualified professionals who are capable of forming objective opinions on such evidence in order to assist the Tribunal in determining the matters at issue…

The HCA did not appeal the decision and we understand that we are not entitled to make such an appeal… The Tribunal encourages participation in matters before it as outlined in the OLT Hearings Guide, October 13, 2023…

The HCA has a direct interest in this matter, since the operation of the applicant’s business impacts the adjoining streets which are used by children on the way to Devonshire School; pedestrians, and cyclists en route to the Bayview Light Rail Station; other road users; operation also impact nearby residential neighbours. The experience of those who live and travel nearby can assist the Tribunal in making its decision…

We trust that the Tribunal will weigh the evidence we submit along with that of the other parties and will reach a fair, just, expeditious and cost-effective resolution of the merits of the proceedings…

8The Appellant’s counsel argues that the Tribunal at the hearing may only rely on objective evidence from qualified experts and notes that HCA has no intention of calling such evidence. Counsel for Wellington further argues that there is no right of Party status available to HCA under section 45(2) of the Act and that under section 45(12) only certain specified persons or public bodies may appeal the COA decision and that HCA is not so specified – a point conceded by HCA as noted above.

9The Appellant finally argues that the Tribunal has no power to add Parties under its Rules of Practice and Procedure unless the proposed Party can satisfy the applicable legislative tests – which is not the situation here.

10The Tribunal concurs with the arguments made by the Appellant and is further of the view that neither its ‘Hearing Guide’ nor Rule 7.6 regarding non-expert witnesses assists HCA on this Motion.

11Considering all of the circumstances of this case, the contentions made by HCA and the Appellant, and the applicable provisions of the Act and of the Ontario Land Tribunal Act, S.O. 2021, C. 4, Sched. 7, the Tribunal determines that there is no basis for the granting of Party status to HCA in this proceeding. It may be that HCA or one of its members could have been granted Participant status and thus permitted to make written submissions pursuant to Rule 7.7. However, no request for Participant status has been made by HCA or its members nor is this a matter for determination on this Motion.

ORDER

12THE TRIBUNAL ORDERS THAT the Motion brought by Hintonburg Community Association for Party status is dismissed.

13There shall be no Order as to the costs of this Motion.

“William R. Middleton”

WILLIAM R. MIDDLETON

VICE-CHAIR

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.