ISSUE DATE: November 26, 2024

CASE NO(S).: OLT-24-000820

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: 1539059 Ontario Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit a 58-storey mixed-use residential and office tower

Reference Number: OPA1612.15

Property Address: 349 Davis Road

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-24-000820

OLT Lead Case No.: OLT-24-000820

OLT Case Name: 1539059 Ontario Inc. v. Oakville (Town)

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

Applicant/Appellant: 1539059 Ontario Inc.

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

Description: To permit a 58-storey mixed-use residential and office tower

Reference Number: Z.1612.15

Property Address: 349 Davis Road

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-24-000821

OLT Lead Case No.: OLT-24-000820

Heard: November 1, 2024 by Video Hearing

Parties and Counsel

1539059 Ontario Inc. Russell D. Cheeseman Stephanie A. Fleming

Town of Oakville Jennifer Huctwith Nadia Chandra

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON NOVEMBER 1, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND NOTICE

1This event was the first Case Management Conference (“CMC”) before the Tribunal with respect to appeals under s. 22(7) and s. 34(11) of the Planning Act (“Act”) by 1539059 Ontario Inc. (“Applicant”) resulting from the failure of the Town of Oakville (“Town”) to make decisions within the statutory timeframes of the Act on applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”), pertaining to lands located at 349 Davis Road in the Town (“Subject Property”). The purpose of the OPA and ZBA is to facilitate the development of a 58-storey mixed-use building.

2At the CMC, the Tribunal canvassed Counsel, who confirmed that there were no issues with the service of the Notice of CMC. The Tribunal is in receipt of the Affidavit of Service sworn by Darlene Hornsby on September 30, 2024, which was marked as Exhibit 1, and confirms that Notice was adequately served. No further notice is required.

REQUESTS FOR STATUS

3The Tribunal did not receive any requests for Party or Participant status.

PROCEDURAL ORDER AND ISSUES LIST

4Prior to the CMC, the Parties provided a draft Procedural Order (“PO”) and a draft 15-page Issues List (“IL”).

5At the CMC, the Town’s Counsel explained that there is a preliminary issue here, which is whether this proposal is premature. She explained that there is a municipally-initiated Oakville Midtown Growth Area Review currently taking place. Moreover, updates to the Midtown road network are being proposed. These changes impact the exact location that the Subject Property is in, and will ultimately impact the land use designation of that area and whether a road network is contemplated to go through the Subject Property. The Town’s position was that a Hearing should not be scheduled until that matter is resolved. While this review process had been ongoing for five years, it was currently near completion, as a draft plan was submitted to the Minister (who had approval authority) on September 26, 2024. Thus, the Town proposed that a second CMC be scheduled, instead of a Hearing, for a few months down the line to allow this review process to be completed. The extensive IL could then be narrowed and finalized, once all the Parties knew the updated designation and road network for the area.

6The Applicant’s Counsel agreed with scheduling another CMC. The Tribunal also agreed and it has been scheduled, with the details indicated below. The Applicant’s Counsel disagreed, however, that a Hearing should not be scheduled and asked that a six-week Hearing be scheduled. He submitted that the Midtown review process had been ongoing since 2002, and it was not clear that it would be resolved imminently. The subject applications had been submitted in November 2022, and had been deemed complete by the Town in June 2023. The Applicant submitted the non-decision appeals on June 2024 (though it could have done so earlier) and the Town took no steps on the applications in the meantime. The Applicant had followed all required steps in the planning process, and there was no reason to delay scheduling this Hearing. The Town was asking that this appeal be halted based on hypothetical scenarios (what the road network may ultimately look like subsequent to the Minister’s approval). However, the application must be assessed based on the current situation. If the hypotheticals actualize, they can be dealt with as they arise.

7The Town could not adequately justify why a Hearing should not be scheduled. The only explanation provided was that Tribunal resources should not be utilized on a premature appeal. Moreover, once the review process was complete, the issues could be significantly scoped and six weeks would likely not be required for the Hearing. Scheduling a Hearing that is premature would constitute a bad planning process.

8The Tribunal agreed with the Applicant that, before the Tribunal, there is no question as to a good or bad planning process. The Tribunal makes decisions on good or bad planning. Separately, there is a planning process that applications and appeals follow. In this case, the Applicant had followed all required steps of the planning process. The Act allows Applicants to submit an appeal within a certain timeline if the Town fails to make a decision on an application. This is what occurred here and where the Parties currently find themselves. The planning process mandated in statute now requires the next step to take place, which is the scheduling of the Hearing. At that Hearing, the Parties can raise issues such as which policies apply (the old or the ones under review) and how to best address this application in light of a potentially changing landscape within the Town. Moreover, the planning process requires the Tribunal to make decisions based on what is actually before it and not hypothetical scenarios that may or may not occur. If the Minister approves the updates to the road network and the new proposed designations, then the Tribunal can deal with that at the Hearing. However, the Tribunal cannot halt the planning process without knowing what will actually take place.

9With respect to the Town Counsel’s submissions that Tribunal resources would be misused if a Hearing is scheduled, the Tribunal was satisfied that such a thing would not occur. If the Town’s review process is complete by the time of the second CMC or even the scheduled Hearing, the Parties can advise the Tribunal and revise the IL as required. They can then also advise whether any dates can be released from the calendar. Moreover, the timeline proposed for the Hearing was more than one year from the date of the CMC, and provided sufficient time for the Parties to advise if less time was required for the Hearing. Lastly, provision 16 of the draft PO indicates a date by which the Parties are to update the Tribunal on whether all reserved Hearing dates are required. As a safeguard, the Tribunal directed the Parties to revise this timeline from 35 days prior to the Hearing to 60 days. In short, the Tribunal found that, as a public resource, it must ensure that fair, just, and expeditious Hearings take place. In this case, halting the progression of this planning process would go against that mandate.

10As a second CMC has been scheduled, and the IL may be significantly impacted in the coming months (by the Minister’s decision for example), the PO and IL were not ratified at this CMC. The Parties were directed to provide a draft PO and IL, or a status update, to the Tribunal, by Wednesday, March 19, 2025. The Applicant’s Counsel undertook to submit them to the Case Coordinator by that date.

MEDIATION AND SETTLEMENT

11The Tribunal raised the issue of mediation or settlement discussions. The Parties had not begun those discussions. The Applicant was open to this and anticipated that the Parties would engage in same at some point. The Town’s Counsel agreed, but indicated that it was currently premature to do so.

12The Parties were directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Hearing, and should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

SECOND CMC AND HEARING INFORMATION

13As indicated above, a second CMC has been scheduled, and is to take place by video on Wednesday, March 26, 2025 at 10 a.m.

14The Tribunal also scheduled a Hearing. Given the number of Parties, potential issues, and potential witnesses, the Tribunal agreed that a six-week Merit Hearing would be sufficient. A Hearing is to take place by video commencing on Monday, November 3, 2025, at 10 a.m. to and including Friday, December 12, 2025. The following dates are excluded as the Tribunal is not sitting: November 11 and 17, 2025.

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

Wednesday, March 26, 2025 (Second CMC)

GoToMeeting: https://global.gotomeeting.com/join/979388733

Access Code: 979-388-733

Audio-Only Telephone Line: +1 (647) 497-9373 or (toll-free) 1-888-299-1889

Access Code: 979-388-733

Monday, November 3 to Friday, December 12, 2025, excluding November 11 and 17 (Six-week Merit Hearing)

GoToMeeting: https://global.gotomeeting.com/join/979388733

Access Code: 979-388-733

Audio-Only Telephone Line: +1 (647) 497-9373 or (toll-free) 1-888-299-1889

Access Code: 979-388-733

16Parties and/or 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

17Persons 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 indicated above.

18Individuals 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.

ORDER

19THE TRIBUNAL ORDERS as follows:

a. a second Case Management Conference is scheduled as described above in this Decision;

b. a Merit Hearing is scheduled as described above in this Decision; and,

c. the Procedural Order and Issues List, or a status update, are to be provided to the Tribunal’s Case Coordinator by Wednesday, March 19, 2025.

20There will be no further notice.

21This Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE

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.