McCormick Village Inc. v. London (City), 2024 CanLII 14484

du territoire

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

ISSUE DATE: February 20, 2024

CASE NO(S).: OLT-22-004968 OLT-24-000073

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: McCormick Village Inc. Subject: Proposed Official Plan Amendment No. 74 Description: To permit OPA and ZBA to redevelop an existing cookie factory with mixed-use housing Property Address: 1156 Dundas Street Municipality/UT: City of London Reference Number: C.P-1512 (bv)-261 OLT Case No.: OLT-22-004698 OLT Lead Case No.: OLT-22-004698 OLT Case Name: McCormick Village Inc. v. London (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: McCormick Village Inc. Subject: By-law No. Z.-1-223068 Description: To permit OPA and ZBA to redevelop an existing cookie factory with mixed-use housing Property Address: 1156 Dundas Street Municipality/UT: City of London Reference Number: Z-1-223068 OLT Case No.: OLT-22-004699 OLT Lead Case No.: OLT-22-004698

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: McCormick Villages Inc. Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit proposed draft plan of subdivision Reference Number: 39T-21508/OZ-9545 Property Address: 1156 Dundas Street Municipality/UT: City of London OLT Case No.: OLT-24-000073 OLT Lead Case No.: OLT-24-000073 OLT Case Name: McCormick Village Inc. v. London (City)

Heard: February 9, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

McCormick Village Inc. (“Appellant”)

Paula Lombardi

City of London (“City”)

Aynsley Hovius Christina McCreery

MEMORANDUM OF ORAL DECISION DELIVERED BY S.L. DIONNE ON FEBRUARY 9, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is a Case Management Conference (“CMC”) before the Ontario Land Tribunal (“Tribunal”) in relation to appeals by McCormick Village Inc. pertaining to the lands referred to as the former McCormick Cookie Factory, designated under Part IV of the Ontario Heritage Act, and municipally known as 1156 Dundas Street, in the City of London (“Subject Lands”).

2By way of background, on May 4, 2023 the Tribunal held a first CMC regarding appeals pursuant to s.17(24) and s.34(19) of the Planning Act, R.S.O., 1990, c. P.13, (“Act”), pertaining to an Official Plan Amendment ("OPA") and a Zoning By-law ("ZBL") as related to the Subject Lands.

3Further to the Decision issued on the first CMC, on November 7, 2023, the Tribunal issued an Order in regard to a Procedural Order (“PO”) and Issues List (“IL”) in force and effect for the purposes of governing the required procedures leading up to and including a five-day hearing scheduled to commence on February 5, 2024.

4On January 22, 2024, the Tribunal received the Appellant’s appeal pursuant to s.51(24) of the Act for the non-decision of the Council of the City in respect of a proposed Draft Plan of Subdivision to facilitate the re-development of the Subject Lands.

5The Tribunal directed that a CMC be held for the purposes of considering the Parties’ request to consolidate the s.51(24) appeal with the s.17(24) and S.34(19) appeals. The Tribunal directed that Notice be issued to all persons residing within 120 metres of the Subject Lands.

6The Tribunal received an Affidavit of Service dated February 8, 2024, confirming that Notice of this CMC was properly given, and marked same as Exhibit 1. In response to the Notice, no requests for status were received in this matter.

7At the request of the Parties, and in accordance with Rule 16.1 of the Tribunal’s Rules and Procedures, the Tribunal consolidated the s.51(24) appeal, being Case No. OLT-24-000073 with the s.17(24) and s.34(19) appeals, being Case Nos. OLT-22-004698 and OLT-22-004699, respectively.

8Counsel for the Parties advised the Tribunal that no revisions were required to the IL.

9The Tribunal has received an updated PO with revised dates for submission deadlines in accordance with the new Hearing Date(s) on consent of all Parties. It has been reviewed, approved and appended as Schedule A to this Decision.

HEARING DATES

10A Hearing on the merits of the appeals is scheduled from Tuesday, June 18, 2024 to Friday, June 21, 2024, for a total of four (4) days, commencing at 10 a.m. by way of video conference.

https://global.gotomeeting.com/join/638422541

Access Code: 638-422-541

11The Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

12Parties are asked to access and setup the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application available:

https://app.gotomeeting.com/home.html.

13Persons 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: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

14Individuals 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 video hearing 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

15THE TRIBUNAL ORDERS:

a. The Merit Hearing is scheduled to commence on Tuesday, June 18, 2024 at 10 a.m. by video conference for a period of four (4) days.

b. The directions as contained in this Decision.

16No further notice will be given.

17The Member is not seized.

“S.L. Dionne”

S.L. DIONNE

MEMBER

Ontario Land Tribunal

Website: 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

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: McCormick Village Inc. Subject: Proposed Official Plan Amendment No. 74 Description: To permit OPA and ZBA to redevelop an existing cookie factory with mixed-use housing Property Address: 1156 Dundas Street Municipality/UT: City of London Reference Number: C.P-1512 (bv)-261 OLT Case No.: OLT-22-004698 OLT Lead Case No.: OLT-22-004698 OLT Case Name: McCormick Village Inc. v. London (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: McCormick Village Inc. Subject: By-law No. Z.-1-223068 Description: To permit OPA and ZBA to redevelop an existing cookie factory with mixed-use housing Property Address: 1156 Dundas Street Municipality/UT: City of London Reference Number: Z-1-223068 OLT Case No.: OLT-22-004699 OLT Lead Case No.: OLT-22-004698 OLT Case Name: McCormick Village Inc. v. London (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: McCormick Village Inc. Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit OPA and ZBA to redevelop an existing cookie factory with mixed-use housing Property Address: 1156 Dundas Street Municipality/UT: City of London OLT Case No.: OLT-24-000073 OLT Lead Case No.: OLT-24-000073 OLT Case Name: McCormick Village Inc. v. London (City)

PROCEDURAL ORDER

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 June 18, 2024 at 10:00 a.m. and is scheduled for a total of Four (4) days.

3. The parties’ initial estimation for the length of the hearing is four (4) 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 (see the sample procedural order for the meaning of these terms).

5. The issues 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 to this Order. 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. 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.

8. 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

9. 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, November 10, 2023 and in accordance with paragraph 22 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.

10. Expert witnesses in the same field shall have a meeting on or before Friday, November 24, 2023 and use best efforts 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 December 8, 2024.

11. 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 13 below. 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.

12. 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 as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before Friday, December 22, 2023, 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 22 below.

14. On or before Friday, December 22, 2023, 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. On or before Wednesday, December 20, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, January 12, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, January, 12, 2024 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, June 7, 2024.

19. 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.

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 7 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 Monday, June 10, 2024 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 and in hard copy. 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.

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.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

List of Appellants/Parties/Participants

APPELLANTS

1. McCormick Villages Inc. Cliff Zaluski President cliff@sierraconstruction.ca

Legal Counsel for McCormick Villages
Siskinds LLP 275 Dundas Street, Unit 1 London, ON N6B 3L1 Paula Lombardi 519.660.7878 paula.lombardi@siskinds.com

PARTIES

1. Approval Authority – City of London 315 King Street West Chatham, ON N7M 5K8

Legal Counsel for the City: Legal Services City of London 300 Dufferin Avenue London, ON N6B 1Z2
Aynsley Hovius, Solicitor 519.639.7408 ahovius@london.ca

PARTICIPANTS

1. None Identified

ATTACHMENT 2

Note: 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 the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and/or argument at the hearing.

ISSUES LIST

1. Does the proposed development have sufficient regard to the matters of provincial interest set out in section 2 of the Planning Act, including sections 2(h), (j), (p), and (r).

2. Are the adopted Zoning By-law Amendment “H18” (Maximum Height 18 m) restriction and Maximum Density of 125 units per hectare for Block 3:

   1. Consistent with the Provincial Policy Statement, including sections 1.0, 1.1.1, 1.1.2, 1.1.3, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.2.1, 1.4.3, 1.6.1, 1.7.1(e) and 2.6.1?
   2. In general conformity with London Plan policies 43_, 52_, 54_, 55_, 57_, 58_, 59_, 60_, 61_, 79_, 80_, 83_, 86_, 916_, 1058_, 1059_, and 1636_?
   3. In general conformity with McCormick Area Secondary Plan policies 20.8.1.3, 20.8.1.4, 20.8.2.2, 20.8.2.3,20.8.2.4, 20.8.3.4, 20.8.4.6, and 20.8.5.2?
   4. Appropriate taking into account any potential impacts on the adjacent properties?

3. Does the proposed public walkway corridors constitute “land conveyed or dedicated for parkland” as described in the Planning Act, including section 51.1?

4. Does Section 51(25(c)) of the Planning Act authorize the City of London to impose a condition requiring the transfer of lands solely for use in the realignment of Ashland Avenue?

5. Does the proposed development represent good planning?

ATTACHMENT 3: ORDER OF EVIDENCE

1. Appellant, McCormick Villages Inc.
2. Approval Authority, City of London
3. Appellant, McCormick Villages Inc. Reply Only

ATTACHMENT 4: SUMMARY OF DATES

DATE

EVENT

Friday, November 10, 2023

Exchange of witness lists (names, disciplines, and order to be called)

Friday, November 24, 2023

Experts meeting prior to this date

Friday, December 6, 2023

Agreed Statement of Facts

Participant Statements – Not applicable

Friday, December 22, 2023

Exchange of Witness Statements, summoned witness outlines, and Expert Reports

Wednesday, December 20, 2023

Confirmation of Hearing Dates Required

Friday, January 12, 2024

Exchange of Reply Statements

Friday, January 12, 2024

Exchange of Visual Evidence (if any)

Friday, June 7, 2024

Finalize Joint Document Book

Monday, June 10, 2024

Final Hearing Plan filed with the Tribunal

Tuesday, June 18, 2024

Hearing commences

ATTACHMENT 5

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 authorisation 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.