Caivan (Richmond South) Limited v. Ottawa (City), 2024 CanLII 19644

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 7, 2024

CASE NO.: OLT-23-001194

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

Applicant/Appellant: Caivan (Richmond South) Limited

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: Draft Plan of Subdivision to create 554 units comprised of a mix of ground-oriented detached and townhouse dwellings

Reference Number: D07-16-20-0016 D07-16-21-0011

Property Address: 6305 Ottawa Street W

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-23-001194

OLT Case Name: Caivan (Richmond South) Limited v. Ottawa (City)

BEFORE:

SCOTT TOUSAW

VICE-CHAIR

Thursday, the 7th day of March, 2024

THE TRIBUNAL ORDERS the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on October 1, 2024. The Tribunal has set aside 9 days for the hearing.

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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.

ISSUE DATE: CASE NO(S).: OLT-23-001194

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

Applicant/Appellant: Caivan (Richmond South) Limited

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: Draft Plan of Subdivision to create 554 units comprised of a mix of ground-oriented detached and townhouse dwellings

Reference Number: D07-16-20-0016 D07-16-21-0011

Property Address: 6305 Ottawa Street W

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-23-001194

OLT Case Name: Caivan (Richmond South) Limited v. Ottawa (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 video hearing will begin on Tuesday, October 1, 2024 at 10:00 a.m. through the following video link and telephone numbers:

GoToMeeting: https://global.gotomeeting.com/join/687587165

Access Code: 687-587-165

Audio-only telephone line: 1-888-299-1889 or +1 (647) 497-9373

Audio only access Code: 687-587-165

3. The parties’ initial estimation for the length of the hearing is nine (9) 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 Monday, June 24, 2024 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, August 2, 2024 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 Friday, September 13, 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, July 26, 2024, 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, July 26, 2024, 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 Monday, August 26, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, September 6, 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, September 6, 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, September 13, 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 Friday, September 20, 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Summary of Dates

DATE

EVENT

June 24, 2024

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

July 26, 2024

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

August 2, 2024

Experts meeting

August 26, 2024

Date to let Tribunal know if all hearing dates are required

September 6, 2024

Exchange of Reply Witness Statements (if any) and Visual Evidence

September 13, 2024

Agreed Statement of Facts and Joint Document Book

September 20, 2024

Hearing Plan filed with the Tribunal

October 1, 2024

Hearing commences

Attachment 1

List of Parties and Participants

Parties:

Caivan (Richmond South) Limited

Aird & Berlis LLP

Brookfield Place, 181 Bay Street, Suite 1800

Toronto ON M5J 2T9

Patrick Harrington

Tel: 416.865.3424

Email: pharrington@airdberlis.com

Brendan O’Callaghan

Tel: 647.426.2832

Email: bocallaghan@airdberlis.com

City of Ottawa

City of Ottawa

3rd Flr., Legal Services

110 Laurier Ave. W.

Ottawa, ON K1P 1J1

Timothy Marc

Tel: 613.580.2424, ext: 21444

Email: timothy.marc@ottawa.ca

Mattamy (Jock River) Limited

Davies Howe LLP

The Tenth Floor

425 Adelaide Street West

Toronto, ON M5V 3C1

Robert Miller

Tel: 416.263.4508

Email: bobm@davieshowe.com

Mark Flowers

Tel: 416.263.4513

Email: markf@davieshowe.com

Grace O’Brien

Tel: 416.263.4507

Email: graceo@davieshowe.com

Attachment 2

Issues List

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.

Caivan (Richmond South) Limited

Planning Issues

1. Does the application have appropriate regard for matters of provincial interest as enumerated in section 2 of the Planning Act?

Draft Plan of Subdivision Issues

2. Does the proposed draft plan of subdivision have appropriate regard for the matters and criteria to be addressed pursuant to s. 51(24) of the Planning Act?

Overall

3. Would the approval of the application constitute good planning in the greater public interest?

City of Ottawa

Stormwater

1. Is the proposed development by the applicant consistent with the Provincial Policy Statement, in particular:

1.6.1

1.6.6.1

1.6.6.7

2.2.1

2. Does the proposed development by the applicant conform to the 2022 primary official plan, in particular:

2.2.3.2

2.2.3.6

2.2.3.7

4.7.1.1

4.7.1.5c0

4.7.1 (policies 1-7, 9-11 and 16)

3. Does the proposed development by the applicant conform to the 2022 Richmond secondary plan, in particular:

Section 3(1)

Section 3.3(41)

4. Does the proposed development have appropriate regard for the Richmond Community Design Plan, in particular:

Section 7.6

5. Does the proposed development have appropriate regard for matters of Provincial Interest in section 2 of the Planning Act, in particular:

(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems

(h) the orderly development of safe and healthy communities

(l) the protection of the financial and economic well-being of the Province and its municipalities

(o) the protection of public health and safety

6. Does the proposed development by the applicant have appropriate regard for the City approved Master Drainage Plan, in particular:

Section 4.1.1

Section 4.1.3

Section 4.2.2

Section 7.0

Section 7.2

Section 7.3

7. Does the proposed alternative design include reliable, robust quality control that uses known treatment systems and has opportunity to be maintained.

Density

8. Is the proposed development by the applicant consistent with the Provincial Policy Statement, in particular:

1.1.1(b)

1.1.2

1.4.1

1.4.3(b)(c)(d)

9. Does the proposed development by the applicant conform to the 2022 primary official plan, in particular:

Section 2.2.4(1)

Section 3.4(1)

Section 3.4(3)

Section 5.5.1(1)(a)

Section 9.4.1

10. Does the proposed development by the applicant conform to the 2022 Richmond secondary official plan, in particular:

Section 3.3(28)

Section 3.3(29)

Section 3.3(38)

Section 3.3(40)

11. Does the proposed development have appropriate regard for the Richmond Community Design Plan, in particular:

Section 4.3.4(1)

12. Does the proposed development have appropriate regard for matters of Provincial Interest in section 2 of the Planning Act, in particular:

(h) the orderly development of safe and healthy communities

(j) the adequate provision of a full range of housing, including affordable housing

Right-of-Way Width

13. Does the proposed development by the applicant conform to the 2022 primary official plan, in particular:

Schedule C16, Table 1

Section 2.2.4(1)

Section 2.2.4(2)

Section 4.1.7(2)

Section 4.1.7(4)

Section 5.5.2(1)(c)

14. Does the proposed development by the applicant conform to the 2022 Richmond secondary official plan, in particular:

Section 2(4)

15. Does the proposed development have appropriate regard for the Richmond Community Design Plan, in particular:

Section 3.4(11)

16. Does the proposed development have appropriate regard for matters of Provincial Interest in section 2 of the Planning Act, in particular:

(h) the orderly development of safe and healthy communities

Maintenance of Woodlot

17. Is the proposed development by the applicant consistent with the Provincial Policy Statement, in particular:

1.1.1(g)

2.1.1

18. Does the proposed development by the applicant conform to the 2022 primary official plan, in particular:

Section 4.8(2)

Section 4.8(3)

Section 4.8(4)

19. Does the proposed development by the applicant conform to the 2022 Richmond secondary official plan, in particular:

Section 4(1)

20. Does the proposed development have appropriate regard for the Richmond Community Design Plan, in particular:

Section 3.3(f)

Section 3.3(g)

Section 7.6

21. Does the proposed development have appropriate regard for matters of Provincial Interest in section 2 of the Planning Act, in particular:

(a) the protections of ecological systems, including natural areas, features and functions.

(h) the orderly development of safe and healthy communities

22. Does the proposed development by the applicant have appropriate regard for the City approved Environmental Master Plan.

Attachment 3

Order of Evidence

Caivan (Richmond South) Limited

City of Ottawa

Caivan (Richmond South) Limited in Reply

Attachment to Sample Procedural Order

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.

61. 56021181.2