Erskine v London (city), 2024 CanLII 19738

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 07, 2024

CASE NO(S).: OLT-23-001180 OLT-23-001181

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

Appellant: Dawn Erskine Subject: Proposed Official Plan Amendment Description: To permit two apartment buildings of forty-three storeys and fifty-three storeys (186m) with a four-storey podium Reference Number: OZ-9622 / C.P.-1512(ck)-288 Property Address: Various Addresses (50 King Street and 399 Ridout Street) Municipality/UT: London/Middlesex OLT Case No: OLT-23-001180 OLT Lead Case No: OLT-23-001180 OLT Case Name: Erskine v London (city)

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

Subject: Zoning By-law Amendment Description: To permit two apartment buildings of forty-three storeys and fifty-three storeys (186m) with a four-storey podium Reference Number: OZ-9622 / Z-1-233148 Property Address: Various Addresses (50 King Street and 399 Ridout Street) Municipality/UT: London/Middlesex OLT Case No: OLT-23-001181 OLT Lead Case No: OLT-23-001180

Heard: February 20, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Agent*
50 King Steet London Limited and 399 Rideout Street London Limited (“Applicant”)	Patrick Harrington Jasmine Fraser
Dawn Erskine (“Appellant”)	Self-Represented*
City of London (“City”)	Christina McCreery Aynsley Hovius (in absentia)

DECISION DELIVERED BY J. INNIS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision dismisses the Appellant’s appeals to an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”), pursuant to s.17(45) and s. 34(25) of the Planning Act (“Act”), and results in the OPA and ZBA coming into force.

2The OPA and ZBA permit the development of a mixed-use building with residential and commercial uses while retaining the existing courthouse on lands known municipally as 50 King Street and 399 Ridout Street, London (“Site”). The development would permit two high-rise towers, one at forty-three storeys and the other at fifty-three storeys, that would contain 800 units, with a shared podium of three to four storeys in height connecting the two towers. There would be 2,865 square metres (“m²”) of retail space at grade, and 10,920 m² of office space on levels two through four. A total of 550 underground parking spaces are proposed, along with a vehicle entry court that provides access to the drop-off and loading areas under the podium bridge, along with outdoor amenity space that includes a plaza with landscaped areas and rooftop terraces.

SERVICE OF NOTICE AND REQUESTS FOR STATUS

3There is no issue with the service of the Notice of this Case Management Conference (“CMC”), and so no further notice is required. The Tribunal is in receipt of the Affidavit of Service, which is marked as Exhibit 1.

4The Tribunal received a Notice of Motion to dismiss the appeals without a hearing in accordance with Rule 10 of the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”), and it was determined that the Motion Hearing would be heard at the CMC.

5The Tribunal received a Participant Status request from Ms. Anne Papmehl and a request for Party Status from Mr. James Donnelly, who is a neighbour to the Site. Both requests were supported by the Appellant.

6The Applicant and the City opposed the requests for status stating that their status should not be determined in advance of the outcome of the motion.

7In accordance with Rule 8.3, the Tribunal explained that Mr. Donnelly would be a non-appellant Party that must shelter under the issues raised by the Appellant and therefore, the validity of the appeal must be determined first to ascertain whether there is an appeal under which a Party may shelter.

8As this written decision dismisses the appeal, no further consideration of Mr. Donnelly’s or Ms. Papmehl’s request for status will occur.

LEGISLATION

9The Planning Act (“Act”) and the Ontario Land Tribunal Act (“OLTA”) establish criteria for the consideration of dismissing an appeal without a full hearing on the merits. When making a decision under the Act, the Tribunal “shall have regard to matters of provincial interest” (s. 2) and “shall have regard to” decisions of the City Council related to this planning matter and the information it considered when making its decisions [s.2.1(1)].

10On a motion to dismiss an appeal of an OPA under s. 17(45) of the Act (emphasis added):

17(45) the Tribunal may … dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

ii. the appeal is not made in good faith or is frivolous or vexatious.

3. The appellant intends to argue a matter mentioned in subsection (25.1) or (37.1) but has not provided the explanations required by that subsection.

11Subsection 3 above refers to s. 17(25.1) of the Act:

(25.1) If the appellant intends to argue that the appealed decision is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or, in the case of the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality’s official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

12On a motion to dismiss an appeal of a ZBA under s. 34(25) of the Act:

(25) … the Tribunal may … dismiss all or part of an appeal without holding a hearing if any of the following apply:

2. The Tribunal is of the opinion that,

iii. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

iv. the appeal is not made in good faith or is frivolous or vexatious.

3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

13Subsection 3 above refers to s. 34(19.0.1) of the Act:

(19.0.1) If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document.

14Under the OLTA s. 19(1):

19(1) the Tribunal may … dismiss a proceeding without a hearing,

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;

15As authorized by the Statutory Powers Procedure Act (“SPPA”) s. 4.6(1), the Tribunal’s Rules address the requirements for the proceeding and the time within which the submissions must be made in Rule 10.

10.6 A responding party shall serve a notice of response that:

(a) states the response to be made, including a reference to any statutory provision or Rule to be relied on;

(b) list the documentary evidence to be used at the hearing of the motion; and

(c) includes an affidavit setting out a brief and clear statement of the facts upon which the responding party will rely.

10.7 The notice of response to motion and all supporting material as set out in Rule

10.6 shall be served no later than 7 days before the date of the motion to be held…An affidavit of service shall be filed with the Tribunal prior to or at the hearing of the motion.

16In light of the aforementioned provisions and the relevant Court and Tribunal Decisions addressed by the Applicant, the Tribunal accepts that only one of the several grounds set out in the Act and OLTA must be satisfied to warrant dismissing an appeal.

17With reference to Toronto (City) v. East Beach Community Association [1996] O.M.B.D. No. 1890, 42 O.M.B.R. 505 (“East Beach”), the Tribunal accepts as follows:

The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case. (para. 9)

18The Appellant must respond to a motion to dismiss by adequately demonstrating that there are “genuine, legitimate, and authentic planning reasons” warranting a hearing on the merits.

CONTEXT

19Supported by the City, the Applicant filed the Affidavit of Mr. Scott Allen, a Registered Professional Planner with the Ontario Professional Planners Institute and a Member of the Canadian Institute of Planners, with over 20 years of experience. The Tribunal qualified Mr. Allen to provide opinion evidence in the field of land use planning. Numerous reports and studies to support the development applications were attached to Mr. Allen’s Affidavit, including a Planning and Design Report, Heritage Impact Assessment (“HIA”), Stage 1-2 Archaeological Assessment, Tree Preservation Plan, Transportation Impact Assessment (“TIA”), Noise Impact Study, Pedestrian Wind Comfort Assessment, and Preliminary Water Servicing Brief.

20The Site is approximately 0.801 hectares comprising the entirety of 50 King Street and the south portion of 300 Ridout Street North, located at the northwest corner of the intersection of King Street and Ridout Street North. The Site has been cleared for development and previously contained a three-storey office building and surface parking. The Site forms part of the Central London planning area in the City’s downtown core, which encompasses a diverse mix of intensive land uses, including residential, office, retail, service commercial, government, recreation, entertainment, and cultural facilities. The Site is in proximity to other high-rise developments, as there are two towers on the south side of the Site and a multi-tower development located at the southeast corner of the intersection of King Street and Ridout Street.

21Under Part V of the Ontario Heritage Act (“OHA”), the Site is designated as part of the Downtown Heritage Conservation District, and the property of 399 Ridout Street North is individually designated under Part IV of the OHA, is subject to heritage easements, and is recognized as a National Historic Site. The easement applies to the existing courthouse located on the north portion of this property, and the lands directly surrounding the building.

22With the Site located in the downtown, it has access to major civic attractions such as the Budweiser Gardens, the Grand Theatre, Victoria Park, and Museum London, with existing transit connections and active transportation routes.

23The Site is zoned as a Community Facility/Downtown Area (CF1/DA2D350H15) Zone and holds a Downtown Area Bonus (h-3h-5h-18h-149h-207DA1D350H15B-36) Zone. The Bonus Zone (B-36) applies to the 50 King Street Property as per s. 4.34 of the Zoning By-law and permits a maximum building height of 95 m (twenty-eight storeys) and a residential density of 750 units per hectare subject to application housing criteria, development regulations, and holding provisions.

24On October 17, 2023, City Council adopted the OPA and ZBA to facilitate the redevelopment of the Site.

SUBMISSIONS

The Applicant and the City

25With the support of the City, the Applicant submits the following based on the affidavit of Mr. Allen.

26The concerns of the Appellant were considered through the public process for the OPA and ZBA. The issues can be characterized as “on various points unsupported and/or unsubstantiated (i.e., in the nature of speculation). Other grounds asserted were directly addressed during the processing of the development applications and/or will be addressed through requirements imposed by the City by way of zoning holds and/or through Site Plan Approval”.

27The Planning and Justification Report attached to Mr. Allen’s affidavit opines that the OPA and ZBA support downtown London and that they are consistent with the PPS and the London Plan and represent good planning.

28The Applicant provided the Heritage Plan, which consisted of a detailed HIA and was reviewed by City staff, who concluded that the application is consistent with the majority of Downtown London policies and addresses specific matters to be added at the site plan approval stage and implemented through holding provisions. Further, the consultation of Indigenous Peoples was addressed through the HIA, with a holding provision to be implemented through the Site Plan Approval process.

29The Affidavit of Mr. Allen included a TIA, and City staff’s conclusion was that the traffic generated by the proposed development can be accommodated by the study area’s roads and intersections. They completed their review of the TIA with no concerns relating to transportation.

30Evidence was provided by Mr. Allen that sanitary and storm water servicing reports were prepared and two holding provisions to the satisfaction of the City Engineer’s were attached to the ZBA. Similarly, a holding provision for water exists and will not be removed until such time as there is an acceptable water strategy and available capacity.

31Only guidelines and policies that have been through a public process and were adopted by Council are to be used in the determination by Council for development applications. No evidence to support the assertion that City staff are ill-equipped or qualified to process this application was provided, and the City supports the position that they have the necessary capacity.

32Although referencing that the appeal is frivolous and vexatious, that the Appellant does not reside in close proximity to the Site, and that the Appellant did not comply with the submission timelines of the Tribunal’s Rule 10, the Applicant focused on the need for the Appellant to disclose specific, apparent land use planning grounds upon which the Tribunal could allow all, or part, of the appeal.

33The Appellant indicated that she intends to call expert witnesses for a hearing of the merits; however, she did not file an affidavit in advance or during the hearing motion in accordance with Rules 10.6 and 10.7.

34The Applicant referenced paras. 11 and 17 of Hempel v. City of Owen Sound [2010] O.M.B.D. No. 162, 64 O.M.B.R. 482 (“Hempel”) that state the following (emphasis added):

(11) Where a challenge to the grounds of appeal is made under section 34(25)(a)(i), the Motion hearing is the opportunity for the appellant to bring forward additional material in support of the appeal. Ms. Hempel is unrepresented at this Motion hearing. While Ms. Hempel filed a response to the Motion, it did not meet the Board's standard requirements.

(17) Board decisions rest on evidence. For the Board to find that the appeal discloses apparent land use planning grounds upon which the Board could allow an appeal in whole or in part, the Board must be satisfied that the appeal holds the promise that sustainable evidence will be put before the Board to support the assertion. Doubts, questions, concern, and apprehensions — however well stated — do not rise to the standard of sustainable evidence.

Appellant

35The Appellant responds that the appeal is neither frivolous nor vexatious and that she has resided much of the time in a building near the Site for several years.

36The Appellant asserts that Mr. Allen’s affidavit is based on unsubstantiated opinions, along with a lack of “architectural or depth of staff experience needed to independently evaluate a project as large as this one,” and further that the City does not have the “proper tools in place to assess the development of this scale.”

37Beyond capacity concerns with City staff and a need for more external reviews by experts, these ‘tools’ would include a Tall Building Guideline, such as the Tall Building By-laws of Toronto, Kitchener, and Hamilton. This guideline or by-law would contain specificities for height, architecture, the size of base plates, wind effects and shadowing. The development proposal setback requirements are insufficient for wind impacts that would create a safety concern for pedestrians, and the shadow cast would be too large.

38The infrastructure required to support the proposed development has not been addressed sufficiently through this OPA and ZBA. The TIA was flawed and completed prior to COVID, and there are existing challenges with the flow of traffic. There are further concerns, including water, the sewer system capacity, and storm water management.

39The proposed development does not conform to the London Plan or the Zoning By-law in terms of density, height, and compatibility. Further, it does not conform to the Downtown Heritage Plan or the Downtown Plan.

40The Appellant stated that more information and evidence, including expert witnesses, would be provided for the hearing on the merits. It was the request of the Appellant that the motion be denied, as these issues warrant a full hearing on the merits.

ISSUES AND FINDINGS

41The Tribunal will grant the motion and dismiss the appeals.

42The Tribunal finds no indication that the Appellant was ‘frivolous or vexatious’ and accepts that the issues are of genuine concern to the Appellant.

43While the presentation of contrary evidence to the Applicant or the City’s experts is not mandatory, the absence of expert affidavit(s) from the Appellant leaves the Tribunal with little recourse for the Appellant. The Appellant articulated her concerns, including references to applicable legislative requirements and studies, but failed to provide anything more than personal opinions, doubts, and assumptions. With no affidavit containing a land use planning opinion by an expert, containing the land use planning grounds for the appeals, there is no ability for the Tribunal to deem that the appeals “constitute genuine, legitimate, and authentic planning reasons (Toronto v. East Beach Community Association [1996])”.

44Committing to present expert opinion evidence at a future hearing without providing an affidavit for the motion fails to meet the onus of the Appellant “to demonstrate through their conduct in pursing the appeal, including gathering of evidence to make their case, that issues raised in the Notice of Appeal justify a hearing” (Zellers Inc. v. Royal Cobourg Centres Ltd.). Further, it is “not sufficient for an appellant to raise a ‘triable issue’ or cite grounds for appeal that are ‘within the realm of land use planning concern’. For a matter to proceed to a full hearing, the Board finds that an appellant may not simply raise apprehension without demonstrating that there are legitimate land use planning concerns” (Hanover County Fair Plaza v. Hanover (Town).

45The Appellant is concerned that the proposed development does not conform with the London Plan, the Zoning By-laws, the Downtown London Plan, or the Downtown Heritage Plan, and that there was a lack of consultation with Indigenous Peoples. Further, the Appellant is concerned with the impacts the proposed development would have on traffic, water and sewer system capacity, and the effects of wind on pedestrian comfort/safety. However, the Applicant and the City confirm the contrary and have included the necessary holding provisions to address many of these concerns through the site plan process.

46Providing evidence from other municipality’s guidelines and by-laws carries no weight compared to those that have gone through a full public process and have been adopted by City Council. The evidence provided by the Applicant, and the City was unchallenged in any substantive way by the Appellant.

47Having determined that the appeals will be dismissed, the Tribunal considers the City supported affidavit from the Applicant, which maintains that the OPA and ZBA satisfy the requirements of the Act by having regard to matters of provincial interest, are consistent with the PPS, and conform to the OP, to be acceptable.

48In reaching this decision, the Tribunal has considered the decision of City Council and the information it considered in making its decisions.

49For the above-noted reasons, the Tribunal finds that the appeals: fail to disclose any land use planning grounds upon which the Tribunal could allow all or part of the appeals; fail to provide adequate explanations on how the OPA and ZBA are not consistent or do not conform with applicable policies in the PPS and OP; and fail to comply with the requirements of Rule 10, in particular, providing an affidavit(s).

ORDER

50The Tribunal Orders that:

1. The motion is granted;

2. The appeals are dismissed, pursuant to s. 17(45)1i, s.17(45)3, s. 34(25)1i and s. 34(25)3 of the Planning Act, s. 19(1)(c) of the Ontario Land Tribunal Act, and s. 4.6(c) of the Statutory Powers Procedures Act; and,

3. The City of London Official Plan Amendment 89 is in effect pursuant to s. 17(47) of the Planning Act, and Zoning By-law Amendment No. 233148 is deemed to have come into force on the day it was passed, pursuant to s. 34(30) of the Planning Act.

“J. innis”

j. inniS

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.