Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 19, 2024

CASE NO(S).: OLT-23-001205

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

Appellant: Bradley & Company Inc.

Subject: Application to amend the Zoning By-law – Appeal of passing of Zoning By-law

Description: To permit a new residential building comprised of twelve stacked townhouse units

Reference Number: ZBA 02-23

Property Address: 1060 Queens Bush Road

Municipality/UT: Wellesley

OLT Case No.: OLT-23-001205

OLT Case Name: Bradley & Company Inc. v. Wellesley (Twp.)

Heard: February 16, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Bradley and Company Inc. (“Appellant”)	Eric Davis
Township of Wellesley (“Town”)	Steven O’Melia

MEMORANDUM OF ORAL DECISION DELIVERED BY A. SAUVE ON FEBRUARY 16, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference on this matter. The Appellant is seeking a Zoning By-Law Amendment (“ZBA”) from Urban Residential (UR) to Urban Residential 2 (UR2), with site-specific exceptions. The effect of the application is to redevelop the subject property with a new residential building comprised of twelve stacked Townhouse units.

2The subject property is municipally known as 1060 Queens Bush Road. The property is located on the southeast corner of the intersection of Queens Bush Road and Village Road and has a lot area of 1,848 square metres, with a frontage of 38.44 metres and a depth of 45.37 metres. The subject property is currently developed with a single detached, one-storey dwelling, a detached two-car garage, and a small shed.

3Abutting the property to the east is an undeveloped Lot containing a Bell Utility Service structure. To the north, Wellesley Public School is located on the opposite side of Queens Bush Road. The remaining surrounding area is developed with low-rise residential dwellings on mainly single-detached lots.

4The appellant initially submitted an appeal of the ZBA application on November 17, 2023, pursuant to subsection 34(11) of the Planning Act (“Act”). The Council subsequently issued a Notice of Decision on November 29, 2023. Following this, the appellant submitted a second appeal of the same ZBA application on December 5, 2023, pursuant to subsection 34(19) of the Act. Ontario Land Tribunal staff adjusted the original appeal for this matter from s. 34(11) to s. 34(19).

5The Affidavit of Service of Timothy Van Hinte is marked Exhibit 1.

NEXT STEPS

6The Parties were advised of the availability of Tribunal led mediation and will continue discussions. The Parties were also advised that if a resolution is found, they should contact the Case Coordinator and request a Settlement Hearing.

7No Party Status requests or Participant Status requests were submitted to the Tribunal, and no one attended the CMC to make such a request.

8The Parties came prepared with an agenda that they wanted to accomplish at the CMC; inquire about the two appeals submitted to the Tribunal and which were before the Tribunal, inquire about the return of one of the appeal fees paid by the Appellant to the Tribunal and set Hearing dates.

9After speaking with the Parties, it was found that a second appeal was not created and instead, the first appeal was amended to reflect a change from an appeal under s. 34(11) to s. 34(19). No second appeal was created.

10Counsel for the Appellant asked for the section number the appeal falls under to be s. 34(11), the appeal of a non-decision. Counsel for the Town believed that Tribunal staff was correct to change the section number to s. 34(19), appeal of a decision.

11The Tribunal finds that Tribunal staff was correct to amend the appeal to show it under s. 34(19). While the original appeal was correct at the time of filing, when the Town council did make a decision, the appeal would then need to be brought under s. 34(19). Once counsel makes a decision, the appeal must be an appeal of that decision.

12After speaking with Tribunal staff, the Tribunal advised the Appellant to contact the Case Coordinator concerning a refund of one of the appeal fees.

13The Parties have submitted a draft Procedural Order (“PO”). Attached as Schedule 1 to this Decision is the PO, which has been reviewed and is now approved by the Tribunal.

14The Tribunal hereby schedules a three-day Merit Hearing of these appeals commencing on Wednesday, October 2, 2024 at 10 a.m. and concluding on or before Friday, October 4, 2024.

15On that date, Parties and Participants 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.

16The Merit Hearing is scheduled to proceed by Video Hearing as follows:

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

Access code: 979-388-733

17Persons 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.

18Parties and 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 GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

19Individuals 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 Hearing by video 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

20THE TRIBUNAL ORDERS that the dates and particulars of the Merit Hearing are as set out above.

21The Member is not seized but may be spoken to through the Case Coordinator should any issues arise.

22No further notice will be given.

“A. Sauve”

A. SAUVE 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.

SCHEDULE 1

ONTARIO LAND TRIBUNAL

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

Appellant: Bradley & Company Inc.

Subject: Application to amend the Zoning By-law – Appeal of passing of Zoning By-law

Description: To permit a new residential building comprised of 12 stacked townhouse units.

Reference Number: ZBA 02-23

Property Address: 1060 Queens Bush Road

Municipality/UT: Wellesley

OLT Case No.: OLT-23-001205

OLT Case Name: Bradley & Company Inc. v. Wellesley (Twp.)

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 October 2, 2024, at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is three (3) 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 Attachment 4 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 10, 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 Monday, June 21, 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, August 2, 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, August 9, 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, August 9, 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 Monday, September 9, 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 by Monday, September 9, 2024, after the evidence is received 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 Monday, September 16, 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, September 23, 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
Monday, June 10, 2024	Exchange List of Proposed Witnesses (Para. 9)
Monday, June 21, 2024	Deadline for Expert Witness Meeting (Para. 10)
Friday, August 2, 2024	Deadline for Statement of Agreed Facts and Issues (para. 10)
Friday, August 9, 2024	Deadline for Witness Statements, Expert Witness Statements and Participant Statements (paras. 13 and 14)
Monday, August 26, 2024	Deadline for advising the Tribunal if all the reserved hearing dates are required (para. 15)
Monday, September 9, 2024	Deadline for Visual Evidence (para. 16)
Monday, September 9, 2024	Deadline for Reply Witness Statements and Reply Expert Witness Statements (para. 17)
Monday, September 16, 2024	Deadline for Joint Document Book (para. 18)
Monday, September 23, 2024	Deadline for Hearing Plan (para. 21)
Wednesday, October 2, 2024	Hearing begins

ATTACHMENT 1

LIST OF PARTIES

1. Bradley & Company Inc. SV Law 245 Hanlon Creek Boulevard, Unit 102 Guelph, ON N1C 0A1 Eric Davis Email: edavis@svlaw.ca Tel: 519.837.2100 ext. 304

2. Township of Wellesley Miller Thomson LLP 115 King Street South Suite 300 Waterloo, ON N2J 5A3 Steven O’Melia Email: somelia@millerthomson.com Tel: 519.593.3289 Thomas Sanderson Email: tsanderson@millerthomson.com Tel.: 519.593.2432

LIST OF PARTICIPANTS

None.

ATTACHMENT 2

ISSUES LIST

PLEASE 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 appeal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the appeal will be a matter of evidence and argument at the hearing or the subject of a motion prior to the hearing.

1. Did the Council of the Township of Wellesley have regard for section 2 of the Planning Act in relation to Township of Wellesley Zoning By-law No. 34/2023 (the “ZBA”)?

2. Is the Applicant/Appellant’s zoning by-law amendment application in relation to the property subject to this appeal preferable to the ZBA, from a land use planning perspective, when considering:

   1. the Provincial Policy Statement, 2020, specifically policies 1.1, 1.1.3, 1.4, 1.6.6.2, 1.6.6.7 and 1.6.7.4?
   2. the Growth Plan for the Greater Golden Horseshoe, 2020, specifically policies 1.2.1 and 2.2.2?
   3. the Region of Waterloo Official Plan, specifically policies 2.B.5, 2.C. 2. D.1 and 2.E.1?
   4. the Township of Wellesley Official Plan, specifically policies 2.1, 2.7.1.1, 2.7.1.2 and 2.7.2?
   5. the availability of public transit?

3. Is the ZBA consistent with the Provincial Policy Statement, 2020, specifically policies 1.1, 1.1.3, 1.4, 1.6.6.2, 1.6.6.7 and 1.6.7.4?

4. Does the ZBA conform to, or conflict with:

   1. the Growth Plan for the Greater Golden Horseshoe, 2020, specifically policies 1.2.1 and 2.2.2?
   2. the Region of Waterloo Official Plan, specifically policies 2.B.5, 2.C. 2. D.1 and 2.E.1?
   3. the Township of Wellesley Official Plan, specifically policies 2.1, 2.7.1.1, 2.7.1.2 and 2.7.2?

5. Does the ZBA appropriately address the comments received through the technical review, as outlined within Section 3 of Township of Wellesley Staff Report No. P&D 10/2023 prepared September 27, 2023?

6. Does the ZBA appropriately address the comments received through the public consultation as outlined within Section 4 of Township of Wellesley Staff Report No. P&D 10/2023 prepared September 27, 2023?

7. Does the ZBA appropriately address the development implications (e.g. the creation of additional parcels, size of buildings, setbacks, parking, access, servicing, etc.) of implementing the Urban Residential Two (UR2) permitted land uses and regulations?

8. Does the ZBA constitute good land use planning and does it enable the creation of more housing?

Note: The additions to the issues list added by the Township are set out in bold font above at the appellant’s request.

ATTACHMENT 3

ORDER OF EVIDENCE

1. Bradley & Company Inc.
2. Township of Wellesley
3. Bradley & Company Inc., in Reply, if any

ATTACHMENT 4

PURPOSE OF PROCEDURAL ORDER

Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the Case Management Conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

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.