Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 19, 2024
CASE NO(S).: OLT-23-001206
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Legion Heights Hespeler Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit 5 mixed-use, high-rise buildings with a maximum of 1,366 dwelling units, and approximately 9,200 sq. m. of office and commercial space.
Reference Number: OR06/22
Property Address: 506-510 Hespeler Road, 516 Hespeler Road and 1000 Langs Drive
Municipality/UT: Cambridge/Waterloo
OLT Case No.: OLT-23-001206
OLT Lead Case No.: OLT-23-001206
OLT Case Name: Legion Heights Hespeler Inc. v. Cambridge (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Legion Heights Hespeler Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit 5 mixed-use, high-rise buildings with a maximum of 1,366 dwelling units, and approximately 9,200 sq. m. of office and commercial.
Reference Number: OR06/22
Property Address: 506-510 Hespeler Road, 516 Hespeler Road and 1000 Langs Drive
Municipality/UT: Cambridge/Waterloo
OLT Case No.: OLT-23-001207
OLT Lead Case No.: OLT-23-001206
OLT Case Name: Legion Heights Hespeler Inc. v. Cambridge (City)
Heard: March 14, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Legion Heights Hespeler Road Inc. (“Applicant”) | Ira Kagan, Sarah Kagan, Doug Pateman |
| City of Cambridge (“City”) | Raj Kehar, Nicole Auty |
| The Regional Municipality of Waterloo | Fiona McRae |
| Air Liquide Canada Inc. | Calvin Lantz, Donya Yarahmadi, Jonathan Cheng in absentia |
MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS ON MARCH 14, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant seeks to develop a site known municipally as 506-510 and 516 Hespeler Road and 1000 Langs Drive in the City (“Subject Property”) to construct five 20-storey mixed-use high-rise buildings with approximately 1366 residential units.
2The Applicant had filed an application for an official plan amendment and an application for a zoning by-law amendment. The appeals are brought pursuant to sections 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P. 13 given the City’s failure to decide the applications within the prescribed time.
3On March 14, 2024, the Tribunal held its first Case Management Conference (“CMC”) to organize the appeals, address status requests and establish next steps in this proceeding.
NOTICE
4There were no issues raised with service of Notice of the CMC and, as such, no further notice is required. The Tribunal was in receipt of the Affidavit of Service of Notice of the CMC affirmed on 26 February 2024, which was marked as Exhibit 1 to this CMC.
STATUS REQUEST
5The Tribunal received two written requests for Party Status from: (1) the Regional Municipality of Waterloo (“Waterloo”), the upper tier municipality; and (2) Air Liquide Canada Inc. (“ALC”). ALC operates a large industrial gas filing and warehousing operation immediately west of the Subject Property. ALC has concerns with respect to compatibility and land use conflict.
6Neither the Applicant nor the City objected to adding Waterloo as a Party. Accordingly, the Tribunal directed that the Regional Municipality of Waterloo be added as a Party.
7With respect to ALC’s request, Counsel for the City indicated that it had no concerns and Waterloo took no position. On the other hand, the Applicant did not consent and advocated that the Tribunal should link ALC’s Party Status to certain matters of disclosure. Counsel for the Applicant submitted that the Tribunal should defer the issue of ALC’s Party status to a time when the Applicant could present a Motion on the matter of disclosure. In the alternative, Mr. Kagan argued that if the Tribunal were to grant Party status to ALC, this should be on a “without prejudice” basis, which could be revisited at a later stage if ACL did not co-operate on certain discovery issues including allowing the Applicant access to (a) the ACL property to conduct noise compatibility studies; and (b) to technical modelling, which might be proprietary, concerning safety issues related to gas explosions. Mr. Lantz, Counsel for ALC, advanced that the matter of Party Status and disclosure should not be merged as they are separate questions.
8The Tribunal concluded that ALC’s Party status and the issues of disclosure were to be dealt with separately. Accordingly, the Tribunal directed that Air Liquide Canada Inc. be granted Party status.
9On the issue of disclosure, Mr. Kagan correctly pointed out that it would be particularly challenging to finalize a Procedural Order, especially the finalizing of the Issues List, without clarity as to ALC’s cooperation on issues of disclosure. Both the City and Waterloo agreed with this position. The Tribunal noted that ALC might very well have control over significant data, expert analysis and information that would be a gateway to subsequent steps in the proceeding, including securing instructions from the City and Waterloo on these appeals. The Tribunal also agreed with Mr. Kahar that a Party is expected to participate in a proceeding before the Tribunal so that a probative record can be developed to assist the Tribunal with its deliberations. The Tribunal also noted that there may be consequences in the case of an uncooperative Party. As noted below, the matter of disclosure may be considered at the second CMC if the Parties are unable to resolve the matter through mutual consent.
10The Tribunal received no requests for Participant status.
OPPORTUNITIES FOR SETTLEMENT
11Counsel for the Parties advised that there have been almost no settlement or mediation discussions at this stage. They are, however, well acquainted with the Tribunal’s practices in this regard.
NEXT STEPS
12A draft Procedural Order was not provided to the Tribunal prior to the CMC. The Tribunal was not disposed to set down a Merit Hearing (expected to last approximately 20 days) without further clarity on the Issues List.
13The Parties indicated that a further CMC would be warranted in the circumstances. The Tribunal directed the Parties to work cooperatively to finalize the draft Procedural Order, which is to be filed with the Tribunal before the next CMC. However, the Tribunal acknowledged that the issue or issues of disclosure may have to be settled as a preliminary matter if the Parties cannot come to a cooperative solution. In such a scenario, the matters could be argued, by way of Motion or otherwise, at the second CMC.
14The Tribunal canvassed Counsel for all Parties concerning their availabilities and directed that a second CMC be held at 10 a.m. on Monday, May 27, 2024, by video hearing.
15Parties are asked to log in to the CMC at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/687587165
Access code: 687-587-165
16Parties 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.
17Individuals who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is 687-587-165.
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 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
19THE TRIBUNAL ORDERS its directions in this Decision.
“Jean-Pierre Blais”
JEAN-PIERRE BLAIS
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.