Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 10, 2024
CASE NO(S).: OLT-23-000524
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Ganni Properties Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a one-storey restaurant with drive-through service facility, and two retail/commercial units
Reference Number: POPA 2019-0007
Property Address: 16054,16060 and 16080 Airport Road
Municipality/UT: Town of Caledon
OLT Case No.: OLT-23-000524
OLT Lead Case No.: OLT-23-000524
OLT Case Name: Ganni Properties Inc. v. Caledon (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Ganni Properties Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a one-storey restaurant with drive-through service facility, and two retail/commercial units
Reference Number: R2 2019-0010
Property Address: 16054,16060 and 16080 Airport Road
Municipality/UT: Town of Caledon
OLT Case No.: OLT-23-000525
OLT Lead Case No.: OLT-23-000524
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Ganni Properties Inc.
Subject: Site Plan
Description: To permit a one-storey restaurant with drive-through service facility, and two retail/commercial units
Reference Number: SPA 2019-0066
Property Address: 16054,16060 and 16080 Airport Road
Municipality/UT: Town of Caledon
OLT Case No.: OLT-23-000526
OLT Lead Case No.: OLT-23-000524
Heard: March 8, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Ganni Properties Inc. (“Applicant/Appellant/Ganni”)
John Alati Narmada Gunawardana
Town of Caledon (“Town”)
Chantal deSereville Max Rubin
MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON March 8, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This is the second Case Management Conference (“CMC”) regarding a redevelopment proposal by Ganni Properties Inc. (“Ganni”) to the Town of Caledon which seeks to amend the Town’s Official Plan (“OPA”), Zoning By-law (“ZBA”) and get approval of a Site Plan application for the properties known as 16054, 16060 and 16068 Airport Road in the Town of Caledon. The Town failed to decide on any of the three applications within the period specified in the Planning Act, R.S.O. 1990, c. P. 13, as amended.
2The Appellant is proposing to demolish the existing structures and amend the Official Plan and Zoning By-law for the subject lands from Village Commercial (CV) to Village Commercial Site Specific Exception (CV-XX) and to amend the Town of Caledon Official Plan for the purpose and effect to permit a drive-thru Service Facility associated with a Restaurant (Tim Horton's).
3The first CMC resulted in eight Participant Status requests being granted and a second CMC being set to receive an update on a Heritage Demolition Permit application, Counsel for the Town to receive further direction from the Town Council and to have a draft Procedural Order (“PO”) prepared. The Tribunal also heard that it may receive a request to consolidate the Heritage Demolition matter with this case should the Town reject the application and the Appellant appeal their decision to the Tribunal.
MEDIATION
4The Parties are open to settlement discussions and feel that there is enough time before the hearing to engage. The Appellant indicated that it is premature until the Heritage Demolition Application has been dealt with by the Town.
HEARING PLANNING
5A Hearing of these appeals will commence on Monday, November 25, 2024, to Friday, December 6, 2024, by video at 10 a.m.
GoTo Meeting: https://meet.goto.com/370987861
Access Code: 370-987-861
6Parties 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.
7Persons 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 1-888-455-1389 or +1 (647) 497-9391. The Access Code is indicated above.
8Parties 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
9Individuals 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.
10The Tribunal received a first draft PO from the Appellant before this CMC and a complete draft following the CMC which was approved and included as Schedule 1.
11The Parties are directed to provide a written update to the Tribunal by Wednesday, July 31, 2024, regarding the Heritage Demolition Application and any potential impact the Town’s decision may have on this appeal as noted in paragraph [3] above.
ORDER
12THE TRIBUNAL ORDERS that a Hearing commence as set out in paragraph five and that the Procedural Order, attached as Schedule 1 to this Order, is approved and in full effect.
“Gregory J. Ingram”
GREGORY J. INGRAM
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
CASE NO(S).: OLT-23-000524
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Ganni Properties Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a one-storey restaurant with drive-through service facility, and two retail/commercial units
Reference Number: POPA 2019-0007
Property Address: 16054,16060 and 16080 Airport Road
Municipality/UT: Town of Caledon
OLT Case No.: OLT-23-000524
OLT Lead Case No.: OLT-23-000524
OLT Case Name: Ganni Properties Inc. v. Caledon (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Ganni Properties Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a one-storey restaurant with drive-through service facility, and two retail/commercial units
Reference Number: R2 2019-0010
Property Address: 16054,16060 and 16080 Airport Road
Municipality/UT: Town of Caledon
OLT Case No.: OLT-23-000525
OLT Lead Case No.: OLT-23-000524
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Ganni Properties Inc.
Subject: Site Plan
Description: To permit a one-storey restaurant with drive-through service facility, and two retail/commercial units
Reference Number: SPA 2019-0066
Property Address: 16054,16060 and 16080 Airport Road
Municipality/UT: Town of Caledon
OLT Case No.: OLT-23-000526
OLT Lead Case No.: OLT-23-000524
PROCEDURAL ORDER
- 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
- The video hearing will begin on November 25, 2024, at 10:00 a.m. by video.
(a) the parties will provide a written update to the Tribunal by July 31, 2024, to update on the status of the heritage designation by-law and its appeal or pending intended appeal.
The parties’ initial estimation for the length of the hearing is 10 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.
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).
The preliminary issues are set out in the Final Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, except for issues regarding the Heritage matters as noted below, and a party who asks for changes may have costs awarded against it.
(a) The Applicant shall submit to the Tribunal and the Town an Issues List related to the Heritage Matter by July 21, 2024, subject to the Town passing a by-law designating 16054 and 16060 Airport Road by this time.
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.
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.
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
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 Tuesday, August 27, 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.
Expert witnesses in the same field shall have a meeting on or before Wednesday, September 11, 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 Monday, September 23, 2024.
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.
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.
On or before Tuesday, October 1, 2024, the parties shall provide copies of their witness and/or expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before Tuesday, October 1, 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.
On or before Friday, October 11, 2024, parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 22 below.
On or before Monday, October 28, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Monday, October 28, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Tuesday, November 5, 2024.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, November 15, 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.
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.
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.
Summary of Dates
Date
Event
Tuesday, August 27, 2024
Parties to exchange lists of witnesses (names, disciplines and intended order to be called)
Wednesday, September 11, 2024
Expert witnesses in the same field shall have a meeting
Monday, September 23, 2024
Parties must prepare and file a Statement of Agreed Facts and Issues
Tuesday, October 1, 2024
Witness Statements and Participant Statements to be exchanged
Friday, October 11, 2024
Reply Witness Statements and the reply to written evidence of witnesses (if any) to be exchanged
Monday, October 28, 2024
Parties to advise Tribunal whether all the Hearing days are required
Monday, October 28, 2024
Visual Evidence to be exchanged
Tuesday, November 5, 2024
Joint Document Book to be filed
Friday, November 15, 2024
Draft Hearing Plan to be filed
Monday, November 25, 2024
Hearing commences
Attachment 1
List of Parties and Participants
Parties
- Ganni Properties Inc.
John Alati and Narmada Gunawardana Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, ON M5V 3C1 Email: johna@davieshowe.com / narmadag@davieshowe.com Tel: 416-977-7088
- Town of Caledon
Chantal deSereville WeirFoulds LLP 66 Wellington Street West, Suite 4100 P.O. Box 35, TD Bank Tower Toronto, ON M5K 1B7 Email: cdesereville@weirfoulds.com Tel: 416-941-5901
Participants
Joanna Valeriani 4jvaleriani@gmail.com
Geraldine (Gerry) Merkley Gerry.merkley@sympatico.ca
Scott Besco Scott.besco@gmail.com
Carolyn Vallejo Carolynvallejo50@gmail.com
Sandra Scavone sandra.scavone@hotmail.com
Magdalena Denenberg mdenenberg@gmail.com
Pina Tomasone LPSONTINC@ROGERS.COM
Sagi Denenberg sagidvm@gmail.com
Attachment 2
Issues List
The identification of an issue on this list does not mean that all parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.
Town of Caledon Issues
Does the proposed Official Plan Amendment and Zoning By-law Amendment have regard for matters of Provincial Interest as identified in Section 2 of the Planning Act, in particular subsections (d), (f), (h), (n), and (r).
Is the proposed Official Plan Amendment and Zoning By-law Amendment consistent with the 2020 Provincial Policy Statement (the “2020 PPS”) including the following policies: 1.1.1(c); 1.1.3.4, 1.2.1(a), 1.2.1(c), 1.5.1(a), 1.7.1(d), 1.7.1(e), 1.7.1(k), 1.8.1(g), 2.6.1, 2.6.2, 2.6.3, and 2.6.5.
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”), and in particular the following policies: 3.2.2.3, 4.2.7.1, 4.2.10(b) and 4.2.10(h).
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the Town Official Plan including the following policies: 3.3.3, 4.3.17, 5.4.3, 5.4.9, 5.9.5, 5.10.3, 5.16.2.2, 7.7?
Does the proposed site-specific By-Law require additional relief from the Town’s Zoning By-law (ex. Planting strip, illumination, projected encroachments)?
Site Plan Application
Has it been demonstrated that the proposed development has considered the protection of the cultural heritage structures through the site design?
Has the site been designed to accommodate the travel route and turning radius for delivery trucks and/or snow ploughs?
Has the site plan identified the nearest fire hydrant, fire route, fire route signage and location of the principal entrance?
Do the accessible parking spaces for the site comply with By-law 2015-058 – Schedule “K”?
Does the site plan include snow storage areas to ensure the accessibility provisions of the site are maintained?
Does the proposed 3.9 metre (12.8 feet) high acoustic barrier along the north of the property line comply with the Town Development Standards Manual (2019)?
Has the site plan been designed with safe pedestrian circulation paths? Does the proposed development allow staff to walk through the parking lot to dispose of garage safely? Also, has a safe pedestrian connection been provided for the delivery personnel?
Has the lightning plan included all proposed fixtures including the breezeway?
Do the materials and colours of the proposed development complement the existing built form and heritage character of Caledon East?
Has the site plan been designated to meet the accessibility requirements?
Has the proposed development considered low impact development features, stormwater management, energy efficiency measures and green building technologies?
Can the proposed landscaping be achieved given the location of the acoustic fence and retaining wall on the site? Have the landscape and servicing plans been coordinated?
Is the proposed access supported by the Region of Peel?
Attachment 3
Order of Evidence
Ganni Properties Inc.
Town of Caledon
Reply of Ganni Properties Inc., if any
Attachment 4
meaning of terms used in the procedural order
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 Party, and making submissions on all of the evidence. If an unincorporated group wishes to become a Party, 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. Party 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, group, 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). Subsection 33.2 of the Local Planning Appeal 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 Party 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 the witness’ opinions on those issues; and a list of reports 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 for the opinions and (5) a list of reports that the witness will rely on at the Hearing.
A Participant statement is a short written outline of the person’s or group’s background, experience, and interest in the matter; a list of the issues which the Participant wishes to address and the submission of the Participant on those issues; and a list of reports, if any, which the Participant wishes to refer to in their statement.
Additional Information
Summons: A Party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the Party. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the Hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.
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 Party of opposite interest;
- re-examination by the Party presenting the witness; or
- another order of examination mutually agreed among the Party or directed by the Tribunal.