VAD Retail Limited v. Clarington (Municipality), 2024 CanLII 36218

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 15, 2024

CASE NO(S).: OLT-23-000308

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: VAD Retail Limited

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: OPA to permit the development of three-storey townhouse units and a seniors' campus

Reference Number: COPA 2022-0003

Property Address: 46 Stevens Road

Municipality/UT: Municipality of Clarington / Region of Durham

OLT Case No.: OLT-23-000308

OLT Lead Case No: OLT-23-000308

OLT Case Name: VAD Retail Limited v. Clarington (Municipality)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: VAD Retail Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: ZBA to permit the development of three-storey townhouse units and a seniors' campus

Reference Number: ZBA 2022-0019

Property Address: 46 Stevens Road

Municipality/UT: Municipality of Clarington / Region of Durham

OLT Case No.: OLT-23-000309

OLT Lead Case No.: OLT-23-000308

Heard: November 7, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
VAD Retail Limited	Evan Barz
Municipality of Clarington	Austin Ray Mark Joblin
Region of Durham	Robert Woon

MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON NOVEMBER 7, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This is the second Case Management Conference (“CMC”) with respect to the appeals of the non-decision of the City of Toronto (“City”) regarding applications to amend the Zoning By-law and an Amendment to the Municipality’s Official Plan.

2VAD Retail Limited (“VAD”) filed applications for an Official Plan Amendment and Zoning By-law Amendment with Clarington (File Nos. COPA 2022-0003 and ZBA 2022-0019) (together, "Applications"). The Official Plan Amendment would redesignate the Subject Property to Medium Density Residential, and the Zoning By-law Amendment would rezone the Subject Property to Mixed Use (MU3) Zone.

3The purpose of the Case Management Conference (“CMC”) was to receive status updates from all Parties and to organize the hearing of these appeals.

4The Tribunal was informed that the Parties are seeking a 10-day Hearing.

5The Hearing is scheduled to proceed by Video Hearing on Friday, August 12, 2024, at 10 a.m. Ten days have been set aside.

6Parties are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoToMeeting: https://meet.goto.com/278736685

Access Code: 278-736-685

7Parties 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

8Persons 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 (647) 497-9391. The access code is as indicated above.

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 CMC by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

10The Tribunal is in receipt of the updated Procedural Order and Issues List, herein attached as Schedule A.

ORDER

11THE TRIBUNAL ORDERS THAT the Procedural Order attached as Schedule A shall govern the conduct of this proceeding.

“Carmine Tucci”

CARMINE TUCCI

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 A

Case No.: OLT-23-000308

ONTARIO LAND TRIBUNAL

PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: VAD Retail Limited

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: OPA to permit the development of three-storey townhouse units and a seniors’ campus

Municipal Reference Number: COPA 2022-0003

Property Address/Description: 46 Stevens Road

Municipality: Municipality of Clarington / Region of Durham

OLT Case No.: OLT-22-000308

OLT Lead Case No.: OLT-22-000308

OLT Case Name: VAD Retail Limited v. Clarington (Municipality)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: VAD Retail Limited

Subject: Request to amend the Zoning By-law – Refusal or neglect to make a decision

Description: ZBA to permit the development of three-storey townhouse units and a seniors’ campus

Municipal Reference Number: ZBA 2022-0019

Property Address/Description: 46 Stevens Road

Municipality: Municipality of Clarington / Region of Durham

OLT Case No.: OLT-23-000309

OLT Lead Case No.: OLT-23-000308

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 August 12, 2024 at 10:00 a.m and continue through to August 23, 2024. The hearing can be accessed via the following coordinates:

GoToMeeting Link: https://meet.goto.com/278736685

Audio-Only Line: +1 (647) 497-9391 or TOLL FREE 1 888 455 1389

Access Code: 278-736-685.

The parties’ initial estimation for the length of the hearing is ten (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 2.
The issues are set out in the Issues List attached as Attachment 4. 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.
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 witnesses on or before April 30, 2024, and in accordance with paragraph 23 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 May 14, 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 May 24, 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 June 13, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties, the participants, and to the OLT Case Co-ordinator and in accordance with paragraph 23 below.
On or before June 13, 2024, a participant shall provide copies of their written participant statement to the other parties and the OLT Case Co-ordinator in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
The Parties may provide to all other parties and the OLT Case Co-ordinator a written response to any written evidence before July 4, 2024.
On or before July 18, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before July 30, 2024, the parties shall provide copies of their visual evidence to all of the other parties, the participants, and the OLT Case Co-ordinator in accordance with paragraph 23 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 July 30, 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 August 2, 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.
At the time of cross-examination, the Parties shall provide to all Parties and the Tribunal, in a password protected format, any documents that will be used by the Party in cross-examination of an opposing Party's witness, unless the presiding Member directs otherwise. The password protected documents shall only be accessible to the Tribunal and the other Parties if they are introduced as evidence at 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.

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.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
April 30, 2024	Exchange of witness lists (names, disciplines and order to be called)
May 14, 2024	Last date of Expert Witness Meetings
May 24, 2024	Agreed Upon Statement of Facts
June 13, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
July 4, 2024	Exchange of Reply Witness Statements (if any)
July 18, 2024	Notification to Tribunal if all hearing dates required
July 30, 2024	Exchange of Visual Evidence (if any) and Joint Document Book
August 2, 2024	Hearing Plan
August 12, 2024	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

VAD Retail Limited
Municipality of Clarington
Region of Durham

PARTICIPANTS

Thornsten Koseck
Glenn Jager
Donald Muir

ATTACHMENT 3

ORDER OF EVIDENCE

VAD Retail Limited
Municipality of Clarington
Region of Durham
VAD Retail Limited (Reply)

ATTACHMENT 4

ISSUES LIST

NOTE: THE IDENTIFICATION OF AN ISSUE ON THIS ISSUES LIST DOES NOT MEAN THAT ALL PARTIES AGREE THAT SUCH AN ISSUE IS APPROPRIATE OR RELEVANT FOR 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.

Issues of the Municipality of Clarington

Are the applications consistent with Policies 1.6.6.1, 1.6.6.7, and 3.1.5 of the Provincial Policy Statement?
Do the applications conform with Sections 2.2.1 e) and 2.2.1.2 of the Growth Plan for the Greater Golden Horseshoe?
Do the applications conform with Sections 2.2.7, 2.3.43, 2.3.15, and 8B.2.3 of the Durham Region Official Plan (ROP)?
Do the applications conform with Chapter 3, in particular Sections 3.4.16 and 3.7, Chapter 4, Chapter 5, Chapter 9, in particular Section 9.4.5, and Map K of the Clarington Official Plan?
Do the applications conform with the Brookhill Secondary Plan, including Section 6.5, Section 10.1, and provision of the identified trail connection?
Is there adequate provision of infrastructure to support the proposed development, in particular:

(a) can downstream sanitary servicing capacity be accommodated?

(b) feasibility of the proposed stormwater system, including proposed easement?

Have the impacts of the proposed development been adequately studied, and will the impacts be appropriately mitigated, in particular:

(a) have the development limits/constraints of the site been appropriately identified, including evaluation of the erosion hazard related to the Bowmanville Creek and Brookhill Tributary?

(b) does the proposal identify and provide appropriate measures to protect and/or mitigate negative impacts to key natural heritage or hydrologic features and functions and the surrounding environment?

(c) does the proposal provide for an adequate vegetation protection zone and protection of existing trees within such zone?

(d) has an appropriate stormwater management report been provided to confirm that the proposed development meets applicable standards and guidelines?

(e) are appropriate measures identified to protect trees identified for preservation?

Can the proposal adequately mitigate negative impacts on adjacent residential properties including:

(a) proposed removal of mature trees along the western boundary of the site,

(b) impacts to existing trees,

(d) removal of one existing entrance?

Does the development proposal provide for appropriate urban design, including interface with natural heritage, streetscape, height, transition and massing, and quality of design?
Can the proposed development meet applicable technical standards and guidelines, including:

(a) are the proposed retaining walls appropriate, and do they meet municipal standards and guidelines?

(b) is the proposed grading plan appropriate, in particular as it relates to proposed building setbacks, location of the vegetative protection zone, limits of 100 year ponding, and ability to contain drainage within the site?

(c) has an Environmental Impact Study (EIS) been prepared that appropriately addresses limits of development, and vegetation protection zones, and impact on retainable trees?

(d) has an appropriate hydrogeological assessment been prepared?

(e) has an appropriate slope stability assessment been prepared?

(f) has an appropriate functional servicing report been prepared?

(g) sufficiency of parking and loading space dimensions and locations?

(h) are the proposed underground parking setbacks sufficient?

(i) can the site’s entrance grading be accommodated by the future road profile of Stevens Road, following adjustments in elevation to meet the Municipality’s standard urban cross-section?

(j) is the proposed turning circle appropriately sized for Municipal standards?

(k) can appropriate emergency access be provided, and if a single emergency access is proposed:

can the proposed water system accommodate sprinklers in all buildings?
can the proposed road pavement structure on Stevens Road properly accommodate the heaviest fire trucks/equipment for emergency access purposes?

Does the proposal provide for a sufficient number of required parking spaces?
Should the proposal identify and provide for a trail connection on the site?
Does the proposal provide for sufficient amenities and should such requirements be included in the zoning by-law?
If the proposal is approved in principle, what are the appropriate zoning categories and performance standards for the zoning by-law?
If the proposal is approved, should the proposed zoning by-law amendment be subject to holding conditions in connection with provision of services, measures to protect natural areas, measures to mitigate the impact of development, measures to ensure appropriate urban design, or submission of technical studies?
Do the applications represent good land use planning?