Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 18, 2024

CASE NO(S).: OLT-23-000029

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

Appellant: Building Industry and Land Development Association

Appellant: Burlington Healthcare Centre Inc. and Carriage Gate Inc.

Subject: Proposed Official Plan Amendment

Description: Updated policies in response to Bill 109 for pre-consultation processes and complete planning application submissions

Reference Number: OPA 130

Property Address: City Wide

Municipality/UT: Burlington/Halton

OLT Case No: OLT-23-000029

OLT Lead Case No: OLT-23-000029

OLT Case Name: Building Industry and Land Development Association v. Burlington (City)

Heard: April 10, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Building Industry and Land Development Association (“Appellant”)	Signe Leisk, Adrianna Pilkington
Burlington Healthcare Centre Inc and Carriage Gate Inc. (“Appellant”)	Shelly Kaufman
City of Burlington (“City”)	Andrea Peebles, Hannah Ruby

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON April 10, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the third Case Management Conference (“CMC”) respecting appeals by (1) the Building Industry and Land Development Association, and (2) Burlington Healthcare Centre Inc. and Carriage Gate Inc. The appeals arise following the adoption of the City’s Official Plan Amendment No. 130, which purports to implement Planning Act changes related to Bill 109.

2The current CMC was scheduled to deal with two specific issues:

1. A contested amendment request by the City to change the “Order of Argument” outlined in the Procedural Order, as previously Ordered by the Tribunal; and
2. An adjournment request, on consent of the Parties, respecting the matter’s merit hearing currently scheduled for May 9-10, 2024.

Amendment to PROCEDURAL ORDER

3The City is requesting an amendment to the Order of Argument currently outlined in the Procedural Order at Attachment 4. Currently, the order is as follows:

• Building Industry and Land Development Association
• Burlington Healthcare Centre Inc. and Carriage Gate Inc.
• City of Burlington
• Building Industry and Land Development Association, in reply
• Burlington Healthcare Centre Inc. and Carriage Gate Inc., in reply

4The City requests that it be amended so that the City will go first instead, with a corresponding right of reply. The City explained that it originally agreed to the present Order of Argument by mistake.

5Counsel for the City argued that it is the conventional practice of the Tribunal to have the municipality go first in a s. 17(24) appeal, to provide the municipality with an opportunity to introduce its planning instrument, and then have the Appellant(s) follow, with the City retaining a right of reply. Notwithstanding this argument, the City acknowledges that such an order is not prescribed by the Tribunal’s Rules of Practice and Procedure, and it further does not follow the conventional approach of appeals before the Courts, where it is generally recognized that an Appellant should have the last word in reply.

6Counsel for the Building Industry and Land Development Association (“BILD”) responded that, while it may be conventional practice to have the Municipality go first in a typical s. 17(24) case, the present matter is unique insofar as there will be no oral evidence to present. Instead, all of the matter’s evidence will be submitted by way of an Agreed Statement of Facts and/or Affidavits in advance of the hearing, including the City’s presumptive introduction of its planning instrument. As a result, BILD submits that there is no practical difference in terms of who goes first from an evidentiary standpoint. Given such a unique approach to the present appeal, which more closely resembles a conventional Court appeal, BILD further submits that there is no reason to have the City go first, and that the Tribunal should instead follow the long-standing typical approach practiced by the Courts.

7Counsel for Burlington Healthcare Centre Inc. and Carriage Gate Inc. did not add any notable submissions, except to confirm its preference to keep the Order of Argument the same as in the current Procedural Order.

8The Tribunal accepts the submissions of BILD for the same reasons that it submitted. The Tribunal further finds that, as the current form of the Procedural Order has already been ordered (including the Order of Argument), the onus is on the City to show some sort of undue prejudice to necessitate changes, which it has failed to do. Consequently, the Order of Argument outlined in Attachment 4 of the current version of the Procedural Order will remain the same.

new HEARING dates

9The Parties informed the Tribunal that the provincial government will be introducing new legislation later today that will almost certainly affect the present appeals. As a result, they jointly request an adjournment to allow them enough time to contemplate the legislation and (presumptively) adjust their respective approaches to the appeals.

10The Tribunal finds their adjournment request both reasonable and necessary. As a result, the Tribunal vacates the presently scheduled hearing dates and sets a new Two (2)-day Merit hearing commencing on Thursday, August 15, 2024 at 10 a.m. by video hearing. No further Notice is required for the hearing.

11Parties 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.

GoToMeeting: https://global.gotomeeting.com/join/687587165

Access code: 687-587-165

12Parties 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

13Persons 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.

14Individuals 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.

15The Tribunal notes that some dates featured on the Procedural Order will need to be adjusted to accommodate the above-described adjournment, and such dates shall be adjusted accordingly.

ORDER

16The Tribunal Orders that:

1. The date and particulars of the re-scheduled hearing are set out above; and
2. The revised Procedural Order appended as Attachment 1 (with dates adjusted to reflect the new hearing dates) shall govern the proceedings.

17The Member is not seized but may be spoken to through the Case Coordinator if any Issues arise.

“K.R. Andrews”

K.R. ANDREWS

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.

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

Appellant: Building Industry and Land Development Association

Appellant: Burlington Healthcare Centre Inc. & Carriage Gate Inc.

Subject: Proposed Official Plan Amendment

Description: Updated policies in response to Bill 109 for pre-consultation process and complete planning application submissions

Reference Number: OPA 130

Property Address: City Wide

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-23-000029

OLT Lead Case No.: OLT-23-000029

OLT Case Name: Building Industry and Land Development Association v. Burlington (City)

DRAFT 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 Thursday, August 15, 2024, at 10a.m.

3. The parties’ initial estimation for the length of the hearing is 2 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 the sample procedural order 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 argument 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. The parties shall each file a memorandum of facts and argument on or before July 18, 2024. The parties may each file a responding memorandum on or before August 6, 2024.

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 N/A (date – at least 55 days prior to the start of the hearing ) 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 N/A (at least 15 days before the hearing) and use best efforts to try to resolve or reduce the issues for the hearing. The parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before July 11, 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. [N/A]

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. [N/A]

13. On or before N/A (date – at least 45 days prior to the start of the hearing), 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. A party may file affidavit evidence setting out the facts and evidence upon which the party will rely on or before July 15, 2024. A party may file responding affidavit evidence on or before August 6, 2024. A party who intends to rely on expert evidence must include a copy of the affiant’s Curriculum Vitae and an executed acknowledgment of expert’s duty form.

14. On or before N/A (date – at least 45 days prior to the start of the hearing), 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 July 11, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before N/A (date – at least 15 days prior to the start of the hearing).

The parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. [N/A]

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before N/A (date – up to 28 days after WS deadline) 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 before August 8, 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. [N/A]

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before August 8, 2024 (date – at least 7 days prior to the start of the hearing) 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, if requested, 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

ATTACHMENT 1

SUMMARY OF KEY DATES

Date	Hearing Event
N/A	Exchange of List of Witnesses
N/A	Expert Witness Meeting
N/A	Exchange of Witness Statements
N/A	Exchange of Reply Witness Statements
N/A	Delivery of Participant Statements
N/A	Exchange of Visual Evidence
July 11, 2024	Filing of Statements of Agreed Facts and Issues
July 11, 2024	Confirmation to Tribunal if all reserved hearing dates are still required
July 15, 2024	Filing and exchange of affidavit evidence
July 18, 2024	Filing and exchange of memorandum of facts and argument
August 6, 2024	Filing and exchange of responding affidavit evidence
August 6, 2024	Filing and exchange of responding memorandum of facts and argument
August 8, 2024	Filing of Joint Document Book
August 8, 2024	Filing of Hearing Plan
August 15, 2024	Hearing Commences

ATTACHMENT 1: PARTIES AND PARTICIPANTS

Appellant/Party	Counsel	Contact
Building Industry and Land Development Association	Signe Leisk Adrianna Pilkington	Cassels Suite 3200 Bay Adelaide Centre – North Tower 40 Temperance St. Toronto, ON M5H 0B4 sleisk@cassels.com apilkington@cassels.com
Burlington Healthcare Centre Inc. & Carriage Gate Inc	Shelley Kaufman Scott Snider	TMA LAW 25 Main Street West, Suite 2010 Hamilton, ON L8P 1H1 skaufman@tmalaw.ca ssnider@tmalaw.ca
City of Burlington	Andrea Peebles	City of Burlington Legal Department 426 Brant Street Burlington, ON L7R 3Z6 andrea.peebles@burlington.ca

ATTACHMENT 3

ISSES LIST

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 Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing.

BUILDING INDUSTRY AND LAND DEVELOPMENT (BILD) AND CARRIAGE GATE BURLINGTON HEALTH CARE CENTRE INC. and CARRIAGE GATE INC. (BHC

1. Does Official Plan Amendment 130 (OPA 130) circumvent the purposes, scope and intent of the Planning Act (including Bill 109, More Homes for Everyone Act, 2022 amendments to which OPA 130 responds, as well as Bill 23, More Homes Built Faster Act, 2022) and the Provincial Policy Statement, 2020?

2. Does the City have the authority to impose the following pre-application requirements or processes on an applicant as complete application requirements under the Planning Act:

   1. A mandatory applicant hosted community meeting;
   2. The results of a City initiated peer review of an applicant’s reports and studies;
   3. Mandatory participation in a municipal design review panel and process;
   4. Mandatory consultation with and submission of comments from third party agencies and authorities;
   5. Requirements that preclude the submission of concurrent applications, including with respect to site plan approval applications, demonstrated compliance with the zoning by-law;
   6. Require submission of materials that cannot be provided until substantive technical review, detailed design, additional approval and/or the permitting process have occurred?

CARRIAGE GATE BURLINGTON HEALTH CARE CENTRE INC. and CARRIAGE GATE INC. (BHC)

3. Did the City improperly fail to identify the potential submission requirements by each type of planning application, through a chart or otherwise? Is it good planning to fail to do so?
4. Is OPA 130 consistent with the Provincial Policy Statement, 2020 (PPS 2020) and does OPA 130 confirm with or not conflict with the Growth Plan for the Greater Golden Horseshoe (Growth Plan) and the Region of Halton Official Plan (ROP), in particular but not limited to the following policies:
   1. PPS 2020 Policies: Part IV, Visions, Policies 1.1.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.1.3.5, 1.1.3.6, 1.4.3, 1.6.3, 1.6.6.1, 1.6.7.4, 1.7.1 and 1.8.1;
   2. Growth Plan Policies: Policies 1.2, 1.2.1, 2.1, 2.2.1.4, 2.2.2.3, 2.2.4.9, 2.2.6, 3.2.1.1, 3.2.8.1 and 3.2.8.3; and
   3. ROP Policies: Sections 25, 26, 31, 37, 47, 56, 58, 72, 72.1, 75, 77, 77(3), 78, 78.1, 79(1), 79(4), 79(6), 84 and 85

ATTACHMENT 4

ORDER OF ARGUMENT

Building Industry and Land Development Association

Burlington Healthcare Centre Inc. & Carriage Gate Inc.

City of Burlington

Building Industry and Land Development Association, in reply

Burlington Healthcare Centre Inc. & Carriage Gate Inc., in reply