1000726373 Ontario Inc. v. Greater Sudbury (City), 2024 CanLII 36354

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

April 18, 2024

CASE NO(S).:

OLT-23-001256

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

Appellant:

1000726373 Ontario Inc.

Subject:

By-law No. 2010-100Z

Description:

To permit a six-storey retirement home and related accessory uses, to rezone from “FD”, Future Development to "R3-1 Special”, Medium Density Residential Specials.

Reference Number:

751-6/22-09

Property Address:

0 Algonquin Road

Municipality/UT:

Greater Sudbury

OLT Case No.:

OLT-23-001256

OLT Lead Case No.:

OLT-23-001256

OLT Case Name:

1000726373 ONTARIO INC v. Greater Sudbury (City)

Heard:

April 4, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

1000726373 Ontario Inc. (“Appellant”)

Matthew Hodgson

11415573 Canada Inc.

(“Applicant”)

Katherine Chan

Denise Baker

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON april 4, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This was the first Case Management Conference (“CMC”) concerning 1000726373 Ontario’s Appeal of the City of Greater Sudbury’s (“City”) decision to amend Zoning By-law No. 2010-100Z (“ZBA”) from Future Development, “FD” designation to “R3-1 Special”, Medium Density Residential Special (subject to specific conditions) for the property known as 0 Algonquin Road, Concession 5 Township of Broder, (“Subject Property”). The Appeal of the City’s decision was launched under s. 34(19) of the Planning Act, R.S.O. 1990 (“Act”) as amended and within the timeframes prescribed in the Act.

2The Applicant seeks to build a six-storey retirement home on the Subject Property with 150 guest rooms.

3The approved ZBA permits the construction of a retirement home along with related accessory uses and uses allowed in all zones under s. 4.40 of the City’s Comprehensive Zoning By-law. Conditions were also added related to building height (four storeys), side yard buffering (vegetative and fencing), and a Holding symbol was added to address stormwater management for the Subject Property that requires the approval of the General Manager of Growth and Infrastructure and Conservation Sudbury to be removed.

4In launching their Appeal, the Appellant identified issues related to compatibility with the surrounding area, specifically related to building height, character, and potential shadowing impact on neighbouring dwellings. Concerns were also expressed regarding water management and the potential for flooding of other properties in proximity to the proposed development.

5The City did not attend the CMC and indicated that it will not be participating in this Appeal.

AFFIDAVIT OF SERVICE AND STATUS

6The Affidavit of Service was sworn on January 25, 2024, by Brigitte Sobush, Manager of Clerk’s Services/Deputy City Clerk for the City of Greater Sudbury and confirms that notice was served. The Affidavit of Service was marked as Exhibit 1, and no further notice is required.

7No other requests for Party status were received by the Tribunal.

MEDIATION

8The Parties were made aware of Tribunal-led mediation, and both indicated that they are not opposed to mediation, but that it is premature to determine whether that will be required. They did indicate that communications between the Parties are open and expect that to continue.

HEARING PLANNING

9The Tribunal heard submissions from the Parties regarding the next steps concerning this case. In summary, the Appellant provided a draft Procedural Order (“PO”) with the consent of the Applicant and requested that a five-day hearing be scheduled anytime after the middle of August. He anticipated having a land-use planner as the primary witness, a planning witness from the City, and an expert in water management-related issues.

10Counsel for the Applicant concurred with the number of days required and anticipated engaging expert witnesses in land use planning and natural heritage. While respectful of the request of a mid-summer to early fall hearing, Counsel for the Applicant preferred hearing dates in late April to May.

11The Tribunal scheduled a five-day hearing to commence on Monday, September 16, 2024, at 10 a.m. by Video. The Appellant provided a final draft of the PO following the Hearing on consent of the Applicant. The final draft was reviewed and approved by the Tribunal and is found below as Schedule 1.

12The five-day hearing is scheduled to commence by Video on Monday, September 16, 2024 at 10 a.m. as follows:

GoToMeeting: https://global.gotomeeting.com/join/638422541

Access Code: 638-422-541

13Parties 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.

14Parties are asked to access and set up the application well before 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

15Persons 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.

16Individuals 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 Video Hearing 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.

17The Member is not seized, and no further notice is required.

ORDER

18THE TRIBUNAL ORDERS THAT:

1. A five-day hearing will commence as per the details set out in paragraph [12] above and 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: OLT_23-001256

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

Appellant:

1000726373 Ontario Inc.

Subject:

By-law No. 2010-100Z

Description:

To permit a six-storey retirement home and related accessory uses, to rezone from “FD”, Future Development to "R3-1 Special”, Medium Density Residential Specials.

Reference Number:

751-6/22-09

Property Address:

0 Algonquin Road

Municipality/UT:

Greater Sudbury

OLT Case No.:

OLT-23-001256

OLT Lead Case No.:

OLT-23-001256

OLT Case Name:

1000726373 ONTARIO INC v. Greater Sudbury (City)

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

The Video Hearing will begin on Monday, September 16, 2024, at 10 a.m.:

GoToMeeting: https://global.gotomeeting.com/join/638422541

Access Code: 638-422-541

• Parties 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.

• Parties are asked to access and set up the application well before 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.htmlPersons 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.

• Individuals 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 Video Hearing 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.

2. The parties’ initial estimation for the length of the hearing is 5 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.

3. The parties and participants identified at the case management conference are set out in 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.

4. The issues are set out in the Issues List attached as Attachment 3. 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.

5. The order of evidence shall be as set out in Attachment 4 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.

6. 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

7. 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 May 24th, 2024 and in accordance with paragraph 21 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.

8. Expert witnesses in the same field shall have a meeting on or before June 28th, 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 Tribunal’s Case Co-ordinator on or before July 31st, 2024.

9. 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 12 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.

10. 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 12 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 12 below.

11. On or before August 19th, 2024, the parties shall provide copies of their witness statements, including expert witness statements, and/or brief outlines (if any), to the other parties and to the Tribunal’s Case Co-ordinator and in accordance with paragraph 21 below.

12. On or before August 30th, 2024, the parties shall exchange reply witness statements (if any), and provide the same to the Tribunal’s Case Co-ordinator and in accordance with paragraph 21 below.

13. On or before September 6th, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

14. On or before September 3rd, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

15. On or before September 3rd, 2024, Parties may provide to all other parties and the Tribunal’s Case Co-ordinator a written response to any written evidence in accordance with paragraph 21 below.

16. The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal’s Case Co-ordinator on or before September 6th, 2024.

17. 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.

18. 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.

19. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 6th, 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.

20. 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 Tribunal’s Rule 7.

21. 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 1

SUMMARY OF KEY DATES

Date

Hearing Event

May 24th, 2024

Exchange of List of Witnesses

No later than June 28th, 2024

Expert Witness Meeting

July 31st, 2024

Filing of Statement(s) of Agreed Facts and Issues

August 19th, 2024 (30 days in advance of hearing)

Exchange of Witness Statements

August 30th, 2024

Exchange of Reply Witness Statements

September 6th, 2024

Confirmation to Tribunal if all reserved hearing dates are still required

September 3rd, 2024

Exchange of Visual Evidence

September 6th, 2024

Filing of Joint Document Book

September 6th, 2024

Filing of Hearing Plan

September 16th, 2024

Hearing Commences

ATTACHMENT 2

PARTIES AND PARTICIPANTS

Applicant/Appellant/Party

Counsel

Contact

11415573 Canada Inc.

Denise Baker

WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 Phone: 416-947-5090 dbaker@weirfoulds.com

1000726373 Ontario Inc.

Matthew Hodgson

Barriston LLP The Admiral Building One First Street, Suite 224 Collingwood, ON L9Y 1A1 Phone: 705-792-9200 x 635 mhodgson@barristonlaw.com

ATTACHMENT 3

ISSUES LIST

1. Does the proposed zoning by-law amendment (“ZBA”) have appropriate regard to matters of provincial interest in section 2 of the Planning Act?

2. Is the proposed ZBA consistent with the Provincial Policy Statement, 2020, including without limitation, policies 1.1.1, 1.1.3.3. 1.1.3.4, 1.1.3.6, 1.6.6.7, and 3.1.5?

3. Does the proposed ZBA conform to the 2011 Growth Plan for Northern Ontario, including without limitation policy 4.3.3?

4. Does the proposed ZBA conform to the Official Plan of the City of Greater Sudbury, including without limitation, policies 2.3.3, 2.3.3.9, 2.3.3.10, 3.2, 3.2.1, 10.2, 11.3.2, and 14.4?

5. Is it appropriate and in the public interest to rezone the subject lands from “FD”, Future Development to “R3-1 Special”, Medium Density Residential Specials to permit the development of a Retirement Home?

6. Does the proposed height, density and built form of the proposed development result in unacceptable adverse impacts on the surrounding residential neighbourhood, such as rear yard privacy and shadowing? Would a reduction in massing and building height be a more appropriate form of development, given the existing and planned character of the area?

7. Have the appropriate studies and technical analysis been undertaken by the Applicant to address development in a designated flood plain for institutional use ? Is a Holding provision an appropriate and sufficient condition to impose as part of the proposed Zoning By-law in advance of this work being carried out to determine that development is appropriate on the subject site?

8. Is the proposed site appropriate for the proposed development, given the institutional use of the proposed development, and its associated scale and intensity?

9. Does the existing deciduous tree cover provide sufficient buffering and screening to mitigate adverse impacts on the abutting lands and low-scale residential dwelling units?

10. What level of regard should be given to Council’s decision to approve the proposed ZBA without providing reasons for not adopting the recommendations of its planning staff?

11. Would the proposed ZBA constitute good land use planning and is it in the public interest?

ATTACHMENT 4

ORDER OF EVIDENCE

1. Appellant, 1000726373 ONTARIO INC
2. Applicant, 11415573 CANADA INC
3. Appellant, 1000726373 ONTARIO INC in Reply