Friends to Conserve Kleinburg Inc. v. Vaughan (City), 2024 CanLII 38862

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 23, 2024

CASE NO(S).: OLT-24-000108

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

Appellant: Friends to Conserve Kleinburg Inc.

Appellant: Humberplex Development Inc.

Subject: By-law No. 217-2023

Description: To rezone the subject lands

Reference Number: ZBA No. 217-2023

Property Address: 11363 Highway 27

Municipality/UT: City of Vaughan

OLT Case No.: OLT-24-000108

OLT Lead Case No.: OLT-24-000108

OLT Case Name: Friends to Conserve Kleinburg Inc v. Vaughan (City)

Heard: April 10, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Friends to Conserve Kleinburg Inc.

D. Donnelly

Humberplex Developments Inc.

G. Borean

D. Donnelly

City of Vaughan

B. Engell

E. Lidakis

Kirby 27 Development Limited and Copper Kirby Development Limited

I. Kagan

S. Kagan (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON APRIL 10, 2024 AND ORDER OF THE TRIBUNAL

1This was the first Case Management Conference (“CMC”) in the matter of an appeal by Friends to Conserve Kleinburg Inc. and Humberplex Developments Inc. (“Appellants”) arising from the passing of Zoning By-law Amendment No. 217-2023 (“ZBA”), pursuant to s. 34(19) of the Planning Act (“Act”) by the City of Vaughan (City”).

2The ZBA rezones lands, located at 11363 Highway 27, for a development consisting of 227 single detached and 70 street townhouse units, and a public park (“subject property” / “site”).

3The Tribunal received the Affidavit of Service and marked it as Exhibit 1.

4The Tribunal was provided with a Draft Procedural Order (“DPO”) and Issues List.

STATUS REQUEST

5Prior to the CMC, the Tribunal received one Party status request from the owner of the subject property. With the consent of the statutory Parties, the Tribunal granted Party status to:

• Kirby 27 Development Limited and Copper Kirby Development Limited.

MEDIATION

6The Tribunal canvassed the Parties as to whether they had engaged in discussions to resolve any of the issues in the appeal, and whether they would be interested in mediation. The Parties indicated that they are collaborating. The Tribunal directed the Parties to contact the assigned Case Coordinator should they wish to pursue Tribunal-led mediation.

HEARING, PROCEDURAL ORDER AND ISSUES LIST

7Prior to the CMC, the Tribunal received a request to set aside 20 days for the hearing of the merits. At the CMC, Mr. Donnelly made submissions to the Tribunal that there are a number of outstanding court matters that could affect the setting of the hearing dates, pending the decision of the courts on the underlining Official Plan Amendment (“OPA”) that supports the ZBA. Thus, the Appellants are of the opinion that setting hearing dates is premature at this point. Mr. Kagan suggested that he was not made aware of the Appellants’ opinion prior to the CMC.

8The Tribunal has reviewed and approved the DPO, and it is appended as Schedule 1 to this Decision.

9Given the number of days requested, the receipt of the DPO and Issues List and the busyness of the Tribunal calendar for the multi-week hearings, the Tribunal is of the opinion that it is appropriate to set hearing dates at this time. If at any point in the near future, the courts’ decision affects the hearing of the merits, the scheduled dates could be amended.

10The Appellants intend to call between six and seven expert witnesses (one or two Land Use Planner(s), a Hydrogeologist, an Ecologist, a Transportation Engineer and an Arborist), two lay witnesses and one summoned witness. The City will call two witnesses – a Land Use Planner and a Transportation expert. The land owner intends to have a Land Use Planner, a Transportation consultant, a Civil Engineer and an Ecologist.

11The Tribunal is of the opinion that given the number of expert witnesses, it is appropriate to set aside 19 days for the hearing of the merits.

12A 19 day hearing is scheduled to commence by video on Monday, June 2, 2025 at 10 a.m.

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:

https://global.gotomeeting.com/join/927921077

Access code: 927-921-077

14Parties 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

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: +1 (647) 497-9391 or (Toll-Free) 1-888-299-1889 The access code is 927-921-077.

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 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

17The Tribunal Orders the above directives.

18This Member is not seized.

19There will be no further notice.

“P. Tomilin”

p. tomilin

MEMBER

Ontario Land Tribunal

Website: 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-24-000108

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

Appellant: Friends to Conserve Kleinburg Inc.

Appellant: Humberplex Development Inc.

Subject: By-law No. 217-2023

Description: To rezone the subject lands

Reference Number: ZBA No. 217-2023

Property Address: 11363 Highway 27

Municipality/UT: City of Vaughan

OLT Case No.: OLT-24-000108

OLT Lead Case No.: OLT-24-000108

OLT Case Name: Friends to Conserve Kleinburg Inc v. Vaughan (City)

The Tribunal orders that:

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 June 2, 2025 and will be conducted virtually.

3. The length of the hearing is 19 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 Attachment 3 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 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.

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 January 31, 2025 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.

10. Expert witnesses in the same field shall have a meeting on or before February 28, 2025 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 February 28, 2025.

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.

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, in accordance with paragraph 13 below.

13. On or before April 4, 2025 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 21 below.

14. On or before April 4, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement.

15. Parties may provide to all other parties and the OLT Case Co-ordinator a written response to any written evidence on or before May 2, 2025 in accordance with paragraph 21 below.

16. On or before May 20, 2025, 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.

17. The parties shall cooperate to prepare a Joint Document Book which shall be filed with the OLT Case Co-ordinator on or before May 23, 2025.

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 23, 2025 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.

21. All filings shall be submitted electronically. 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.

22. 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 Key Dates

Date

Event

Wednesday, April 10, 2024

First Case Management Conference

Friday, January 31, 2025

Exchange Witness Lists

Friday, February 28, 2025

Agreed Statement of Facts

Friday, April 4, 2025

Witness Statements and Participant Statement

Friday, May 2, 2025

Reply Witness Statements

Tuesday, May 20, 2025

Visual Evidence

Friday, May 23, 2025

File Joint Document Book and Hearing Plan.

Friday, May 23, 2025

Parties to File Preliminary Hearing Plan

Monday, June 2, 2025

Hearing commences

Attachment 1: Parties

Party

Representation

Friends to Conserve Kleinburg Inc.

David R. Donnelly Donnelly Law 276 Carlaw Ave., Suite 203 Toronto, ON., M4M 3L1 Tel: 416-572-0464 E: david@donnellylaw.ca

Humberplex Developments Inc.

David R. Donnelly Donnelly Law 276 Carlaw Ave., Suite 203 Toronto, ON., M4M 3L1 Tel: 416-572-0464 E: david@donnellylaw.ca

City of Vaughan

Effie Lidakis City of Vaughan Legal Services Deputy City Solicitor, Planning Law 2141 Major Mackenzie Dr. Vaughan, ON L6A 1T1 Tel: 905-832-2281 ext. 8851 E: Effie.lidakis@vaughan.ca

Bruce Engell Weir Foulds LLP 4100 - 66 Wellington St. W. PO Box 35, TD Bank Tower Toronto, ON M5K1B7 Tel: (416) 947-5081 E: bengell@weirfoulds.com

Kirby 27 Developments Limited & Copper Kirby Developments Limited

Ira T. Kagan / Sarah R. Kagan Kagan Shastri DeMelo Winer Park LLP 188 Avenue Road Toronto, ON M5R 2J1 Tel : 416-368-2100 ext. 226 / 243 E: ikagan@ksllp.ca / skagan@ksllp.ca

Attachment 2: Issues List

Humberplex/Friends to Conserve Kleinburg

Issues List

(March 28, 2024)

1. Does Zoning By-law Amendment 217-2023 (the “Proposed Development” have appropriate regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act, including the matters set out in sections 2(a), 2(d), 2(h), 2(n), 2(p), 2(r) and 2(s) therein?

2. Is the Proposed Development consistent with the relevant policies of the Provincial Policy Statement (2020) (the “PPS”), in particular, but not limited to, the following policy sections:

-Policy Section 1.1.1 (Managing and Directing Land Use)

-Policy Sections 1.1.3.2, 1.1.3.3 and 1.1.3.4 (Settlement Areas)

-Policy Section 1.4.3 (Housing);

-Policy Section 1.5.1 (Public Spaces, Recreation, Parks, Trails and Open Space)

-Policy 1.6.6.2 (Sewage, Water and Stormwater)

-Policy Section 1.6.7.1 (Transportation System)

-Policy Section 1.8.1 (Energy Conservation, Air Quality, and Climate Change)

-Policy Section 2.1.5, 2.1.6, 2.1.7 and 2.1.8 (Natural Heritage)

-Policy Section 3.1.3 (Natural Hazard)?

3. Is the Proposed Development in conformity with the A Plan to Grow: Growth Plan for the Greater Golden Horseshoe (2020) (the “Growth Plan”), in particular, but not limited to, the following policy sections:

-Policy Section 1.2.1 (Guiding Principles)

-Policy Section 2.2.1(4) (Managing Growth)

-Policy Section 3.2.2 (Transportation)

-Policy Section 3.2.7 (2) (Stormwater Management)

-Policy Section 5.2.4.3 (Growth Forecasts)

-Policy Section 5.2.5(8) (Implementation and Interpretation)?

4. Is the Proposed Development in conformity with the Greenbelt Plan, in particular, but not limited to, the following policy sections:

-Policy Section 4.2.1 (General Infrastructure Policies)

-Policy Section 4.2.3 (Stormwater Management and Resilient Infrastructure Policies)

5. Is the Proposed Development in conformity with the relevant policies in the Region of York Official Plan, 2010 (the “ROP”), in particular, but not limited to, the following policy sections:

-Policy Section 2.1.1, 2.1.7, 2.1.9, 2.1.12, 2.1.13 (Regional Greenlands)

-Policy Section 2.2.3, 2.2.44 (Natural Features)?

6. Does the Proposed Development maintain the intent and principles of, and does it generally conform with, the City of Vaughan’s Official Plan (the “VOP 2010”), in particular, but not limited to, the following policy sections:

-Policy Section 2.2.3, 2.2.3.2, 2.2.3.3 (Managing Growth, Community Areas)

-Policy Section 3.2.3.8, 3.2.3.11 (Core Features)

-Policy Sections 9.1.2.2, 9.1.2.3 (Community Areas, Compatibility Criteria)?

7. Are the limits of the valley, woodlands and Vegetation Protection Zones surrounding the valley corridor and woodlands appropriately defined as required by Section 13.47.1.9 and 13.47.1.11 of OPA 47?

8. Does fit within the unique character of adjacent and surrounding lands?

9. Does Zoning By-law Amendment 217-2023 sufficiently regulate matters of built form including, height, density, massing, scale, and setbacks having regard for the subject lands, adjacent property and the character of the surrounding lands?

10. Will the Proposed Development cause an unacceptable increase in traffic in surrounding neighbourhoods and have an adverse impact including, but not limited to:

(i) Will the implementation of a signalized intersection to provide access to the Proposed Development from Highway 27 further decrease the capacity on Highway 27?

(ii) Are improvements such as widening of Highway 27 to four lanes between Major Mackenzie Drive and Kirby Road required to accommodate traffic generated by the Proposed Development?

(iii) Are driver sight line distances at Kirby Road and Street A a safety concern?

11. Does the Proposed Development adequately assess hydrogeology and hydraulics impacts of adjacent lands?

12. Will the Proposed Development result in a significant loss of open space in the immediate area as well as the broader City of Vaughan?

13. Has it been demonstrated that the Proposed Development will have no negative impacts on the natural features on site?

14. Does the Proposed Development allow for appropriate connectivity of the surrounding natural heritage system?

15. Will the ecological function of the natural heritage system be maintained and will the linkage corridor between the Humber River Valley system and the adjacent important ecological lands be maintained?

16. Have the core features of the site, including woodlands, been appropriately identified and protected and have appropriate buffer zones to these been proposed?

17. Were alternate sites for the SWM solutions outside of the valley system (on table lands as is usually the norm) evaluated? If not, what precluded tableland alternatives from being evaluated?

18. Is the use of the proposed Holding Symbol “H” Zone appropriate and, if so, what conditions should be satisfied prior to the removal of the Holding symbol?

19. Does the development proposal represent good land use planning and is it in the public interest?

Note 1: 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 these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

Note 2: Where two or more parties raise the same technical issue, they can co-ordinate and rely upon an independent expert. Where, however, a single party alone raises a technical issue then that party must call technical evidence in support of that issue from a qualified independent expert.

Attachment 3: 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 4: Order of Evidence

Order of Evidence

1. Kirby 27 Developments Limited & Copper Kirby Developments Limited

2. City of Vaughan

3. Friends to Conserve Kleinburg Inc. and Humberplex Developments Inc.

4. Kirby 27 Developments Limited & Copper Kirby Developments Limited in reply

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