Ideal Capital Partners Inc. and 1000249553 Ontario Inc. v. Kitchener/Waterloo (City), 2024 CanLII 53847

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 06, 2024

CASE NO(S).: OLT-24-000122

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

Applicant and Appellant: Ideal Capital Partners Inc. and 1000249553 Ontario Inc.

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

Description: To permit the construction of a 96-unit, 13 storey apartment building.

Reference Number: OPA/23/008/B/ES

Property Address: 93-99 Benton Street & 39-43 St. George Street

Municipality/UT: Kitchener/Waterloo

OLT Case No.: OLT-24-000122

OLT Lead Case No.: OLT-24-000122

OLT Case Name: Ideal Capital Partners Inc. and 1000249553 Ontario Inc. v. Kitchener/Waterloo (City)

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

Applicant and Appellant: Ideal Capital Partners Inc. and 1000249553 Ontario Inc.

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

Description: To permit the construction of a 96-unit, 13 storey apartment building.

Reference Number: ZBA/23/012/B/ES

Property Address: 93-99 Benton Street & 39-43 St. George Street

Municipality/UT: Kitchener/Waterloo

OLT Case No.: OLT-24-000123

OLT Lead Case No.: OLT-24-000122

OLT Case Name: Ideal Capital Partners Inc. and 1000249553 Ontario Inc. v. Kitchener/Waterloo (City)

Heard: June 5, 2024 via Video Hearing

APPEARANCES:

Parties	Counsel
1000249553 Ontario Inc. and Ideal Capital Partners Inc.	Eric Davis Chris Manning
City of Kitchener	Katherine Hughes
Regional Municipality of Waterloo	Fiona McCrea

MEMORANDUM OF ORAL DECISION DELIVERED BY A. MASON ON JUNE 5, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This first Case Management Conference (“CMC”) was held in respect of Appeals filed pursuant to subsections 22(7) and 34(11) of the Planning Act concerning the failure of the City of Kitchener (“City”) to make a decision within the statutory timeframes on Applications for Official Plan Amendment and Zoning By-Law Amendment (together “Applications”) in respect of the properties municipally known as 93-99 Benton Street and 29-43 St. George Street (“Subject Lands”).

2The Applications were filed by 1000249553 Ontario Inc. and Ideal Capital Partners Inc. (together “Appellant”) and would facilitate the development of a 13-storey apartment building with 96 residential units.

NOTICE

3An Affidavit of Service sworn on March 12, 2024, attesting to the giving of notice for this proceeding, was marked as Exhibit 1.

REQUESTS FOR STATUS

4In advance of the CMC, the Tribunal received a request for Party status from the Regional Municipality of Waterloo (“Region”) as the upper tier Municipality and the Approval Authority for amendments to the City’s Official Plan. The Region’s request for Party status also set out that it is a commenting authority on the Applications and that the Subject Lands front onto a road that is under its jurisdiction. Having reviewed the request, the Tribunal finds that Region’s participation in the hearing of these Appeals is reasonable and necessary to enable the Tribunal to effectively and completely adjudicate the proceedings. No objections were raised from the Appellant or the City to the request and the Tribunal granted Party status to the Region.

5In advance of the CMC, the Tribunal received a Participant status request from Sally Gunz, who is a neighbour to the Subject Lands. A Participant status request was also received from Shaun McKinnon, who is a tenant in an existing dwelling unit on the Subject Lands. The Tribunal reviewed the Participant status requests and found both clearly articulated the concerns of the authors. The Appellant and City raised no objection to granting Participant status to the two individuals and the Tribunal conferred such status on Sally Gunz and Shaun McKinnon.

PROCEDURAL ORDER AND ISSUES LIST

6The Tribunal was provided with a draft Procedural Order (“PO”) and Issues List (“IL”) in advance of the CMC provided on consent of the Appellant, City and the Region in anticipation of the Tribunal granting Party status to the Region. The PO and IL at Schedule 1 attached to this Decision shall govern these proceedings.

MEDIATION

7The Parties expressed that they may have discussions with a view to scoping or resolving various issues in future but, at this time, Counsel for the City has no instructions to do so. The Parties are aware of Tribunal-led mediation and will request same if desired.

HEARING DATES

8At the request of the Parties, the Tribunal scheduled a four-day Merit Hearing commencing on Tuesday, January 21, 2025, at 10 a.m. by Video Hearing.

9Parties 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

10Persons 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.

11Parties 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

12Individuals 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

13THE TRIBUNAL ORDERS that:

a) Party status is granted to the Regional Municipality of Waterloo;

b) Participant status is granted to Sally Gunz and Shaun McKinnon;

c) The Procedural Order and Issues List set out as Schedule 1 is deemed in force and effect and shall govern the hearing of the merits; and

d) A four-day Merit Hearing shall commence at 10 a.m. on Tuesday, January 21, 2025, through Friday, January 24, 2025.

14No further notice is required.

15The Panel is not seized of this matter.

“A. Mason”

A. Mason

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-24-000122

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

Applicant and Appellant: Ideal Capital Partners Inc. and 1000249553 Ontario Inc.

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

Description: To permit the construction of a 96-unit, 13 storey apartment building.

Reference Number: OPA/23/008/B/ES

Property Address: 93-99 Benton Street & 39-43 St. George Street

Municipality/UT: Kitchener/Waterloo

OLT Case No.: OLT-24-000122

OLT Lead Case No.: OLT-24-000122

OLT Case Name: Ideal Capital Partners Inc. and 1000249553 Ontario Inc. v. Kitchener/Waterloo (City)

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

Applicant and Appellant: Ideal Capital Partners Inc. and 1000249553 Ontario Inc.

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

Description: To permit the construction of a 96-unit, 13 storey apartment building.

Reference Number: ZBA/23/012/B/ES

Property Address: 93-99 Benton Street & 39-43 St. George Street

Municipality/UT: Kitchener/Waterloo

OLT Case No.: OLT-24-000123

OLT Lead Case No.: OLT-24-000122

PROCEDURAL ORDER

Organization of the Hearing

1. The video hearing will begin on January 21, 2025, at 10:00 a.m.

2. The parties’ initial estimation for the length of the hearing is four (4) 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 1 (see Attachment 4 for the meaning of these terms).

4. 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.

5. 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.

6. 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.

7. 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

8. 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 August 19, 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.

9. Expert witnesses in the same field shall have a meeting on or before September 6, 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 September 20, 2024.

10. 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.

11. 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.

12. On or before October 11, 2024, 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.

13. On or before October 11, 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.

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

15. On or before December 20, 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.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by November 8, 2024, after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or January 10, 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 January 10, 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 and, if requested by the OLT case-coordinator, 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.

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 DATES

DATE	EVENT
August 19, 2024	Exchange List of Proposed Witnesses (Para. 9)
September 6, 2024	Deadline for Expert Witness Meeting (Para. 10)
September 20, 2024	Deadline for Statement of Agreed Facts and Issues (para. 10)
October 11, 2024	Deadline for Witness Statements, Expert Witness Statements and Participant Statements (paras. 13 and 14)
December 13, 2024	Deadline for advising the Tribunal if all the reserved hearing dates are required (para. 15)
December 20, 2024	Deadline for Visual Evidence (para. 16)
November 8, 2024	Deadline for Reply Witness Statements and Reply Expert Witness Statements (para. 17)
January 10, 2025	Deadline for Joint Document Book (para. 18)
January 10, 2025	Deadline for Hearing Plan (para. 21)
January 21, 2025	Hearing begins

ATTACHMENT 1

LIST OF PARTIES

1. Ideal Capital Partners Inc. and 1000249553 Ontario Inc. SV Law 245 Hanlon Creek Boulevard, Unit 102 Guelph, ON N1C 0A1 Eric Davis Email: edavis@svlaw.ca Tel: 519.837.2100 ext. 304

2. The City of Kitchener The City of Kitchener 200 King Street West Kitchener, ON Katherine Hughes Email: katherine.hughes@kitchener.ca Tel: 519.741.2200 ext. 7266

3. The Regional Municipality of Waterloo The Regional Municipality of Waterloo 150 Frederick Street, 8th Floor Kitchener, ON N2G 4J3 Fiona McCrea Email: fmccrea@regionofwaterloo.ca Tel: 519.575.4518 / 519.502.0925

LIST OF PARTICIPANTS

1. Sally Gunz Tel: 519.575.0998 Email: sgunz@uwaterloo.ca

2. Shaun MacKinnon Tel: 226.752.4511 Email: swmakin@gmail.com

ATTACHMENT 2

ISSUES LIST

PLEASE 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 appeal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the appeal will be a matter of evidence and argument at the hearing or the subject of a motion prior to the hearing.

1. Do the Official Plan and Zoning By-law Amendment applications have appropriate regard for matters of provincial interest, as set out in section 2 of the Planning Act, and in particular subsections 2 (f), (h),(j),(o), (p),(q) and (r)?

2. Are the Official Plan and Zoning By-law Amendment applications consistent with the Provincial Policy Statement, 2020, including policies 1.1.1 a) b) e), 1.1.3.1, 1.1.3.2, 1.1.3.3,1.1.3.4, 1.1.3.6, 1.4, and 1.6.1?

3. Do the Official Plan and Zoning By-law Amendment applications conform to the Growth Plan for the Greater Golden Horseshoe, including policies 1.2.1, 2.2.1, 2.2.2, 2.2.4,and 2.2.6?

4. Do the Official Plan and Zoning By-law Amendment applications conform to the Region of Waterloo’s Official Plan including policies 2.A, 2.B1.1, 2.C.2.1,2C.2.2 a) b) i)ii), c) e) f) j) i)ii), 2.D.2.2 a) b) c) e) f) i), 2.G.10, 2.G.13, 2.G.14, 2.G.15, 3.A.1, 3.A.2, 3B, 3C), as may be amended by Regional Official Plan Amendment No. 6?

5. Are the Official Plan and Zoning By-law Amendment applications consistent with the direction in the City of Kitchener’s Official Plan including policies 3.C.1.1, 3.C.1.5, 3.C.1.10, 3.C.2.3, 3.C.2.17, 3.C.2.22 a), 4.C.1.8 a), 4.C.1.9, 4.C.1.12, 4.C.1.13 a) b) e) j) k), and 13.C.3.12, 17.E.2.16, 17.E.6.

6. Do the applications appropriately address noise impacts, from all the proposed buildings, adjacent stationary and transportation sources?

7. Are there any implementation measures relating to noise that shall be implemented within the planning instruments?

8. Do the proposed Official Plan Amendment and Zoning By-law Amendment adequately address protection of ground water resources as it relates to the use of geothermal wells?

9. Do the Official Plan and Zoning By-law Amendment applications contribute to an appropriate mix and range of housing?

10. Do the Official Plan and Zoning By-law Amendment applications demonstrate compatibility with surrounding land uses?

11. Do the Official Plan and zoning by-law amendment applications confirm the adequacy of service for the proposed development?

12. Do the Official Plan and zoning by-law amendment applications constitute good land use planning?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Ideal Capital Partners Inc. and 1000249553 Ontario Inc.
2. The City of Kitchener
3. The Regional Municipality of Waterloo
4. Ideal Capital Partners Inc. and 1000249553 Ontario Inc., in Reply, if any

ATTACHMENT 4

PURPOSE OF PROCEDURAL ORDER

Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the Case Management Conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

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.