Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 18, 2024

CASE NO(S).: OLT-24-000074

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

Applicant and Appellant: Drewlo Holdings Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a mixed-use, master-planned community Reference Number: OPA No. 43 Property Address: 475 & 485 King Street N. Municipality/UT: City of Waterloo/Region of Waterloo OLT Case No.: OLT-24-000074 OLT Lead Case No.: OLT-24-000074 OLT Case Name: Drewlo Holdings Inc. v. Waterloo (City)

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

Applicant and Appellant: Drewlo Holdings Inc. Subject: Request to amend the Zoning By-law – Failure to adopt the requested amendment Description: To permit a mixed-use, master-planned community Reference Number: Z-22-14 Property Address: 475 & 485 King Street N. Municipality/UT: City of Waterloo/Region of Waterloo OLT Case No.: OLT-24-000075 OLT Lead Case No.: OLT-24-000074 OLT Case Name: Drewlo Holdings Inc. v. Waterloo (City)

Heard: June 6, 2024, by Telephone Conference Call

APPEARANCES:

Parties	Counsel
Drewlo Holdings Inc.	Leo Longo
City of Waterloo	Susan Smith
Regional Municipality of Waterloo	Fiona McCrea
The Club Willowells	Kevin Thompson

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON June 6, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) held by Telephone Conference Call regarding appeals filed by Drewlo Holdings Inc. (“Appellant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning Official Plan Amendment and Zoning By-law Amendment applications (together, “Applications”) for lands known municipally as 475 and 485 King Street North in the City of Waterloo (“Subject Lands”).

2The Applications seek to facilitate the development of a mixed-use, master planned community comprising residential, commercial and employment uses on the Subject Lands. Council for the City of Waterloo (“City”) failed to make a decision within the statutory timeframes prescribed by the Act and the appeals were filed on that basis.

STATUS REQUESTS

3The Tribunal dealt with the deferred request for Party status of 2439675 Ontario Inc. and 2439672 Ontario Inc. (“243”) of lands in the immediate vicinity of the Subject Lands, located two lots south of same.

4Robert Howe counsel for 243 noted that his clients have now requested for Participant status to stay abreast with the Appellant’s appeals in case any changes cause concerns for his clients.

5There was no objection to Participant status being granted, and the Tribunal granted Participant status to 243.

MEDIATION

6The Parties are still engaged in informal discussions and have no immediate plans for Tribunal led mediation.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

7The Tribunal received an updated and finalized Procedural Order and Issues List which will be attached to this decision.

HEARING

8The Tribunal has previously scheduled an 18-day hearing from Wednesday, November 20, 2024 for this matter which dates remain effective.

ORDER

9THE TRIBUNAL ORDERS that:

2439675 Ontario Inc. and 2439672 Ontario Inc. are granted Participant status to these proceedings.
The Procedural Order attached as Schedule 1 shall govern the proceedings.

10This Member is not seized.

“T.F. Ng”

T.F. NG 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-24-000074

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

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

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 November 20, 2024 at 10:00 a.m. through the following link and telephone numbers: [insert details]
The parties’ initial estimation for the length of the hearing is 18 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. To that end, a second case management conference shall be held on June 6, 2024 at 9:00 a.m. via TCC @ 416-212- 8012 Code: 4779874.
The parties and participants identified at the case management conference are set out in Attachment 1 (see the attached sample procedural order for the meaning of these terms).
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. Notwithstanding the foregoing, should the Appellant propose any modification(s) to the applications/proposals prior to or at the hearing, the responding parties reserve the right to add to/modify their respective issues lists and witness lists in response to such modifications. It is further agreed that, notwithstanding paragraph 23 of this Procedural Order, any revisions to the application/proposal without the consent of all parties may be grounds for a request to adjourn the hearing.
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 the witnesses and the order in which they will be called. A preliminary witness list and order of witnesses must be delivered on or before August 14, 2024, and in accordance with paragraph 22 below. A confirmation of the list of witnesses and order of witnesses must be delivered on or before August 30, 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.
Expert witnesses in the same field shall have a meeting on or before September 10, 2024 and use reasonable efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file any Statement(s) of Agreed Facts and Issues with the OLT case co-ordinator on or before September 17, 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 October 9, 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.
On or before September 30, 2024, a participant shall provide copies of their written participant statement to the parties and to the OLT case co-ordinator 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.
On or before October 30, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required, provided that if issues are narrowed and/or resolved after this date, the parties shall advise the Tribunal as soon as reasonably possible of any hearing date(s) that may be released as a result.
On or before November 6, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before October 23, 2024 and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 6, 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 and the parties 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 November 13, 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.
All filings shall be submitted electronically and, if requested by the OLT case co-ordinator, 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.

Summary of Dates

DATE	EVENT
June 6, 2024	Second Case Management Conference
August 14, 2024	Exchange of preliminary witness lists (names, disciplines and order to be called)
August 30, 2024	Exchange of final witness list
September 10, 2024	Experts meeting by this date
September 17, 2024	Agreed Statement of Facts
October 9, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
October 23, 2024	Exchange of Reply Witness Statements (if any)
October 30, 2024	Date to let Tribunal know if all hearing dates are required
November 6, 2024	Visual Evidence and Joint Document Book
November 13, 2024	Hearing Plan filed with the Tribunal
November 20, 2024	Hearing commences

Attachment 1

List of Parties and Participants

Parties:

Drewlo Holdings Inc. Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9 Leo F. Longo Tel: 416.865.7778 Email: llongo@airdberlis.com

City of Waterloo City of Waterloo 100 Regina Street South PO Box 337, Station Waterloo Waterloo, ON, N2J 4A8 Susan Smith Tel: 519.747.6100 Email: susan.smith@waterloo.ca

Region of Waterloo The Regional Municipality of Waterloo 150 Frederick Street, 8th Floor Kitchener, ON, N2G4J3 Fiona McCrea Tel: 519-575-4518 Email: fmccrea@regionofwaterloo.ca

The Club Willowells SmithValeriote Law Firm LLP 245 Hanlon Creek Blvd. Unit 102 Guelph, ON N1C 0A1 Kevin Thompson Tel: 519.821.4146 Email: kthompson@svlaw.ca

Participants:

65 Northfield Drive Inc. Turkstra Mazza Associates 25 Mian Street West Suite 2010 Hamilton, ON L8P 1H1 Jennifer Meader Tel: 905.529.3476 Email: jmeader@tmalaw.ca

2439675 Ontario Inc. and 2439672 Ontario Inc. Goodmans LLP 333 Bay Street Suite 3400 Toronto, ON M5H 2S7 Robert Howe Tel: 416.597.5158 Email: rhowe@goodmans.ca

Attachment 2

Issues List

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet, but shall not preclude any other party from calling evidence on the issue.

City of Waterloo

Planning Act, Provincial Policy Statement, Growth Plan, and Official Plans

Do the applications have appropriate regard to the matters of Provincial interest, as set out in Section 2 of the Planning Act, R.S.O. 1990, c.P.13, as amended?
Are the applications consistent with the Provincial Policy Statement, 2020, including policies 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 2.1, 2.2, 3.1, and 3.2?*
Do the applications conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, including policies 2.2.1, 2.2.2, 2.2.5, 2.2.6, 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.6, 3.2.7, 3.2.8, 4.2.5, and 4.2.10?*

(Note, on April 6, 2023, the Province released a proposal to combine the PPS and Growth Plan into a new land use policy document and this proposal continues to be posted to the Environmental Registry of Ontario. The comment period closed on August 4, 2023; a proposed new planning policy instrument has not been released. As such additional or different policies may be applicable/relevant should the proposal come into force and effect, and the Issues List may be updated accordingly)

Do the applications conform to the Region of Waterloo Official Plan, as amended, including policies 2.D.1, 2.D.2, 2.D.11, 2.D.12, 2.D.13, 2.G.7, 2.G.8, 2.G.10, 2.G.13, 2.G.14, 2.G.15, 2.G.18, 2.G.19, 3.1, 3.2, 3.4, 3.5, 3.7, 3.9, 3.A.2, 3.A.5, 3.A.6, 3.B.1, 3.B.2, 3.B.3, 3.C.4, 3.D.5, 4.A.3, 4.A.5, 4.A.6, 4.A.7, 4.D.2, 4.D.5, 5.A.3, 5.A.14, 5.A.18, 5.A.25, 5.A.26, 5.A.35, 5.A.36, 10.D.2, 10.D.11, 10.D.12. 10.D.13, 10.E.5, and 10.E.6?
Do the applications conform to the City of Waterloo Official Plan, as amended, including policies 1.4, 2.2, 2.3, 3.1, 3.2, 3.3, 3.4, 3.6, 3.9, 3.10, 3.11, 4.1, 4.5, 4.6, 5.1, 5.2, 5.3, 5.4, 6.1, 6.3, 6.4, 6.5, 6.6, 7.1, 7.3, 7.4, 7.5, 8.1, 8.2, 8.3, 8.4, 10.1, 10.2, 10.3, 10.5, 10.7, 11.1.44, 11.1.76, 12.2.3, 12.2.9, and 12.3.1?

Good Planning, Public Interest

Do the applications represent good planning and are they in the public interest?

Land Use

Are the requested Official Plan designations appropriate for the proposed development?
Are the proposed land uses (and their layout on the site) compatible with each other, and with surrounding land uses?
Does the proposed development appropriately address the complete, sustainable and integrated community objectives of the City’s Official Plan, with consideration for matters including road connectivity and pedestrian access/connectivity?
Does the proposed development provide for an appropriate mix, range and amount of commercial space?
Does the proposed development provide for an appropriate mix, range and amount of employment space?
Does the proposed development provide for an appropriate mix, range and amount of community uses and social space?
Does the proposed development provide for an appropriate mix and range of housing, including affordable housing?
Is the proposed phasing plan appropriate?

Height and Density

Are the proposed the heights and density consistent with and in conformity with all applicable planning policy, including the City’s Official Plan, and are they appropriate for the site and surrounding context?
Does the proposed development adequately address matters of height and density, including built form, shadowing, wind impacts, and transitioning to adjacent high, medium, and low density residential parcels?

Urban Design

Does the proposed development adequately demonstrate compatibility and integration with surrounding lands and land uses?
Does the proposed development provide for appropriate urban design, having regard to matters including mixing of uses, animated streetscape, building height, human scale, massing and architectural design, character, setbacks/stepbacks, siting and landscaping, parking, public spaces, gateways, comfort, and mitigating thermal/wind impacts?
Does the layout of the proposed development provide appropriate connectivity for pedestrians, cyclists, and other forms of active transportation?

Infrastructure

Does the proposed development appropriately address servicing and infrastructure requirements, including utility requirements for each phase and the final build-out?

Parkland & Passive Recreation

Does the proposed development adequately address parkland requirements, in accordance with the City’s Parkland Dedication By-law and the City’s Official Plan?
Is the proposed parkland appropriately sized and located on the site?
Is it appropriate for the proposed parkland to be encumbered, including by underground parking, services, or utilities?
Does the proposed development provide for adequate passive recreation areas?
Does the proposed development provide for adequate active recreation areas?

Landscaped Space

Does the proposed development provide for appropriate green space / landscaped space, including in conformity with applicable policies and the City’s Comprehensive Engineering and Design Manual?

Parking

Are the proposed parking rates adequate?
Are the proposed parking structures an appropriate use of the land?
Has underground parking on the site been sufficiently considered as part of the proposed development?
Does the proposed development provide adequate and appropriate space for loading areas, surface parking, and bicycle parking spaces?

Transportation

Are the proposed site driveways, and configuration thereof, appropriate and adequate, including the mitigation of impacts on surrounding highways?
Does the proposed development adequately consider and address transportation impacts from other proposed development(s), in particular those within the immediate surrounding area?
Does the proposed development adequately consider and address impacts to Highway 85 infrastructure and operations?
Does the proposed development provide for appropriate and adequate active transportation connections, including for navigating the site and connecting to nearby destinations?
Does the proposed development adequately address Transportation Demand Management (TDM) measures, and ensure that they will be appropriately implemented and secured?

Zoning

Are the proposed zoning categories appropriate?
Are the requested amendments to zoning regulations appropriate and necessary for the proposed development?
Does the proposed development conform to all other applicable zoning regulations?

Floodplain

Do the applications appropriately address the floodplain policies and regulations contained in applicable legislation, plans, and policies, including the City’s Official Plan and Zoning By-law, and align with the requirements and policies of the Grand River Conservation Authority?

Groundwater

Will the proposed development negatively impact the groundwater flowing to the Four Wells Ponds to the east of the site, and if so, are any impacts sufficiently mitigated?
Will the proposed development comply with applicable de-watering requirements, including in accordance with the City’s Comprehensive Engineering and Landscape Manual?

Region of Waterloo

Do the applications appropriately address site contamination, including but not limited to completion of a Record of Site Condition and receipt of an acknowledgment letter from the Ministry of the Environment, Conservation and Parks?
Do the applications appropriately address noise impacts, from all the proposed buildings, adjacent stationary and transportation sources?

The Club Willowells

Hydrogeology

Has the Applicant demonstrated that the proposed development will not cause any adverse impacts on downstream groundwater flow/discharge conditions including, in particular, to the three groundwater receiving ponds of Four Wells Pond beside King Street?
Has the Applicant appropriately characterized the depth of groundwater and flow contours on the Subject Property, including seasonal fluctuations? Has the Applicant considered continuous groundwater level monitoring at key locations?
In particular with respect to Issue 2, has there been appropriate regard for the depth of groundwater at BH4?
Has the underground parking, including all foundations and footings, been designed to be an adequate height above the water table? If temporary construction is proposed below the groundwater level, has the Applicant characterized construction methods/design to ensure no temporary/permanent adverse impacts to the Four Wells Pond?
Is it appropriate to require the Applicant to enter into an agreement with The Club Willowells to ensure long-term groundwater level monitoring is completed by the Applicant and to provide for indemnification against adverse impacts?

Planning

Is the proposed OPA / ZBA consistent with the PPS 2020, including in particular policies 2.2.1(f) and (i), and 2.2.2?

Attachment 3

Order of Evidence

Drewlo Holdings Inc. City of Waterloo Region of Waterloo The Club Willowells Drewlo Holdings Inc. in Reply

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.

56499313.1 60546172.1

Drewlo Holdings Inc. v. Waterloo (City), 2024 CanLII 59475

Case Summary