ISSUE DATE:
July 10, 2024
CASE NO(S).:
OLT-24-000191
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant:
Format Lakeshore Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a maximum building height of 11 storeys
Reference Number:
OPA1715.25
Property Address:
42 Lakeshore Road West
Upper Tier:
Oakville/Halton
OLT Case No.:
OLT-24-000191
OLT Lead Case No.:
OLT-24-000191
OLT Case Name:
Format Lakeshore Inc. v. Oakville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant:
Format Lakeshore Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a maximum building height of 11 storeys
Reference Number:
Z.1715.25
Property Address:
42 Lakeshore Road West
Upper Tier:
Oakville/Halton
OLT Case No.:
OLT-24-000192
OLT Lead Case No.:
OLT-24-000191
Heard:
June 19, 2024 by Video Hearing
Parties
Counsel/Representative*
Format Lakeshore Inc.
Ira T. Kagan
Doug Pateman
Town of Oakville
Andrew Biggart
Nadia Chandra
Frastell Associates Inc.
Geoffrey Janoscik
John G. Richardson (in absentia)
Regional Municipality of Halton
Kelly G. Yerxa
MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON JUNE 19, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This was the first Case Management Conference (“CMC”) concerning Format Lakeshore Inc.’s (“Appellant”) Appeal pursuant to s. 22(7) and s. 34(11) of the Planning Act (“Act”) in response to the Town of Oakville’s refusal to adopt the requested amendments to the Official Plan and Zoning By-law to permit an 11-storey building on the property at 42 Lakeshore Road West (“Subject Lands”).
2The Appellant seeks to construct a mixed-use building with ground floor commercial and 152 residential units. The property will have parking for 183 automobiles and 152 bicycles. It is proposed that the McCraney-Robertson Heritage House, located on the northwest corner of the property, be replaced with a heritage structure and interpretive landscape.
3In 2015, the Ontario Municipal Board approved a maximum building height of four storeys and then, in 2019, a site plan application was submitted to permit a five-storey mixed-use building with 41 residential units along with retail space and the preservation of the McCraney-Robertson Heritage House was to remain. Subsequently, this site plan application was withdrawn and replaced with the current applications described above.
AFFIDAVIT OF SERVICE AND STATUS
4The Affidavit of Service was sworn on May 15, 2024, by Christopher J. Drew which confirms that notice was served. The Affidavit of Service was marked as Exhibit 1, and no further notice is required.
STATUS REQUESTS
5The Tribunal granted Party status to the Regional Municipality of Halton (“Region”). Counsel for the Region indicated they are specifically interested in this Appeal with respect to its conformity with Provincial and Regional planning policies and other site-specific matters related to waste management, site contamination and servicing. Status was granted given the planning concerns expressed and with the consent of the Parties.
6The Tribunal also granted Party status to Frastell Associates Inc. (“Frastell”) given their ownership of lands in close proximity to the Subjects Lands, and with the consent of the Parties.
7The Tribunal granted Participant Status to Lorna Sinclair. Ms. Sinclair, in representing a group of neighbours, expressed concerns with the Proposed Development related to its height, mass, density and scale along with concerns with its conformity with the surrounding area and traffic issues. She indicated that her organization is not incorporated and understood that she, individually, was granted Participant Status.
8Arbour Memorial Inc., owners of Oakview Funeral Home, which is adjacent to the Subject Lands, submitted a Participant status application on June 19, 2024. The application included two letters outlining their concerns that were also submitted to the Municipality during their public process. The Tribunal heard submissions from the Parties regarding this application and while some concern was expressed related to the lateness of the application, it was determined that no new issues were expressed from those previously shared and were known to the Parties. The Tribunal granted Arbour Memorial Inc. Participant Status.
MEDIATION
9The Tribunal was informed that the Parties were engaging in Tribunal-led mediation immediately following this hearing and would keep the case coordinator updated on developments through this process.
HEARING PLANNING
10The Tribunal heard submissions from the Parties regarding the next steps concerning this case. In summary, the Parties anticipated that they each would have two to three expert witnesses in the areas of land use planning, urban design and transportation. They estimated that a seven-day hearing would provide enough time given the scope of the issues.
11The Tribunal reviewed a draft Procedural Order (“PO”) on consent of the Parties and a final draft following the hearing which was approved and is found below as Schedule 1.
12A seven-day hearing is scheduled to commence by Video on Tuesday, February 18, 2025 at 10 a.m. as follows:
https://meet.goto.com/348282861
Access Code: 348-282-861
13Parties and Participants 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 and Participants 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:
- A 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(S).:
OLT-24-000191
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant:
Format Lakeshore Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a maximum building height of 11 storeys
Reference Number:
OPA1715.25
Property Address:
42 Lakeshore Road West
Upper Tier:
Oakville/Halton
OLT Case No.:
OLT-24-000191
OLT Lead Case No.:
OLT-24-000191
OLT Case Name:
Format Lakeshore Inc. v. Oakville (Town)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant:
Format Lakeshore
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a maximum building height of 11 storeys
Reference Number:
Z.1715.25
Property Address:
42 Lakeshore Road West
Upper Tier:
Oakville/Halton
OLT Case No.:
OLT-24-000192
OLT Lead Case No.:
OLT-24-000191
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 Hearing will begin on February 18, 2025 at 10:00 a.m. Unless otherwise subsequently ordered by the Tribunal, the Hearing shall proceed by videoconference.
https://meet.goto.com/348282861
Access Code: 348-282-861
The Parties’ initial estimation for the length of the Hearing is 7 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.
The Parties and Participants identified at the case management conference are set out in Attachment 1.
The issues for the Hearing 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.
The order of evidence shall be as set out in Attachment 3. The Tribunal may limit the amount of time allocated for opening statements, direct evidence (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the Parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.
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 (https://olt.gov.on.ca/tribunals/lpat/).
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. This list must be delivered on or before November 1, 2024, and in accordance with paragraph 24 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.
If the Applicant/Appellant intends to present in its witness statements revisions to the proposal (official plan amendment and/or zoning by-law amendment) from the one filed with the Town, which revisions do not respond to issues in a manner which narrows or settles issues, the Applicant/Appellant shall provide copies of the revised proposal, including revised text, plans and drawings, together with copies of any new or updated technical reports it intends to rely on in support of the revised proposal to the other parties on or before November 4, 2024. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.
Expert witnesses in the same field shall have a meeting on or before December 13, 2024, and try to resolve or reduce the issues for the Hearing. Following the experts’ meetings, and if any agreement is reached, the Parties must prepare and file a Statement of Agreed Facts and Issues with the Case Co-ordinator on or before December 20, 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 16 below. Instead of an Expert 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 and not paid to produce a report do not have to file an Expert Witness Statement; but the Party calling them must file an outline of the expert’s evidence as in paragraph 16 below.
A Party who intends to call a witness who is not an expert must file a Witness Statement, as in paragraph 16 below.
On or before December 30, 2024, the Parties shall provide copies of their Witness Statements and Expert Witness Statements to the other Parties and to the Case Co-ordinator and in accordance with paragraph 24 below.
On or before December 30, 2024, a Participant shall provide copies of their written Participant Statement to the Parties and to the Case Co-ordinator in accordance with paragraph 24 below. A Participant cannot present oral evidence or submissions at the Hearing unless ordered by the Tribunal.
Parties may provide to all other Parties and the Case Co-ordinator a written response to any Written Evidence on or before January 31, 2025, and in accordance with paragraph 24 below.
On or before February 7, 2025 the Parties shall provide copies of their visual evidence to all of the other Parties in accordance with paragraph 24 below. If a model will be used, all Parties must have a reasonable opportunity to view it before the Hearing.
The Parties shall cooperate to prepare a Joint Document Book which shall be shared with the Case Co-ordinator on or before February 7, 2025.
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 other Parties by February 7, 2025 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 February 13, 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 direct, cross-examination and re-direct 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 filing shall be electronic, unless the Tribunal requests a hard copy(ies) of any document. 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 PROCEDURAL DATES
DATE
EVENT
Friday November 1, 2024
Exchange of Witness Lists including the order in which they will be called
Monday, November 4, 2024
Applicant/Appellant to provide copies of the revised proposal (if changed)
Monday December 13, 2024
Meeting of expert witnesses in the same field
Monday December 20, 2024
Filing of Agreed Statement of experts
Monday December 30, 2024
Witness Statement exchange Participant Statements filed
Friday January 31, 2025
Reply Witness Statement exchange
Friday February 7, 2025
Visual evidence exchange
Friday February 7, 2025
Joint Document Book filed
Thursday February 13, 2025
Hearing Plan filed
Tuesday February 18, 2025
Hearing commences
ATTACHMENT 1 List of Parties/Participants
PARTIES
Party
Counsel / Representative
Format Lakeshore Inc.
Ira Kagan /Doug Pateman Kagan Shastri DeMelo Winer Park LLP 188 Avenue Road Toronto, Ontario, Canada M5R 2J1 Email: ikagan@ksllp.ca /dpateman@ksllp.ca Tel: (437) 781-9549 /(437) 780-3586
Town of Oakville
R. Andrew Biggart Ritchie Ketcheson Hart & Biggart LLP 206 - 1 Eva Road Toronto, ON M9C 4Z5 Email: abiggart@ritchieketcheson.com Tel: 416-622-6601 Ext. 227
Nadia Chandra Town of Oakville-Assistant Town Solicitor 1225 Trafalgar Rd Oakville, Ontario L6H 0H3 Email: nadia.chandra@oakville.ca Tel: 905 845 6601 Ext. 3912
Region of Halton
Kelly G. Yerxa Senior Legal Counsel 1151 Bronte Road, Oakville Ontario L6M 3L1 Email: Kelly.Yerxa@halton.ca Tel: 905-825-6000, Ext.7740
Frastell Associates Inc. (Maintaining a watching brief only)
John G. Richardson/Geoffrey Janoscik Dale & Lessmann LLP 181 University Ave #2200, Toronto, Ontario M5H 3M7 Email: jrichardson@dalelessmann.com/ gjanoscik@dalelessmann.com Tel: 416-410-0615 / 416-369-7823
Participants
Participant
Counsel / Representative*
Lorna Sinclair, personally speaking for the Harbourside Planning Coalition, an unincorporated entity
Lorna Sinclair Email: l.sinclair56@outlook.com Tel: 416-617-9875
Arbor Memorial Inc.
Cosimo Casale* Cosmopolitan Associates Inc. 185 Blake Avenue Willowdale Ontario M2M 1B5 Canada Email: cosimo@cosmopolitan.ca Tel : 416-730-0886
ATTACHMENT 2
ATTACHMENT 3 Order of Evidence
- Format Lakeshore Inc.
- Town of Oakville
- Halton Region
- Frastell Associates Inc.
- Format Lakeshore Inc. (Reply, if any)
ATTACHMENT 4
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 authorization 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.