Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 25, 2024 CASE NO(S).: OLT-24-000115

PROCEEDING COMMENCED UNDER subsection 17(24) and 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 11250396 Canada Inc. (Cacoeli Whitby LP) Appellant: Whitby Brock Estates Subject: Proposed Official Plan Amendment No. 126 Description: To appeal the approval by the Region of Durham of Amendment No. 126 to the Town of Whitby Official Plan Reference Number: OPA 2020-W/03 Property Address: 132 & 146 Brock St N and 423-435 Brock St N Municipality/UT: Whitby/Durham OLT Case No.: OLT-24-000115 OLT Lead Case No.: OLT-24-000115 OLT Case Name: 11250396 Canada Inc. & Whitby Brock Estates v. Whitby (Town)

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

Applicant and Appellant: Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP) Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a site-specific amendment to increase the governing density policy within Downtown Whitby’s Secondary Plan Reference Number: DEV-15-22 (OPA-2022/-W/03) Property Address: 132 & 146 Brock Street North Municipality/UT: Town of Whitby/Regional Municipality of Durham OLT Case No.: OLT-22-004776 OLT Lead Case No.: OLT-22-004776 OLT Case Name: Terrabona Developments Ltd. v. Whitby (Town of)

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

Applicant and Appellant: Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP) Subject: Application to amend the Zoning By-law By-law No. 2585–neglect to make a decision Description: To permit a redevelopment of the site to construct an eleven storey mixed-use building Reference Number: DEV-15-22 (Z-11-22) Property Address: 132 & 146 Brock Street North Municipality/UT: Town of Whitby/Regional Municipality of Durham OLT Case No.: OLT-22-004777 OLT Lead Case No.: OLT-22-004776 OLT Case Name: Terrabona Developments Ltd. v. Whitby (Town of)

Heard: June 28, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
11250396 Canada Inc. (132 and 146 Brock Street North) (Cacoeli Whitby LP)	Russell D. Cheeseman Stephanie Fleming
Whitby Brock Estates (423-435 Brock Street North)	Michael Cara
Town of Whitby	Kacie Layton
Region of Durham	Andrew Biggart Robert Woon
Bara Group (Whitby) Inc. (1200 and 1202 Green Street)	Matthew Helfand

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON JUNE 28, 2024, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a second Case Management Conference (“CMC”) relating to two separate appeals under s. 17(24) and s.17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) of Official Plan Amendment No.126 (“OPA 126”) approval by the Town of Whitby (“Town”) and the approval of OPA 126 by the Region of Durham of (“Region”), respectively (the “Appeals”). The Appeals have been filed individually by 11250396 Canada Inc. (“Cacoeli Whitby LP”) as the owners of 132 and 146 Brock Street North (“Appellant A” / “Site A”) under s. 17(24) of the Act. Whitby Brock Estates has appealed as the owners of 423-435 Brock Street North (“Appellant B” / “Site B”) under s. 17(36) of the Act.

2The purpose of the Town-initiated OPA 126 is to replace Section 11.3 – of the Downtown Whitby Secondary Plan 1989 and introduce updated policies and land use development in the Downtown Whitby Community Secondary Area to reflect the Town’s growing population forecasted to reach approximately 193,000 people by 2031. Town Council adopted OPA 126 on March 20, 2023.

3Site A consists of a total of 0.35 hectares (“ha”) and frontage of approximately 70 metres (“m”) with a depth of 50 m, a single-storey commercial building, with automotive sales/service uses and heritage buildings that provide similar commercial uses, along with a single two-storey concrete building for storage.

4Site B consists of four parcels of land (423, 425, 427, and 435 Brock Street North), on the east side of the street, and consists of a total of 0.36 ha, with a frontage of 60 m and a depth of 60 m. Each parcel of land on Site B consists of a single storey detached bungalow, with private driveway access to Brock Street North.

CONSOLIDATION, APPLICATION STATUS UPDATES, AND HEARING REQUEST

5Counsel for Appellant A/Site A sought to administratively consolidate this OPA 126 Appeal with its own matter before the Tribunal OLT Case File No. (OLT-22-004776), which was previously adjourned sine die earlier this year (March 2024). This request had the consent of all of the Parties related to the Site-Specific Appeal, who were present at this CMC. The Tribunal provided direction that the two matters will be administratively consolidated.

6Counsel for Appellant A also requested that a full Hearing on the merits of consolidated appeal OLT Case File No. (OLT-22-004776) and Appeal OLT Case File No. (OLT-24-000115) (together the “Consolidated Appeals”) be scheduled and heard together for a total length of two-weeks at the discretion of the Tribunal. This request was also on consent of the relevant Parties present at the CMC. The Parties committed to scoping issues further and were directed to submit an updated draft Procedural Order and Issues List (“PO-IL”) to the Case Coordinator or before July 5, 2024.

7Counsel for Appellant B/Site B advised the Tribunal that its own Application is currently in its second pre-consultation phase with the Town. There is no appeal currently before the Tribunal, however, they continue to maintain an interest as a “placeholder” in the OPA 126 Appeal, as it may impact their development proposal.

8The Tribunal noted that a separate Bara Group (Whitby) Inc.(“Bara”) OPA/ZBA matter OLT Case File No. (OLT-21-001810) was recently the subject of a Tribunal Decision on April 29, 2024., and Counsel for Bara advised that it may reconsider its status regarding this proceeding, following a Tribunal Order regarding OPA 126.

9The Parties agreed to submit a draft order on consent, addressing each matter respectively, as they related to OPA 126, and each of their individual matters. It was recommended that for Bara’s own purposes, OPA 126 should broadly proceed and be brought into full force and effect, pursuant to s.17(39) of the Act, in geographic areas not specifically under these Appeals (specifically excluding Site A and Site B) respectively. All Parties agreed that OPA 126 should be allowed to come into full force and effect, with the exception of the Site-Specific considerations applicable to Site A and Site B.

10The Order that follows, allows for a partial approval of OPA 126 without prejudice to the disposition of any other appeal of OPA 126 and any unapproved portions of OPA 126. If/when those appeals proceed to a subsequent hearing or motion, either consolidated, or individually, the Town and Region indicated they would not take the position that the Tribunal ought not to approve amendments to OPA 126 on the basis that such amendments deviate from or are inconsistent with OPA 126 as brought into force with this Order.

11The Tribunal noted that if there were any issues that may be unresolved during the interim period, the Tribunal could arrange for a Telephone Conference Call if requested and reminded the Parties that Tribunal-led mediation is available if mutually agreed upon and if requested through the Case Coordinator.

12After careful consideration of the respective calendars of Parties, the Tribunal scheduled a Hearing of the Consolidated Appeals OLT Case File No(s). (OLT-22-004776 and OLT-24-000115) commencing on Tuesday May 20, 2025, to Friday May 30, 2025, by Video Conference, for a period of nine-days, with a start time of 10 a.m.

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

Access Code: 927-921-077

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. Parties 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

14Persons 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) 497-9391. The Access Code is as indicated above.

15Individuals 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 CMC by Video to ensure that they are properly connected to the event at the correct time. Questions prior to the CMC event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

16The Tribunal expressed its appreciation to all of the Parties for their cooperation and concurred with their recommendations. The Parties to the Consolidated Appeals Hearing, submitted an updated final PO-IL on July 5, 2024, which is approved and attached to this Order marked as Schedule 1, and will guide the proceedings accordingly.

ORDER

17THE TRIBUNAL ORDERS THAT:

1. The Appeal of OPA 126 by 11250396 Canada Inc. (Cacoeli Whitby LP) is scoped in geographic area to 132 and 146 Brock Street North (Site A), Town of Whitby; and

2. The Appeal of OPA 126 by Whitby Brock Estates Inc. is scoped in geographic area to 423-435 Brock Street North (Site B), Town of Whitby.

18Accordingly, and by operation of s. 17(39) of the Planning Act, the non-appealed portions of OPA 126 are in full force and effect except for the lands identified preceding this, in paragraphs 1 and 2, as of the date of this Order.

19THE TRIBUNAL FURTHER ORDERS that:

1. The Hearing as scheduled above relating to the Consolidated Appeals OLT Case File No(s). (OLT-22-004776 and OLT-24-000115) by 11250396 Canada Inc. (Cacoeli Whitby LP) (Site A) is along with the Procedural Order and Issues List attached below as Schedule 1 is so ordered; and

2. The appeal of OPA 126 by Whitby Brock Estates Inc. (Site B) is adjourned sine die. Counsel for the Town of Whitby and Whitby Brock Estates Inc. are directed to provide a status update in respect of this matter to the Case Coordinator on or before Friday, November 29, 2024.

20There will be no further notice.

21The Tribunal may be spoken to if there are any difficulties arising from this Order.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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-24-000115

PROCEEDING COMMENCED UNDER subsection 17(24) and 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 11250396 Canada Inc. (Cacoeli Whitby LP) Appellant: Whitby Brock Estates Subject: Proposed Official Plan Amendment No. 126 Description: To appeal the approval by the Region of Durham of Amendment No. 126 to the Town of Whitby Official Plan Reference Number: OPA 2020-W/03 Property Address: 132 & 146 Brock St N and 423-435 Brock St N Municipality/UT: Whitby/Durham OLT Case No.: OLT-24-000115 OLT Lead Case No.: OLT-24-000115 OLT Case Name: 11250396 Canada Inc. & Whitby Brock Estates v. Whitby (Town)

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

Applicant and Appellant: Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP) Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a site-specific amendment to increase the governing density policy within Downtown Whitby’s Secondary Plan Reference Number: DEV-15-22 (OPA-2022/-W/03) Property Address: 132 & 146 Brock Street North Municipality/UT: Town of Whitby/Regional Municipality of Durham OLT Case No.: OLT-22-004776 OLT Lead Case No.: OLT-22-004776 OLT Case Name: Terrabona Developments Ltd. v. Whitby (Town of)

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

Applicant and Appellant: Terrabona Developments Ltd. and 11250396 Canada Inc. (Cacoeli Whitby LP) Subject: Application to amend the Zoning By-law By-law No. 2585–neglect to make a decision Description: To permit a redevelopment of the site to construct an eleven storey mixed-use building Reference Number: DEV-15-22 (Z-11-22) Property Address: 132 & 146 Brock Street North Municipality/UT: Town of Whitby/Regional Municipality of Durham OLT Case No.: OLT-22-004777 OLT Lead Case No.: OLT-22-004776 OLT Case Name: Terrabona Developments Ltd. v. Whitby (Town of)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Tuesday, May 20, 2025, at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 9 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 the sample procedural order 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 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.

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 Friday, November 3, 2023 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.

10. Expert witnesses in the same field shall have a meeting on or before Friday, December 1, 2023 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 Friday, December 15, 2023.

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, as in paragraph 13 below.

13. On or before Friday, January 12, 2024, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before Friday, January 12, 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.

15. On or before Friday, April 11, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, May 9, 2025, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, January 26, 2024 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, May 9, 2025 .

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, May 12, 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.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. 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.

Summary of Procedural Dates

Date	Event
Friday, November 3, 2023	Witness List
Friday, December 1, 2023	Final day for expert witness meeting
Friday, December 15, 2023	Statement of Agreed Facts and Issues filed
Friday, January 12, 2024	Expert witness and witness statements due
Friday, January 12, 2024	Written participant statement due
Friday, January 26, 2024	Response to written evidence due
Friday, April 11, 2025	Hearing date confirmation
Friday, May 9, 2025	Visual evidence due
Friday, May 9, 2025	Joint Document Book due
Monday, May 12, 2025	Preliminary hearing plan due
May 20, 2025	Hearing

Attachment 1

PARTIES

1. Terrabona Developments Ltd.
2. Town of Whitby
3. Region of Durham

PARTICIPANTS

Attachment 2

Issues List

NOTE: The appeal shall not have the effect of limiting:

(a) The rights of the appellants who have not resolved all their issues in the within appeal to request as a consequence of their evidence that the Tribunal modify, delete, or add to the unapproved portions of OPA 126; or

(b) The jurisdiction of the Tribunal to consider and approve modifications, deletions, or additions to the unapproved portions of OPA 126 on a site-specific basis, or to render decisions on the remaining appeals that deviate from or are inconsistent with those portions of OPA 126 as partially approved, provided that the parties shall be bound by the commitments made by them to scope their issues to a site-specific or area-specific basis.

Principles of Development

1. Provincial Policy Statement (2020): Are the proposed applications consistent with and have proper regard for the Provincial Policy Statement (2020), in particular policies 1.1.1, 1.4 and 1.7(d) and (e), 2.6(?)?
2. A Place to Grow: Growth plan for the Greater Golden Horseshoe: Does conformity with the Growth Plan require approval of proposed applications, including when considering policies 1.2.1, 2.2.6 and 4.2.7?

Town of Whitby Official Plan, Downtown Whitby Secondary Plan and Durham Regional Official Plan

3. Do the proposed applications conform to and meet the goal and intent of the relevant policies of the Durham Regional Official Plan, including policies 7.3.17, 8A.2.2 and 8A.2.14?
4. What weight should be given to the recently adopted Downtown Whitby Secondary Plan when assessing the proposed applications?
5. Do the proposed applications conform to and meet the overall goals, intent, and guiding principles of the Town of Whitby’s Official Plan, including policies
   1. 2.1.1(b) and (h);
   2. 2.3.4.2.1, 2.3.4.2.4 and 2.3.4.2.5;
   3. 3.1.2.6;
   4. 4.3.2.2 to 4.3.2.5, and 4.3.2.8;
   5. 4.4.3.9.4;
   6. 6.1.1, 6.1.2.2, 6.1.3.2 and 6.1.3.10;
   7. 6.2.3.1.2, 6.2.3.1.3, 6.2.3.1.4, 6.2.3.6, 6.2.3.11.1, 6.2.3.11.2, and 6.2.3.12.
6. Do the proposed heights integrate and transition appropriately with the planned/existing heights of the surrounding area in conformity with the Town’s Official Plan policy 11.3.6.4?
7. Is the proposed increase to the maximum permitted building height from 3 and 6 storeys to 11 storeys appropriate as set-out on Schedule “I” – Downtown Secondary Plan Building Height, including policies 6.2.3.12.3 and 11.3.3.3?
8. Is the proposed increase in the maximum permitted residential density from 200 units per net hectare to at least 370 units per net hectare appropriate, in consideration of the Town’s Official Plan (including policy 11.3.4.1)?

Zoning & Urban Design

9. Given the current Holding provision applicable to the rear portion of the subject lands, have the proposed applications sufficiently assessed the servicing capacities within the Downtown area in relation to the sanitary sewers, municipal water, and storm water servicing facilities?
10. Does the proposed Zoning By-law amendment conform to the Town’s Official Plan, and does it properly address/justify and give consideration to:
    1. compatibility with adjacent uses of land;
    2. suitability of the land for the proposed purpose and uses;
    3. adequacy of vehicular access;
    4. minimum parking requirements;
    5. height and density of the proposed development;
    6. lot coverage, setback and stepback requirements;
    7. road widening across the Brock Street North frontage; and
    8. impacts to site plan and site development approvals.
11. Is the proposed height and built form/massing appropriate for the site, given the existing zoning and streetscape?

Heritage

12. Would the height of the proposed applications create a negative impact on the heritage characteristics on the site and surrounding heritage context of the area?
13. How should the heritage conservation measures be implemented and secured as a part of the proposed applications?
14. Has the Appellant conducted a sufficient archaeological assessment of the subject lands?

Site Servicing, Transportation and Engineering

15. Has the Appellant appropriately addressed the site servicing and engineering comments from Town (including those dated July 18, 26 and August 26, 2022), Region and the Central Lake Ontario Conservation Authority (August 2, 2022)?
16. Has the Appellant appropriately responded to the comments of the Town of Whitby’s Transportation Services Division dated July 18, 2022?
17. Has the Appellant appropriately responded to the Region’s comments on the Appellant’s Environmental Noise Study?

Affordable Housing

18. What does the Appellant mean when it says that it is going to provide affordable housing?
    1. Will the proposed applications provide affordable housing, as defined in the Provincial Policy Statement and in the Growth Plan?
    2. If affordable housing is to be provided as part of the proposed applications, how will the affordable housing be secured, what form will it take (i.e., ownership or rental), and for what period of time will it be secured?
19. Does the proposed affordable housing conform to the policy requirements of Regional Official Plan Policy 4.2.4?
20. Does the proposed affordable housing conform to the policy requirements of Town Official Plan Policy 7.7.1, 7.7.3, and 11.3.2.2?

Attachment 3

ORDER OF EVIDENCE

1. Terrabona Developments Ltd.
2. Town of Whitby
3. Regional Municipality of Durham
4. Terrabona Developments Ltd., in Reply