Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 30, 2024
CASE NO.:
OLT-22-004603
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
2371633 Ontario Inc.
Subject:
Request to amend the Official Plan – Refusal of request
Description:
To permit a 10-storey mixed use building containing 389 residential units and 600 square metres of commercial
Reference Number:
OZS22-005
Property Address:
785 Gordon Street
Municipality/UT:
Guelph/Wellington
OLT Case No:
OLT-22-004603
OLT Lead Case No:
OLT-22-004603
OLT Case Name:
2361633 Ontario Inc v. Guelph (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Application to amend the Zoning By-law – Refusal of application
Description:
To permit a 10-storey mixed use building containing 389 residential units and 600 square metres of commercial
Reference Number:
OZS22-005
Property Address:
785 Gordon Street
Municipality/UT:
Guelph/Wellington
OLT Case No:
OLT-22-004604
OLT Lead Case No:
OLT-22-004603
BEFORE:
SHARYN VINCENT
Tuesday, the 30th
VICE-CHAIR
day of July, 2024
THIS MATTER having come before the Tribunal for a Case Management Conference, and the Tribunal in its Decision issued April 21, 2023;
AND THE TRIBUNAL having been advised on July 26, 2024 that the parties have resolved the draft Procedural Order and Issues list on consent;
THE TRIBUNAL ORDERS that the Procedural Order attached to this Order as Schedule “A” shall be in force and effect for the purposes of governing the procedures leading up to and including the hearing, which is scheduled to commence on Monday, October 21, 2024 at 10:00 AM for 10 days to proceed by video as follows:
Go To Meeting: https://meet.goto.com/370987861
Access Code: 370-987-861
Audio-only telephone line: Toll Free 1 888 455 1389, or (647) 497-9391
Audio-only access code: 370-987-861
“Euken Lui”
EUKEN LUI
ACTING REGISTRAR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
SCHEDULE “A”
ISSUE DATE: CASE NO(S).: OLT-22-004603; and OLT-22-004604
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
2371633 Ontario Inc.
Subject:
Request to amend the Official Plan – Refusal of request
Description:
To permit a 10-storey mixed use building containing 389 residential units and 600 square metres of commercial
Reference Number:
OZS22-005
Property Address:
785 Gordon Street
Municipality/UT:
City of Guelph
OLT Case No:
OLT-22-004603
OLT Lead Case No:
OLT-22-004603
OLT Case Name:
2361633 Ontario Inc v. Guelph (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Application to amend the Zoning By-law – Refusal of application
Description:
To permit a 10-storey mixed use building containing 389 residential units and 600 square metres of commercial
Reference Number:
OZS22-005
Property Address:
785 Gordon Street
Municipality/UT:
City of Guelph
OLT Case No:
OLT-22-004604
OLT Lead Case No:
OLT-22-004603
PROCEDURAL ORDER
- The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.
Organization of the Hearing
The hearing will begin on Monday October 21, 2024 at 10 a.m. by video conference (https://meet.goto.com/370987861, Access Code: 370-987-861) or by audio only (1 888 455 1389 or (647) 497-9391. Access code is 370-987-861).
The length of the hearing is 10 days. The length of the hearing may be shortened as issues are reordered or where settlement is achieved.
The parties and participants identified at the case management are set out in Attachment 1.
The Issues are set out in the Issues Lists 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 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 consent 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. 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.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties, the municipal clerk for the City, and to the Tribunal Case Co-ordinator, a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday, July 12, 2024. 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.
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. 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 an outline of the expert’s evidence. Copies of this must be provided in accordance with paragraph 11.
A party who intends to call a witness who is not an expert must file an outline of the witness’ evidence. Copies of this must be provided in accordance with paragraph 11.
On or before Friday, August 30, 2024, the parties shall provide copies of their expert witness statements and outlines of evidence to all other parties, the municipal clerk for the City and the Tribunal Case Co-ordinator.
On or before Friday, August 30, 2024, the participants, if any, shall provide copies of their participants statements and outlines of evidence to all other parties, the municipal clerk for the City and the Tribunal Case Co-ordinator. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before Friday, September 20, 2024, the parties shall provide copies of their expert reply witness statements to all other parties, the municipal clerk for the City and the Tribunal Case Co-ordinator.
Expert witnesses in the same field shall have a meeting on or before Friday, July 26, 2024 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all the parties and the Tribunal Case Co-ordinator on or before Friday, August 9, 2024.
On or before Monday, September 16, 2024, (at least 35 days prior to the start of the hearing), the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
16. On or before Monday, September 30, 2024, the parties shall provide copies of their visual evidence to all of the other Parties. If a model will be used, all Parties must have a reasonable opportunity to view it before the Hearing.
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 on or before Friday, October 11, 2024 that the written evidence is not part of their record.
The parties shall prepare and file a detailed hearing plan with the Tribunal on or before Monday October 14, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal Case Co-ordinator on or before Monday October 14, 2024 .
All filings, including the exchange of documents between parties and participants, shall be done electronically. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
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.
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.
This Member is not seized.
So orders the Tribunal.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
SUMMARY OF KEY DATES
Friday, July 12, 2024
Parties exchange Witness List
Friday, July 26, 2024
Like experts must have completed expert meetings
Friday, August 9, 2024
Parties must file Agreed Statement as determined by experts
Friday, August 30, 2024
Parties exchange Witness Statements
Friday, August 30, 2024
Participants to file written Participant Statements
Friday, September 20, 2024
Parties to exchange Reply Witness Statements
Monday, September 30, 2024
Exchange of Visual Evidence
Friday, October 11, 2024
Notification to Tribunal and Parties if witness will not provide oral evidence
Monday October 14, 2024
Hearing Plan filed with Tribunal
Monday, October 14, 2024
Joint Document Book filed with Tribunal
Monday, October 21, 2024
Hearing start date
Attachment 1 to Procedural Order (Parties and Participants)
a) Parties
2371633 Ontario Inc.
KAGAN SHASTRI DEMELO WINER PARK LLP
188 Avenue Road
Toronto, Ontario
M5R 2J1
Ira T. Kagan / Sarah R. Kagan
T 416-368-2100 Ext 226/230
E ikagan@ksllp.ca / skagan@ksllp.ca
CORPORATION OF THE CITY OF GUELPH
Legal, Realty and Court Services City Hall,
1Carden Street,
Guelph ON N1H 3A1
Allison Thornton, Associate Solicitor
T 519-822-1260, x. 2438
b) Participant
Bill Mungall (on behalf of Bill Mungall, Karen Sagan and Sheila Trask)
T 519-836-5567
Attachment 2 to Procedural Order
Issues List
NOTE: The identification of an issue on this list does not mean that all Parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the Hearing.
Is the revised proposed official plan amendment for an 11-storey mixed-use development with a site-specific density of 584 units per hectare at 785 Gordon Street consistent with the Provincial Policy Statement, 2020 and in particular with Policy 1.1.3. as it relates to intensification of built-up areas?
Does the revised proposed official plan amendment for a 11-storey mixed-use development with a site-specific density of 584 units per hectare at 785 Gordon Street conform to the strategic goals of the Guelph Official Plan relating to complete communities, intensification and the compatibility of new development with existing neighbourhoods.
Does the proposed official plan amendment for an 11-storey mixed-use development with a site-specific density of 584 units per hectare at 785 Gordon Street conform to the urban design policies of the Guelph Official Plan.
Does the proposed official plan amendment to redesignate the site as high density residential, to allow for an 11-storey mixed-use development with a site-specific density of 584 units per hectare at 785 Gordon Street conform with the criteria for assessing an official plan amendment set out in policy 1.3.14 of the Guelph Official Plan?
Are the site-specific zoning by-law amendments sought for this site as they relate to density, massing, setbacks, step-backs, floor space index (FSI), exterior patios, angular plane, amenity area and a new definition of “post secondary school residence”, appropriate and justified with reference to the applicable land use and urban design policies of the Guelph Official Plan?
Do the official plan and zoning by-law amendments requested for an 11-storey mixed-use development with a site-specific density of 584 units per hectare at 785 Gordon Street represent good planning?
Is the proposal for official plan and zoning by-law amendments supporting an 11-storey mixed-use development with a site-specific density of 584 units per hectare at 785 Gordon Street supported by appropriate microclimatic studies as required by the City Official Plan?
Should the cumulative impact of requests for a tripling of the density of development over numbers contemplated in the City’s Water Supply Master Plan and Wastewater Master Plan be considered good planning, bearing in mind limits on the population that can be adequately serviced by the City’s groundwater source and wastewater infrastructure without consideration for planned/unfinanced upgrades?
Should the Tribunal, having regard to the decision of Guelph City Council and the information before Council, as required under section 2.1 of the Planning Act (Ontario), uphold that decision and dismiss these appeals from the refusal of Council of the applications for official plan and zoning by-law amendments?
Attachment 3 to Procedural Order - Order of Evidence
2371633 Ontario Inc.
City of Guelph
2371633 Ontario Inc. in Reply
ATTACHMENT 4
Purpose of the Procedural Order and Meaning of Terms
The Tribunal recommends that the parties meet to discuss this sample Order before the Case Management Conference to try to identify the issues and the process that they want the Tribunal to order following the conference. The Tribunal will hear the parties’ comments about the contents of the Order at the conference.
Case Management Conferences usually take place only where the hearing is expected to be long and complicated. If you are not represented by a lawyer, you should prepare by obtaining the Guide to the Ontario Land Tribunal, and the Tribunal’s Rules, from the Tribunal Information Office, 15th Floor, 655 Bay Street, Toronto, M5G 1E5, 416-212-6349, or from the Tribunal’s website at https://olt.gov.on.ca/about-olt/.
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.