ISSUE DATE:
July 29, 2024
CASE NO(S).:
OLT-24-000322
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant:
Kap Holdings Inc.
Subject:
Proposed Official Plan Amendment No. 98
Description:
Appealing the City-Wide 5-Bedroom and Increased Permissions for Additional Residential Units. City-initiated amendment to Official Plan
Reference Number:
C.P.-1512(ct)-44 (OPA 98)
Property Address:
City-Wide
Municipality/UT:
London/Middlesex
OLT Case No.:
OLT-24-000322
OLT Lead Case No.:
OLT-24-000322
OLT Case Name:
Kap Holdings Inc. v. London (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant:
Kap Holdings Inc.
Subject:
By-law No. Z.-1
Description:
Appealing the City-Wide 5-Bedroom and Increased Permissions for Additional Residential Units. City-initiated amendment to Zoning By-law
Reference Number:
Z.-1-243187, OZ-9661
Property Address:
City-Wide
Municipality/UT:
London/Middlesex
OLT Case No.:
OLT-24-000323
OLT Lead Case No.:
OLT-24-000322
Heard:
July 11, 2024 by Video Hearing
Parties
Counsel
Kap Holdings Inc. (“Appellant”)
Matthew Helfand
City of London (“City”)
Aynsley Hovius and Christina McCreery
MEMORANDUM OF ORAL DECISION DELIVERED BY A. SAUVE ON JULY 11, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Hearing is the first Case Management Conference (“CMC”) of this matter. The Appellant is appealing the City’s amendments to its Official Plan and Zoning By-law to increase permissions for additional residential units by eliminating the five-bedroom limit, except near campus neighbourhoods, among other changes.
2The Parties provided a draft Procedural Order and Issues List (“PO”) to the Tribunal prior to the CMC.
3The Affidavit of Service for this CMC was reviewed and made Exhibit 1.
PARTY/PARTICIPANT REQUESTS
4Prior to this CMC, the Tribunal received six Participant Status requests.. Counsel for the Appellant indicated that only four requests were in their possession. After a brief discussion and review of the requests, both Parties consented to all of the Participant requests and the Tribunal found that each requestor had an interest in this matter. Counsel for the Appellant would receive copies of the requests they did not have immediately after the CMC.
5The following have been granted Participant status:
a. Jackie Farquhar
b. Therron Jones
c. Jean-Marc Metrailler
d. Orchard Park Sherwood Forest Neighbourhood Association
e. London Community Association
f. The Broughdale Community Association
6The Tribunal had received no Party Status requests.
7The Tribunal canvassed the hearing room for additional Party/Participant requests and there were none.
MEDIATION
8The Tribunal informed the Parties of the availability of Tribunal-led mediation.
NEXT STEPS
9The draft PO, attached as Attachment 1, has been reviewed and approved to govern the Merit Hearing of this matter.
10The Parties requested that the Tribunal set this matter for a three-day hearing. The Appellant informed the Tribunal that they intend to call one witness and the City informed the Tribunal they intend to call one or two witnesses. After some questioning, both Parties maintained that three days will likely be necessary.
11The Tribunal scheduled a three-day Merit Hearing for Wednesday, December 4, 2024 at 10 a.m. through Friday, December 6, 2024.
12Parties and Participants are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoToMeeting: https://global.gotomeeting.com/join/709076365
Access Code: 709-076-365
13Parties and Participants 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) 497-9373. 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 Hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
16THE TRIBUNAL ORDERS that:
- The following have been granted Participant status:
a. Jackie Farquhar
b. Therron Jones
c. Jean-Marc Metrailler
d. Orchard Park Sherwood Forest Neighbourhood Association
e. London Community Association
f. The Broughdale Community Association
- A three-day Merit Hearing is scheduled for Wednesday, December 4, 2024 at 10 a.m. through Friday, December 6, 2024.
17This Member is not seized and remains available through the Case Coordinator should the need arise.
18No further notice is required.
“A. Sauve”
A. SAUVE
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.
ATTACHMENT 1
CASE NO(S).: OLT-24-000322
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Kap Holdings Inc.
Subject:
Proposed Official Plan Amendment No. 98
Description:
Appealing the City-Wide 5-Bedroom and Increased Permissions for Additional Residential Units. City-initiated amendment to Official Plan and Zoning-By-Law
Reference Number:
C.P.-1512(ct)-44 (OPA 98)
Property Address:
City-Wide
Municipality:
London/Middlesex
OLT Case No.:
OLT-24-000322
OLT Lead Case No.:
OLT-24-000322
OLT Case Name:
Kap Holdings Inc. v. London (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Kap Holdings Inc.
Subject:
By-law No. Z-1
Description:
Appealing the City-Wide 5-Bedroom and Increased Permissions for Additional Residential Units. City-initiated amendment to Official Plan and Zoning By-law
Reference Number:
Z.-1-243187, OZ-9661
Property Address:
City-Wide
Municipality:
London/Middlesex
OLT Case No.:
OLT-24-000323
OLT Lead Case No.:
OLT-23-000322
OLT Case Name:
Kap Holdings Inc. v. London (City)
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 Wednesday, December 4, 2024 at 10 a.m. at
GoToMeeting: https://global.gotomeeting.com/join/709076365
Access Code: 709-076-365
The parties’ initial estimation for the length of the hearing is three (3) 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 Procedural Order deadlines are generally found in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2.
The issues are set out in the Issues List attached as Attachment 3. 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 4 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. This list must be delivered on or before October 9, 2024 (date – at least 55 days prior to the start of the hearing ) 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 19, 2024 (date – at least 75 days prior to the start of the hearing) 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 November 18, 2024 (date – at least 15 days prior to the start of the hearing).
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 18, 2024 (date – at least 45 days prior to the start of the hearing), 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 October 18, 2024 (date – at least 45 days prior to the start of the hearing), 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.
On or before October 29, 2024 (date – 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.
On or before November 13, 2024 (date – at least 20 days prior to the start of the hearing), 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 within ten (10) days after the evidence is received 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 22, 2024 (date – at least 10 days prior to the start of 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 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 26, 2024 (date – at least 7 days prior to the start of the hearing) 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 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.
ATTACHMENT 1
SUMMARY OF DATES
DATE
EVENT
July 25, 2024 (75 days prior to exchange of witness statements)
Deadline for the Applicant to submit any revised proposal
October 9, 2024 (55 days prior to hearing)
Exchange of witness lists (names, disciplines and order to be called)
September 19, 2024 (75 days prior to hearing)
Experts meeting prior to this date
October 18, 2024 (45 days prior to hearing)
Exchange of Witness Statements, summoned witness outlines, and Participant Statements
November 18, 2024 (15 days prior to hearing)
Agreed Statement of Facts
November 22, 2024 (10 days after evidence is received)
Exchange of Reply Witness Statements (if any)
October 29, 2024 (35 days prior to hearing)
Parties to advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
November 13, 2024 (20 days prior to hearing)
Exchange of visual evidence (if any)
November 22, 2024 (10 days prior to hearing)
File Joint Document Book
November 26, 2024 (7 days prior to hearing)
Final Hearing Plan filed with the Tribunal
December 4, 2024
Hearing commences for three (3) days
ATTACHMENT 2
LIST OF PARTIES AND PARTICIPANTS
Parties
Kap Holdings Inc.
Aird & Berlis LLP
181 Bay Street
Suite 1800
Toronto, ON M5J 2T9
Matthew Helfand
Email: mhelfand@airdberlis.com
Tel: 416.865.4624
City of London
300 Dufferin Avenue
London, On N6A 4L9
Aynsley Hovius
Email: ahovius@london.ca
Tel: 519.639.7409
Christina McCreery
Email: cmccreery@london.ca
Tel: 519.670.3926
Participants
J. Farquhar
Email: jackiefar2@gmail.com
Tel: 226.271.2332
T. Jones
Email: tjones@glsmetalsgroup.com
Tel: 226.378.8345
J. M. Metrailler
Email: jeanmarcmetrailler@hotmail.com
Tel: 519.281.0353
Orchard Park Neighbourhood Association
Sanford (Sandy) Levin
Email: opsfrp@gmail.com
Tel: 519.472.9576
London Community Association Inc.
Don Bartlett
Email: dsb1091@rogers.com
Tel: 519.660.9003
Broughdale Community Association
Marie Blosh
Email: MarieBlosh@gmail.com
Tel: 226.374.4832
ATTACHMENT 3
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 and shall not be construed as the Tribunal have jurisdiction over such matters in each circumstance.
- Kap Holdings Inc.
OPA 98 Issues
Are Additional Residential Unit criteria 10 (a),(b), (e) and (f) in OPA 98 appropriate and do they represent good land use planning?
Are Additional Residential Unit criteria 10 (a),(b), (e) and (f) in OPA 98 consistent with the PPS 20201?
Does Additional Residential Unit criteria 10 (a),(b), (e) and (f) in OPA 98 have appropriate regard for Section 2 of the Planning Act, specifically, subsections (j), (p), and (q)?
Zoning By-law Z.-1-243187 Issues
Is Zoning By-law Z.-1-243187 consistent with the PPS 20201?
Does Zoning By-law Z.-1-243187 conform with the City’s Official Plan, including the following policies:
- Policy 55_(13)
- Policy 79
- Policy 80
- Policy 193_(7)
- Policy 497
- Policy 513
- Policy 916_(3)
- Policy 918_(2)
- Policy 919_(6)
- Policy 964
Does Zoning By-law Z.-1-243187 have appropriate regard for Section 2 of the Planning Act, specifically, subsections (j), (p), and (q)?
Is the five bedroom limit contained within the definition of “Dwelling Unit” in section 2 of Zoning By-law Z.-1-243187 appropriate and does it represent good land use planning?
Are the bedroom limits contained in section 3 of Zoning By-law Z.-1-243187 appropriate and do they represent good land use planning?
ATTACHMENT 4
ORDER OF EVIDENCE
NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence.
City of London
Kap Holdings Inc.
ATTACHMENT 5
Purpose of the Procedural Order and Meaning of Terms
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.
60908879.1
60908879.3