Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 06, 2024
CASE NO(S).: OLT-24-000350
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Will-O Homes (C.S.) Inc.
Subject: Request to amend the Official Plan – Refusal of request
Description: To permit three, three-storey stacked townhouse buildings
Reference Number: OR12/22
Property Address: 190 & 194 Pinebush and 10 Wayne Avenue
Municipality/UT: Cambridge/Waterloo
OLT Case No: OLT-24-000350
OLT Lead Case No: OLT-24-000350
OLT Case Name: Will-O Homes (C.S.) Inc. v. Cambridge (City)
PROCEEDING COMMENCED UNDER subsection 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 three, three-storey stacked townhouse buildings
Reference Number: OR12/22
Property Address: 190 & 194 Pinebush and 10 Wayne Avenue
Municipality/UT: Cambridge/Waterloo
OLT Case No: OLT-24-000351
OLT Lead Case No: OLT-24-000350
Heard: July 19, 2024 via Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Will-O Homes (C.S.) Inc. | Eric Davis |
| City of Cambridge | Nicole Auty |
| Regional Municipality of Waterloo | Andy Gazzola Fiona McCrea (in absentia) |
MEMORANDUM OF ORAL DECISION DELIVERED a. mason on July 19, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This first Case Management Conference (“CMC”) was held concerning appeals filed pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended in respect of the refusal of applications for Official Plan Amendment and Zoning By-Law Amendment by Council of the City of Cambridge filed by Will-O Homes (C.S.) Inc. with respect to the properties municipally known as 190-194 Pinebush Road and 10 Wayne Avenue in the City of Cambridge (“Subject Property”).
2The Applications would facilitate the development of a 39-unit, three-storey stacked townhouse development on the Subject Property.
NOTICE
3An Affidavit of Service sworn on June 21, 2024, attesting to the giving of notice for this proceeding, was marked as Exhibit 1.
REQUESTS FOR STATUS
4In advance of the CMC, the Region of Waterloo (“Region”) advised the Tribunal in writing that it sought Party Status in the matters. Counsel for the Region expressed its interest in the matter as the approval authority for amendments to the City’s Official Plan and a commenting agency on the Zoning By-Law application regarding conformity with the Region’s Official Plan. The Parties did not object to the request, and the Tribunal granted Party Status to the Region.
5The Tribunal received a written request for Participant Status from Brenda Phipps, as a local resident with primarily traffic safety and congestion concerns. The Parties did not object to the request, and the Tribunal granted Participant Status to Brenda Phipps.
MEDIATION OR SETTLEMENT
6The Parties advised the Tribunal that they are engaged in without prejudice discussions with a view to scoping or resolving the issues between them.
PROCEDURAL ORDER AND ISSUES LIST
7The Parties provided a draft Procedural Order and Issues List (“PO/IL”) in advance of the CMC and provided a final version prior to the Tribunal releasing this Decision. The PO/IL appended hereto as Attachment 1 shall govern these proceedings.
SECOND CASE MANAGEMENT CONFERENCE
8The Parties requested a second CMC in order to check-in with the Tribunal on the progress of ongoing discussions and potential resolution of issues. The Tribunal scheduled a CMC for Thursday, November 7, 2024 at 10 a.m. by video hearing.
9The Parties 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:
Thursday, November 7, 2024, at 10 a.m. (One-Day CMC Hearing)
GoTo Meeting: https://global.gotomeeting.com/join/979388733
Access code: 979-388-733
Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1(647) 497-9373
Audio-only access code 979-388-733
HEARING DATES
10The Parties requested a three-day Merit Hearing be set down, and the Tribunal scheduled Tuesday, February 18, 2024 to Thursday, February 20, 2024, at 10 a.m. as set out below. The Parties raised no further matters for the fair and expeditious resolution of these appeals.
Tuesday, February 18, 2024, at 10 a.m. (three-Day Merit Hearing)
GoTo Meeting: https://global.gotomeeting.com/join/656004293
Access code: 656-004-293
Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1(647) 497-9373
Audio-only access code 656-004-293
11Parties 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
12Persons 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.
13Individuals 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 event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
14The directions set out above are so ordered by the Tribunal.
15No further notice is required.
16The Panel is not seized of this matter.
“A. Mason”
A. MASON
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.
ONTARIO LAND TRIBUNAL
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant(s)/Appellant(s): Will-O Homes (C.S.) Inc.
Subject: Request to amend the Official Plan – Refusal of request
Description: To permit three, three-storey stacked townhouse buildings
Reference Number: OR12/22
Property Address: 190 & 194 Pinebush and 10 Wayne Avenue
Municipality: Cambridge/Waterloo
OLT Case No.: OLT-24-000350
OLT File No.: OLT-24-000350
OLT Case Name: Will-O Homes (C.S.) Inc. v. Cambridge (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant(s)/Appellant(s): Will-O Homes (C.S.) Inc.
Subject: Application to amend the Zoning By-law – Refusal of application
Description: To permit three, three-storey stacked townhouse buildings
Reference Number: OR12/22
Property Address: 190 & 194 Pinebush and 10 Wayne Avenue
Municipality/UT: Cambridge/Waterloo
OLT Case No: OLT-24-000351
OLT Lead Case No: OLT-24-000350
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 February 18, 2025 at 10:00 a.m.
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 parties and participants identified at the case management conference are set out in Attachment 1 (see Attachment 4 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.
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. This list must be delivered on or before Friday, October 4, 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 Friday, October 25, 2024 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, November 8, 2025.
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 Friday, December 20, 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 Friday, December 20, 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.
On or before Friday, January 10, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Friday, January 17, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within on Friday, January 24, 2025 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 Friday, 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 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 Friday, February 14, 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.
All filings shall be submitted electronically and, if requested by the OLT case coordinator, 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.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| Friday, October 4, 2024 | Exchange List of Proposed Witnesses (Para. 9) |
| Friday, October 25, 2024 | Deadline for Expert Witness Meeting (Para. 10) |
| Friday, November 8, 2025 | Deadline for Statement of Agreed Facts and Issues (para. 10) |
| Friday, December 20, 2024 | Deadline for Witness Statements, Expert Witness Statements and Participant Statements (paras. 13 and 14) |
| Friday, January 10, 2025 | Deadline for advising the Tribunal if all the reserved hearing dates are required (para. 15) |
| Friday, January 17, 2025 | Deadline for Visual Evidence (para. 16) |
| Friday, January 24, 2025 | Deadline for Reply Witness Statements and Reply Expert Witness Statements (para. 17) |
| Friday, February 7, 2025 | Deadline for Joint Document Book (para. 18) |
| Friday, February 14, 2025 | Deadline for Hearing Plan (para. 21) |
| Tuesday, February 18, 2025 | Hearing begins |
ATTACHMENT 1
LIST OF PARTIES
Will-O Homes (C.S.) Inc. SV Law 245 Hanlon Creek Boulevard, Unit 102 Guelph, ON N1C 0A1 Eric Davis Email: edavis@svlaw.ca Tel: 519.837.2100 ext. 304
The Corporation of City of Cambridge The Corporation of City of Cambridge 50 Dickson Street, PO Box 669 Cambridge, ON N1R 1S8 Nicole Auty Email: autyn@cambridge.ca Tel: (519) 740-4680 ext. 4210
The Regional Municipality of Waterloo The Regional Municipality of Waterloo 150 Frederick Street, 8th Floor Kitchener, ON N2G4J3 Fiona McCrea Email: fmccrea@regionofwaterloo.ca Tel: 519-575-4518
LIST OF PARTICIPANTS
Brenda Phipps, 44 Dywin Court, Cambridge Email: gandbphipps@rogers.com Tel: 519-241-1055
ATTACHMENT 2
ISSUES LIST
- Do the Official Plan Amendment and Zoning By-law Amendment applications (the “Applications”) have regard for matters of provincial interest set out in section 2 of the Planning Act?
PPS 2020
- Are the proposed Official Plan and Zoning By-law Amendments consistent with the following provisions of the PPS:
a) Section 1.1.1 establishment of “healthy, livable and safe communities”, specifically, 1.1.1 a) promoting efficient development and land uses, b) accommodating a range of residential unit types; and,
b) Section 1.1.3.2 a) directing land use patterns in settlement areas to a) efficiently use land and resources, b) efficiently use available infrastructure, e) support active transportation, f) are transit supportive?
Growth Plan 2020
- Do the proposed Official Plan and Zoning By-law Amendments conform to the following provisions of the Growth Plan:
a) Section 2.2.1.2 which directs growth to settlement areas with municipal water and wastewater systems;
b) Section 2.2.1.4 which encourages the provision of complete communities that include a diverse range and mix of housing; and,
c) Section 2.2.6.2 which promotes the achievement of complete communities by planning to accommodate forecasted growth and achieving minimum intensification targets?
Region of Waterloo Official Plan
- Do the proposed Official Plan and Zoning By-law Amendments conform to the Region of Waterloo Official Plan policies including:
a) Policy 2.C.2 which directs a minimum of 45% of all new residential development to be within the Built-up Area; and,
b) Policy 3.A.2 which directs area municipalities to plan for an appropriate range of housing (form, tenure, density and affordability)?
City of Cambridge Official Plan
- Do the proposed Official Plan and Zoning By-law Amendments conform to the City of Cambridge Official Plan policies including:
a) Policy 8.4.2 which relates to residential compatibility including a) through i) for matters such as density, scale, setbacks and transitions between land uses;
b) Policy 8.4.3 which outlines criteria for the location of multi-unit residential forms of development including a) through e) for matters such as location on an arterial road, reasonable distance to public transit, sufficiently sized to accommodate on-site demands, scale and compatibility; and,
c) Policy 2.6.1, including 2.6.1.6 and 2.6.1.8; 2.8 including (d, f, k)?
City of Cambridge Zoning By-law
- Do the proposed Official Plan Amendment and Zoning By-law Amendment comply with the zoning regulations of the RM2 zone, as proposed?
Noise
- Do the applications appropriately address noise impacts, from all the proposed buildings, adjacent stationary and transportation sources in accordance with Section 2.G.10 and 2.G.13 of the Regional Official Plan?
Geothermal
- Do the applications appropriately address protection of ground water resources as it relates to the use of geothermal wells in accordance with Section 8.A.12 of the Regional Official Plan?
ATTACHMENT 3
ORDER OF EVIDENCE
Will-O Homes (C.S.) Inc.
City of Cambridge
Region of Waterloo
Will-O Homes (C.S.) Inc., in Reply, if any
ATTACHMENT 4
PURPOSE OF PROCEDURAL ORDER
Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.
The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the Case Management Conference and issue a procedural order at a later date.
If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.
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.