Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 19, 2024

CASE NO.: OLT-24-000638

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

Applicant and Appellant: 9287043 Canada Corporation Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the development of a 72-lot residential subdivision Reference Number: DO2-02-21-0071 Property Address: 6544 Jack Pine Crescent Municipality: Ottawa OLT Case No.: OLT-24-000638 OLT Lead Case No.: OLT-24-000638 OLT Case Name: 9287043 Canada Corporation v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 9287043 Canada Corporation Subject: Conditions of approval of draft plan of subdivision Description: To permit the development of a 72-lot residential subdivision Reference Number: DO7-16-21-0023 Property Address: 6544 Jack Pine Crescent Municipality: Ottawa OLT Case No.: OLT-24-000639 OLT Lead Case No.: OLT-24-000638

BEFORE: F. LAVOIE MEMBER

Wednesday day, the 18th day of September, 2024

THE TRIBUNAL ORDERS that further to the Decision issued on September 5, 2024, the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on Monday, January 13, 2025, at 10:00 a.m. The Tribunal has set aside 9 days for the hearing.

“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

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 January 13, 2025 at 10:00 a.m. No further notice shall be required.

3. The parties’ initial estimation for the length of the hearing is 9 days, concluding on January 24, 2025. The Tribunal will not sit on Thursday, January 16. 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 Attachment 4 for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. With the exception of the removal or scoping of issues as may be agreed upon between the parties, 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, September 27, 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.

10. Expert witnesses in the same field shall have a meeting on or before Friday, October 11, 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, October 25, 2024.

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, November 15, 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.

14. On or before Friday, November 15, 2024, a participant shall provide copies of their written participant statement to the other parties and to the OLT case co-ordinator 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, December 13, 2024, the parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 22 below.

16. On or before Friday, December 6, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before Friday, December 20, 2024, 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.

18. On or before Tuesday, December 31, 2024, the parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator.

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, January 6, 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.

22. All filings shall be submitted electronically. Hard copies will not be required unless requested by the Tribunal. 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.

This Member is not seized.

So orders the Tribunal.

BEFORE: Name of Member: Date:

TRIBUNAL REGISTRAR

Summary of Dates

Date	Event
Friday, September 27, 2024	Lists of witnesses (names, disciplines and intended order to be called) and CVs
Friday, October 11, 2024	Expert witness meetings
Friday, October 25, 2024	Statement of Agreed Facts and Issues
Friday, November 15, 2024	Witness Statements and Participant Statements
Friday, December 13, 2024	Reply Witness Statements
Friday, December 6, 2024	Advise Tribunal whether all the Hearing days are required
Friday, December 20, 2024	Visual Evidence
Tuesday, December 31, 2024	Joint Document Book
Monday, January 6, 2025	Draft Hearing Plan
Monday, January 13, 2025	Hearing commences

ATTACHMENT 1 – LIST OF PARTIES / PARTICIPANTS

Parties

1. 9287043 Canada Corporation Davies Howe LLP The Tenth Floor 425 Adelaide Street West, 10th Floor Toronto, Ontario M5V 3C1 Kyle Gossen / Grace O’Brien Tel: 416-263-4519 / 416-263-4507 Email: kyleg@davieshowe.com / graceo@davieshowe.com

2. City of Ottawa Legal Services 110 Laurier Avenue West Ottawa, Ontario K2P 2L7 Timonthy Marc Tel: 613-580-2424 x 21444 Email: timothy.marc@ottawa.ca

Participants

1. Ann and David Brown Gowling WLG (Canada) LLP Suite 2600, 160 Elgin Street Ottawa, Ontario K1P 1C3 Jacob Polowin / Crystal McConkey Tel: 613-786-0134 / 613-786-0202 Email: jacob.polowin@gowlingwlg.com / crystal.mcconkey@gowlingwlg.com

ATTACHMENT 2 – 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 relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a party indicates that party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other parties the case they need to meet.

Issues of 9287043 Canada Corporation

General Issues – Applicable to All Contested Conditions

1. Are the following Draft Plan of Subdivision Conditions of Approval (the “Conditions”) and/or the implementation of the following Conditions reasonable, appropriate, relevant, necessary and equitable: Conditions 1, 10, 17, 22, 23, 24, 25, 26, 27, 29, 30, 31, 33, 34, 35, 38, 39, 41, 50, 58, 59, 60, 64, 65, 66, 67, 68, 69, 70, 73, 74, 77, 78, 79, 87, 88, 89, 90, 91, 92, 94, 97, 98, 99, 103, 109, 112, 125, 129, 130, 131 and 133 (the “Contested Conditions”)?

2. Should the Contested Conditions be cleared, revised or deleted?

3. Should any of the Contested Conditions be revised such that they require an appropriate term to be included in the Subdivision Agreement in order for the condition to be cleared?

4. Do the Contested Conditions and/or their implementation have appropriate regard for the matters of provincial interest set out in section 2 of the Planning Act, including subsections (a), (c), (e), (f), (h), (i), (j), (l), (m), (n), (p), (q) and (r)?

5. If applicable, are the Contested Conditions and/or their implementation consistent with the Provincial Policy Statement, 2020, including policies 1.1.1 a) and e); 1.1.3; 1.1.4; 1.5.1 b); 1.6.1; 1.6.6; and 1.7.1 c)?

6. If applicable, are the Contested Conditions and/or their implementation consistent with the Provincial Planning Statement, 2024, including the Vision Statement and policies 2.1.6 a); 2.3.1.2 a) and b); 2.5; 3.1.1; 3.6; and 3.9.1 b)?

7. Do the Contested Conditions and/or their implementation conform with City of Ottawa’s Official Plan, including policies 1.1; 4.4.1.1; 4.4.1.2; 4.4.1.4 to 4.4.1.6; 4.4.2; 4.4.6; 4.6.5.1; 4.7; 4.9; 4.10; 11.6.10; and 12.1.4; and the Village of Greely Secondary Plan?

8. If the City seeks to require additional reports, studies or action other than what is expressly required in the Conditions, are these requirements appropriately imposed at this stage in the approval process?

9. If the City has failed to identify comments, requirements or other outstanding issues in relation to any report, study or other document produced by the Owner to date as part of addressing or clearing the Conditions, should the City be precluded from making, imposing or raising any further comments, requirements or issues?

Specific Issues – Applicable to Certain Contested Conditions

[Without limiting the above issues, the following provide greater specificity on the matters in issue for certain Contested Conditions.]

10. Is Condition 10(c), which requires that the Development Information Form and Geometric Plan indicate the location of depressed curbs and TWSIs prior to the earlier of registration of the Subdivision Agreement or early servicing, reasonable, relevant, necessary and equitable? If not, should Condition 10(c) be deleted?

11. Are Conditions 17, 24, 33, 58, 67, 68, 73 and 77, which require that plans or studies be provided to the City, or additional meetings occur, reasonable, relevant, necessary and equitable, in light of plans/studies that have already been completed and provided to the City, and the meetings that have occurred? If not, should the Conditions be revised to read as follows:

(a) Condition 17: The Owner shall agree to implement the Construction Traffic Management Plan dated June 2023.

(b) Condition 24: The Owner shall agree to implement the appropriate recommendations in the Geotechnical Investigation prepared by Gemtec, dated December 20, 2022 and updated December 15, 2023.

(c) Condition 33: The Owner shall agree to implement the Landscape Plan prepared by Ark Engineering, dated January 26, 2024, for the plan of subdivision and each of the SWM ponds, and bear all costs and responsibility for the preparation and implementation of the plan, to the satisfaction of the General Manager, Planning, Real Estate and Economic Development Department.

(d) Condition 58: The Owner shall agree to implement the recommendations of the Environmental Impact Statement dated October 28, 2022.

(e) Condition 67: The Owner shall agree to distribute the Owner Awareness Package (OAP), prepared by the Owner and updated as of August 27, 2024, with the Agreement of Purchase and Sale.

(f) Condition 68: The Owner shall agree to implement the tree removal demonstrated in the 4R Plan prepared by J.D. Barnes Limited and resubmitted to the City on August 21, 2024.

(g) Condition 73: The Owner shall agree to distribute the Owner Awareness Package (OAP), prepared by the Owner and updated as of August 27, 2024, with the Agreement of Purchase and Sale.

(h) Condition 77: The Owner shall agree to implement the recommendations in the Hydrogeological Investigation and Terrain Analysis dated June 30, 2021.

12. Is Condition 22, which requires that the Owner provide compensation for any trees removed from City-owned land, reasonable, relevant, necessary and equitable? If not, should Condition 22 be deleted?

13. Are Conditions 25, 26 and 34, which relate to sensitive marine clay soils, reasonable, relevant, necessary and equitable, and has sufficient analysis been completed such that this condition should be deleted?

14. Is Condition 29 sufficiently clear to ensure that its implementation is reasonable, relevant, necessary and equitable? If not, should it be revised to state that the Owner agrees to construct all new pathways, sidewalks and walkways located within the plan of subdivision?

15. Does the City have jurisdiction to impose Conditions 30, 31 and 50 on lands not within the draft plan of subdivision and not owned by the Owner? If not, should the conditions be cleared in accordance with the Fence Plan submitted on February 6, 2024 or revised to require the Owner to agree to implement the Fence Plan submitted on February 6, 2024?

16. Are Conditions 38 and 39, which require the Owner to convey Lot 4 to the City as a park block, together with cash-in-lieu of parkland, reasonable, relevant, necessary and equitable, given that the Owner is also dedicating Blocks 74-78 to the City (wildlife corridor and linear pathway system) but the City has not included this in its parkland calculation? If not, should Condition 38 be deleted and Condition 39 be revised to reflect a parkland calculation which includes Blocks 74-78 credited toward the parkland dedication requirement?

17. Is Condition 41, which requires the Owner to pay a park development contribution fee, reasonable, relevant, necessary and equitable, in light of the City practice with respect to park construction in the rural and suburban areas and given that the Owner is already required to meet the parkland dedication requirements under the Planning Act? If not, should Condition 41 be deleted?

18. If the Tribunal finds that Blocks 74-78 should be credited as parkland, should Condition 66 be revised to delete the last sentence, which states that Blocks 74 and 75 shall not be credited towards determining parkland dedication requirements?

19. Are Conditions 69 and 74 reasonable, relevant, necessary and equitable, and should they be revised to clarify that a rehabilitation strategy and a contingency plan, respectively, are only triggered if a future event occurs, and should these requirements be imposed through a Subdivision Agreement?

20. Is Condition 78 reasonable, relevant, necessary and equitable if the applicable requirements have been met through multiple Geotechnical Investigation Reports (and a final report based upon a scope of work agreed-upon with Stantec), which were peer reviewed by Stantec? If not, should the condition be deleted or cleared?

21. Should Condition 79 be met by including a term in the Subdivision Agreement requiring the Agreement of Purchase and Sale to require that future owners of lots in the subdivision install a sump pump system which conforms to the City of Ottawa Sewer Design Guidelines, since those owners and not the developer will be building the sump pump systems?

22. Is Condition 87 sufficiently clear to ensure that its implementation is reasonable, relevant, necessary and equitable? For example, is refusing to clear this condition until all culverts are demonstrated on the Grading Plan as no less than 600 mm reasonable, relevant, necessary and equitable?

23. Is Condition 90 reasonable, relevant, necessary and equitable, or should it be satisfied by including a term in the Subdivision Agreement requiring the Owner to maintain and implement a monitoring/implementation program for the ultimate stormwater management pond in accordance with the recommendations of the report covering stormwater and the Environmental Compliance Approval, given that Environmental Compliance Approval has not been issued?

24. Should Conditions 94 and 103, which require the Owner to oversize and/or over-depth infrastructure to service lands beyond the limits of the plan of subdivision to benefit later development, be revised to legally bind the City to only permit future development that will benefit from the oversizing/over-depthing if the applicable landowners pay their proportionate share of the infrastructure? Is such a clause legally permissible?

25. Is the City’s application of Condition 109, requiring the registration of a second M-Plan for the second phase of the subdivision, reasonable, relevant, necessary and equitable? If not, should Condition 109 be satisfied with one final M-Plan, subject to 0.3 m reserves and an inhibiting order prior to the release of the second phase?

26. Is Condition 112, which requires all lots to provide 0.3 m reserves until a well report is provided, reasonable, relevant, necessary and equitable? If not, should it be deleted?

27. Is Condition 133 sufficiently clear to ensure that its implementation is reasonable, relevant, necessary and equitable? If not, should the condition specify the amount of securities to be paid and for which lots the security is required?

ATTACHMENT 3 – ORDER OF EVIDENCE

1. 9287043 Canada Corporation
2. City of Ottawa
3. Reply of 9287043 Canada Corporation

ATTACHMENT 4 – MEANING OF TERMS

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.