Ferrovia Investments Inc. v. Guelph (City), 2024 CanLII 9790

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 06, 2024

CASE NO(S).: OLT-23-000462

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant

2014707 Ontario Inc. (“Cook Homes”)

Appellant

2738766 Ontario Limited, 2738777 Ontario Limited and 848866 Ontario Limited

Appellant

2742707 Ontario Limited

Appellant

642762 Ontario Inc. and others

Subject:

Zoning By-law

Description:

City of Guelph new Comprehensive Zoning By-law and related site-specific updates to the Official Plan

Reference Number:

ZBA (2023)-20790

Property Address:

All lands within the City of Guelph

Municipality/UT:

Guelph/Wellington

OLT Case No:

OLT-23-000462

OLT Lead Case No:

OLT-23-000462

OLT Case Name:

Ferrovia Investments Inc. v. Guelph (City)

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

Appellant

Forum Asset Management

Appellant

Paisley & Whitelaw Inc.

Appellant

Silvercreek Guelph Developments Limited and 2089248 Ontario Inc.

Subject:

Proposed Official Plan Amendment

Description:

City of Guelph new Comprehensive Zoning By-law and related site-specific updates to the Official Plan

Reference Number:

OPA No. 88

Property Address:

All lands within the City of Guelph, and site-specific updates

Municipality/UT:

Guelph/Wellington

OLT Case No:

OLT-23-000463

OLT Lead Case No:

OLT-23-000462

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by:

City of Guelph

Request for:

Motion for Directions

Heard:

December 1, 2023 by video hearing

APPEARANCES:

Parties

Counsel/Representative

City of Guelph

Peter Pickfield Alex Ciccone Allison Thornton (in absentia)

Multiple Appellants

Refer to Attachment 1 for Appearances

2793031 Ontario Inc.

Meaghan McDermid

DECISION DELIVERED BY C.I. MOLINARI AND INTERIM ORDER OF THE TRIBUNAL

Link to Interim Order

INTRODUCTION / BACKGROUND

1The matter before the Tribunal is a Motion for Directions (“Motion”) brought by the City of Guelph (“City”/“Moving Party”) for an Order by the Tribunal pursuant to s. 34(31) of the Planning Act (“Act”), as more particularly outlined in paragraph [10]:

1. approving the City’s new Comprehensive Zoning By-law (2023)-20790 (“CZBL”), save and except certain sections,

2. scoping the appeal by Industrial Equities Guelph Corporation (“Industrial Equities”) under s. 17(24) and 34(19) of the Act, against the CZBL,

3. ruling that the partial approval and coming into force of the CZBL be strictly without prejudice to, and not limiting certain positions any Party may take and the jurisdiction of the Tribunal, and

4. directing Paisley & Whitelaw Inc. (“P&W”) to provide the Tribunal with a geographical area or address to which it will scope its appeal by December 11, 2023, and further directions.

2On April 18, 2023, the City passed the CZBL, replacing the former Zoning By-law (1995)-14864 (“Former CZBL”) in its entirety, and also adopting related site-specific updates to the City Official Plan through Official Plan Amendment No. 88 (“OPA 88”).

3Subsequently, 16 appeals were filed: 13 against the CZBL and three against both the CZBL and OPA 88, being those filed by P&W, Forum Asset Management (“Forum”), and Silvercreek Guelph Developments Limited and 2089248 Ontario Inc. (“Silvercreek”).

4Of the 16 appeals, 14 are determined to be site-specific on consent of the respective Appellants and two are considered by the City to be either site-specific or area-specific, yet are contested by the respective Appellants, being the Respondents to the Motion: P&W and Industrial Equities (together, “Respondents”).

5For the hearing of the Motion, the Tribunal is not tasked with considering the merits of any of the appeals in any context. Further, the Motion does not contemplate the three appeals in relation to OPA 88 and the Tribunal makes no analysis or ruling in that regard.

THE MOTION

6The Moving Party filed a Motion Record complete with a Notice of Motion on November 16, 2023. The Respondents each filed a Responding Motion Record on November 24, 2023, and the Moving Party followed with a Reply Motion Record filed on November 28, 2023, all of which met the notice requirements of Rule 10 of the Tribunal’s Rules of Practice and Procedure (“OLT Rules”).

7The materials before the Tribunal from the Moving Party include:

1. Motion Record containing, in part, the Notice of Motion and an Affidavit of Katie Nasswetter affirmed on November 16, 2023,

2. Reply Motion Record, containing the Reply Submission,

3. Affidavits of Service for the Motion Record and the Reply Motion Record, both affirmed by Mr. Ciccone on November 28, 2023, and a

4. Book of Authorities.

8The materials before the Tribunal from the P&W include:

1. Responding Motion Record containing the Notice of Response to Motion and an Affidavit of Trevor Hawkins sworn on November 24, 2023,

2. Affidavit of Service for the Responding Motion Record sworn by Victoria Peacock on December 1, 2023, and a

3. Case Book.

9The materials before the Tribunal from the Industrial Equities include:

1. Responding Motion Record containing the Notice of Response to Motion and an Affidavit of David Falletta sworn on November 24, 2023,

2. Affidavit of Service for the Responding Motion Record sworn by Mr. Cole on November 30, 2023, and a

3. Book of Authorities.

Moving Party

10The Moving Party brought the Notice of Motion under s. 34(31) of the Act seeking:

1. An Order of the Ontario Land Tribunal (the “Tribunal”) pursuant to subsection 34(31) of the Planning Act, RSO 1990 c P13 (the “Planning Act”):

a. That those parts of CZBL as passed by the City on April 18, 2023 which are not in issue in the appeal and are therefore are [sic] deemed to have come into effect, specifically the regulations, maps and appendices found in Exhibit “C” of the Affidavit of Katie Nasswetter save and except

i. the regulations, maps and appendices remaining under appeal on a City-wide basis as set out in Schedule “A” (see Schedule “A” to this notice of motion), and

ii. the entirety of the CZBL which will remain under appeal on a site specific or area specific basis for the properties/areas set out in Schedule “B” (See Schedule “B” to this notice of motion);

come into full force and effect, effective the date that the By-law was passed;

b. And that the appeal brought by Industrial Equities Guelph Corporation is scoped to 384 Crawley Road;

c. And that the partial approval and coming into force of the CZBL shall be strictly without prejudice to, and shall not have the effect of limiting:

i. The positions any party may take with respect to their site-specific or area-specific appeals of the CZBL, such that the parties will be fully at liberty to challenge and test the planning merits of the CZBL as they apply to their respectively delineated sites or areas.

ii. The jurisdiction of the Tribunal to consider and approve modifications, deletions or additions to the unapproved portions of the CZBL on a general, area-specific, or site-specific basis, including issuing future Orders respecting the unapproved portions of the CZBL which are inconsistent with the Order resulting from the Tribunal as a result of this Motion hearing, provided that the parties shall be bound by the commitments made by them to scope their issues to a site-specific or area-specific basis; or

iii. The City’s right to assert that the approved portions of the CZBL may be applied to the specific sites or areas without modification on the basis that they constitute good planning,

d. And that this Order be withheld until the following direction of the Tribunal is implemented:

i. That Paisley & Whitelaw Inc. provides the Tribunal with a geographical area or address to which it will scope its appeal by December 11, 2023; and that

ii. in the event that the response by Paisley & Whitelaw Inc. to the Tribunal’s direction to scope does not reasonably address that direction, the City may file a reply by December 22, 2023 and that the motion to scope in regard to this appellant be heard at the Case Management Conference scheduled for January 10, 2024;

2. Such further and other relief as counsel for the responding party may request and as the Tribunal may permit.

11In summary, the Moving Party requests rulings by the Tribunal related to the CZBL appeals, based on the following:

1. As outlined in section 1.a.i. in paragraph [10] – That the appeals by Guelph & District Home Builders’ Association Inc. (“GDHBA”) and Guelph and Wellington Development Association (“GWDA”) have been scoped, on consent, to the regulations and schedules found at Tab 1A to the Motion Record.

2. As outlined in section 1.a.ii. in paragraph [10] – That the appeals by the following parties (“Listed Appellants”) have been determined, on consent, to be site-specific appeals:

a. 2014707 Ontario Inc.,

b. Thomasfield Homes Limited,

c. Loblaw Properties Limited,

d. Windmill Development Group,

e. 2742707 Ontario Limited,

f. 2738777 Ontario Limited, 2738766 Ontario Limited and 848866 Ontario Limited,

g. Ferrovia Investments Inc.,

h. University Village (Guelph) Limited,

i. 642762 Ontario Limited,

j. IJK Holdings Inc.,

k. 2738766 Ontario Limited, 2738777 Ontario Limited and 848866 Ontario Limited, and

l. Guelph Watson Holdings Inc.

m. Silvercreek Guelph Developments Limited and 2089248 Ontario Inc.

3. As outlined in section 1.b. in paragraph [10] – That the appeal brought by Industrial Equities has been determined by the Moving Party, not on consent and opposed by Industrial Equities, to be site-specific.

4. As outlined in section 1.c. in paragraph [10] – That the partial approval and coming into force of the CZBL shall be strictly without prejudice to, and shall not have the effect of limiting, the positions any party may take with respect to their site-specific or area-specific appeals of the CZBL, the jurisdiction of the Tribunal or the City’s rights as outlined above in paragraph [10].

5. As outlined in section 1.d. in paragraph [10] – That the appeal brought by P&W has been determined by the Moving Party, not on consent and opposed by P&W, to be site- or area-specific. The Moving Party requests that this Decision and Order be withheld until P&W provides the Tribunal with a geographical area or address to which P&W will scope its appeal. In the event that P&W does not provide such direction to the Tribunal, the Moving Party advised that they may file a Motion to scope in this regard at the CMC which had been scheduled to be held on January 10, 2024.

12It is noted that the January 10, 2024, CMC has since been cancelled and rescheduled to Thursday, February 29, 2024, as per paragraph [55] below.

Industrial Equities

13In it’s Responding Motion Record, Industrial Equities requested the following:

1. An Order of the Tribunal dismissing the City Motion to the extent it applies to the appeal filed by Industrial Equities of the City’s Comprehensive Zoning By-law (2023)-20790 (the “CZBL”).

2. An Order of the Tribunal scoping the appeal filed by Industrial Equities of the CZBL to the provisions set out in paragraph 27 of the Affidavit of David Falletta, sworn on November 24, 2023, on a City-wide basis.

3. An Order abridging the time for service of this Notice of Motion, if necessary.

4. Such further and other relief as counsel may request and the Tribunal consider applicable.

14In summary, Industrial Equities requests rulings of the Tribunal related to the Industrial Equities appeal as follows:

1. In response to 1.b. in paragraph [10] and as outlined in 1. in paragraph [13] – That the City’s motion, to scope Industrial Equities appeal, be dismissed.

2. In response to 1.b. in paragraph [10] and as outlined in 2. in paragraph [13] – That the Industrial Equities appeal be scoped to the following provisions of the CZBL (as set out in paragraph 27 of the Affidavit of David Falletta):

• Part A: Administration and Interpretation, Section 1.3 – Transition Provisions

• Part B: Definitions

• Part C: General Provisions and Parking – Subsections 4.9(a) and (b), 4.11(f), 5.3.1(d),5.4(a) and (b)

• Part D, Land Use Zones, Section 10 – Employment Zones

• Part E, Site-specific Industrial (B) Zones – Subsections 18.18.14 and 18.18.15

3. As outlined in 3. in paragraph [13] – That the time for service of the Responding Notice of Motion be abridged, if necessary.

P&W

15In it’s Responding Motion Record, P&W requested the following:

1. In response to the City of Guelph’s (“City”) Notice of Motion, dated November 16, 2023, Paisley & Whitelaw Inc. (“Paisley & Whitelaw”) respectfully request that the Tribunal issue an Order:

a. Dismissing the City’s motion requiring Paisley & Whitelaw to provide a geographical area or address to which it will scope its appeal;

b. Scoping Paisley & Whitelaw’s appeal to:

i. All lands zoned RM.5, RM.6, RH.7, CMUC, MUC, NCC, MOC, D.1, and D.2 (“Medium and High Density Residential Zones”);

ii. Table 5.3, Required parking rates in all zones except downtown zones, to the extent that it applies to the Medium and High Density Residential Zones;

iii. Section 5.8, bicycle parking rates, to the extent that it applies to the Medium and High Density Residential Zones;

iv. Section 5.9. electrical vehicle parking requirements, to the extent that it applies to the Medium and High Density Residential Zones;

v. The following definitions, to the extent that they apply to the Medium and High Density Residential Zones:

1. Designed electric vehicle parking space;

2. Building height; and

3. Finished grade,

Except to the extent that the above regulations and zones are less restrictive than the same regulations within the former Zoning By-law No. (1995)-14864.

c. Confirming that the scoping- shall be strictly without prejudice to, and shall not have the effect of limiting:

i. The positions Paisley & Whitelaw may take with respect to the appeals Comprehensive Zoning By-Law (“CZBL”) and companion Official Plan Amendment No. 88 (“OPA 88”) (collectively, “Appeals”), such that Paisley & Whitelaw will be fully at liberty to challenge and test the planning merits of the CZBL and OPA 88 as they apply to the remaining Appeal;

ii. The jurisdiction of the Tribunal to consider and approve modifications, deletions or additions to the unapproved portions of the CZBL on a general, area-specific, or site-specific basis, including issuing future Orders respecting the unapproved portions of the CZBL which are inconsistent with the Order resulting from the Tribunal as a result of this Motion, provided that Paisley & Whitelaw remains bound by its commitment to scope its Appeal as set out herein; and

2. Such other relief as counsel may advise and the Tribunal may permit.

16In summary, P&W requests rulings of the Tribunal related to the P&W CZBL appeal as follows:

1. In response to 1.d. in paragraph [10] and as outlined in 1.a. in paragraph [15] – That the City’s motion, requiring P&W to provide a geographical area or address to which it will scope its appeal, be dismissed.

2. In response to 1.d. in paragraph [10] and as outlined in 1.b. in paragraph [15] – That the P&W appeal be scoped as proposed by P&W, except to the extent that the regulations and zones are less restrictive than the Former CZBL.

3. In response to 1.c. in paragraph [10] and as outlined in 1.c. in paragraph [15] – That the P&W appeal, scoped as proposed by Respondent P&W, shall be strictly without prejudice, and not have the effect of limiting, as specified by P&W.

ANALYSIS AND FINDINGS ON THE MOTION

Relief Requested Under Section 1.a. of the Motion

17There were no issues raised by the Respondents, or any other Party, regarding the Moving Party’s request of the Tribunal under section 1.a. of the relief requested in paragraph [10], related to the City-wide appeals by GDHBA and GWDA and the site-specific appeals for the Appellants listed in section 2 of paragraph [11].

18As such, it is an uncontested request by the Moving Party that the Tribunal issue an Order finding that those parts of the CZBL which are not in issue in the appeal are therefore deemed to have come into effect on the date that the CZBL was passed, specifically the regulations, maps and appendices found in the CZBL, save and except:

i. the regulations, maps and appendices remaining under appeal on a City-wide basis as set out in Attachment 2 to this Decision, and

ii. the entirety of the CZBL which will remain under appeal on a site specific or area specific basis for the properties/areas set out in Attachment 3 to this Decision.

19The regulations, maps and appendices of the CZBL, as passed by the City, with the exceptions noted above, relate only to the City-wide appeals by GDHBA and GWDA, and neither GDHBA nor GWDA opposed the Motion request in this respect.

20The site-specific appeals for the Appellants listed in section 2 of paragraph [11] each relate only to a specific property or properties and the entirety of the CZBL will remain under appeal on a site-specific or area-specific basis as related to the respective property or properties. Further, none of the Listed Appellants opposed the Motion request in this respect.

21The Tribunal finds that this is a reasonable request of the Moving Party and will be so Ordered by the Tribunal.

Relief Requested Under Section 1.b. of the Motion (related to Industrial Equities)

22The City requested that the Tribunal scope the appeal brought by Industrial Equities to a site-specific appeal related to 384 Crawley Road on the grounds that their appeal only identified site-specific concerns related to this property, and allowing the appeal to remain City-wide would not constitute good planning and would run contrary to the intent of the Act as it applies to the passage of the CZBL.

23Section 34(19) of the Act specifically requires that a notice of appeal should set out “the objection to the by-law and the reasons in support of the objection”. The Appeal Form (“IE Appeal Form”), the accompanying cover letter from McCarthy Tetrault LLP (“IE Appeal Letter”) and the comment letter to the City from Bousfields Inc. (“Bousfields Letter”) all reference concerns only related to 384 Crawley Road, with the exception of one statement in the IE Appeal Letter which states: “This notice of appeal applies to the entirety of the New Zoning By-law.” No rationale or reasons are provided in the IE Appeal Form, the IE Appeal Letter or the Bousfields Letter in this regard.

24In its Responding Motion Record, Industrial Equities contended that their appeal should remain City-wide on the basis that:

• the transition clauses in the CZBL are a “fundamental provision that will effect all properties within the City”,

• the CZBL is overly prescriptive compared to the Former CZBL, which is a City-wide issue, and

• Industrial Equities owns multiple industrial properties within the City and may need to ultimately move the proposed facility at 384 Crawley Road to another location within the City depending on the outcome of the site plan application submitted to the City, but not yet deemed complete at the time of the Motion hearing.

25The Tribunal finds that these reasons are overly broad, not addressed in the IE Appeal Form, the IE Appeal Letter or the Bousfields Letter, and are generally unsubstantiated. Moreover, the reasons provide the Tribunal with no helpful reference to which they could be applied to understand the need or justification for a City-wide appeal.

26The Tribunal finds that the blanket statement: “[t]his notice of appeal applies to the entirety of the New Zoning By-law” cannot now be used to expand on the grounds for the appeal when no indication was provided, until the Motion was brought, to justify, explain or legitimize the appeal to apply to the entirety of the City. The reasons provided at the hearing of the Motion do not rise to the level of providing legitimacy to a City-wide basis of the appeal.

27The Tribunal finds that Industrial Equities submissions are not a reasonable interpretation of the scope of the appeal and the City’s request to scope the Industrial Equities appeal to a site-specific appeal related to 384 Crawley Road will be so Ordered by the Tribunal.

Relief Requested Under Section 1.d. of the Motion (related to P&W)

28The findings of section 1.d. of the Motion are determinative to the findings on section 1.c. as it relates to the P&W appeals and therefore section 1.d. is considered before section 1.c.

29The City requested that the Tribunal withhold the Order until P&W provides the Tribunal with a geographical area or address to scope the P&W CZBL appeal on the grounds that the appeal only identified area- and site-specific concerns related to the property at 201 Elmira Road South, and on the grounds that allowing the appeal to remain City-wide would not constitute good planning and would run contrary to the intent of the Act and provincial policy as it applies to the passage of the CZBL.

30Similar to the Tribunal findings related to Industrial Equities, section 34(19) of the Act specifically requires that a notice of appeal should set out “the objection to the by-law and the reasons in support of the objection”. The Appeal Form (“P&W Appeal Form”), the accompanying cover letter from Turkstra Mazza Associates (“P&W Appeal Letter”) and the comment letter to the City from MHBC Planning Urban Design & Landscape Architecture (“MHBC Letter”) all reference concerns only related to 201 Elmira Road South, with the exception of one statement in the P&W Appeal Letter which states: “We hereby appeal the City of Guelph (“City”) Comprehensive Zoning By-law No. (2023) – 20790 (“ZBL”), in its entirety, and companion Official Plan Amendment No. 88 (“OPA”), in its entirety…”. No rationale or reasons are provided in the P&W Appeal Form, the P&W Appeal Letter or the MHBC Letter in this regard for either appeal.

31In it’s Responding Motion Record, P&W contended that their appeal should remain City-wide on the basis that:

• P&W’s parent company “is a residential development company that operates in the City”,

• the Motion effectively “seeks an order… dismissing part of Paisley & Whitelaw’s appeal without holding a hearing, pursuant to section 34(25) of the Planning Act”,

• since the City does not allege that P&W’s appeal “has been made in bad faith, is frivolous or vexatious, or is otherwise an abuse of process”, the Motion therefore “must be decided on whether the Appeal is based on any apparent land use planning ground”,

• P&W’s appeal “ought to… be allowed to proceed being scoped to all Medium and High Density Residential Zones” as it “discloses land use planning grounds to support a City-wide appeal for these zones”,

• P&W’s Notice of Appeal lists the following as grounds for the appeal:

a. CZBL and OPA 88 do not have appropriate regard for matters of provincial interest set out in section 2 of the Planning Act;

b. CZBL and OPA 88 are not consistent with the Provincial Policy Statement, 2020, including but not limited to Sections 1.1.1(e), 1.1.3.2, 1.1.3.4, 1.1.3.6, and 1.4.3; and

c. CZBL and OPA 88 do not conform with the policies of the Growth Plan, 2019, as amended including but not limited to section 2.2.1.2(c) that encourages development and intensification within Settlement Areas.

• “While the impact of the above issues are illustrated by looking to the Subject Lands, these demonstrate land use planning grounds that generally engage the Medium and High Density Residential Zones”,

• “It is appropriate to consider the impact of the CZBL on all Medium and High Density Residential Zones throughout the City”,

• P&W has “plans to continue residential development of lands in Guelph” and “has a broader interest in ensuring that the regulations applying to the Medium and High Density Residential Zone are appropriate on a Citywide basis”,

• P&W “has a genuine interest in ensuring that the regulations pertaining to those zone facilitate appropriate development”,

• “many of the regulations under the CZBL are more restrictive than the in-force by-law” and “there is a possibility that the number of minor variances may… increase as a result of the new CZBL”.

• Unlike section 17(24.2) of the Act which expressly prohibits global appeals of the entirety of a new Official Plan, section 34 of the Act does not have a similar prohibition. “Principles of statutory interpretation would suggest that the difference in these sections is intentional. Under section 17, a city-wide appeal is not permitted. If legislature intended the same for appeals brought under section 34, the Planning Act would have been drafted to reflect that intention”.

32The reasons listed in the Responding Motion Record are not addressed in the P&W Appeal Form, the P&W Appeal Letter or the MHBC Letter, and are generally unsubstantiated. Moreover, the reasons provide the Tribunal with no helpful reference to which they could be applied to understand the need, or justification, for a City-wide appeal.

33The Tribunal finds that these reasons are generally broad in nature and, although P&W noted that its parent company “is a residential development company that operates in the City and surrounding areas” and that it owns “40 sites across Ontario”, P&W did not advise of any other properties in the City that are owned by P&W or its parent company.

34The Tribunal finds that, without reasons in the P&W Appeal Letter indicating the basis for a City-wide appeal and with the numerous reasons provided in the letter being area- and site-specific, the P&W Appeal Letter itself confirms the area- and site-specific basis for the appeal, notwithstanding the wording indicating P&W appeals the CZBA “in its entirety”. This is largely due to the wording in s. 34(19) of the Act specifically requiring a notice of appeal to provide “the reasons in support of the objection”. No such reasons in support of the appeal of the CZBA in its entirety were included in the P&W Appeal Letter.

35The argument that the scoping of the appeal to an area- or site-specific appeal effectively amounts to a motion for dismissal of part of P&W’s appeal without holding a hearing, pursuant to section 34(25) of the Act, is considered by the Tribunal to be an unsubstantiated overstatement. The Tribunal does not consider the scoping of appeals, especially through the careful consideration being afforded through a Motion hearing, to be equivalent to the dismissal of an appeal. Further, the Tribunal cannot dismiss that which is deemed not properly appealed.

36With respect to the argument that there are land use planning grounds related to the City-wide appeal, P&W noted that the P&W Appeal Letter lists the following land use planning grounds for appeal: having regard to s. 2 of the Act, being consistent with the Provincial Policy Statement, 2020 (“PPS”) and conforming with the Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”). Nowhere in the P&W Appeal Letter does it tie such land use planning grounds to the whole of the City rather than the area- and site-specific concerns related to 201 Elmira Road South.

37P&W provided the Tribunal with the response to that argument within their Responding Motion Record by acknowledging that “the impact of the above issues [having regard to s. 2 of the Act, being consistent with the PPS, and conforming with the Growth Plan] are illustrated by looking to the Subject Lands” despite further suggesting that they “demonstrate land use planning grounds that generally engage the Medium and High Density Residential Zones”. Such expanded meaning was not explained or addressed in the P&W Appeal Letter, the P&W Appeal Form or the MHBC Letter.

38The Tribunal finds that the blanket statement: “[w]e hereby appeal the City of Guelph (“City”) Comprehensive Zoning By-law…” cannot now be used to expand on the grounds for the appeal when no indication was provided, until the Motion was brought, to justify, explain or legitimize the appeal to apply to the entirety of the City. The reasons provided at the hearing of the Motion do not rise to the level of providing legitimacy to a City-wide basis of the appeal.

39Finally, regarding the argument put forth that s. 34 of the Act differs from s. 17 of the Act with respect to not having a reciprocal prohibition to global Zoning By-law appeals, such as provided for in s. 17(24.2) for appeals of the entirety of a new Official Plan, the Tribunal notes that it is not finding that a global appeal to the CZBL is not permitted, but rather that s. 34(19) of the Act specifically requires a notice of appeal to provide “the reasons in support of the objection” and that, in this instance, no such reasons were provided.

40The Tribunal finds that P&Ws submissions are not a reasonable interpretation of the scope of the appeal and the City’s request that P&W provide the Tribunal with a geographical area or address to which it will scope its appeal will be so Ordered by the Tribunal. The timing for the provision to the Tribunal will be extended to Friday, February 9, 2024, being twenty days in advance of the next scheduled CMC date of Thursday, February 29, 2024, providing sufficient time for a reply by the City to be heard at the CMC if such scoping is deemed not sufficient by the City. Such option to file a reply will not be ordered by the Tribunal yet can be made in compliance with Rule 10 of the OLT Rules.

Relief Requested Under Section 1.c. of the Motion

41Other than the submissions made by P&W in their Notice of Response related to the wording of section 1.c. of the Motion as it relates specifically to the P&W appeals, there were no issues raised by Industrial Equities, or any other Party, regarding the Moving Party’s request of the Tribunal under section 1.c. of the relief requested in paragraph [10]. This confirms, in part, that the partial approval and coming into force of the CZBL shall be without prejudice to, and shall not limit, the positions of any Party with respect to their appeals, with the exception of P&W.

42P&W sought to amend the wording of section 1.c. of the Motion to reflect that it applies to the scoping of P&Ws appeal rather than the “partial approval and coming into force of the CZBL”. The Tribunal finds that that distinction holds merit and provides further clarity to the Parties for the hearing of the merits of the appeals.

43Given that the Tribunal will scope the appeals of P&W and Industrial Equities, as above, the Tribunal will make an Order based on the wording of section 1.c. of the Motion, amended in in this respect, expanding the protection against any prejudice to include both the “partial approval and coming into force of the CZBL” as well as to the scoping of any appeal.

44P&W also sought to amend the wording of section 1.c.i. of the Motion to reflect P&Ws appeals related to both the CZBL and OPA 88.

45The Tribunal finds that, on the whole, section 1.c. of the relief requested presents reasonable wording to be included in the Order but recognizes the particular appeal considerations of P&W with respect to their OPA 88 appeal. This consideration would apply to the Forum and Silvercreek appeals as well, however neither party filed responses to the Motion.

46In this respect, the Tribunal finds that although the wording as proposed by the City in section 1.c.i. of the Motion applies only to the CZBL and does not assert limits on the OPA 88 appeals, such further clarification is warranted for certainty for the hearing of the merits of the appeals.

47As such, the Tribunal will amend the wording of section 1.c.i. of the Motion in this respect, expanding the protection to include both the appeals to the CZBL and OPA 88.

48P&W further sought to amend the wording of section 1.c.ii. of the Motion, as proposed by the City, related to not limiting the jurisdiction of the Tribunal to consider and approve portions of the CZBL on a City-wide, area- or site-specific basis provided that “the parties shall be bound by the commitments made by them to scope their issues to a site-specific or area-specific basis”. It was P&Ws request that this wording be amended to consider the scoping of their appeal as set out in their Response to the Motion, rather than the scoping of issues.

49The Tribunal finds that the distinction would hold merit if the P&W were successful in retaining their City-wide appeal. Given that they are to scope their appeal geographically, the Tribunal finds that section 1.c.ii. of the Motion should remain as worded by the City in its Notice of Motion.

50P&W also sought to delete section 1.c.iii. of the Motion in its entirety, related to the “City’s right to assert that the approved portions of the CZBL may be applied to the specific sites or areas without modification on the basis that they constitute good planning”. It is noted that no other Party challenged the Motion in this regard.

51The Tribunal finds that section 1.c.iii. does not limit the rights of the Appellants nor does it expand the rights of the City with respect to the coming into force of any portions of the CZBL.

52As such, the Tribunal will not amend the wording of section 1.c.iii. of the Motion.

53The Tribunal therefore exercises its authority to grant the Motion, in part and as amended. The Tribunal does so with due consideration of all submissions.

THIRD CMC

54The Tribunal agreed with the Parties’ request to cancel the CMC scheduled for Wednesday, January 10, 2024, and to schedule a further CMC for a status update.

55The Tribunal scheduled a third CMC for Thursday, February 29, 2024, at 10 a.m. by video conference.

56Parties 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.

GoTo Meeting: https://global.gotomeeting.com/join/519389173

Access code: 519-389-173

57Persons 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.

58Parties 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

59Individuals 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.

INTERIM ORDER

60THE TRIBUNAL ORDERS that a third Case Management Conference will commence by video hearing on Thursday, February 29, 2024, at 10 a.m.

61THE TRIBUNAL ORDERS that Zoning By-law (2023)-20790 of the City of Guelph is deemed to come into full force and effect on April 18, 2023, being the effective date that the Zoning By-law was passed, save and except:

i. the regulations, maps and appendices remaining under appeal on a City-wide basis as set out in Attachment 2 to this Decision, and

ii. the entirety of the Zoning By-law which will remain under appeal on a site specific or area specific basis for the properties/areas set out in Attachment 3 to this Decision.

62THE TRIBUNAL ORDERS that the appeal brought by Industrial Equities Guelph Corporation is scoped to 384 Crawley Road.

63THE TRIBUNAL ORDERS that the partial approval and coming into force of Comprehensive Zoning By-law (2023)-20790, as well as the scoping of any appeal, shall be strictly without prejudice to, and shall not have the effect of limiting:

i. The positions any party may take with respect to their site-specific or area-specific appeals of Comprehensive Zoning By-law (2023)-20790 and Official Plan Amendment No. 88, such that the parties will be fully at liberty to challenge and test the planning merits of Comprehensive Zoning By-law (2023)-20790 and Official Plan Amendment No. 88, as they apply to their respectively delineated sites or areas.

ii. The jurisdiction of the Tribunal to consider and approve modifications, deletions or additions to the unapproved portions of Comprehensive Zoning By-law (2023)-20790 on a general, area-specific, or site-specific basis, including issuing future Orders respecting the unapproved portions of Comprehensive Zoning By-law (2023)-20790 which are inconsistent with the Order resulting from the Tribunal as a result of this Motion hearing, provided that the parties shall be bound by the commitments made by them to scope their issues to a site-specific or area-specific basis; or

iii. The City’s right to assert that the approved portions of Comprehensive Zoning By-law (2023)-20790 may be applied to the specific sites or areas without modification on the basis that they constitute good planning.

64THE TRIBUNAL ORDERS that the appeal brought by Paisley & Whitelaw Inc. be scoped to a geographical area or address.

65THE TRIBUNAL ORDERS that the Final Order be withheld until Paisley & Whitelaw Inc. provide to the Tribunal and the City, no later than February 9, 2024, a geographical area or address to which it will scope its appeal.

66The Member will remain seized for the purposes of the issuance of the Final Order. In the event there are any difficulties with any matters which are related to the implementation of this Interim Order, the Tribunal may be spoken to.

“C. I. Molinari”

C. I. MOLINARI

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

REMAINING APPELLANTS

PARTY

COUNSEL

2014707 Ontario Inc. (‘Cook Homes’)

Scott Snider

Anna Toumanians

Jennifer Meader (in absentia)

Paisley & Whitelaw Inc.

Silvercreek Guelph Developments Limited, and

2089248 Ontario Inc.

Jasmine Fraser

Tom Halinski (in absentia)

Guelph Watson Holdings Inc.

Loblaw Properties Limited

642762 Ontario Inc.

Kevin Thompson

Giovanni Giuga

Brittany Ennis (articling student)

Guelph & District Home Builders’ Association Inc., and

Guelph & Wellington Development Association

Thomasfield Homes Limited

University Village (Guelph) Limited

Ferrovia Investments Inc.

2738766 Ontario Limited,

2738777 Ontario Limited, and

848866 Ontario Limited

Eric Davis

IJK Holdings Inc.

2742707 Ontario Limited

Jasmine Fraser

Eileen Costello (in absentia)

Forum Asset Management

Mithea Murugesu

Johanna Shapira (in absentia)

Industrial Equities Guelph Corporation

Michael Foderick

Jamie Cole

Daniel Angelucci (in absentia)

Windmill Development Group Ltd.

Philip Osterhout

ATTACHMENT 2

ATTACHMENT 3