Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 13, 2025 CASE NO(S).: OLT-24-000482

PROCEEDING COMMENCED UNDER subsection 51(48) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

Appellant: VIA Rail Canada Inc. Subject: Proposed Change of Conditions of approval of draft plan of subdivision Description: To facilitate the development of 6 development blocks Reference Number: D07-16-20-0020 Property Address: 25 Pickering Place Municipality: City of Ottawa OLT Case No.: OLT-24-000482 OLT Lead Case No: OLT-24-000482 OLT Case Name: VIA Rail Canada Inc. v. Ottawa (City)

BEFORE: M.A. SILLS VICE-CHAIR Thursday, the 13th day of February, 2025

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence April 28, 2025.

“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.

ATTACHMENT “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 hearing will be held on April 28-May 2, 2025, at 10:00 a.m. by video hearing directed in the Tribunal’s decision and Order.

3. The length of the hearing is 5 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 found in Attachment "1" to this Order.

4. The Parties and Participants identified at the case management conference are set out in Attachment "2" to this Order.

5. The issues are set out in the Issues List attached as Attachment "3" to this Order. The Parties will attempt to resolve the issues prior to the hearing on the merits of the appeal. There will be no changes to the Issues List unless the Tribunal permits and/or the Parties consent to the changes, and a Party who asks the Tribunal for changes to the Issues List without consent of the other Parties may have costs awarded against it.

6. The order of evidence is 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.

7. Any person intending to participate in the hearing shall provide a mailing address, email address, and a telephone number to the Tribunal. Any person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address, and telephone number.

8. If the hearing is to proceed electronically, any person who intends to participate in the hearing, including Parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearings 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 the witnesses will be called. This list must be delivered to the Parties and the Tribunal on or before December 20, 2024. A Party who intends to call an expert witness must include a copy of the expert witness’ curriculum vitae, Acknowledgement of Expert Duty form(s), and the area of expertise in which the expert witness is proposed to be qualified.

10. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the proposed area of expertise identified shall be made by motion in accordance with the Tribunal’s Rules of Practice and Procedure, and notice of same must be served on the other Parties and the Tribunal on or before January 6, 2025.

11. Expert witnesses in the same discipline shall have at least one meeting on or before March 21, 2025 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting, and if an agreement is reached, the expert witnesses shall prepare and file a statement of agreed facts and the remaining issues to be addressed at the hearing with the Parties and the Tribunal on or before March 28, 2025.

12. An expert witness shall prepare an expert witness statement (full disclosure including reports), which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of the expert witness statement (full disclosure including reports), including a copy of the expert witness’ curriculum vitae and Acknowledgement of Expert Duty form, must be provided to the other Parties and to the Tribunal on or before February 28, 2025. Instead of a witness statement, the expert may file their entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony. For greater certainty, each expert witness statement (full disclosure including reports) must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure.

13. 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 provide a brief outline of the expert’s intended evidence to the other Parties and to the Tribunal on or before February 28, 2025.

14. A Party who intends to call a witness who is not an expert must provide a brief outline of the witness’ evidence to the other Parties and to the Tribunal on or before February 28, 2025. If this is not done, the Tribunal may refuse to hear the witness’ testimony.

15. On or before February 14, 2025, a Participant shall provide copies of their written Participant statement to the other Parties and to the Tribunal. A Participant cannot present oral submissions at the hearing on the content of their written statement, unless permitted by the Tribunal.

16. On or before April 4, 2025, Parties may provide to all other Parties and to the Tribunal a written response to any written evidence.

17. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Rule 10 of the Tribunal’s Rules of Practice and Procedure with respect to motions requires that the moving Party provide copies of the motion to all other Parties 15 days before the Tribunal hears the motion.

18. On or before April 11, 2025, the Parties shall provide copies of their visual evidence to all of the other Parties and to the Tribunal. The Tribunal and all Parties shall be notified if a model will be used, and all Parties must have a reasonable opportunity to view the model before the scheduled commencement of the hearing.

19. On or before April 7, 2025, the Parties shall advise the Tribunal of whether any hearing dates scheduled for this matter may be released from the Tribunal's calendar. This request may only be made on consent of all of the Parties. If no hearing dates are intended to be released from the Tribunal's calendar, no Party is required to advise the Tribunal anything further in that regard.

20. The Parties shall prepare a joint document book which shall be shared with the Parties and the Tribunal on or before April 11, 2025. One hard copy of the joint document book will be filed with the Tribunal as soon as practicable in advance of the hearing. All Parties must be served with the joint document book in hard copy or an accessible electronic format.

21. The Parties shall prepare and file a detailed hearing plan with the Tribunal on or before April 11, 2025, with a proposed schedule for the hearing that identifies, as a minimum, the Parties participating in the hearing, the preliminary matters (if any are to be addressed), the anticipated order of evidence, the date each witness is expected to attend the hearing, 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 detailed hearing plan. Any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the detailed hearing plan at any time in the course of the hearing.

22. A Party who provides a witness’ 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.

23. All filings shall be submitted electronically to the Tribunal, the Parties, and the Participants (if any). The Tribunal will be provided with a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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 Rule 7 of the Tribunal’s Rules of Practice and Procedure. The Parties shall make best efforts to ensure that all documents to be filed with the Tribunal are organized, tabbed, and digitally searchable. This section applies regardless of whether the hearing event is taking place in person or electronically.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. Rule 17 of the Tribunal’s Rules of Practice and Procedure applies to such requests.

25. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

This Member is not seized.

So orders the Tribunal.

BEFORE: Name of Member: Date:

TRIBUNAL REGISTRAR

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 of Practice and Procedure.

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.

ATTACHMENT "1"

SUMMARY OF DATES

DATE	EVENT
B) December 20, 2024	Exchange of witness lists (names, disciplines and order to be called)
C) January 6, 2025	Last date to challenge witnesses or qualifications of a witness to give opinion evidence (if necessary)
D) February 28, 2025	Exchange of witness statements, summoned witness outlines, expert reports, and participant statements
E) March 21, 2025	Experts meeting prior to this date
F) April 4, 2025	Exchange of reply witness statements (if any)
G) March 28, 2025	Statement of agreed facts filed with the Tribunal
H) April 7, 2025	Parties to advise the Tribunal if any hearing dates can be released
I) April 11, 2025	Exchange of visual evidence (if any)
J) April 11, 2025	Finalize joint document book
K) April 11, 2025	Hearing plan filed with the Tribunal
L) April 28 – May 5, 2025	Hearing scheduled

ATTACHMENT "2"

LIST OF PARTIES AND PARTICIPANTS

1. City of Ottawa CITY OF OTTAWA LEGAL SERVICES 110 Laurier Avenue West, Third Floor Ottawa, ON K1P 1J1 Timothy Marc, Senior Legal Counsel timothy.marc@ottawa.ca +1 (613) 580-2424 x21444 Garett Schromm, Associate Legal Counsel garett.schromm@ottawa.ca +1 (613) 580-2424

2. VIA Rail Canada Inc. McCARTHY TÉTRAULT LLP Suite 5300, TD Bank Tower Box 48, 66 Wellington Street West Toronto, ON M5K 1E6 Jonathan Nehmetallah, Associate jnehmetallah@mccarthy.ca +1 (416) 601-8146 Daniel Angelucci, Associate dangelucci@mccarthy.ca +1 (416) 601-7569

3. Colonnade Management Inc. o/a Colonnade Bridgeport BORDEN LADNER GERVAIS LLP World Exchange Plaza 100 Queen Street, Suite 1300 Ottawa, ON K1P 1J9 Emma Blanchard, Partner eblanchard@blg.com +1 (613) 369-4755 Laura Robinson, Senior Associate lrobinson@blg.com +1 (613) 369-4754

ATTACHMENT "3"

LIST OF ISSUES

Note: The identification of an issue on this Issues List is intended to provide notice to all Parties that a Party will lead evidence and/or argument on the matter. This identification does not serve as an acknowledgement of relevancy to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

ISSUES LIST OF VIA RAIL CANADA INC.

Planning Legislation and Policies

1. Does the proposed draft plan of subdivision approval condition, namely condition 61(h) (the “Draft Plan Condition”) have regard for matters of provincial interest pursuant to section 2 of the Planning Act, R.S.O. 1990, c. P.13 (the “Planning Act”), and in particular, subsections 2(f), (h), (k), (l), (m), (n), (o), (p), and (r)? If not, should the Draft Plan Condition be amended or should new conditions be added for their failure to have regard for matters of provincial interest under the Planning Act pursuant to section 2 and subsection 51(56) of the Planning Act?

The parties shall confine their evidence on these matters to matters relevant to the assessment of appropriate conditions of draft plan approval relating to the mitigation of noise and vibration. The identification of a specific policy within this Issue is not an admission of the relevance thereof by any party.

2. Does the Draft Plan Condition have appropriate regard for the matters set out in subsection 51(24) and (25) of the Planning Act, and in particular, subsections 51(24)(a), (b), (c), (d), (g), and (m), and also in particular, subsection 51(25)(d)? If not, should the Draft Plan Condition be amended or should new conditions be added pursuant to subsection 51(56) of the Planning Act?

3. Is the Draft Plan Condition consistent with the Provincial Planning Statement, 2024 (the “PPS 2024”), including but not limited to: (a) Chapter 1; (b) Chapter 2: policies 2.1.6; 2.2.1(c); 2.3.1.2; 2.3.1.3; 2.4.1.2(c), 2.4.1.3(a) and (b); 2.4.2.6; 2.4.3.1; 2.8.1.1(a), (b), (d), and (e); (c) Chapter 3: policies 3.2; 3.3; 3.4.1; and 3.5; (d) Chapter 5: policy 5.1.1; and, (e) Chapter 6: policies 6.1.1; 6.1.5; 6.1.11; 6.2.1; and 6.2.7; (including sub-policies, schedules, diagrams, and associated definitions thereunder)?

If not, should the Draft Plan Condition be amended or should new conditions be added for their failure to be consistent with the PPS 2024 pursuant to subsections 3(5) and 51(56) of the Planning Act?

The parties shall confine their evidence on these policies to policies relevant to the assessment of appropriate conditions of draft plan approval relating to the mitigation of noise and vibration. The identification of a specific policy within this Issue is not an admission of the relevance thereof by any party.

4. Does the Draft Plan Condition conform with the City of Ottawa Official Plan (the “Official Plan”), and in particular: (a) Volume I, and in particular: (i) Section 1: policy 1.2 and 1.4; (ii) Section 2: policies 2.2.2(3), (4), (6), and (8); 2.2.3(2); and 2.2.4(1) and (4); (iii) Section 3: policy 3.5(1) to (4) and (6) to (8); (iv) Section 4: policies 4.1; 4.1.1; 4.1.2(21) and (22); 4.1.6; 4.1.7; 4.2.1(1); 4.3; 4.3.2; 4.6; 4.6.4; 4.6.5; 4.6.6(4); (v) Section 5: policies 5.2; 5.2.1; 5.2.3(1); 5.6; and 5.6.1; (vi) Section 6: policies 6.1; 6.1.1; and 6.1.2; (vii) Section 10: policies 10.0; 10.2; 10.2.1; and 10.2.3; and, (viii) Section 11: policies 11.1; 11.4; and 11.6(1) and (13); (including sub-policies, schedules, diagrams, and associated definitions thereunder); and, (b) Volume II: Inner East Line 1 and 3 Stations Secondary Plan (including sub-policies, schedules, diagrams, and associated definitions thereunder)?

If not, should the Draft Plan Condition be amended or should new conditions be added for their failure to conform with the Official Plan pursuant to subsection 51(56) of the Planning Act?

The parties shall confine their evidence on these policies to policies relevant to the assessment of appropriate conditions of draft plan approval relating to the mitigation of noise and vibration. The identification of a specific policy within this Issue is not an admission of the relevance thereof by any party.

5. Is the Draft Plan Condition as it relates to noise and vibration reasonable, having regard to the nature of the development proposed for the Subject Property of Subdivision?

Railway and Land Use Compatibility Matters

Jurisdictional Issues

6. What consideration, if any, should be given to sections 5, 87, 95, 95.1, 95.2, and 95.3 of the Canada Transportation Act, S.C. 1996, c. 10 (the “Canada Transportation Act”), and sections 4(1), 8(1), 10, 18(1), 19, and 47.1 of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) (the “Railway Safety Act”), and associated guidelines and regulations, and in particular, VIA Rail’s mandate to carry persons, operate a railway, and ability to add additional infrastructure on railway lands and at the VIA Rail Station?

7. What consideration, if any, should be given for the protection of VIA Rail from complaints from future occupants of the development on the Appeal Lands concerning the VIA Rail Station’s operations to the Canadian Transportation Agency pursuant to section 95.1 and 95.3 of the Canada Transportation Act?

8. Given the answer to Issues 6 to 7 above, should the Draft Plan Condition be amended or should new conditions be added pursuant to subsection 51(56) of the Planning Act?

Railway Policies and Guidelines

9. In assessing and evaluating the Draft Plan Condition what regard, if any, should be had for the following policies and guidelines: (a) the Federation of Canadian Municipalities/Railway Association of Canada’s “Guidelines for New Development in Proximity to Railway Operations”; (b) the Ministry of the Environment, Conservation and Parks’ “Environmental Noise Guideline – Stationary and Transportation Sources – Approval and Planning (NPC-300)” guidelines (the “NPC-300 Guidelines”); (c) the Ministry of the Environment, Conservation and Parks’ “D-1 Land Use and Compatibility” guidelines (the “D-1 Guidelines”); (d) the Ministry of the Environment, Conservation and Parks’ “D-6 Compatibility between Industrial Facilities” guidelines (the “D-6 Guidelines”); (e) the Canadian Transportation Agency’s “Guidelines for the Resolution of Complaints Concerning Railway Noise and Vibration”; (f) the Canadian Transportation Agency’s “Railway Noise Measurement and Reporting Methodology” guidelines; and, (g) Annex C of ISO 2631-1:1997 Mechanical Vibration and Shock – Evaluation of Human Exposure to Whole Body Vibration: General Requirements and Section 5 and Annex B of ISO 2631-2:2003 Mechanical Vibration and Shock – Evaluation of Human Exposure to Whole Body Vibration: Vibration in Buildings (collectively, the “Rail Adjacency Guidelines”)?

10. Given the answer to Issue 9 above, does the Draft Plan Condition meet the appropriate standard against which the Rail Adjacency Guidelines should be applied? If not, should the Draft Plan Condition be amended or should new conditions be added pursuant to subsection 51(56) of the Planning Act?

Impacts on VIA Rail’s Operations

11. Does the Draft Plan Condition appropriately address and/or mitigate potential noise and vibration impacts from the development of the Appeal Lands that could affect VIA Rail’s operations on the VIA Rail Station?

12. Does the Draft Plan Condition take into account whether the development on the Appeal Lands will inappropriately impact the current and future operation of the VIA Rail Station?

13. Does the Draft Plan Condition consider noise and vibration associated with the operation of the VIA Rail Station, in accordance with applicable Guidelines.

14. Given the answers to Issues 11 to 13 above, should the Draft Plan Condition be amended or should new conditions be added to address the mitigation of noise and vibration pursuant to subsection 51(56) of the Planning Act?

Noise and Vibration Issues

15. Does the Draft Plan Condition appropriately address and/or mitigate potential noise and vibration impacts on the Appeal Lands from the operation of the VIA Rail Station?

16. Does the Draft Plan Condition include mitigation measures which conform to the requirements of the Rail Adjacency Guidelines?

D-1 Guidelines and D-6 Guidelines Issues

17. To what extent do the D-1 and D-6 Guidelines apply to the consideration of the Draft Plan Condition and, to the extent that they apply, does the Draft Plan condition meet these requirements.

Implementation and Monitoring Matters

18. Is it appropriate for the Draft Plan Condition to secure noise and vibration mitigation measures, conditions, notices, warning clauses, and other legal requirements at the site plan approval stage? If not, should such mitigation measures, conditions, notices, warning clauses, and other legal requirements be secured as part of the approval of new or revised draft plan approval conditions for the Subject Property?

19. What noise and vibration mitigation measures, conditions, notices, warning clauses, or other legal requirements, in conjunction with any approval of new or revised draft plan approval conditions for the Subject Lands, are needed, if any?

20. With respect to the associated studies, reports, and materials that supported the application and the creation of the Draft Plan Conditions (the “Supporting Application Materials”), and with respect to the incorporation of the assumptions and conclusions from the Supporting Application Materials into the Draft Plan Conditions: (a) were such assumptions and conclusions from the Supporting Application Materials factual, accurate, correct, and based on accurate information and data; (b) did such Supporting Application Materials provide sufficient information to properly evaluate, minimize, and mitigate any potential adverse effects from the VIA Rail Station on the development of the Appeal Lands; (c) should updated Supporting Application Materials be required prior to approving any new or revised draft plan approval conditions for the Appeal Lands; and, (d) should the approval of new or revised draft plan approval conditions require that the conclusions, recommendations, and requirements determined to be necessary in the updated Supporting Application Materials be to the satisfaction of VIA Rail?

21. Does the Draft Plan Condition include appropriate mechanisms to ensure ongoing compliance with the Draft Plan Condition?

22. Given the answers to Issues 18 to 21 above, should the Draft Plan Condition be amended or should new conditions be added to include additional implementation and compliance mechanisms pursuant to subsection 51(56) of the Planning Act?

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. The Order of Evidence will be described in greater detail in the Hearing Plan that is filed with the Tribunal.

ORDER:

1. VIA Rail Canada Inc.
2. City of Ottawa
3. Colonnade Management Inc. o/a Colonnade Bridgeport
4. VIA Rail Canada Inc. (in reply)