Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 17, 2025
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 subsection 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: ZBA (2023)-20790
Property Address: All lands within the City of Guelph
Municipality/UT: Guelph/Wellington
OLT Case No.: OLT-23-000463
OLT Lead Case No.: OLT-23-000462
Heard: April 8, 2025 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Paisley & Whitelaw Inc. | Jennifer Meader, Mark de Jong |
| City of Guelph | Alex Ciccone, Kip Phillips, Peter Pickfield (in absentia), Allison Thornton (in absentia) |
| Silvercreek Guelph Developments Inc., 2089248 Ontario Inc., Guelph Watson Holdings Inc., Loblaw Properties Limited | Anna Lu, Tom Halinski (in absentia), Jasmine Fraser (in absentia) |
| 642762 Ontario Inc., Guelph & District Home Builders’ Association Inc., Guelph & Wellington Development Association | Kevin Thompson, Giovanni Giuga (in absentia) |
| 2738766 Ontario Limited, 2738777 Ontario Limited, 848866 Ontario Limited | Eric Davis |
| Industrial Equities Guelph Corporation | Jamie Cole, Daniel Angelucci (in absentia), Michael Foderick (in absentia) |
MEMORANDUM OF ORAL DECISION DELIVERED ON APRIL 8, 2025, BY S. DEBOER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was the request by Paisley & Whitelaw Inc. (“Appellant”) to schedule a hearing of the Appeal by the Appellant to the updated and approved City of Guelph’s (“City”) Comprehensive Zoning By-law No. (2023)-20790 (“CZBL”). The City opposed this request, as such, the Tribunal scheduled a Case Management Conference (“CMC”) to hear the submissions of the Appellant and the City concerning the request. The lands pertaining to this request are municipally known as 201 Elmira Road South, in the City of Guelph (“Subject Lands”).
2The Tribunal notes that the original appeals date back to 2023 and that there were fifteen original appellants to the CZBL. The Tribunal further notes that four of the fifteen appellants have settled with the City pertaining to their issues concerning the CZBL.
BACKGROUND
3The Appellant’s Motion requested that the Tribunal schedule a hearing to decide the merits of the Appellant’s issues pertaining to the CBZL. The issues that the Appellant is seeking to be decided by the Tribunal are:
(a) a reduction of the minimum required parking rate to 1.1 spaces per unit;
(b) a reduction of the minimum required parking stall dimensions for the parking structure to 2.75 metres (“m”) x 5.5 m; and
(c) that the regulations applied to the parking structure, other than the parking rate and the parking stall dimensions, be in accordance with the 1995 Zoning By-law.
4The Appellant has multiple appeals before the Tribunal concerning the Subject Lands. The first appeal is from a decision refusing a minor variance application from the City’s Committee of Adjustment (“COA”) in respect to building “D” on the Subject Lands. The second appeal concerns the Appellant’s appeal of the CZBL, which is before the Tribunal at this hearing event. A third appeal has been filed concerning the Development Charges on building “C” and the fourth appeal is a second minor variance appeal in which the COA deferred the application sine die. The second minor variance appeal was the subject of a three-day hearing event in January 13 to 15, 2025 (“Second MV”). A Decision on this appeal has not been issued as of the time of this CMC.
SUBMISSIONS
5At the beginning of the CMC, the Tribunal entered the following as exhibits to the matter:
Exhibit 1 – Appellant’s Submissions
Exhibit 2 – City of Guelph Response Submissions
Exhibit 3 – Appellant’s Reply Submissions
6The issue to be determined before the Tribunal at this CMC is the setting of a hearing date concerning the Appellant’s appeal of the CBZL. It is the City’s argument that setting a hearing date for the CBZL would result in an issue estoppel, as the issue at the heart of the CBZL matter is the same issue that was before the Tribunal during the Second MV hearing.
Appellant’s Submissions
7In the Appellant’s submissions, it was Ms. Meader’s argument that there is not an issue estoppel as the appeals concerning the Second s and the CBZL are different, not in the issue(s) themselves, but in the tests associated with the issues.
8Ms. Meader argued that the tests of the Second MV are set out in s. 45(1) of the Planning Act, and that the variances in the Second MV must;
(a) maintain the general intent and purpose of the official plan;
(b) maintain the general intent and purpose of the zoning by-law
(c) be desirable for the appropriate development or use of the land, building or structure,
(d) be minor in nature.
9As for the tests pertaining to a CBZL appeal, Ms. Meader argued that the tests that need to be met are:
(a) is the application in conformity with the City’s Official Plan; and
(b) does the application represents good planning.
10Granted, Ms. Meader continued, that there is an issue that is the same in both the Second MV and the CBZL appeals, that being the issue concerning the reduction of the minimum required parking rate to 1.1 spaces per unit (issue “a”). However, the tests that need to be met in each of the appeals is different, therefore, it does not meet the doctrine of issue estoppel.
11Ms. Meader continued with her argument concerning the doctrine of issue estoppel can only arise if three preconditions are met:
(a) mutuality – the parties to the two proceedings must be identical;
(b) finality – there must be a decision in an earlier proceeding which was final in its determination; and
(c) the same question, or the same issues, must have been decided in the earlier proceeding.
12Ms. Meader continued with her argument that there has not been a final decision on the Second MV, and even if there was a final decision on the Second MV, the different tests that must be determined with each of the appeals demonstrates that the issues are not the same. Therefore, Ms. Meader argued, all the preconditions have not been met for the doctrine of issue estoppel to occur.
13Ms. Meader concluded that for the reasons listed in her submissions, it was her respectful request that the Tribunal book a hearing to determine the merits of the CBZL appeal pertaining to the Subject Lands.
City’s Submissions
14It was Mr. Ciccone’s argument that any relitigating of the issue that was contested in the Second MV would in fact meet the doctrine of issue estoppel and would be an abuse of the Tribunal’s process.
15It was Mr. Ciccone’s request that the Tribunal exercise its powers under s. 15(2) of the Ontario Land Tribunal Act, 2021, SO 2021, c 4, Sched 6, to disallow the issue that had been contested at the Second MV. It was Mr. Ciccone’s argument that to allow this issue to be relitigated would not be conducive to a fair, just, and expeditious resolution to the issue.
16Mr. Ciccone argued that the overlapping issue meets the criteria of the doctrine of issue estoppel as it is the same issue or question being asked by the Appellant. The separate tests are not apart of the three preconditions of issue estoppel, it is simply that the same issue or question is being asked to be determined.
17It was Mr. Ciccone’s argument that allowing another hearing to occur with this previously argued issue would substantially delay the final result that the Appellant is looking for, which is the allowance of the construction of the parking facilities that are needed for full occupancy for Buildings A, B and C to occur. Mr. Ciccone continued with his argument that the Tribunal should book a hearing date for the remaining two issues (issues (b) and (c) as noted above) and not allow issue (a) to be reheard on the grounds of issue estoppel.
ANALYSIS AND FINDINGS
18The Tribunal asked further clarifying questions to the Parties concerning the issue of the doctrine of issue estoppel, further questions pertaining to a hearing date, whether issue (a) should be included as apart of the hearing, and the flexibility of the Parties to having a separate hearing on issues (b) and (c), excluding issue (a).
19After further discussion, the Parties agreed that issue (b) and (c) could be heard in a written settlement hearing as these issues have been agreed upon between the two Parties. As for issue (a), the Parties proposed to hold this issue in abeyance until the Second MV Decision has been issued. Once the Second MV Decision has been issued, the Parties may not need to hold a hearing, dependant on the final determination of the Second MV.
20Based on these suggestions by the Parties, the Tribunal agreed to hold issue (a) in abeyance and that issue (b) and (c) would be heard via a written settlement hearing. The Tribunal found a date of the written settlement hearing that would work for the Parties and held a date of Monday, May 5, 2025, for the hearing of the written settlement. The Parties are to submit their documents by Friday, May 2, 2025, for the Tribunal’s review.
ORDER
21The Tribunal orders its directions listed above.
22The presiding Member is not seized; however, the presiding Member may be spoken to if procedural issues arise, subject to the Tribunal’s calendar.
“S. deBoer”
S. DEBOER
MEMBER
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.