Alyssa Clutterbuck

The applicant appealed the City of Hamilton's failure to make a decision on a Zoning By-Law Amendment application to permit a four-storey seniors' residence and 16 bungalow townhouses.

The City did not oppose the appeal, and the hearing proceeded as a settlement hearing.

The Tribunal accepted uncontroverted expert planning evidence that the proposal is consistent with the Provincial Policy Statement, conforms to the Growth Plan, and conforms to the Urban Hamilton Official Plan.

The Tribunal allowed the appeal in part and approved the zoning by-law amendments, finding the development represents an appropriate form of residential intensification.

The applicant landlord sought an order declaring that the respondent tenant failed to validly exercise an option to release a portion of its leased premises.

The lease required the tenant to provide written confirmation from the federal government of a loss of expected funding by a specific date to exercise the option.

Due to the COVID-19 pandemic, the government delayed its budget and the tenant could not provide the required confirmation by the deadline.

The court held that the tenant's purported exercise of the option was invalid, as the lease allocated the risk of funding uncertainty to the tenant.

The court also rejected the tenant's arguments of frustration and relief from forfeiture, ordering the tenant to pay substantial indemnity costs.