Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 25, 2021

CASE NO(S).: PL171450

The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.

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

Appellant: 1826210 Ontario Inc. Appellant: Centurion (Dundas) Holdings Ltd. Appellant: Marz Homes Holdings Inc. Appellant: Ministry of Municipal Affairs; and others Subject: Proposed Official Plan Amendment No. 69 Municipality: City of Hamilton OLT Case No.: PL171450 OLT File No.: PL171450 OLT Case Name: Centurion (Dundas) Holdings Ltd. v. Hamilton (City)

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

Appellant: 1804487 Ontario Inc. Appellant: 1826210 Ontario Inc. Appellant: 2294643 Ontario Inc. Appellant: 2531083 Ontario Inc.; and others Subject: By-law No. 17-240 Municipality: City of Hamilton OLT Case No.: PL171450 OLT File No.: PL171451

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Brian Arthur Applicant: Hamilton Clifford Subject: Minor Variance Variance from By-law No.: 32-74 Property Address/Description: 1286 Channelview Road Municipality: City of Kingston Municipal File No.: D13-054-2018 OLT Case No.: PL180835 OLT File No.: PL180835 OLT Case Name: Arthur v. Kingston (City)

Heard: April 1, 2021 by video hearing

APPEARANCES:

Parties	Counsel
City of Hamilton (“City”)	P. MacDonald
939158 Ontario Inc.	Self-represented
1826210 Ontario Inc.	A. Toumanians, J. Meader
2294643 Ontario Inc.	M. Poremba, J. Shapira
Canadian Tire Real Estate Limited (CTREL)	M. Winch, S. Leisk
Choice Properties Real Estate Investment Trust (CP REIT) and Loblaw Properties Limited	D. Neligan, E. Costello
King Stuart Developments Inc.	D. Baker
Marz Homes Holdings Inc.	C. Boer, D. Ionico
Royal Connaught Inc.	J. Speranzini, J. Mahler

MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON APRIL 1, 2021 AND ORDER OF THE TRIBUNAL

1The Tribunal held a fourth Case Management Conference (“CMC”) concerning the City’s Official Plan Amendment No. 69 and Zoning By-law Amendment No. 17-240.

2In advance of the CMC, in a manner similar to the third CMC, the City had circulated a draft agenda, updated Appellant/Party List, a Consolidated Issues List, a draft Proposed Appellant Groupings List, a draft Procedural Order for the proposed Built Form hearing, a draft Procedural Order for the proposed Parking Hearing, and a list of proposed independent hearings, all of which was of assistance in organizing the CMC.

Scoping of Zoning Appeals

3The City informed the Tribunal that they carried out substantial discussions with all the parties. The City proposed that all parties have agreed subject to conditions that this matter can be addressed in a phased approach. The parties submitted on consent that the appeals be split into two groupings as follows:

a. City-wide appeals; and

b. Site-specific appeals.

4The City-wide appeals will consist of Canadian Tire Real Estate Limited (CTREL) and Choice Properties Real Estate Investment Trust (CP REIT)/Loblaw Properties Limited. The parties submitted that the City-wide appeals should proceed ahead of the site specific appeals. A draft Procedural Order was provided to the Tribunal covering these appellants inclusive of issues list, and estimate of time needed for a contested hearing as well as a memorandum of understanding with parties who would not participate directly but otherwise reserve the right to protect their interest in this proceeding.

5The City and the City-wide appellants reviewed their plans of evidence and scope of issues. All expect to call a minimum of three expert witnesses in the areas of land use planning, urban planning and traffic engineering. Given the scope of issues to be addressed by each of these experts, the parties requested 25 days of hearing time.

6The Tribunal having reviewed these submissions allowed the setting up of a five week hearing to be held starting on February 14, 2022 for five weeks. The parties were directed to submit a revised draft Procedural Order reflecting the discussions held at this CMC and incorporating the hearing dependent parameters.

7The Tribunal having received and reviewed the draft Procedural Order for City-wide appeals, issues it as per Attachment 1.

8The Tribunal having reviewed the memorandum of understanding between the parties in creating phased hearings notes it as Attachment 2 for the record.

9The parties requested that a follow-up CMC be held around August 2021 to ensure that further updates may be provided including processing of matters related to coming into force of some additional sections of the OPA that are not under appeal. The Tribunal agreed to the request and set a CMC for August 9, 2021.

CMC and Hearing Event Details

CMC

10The Tribunal sets a fifth CMC to be held via video on Monday, August 9, 2021 starting at 10 a.m.

11Parties 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:

https://global.gotomeeting.com/join/324230253

Access code: 324 230 253

12Parties 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.

13Persons 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 324 230 253.

14Individuals 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.

City-wide Appeals Hearing

15The Tribunal sets a five-week hearing to commence at 10 a.m. on Monday, February 14, 2022. The hearing details are as follows.

https://global.gotomeeting.com/join/147308781

Access code: 147 308 781

16Persons 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): 1 888 455 1389 or +1 (647) 497-9391. The access code is 147 308 781.

17There will be no further notice.

18The directions in this decision are so ordered.

19I may be approached for case management purposes.

“Jatinder Bhullar”

JATINDER BHULLAR

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.

ATTACHMENT 1

Procedural Order: City-wide Appeals

PROCEEDING COMMENDED UNDER subsection 17(24) of the Planning Act, RSO 1990, c P.13,

Appellants: Multiple Subject: Urban Hamilton Official Plan Amendment No. 69 Municipality: City of Hamilton OLT Case No.: PL171450 OLT File No.: PL171450 OLT Case Name: Centurion (Dundas) Holdings Ltd. v. Hamilton (City)

PROCEEDING COMMENDED UNDER subsection 34(19) of the Planning Act, RSO 1990, c P.13,

Appellants: Multiple Subject: Zoning By-law 17-240 Municipality: City of Hamilton OLT Case No.: PL171450 OLT File No.: PL171451

Procedural Order

City-Wide Appeals

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 Monday, February 14, 2021 at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is 25 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.

4. The parties and participants identified at the case management conference are set out in Schedule 1.

5. The issues are set out in the Issues List attached as Schedule 2. 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 Schedule 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 (https://olt.gov.on.ca/tribunals/lpat/).

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, October 15, 2021 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 Tuesday, November 16, 2021 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 Wednesday, December 1, 2021.

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, December 17, 2021, 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, December 17, 2021, a participant shall provide copies of their written participant statement to the other parties 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 Monday, January 31, 2022 , 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.

16. On or before Friday, January 21, 2022, 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.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, February 4, 2022 (date – no later than 10 days prior to the hearing).

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before Monday, February 7, 2022.

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, February 7, 2022 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 filing shall be electronic and in hard copy. 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

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.

SCHEDULE 1 – IDENTIFICATION OF PARTIES FOR HEARING

This Procedural Order governs the hearing of appeals which were not scoped to site-specific and affect the entire Zoning By-law under appeal. Other matters under appeal as part of PL171450 have been scoped to site-specific and will be heard separately and be governed by separate procedural orders.

The parties to participate in this hearing are:

1. City of Hamilton

City of Hamilton Legal Services Division 50 Main Street East, 5th Floor Hamilton, ON L8N 1E9 905-546-2424 Ext. 4708 Patrick MacDonald Patrick.MacDonald@hamilton.ca

2. Canadian Tire Real Estate Limited

Cassels Suite 2100, Scotia Plaza 40 King Street West Toronto, ON, M5H 3C2 416-869-5300 Signe Leisk sleisk@casselsbrock.com Melissa Winch mwinch@casselsbrock.com

3. Choice Properties Real Estate Investment Trust and Loblaw Properties Ltd.

Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 416-863-1500 David Neligan dneligan@airdberlis.com Eileen Costello ecostello@airdberlis.com

SCHEDULE 2 – ISSUES LISTS

#7 - CANADIAN TIRE REAL ESTATE LIMITED

1. Does the parking standard for retail stores and shopping centres in Section 5.6c) of Zoning By-law No. 17-240 preclude modest additions or expansions? Should this standard apply to existing retail properties?

2. Is the required parking standard for retail stores and shopping centres in Section 5.6c) of Zoning By-law No. 17-240 onerous and fail to give consideration to the existing transit in the City of Hamilton and the City of Hamilton’s own initiatives to reduce car travel?

3. Is the required parking standard for retail stores and shopping centres in Section 5.6c) of Zoning By-law No. 17-240 inconsistent with the Provincial Policy Statement 2020 including but not limited to Policies 1.1.1, 1.1.3.4, 1.6.7.2 and 1.8.1, A Place to Grow, Growth Plan for the Greater Golden Horseshoe including but not limited to Sections 2.2.1.4, 2.2.4.9, 3.2.2.2, 3.2.2.4 and 4.2.10, Places to Grow Act, and the Urban Hamilton Official Plan (“Official Plan”) including but not limited to Chapter C, Policies 4.2.4.1 and 4.5.15, Chapter E, Policy 2.3.2.18 and 2.3.3.22, 2.4.17, 4.4.14, 4.5.20 and 4.6.27, that encourage transit use and the reduction of auto dependency? What modifications would be appropriate to the parking standard for retail stores and shopping centres in Section 5.6c)?

4. Do the new standards for commercial and mixed used zones in Section 4.12fi) of Zoning By-law No.17-240 impact the ability of existing properties to undertake additions or alterations?

5. Should the Vacuum Clause also include exemptions for landscape open space and parking space sizes existing on the effective date of Zoning By-law 17-No. 240, such that they are deemed to comply?

6. Should the Vacuum Clause also include exemptions from the minimum building height requirements of Sections 10.4.3d) and 10.5.3d) of Zoning By-law No. 17-240 to ensure that additions or alterations to existing buildings are not subject to regulations related to minimum building height requirements?

7. Are the new minimum building height requirements of Section 10.4.3d) and 10.5.3d) of Zoning By-law No. 17-240 appropriate for existing buildings and retail stores?

8. Are the new built form standards of Section 10.5.3g) of Zoning By-law No.17-240 appropriate for existing buildings and retail stores? Should existing buildings and retail stores be exempt from the new built form standards of Section 10.5.3g) of Zoning By-law No. 17-240?

9. Are the minimum building height requirements of Section 10.4.3d) and 10.5.3d) and the new built form standard in Section 10.5.3g) of Zoning By-law No. 17-240 appropriate for commercial areas? Are they contrary to the commercial area policy goals of the Official Plan, including but not limited to Chapter E, Policies 3.8.8, 3.8.9 c), 3.8.13, 3.8.14, 3.8.17, 4.1.1-4.1.6, 4.2, 4.5, 4.5.7, 4.5.8, 4.5.12, 4.5.13, 4.5.14, 4.5.15, 4.5.17, 4.5.18, 4.5.19, 4.6, 4.6.7, 4.6.8, 4.6.11-4.6.14, 4.6.16, 4.6.17, 4.6.18, 4.6.19, 4.6.21, 4.6.24, 4.6.25, 4.7, 4.7.4-4.7.9, 4.7.10-4.7.17, 4.8 and 4.8.4-4.8.7?

10. Should the site-specific exceptions for 50 Cootes Drive and 11 Clappison Avenue be carried forward in Zoning By-law No.17-240?

#9 - Choice Properties Real Estate Investment Trust (CP REIT) and Loblaw Properties Limited

11. Is the required parking rate for retail and shopping centre uses that range between 3,000-4,000 m2, combined with the increase in parking stall size (Section 5.2(b)(i)) appropriate? Are these provisions consistent with the PPS, including policies 1.1.1(a) and (e); 1.1.3.2 (a), (e) and (f); 1.1.3.4; 1.3.1(d); and 1.7.1(a), (c)? Do these provisions conform with the Growth Plan, including policies 1.2.1; 2.2.1.4 (a), (e); 2.2.5.3, 2.2.5.4, and 2.2.5.15? Do they conform with the UHOP, including Chapter A sections 1.4, Section 3.1, policies 3.3.1.4, 3.3.1.8; Chapter E. sections E.1.0 (c); E.4.0, 4.5, and 4.6?

12. Should the Vacuum Clause in policy 4.12(f)(ii) apply collectively to the total existing Gross Floor Area within a site, and not just to individual buildings, in order to allow sufficient flexibility for larger uses to expand while still maintaining the original intent of the regulation?

13. Should the Vacuum Clause also include exemptions from Sections 10.3.3(i)(vi), 10.4.3(d)(i), 10.5.3(d)(i), 10.5.3(g)(vi) and 10.6.3(g)(vi) to ensure that additions or alterations to existing buildings are not subject to regulations related to: (i) stacking or aisles between a building façade and the front lot line; (ii) principal entrances and minimum façade lengths; or (iii) minimum height requirements?

14. Should the Community Commercial (C3) Zone include permissions for a “garden centre” as a main permitted use under Section 10.3.1, or added as an accessory use, similar to provisions found in Sections 10.4.2, 10.5.2, and 10.6.2?

15. Should sections 10.3.3(a)(iv), 10.5.3(a)(iv) and 10.6.3(a)(iv) (Building Setback from a Street Line) also include exemptions from Sections 10.3.3(i)(vi), 10.5.3(g)(vi), and 10.6.3(g)(vi), respectively?

16. Should the language of sections 10.3.3(i)(v), 10.5.3(g)(v), and 10.6.3(g)(v) (Built form for New Development) be consistent in order to eliminate potential ambiguities and inconsistencies, and to maintain the intent of the regulation to be applied in the same fashion to the C3, C5 and C6 zones? Specifically, should these provisions be rewritten as follows?:

v) For commercial development existing at the time of the passing of the By-law, new building up to 650 square metres shall be exempt from (ii) and (iii) above.

SCHEDULE 3 – ORDER OF EVIDENCE

The order of evidence in the proceeding will be as follows:

1. City of Hamilton
2. Canadian Tire Real Estate Limited
3. Choice Properties Real Estate Investment Trust and Loblaw Properties Ltd
4. Reply by City of Hamilton, if any.

ATTACHMENT 2

SCOPING OF APPEALS

THIS MATTER having come before the Tribunal at a Case Management Conference on April 1, 2021, and having received no objections to the scoping of the remaining appeals from any of the parties, THE TRIBUNAL NOTES AS FOLLOWS:

1. That the appeals of Canadian Tire Real Estate Limited, Choice Properties Real Estate Investment Trust, and Loblaw Properties Limited (the “City-wide Appellants”) of City of Hamilton By-law 17-240 (the “By-law”) be continued on a City-wide basis, save and except as described below, and subject to a procedural order issued by the Tribunal;

2. That the appeals of the By-law by the City-wide Appellants have been withdrawn with respect to the property known municipally as 211-225 John Street South and 78 Young Street, shown on Schedule “A” hereto, being the property formerly under appeal by Slate Asset Management.

3. That the appeals of the following remaining appellants with respect to the By-law shall be scoped to apply only to the respective specific properties in the City of Hamilton (as they are known municipally) as follows:

   a. 64 Main Street East Hamilton Inc. regarding the property known as 64 Main Street East, as shown on Schedule “B” attached hereto; b. 939158 Ontario Inc. regarding the properties known as 423 Barton St., Stoney Creek and 319 Margaret Ave., Stoney Creek, as shown on Schedule “C” attached hereto; c. 1826210 Ontario Inc. regarding the property known as 3011 Homestead Dr., Mount Hope, as shown on Schedule “D” attached hereto; d. 2294643 Ontario Inc. regarding the property known as 1290 South Service Road, Hamilton, as shown on Schedule “E” attached hereto; e. King Stuart Developments Inc. regarding the properties known as 41 Stuart Street, Hamilton and 206-208 King Street West, Hamilton, as shown respectively on Schedules “F1” and “F2” attached hereto; f. Marz Homes Holdings Inc. regarding the property known as 237 Upper Centennial Parkway, Stoney Creek, as shown on Schedule “G” attached hereto; g. Rolanco Network Inc. regarding the property known as 201 Wilson Street East, Ancaster, as shown on Schedule “H” attached hereto; and h. Royal Connaught Inc. regarding the properties known as 82-112 King Street East and 73-87 Main Street West, Hamilton, as shown on Schedule “I” attached hereto.

4. The scoping of appeals and withdrawal as described above shall be strictly without prejudice to, and shall not have the effect of:

   a. limiting the resolution of an appellant’s appeal; b. affecting a party’s right, to seek to modify, delete or add to the unapproved associated text; or c. limiting the jurisdiction of the Tribunal to consider and approve modifications, deletions or additions on a general or site-specific basis.

5. The above scoping of the appeals is without prejudice to the positions taken by the parties to any site-specific appeal so that if those appeals proceed to a hearing, either on their own or as may be consolidated with other appeals, the City will not take the position that the Tribunal ought not to approve site-specific modifications to the affected sections, tables, definitions, maps, schedules, and associated text, on the basis that they deviate from or are inconsistent with such sections, tables, definitions, maps, schedules, and associated text on a City-wide basis (or as approved in respect of other lands which are subject to the same sections, tables, definitions, maps, schedules, and associated text). However, this does not affect the City’s right to assert that the approved sections, tables, definitions, maps, schedules, and associated text should be applied to the specific sites without modification on the basis that they constitute good planning;

6. Notwithstanding anything ordered above, the City has not conceded that any portions of the By-law that have not come into effect or that are not deemed in effect are properly under appeal and the City has reserved the right to bring motions or take any other action to have the breadth and scope of any appeal determined by the Tribunal at a future date.

7. Notwithstanding anything ordered above, the Tribunal retains jurisdiction to consider and approve modifications to any policies, schedules, and associated text approved as may be appropriate to dispose of any of the outstanding appeals before the Tribunal, in accordance with section 87 of the Ontario Municipal Board Act, RSO 1990, c O.28, which continues to apply in these proceedings as a result of section 1 of O Reg 101/18.

8. Any potential settlements may be brought forward for approval by the Tribunal by way of telephone conference call or videoconference if appropriate in the circumstances upon prior notice and circulation of the information to the parties, scheduling permitting.