Milski Inc. v. Thorold (City), 2022 CanLII 123625

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 30, 2022

CASE NO.: OLT-22-003928

PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Milski Inc.

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit the development of a three-storey, 34-unit apartment building

Reference Number: D-14-10-2021

Property Address: 1970 Decew Road

Municipality/UT: Thorold/Niagara

OLT Case No: OLT-22-003928

OLT Lead Case No: OLT-22-003928

OLT Case Name: Milski Inc. v. Thorold (City)

BEFORE:

S. BOBKA

MEMBER

Friday, the 30th day of December, 2022

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 on January 16, 2023.

“Euken Lui”

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”

OLT-22-003928

ONTARIO LAND TRIBUNAL

PROCEDURAL ORDER

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Milski Inc.

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit the development of a three-storey, 34-unit apartment building

Reference Number: D-14-10-2021

Property Address: 1970 Decew Road

Municipality/UT: Thorold/Niagara

OLT Case No.: OLT-22-003928

OLT Lead Case No.: OLT-22-003928

OLT Case Name: Milski Inc. v. Thorold (City)

The Tribunal orders that:

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.

2. The video hearing will begin on Monday, January 16, 2023 at 10:00 a.m. at https://global.gotomeeting.com/join/656004293.

3. The parties’ initial estimation for the length of the hearing is three (3) 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 Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 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 Attachment 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.

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 October 21, 2022 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 November 4, 2022 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 November 14, 2022.

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 December 2, 2022, 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 December 2, 2022, 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 December 12, 2022 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before January 9, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with section 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before January 9, 2023 and in accordance with section 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 12, 2023.

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 January 9, 2023 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 filings shall be submitted electronically 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 email shall be governed by the Rule 7.

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.

This Member is [not] seized.

So orders the Tribunal

Attachment 1

Parties

Milski Inc. - Represented by R. Di Lallo

City of Thorold - Represented by P. Harrington and L. Dean

Participants

Tony Bozza

Nicholas Bozza

Attachment 2

Issues List

1. Does the Zoning By-law Amendment have appropriate regard to the matters of provincial interest set out in s. 2 of the Planning Act, specifically:

(a) the protection of ecological systems, including natural areas, features and functions;

(h) the orderly development of safe and healthy communities;

(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;

(j) the provision of a full range of housing, including affordable housing;

(n) the resolution of planning conflicts involving public and private interests;

(p) the appropriate location of growth and development;

(r) the promotion of built form that (i) is well-designed, (ii) encourages a sense of place; and (iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.

2. Is the Zoning By-law Amendment consistent with the Provincial Policy Statement, 2020, specifically:

Policy 1.1.1 (a), (b), (c), (d), (e)

Policy 1.1.3.3

Policy 1.4.3 (b), (c), (d), (f)

Policy 1.7.1 (e)

Policy 2.1.8

Policy 4.6

3. Does the Zoning By-law Amendment conform with the Growth Plan for the Greater Golden Horseshoe, 2020, specifically:

Policy 2.2.1.2 (a)(iii)

Policy 2.2.1.4 (a), (b), (e)

Policy 2.2.2.3 (b), (d)

Policy 2.2.6

4. Does the Zoning By-law Amendment conform with the Niagara Region Official Plan, specifically:

Policy 4.C.2.1 (d), (e), (i)

Policy 4.J.4

Chapter 7 as it relates to the “Natural Heritage Feature Buffer Zone”

5. Does the Zoning By-law Amendment conform with the City of Thorold Official Plan, specifically:

Policy B1.1.3

Policy B1.1.5

Policy C6 as it relates to the “Natural Heritage Feature Buffer Zone”

Policy D1.4

6. Does the Zoning By-law Amendment appropriately facilitate the subject proposal in a manner that represent good planning?

Attachment 3

Order of Evidence

Milski Inc.

City of Thorold

Reply Evidence of Milski Inc. (if any)