ONE Properties Limited Partnership v. Hamilton Conservation Authority, 2022 CanLII 18639

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 10, 2022

CASE NO(S).: OLT-21-001567

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: ONE Properties Limited Partnership

Respondent: Hamilton Conservation Authority

Subject: Appeal of refusal to grant permission for development

Property Address/Description: 140 Garner Road East

Municipality: City of Hamilton

OLT Case No.: OLT 21-001567

OLT Case Name: ONE Properties Limited Partnership v. Hamilton Conservation Authority

Heard: February 8, 2022 by telephone conference call

APPEARANCES:

Parties	Counsel
ONE Properties Limited Partnership	Patrick Harrington and Meaghan Barrett
Hamilton Conservation Authority	John A. Olah and Francesca D’Aquila-Kelly
Environmental Defence	Philip Pothen

Memorandum of oral decision DELIVERED BY Hugh s. Wilkins AND WARREN MORRIS ON fEBRUARY 8, 2022 AND ORDER OF THE TRIBUNAL

1This Decision arises from a Case Management Conference (“CMC”) for the appeal brought by ONE Properties Limited Partnership (“Appellant”) regarding the refusal by Hamilton Conservation Authority (“Conservation Authority”) of the Appellant’s request to relocate a wetland on the property located at 140 Garner Road (“subject property”) in the City of Hamilton.

2At the CMC, the Tribunal addressed requests for Party and Participant status, the identification of issues to be addressed at the hearing, the scheduling of a further CMC, and the identification of opportunities for settlement discussions.

Request for Party Status

3Environmental Defence requested Party status. It stated that it is an incorporated charity that focuses on wetland and other issues in Hamilton, the surrounding region, and beyond. It stated that the appeal raises wetland, species, flood control, and other environmental issues regarding which Environmental Defence has a genuine interest and can assist the Tribunal in addressing. It stated that the appeal will address the issue of offsetting wetlands, which it stated would particularly impact Environmental Defence’s work. It stated that it can provide a perspective on the issues which is distinct from those of the existing Parties.

4Environmental Defence’s request for Party status was not opposed by the Conservation Authority. The Appellant, however, had concerns. It asked that Environmental Defence’s request be deferred to a subsequent CMC after the issues to be adjudicated are identified and an anticipated request for consolidation of this proceeding with a forthcoming draft Plan of Subdivision appeal by the Appellant has been addressed.

5The Tribunal found that Environmental Defence’s request should not be deferred. It found that Environmental Defence has a genuine and direct interest in the proceeding, its work will likely be impacted by the Tribunal’s decision, and it will assist the Tribunal in making its decision. It found that there are no reasonable grounds to delay the granting of status and that that the granting of status would not unduly impact the Tribunal’s consideration of the Appellant’s anticipated request for the consolidation of proceedings. The Tribunal found that there are reasonable grounds to add Environmental Defence as a Party and granted it Party status, as requested.

Requests for Participant Status

6In written requests filed with the Tribunal prior to the CMC, several persons requested Participant status in this proceeding. They raised concerns associated with wetland protection, flood prevention, biodiversity conservation, and climate change, among other environmental issues. One person also requested status at the CMC. In sum, the following persons have requested Participant status:

1. Theresa Cardey
2. Stephen Chalastra
3. Marie Covert
4. Brigitte Evering
5. Carolanne Forster
6. Carrie Hewitson
7. Geoffrey Honey
8. Rose Janson
9. Karen Lawrence
10. Gail Lorimer
11. Gord McNulty
12. Henry Muggah
13. Norman Newbery
14. Zoe Green
15. Judy Major-Girardin
16. Joanne Palangio
17. Nancy Hurst
18. James Quinn
19. Aislyn Sax
20. Tom St. Michael
21. Kristina Wilson
22. Norma Young

7None of the Parties opposed these requests for Participant status and the Tribunal granted Participant status to the above-noted persons, as requested.

8The Participants will be permitted to file written submissions only. The due date for Participants to serve and file written submissions with the Tribunal will be set out in a Procedural Order to be issued by the Tribunal at or following the next CMC in this proceeding.

Identification of Issues and a Second CMC

9The Parties requested that the Tribunal schedule a further CMC at which the Tribunal may finalize the identification of issues to be adjudicated and address the Appellant’s anticipated request for consolidation of this proceeding with its forthcoming draft Plan of Subdivision appeal proceeding.

10The Tribunal agreed that the issue of consolidation should be addressed before the finalization of a draft Procedural Order and it directed that a further CMC will be held in May 2022. It also directed that the Parties file a draft Procedural Order and Issues List prior to the next CMC.

11The Tribunal will request the Tribunal’s Registrar to schedule the first CMC in the Appellant’s forthcoming draft Plan of Subdivision appeal proceeding to be heard at the same time as the next CMC in the present proceeding.

Identification of Opportunities for Settlement Discussions

12The Parties stated that they are open to pursuing settlement discussions, but given that the issues have not yet been finalized, they submitted that it is premature to make arrangements in this regard.

ORDER

13The Tribunal orders that Environmental Defence is a Party in this proceeding.

14The Tribunal orders that the persons listed in paragraph [6] of this Order and Decision are Participants in this proceeding.

15The Tribunal orders that a further CMC will be held by video hearing on Monday, May 9, 2022 commencing at 10 a.m. at which the issues will be finalized and hearing dates will be set. The Tribunal directs that the Parties file a draft Procedural Order and Issues List with the Tribunal no later than Thursday, May 5, 2022 so that they may be considered at the CMC.

16Parties 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://meet.goto.com/709076365

Access Code: 709-076-365

17Parties are asked to set up the video hearing 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.

18Persons 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 as indicated above.

19Individuals 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 Hearing Office’s Case Coordinator having carriage of this case.

20There will be no further notice.

21These Members are not seized.

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

“Warren Morris”

WARREN MORRIS

MEMBER

Ontario Land Tribunal

Website: www.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.