Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 07, 2022
CASE NO(S).: PL180833
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Niagara-on-the-Lake Medical Centre Inc.
Subject: Proposed Official Plan Amendment No. 75
Municipality: Town of Niagara-on-the-Lake
OLT Case No.: PL180833
OLT File No.: PL180833
OLT Case Name: Bice Builders Ltd. v. Niagara-on-the-Lake (Town)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Niagara-on-the-Lake Medical Centre Inc.
Subject: By-law No. 4316DG-18
Municipality: Town of Niagara-on-the-Lake
OLT Case No.: PL180833
OLT File No.: PL180834
Heard: February 15, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Niagara-on-the-Lake Medical Centre Inc. | Patrick Maloney |
| Town of Niagara-on-the-Lake | Robert Di Lallo |
| R & B Family Holdings Ltd. | Thomas G. Hanrahan |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS AND S. deBOER ON FEBRUARY 15, 2022 AND ORDER OF THE TRIBUNAL
1This Decision arises from a Case Management Conference ("CMC") for appeals brought by Niagara-on-the-Lake Medical Centre Inc. ("Appellant") regarding the approval by the Town of Niagara-on-the-Lake ("Town") of Official Plan and Zoning By-law Amendments relating to the property located at 492-507 Line 2 Road.
Background
2The appeals were commenced in 2018 and subject to the requirements set out in the Building Better Communities and Conserving Watersheds Act ("Bill 139"). Bill 139 limited the grounds for appeals and restricted Parties to the filing of appeal records containing affidavits and supporting materials, the filing of case synopses containing arguments to support their requests for relief, and, if ordered by the Tribunal, the provision of final written or oral submissions. No evidence was permitted to be called by Parties at a hearing under Bill 139.
3This appeal regime was changed with the coming into force of the More Homes, More Choice Act, 2019 ("Bill 108") in September 2019. Bill 108 permitted appeals, including the present appeals, to be based on wider grounds and it expanded the statutory tests for adjudicating the substantive issues under appeal.
4On November 15, 2019, Ontario Regulation 382/19 was brought into force. It provided that for certain types of appeals that were commenced under Bill 139 and not yet scheduled for a hearing (including the present appeals), the proceedings would be subject to the Bill 139 procedural requirements, including its restrictions on the hearing process, but be adjudicated subject to the Bill 108 requirements regarding the substantive issues under appeal.
5As noted above, the present proceedings are subject to the Bill 139 procedural requirements and the Bill 108 requirements for the substantive issues under appeal. The Appellant filed its Appeal Record and Case Synopsis in December 2018. The Town filed a Responding Case Synopsis in January 2019. At a CMC held on May 21, 2019, the Tribunal granted Party status to the Applicant for the zoning by-law amendment, R & B Family Holdings Ltd. ("Applicant").
6In January 2020, the Appellant filed a motion seeking directions on the filing of supplemental affidavits and materials, which included a retail market impact study prepared on behalf of the Applicant in 2018. In its decision, dated October 4, 2021 (Bice Builders Ltd. v. Niagara-on-the Lake (Town), 2021 CanLII 97491 (ON LT)), the Tribunal allowed the filing of the affidavits and directed that affidavits regarding the application of the Provincial Policy Statement, 2020 ("PPS") may also be filed, if necessary.
The Present CMC
7At the present CMC held on February 15, 2022, the Tribunal addressed a request for an Order that a new updated market study be filed, discussed the filing of additional evidence on the PPS, and addressed the scheduling of next steps, including the setting of hearing dates.
8Regarding the filing of an updated market study, the Appellant argued that conditions have changed since the Applicant's market study was concluded in 2018 and it requested that the Tribunal direct the Applicant to prepare and file an updated study. The Applicant agreed that market conditions have likely changed, but disagreed on the need for an updated study. The Applicant stated that it was content to rely on its existing study from 2018, which the Town supported. Given the likelihood that market conditions have changed since 2018, the Tribunal allowed the Parties to file additional materials relating solely to changes in market conditions in the Town since the completion of the Applicant's market study in 2018. Rather than requiring the Applicant to prepare a new or updated market study, the Tribunal allowed the Appellant to serve and file evidence on changes to the market and resulting deficiencies in the Applicant's market study, followed by an opportunity for the Town and Applicant to respond, and for the Appellant to then reply, if necessary.
9The Parties also discussed the filing of evidence regarding changes to the PPS since the filing of their planning evidence. In its decision, dated October 4, 2021, the Tribunal directed that evidence on changes to the PPS are to be filed 30 days prior to a hearing. At the CMC, the Tribunal confirmed these directions.
10Regarding the setting of hearing dates, the Appellant requested that that an oral hearing be held at which the Tribunal can examine witnesses and the Parties can make final oral submissions. The Town and the Applicant requested that an oral hearing be held, but that it be restricted to the hearing of final oral submissions from the Parties. The Tribunal found that based on the evidence filed to date, the examination of witnesses will not be required and that the hearing will solely consist of final oral submissions from the Parties.
11The Tribunal stated that upon its receipt and review of the further evidence regarding market conditions and the PPS, the Tribunal will have the discretion to convert the hearing to an oral hearing at which the Tribunal will examine witnesses and hear final oral submissions. Upon its receipt of further evidence regarding market conditions and the PPS, the Tribunal will make efforts to promptly inform the Parties on whether the hearing will be converted.
ORDER
12The Tribunal directs that the Parties may serve and file evidence relating solely to changes to the market conditions since the completion of the Applicant's market study in 2018 based on the following schedule:
the Appellant may serve and file such evidence by no later than Friday, April 22, 2022;
the Town and the Applicant may serve and file responding evidence by no later than Tuesday, May 24, 2022; and
the Appellant may serve and file reply evidence by no later than Friday, June 3, 2022.
13The Tribunal directs that the Parties may serve and file affidavits from those witnesses who have provided opinions on consistency with the PPS, stating whether their opinions on consistency have changed with the 2020 updates to the PPS. If their opinions have changed, the affidavit is to include a brief statement of the change in the opinion and why it has changed. These affidavits are to be filed no later than Tuesday, May 17, 2022, which is 30 days prior to the date for the hearing of the merits.
14The Tribunal orders that an oral hearing in this matter will be held by video hearing on Thursday, June 16, 2022, commencing at 10 a.m. One day has been set aside. At the hearing, each Party will have no more than 75 minutes in total for oral submissions, unless otherwise directed by the Tribunal.
15Parties and Participants 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/709859757 Access Code: 709-859-757
16Parties and Participants 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.
17Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling: +1 (647) 497-9373 or (Toll Free) 1-888-299-1889. The Access Code is indicated as above.
18Individuals 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.
19There will be no further notice.
20These Members are not seized.
"Hugh S. Wilkins"
HUGH S. WILKINS
MEMBER
"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.