Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 25, 2022 CASE NO(S).: OLT-21-001725

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

Applicant and Appellant: 1312733 Ontario Inc. Subject: Application to amend Zoning By-law No. 3692-92 & 05-200 – Refusal of application by the City of Hamilton Existing Zoning: Agricultural Specialty (AS), Rural Residential (RR) Proposed Zoning: Single Residential R4-XX, Multiple Residential RM2-XX, Multiple Residential RM3-XX, Neighbouhood Park Pl, Conservation/Hazard Lands P5 Purpose: To permit a redevelopment of single detached dwellings, townhouses, and condominium townhouse dwellings Property Address/Description: 1036-1090 Barton Street and 262 McNeilly Road Municipality: City of Hamilton Municipal File No.: ZAC-20-043 OLT Lead Case No.: OLT-21-001725 OLT Case No.: OLT-21-001725 OLT Case Name: 1312733 Ontario Inc. v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: 1312733 Ontario Inc. Subject: Proposed Plan of Subdivision - Failure of City of Hamilton to make a decision Purpose: To permit a redevelopment of single detached dwellings, townhouses, and condominium townhouse dwellings Property Address/Description: 1036-1090 Barton Street and 262 McNeilly Road Municipality: City of Hamilton Municipal File No.: 25T-202009 OLT Case No.: OLT-21-001726 OLT Lead Case No.: OLT-21-001725

Heard: May 02, 2022 via video hearing

APPEARANCES:

Parties	Counsel
1312733 Ontario Ltd. (“Applicant”)	N. Smith
City of Hamilton	P. Macdonald

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON ON MONDAY MAY 2, 2022 AND ORDER OF THE TRIBUNAL

1The Applicant appeals from the failure of the City of Hamilton (“City”) to render a decision on its application to amend the City’s zoning by-law and to amend a plan of subdivision relating to the property municipally known as 1036-1090 Barton Street and 262 McNeilly Road in the Municipality of Stoney Creek in the City (“Subject Site”).

2The Applicant seeks permission to redevelop the Subject Site allow for the development of 154 single detached dwellings, 206 street townhouse dwellings, and 185 condominium townhouse dwellings.

3The first Case Management Conference (“CMC”) in this proceeding was held by video hearing (“VH”) on May 2, 2022.

4One request for Participant status was filed by Amber Lindsay with the Ontario Land Tribunal (“Tribunal” or “OLT”) who described herself to be a representative of an adjoining landowner/developer. However, she professed that she took no position on any of the issues between the Applicant and the City and merely sought to observe the proceedings. This requestor did not appear at the VH.

5Counsel for the Applicant took the position that since Ms. Lindsay did not appear at the VH and had indicated only an interest in being an ‘observer’, Participant status should not be granted. The Tribunal agrees since this and all OLT proceedings are open to the public and thus any person may attend any hearing event as an observer, without being granted Participant status.

6There were no other requests for Participant or Party status.

7Counsel for both Parties indicated that there have been preliminary settlement discussions as well as discussions concerning the form and content of a proposed Procedural Order (“PO”) and the identification of the issues that the City intends to raise. The Parties also sought a 5-day hearing of this Appeal.

8The hearing of this Appeal shall commence on November 14, 2022 at 10 a.m. for a period of 5 days.

9Parties 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://global.gotomeeting.com/join/765631861

Access code: 765-631-861

10Parties and participants 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

11Persons 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: +1 (647) 497-9391. The access code is 765-631-861.

12Individuals 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.

13Following the VH, the Parties submitted a PO in agreed form and content setting out all requisite dates and the current issues list. The PO has been revised by the Tribunal and is included at Attachment 1 hereto.

14The Parties advised the Tribunal at the VH that they expect to refine and ‘scope’ the issues on this Appeal prior to the merits hearing and also remain modestly hopeful that they will be in a position to present an overall settlement to the OLT well prior to the above-noted hearing dates, in accordance with the OLT Rules of Practice and Procedure.

15At the CMC, the Parties were encouraged to contact the OLT to arrange for facilitated mediation to assist them in their efforts to resolve some or all of the matters raised on this Appeal.

ORDER

16The Tribunal orders that this Appeal shall be governed by the terms of the PO appended hereto as “Attachment 1”.

“William Middleton”

WILLIAM MIDDLETON

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.

ISSUE DATE: CASE NO(S).: OLT-21-001725 OLT-21-001726

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

Applicant and Appellant: 1312733 Ontario Inc. Subject: Application to amend Zoning By-law No. 3692-92 & 05-200 – Refusal of application by the City of Hamilton Existing Zoning: Agricultural Specialty (AS), Rural Residential (RR) Proposed Zoning: Single Residential R4-XX, Multiple Residential RM2-XX, Multiple Residential RM3-XX, Neighbourhood Park Pl, Conservation/Hazard Lands P5 Purpose: To permit a redevelopment of single detached dwellings, townhouses, and condominium townhouse dwellings Property Address/Description: 1036-1090 Barton Street and 262 McNeilly Road Municipality: City of Hamilton Municipal File No.: ZAC-20-043 OLT Lead Case No.: OLT-21-001725 OLT Case No.: OLT-21-001725 OLT Case Name: 1312733 Ontario Inc. v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: 1312733 Ontario Inc. Subject: Proposed Plan of Subdivision - Failure of City of Hamilton to make a decision Purpose: To permit a redevelopment of single detached dwellings, townhouses, and condominium townhouse dwellings Property Address/Description: 1036-1090 Barton Street and 262 McNeilly Road Municipality: City of Hamilton Municipal File No.: 25T-202009 OLT Case No.: OLT-21-001726 OLT Lead Case No.: OLT-21-001725

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 November 14, 2022 at 10:00 a.m. through video link ___________.

3. The parties’ initial estimation for the length of the hearing is 5 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 identified at the case management conference are set out in Attachment 1. There are no participants.

5. The issues are set out in the Issues List attached as Attachment 2. The City of Hamilton shall provide to the Tribunal and the parties an updated and final Issues List on or before August 15, 2022.

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 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.

Requirements Before the Hearing

8. 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 September 20, 2022 and in accordance with paragraph 20 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.

9. Expert witnesses in the same field shall have a meeting on or before October 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 October 31, 2022.

10. 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 12 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.

11. 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 12 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 12 below.

12. On or before October 7, 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 20 below.

13. On or before November 4, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 20 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

14. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within October 28, 2022 after the evidence is received and in accordance with paragraph 20 below.

15. The parties shall cooperate and share the cost to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 4, 2022.

16. 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.

17. 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.

18. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 4, 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.

19. A summary of the filing dates is attached as Attachment 4.

20. 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 by email shall be governed by the Rule 7.

21. 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.

ATTACHMENT 1

PARTIES TO THE HEARING:

1. 1312733 Ontario Inc. Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 Nancy Smith Tel: (905) 529-3476 Email: nsmith@tmalaw.ca

2. City of Hamilton City Hall 71 Main Street West Hamilton, ON L8P 4Y5 Patrick MacDonald Tel: (905) 973-2653 Email: patrick.macdonald@hamilton.ca

ATTACHMENT 2

City of Hamilton Issues List

1. Do the proposed zoning bylaw amendment and related plan of subdivision have regard for s. 2 of the Planning Act, RSO 1990, c. P.13, as amended?

2. Are the proposed zoning bylaw amendment and related plan of subdivision consistent with the Provincial Policy Statement (2020)?

3. Do the proposed zoning bylaw amendment and related plan of subdivision conform with the provincial growth plan “A Place to Grow: Grow Plan for the Greater Golden Horseshoe, 2020?

4. Do the proposed zoning bylaw amendment and related plan of subdivision conform with the Urban Hamilton Official Plan?

5. Does the proposed draft plan of subdivision have appropriate regard to the matters set out in ss. 51(24) of the Planning Act?

6. What conditions of draft plan approval are reasonable having regard to the nature of the proposed development?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 1312733 Ontario Inc.
2. City of Hamilton
3. 1312733 Ontario Inc.

ATTACHMENT 4

SUMMARY OF FILING DATES

EVENT	DATE
Updated Issues List	Monday, August 15, 2022
List of Witness	Tuesday, September 20, 2022
Expert Witness Meetings	Tuesday, October 4, 2022
Agreed Statement of Facts & Remaining Issues	Monday, October 31, 2022
Witness and Expert Witness Statements	Friday, October 7, 2022
Reply Witness Statements	Friday, October 28, 2022
Hearing Plan	Friday, November 4, 2022
Joint Document Book	Friday, November 4, 2022
Visual Evidence	Friday, November 4, 2022
LPAT Hearing Commences	Monday, November 14, 2022