Artstone Holdings Limited et al. v. Hamilton (City), 2022 CanLII 58198

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

CORRECTION NOTICE

OLT CASE NO(S).:

OLT-22-002493 (Formerly PL090114)

DECISION ISSUE DATE(S):

June 29, 2022

CORRECTION NOTICE ISSUE DATE:

July 19, 2022

RE: Artstone Holdings Limited et al. v. Hamilton (City)

Correction to:

Originally:

Corrected to:

Parties Counsel

456941 Ontario Ltd., Alex Ciccone

1263339 Ontario Ltd.,

Lea Silvestri

(“Silvestri Investments”)

Parties Counsel

456941 Ontario Ltd., Alex Ciccone

1263339 Ontario Ltd., Peter Pickfield

Lea Silvestri

(“Silvestri Investments”)

Paragraph 95

Garrod Pickfield of Garrod Pickfield LLP

Peter Pickfield of Garrod Pickfield LLP

Paragraph 68

The year 2051

2031

“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.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 29, 2022

CASE NO(S).:

OLT-22-002493

(Formerly PL090114)

IN THE MATTER OF subsection 17(36) of the Planning Act, R.S.O. 1990, C. P. 13, as amended

Appellants:

See below

Subject:

Rural Hamilton Official Plan

Municipality:

City of Hamilton

OLT Case No.:

OLT-22-002493

OLT File No.:

OLT-22-002493

Legacy Case No.:

PL090114

Legacy File No.:

PL090114

Case Name:

Artstone Holdings Limited et al. v. Hamilton (City)

List of Appellants

No.

Appellant

Ontario Stone, Sand & Gravel Association (OSSGA)

Paletta International Corporation

P&L Livestock Limited

St. Marys Cement (Canada) Inc.

Demik Developments

1694408 Ontario Inc.

Artstone Holdings Limited

Weizer Investments Limited

Corpveil Holdings Limited

Ancaster Christian Reform Church

456941 Ontario Ltd., 1263339 Ontario Ltd. and Lea Silvestri ("Silvestri Investments")

Angelo Giacomelli and Mario Nesci

Keith Pickles and Brenda Pickles

John Paolini, Gino DalBello, Olindo DalBello, Luigi DeTina, Peter Djeneralovic, Jim Swick and Quinto Simone

New Country Investors Limited

1507565 Ontario Inc.

Lafarge Canada Inc.

Peter Cartwright

City of Hamilton

Dr. Tom Nugent

DiCenzo (Golf Club Road) Holdings Inc.

Dufferin Aggregates (a division of Holcim (Canada) Inc.)

David E. Mercer

Multi-Area Developments Inc.

Paletta International Corporation (Elfrida Lands)

2101510 Ontario Inc. (subsumed by Paletta International Corporation)

2000963 Ontario Inc.

Mud & First Inc.

2084696 Ontario Inc.

2188410 Ontario Inc.

OMB File No. PL090779 (See Schedule “1”)

OMB Case No. PL090779

The Ontario Municipal Board has received appeals under subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, from a decision of the City of Hamilton to approve Official Plan Amendment No. 128 to the Town of Ancaster Official Plan (PL090780); Official Plan Amendment No. 18 to the Town of Dundas Official Plan (PL090781); Official Plan Amendment No. 118 to the Town of Flamborough Official Plan (PL090782); Official Plan Amendment No. 75 to the Township of Glanbrook Official Plan (PL090783); Official Plan Amendment No. 220 to the City of Hamilton Official Plan (PL090784); Official Plan Amendment No. 149 to the City of Stoney Creek Official Plan (PL090785)

OMB File Nos. PL090780-PL090785 (See Schedule “1”)

OMB Case No. PL090779

The Ontario Municipal Board has received appeals under subsection 17(40) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, from the failure of the Minister of Municipal Affairs and Housing to announce a decision respecting the City of Hamilton Urban Official Plan

OMB File No. PL101381 (See Schedule “2”)

OMB Case No. PL101381

The Ontario Municipal Board has received appeals under subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, from the decision of the Minister of Municipal Affairs and Housing to approve the new City of Hamilton Urban Official Plan

OLT Case No. OLT-22-002496

Legacy File No. PL110331 (See Schedule “3”)

Legacy Case No. PL110331

Auburn Developments Inc. has appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council’s refusal to enact a proposed amendment to Zoning By-law 6593 of the City of Hamilton to rezone lands respecting 17 Ewen Road from “J” (Light and Limited Heavy Industrial, etc.) District to the “E-3” (High Density Multiple Dwellings) District to permit a 10 storey student residential building

Approval Authority File No. ZAC-07-062

OMB File No. PL120574

OMB Case No. PL120574

Auburn Developments Inc. has appealed to the Ontario Municipal Board under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal to enact a proposed amendment to the Official Plan for the City of Hamilton to redesignate land at 17 Ewen Road from “Industrial” to “High Density Residential” to permit a 10 storey student residential building

Approval Authority File No. OPA-07-016

OMB File No. PL120575

OMB Case No. PL120574

Schedule “1”

Appellants to the amendments to the in-force Official Plans of the former Region of Hamilton-Wentworth, Towns of Ancaster, Dundas and Flamborough, Township of Glanbrook and Cities of Hamilton and Stoney Creek (OMB Case No. PL090779)

OMB FILE NO.

APPELLANT NAME

PL090784

Shawcor Ltd.

Schedule “2”

Appellants to the failure of the Minister of Municipal Affairs and Housing to announce a decision respecting the City of Hamilton Urban Official Plan (OMB Case No. PL101381)

OMB FILE NO.

APPELLANT NAME

PL101381

A. DeSantis Developments Ltd.

LIUNA Group Corp.

St. Joseph’s Villa

Schedule “3”

Appellants to the new City of Hamilton Urban Official Plan (OLT Case No. OLT-22-002496 Legacy Case No. PL110331)

OLT FILE NO.

APPELLANT NAME

OLT-22-002496 (Legacy Case No. PL110331)

2000963 Ontario Inc.

2051206 Ontario Inc.

2084696 Ontario Inc.

2188410 Ontario Inc.

456941 Ontario Ltd., 1263339 Ontario Ltd., and Lea Silvestri

909940 Ontario Inc.

Artstone Holdings Limited

Carmen Chiaravelle, 1694408 Ontario Ltd., John Edward Demik, Peter Demik, Demik Brothers Hamilton Ltd., and Elaine Vyn

City of Hamilton

Corpveil Holdings Limited

Flamborough Power Centre Inc., Flamborough South Centre Inc., Clappison Five Six Properties Inc.

Freeland Developments Limited

Gino and Olindo DalBello

Lynmount Developments Limited

Mondelēz Canada Inc. (formerly Kraft Canada Inc.)

Mud and First Inc.

Multi-Area Developments Inc.

Norman Vartanian

Paletta International Corporation

Paletta International Corporation (re: Elfrida)

Spallacci & Sons Limited

Sullstar Twenty Limited

Twenty Road Developments Inc.

Upper Centennial Developments Ltd.

Waterdown Bay Ltd.

Heard:

June 9, 2022 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

City of Hamilton

Kim Mullin Eugenia Bashura Michael Kovacevic (in absentia) Rachel McVean (in absentia)

Ministry of Municipal Affairs and Housing

Ugo Popadic

Demik Developments, Carmen Chiaravalle, 1694408 Ontario Inc., Demik Brothers Hamilton Ltd., John Edward Demik, Peter Demik and Elaine Vyn “Twenty Road East Landowners”)

Samantha Lamper Susan Rosenthal Denise Baker

Sullstar Twenty Limited, Twenty Limited, 909940 Ontario Inc., Lynmount Developments Limited, Twent Road Developments Inc., Spallacci & Sons Ltd., 2051206 Ontario Inc. and Yehezkel Zahavy “Twenty Road West Landowners”)

Joel Farber Matthew Rutledge

1507565 Ontario Inc.(“Frisina”)

Jonathan Minnes

Multi-Area Developments Inc., Mud & First Inc., Marz Homes Brofrida Inc., Marz Homes (Elfrida) Inc., Palleta International Corporation, 1356715 Ontario Inc., 2188410 Ontario Inc., 2084696 Ontario Inc. (“Elfrida Landowners”)

Mark Noskiewicz Joe Hoffman

456941 Ontario Ltd., 1263339 Ontario Ltd., Lea Silvestri (“Silvestri Investments”)

Alex Ciccone Peter Pickfield

Artstone Holdings Limited, Corpveil Holdings Limited, Weizer Investments Limited and LIUNA Group Corp. (“Artstone/Corpveil”)

Scott Snider Anna Toumanians

DiCenzo (Golf Club Road) Holdings Inc., DiCenzo Construction Company Limited

Russell Cheeseman

DECISION DELIVERED BY T. PREVEDEL AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On June 9, 2022, the Tribunal held a further Case Management Conference (“CMC”) regarding appeals of the Rural Hamilton Official Plan (“RHOP”) and the Urban Hamilton Official Plan (“UHOP”).

2At the last Case Management Conference (“CMC”), several entities expressed an interest in seeking Party status and requested that a date be set on which the Tribunal could consider these requests. The City stated that it intended to bring a motion to dismiss appeals brought by the Twenty Road West Landowners (“TRW Landowners”) and suggested that the requests for status could be heard on the same day as the Motion.

3The Procedural Order and Draft Issues List has been submitted to and approved by the Tribunal, with the understanding that the Issues List may be subject to further refinements and scoping.

4The Tribunal received three Motions in advance of the CMC as follows:

Motion for Party Status by CastandGrey 5 Corp. and CastandGrey 7 Corp
Motion for Party Status by Hamilton Country Properties Ltd.
Motion to Dismiss appeals by Twenty Road West Landowners without a Hearing

5The Tribunal also received corresponding response motions by the relevant Parties, which were entered as Exhibits to the Hearing.

Motion for Party Status by CastandGrey 5 Corp. and CastandGrey 7 Corp.

6The above entity, which shall be referred to as C&G herein, submitted a Motion Record dated May 24, 2022, requesting the Tribunal, pursuant to s. 17(44.1) and 17(44.2) of the Planning Act (“Act”), to grant C&G party status in the appeals of the RHOP and the UHOP with Tribunal File Nos. OLT-22-002493 and OLT-22-002496.

7Chris Barnett and Evan Barz are representing C&G in this Motion, with Madeleine Worndl attending as a summer student.

8Counsel submitted that the conditions upon which the Tribunal may grant party status, as set out in s. 17(44.2) (1) and (2) of the Act are disjunctive and that there are reasonable grounds to add C&G as parties to the appeals of the RHOP and UHOP.

9Mr. Barnett explained that C&G are the owners of approximately 61 hectares of land at 407 and 406-526 Fletcher Road in the City of Hamilton (the “City”). These lands are currently outside of the City’s urban boundary.

10He submitted that C&G acquired the property from a prior owner, Larry Freeman, on March 31,2015. As a result, C&G was not in a position to make submissions at a public meeting or in writing to Council prior to the adoption of the RHOP and the UHOP in accordance with s. 17(44.2) (1) of the Act.

11Mr. Barnett submitted that, between 2018-2021, C&G engaged with the Elfrida Landowners, a landowners’ group with party status in these proceedings, in an effort to join that group. Those efforts were unsuccessful. Had C&G been admitted into the Elfrida Landowners’ group, it would have obviated the need for his client to bring this motion for party status.

12By way of chronological context, Mr. Barnett explained that the by-law adopting the RHOP was passed by City Council on September 27, 2006, and the by-law adopting the UHOP was passed by Council on July 9, 2009. Together, the RHOP and the UHOP form a vision for the future expansion of the City, with the RHOP covering the rural area and the UHOP covering the urban area.

13He submitted that the RHOP and the UHOP adopted by City Council contemplated an urban boundary expansion for lands generally bounded by Mud Street, Second Road and Hendershot Road to the east, Golf Club Road to the south, Trinity Church Road to the west, and the then existing urban boundary of the west side of Centennial Parkway to the north. The area is known as the “Elfrida Lands” and includes the C&G holdings.

14Mr. Barnett also explained that, in the exercise of its authority under s. 17(34) of the Act, the Ministry of Municipal Affairs and Housing (“MMAH”) deleted the reference to the Elfrida Lands (including the C&G Lands) in both the RHOP and the UHOP, and approved the RHOP, with modifications, on December 24, 2008, and further approved the UHOP with modifications on March 16, 2011.

15Mr. Barnett advised the Tribunal that the previous owner of the lands, Mr. Freeman, was provided party status on consent in 2012. He admitted that, although party status was granted by the Tribunal to the previous owner, there has been no active participation by Mr. Freeman since that time.

16Mr. Barnett submitted that the subject matter for the upcoming hearing is important. These appeals will decide, among other things, the boundary of the lands designated for urban boundary expansion in the RHOP and the UHOP, including whether the C&G lands will be included in the expanded urban boundary, if any. He stated that C&G would have a clear and direct interest in the proposed urban boundary expansion and the planning for its lands.

17Mr. Barnett stressed that allowing the participation of landowners who own land within the area to which an appeal relates is in the public interest. C&G has a clear interest in how the eventual Decision of the Tribunal will affect the planning for its lands.

18Mr. Barnett reminded the Tribunal that at the December 6, 2021, CMC, C&G, through its counsel, advised the Tribunal and the other parties/participants that it would be seeking party status in the Hearing. Therefore, as of that date, it has been known that C&G would be seeking status at the Hearing.

19Mr. Barnett also reminded the Tribunal that the RHOP and the UHOP appeals are at a relatively early stage. Although the appeals were originally filed in 2009 and 2011, respectively, the Procedural Order for the Hearing was only recently issued on February 4, 2022. No evidence (fact or expert) has been filed by any party, no expert witness meeting has been held, and the order of evidence has not yet been Ordered by the Tribunal. Therefore, granting party status to C&G will not require changes to the main procedural steps to be completed in advance of the Hearing, nor will it require changes to the Hearing’s schedule.

20Mr. Barnett expressed his concern that the other landowners, who are the Appellant parties, have reached a settlement amongst themselves. This settlement excludes the lands owned by C&G as well as the lands owned by Hamilton Country Properties Ltd. This settlement has not been submitted to the City or the Tribunal as yet and has not been shared with the two excluded entities.

21Mr. Barnett provided the Tribunal with a Book of Authorities, and made particular reference to three of the cases:

Ferreira v. Cardenas, 2014 CarswellOnt 17280, 2014 ONSC 7119 [2014], and
1077955 Ontario Inc., Re 2012 CarswellOnt 8320 (OMB)
Atlantic Packaging et al, Whitby (Town), 2022 CanLII 40687 (ON LT)

22He further stated that it is not in the public interest to have a group of landowners reach a settlement in their appeal to the Tribunal which will have implications on the City’s Rural and Urban expansion areas, without allowing all interested parties to participate.

23Mr. Barnett reminded the Tribunal that the draft Issues List is in the process of being refined in preparation for the next CMC scheduled for August 15, 2022, so there is more than adequate time to deal with this matter and not delay the proceedings.

24Moreover, Mr. Barnett stated that, as a non-Appellant party, C&G will not be adding any new Issues to the Issues List, which remains in draft. C&G will be sheltering under other Appellant party Issues, as required by Rule 8.3 of the Tribunal’s Rules of Practice and Procedure (the “Rules”). C&G will also cooperate with other parties of like interest to the extent possible to avoid duplication of evidence and submissions.

25In closing, Mr. Barnett stated that, in the alternative, any prejudice that may be caused to the other parties to these appeals would be minimal and is far outweighed by the prejudice that would be caused to C&G if it were prevented from participating in the upcoming proceedings.

Motion for Party Status by Hamilton Country Properties Ltd.

26The above entity, which shall be referred to as HCP herein, submitted a similar Motion Record dated May 24, 2022, requesting the Tribunal, pursuant to s. 17(44.1) and 17(44.2) of the Act and Rule 8.2 of the Tribunal’s Rules , to add HCP as a party to this proceeding.

27Mr. Patrick Harrington is representing HCP in this Motion.

28Counsel submitted that the conditions upon which the Tribunal may grant party status, as set out in s. 17(44.2) (1) and (2) of the Act are disjunctive and that there are reasonable grounds to add HCP as parties to the appeals of the RHOP and UHOP.

29Mr. Harrington stated that, although his client did not have prior party status as was the case with C&G, HCP’s concerns are similar to the concerns expressed by Mr. Barnett in that two landowners have been “left out in the cold” by the Appellant landowners who apparently have reached a settlement agreement amongst themselves.

30He submitted that, under Rule 8.2 of the Tribunal’s Rules, the Tribunal may add a Party to a proceeding when that person satisfies the legislative tests necessary to be a party.

31Mr. Harrington told the Tribunal that HCP owns 646 Hendershot Road (approximately 25 hectares). The “HCP Lands” are within the Elfrida Lands which were previously described.

32As noted earlier, Mr. Harrington explained that the City undertook an extensive growth management study called the “Growth Related Integrated Development Strategy” (“GRIDS”). GRIDS recommended the identification of the Elfrida Lands, including the HCP and C&G Lands, as a Potential Urban Boundary Expansion Area. This recommended identification was included within the RHOP and the UHOP, as adopted by Hamilton City Council, in 2006 and 2009 respectively.

33However, as stated earlier by Mr. Barnett, in separate approval decisions issued in 2008 and 2011 respectively, the Minister of Municipal Affairs and Housing modified both the RHOP and the UHOP to remove the adopted reference to the Elfrida Lands as an area for future urban boundary expansion.

34Mr. Harrington stressed that, as an owner of lands within the Elfrida Lands, HCP has a legitimate interest in the outcome of the Elfrida-related portions of the remaining appeals. The inclusion or exclusion of the Elfrida Lands, including the HCP Lands, within Hamilton’s urban area directly affects the land use designation and zoning of the HCP Lands. HCP’s position, as previously expressed to Hamilton City Council by HCP’s planning consultant, remains that the Elfrida Lands, including the HCP Lands, should be included within the Hamilton urban area or, at a minimum, identified as an area for future urban expansion.

35Mr. Harrington explained that, like C&G, HCP purchased the HCP Lands after the Minister’s decisions on the RHOP and the UHOP had been issued (and after the Tribunal had rendered partial approval decisions in these appeals). As well, Hamilton City Council has recently indicated that it will not be approving any new urban boundary expansions as part of its current growth planning exercise.

36Mr. Harrington further stated that the Tribunal has determined that it will proceed with the balance of the existing RHOP and UHOP appeals by way of an 11-week hearing scheduled to commence on Monday, January 9, 2023. The approved Procedural Order confirms that the hearing will involve issues related to Hamilton’s projected housing needs and whether the Elfrida Lands should be included either as part of the City’s urban area or as an identified Future Urban Growth District.

37He stressed that, to the extent the hearing, as scheduled by the Tribunal, will involve evidence pertaining to the amount of land needed to satisfy the City’s growth needs to 2031, and whether the Elfrida Lands (including the HCP Lands), should be designated in a manner that addresses such growth needs, HCP ought to be able to attend before the Tribunal to hear and to test such evidence, as well as to offer its own evidence in support of the HCP Lands.

38Mr. Harrington stated that, similar to C&G’s submission, HCP is prepared to shelter its interests in this proceeding under existing Issues 1, 2, 3(i)-(iv) and 4 through 12. HCP seeks no amendments to the approved Procedural Order and will be speaking to matters that will already be squarely before the Tribunal in the forthcoming hearing. The addition of HCP as a party will accordingly not delay, complicate or prejudice this proceeding.

39Mr. Harrington relied on the Book of Authorities submitted by C&G, and provided the Tribunal with an additional case law:

Embee Properties Ltd. v. Bradford West Gwillimbury (Town) 2001 CarswellOnt 5292, [2001] O.M.B.D. No. 1436, 32 M.P.L.R. (3d) 280, 43 O.M.B.R. 326

40He quoted from the above decision that:

The planning process in the province of Ontario rightly prides itself as one that encourages the responsible participation of its citizens and property owners at every stage and level of plan preparation and approval... To this end it is important where there may be doubt to give the benefit of that doubt to the participation of citizens and to avoid without good and substantial reason placing roadblocks in the way of responsible citizen involvement.

City’s Response to Motion for Party Status of C&G and HCP

41The City provided the Tribunal with separate written responses to the two Motions brought forward by C&G and HCP respectively for Party Status. Ms. Mullin, on behalf of the City, dealt with both responses orally at the same time.

42The relief requested by the City is as follows:

An Order dismissing C&G’s and HCP’s motions for an Order to be added as parties to the UHOP and RHOP appeals; and
In the alternative to the above, an Order requiring C&G and HCP to shelter under existing issues outlined in the Procedural Order dated February 4, 2022 and an Order requiring C&G and HCP to coordinate with the other parties to ensure that the hearing scheduled to commence on Monday, January 9, 2023 can be completed in the 11 weeks scheduled.

43Ms. Mullin further indicated that the City’s primary concerns relate to the lateness of the requests, the resultant potential for delay and the potential prejudice to the City.

44Ms. Mullin submitted that the RHOP and UHOP appeals have been in progress for many years, with the parties established since 2012. Neither C&G, HCP or their predecessors in title made submissions to City Council before the RHOP and UHOP were adopted or filed appeals in relation to RHOP or UHOP. In her opinion, adding new parties this late in the day will risk lengthening the hearing which, in turn, will result in the final determination of the remaining RHOP and UHOP issues being delayed.

45Ms. Mullin confirmed that C&G has owned its lands since 2015 but did not seek to be added as a party until late 2021. While C&G appears to be a successor in title to a party who was added to these proceedings in 2012, that party appears not to have actively participated in the proceedings after 2014, and C&G has not provided an adequate explanation for its failure to take steps to secure party status before now.

46Similarly, Ms. Mullin stated that HCP has owned its lands since 2019 but did not seek to be added as a party until late 2021 and has not provided any explanation for its failure to do so.

47Ms. Mullin opined that, based on the timing of C&G’s and HCP’s requests for party status, it appears that they are motivated by City Council’s decision not to expand the urban boundary of the City to 2051 through its ongoing Municipal Comprehensive Review (“MCR”) process, and not with any concerns with the RHOP or UHOP in themselves.

48In late 2016, the City commenced an MCR as part of the Official Plan review to bring the City’s UHOP and RHOP into conformity with provincial plans. Additionally, at the same time, the City undertook an update to GRIDS (which planned to the year of 2031), known as GRIDS2, which would plan for growth beyond 2031.

49The MCR process has been ongoing since that time, with planning staff taking a topic- based approach to the identification of policy and mapping updates to the RHOP and UHOP.

50On June 20, 2012, the Ontario Municipal Board (“OMB”) added Mr. Freeman as a party to the UHOP proceedings. The OMB found that Mr. Freeman’s interests were aligned with those of Multi-Area Developments Inc., Paletta International Corporation, 2000963 Ontario Inc., Mud & First Inc., 2084694 Ontario Inc., and 2188410 Ontario Inc., known together as the Elfrida Landowners. The OMB also found that Mr. Freeman adopted, was bound by and limited to the issues contained in the Issues List filed by the Elfrida Landowners Appellants.

51Ms. Mullin told the Tribunal that there are no records showing that Mr. Freeman participated in the UHOP and RHOP appeals after 2014.

52With respect to meeting the conditions for adding a Party, Ms. Mullin reminded the Tribunal that both C&G and HCP have confirmed in oral submissions that they do not meet the “Prior Submissions Condition”.

53She contends, however, that they also do not meet the “Reasonable Grounds Condition”.

54Ms. Mullin stressed to the Tribunal that adding other parties at this late stage would likely extend the duration of this hearing. While C&G and HCP state that they will cooperate with other parties of like interest to the extent possible to avoid duplication of evidence and submissions, there is no guarantee that evidence and submissions will not be duplicated. There is a risk that C&G and HCP will call their own evidence, which will likely prolong this hearing.

55If the duration of this hearing will be longer than the scheduled 11 weeks, then the City’s costs will be increased. Moreover, if the hearing continues past the 11 weeks, given the Tribunal’s busy schedule, it is unclear when the hearing could be continued. The RHOP and UHOP appeals have been ongoing since 2009 and 2011 and the City needs finality.

56On this basis, the City asks that the Tribunal dismiss C&G’s and HCP’s Motion for Party Status.

57In the alternative, the City asks that the Tribunal issue an Order requiring C&G and HCP to shelter under existing issues, as outlined in the Procedural Order dated February 4, 2022, and an Order requiring C&G and HCP to coordinate with the other parties to ensure that the hearing scheduled to commence on Monday, January 9, 2023, can be completed in the 11 weeks scheduled.

Joint Response of Landowners to Motion for Party Status of C&G and HCP.

58The responding Parties to C&G’s and HCP’s Motion are the Elfrida Group, Frisina, Artstone/Corpveil, DiCenzo, Twenty Road East Group, Twenty Road West Group and Silvestri.

59Messrs. Scott Snider and Mark Noskiewicz made oral submissions to the Tribunal on behalf of the above Appellant Parties.

60The joint response from the Appellant Parties was to request an Order of the Tribunal dismissing the Motion for Party Status made by C&G and HCP.

61Counsel provided the Tribunal with a Book of Authorities, and made particular reference to three of the cases:

1137528 Ontario Limited et al v. Oakville (Town), 2010 CarswellOnt 18558, [2010] O.M.B.D. No. 770
Textbook (Ross Park) Inc. v. London (City), 2021 LNONLT 491
Gravely v. Kawartha Lakes (City), 2022 CanLII 18637 (ON LT)

62Counsel advised the Tribunal that the Appellant Parties have worked cooperatively in an effort to scope the issues and reach a settlement amongst themselves, which has always been encouraged by the Tribunal in complex proceedings.

63They submitted that, collectively, there have been 18 Pre-hearing Conferences and Case Management Conferences (“CMCs”) related to the Appeals since 2009, in addition to multiple motion hearings and mediation sessions.

64Counsel also submitted that a separate proceeding related to the expansion of the City’s urban boundary for employment lands through the Airport Employment Growth District Secondary Plan appeals (Case No. PL101300) (the “AEGD Appeals”) was held, which could have impacted the outcome of the Appeals. The AEGD Appeals proceeded in three phases between 2012 and 2015. The Responding Parties fully participated in the AEGD Appeals as either Appellants, in the case of TRW or parties in the case of all other Responding Parties. Neither of HCP or C&G nor their predecessors in title sought party status in the AEGD Appeals.

65Counsel reminded the Tribunal that the Responding Parties, along with Appellants, have been active and engaged participants in the Appeals and AEGD Appeals since 2009. Since the commencement of the Appeals, the Responding Parties have advanced several discussions in an effort to refine their issues and find agreement between the various Appellants.

66Counsel stated that these discussions have culminated in a settlement between all of the Responding Parties which was entered into in March 2022 (the “Appellant Settlement”). Under the Appellant Settlement, the Responding Parties agree to advocate for a joint position in the Appeals which will propose an urban boundary expansion that includes lands within each of the Elfrida Area, the Twenty Road East Area and the Twenty Road West Area, to meet the City’s residential growth needs to 2031.

67The Responding Parties have agreed on the specific lands within each of the Elfrida Area, the Twenty Road East Area and the Twenty Road West Area that will be proposed for inclusion in the urban boundary as part of the Joint Position.

68The Joint Position will be generally consistent with City planning Staff’s recommendation identifying a need for a 500 hectare urban boundary expansion to meet residential growth needs to 2031.

69Counsel submitted that the joint settlement proposal, as noted above, and which has not come forward to the Tribunal as yet, does not include the C&G and HCP lands, and the Issues List will not touch on whether C&G/HCP lands are in the proposed expansion to the urban boundary.

70At the most recent CMC of December 21, 2021, the Tribunal set down the Appeals for an 11-week hearing commencing Monday, January 9, 2023. It was also at this CMC where, for the first time, C&G and HCP made their intention to seek party status known to the Tribunal.

71Counsel submitted that it was significant that between October 1, 2013, when Mr. Snider advised the Tribunal that he no longer represents Mr. Freeman and C&G’s acquisition of the lands in 2015, Mr. Freeman did not attend any Pre-hearing Conferences or Motion hearings, nor did Mr. Freeman participate in the Appeals as expected of a party. It is additionally significant that from when C&G acquired the lands in 2015, it made no effort to involve itself in the hearing process before the Tribunal until its motion for party status was filed. It did not attend any of the CMCs or mediation dates.

72Counsel also submitted that the same argument applies to HCP, from when they acquired the lands in 2019.

73Counsel stressed that neither C&G nor HCP have adequately demonstrated that there are reasonable grounds to add it as a party to the Appeals, failing to meet the second condition.

74Counsel strongly re-iterated that, although the contested hearing for the Appeals has just been scheduled, as described earlier, the Responding Parties have invested a very substantial amount of time and effort determining how to resolve the issues between them and the City. This included preparing detailed mediation briefs, participating in five days of mediation and many meetings among the Responding Parties and their consultants. These negotiations were difficult, time consuming and required very careful balancing of interests and significant compromise. In the end, all of that effort culminated in a settlement among the participating landowners and the Joint Position.

75Both C&G and HCP, in their Motion, submit that as non-Appellant parties, they will not be adding any new Issues to the Issues List, “which remains in draft”. The Responding Parties agree that the current Issues List remains in draft. However, the Responding Parties intend to jointly file in accordance with the Procedural Order issued by the Tribunal dated February 4, 2022.

76Counsel stated that, given the Joint Position and the forthcoming associated Issues List, it is the Responding Parties submission that the complexity and length of the hearing will likely be significantly reduced, C&G’s and HCP’s interests will not be aligned with the current Appellants, C&G’s and HCP’s interests may be adverse to the interests of the Responding Parties and, as a result, the addition of C&G and HCP will add time to, and increase the complexity, of the hearing.

77In closing, counsel submitted that adding C&G and HCP as a party will add length and complexity to the hearing by introducing additional witnesses not contemplated by the scheduling of the hearing and that, therefore, their Motions for Party Status should be denied.

City’s Motion to Dismiss appeals by Twenty Road West Landowners without a Hearing

78Ms. Mullin presented the City’s Motion as follows:

An Order of the Tribunal pursuant to subsection 17(45) of the Planning Act, dismissing, without holding a hearing, the appeals made by Sullstar Twenty Limited, 909940 Ontario Inc., Lynmount Developments Ltd., Twenty Road Developments Inc., Spallacci & Sons Limited, and Mr. Yehezkel Zahavy (collectively the “TRW landowners”) against the decision of the Minister of Municipal Affairs and Housing (the “Minister”) approving, with modifications, the Urban Hamilton Official Plan (the “UHOP”); and
An Order of the Tribunal granting the costs of this motion to the City;

79The TRW landowners had previously agreed to withdraw their UHOP appeals as part of a settlement entered with the City on February 3, 2015 with respect to the TRW landowners’ appeals of the AEGD Secondary Plan.

80To date, Ms. Mullin submitted that the TRW landowners have failed to withdraw their UHOP appeals, in breach of the settlement. As such, the TRW landowners’ UHOP appeals should be dismissed, without holding a hearing, pursuant to s. 17(45)(1)(ii) of the Act as they are not made in good faith and are frivolous and vexatious.

81Ms. Mullin stated that. through the GRIDS process, City staff and its consultants identified a preferred growth option focused on two future urban boundary expansion areas. One future urban boundary expansion area would be focused on employment land uses (in particular the AEGD lands were identified) and the other on non-employment land uses (in particular the Elfrida lands were identified).

82She further stated that, in or around 2010, the City approved the AEGD Secondary Plan, which was a planned development area of employment land.

83As noted earlier in the landowner’s submissions, the City’s decision to approve the AEGD Secondary Plan was subsequently appealed to the Tribunal (LPAT Case Nos. PL101300, PL101301, and PL10132) by a number of Appellants, including the TRW landowners.

84Ms. Mullin explained that the TRW landowners are the owners of three separate parcels of lands located outside of the urban area of the City in the vicinity of Twenty Road West to the north, Upper James Street to the east, Dickenson Road West to the south, and Southcote Road to the west.

85Ms. Mullin submitted that, on or around February 3, 2015, 456941 Ontario Ltd., 1263339 Ontario Ltd., Lea Silvestri, Lea Silvestri Investments Ltd. (collectively “Silvestri”), the TRW landowners, Craig Smith, and the City executed minutes of settlement (the “MOS”) resolving the AEGD Secondary Plan Appeals.

86Ms. Mullin then explained that, under subsection 12(a) of the MOS, upon Board approval of the MOS, Silvestri and the TRW landowners were to withdraw their appeals to the RHOP and UHOP (except for Silvestri’s appeals with respect to their lands located on Twenty Road East).

87Ms. Mullin also stated that, under subsection 12(b) of the MOS, Silvestri (except as it related to Silvestri’s Twenty Road East lands) and the TRW landowners also agreed to not participate in the hearing in respect of Group 9 of the UHOP appeals (LPAT Case No. PL110331) and the hearing in respect of Groups 4, 6, and 8 of the RHOP appeals (LPAT Case No. PL090114).

88Ms. Mullin stated that, on February 2 and 17, 2015, the OMB held a settlement hearing regarding the AEGD settlement. Following the hearing, the Board issued an oral decision followed by a written order approving the AEGD Secondary Plan as modified by the MOS, as well as related modifications to the RHOP and UHOP.

89Ms. Mullin further stated that, in the decision, the Board noted that the evidence at the hearing was presented through one expert witness, Robert Lehman, and that the MOS were tendered as an Exhibit. The OMB noted that, although it did not have jurisdiction to approve the MOS since this was an agreement between the parties, the Board could and did approve the AEGD Secondary Plan as modified by the MOS.

90Ms. Mullin went on to state that, in late 2016, the City commenced an MCR as part of the Official Plan review to bring the City’s UHOP and RHOP into conformity with provincial plans. Additionally, at the same time, the City undertook an update to GRIDS (which planned to the year of 2031), known as GRIDS2, which would plan for growth beyond 2031.

91She submitted that, since the commencement of the MCR/GRIDS2 process, the City has been including the TRW lands identified in Schedule C in its MCR/GRIDS2 review in accordance with the MOS.

92On or about April 17, 2018, Mr. Kovacevic informed the outstanding RHOP/UHOP Appellants that the City intended to bring a Motion regarding Ontario Regulation 311/06 Transition Matters – Growth Plans under the Places to Grow Act, 2005, S.O. 2005, c. 13, to determine whether the outstanding appeals had to be adjudicated in accordance with the Growth Plan for the Greater Golden Horseshoe, 2017 or in accordance with the previous Growth Plan for the Greater Golden Horseshoe, 2006.

93On May 2, 2018, the LPAT held a CMC at which time the LPAT scheduled a Motion date for the City’s motion regarding the Transition Regulation. During that CMC, Mr. Kovacevic advised the LPAT of the City’s position that Silvestri and the TRW landowners were required to withdraw their appeals. The LPAT noted that, if the City intended to pursue this issue, it should bring a motion to dismiss and that the scheduled motion hearing would deal with the Transition Regulation motion and any motion by the City to dismiss appeals.

94The Transition Regulation motion was argued on October 24 and 25, 2018. The Transition Regulation motion took the entire two days scheduled and so a Motion to dismiss the TRW landowners’ appeals was not pursued at that time.

95Ms. Mullin went on to state that on December 17, 2020, Mr. Kovacevic informed counsel for the outstanding Appellants that the City was interested in attempting to resolve outstanding appeals through mediation. In the same correspondence, Mr. Kovacevic requested Mr. Farber, counsel for the TRW landowners, and Peter Pickfield of Garrod Pickfield LLP, Counsel for Silvestri, to withdraw their clients’ respective UHOP and RHOP appeals pursuant to the MOS.

96On December 22, 2020, Mr. Pickfield acknowledged that Silvestri’s AEGD, UHOP, and RHOP appeals had been resolved through the AEGD settlement hearing and that he would withdraw his clients' appeals shortly. On January 7, 2021, Silvestri partially withdrew their appeals to the RHOP and UHOP in accordance with the executed MOS.

97Ms. Mullin submitted that Mr. Kovacevic subsequently followed up with Mr. Farber regarding the withdrawal of his client’s appeals. The parties ultimately agreed to try to mediate the outstanding appeals, and a formal mediation took place in March 2021, with direct negotiations between the parties continuing into the fall of 2021. The TRW landowners participated in the mediation and negotiations.

98Given that the parties were engaged in discussions to attempt to resolve all outstanding appeals, the City did not take further steps at that time to seek a dismissal of the TRW landowners’ appeals.

99Ms. Mullin stated that, in December 2021, the negotiations between the parties concluded without a settlement being reached. To date, the TRW landowners have failed to withdraw their UHOP appeals.

100In this case, the City is seeking a dismissal of the TRW landowners’ UHOP appeals pursuant to subsection 17(45)(ii) on the basis that the appeals are frivolous, vexatious, and are not made in good faith.

101Ms. Mullin referred to Gaudaur v. Toronto (City), [1998] O.M.B.D. No. 1508 wherein the Tribunal commented that the expression “frivolous or vexatious” has come to mean that “the actions instituted are without reason or grounds” or “when the party bringing the proceedings is acting from duplicitous motives to bring about results that are jejune or ludicrous”. It would also include proceeding with matters that have been settled and determined by the competent Tribunal, matters that are said to be res judicata.

102Ms. Mullin submitted that the MOS is a binding legal agreement, executed by Mr. Farber on behalf of the TRW landowners, pursuant to which the TRW landowners agreed to withdraw their UHOP appeals and agreed to not participate in the Hearings related to the UHOP appeals in exchange for settling their AEGD Secondary Plan appeals. The relevant sections of the MOS are subsections 12(a) and (b), as follows:

(a) Silvestri and Twenty Road West Landowners, upon Board approval of these Minutes of Settlement, will withdraw their appeals in respect of the Urban Hamilton Official Plan and the Rural Hamilton Official Plan except for the Silvestri Appeal as that appeal relates to the Silvestri lands located outside the AEGD with the following legal description: Pt Lts 8 & 9, Con 1 Glanford , Part 1 , 62r1261 , T/W AB332743, Glanbrook City of Hamilton (“Silvestri Twenty Road East Lands”);

(b) Silvestri, except as it relates to the Silvestri Twenty Road East Lands, and the Twenty Road West Landowners will neither be parties to the Ontario Municipal Board (“OMB”) hearing in respect of Group 9 of the Urban Hamilton Official Plan appeals (OMB Case No. PL110331), nor parties to the OMB hearing(s) in respect of Group 4, 6, and 8 of the Rural Hamilton Official Plan appeals (OMB Case No. PL090114)

103Ms. Mullin went on to state that, while the Tribunal might have lacked jurisdiction to approve the MOS on the grounds that it was a private agreement between the Parties, the Tribunal, nonetheless, approved the planning instrument which emerged out of the settlement. The following are the relevant excerpts from the Tribunal’s Decision issued on April 10, 2015:

Although the MOS were filed as an exhibit in these proceedings, the Board does not approve MOS since they stand as an agreement between the parties. As such they may, and often do, contain clauses that deal with matters that are not within the jurisdiction of the Board in the context of the matters before the Board in a particular hearing.

104Ms. Mullin submitted that the Tribunal’s approval of the planning instruments amounts to approval of the MOS as contemplated under subsection 12(a) of the MOS.

105Unlike the TRW landowners, the City fulfilled its obligations as stipulated in the MOS.

106The TRW landowners entered into a binding agreement with the City by which they agreed to withdraw their UHOP appeals, in exchange for modifications to the AEGD Secondary Plan and the City’s commitment to commence the MCR forthwith. The modifications to the AEGD Secondary Plan were approved, and the City fulfilled its obligations to commence the MCR forthwith. The other Appellant who was a party to the MOS, Silvestri, agreed that the City had fulfilled its obligations, since they withdrew their appeals in accordance with the MOS.

107In other words, the TRW landowners got what they bargained for in the MOS. The City has not got what it bargained for in the MOS.

108The TRW landowners are now attempting to bypass the MOS by not withdrawing their UHOP appeals and by attempting to participate in the UHOP appeals hearing in direct contravention of the MOS.

109Eleven weeks of hearing have been set aside to deal with the UHOP and RHOP appeals. The significant amount of hearing time required is largely due to the number of witnesses to be called.

110If the TRW landowners’ UHOP appeals are withdrawn, then the number of witnesses to be called will be reduced accordingly, thereby reducing the length of the hearing and the City’s costs.

Notice of Response to Motion to dismiss by the City of Hamilton from the Twenty Road West Landowners

111Mr. Farber submitted that the TRW Landowners oppose the motion of the City of Hamilton to dismiss their appeal of the MMAH decision, approving, with modifications, the UHOP.

112The relief requested by the TRW Landowners is as follows:

An Order dismissing the motion of the City of Hamilton;
An Order preserving the right of the TRW Landowners to seek costs in respect of this motion, regardless of the outcome of the Hearing.

113Mr. Farber claimed that the Tribunal does not have jurisdiction to enforce the 2015 MOS, which is a private agreement.

114The issues raised in the TRW appeal of the UHOP are genuine planning issues and in no circumstances can the appeal be considered frivolous or vexatious or lacking in good faith.

115Mr. Farber submitted that the Tribunal's mandate is to adjudicate land use planning matters having regard to the public interest, in accordance with applicable legislation. To properly adjudicate land use planning matters the Tribunal should consider and have available to it all evidence and submissions relevant to the issues before it. The City's motion would prevent the Tribunal from having the necessary evidence and submissions before it from appellant parties to make a decision on the UHOP appeal.

116Mr. Farber stated that the TRW Landowners' agreement to withdraw its appeal was specifically in furtherance of the recognition of Elfrida as "Future Urban Growth District" in accordance with the adopted UHOP, which is no longer the City's position.

117He submitted that the City has not complied with its obligations under the 2015 MOS and that the conditions requiring the withdrawal of the appeal has not been met, and that the City has unreasonably delayed bringing forward this Motion.

118Mr. Farber submitted that the UHOP appeal will determine whether or not an expansion of the City of Hamilton Urban Boundary is required to accommodate forecasted growth to 2031, and if so, which lands should be considered for the urban boundary expansion. Accordingly, the TRW Landowners have an interest in the outcome of the appeal and accordingly initiated an appeal of the Minister's decision in accordance with the statutory requirements.

119He stated that, prior to the Phase 3 AEGD hearing and decision, the TRW Landowners entered into the 2015 MOS with the City of Hamilton and other parties to the AEGD proceeding . The key provision of the 2015 MOS that is relevant to the City's current Motion before the Tribunal is that the TRW Landowners would not object to the recognition of the Elfrida area as identified in Section B.2.2.1 of the UHOP, and in furtherance of this:

a) The TRW Landowners, upon OMB approval of the 2015 MOS, would withdraw their appeal in respect of the UHOP and RHOP;

b) The TRW Landowners would not be parties to the OMB UHOP proceedings in respect of Group 9 of the UHOP appeals (PL110331) or be parties to the OMB RHOP appeals in respect of Groups 4, 6 and 8 (PL090114);

c) The TRW Landowners would not object to the manner in which the Elfrida area would be recognized by the City of Hamilton's area for further urban boundary expansion to accommodate the population growth targets for 2031, whether by way of an urban boundary expansion, identification of a future urban growth district, or some other manner; and

d) The City of Hamilton would forthwith commence work on a City-wide Municipal Comprehensive Review comprised of a review of the City's future employment, commercial, institutional, residential land needs within and beyond the present urban boundary, with a 2031-2041 time horizon. This review would include the lands of the TRW Landowners.

120The TRW Landowners have remained actively involved in the UHOP proceedings since the commencement of the proceeding in 2011, and for many years in advance of the appeals as part of the public planning process for ROPA 25 (2006), the AEGD and the UHOP. The TRW Landowners have participated in the numerous CMCs and Pre-hearing Conferences.

121In the Procedural Order pertaining to the Transition Regulation Motion dated May 14, 2018 , LPAT directed that, if the City intended to pursue a withdrawal of the TRW Landowners' UHOP appeal, it would have to bring forward a Motion to dismiss the appeal. Despite this, the City has failed to do so for seven (7) years since the 2015 MOS were signed.

122Mr. Farber further submitted that, not only has the City failed to bring forward its motion for seven (7) years since the 2015 MOS were signed, but bringing it forward now is contrary to the 2018 Procedural Order. The Tribunal ordered that the Transition Regulation Motion hearing would also deal with any motions the City may bring to dismiss certain appeals. The City did not serve and file any Motion to dismiss the TRW Landowners' UHOP appeal in accordance with the 2018 Procedural Order.

123The City suggests that the TRW Landowners "got what they bargained for" in the 2015 MOS and that the City did not. Therefore, the TRW Landowners' UHOP appeal is now frivolous, vexatious and not in good faith. The City is incorrect. The key provision of the 2015 MOS was to ensure the TRW Landowners did not object to the recognition of the Elfrida area as identified in section B.2.2.1 of the UHOP. It was specifically in furtherance of this obligation that the TRW Landowners would withdraw their UHOP appeal.

124Further, there is no obligation under the 2015 MOS for the TRW Landowners to withdraw their UHOP appeal since the City itself did not comply with the terms and conditions of the 2015 MOS requiring the commencement of the MCR forthwith.

125Mr. Farber concluded by stating that it is the Tribunal's mandate to adjudicate matters in the public interest. There is a public interest in ensuring that there is a proper determination made with regard to the appropriate location of growth and development in the City of Hamilton. The 2015 MOS does not alter whether or not an urban boundary expansion is needed, and if so, the determination of what lands should comprise such. Therefore, the Tribunal should not be deprived of the opportunity to consider the planning evidence and submissions made by the Appellant TRW Landowners.

126The City has had seven years to complete an MCR as contemplated in the 2015 MOS and that process has never been completed. It would be contrary to the public interest if the TRW Landowners' UHOP appeal were dismissed.

Analysis and Disposition

Party Status for CastandGrey and Hamilton Country Properties

127The Tribunal notes that both C&G and HCP have confirmed that they do not meet the test of prior submissions to Council in order to be granted Party Status at these proceedings. This was unavoidable as the subject lands were not acquired until 2015 and 2019 respectively.

128Counsel for C&G and HCP have put forward submissions that there are reasonable grounds to add both entities as Parties. They have quoted from the “Oakville Decision” where the Tribunal has set out “obvious factors” for determining whether the requirements under s. 17(44.2) are met.

Direct Interest

129The Tribunal accepts the submission from counsel for C&G and HCP that both entities have a direct interest in the future outcome of any expansion to the Hamilton Urban Boundary.

130The Tribunal notes that the City’s GRIDS study recommended the identification of the Elfrida Lands, including the HCP and C&G Lands, as a Potential Urban Boundary Expansion Area. This recommended identification was included within the RHOP and the UHOP, as adopted by Hamilton City Council, in 2006 and 2009 respectively.

131With respect to the factor of “direct interest”, the Tribunal finds that C&G and HCP have a legitimate interest in the outcome of the Elfrida-related portions of the remaining appeals. The inclusion or exclusion of the Elfrida Lands, including the C&G and HCP Lands, within Hamilton’s urban area directly affects the land use designation and zoning.

Public Interest

132The Tribunal then must determine to what extent is the public interest advanced if party status is granted. The public interest is best served by a full and fair hearing on the merits. This should include all impacted landowners, consistent with the principles of procedural fairness and good land use planning.

133The Tribunal would benefit from being able to make a truly informed decision on the basis of all evidence from all landowners relevant to the appeal.

134On this basis, the Tribunal finds that the public interest would be served if party status is granted.

Prejudice

135On the basis of the responding landowner submissions, the Tribunal notes that the Appellant parties will be bringing forward a proposed settlement position and scoped Issues List in advance of the upcoming CMC scheduled for August 2022. The Appellant parties have stated that this proposed joint position will result in a reduced hearing length and fewer witnesses.

136The Tribunal finds, on the basis of the above, that since the Issues List is still in draft form, there is still sufficient time for the Appellant parties, the City and C&G/HCP to prepare for the upcoming CMC and ultimately the Hearing of the Merits.

137With the understanding that the length of hearing is likely to be reduced, based on the submissions of the appellant parties, the Tribunal finds that adding C&G and HCP as parties to this proceeding would not prejudice the appellant parties or the City.

138The Tribunal further notes that both C&G and HCP have agreed to shelter under the Appellant parties’ Issues List and not to bring forward any additional issues.

Conclusion

139After careful consideration of the written and oral submissions from the entities requesting Party Status and the City’s and Responding Landowners’ responses, the Tribunal prefers the arguments put forward by C&G and HCP.

140The Tribunal finds that C&G and HCP have a legitimate and direct interest in this appeal. A previous OMB Decision, such as 1137528 Ontario Ltd. v. Oakville (Town) 2010 2010 CarswellOnt 18558, [2010] O.M.B.D. No. 770 clearly enunciated the factors to consider in determining whether reasonable grounds exist for adding a party. The direct interest of a landowner seeking status has been identified as a major factor.

141During his oral submission, Mr. Harrington took the Tribunal to a case law, Embee Properties Ltd. v. Bradford West Gwillimbury, 2021 CarswellOnt 5292, [2001] O.M.B.D. No. 1436, 32 M.P.L.R. (3d) 280, 43 O.M.B.R. 326 and the following quote from that decision is worth repeating:

The planning process in the province of Ontario rightly prides itself as one that encourages the responsible participation of its citizens and property owners at every stage and level of plan preparation and approval... To this end it is important where there may be doubt to give the benefit of that doubt to the participation of citizens and to avoid without good and substantial reason placing roadblocks in the way of responsible citizen involvement.

142The Tribunal will grant Party Status to C&G and HCP, on the condition that C&G and HCP shelter under existing issues, as outlined in the Procedural Order dated February 4, 2022, and directs C&G and HCP to coordinate with the other parties to ensure that the hearing scheduled to commence on Monday, January 9, 2023 can be completed in the 11 weeks scheduled.

Motion to Dismiss Twenty Road West Landowners Appeal

143In Ms. Mullin’s written and oral submissions, she explained in detail the evolution of the AEGD Secondary Plan, which took place in 2010. She further described how this Secondary Plan was appealed, and how eventually the City and two of the Appellants in this appeal, namely the TRW Landowners and Silvestri entered into mutually acceptable MOS .

144These MOS clearly enunciated the roles and expectations of the City, the TRW Landowners and Silvestri. Namely that:

a) Silvestri and The Twenty Road West Landowners, upon Board approval of these Minutes of Settlement, will withdraw their appeals in respect of the Urban Hamilton Official Plan and the Rural Hamilton Official Plan except for the SiIvestri Appeal as that appeal relates to the Silvestri lands located outside the AEGD.

b) SiIvestri, except as it relates to the Silvestri Twenty Road East Lands, and the Twenty Road West Landowners will neither be parties to the Ontario Municipal Board ("OMB") hearing in respect of Group 9 of the Urban Hamilton Official Plan appeals (OMB Case No. PL110331), nor parties to the OMB hearing(s) in respect of Groups 4, 6 and 8 of the Rural Hamilton Official Plan appeals (OMB Case No. PL090114)

c) Silvestri and the Twenty Road West Landowners will not -object, directly or indirectly, to the manner In which the Elfrida area Is recognized as the City of Hamilton's area for further urban boundary expansion to accommodate the population growth targets for 2031, whether that be by way of an urban boundary expansion, Identification of a future urban growth district, or some other manner;

145Ms. Mullin also stated that the MOS required the City of Hamilton to forthwith commence work on a City-Wide MCR comprising a review of the City's future employment, commercial, Institutional, residential land needs within and beyond the present urban boundary of the City (2031-2051). The Silvestri and Twenty Road West Lands identified In Schedule C will be Included In this review.

146 Subsection 17(45) of the Act gives the Tribunal the power to dismiss all or part of an appeal without holding a Hearing. Subsection 17(45)(a)(ii) in particular provides for the following instance in which the Tribunal may dismiss an appeal:

(ii) the appeal is not made in good faith or is frivolous or vexatious.

147The Tribunal understands the TRW Landowners have continued to be actively involved in technical studies to pursue their appeals, at their own risk, despite their knowledge that they were in contravention of the executed MOS with the City.

148After careful consideration of the written Motions and oral testimony, the Tribunal is of the opinion that the City of Hamilton has fulfilled its obligations under the executed MOS with the TRW Landowners.

149The Tribunal agrees with the City that the appeals by the TRW Landowners are not made in good faith and should be dismissed.

ORDER

150The Tribunal Orders that CastandGrey 5 Corp. and CastandGrey 7 Corp. and Hamilton Country Properties Ltd. be granted Party Status for these proceedings.

151The Tribunal further Orders that C&G and HCP shelter under existing issues outlined in the Procedural Order dated February 4, 2022 and directs to coordinate with the other parties to ensure that the hearing scheduled to commence on Monday, January 9, 2023 can be completed in the 11 weeks scheduled.

152The Tribunal Orders that the Motion by the City of Hamilton to dismiss the appeals, under s. 17(45)(1)(ii) of the Act, by Twenty Road West Landowners without a Hearing is granted and the appeals by the Twenty Road West Landowners against the decision of the Ministry of Municipal Affairs and Housing approving, with modifications, the Urban Hamilton Official Plan are dismissed.

153The Tribunal Orders that the City of Hamilton and the Twenty Road West Landowners will bear their own costs.

“T. Prevedel”

T. PREVEDEL

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248