Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 31, 2022
CASE NO(S).: OLT-22-001963
(Formerly) PL210240
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Atlantic Packaging Holdings Ltd. & Products Ltd.
Appellant: Gerdau Ameristeel Corporation
Subject: By-law No. BL 7729-21
Municipality: Town of Whitby
OLT Case No.: OLT-22-001963
Legacy Lead Case No.: PL210240
OLT File No.: OLT-22-001963
Legacy Lead Case No.: PL210240
OLT Case Name: Atlantic Packaging Et Al v. Whitby (Town)
Heard: January 25, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Town of Whitby
Christina Kapelos
Atlantic Packaging Holdings Ltd and Atlantic Packing Products Ltd.
Andrew Jeanrie
Gerdau Ameristeel Corporation
John Georgakopoulos Alessia Petricone-Westwood
2649408 Ontario Limited
Annik Forristal
MEMORANDUM OF ORAL DECISION DELIVERD BY CARMINE TUCCI ON JANUARY 25, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is video conference call with respect to appeals by Atlantic Packaging Holdings Ltd. and Atlantic Packaging Products Ltd. (collectively “Atlantic”) PL210240 and Gerdau Ameristeel Corporation against the passing of By-law No. 7729-21 (the “By-law”), by Council for the Town of Whitby (the “Town”), affecting a property known municipally as 1578 Victoria Street East (“subject property”), in the Town.
2To date, there have been two (2) Case Management Conferences (“CMC”)held by the Tribunal, on August 31, 2021 and September 28, 2021, respectively. Counsel for the Appellants and for the Town attended both the first and second CMC.
3Michael Fry of D.G. Biddle & Associates attended the first CMC on behalf of the Applicant. In advance of the second CMC, Mr. Fry contacted the Tribunal to confirm the telephone conference call details, to which the Tribunal responded providing such confirmation. Subsequent to the conclusion of the second CMC, the Tribunal received an email from Dhanwant Bhatti advising that he represented the Applicant and was unable to join the CMC due to technical difficulties.
4At the second CMC, despite the Applicant’s inability to attend, the Tribunal proceeded, at the request of the Town and Appellants, to set a date for a settlement hearing of January 25, 2022.
5The Applicant, mistakenly perceived that the Town would be playing the primary role at the Tribunal proceedings in support of its decision to pass the By-law and that attendance by Mr. Fry at the first CMC was sufficient to ensure their status and involvement in the proceedings and any subsequent settlement discussions. The Applicant’s inability to participate in the second CMC due to technical reasons furthered their lack of understanding of the status of the proceedings.
6The Tribunal heard that the Applicant understood they would necessarily be invited to any settlement discussions between the parties, in particular as they are the owner of the Property and proponent of the Proposed Development, but also because, through its consultants, the Applicant had previously reached out to the Appellants through their consultants regarding their concerns and requested the sharing of information to inform potential resolution of the Appeal.
7The Tribunal was informed that the Appellants did not share any information with the Applicant and did not involve them in their settlement discussions, including following the second CMC.
8The Tribunal heard that on January 14, 2022, the Applicant engaged Roger Miller of Miller Planning Services and Annik Forristal of McMillan LLP to assume the planning matters and legal services, respectively, in respect of the Appeal.
9The Tribunal further heard on January 17, 2022, on behalf of the Applicant, McMillan LLP filed by email to the Tribunal a request for party status and on January 18, 2022 McMillan LLP provided a copy of such request to the Town and Appellants.
10On January 18, 2022 Ms. Forristal received correspondence from the Appellants objecting to the Applicant’s request for party status.
11On January 19, 2022 Ms. Forristal received an email from the Tribunal caseworker advising that the Tribunal had denied the Applicant’s request for party status.
12On January 20, 2022, Ms. Forristal wrote to the parties and the Tribunal advising them of the Applicant’s intent to bring a Motion to acknowledge the Applicant’s party status or, in the alternative, an Order granting party status to the Applicant with respect to the appeal of By-law No. 7729-21; and an Order of the Tribunal granting an adjournment of the hearing of the appeal of By-law No. 7729-21.
13The Tribunal has received the Motion and has set the following parameters:
The Appellants’ counsel will submit to the Tribunal their reply statements to the Motion by Thursday, February 10, 2022.
The Applicant’s counsel will respond if necessary to the Appellants’ statements by Thursday, February 17, 2022.
The Tribunal adjourns the hearing of the appeal of By-law No. 7729-21
14To this end the Tribunal has scheduled Wednesday, February 23, 2022, commencing at 10 a.m. for a one day hearing.
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://global.gotomeeting.com/join/320146501
Access code: 320-146-501
16Parties 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
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 into an audio-only telephone line: +1 (647) 497-9391 or Toll Free 1-888-455-1389. The access code is 320-146-501.
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.
19I am not seized.
20There is no further notice.
21It is so ordered.
“Carmine Tucci”
CARMINE TUCCI
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.