Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 21, 2022
CASE NO(S).: OLT-22-003928
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Milski Inc.
Subject: Application to amend the Zoning By-law – Refusal of application
Description: To permit the development of a three-storey, 34-unit apartment building
Reference Number: D-14-10-2021
Property Address: 1970 Decew Road
Municipality/UT: Thorold/Niagara
OLT Case No: OLT-22-003928
OLT Lead Case No: OLT-22-003928
OLT Case Name: Milski Inc. v. Thorold (City)
Heard: September 15, 2022 by video hearing
APPEARANCES:
Parties: Counsel
Milski Inc.: Robert Di Lallo
City of Thorold: Laura Dean, Patrick Harrington (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL AND S. BOBKA ON SEPTEMBER 15, 2022, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal by Milski Inc. (the “Appellant”) pursuant to s. 34(11) of the Planning Act with respect to the City of Thorold’s (“City”) refusal of the Appellant’s proposed application for a Zoning By-law Amendment.
2The proposed development is a three-storey, 34-unit apartment building on the subject property which is located at 1970 Decew Road.
3This is the first Case Management Conference (“CMC”), intended to identify any Party or Participant Requests, formalize the Procedural Order and Issues List, and get organized for a future Hearing of the Merits.
4The Tribunal marked the Affidavit of Service of the Notice of CMC by Andrea Rocca dated August 24, 2022, as Exhibit 1.
Party and Participant Status Requests
5The Tribunal received a request for Party Status in advance of the CMC from Nicholas Bozza, whose principal residence is at 4 Coleman Court, in the immediate area of the proposed development.
6Mr. N. Bozza submitted that he has been actively involved during the public hearings regarding this proposal, making presentations to Council and getting their support to refuse the development application.
7Mr. Di Lallo, on behalf of the Appellant, objected to the request for Party Status from Mr. N. Bozza, stating that he did not meet the test under Rule 8.2 of the Tribunal’s Rules of Order and Procedure. Although Mr. Di Lallo admitted that Mr. N. Bozza may have a legitimate interest in the proceedings, counsel argued that his presence was not necessary to assist the Tribunal.
8Mr. Di Lallo made reference to a recent Tribunal Decision, Aryeh Construction Limited v. Markham (City), 2020, CarswellOnt 12452 where the presiding Member denied Party Status to an entity on the basis that they would not be bringing any additional planning evidence to assist the Tribunal in making a ruling.
9In the above Decision, the Tribunal ruled that Rule 8.2 requires proposed parties to clearly articulate how their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.
10Ms. Dean, on behalf of the City, supported Mr. N. Bozza’s request for Party status, as he had submitted the appropriate request within the prescribed timelines and had a legitimate interest in the outcome of these proceedings.
11The Tribunal also received a request for Participant Status in advance of the CMC from Tony Bozza, expressing his stated concerns regarding the proposed high-density development and potential traffic impacts on the immediate area. Mr. T. Bozza was not able to attend the CMC, but Michael Barton, a Professional Planner, attended on his behalf and provided the Tribunal with a brief overview of Mr. T. Bozza’s involvement and his concerns.
12After a careful review of the submissions by Mr. N. Bozza and the responses by Mr. Di Lallo and Ms. Dean, the Tribunal ruled that Mr. N. Bozza would be granted Participant Status rather than Party Status. The Tribunal, after questioning Mr. N. Bozza, was of the opinion that any issues or concerns raised by Mr. N. Bozza would be aligned with the issues which would be raised by the City. It did not appear that Mr. N. Bozza was intending to bring forward any expert witnesses to support his concerns, but rather sought an opportunity to express his own non-expert opinions to the Tribunal, which can be appropriately addressed through his written ParticipantStatement.
13The Tribunal found that Mr. T. Bozza’s request for Participant Status was acceptable and granted him Participant Status.
14Mr. N. Bozza objected to the Tribunal’s ruling of Participant Status and was informed he had the right to submit a formal Motion to the Tribunal to request Party Status with appropriate reasoning in advance of the upcoming Merit Hearing.
Tribunal Led-Mediation
15The Parties were asked by the Panel if they would be interested in participating in Tribunal-led Mediation. Mr. Di Lallo stated that his client was open to discussions with the City if they wished to pursue formal or informal mediation. Ms. Dean stated she had no instructions from the City at this point.
Procedural Order and Issues List
16Mr. Di Lallo advised the Tribunal that a preliminary draft of the Issues List had been forwarded to the City just yesterday. He requested the opportunity to work with the City on finalizing the Procedural Order and Issues List within the next 30 days.
17The Parties requested that the Tribunal schedule a three (3)-day Hearing, allowing for up to four witnesses, two of which would be summonsed.
Scheduling of Future Hearings
18A three-day Merit Hearing has been scheduled for Monday, January 16, 2023, by video hearing.
19Parties 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/656004293
Access code: 656-004-293
20Parties are asked to access and set up the application well in advance of the events to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
21Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free): 1 888 455-1389 or +1 (647) 497-9373. The access code is 656-004-293.
22Individuals 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.
Order
23The Tribunal Orders that Nicholas Bozza and Tony Bozza be granted Participant Status.
24The Merit Hearing is scheduled to commence on Monday, January 16, 2023, at 10 a.m. by video hearing for a period of three (3) days.
25The Parties are directed to submit the final Procedural Order and Issues List to the Tribunal by no later than Friday, October 14, 2022.
26The Panel is not seized, however, may assist with case management, schedules permitting.
“T. Prevedel”
T. PREVEDEL
MEMBER
“S. Bobka”
S. BOBKA
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.