Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 07, 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
1	Ontario Stone, Sand & Gravel Association (OSSGA)
2	Paletta International Corporation
3	P&L Livestock Limited
9	St. Marys Cement (Canada) Inc.
10	Demik Developments
11	1694408 Ontario Inc.
13	Artstone Holdings Limited
14	Artstone Holdings Limited
15	Weizer Investments Limited
16	Corpveil Holdings Limited
18	Ancaster Christian Reform Church
19	456941 Ontario Ltd., 1263339 Ontario Ltd. and Lea Silvestri ("Silvestri Investments")
20	Angelo Giacomelli and Mario Nesci
22	Keith Pickles and Brenda Pickles
23	John Paolini, Gino DalBello, Olindo DalBello, Luigi DeTina, Peter Djeneralovic, Jim Swick and Quinto Simone
24	New Country Investors Limited
25	1507565 Ontario Inc.
27	Lafarge Canada Inc.
28	Peter Cartwright
29	City of Hamilton
30	Dr. Tom Nugent
32	DiCenzo (Golf Club Road) Holdings Inc.
33	Dufferin Aggregates (a division of Holcim (Canada) Inc.)
35	David E. Mercer
36	Multi-Area Developments Inc.
37	Paletta International Corporation (Elfrida Lands)
39	2101510 Ontario Inc. (subsumed by Paletta International Corporation)
40	2000963 Ontario Inc.
41	Mud & First Inc.
42	2084696 Ontario Inc.
43	2188410 Ontario Inc.

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. 35 to the Region of Hamilton-Wentworth Official Plan

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: September 15, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Ministry of Municipal Affairs and Housing (“MMAH”)	U. Popadic
City of Hamilton (“City”)	K. Mullin E. Bashura
Castandgrey 5 Corp. Castandgrey 7 Corp. (“Castandgrey”)	C. Barnett E. Barz
Hamilton Country Properties Ltd. (“Country”)	P. Harrington
1507565 Ontario Inc. (“150”)	D. Sunday J. Minnes
Demik Developments Carmen Chiaravalle 1694408 Ontario Inc. Demik Brothers Hamilton Ltd. John Edward Demik, Peter Demik and Elaine Vyn (“Twenty Rd. East Landowners”)	S. Rosenthal S. Edwards (Articling Student)
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”)	J. Hoffman
456941 Ontario Ltd. 1263339 Ontario Ltd. Lea Silvestri (“Silvestri”)	P. Pickfield N. MacIsaac A. Ciccone
Artstone Holdings Limited Corpveil Holdings Limited Weizer Investments Limited Liuna Group Corp. (“Artstone et al”)	S. Snider A. Toumanians
Dicenzo (Golf Club Road) Holdings Inc. Dicenzo Construction Company Limited (“Dicenzo”)	R. Cheeseman

Requesting Party Status

Parties	Counsel
LIV Developments Ltd. (“LIV”)	J. Farber M. Rutledge

DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This further Case Management Conference (“CMC”) addressed three procedural matters pertaining to the remaining appeals to the MMAH’s modification and approval of the Rural Hamilton Official Plan (“RHOP”) and the Urban Hamilton Official Plan (“UHOP”) (“together, the “OPs”):

1. Minor revisions to the Procedural Order for the scheduled hearing on the merits;

2. Motions brought by the sheltering Parties of Castandgrey and Country related to what lands should be considered for future urban development in the OPs; and

3. A Motion brought by LIV seeking Party status.

2No issues were raised to the Parties’ notice and circulation of submissions, including the sworn Affidavits therein, and the Tribunal marked the written submissions as Exhibits in the order presented for Motion matters 2 and 3 noted above.

Procedural Order

3For the hearing previously scheduled to commence on January 9, 2023, the Tribunal approved the revised Procedural Order (“PO”) as contained in Attachment 1 to this Decision. The City advised, on consent of the Parties, that the PO reduces the hearing length to seven weeks, delays its start by one week – now commencing on Monday, January 16, 2023 – and revises the associated document exchange dates.

Motions of Castandgrey and Country

4Castandgrey and Country filed Motions seeking the Tribunal’s refusal of the remaining Appellants’ partial appeal withdrawals and scoping of the appeals, and confirmation that the Tribunal retains the authority to modify the RHOP and UHOP for some or all of the lands known as the Elfrida Area, including properties owned by Castandgrey and Country.

5Responses opposing the Motions were filed by the City and by 150 on behalf of several Appellants (“Responding Parties”). Scott Snider and Anna Toumanians, representing Artstone el al, presented the Responding Parties’ submissions at this Motion hearing.

6A core issue is whether the Tribunal has statutory authority to adjudicate on specific matters withdrawn by an Appellant. In the circumstances of this case, the Tribunal finds that, while the geographic area related to the appeals has been reduced, the broader planning question – where should the Hamilton urban boundary be drawn – remains in dispute, such that the full Elfrida Area remains under appeal for the Tribunal’s consideration. The Tribunal will not engage in allowing or refusing the intended narrowing of appeals, but is able to determine its scope of authority. In the case of new OPs with widespread and long-term effects, that scope should not be unduly limited.

Background

7These appeals date back some 10 years, when the MMAH modified and approved two related Official Plans adopted by the City: the RHOP and UHOP.

8The appeals pertain to whether and where lands should be identified in the OPs for future urban expansion. The MMAH had modified the City’s adopted OPs to remove reference to certain areas identified for “future urban boundary expansion,” including the area relevant to these Motions known as the Elfrida Area.

9All remaining Appellants have coordinated a “Joint Position” that 500 hectares (“ha”) in total of developable area should be identified for future urban development, comprising: 330 ha in the Elfrida Area; 130 ha in the Twenty Road East Area (“Twenty Rd. E”); and 40 ha in the Twenty Road West Area (“Twenty Rd. W”).

10The City supports that consideration be focussed on, and limited to, the reduced area of the Joint Position, but reserves on its position on the size and location of designated lands.

11In support of the Joint Position, the Appellants individually withdrew their appeals to areas outside the mapped 500 ha, thus scoping the issues with the intention of focussing the hearing to the designation and policies of the Joint Position’s 500 ha.

12Castandgrey and Country own lands outside the proposed 500 ha but within the Elfrida Area as originally identified by the City-approved OPs and subsequently removed by the MMAH modification. Castandgrey owns 61 ha to the east and west of Fletcher Road in the southwest part of the Elfrida Area. Country owns 25 ha along Hendershot Road in the southeast corner of the Elfrida Area.

13Castandgrey and Country did not own the above properties when appeals were filed against the modified OPs. Having acquired these lands more recently, they sought and were granted Party status in the Tribunal’s Decision of June 29, 2022 “on the condition that [they] shelter under existing issues, as outlined in the Procedural Order dated February 4, 2022” (para. 142).

14Having received the Appellants’ letters of partial withdrawal of appeals, Castandgrey and Country filed these Motions.

Motions

15The requests and arguments of Castandgrey and Country are summarized as follows.

16As new owners within the affected area that were granted Party status in these proceedings, they ask the Tribunal to refuse the Appellants’ scoping of issues such that their lands, or the entire Elfrida Area, remain in question for the Tribunal’s consideration. They also request that the policies and schedules of the OPs associated with the withdrawn issues/lands not be declared in force and effect. The entire Elfrida Area was the subject of the original appeals and remained under appeal at the time of Castandgrey and Country being granted Party status. Only after the granting of Party status, did the Appellants propose to scope their appeals, which Castandgrey and Country surmise is intended to remove their lands from potential consideration for future urban development for reasons of the Appellants’ economic benefit, not good planning.

17Castandgrey and Country argue that, because the entire Elfrida Area was appealed, which supported the Tribunal’s granting of their Party status, they should not now be excluded from presenting evidence related to any or all lands within the Elfrida Area. The appropriate amount and location of needed urban lands should be determined by the Tribunal through a hearing pertaining to all of the Elfrida Area.

18They argue that the public interest warrants the full consideration of appropriate urban area expansion which should prevail over the private interests of individual Appellants attempting to limit a Decision to their lands only. The case encompasses the full Elfrida Area which the City included in the OPs based on supportive studies, the MMAH modified out, and to which appeals were lodged. Castandgrey and Country posit that the Tribunal has jurisdiction to approve some or all of the Elfrida Area for future urban development.

Responses

19The City and the Responding Parties are generally aligned in their opposition to the Motions, as summarized below.

20The City requests the Tribunal to dismiss the Motions. The scoped issues and smaller affected area enables the coming into force of the RHOP and UHOP policies and schedules for all other lands within the City. While the City does not acknowledge that the Joint Position lands should be included within the urban boundary, it agrees that the questions of whether and which lands to designate should be limited to the 500 ha of the Joint Position.

21The Responding Parties oppose the Motions, and argue for the narrowing of issues resulting in a focussed and efficient hearing. Castandgrey and Country expressly agreed to shelter under the Appellants’ issues, which prohibits them from raising their own issues. These Motions seek to broaden the issues now before the Tribunal as a result of the Responding Parties’ scoped appeals. The scoped 500 ha remaining under appeal do not include the Castandgrey and Country properties.

22The Responding Parties contend that, upon the geographic scoping of their issues, all other lands are, by statute, subject to the now in-force OPs. Thus, the Castandgrey and Country lands are not in issue and the MMAH’s modification and approvals affecting those lands are in force. The sheltering Parties may present evidence at the hearing in favour or against the scoped appeal lands, but the Tribunal’s jurisdiction is now limited to the 500 ha and does not include the sheltering Parties’ properties. To illustrate this point further, the Responding Parties submit that if all remaining appeals were withdrawn, there would be no hearing and no opportunity for the sheltering Parties to address their concerns.

23The Responding Parties submit that granting these Motions would result in upgrading Castandgrey and Country as full Appellants who have articulated matters to be addressed at the hearing. The sheltering Parties did not own their lands during the applicable appeal periods for these OPs, did not file appeals, and no active appeals were underway for their lands to enable their continuation by new owners.

24The Responding Parties contend that what is now before the Tribunal is scoped exclusively to the Joint Position lands, and whether the sheltering Parties’ lands should be included is a different question and a different issue. These narrowed appeals now before the Tribunal relate only to the cited 500 ha.

25They submit that the Motion is unfair to the Appellants who have been engaged in addressing these matters for more than a decade. Also to the question of fairness, they argue that seeking fairness cannot inform jurisdiction. The latter is founded solely in the statutes, meaning that, in this case, the only area remaining under appeal is the 500 ha, not the entire Elfrida Area. If these Motions are granted, the effect is that the sheltering Parties become Appellants and such result is contrary to the Act.

Statutory Provisions

26The Parties focus on the following statutory requirements in their opposing positions.

27The Planning Act (“Act”) includes the following provisions (emphasis added by Tribunal):

Withdrawal of appeals

17(39) If all appeals made under subsection (36) in respect of all or part of the decision of the approval authority are withdrawn and if the time for filing notice of appeal has expired, the Tribunal shall notify the approval authority that made the decision and,

(a) the decision or that part of the decision that was the subject of the appeal is final; and

(b) the plan or part of the plan that was approved and in respect of which all the appeals have been withdrawn comes into effect as an official plan or part of an official plan on the day the last outstanding appeal has been withdrawn.

Powers of Tribunal

17(50) On an appeal or a transfer under this section, the Tribunal may approve all or part of the plan as all or part of an official plan, make modifications to all or part of the plan and approve all or part of the plan as modified as an official plan or refuse to approve all or part of the plan.

17(50.1) For greater certainty, subsection (50) does not give the Tribunal power to approve or modify any part of the plan that,

(a) is in effect; and

(b) was not added, amended or revoked by the plan to which the notice of appeal relates.

28The Ontario Land Tribunal Act (“OLTA”) includes the following provisions:

Fair, just and expeditious resolution

12(2) The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.

29The Tribunal’s Rules of Practice and Procedure (“Rules”) include the following:

1.3 Interpretation of the Rules - These Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.

1.4 Matters Not Dealt With in the Rules - The Tribunal may at any time in a proceeding before it make orders and direct practices and procedures that offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding and may exercise any of its powers under the OLT Act, the SPPA, or other applicable legislation. If these Rules do not provide for a matter of procedure, the Tribunal may adopt or follow the procedures set out in the Rules of Civil Procedure where appropriate and do whatever is necessary to adjudicate effectively and completely to resolve the merits of any dispute on any matter. If the Tribunal does not provide for a particular form, then the Tribunal may adopt, or modify the applicable form in the Rules of Civil Procedure to apply to any proceeding before the Tribunal.

1.5 Technical Objections - Substantial compliance with the requirements of these Rules is sufficient and technical non-compliance shall be deemed to be an irregularity and does not render a proceeding or a step, decision or order in that proceeding a nullity.

1.6 Tribunal May Exempt From Rules - The Tribunal may grant all necessary exceptions from these Rules or from any procedural order, or grant other relief as it considers necessary and appropriate, to ensure that the real questions in issue are determined in a fair, just,expeditious and cost-effective manner.

8.2 Power of Tribunal to Add or Substitute Parties - The Tribunal may add or substitute a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their interest may be transferred or transmitted to another party to be added or substituted provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.

8.3 Non-Appellant Party - A party to a proceeding before the Tribunal which arises under any of subsections 17(24) or (36), 34(19) or 51(39) of the Planning Act who is not an appellant of the municipal decision or enactment may not raise or introduce a new issue in the proceeding. The non-appellant party may only participate in these appeals of municipal decisions by sheltering under an issue raised in an appeal by an appellant party and may participate fully in the proceeding to the extent that the issue remains in dispute. A non-appellant party has no independent status to continue an appeal should that appeal be withdrawn by an appellant party.

Technical Arguments

30To the above statutory provisions and related Rules, the Parties argue as follows.

Castandgrey and Country

31Castandgrey and Country argue that the Tribunal has the discretion to refuse the scoping or withdrawal of portions of appeals under the OLTA to ensure a fair, just and expeditious proceeding for all Parties.

32They submit that, whether the Tribunal accepts or refuses the scoping of appeals, it retains authority to modify and approve the OPs for relevant areas related to the issues at play, which may include lands beyond those proposed by the Appellants. At issue is – what is the appropriate urban boundary – being a question that may or may not pertain only to the Appellants’ properties.

33Castandgrey and Country suggest that the Appellants’ withdrawal of appeals from certain lands within the Elfrida Area is an attempt to preclude consideration of properties within the urban boundary, other than theirs. The Appellants’ scoping letters were filed after Party status was granted to Castandgrey and Country where the Tribunal found that they had legitimate interests in submitting evidence related to an appropriate urban boundary.

34The issues under appeal address the OPs’ provisions for future development, and in accordance with the original appeals, the full Elfrida Area should remain under consideration. At issue here is the MMAH’s removal of the Elfrida Area as included in the OPs by the City, resulting in that entire area being in front of the Tribunal for adjudication. Such “Future Urban Growth Area” is based on the City’s lengthy and thorough review through the Growth Related Integrated Development Strategy (known as “GRIDS”). For a fair and just hearing, the comprehensive planning questions raised to the City’s adoption and the MMAH’s modification of the OPs should be addressed broadly, and not limited to the Appellants’ lands as contained in the Joint Position.

35Castandgrey and Country emphasize that, at the time of their receipt of Party status, the related appeals pertained to the entire Elfrida Area. Their ability to address the issues as a sheltering Party should not now be limited by a scoped geographic area.

36Even if the Tribunal were to allow the scoped appeals, the issue remains as the appropriate urban boundary, which may or may not equate to the Appellants’ scoped 500 ha. Castandgrey and Country ask the Tribunal to confirm that its jurisdiction includes the ability to consider the broad questions of appropriate urban boundaries beyond just the Appellants’ scoped lands.

37Further, they argue that the Tribunal has demonstrated its ability to refuse the withdrawal of an appeal when the circumstances of a case warrant further consideration. The withdrawal of an appeal and the coming into force of a planning document are not the unilateral discretion of an Appellant.

38Castandgrey and Country submit that their requests are supported by Rule 1.3 for a liberal interpretation of the Rules to ensure a full and fair hearing of the merits. They further submit that case law and decisions support their Motions, including the following.

39In MacVicar¹, the Member noted that in certain instances, such as a comprehensive Official Plan, the withdrawal of the last remaining appeal could prejudice sheltered Parties. Such assessment “ought to tread gingerly and sparingly and must scrutinize the facts and evaluate the consequences. But those are the circumstances where the rarefied exception proves the veracity of the general rule” (para. 10).

40In the Shouldice² Decision, the Appellant scoped the issues to its property but the appeal pertained broadly to an Official Plan Amendment. The Member found that “an attempt by Ainslie Hill to withdraw the appeal, except as it relates to its lands, will not be condoned by the Board in circumstances where that withdrawal is made for the purpose of defeating the two requests for party status to the proceedings” (para. 13). Castandgrey and Country allege that a similar intent to restrict their involvement in this proceeding prompted the Appellants’ scoping of issues and affected areas.

41Under the similar statutory framework for minor variances as apply to these OP appeals, in Ray-Don³, the Member refused the withdrawal of an appeal due to not knowing the effect of the Committee of Adjustment’s decision on an abutting owner with a legitimate interest in the matter.

42The Menkes⁴ court decision, in referring to the court’s Cloverdale⁵ decision, notes in para. 27 that “the term ‘modify’ has a broad definition providing a power to vary or amend.” It cites Cloverdale noting that “the court held that modify included the concept of ‘extend or enlarge’.” The Menkes decision concluded that “the Board’s power to modify is not limited to the boundaries of the land being considered” and found that “to modify … includes expanding boundaries of the Official Plan amendment and a change in use.” Similarly, the court in Lawson⁶ found that limiting the Board’s modification powers to the boundaries of a subject parcel would be “an unduly restrictive interpretation … and is inconsistent with the apparent legislative intention of s. 17” (para. 12).

43The Minto⁷ decision of the Divisional Court, as referenced by the Tribunal in Gravely⁸, determined that appeals are not only matters between two parties, but also engage the public interest that the Ontario Municipal Board (“OMB”) (now Tribunal) must consider and bring its own expertise to bear.

44Among the matters addressed in oral Reply, Castandgrey emphasized the difference between issues and positions: the added Parties must shelter under an issue but that does not tie them to the position of the Appellants. The remaining Issues 2 and 5 apply to Castandgrey and Country to which they are entitled to proffer evidence and make submissions related to the urban boundary expansion. The Tribunal will be addressing what modifications to approve, if any, related to future urban development.

45The Motions seek to ensure that a full and fair hearing is held related to the Elfrida Area, which was modified out of the OPs, appealed, and remained without confrontation when added Party status was granted to Castandgrey and Country. Country emphasized that the Appellants and City’s assertions – that the now unappealed policies and schedules (maps) of the OPs are in force and effect – would prevent the added Parties from giving their positions on the issue of urban expansion. As Parties, they should continue to be enabled to provide evidence on the broad issues. Country asserts that the Tribunal is the master of these proceedings, not the Appellants.

46Castandgrey concluded that, while the express jurisdiction of the Tribunal has evolved from that of the OMB, current Rule 1.4 makes reference to the Rules of Civil Procedure, under which the Tribunal may make a determination as necessary to ensure complete and effective adjudication. The circumstances of this case warrant such determination.

Responding Parties

47The Responding Parties argue that the Tribunal’s powers are clearly and narrowly prescribed by s. 17 of the Act. In Graham⁹, the Member found that “it is clear … that where an appeal is withdrawn with respect to a part of the Official Plan, that part of the plan no longer under appeal comes into force and effect under section 17(39)” (para. 49). Similarly, the Board confirmed in Peel¹⁰ that “the appellants … have confirmed the scoped extent of the appeals, and, by operation of law under s. 17(39) of the Planning Act, the Board’s Secretary will confirm that the unappealed policies of [the official plan] are in effect” (para. 1).

48In finding that Castandgrey and Country may be added as Parties, the Tribunal found in this case¹¹that they “will not be adding any new Issues to the Issues List, which remains in draft” (para. 24), “will be speaking to matters that will already be squarely before the Tribunal in the forthcoming hearing” (para. 38), and “are not to bring forward any additional issues” (para. 138).

49The Responding Parties argue that in the absence of statutory provisions to refuse the scoping of appeals, the Tribunal should deny the Motions. The Tribunal is directed by s. 17(39) of the Act to notify the MMAH and City related to in-force sections of the OPs, and authorizes no further action. No statute or Rule enables the consideration of whether to accept a scoped appeal, so such action is not “otherwise available” per s. 12(2) of the OLTA, and thus is absent jurisdiction.

50The Tribunal’s Rules guide the exercise of its jurisdiction, but cannot enable a decision that exceeds its legislative authority. To the contrary here, Rule 8.3 expressly address the difference between an added Party and an Appellant. While the Appellants’ issues did engage the Castandgrey and Country lands, such is no longer the case given their now more focussed and narrow issues. In such case, the sheltering Parties should not take control of the issues.

51The Responding Parties submit that the Moving Parties’ references to OMB cases speak to a regime that was different than today’s Tribunal. Those cases relied on the 1970 Edgeley court decision. Unlike then, the Tribunal today is not enabled to engage the proceedings of the courts. The Tribunal now has Rule 8.3 addressing the roles of different parties.

52Rule 8.3 aligns with s. 17(39) of the Act addressing “parts” of an appeal being withdrawn. The issues have been scoped to no longer encompass certain lands, resulting in the OPs coming into force via the Act for those areas no longer subject to appeal. The effect is legislative, and not open to the Tribunal for oversight or discretion.

53The Responding Parties refer to the additional decisions, with ties back to Cloverdale, in support of their submissions, including the following. In Minotar¹², the OMB found that it “cannot overreach into policy areas where no appeal right exists” (para. 16) and “the power of the Board is appellate, derivative rather than original” (para. 17). In Mattamy¹³, the court similarly confirmed that “the OMB, a statutory administrative tribunal, has only the jurisdiction conferred on it by the Legislature – it has no inherent jurisdiction” (para. 48).

54The Responding Parties ask the Tribunal to refuse the Motions because sheltering Parties are prohibited from skewing the direction of the hearing with new issues or an expanded area that allows them to become Appellants. If the Tribunal does find it has such authority, they request that the Motions be dismissed for the same reasons: Parties arriving late to the process should not now be entitled to define the scope of the hearing on the merits.

Analysis and Findings

55Following a thorough review of the submissions, statutory provisions and case law, the Tribunal finds a middle ground, not in pursuit of compromise, but in full accord with the Tribunal’s jurisdiction related to a broad planning issue.

56These appeals relate to Hamilton’s future urban boundary expansions. Substantial areas were adopted by the City in the OPs, but removed by modification of the MMAH. Among other issues, the removal of the Elfrida Area is challenged by various appeals. In the context of these Motions, the Tribunal finds that the question remaining for adjudication is the extent, if any, of a designated area for future urban development.

57The Motions’ requests to disallow the scoped issues of the Appellants will be dismissed, but such result does not lead to a finding that the OPs are in full force and effect related to lands outside the Appellants’ scoped area. These findings are not a contradiction. Although the Appellants’ position is that only certain identified lands should be considered for urban expansion, the Tribunal accepts the arguments of Castandgrey and Country that their position, as Parties, may proffer other solutions to the question.

58The Tribunal finds that the Elfrida Area constitutes a focus area for the hearing (among other areas in dispute), but even there, the Tribunal could find, for example, that adjustments to the urban boundary may include a parcel of land not originally within the Elfrida Area. With the Appellants’ narrowed area of 140 ha within the Elfrida Area, there is little doubt that such area will be the focus of the hearing. However, other Parties may address, through their evidence, alterations to the boundary or area advanced by the Appellants. As such, the Tribunal finds that the Elfrida Area remains the subject area for a hearing on the merits of where the urban development boundary should be within this area of Hamilton.

59The Tribunal finds these conclusions in accord with its statutory requirements and Rules, as follows.

60Section 17(39) of the Act applies “if all appeals” related to an aspect of a decision are withdrawn. Here, the Appellants remain opposed to the MMAH’s modification to the urban boundary. Their solution may be to focus on a smaller area, but they remain opposed. As such, the broad question of urban boundary under the OPs remains under appeal.

61The Tribunal finds, as argued by Castandgrey and Country, that the above finding is not undermined by the scoped Issues List. Issue 2 is “should the remaining lands under appeal … be added … to the City’s urban boundary …?” A Party may choose to address that question with ‘no, other lands should also be considered.’ Similarly, a Party may choose to refute Issue 4, on whether the Appellants’ proposed urban boundary expansion conforms with related OP policies. For Issue 5, Parties may differ on what “modifications to the UHOP and RHOP would be appropriate to implement the Proposed Urban Boundary Expansion.”

62To the Appellants’ argument that their geographic scoping eliminates consideration of other areas, the Tribunal finds that the broad question of urban boundary remains, and other Parties may present alternatives in evidence. The reference to “part of the decision” in s. 17(39) of the Act does not remove the broader question of urban boundary. If all Appellants withdrew their appeals in full, then the Tribunal agrees that the question of urban boundary would be “off the table” and the added Parties would lose their sheltering issues. In this case, the “part of the decision” at issue relevant to the added Parties has not been withdrawn. The Appellants’ may proffer to not include lands other than contained in their Joint Position, but other Parties may oppose that position.

63Given these findings, the provisions of s. 17(50) and (50.1) do not change the result. The Tribunal finds that the potential urban lands within the Elfrida Area, but outside the Appellants’ identified area of concern, are not in effect, and thus remain within the Tribunal’s jurisdiction for a hearing. The Tribunal may, “on an appeal … make modifications to all or part of the plan” [s. 17(50)] provided that such part of the plan is not “in effect” [s. 17(50.1)(a)]. The question remains open on where future urban development may be permitted.

64The Tribunal finds that, pursuant to s. 12(2) of the OLTA and Rules 1.3 and 1.4, the Appellants’ geographic narrowing of their issues and the remaining broader issue of the appropriate urban development boundary offers “the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings” (Rule 13). At issue are OPs, not site-specific, narrow matters. OPs are general policy documents that direct the where, what and how of development for many years. Those questions arise here related to the Elfrida Area: adopted by the City; refused by the MMAH; appealed; and over which broad questions remain.

65Under Rule 8.3, the issue of urban expansion has not been withdrawn by the Appellants. It remains under appeal as evidenced by the Appellants’ suggested area for expansion. The Non-Appellant Parties may shelter under that issue, and as noted earlier, may offer a different solution to the question.

66As a final illustration, the hearing will lead to the Tribunal drawing a line on a map representing the limit of urban expansion (and associated policies). That line may be where the City adopted it, where the MMAH modified it, where the Appellants or added Parties wish it, or somewhere in between. Good planning at the OP level warrants careful consideration of broad issues.

67The Motions are granted in part, only to rule that the Elfrida Area urban boundary remains under appeal. The Tribunal will not engage in adjudicating on the scoping of the Appellants’ issues, other than to find that their position does not bring into force the MMAH’s modification for Non-Appellant lands within the Elfrida Area. Therefore, under s. 17(39) of the Act, at this time the Tribunal will not notify the approval authority that all appeals are withdrawn.

Motion of LIV

LIV

68LIV requests Party status in the appeals to the RHOP and UHOP based on “reasonable grounds” pursuant to s. 17(44.2)(2) of the Act. In 2019, LIV purchased the Glancaster Golf Course lands within the Twenty Rd. W area and included within the Appellants’ Joint Position area. As an affected landowner, LIV argues it has a direct interest in the outcome of the hearing related to a warranted urban boundary expansion area.

69LIV acknowledges that its request is relatively late in this process but entirely justified given that it has participated fully since 2019 with other Appellants in consultations with the City’s reviews related to these appeals, including formal mediation. Through those processes, LIV considered that its interests were protected by the appeals of other landowners within the Twenty Rd. W area. Although the Twenty Road West appeals have been dismissed, an appeal of that Decision is pending, and LIV seeks status as a new added Party. LIV was not a party to the Minutes of Settlement that resulted in the dismissal of the Twenty Road West appeals. In the event those appeals remain dismissed, LIV would provide expert evidence for its and other lands within the Twenty Rd. W area

70Regardless of the above, LIV contends that as an owner of land within a candidate urban expansion area, it should be authorized to provide its own evidence on the issue. This would ensure that the public interest is considered when the Tribunal evaluates which lands should be considered for urban expansion.

71LIV submits that its request results in no prejudice to any Party, given its full involvement in recent matters, agreement with the filed Joint Position, and sheltering under those related appeals. LIV agrees with the PO and will coordinate submissions with the Joint Position Parties. LIV requests the same granting of status as was accorded to Castandgrey and Country by the Tribunal.

72LIV concludes that its request satisfies all of the six factors established in Oakville¹⁴ for added Party status: a prior appeal exists; the public interest is advanced; no prejudice results to any Party; LIV has a direct interest; no multiplicity of proceedings results; and the historical background involves LIV.

73In Reply submissions, LIV argued that the cases referenced by the City have little relevance here given the specific circumstances of those cases. LIV suggests that the City’s position amounts to the unacceptable view that because LIV has cooperated with its neighbours on common issues, it should not be a Party in this proceeding. LIV asks for Party status because it is an affected landowner that has been involved in these matters since it purchased the property.

City

74The City responds that LIV, being aligned with the Twenty Road West landowners whose appeals were dismissed, should not be granted Party status. LIV’s direct involvement with those former Appellants over the past few years would essentially re-instate the Twenty Road West landowners as Parties “through the back door.” Upon the settlement with the City of appeals to related OP amendments, the Twenty Road West landowners had agreed to withdraw their appeals and not participate in this hearing. With no withdrawal forthcoming, the City’s Motion was approved by the Tribunal earlier this year and their appeals were dismissed.

75The City argues that LIV’s Party status would result in a relitigation of matters already addressed. LIV’s stated interests, as aligned with and reflecting those of the Twenty Road West landowners, have been heard and closed by the Tribunal. As an apparent attempt to overcome the Tribunal’s dismissal of related Appellants, LIV does not satisfy the requirement of reasonable grounds for Party status.

76The City further notes that LIV’s agreement and alignment with the Joint Position demonstrates that its position will be heard by the Tribunal through the evidence of the remaining Appellants. The perspectives of all Parties will be heard without the direct involvement of LIV.

77With reference to various case law, the City asserts that LIV’s common interest with the dismissed Twenty Road West Appellants makes it privy to those issues that have been addressed and closed, and should not be resumed. LIV’s request constitutes a collateral attack and/or a proxy appeal to the Tribunal’s earlier Decision.

Analysis and Findings

78The Tribunal finds that the Oakville “obvious factors” for establishing reasonable grounds are sufficient to arrive at a Decision on this request, negating the need to delve further into the legal arguments presented by the City. Of relevance to the circumstances of this case, the Tribunal finds that LIV fails on the factors of the public interest and the multiplicity of proceedings.

79The public interest is not advanced in this case by the involvement of LIV. Although LIV is an owner of lands in an area under appeal, LIV agrees with the positions advanced by the remaining Appellants through the Joint Position. As argued by LIV, it would shelter under those appeals and align evidence with those Appellants. The Tribunal finds that here, with several Appellants and their agreed Joint Position, which includes lands owned by LIV, the public interest will not be advanced by LIV’s requested status. The public interest of all affected landowners will be represented through evidence in support of the Joint Position.

80To the multiplicity of proceedings, the Tribunal finds that LIV’s request would repeat, not avoid, matters already addressed by the Tribunal. The appeals of neighbouring landowners to LIV within the Twenty Road West area have been dismissed; appeals to which LIV openly supported and continues to support. Those matters have been heard and decided, and are anticipated to be further addressed through the remaining Appellants’ Joint Position. It is unnecessary for LIV to address those matters further as an added Party. Such would represent a further multiplicity of proceedings.

81One might think that inconsistencies arise from these concurrent Motion findings: supporting the added Parties, in part, in the Elfrida Area, while denying a new added Party in the Twenty Road West area. The common element is the fair representation of interests. LIV’s interests will be advanced by the Joint Position, while Castandgrey and Country must be present to advance their own interests.

82Pursuant to s. 17(44.2)2 of the Act, the Tribunal is of the opinion that the test of reasonable grounds has not been met to grant LIV Party status in these proceedings. The Motion is denied.

ORDER

83The Tribunal Orders that:

• The revised Procedural Order contained in Attachment 1 to this Decision is approved.

• The Motions of Castandgrey and Country are allowed in part, by ruling that the full Elfrida Area potential urban boundary and associated policies remain under appeal. In all other respects, the Motions are dismissed.

• The Motion of LIV seeking Party status is denied.

84This Member is not seized but may be contacted through the Case Coordinator should procedural issues arise from this Decision.

“S. Tousaw”

S. tousaw

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.

Footnotes

1. 1MacVicar v Thunder Bay (City), [2009] OMBD No 581
2. 2Shouldice, 2013 CarswellOnt 5073, [2013] O.M.B.D. No. 335, 76 O.M.B.R. 477
3. 3Ray-Don Machinery Ltd. v. Richmond Hill (Town) Committee of Adjustment 1989 CarswellOnt 3562, 24 O.M.B.R. 306
4. 4Menkes Lakeshore Ltd. v. Toronto (City) 2007 CanLII 65611 (ON SCDC), 2007 CarswellOnt 4637, [2007] O.J. No. 2834, 159 A.C.W.S. (3d) 7, 228 O.A.C. 1, 37 M.P.L.R. (4th) 42, 56 O.M.B.R. 391
5. 5Cloverdale Shopping Centre Ltd. v. Etobicoke (Township) 1966 CanLII 205 (ON CA), 1966 CarswellOnt 103, [1966] 2 O.R. 439, 57 D.L.R. (2d) 206
6. 6Lawson Estates Ratepayers Assn. (Trustee of) v. Grace Communities Corp, 1993 CarswellOnt 5692 (ON Div Ct)
7. 7Q. v. Minto Management Ltd. (1984), 1984 CanLII 2118 (ON HCJ), 46 O.R. (2d) 756;
8. 8Gravely v. Kawartha Lakes (City), 2022 CanLII 18637 (ON LT)
9. 9Graham v. Ontario (Municipal Affairs and Housing) 2019 CarswellOnt 18181
10. 10AMB Highway BP 1 Canco Inc., Re (2013)
11. 11Tribunal Decision, OLT-22-002493, issued June 29, 2022 (corrected July 19, 2022)
12. 12Minotar Holdings Inc. v. Ontario (Municipal Affairs and Housing) 2018 ONSC 4552, 2018 CarswellOnt 12208, 294 A.C.W.S. (3d) 499
13. 13Mattamy (Rouge) Ltd. v. Toronto (City), 2003 CanLII 7635 (ON SCDC), [2003] O.J. No. 4829
14. 14Oakville (Town) By-law No. 2010-047 Oakville (Town) By-law No. 2010-047, Re 2010 CarswellOnt 19246