Benneian v. St. Catherines (City), 2023 CanLII 103226

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 02, 2023

CASE NO(S).: OLT-23-000723

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant

Elizabeth Benneian

Appellant

The Preservation of Agricultural Lands Society

Applicant

Trustees of New Hope Church Niagara

Subject:

Proposed Official Plan Amendment

Reference Number:

22 115593 OP

Property Address:

2360 First Street Louth

Municipality/UT:

St. Catherines/Niagara

OLT Case No:

OLT-23-000723

OLT Case Name:

Benneian v. St. Catherines (City)

Heard:

October 25, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

The Preservation of Agricultural Lands Society (“PALS”)

Lisa Triano

Elizabeth Benneian

Self-represented*

Trustees of New Hope Church Niagara

Tom Hanrahan Andrea Mannell Patrick Lyons, Student-at-Law*

Regional Municipality of Niagara

Joshua Perell Brian Duxbury (in absentia)

City of St. Catharines

Robert Di Lallo

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON OCTOBER 25, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) before the Tribunal with respect to two appeals (“OPA Appeals”) under s. 17(36) of the Planning Act (“Act”) by The Preservation of Agricultural Lands Society (“PALS”) and Elizabeth Benneian (collectively, the “Appellants”) resulting from the approval by the Councils of the City of St. Catharines (“City”) and the Regional Municipality of Niagara (“Niagara”) of an Official Plan Amendment (“OPA”) Application by Trustees of New Hope Church Niagara (“Applicant”). The approved OPA, titled OPA No. 36 by the City, pertains to lands located at 2360 First Street Louth in the City (“Subject Property”).

2The purpose of OPA No. 36 is to permit the expansion of an existing Place of Worship that is outside of the Urban Boundary, within the Provincial Greenbelt Plan Area - Protected Countryside (Specialty Crop Area).

3At the CMC, the Tribunal canvassed the Parties who confirmed that there was no issue with the service of the Notice of CMC. The Tribunal is in receipt of two Affidavits of Service, one sworn by Sasha Spiteri on October 11, 2023, and another sworn by Lindsay Wardman on October 11, 2023, which were marked as Exhibit 1 and Exhibit 2, respectively. These Affidavits confirm that Notice was adequately provided, and as such, no further notice is required.

PARTY / PARTICIPANT STATUS REQUESTS

4The statutory Parties to the OPA Appeals are the Appellants and the approval authority. In this case:

a. According to the Notice of Decision by the City of St. Catharines, contained in the Municipal file pertaining to the OPA Appeals, “On April 3, 2023 Council for the City of St. Catharines adopted Amendment No. 36 to the City’s Official Plan…The Regional Municipality of Niagara is the final approval authority for Amendment No. 36. The amendment has been forwarded to the Region of Niagara for their consideration.”

b. According to the Notice of Decision by the Region, also contained in the Municipal file, “On June 15, 2023, Niagara Regional Council, as the approval authority under Section 17 of the Planning Act, 1990, has made a decision to approve OPA 36.”

5At the CMC, there was some discussion regarding whether both the Region and the City were statutory Parties in the OPA Appeals or only the Region. Ultimately, it was determined that, as both Councils had considered the matter, and as Council for the City had made a decision on the OPA, the City would be noted as a statutory Party in the OPA Appeals. However, the City’s Counsel indicated that the City, at this time, did not intend to take an active role in the proceedings in light of the Region being the final approval authority.

6While the Applicant is not a statutory Party in the OPA Appeals, it sought Party Status and was granted same on the basis that its participation in these proceedings was necessary, and would significantly assist the Tribunal in making its final determination on the issues.

7The Tribunal also received a Party Status request from Wally Braun. On the Status request form, Mr. Braun indicated the following as the basis for his request:

Should it come to pass that both sides come to the realization that their money and efforts might be better spent in an alternative resolution of this matter, I believe I may be able to assist the Tribunal in fostering a negotiated settlement of this matter… Party status will permit me to examine evidence with an eye to identifying prospective solutions to the issues at hand.

8At the CMC, Mr. Braun repeated this intention as the basis for his request. Both the Appellants and the Applicant raised concerns with Mr. Braun’s request for Party Status, collectively stating that he had not raised any planning concerns, it was not clear how his participation would contribute to the proceedings, and he had not clarified how he would play a proper role as a Party before the Tribunal in accordance with the statutory requirements. The Tribunal agreed. Moreover, these OPA Appeals were filed under s. 17(36) of the Act, and those seeking Party Status must shelter under the issues raised by the current Appellants, in accordance with Rule 8.3 of the Ontario Land Tribunal’s Rules of Practice and Procedure. However, it was not clear how Mr. Braun was doing so, as he had not raised concerns with the OPA, and wanted instead to play more of a negotiator role. As such, the Tribunal denied the request, and Mr. Braun was not granted Party Status in these proceedings.

9The Tribunal then provided Mr. Braun with an extensive explanation regarding the difference between a Party and Participant, and he was provided with the opportunity to revise his request. He contemplated doing so. Ultimately, it was determined that since, as discussed below, a second CMC has been scheduled for this matter, Mr. Braun’s request would be deferred to the next CMC. If he chose to proceed with his request to be a Participant, he was instructed to submit a Participant Status request form in advance of the second CMC, to allow the Parties time to consider the request.

RELATED ZONING BY-LAW AMENDMENT MATTER

10Along with the OPA Application, the Applicant had simultaneously submitted a Zoning By-law Amendment (“ZBA”) Application to the City. In the City’s April 3, 2023, Notice of Decision, it is stated, “A concurrent application for Zoning By-law Amendment to facilitate the expansion was deferred by City Council pending a decision of Regional Council on the adopted Official Plan Amendment.” In the Region’s June 15, 2023, Notice of Decision, it is stated, “The subject land is also subject to an application to the City of St. Catharines under the Planning Act, for an amendment to the City of St. Catharines Zoning By-law 2013-283 (City File Number 22 115648 ZA).”

11However, no decision on the ZBA was ultimately made by the City, and the Applicant filed an appeal to the Tribunal (“ZBA Appeal”) under section 34(11) of the Act resulting from the failure of the City to make a decision on the ZBA within the statutory timeframe. The ZBA pertains to the same Subject Property, and is for the same purpose as the OPA. The Tribunal received and acknowledged the ZBA Appeal, titled Case No. OLT-23-000918, in September of 2023, but no further steps have as yet been taken on that ZBA Appeal.

12Prior to this CMC pertaining to the OPA Appeals, the Applicant requested that a consideration be given to the consolidation of the two appeals.

13At the CMC, significant discussion took place with respect to a potential consolidation. Ultimately, it was determined that no consolidation would be possible, as a first CMC had not yet taken place on the ZBA Appeal, and the Parties to that Appeal remained unclear. Moreover, throughout the discussions, it became apparent that the Applicant may take an issue with PALS becoming a Party to the ZBA Appeals. Since a consolidation would make PALS a de facto Party to the ZBA Appeal, the Tribunal suggested that the Parties consider whether the two files should be consolidated or to have the matters heard together. Lastly, neither the City nor the Region had instructions as of yet with respect to a potential consolidation or combining of the OPA Appeals and the ZBA Appeal, as this CMC had only been scheduled with respect to the OPA Appeals.

14It was determined that it would be best to schedule a first CMC for the ZBA Appeal, to proceed with Notice, and a second CMC for the OPA Appeals, to proceed without Notice, and for both of these to take place on the same day. At that combined CMC, any procedural matters could be addressed, including how best to combine the two files. This course of action was agreed to by all Parties. The details of these CMCs are contained below.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

15The Appellant PALS provided a draft Procedural Order (“PO”) and Issues List (“IL”) prior to the CMC. However, in light of the various issues that arose due to the related ZBA Appeal, discussed above, it was determined that the PO and IL would be further refined and updated prior to the second CMC for the OPA Appeals. The Tribunal provided the Parties with directions on the use of the Tribunal’s sample PO, as well as some directions regarding the issues currently listed on the IL. The Parties were directed to provide an updated draft PO and IL to the Tribunal in advance of the second CMC, specifically by Friday, January 5, 2024. The Counsel for PALS, undertook to submit them to the Case Coordinator by that date.

16The Parties were also asked to provide a draft PO and IL in advance of the first CMC for the ZBA Appeal, specifically by Friday, January 5, 2024. The Applicant’s Counsel undertook to submit them, or a status update, to the Case Coordinator by that date.

MEDIATION AND SETTLEMENT

17The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties were directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

SECOND CMC FOR THE OPA APPEAL

18As indicated above, it was determined that a second CMC for the OPA Appeals be scheduled to address procedural issues or schedule a Hearing, and has now been scheduled to take place by Video Hearing on Thursday, January 11, 2024, at 10 a.m.

19On that date, the Parties 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.

20The CMC is scheduled to proceed by Video Hearing as follows:

GoToMeeting: https://global.gotomeeting.com/join/692665589

Access Code: 692-665-589

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: 1-888-299-1889 Or + 1 (647)-497-9373. The Access Code is as indicated above.

22Parties 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

23Individuals 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.

FIRST CMC FOR THE ZBA APPEAL

24As indicated above, it was determined that a first CMC be scheduled to address procedural issues or schedule a Hearing for the ZBA Appeal, and to address its potential unification with the OPA Appeals. This has now been scheduled to take place by Video Hearing on Thursday, January 11, 2024, at 10 a.m.

25This CMC is to proceed with Notice, and the Case Coordinator will provide directions in that regard.

ORDER

26THE TRIBUNAL ORDERS as follows:

a. The Applicant, Trustees of New Hope Church Niagara, is now a Party in these proceedings.

b. A second CMC for the OPA Appeals, Case No. OLT-23-000723, is scheduled to proceed, by Video Hearing, on Thursday, January 11, 2024, at 10 a.m. There will be no further notice.

c. The Procedural Order and Issues List for the OPA Appeal are to be provided to the Tribunal by Friday, January 5, 2024.

d. A first CMC for the ZBA Appeal, Case No. OLT-23-000918, is scheduled to proceed, by Video Hearing, on Thursday, January 11, 2024, at 10 a.m. This will proceed with notice to be provided by the Case Coordinator.

27The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE

MEMBER

Ontario Land Tribunal

Website: www.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.