Ahmed Bilal v. City of Hamilton, 2023 CanLII 112308

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

November 20, 2023

CASE NO(S).:

OLT-23-000678

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Ahmed Bilal

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit the demolition of one dwelling, construction of one dwelling and the creation of four new residential lots

Reference Number:

ZAC-21-027

Property Address:

140 and 164 Sulphur Springs Road

Municipality/UT:

City of Hamilton

OLT Case No.:

OLT-23-000678

OLT Lead Case No.:

OLT-23-000678

OLT Case Name:

Bilal v. Hamilton (City)

Heard:

October 27, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Ahmed Bilal

David Bronskill

City of Hamilton

Paula Boutis

MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON October 27, 2023 and ORDER OF the TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“CMC”) concerning Ahmed Bilal’s (“Appellant”) appeal against the City of Hamilton’s (“City”) failure to make a decision on an application to amend the Zoning By-law (“ZBL”) within the timeframes prescribed in the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”). The lands that are the subject of the Application are located at 140 and 164 Sulphur Springs Road, Ancaster, in the City of Hamilton (“Subject Lands”). The Application proposes to demolish the existing building at 164 Sulphur Springs Road, retain the dwelling at 140 Sulphur Springs Road and create four new residential lots for detached dwellings.

2The Appellant is proposing a Zoning By-law Amendment (“ZBA”) to change the zoning for the Subject Lands from the “D”, Deferred Development designation, to “R1”, Residential Modified.

3The Affidavit of Service sworn on October 5, 2023, was filed with the Tribunal before the Hearing and marked as Exhibit 1. The Tribunal granted a Notice of Abridgement on September 25, 2023, to permit the shortened notice period.

STATUS REQUESTS

4A Party and Participant status request was received from David Vander Voet and a Party Status request was received from Richard Butterworth. Following a review of the expectations related to Party and Participant Status during the Hearing, both individuals confirmed they would like to be considered for Participant status instead of their original request. Mr. Butterworth submitted the Participant Status application immediately following the Hearing. Counsel for both Parties indicated support for the Participant Status requests.

5Mr. Vander Voet and Mr. Butterworth’s properties abut to the Subject Lands and expressed concerns with the proposal related to the following:

a. Roadway placement and potential drainage and soil pollution issues;

b. Preservation of mature trees which provide privacy and a habitat for wildlife;

c. Fencing; and

d. Noise and dust during the construction process.

6Mr. Vander Voet and Mr. Butterworth were granted Participant Status.

MEDIATION

7The Parties indicated a willingness to work together toward resolving the issues and have already engaged in meaningful conversations. Both felt that it was premature to engage in formal mediation at this time.

HEARING PLANNING

8A copy of a draft Procedural Order (“PO”) and Issues List (“IL”) was received and reviewed by the Tribunal.

9The Tribunal directed the Parties to finalize a draft PO and IL and submit it to the Case Coordinator by Friday, November 3, 2023, for final review and inclusion in this Decision.

10The Tribunal received and approved the revised PO, including an IL, on Monday, November 6, 2023. The approved PO is included as Schedule 1 below and shall govern the procedures leading up to, and including, the Video Hearing for this matter.

11In planning for the Hearing, the Parties indicated that they expect there to be a need for five witnesses with expertise related to planning, natural heritage, and engineering, which would require five hearing days. The Parties also indicated that the number of days may be reduced given the potential for a reduction in the number of issues in the coming months.

12A Video Hearing has been scheduled for five days, to commence on Monday, July 8, 2024, at 10:00 a.m.

13Parties 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/692665589

Access code: 692-665-589

14Parties 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

14Persons 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) 497-9373 or Toll-Free: 1-888-299-1889. The access code is the same as the access code noted above.

15Individuals 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 Video Hearing 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

16THE TRIBUNAL ORDERS:

1. That Participant Status be granted to David Vander Voet and Richard Butterworth.

2. That a five-day Hearing shall commence on Monday, July 8, 2024, at 10:00 a.m. by video, as per the details set out above.

3. The Procedural Order to govern the procedures leading up to and including the Hearing is appended to this Order as Schedule 1 and shall come into force and effect on the date of issue of this Order.

17The Member is not seized.

18No further notice will be required.

“Gregory J. Ingram”

GREGORY J. INGRAM

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.

Schedule 1

CASE NO(S).: OLT-23-000678

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Ahmed Bilal

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit the demolition of one dwelling, construction of one dwelling and the creation of four new residential lots

Reference Number:

ZAC-21-027

Property Address:

140 and 164 Sulphur Springs Road

Municipality/UT:

City of Hamilton

OLT Case No.:

OLT-23-000678

OLT Lead Case No.:

OLT-23-000678

OLT Case Name:

Bilal v. Hamilton (City)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The hearing will begin on July 8, 2024, at 10:00 a.m. as directed by the Tribunal.

3. The length of the hearing is five (5) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. The Parties may agree to scope and/or remove issues as part of attempting to resolve the issues prior to the hearing on the merits of the appeal. There will otherwise be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. In the event that any part of the hearing proceeds as a video hearing, any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before March 22, 2024, and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before April 5, 2024, and use their best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before April 19, 2024.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement, but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before May 3, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 22 below.

14. On or before May 3, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement unless ordered by the Tribunal.

15. On or before June 17, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before May 31, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before May 17, 2024, and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before June 7, 2024.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 24, 2024, with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. A final hearing plan shall be filed with the Tribunal on or before June 17, 2024. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file-sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, or as may be amended.

23. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties on or before March 1, 2024. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for the Tribunal to adjourn the hearing.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

SUMMARY OF DATES

DATE

EVENT

March 1, 2024

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

March 22, 2024

Exchange of witness lists (names, disciplines and order to be called)

April 5, 2024

Experts Meeting

April 19, 2024

Agreed Statement of Facts

May 3, 2024

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

May 17, 2024

Exchange of Reply Witness Statements (if any)

May 24, 2024

Preliminary Hearing Plan filed with the Tribunal

May 31, 2024

Exchange of visual evidence (if any)

June 7, 2024

Preparation of Joint Document Book

June 17, 2024

Final Work Plan filed with the Tribunal

July 8, 2024

Hearing commences

ATTACHMENT 1

PARTIES/PARTICIPANTS

Parties

1. Ahmed Bilal David Bronskill (416) 597-4299 dbronskill@goodmans.ca

2. City of Hamilton Paula Boutis (905) 546-2424, x. 6889 paula.boutis@hamilton.ca

Participants

1. Richard Butterworth (905) 379-2249 rbarchinc@sympatico.ca

2. David Vander Voet (416) 277-5371 david.vandervoet@icloud.com

ATTACHMENT 2

ISSUES LIST

City of Hamilton

Planning

1. Is the development proposal consistent with the Provincial Policy Statement (2020) (“PPS”) in terms of policies 1.1.3.2 c), d) (efficient land use)?

2. Is a holding provision as described in Official Plan policies F.1.8.1 and F.1.8.2 appropriate for the proposed development to ensure:

   1. The necessary consolidation of land ownership; and,
   2. To ensure the approval of a Draft Plan of Condominium application.

3. Does the proposed development in the public interest and represent good land use planning?

Natural Heritage

4. Is the development proposal consistent with the Provincial Policy Statement (2020) (“PPS”) in terms of policies1.1.h), i), 1.8.1 f) and g), 2.1.1, 2.1.2, 2.1.3, 2.1.5 2.1.7 and 2.1.8 (natural heritage features)?

5. Does the development proposal conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019, as amended) regarding new development within the Natural Heritage System, including but not limited to policies 4.2.2.6 a) and b)?

6. Does the applicant’s Environmental Impact Statement demonstrate that the features and functions of the Core Areas within and adjacent to the subject lands will not be negatively impacted in conformity with the Urban Hamilton Official Plan (“UHOP”), including but not limited to:

   1. C.2.2.2, C.2.2.4, C.2.3, C.2.3.1, to identify the limits of the Core Areas;
   2. C.2.3, C.2.3.3, C.2.5.2, C.2.5.4, C.2.5.5, F.3.2.10 to ensure the proposal has and will not negatively impact the natural features;
   3. C.2.3.3, C.2.5.9 to C.2.5.13 to ensure that appropriate vegetation protection zones have been provided; and,
   4. C.2.5.8, F.3.2.1, F.3.2.1.2, and to provide recommendations on natural area boundaries, mitigation measures, and design measures to accommodate or enhance existing natural features and functions including required setbacks?

7. Does the proposed Zoning By-Law amendment conform to UHOP policy C.2.2.8 and avoid adverse impacts?

8. Has adequate consideration been given to the protection of trees in conformity with UHOP policy C.2.11.1, concerning matters including, but not limited to, the removal of private trees and the ecological impacts on the Core Areas?

Engineering

9. Does the proposed development address stormwater management concerns to properly address on-site drainage and to ensure that new development has no negative impact on offsite drainage, including but not limited to conformity with UHOP policy C.5.4.3?

10. Does the proposed development interfere with, or reduce, the drainage capacity of any natural watercourse or result in drainage problems along watercourses and their tributaries including, but not limited to, conformity with UHOP policy C.5.4.7?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Ahmed Bilal

2. City of Hamilton

3. Ahmed Bilal, in reply (if any)