ISSUE DATE:
December 01, 2023
CASE NO.:
OLT-23-000814
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Dorchester Property Holdings Inc.
Subject:
Application to amend the Zoning By-law – Refusal to approve the application
Description:
To permit the construction of a five-storey residential building with 74 residential units
Reference Number:
Property Address:
6259-6293 Dorchester Road
Municipality/UT:
Niagara Falls/Niagara
OLT Case No.:
OLT-23-000814
OLT Lead Case No.:
OLT-23-000814
OLT Case Name:
Dorchester Property Holdings Inc. v. Niagara Falls (City)
BEFORE:
KURTIS SMITH
Friday, the 1st
MEMBER
Day of December 2023
THESE MATTERS having come before the Tribunal for a hearing event on November 9, 2023;
AND THE TRIBUNAL having issued a decision on November 14, 2023;
THE TRIBUNAL ORDERS that the Procedural Order attached hereto as Schedule “1”
is in full force and effect.
“Euken Lui”
EUKEN LUI ACTING REGISTRAR
Ontario Land Tribunal
Website: [olt.gov.on.ca](http://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.
SCHEDULE 1
PROCEDURAL ORDER
- 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
- The video hearing will begin on Wednesday, October 16, 2024, at 10:00 a.m. virtually at: https://global.gotomeeting.com/join/914098901
Access code: 914-098-901
The parties’ initial estimation for the length of the hearing is eight (8) 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.
The parties are listed in Attachment 1 to this Order. All parties shall attend the first day of the hearing. All parties (or their representatives) shall provide a mailing address, email address, and telephone number to the Tribunal. Any such person who retains a representative (legal counsel or agent) subsequent to the case management conference must advise the other parties and the Tribunal of the representative's name, mailing address, email address and phone number.
The issues are set out in the Issues List attached as Attachment 2. Except for scoping or removing issues, there will be no changes to this list unless the Tribunal permits it. A party who asks for changes may have costs awarded against it.
The order of evidence shall be as listed 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 consent or by Order of the Tribunal.
Requirements Before the Hearing
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 by June 18, 2024. For expert witnesses, a party is to include a copy of the curriculum vitae and the area of expertise in which the witness is proposed to be qualified.
Expert witnesses in the same field shall have a meeting on or before July 18, 2024 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties and the Tribunal on of before October 1, 2024
An expert witness shall prepare an Expert Witness Statement that shall include: an acknowledgement of expert’s duty form, the area(s) of expertise, any reports prepared by the expert, and any other reports or documents to be relied on at the hearing. Copies of this must be provided as in item 13 below. Instead of an Expert 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.
A participant must provide to the Tribunal and the Parties a Participant Statement by August 16, 2024 .
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 and his or her area of expertise, as in item 12 below.
On or before August 16, 2024, the parties shall provide copies of their Witness and/or Expert Witness Statements to the other parties and the Tribunal in accordance with paragraph 19 below.
On or before September 16, 2024, the parties shall provide copies of Reply Witness Statements, if any, to the other parties and the Tribunal.
On or before October 1, 2024, the parties shall provide copies of their visual evidence to all of the other parties. If a model is proposed to be used the Tribunal must be notified before the hearing. All parties must have a reasonable opportunity to view it before the hearing.
The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal case coordinator on of before October 7, 2024.
A person wishing to change written evidence, including witness statements, after witness statements and reply witness statements have been filed must make a written motion to the Tribunal in accordance with the Tribunal’s Rules 34 to 38.
A party who provides the written evidence of a witness to the other parties must have that witness attend the hearing to give oral evidence, unless the Tribunal and the parties are notified at least 7 days before the hearing that the written evidence is not part of their record.
On or before October 9, 2024 the parties shall prepare and file a hearing plan with the Tribunal at least 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. 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.
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 10 MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rules apply to such requests.
A summary of the various filing dates is contained in Attachment 4.
This Member is not seized. So orders the Tribunal.
ATTACHMENT 1 PARTIES
- Dorchester Property Holdings Inc.
Turkstra Mazza Associates
25 Main Street West, Suite 2010 Hamilton, ON L8P 1H6
Jennifer Meader
Tel: 905.529.3476
Email: jmeader@tmalaw.ca
Jessica De Marinis
Tel: 905.529.3476
Email: jdemarinis@tmalaw.ca
- The City of Niagara Falls Sullivan Mahoney LLP 40 Queen St.
St. Catharines, ON L2R 5G3
Patrick Maloney
Tel: 905.688.5403
Email: pmaloney@sullivanmahoney.com
- Niagara Stronger Together Incorporated
Aird & Berlis LLP
181 Bay St., Suite 1800 Toronto, ON M5J 2T99
David Neligan
Tel: 416.865.7751
Email: dneligan@airdberlis.com
ATTACHMENT 2 ISSUES LIST
NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet, but shall not preclude any other party from calling evidence on the issue.
Does the ZBA have appropriate regard for matters of provincial interest set out in Section 2 of the Planning Act, as amended?
Is the ZBA consistent with the Provincial Policy Statement, 2020, considering the following policies:
a. 1.1.1
b. 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4 and 1.1.3.5
c. 1.4.3
d. 1.6.7.4
e. 2.1.5 and 2.1.7
f. 4.6
- Does the ZBA conform to the Growth Plan for the Greater Golden Horseshoe, 2019 as amended, considering the following policies:
a. 1.2.1
b. 2.2.1.2, 2.2.1.3 and 2.2.1.4
c. 2.2.2.1a and 2.2.2.3
d. 2.2.6.1 and 2.2.6.3
e. 4.2.2.6
f. 4.2.10.1
- Does the ZBA conform to the Region of Niagara Official Plan, considering the following policies:
a. 2.2.1, 2.2.2, 2.3.1, 2.3.2
b. 3.1.3, 3.1.13, 3.4.1.1, 3.5.3.1
c. 6.3.1
- Does the ZBA conform to the Niagara Falls Official Plan, considering the following policies;
a. Part 1-Sections 2.4, 3.3, 3.4, 3.5, 3.6, 3.10, 4.1, 4.4, 4.8 and 4.16
b. Part 2-Sections 1.1, 1.2, 1.5, 1.6, 1.7, 1.8, 1.10, 11.1.1, 11.1.2, 11.1.3, 11.1.5, 11.1.10, 11.1.17, 11.1.18, 11.1.19, 11.1.20, 11.1.21, 11.1.25, 11.1.26, 11.1.41, and 11.1.44
c. Part 3-Sections 1.1, 1.2, 1.5, 1.6, 1.6, 1.8, 1.10, 5.1, 5.3, 5.4 and 5.6
d. Part 4- Sections 3.4, 3.5, 4.5, 14.2 and 14.3
Does the ZBA represent good land use planning?
Is the proposed development compatible with the surrounding area, taking into consideration density, housing type and overall impact on the adjacent neighbourhood?
Does the existing transportation infrastructure along Dorchester Road adjacent to the proposed development adequately service vehicular traffic travelling to and from the Subject Lands?
ATTACHMENT 3
ORDER OF EVIDENCE
Dorchester Property Holdings Inc.
The City of Niagara Falls
Niagara Stronger Together Incorporated
Dorchester Property Holdings Inc. in Reply
ATTACHMENT 4
SUMMARY OF FILING DATES
EVENT
DATE
List of Witnesses
June 18, 2024
Expert Witness Meetings
July 18, 2024
Witness and Expert Witness Statements
August 16, 2024
Participant Statement
August 16, 2024
Reply Witness Statement
September 16, 2024
Agreed Statement of Facts & Remaining Issues
October 1, 2024
Visual Evidence
October 1, 2024
Joint Document Book
October 7, 2024
Hearing Plan
October 9, 2024
OLT Hearing Commences
October 16, 2024