Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 15, 2023
CASE NO(S).:
OLT-23-000521
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/ Appellant:
Sifton Properties Limited
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a residential development consisting of single detached units and townhouses
Reference Number:
OP-04-18
Property Address:
277, 299 and 301 Hardy Road
Municipality/UT:
Brantford/Brant
OLT Case No.:
OLT-23-000521
OLT Lead Case No.:
OLT-23-000521
OLT Case Name:
Sifton Properties Ltd. v. Brantford (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/ Appellant:
Sifton Properties Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a residential development consisting of single detached units and townhouses
Reference Number:
PZ-15-18
Property Address:
277, 299 and 301 Hardy Road
Municipality/UT:
Brantford/Brant
OLT Case No.:
OLT-23-000522
OLT Lead Case No.:
OLT-23-000521
PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Sifton Properties Limited
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description:
To permit a residential development consisting of single detached units and townhouses
Reference Number:
29CD-18503
Property Address:
277, 299 and 301 Hardy Road
Municipality/UT:
Brantford/Brant
OLT Case No.:
OLT-23-000523
OLT Lead Case No.:
OLT-23-000521
Heard:
December 11, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Sifton Properties Limited
Ira T. Kagan
Sarah R. Kagan
Douglas Pateman
City of Brantford
Geoff Daley
Brantford Golf and Country Club
Courtney Boyd
Granite Property Nominee Inc.
Leo F. Longo
MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON DECEMBER 11, 2023 AND ORDER OF THE TRIBUNAL
1This was the second Case Management Conference (“CMC”) in the matter of an appeal by Sifton Properties Limited (“Appellant”) from the failure of the City of Brantford (“City”) to approve the requested Official Plan Amendment (“OPA”), pursuant to s. 22(7) of the Planning Act (“Act”), to approve the requested Zoning By-law Amendment (“ZBA”), pursuant to s. 34(11) of the Act, and approval of a Plan of Subdivision, pursuant to s. 51(34) of the Act, for the properties located at 277, 299 and 301 Hardy Road.
2The Applicant is seeking to permit a residential development consisting of single detached units and townhouses by consolidating three properties into one parcel.
PRELIMINARY MATTER
3Prior to the CMC, the Tribunal received communication from Parkside Hills Inc. that they will only be seeking to be a Participant in these proceedings. The Tribunal grants Parkside Hills Inc. Participant status.
PROCEDURAL ORDER AND ISSUES LIST
4At the CMC, Mr. Kagan asked that Douglas Pateman be added as a Counsel for the Appellant.
5The Parties provided the Tribunal with an updated version of the draft Procedural Order (“PO”) and Issues List (“IL”), dated December 9, 2023. The Tribunal is in receipt of the PO. The Tribunal has reviewed and approved the PO and it is appended as Schedule 1 to this Decision.
MEDIATION
6At the CMC, Mr. Kagan requested a Tribunal-led mediation on the consent of other Parties. He also stated that even though Parkside Hills Inc. is now a Participant in these proceedings, they are open to attend the mediation.
7The Tribunal directed the Parties to contact the assigned Case Coordinator to request a mediation assessment.
8The Tribunal directives above are so Ordered.
9This Member is not seized.
10There will be no further notice.
“P. Tomilin”
p. tomilin
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.
SCHEDULE 1
CASE NO(S).: OLT-23-000521
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/ Appellant:
Sifton Properties Limited
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a residential development consisting of single detached units and townhouses
Reference Number:
OP-04-18
Property Address:
277, 299 and 301 Hardy Road
Municipality/UT:
Brantford/Brant
OLT Case No.:
OLT-23-000521
OLT Lead Case No.:
OLT-23-000521
OLT Case Name:
Sifton Properties Ltd. v. Brantford (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/ Appellant:
Sifton Properties Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a residential development consisting of single detached units and townhouses
Reference Number:
PZ-15-18
Property Address:
277, 299 and 301 Hardy Road
Municipality/UT:
Brantford/Brant
OLT Case No.:
OLT-23-000522
OLT Lead Case No.:
OLT-23-000521
PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Sifton Properties Limited
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description:
To permit a residential development consisting of single detached units and townhouses
Reference Number:
29CD-18503
Property Address:
277, 299 and 301 Hardy Road
Municipality/UT:
Brantford/Brant
OLT Case No.:
OLT-23-000523
OLT Lead Case No.:
OLT-23-000521
The Tribunal orders that:
- 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 Tuesday July 15, 2024 and will be conducted virtually. Link: https://meet.goto.com/680885805. Access code: 680-885-805 Dial in details: 1-888-299-1889 (Toll Free) or +1 (647) 497-9373.The access code is 680-885-805.
The length of the hearing is twelve (12) 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 and participants identified at the case management conference are set out in Attachment 1 (see Attachment 3 for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 4 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.
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.
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
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 Friday, March 1, 2024 and in accordance with paragraph 21 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.
Expert witnesses in the same field shall have a meeting on or before Friday, April 12, 2024 and use 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 Friday, April 26, 2024.
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.
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, in accordance with paragraph 13 below.
On or before Friday, May 24, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT Case Co-ordinator and in accordance with paragraph 21 below.
On or before Friday, May 24, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement.
Parties may provide to all other parties and the OLT Case Co-ordinator a written response to any written evidence on or before Friday, June 14, 2024 in accordance with paragraph 21 below.
On or before Friday, June 28, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, 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 filed with the OLT Case Co-ordinator on or before Friday, July 5, 2024.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Tuesday, July 5, 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. 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. 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.
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 Key Dates
Date
Event
Wednesday August 30, 2023
First Case Management Conference
Tuesday December 11, 2023
Second Case Management Conference
Friday March 1, 2024
Exchange Witness Lists
Friday April 12, 2024
Meeting of Like Experts
Friday April 26, 2024
Agreed Statement of Facts
Friday May 24, 2024
Witness Statements and Participant Statement
Friday June 14, 2024
Reply Witness Statements
Friday June 28, 2024
Visual Evidence
Friday July 5, 2024
File Joint Document Book and Hearing Plan.
Friday July 5, 2024
Notify the Tribunal if a witness is not going to provide oral evidence
Monday July 15, 2024
Hearing commences
Attachment 1: Parties and Participants
Party
Representation
Sifton Properties Limited
Ira T. Kagan/ Sarah R. Kagan/ Douglas Pateman Kagan Shastri DeMelo Winer Park LLP 188 Avenue Road Toronto, ON, M5R 2J1 T: 416-368-2100 ext. 226/ 243 / 261 E: ikagan@ksllp.ca / skagan@ksllp.ca / dpateman@ksllp.ca
City of Brantford
Geoff Daley Legal Counsel and Head of Litigation City of Brantford 100 Wellington Square, P.O Box 515 Brantford, ON, N3T 6L6 T: 519-759-4150 ext. 5150 E: gdaley@brantford.ca
Brantford Golf and Country Club
Courtney Boyd Waterous Holden Amey Hitchon LLP P.O Box 1510 20 Wellington Street Brantford, ON, N3T 5V6 T: 519-751-6413 E: cboyd@waterousholden.com
Granite Property Nominee Inc.
Leo F. Longo Aird & Berlis LLP Brookfield Place 181 Bay St. #1800 Toronto, ON, M5J 2T9 T: 416-865-7778 E: llongo@airdberlis.com
Participant
Representation
Mr. Gerhardus (Jerry) Klievik (on behalf of The Hardy Road Area Citizens Committee
Gerhardus (Jerry) Klievik (on behalf of The Hardy Road Area Citizens Committee (“THRACC”) Self- Represented T: 519-759-3334 E: jklievik@gmail.com
Parkside Hills Inc.
Scott Snider and Anna Toumanians Turkstra Mazza Associates 15 Bold Street, Hamilton, ON, L8P 1T3 T: 905-529-3476 E: ssnider@tmalaw.ca / atoumanians@tmalaw.ca
Ms. Graham Marlene
Ms. Graham Marlene 114 Golf Road Brantford, ON., N3T 5L8 T: 519-759-5355 E: Dm_graham@sympatico.ca
Brant Land Trust
Ms. Mary Lou Knechtel Brant Land Trust 17 Oxbow Lane Brantford, ON., N3T5L6 T: 519-861-5336 E: lou@brantlandtrust.ca
Attachment 2: Issues List
City of Brantford Issues List
Do the proposed Official Plan Amendments (“OPA”) and Zoning By-law Amendments (“ZBA”) have sufficient regard to matters of provincial interest as outlined in sections 2 (a), (e), (f), (h), (j), (k), (l), (m), (n), (o), (p), (q) and (r) of the Planning Act?
Are the proposed OPA and ZBA:
a) consistent with the Provincial Policy Statement 2020 (“PPS”), specifically: Part III, Part IV and Part V policies 1.0, 1.1.1, 1.1.3.2, 1.1.5.2, 1.2.1, 1.2.6.1, 1.2.6.2, 1.3.1, 1.4.3, 1.8, 2.4.1, 2.0, 2.1.1, 2.1.2, , 2.6, 3.1.1(c), 3.1.2(d), 3.1.4, 3.1.6, 3.1.7, 4.0 and associated definitions;
b) conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe Growth Plan 2020 (“Growth Plan”) specifically sections: 2.2.1.4, 2.2.6, 3.2.6, 3.2.7, 4.1, 4.2.1, 4.2.2, 4.2.3 and associated schedules and definitions;
Is the development application in conformity with the City’s current Official Plan? Specifically, is the proposed development in conformity with sections 3.1(b), (d), (e) and (f), 3.3(b), 3.5(c) and (d), 5.6.1, 6.9.18 and 8.0?
Should the Draft Plan of Vacant Land Condominium be approved?
What conditions, if any should be imposed if the Draft Plan of Vacant Land Condominium is approved?
Do the NPC-300 guidelines apply to the development application, and if so, does the development application and any potential mitigation design elements have appropriate regard for the NPC-300 guidelines?
Do the MECP D-6 Guidelines apply to the development application, and if so, does the development application and any potential mitigation design elements have appropriate regard for the MECP D-6 guidelines?
Is the development application in its current form compatible with the existing character of the neighbourhood?
Is the development application in its current form compatible with all conditions imposed by the Ontario Municipal Board pursuant to decision No. PL100472.
Does the development application in its current form represent good planning and is it in the public interest?
What Holding conditions, if any, should be imposed to ensure that any issues will be adequately addressed and implemented through the Draft Plan of Vacant Land Condominium? In particular, are the following holding provisions appropriate in this case:
a. THAT the Draft Plan of Vacant Land Condominium is approved and the draft plan is finalized and an agreement entered into; and,
b. Clearance from the Ministry of Natural Resources and Forestry (MNRF) that the legislative requirements of the Endangered Species Act (ESA) have been appropriately addressed which may include, but may not be limited to, the issuance of an authorization under the ESA from the MNRF, or the applicant demonstrating to the satisfaction of the MNRF that species at risk will not be impacted by the proposed development; and
c. Required condominium and/or development agreements with the City have been entered into to address, among other matters, the operation and maintenance of the sanitary pumping station and forcemain, and stormwater management system
Brantford Golf and Country Club Issues List
Is the Transportation Impact Study submitted by the Applicant up to date and does it demonstrate that there are no adverse traffic impacts caused by the proposed development?
Does the Transportation Impact Study consider the alignment with existing land use within the area?
Does the Transportation Impact Study consider the high volume of pedestrian use on Hardy Road?
Has the Transportation Study been updated to consider the impact of all proposed and current residential subdivision in the area?
Has the Application for the development provided for traffic calming measures along Hardy Road? Are these proposed traffic calming measures sufficient to address any adverse traffic impacts?
What contributions, if any, should the Applicant make towards costs of implementing transportation infrastructure improvements on Hardy Road to accommodate the proposed development?
Granite Property Nominee Inc. Issues List
Is the development application in its current form compatible with the approved industrial zoning and full range of permitted uses on the adjacent industrial lands?
Do the NPC-300 guidelines apply to the development application, and if so, does the development application and any potential mitigation design elements have appropriate regard for the NPC-300 guidelines with recognition of existing industrial zoning and full potential build out of the complete range of industrial uses on adjacent lands?
Do the MECP D-6 Guidelines apply to the development application, and if so, does the development application and any potential mitigation design elements have appropriate regard for the MECP D-6 guidelines with recognition of existing industrial zoning and full potential build out of the complete range of industrial uses on adjacent lands?
What conditions, if any should be imposed if the Draft Plan of Vacant Land Condominium is approved, specifically with regard to implementation of any recommendations from a noise study or land use compatibility study?
Has the Traffic Study appropriately considered the full build out of all lands zoned for industrial uses?
Note 1: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.
Note 2: Where two or more parties raise the same technical issue, they can co-ordinate and rely upon an independent expert. Where, however, a single party alone raises a technical issue then that party must call technical evidence in support of that issue from a qualified independent expert.
Attachment 3: Meaning of terms used in the Procedural Order:
A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
- direct examination by the party presenting the witness;
- direct examination by any party of similar interest, in the manner determined by the Tribunal;
- cross-examination by parties of opposite interest;
- re-examination by the party presenting the witness; or
- another order of examination mutually agreed among the parties or directed by the Tribunal.
Attachment 4: Order of Evidence
Order of Evidence
Sifton Properties Limited
City of Brantford
Brantford Golf and Country Club
Granite Property Nominee Inc.
Sifton Properties Limited - Reply (if any)