Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 14, 2023
CASE NO.: OLT-22-003911
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: 1376412 Ontario Ltd. (Zeina Homes)
Subject: Application to amend the Zoning By-law – Refusal of application
Description: To permit an 18-lot subdivision
Reference Number: ZAC-17-064
Property Address: 655 Cramer Road
Municipality/UT: Hamilton/Hamilton
OLT Case No: OLT-22-003911
OLT Lead Case No: OLT-22-003911
OLT Case Name: 1376412 Ontario Ltd. v. Hamilton (City)
PROCEEDING COMMENCED UNDER section 51(39) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: 1376412 Ontario Ltd. (Zeina Homes)
Subject: Proposed Plan of Subdivision - Refusal by Approval Authority
Description: To permit an 18-lot subdivision
Reference Number: 25T201710
Property Address: 655 Cramer Road
Municipality/UT: Hamilton/Hamilton
OLT Case No: OLT-22-003912
OLT Lead Case No: OLT-22-003911
BEFORE: S. BOBKA, MEMBER Tuesday, the 14th day of February, 2023
THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on June 19, 2023.
“Euken Lui”
EUKEN LUI ACTING REGISTRAR
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.
ATTACHMENT “A”
ISSUE DATE: February 14, 2023 OLT Case No. OLT-22-003911
Ontario Land Tribunal
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 1376412 Ontario Ltd. (Zeina Homes)
Subject: Application to amend Zoning By-law – Refusal of application
Description: To permit an 18-lot subdivision and 1 block for a stormwater management facility
Reference Number: ZAC-17-064
Property Address/Description: 655 Cramer Road
Municipality/UT: Hamilton/Hamilton
OLT Case No.: OLT-22-003911
OLT Lead Case No.: OLT-22-003911
OLT Case Name: 1376412 Ontario Ltd. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 1376421 Ontario Ltd. (Zeina Homes)
Subject: Proposed Plan of Subdivision – Refusal by Approval Authority
Description: To permit an 18-lot subdivision and 1 block for a stormwater management facility
Reference Number: 25T201710
Municipality/UT: Hamilton/Hamilton
OLT Case No.: OLT-22-003912
OLT Lead Case No.: OLT-22-003911
- 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 June 19, 2023 at 10:00 a.m. through video link https://global.gotomeeting.com/join/344779885. When prompted, enter the code 344-779-885.
The parties’ initial estimation for the length of the hearing is 10 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.
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 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.
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.
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 December 15, 2022 and in accordance with paragraph 23 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.
All parties shall exchange all information and documents that are relevant to the disposition of the issues in this proceeding on or before January 26, 2023.
If any party takes the position that information or documents that are relevant to the disposition of the issues in this proceeding have not been disclosed by another party or other parties in accordance with paragraph 10 above, the matter shall be dealt with by way of a motion in writing. The moving party shall serve a notice of written motion on or before February 24, 2023 and the motion shall proceed in accordance with the timing set out in Rule 10.3 of the Tribunal’s Rules.
Expert witnesses in the same field shall have a meeting on or before March 17, 2023 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 Tribunal case co-ordinator on or before March 24, 2023.
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 23 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 23 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 15 below.
On or before May 5, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the Tribunal case co-ordinator and in accordance with paragraph 23 below.
On or before May 5, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before May 15, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before May 26, 2023, the parties shall provide copies of their reply witness statements and expert’s reply witness statements to the other parties and to the Tribunal case co-ordinator and in accordance with paragraph 23 below.
On or before June 2, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 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 shared with the Tribunal case co-ordinator on or before June 9, 2023.
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 June 9, 2023 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.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
ATTACHMENT 1
PARTIES & PARTICIPANTS
Parties
- 1376412 Ontario Ltd. (Zeina Homes)
Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3
Nancy Smith Tel: 905.529.3476 Email: nsmith@tmalaw.ca
Jennifer Meader Tel: 905.529.3476 Email: jmeader@tmalaw.ca
- City of Hamilton
50 Main Street East, 5th Floor Hamilton, ON L8P 4W7
Patrick MacDonald Tel: 905.546.2424 Ext. 4708 Email: patrick.macdonald@hamilton.ca
- Darling International Canada Inc.
Willms & Shier Environmental Lawyers LLP 1 Toronto Street, Suite 900 Toronto, ON M5C 2V6
Marc McAree Tel: 416.862.4820 Email: mmcaree@willmsshier.com
Lauren Wortsman Tel: 416.642.4873 Email: lwortsman@willmsshier.com
ATTACHMENT 2
ISSUES LIST
- Is the proposal consistent with the Provincial Policy Statement in protecting the adjacent industrial facility from incompatible land uses and development with respect to Policies 1.2.6.1 and 1.2.6.2?
- Does the proposal conform to the Growth Plan for the Greater Golden Horseshoe and Greenbelt Plan in regard to land use compatibility between the existing industrial facility and development of sensitive land uses with respect to Policy 2.2.5.8?
- Does the proposal comply with the Greensville Rural Settlement Area Plan policies in Volume 2, Chapter A of the Rural Hamilton Official Plan in protecting the adjacent industrial facility from incompatible development as per policies A.3.5.5.3?
- What are the technical elements of Darling International Canada Inc.’s (Darling) Facility’s operations including raw material inputs and processing that give rise to odour and noise impacts?
- What technical efforts has Darling made to deploy operational changes and best available technology to mitigate odour and noise impacts from the Darling Facility’s operations?
- What is the history of odour complaints about the Darling Facility from residents of existing nearby residential developments despite significant investment by Darling in odour mitigation technologies and best practices over the years?
- What are the expected odour impacts to the proposal from the Darling Facility and are there any available mitigation measures?
- What are the expected noise impacts to the proposal from the Darling Facility and are there any available mitigation measures?
- How are odour and noise perceived by receptors, and what is the likelihood of odour and noise complaints about the Darling Facility if the proposal is built?
- If approved and built, will the proposal result in an increased risk in exposure for Darling to civil claims and/or regulatory legal proceedings pertaining to odour and noise, and what are the implications of same for Darling and the Darling Facility?
- What is the appropriate classification of the Darling Facility for land-use compatibility purposes in reference to the Planning Act (ss.3(1) and 51(24)), the Provincial Policy Statement (ss. 1.2.6.1, 1.2.6.2, and 6.0), the Provincial D-6 Guidelines for Compatibility Between Industrial Facilities (in its entirety), the Growth Plan for the Greater Golden Horseshoe (s. 2.2.5(8)), and the Greensville Rural Settlement Area Plan of the Rural Hamilton Official Plan (ss. 3.5.4.2 and 3.5.5.10), and the Greenbelt Plan (s. 1.2.2(4))? Key provisions identified with others to which the City and Darling may refer during the hearing.
- How does the Ministry of the Environment, Conservation and Parks’ D-6 Guidelines for Compatibility Between Industrial Facilities including the applicable separation distance apply to the proposal and is the proposal incompatible with the Darling Facility?
- Does the proposal implement appropriate odour mitigation measures and/or maintain appropriate separation distance from the adjacent industrial facility in accordance with the Ministry of Environment, Conservation and Parks’ D-6 Compatibility between Industrial Facilities and Sensitive Uses (D-6 Guidelines)?
- How is the Darling Facility classified under the D-6 Guidelines? Do the 14 new residential lots fall within the separation distance required by the D-6 Guidelines for that classification and if so, is that good planning and appropriate?
- Does the proposal comply with the Noise and Vibration Emission policies of the Rural Hamilton Official Plan, especially policy B.3.6.3.10 and Policy 1.2.6.1 of the Provincial Policy Statement?
- Do the proposed residential lots meet the zoning requirements in the Town of Flamborough Zoning By-law No. 90-145-Z, as it relates to Provision 7.3.14 (b) of the Settlement Residential “R2-14”(H), Modified Holding Zone?
- Does the proposal conform to the criteria for the approval of Plan of Subdivisions as per Policies F.1.14.1.2 (a) and F.1.14.1.2 (b) of the Rural Hamilton Official Plan?
- Does the proposal have sufficient regard for matters of health, safety and welfare of present and future inhabitants as per Section 51(24) of the Planning Act?
- If approved by the Tribunal, what are the appropriate conditions of draft plan of subdivision approval?
ATTACHMENT 3
ORDER OF EVIDENCE
- 1376412 Ontario Ltd. (Zeina Homes)
- City of Hamilton
- Darling International Canada Inc.
- 1376412 Ontario Ltd. in Reply
ATTACHMENT 4
SUMMARY OF FILING DATES
| EVENT | DATE |
|---|---|
| Second Case Management Conference | November 25, 2022 |
| List of Witnesses | December 15, 2022 |
| Exchange of Information and Documents | January 26, 2023 |
| Service of Notice of Written Motion for Production (if any) | February 24, 2023 |
| Expert Witness Meetings | March 17, 2023 |
| Agreed Statement of Facts | March 24, 2023 |
| Participant Statements | May 5, 2023 |
| Witness and Expert Witness Statements | May 5, 2023 |
| Reply Witness Statements | May 26, 2023 |
| Visual Evidence | June 2, 2023 |
| Hearing Plan | June 9, 2023 |
| Joint Document Book | June 9, 2023 |
| OLT Hearing Commences | June 19, 2023 |