Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 22, 2023

CASE NO(S).: OLT-22-002825 (Formerly PL190276)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Empire Communities Subject: Proposed Official Plan Amendment No. OPA 6 Municipality: City of Thorold OLT Case No.: OLT-22-002825 Legacy Case No.: PL190276 OLT Lead Case No.: OLT-22-002825 Legacy Lead Case No.: PL190276 OLT Case Name: Empire Communities v. Thorold (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Empire Communities Appellant: Lily Ruggi Appellant: Shane Webber Subject: By-law No. 60-2019 Municipality: City of Thorold OLT Case No.: OLT-22-002826 Legacy Case No.: PL190277 OLT Lead Case No.: OLT-22-002825 Legacy Lead Case No.: PL190276

Heard: October 31, 2023 via Teleconference

APPEARANCES:

Parties	Counsel
Shane Webber	Callum Shedden
City of Thorold	Patrick Harrington

MEMORANDUM OF ORAL DECISION DELIVERED ON BY S. DEBOER ON OCTOBER 31, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal was the requested Telephone Conference Call (“TCC”) by the City of Thorold (“City”) concerning the appeal by Shane Webber (“Appellant”) against the City pursuant to s. 34(19) of the Planning Act.

2Mr. Webber is the remaining Appellant to the City of Thorold’s City-wide Comprehensive Zoning By-law (“Comprehensive ZBL”).

3The Parties informed the Tribunal that since the time of the last Case Management Conference in June 2022, a Tribunal-led mediation has not taken place. As such, it was the City’s request that the Tribunal set a date for a five (5) -day hearing to resolve the outstanding issues with Mr. Webber.

OPPORTUNITIES FOR RESOLUTION

4The Tribunal asked the Parties if a Tribunal-led mediation would still be a viable option to, at a minimum, reduce the issues for a hearing of the merits. The Parties agreed that this would still be a welcomed option. The Tribunal will direct the case coordinator who has carriage of this file to direct the Parties to make a request for Tribunal-led mediation.

PROCEDURAL ORDER AND ISSUES LIST

5The Tribunal received and reviewed the draft Procedural Order and Issues List. The Tribunal approves of its contents and the Procedural Order and Issues List will be used to govern a Hearing of the Merits.

SCHEDULING OF A HEARING

6While the Tribunal agrees that a Tribunal-led mediation will be helpful in resolving the issues between the Parties, the Tribunal feels that the scheduling of a Hearing of the Merits will help expediate the process of resolution. As such, the Tribunal has scheduled a Hearing of the Merits that will occur by video conference beginning Monday, March 25, 2024, at 10 a.m. for a duration of four (4) days.

7Parties 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

8Parties 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

9Persons 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 same as mentioned above.

10Individuals 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

11THE TRIBUNAL ORDERS that a Hearing of the Merits will commence on Monday March 25, 2024, at 10 a.m. for a duration of four (4) days.

12The attached Procedural Order is to govern the procedures leading up to and including the Video Hearing as set out in Schedule 1 to this Order and is in full force and effect on the issue date of the Order.

13There will be no further notice.

14The Member is not seized.

“S. deBoer”

S. DEBOER 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-22-002826

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Shane Webber Subject: By-law No. 60-2019 Municipality: City of Thorold OLT Case No.: OLT-22-002826 Legacy Case No.: PL190277 OLT Lead Case No.: OLT-22-002825 Legacy Lead Case No.: PL190276

PROCEDURAL ORDER FOR VIDEO HEARING

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 video hearing will begin on Monday, March 25, 2024 at 10:00 a.m., for a total of 4 hearing days. Videoconference details are to be confirmed by the Tribunal. No further notice shall be required. All Parties shall attend the first day of the hearing.

3. While the parties’ initial estimation for the length of the hearing is 4 hearing 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 to the hearing identified at the case management conference held on October 31, 2023 are set out in Attachment 1 to this Order.

5. The issues are set out in the Issues List attached as Attachment 2 to this Order. 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.

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. 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 (https://olt.gov.on.ca/tribunals/lpat/).

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 Friday, December 1, 2023 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 Friday, January 5, 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 coordinator on or before Friday, January 12, 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 Friday, January 19, 2024, the parties shall provide copies of their witness and/or expert witness statements to the other parties and to the LPAT case coordinator and in accordance with paragraph 22 below.

14. Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before Tuesday, February 18, 2024 in accordance with section 22 below.

15. On or before Monday, March 4, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with section 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. The parties shall cooperate to prepare a joint document book which shall be provided to the OLT case coordinator pursuant to the directions provided by the OLT case coordinator, on or before Friday, March 15, 2024.

17. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.

18. 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.

19. The parties shall prepare and file a draft hearing plan with the Tribunal on or before Wednesday, March 20, 204 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.

20. All filing shall be electronic 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 email shall be governed by the Rule 7.

21. 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

ATTACHMENT 1

LIST OF PARTIES

1. City of Thorold (Municipality)

Patrick Harrington Aird & Berlis LLP 416 863 1500 pharrington@airdberlis.com

2. Shane Webber (Appellant) Callum Sheddon Daniel & Partners LLP 905 688 9411 sheddenc@niagaralaw.ca

ATTACHMENT 2 ISSUES LISTS

The identification of an issue does not mean that all parties agree that such issues, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Board at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Board at the hearing will be a matter of evidence and argument at the hearing.

SHANE WEBBER

1. Do the parking space requirements contained in s. 4.1 of Comprehensive Zoning Bylaw 60(2019) for single detached dwellings, semi-detached dwellings, townhouse dwellings, apartment buildings, mixed-use buildings and private road developments (hereinafter collectively referred to as the “Parking Requirements”) have appropriate regard to matters of provincial interest contained at s. 2 of the Planning Act? In particular but not limited to the following matters:

a. Do the Parking Requirements have appropriate regard to the adequate provision of a full range of housing, including affordable housing?

b. Do the Parking Requirements have appropriate regard to the orderly development of safe and healthy communities?

2. Do the proposed residential zoning categories contained in Part 6 of Comprehensive Zoning Bylaw 60(2019) (hereinafter referred to as the “Zoning Categories”) have appropriate regard to the matters of provincial interest set out in Issue #1 above?

3. Do the Parking Requirements contravene s. 35.1 of the Planning Act?

4. Are the Parking Requirements consistent with the Provincial Policy Statement, 2020? In particular but not limited to the following policy sections:

Policy Sections 1.1.1, 1.1.2 – Healthy, Liveable and Safe Communities;

Policy Sections 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.1.3.6 – Settlement Areas;

Policy Sections 1.4.1, 1.4.3 – Housing;

Policy Section 1.6.7.4 – Transit and Active Transportation; and

Policy Section 1.8.1 – Energy Conservation, Air Quality and Climate Change.

5. Are the Parking Requirements in conformity with the Growth Plan for the Greater Golden Horseshoe, 2019? In particular, but not limited to the following policy sections:

Policy Section 1.2.1 – Guiding Principles;

Policy Section 2.2.1 – Managing Growth;

Policy Section 2.2.2 – Delineated Built-up Areas;

Policy Section 2.2.6 – Housing;

Policy Section 3.2.3 – Moving People;

Policy Section 4.2.10 – Climate Change; and

Policy Section 5.2.4 – Growth Forecasts.

6. Are the Parking Requirements in conformity with the Niagara Region Official Plan? In particular, but not limited to the following policy sections:

Policy Section 4.A.1 – Growth Management Objectives;

Policy Section 4.B.3 – Housing Growth;

Policy Sections 4.C.1, 4.C.2, 4.C.3, 4.C.4 – Residential Intensification;

Policy Sections 4.G, 4.G.1, 4.G.3, 4.G.4 – Urban Growth;

Policy Section 4.J.4 – Urban Design and the Public Realm;

Policy Sections 7.A.3 – Air Quality and Climate Change; and

Policy Section 11.A – Residential Areas and Housing.

7. Are the Parking Requirements in conformity with the City of Thorold Official Plan? In particular, but not limited to the following policy sections:

Policy Sections A5.4, A5.6.f) – Intensification;

Policy Section B1.1.3 – Residential Intensification;

Policy Section B1.1.4 – Secondary Dwelling Units;

Policy Section B1.2.4.1 – Residential and Mixed Use Intensification; and

Policy Section D2.7 – Active Transportation.

8. Do the Parking Requirements represent good land use planning and are they in the public interest?

9. Does the maximum driveway width requirement contained in s. 4.4.2(b) of Comprehensive Zoning Bylaw 60(2019) cause or contribute to any consistency and conformity issues set out in Issues #1-8 above?

10. Are the Zoning Categories restrictive to infill development and therefore non-compliant with applicable land use planning policies which promote infill development?

11. Are the Zoning Categories prescriptive and encourage a segregation of land uses and therefore non-compliant with applicable land use planning policies which encourage a range and mix of housing types and the creation of vibrant and complete communities?

12. Absent any direction in the City’s Official Plan, should Comprehensive Zoning Bylaw 60(2019) provide guidance or direction on areas that should or can support residential intensification? If so, does Comprehensive Zoning Bylaw 60(2019) provide appropriate guidance or direction on areas that should or can support residential intensification?

13. Are the differences between the regulations in the Zoning Categories sufficient to warrant separate zoning categories?

14. Do the Zoning Categories reflect current and modern development standards?

15. Are the Zoning Categories compatible with the Parking Requirements?

16. Would less residential zoning categories encourage infill development and represent good land use planning?

17. Do the Zoning Categories represent good land use planning and are they in the public interest?

18. Does Comprehensive Zoning Bylaw 60(2019) zone the property known as 1970 Decew Road, Thorold, Ontario in an appropriate manner and in accordance with the applicable land use planning policies? Resolved in OLT-22-00398

ATTACHMENT 3

ORDER OF EVIDENCE

1. City of Thorold [non-opinion overview]
2. Shane Webber [in-chief]
3. City of Thorold [response]
4. Shane Webber [reply, if any]