Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 24, 2023
CASE NO(S).: OLT-22-002920 (Formerly PL140601)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 549367 Ontario Limited
Appellant: 783878 Ontario Limited
Appellant: 820 Barton St. Inc.
Appellant: Jim & Elsie Chappel; and others
Subject: Proposed Official Plan Amendment No. 17 UHOP
Legislative Authority: Subsection 17(24) of the Planning Act, R.S.O. 1990, C. P. 13, as amended
Municipality: City of Hamilton
OLT Case No.: OLT-22-002920
OLT File No.: OLT-22-002920
Legacy Case No.: PL140601
Legacy File No.: PL140601
OLT File No: 549367 Ontario Limited v. Hamilton (city)
Heard: November 17 and 24, 2022 by Telephone Conference Call and February 6, 2023, by written submission
APPEARANCES:
Parties
Counsel
City of Hamilton (“City”)
Andrew Biggart
Peter Djeneralovic
Patrick Harrington (as agent on November 17) Nancy Smith Jennifer Meader
783878 Ontario Ltd. o/a Bucci Homes (“Bucci Homes”)
Denise Baker
Valery Homes Stoney Creek Limited (“Valery Homes”)
Patrick Harrington
DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This follow-up Decision issues in the above captioned matter with respect to the Appeal advanced by the second Appellant, Peter Djeneralovic. The prior Decision issued on January 19, 2023 addressed case management with respect to the second remaining Appeal under this Case File number, which is now advanced by Losani Homes (Winona) Ltd.
2As provided for in paragraph 23 of the CMC Decision issued on January 19, 2023, because counsel for Mr. Djeneralovic and the City had not provided a revised Procedural Order and Issues List following the two attendances, due to an impasse relating to the order of the witnesses, the scheduling of the hearing of this Appeal was withdrawn and held in abeyance. The scheduling of the hearing and provision of notice with respect to the merits hearing was deferred pending the submission of a revised Procedural Order and Issues List.
3The Tribunal was advised by counsel on January 29, 2023 in writing that the parties had, back on January 5, resolved their differences and they were in a position to now provide a draft Procedural Order and Issues List for the Tribunal’s review. The original dates scheduled by the Tribunal remained available and with those dates, and one amendment that was directed to be made, the Tribunal received a revised Procedural Order and Issues List on February 6, 2023. The Tribunal will accordingly now issue the Procedural Order and schedule, and provide notice of, the hearing on the strength of such written submissions.
PROCEDURAL ORDER
4Appended to this Decision and Order as Attachment 1 is the Procedural Order and Issues List which will now govern all further pre-hearing procedural requirements and the hearing of this Appeal.
HEARING ON THE MERITS
5The five-day video hearing of the Appeal will commence at 10 a.m. on Monday, July 17, 2023, and continue to Friday, July 21, 2023.
6The Parties 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:
GoTo Conference Link: https://global.gotomeeting.com/join/692665589
Audio-Only Line: 1-888-299-1889 (Toll Free) OR +1 (647) 497-9373
Access code: 692-665-589
7All Parties, witnesses or observers 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.
8Persons 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 as mentioned above.
9Individuals 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 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.
10There will be no further notice with respect to the hearing and the Panel Member is not seized.
11The Tribunal so orders and provides these CMC directives for the purposes of the case management of this Appeal.
“David L. Lanthier”
DAVID L. LANTHIER
VICE-CHAIR
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.
CASE NO(S).: OLT-22-002920 (formerly PL140601)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2261305 Ontario Inc.
Appellant: 549367 Ontario Ltd.
Appellant: 783878 Ontario Ltd.
Appellant: Nick and Anna DeFilippis; and others
Subject: Proposed Official Plan Amendment No. 17UHOP
Municipality: City of Hamilton
OLT Case No.: PL140601
OLT File No.: PL140601
OLT Case Name: DeFilippis v. Hamilton (City)
- 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 of the appeal of Peter Djeneralovic will begin on July 17, 2023 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is 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.
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).
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.
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 March 20, 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.
Expert witnesses in the same field shall have a meeting on or before April 7, 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 OLT case co-ordinator on or before May 12, 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 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, as in paragraph 13 below.
On or before June 5, 2023, the parties shall provide copies of their witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below. Any non-opinion overview evidence to be presented by a City of Hamilton witness shall be disclosed in the witness statement of the witness who will be presenting such evidence.
On or before June 5, 2023, 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.
On or before June 30, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before June 26, 2023, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before June 26, 2023 in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 10, 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 July 10, 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 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.
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 to Sample Procedural Order
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 1
ISSUES LIST
Issues of Peter Djeneralovic
Should any of the subject or adjacent lands be designated Natural Heritage?
Should any of the proposed Natural Heritage designations on the subject or adjacent lands not be appropriate, what is the appropriate designation for those lands?
ATTACHMENT 2
LIST OF PARTIES/PARTICIPANTS
- Peter Djeneralovic
Turkstra Mazza Associates
15 Bold Street
Hamilton, ON L8P 1T3
Jennifer Meader/Nancy Smith
Tel: 905-529-3476
Solicitors for Djeneralovic
- City of Hamilton
Ritchie Ketcheson Hart & Biggart LLP
1 Eva Road, Suite 206
Toronto, ON. M9C 4Z5
Andrew Biggart
Tel: 416-622-6601
Solicitors for Hamilton
ATTACHMENT 3
Order of Evidence
Non-opinion overview evidence by Hamilton – 15 minute time limit, subject to the direction of the presiding Panel
Peter Djeneralovic
City of Hamilton
Peter Djeneralovic