Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 05, 2023
CASE NO(S).: OLT-22-002549 OLT-22-002552 (Formerly PL200609)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Corbett Land Strategies Inc., et al
Subject: Request to amend the Official Plan - Refusal of request by City of Hamilton
Existing Designation: Urban Hamilton Official Plan (UHOP)
Proposed Designated: Urban Hamilton Official Plan (UHOP)
Purpose: To permit an amendment to the Urban Hamilton Official Plan (UHOP) for a City-wide amendment respecting the urban boundary expansion policies
Property Address/Description: Lands within Twenty Road West Area
Municipality: City of Hamilton
Approval Authority File No.: UHOPA-20-011
OLT Lead Case No.: OLT-22-002549 Legacy Case No.: PL200609
OLT Case No.: OLT-22-002549 Legacy Case No.: PL200609
OLT Case Name: Corbett Land Strategies Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 69(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Corbett Land Strategies Inc., et al
Subject: Protest the levying of fees in relation to an application to amend the Urban Hamilton Official Plan (UHOP)
Property Address/Description: Various Addresses
Municipality: City of Hamilton OLT Lead Case No.: OLT-22-002549 Legacy Case No.: PL200609
OLT Case No.: OLT-22-002552
Legacy Case No.: MM200019
Heard: March 21, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Corbett Land Strategies Inc., et al. (Upper West Side Landowners Group Inc.)
Joel D. Farber Matthew W. Rutledge
City of Hamilton
Patrick MacDonald
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS AND C. HARDY ON MARCH 21, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was before the Tribunal as a second Case Management Conference (“CMC”) in the matter of an appeal by Corbett Land Strategies Inc., et al (“Appellants”) under s. 22(7) of the Planning Act (“Act”) following the refusal of the City of Hamilton (“City”) to approve an application to amend the Urban Hamilton Official Plan (“UHOP”)(“OPA Appeal”), and under s. 69(3) of the Act, in the matter of an appeal protesting the levying of fees in relation to the UHOP application (“Fee Appeal”).
2The Appellants own the properties located at 9511, 9445, 9285, 9271 and 9625 Twenty Road West and 555 Glancaster Road, Part of Lots 2 and 3, Concession 2, Former Township Glanford City of Hamilton (“Subject Properties”).
3The previous CMC regarding this matter took place on May 14, 2021 (“first CMC”) by a panel differently constituted. At the first CMC the Tribunal was presented with five (5) written requests for Party status, all of which were deferred for consideration at a subsequent CMC.
WITHDRAWAL OF THE OPA APPEAL
4The Appellants informed the Tribunal in writing on March 10, 2023, of their intention to withdraw the OPA Appeal. The OPA Appeal was launched subsequent to the refusal of the City to amend the UHOP in order to establish policies for which privately initiated urban boundary applications could be considered. On November 4, 2022, the Ministry of Municipal Affairs and Housing (“MMAH”) issued a decision which had the effect of bringing the Subject Properties within the urban boundary of the City and accordingly, rendered the OPA Appeal moot.
5In advance of the CMC, Counsel for three (3) of the entities who sought Party status at the first CMC advised the Tribunal that based on the decision by the Appellants to withdraw the OPA Appeal, they would not be participating any further in the process. There were no other persons or entities at the CMC requesting status, including the remaining two entities who appeared at the first CMC.
6The Tribunal accepts the withdrawal of the OPA Appeal, and the appeal is therefore withdrawn.
FEE APPEAL
7The Parties jointly requested that the Tribunal schedule a two (2) day hearing event to consider the Fee Appeal. The Tribunal agreed and scheduled a 2-day video hearing commencing Thursday, October 19, 2023 at 10 a.m.
8The Appellants submitted a draft Procedural Order (“PO”) and draft Issues List (“IL”) with a schedule of disclosure and submissions that varied somewhat from the recommended timeframe set out in the sample Procedural Order located on the Tribunal’s website.
9The Tribunal raised concerns with some of the issues on the IL being argumentative. The Appellants explained the intent behind the wording of the issues noting that they would have further discussions with the City to revise the language.
10The Tribunal directed the Parties to revise the timelines and issues and submit an updated draft PO and IL on or before Friday, March 31, 2023. In the event the Parties are unable to reach an agreement on the IL, further assistance can be requested through the Case Coordinator.
11Subsequent to the CMC, the Parties submitted a revised PO and IL in accordance with the directions noted above. The PO attached as Schedule A to this Decision has been reviewed and approved by the Tribunal and will govern the pre-hearing procedural requirements and the hearing of the Appeal.
12The Parties also informed the Tribunal that efforts to achieve a settlement to this appeal will likely commence once a date for a hearing is scheduled. The Tribunal encouraged this and advised the Parties that Tribunal-assisted mediation is available if requested.
ORDER AND DIRECTIONS
13THE TRIBUNAL ORDERS that the matter of appeal OLT-22-002552, will be held by video hearing commencing on Thursday, October 19, 2023, at 10 a.m. Two (2) days have been set aside.
14Parties 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/660145013
Access code: 660-145-013
15Parties 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
16Persons 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: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 660-145-013.
17Individuals 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 by video 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.
18The Tribunal accepts the withdrawal of appeal OLT-22-002549.
19The Tribunal Orders that the Procedural Order attached as Schedule A to this Decision shall govern the proceedings.
20No further notice will be provided.
21The Panel Members are not seized of this matter, however, will remain available for case management subject to the Tribunal’s calendar.
“Steven T. Mastoras”
STEVEN T. MASTORAS
MEMBER
“C. Hardy”
C. HARDY
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 A
ISSUE DATE: CASE NO(S).:
PROCEEDING COMMENCED UNDER subsection 69(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant(s): Corbett Land Strategies Inc., et al
Subject: Protest the levying of fees in relation to an application to amend the Urban Hamilton Official Plan (UHOP)
Property Address/Description: Various Addresses
Municipality: City of Hamilton OLT Lead Case No.: OLT-22-002549 Legacy Case No.: PL200609
OLT Case No.: OLT-22-002552
Legacy Case No.: MM200019
- 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 October 19, 2023 at 10.00 a.m. Parties 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/660145013
Access code: 660-145-013
The parties’ initial estimation for the length of the hearing is 2 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 2 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 3. 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
On or before July 21, 2023 (90 days prior to the start of the hearing) all records and documents in relation to the City of Hamilton's review and processing of the Appellant's planning applications for which the levied fees are in disputed shall be provided by the City of Hamilton to the Appellant.
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 August 10, 2023 (70 days prior to the start of the hearing) 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.
Expert witnesses in the same field shall have a meeting on or before August 25, 2023 (55 days prior to the start of the hearing) 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 September 4, 2023 (45 days prior to the start of the hearing).
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 14 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 14 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 September 4, 2023 (45 days prior to the start of the hearing), 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 23 below.
On or before September 4, 2023 (45 days prior to the start of the hearing), 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 September 14, 2023 (35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before October 9, 2023 (10 days prior to the start of the hearing), 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 23 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 9, 2023 (10 days prior to the start of the hearing).
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 October 12, 2023 (7 days prior to the start of the hearing) 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.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
ATTACHMENT 1
SUMMARY OF DATES
DATE
EVENT
July 21, 2023
Records and documents in relation to the review and processing of the Appellant's planning applications are to be provided by the City of Hamilton to the Appellant
August 10, 2023
Exchange of witness lists (names, disciplines and order to be called)
August 25, 2023
Experts meeting prior to this date, if any
September 4, 2023
Agreed Statement of Facts, if any
September 4, 2023
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
September 14, 2023
Exchange of Reply Witness Statements (if any)
October 4, 2023
Confirm if reserved hearing dates still required
October 9, 2023
Exchange of visual evidence (if any)
October 9, 2023
Finalize Joint Document Book
October 12, 2023
Hearing Plan filed with the Tribunal
October 19, 2023
Hearing commences
ATTACHMENT 2
LIST OF PARTIES AND PARTICIPANTS
PARTIES:
- Corbett Land Strategies Inc., et al.
Joel D. Farber Fogler, Rubinoff LLP 77 King Street West, Suite 3000 Toronto, ON M5K 1G8 Tel: 416.365.3707 Fax: 416.941.8852 Email: jfarber@foglers.com
Matthew W. Rutledge Fogler, Rubinoff LLP 77 King Street West, Suite 3000 Toronto, ON M5K 1G8 Tel: 416.864.7607 Fax: 416.941.8852 Email: mrutledge@foglers.com
- City of Hamilton
Patrick MacDonald 50 Main Street East, 5th Floor Hamilton, ON L8N 1E9 Tel: 905.546.2424 ext. 4708 Fax: 905.546.4370 Email: patrick.macdonald@hamilton.ca
ATTACHMENT 3
ISSUES LIST
NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the OLT or any party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT at the hearing may be discussed prior to, or be a matter of evidence and argument at the hearing. 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 and shall not be construed as the OLT having jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the OLT.
A. CORBETT LAND STRATEGIES INC., ET AL.
Were the fees collected by the City of Hamilton used for the review and processing of the Appellants' Official Plan Amendment applications, being Municipal File Numbers UHOPA-20-018 / RHOPA-20-022, UHOPA-20-019 / RHOPA-20-023, UHOPA-20-020 / RHOPA-20-024 (the "Official Plan Amendment Applications")?
Did the City of Hamilton's Official Plan and/or council's resolutions arising in connection with the GRIDS 2/MCR process preclude the approval of privately initiated urban boundary expansion applications made pursuant to section 2.2.8.5 of the Growth Plan for the Greater Golden Horseshoe, 2019?
Are the fees collected by the City of Hamilton for the review and processing of the Appellants' Official Plan Amendment applications duplicative of the costs and fees which would otherwise be required for Secondary Plan, Plan of Subdivision and Zoning applications?
Are the fees collected by the City of Hamilton for the review and processing of Appellants' Official Plan Amendment applications, in the amount of $205,335.00, unreasonable and excessive?
ATTACHMENT 4
ORDER OF EVIDENCE
Corbett Land Strategies Inc., et al.
City of Hamilton
Corbett Land Strategies Inc., et al. (in reply, if necessary)
ATTACHMENT 5 PURPOSE OF THE PROCEDURAL ORDER AND MEANING OF TERMS
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.