Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 19, 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 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 (“TCC”)

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

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON NOVEMBER 17, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Case Management Conference (“CMC”) conducted by TCC was scheduled at the request of the City. The last activity in this Case was 14 months ago when the Tribunal conducted a settlement hearing on one of the Appeals on November 10, 2021. Following the withdrawal and resolution of a number of other Appeals under this Case File number, as of the time of the last appearance, and presently, there are only two outstanding Appeals remaining: (1) the appeal by Bucci Homes; and (2) the appeal of Peter Djeneralovic. This CMC now resumes case management of these two Appeals.

2At the outset, Mr. Harrington advised that his former client Mr. Djeneralovic had now retained new counsel, Nancy Smith. Unfortunately, due to a breakdown in communication between counsel, Ms. Smith was not advised of the CMC scheduled for November 17, 2022. As explained herein, the Tribunal stood down, and continued the CMC the following week on November 24, 2022 to await Ms. Smith’s attendance.

BUCCI HOMES APPEAL, NOW LOSANI HOMES (WINONA) LTD. (OLT-22-002920)

3Ms. Baker advised that in the intervening year, the properties owned by her client had been sold to a new owner Losani Homes (Winona) Ltd. and that a request had been made to the City to consent to an order for substitution. Mr. Biggart was initially unable to consent as he had not yet secured instructions, but by the time of the second attendance confirmed that the City had no objections.

4The Tribunal finds it is appropriate, due to the nature of the issues in this Appeal, that the new owner assume carriage of this Appeal in substitution for the former owner and Appellant. Accordingly, the Tribunal orders and directs that Losani Homes (Winona) Ltd. be substituted in place and stead of 783878 Ontario Ltd. as the named Appellant in this Appeal and the Tribunal’s records shall hereafter be amended to reflect this substitution for all purposes relating to the continued administration and adjudication of this Appeal.

5Upon inquiry it was confirmed that a revised Procedural Order would be required in order to move forward to the hearing of this Appeal. The Issues List contained within the prior Procedural Order would be utilized and focus upon the Appellant’s issues in this Appeal with revised dates based on the new hearing dates. The Parties were directed to revise the Procedural Order and subsequent to the CMC the Tribunal was provided with, and reviewed, the revised Procedural Order and Issues List.

6Appended to this Memorandum of Oral 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.

7The Tribunal received submissions as to the scheduling of the hearing and after a review of potential conflict dates was able to accommodate a five-day hearing and the parties were accordingly advised.

8The five-day video hearing of the Appeal will commence at 10 a.m. on Monday, May 15, 2023, and continue to Friday, May 19, 2023.

9The 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:

https://global.gotomeeting.com/join/909787981

Access Code: 909-787-981

10For the video hearing, all 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.

11Persons 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 codes are as indicated above.

12Individuals 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.

13There will be no further notice with respect to the hearing and the Panel Member is not seized.

14Arrangements were not confirmed for a final CMC to be conducted by TCC approximately 45 days prior to the start of the hearing for the purposes of reviewing a draft hearing plan, confirming the number of days ultimately required for the hearing and addressing any possible settlement of any issues. If this would be of benefit to the parties, they may contact the Tribunal to request that a TCC be scheduled accordingly to assist the Tribunal and Parties.

PETER DJENERALOVIC APPEAL

15With respect to the matter of persons having standing in this Appeal, Mr. Harrington, on behalf of Valery Homes, advised the Tribunal that his client would wish to have standing in this Appeal for the purposes of monitoring the proceedings, and would accordingly request Participant status at the very least, and possibly Party status, if needed to protect his client’s interests. Valery Homes withdrew its prior Appeal and no written request for Participant or Party Status was before the Tribunal.

16The matter of the involvement of Valery Homes in the proceeding was addressed by counsel at the second attendance. The City did not consent to Valery Homes being granted any kind of status. Valery Homes provided the background to its request for party status, the perceived necessity of sheltering under Mr. Djeneralovic’s Appeal, and the asserted position that the Djeneralovic appeal already included Valery Homes’ lands and that Valery Homes therefore had an interest in the determination of that appeal. Ms. Smith confidently indicated that the concerns expressed by Valery Homes could very well be addressed as between counsel through disclosure.

17In the event Valery Homes intended to request status that matter would, under the circumstances and the City’s objections, have to be determined by motion, and the Tribunal directed that it was to be advised by December 9, 2022 as to whether such a motion would be necessary. The Tribunal received no such request from Valery Homes for a hearing date for such a motion by the deadline indicated, and will, accordingly, not be a party or participant to this Appeal.

18As with the Losani Homes Appeal, a revised Procedural Order was similarly required to move this Appeal forward to a hearing based upon the prior Procedural Order and Issues List that was issued by the Tribunal. The Tribunal was advised by counsel that the Parties would be in a position to immediately provide a new Procedural Order and Issues List.

19The Tribunal received submissions as to the scheduling of the hearing. Although Ms. Smith was not in attendance at the first appearance Mr. Harrington advised that the scheduling of the hearing would not be problematic and after a review of potential conflict dates the Tribunal tentatively scheduled a five-day hearing of the Appeal commencing at 10 a.m. on Monday, July 17, 2023, and continuing to Friday, July 21, 2023 upon the expectation that the Procedural Order and Issues List would be received.

20Unfortunately, no Procedural Order was forthcoming. After prompting by the Case Coordinator, the Tribunal was eventually advised by the City on December 19, 2022, that no agreement had been reached as to the final form of a Procedural Order due to opposing positions on the order of evidence.

21As no Procedural Order and Issues List is in place, the dates previously set for the hearing of the Appeal are now withdrawn and held abeyance. The hearing will be confirmed as scheduled, and notice provided pending the submission of a revised Procedural Order and Issues List, only when the Procedural Order and Issues List is issued by the Tribunal.

22A further TCC may be scheduled with the Panel at the earliest available to resolve the outstanding issues. Not less than three days prior to the scheduled TCC each of the Parties are to provide a written submission to the Tribunal as to their respective positions regarding whatever unresolved issues exist between the Parties as to the form and/or content of the Procedural Order.

23Arrangements were not confirmed for a TCC final CMC to also be scheduled approximately 45 days prior to the start of the hearing for the purposes of reviewing a draft hearing plan, confirming the number of days ultimately required for the hearing and addressing any possible settlement of any issues. If this would be of benefit to the parties, once the hearing dates are set on the Tribunal’s calendar, the Tribunal may be contacted to request that a TCC be scheduled to assist the Tribunal and Parties.

24The 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.

ATTACHMENT 1

ISSUE DATE: 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)

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 for the appeal of 783878 Ontario Ltd, which has been assumed by Losani (Winona) Ltd. will begin on May 15, 2023 at 10:00 a.m. by way of a video-hearing to be scheduled by the Tribunal

3. 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.

4. 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).

5. 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.

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.

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 February 3, 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 March 3, 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 March 17, 2023.

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 April 10, 2023 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 22 below.

14. On or before April 10, 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.

15. On or before April 11, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before April 17, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before April 24, 2023 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before May 1, 2023.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 5, 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.

22. 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.

23. 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 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 783878 Ontario Ltd. as adopted by Losani (Winona) Ltd.

1. Has there been an appropriate justification for the approximately 2.7-hectare Neighbourhood Park proposed to be located immediately east of McNeilly Road, (the "McNeilly Neighbourhood Park")?

2. How has the 800 metre Neighbourhood Park Service Radius been applied with respect to the two (2) proposed Neighbourhood Parks east of McNeilly Road?

3. Is it appropriate that the City take into consideration the required amount of parkland to be provided in the form of Neighbourhood Parks only, without consideration of other public parks and open spaces in the Secondary Plan area, which may either already exist or are proposed?

4. Does the designation of the McNeilly Neighbourhood Park conform to all of the criteria in the Urban Hamilton Official Plan including, but not limited to, sections B.3.5, B.3.5.3, B.3.5.3.4, B.3.5.3.6, B.3.5.3.15, B.3.5.3.16, B.3.5.3.17

5. Are the Neighbourhood Park Designation criteria in Section 7.4.7.2 in OPA 17 appropriate? If so, does the proposed McNeilly Neighbourhood Park conform to those criteria?

6. Should Appendix K to Amendment 17 (Map B.7.4-1) be modified to delete the Neighbourhood Park designation for the lands east of McNeilly Road and west of proposed Collector Road E and replaced with a Low-Density Residential Designation?

7. If the answer to issue 6 above is no, then should a policy be introduced to the Secondary Plan which states that should all or any part of the McNeilly Neighbourhood Park not be required for such purposes at the time a development application is made, the land may be developed for Low Density Residential uses without an amendment to the Secondary Plan, similar to the Area Specific Policy area C, shown on Map B.7.4-1 - Fruitland-Winona Secondary Plan - Land Use Plan?

8. Does the designation of the lands for the McNeilly Neighbourhood Park represent good planning?

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

1. Losani (Winona) Ltd, which assumed the appeal of 783878 Ontario Ltd.

2. City of Hamilton

ATTACHMENT 3

ORDER OF EVIDENCE

1. City of Hamilton

2. Losani (Winona) Ltd.

3. City of Hamilton