Ontario Land Tribunal
ISSUE DATE: March 23, 2023
CASE NO.: OLT-21-001345
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Flamborough Power Centre Inc.
Subject: Request to amend the Official Plan - Failure of the City of Hamilton to adopt the requested amendment
Existing Designation: District Commercial
Proposed Designation: Neighbourhoods
Purpose: To permit the development of a complete community on the subject lands with different residential building types including townhomes and multiple dwelling buildings
Property Address/Description: 30 Dundas Street East
Municipality: City of Hamilton
Approval Authority File No.: UHOPA-19-012
OMB Lead Case No.: OLT-21-001345
OMB Case No.: OLT-21-001345
OMB Case Name.: Flamborough Power Centre Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Flamborough Power Centre Inc.
Subject: Application to amend Zoning By-law No. 05-200 – Neglect of application by City of Hamilton
Existing Zoning: District Commercial
Proposed Zoning: Downtown Residential (D6, xxx), Modified
Purpose: To permit the development of a complete community on the subject lands with different residential building types including townhomes and multiple dwelling buildings
Property Address/Description: 30 Dundas Street East
Municipality: City of Hamilton
Municipal File No.: ZAC-19-044
OMB Lead Case No.: OLT-21-001345
OMB Case No.: OLT-21-001355
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Flamborough Power Centre Inc.
Subject: Proposed Plan of Subdivision - Failure of the City of Hamilton to make a decision
Purpose: To permit the development of a complete community on the subject lands with different residential building types including townhomes and multiple dwelling buildings
Property Address/Description: 30 Dundas Street East
Municipality: City of Hamilton
Municipal File No.: 25T-2019005
OMB Lead Case No.: OLT-21-001345
OMB Case No.: OLT-21-001356
S. TOUSAW VICE-CHAIR Thursday, the 23rd day of March, 2023
THE TRIBUNAL ORDERS that the Procedural Order, attached hereto, shall be in full force and effect.
“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.
PROCEDURAL ORDER
- The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.
Organization of the Hearing
A Case Management Conference in this proceeding will take place via video on XX at 10 a.m.
The video hearing will begin on Monday, June 12, 2023 at 10 a.m. at the following link:
GoTo Meeting: https://global.gotomeeting.com/join/909787981
Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1 (888) 455-1389
Access code: 909-787-981
The length of the hearing is 20 days running from June 12 to July 7, 2023. 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 procedural order deadlines are found in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2. Unless the Tribunal directs otherwise, a person who wishes to become a party or participant at the hearing who is not listed in Attachment 2 must make the necessary motion to the Tribunal. The Tribunal may refuse to grant such status.
The Issues to be adjudicated at the hearing are set out in the Issues List attached as Attachment 3. Unless otherwise provided for in this Procedural Order there will be no changes to this Issues 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.
The meaning of the terms used in this Procedural Order are identified in Attachment 5.
Any person granted status 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 (https://olt.gov.on.ca/tribunals/lpat/).
Requirements Before the Hearing
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide the revised proposal consisting of the official plan amendment, zoning by-law amendment, plan of subdivision and related applicable plans and drawings including a visual impact assessment, to the other parties on or before Friday, March 17, 2023 unless otherwise agreed to by the parties. If the applicant provides a revised proposal, the parties shall have the right to revise and/or augment the issues list.
The parties shall exchange draft Issues Lists on or before Friday, March 24, 2023. The parties shall finalize the Issues List on or before Friday, March 31, 2023 and file it with the Tribunal.
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, March 31, 2023. 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 Friday, April 21, 2023 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting each group of witnesses in the same field must prepare a Statement of Agreed Facts and Issues identifying the specific areas of agreement, dispute, and the Issues that will be addressed at the hearing. All documents exchanged and discussions held between expert witnesses are held on a without prejudice basis, with the exception of the Statement of Agreed Facts and Issues which becomes part of the record when it has been signed by the experts. The Statement(s) of Agreed Facts and Issues will be filed with the OLT case co-ordinator on or before Tuesday, April 25, 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 section 17. 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 section 17. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section 17.
On or before Thursday, May 4, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the Tribunal.
On or before Thursday, May 4, 2023, a participant shall provide copies of their written participant statement to the parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
a. On or before Friday, May 5, 2023, the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
b. On or before Friday, May 12, 2023, based on documents listed in witness statements and any other documents anticipated to be relied upon, the Applicant/Appellant shall compile and circulate a Draft Document Book Index to the other parties for their review and input.
Parties may provide to all other parties and the Tribunal and file a written response to any written or visual evidence on or before Friday, May 19, 2023.
The parties shall cooperate to prepare a joint document book in electronic and hard formats on or before Monday, May 29, 2023 and one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in an accessible electronic format in accordance with Section 24.
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 hearing plan with the Tribunal on or before Tuesday, June 6, 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 filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. Section 22 applies regardless if the hearing event is in-person or electronic.
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.
ATTACHMENT 1 SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| Friday, March 17, 2023 | Last date to provide copies of revised proposal (if any) including all revised plans and drawings |
| Friday, March 24, 2023 | Last date for parties to exchange draft Issues List |
| Friday, March 31, 2023 | Last date to finalize Issues List Exchange of witness lists (names, disciplines and order to be called) |
| Wednesday, April 21, 2023 | Experts Meeting prior to this date |
| Tuesday, April 25, 2023 | Agreed Statement of Facts |
| Thursday, May 4, 2023 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| Friday, May 5, 2023 | Exchange of visual evidence (if any) |
| Friday, May 12, 2023 | Applicant/Appellant compiles and circulates Draft Document Book Index |
| Friday, May 19, 2023 | Exchange Reply Witness Statements (if any) |
| Monday, May 29, 2023 | Finalize Joint Document Book |
| Tuesday, June 6, 2023 | Final Hearing Plan filed with the Tribunal |
| Monday, June 12, 2023 | Hearing Commences [runs for 20 days] |
ATTACHMENT 2 LIST OF PARTIES AND PARTICIPANTS
Parties
Flamborough Power Centre Inc. Dennis Wood Wood Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON, M5H 2M5 Tel: (416) 203-7718 Fax: (416) 203-8324 Email: dwood@woodbull.ca
City of Hamilton Patrick MacDonald & Rachel McVean Legal Services Division, Corporate Services Department 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 / Rachel.McVean@hamilton.ca
Niagara Escarpment Commission Ken Hare / Sarah Valair Ministry of the Attorney General – Civil Law Division Northern Development, Mines, Natural Resources and Forestry 99 Wellesley Street West, Room 3420, Whitney Block Toronto, Ontario M7A 1W3 Tel: 647-205-6468 Email: ken.hare2@ontario.ca / sarah.valair@ontario.ca
Conservation Halton Konstantine Stavrakos O’Connor MacLeod Hanna LLP 700 Kerr Street Oakville, Ontario L6K 3W5 Tel: 905-842-8030 ext. 3361 Fax: 905-842-2460 Email: stavrakos@omh.ca
Participants
Liburdi Engineering Limited
ATTACHMENT 3 ISSUES LIST
Preliminary Draft Issues List of the Niagara Escarpment Commission
NOTES:
A. These preliminary draft issues were prepared to advance the preparation of the Procedural Order by the parties, and are subject to change prior to its finalization.
B. Further to an outstanding request, the Niagara Escarpment Commission awaits the submission of a final Visual Impact Assessment for the proposed development. When provided, it may result in revisions and/or refinements to the issues below.
C. If the Applicant circulates additional materials addressing the proposed development (including any revisions to the development proposal and proposed planning instruments) the preliminary issues below may be reduced and/or drafted in more specific detail.
D. After all parties have shared their draft issue lists, it is possible that the issues below could be revised, expanded, or merged with the issues of the other parties.
E. When a final proposed version of the Official Plan Amendment, Zoning By-law amendment, and plan of subdivision and conditions are tabled by the Applicant and/or the City of Hamilton for adjudication (recognizing that there may be competing drafts) the issues below may be amended, refined, and/or may be reorganized under each individual planning application.
Niagara Escarpment Plan
Pursuant to s.2 of the Niagara Escarpment Planning and Development Act is the proposed development consistent with the Purpose of the Act to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure that only such development occurs as is compatible with that natural environment?
Pursuant to s.8 of the Niagara Escarpment Planning and Development Act, is the proposed development consistent with the Objectives of the Niagara Escarpment Plan:
(a) to protect unique ecologic and historic areas;
(e) to ensure that all new development is compatible with the purpose of this Act as expressed in section 2;
(f) to provide for adequate public access to the Niagara Escarpment; and
(g) to support municipalities within the Niagara Escarpment Planning Area in their exercise of the planning functions conferred upon them by the Planning Act.
- Pursuant to s.3(5)(b) of the Planning Act, is the proposed development consistent with (ie does not conflict with) the Niagara Escarpment Plan including:
(a) Its Purpose to provide for the maintenance of the Niagara Escarpment as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment (page 7).
(b) Its Objectives that include ensuring that all new development is compatible with the purpose of the Plan (5), and providing adequate public access to the Niagara Escarpment (6) (page 7).
(c) Land Use Policy 1.7.1 – Urban Area Objective - To minimize the impact and prevent further encroachment of urban growth on the Escarpment environment.
(d) Land Use Policy 1.7.5.1 – Urban Area Development Objectives – That all development shall be of an urban design compatible with the scenic resources of the Escarpment. Where appropriate, provision for maximum heights, adequate setbacks and screening are required to minimize the visual impact of urban development.
(e) Development Criteria 2.2.1 – General Development Criteria - That the Escarpment environment shall be protected, restored and where possible enhanced for the long term having regard to single, multiple or successive developments that have occurred or are likely to occur.
(f) Development Criteria 2.13.1 - Scenic Resources and Landform Conservation – That development shall ensure the protection of the scenic resources of the Escarpment.
(g) Development Criteria 2.13.4 – Scenic Resources and Landform Conservation - That appropriate siting and design measures shall be used to minimize the impact of development on the scenic resources of the Escarpment, including but not limited to establishing appropriate setbacks and maximum building heights, and changing the orientation and height of built form to reduce visibility and skylining.
Has the proponent provided a sufficiently comprehensive visual impact assessment study, for the proposal, to properly evaluate the degree of change that the proposed development will have on public visual access to the Niagara Escarpment?
Does the proponent’s visual impact assessment study conform with the NEP and the Urban Hamilton Official Plan, and is it consistent with the PPS?
Urban Hamilton Official Plan
- Does the proposal conform with the policies of the Urban Hamilton Official Plan including but not limited to C.1.0, C.1.1, C.1.1.1, C.1.1.6, and C.1.1.10(a) regarding the Niagara Escarpment Plan?
ATTACHMENT 4
ORDER OF EVIDENCE
Flamborough Power Centre Inc.
City of Hamilton
Niagara Escarpment Commission
Conservation Halton
Flamborough Power Centre Inc.’s reply, if any
ATTACHMENT 5 Meaning of terms used in the Procedural Order:
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. If an unincorporated group wishes to become a party, 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, group 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). Subsection 33.2 of the Local Planning Appeal 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 the witness’ opinions on those issues; and a list of reports 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 on the issues list that he or she will address, (4) the witness’ opinions on those issues and the complete reasons for their opinions, including addressing applicable policies and (5) a list of documents and reports that the witness will rely on at the hearing.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.
Additional Information
Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.
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.