Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 27, 2023

CASE NO(S).: OLT-22-004400

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: JM Market Grey Inc.

Applicant: Weston Consulting

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the incorporation of a proposed mixed-use building on the subject lands

Reference Number: OP-02-2020

Property Address: 197 Market Street, 11 Grey Street, 150 George Street, 168 George Street, & 30 Marlborough Street

Municipality: City of Brantford

OLT Case No.: OLT-22-004400

OLT Lead Case No.: OLT-22-004400

OLT Case Name: JM Market Grey Inc. v. Brantford (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the incorporation of a proposed mixed-use building on the subject land

Reference Number: PZ-08-2020

Property Address: 197 Market Street, 11 Grey Street, 150 George Street, 168 George Street, & 30 Marlborough Street

Municipality: City of Brantford

OLT Case No.: OLT-22-004401

OLT Lead Case No.: OLT-22-004400

Heard: February 15, 2023 by video hearing

APPEARANCES:

Parties Counsel

JM Market Grey Inc. Samantha Lampert Mark Flowers, in absentia

City of Brantford Geoffrey Daley

Canadian National Railway Company Diana Betlej Katarzyna Sliwa, in absentia Max Reedijk, in absentia

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY FEBRUARY 15, 2023 AND ORDER OF THE TRIBUNAL

1This Decision relates to an appeal brought pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) from the failure of the City of Brantford (“City”) to make a decision within statutory timeframes of the Act with respect to applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”). The appeal has been filed by JM Market Grey Inc. (“Appellant”) regarding an assembly of lands located at 197 Market Street, 11 Grey Street, 150 George Street, 168 George Street and 30 Marlborough Street, Brantford (together referred to as the “Subject Property”).

2The Appellant intends to redevelop the Subject Property with a 16-storey mixed-use building containing approximately 216 residential dwelling units and approximately 2,300 square feet of retail / commercial space at grade level (“Proposal”).

3On February 15, 2023, the Tribunal held its first Case Management Conference (“CMC”) at which it addressed procedural issues, the identification of Parties and Participants, review of a draft Procedural Order and Issues Lists and scheduling of hearing dates.

Procedural Matters

4The Tribunal confirmed with the Parties that there were no issues with service of Notice for the CMC and as such, no further notice is required. The Tribunal was in receipt of the Affidavit of Service of Keith Marshall dated January 25, 2023, which was marked as Exhibit 1.

Requests for Status

5Prior to the CMC, the Tribunal received one request for Party status from Canadian National Railway Company (“CN”). In its written request form, CN noted that the Subject Property is in close proximity to railway lines and within 110 metres of the Brantford Railyard. CN actively participated in the commenting and approval process related to the Proposal and has concerns relating to noise, vibration, air quality and safety.

6Neither the Appellant nor the City objected to CN’s request, and the Tribunal granted Party status to CN on consent.

7Prior to the CMC, the Tribunal did not receive any requests for Participant status. In response to the Tribunal’s inquiry, there were no other persons or entities present at the CMC requesting Party or Participant status.

Opportunities for Settlement

8The Appellant and the City jointly advised the Tribunal that the Parties are engaged in ongoing discussions. All Parties are motivated to move the issues forward and work jointly towards resolution.

9The Appellant submitted that Tribunal-led mediation was not deemed to be beneficial at this point in the discussions among the Parties. The Tribunal encouraged the Parties to request Tribunal-led mediation through the Case Management Coordinator if needed.

Draft Procedural Order and Issues List

10The Parties submitted a first draft of a Procedural Order and Issues List in advance of the CMC, which was reviewed by the Tribunal. The Parties advised that exchange dates and details in the Procedural Order will be finalized once hearing dates were set.

11The Tribunal raised concerns regarding the omission of the following paragraph from the draft Procedural Order:

On or before ________________ (date – at least 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.

12The Tribunal directed the Parties to include this paragraph in the amended draft Procedural Order and consider providing notice beyond the suggested 35 days. In the event the Parties do not wish to include this paragraph in the amended draft Procedural Order, the Tribunal directed that written reasons be provided to the Tribunal when submitting the amended draft Procedural Order and Issues List for review and approval.

13The Tribunal raised concerns with the broad scope of some of the issues and questioned the jurisdiction of the Tribunal to adjudicate some of the issues on the Issues List of CN. The Issues List is somewhat robust and quite technical, and it is hoped that continued discussions will result in further refinement of the Issues List.

14The Appellant advised the Tribunal that the Issues List was circulated very recently. The Appellant has provided comments on the Issues List to CN and anticipates providing comments to the City in the coming days. The Appellant noted that the Parties require time to discuss the Issues List and work together to refine the issues. The Appellant noted that further discussions will likely result in refinements to the Issues List as opposed to significant scoping.

15The City and CN were in agreement with the Appellant’s assessment and suggested approach.

16After some discussion at the CMC, the Parties agreed that an amended draft Procedural Order and Issues List would be submitted to the Tribunal by the Appellant for review and approval on or before April 6, 2023. In the event the Parties are unable to come to an agreement on the Issues List, the Parties will advise the Case Management Coordinator on or before April 6, 2023 and request a further CMC, bring a Motion for Directions, or suggest a path forward that the Parties deem appropriate.

Scheduling Hearing Dates

17After some discussion at the CMC, the Parties jointly requested that the Tribunal schedule a 10-day hearing for the appeal. The Parties collectively intend to call 10 witnesses as follows: 4-5 witnesses for the Appellant; 1 witness for the City; 4 witnesses for CN.

18The Tribunal noted that it is standard practice to set hearing dates only after the Procedural Order and Issues List are in final draft form. The Parties submitted that in this case, refinements to the Issues List would not impact the number of witnesses that are proposed and as such, it is appropriate to set hearing dates at this CMC.

19Upon hearing the submissions of the Parties, the Tribunal agreed that any refinements to the Issues List would not impact the number of hearing days required. The Tribunal scheduled a 9-day video hearing commencing February 12, 2024. The Tribunal will not sit on Monday February 19, 2024.

20Parties 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.

21The CMC is scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/656004293

Access Code: 656-004-293

22Persons 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 as indicated above.

23Parties 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

24Individuals 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.

ORDER

25The Tribunal orders that Canadian National Railway Company is a Party in this proceeding.

26The Tribunal directs the Appellant to submit to the Case Management Coordinator a final draft Procedural Order and Issues List on or before April 6, 2023. If the Parties are unable to meet the filing deadline, the Appellant will provide a written status update to the Case Management Coordinator on or before April 6, 2023.

27The Tribunal orders that the hearing in this matter will be held by video hearing commencing on February 12, 2024 at 10:00 a.m. Nine (9) days have been set aside. The Tribunal will not sit on February 19, 2024.

28The Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.

29No further notice will be given.

“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.