1876427 Ontario Inc. v. Ontario (Niagara Escarpment Commission), 2023 CanLII 36255

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 24, 2023

CASE NO(S).: OLT-23-000009

PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2, as amended.

Appellant: 1876427 Ontario Inc.

Applicant: 146769 Ontario Inc. c/o Fabio and Pia Neri

Respondent: Niagara Escarpment Commission

Subject of Appeal: Approval of a Development Permit Application to subdivide into single dwelling lots, and blocks containing townhouse units; to construct a local road network; to implement a stormwater management strategy including a drainage outlet; to connect to and install municipal services; to carry out grading; and to establish a park on an existing lot

Reference No.: W/R/2021-2022/203

Property Address: 15 Ridgeview Drive

Municipality/Upper Tier: City of Hamilton

OLT Case No.: OLT-23-000009

OLT Lead Case No.: OLT-23-000009

OLT Case Name: 1876427 Ontario Inc. v. Ontario (Niagara Escarpment Commission)

Heard: March 10, 2023 via Telephone Conference Call (“TCC”)

APPEARANCES:

Parties

Counsel

1876427 Ontario Inc. (“Appellant”)

Raivo Uukkivi and Adrianna Pilkington

146769 Ontario Inc. (“Applicant”)

Denise Baker

Niagara Escarpment Commission

Ken Hare and Baiqing Luo

(“Respondent”)

DECISION DELIVERED BY N. EISAZADEH AND HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from the first Case Management Conference (“CMC”) before the Ontario Land Tribunal in its role as the Niagara Escarpment Hearing Office (“Hearing Office”), regarding an appeal filed by 1876427 Ontario Inc. (“Appellant”) of the conditional approval by the Niagara Escarpment Commission (“NEC”) of a development permit application by 146769 Ontario Inc. (“Applicant”) which, inter alia, seeks to subdivide the property located at 15 Ridgeview Drive (“Subject Land”), in the City of Hamilton (“City”), into 25 single-dwelling lots and eight blocks containing 80 townhouse units.

STATUS REQUESTS

2The Tribunal and statutory parties received no requests for granting of party or participant status. OPPORTUNITIES FOR SETTLEMENT DISCUSSIONS AND MEDIATION

3The Tribunal was advised that there are certain issues in this matter which are not mediatable, due to their very nature. However, the Parties are receptive to discussing settlement and seeking out private or Tribunal-led mediation on those issues where settlement is possible, and they are open to working on reducing the number and scope of issues in dispute.

PROCEDURAL ORDER AND HEARING DATE

4The Parties provided the Tribunal with a draft Procedural Order (“PO”) inclusive of an Issues List (“IL”). Following a discussion on narrowing the language of some of the issues, the Parties were able to come to amicable revisions of the IL. The final PO, as approved by the Tribunal, is included in this Decision as Schedule 1.

5A preliminary issue was raised regarding potential consolidation or hearing together of this matter with two related planning matter appeals. The Appellant advised that it has filed Official Plan Amendment and Zoning By-Law Amendment appeals respecting the same development proposal. While the issue was briefly discussed, including whether such an Order is available, none of the Parties stated intentions of seeking such an Order at the present CMC. The Parties agreed that dates could be set, and this matter could proceed on its own to a hearing on its merits.

6It was estimated by the Parties that, collectively, there would be a total of up to four witnesses called at the Merit Hearing, comprised of planners and engineers. Having reviewed the possible number of witnesses and scope of issues, the Tribunal ordered and set a four-day hearing by video commencing on Tuesday, September 5, 2023 at 10 a.m.

7Parties 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/927921077

Access Code: 927-921-077

8Parties 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

9Persons 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) 497-9391. The access code is: 927-921-077.

10Individuals 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.

11There will be no further notice.

12This Panel is not seized but remains available through the Case Coordinator should the need arise.

“N. Eisazadeh”

N. Eisazadeh

HEARING OFFICER

“Hugh S. Wilkins”

HUGH S. WILKINS

HEARING OFFICER

Ontario Land Tribunal

Website: www.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 1

CASE NO(S).: OLT-23-000009

PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2, as amended.

Appellant: 1876427 Ontario Inc.

Applicant: 146769 Ontario Inc. c/o Fabio and Pia Neri

Respondent: Niagara Escarpment Commission

Subject of Appeal: Approval of a Development Permit Application to subdivide into single dwelling lots, and blocks containing townhouse units; to construct a local road network; to implement a stormwater management strategy including a drainage outlet; to connect to and install municipal services; to carry out grading; and to establish a park on an existing lot

Reference No.: W/R/2021-2022/203

Property Address: 15 Ridgeview Drive

Municipality/Upper Tier: City of Hamilton

OLT Case No.: OLT-23-000009

OLT Lead Case No.: OLT-23-000009

OLT Case Name: 1876427 Ontario Inc. v. Ontario (Niagara Escarpment Commission)

PROCEDURAL ORDER

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 will begin on Tuesday, September 5, 2023 at 10 a.m. The Hearing will run until September 8, 2023 inclusive.

3. The parties’ initial estimation for the length of the hearing is 4 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 procedural order deadlines are generally found in Attachment 1 to this Order.

4. The parties and participants identified at the case management conference are set out in Attachment 2.

5. 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.

6. 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.

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 Monday, May 8, 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 Wednesday, June 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 Monday, June 19, 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 Tuesday, July 4, 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 Tuesday, July 4, 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 Monday, July 31, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, August 25, 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. On or before Monday, July 24, 2023 parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence 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 Friday, August 25, 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 Friday, August 25, 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.

These Hearing Officers are not seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF KEY DATES

Date

Hearing Event

Monday May 8, 2023

Exchange of List of Witnesses

Wednesday June 7, 2023

Expert Witness Meeting

Monday June 19, 2023

Filing of Statement(s) of Agreed Facts and Issues

Tuesday July 4, 2023

Exchange of Witness Statements

Monday July 24, 2023

Exchange of Reply Witness Statements

Tuesday July 4, 2023

Delivery of Participant Statements

Friday August 25, 2023

Exchange of Visual Evidence

Monday July 31, 2023

Confirmation to Tribunal if all reserved hearing dates are still required

Friday August 25, 2023

Filing of Joint Document Book

Friday August 25, 2023

Filing of Hearing Plan

Tuesday September 5, 2023

Hearing Commences

ATTACHMENT 2

PARTIES AND PARTICIPANTS

PARTIES

1876427 Ontario Inc.

Cassels Brock & Blackwell LLP

Suite 2100, Scotia Plaza, 40 King St. W

Toronto, ON Canada

M5H 3C2

Raivo Uukkivi

ruukkivi@cassels.com

416-860-6613

Adrianna Pilkington

apilkington@cassels.com

416-860-6453

146769 Ontario Inc. c/o Fabio and Pia Neri

WeirFoulds LLP

1525 Cornwall Rd, Suite 10

Oakville, ON Canada

L6J 0B2

Denise Baker

dbaker@weirfoulds.com

416-947-5090

Niagara Escarpment Commission

Ken Hare

Ontario Ministry of Natural Resources and Forestry, Niagara Escarpment Commission

99 Wellesley Street West, Room 3420, Whitney Block

Toronto, Ontario M7A 1W3

Ken.Hare2@ontario.ca

647-205-6468

ATTACHMENT 3

ISSUES LIST

1876427 Ontario Inc.

1. Is the proposed development consistent with the Provincial Policy Statement, including policies 1.6.1, 1.6.4, 1.6.6.7 and 2.2?
2. Are the proposed development and Conditions 9 and 10, in the Notice of Decision for Development Permit Application W/R/2021-2022/203, in accordance with all applicable policies, including the purpose and objectives of the Niagara Escarpment Plan, development criteria, and all objectives for Urban Areas, including development objectives 1.7.5.9 a, b and g in the Niagara Escarpment Plan?
3. Is the decision to issue the development permit premature, including:
   1. Has the development had appropriate regard for other Nash Neighbourhood subdivisions and pre-development flows across 1876427 Ontario Inc.’s land and which outlet to Centennial Falls?
   2. Should the development permit be granted in advance of the determination of stormwater and drainage plans, particularly as related to the integration with required external lands and works?
   3. Did the decision to issue the development permit sufficiently and correctly determine the appropriate and applicable targets, criteria and recommendations for stormwater?
4. Has the source and impact on stormwater flows to Centennial Falls from the proposed development and neighbouring properties been properly considered and determined?

ATTACHMENT 4

ORDER OF EVIDENCE

1876427 Ontario Inc.

146769 Ontario Inc. c/o Fabio and Pia Neri

Niagara Escarpment Commission

1876427 Ontario Inc.