2864335 Ontario Inc. v. Hamilton Region Conservation Authority, 2023 CanLII 53863

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 16, 2023

CASE NO(S).:

OLT-22-004542

PROCEEDING COMMENCED UNDER subsection 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant:

2864335 Ontario Inc.

Respondent:

Hamilton Region Conservation Authority

Subject:

Refusal to grant permission for development of a medical centre

Property Address:

10 (6) Governor’s Road

Reference No.:

D/C/22/50

Municipality:

City of Hamilton (Dundas)

OLT Case No.:

OLT-22-004542

OLT Case Name:

2864335 Ontario Inc. v. Hamilton Region Conservation Authority

Heard:

May 12, 2023 by Telephone Conference Call (“TCC”)

APPEARANCES:

Parties

Counsel*/Representative

2864335 Ontario Inc.

Rene Larson*

Hamilton Region Conservation

Francesca D’Aguila-Kelly*

Authority

Michael Stone

Elizabeth Reimer

MEMORANDUM OF ORAL decision DELIVERED BY JENNIFER CAMPBELL AND S. DIXON ON MAY 12, 2023 AND ORDER OF THE TRIBUNAL

1This Decision arises from a Case Management Conference (“CMC”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding the appeal brought by 2864335 Ontario Inc. (the “Appellant”) of the refusal by the Hamilton Region Conservation Authority (the “Respondent”) to grant permission for development of a medical centre at 10(6) Governors Road in Dundas, Ontario.

2A previous CMC was held on March 13, 2023, at which the Parties asked for additional time to consider the hearing issues and prepare a joint draft Procedural Order and Issues List (the “Draft PO”). The Parties subsequently engaged in discussions and jointly submitted the Draft PO to the Tribunal prior to this second CMC.

3At this second CMC, the Parties discussed the issues to be adjudicated at a hearing as set forth in the Draft PO, opportunities for mediation and the anticipated length of the hearing.

4The Draft PO sets forth seven issues to be determined at a hearing. Both Parties confirmed that they were in agreement with the issues and proposed timelines as set forth in the Draft PO, subject to completion of the final dates once a hearing is scheduled. The Tribunal requested a minor modification to the Draft PO to provide that the Parties will contact the Tribunal at least 35 days prior to the hearing to advise whether all dates reserved for such hearing are still required at such time. The Tribunal directed that a final Procedural Order and Issues List be filed by the Parties by Wednesday, May 31, 2023. The final Procedural Order and Issues List, as filed by the Parties, is attached hereto as Schedule 1.

5The Parties indicated that they were amenable to settlement discussions and indicated their mutual desire to engage in Tribunal-led mediation. After discussion, the Parties were instructed to contact the Tribunal’s Case Coordinator having carriage of this case in order to schedule mediation with a view to settling one or more of the matters at issue prior to commencement of the hearing.

6The Parties discussed the overall length of time required for a hearing, indicating that it was expected to take between three and five days. The Tribunal directed that a five-day hearing will be held from Monday, May 27 to Friday, May 31, 2024 to commence at 10 a.m.

7Parties 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 set up the video hearing 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 as indicated above.

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.

ORDER

11THE TRIBUNAL ORDERS that the Procedural Order and Issues List attached as Schedule 1 to this Decision and Order are approved.

12THE TRIBUNAL ORDERS that a video hearing will be held commencing at 10 a.m. on Monday, May 27, 2024 until Friday, May 31, 2024.

“Jennifer Campbell”

JENNIFER campbell

MEMBER

“S. Dixon”

S. DIXON

MEMBER

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-22-004542

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: 2864335 Ontario Inc.

Respondent: Hamilton Region Conservation Authority (“HCA”)

Subject: Refusal to grant permission for development of a medical centre

Property Address/Description: 10 (6) Governor’s Road

Municipality: City of Hamilton (Dundas)

OLT Case No.: OLT-22-004542

OLT Case Name: 2864335 Ontario Inc. v. Hamilton Region Conservation Authority

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 May 27, 2024 at 10 a.m.

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. The procedural order deadlines are generally found at Attachment 1.

4. 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 of 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 statement.

5. The issues to be adjudicated at the hearing 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. The meaning of the terms used in this Procedural Order are identified in Attachment 5.

8. 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.

9. 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

10. 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 January 29, 2024 [119 days prior to hearing]. 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.

11. Expert witnesses in the same field shall have a meeting on or before February 19, 2024 [102 days prior to 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 February 27, 2024 [90 days prior to hearing].

12. 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 14. 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.

13. 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 14. 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 14.

14. On or before March 8, 2024 [80 days prior to hearing], the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT.

15. On or before March 8, 2024 [80 days prior to hearing], a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. Parties may provide to all other parties at the OLT and file a written response to any written evidence on or before March 28, 2024 [60 days prior to hearing].

17. On or before April 12, 2024 [45 days prior to hearing], 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.

18. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 12, 2024 [45 days prior to 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 agree to advise the Tribunal by this date if not all hearing dates are required. 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.

19. The parties shall cooperate to prepare a joint document book on or before May 2, 2024 [25 days prior to hearing] and which one copy will be filed with the OLT 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 22.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the OLT. 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 OLT hears the motion.

21. 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 OLT at least 7 days before the hearing that the written evidence is not part of their record.

22. All filings of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). 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. All documents to be filed with the Tribunal shall be organized, tabbed, and digitally searchable.

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 Panel is not seized.

So orders the Tribunal.

ATTACHMENT 1 - SUMMARY OF DATES

DATE

EVENT

January 29, 2024

Exchange of witness lists (names, disciplines, and order to be called)

February 19, 2024

Experts meeting prior to this date

February 27, 2024

Agreed Statement of Facts

March 8, 2024

Exchange of Witness Statements, summonsed witness outlines, Expert Reports and Participant Statements

March 28, 2024

Exchange of response to Witness Statements (if any)

April 12, 2024

Exchange of visual evidence (if any)

April 12, 2024

Final Hearing Plan filed with the Tribunal

May 2, 2024

Finalize Joint Document Book

May 27, 2024, at 10:00 a.m.

Commencement of Hearing

ATTACHMENT 2 - LIST OF PARTIES AND PARTICIPANTS

1. Appellant, 2864335 Ontario Inc.

Represented by:

Rene Larson, LS#:14849D

Larson Lawyers Professional Corporation

620 Victoria Ave E, Suite 222

Thunder Bay, ON P7C 1A9

Tel: 807.632.7650

Fax: 807.623.1354

Email: rene@larsonlawyers.com

2. Hamilton Conservation Authority

Represented by:

John A. Olah, LS#: 15328L

Francesca D’Aquila-Kelly, LS#: 74516N

Beard Winter LLP

130 Adelaide St. West, 7th Floor

Toronto, ON, M5H 2K4

Tel: 416.306.1718

Fax: 416.593.7760

Email: jolah@beardwinter.com

fdaquila-kelly@beardwinter.com

ATTACHMENT 3 – ISSUES LIST

1. Has the Appellant demonstrated that the proposed development at 10 (6) Governor’s Road, Hamilton, ON (the “subject property”) will not affect the control of flooding at the subject property, within the meaning of s.28(1) of the Conservation Authorities Act and s.3(1) of Ontario Regulation 161/06?

2. Does the Appellant’s proposed development at the subject property meet the requirements of s.2.1.1.4.1, Special Policy Areas, of HCA’s Planning and Regulation Policies and Guidelines (October, 2011), which requires conformity to Special Policy Area (SPA) policies within the Former Town of Dundas Official Plan, dated October 27, 2000 or any amendments, updates or revision thereto?

3. Does the Appellant’s proposed development at the subject property meet the requirements of HCA’s Planning and Regulation Policies and Guidelines (October, 2011), as it relates to establishing adequate floodproofing for development in the floodplain?

4. Does the Appellant’s proposed development reflect the intent of HCA’s Planning and Regulation Policies and Guidelines (October, 2011) to permit interior-only renovations to existing buildings within the limits of the flood hazard present on the subject property?

5. Does the Appellant’s proposed development at the subject property breach the MNRF’s Technical Guide for River and Stream Systems: Flooding Hazard Limit, 2002, as it relates to establishing adequate floodproofing for development in the floodplain?

6. Should the Appellant be granted permission, pursuant section 3 of Ontario Regulation 161/06, to develop in the regulated area, contrary to s.2(1)(b) and s.2(1)(c) of Ontario Regulation 161/06?

7. Is the decision of HCA pertaining to Appellant’s proposed development consistent with previous decisions of HCA with respect to the adjoining neighbourhood property, 86-91 Main Street?

ATTACHMENT 4 – ORDER OF EVIDENCE

1. 2864335 Ontario Inc.

2. Hamilton Region Conservation Authority

3. Reply (if any) by 2864335 Ontario Inc.

ATTACHMENT 5 – MEANING OF TERMS USED IN 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 authorization 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 he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of 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.