Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 18, 2023
CASE NO(S).: OLT-22-004848
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2626364 Ontario Inc.
Subject: Official Plan Amendment
Description: To permit development of 20-storey and 18-storey towers with total 564 units, connected by six-storey podium
Property Address: 2900 King Street E
Municipality/UT: Hamilton
Municipal File No.: UHOPA-22-022
OLT Case No.: OLT-22-004848
OLT Lead Case No.: OLT-22-004848
OLT Case Name: 2626364 Ontario Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2626364 Ontario Inc.
Subject: Zoning Bylaw Amendment
Description: To permit development of 20-storey and 18-storey towers with total 564 units, connected by six-storey podium
Property Address: 2900 King Street E
Municipality/UT: Hamilton
Municipal File No.: ZAC-22-048
OLT Case No.: OLT-22-004849
OLT Lead Case No.: OLT-22-004848
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2626364 Ontario Inc.
Subject: Site Plan
Description: To permit development of 20-storey and 18-storey towers with total 564 units, connected by six-storey podium
Property Address: 2900 King Street E
Municipality/UT: Hamilton
Municipal File No.: DA-23-029
OLT Case No.: OLT-23-000286
OLT Lead Case No.: OLT-22-004848
Heard: April 25, 2023 by video hearing
APPEARANCES:
Parties
Counsel
2626364 Ontario Inc. (Appellant / Applicant)
Denise Baker
City of Hamilton
Rachel McVean
MEMORANDUM OF ORAL DECISION DELIVERED BY jennifer gold and s. mann ON April 25, 2023, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the first Case Management Conference (“CMC”) respecting appeals by 2626364 Ontario Inc. (“Appellant”). The appeals arise following a failure to make a decision by the City of Hamilton (“City”) of the Appellant’s applications concerning an Official Plan Amendment (“OPA”), a Zoning By-law Amendment (“ZBA”), and Site Plan Control, to permit development of 20 storey and 18 storey towers with a total of 564 units, connected by a six-storey podium. The Subject Property is municipally described as 2900 King Street East in the City of Hamilton.
consolidatioN
2At the request of the Appellant for consolidation of proceedings, the Tribunal confirmed that the OPA and ZBA appeals in file number OLT-22-004848 were consolidated with the Site Plan Control appeal in file number OLT-23-000268.
Service of Notice of CMC
3There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.
Requests for Status
4No persons requested participant or party status at the CMC. One individual, Mr. Bernard Kay, filed a request for Participant status with the Tribunal prior to the CMC but he did not attend at the CMC. Participant status was therefore, not granted.
PROCEDURAL ORDER AND ISSUES LIST
5The parties will prepare a draft Procedural Order and Issues List and provide it to the Tribunal on or before June 27, 2023. The draft Procedural Order and initial draft of the Issues List shall be prepared by the City and provided to the Appellant on or before May 30, 2023.
6The Tribunal received and approved the revised Procedural Order, which will govern the proceedings and is appended to this Decision as Attachment 1.
HEARING
7As the City required more time to prepare a draft Issues List, the Tribunal scheduled a second CMC on Tuesday, July 4, 2023 at 10 a.m. by video. No further notice is required for the second CMC.
8Although the date for a second CMC was set at this first CMC, on a further written request of the Parties and on consideration of the Tribunal, this second CMC noted in paragraph 7 above, has been cancelled.
9Upon request of the parties, the Tribunal also set a ten (10)-day hearing commencing on Monday, January 15, 2024, at 10 a.m. by video. No further Notice is required for the hearing.
10The hearing is scheduled to proceed by video as follows:
Monday, January 15, 2024, at 10 a.m. GoTo Meeting: https://meet.goto.com/278736685 Access code: 278-736-685 Audio-only telephone line: (Toll Free) 1 888 455 1389 or +1 (647) 497-9391 Audio-only access code: 278-736-685
11Parties 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.
12Parties 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
13Persons 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 as mentioned above.
14Individuals 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
15The TRIBUNAL ORDERS that:
A second Case Management Conference, Ordered to proceed on Tuesday, July 4, 2023 at 10 a.m. by video is cancelled.
A ten (10) day hearing shall proceed, commencing on Monday, January 15, 2024 at 10 a.m. by video.
The hearing is governed by the revised Procedural Order appended as Attachment 1.
No further notice is required; and
We are not seized.
“Jennifer Gold”
Jennifer Gold
MEMBER
“S. Mann”
Simranjeet Mann
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.
CASE NO(S).: OLT-22-004848
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2626364 Ontario Inc.
Subject: Official Plan Amendment
Description: To permit development of 20-storey and 18-storey towers with total 564 units, connected by six-storey podium
Property Address: 2900 King Street E
Municipality/UT: Hamilton
Municipal File No.: UHOPA-22-022
OLT Case No.: OLT-22-004848
OLT Lead Case No.: OLT-22-004848
OLT Case Name: 2626364 Ontario Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2626364 Ontario Inc.
Subject: Zoning Bylaw Amendment
Description: To permit development of 20-storey and 18-storey towers with total 564 units, connected by six-storey podium
Property Address: 2900 King Street E
Municipality/UT: Hamilton
Municipal File No.: ZAC-22-048
OLT Case No.: OLT-22-004849
OLT Lead Case No.: OLT-22-004848 OLT Case Name: 2626364 Ontario Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 42(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2626364 Ontario Inc.
Subject: Site Plan Application
Description: To permit development of 20-storey and 18-storey towers with total 564 units, connected by six-storey podium
Property Address: 2900 King Street E
Municipality/UT: Hamilton
OLT Lead Case No.: OLT-22-004848 OLT Case Name: 2626364 Ontario Inc. v. Hamilton (City)
PROCEUDRAL ORDER
- 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
The video hearing will begin on January 15, 2024 at 10:00a.m.
The parties’ initial estimation for the length of the hearing is 10 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 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).
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.
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.
The meaning of the terms used in this Procedural Order are identified in Attachment 4.
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.
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
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide details of the revised proposal, including revised plans and drawings, to the other parties on or before September 15, 2023 unless otherwise agreed to by the parties, or which arise from expert witness meetings. If the applicant provides a revised proposal, the parties shall have the right to revise and/or augment the issues list.
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 September 29, 2023 and in accordance with paragraph 24 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.
Expert witnesses in the same field shall have a meeting on or before October 13, 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 October 27, 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 paragraph 15 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.
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 15 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 15 below.
On or before November 24, 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 24 below.
On or before November 24, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before December 8, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before December 12, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
On or before December 8, 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 24 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before December 15, 2023.
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 preliminary hearing plan with the Tribunal on or before January 8, 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 filings shall be submitted electronically. 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.
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.
DATE
EVENT
September 15, 2023
Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
September 29, 2023
Exchange of witness lists (names, disciplines and order to be called)
October 9, 2023
Last date to challenge identification of expert witness
October 13, 2023
Experts meeting prior to this date
October 27, 2023
Agreed Statement of Facts
November 24, 2023
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
December 8, 2023
Exchange of response to Witness Statements (if any)
December 12, 2023
Exchange of visual evidence (if any)
December 15, 2023
Finalize Joint Document Book
January 8, 2024
Final Work Plan filed with the Tribunal
January 15, 2024
Hearing commences
ATTACHMENT 1: PARTIES AND PARTICIPANTS
Appellant/Party
Counsel
Contact
2626364 Ontario Inc.
Denise Baker
WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 Phone: 416-947-5090 dbaker@weirfoulds.com
City of Hamilton
Rachel McVean Brian Duxbury
Legal Services Division, Corporate Services Department City Hall, 71 Main Street West Hamilton ON L8P 4Y5 Phone:(905) 546-2424 Ext.2622 Rachel.McVean@hamilton.ca Duxbury Law 500 – 1 King St. W. Hamilton, ON L8P 1A4 Phone: (905) 570-1242 brian@duxburylaw.ca
ATTACHMENT 2: ISSUES LIST
City of Hamilton
Official Plan Amendment and Zoning By-law Amendment
Is the proposed Official Plan Amendment and Zoning By-law Amendment consistent with the 2020 Provincial Policy Statement (PPS), and in particular policies 1.1.1 e), g), h) and i), 1.1.3.2, 1.1.3.3., 1.1.3.4., and 1.8.1 f) and g), 2.6.3?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform to the Places to Grow: Growth Plan for the Greater Golden Horseshoe (P2G), in particular policy 2.2.1.2?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the policies of the Urban Hamilton Official Plan, in particular policies B.2.4.1.4. b), d), B.2.4.2.2. b), c), d), g), B.3.3.2.3, B.3.3.2.6., B. 3.3.3, B.3.3.3.2, B.3.3.3.3, B.3.3.3.5., E.1.0. f), E.3.2.4, E. 3.6.7, which require that new residential development respect existing built form on adjacent neighbourhoods, and be compatible with the scale and character of existing residential neighbourhoods?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the City’s design policies of the Urban Hamilton Official Plan for high density residential development and the build form policies, in particular policies B.3.3.2.3, B.3.3.3 and E.3.6.7?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the policies of the Urban Hamilton Official Plan, in particular policies B.2.4.1.4 and B.2.4.2.2, B.2.4.3.1 with respect to residential intensification?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the policies of the Urban Hamilton Official Plan, in particular policies B.2.4.2.2. b), B.3.3.3.2 and B.3.3.3.5 e), E.3.6.7 f) and demonstrate that the proposed development will not create adverse shadow impacts?
Does the proposed Official Plan Amendment and Zoning By-law Amendment proposal conform with the Urban Hamilton Official Plan, in particular policy B.3.3.3.2 and demonstrate that the proposed development will minimize any impact of wind conditions?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the policies of the Urban Hamilton Official Plan, in particular policies B.3.3.2.3 h), B.3.3.5, and E.3.6.7 g), with respect to the impact on views, including public view corridors, the general public views of the Niagara Escarpment and cultural heritage resources/landscapes, as identified though a Visual Impact Assessment?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the policies of the Urban Hamilton Official Plan, in particular policies B.3.4.2.1 a), d), h) and g), B.3.4.2.14, B.3.3.2.3 c) and d), B.3.4.1.4, B.3.4.2.13, B.3.4.6.2, with respect to the Cultural Heritage?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with policies of the Urban Hamilton Official Plan, in particular policies B.2.4.1.4, B.2.4.2.2, C.5.3.13 and C.5.3.17 with respect to the municipal infrastructure and sanitary servicing capacity needed to support the proposed development?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with policy C.2.11.1 of the Urban Hamilton Official Plan with respect to the Tree Management Plan?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with policies, B.2.4.2.2, E.3.6.7 d) iii) of the Urban Hamilton Official Plan with respect to the Transportation Impact Study?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the Urban Hamilton Official Plan, in particular policies C.4.5.15 and C.4.15.19, with respect to providing adequate parking and loading for the site while avoiding excess/under supply that can impact transit use, active transportation, infrastructure, and maneuvering?
Does the proposed Official Plan Amendment and Zoning By-law Amendment conform with the Urban Hamilton Official Plan, in particular policies C.4.5.8 and C.4.5.14 with respect to adequate access points to arterial roads and appropriate safety measures?
Is the proposed Official Plan Amendment and Zoning By-law Amendment consistent with the City-Wide Corridor Planning Principles and Design Guidelines, in particular sections 4.3, 4.3.2, 4.9, with respect to the maximum building height of new buildings being limited relative to the width of the street, as well as the appropriate height and design for long multi storey buildings?
Does the proposed Zoning By-law Amendment result in any adverse impacts?
Should the proposed Zoning By-law Amendment if approved be subject to holding provisions in respect to servicing?
Does the proposed Official Plan Amendment represent good land-use planning and is it in the public interest?
Site Plan Control Application
Is the proposed Site Plan Control application premature until such time as the use, size, scale and design of the development has been determined through the appeal of the Official Plan Amendment and Zoning By-law Amendment?
What are the appropriate conditions of Site Plan approval should the proposed Official Plan Amendment and Zoning By-law Amendment be approved by the Tribunal?
ATTACHMENT 3: ORDER OF EVIDENCE
2626364 Ontario Inc.
City of Hamilton
2626364 Ontario Inc., in reply
ATTACHMENT 4: DEFINITIONS
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.