Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 25, 2023
CASE NO(S).: OLT-23-000221, OLT-23-000222, OLT-23-000223
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: 1426769 Ontario Ltd. Appellant: 1876427 Ontario Inc. Subject: Proposed Official Plan Amendment Description: To permit the development of 25 single detached dwellings, 29 street townhouse dwellings, 51 townhouse dwellings and the extension of a public road Reference Number: OPA 180 Property Address: 15 Ridgeview Drive Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-23-000221 OLT Lead Case No: OLT-23-000221 OLT Case Name: 1876427 Ontario Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: 146769 Ontario Ltd. Appellant: 1876427 Ontario Inc. Subject: Zoning By-law Reference Number: 23-017 Property Address: 15 Ridgeview Drive Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-23-000222 OLT Lead Case No: OLT-23-000221
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant: 1426769 Ontario Ltd. Appellant: 1876427 Ontario Inc. Subject: Zoning By-law Reference Number: 23-018 Property Address: 15 Ridgeview Drive Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-23-000223 OLT Lead Case No: OLT-23-000221
Heard: June 26, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1426769 Ontario Ltd. ("Applicant") | Micah Goldstein, Denise Baker (in absentia) |
| 1876427 Ontario Inc. ("Appellant") | Raivo Uukkivi, Adrianna Pilkington |
| City of Hamilton ("City") | No one appeared |
MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON JUNE 26, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the first Case Management Conference ("CMC") for these appeals held as a Video Hearing.
2The City Council approved the Applicant's Official Plan Amendment application as well as the Zoning By-law Amendment applications for the purpose and effect of permitting the development of twenty five (25) single detached dwellings, twenty nine (29) street townhouse dwellings, fifty one (51) townhouse dwellings and the extension of a public road.
3The Appellant filed appeals pursuant to section 17(24) and section 34(19) of the Planning Act.
4The Affidavit of Service of Notice of CMC is marked as Exhibit 1.
PARTY/PARTICIPANT STATUS REQUESTS
5The Applicant was granted Party Status in the proceedings upon its request without any objection from the Appellant. No request was received for participant status.
OVERVIEW
6Counsel for the City did not appear. A 10-minute standdown was made for Mr. Uukkivi to contact counsel for the City. Upon his return, Mr. Uukkivi informed the Tribunal that he had received an email response stating that the City had reviewed the Appellant's issues and had decided not to participate in the appeal proceedings.
MEDIATION
7Counsels expressed that there could be an opportunity for mediation between Parties, as the experts – meeting in another unrelated appeal – concur that there are cross issues that have a potential for mediation. However, in these appeals, there are no current plans to engage in Tribunal led mediation.
DRAFT ISSUES LIST AND DRAFT PROCEDURAL ORDER
8Parties have filed a draft Procedural Order with an Issues List. Upon being questioned on the order of evidence, counsel confirmed that the Appellant will present first. Counsel requested five (5) Hearing days in 2024 for these appeals. The Tribunal will schedule five days and directs that the Procedural Order, with the deadlines filled in, be forwarded to the Case Coordinator.
HEARING DETAILS
9This matter is scheduled for a five-day hearing from Monday, January 15, 2024 at 10 a.m. to Friday, January 19, 2024 at by Video Hearing.
10Parties 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/442599157
Access code: 442-599-157
11Parties 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.
12Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: (Toll Free): 1-888-455-1389 or +1 (647) 497-9391. The access code is 442-599-157.
13Individuals 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
14The Tribunal orders as follows:
a. Party Status is granted to 1426769 Ontario Ltd.
b. The hearing is scheduled for five days to proceed by video from Monday, January 15, 2024 to Friday, January 19, 2024 at 10 a.m.
c. The Procedural Order ("PO") and issues list shall be delivered to the Tribunal's Case Coordinator on or before July 10, 2023. The PO has been received and is attached as Schedule 1.
d. The Procedural Order shall govern the proceedings.
15There will be no further notice.
16The Member is not seized.
"T.F. Ng"
T.F. NG 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.
Schedule 1
PROCEDURAL ORDER
CASE NO(S).: OLT-23-000221 OLT-23-000222 OLT-23-000223
PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant: 1426769 Ontario Limited Appellant: 1876427 Ontario Inc. Subject: Proposed Official Plan Amendment Description: To permit the development of 25 single detached dwellings, 29 street townhouse dwellings, 51 townhouse dwellings and the extension of a public road. Reference Number: OPA 180 Property Address: 15 Ridgeview Drive Municipality/UT: Hamilton/ Hamilton OLT Case No: OLT-23-000221 OLT Lead Case No: OLT-23-000221 OLT Case Name: 1876427 Ontario Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant: 1426769 Ontario Limited Appellant: 1876427 Ontario Inc. Subject: Proposed Zoning By-law Amendment Description: To permit the development of 25 single detached dwellings, 29 street townhouse dwellings, 51 townhouse dwellings and the extension of a public road. Reference Number: 23-017 Property Address: 15 Ridgeview Drive Municipality/UT: Hamilton/ Hamilton OLT Case No: OLT-23-000222 OLT Lead Case No: OLT-23-000221 OLT Case Name: 1876427 Ontario Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant: 1426769 Ontario Limited Appellant: 1876427 Ontario Inc. Subject: Proposed Zoning By-law Amendment Description: To permit the development of 25 single detached dwellings, 29 street townhouse dwellings, 51 townhouse dwellings and the extension of a public road. Reference Number: 23-018 Property Address: 15 Ridgeview Drive Municipality/UT: Hamilton/ Hamilton OLT Case No: OLT-23-000223 OLT Lead Case No: OLT-23-000221 OLT Case Name: 1876427 Ontario Inc. v. Hamilton (City)
PROCEDURAL 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 Monday, January 15, 2024 at 10:00 a.m.
The parties' initial estimation for the length of the hearing is five 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 2 (see the sample procedural order for the meaning of these terms).
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.
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.
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
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 15, 2023 (120 days prior to the start of the hearing) 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.
Expert witnesses in the same field shall have a meeting on or before October 17, 2023 (90 days prior to the 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 November 1, 2023 (75 days prior to the start of the hearing).
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.
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.
On or before November 16, 2023 (60 days prior to the start of the hearing), 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.
On or before November 16, 2023 (60 days prior to the start of the hearing), 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.
On or before December 11, 2023 (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.
On or before December 29, 2023 (15 days prior to the hearing), 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.
On or before December 11, 2023 (35 days prior to the start of the hearing), 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 5, 2024 (10 days prior to the start of the hearing).
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, 2024 (7 days prior to the start of the 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 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 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.
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.
ATTACHMENT 1 SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| September 15, 2023 | Exchange of witness lists (names, disciplines, CVs included) |
| October 17, 2023 | Experts meeting prior to this date |
| November 1, 2023 | Agreed Statement of Facts |
| November 16, 2023 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| December 11, 2023 | Exchange of response to Witness Statements (if any) |
| December 29, 2023 | Exchange of visual evidence (if any) |
| December 11, 2023 | Deadline to advise OLT of any reductions in hearing time. |
| January 5, 2024 | Finalize & submit Joint Document Book |
| January 8, 2024 | Hearing Plan filed with the Tribunal |
| January 15, 2024 | Hearing commences |
ATTACHMENT 2 PARTIES AND PARTICIPANTS
| Appellant/Party | Counsel | Contact |
|---|---|---|
| 1426769 Ontario Limited | Denise Baker, Chantal deSereville | WeirFoulds LLP Suite 10, 1525 Cornwall Road, Oakville, Ontario L6J 0B2 905-829-8600 dbaker@weirfoulds.com 416-895-6478 cdesereville@weirfoulds.com |
| 1876427 Ontario Inc. | Raivo Uukkivi, Adrianna Pilkington | Cassels Brock & Blackwell LLP Suite 3200, Bay Adelaide Centre - North Tower 40 Temperance Street Toronto, Ontario M5H 0B4 416-860-6613 ruukkivi@cassels.com 416-860-6453 apilkington@cassels.com |
| City of Hamilton | Patrick MacDonald | The Corporation of the City of Hamilton Legal Services, Corporate Services Department 71 Main Street West Hamilton, Ontario L8P 4Y5 905-546-2424 Patrick.MacDonald@hamilton.ca |
ATTACHMENT 3 ISSUES LIST
Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and/or argument at the hearing.
Issues List of 1876427 Ontario Inc.
Are the Approvals, being By-law No. 23-016 adopting and approving Official Plan Amendment No. 180, and Zoning By-laws No. 23-017 and No. 23-018, premature due to a conflict with the Niagara Escarpment Planning and Development Act or otherwise premature?
Do the Approvals have appropriate regard for matters of provincial interest?
Are the Approvals consistent with the Provincial Policy Statement, 2020, including policies: a. 1.6.1 b. 1.6.4 c. 1.6.6.7 d. 2.2
Do the Approvals conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, including policies: a. 2.2.1.2 b. 3.2.6.2 c. 3.2.7.1a), b), d) and g) d. 3.2.7.2 a) and d)
Do the Approvals conflict with the Niagara Escarpment Plan, including policies: a. 1.7.5.9a b. 1.7.5.9b c. 1.7.5.9g
Do the zoning by-law amendments conform to the Urban Hamilton Official Plan, including: a. Policies related to stormwater, including, Volume 1: i. Chapter C, 5.4.3 ii. Chapter C, 5.4.4 iii. Chapter C, 5.4.5 iv. Chapter C, 5.4.7 v. Chapter C, 5.4.8 vi. Chapter F, 3.6.2 vii. Chapter F, 3.6.4 b. Policies related to holding by-laws, including, Volume 1: i. Chapter F, 1.8 c. Policies related to cost sharing and servicing, including: i. Volume 2, Chapter B, 7.5.2 g and h ii. Volume 1, Chapter F, 1.8.2 d. Nash Neighbourhood Secondary Plan policies, including 7.5.2 g and h
Is the development permitted by the Approvals in the public interest and does it represent good planning?
ATTACHMENT 4 ORDER OF EVIDENCE
- 1876427 Ontario Inc.
- 1426769 Ontario Limited
- 1876427 Ontario Inc., in reply
ATTACHMENT 5 MEANING OF TERMS USED IN THE PROCEDURAL ORDER
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.