Kevin and Sarah Dilts v. City of Niagara Falls, 2024 CanLII 112360

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: NOVEMBER 04 2024

CASE NO.: OLT-24-000450

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

Applicant/Appellant: Kevin and Sarah Dilts

Subject: Application to amend the Zoning By-law – Refusal

Description: To construct a new detached dwelling

Reference Number: AM-2022-017

Property Address: 0 Montrose Road

Municipality/UT: Niagara Falls/Niagara R

OLT Case No.: OLT-24-000450

OLT Case Name: Kevin and Sarah Dilts v. City of Niagara Falls

BEFORE:

P. TOMILIN

MEMBER

Monday, the 4th day of November, 2024

THE TRIBUNAL ORDERS that further to the Decision issued on JULY 31, 2024, the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on February 10th, 2025. The Tribunal has set aside 5 days for the hearing.

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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 A

ISSUE DATE: NOVEMBER 04 2024 CASE NO(S).: OLT-24-000450

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

Applicant/Appellant: Kevin and Sarah Dilts

Subject: Application to amend the Zoning By-law – Refusal

Description: To construct a new detached dwelling

Reference Number: AM-2022-017

Property Address: 0 Montrose Road

Municipality/UT: Niagara Falls/Niagara R

OLT Case No.: OLT-24-000450

OLT Case Name: Kevin and Sarah Dilts v. City of Niagara Falls

DRAFT 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 February 10, 2025, at 10:00 a.m. at https://meet.goto.com/348282861.

3. The parties’ initial estimation for the length of the hearing is five (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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. 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.

6. 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.

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 October 11, 2024, 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 November 8, 2024, 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 January 24, 2025.

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 December 13, 2024, 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 December 13, 2024, 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 January 21, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before January 24, 2025, 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. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by January 10, 2025, after the evidence is received and 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 January 31, 2025.

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 February 3, 2025 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.

24. A summary of the various filing dates is contained in Attachment 4.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

PARTIES & PARTICIPANTS

1. Kevin and Sarah Dilts

c/o TMA Law

25 Main Street West, Suite 2010

Hamilton, ON L8P 1H1

Meredith Baker

Tel: 905.529.3476

Email: mbaker@tmalaw.ca

Mark de Jong

Tel: 905.529.3476

Email: mdejong@tmalaw.ca

2. The City of Niagara Falls

c/o Kagan Shastri DeMelo Winer Park LLP

188 Avenue Road

Toronto, ON M5R 2J1

Paul DeMelo

Tel: 519.822.1250

Email: pdemelo@ksllp.ca

Doug Pateman

Tel: 416-368-2100 ext. 261

Email: dpateman@ksllp.ca

ATTACHMENT 2

ISSUES LIST OF KEVIN AND SARAH DILTS

Land Use Planning Issues

1. Does the proposed Zoning By-law Amendment (“ZBA”) have appropriate regard for matters of provincial interest, as set out in section 2 of the Planning Act, including but not limited to paragraphs (a), (f), (h), (j) and (p)?

2. Does the proposed Zoning By-law Amendment (“ZBA”) have appropriate regard for matters of provincial interest, as set out in section 2 of the Planning Act, including but not limited to paragraphs (a), (f), (h), (j) and (p)?

3. Does the ZBA conform to the Niagara Region Official Plan, 2014 (“ROP”), including but not limited to Policies and Objectives 5.A.3, 5.A.5, 7.1, 7.5, 7.A.2, 7.A.3, 7.A.2.1, 7.B, 7.B.1.1, 7.B.1.2, 7.B.1.3, 7.B.1.4, 7.B.1.5, 7.B.1.6, 7.B.1.7, 7.B.1.10, 7.B.1.11, 7.B.1.12, 7.B.1.13, 7.B.1.15, 7.B.2.1 – 7.B.2.5?

4. Does the ZBA conform to the City of Niagara Falls Official Plan, 1993 (“City OP”), including but not limited to Policies 7.4, 11.1.5, 11.1.17, 11.1.18, 11.1.19, 11.2.2, 11.2.13, 11.2.14, 11.2.16, 11.2.17, 11.2.18, 11.2.25, 13.37?

5. Does the ZBA constitute good planning?

Natural Heritage Issues

6. Has the proponent satisfied the test of no “significant negative impact” in section 7.B.1.11 of the ROP and section 11.1.5 of the City OP?

ISSUES LIST OF THE CITY OF NIAGARA FALLS

1. Is the proposed Zoning By-law Amendment (“ZBA”) appropriate with respect to whether it sufficiently addresses Key Natural Heritage Features, significant negative impacts, lot coverage and setbacks?

2. Does the ZBA have appropriate regard for the relevant matters of provincial interest enumerated in Section 2 of the Planning Act, including but not limited to; (a) (b) (d) (f) (p) and (s)?

3. Is the ZBA consistent with the relevant policies of the Provincial Planning Statement, 2024, including but not limited to the following policies?

a. 2.3.1.1, 2.3.1.3, 2.9.1, 3.6.4, 4.3.1, 4.1, 4.2, 4.6, and 5.2 generally?

4. Does the ZBA maintain the intent and principle of and does it conform with the Niagara Region Official Plan, 2014, including but not limited to Policies:

a. 5.A.3, 5.A.5, 5.B.2, 5.B.7, 5.B.15, 5.B.16, 7.1, 7.3, 7.5, 7.A.1 , 7.A.2, 7.A.2.3, 7.A.2.9, 7.A.3, 7.A.2.1, 7.A.6.1, 7.A.6.2, 7.A.6.4 , 7.A.6.8 , 7.B, 7.B.1.1, 7.B.1.2, 7.B.1.3, 7.B.1.4, 7.B.1.5, 7.B.1.6, 7.B.1.7, 7.B.1.10, 7.B.1.11, 7.B.1.12, 7.B.1.13, 7.B.1.15, 7.B.2.1 – 7.B.2.5?

5. Does the ZBA maintain the intent and principle of and does it conform with the City of Niagara Falls Official Plan, 1993, in particular but not limited to the following policies:

a. 4.10, 4.11, 4.12, 7.4, 7.6, 7.10 11.1.1, 11.1.2, 11.1.3, 11.1.4, 11.1.23, 11.1.24, 11.1.25, 11.1.27, 11.1.39, 11.1.40, 11.1.41, 11.1.42, 11.1.44, 11.1.46 11.1.5, 11.1.17, 11.1.18, 11.1.19, 11.2.2 11.2.3, 11.2.4, 11.2.5, 11.2.11, 11.2.13, 11.2.14, 11.2.16, 11.2.17, 11.2.18, 11.2.20, 11.2.22, 11.2.23, 11.2.25, 11.2.27 and 13.37?

6. Does the ZBA represent an overdevelopment of the site?

7. Does the development provide an appropriate transition to the Natural Heritage System?

8. What is the exact mapping of the Natural Heritage System in relation to the subject property?

9. Does the ZBA represent good land use planning and is it in the public interest?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Kevin and Sarah Dilts

2. City of Niagara Falls

3. Kevin and Sarah Dilts (Reply)

ATTACHMENT 4

SUMMARY OF PROCEDURAL DATES

EVENT	DATE
List of Witnesses	October 11, 2024
Expert Witness Meetings	November 8, 2024
Witness and Expert Witness Statements	December 13, 2024
Participant Statement	December 13, 2024
Reply Witness Statement	January 10, 2025
Confirmation of hearing dates	January 21, 2025
Agreed Statement of Facts & Remaining Issues	January 24, 2025
Visual Evidence	January 24, 2025
Joint Document Book	January 31, 2025
Hearing Plan	February 3, 2025
OLT Hearing Commences	February 10, 2025