Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 22, 2024
CASE NO(S).: OLT-22-004707
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended
Appellant: Carlo Montemurro
Subject: Refusal of Application
Description: Objection to designation By-law
Reference Number: BL 136-2022
Property Location: 1 Burns Place
Municipality/UL: Fort Erie/Niagara
OLT Case No.: OLT-22-004707
OLT Lead Case No.: OLT-22-004707
OLT Case Name: Montemurro v. Fort Erie (Town)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Carlo Montemurro
Request for: Request for Directions
Heard: In writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Carlo Montemurro | Raj Kehar Narmada Gunawardana |
| Town of Fort Erie | Callum Shedden |
DECISION DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is a motion brought by Carlo Montemurro (the “Applicant”) before the Ontario Land Tribunal (the “Tribunal”). The motion is for:
(i) an Order adjourning the merit hearing in respect of an appeal (the “Appeal”) of Heritage Designation By-law No. 136-2022 (the “By-law”) that is scheduled to commence on December 16, 2024, to a date to be heard together with anticipated forthcoming appeals of an official plan amendment (“OPA”) application, zoning by-law amendment (“ZBA”) application and demolition permit (“DP”) application that relate to the same property located at 1 Burns Place, Fort Erie (the “Property”); and
(ii) an Order scheduling a case management conference (“CMC”) with respect to the Appeal for a date post January 2025 when it is anticipated it can be consolidated to be heard together with forthcoming appeals of the OPA, ZBA and DP applications.
BACKGROUND
2The Appellant purchased the Property on October 14, 2021. On October 17, 2022, the Town of Fort Erie (the “Town”) passed the By-law which, pursuant to subsection 29(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended (the “OHA”), designate the entire Property to be of cultural heritage value and/or interest.
3The Appellant, together with the beneficial owners, 2580749 Ontario inc. o/A Warm Homes and Niagara Regional Mortgage Services, seek to redevelop the Property with 38 residential dwellings consisting of 33 townhouses in six development blocks, a single-detached dwelling, and preservation of the existing heritage dwelling with some modifications to repurpose it as a fourplex (the “Proposed Development”).
4On November 24, 2022, the Appellant appealed the By-law to the Tribunal pursuant to subsection 29(11) of the OHA.
5On September 5, 2024, applications for the OPA and ZBA (the “OPA and ZBA Applications”) were filed with the Town to facilitate the Proposed Development. By letter dated October 8, 2024, the Town advised the Applicant that it deemed the OPA and ZBA Applications to be incomplete for several reasons, including due to the fact that consideration of the OPA and ZBA Applications is premature until the Appeal before the Tribunal is determined. The Applicant disagrees with this position. The OPA and ZBA Applications are subject to appeal for non-decision within 120 days of the date the applications are received by the Clerk of the Town pursuant to subsections 22(7.0.2) and 34(11.0.0.0.1) of the Planning Act, which right crystalizes on or about January 8, 2025.
6On September 6, 2024, the Applicant, together with the beneficial owners, applied for the DP pursuant to subsections 33 and 34 of the OHA (the “DP Application”) in order to permit the Proposed Development. The decision in respect of the DP Application may be appealed to the Tribunal pursuant to subsection 34.1 of the OHA.
7The Applicant requests an adjournment of the hearing in respect of the Appeal on the following basis:
(i) The Applicant has represented that it and/or the beneficial owners of the Property will appeal both the OPA and ZBA Applications and DP Application to the Tribunal if either (i) the Town issues a refusal with respect to such applications; or (ii) its appeal rights otherwise crystalize as a result of a non-decision of the Town in accordance with the OHA.
(ii) The Applicant submits that any such appeal of the OPA and ZBA Applications and DP Application should be consolidated with the Appeal currently before the Tribunal as they address the same heritage issues. Alternatively, in the event that the OPA and ZBA Applications and DP Application are approved by the Town, the Applicant anticipates that the Appeal would also be resolved as it relates to the same heritage issues.
(iii) The Applicant has also submitted that there will be substantial overlap in the evidence to be provided on both the Appeal and each of the OPA and ZBA Applications appeals and in the DP Application appeal. Accordingly, the Applicant submits that it would be prejudiced should these matters be heard separately.
8Pursuant to Sections 10.4 and 17.3 of the Tribunal’s Rules of Practice and Procedure (the “Tribunal Rules”), the Applicant filed motion materials consisting of (i) a notice of motion setting out the reasons for the Orders requested; (ii) an affidavit of Dan Currie together with his curriculum vitae and Acknowledgement of Expert’s Duty; and (iii) certain supporting materials concerning the OPA and ZBA Applications.
9The Town filed response submissions along with two supporting affidavits. The Town requested that the Applicant’s motion for adjournment be denied or in the alternative, that the hearing of the motion be adjourned to a new date to be fixed by the Tribunal. The Town claims in its reply submissions that the OPA and ZBA Applications are indeed premature as the Town is not able to properly or adequately assess such applications without knowing the designated features of cultural heritage value and/or interest as would be determined by the Tribunal pursuant to the Appeal. Further, the Town submits that the consolidation of the Appeal with the OPA and ZBA Application appeals and the DP Application appeal will not result in any significant time savings, will complicate the resulting hearing and will result in prejudice to the Town.
10The Applicant disputed the Town’s submissions in its reply, however the Applicant indicated that it was agreeable to setting a new date for the hearing in respect of the Appeal, to be discussed at the CMC together with the potential consolidation of the Appeal with appeals of the OPA and ZBA Applications and DP Application at such time.
FINDINGS
11The Tribunal has the authority to adjourn the hearing in respect of the Appeal and schedule the CMC pursuant to Section 17.5(b) of the Tribunal Rules which states as follows:
17.5 Powers of Tribunal upon Adjournment Request. The Tribunal may,
(b) grant the request and fix a new date or, where appropriate, the Tribunal will schedule a case management conference on the status of the matter
12Furthermore, in determining whether to grant the requested Orders, the Tribunal must consider Sections 1.3 and 1.6 of the Tribunal Rules which provide as follows:
1.3 Interpretation of the Rules. These Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.
1.6 Tribunal May Exempt From Rules. The Tribunal may grant all necessary exceptions from these Rules or from any procedural order, or grant other relief as it considers necessary and appropriate, to ensure that the real questions in issue are determined in a fair, just, expeditious and cost-effective manner.
13The Tribunal regularly hears Planning Act appeals and OHA appeals together, as this is an efficient use of the Tribunal and the Parties’ resources, and such consolidation may also assist in preventing prejudice to the Parties and/or the rendering of inconsistent decisions. Accordingly, the Tribunal accepts the submissions of the Applicant that a Planning Act application is not necessarily premature pending resolution of a heritage appeal before the Tribunal. To the contrary, the Tribunal agrees that if the OPA and ZBA Applications and/or DP Application are approved by the Town, it will likely result in the withdrawal of the Appeal such that no hearing is necessary. Alternatively, if the OPA and ZBA Applications and/or DP Application are appealed to the Tribunal, it is reasonable that all such matters should be heard together with the current Appeal as they deal with the same heritage matters and accordingly, a single hearing would result in the most fair, just and cost effective resolution of the merits of the proceedings.
14The Tribunal does not agree with the Town’s submissions that it is not able to properly or adequately assess the OPA and ZBA Applications and/or DP Application in the absence of the findings of the Tribunal in respect of the Appeal. The OPA and ZBA Applications and DP Application are separate procedures which are distinct from the Tribunal proceedings and should proceed on their own merit regardless of whether or not the Appeal remains pending. Furthermore, the Town did not provide any evidence or specific examples of how it would be prejudiced by the adjournment. To the contrary, the restrictions imposed by the By-law remain in effect unless and until they are varied by the Tribunal upon hearing the Appeal, and accordingly there can be no prejudice to the Property or Town in this respect that would arise as a result of granting the adjournment.
15Accordingly, the Tribunal allows the motion for the adjournment of the hearing in respect of the Appeal.
16Further, a CMC in respect of this matter shall be scheduled to take place on Tuesday, February 4, 2025, commencing at 10 a.m. by video.
17Parties and/or 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:
GoTo Meeting: https://global.gotomeeting.com/join/914098901
Access Code: 914-098-901
18Parties and/or 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html
19Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is: 914-098-901.
20Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.
ORDER OF THE TRIBUNAL
21The Tribunal orders that the motion is allowed and the hearing in respect of this matter scheduled for December 16 to 18, 2024 inclusive is adjourned.
22There will be no further notice.
23This Member is not seized.
“Jennifer Campbell”
JENNIFER CAMPBELL
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.