Sobeys Capital Inc. v. Port Colborne (City), 2024 CanLII 25589

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 18, 2024

CASE NO(S).: OLT-23-001095

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Sobeys Capital Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit stacked townhouse development containing six blocks and a total of 114 dwelling units

Reference Number: D 09-03-23

Property Address: 135 Coronation Drive

Municipality/UT: Port Colborne/Niagara

OLT Case No.: OLT-23-001095

OLT Lead Case No.: OLT-23-001095

OLT Case Name: Sobeys Capital Inc. v. Port Colborne (City)

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

Applicant and Appellant: Sobeys Capital Inc

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit stacked townhouse development containing six blocks and a total of 114 dwelling units

Reference Number: D14-04-23

Property Address: 135 Coronation Drive

Municipality/UT: Port Colborne/Niagara

OLT Case No.: OLT-23-001096

OLT Lead Case No.: OLT-23-001095

Heard: March 5, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Sobeys Capital Inc. (“Applicant/Appellant”)

J.C.M. Fraser A. Skinner in absentia

City of Port Colborne (“City”)

S. Premi T. Richardson in absentia

MEMORANDUM OF ORAL DECISION DELIVERED BY S.L. DIONNE ON MARCH 5, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Sobeys Capital Inc. (“Applicant/Appellant”) appealed the failure of the Council of the City of Port Colborne (“City”) to adopt an amendment to the City Official Plan, and to approve an amendment to the City Zoning By-law, to permit a stacked townhouse development containing six (6) blocks and a total of 114 dwelling units on lands municipally known as 135 Coronation Drive, in the City of Port Colborne, in the Region of Niagara (“Subject Property”).

2On March 5, 2024, the Tribunal held a Case Management Conference (“CMC”) in respect of the matters.

3The Tribunal received an Affidavit of Service dated February 1, 2024 confirming that proper notice of this CMC was given, and marked same as Exhibit 1.

4The Applicant/Appellant and the City are the Statutory Parties in this matter. No requests for status were filed in advance nor requested at the time of the CMC.

PROCEDURAL ORDER, ISSUES LIST AND NEXT STEPS

5The Tribunal received a draft Procedural Order (“PO”) and Issues List (“IL”) submitted by the Parties.

6Counsel for the City advised the Tribunal that the Parties have been engaged in discussions, resulting in some resolution and scoping of the issues between them, and that the Parties have collectively provided the draft IL on that basis. Counsel for the Applicant/Appellant concurred.

7Both Parties were in agreement on procedural matters and were seeking the scheduling of a second CMC to be held in approximately 60 days (from the date of the initial CMC) to allow for further discussions between the Parties to occur in an effort to further scope and/or resolve issues. Further, as noted by Counsel for the City, this will provide sufficient time for the City to review some issues and obtain instructions from City Council on the matters.

8Additionally, the Parties were seeking the scheduling of a Hearing on the merits of the appeals, for a period of five days preferably in late Summer/early Fall of 2024. In this regard, the Tribunal was advised that the Parties would anticipate calling two (2) witnesses each to proffer evidence in respect of the issues.

9After considering the submissions of Counsel, the Tribunal scheduled a Merit Hearing and a second CMC. Counsel for the Applicant/Appellant offered to revise the draft PO accordingly.

10A second CMC is scheduled to commence at 10 a.m. on Wednesday, May 8, 2024 by video conference. The second CMC will provide a touchpoint with the Tribunal as to the progress of discussions between the Parties and an opportunity for the refinement of an Issues List.

11Additionally, a Hearing on the merits of the appeals will commence at 10 a.m. on Monday, August 26, 2024 by Video Hearing for a period of five (5) days.

12The Hearings are scheduled to proceed by video as follows:

Case Management Conference: Wednesday, May 08, 2024 at 10 a.m.

GoTo Meeting: https://global.gotomeeting.com/join/709076365

Access code: 709-076-365

Audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889

Audio-only access code: 709-076-365

Merit Hearing: Monday, August 26, 2024 at 10:00 a.m. to Friday, August 30, 2024 (5 days)

GoTo Meeting: https://global.gotomeeting.com/join/719383509

Access code: 719-383-509

Audio-only line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889

Audio-only access code: 719-383-509

13Parties and Participants are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections.

14Parties 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

15Persons 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 the respective audio-only telephone line (as shown in paragraph 12).

16Individuals 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 event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

17The Tribunal has advised the Parties that there is assistance available by way of Tribunal-led mediation and has encouraged them to reach out through the Case Coordinator in the event there is an interest in that regard.

18The Tribunal inquired as to whether there were any other matters to be addressed, and the Parties indicated there were none.

19The Tribunal has received the revised PO on consent of all Parties, and it has been reviewed and appended to this decision as Schedule 1.

ORDER

20THE TRIBUNAL ORDERS:

a. the directions and rulings on Party Status and Participant Status as set out above;

b. that the second Case Management Conference is scheduled to commence on Wednesday, May 08, 2024, at 10 a.m. by Video Hearing;

c. that a Merit Hearing is scheduled to commence on Monday, August 26, 2024, at 10 a.m. by Video Hearing for a period of five (5) days; and,

d. that the Merit Hearing is governed by the Procedural Order appended as Schedule 1.

21There will be no further notice.

22This Member is not seized.

“S.L. Dionne”

S.L. Dionne

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-23-001095

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant and Appellant

Sobeys Capital Inc.

Subject:

Request to amend the Official Plan – Failure to adopt the requested amendment

Description:

To permit a stacked townhouse development containing six blocks and a total of 114 dwelling units

Reference Number:

D 09-03-23

Property Address:

135 Coronation Drive

Municipality/UT:

Port Colborne/Niagara

OLT Case No.:

OLT-23-001095

OLT Lead Case No.:

OLT-23-001095

OLT Case Name:

Sobeys Capital Inc. v. Port Colborne (City)

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

Applicant and Appellant

Sobeys Capital Inc.

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit a stacked townhouse development containing six blocks and a total of 114 dwelling units

Reference Number:

D 14-04-23

Property Address:

135 Coronation Drive

Municipality/UT:

Port Colborne/Niagara

OLT Case No.:

OLT-23-001096

OLT Lead Case No.:

OLT-23-001095

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.

Second Case Management Conference

2. A second Case Management Conference will be held on Wednesday, May 08, 2024 at 10:00 a.m. via video hearing: https://global.gotomeeting.com/join/709076365

Access code: 709-076-365

Audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889

Audio-only access code: 709-076-365

Organization of the Hearing

3. The merit hearing (“Merit Hearing”) will begin on Monday, August 26, 2024 at 10:00 a.m. and is scheduled to continue up to and including Friday, August 30, 2024 via video hearing: https://global.gotomeeting.com/join/719383509

Access code: 719-383-509

Audio-only line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889

Audio-only access code: 719-383-509

4. The Merit Hearing is scheduled for 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.

5. The parties (“Parties”), as identified at the first Case Management Conference, are set out in Attachment 1. There are no participants identified in this proceeding.

6. 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.

7. 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.

8. The meaning of the terms used in this Procedural Order are identified in Attachment 4.

9. 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.

10. 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

11. 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 Monday, May 13, 2024, and in accordance with paragraph 23 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.

12. Expert witnesses in the same field shall have a meeting on or before Monday, May 27, 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 Monday, June 10, 2024.

13. 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.

14. 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.

15. On or before Friday, June 28, 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 23 below.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, July 19, 2024, and in accordance with paragraph 23 below.

17. On or before Monday, July 22, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before Monday, August 12, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Monday, August 12, 2024.

20. 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.

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

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, August 19, 2024, 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.

23. 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 Rule 7.

24. 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.

SUMMARY OF DATES

DATE

EVENT

Wednesday, May 08, 2024

Second Case Management Conference

Monday, May 13, 2024

Exchange List of Proposed Witnesses

Monday, May 27, 2024

Deadline for Expert Witness Meeting

Monday, June 10, 2024

Deadline for Statement of Agreed Facts and Issues

Friday, June 28, 2024

Deadline for Witness Statements and Expert Witness Statements

Friday, July 19, 2024

Deadline for Reply Witness Statements (if any) and Reply Expert Witness Statements (if any)

Monday, July 22, 2024

Deadline for advising the Tribunal if all the reserved hearing dates are required

Monday, August 12, 2024

Deadline for Visual Evidence

Monday, August 12, 2024

Deadline for Joint Document Book

Monday, August 19, 2024

Deadline for Hearing Plan

Monday, August 26, 2024

Commencement of Hearing

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

Parties

Parties

Counsel/Representative

Sobeys Capital Inc.

Aird & Berlis LLP Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Andrea Skinner Email: askinner@airdberlis.com Jasmine C.M. Fraser Email: jcmfraser@airdberlis.com Tel: 416.863.1500

City of Port Colborne

Sullivan Mahoney LLP 40 Queen Street, P.O. Box 1360 St. Catharines, ON L2R 6Z2 Sara Premi Email: sjpremi@sullivanmahoney.com

Tom Richardson Email: tarichardson@sullivan-mahoney.com

Tel: 905.688.8039

Participants

None

ATTACHMENT 2

ISSUES LIST

Note: The identification and wording of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is relevant, appropriate, accurately-worded, or that the Tribunal has jurisdiction over it. The identification of an issue by a party indicates that party’s framing of the question and intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other parties the case they need to meet.

Issues of City of Port Colborne

1. Does the proposed development and do the proposed applications have regard for matters of Provincial Interest including in subsections 2 (f), (h) and (p) of the Planning Act?

2. Is the proposed development consistent with the Provincial Policy Statement (2020), in particular, but not limited to, the following sections?

Part V

Section 1.1.1 (a) and (b)

Section 1.1.2

Section 1.6.7 – Transportation Systems

and Definitions

3. Does the proposed development conform to the Growth Plan (2020), in particular but not limited to, the following sections?

Section 2.2.1.4 (a)

Sections 2.2.5.1 and 2.2.5.15

Section 3.2.2 - Transportation

and Definitions

4. Does the proposed development conform to the Niagara Regional Official Plan (2022), in particular but not limited to, the following sections?

Section 2.2.1.1

Section 2.2.2.10

Section 4.2.4.5

Section 5.1 – Multi-Modal Transportation System

Section 5.2 – Infrastructure (as it relates to transportation infrastructure only)

and Definitions

5. Does the proposed development conform to the City of Port Colborne Official Plan (2017), in particular but not limited to, the following sections?

Section 2.2

Section 2.3.1

Section 2.4

Section 3.2.1

Section 3.2.3

Section 3.6

Section 3.7

Section 9.1

Section 11.9 (Traffic Impact Assessment requirement)

Section 12

ATTACHMENT 3

ORDER OF EVIDENCE

1. Sobeys Capital Inc.

2. City of Port Colborne

3. Reply by Sobeys Capital Inc. (if any)

ATTACHMENT 4

PURPOSE OF PROCEDURAL ORDER

Case management conferences are scheduled by the Tribunal to organize the hearing. This sample procedural order is provided to identify who may participate in the hearing, the issues in dispute, and the matters that are required to be carried out before the hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a party or a participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the case management conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

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.

56006893.2

56430276.1