Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 16, 2024

CASE NO.: OLT-23-000795

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

Applicant/Appellant: 499 Mohawk Inc.

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

Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses

Reference Number: UHOPA-23-001

Property Address: 499 Mohawk Road East

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-23-000795

OLT Lead Case No: OLT-23-000795

OLT Case Name: 499 Mohawk Inc. v. Hamilton (City)

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

Applicant/Appellant: 499 Mohawk Inc.

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

Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses

Reference Number: ZAC-23-001

Property Address: 499 Mohawk Road East

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-23-000797

OLT Lead Case No: OLT-23-000795

BEFORE:

S. BOBKA

MEMBER

Tuesday, the 16th day of April, 2024

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on Monday, March 10, 2025.

“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.

ATTACHMENT “A”

ISSUE DATE: April 16, 2024 CASE NO(S).: OLT-23-000795

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

Applicant/Appellant: 499 Mohawk Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses Reference Number: UHOPA-23-001 Property Address: 499 Mohawk Road East Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-23-000795 OLT Lead Case No: OLT-23-000795 OLT Case Name: 499 Mohawk Inc. v. Hamilton (City)

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

Applicant/Appellant: 499 Mohawk Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses Reference Number: ZAC-23-001 Property Address: 499 Mohawk Road East Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-23-000797

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 March 10, 2025, at 10am at the following location:

GoToMeeting: https://global.gotomeeting.com/join/914098901

Access code: 914-098-901

Persons 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is as indicated above.

3. 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 procedural order deadlines are found in Attachment 1.

4. The parties and participants identified at the case management conference are set out in Attachment 2. Unless the Tribunal directs otherwise, a person who wishes to become a party or participant at the hearing who Is not listed in Attachment 2 must make the necessary motion to the Tribunal. The Tribunal may refuse to grant such status.

5. The issues to be adjudicated at the hearing 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.

6. 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.

7. The meaning of the terms used in this Procedural Order are identified in Attachment 5.

8. Any person granted status 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.

9. 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

10. If the Applicant/Appellant intends to seek approval of a revised version of its proposal at the hearing, the Applicant/Appellant shall provide details of the revised proposal, including revised plans and drawings, to the other parties on or before Tuesday, November 12, 2024, unless otherwise agreed to by the parties. If the Applicant/Appellant provides a revised proposal, the parties shall have the right to request that the Tribunal revise and/or augment the issues list to address the revision(s).

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 their intended witnesses. This list must be delivered on or before Tuesday, December 3, 2024, 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.

12. Expert witnesses in the same field shall have at lease one experts’ meeting and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting(s) the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, January 10, 2025.

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, January 24, 2025, 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.

16. On or before Friday, January 24, 2025, 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.

17. On or before Monday, February 3, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, February 14, 2025, and in accordance with paragraph 24 below.

19. On or before Monday, February 24, 2025, 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.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, February 28, 2025.

21. 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.

22. 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.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 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.

24. 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.

25. 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1 SUMMARY OF DATES

DATE	EVENT
November 12, 2024	Last day to provide revised proposal, including revised plans and drawings (if any)
December 3, 2024	Exchange of witness lists (names, disciplines, CVs included)
January 10, 2025	Experts meeting prior to this date; Agreed Statements of Facts to be filed
January 24, 2025	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
February 3, 2025	Deadline to advise OLT of any reductions in hearing time.
February 14, 2025	Exchange of Reply Statements (if any)
February 24, 2025	Exchange of visual evidence (if any)
February 28, 2025	Finalize & submit Joint Document Book
March 3, 2025	Hearing Plan filed with the Tribunal
March 10, 2025	Hearing commences (10 days)

ATTACHMENT 2 LIST OF PARTIES AND PARTICIPANTS

Parties

499 Mohawk Inc. [Applicant/Appellant] Patrick Harrington Matthew Helfand Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Tel: 416-863-1500 Email: pharrington@airdberlis.com mhelfand@airdberlis.com

City of Hamilton Peter Krysiak City of Hamilton Legal Services 50 Main Street East, 5th Floor Hamilton, Ontario L8N 1E9 Tel: 905-546-2424 Email: Peter.Krysiak@hamilton.ca

Participants

1. Zita Bersenas-Cers - zitacers@gmail.com
2. Gina Graham - gina.graham65@gmail.com
3. Jason Freeman - jfreeman5624@gmail.com
4. Matthew Borsellino - mborse@hotmail.com
5. Douglas Gregory MacDonald - greg.macdonald@mhdrockland.com
6. Stacey Kursikowski - s.kursikowski@gmail.com
7. Shari Gray - angshar@outlook.com
8. Angelo Mosca Jr. - angshar@outlook.com
9. Penny Bryce - copper_kitty@rogers.com
10. Todd Bryce - brycetodd@rogers.com
11. Dave Forsyth - forsythdave@hotmail.com
12. Alice Phillips - phillpsalice7@gmail.com
13. Lisa Legault - Lisa.legault77@gmail.com
14. Julian Andreychuk - jrandy58@gmail.com

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.

1. Do the applications have appropriate regard for matters of provincial interest as enumerated in section 2 of the Planning Act?

2. Would the approval of the applications be consistent with the following policies of the 2020 Provincial Policy Statement: a. 1.1.1(b), (g); b. 1.1.3.2(b)?

3. Would the approval of the applications be in conformity with the following policies of the 2020 Growth Plan for the Greater Golden Horseshoe a. 2.2.1.4(a), (c)?

4. Do the applications generally conform with the following policies of the Urban Hamilton Official Plan: a. Section E.2.0; b. B.2.4.1.4 b), c), d), e), f) and l); c. B.3.2.4.9; d. B.3.3.1.5; e. B.3.3.1.8; f. B.3.3.2.1 a); g. B.3.3.2.3 a), b) and f); h. B.3.3.2.6 d); i. B.3.3.3.1; j. B.3.3.3.2 a), c); k. B.3.3.3.3; l. B.3.3.3.5 e); m. B.3.6.3.7; n. B.3.6.3.8; o. Section C.4.2; p. Section C.5.3; q. E.4.6.1; r. E.4.6.4; s. E.4.6.8; t. E.4.6.9; u. E.4.6.15; v. E.4.6.22; w. E.4.6.24; x. E.4.6.29; y. E.4.7.9; and z. F.1.9.1 & F.1.9.2.

5. Do the proposed zoning categories and site-specific regulations appropriately regulate and implement the proposed development? In particular: a. Has the proposed driveway width of 10-metres been appropriately justified? Should the driveway width be reduced to 7.5-metres? b. Has the internal roadway width of 7-8 metres been appropriate justified? Should the internal roadway width be reduced to 6 metres? c. Should a 1.5-metre sidewalk be provided on at least one side of the internal roadway throughout the site? d. What is the appropriate design for the underground parking and loading, inclusive of ramps? e. Are the proposed laybys on Mohawk Road East supportable?

6. Would the approval of the applications constitute good planning in the greater public interest?

ATTACHMENT 4 ORDER OF EVIDENCE

1. 499 Mohawk Inc.
2. City of Hamiton
3. 499 Mohawk Inc. (in reply, if any)

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.