LIV Developments Ltd. v. Welland (City), 2024 CanLII 43222

Ontario Land Tribunal

ISSUE DATE: May 09, 2024

CASE NO(S).: OLT-23-001159

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: LIV Developments Ltd.

Subject: Proposed Official Plan Amendment No. 42

Description: OPA – Premature and not in keeping with the balance of the community

Reference Number: OPA No. 42

Property Address: 16 Seaway Drive

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-23-001159

OLT Lead Case No.: OLT-23-001159

OLT Case Name: LIV Developments Ltd. v. Welland (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: LIV Developments Ltd.

Subject: By-law No. 2023-01

Description: ZBA – Premature and not in keeping with the balance of the community

Reference Number: ZBA No. 2023-01

Property Address: 16 Seaway Drive

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-23-001160

OLT Lead Case No.: OLT-23-001159

Heard: April 11, 2024 via Video Hearing April 16, 2024 via Telephone Conference Call

Parties and Counsel

LIV Developments Ltd. Stephanie Fleming Russell Cheeseman

City of Welland Callum Shedden

Idrakoth Ltd. Jennifer Meader

MEMORANDUM OF ORAL DECISION DELIVERED BY A. MASON ON APRIL 11, 2024 AND APRIL 16, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This first Case Management Conference (“CMC”) was regarding an appeal filed by LIV Developments Inc. (“LIV”) pursuant to s. 17(24) and s. 34(19) of the Planning Act (“Act”) with respect to an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) approved by the City of Welland (“City”) for the property municipally known as 16 Seaway Drive (“Subject Property”), in the City, owned by Idrakoth Ltd. (“Idrakoth”).

2The Subject Lands received approval from City Council for the OPA, ZBA and a Draft Plan of Subdivision on July 18, 2023, which would allow for development of 92 residential dwelling units. LIV filed its appeal of the OPA and ZBA (“OPA/ZBA Appeals”) on August 10, 2023, generally alleging servicing prematurity, that a servicing strategy for its lands municipally known as 1 Quaker Road was tied to the Subject Property, and that the planning approvals do not constitute good land use planning or a coordinated development approach for infrastructure in the area.

NOTICE

3An Affidavit of Service sworn on March 5, 2024, attesting to the giving of notice for this proceeding, was marked as Exhibit 1.

REQUESTS FOR STATUS

4The Tribunal granted Party status to Idrakoth as owner of the Subject Lands with an interest in the matters before the Tribunal.

PROCEDURAL ORDER, ISSUES LIST AND NEXT STEPS

5Idrakoth prepared a draft Procedural Order (“PO”) and Issues List (“IL”) prior to the CMC that was circulated to the other Parties. In advance of the CMC, Counsel for Idrakoth requested that Counsel for LIV provide more specificity in the IL reflecting the stated grounds of appeal in order for Idrakoth and the City to understand the case being brought. LIV did not provide a revised or detailed IL at the CMC.

6At the CMC, the Tribunal directed Counsel for LIV to provide a revised IL (“Revised IL”) by Monday, April 15, 2024, with a fulsome and detailed IL reflecting its notice of appeal. At the CMC, the Tribunal set a telephone conference call (“TCC”) for Tuesday, April 16, 2024, between the Parties to review and discuss the forthcoming Revised IL and to determine the length of a future Hearing of the Merits.

7Counsel for LIV provided the Revised IL as directed in advance of the TCC and the Parties made submissions to the Tribunal with respect to it and the number of Hearing days required to adjudicate the matter. Counsel for Idrakoth expressed significant concern that new issues had been added since the CMC that were not set out in LIV’s notice of appeal, as well as the continuing general nature of the issues.

8At the TCC, the Tribunal directed that Counsel for LIV prepare a PO and IL containing the Revised IL (“Revised PO/IL”) and populated with the Hearing dates as set out below to be provided to the Case Coordinator by Wednesday, April 17, 2024. The Tribunal received that Revised PO/IL and it is appended to this Decision as Attachment 1 and shall govern the proceedings.

MOTION

9Counsel for Idrakoth, having expressed significant concern with the Revised IL presented by LIV at the TCC, requested that the Tribunal set a date for a Motion at which it intends to seek to have the appeal dismissed without a hearing. Counsel for Idrakoth asserted that the continued lack of specificity in the Revised IL raises a real threat of trial by ambush, and that LIV’s macro servicing issues are outside the jurisdiction of the OPA/ZBA Appeals before the Tribunal. Counsel for the City took no position on Idrakoth’s request to schedule the Motion.

10The Tribunal scheduled a Motion on Tuesday, May 21, 2024, at 10 a.m. by video hearing.

Tuesday, May 21, 2024 at 10 a.m. (one-day Motion Hearing) GoTo Meeting: https://global.gotomeeting.com/join/638422541 Access code: 638-422-541 Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 638-422-541

11Parties and 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.

12Parties 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

13Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line.

14Individuals 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.

MEDIATION

15The Parties expressed their desire to engage in Tribunal-led mediation after the resolution of the Motion scheduled above and will contact the Case Coordinator at the appropriate time.

HEARING DATES

16At the request of the Parties, the Tribunal scheduled a ten-day video Hearing event commencing on Monday, January 13, 2025 to Friday, January 24, 2025.

Monday, January 13, 2025 to Friday, January 24, 2025 (10-day Video Hearing) GoTo Meeting: https://meet.goto.com/278736685 Access code: 278-736-685 Audio-only line: (Toll Free) 1-888-455-1389 or +1 (647) 497-9391 Audio-only access code: 278-736-685

17Please refer to paragraphs 11 to 14 for further hearing instructions.

ORDER

18The directions set out above are so ordered by the Tribunal.

19No further notice is required.

20The Member is not seized of this matter.

“A. Mason”

A. MASON 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.

ATTACHMENT 1

CASE NO(S): OLT-23-001159

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: LIV Developments Ltd. Subject: Proposed Official Plan Amendment No. 42 Description: OPA – Premature and not in keeping with the balance of the community Reference Number: OPA No. 42 Property Address: 16 Seaway Drive Municipality/UT: Welland/Niagara OLT Case No.: OLT-23-001159 OLT Lead Case No.: OLT-23-001159 OLT Case Name: LIV Developments Ltd. v. Welland (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: LIV Developments Ltd. Subject: Proposed Zoning By-law Amendment No. 2023-01 Description: ZBA – Premature and not in keeping with the balance of the community Reference Number: ZBA No. 2023-01 Property Address: 16 Seaway Drive Municipality/UT: Welland/Niagara OLT Case No.: OLT-23-001160 OLT Lead Case No.: OLT-23-001159

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 January 13, 2025 at 10 a.m.

3. The parties’ initial estimation for the length of the hearing is 9 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 Friday, September 13, 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 Monday, September 30, 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 Friday, October 4, 2024.

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 Monday, October 14, 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 Monday, October 14, 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 Monday, December 9, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, January 3, 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 on or before Friday, December 13, 2024 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 Friday, January 3, 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 Monday, January 6, 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.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES

1. Idrakoth Ltd. TMA Law 25 Main Street West, Suite 2010 Hamilton, ON L8P 1H6 Jennifer Meader Tel: 905.529.3476 Email: jmeader@tmalaw.ca

Mark de Jong Tel: 905-529-3476 ext. 2370 Email: mdejong@tmalaw.ca

2. City of Welland Daniel & Partners LLP 39 Queen Street St. Catharines, ON L2R 7P7 Callum Shedden Tel: 905.688.9411 Email: sheddenc@niagaralaw.ca

3. Liv Developments Ltd. Municipal Law Chambers Royal Building 277 Lakeshore Road East, Suite 211 Oakville, ON L6J 1H9 Russell Cheeseman Tel : 416.955.9529 Email : rdcheese@aol.com

Stephanie Fleming Tel: 416.955.9533 ext. 106 Email: sfleming@mlawc.com

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet, but shall not preclude any other party from calling evidence on the issue.

Liv Developments Ltd.

ISSUE 1 Do the Approvals have appropriate regard for matters of provincial interest? In particular in the absence of securing appropriate access to adjacent lands and in the absence of co-ordinating potentially significant changes in the location and sizing of stormwater management infrastructure required to service adjacent lands, can it be determined that the proposal has appropriate regard for matters such as those contained in 2 (h) and 2 (n) of the Planning Act.

ISSUE 2 Has integration of a comprehensive macro servicing strategy and access arrangements been evaluated in a manner as to ensure adjacent lands can be developed sufficiently to address consistency with the Provincial Policy Statement, 2020, including policies: a. 1.2.1 b.,1.6.1 c., 1.6.6.1.d.,1.6.6.2 e.,1.6.6.7 and f. 2.2

ISSUE 3 Has the proposed development sufficiently integrated access and macro servicing related matters to ensure adjacent lands can be efficiently and appropriately developed in conformity with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, including policy a.3.2.6.2 b. 3.2.7.1, c.3.2.7.2

ISSUE 4 Do the zoning by-law amendments conform to the Official Plan, including: Policies 4.4.1.1, 4.2.1.2., 6.1.1.4, 6.5.1.1, 6.5.1.2.; and, 7.4.3. with particular regard to addressing land use compatibility issues related to infrastructure and whether the City in its approval has ensured issues related to land use compatibility, orderly development and efficient design have been addressed.

ISSUE 5 Should the approval of the Planning instruments have included appropriate Holding provisions to address outstanding concerns surrounding overall macro servicing strategy, transportation and cost sharing matters to ensure the subject lands and those lands surrounding can be developed comprehensively and orderly.

ISSUE 6 Is approval the OPA and ZBA instruments premature in the absence of determining and securing appropriate macro access and macro servicing strategy to accommodate adjacent lands given the existing constraints?

ISSUE 7 Is the extent of the lands proposed to be zoned as Hazard lands been properly modelled and sized to accommodate the resulting stormwater management flows from the total surrounding area?

ISSUE 8 Is the development permitted by the Approvals in the public interest and does it represent good planning?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Liv Development Ltd.
2. City of Welland
3. Idrakoth Ltd.
4. Liv Development Ltd. in reply

Attachment 4

Summary of Procedural Dates

Date	Event
Friday, November 15, 2024	Witness List
Friday, November 22, 2024	Final day for expert witness meeting
Friday, November 29, 2024	Statement of Agreed Facts and Issues filed
Friday, November 29, 2024	Expert witness and witness statements due
Friday, November 29, 2024	Written participant statement due
Friday, December 13, 2024	Response to written evidence due
Monday, December 9, 2024	Hearing date confirmation
Friday, January 3, 2025	Visual evidence due
Friday, January 3, 2025	Joint Document Book due
Monday, January 6, 2025	Preliminary hearing plan due
Monday, January 13, 2025	Hearing