Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
May 28, 2024
CASE NO(S).:
OLT-23-000733
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Rymal East Development Corp.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a residential development consisting of apartment buildings and stacked townhouses
Reference Number:
UHOPA-20-021
Property Address:
544-550 Rymal Road East
Municipality/UT:
Hamilton/Hamilton
OLT Case No:
OLT-23-000733
OLT Lead Case No:
OLT-23-000733
OLT Case Name:
Rymal East Development Corp. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Rymal East Development Corp.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a residential development consisting of apartment buildings and stacked townhouses
Reference Number:
ZAC-20-037
Property Address:
544-550 Rymal Road East
Municipality/UT:
Hamilton/Hamilton
OLT Case No:
OLT-23-000734
OLT Lead Case No:
OLT-23-000733
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Rymal East Development Corp.
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description:
To permit a residential development consisting of apartment buildings and stacked townhouses
Reference Number:
25T-202006
Property Address:
544-550 Rymal Road East
Municipality/UT:
Hamilton/Hamilton
OLT Case No:
OLT-23-000735
OLT Lead Case No:
OLT-23-000733
Heard:
December 4, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Rymal East Development Corp.
J. Meader A. Toumanians (in absentia)
City of Hamilton
P. Boutis P. Krysiak (in absentia)
MEMORANDUM OF oral decision DELIVERED BY MEMBER S. GOPIKRISHNA ON DECEMBER 4, 2023 AND ORDER OF THE TRIBUNAL
1This was the second Case Management Conference (“CMC”) regarding Appeals brought pursuant to subsections 34(11) and 41(12) of the Planning Act by Rymal East Development Corporation (the “Appellant”) concerning a failure by the City of Hamilton ( the “City”) to make a decision within the statutory timeframe on applications for an Official Plan Amendment (“OPA”), a Zoning By-law Amendment (“ZBA”), and a Draft Plan of Subdivision (“DPOS”).
2There were no requests for Party or Participant status received prior to, or at the CMC.
HEARING
3The consensus among the Parties was to schedule a hearing, and that eight (8) days would be sufficient for the hearing. An eight-day hearing was scheduled to begin on Monday, July 22, 2024 at 10 a.m. by video, and concluding on Wednesday, July 31, 2024.
4Parties 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:
GoToMeeting: https://meet.goto.com/348282861
Access code: 348-282-861
5Parties 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
6Persons 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: +1 (647) 497-9373 or (Toll Free) 1-888-299-1889. The access code is the same as the access code noted above.
7Individuals 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.
DRAFT PROCEDURAL ORDER AND ISSUES LIST
8The Order and Issues List were included in the Procedural Order released on May 1, 2024, which is attached to this decision.
REQUEST FOR A FURTHER CMC IN SPRING 2024
9While all the Parties indicated their interest in another CMC to be scheduled in Spring 2024, there was agreement between the Parties that this CMC did not have to be scheduled at this point in time.
MEDIATION
10The Tribunal highlighted the availability of Tribunal led mediation and advised the Parties to contact the Case Coordinator, should they wish to pursue this option.
ORDER
11THE TRIBUNAL ORDERS that:
a) An eight-day hearing will take place by video commencing on Monday, July 22, 2024 at 10 a.m. and conclude on Wednesday, July 31, 2024; and
b) The Procedural Order, as issued on May 1, 2024 is appended as Schedule 1 hereto.
c)
12The Panel Member is not seized, but may be contacted through the Case Coordinator should the need arise.
“S. Gopikrishna”
S. GOPIKRISHNA
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-23-000733
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Rymal East Development Corp.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a residential development consisting of apartment buildings and stacked townhouses
Reference Number:
UHOPA-20-021
Property Address:
544-550 Rymal Road East
Municipality/UT:
Hamilton/Hamilton
OLT Case No:
OLT-23-000733
OLT Lead Case No:
OLT-23-000733
OLT Case Name:
Rymal East Development Corp. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Rymal East Development Corp.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a residential development consisting of apartment buildings and stacked townhouses
Reference Number:
ZAC-20-037
Property Address:
544-550 Rymal Road East
Municipality/UT:
Hamilton/Hamilton
OLT Case No:
OLT-23-000734
OLT Lead Case No:
OLT-23-000733
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Rymal East Development Corp.
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description:
To permit a residential development consisting of apartment buildings and stacked townhouses
Reference Number:
25T-202006
Property Address:
544-550 Rymal Road East
Municipality/UT:
Hamilton/Hamilton
OLT Case No:
OLT-23-000735
OLT Lead Case No:
OLT-23-000733
PROCEDURAL ORDER
- 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
- The video hearing will begin on July 22, 2024 at 10 a.m. through the following video link:
https://meet.goto.com/348282861
The parties’ initial estimation for the length of the hearing is 8 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.
A summary of key dates are set out in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2 (see Attachment 5 for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 3. There will be no changes to this list unless the Tribunal permits, or on consent of the parties, and, unless on consent, a party who asks for changes may have costs awarded against it.
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.
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.
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
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide details of the revised proposal, including revised plans and drawings, to the other parties March 27, 2024 unless otherwise agreed to by the parties, or which arise from expert witness meetings. If the applicant provides a revised proposal, the parties shall have the right to revise and/or augment the issues list.
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 March 27, 2024 and in accordance with paragraph 24below. 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.
Expert witnesses in the same field shall have a meeting on or before April 24, 2024 to the start of the hearing and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties may prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before May 8, 2024
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.
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 14 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 14 below.
On or before June 3, 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 24below.
On or before June 3, 2024, 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.
On or before June 17, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before July 3, 2024, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence July 3, 2024 and in accordance with paragraph 24 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 12, 2024 .
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 12, 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.
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.
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
SUMMARY OF KEY DATES
DATE
EVENT
March 27, 2024 120 days prior to the hearing
Submit revised proposal to City
March 27, 2024 120 days prior to the hearing
Exchange and filing of witness lists (including names, disciplines, CVs and order to be called)
April 24, 2024 90 days prior to the hearing
Experts Meeting Prior to this Date
May 8, 2024 75 days prior to the hearing
Finalize Agreed Statement of Facts and Revised Issues (if any)
June 3, 2024 50 days prior to the hearing
Exchange and filing of Witness Statements, Expert Reports and Participant Statements.
June 17, 2024 35 days prior to the hearing
Parties to confirm with the Tribunal if all the reserved hearing dates are still required
July 3, 2024 20 days prior to the hearing
Exchange and filing of Reply Witness Statements
July 3, 2024 20 days prior to the hearing
Exchange of Visual Evidence
July 12, 2024 10 days prior to the hearing
File Joint Document Book and Hearing Plan
July 15, 2024 7 days prior to the hearing
Notice if witnesses will not give oral evidence
July 22, 2024
Hearing Commences
ATTACHMENT 2
LIST OF PARTIES AND PARTICIPANTS
PARTIES
Rymal East Development Corp. Applicant and Appellant
Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 Scott Snider and Anna Toumanians Tel: (905) 529-3476 Email: ssnider@tmalaw.ca Email: atoumanians@tmalaw.ca Counsel for Rymal East Development Corp.
The City of Hamilton
City of Hamilton Legal Services Division 50 Main Street East, 5th Floor Hamilton, ON L8N 1E9 Paula Boutis Tel: 905-546-2424 ext. 6889 Email: paula.boutis@hamilton.ca Counsel for the City of Hamilton
ATTACHMENT 3
ISSUES LIST
City of Hamilton
Is the development proposal consistent with the Provincial Policy Statement (2020) (“PPS”) in terms of accommodating an appropriate range and mix of residential types and densities, promoting development that conserves biodiversity and that prepares for local impacts of a changing climate, and promoting well designed built form, as required by PPS policies 1.1.1 b), 1.1.1 h) 1.4.3, 1.7.1 e), 1.7.1 b), 1.7.1 k) and 1.8.1 f)?
Does the development proposal conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019, as amended) (“P2G”), in terms of achieving complete communities by providing a diverse mix and range of housing options, providing for a more compact built form and a vibrant public realm, mitigating and adapting to the impacts of a changing climate and contributing to environmental sustainability, as required by P2G policies 2.2.1.4 c) and 2.2.1.4 e)?
Does the development proposal achieve the intended new residential development policies in greenfield areas including minimizing changes to the existing topography and preserving existing trees and preserving and minimizing impacts on natural heritage features, as required by UHOP Volume 1 policies E.3.7.5 and E.3.7.6?
Does the development proposal contribute to achieving the planned urban structure, built form, height, and density of the UHOP for Secondary Corridors, the general policies of Residential Uses and High Density Residential policies, as required by UHOP Volume 1 policies E.2.4.10, E.2.4.11, E.2.4.12, E.3.3.1, E.3.3.2, E.3.6.6, and E.3.6.7?
Does the development proposal provide for a compatible integration with the surrounding area in terms of scale, form, height, and character, as required by PPS Policy 1.2.6.1 and UHOP Volume 1 policies E.2.4.14, E.2.4.16, E.3.2.4, and E.3.3.2? Specifically, does the proposal address matters such as:
a. overlook;
b. the creation of a comfortable and attractive pedestrian experience;
c. the transition, appropriate spacing provided between the multiple dwellings and relationship of the proposed multiple dwellings from the secondary corridor with the height, massing, and scale of adjacent residential neighbourhood dwellings; and,
d. the provision of amenity space and relationship to existing patterns of private and public amenity space?
Are the proposed scale, density and height of the proposed development appropriate for this location?
Does the cumulative effect of the proposed zoning modifications, including increased height and multiple intrusions into the 45 degree angular planes, respect and maintain or enhance the existing character of the area?
Does the proposed development conform to zoning by-law parking requirements, including municipal standards for the provision for on-street parking?
Does the development proposal conform to the Urban Design policies, as required by UHOP Volume 1 policies B.3.3.2.3, B.3.3.2.4, and B.3.6.3.11, to:
a. respect the existing character, development patterns, built form, and landscape;
b. promote quality design consistent with the locale and surrounding environment; and,
c. create quality spaces through the design and placement of the proposed building and landscaping that physically and visually connects the public and private realms?
Does the development proposal conform to the Natural Heritage System policies of the Provincial Policy Statement including 2.1.1 and 2.1.2 and the UHOP Volume 1 policies including C.2.2.2, C.2.2.4, C.2.3.3 and C.2.5.5?
Can the existing sanitary sewer system accommodate the proposed increase in density, and if it requires upgrades, do those upgrades represent orderly development and logical expansion of infrastructure and services, as required by PPS Policy 1.1.3.3 and UHOP Volume 1 policies C.5.3.11?
Does the proposed development result in a functional road network to safely support the anticipated traffic associated with the development proposal by preventing or satisfactorily mitigating adverse impacts, including but not limited to access, road infrastructure improvements, traffic calming, signalization, site layout, pedestrian facilities, transit amenities, and commercial vehicle maneuverability as required by UHOP Volume 1 policies F.1.14.1.1 and F.1.14.1.2?
Have the criteria identified in Subsection 51(24) of the Planning Act with regard to the Draft Plan of Subdivision been satisfied?
What are the appropriate Draft Plan of Subdivision conditions?
Is a holding provision appropriate for the proposed development, and if so, what are the appropriate provisions to include?
Does the proposed development represent good land use planning and is it in the public interest?
Note 1: Where an issue refers to a provision from the PPS or the Growth Plan or Official Plan(s) in addressing the issue, the planning document from which the provision is taken should be read in its entirety with all relevant provisions being considered. For greater certainty, the identification of a specific provision in an issue does not preclude the parties from referring to other provisions from the same planning document in addressing that issue.
Note 2: 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 these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.
ATTACHMENT 4
ORDER OF EVIDENCE
Rymal East Development Corp.
City of Hamilton
Rymal East Development Corp.in Reply
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.