Delta Joint Ventures Inc. v. Hamilton (City), 2024 CanLII 5519

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 26, 2024

CASE NO(S).: OLT-23-000877

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

Applicant and Appellant: Delta Joint Ventures Inc.

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

Description: To permit the development of 975 residential units

Reference Number: UHOPA-23-006

Property Address: 1284 Main Street East

Municipality/UT: Hamilton/Hamilton

OLT Case No.: OLT-23-000877

OLT Lead Case No.: OLT-23-000877

OLT Case Name: Delta Joint Ventures Inc. v. Hamilton (City)

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

Applicant and Appellant: Delta Joint Ventures Inc.

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

Description: To permit the development of 975 residential units

Reference Number: ZAC-23-012

Property Address: 1284 Main Street East

Municipality/UT: Hamilton/Hamilton

OLT Case No.: OLT-23-000878

OLT Lead Case No.: OLT-23-000877

Heard: December 13, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Delta Joint Ventures Inc.

Rodney Gill David Bronskill (in absentia)

City of Hamilton

Paula Boutis

MEMORANDUM OF ORAL DECISION DELIVERED BY SHARYN VINCENT ON DECEMBER 13, 2023 AND ORDER OF THE TRIBUNAL

1This disposition flows from the first case management conference convened to organize the appeals brought by Delta Joint Ventures Inc. against the failure of the City of Hamilton ("City") to make decisions within the specified statutory timeframes for applications to amend both the Official Plan and Zoning Bylaw in order to permit the redevelopment of the former Delta Secondary School site located at 1284 Main St. The redevelopment, as appealed, proposes a total of 975 new residential units in a variety of built forms, including three fourteen-storey residential buildings, two blocks of four-storey stacked town houses units, and two blocks of townhouses. The proposal is centred on the adaptive re-use of the original, circa 1925 school, with the proposed new development principally situated to the south of the original footprint.

2The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1 to the proceeding, a Draft procedural order, absent the issues list, and 13 requests for Participant status from residents of nearby dwellings, which unanimously raised issue with the overall potential change to the fabric and intensity of the neighbourhood, otherwise variously and generally characterized as a sedate environment derived from the uniformly static low density detached character of the area surrounding the former school.

3Counsel for the City advised that Council direction was expected momentarily and that the issues list could therefore be prepared and submitted for review by the Tribunal in accordance with the direction of the Tribunal that the draft be filed by the week’s end.

4Counsel further advised, in response to the query by the Chair as to the prospects of narrowing the light between the Parties, that, in fact, the appeal had already been positively assessed as a candidate for mediation, that two sessions of Tribunal lead mediation had therefore already been scheduled for January and February, and that should those efforts bear fruit, the request currently before the Tribunal for a (10) ten-day hearing could be revisited.

5There was no challenge to any of the 13 requests for Participant status, and the Tribunal having satisfied itself upon reviewing the written requests filed, conferred Participant status upon: Kim Croonen, Grant Deegan, Anita Hayes, Michael Hayes. Gregory Heins, Barbara Marshall, Gene Penko, Sherry Petrie, Mona Powell, Colleen Ryan, Katie Schuessler, Noelle Unsworth, and Dave Wilson.

6A hearing to consider the merit was therefore scheduled for (10) ten-days, commencing on Monday, September 16, 2024, at 10 a.m. and concluding on Friday, September 27, 2024.

7Parties 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:

https://meet.goto.com/677087597

Access code: 677-087-597

8Parties 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

9Persons 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: (Toll Free) 1-888-455-1389 or +1 (647) 497-9391. The access code is same as mentioned above.

10Individuals 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.

ORDER

11THE TRIBUNAL HEREBY ORDERS THAT the individuals set out in paragraph 5 of this disposition are hereby granted Participant status;

12AND FURTHER ORDERS THAT a (10) ten-day hearing is scheduled as set out in paragraph 6 above and shall be conducted in accordance with the Procedural Order attached hereto and forming part of this Order:

13The Member is not seized but may assist should any assistance be required in executing this Order, and no further notice is required.

“Sharyn Vincent”

SHARYN VINCENT

VICE CHAIR

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.

ISSUE DATE: CASE NO(S).: OLT-23-000877

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

Applicant and Appellant: Delta Joint Ventures Inc.

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

Description: To permit the development of 975 residential units

Reference Number: UHOPA-23-006

Property Address: 1284 Main Street East

Municipality/UT: Hamilton/Hamilton

OLT Case No.: OLT-23-000877

OLT Lead Case No.: OLT-23-000877

OLT Case Name: Delta Joint Ventures Inc. v. Hamilton (City)

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

Applicant and Appellant: Delta Joint Ventures Inc.

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

Description: To permit the development of 975 residential units

Reference Number: ZAC-23-012

Property Address: 1284 Main Street East

Municipality/UT: Hamilton/Hamilton

OLT Case No.: OLT-23-000878

OLT Lead Case No.: OLT-23-000877

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 hearing will begin on September 16, 2024 at 10:00 a.m. as directed by the Tribunal.

3. The length of the hearing is ten (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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. The Parties may agree to scope and/or remove issues as part of attempting to resolve the issues, or otherwise consent to changes, prior to the hearing on the merits of the appeal. There will otherwise 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. In the event that any part of the hearing proceeds as a video hearing, 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 June 28, 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 July 12, 2024 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 July 19, 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 July 23, 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 July 23, 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 August 2, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before September 6, 2024, 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 August 9, 2024 and 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 September 6, 2024.

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 August 16, 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. A final hearing plan shall be filed with the Tribunal on or before September 6, 2024. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, or as may be amended.

23. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties on or before XX, 2024. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for the Tribunal to adjourn the hearing.

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.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

____________________________

TRIBUNAL REGISTRAR

SUMMARY OF DATES

DATE

EVENT

May 31, 2024

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

June 28, 2024

Exchange of witness lists (names, disciplines and order to be called)

July 12, 2024

Experts Meeting

July 19, 2024

Agreed Statement of Facts

July 23, 2024

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

August 9, 2024

Exchange of Reply Witness Statements (if any)

August 16, 2024

Preliminary Hearing Plan filed with the Tribunal

September 6, 2024

Exchange of visual evidence (if any)

September 6, 2024

Preparation of Joint Document Book

September 6, 2024

Final Work Plan filed with the Tribunal

September 16, 2024

Hearing commences

ATTACHMENT 1 PARTIES/PARTICIPANTS

Parties

1. Delta Joint Ventures Inc. David Bronskill (416) 597-4299 dbronskill@goodmans.ca

2. City of Hamilton Paula Boutis (905) 546-2424, x. 6889 paula.boutis@hamilton.ca

Participants

1. Croonen, Kim (905) 807-2732 kimcroonen@gmail.com

2. Deegan, Grant (416) 728-9969 grantdeegan@yahoo.ca

3. Hayes, Anita (905) 544-2028 ahayes4@cogeco.ca

4. Hayes, Michael (905) 520-4040 44mhayes@gmail.com

5. Heins, Gregory (905) 545-6250 g.heins@web.de

6. Marshall, Barbara (289) 389-5829 whoisbarbaramarsall@gmail.com

7. Penko, Gene (905) 719-6426 gpenko@hotmail.com

8. Petrie, Sherry (416) 543-9231 thestudiodistrict@rogers.com

9. Powell, Mona 1singlesally@gmail.com

10. Ryan, Colleen (647) 232-6867 colleen.nl@gmail.com

11. Schuessler, Katie (Delta East Neighbourhood Association) (647) 229-1942 schuessler.katerine@gmail.com

12. Unsworth, Noelle (905) 920-5632 nunsworth8@gmail.com

13. Wilson, Dave (905) 746-8136 davegunn1952@gmail.com

ATTACHMENT 2 ISSUES LIST

City of Hamilton

In this issues list, the following are abbreviated as follows:

Provincial Policy Statement (2020) is referred to as the “PPS”

A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019, as amended) is referred to as the “Growth Plan”

Urban Hamilton Official Plan is referred to as the “UHOP”

Issues List

1. Natural Heritage and Environment

Is the proposal consistent with or does it conform to the following policies:

PPS: is it consistent with 1.1.3.2(c) and (d) [negative impacts to air quality and climate change, promotion of energy efficiency, preparing for the impacts of a changing climate]?

UHOP: does it conform to C.2.11.1 [tree and woodland protection]?

2. Complete Communities and Unit Mix

Is the proposal consistent with or conform to the following policies:

PPS: is it consistent with 1.1.1 (b)?

Growth Plan: does it conform to 2.2.1.4(a) and (c) and 2.2.1.4(a)(iii)?

UHOP: does it conform to E.3.6.7(d)(iv), E.4.6.8(a), and B.2.4.1.4(c)?

3. Building Mass, Tower Separation, Compatibility and Design

UHOP: does the proposal conform to E.2.4.16, E.3.2.4, E.3.6.7(b), E.3.6.7(d)(ii), E.4.6.24, B.2.4.1.4.(b) and (d), B.2.4.2.2.(c), (d), and (g), B.3.3.2.3(a), (b) and (f), B.3.3.2.6(d), B.3.3.3.2(a), and B.3.3.3.3?

4. Sun Shadow Impacts

UHOP: does the proposal conform to E.3.6.7(f) and B.3.3.3.5(e)?

5. Wind Impacts

UHOP: does the proposal conform to B.3.3.3.2(c)?

6. Noise Compatibility

UHOP: does the proposal conform to B.3.6.3.1, B.3.6.3.7, B.3.6.3.8, and B.3.6.3.19?

7. Cultural Heritage

UHOP: does the proposal conform to B.2.4.2.2(i), B.2.4.3.1, B.3.3.2.3(c) and (d), B.3.3.2.6(b) and B.3.4?

8. Visual Impact - Niagara Escarpment and Cultural Heritage Resources and Landscapes

UHOP: does the proposal conform to E.3.6.7(g), B.3.3.2.3(h), and B.3.3.5?

ATTACHMENT 3 ORDER OF EVIDENCE

1. Delta Joint Ventures Inc.

2. City of Hamilton

3. Delta Joint Ventures Inc., in reply (if any)

Attachment to Sample Procedural Order

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.

1399-6962-1256