Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 24, 2024
CASE NO(S).: OLT-23-000992
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: DiCenzo Construction Company Limited
Subject: Request to amend the Official Plan – Failure to Adopt the requested amendment
Description: To permit the development of two mixed-use residential buildings at 30-storeys and 39-storeys connected by a 3-storey to 4-storey podium containing 741 dwelling units, 297 square metres of commercial floor area at grade, 4,824 square metres of amenity area with 366 vehicle parking spaces contained within a parking structure and a total of 388 bicycle parking spaces (378 long-term bicycle parking spaces and 10 short-term bicycle parking spaces)
Reference Number: UHOPA-23-009
Property Address: 117 Jackson Street East
Municipality/UT: City of Hamilton
OLT Case No.: OLT-23-000992
OLT Lead Case No.: OLT-23-000992
OLT Case Name: DiCenzo Construction Company Limited v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: DiCenzo Construction Company Limited
Subject: Application to amend the Zoning By-law – Neglect to make a decision
Description: To permit the development of two mixed-use residential buildings at 30 storeys and 39 storeys connected by a 3-storey to 4-storey podium containing 741 dwelling units, 297 square metres of commercial floor area at grade, 4,824 square metres of amenity areas with 366 vehicle parking spaces contained within a parking structure and a total of 388 bicycle parking spaces (378 long-term bicycle parking spaces and 10 short-term bicycle parking spaces)
Reference Number: ZAC-23-024
Property Address: 117 Jackson Street East
Municipality/UT: City of Hamilton
OLT Case No.: OLT-23-000993
OLT Lead Case No.: OLT-23-000992
Heard: January 12, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| DiCenzo Construction Company Limited | Caroline Jordan, David Bronskill (in absentia) |
| City of Hamilton | Paula Boutis |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. DEBOER ON JANUARY 12, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision arises from the first Case Management Conference (“CMC”) held in preparation for a Hearing of the Merits of the appeal by DiCenzo Construction Company Limited (“Appellant”) pursuant to s. 22(7) and 34(11) of The Planning Act due to the failure of the City of Hamilton (“City”) to make a decision within the Statutory timelines concerning the Official Plan Amendment (“OPA”), and the Zoning By-law Amendment (“ZBA”) Applications for the property municipally known as 117 Jackson Street East in the City of Hamilton (“Subject Property”).
2The purpose of the CMC was to consider requests for Party or Participant status, consider the proposed Procedural Order (“PO”) and Issues List (“IL”), and to set a date for the hearing of the merits.
3The Tribunal approved and marked the Affidavit of Service by Renata Ribeiro dated December 21, 2023 as Exhibit 1 to the hearing.
BACKGROUND
4The purpose of the OPA is to permit the development of two mixed-use residential buildings with a proposed height of 30 storeys and 39 storeys respectively. The two buildings would be attached with a four-storey podium. The proposal would contain a total of 741 dwelling units with 366 vehicle parking spaces, 278 bicycle parking spaces and 10 short-term bicycle parking spaces. The proposal includes approximately 297 square metres of commercial space at ground level and approximately 4,824 square metres of amenity areas.
STATUS REQUESTS
5The Tribunal did not receive any requests for Party or Participant status prior to, nor during, the CMC.
OPPORTUNITIES FOR RESOLUTION
6The Tribunal canvassed the Parties with respect to the opportunities for settlement, including the use of Tribunal-led mediation. The Parties stated that they were not at a point where Tribunal-led mediation would be helpful with the issues pertaining to this case. However, the Parties stated that they are aware that Tribunal-led mediation is available through the Case Coordinator.
PROCEDURAL ORDER AND ISSUES LIST
7The Tribunal had received and reviewed the proposed PO and IL prior to the CMC. The Tribunal reviewed the PO and IL with the Parties and approves of their contents.
SCHEDULING OF HEARING
8Based on the number of witnesses the Parties intend to call, the Tribunal has scheduled a Hearing of the Merits that will occur by Video Hearing Monday, October 7, 2024 through Friday, October 11, 2024 and continuing Wednesday, October 16, 2024 and Thursday October 17, 2024, for a total duration of seven (7) days. The Tribunal will not sit Monday, October 14 nor Tuesday, October 15.
9Parties 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:
GoTo Meeting Link: https://meet.goto.com/278736685
Access code: 278-736-685
10Parties 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
11Persons 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) 497-9391 or (Toll-Free) 1 888-455-1389. The access code is as mentioned in paragraph 9 above.
12Individuals 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
13THE TRIBUNAL ORDERS that a 7-day Merit Hearing will proceed by video conference at 10 a.m. on Monday, October 7, 2024 to Friday, October 11, 2024, continue Wednesday, October 16, 2024, and conclude on Thursday, October 17, 2024.
14The Procedural Order to govern the procedures leading up to and including the Video Hearing as set out in Schedule 1 is in full force and effect on the issue date of this Order.
15There will be no further notice.
16The Member is not seized.
“S. deBoer”
S. DEBOER MEMBER
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.
SCHEDULE 1
CASE NOS.: OLT-23-000992
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: DiCenzo Construction Company Limited
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of two mixed-use residential buildings at 30 storeys and 39 storeys connected by a 3-storey to 4-storey podium containing 741 dwelling units, 297 square metres of commercial floor area at grade, 4,824 square metres of amenity area with 366 vehicle parking spaces contained within a parking structure and a total of 388 bicycle parking spaces (378 long-term bicycle parking spaces and 10 short-term bicycle parking spaces)
Reference Number: UHOPA-23-009
Property Address: 117 Jackson Street East
Municipality/UT: City of Hamilton
OLT Case No.: OLT-23-000992
OLT Lead Case No.: OLT-23-000992
OLT Case Name: DiCenzo Construction Company Limited 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: DiCenzo Construction Company Limited
Subject: Application to amend the Zoning By-law – Neglect to make a decision
Description: To permit the development of two mixed-use residential buildings at 30 storeys and 39 storeys connected by a 3-storey to 4-storey podium containing 741 dwelling units, 297 square metres of commercial floor area at grade, 4,824 square metres of amenity area with 366 vehicle parking spaces contained within a parking structure and a total of 388 bicycle parking spaces (378 long-term bicycle parking spaces and 10 short-term bicycle parking spaces)
Reference Number: ZAC-23-024
Property Address: 117 Jackson Street East
Municipality/UT: City of Hamilton
OLT Case No.: OLT-23-000993
OLT Lead Case No.: OLT-23-000992
- 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 hearing will begin on October 7, 2024 at 10:00 a.m. as directed by the Tribunal.
The length of the hearing is seven (7) 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 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).
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.
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.
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.
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
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 August 7, 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.
Expert witnesses in the same field shall have a meeting on or before August 14, 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 August 30, 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 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.
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.
On or before September 16, 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.
On or before September 16, 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.
On or before September 3, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before September 30, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before September 23, 2024 and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before September 27, 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 September 30, 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 October 3, 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.
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.
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 June 3, 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.
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.
SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| June 3, 2024 | Last date to provide copies of revised proposal, including all revised plans and drawings (if any) |
| August 7, 2024 | Exchange of witness lists (names, disciplines and order to be called) |
| August 14, 2024 | Experts Meeting |
| August 30, 2024 | Agreed Statement of Facts |
| September 16, 2024 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| September 23, 2024 | Exchange of Reply Witness Statements (if any) |
| September 27, 2024 | Preparation of Joint Document Book |
| September 30, 2024 | Preliminary Hearing Plan filed with the Tribunal |
| September 30, 2024 | Exchange of visual evidence (if any) |
| October 3, 2024 | Final Work Plan filed with the Tribunal |
| October 7, 2024 | Hearing commences |
ATTACHMENT 1 PARTIES/PARTICIPANTS
Parties
DiCenzo Construction Company Limited David Bronskill/Caroline Jordan (416) 597-4299/(416) 849-6963 dbronskill@goodmans.ca/cjordan@goodmans.ca
City of Hamilton Paula Boutis (905) 546-2424, x. 6889 paula.boutis@hamilton.ca
Participants
N/A
ATTACHMENT 2 ISSUES LIST
City of Hamilton
Height
- Does the proposal conform to the policies of the Urban Hamilton Official Plan (“UHOP”) and Downtown Hamilton Secondary Plan (“Secondary Plan”) with respect to building height, regarding: a. Urban Structure and Downtown Mixed-Use Designation policies of the UHOP, specifically E.2.3.1.12 and E.4.4.7? b. Residential Intensification policies of the UHOP, specifically B.2.4.1.4 b), d) and e)? c. Secondary Plan policies specifically 6.1.2 h), 6.1.4.12 e), 6.1.4.14, 6.1.4.15, 6.1.4.18 b), and 6.1.4.19?
Built Form, Massing and Transition in Scale / Urban Design
- Does the proposal conform to the policies of the UHOP and Secondary Plan with respect to Built Form, Massing and Transition in Scale, specifically: a. Residential Intensification policies of the UHOP, specifically B.2.4.1.4 b), d) and e)? b. Urban Design policies of the UHOP, specifically B.3.3.3.1, B.3.3.3.2, B.3.3.3.3 and B.3.3.3.5? c. Secondary Plan policies, specifically 6.1.4.15, 6.1.4.18, 6.1.4.19, 6.1.4.21, 6.1.4.25, 6.1.4.28, 6.1.4.31, 6.1.4.33 and 6.1.4.34?
Intensification
- Does the proposal conform to the residential intensification policies of the UHOP, specifically policies B.2.4.1.4 (b), (c), (d), (e), (f), (g), and (l)?
Sun Shadow
- Does the proposal conform to the policies of the UHOP and Secondary Plan respecting Sun Shadow Impacts, specifically: a. UHOP policies B.3.3.3.2 and B.3.3.3.5? b. Secondary Plan policies 6.1.4.34, 6.1.4.35, and 6.1.4.37?
Wind Impacts
- Does the proposal conform to the policies of the UHOP and Secondary Plan respecting Wind Impacts, specifically: a. UHOP policies B.3.3.3.2? b. Secondary Plan policies 6.1.4.38?
Visual Impacts
- Does the proposal conform to the policies of the Secondary Plan respecting Visual Impacts, specifically policies 6.1.10.3, 6.1.10.4, 6.1.10.5, 6.1.10.6, 6.1.10.7, and 6.1.10.8.
Noise Impacts
- Does the proposal conform to the policies of the UHOP respecting Noise Impacts, specifically B.3.6.3.1?
Range of Housing Types
- Does the proposal conform to the policies of A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“P2G”), UHOP and Secondary Plan respecting providing a Range of Housing Types, specifically: a. P2G policy 2.2.1.4 c)? b. UHOP policy B.2.4.1.4 c)? c. Secondary Plan policies 6.1.4.24?
Site Condition
- Does the proposal conform to the policies of the UHOP respecting Site Condition, specifically policy B.3.6.1.1?
Infrastructure
- Is the proposal consistent with the Provincial Policy Statement (“PPS”), and does it conform to P2G and UHOP respecting Infrastructure Servicing, specifically: a. PPS policy 1.1.3.2 b)? b. P2G policy 2.2.1.2 a) ii)? c. UHOP policy B.2.4.1.4 f) and C.5.3.13?
Tall Building Guidelines
- Does the proposal conform to the Secondary Plan respecting the Tall Building Guidelines, specifically: a. Secondary Plan policy 6.1.4.19? b. Tall Building Guidelines section 3.2, 3.6, 3.6 a), b), c), d), e), f) and g), 4.2.2, 4.2.2 a) and b), 4.3.1 a), 4.3.2, 4.3.2 c) and g), and 4.4 j)?
Climate Change and Energy Efficiency
- Is the proposal consistent with the PPS and does it conform to P2G with respect to minimize negative impacts to air quality and climate change, and promote energy efficiency, prepare for impacts of a changing climate, specifically: a. PPS policies 1.1.3.2 c) and d); and, b. P2G policies 2.2.1.4 f) and g).
Official Plan Amendment
- Does the proposed Official Plan Amendment represent good planning and is it in the public interest?
Zoning By-law Amendment
- Does the proposed Zoning By-law Amendment represent good planning and is it in the public interest?
ATTACHMENT 3 ORDER OF EVIDENCE
- DiCenzo Construction Company Limited
- City of Hamilton
- DiCenzo Construction Company Limited, 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.
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