Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 3, 2024
CASE NO.:
OLT-23-001146
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Losani Homes (1998) Ltd.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit 986 residential units within four apartment buildings including two commercial buildings
Reference Number:
ZAC-21-039/UHOPA-21-018
Property Address:
1400 South Service Road
Municipality/UT:
Hamilton / Hamilton
OLT Case No.:
OLT-23-001146
OLT Lead Case No.:
OLT-23-001146
OLT Case Name:
Losani Homes (1998) Ltd. 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:
Losani Homes (1998) Ltd.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit 986 residential units within four apartment buildings including two commercial buildings
Reference Number:
ZAC-21-039/UHOPA-21-018
Property Address:
1400 South Service Road
Municipality/UT:
Hamilton / Hamilton
OLT Case No.:
OLT-23-001147
OLT Lead Case No.:
OLT-23-001146
BEFORE:
K. R. ANDREWS
Wednesday, the 3rd
MEMBER
day of July, 2024
THE TRIBUNAL ORDERS that further to the Decision issued on May 2nd, 2024, the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on April 22, 2025. The Tribunal has set aside 14 days for the hearing.
“Euken Lui”
EUKEN LUI
ACTING REGISTRAR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
Schedule “A”
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 Tuesday, April 22, 2025, at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is (fourteen) 14 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible. The procedural order deadlines are generally found in Attachment 1.
The parties and participants identified at the case management conference are set out in 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.
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, and a party who asks for changes may have costs awarded against it, except if the Issues List is modified to reduce issues, or in order to address changes to the Planning Act, Provincial Policy Statement and/or Growth Plan or other relevant provincial policy, or through mediation or pursuant to a settlement between any of the parties, or is otherwise on consent of the parties.
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. 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
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 December 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.
Expert witnesses in the same field shall have a meeting on or before January 17, 2025, 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 Tribunal’s Case Co-ordinator on or before January 31, 2025.
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 February 28, 2025, the parties shall provide copies of their witness statements, including expert witness statements, and/or brief outlines (if any), to the other parties and to the Tribunal’s Case Co-ordinator and in accordance with paragraph 22 below.
On or before February 28, 2025, 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 March 21, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before April 4, 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.
On or before March 21, 2025, Parties may provide to all other parties and the Tribunal’s Case Co-ordinator a written response to any written evidence in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal’s Case Co-ordinator on or before April 4, 2025.
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 April 4, 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.
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 Tribunal’s 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. Section 22 applies regardless if the hearing event is in person or electronic.
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.
ATTACHMENT 1
SUMMARY OF KEY DATES
Date
Hearing Event
December 13, 2024
Exchange of List of Witnesses
January 17, 2025
Expert Witness Meeting
January 31, 2025
Filing of Statement(s) of Agreed Facts and Issues
February 28, 2025
Exchange of Witness Statements
February 28, 2025
Delivery of Participant Statements
March 21, 2025
Confirmation to Tribunal if all reserved hearing dates are still required
April 4, 2025
Exchange of Visual Evidence
March 21, 2025
Exchange of Reply Witness Statements
April 4, 2025
Filing of Joint Document Book
April 4, 2025
Filing of Hearing Plan
April 22, 2025
Hearing Commences
ATTACHMENT 2
PARTIES
PARTIES
- LOSANI HOMES (1998) LTD.
WeirFoulds LLP
Suite 10, 1525 Cornwall Road
Oakville, ON
L6J 0B2
Denise Baker
416-947-5090
- CITY OF HAMILTON
71 Main Street West, 3rd Floor
Hamilton, Ontario
L8P 4Y5
Patrick MacDonald
905-546-2424 Ext. 4708
ATTACHMENT 3
ISSUES LIST
PRELIMINARY ISSUE TO BE BROUGHT BY WAY OF MOTION IN ADVANCE, IF NECESSARY
- Is the Applicant authorized to appeal the refusal or failure to adopt an Official Plan Amendment permitting the removal of an Area of Employment under subsection 22(7.3) of the Planning Act?
PLANNING
Is the development proposal consistent with the Provincial Policy Statement (2020) (“PPS”), including but not limited to policies 1.1.1, 1.1.3.2, 1.1.3.3, 1.2.6.1, 1.4.3, 1.7.1k, 1.8.1, 2.1.1, 2.1.2, 2.1.3, 2.1.5, 2.1.6, 2.1.7, and 2.1.8?
Does the development proposal conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019, as amended), including but not limited to policies 2.2.1.2, 2.2.1.4 and 2.2.6?
Does the proposal conform to the policies of the Urban Hamilton Official Plan, including but not limited to policies E.2.1, E.2.2.4, E.4.5.2, E.4.5.7, E.4.5.8, E.4.5.10 E.4.5.11 related to Urban Structure and the Mixed Use – High Density Designation?
Does the proposal conform to policy C.2.11.1 with respect to the tree protection and restoration?
Does the proposal conform to policy C.5.3.6 with respect to connection to the City’s water and wastewater system?
Does the proposal conform to Policy C.4.5.12 with respect to the Traffic Impact Study?
Is the Mixed Use – High Density Designation an appropriate designation?
If a conversion from the Employment designation to Neighbourhoods designation is considered, does the proposal meet the Residential Greenfield Design policies found in the Urban Hamilton Official Plan, including policies E.3.7.1 to.E.3.7.7 ?
Does the proposal comply with the polices of the Urban Hamilton Official Plan Volume 2 Fruitland-Winona Secondary Plan including but not limited to policy B.7.4.6, B.7.4.11.1 a), c) and B.7.4.11.3 a)?
Does the proposed development maintain or enhance the character of the area or neighbourhood?
Is the subject proposal compatible with the surrounding existing uses? Does the proposal protect and preserve employment areas for current and future uses?
Does the proposal conform to Policy E.5.2.7.1 b)?
Does the proposal conform to the urban design policies of the Urban Hamilton Official Plan, including but not limited to B.3.3.3.1, B.3.3.3.2 a), B.3.3.3.3, B.3.3.3.5?
Are the proposed scale, density and height of the proposed development appropriate for this location?
Does the proposal have any adverse impacts on the surrounding existing development or are there potential adverse impacts from surrounding industrially zoned properties with respect to land use compatibility and if so, have those impacts been appropriately mitigated?
Are the proposed site specific performance standards compatible and in keeping with the intent of the Zoning By-law?
Does the proposed development represent good land use planning and is in the public interest?
Is a holding provision appropriate for the proposed development, and if so, what are the appropriate provisions to include, including addressing matters of servicing?
NATURAL HERITAGE
Is the development proposal consistent with the Provincial Policy Statement in terms of policies 1.1.1 h, i; 1.7.1 k), 1.8.1 f, g; 2.1.1, 2.1.2, 2.1.3, 2.1.5, 2.1.6, 2.1.7, and 2.1.8?
Has the applicant's Environmental Impact Statement been prepared as required under the Urban Hamilton Official Plan, including but not limited to Volume 1 policies F.3.2.1.1, F.3.2.1.2, F.3.2.1.5, F.3.2.1.7?
Does the applicant's Environmental Impact Statement demonstrate that the boundaries of the Core Areas comply with the Urban Hamilton Official Plan policies, including but not limited to Volume 1 policy C.2.2.2?
Does the applicant's Environmental Impact Statement demonstrate that the features and functions of the Core Areas shall not be negatively impacted, including required setbacks, as required under the Urban Hamilton Official Plan, including but not limited to Volume 1 policies C.2.3, C.2.3.3, C.2.5.4, C.2.5.5, C.2.5.8, C.2.5.9, C.2.5.12, C.2.5.13, F.3.2.1.2, F.3.2.1.10 and Volume 2 policies B.7.4.7.5, B.7.4.11.1, B.7.4.11.2, and B.7.4.11.3?
Has adequate consideration been given to the protection trees in conformity with Urban Hamilton Official Plan Volume 1 policy C.2.11.1 concerning matters included, but not limited to, the removal of private trees and the ecological impacts on the Core Areas?
Does the proposed Zoning By-law amendment conform to the Urban Hamilton Official Plan policy C.2.2.8?
TRAFFIC
Does the development provide an appropriate form of traffic control to foster safety for all road users and provide and acceptable multi-modal level-of-service?
Is the development proposal consistent with the Provincial Policy Statement (2020) (“PPS”) in terms of policies 1.6.7 for transportation systems?
Does the proposal comply with the Urban Hamilton Official Plan to assess the impact of proposed developments on current travel patterns and/or future transportation requirements to ensure movement of people and goods, including but no limited to policies C.4.5.9 and C.4.5.12?
Does the proposal propose adequate access points to arterials roads and proactive safety measures as required by Urban Hamilton Official Plan (C.4.5.8 and C.4.5.14)?
SUSTAINABLE COMMUNITES
Are the applications consistent with the Employment Area policies of the Provincial Policy Statement, including policies 1.3.2.1, 1.3.2.2, 1.3.2.4, 1.3.2.5 and 1.3.2.6?
Do the applications conform with the Employment policies of the Growth Plan for the Greater Golden Horseshoe, including policies 2.2.5.1, 2.2.5.5, 2.2.5.7, 2.2.5.8, 2.2.5.9, 2.2.5.10, 2.2.5.13, 2.2.5.17?
Is there a sufficient supply of Employment Land in the Urban Area of Hamilton to accommodate the employment forecast in Section A.2.3.3 of Volume 1 of the Urban Hamilton Official Plan?
Would the conversion of the subject lands result in a deficit of Employment Land as forecasted in Section A.2.3.3 of Volume 1 of the Urban Hamilton Official Plan?
Do the applications conform to the Employment Area policies of Volume 1 of the Urban Hamilton Official Plan, specifically Polices B.3.1.2?
Do the applications conform to the Employment Area designation policies of Volume 1 of the Urban Hamilton Official Plan, specifically Policies E.5.1.2, E.5.1.4, E.5.1.11, E.5.1.16, E.5.1.17, E.5.2.6, E.5.2.7.1 b)?
Do the applications conform to the Official Plan Amendment policies in Volume 1, Chapter F of the Urban Hamilton Official Plan, specifically F.1.1.4, F.1.1.5, F.1.1.6, F.1.13?
Does the proposed Official Plan Amendment represent good land-use planning and is it in the public interest?
ATTACHMENT 4
ORDER OF EVIDENCE
Losani Homes (1998) Ltd.
City of Hamilton
Losani Homes (1998) Ltd., in reply