Mikmada (Paramount) Inc. v Hamilton (City), 2024 CanLII 68167

du territoire

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

ISSUE DATE: July 11, 2024

CASE NO(S).: OLT-24-000051

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

Applicant and Appellant: Mikmada (Paramount) Inc.

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

Description: To permit the amendment of the Official Plan and the Comprehensive Zoning By-law

Reference Number: UHOPA-23-005

Property Address: 1065 Paramount Drive

Municipality: Hamilton

OLT Case No.: OLT-24-000051

OLT Lead Case No.: OLT-24-000051

OLT Case Name: Mikmada (Paramount) 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: Mikmada (Paramount) Inc.

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

Description: To permit the amendment of the Official Plan and the Comprehensive Zoning By-law

Reference Number: ZAC-23-006

Property Address: 1065 Paramount Drive

Municipality/UT: Hamilton

OLT Case No.: OLT-24-000052

OLT Lead Case No.: OLT-24-000051

Heard: June 20, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Mikmada (Paramount) Inc. ("Applicant/Appellant")	Russell Cheeseman
City of Hamilton ("City")	Peter Krysiak

MEMORANDUM OF ORAL DECISION DELIVERED BY Y. FAGHANI AND D. CHIPMAN, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision and Order arises from the first Case Management Conference ("CMC") held regarding the appeals filed by the Applicant pursuant to s. 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended. The Applications for an Official Plan Amendment ("OPA") and Zoning By-Law Amendment ("ZBA") seek to permit a residential development, which will consist of one, eight-storey apartment building, in addition to 102 stacked townhouse units with one level of underground parking. Overall, the proposed development will contain a maximum of 299 dwelling units and 309 parking spaces on the lands municipally known as 1065 Paramount Drive, in the City of Hamilton (the "subject lands").

2In order to facilitate the proposed development, an OPA and a ZBA is required to re-designate the subject lands to the 'Neighbourhood' designation, and to redesignate the lands to 'High Density Residential' West Mountain Area (Heritage Green) Secondary Plan, and to rezone the subject lands to 'Multiple Residential' (RM3-XX) Zone, to permit residential uses and the proposed built form.

3The Tribunal had received an Affidavit of Service dated May 14, 2024, confirming that Notice of this CMC was properly given and is therefore marked as Exhibit 1.

STATUS REQUESTS

4The Tribunal is in receipt of nine Participant status requests by the following individuals and confers Participant status to all of them below:

1. Bruce Ross
2. Joanne Ross
3. John Parente
4. Gord Teslic
5. Brad Stapleton
6. Sonia D'Aurelio
7. Bob Popek
8. Laurie Whitely and
9. Paul McDowell

MEDIATION

5The Tribunal notes that Tribunal-led mediation information can be obtained through the Case Coordinator. The Parties further confirmed that they will keep the Tribunal apprised of any developments with their resolution efforts which the Tribunal finds satisfactory.

PROCEDURAL ORDER AND ISSUES LIST

6Counsel for the Applicant submitted a Draft Procedural Order ("DPO") inclusive of an Issues List ("IL") on June 28, 2024, (attached hereto as Attachment 1) for the Tribunal's consideration and approval. The Tribunal approves the DPO and IL as being in force and effect to guide the proceeding of the merit hearing. Any changes to the attached DPO and/or IL must be submitted to the Case Coordinator for the Tribunal's consideration.

HEARING

7At the request of the Parties, the Tribunal has scheduled a nine-day merit hearing to commence on Tuesday, October 1, 2024, at 10 a.m. to be held via Video Hearing.

8Parties 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:

GoToMeeting: https://meet.goto.com/943363669

Access Code: 943-363-669

9Parties 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

10Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: Toll-Free 1-888-299 1889 or +1 (647) 497- 9373. The Access Code is indicated above.

11Individuals 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 Video Hearing 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.

12The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated that there were none.

ORDER

13THE TRIBUNAL ORDERS that:

1. The above-named individuals in paragraph [4] are conferred Participant status.
2. The dates and particulars of the merit hearing are set out above.
3. This Panel is not seized but will continue to manage this file should the need arise.

14No further notice is required.

"Yasna Faghani"

YASNA FAGHANI

MEMBER

"D. Chipman"

D.CHIPMAN

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.

ATTACHMENT 1

CASE NO(S).: OLT-24-000051

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

Applicant/Appellant: Mikmada (Paramount) Inc.

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

Description: To permit the amendment of the Official Plan and the comprehensive Zoning By-law

Reference Number: UHOPA-23-005

Property Address: 1065 Paramount Drive

Municipality: Hamilton

OLT Case No.: OLT-24-000051

OLT Lead Case No.: OLT-24-000051

OLT Case Name: Mikmada (Paramount) Inc. v Hamilton (City)

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

Applicant/Appellant: Mikmada (Paramount) Inc.

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

Description: To permit the amendment of the Official Plan and the comprehensive Zoning By-law

Reference Number: ZAC-23-006

Property Address: 1065 Paramount Drive

Municipality: Hamilton

OLT Case No.: OLT-24-000052

OLT Lead Case No.: OLT-24-000051

OLT Case Name: Mikmada (Paramount) Inc. v Hamilton (City)

Procedural Order

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties' request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Tuesday, October 1, 2024 at 10 a.m.

3. The parties' initial estimation for the length of the hearing is 9 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties' consent, subject to the Tribunal's approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative's name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal's Video Hearing Guide, available on the Tribunal's website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before July 26, 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 August 2, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts' meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before August 9, 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 August 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.

14. On or before August 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.

15. On or before August 30, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before September 20, 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 within ten (10) days after the evidence is received 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 20, 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 Tuesday, September 24, 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.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal's Rule 17 applies to such requests.

Summary of Procedural Dates

Date	Event
Friday, July 26, 2024	Witness List
Friday, August 2, 2024	Final day for expert witness meeting
Friday, August 9, 2024	Statement of Agreed Facts and Issues filed
Friday, August 16, 2024	Expert witness and witness statements due
Friday, August 16, 2024	Written participant statement due
Monday, August 26, 2024	Response to written evidence due
Hearing date confirmation
Friday, September 20, 2024	Visual evidence due
Friday, September 20, 2024	Joint Document Book due
Preliminary hearing plan due
Tuesday, October 1, 2024	Hearing

Attachment 1

List of Parties and Participants

1. Mikmada (Paramount) Inc. Russell D. Cheeseman & Stephanie Fleming Municipal Law Chambers rdcheese@aol.com sfleming@mlawc.com

2. City of Hamilton Peter Krysiak Peter.Krysiak@hamilton.ca

Participants

3. Laurie Whitely
4. Gordon Teslic
5. Paul McDowell
6. Bob Kopek
7. John Parente
8. Brad Stapleton
9. Bruce Ross
10. Joanne Ross
11. Sonia D'Aurelio

Attachment 2

Issues List

PLANNING

1. Is the development proposal consistent with the Provincial Policy Statement (2020) ("PPS") policies 1.1.1 g) and i), 1.1.3.2, 1.1.3.4, 1.6.6.1, 1.6.6.2, 1.4.3 and 1.8.1?
2. Does the development proposal conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019, as amended) policies 2.2.1.4, 2.2.2.3 b), d), a) and 3.2.6.2 a) and b) and 2.2.6 a)?
3. Does the proposal conform to the policies of the Urban Hamilton Official Plan policies B.2.4.1.4 and B.2.4.2.2 related to intensification within the built-up area and intensification within the Neighbourhoods designation?
4. Does the proposal conform to the policies B.2.4.1.4 d), B.2.4.2.2 b), E.3.5.8 c) and E.3.5.9 e) of the Urban Hamilton Official Plan, related to shadowing?
5. Does the proposal meet the City's Sun Shadow Study guidelines?
6. Does the proposal meet the intent of policies B.3.2.4.9 and E.3.5.8 a), related to providing a range and mix of unit sizes?
7. Does the proposal meet the intent of policies B.2.4.1.4 g) and E.3.5.8 b) related to sustainable building design and principles?
8. Does the proposal conform with policy B.2.4.2.2 c) related to the relationship of the proposal with height massing and scale of nearby residential buildings.
9. Does the proposal conform to policies B.2.4.1.4 d) and B.2.4.2.2 b) related to compatibility with existing and future uses and compatibility with adjacent uses?
10. Does the proposal conform to policy C.5.3.6, C.5.3.13 and C.5.3.17 with respect to connection to the City's water and wastewater system and the provision of adequate services?
11. Does the proposal meet the intent of the West Mountain Area (Heritage Green) Secondary Plan policy B.7.6.1.1 related to full urban services being available?
12. Is the proposed building height for the multiple dwelling coupled with the decreases in the side yard, front yard and rear yard setbacks, and decreased landscaped area, among other requested modifications for the entire proposal, an overdevelopment of the site?
13. Is the "High Density Residential 1" Designation in the West Mountain Area (Heritage Green) Secondary Plan an appropriate designation?
14. Are the proposed site specific performance standards compatible and in keeping with the intent of the City of Stoney Creek Zoning By-law No.3692-92?
15. Does the proposed development represent good land use planning and is in the public interest?

Attachment 3

Order of Evidence

1. Mikmada (Paramount) Inc.
2. City of Hamilton
3. Mikmada (Paramount) Inc. in reply