Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 07, 2024

CASE NO(S).: OLT-23-000937 OLT-23-000906 OLT-24-000393

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Cytec Canada Inc. & 2610823 Ontario Inc. Applicant: City of Niagara Falls Subject: OPA 147 Description: Proposed modifications to implement the City’s Employment Lands Strategy Reference Number: By-law No. 2023-037 Property Address: Employment Lands within the City of Niagara Falls Municipality/UT: City of Niagara Falls / Region of Niagara OLT Case No.: OLT-23-000937 OLT Lead Case No.: OLT-23-000937 OLT Case Name: Cytec Canada Inc. & 2610823 Ontario Inc. v. Niagara (City)

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

Applicant and Appellant: 2610823 Ontario Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a mixed-use community consisting of 1,344 dwelling units, including 679 detached dwellings, 155 on-street townhomes and 510 multi-residential dwelling units Reference Number: AM-2021-16 Property Address: 8970 & 9015 Stanley Avenue Municipality/UT: City of Niagara Falls / Region of Niagara OLT Case No.: OLT-24-000393 OLT Lead Case No.: OLT-24-000393 OLT Case Name: 2610823 Ontario Inc. v. Niagara Falls (City)

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

Applicant and Appellant: 2610823 Ontario Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a mixed-use community consisting of 1,344 dwelling units, including 679 detached dwellings, 155 on-street townhomes and 510 multi-residential dwelling units Reference Number: AM-2022-015 Property Address: 8970 & 9015 Stanley Avenue Municipality/UT: City of Niagara Falls / Region of Niagara OLT Case No.: OLT-24-000394 OLT Lead Case No.: OLT-24-000393

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Cytec Canada Inc. Subject: By-law No. 2023-078 Description: To implement a residential plan of subdivision consisting of 498 dwelling units Reference Number: AM-2023-007 Property Address: 9304 McLeod Road Municipality/UT: City of Niagara Falls / Region of Niagara OLT Case No.: OLT-23-000906 OLT Lead Case No.: OLT-23-000906 OLT Case Name: Cytec Canada Inc. v. Niagara Falls (City)

Heard: July 18, 2024, by video hearing

APPEARANCES:

Parties	Counsel
800460 Ontario Ltd. ("800460")	T.A. Richardson Sara Premi Evan Alderman (student-at-law)
Cytec Canda Inc. ("Cytec")	Al Burton Jeffrey Wilker (in absentia)
2610823 Ontario Inc. ("2610823")	Nancy Smith Jennifer Ricci Meredith Baker (in absentia)
City of Niagara Falls ("City")	Paul DeMelo
Regional Municipality of Niagara ("Region")	Naomi Mares Alexander Suriano (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY KURTIS SMITH ON July 18, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Case Management Conference (“CMC”) was held to further advance OLT Case Nos.: OLT-23-000937 (“Official Plan Amendment 147 Appeals (“OPA-147”)”) and OLT-23-000906 (“Zoning By-law Amendment Appeal (“ZBA”)”), and to introduce OLT-24-000393 which are all related to one another.

BACKGROUND

Official Plan Amendment 147 Appeals

2OPA 147 is a Municipal initiated amendment which designates, and addresses polices relating to conversion of Employment Lands to alternate land uses. Specifically, the appeals are brought in connection to the lands known as 9304 McLeod Road and 9015 Stanley Avenue in the City of Niagara Falls. The Parties to this matter are as follows:

Party:	Name:	Note:
Appellant	2610823 Ontario Inc.	Owner of 8970 and 9015 Stanley Avenue
Appellant	Cytec Canada Inc.	Adjacent landowner of 9304 McLeod Road
Added Party	800460 Ontario Ltd.	Owner of 9304 McLeod Road
Statutory Parties:	City of Niagara Falls Regional Municipality of Niagara

32610823 has retained the right to seek Party Status in the site-specific appeal of 9304 McLeod Road until the time the Tribunal Procedural Order (“PO”) and Issues List (“IL”) is issued by the Tribunal.

Zoning By-law Amendment Appeal

4This matter is a third-party appeal brought forward by Cytec, a neighbouring business and property owner of 9304 McLeod Road, against the rezoning application sought by 800460 in connection to the land use designation contemplated in OPA 147. The Parties to this matter are as follows:

Party:	Name:	Note:
Appellant	Cytec Canada Inc.	Adjacent landowner of 9304 McLeod Road
Applicant	800460 Ontario Ltd.	Owner of 9304 McLeod Road
Statutory Parties:	City of Niagara Falls Regional Municipality of Niagara

FIRST CASE MANAGEMENT CONFERENCE of OLT-24-000393

Introduction

5The following appeals were filed following the City’s failure to make a decision on the requested OPA and ZBA sought by 2610823 for the lands municipally known as 8970 and 9015 Stanley Avenue in the City. The requested amendments are in relation to the above-mentioned appeals. The amendments are sought to facilitate the development of a mixed-use community of 1,344 dwelling units on the Stanley Avenue Lands. The Parties to this matter are as follows:

Party:	Name:	Note:
Applicant/Appellant	2610823 Ontario Inc.	Owner of 8970 and 9015 Stanley Avenue
Statutory Parties:	City of Niagara Falls Regional Municipality of Niagara (Provisional Party Status)

6The Tribunal received and marked the Affidavit of Service of the Notice of the CMC, sworn by Louise Clare Sudac as Exhibit 1. There were no issues with the Service of Notice of the CMC, and as such, no further notice is required.

Status Requests

7Prior to the commencement of the CMC, the Tribunal received six Participant Status requests and no Party Status requests.

8The Participant Status requests were received from (1) John Morocco, (2) Sarah Ward, (3) Martine Esraelian, (4) Stanlee Hickey, (5) Leslie Laan, and (6) the Niagara Peninsula Conservation Authority who is represented by Tim Duncan.

9The City and Region did not object to the granting of the six requests.

10Ms. Smith, Counsel for the Applicant/Appellant, 2610823, raised the issue with (3) Martine Esraelian and (4) Stanlee Hickey and requested they submit an updated Participant Statement if status was granted for the following reasons. Ms. Smith noted that Martine Esraelian’s request was written and read similar to an expert witness and took issue with connecting her education and work experience into opinion evidence instead of providing a statement as a lay person. While addressing Stanlee Hickey’s statement, Ms. Smith expressed her concern of some language used in the statement communicating that the Tribunal makes decisions based on land use matters and does not assess good or bad faith and requested that if Stanlee Hickey is granted status that an updated statement be submitted using appropriate language prior to the Participant Statement deadline that will be included in the Procedural Order and Issues list.

11Both Martine Esraelain and Stanlee Hickey attended the CMC. Unfortunately, due to technical difficulties, Stanlee Hickey was unable to communicate, however, did confirm with the Case Coordinator their understanding following the CMC. Martine Esraelain communicated to the Tribunal during the CMC they understood the concern and would update their statement if granted status.

12The Tribunal granted all six Participant Status requests and directed Martine Esraelain and Stanlee Hickey to update their statements and submit them to the Tribunal on or before the deadline that will form part of the Procedural Order.

13During the CMC Cytec requested the right to seek Party Status in these proceedings.

Policy 7.12.2.5. – Region Official Plan

14Ms. Smith introduced the topic of Policy 7.12.2.5 of the Region’s Official Plan (“ROP”). This policy relates to the Clergy Principle, a discretionary principle applied by the Tribunal to address the inherent unfairness to an Applicant having to deal with a moving target while their development proposal goes through a lengthy approval process.

15The Parties are in agreement that the policies in place at the time the applications were deemed complete, being December 13, 2021, for the Official Plan Amendment and June 9, 2022, regarding the Zoning By-law Amendment are the applicable policies.

16Mr. DeMelo, Counsel for the City agreed, however stated “but we need to consider evolving policy.”

Procedural Order

17The Tribunal was in receipt of the Draft Procedural Order (“DPO”) prior to the CMC, however, it did not include the Issues List (“IL”). The hearing date provided in the DPO is March 24, 2025, as this matter will be heard during Phase 2 as outlined in the CMC Decision issued on May 6, 2024, by Vice Chair Vincent.

18Ms. Smith requested that the DPO be approved and ordered during the CMC and requested that the IL be finalized by a later date. Ms. Smith stated that this unprecedented request is to ensure the scheduling of hearing dates due to changing legislation.

19Following a brief discussion, the Parties consented to September 20, 2024, for the filing of the IL for this matter.

20The Tribunal directed the Parties to work collaboratively to finalize the DPO and IL and to submit the DPO and IL to the Tribunal on consent on or before September 20, 2024, and confirmed that the matter will be heard together during the previously scheduled hearing taking place during Phase 2 of the proceedings.

ZONING BY-LAW AMENDMENT APPEAL AND BILL 185 CUTTING RED TAPE TO BUILD MORE HOMES ACT, 2024

21As noted above, ZBA Appeal (OLT-23-000906) is considered a third-party appeal as the amendment sought by 800460 was approved by the City, followed by an appeal filed by Cytec.

22Mr. Richardson, Counsel for the Applicant brought to the Tribunal’s attention a recent decision by Member K.R. Andrews 1000726373 Ontario Inc. v Greater Sudbury (City), 2024 CanLII 62415 (ON LT), OLT Case No. OLT-23-001256, which dismissed an appeal pursuant to s. 34(19.0.0.2) (a) and 34 (19.0.0.3) of the Planning Act (“Act”).

23As explained in the above-noted case, Bill 185 limited Third-Party Appeals brought pursuant to s. 34(19) of the Planning Act, like this matter. Transitionary provisions set out at s. 34(19.0.0.2) (a) and 34 (19.0.0.3) of the Act, dismiss these types of Appeals unless, prior to April 10, 2024 (“the legislated cutoff date”), the Tribunal has scheduled a Merit Hearing.

24The relevant transition provisions are copied below:

Same, retroactive effect

(19.0.0.2) An appeal under subsection (19) made before the day subsection 5 (7) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force by a person or public body not described in paragraph 1, 2, 2.1, 2.2 or 3 of subsection (19) of this section as it reads on the day subsection 5 (7) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force shall be deemed to have been dismissed on that day unless,

(a) a hearing on the merits of the appeal had been scheduled before April 10, 2024; or

(b) a notice of appeal was filed by a person or public body listed in paragraph 1, 2, 2.1, 2.2 or 3 of subsection (19) of this section as it reads on the day subsection 5 (7) of Schedule 12 to the Cutting Red Tape to Build More Homes Act, 2024 comes into force of this section in respect of the same by-law to which the appeal relates. 2024, c. 16, Sched. 12, s. 5 (8).

Same hearing on the merits

(19.0.0.3) For the purposes of clause (19.0.0.2) (a), a hearing on the merits of an appeal is considered to be scheduled on the date on which the Tribunal first orders the hearing to be scheduled, and is not affected by an adjournment or rescheduling of the hearing. 2024, c. 16, Sched. 12, s. 5 (8)

25On June 6, 2024, Bill 185 came into full force and effect and as such the Tribunal conducted an internal review of all third-party appeals was completed. Appeals that had not been scheduled before April 10, 2024, were flagged and the Tribunal has communicated that those appeals have been deemed to be dismissed.

26Whilst the merit hearing pertaining to this matter was scheduled during March 7, 2024, CMC, over a month prior to the legislative cutoff date, Mr. Richardson argues that the Memorandum of Oral Decision and Order had not been issued until May 6, 2024, almost one month following the legislative cutoff date, thus stating the appeal is no longer valid.

27Importantly, the Tribunal does not require the scheduling of proceedings by way of Order. Various types of proceedings before the Tribunal proceed directly to a hearing on the merits, and the scheduling of these matters is done by way of a Notice of Hearing. The Tribunal also gives formal direction in ways other than Orders, such as by way or Oral Decision at a CMC, as it did in this case. All of which still confirm the scheduling of hearings, consistent with the requirements of Bill 185.

28Moreover, following a CMC, Parties, Participants and the Tribunal will advance the directives prior to the formal issuance of a decision. For example, where an oral decision for a CMC is provided, the issuance of the decision may not be completed prior to directives provided, such as imposed deadlines or subsequent hearing events (such as merit hearing, CMC or Motion). The outcome of the oral decision of the CMC is still valid thus the deadlines are still adhered to and/or the next hearing event takes place regardless of when the decision is issued, since the directives of the deadlines or the scheduling of the next event(s) is established at the CMC. Therefore, despite the above-cited decision in OLT-23-001256, I find that the issuance of the written Order and the effective date of the oral Order in this matter is irrelevant to understanding when the scheduled date was “first ordered” by the Tribunal.

29The Tribunal confirmed that the ZBA Appeal is still valid as the scheduling of the merit hearing occurred on March 7, 2024, prior to the legislative cutoff date.

SCHEDULING OF MOTION DATES

Motion – Seeking Production of Documents

30At the time of this CMC, the issue of the production of documents had not been resolved following the previous CMC that took place on June 12, 2024.

31During that CMC the Tribunal directed 800460 to revise and scope its documents request by June 17, 2024. Mr. Richardson confirmed this was completed.

32Following the revised and scoped document list, Cytec was to provide the Parties (not the Tribunal) with a list of documents in its possession, power, or control that fall within the scope of the requested documents. Cytec provided the other Parties with a list, however several of the documents are privileged or statute-barred from production or contain confidential information that may need to be redacted.

33Mr. Burton explained that it will take an abundance of time to compile all of the requested documents, therefore requesting 800460 to further revise and scope its request.

34As a result of the above, Mr. Richardson requested a new date for a Motion date be Scheduled.

Motion to Resolve Issues List

35Ms. Mares, Counsel for the Region requested that a Motion date be scheduled to solve the five outstanding IL disputes in relation to the OPA 147 Appeals and the ZBA Appeal.

36The Tribunal directed the Parties to submit and file the DPO and IL on consent following the determination of the Motion.

Scheduling of the Motions

37The Parties 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. The Tribunal scheduled the hearing to proceed by video as follows:

Monday, September 16, 2024 at 10 a.m. (One-Day Motion – Seeking Production of Documents)

GoTo Meeting: https://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

Audio-only telephone line: +1 (647) 497-9373 or (Toll-free) 1-888-299-1889

Audio-only access code: 519-389-173

Tuesday, September 17, 2024 at 10 a.m. (One-Day Motion to Resolve Issues List)

GoTo Meeting: https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889

Audio-only access code: 709-076-365

38Parties 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

39Persons 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.

40Individuals 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

41THE TRIBUNAL ORDERS that:

a. OLT Case No. OLT-24-000393 be heard together with OLT Case Nos. OLT-23-000906 and OLT-000937 as previously scheduled.

b. Cytec Canada Inc. retains the right to seek Party Status for OLT Case No. OLT-24-000393 up until the time the Procedural Order and Issues List is issued by the Tribunal.

c. Participant Status is granted to (1) John Morocco, (2) Sarah Ward, (3) Martine Esraelian, (4) Stanlee Hickey, (5) Leslie Laan, and (6) the Niagara Peninsula Conservation Authority for OLT Case No. OLT-24-000393.

d. The Draft Procedural Order and Issues List for OLT Case No. OLT-24-000393 is to be submitted to the Tribunal on the consent of the Parties on or before Friday, September 20, 2024.

e. A Motion hearing, Seeking Production of Documents is Scheduled for Monday, September 16, 2024, at 10 a.m.

f. A Motion hearing, Resolve the Issues List is Scheduled for Tuesday, September 17, 2024, at 10 a.m.

g. No further notice is required, and the Member is not seized but may be called upon in the event that assistance is required in implementing this Order.

“Kurtis Smith”

Kurtis Smith

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.