1454417 Ontario Ltd. v. Welland (City), 2024 CanLII 79150

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 16, 2024

CASE NO(S).: OLT-24-000444

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

Applicant: Upper Canada Consultants

Appellant: 1454417 Ontario Ltd.

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

Description: To permit a street townhouse development and a mixed-use apartment development.

Reference Number: OPA 48

Property Address: 44 Heron Street

Municipality/UT: Welland

OLT Case No.: OLT-24-000444

OLT Lead Case No.: OLT-24-000444

OLT Case Name: 1454417 Ontario Ltd. V. Welland (City)

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

Applicant: Upper Canada Consultants

Appellant: 1454417 Ontario Ltd.

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

Description: To permit a street townhouse development and a mixed-use apartment development.

Reference Number: 2023-48

Property Address: 44 Heron Street

Municipality/UT: Welland

OLT Case No.: OLT-24-000445

OLT Lead Case No.: OLT-24-000444

Heard: July 25, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

1454417 Ontario Ltd.

Tom Hanrahan

Patrick Mahoney (in absentia)

City of Welland

Callum Shedden

MEMORANDUM OF ORAL DECISION DELIVERED BY C. I. MOLINARI ON JUly 25, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Case Management Conference (“CMC”) in respect of appeals filed pursuant to s. 22(7) and 34(11) of the Planning Act by 1454417 Ontario Ltd. against the City of Welland’s refusal of Official Plan Amendment and Zoning By-law Amendment Applications. The Applications would facilitate the development of a street townhouse and mixed-use apartment with commercial and amenity spaces on the property known municipally as 44 Heron Street.

NOTICE

2An Affidavit of Service sworn on June 20, 2024, attesting to the giving of notice for this proceeding, was marked as Exhibit 1. There were no concerns raised regarding the notice, and the Tribunal was satisfied that proper notice of the CMC was provided. In this regard, no further notice is required.

PARTIES / PARTICIPANTS

3There were no requests for Party or Participant status either before or during the CMC.

DRAFT PROCEDURAL ORDER

4The Tribunal was in receipt of a draft Procedural Order (“PO”) with an Issues List (“IL”) attached. Mr. Shedden confirmed that the IL is complete and in its final form.

5The Parties agreed to reinsert into the PO the requirement for the Statement of Agreed Facts, the Witness Statements, and any Reply Witness Statements to be filed with the Tribunal within the required timeframes, and to submit the PO to the Tribunal in its final form as soon as possible, in order to be attached to the Decision.

6After the CMC, the Tribunal received the final PO with the additions as noted above reinserted and with the Merit Hearing and filing dates included based on the hearing event dates set out below.

NEXT STEPS

7The Tribunal engaged the Parties in a discussion about the next steps in the process, including expectations for a second CMC and the requirements for a Merit Hearing.

8The Parties did not anticipate a second CMC would be required and considered a three-day Merit Hearing sufficient.

HEARING EVENTS

9At the request of the Parties, the Tribunal scheduled a three-day Merit Hearing commencing on Monday, January 13, 2025, at 10 a.m., by Video Hearing through to Wednesday, January 15, 2025.

10The Video Hearing is scheduled to proceed as follows:

GoTo Meeting: https://global.gotomeeting.com/join/765631861

Access Code: 765-631-861

11Parties are asked to log into the Video Hearing at least 15 minutes before the start of the event to test video and audio connections.

12Parties 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 GoTo Meeting or a web application is available at: https://app.gotomeeting.com/home.html

13Persons 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 the audio-only telephone line: +1 (647) 497-9391 or (Toll-Free) 1-888-455-1389. The access code is the same as the access code noted above.

14Individuals are directed to connect to the event on the assigned dates at the correct times. It is the responsibility of the persons participating in the Video Hearing to ensure that they are properly connected at the correct time. Questions prior to these hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

MEDIATION

15The Tribunal advised the Parties of the option of Tribunal-led mediation and to contact the Case Coordinator to determine next steps if the need for mediation arises.

ORDER

16THE TRIBUNAL ORDERS that a three-day Merit Hearing will be held by Video Hearing as scheduled above.

17THE TRIBUNAL ORDERS that the Procedural Order attached hereto as Schedule A is in full force and effect and shall govern the Merit Hearing.

18No further notice is required.

19The Member is not seized of this matter.

“C. I. Molinari”

C. I. MOLINARI

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.

SCHEDULE A

CASE NO(S).: OLT-24-000444

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

Applicant: Upper Canada Consultants

Appellant: 1454417 Ontario Ltd.

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

Description: To permit a street townhouse development and a mixed-use apartment development.

Reference Number: OPA 48

Property Address: 44 Heron Street

Municipality/UT: Welland

OLT Case No.: OLT-24-000444

OLT Lead Case No.: OLT-24-000444

OLT Case Name: 1454417 Ontario Ltd. V. Welland (City)

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

Applicant: Upper Canada Consultants

Appellant: 1454417 Ontario Ltd.

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

Description: To permit a street townhouse development and a mixed-use apartment development.

Reference Number: 2023-48

Property Address: 44 Heron Street

Municipality/UT: Welland

OLT Case No.: OLT-24-000445

OLT Lead Case No.: OLT-24-000444

PROCEDURAL ORDER

The Tribunal orders that:

1. The Tribunal may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order.

Organization of the Hearing

2. The hearing will commence on January 13, 2025 at 10:00 a.m. and will be a virtual hearing.

3. The length of the hearing will be three (3) days. The length of the hearing may be shortened as issues are resolved or settlement is achieved.

4. The parties are listed in Attachment 1 to this Order. All parties shall attend the first day of the hearing. All parties (or their representatives) shall provide a mailing address, email address, and telephone number to the Tribunal. Any such person who retains a representative (legal counsel or agent) subsequent to the case management conference must advise the other parties and the Tribunal of the representative's name, mailing address, email address and phone number.

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

6. The order of evidence shall be as listed 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 consent or by Order of the Tribunal.

Requirements Before the Hearing

7. A party who intends to call witnesses, whether by summons or not, shall provide to the OLT case co-ordinator, the other parties and the City Clerk a list of the witnesses and the order in which they will be called. This list must be delivered by September 13th, 2024. For expert witnesses, a party is to include a copy of the curriculum vitae and the area of expertise in which the witness is proposed to be qualified.

8. Expert witnesses in the same field shall have a meeting on or before October 14th, 2024 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to the OLT case co-ordinator, all of the parties and the City Clerk on of before December 23rd, 2024.

9. An expert witness shall prepare an Expert Witness Statement that shall include: an acknowledgement of expert’s duty form, the area(s) of expertise, any reports prepared by the expert, and any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 11 below. Instead of an Expert 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.

10. 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 and his or her area of expertise, as in paragraph 11 below.

11. On or before November 13th, 2024, the parties shall provide copies of their Witness and/or Expert Witness Statements to the OLT case co-ordinator and other parties and the City Clerk in accordance with paragraph 18.

12. On or before December 13th, 2024, the parties shall provide copies of Reply Witness Statements, if any, to the OLT case co-ordinator and other parties and the City Clerk.

13. On or before December 23rd, 2024, the parties shall provide copies of their visual evidence to all of the other parties. If a model is proposed to be used the Tribunal must be notified before the hearing. All parties must have a reasonable opportunity to view it before the hearing.

14. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on of before January 3rd, 2025.

15. A person wishing to change written evidence, including witness statements, after witness statements and reply witness statements have been filed must make a written motion to the Tribunal in accordance with the Tribunal’s Rules 34 to 38.

16. A party who provides the written evidence of a witness to the other parties must have that witness attend the hearing to give oral evidence, unless the Tribunal and the parties are notified at least 7 days before the hearing that the written evidence is not part of their record.

17. On or before January 3rd, 2025, the parties shall prepare and file a hearing plan with the OLT case co-ordinator at least 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.

18. 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 10 MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

19. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rules apply to such requests.

20. A summary of the various filing dates is contained in Attachment 4.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES

1. 1454417 Ontario Ltd.

c/o Sullivan Mahoney LLP

40 Queen St

St. Catharines, ON L2R 6Z2

Patrick Maloney

Tel: 905-688-5403

Email: pmaloney@sullivanmahoney.com

2. The City of Welland

c/o Daniel & Partners LLP

300B Fourth Ave., First Floor

St. Catharines, ON L2S 0E6

Callum Shedden

Tel: 905-688-9411

Email: sheddenc@niagaralaw.ca

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet, but shall not preclude any other party from calling evidence on the issue.

1. Do the Applications have appropriate regard for matters of provincial interest set out in Section 2 of the Planning Act, as amended?

2. Are the Applications consistent with the Provincial Policy Statement, 2020?

   1. The application of the “consistency with” test will consider, but not be limited to the following policies of the PPS, 2020:

i. 1.1.1

ii. 1.1.3.1, 1.1.3.2, 1.1.3.3

iii. 1.2.1

iv. 1.4.1, 1.4.3

v. 1.5.1

vi. 1.6.1, 1.6.3, 1.6.6.1, 1.6.6.2, 1.6.6.7, 1.6.7, 1.6.8.3

vii. 1.7.1

viii. 2.6.2

ix. 4.6

3. Do the Applications conform to the Growth Plan for the Greater Golden Horseshoe, 2020 as amended?

   1. The application of the conformity test will consider, but not be limited to the following policies of the Growth Plan, 2020;

i. 1.2.1

ii. 2.2.1.2, 2.2.1.3, 2.2.1.4

iii. 2.2.6.1

iv. 2.2.7.1, 2.2.7.2

v. 3.2.2.2

vi. 3.2.6.2

vii. 3.2.7.2

4. Do the Applications conform to the Region of Niagara Official Plan

   1. The application of the conformity test will consider, but not be limited to the following policies of the NOP;

i. 2.2.1, 2.2.2.23, 2.2.2.24, 2.2.2.25

ii. 2.3.1.1, 2.3.3.1

iii. 3.5.3.1

iv. 6.2.1.5, 6.2.1.6, 6.2.1.8

v. 6.3.1

vi. 6.4.2.1, 6.4.2.7

5. Do the Applications conform to the policies, purpose and intent of the City of Welland’s Official Plan?

   1. The application of the conformity test will consider, but not be limited to the following policies of the Official Plan;

i. 2.3

ii. 2.6

iii. 3.1

iv. 3.2

v. 3.3

vi. 3.4

• 3.4.2, 3.4.4

• 3.4.5

vii. 4.2

• 4.2.1

• 4.2.1.5

• 4.2.1.7

• 4.2.1.9

• 4.2.2

• 4.2.2.3

• 4.2.2.4

• 4.2.3

• 4.2.3.1

• 4.2.3.2

• 4.2.3.7

viii. 4.4

• 4.4.2.7

ix. 6.2

• 6.2.3.1

x. 6.4

xi. 6.5

Land Use Compatibility Issues

6. Are the proposed amendments with the Residential Zone provisions in Section 7 of the Welland Zoning By-law 2017-117 appropriate?

7. Are the proposed amendments appropriate for this location, do they represent good land use planning and are they in the public interest?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 1454417 Ontario Ltd.

2. The City of Welland

3. 1454417 Ontario Ltd., in reply if necessary

ATTACHMENT 4

Summary of Filing Dates