ISSUE DATE:
August 27, 2024
CASE NO(S).:
OLT-24-000232
OLT-24-000234
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
2480545 Ontario Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit development of three towers 24, 21 and 16 storeys tall, comprising 583 residential units
Reference Number:
UHOPA-20-027
Property Address:
1629, 1635, 1637 and 1655 Main Street W.
Municipality/UT:
Hamilton
OLT Case No.:
OLT-24-000232
OLT Lead Case No.:
OLT-24-000232
OLT Case Name:
2480545 Ontario 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:
2480545 Ontario Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit development of three towers 24, 21 and 16 storeys tall, comprising 583 residential units
Reference Number:
ZAC-20-042
Property Address:
1629, 1635, 1637 and 1655 Main Street W.
Municipality/UT:
Hamilton
OLT Case No.:
OLT-24-000233
OLT Lead Case No.:
OLT-24-000232
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
17 Ewen (Hamilton) Corp.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit development of 10-storey student rental residence comprised of 359 units
Reference Number:
ZAC-23-020/UHOPA-23-008
Property Address:
17 Ewen Road
Municipality/UT:
Hamilton
OLT Case No.:
OLT-24-000234
OLT Lead Case No.:
OLT-24-000234
OLT Case Name:
17 Ewen (Hamilton) Corp. 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:
17 Ewen (Hamilton) Corp.
Subject:
Application to amend the Zoning By-law-Refusal or neglect to make a decision
Description:
To permit development of 10-storey student rental residence comprised of 359 units
Reference Number:
ZAC-23-020/UHOPA-23-008
Property Address:
17 Ewen Road
Municipality/UT:
Hamilton
OLT Case No.:
OLT-24-000235
OLT Lead Case No.:
OLT-24-000234
Heard:
August 20, 2024 by Video Hearing
Parties
Counsel
17 Ewen (Hamilton) Corp.
Ira Kagan
Sarah Kagan
2480545 Ontario Inc.
Ira Kagan
Sarah Kagan
City of Hamilton
Patrick MacDonald
Mondelez Canada Inc.
Kim Mullin
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON AUGUST 20, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision relates to a first Case Management Conference (“CMC”) conducted by the Tribunal relating to appeals brought pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) from the non-decision by the City of Hamilton (“City”) relating to:
17 Ewen (Hamilton) Corp.’s (“17 Ewen”) applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) relating to lands municipally known as 17 Ewen Road, in the City (“Ewen Site”); and,
2480545 Ontario Inc.’s (“2480545”) applications for an OPA and ZBA relating to lands municipally known as 1629, 1635, 1637 and 1655 Main Street West, in the City (“Main Street Site”).
2For ease, 17 Ewen and 2480545 will be referred to collectively as “Appellants”. Counsel for the Appellants provided the Tribunal with a helpful overview of the appeals explaining that the corporate entities that own the Ewen Site and the Main Street Site are different, but related. He noted that both of the applications for the Ewen Site and the Main Street Site have been revised since originally filed with the City and that details of the revisions were set out in the Notice of CMC.
3McMaster University is in close proximity to both sites. In 2015, the Ewen Site had obtained an Order from the Ontario Municipal Board, the Tribunal’s predecessor, for an OPA and ZBA facilitating the development of a 10-storey student housing development. 17 Ewen is now taking a different approach and is proposing a 19-storey building containing approximately 665 units.
4The proposal for the Main Street Site will share vehicle access off of a public roadway with the Ewen Site. The OPA and ZBA will facilitate the development of three buildings atop a five-storey podium containing approximately 866 units. The three buildings are proposed to be 20, 26 and 28-storeys in height.
5The Tribunal confirmed with Counsel that there were no known issues with service of the Notice of the CMC and as such, no further notice is required. The Tribunal received the Affidavit of Service of Notice of Christopher J. Drew affirmed on August 2, 2024 relating to both appeals, which was marked as Exhibit 1 to the CMC.
HEARING TOGETHER OF 17 EWEN APPEALS AND 2480545 APPEALS
6As pointed out by Counsel for the Appellants, given that the proposed developments contemplate shared vehicle access and that the Ewen Site and Main Street Site are owned by different but related entities, the Parties agreed that it would be appropriate and convenient to hear the appeals together. The Tribunal has confirmed that the Parties and Counsel to the appeals are the same, there is a common subject matter to the appeals, and there will be significant overlap of evidence and witnesses, thereby making it efficient and expedient to have the matters heard together.
7The Tribunal will accordingly make the appropriate order that the appeals relating to OLT-24-000232 and OLT-24-000234 be heard together pursuant to Rule 16 of the Tribunal’s Rules of Practice and Procedure (“Rules”).
STATUS REQUESTS
8In advance of the CMC, the Tribunal received one request for party status from Mondelez Canada Inc. (“Mondelez”). Counsel for Mondelez explained that it owns lands in close proximity to both sites where it operates a food manufacturing facility and as such, has concerns relating to the applications. Given the obvious interest of Mondelez, and with the consensus of the Appellants and the City, the Tribunal finds that Mondelez’s participation in the appeals as a party is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding and granted Mondelez status as a party to the appeals.
9In advance of the CMC, the Tribunal received one request for participant status from Marlene Castura, on behalf of Ainslie Wood Community Association (“AWCA”). When asked by the Tribunal, Ms. Castura advised that she was seeking participant status on behalf of AWCA and has the full support of AWCA. Ms. Castura and AWCA have raised concerns including, but not limited to, height, shadows, wind and density. The Parties did not oppose the participant status request, however, Counsel for the Appellants inquired whether AWCA was an incorporated entity and Ms. Castura responded that she would require time to confirm.
10The Tribunal deferred the participant request of AWCA to the next CMC. In the interim, the Tribunal directed Ms. Castura to make inquiries as to whether AWCA was incorporated and if so, to file Articles of Incorporation and a Confirmation of Representation form with the Tribunal by Wednesday, September 18, 2024. If AWCA is not incorporated, the Tribunal directed Ms. Castura to advise the Tribunal in writing by Wednesday, September 18, 2024. The Tribunal will consider the participant request at the next CMC once it is determined if the request is being made for AWCA as represented by Ms. Castura, or if it is being made for Ms. Castura, in her personal capacity.
OPPORTUNITIES FOR SETTLEMENT / MEDIATION
11Counsel for the Appellants advised that it was interested in pursuing Tribunal-led mediation. Counsel for the City confirmed that a mediation assessment could be pursued in the coming months. Counsel for Mondelez did not have instructions regarding mediation but undertook to obtain instructions and advise the Parties of Mondelez’s position on mediation in advance of the next CMC.
DRAFT PROCEDURAL ORDER AND ISSUES LIST
12The Parties have had discussions regarding draft issues and lists of witness disciplines. The Tribunal directed the City and Mondelez to provide the Appellants with a list of issues and a list of witness disciplines by Friday, August 30, 2024.
13The Tribunal directed Counsel for the Appellants to file a draft Procedural Order and Issues List with the Tribunal by Wednesday, September 18, 2024. The Tribunal further directed the Parties to have discussions in advance of the next CMC regarding the estimated number of hearing days required and to attend the next CMC prepared to set hearing dates.
NEXT STEPS
14Counsel for the City requested that the Tribunal schedule a second CMC during the latter half of September, 2024. The Tribunal agreed and scheduled a further CMC for the purposes of reviewing Ms. Castura’s participant request, reviewing a draft Procedural Order and Issues List and scheduling the hearing of the appeals.
15The next CMC in this proceeding will be conducted by video at 10 a.m. on Wednesday, September 25, 2024.
16Parties 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:
https://global.gotomeeting.com/join/687587165
Access code: 687-587-165
17Parties 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
18Persons 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: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.
19Individuals 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
20Mondelez Canada Inc. is a Party to the proceedings.
21The appeals relating to OLT-24-000232 and OLT-24-000234 shall be heard together pursuant to Rule 16 of the Tribunal’s Rules of Practice and Procedure.
22The case management directives above are so ordered.
23There will be no further notice and this Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.
“C. Hardy”
C. HARDY
VICE-CHAIR
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.