Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 25, 2024

CASE NO(S).: OLT-24-000544

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

Appellant: West End Home Builders Association, Hammer GP LP and Hammer GP Services Corp. & Cadillac Fairview Corporation

Subject: By-law No. 24-052

Description: To amend the Zoning By-law to expand permitted uses in low density residential zones, create the new low density large lot zone, and introduce new parking standards.

Reference Number: By-law No. 24-052

Property Address: City-Wide

Municipality/UT: Hamilton

OLT Case No.: OLT-24-000544

OLT Lead Case No.: OLT-24-000544

OLT Case Name: West End Home Builders Association et al v. Hamilton (City)

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

Appellant: Hammer GP LP and Hammer GP Services Corp. & Cadillac Fairview Corporation

Subject: By-law No. 24-051

Description: To amend the Zoning By-law to expand permitted uses in low density residential zones, create the new low density large lot zone, and introduce new parking standards.

Reference Number: By-law No. 24-051

Property Address: City-Wide

Municipality/UT: Hamilton

OLT Case No.: OLT-24-000544

OLT Lead Case No.: OLT-24-000544

OLT Case Name: Hammer GP LP and Hammer GP Services Corp. et al v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: City of Hamilton

Request for: Request for Dismissal Without a Hearing

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: City of Hamilton

Request for: Request for Directions

Heard: July 19, 2024 by Video Hearing

APPEARANCES:

Parties Counsel

City of Hamilton Patrick MacDonald

West End Home Builders’ Association Denise Baker

Hammer GP LP and Hammer GP Services Corp. Nancy Smith Anna Toumanians (in absentia)

Cadillac Fairview Corporation Max Laskin

The Effort Trust Company Scott Snider

MEMORANDUM OF ORAL DECISION DELIVERED BY C. I. MOLINARI ON JUly 19, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Case Management Conference (“CMC”) in respect of appeals filed pursuant to s. 34(19) of the Planning Act (“Act”) by West End Home Builders’ Association (“WEHBA”), Hammer GP LP and Hammer GP Services Corp. (“Hammer”), and Cadillac Fairview Corporation (“CFC”) (collectively “Appellants”) against the approval by the City of Hamilton (“City”) of City-initiated and City-wide Zoning By-law Nos. 24-051 and 24-052 (“ZBL 051” and “ZBL 052” respectively), being amendments to the City’s comprehensive Zoning By-law No. 05-200 (“ZBL 200”). The Appellants filed the appeals specifically against the electric vehicle parking standards (“EV Parking Standards”) imposed through ZBL 051 and ZBL 052.

2ZBL 051 expands the permitted uses in low density residential zones, creates a new low density residential large lot zone, and introduces a definition of ‘Parking Space, Electric Vehicle’ (“EV Parking Space Definition”), while ZBL 052 introduces new comprehensive parking standards on a City-wide basis.

3This Decision and Order arise from both the CMC and a motion for partial approval filed by the City seeking approval of certain parts of ZBL 051 and ZBL 052 as detailed in paragraphs [39] to [81] (“Motion for Partial Approval”) below.

NOTICE

4An Affidavit of Service sworn on June 25, 2024 (“Affidavit of Service”), 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 this CMC was provided. In this regard, no further notice is required for the appeals.

BILL 185

5Although there were no submissions related to Bill 185, Cutting Red Tape to Build More Homes Act, 2024, which, among other changes to the Act, limits third-party appeals brought pursuant to s. 34(19) of the Act, the Tribunal confirms that the appeals are valid and can be heard before the Tribunal.

PARTIES / PARTICIPANTS

6During the CMC, there were two status requests as discussed below, and no additional requests for Party or Participant status.

Party Status Request

7The Tribunal was in receipt of a request for Party status from The Effort Trust Company (“Trust”) citing concerns associated with infrastructure and cost challenges related to the EV Parking Standards. The Party status request form also referenced bicycle parking standards (“BPS”) and non-residential parking standards as they relate to the EV Parking Standards (“NREVPS”). Mr. Snider explained that the Trust was not aware of the EV Parking Standards in time to file an appeal, but has a direct and specific interest in the EV Parking Standards. He noted that the Trust develops and manages industrial, residential, and commercial projects across the City, has sites with hundreds of parking spaces, and recognizes the sheltering obligations of a non-appellant party.

8Mr. MacDonald noted that the BPS are not under appeal and the NREVPS are not under appeal City-wide, and as such, could not be pursued by the Trust pursuant to Rule 8.3 (“Rule 8.3”) of the Tribunal’s Rules of Practice and Procedure (“Rules”), but that the issue related to the NREVPS could be determined once the Issues List is addressed at a future date. Mr. Snider indicated that it was understood that the BPS are not under appeal. He noted that limiting the NREVPS to a site-specific basis is not reasonable but agreed that the Parties could have those discussions outside of the hearing room, and that it could be determined at a later date. He added that such determination is not relevant to the request for Party status.

9The Trust was granted Party status as a non-appellant Party on consent of the Parties pursuant to ss. 34(24.1) and (24.2) of the Act and in accordance with Rule 8.3 requiring the Trust to shelter under an issue raised by one of the Appellants, in this case being limited to the EV Parking Standards.

10It is noted that Rule 8.3 states that a non-appellant Party may participate fully in the proceeding to the extent that the issue being sheltered under remains in dispute, but that the non-appellant Party has no independent status to continue an appeal should the appeal be withdrawn by an appellant Party.

Participant Status Request

11The Tribunal also received a request for Participant status from Jasminder Brar, with no cited concerns but requesting the Tribunal to expedite the resolution of the appeals given the urgency of the housing crisis. With the consent of the Parties, Participant status request was granted to Mr. Brar.

ORAL MOTION TO DISMISS

12Pursuant to Rule 10.10 of the Rules, the Tribunal granted leave to the City for an oral motion to dismiss appeals filed by Laurie Whitely against ZBL 051 and ZBL 052 (Ms. Whitely also filed an appeal against Zoning By-law No. 24-050 related to the City’s Official Plan Amendment No. 202 (“OPA 202”), which does not form part of these proceedings).

13Rules 10.5 of the Rules requires a notice of motion to be served at least 15 days before the date of the motion to be held in person or by electronic hearing unless the Tribunal orders otherwise. The City sought, and was granted, an abridgement of the notice requirements of Rule 10.5 to allow for the motion to be brought at the CMC, due to the City’s lateness in becoming aware of the circumstances related to Ms. Whitely’s appeals, as addressed below in paragraphs [16] to [26].

14The materials before the Tribunal on the motion to dismiss are:

• Ms. Whitely’s notice of appeal (“NOA”); and
• emails between the City and Ms. Whitely dated May 15, 2024 and May 16, 2024.

15The grounds of appeal listed in Ms. Whitely’s NOA are the following:

a) No formal constituency vote re: amalgamation of the Communities of Ancaster, Flamborough, Glanbrook, former City of Hamilton, and Stoney Creek. It was ordered by then Premier Mike Harris in 2001

b) No formal constituency vote re: Sanctuary City status – 2014

c) No formal constituency vote re: Zoning By-Law Amendments to Urban Hamilton Official Plan

d) 4,823 petition signatures opposing proposed development of 1065 Paramount Drive.

e) Freedom of Information Document sent to City of Hamilton, Planning Department February 23, 2024, requesting initial report given to Mr. John Ariens (Mikmada (Paramount) Inc. (Approximately December 2023) regarding nondecision, Public has not been privy to this report – to date No Results

f) February 2024 – Contact with Integrity Officer Mr. Charles Brown regarding Conflict of Interest between Arcadis (Mikmada (Paramount) Inc.) and City of Hamilton as employees of Arcadis are working within the City of Hamilton (City Hall)

g) See attached presentation submitted by myself to the OLT (Ontario Land Tribunal) opposing proposed development at 1065 Paramount Drive. Initial hearing date scheduled for March 26, 2024, but adjourned by the City of Hamilton. To date no new date set. (Encl.)

Submissions by the Moving Party

16Mr. MacDonald advised that Ms. Whitely filed her appeals before the May 9, 2024 deadline for filing an NOA under s. 34(19) of the Act, and had subsequently withdrawn her appeals on May 15, 2024 via email to him in response to an email from the City to her explaining, and providing reasons, why the grounds of her appeals could not be addressed by the Tribunal. He submitted that he had advised her to notify the City Clerk’s Department (“Clerk’s Department”) in writing of the withdrawal of her appeals. He noted that, although she did not so notify the Clerk’s Department, the City did not forward her NOA to the Tribunal as she had withdrawn her appeals within 15 days after the last day for filing an NOA, and the City was therefore not required to forward the material to the Tribunal pursuant to ss. 34(23) to 34(23.3) of the Act.

17With respect to the need for Ms. Whitely to notify the Clerk’s Department of her withdrawal, Mr. MacDonald submitted that such step is administrative in nature, not explicitly required by the Act, and that Rule 1.3 of the Rules (“Rule 1.3”) provides that matters be adjudicated in a just manner without requiring strict adherence to the Rules. He furthered that it is reasonable for the City and the other Parties to rely on her words in her email “I withdraw my Appeal”, and that it would be prejudicial otherwise.

18Mr. MacDonald further advised that the City had subsequently operated on the basis that her appeals had been withdrawn, noting that Ms. Whitely did not notify him at any time after her email withdrawing her appeals to state that she did not intend to do so, until July 17, 2024 when she advised the City, via email, that she intended to appear at the CMC to proceed with her appeals. He indicated that this necessitated the City to proceed with the oral motion to dismiss her appeals on the basis that the reasons set out in the NOA do not disclose any apparent land use planning grounds upon which the Tribunal could allow all or part of the appeals. He added that her planning concerns are focused on 1065 Paramount Drive, which is the subject of a separate site-specific appeal to which she is seeking status (Tribunal file no. OLT-24-000051) (“1065 Paramount”), and to which neither ZBL 051 nor ZBL 052 would have any impact.

19Regarding notice of the CMC, Mr. MacDonald conceded that the City did not provide her with notice despite her being on the list of persons to be notified of the CMC, as the list noted her appeal as having been withdrawn. He added however, that there was no prejudice to her as she did ultimately receive notice in time for the CMC, was in attendance, and able to speak to the issue.

20Mr. MacDonald submitted that the Tribunal has the power, under s. 34(25)1.i. of the Act, to dismiss an appeal if there are no apparent land use planning grounds upon which the Tribunal could allow the appeal. He maintained that the reasons cited in the NOA are not grounds that the Tribunal has jurisdiction to adjudicate, and that, among the reasons listed, there is no reference to any section in ZBL 051 or ZBL 052. He noted that, other than a reference to 1065 Paramount, which is not the subject of these proceedings, the grounds for appeal are largely with reference to City processes, public engagement, a freedom of information request, and a complaint related to the City’s integrity officer, of which none are land use planning related issues. Additionally, he noted that there is no reference in the NOA to a lack of consistency with the Provincial Policy Statement, 2020 (“PPS”), a lack of conformity with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 as amended (“Growth Plan”), or an applicable official plan, and that the silence on this is relevant and serves as another ground for dismissal under s. 34(25)3 of the Act.

21Citing ss. 19(1)(c) and (d) of the Ontario Land Tribunal Act, 2021 (“OLTA”), Mr. MacDonald noted that the Tribunal may dismiss an appeal without a hearing “if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success” or “in any circumstance listed in subsection 4.6(1) of the Statutory Powers Procedure Act”. Specifically, he referenced s. 4.6(1)(b) of the Statutory Powers Procedure Act (“SPPA”) which provides for the Tribunal to dismiss a proceeding without a hearing if “the proceeding relates to matters that are outside the jurisdiction of the tribunal”. He proffered that Ms. Whitely’s appeals have no reasonable prospect of success given the substance of the grounds of appeal, and that they are outside the jurisdiction of the Tribunal.

22Mr. MacDonald noted that, since her NOA was not forwarded to the Tribunal, Ms. Whitely’s appeals did not go through the Tribunal’s validity screening process, and that it is possible that the appeals would have been rejected by the Tribunal. Further, he noted that, although she sought relief from the appeal fee, the fee was not paid and the relief was not remedied. Additionally, Mr. MacDonald submitted that Ms. Whitely has not suggested that the City did not follow all requirements of the Act for notice of the public meetings, of the passing of ZBL 051 or ZBL 052, or of anything covered in the Affidavit of Service.

23Mr. MacDonald referenced case law including Toronto (City) v East Beach Community Assn., 1996 CarswellOnt 5740 (OMB) (“East Beach”) and Clayton v Hamilton (City), 2022 CanLII 48568 (ON LT) (“Clayton”) in support of the motion to dismiss.

24With respect to East Beach, Mr. MacDonald noted the high-level principles for motions to dismiss that are still relevant and have expanded since East Beach, including that:

• there must be genuine, legitimate, and authentic land use planning reasons in the NOA; and
• the Tribunal must determine whether there is any authenticity in the grounds for appeal and whether they are worthy of the adjudicative process.

25With respect to Clayton, Mr. MacDonald quoted Shakespeare’s “what’s past is prologue” phrase in reference to notice requirements, stating that a mere defect in procedural notification is not fatal to the outcome of a matter, and that appellants are required to lead contrary evidence and not merely rest their case on dissatisfaction with the planning approval process in general, which the Tribunal has no power to remedy.

26Mr. MacDonald summarized that Ms. Whitely’s concerns are largely related to 1065 Paramount, that the broader issues are not land use planning matters on which the Tribunal can rule, and that she previously withdrew her appeal. Citing Rule 1.3 which provides for the Rules to be “liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings”, he proffered that the most just resolution is to allow for the dismissal of Ms. Whitely’s appeal.

Submissions by the Responding Party

27Ms. Whitely provided some context around her appeal noting that, although having advised Mr. MacDonald via email that she would withdraw her appeal, she ultimately decided not to, and didn’t officially withdraw it through the Clerk’s Department, as she was advised to do by Mr. MacDonald. Based on subsequent emails with the Clerk’s Department, she was therefore under the assumption that her appeal had been forwarded to the Tribunal. She added that she only learned of the CMC through inquiring through email to the Clerk’s Department about the status of her appeal, noting that she did not receive notice of the CMC from the City or the Tribunal.

28Ms. Whitely noted that although the reasons for her appeal may not pertain specifically to ZBL 051 or ZBL 052, she wanted an opportunity to address her concerns with the Tribunal related to the “sweeping nature of notices and by-laws that are going through”.

29In response to the City’s motion to dismiss her appeals, Ms. Whitely only offered that she submitted the appeals as a resident of the City and believes she has a right to continue the appeal process.

Disposition of Motion to Dismiss

30The City put forth a fulsome and comprehensive argument as to the merits for the dismissal of Ms. Whitely’s appeals. Ms. Whitely’s submissions and response to the City’s submissions amounts to no defense against the motion and provides no basis on which the motion could be denied, particularly since she did not address ZBL 051 or ZBL 052 in her appeal or in her submissions. In addition, Ms. Whitely did not submit the referenced emails from the Clerk’s Department notifying her that her appeals had been forwarded to the Tribunal, nor does the Tribunal have record of her appeals.

31The Tribunal finds that the appeals were withdrawn by Ms. Whitely by way of her email to the City sent on May 15, 2024, and that they are therefore not validly before the Tribunal. That she did not contact the Clerk’s Department in writing of her withdrawal is not determinative, nor does it negate the withdrawal of the appeals. In this circumstance, the Tribunal is therefore not required to determine the motion to dismiss. For certainty however, even if the appeals were to be determined to be validly before the Tribunal, they would be dismissed based on the reasons given below.

32The Tribunal’s jurisdiction to dismiss an appeal without a hearing is established in s. 34(25) of the Act, including, among other grounds, if the Tribunal is of the opinion that "the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal”, or if the “appellant has not paid the fee charged by the Tribunal”.

33In addition, s. 19(1) of OLTA provides the authority for the Tribunal to dismiss an appeal without a hearing if it is of the opinion that the proceeding has “no reasonable prospect of success”. Additionally, as authorized by s. 4.6(1) of the SPPA, Rule 15.4 of the Rules provides for the Tribunal to dismiss a matter by adjudicative order where the appeal deals with matters that are outside the jurisdiction of the Tribunal.

34These grounds for dismissing an appeal are disjunctive and the Tribunal need only find that one of the grounds set out in the Act, OLTA, or the SPPA is met to warrant dismissing an appeal.

35Although the Tribunal understands that Ms. Whitely is self-represented and may be relatively inexperienced in land use planning matters and the Tribunal’s appeal processes, in bringing an appeal before the Tribunal it is necessary for an appellant to put forward a legitimate evidentiary case to support an appeal. In this case, based on her grounds of appeal, it would be impossible for her to mount such a case within the purview of land use planning.

36The Tribunal is mindful that allowing an appeal to proceed to a full hearing where there is no likelihood that the appeal would be upheld would be patently unfair to the City and the Appellants. In the circumstances, the Tribunal would not be satisfied there would be a reasonable prospect for the appeal to be successful nor that there would be any land use planning basis for the appeal, and therefore, the holding of a hearing on the merits would not be justifiable.

37In this respect, although Ms. Whitely could have sought to be added as a party to the existing appeals, she did not request to be added, and the Tribunal would not have granted such a request for the reasons provided above.

38Furthermore, it is noted that neither the appeals by Ms. Whitely, nor the findings by the Tribunal on her appeals, impact the disposition of the Tribunal on the Motion for Partial Approval.

MOTION FOR PARTIAL APPROVAL

39The City filed an additional motion, on consent of the Appellants, seeking an order for partial approval, and for the deeming of parts of ZBL 051 and ZBL 052 to be in force. Specifically, the relief requested is for:

a. An approval of a settlement of the appeals of City of Hamilton Zoning Bylaw 24-051 pursuant to subsection 34(26)(b) of the Planning Act by deleting the definition “Parking Space, Electric Vehicle” (which will allow for the coming into force of the remainder of said by-law pursuant to subsection 34(30) of the Planning Act following the withdrawal of all remaining appeals thereof); and

b. An order pursuant to subsection 34(31) of the Planning Act to bring into force those parts of City of Hamilton Zoning By-law 24-052 that are not under appeal which are in the form of the draft orders attached as Tabs 3 and 4 to the City’s Motion Record;

40An Affidavit of Service and supplemental Affidavit of Service sworn on July 9, 2024 and July 19, 2024 respectively, attesting to the service of the City’s motion material and supplemental motion material, were marked as Exhibits 2 and 4. There were no concerns raised regarding the notice and the Tribunal was satisfied that proper notice of the motion was provided.

41The materials before the Tribunal on the motion for partial approval are:

• Notice of Motion of the City dated July 4, 2024, including:
  • an Affidavit of Alana Fulford sworn on June 28, 2024; and
  • draft Orders for ZBL 051 and ZBL 052;
• Supplemental Affidavit of Alana Fulford sworn on July 17, 2024 (“Supplemental Affidavit”); and
• Revised draft Order for ZBL 052.

42The grounds for the motion are summarized as:

• significant public interest in the implementation of ZBL 051 and ZBL 052, which make amendments to ZBL 200;
• the City passed ZBL 051 and ZBL 052 on April 10, 2024 and subsequently the Appellants filed their appeals;
• there is public interest in having the uncontested portions of ZBL 051 and ZBL 052 come into force as soon as possible; and
• the Appellants consented to the motion and the form of the draft orders attached to the Supplemental Affidavit, and there is no prejudice to the Appellants if those parts of ZBL 051 and ZBL 052 that are not under appeal come into force.

43The Motion for Partial Approval was supported by submissions by Ms. Fulford, Acting Senior Project Manager in the Planning Division of the City, and supplemented with her sworn Affidavit addressing ZBL 051 and ZBL 052, as well as her supplemental Affidavit addressing ZBL 052. Ms. Fulford was qualified to provide expert opinion evidence on matters pertaining to land use planning. She adopted her Affidavit and supplemental Affidavit as part of her evidence and advised that she authored the City staff report on ZBL 051 and ZBL 052 (“Staff Report”), of which she adopted the findings as her professional opinion.

44The Tribunal was not in receipt of any responding material as the Appellants were in agreement with the Motion. Mr. MacDonald advised that a copy of the motion material was provided to Ms. Whitely but not to Mr. Snider, as the Trust was not then a Party to the proceedings.

Motion for Partial Approval as it relates to ZBL 051

45Ms. Fulford advised that the EV Parking Space Definition in ZBL 051 was appealed by all of the Appellants and that the definition would be a new addition to ZBL 200 as it did not previously include such a definition. She clarified that no other section of ZBL 051 was appealed.

46It was Ms. Fulford’s account that the inclusion of the EV Parking Space Definition within ZBL 051 was inadvertent, as all related sections that implement the definition, as well as the definition itself, are included in ZBL 052. Further, the definition, as part of ZBL 052, was also appealed by the Appellants.

47To effect a settlement of the appeals to ZBL 051, Ms. Fulford advised that the City sought its approval with the deletion of the EV Parking Space Definition. This would allow for the coming into force of ZBL 051 following the withdrawal of all appeals against it, while the Appellants would maintain their objections to the EV Parking Space Definition through their appeals to ZBL 052.

48Ms. Fulford opined that, as detailed in the Staff Report, ZBL 051 is consistent with the PPS, and conforms to the Growth Plan, the Urban Hamilton Official Plan (“UHOP”), OPA 202, the Rural Hamilton Official Plan (“RHOP”), and the Hamilton-Wentworth Regional Official Plan (“ROP”). Further, in the Staff Report, Ms. Fulford proffered that ZBL 051 (and ZBL 052) supports a sustainable form of infill development and creates additional opportunities for intensification within existing buildings without the need for major redevelopment in areas already serviced and with access to the existing transportation network.

49Ms. Fulford opined that, as the EV Parking Space Definition remains under appeal in ZBL 052, and all parking standards and requirements related to that definition are found within ZBL 052, the approval of ZBL 051, with the deletion of the EV Parking Space Definition, represents good land use planning.

50Mr. MacDonald requested that wording be added to the Order to allow for the coming into force of the remainder of ZBL 051 pursuant to s. 34(30) of the Act following the withdrawal of all remaining appeals.

Disposition of Motion for Partial Approval as it relates to ZBL 051

51As all Appellants were in agreement with the Motion as it relates to ZBL 051, and no responding motion material was filed, the Tribunal accepted the uncontroverted evidence of Ms. Fulford.

52Given that there were no appeals against any section of ZBL 051 other than the EV Parking Space Definition, and the EV Parking Space Definition remains under appeal in ZBL 052, the Tribunal agreed with the evidence and submissions of the City, as supported by the Appellants, and determined that the most efficient resolution of the appeals against ZBL 051 is to delete the EV Parking Space Definition and deem the remainder of ZBL 051 to have come into force as of April 10, 2024 (the date of passage by City Council), pursuant to s. 34(30) of the Act.

53It is the Tribunal’s determination that by allowing the appeal and deleting the EV Parking Space Definition, which in the words of s. 34(30) of the Act would finally dispose of the appeals, it is not necessary to require the withdrawal of the appeals for ZBL 051 to come into effect.

Trust Request related to ZBL 052

54Mr. Snider advised that he was provided with a copy of the Supplemental Affidavit ahead of the CMC. He noted that the motion seeks partial approval of certain aspects of ZBL 052 that are intended to be site-specific, to which he would like the opportunity to file responding motion material. In that respect, he requested the Tribunal to not approve sections 5.1.4 d) and e), and section 5.7.4 a) ii. of ZBL 052 (“Certain Subsections”) on a City-wide basis until such time as he has had the opportunity to respond to the motion before the Tribunal at a later date.

55Mr. MacDonald noted that the Trust is beholden to the issues of the Appellants pursuant to Rule 8.3, which, for the Certain Subsections, are only under appeal on a site-specific basis, and therefore can’t be broadened by the Trust to be under appeal City-wide. He added that there is significant support for the Certain Subsections and that, notwithstanding that they would be in force on a City-wide basis, they would remain unimplementable by the City until the EV Parking Space Definition is determined through a settlement or merit hearing.

56The Tribunal stood down to provide an opportunity for Mr. Snider and Mr. MacDonald to have a private discussion regarding Mr. Snider’s request, although no resolution between the Parties was achieved.

57Mr. Snider stressed that this request would not impact the coming into force of the remainder of ZBL 052 on a City-wide basis and that Rule 8.3 is simply a Rule of the Tribunal, not a statutory provision, and is subject to the discretion of the Tribunal. He added that, as none of the provisions of the Certain Subsections can be implemented until the EV Parking Space Definition is determined, there is no prejudice to the City or any other Party.

58In response, Mr. MacDonald noted the intent of Rule 1.3 is to offer the most just resolution of the appeals, and that the City would be prejudiced if the appeals of the Certain Subsections were to be widened to a City-wide basis.

59Mr. Snider made a final submission that the City could pursue all their points at a future motion hearing on the matter, no other Party had raised a concern with his request, Rule 1.3 also applies to his request, and it would not be fair to his client for him to have to argue against the motion today without filing materials in support of his request.

Disposition of Trust Request related to ZBL 052

60The Tribunal considered the submissions of both Mr. Snider and Mr. MacDonald and found that the Trust, as an added Party sheltering under the issues of an appellant Party in accordance with Rule 8.3, cannot pursue a City-wide appeal of the Certain Subsections as such is not under appeal on a City-wide basis by any of the Appellants.

61The Tribunal agrees that Rule 1.3 is applicable to the request of Mr. Snider, but found that his request does not offer the best opportunity for a fair, just, expeditious, and cost-effective resolution of the merits of the proceedings. In fact, it does the opposite as, in effect, it seeks to delay the proceedings to mount an argument to widen the scope of an issue from site-specific to City-wide, thereby introducing a new issue in the proceeding as prohibited by Rule 8.3.

62The request by the Trust was therefore denied at the CMC and the Tribunal will not reserve its decision on the Certain Subsections.

Motion for Partial Approval as it relates to ZBL 052

63Ms. Fulford advised that the following sections of ZBL 052 were appealed on a City-wide basis:

1. Section 3 – EV Parking Space Definition (appealed by CFC, Hammer and WEHBA);
2. Section 5.1.4 a) and c) (appealed by Hammer and WEHBA); and
3. Section 5.7.4 a) i. (appealed by CFC, Hammer and WEHBA).

64Ms. Fulford further advised that the following sections of ZBL 052 were appealed on a site-specific basis:

1. Sections 5.1.4 a), c), d), and e) (appealed by Hammer with respect to 75 Centennial Parkway North);
2. Section 5.7.1 a) i. regarding subsection b) of the Minimum Required Parking Rate Schedule for “Multiple Dwelling; Dwelling Unit, Mixed use, where the total number of such units is 5 or greater” (appealed by CFC with respect to 999 Upper Wentworth Street); and
3. Section 5.7.4 a) ii. (appealed by CFC with respect to 999 Upper Wentworth Street and Hammer with respect to 75 Centennial Parkway North).

65Ms. Fulford confirmed that the sections of ZBL 052 that are appealed on a City-wide basis are limited to the EV Parking Space Definition and the EV Parking Standards, while the sections appealed on a site-specific basis are limited to parking rates and the EV Parking Standards.

66Ms. Fulford advised that, other than the specific sections of ZBL 052 that are under appeal as identified above, ZBL 200, as amended by the remainder of ZBL 052 without the EV Parking Space Definition and the EV Parking Standards, can function on a City-wide basis and can therefore be implemented through approval of the unappealed portions of ZBL 052.

67Ms. Fulford confirmed that the sections of ZBL 052 that are not implementable until the EV Parking Space Definition is in force are not intended to be enforced by the City in the interim.

68Ms. Fulford opined that, as detailed in the Staff Report, the sections of ZBL 052 not under appeal have regard to matters of provincial interest pursuant to s. 2 of the Act, are consistent with the PPS, conform with the Growth Plan, the UHOP, OPA 202, the RHOP, and the ROP. As detailed in paragraph [48] above, ZBL 052 creates additional opportunities for intensification and infill development.

69Ms. Fulford further opined that the approval of ZBL 052, with the exception of the sections under appeal, represents good land use planning and is in the public interest.

Trust Submissions related to ZBL 052

70Mr. Snider submitted that the only evidence the Tribunal has with respect to the EV Parking Standards is that none of the provisions are implementable until such time as the EV Parking Space Definition has been resolved through the appeal process. He furthered that, without the definition, it is not possible to understand the impact of the EV Parking Standards, and therefore, it is not in the public interest, nor is it good land use planning for the Tribunal to approve them. He added that the EV Parking Standards would be an in-force requirement that, by force of the Building Code Act, would prevent the issuance of a building permit by the City’s Chief Building Official (“CBO”) due to the unresolved EV Parking Space Definition. He furthered that having the EV Parking Standards in place, without the EV Parking Space Definition, would be applicable law and would need to be complied with. In this respect, he posited that the approval of ZBL 052, with the EV Parking Standards but without the EV Parking Space Definition, results in bad land use planning.

71Mr. Snider submitted that the EV Parking Standards should therefore not be approved by the Tribunal until they can be implemented when the EV Parking Space Definition has been determined.

72Mr. MacDonald countered that the evidence of Ms. Fulford was that the City will not be imposing the EV Parking Standards until the EV Parking Space Definition is in force, either by a resolution of the Appeals or through a merit hearing. In this respect, he proffered that, until such time, the EV Parking Standards being unimplementable would be to the benefit of any applicant seeking development approvals, as they would not be required to provide electric vehicle parking spaces. He posited that the approval of ZBL 052, with the EV Parking Standards being unimplementable, is in the public interest, as it allows for the unappealed portions of ZBL 052 to come into force. He furthered that the City is not intending to do what Mr. Snider is suggesting might happen, and that the City could issue a Zoning Interpretation Memo (“ZIM”) to address this issue, noting that ZIMs are regularly prepared by the City to guide the CBO in the issuance of building permits.

73Ms. Baker then proffered a potential resolution of the issue with the suggestion for the issuance of an order granting partial approval of the unappealed portions of ZBL 052, other than the EV Parking Standards and EV Parking Space Definition, and a contingent order for the EV Parking Standards to come into force and effect once the EV Parking Space Definition comes into force and effect. She added that the Appellants are currently in mediation and anticipate a mediated resolution of the matter, or if not, a resolution through a merit hearing. In this respect, she proffered that a contingent order would resolve the issue of the EV Parking Standards being in force, yet unimplementable.

74Mr. Snider made a final submission suggesting that a contingent order is not appropriate in the circumstances as it would continue to create unnecessary uncertainty, and without the EV Parking Space Definition, the context of the EV Parking Standards would remain unknown. He added that there is no need, and no planning evidence, to support the EV Parking Standards until it is considered as a comprehensive package.

Disposition of Trust Submissions related to ZBL 052

75Similar to the findings related to the earlier request of the Trust, the Tribunal found that the Trust, as an added Party sheltering under the issues of an appellant Party in accordance with Rule 8.3, was attempting to widen site-specific appeals of the Certain Subsections to a City-wide appeal by raising an issue that no other appellant Party has raised, and that the City does not agree is an issue. Similarly, the Tribunal found that, with respect to Rule 1.3, Mr. Snider’s request does not offer the best opportunity for a fair, just, expeditious, and cost-effective resolution of the merits of the proceedings, but does the opposite as, in effect, it seeks to introduce a new issue in the proceeding as prohibited by Rule 8.3.

76Further, the Tribunal cannot create appeal rights. Allowing the request for the Certain Subsections to be determined under appeal on a City-wide basis, would effectively allow the Trust to widen the scope of the appeals from site-specific to City-wide, thus creating an appeal right that is not prescribed by legislation. In essence, if the Trust wished to have the Certain Subsections under appeal on a City-wide basis, it should have filed an appeal.

77The request by the Trust was therefore denied at the CMC, and the Tribunal will not provide for the consideration of the Certain Subsections on a City-wide basis, contingent on future consideration of the EV Parking Standards and the EV Parking Space Definition.

Disposition of Motion for Partial Approval as it relates to ZBL 052

78Given that there were no appeals against any remaining sections of ZBL 052 other than those sections listed in paragraphs [63] and [64], and as the Appellants were in agreement with the Motion as it relates to ZBL 052, and no responding motion material was filed, the Tribunal accepted the uncontroverted evidence of Ms. Fulford.

79The Tribunal agreed with the evidence and submissions of the City, as supported by the Appellants, and is satisfied that the sections of ZBL 052 not under appeal have regard to matters of provincial interest pursuant to s. 2 of the Act, are consistent with the PPS, conform with the Growth Plan, the UHOP, OPA 202, the RHOP, and the ROP, represent good land use planning and are in the public interest.

80In that respect, the Tribunal finds that ZBL 052, with the exception of the sections under appeal and the unappealed EV Parking Standards applicable on a City-wide basis, should be deemed to have come into force on the day it was passed by City Council, being April 10, 2024.

81Further, the Tribunal finds that the unappealed EV Parking Standards applicable on a City-wide basis should be subject to a contingent order to be deemed to come into force and effect at the same time as EV Parking Space Definition comes into force and effect.

NEXT STEPS

82Mr. MacDonald advised the Tribunal that the Appellants were currently engaged in mediation efforts to resolve the appeals. The Appellants have had one mediation session and are scheduled for a second session. It was the wish of the Appellants to schedule a second CMC once the second mediation session has taken place. As such, no subsequent hearing dates were set at the CMC.

ORDER

83The Tribunal conferred Party status on The Effort Trust Company as a non-appellant Party sheltering under an issue raised by an appellant Party pursuant to Rule 8.3 of the Tribunal’s Rules of Practice and Procedure.

84The Tribunal conferred Participant status on Jasminder Brar.

85The Tribunal determined that the appeals filed by Laurie Whitely were withdrawn within 15 days after the last day for filing a notice of appeal, and as such, was not before the Tribunal.

86THE TRIBUNAL ORDERS THAT:

1. The appeals against Zoning By-law No. 24-051 of the City of Hamilton are allowed, in part, and the by-law is amended by the deletion of the Section 3 definition of “Parking Space, Electric Vehicle” as set out in Attachment 1 to this Order and is deemed to have come into force on the day it was passed, being April 10, 2024, in accordance with subsection 34(30) of the Planning Act.

2. The coming into effect of Zoning By-law 24-051 shall be strictly without prejudice to, and shall not have the effect of the following, with respect to appeals of City of Hamilton Zoning By-law 24-052:

a. limiting the resolution of an Appellant’s appeal;

b. affecting a Party’s right, to seek to modify, delete or add to the unapproved associated text; or

c. limiting the jurisdiction of the Tribunal to consider and approve modifications, deletions or additions on a general or site-specific basis.

3. The amendment to and coming into force of By-law 24-051, as described in this, Order is strictly without prejudice to the positions taken by the Parties, including the City, on any appeal of Zoning By-law 24-052 so that if those appeals proceed to a hearing, either on their own or as may be consolidated with other appeals, the Appellants will not take the position that the Tribunal ought not to approve modifications to the Section 3 definition of “Parking Space, Electric Vehicle”, on the basis that such definition was deleted from By-law 24-051. However, this does not affect the City’s right to assert that that said definition within By-law 24-052 should be applied on a City-wide or site-specific basis without modification on the basis that it constitutes good planning.

87THE TRIBUNAL ORDERS THAT:

1. The appeals against Zoning By-law No. 24-052 of the City of Hamilton are allowed, in part, and the by-law is amended as set out in Attachment 2 to this Order and is deemed to have come into force on the day it was passed, being April 10, 2024, in accordance with subsection 34(31) of the Planning Act, save and except for:

a. those sections thereof that remain under appeal on a City-wide basis as shown in Attachment 2 to this Order;

b. Section 5.7.1(a)(i) “Multiple Dwelling; Dwelling Unit, Mixed use, where the total number of such units is 5 or greater”, subsection (b), and 5.7.4(a)(ii), with respect to the lands known municipally as 999 Upper Wentworth Street, as shown on Attachment 3, attached hereto;

c. Sections 5.1.4(a), (c), (d) and (e) and 5.7.4(a)(i) and (ii), with respect to the lands known municipally as 75 Centennial Parkway North, as shown on Attachment 4, attached hereto; and

d. The sections noted in subparagraph [87] 2. below, which shall come into force at a future date as described therein.

2. The following sections of Zoning By-law 24-052 shall be deemed to come into force on all lands within the City other than 999 Upper Wentworth Street and 75 Centennial Parkway North at such time as the Section 3 definition of “Parking Space, Electric Vehicle” is in force, either through a future order of the Tribunal (which may include any modifications to such definition) or the withdrawal of any appeals of such definition, resulting in its coming into force without modification:

a. Sections 5.1.4(b), (d) and (e); and

b. Sections 5.7.4(a)(ii).

3. The coming into effect of portions of Zoning By-law 24-052 shall be strictly without prejudice to, and shall not have the effect of:

a. limiting the resolution of an Appellant’s appeal;

b. affecting a Party’s right, to seek to modify, delete or add to the unapproved associated text; or

c. limiting the jurisdiction of the Tribunal to consider and approve modifications, deletions or additions on a general or site-specific basis.

4. The coming into force of Section 5.7.1(a)(i) and 5.7.4(a)(ii) on certain lands in the City is without prejudice to the outstanding site-specific appeal of those provisions by Cadillac Fairview Corporation with respect to its property located at 999 Upper Wentworth Street, Hamilton, as shown on Attachment 3, attached hereto, and shall not have the effect of limiting that Appellant’s rights to litigate those provisions as they relate to such lands, subject to subparagraph [87] 6. herein.

5. The coming into force of Sections 5.1.4(d) and (e) and 5.7.4(a)(ii) on certain lands in the City is without prejudice to the outstanding site-specific appeal of those provisions by Hammer GP LP and Hammer GP Services Corp. with respect to its property located at 75 Centennial Parkway North, Hamilton, as shown on Attachment 4, attached hereto, and shall not have the effect of limiting that Appellant’s rights to litigate those provisions as they relate to such lands.

6. The City will not take the position that the Tribunal ought not to approve site-specific modifications to By-law 24-052 on the basis that they deviate from or are inconsistent with By-law 24-052 as in effect for other lands; however, this does not affect the City's right to assert that the in-effect provisions should be applied to any lands under a site-specific appeal without modification on the basis that they constitute good planning.

7. Notwithstanding anything ordered above, the City has not conceded that the following portion of By-law 24-052 that has not come into force and that is not deemed in effect is properly under appeal and the City has reserved the right to bring motions or take any other action to have the breadth and scope of such appeal determined by the Tribunal at a future date:

a. Section 5.7.4(a)(ii), with respect to the property known as 999 Upper Wentworth Street, as shown on Attachment 3, attached hereto.

88THE TRIBUNAL ORDERS THAT the sections of Zoning By-law No. 234-052 that remain under appeal shall be determined through settlement efforts or merit hearings.

89In all other respects, the Tribunal orders that the appeals are dismissed.

90No further notice is required.

91The Member is not seized for a settlement or merit hearing for the sections of Zoning By-law No. 24-052 that remain under appeal.

“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.

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