Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 09, 2025
CASE NO.: OLT-24-000663
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Zest (Town Square) Developments Inc. and Zest Communities Inc.
Subject: Application to amend the Zoning By-law – Refusal or failure to make a decision
Description: To permit a 2-storey commercial/office, multiple 4-6 storey residential buildings, and 1.5-3-storey townhouse units
Reference Number: ZAC-20-029
Property Address: 393 Rymal Road West
Municipality/UT: City of Hamilton
OLT Case No.: OLT-24-000663
OLT Lead Case No.: OLT-24-000663
OLT Case Name: Zest (Town Square) Developments Inc. and Zest Communities Inc. v. Hamilton (City)
BEFORE:
JENNIFER GOLD MEMBER
Friday, the 29th day of November, 2024
UPON APPEAL having brought by Zest (Town Square) Developments Inc. and Zest Communities Inc. regarding a failure to make a decision by the City of Hamilton (“City”) on the Appellant’s Application concerning a Zoning By-law Amendment (“ZBA”) to permit the development of a two-storey commercial/office building, multiple four- to six-story residential buildings, and low rise townhomes at the property located southwest of the intersection of Rymal Road West and Westland Drive, referred to in the Appeal as “Village Square”;
AND THE TRIBUNAL proceeded to conduct a second Case Management Conference;
AND THE TRIBUNAL at the CMC having scheduled a five-day hearing to commence on Monday, April 28, 2025 at 10 a.m. by videoconference;
Parties and/or Participants and/or Observers are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/979388733
Access code: 979-388-733
Parties and/or 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html
Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is: 979-388-733.
Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.
THE TRIBUNAL ORDERS THAT:
The Procedural Order appended as Attachment 2 shall govern the conduct of this proceeding.
The Member is not seized.
“Euken Lui”
EUKEN LUI ACTING REGISTRAR
Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
Attachment 1
CMC Attendance List
Parties Zest (Town Square) Developments Inc. and Zest Communities Inc.
Counsel Isaiah Banach
Parties City of Hamilton
Counsel Peter Krysiak, Patrick McDonald (in absentia)
Attachment 2
CASE NO(S).: OLT-24-000663
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Zest (Town Square) Developments Inc. and Zest Communities Inc.
Subject: Application to amend the Zoning By-law – Refusal or failure to make a decision
Description: To permit a 2-storey commercial/office, multiple 4-6 storey residential buildings, and 1.5-3-storey townhouse units
Reference Number: ZAC-20-029
Property Address: 393 Rymal Road West
Municipality/UT: City of Hamilton
OLT Case No.: OLT-24-000663
OLT Lead Case No.: OLT-24-000663
OLT Case Name: Zest (Town Square) Developments Inc. and Zest Communities Inc. v. Hamilton (City)
Procedural Order
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
The video hearing will begin on April 28, 2025 at 10:00 a.m. and will be a video hearing.
The parties’ initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1.
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before February 10, 2025 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before February 18, 2025, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before February 21, 2025.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before March 3, 2025, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before March 3, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before March 24, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before April 11, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before March 28, 2025 and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 14, 2025.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 14, 2025, 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.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
The Member is [not] seized.
So orders the Tribunal.
SUMMARY OF DATES
| Date | Event |
|---|---|
| February 10, 2025 | Deadline for Witness List Exchange |
| February 18, 2025 | Deadline for Expert Witness Meeting |
| February 21, 2025 | Deadline for Statement of Agreed Facts |
| March 3, 2025 | Deadline for Witness Statements, Expert Witness Statements and Participant Statements Exchange |
| March 24, 2025 | Deadline for advising the Tribunal if all the reserved hearing dates are required |
| March 28, 2025 | Deadline for Reply Witness Statements (if any) |
| April 11, 2025 | Deadline for Visual Evidence Exchange |
| April 14, 2025 | Deadline for Joint Document Book submission |
| April 14, 2025 | Deadline for Hearing Plan |
| April 28, 2025 | Commencement of Hearing |
ATTACHMENT 1
LIST OF PARTIES AND PARTICIPANTS
Parties Zest (Town Square) Developments Inc. and Zest Communities Inc.
Counsel/Representative Dentons Canada LLP 77 King Street West, Suite 400 Toronto-Dominion Centre, Toronto, ON M5K 0A1 Isaiah Banach Email: isaiah.banach@dentons.com Katarzyna Sliwa Email: kat.sliwa@dentons.com Michael James Email: michael.james@dentons.com Tel: 416.863.4628
Parties City of Hamilton
Counsel/Representative City of Hamilton Legal Services Division, Corporate Services 50 Main St E, Hamilton, ON L8N 1E9 Patrick MacDonald Email: Patrick.MacDonald@hamilton.ca Tel: 905.546.2424 Ext. 4708 Peter Krysiak Email: peter.krysiak@hamilton.ca Tel: 905.546.2424 ext. 2273
ATTACHMENT 2. ISSUES LIST
Note: The identification and wording of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is relevant, appropriate, accurately-worded, or that the Tribunal has jurisdiction over it. The identification of an issue by a party indicates that party’s framing of the question and intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other parties the case they need to meet.
Issues of City of Hamilton:
Development Planning
Does the proposed Zoning By-law Amendment conform with the policies of the Urban Hamilton Official Plan, in particular policies B.2.4.1.4 b), d), g), h), i) l), and B.2.4.2?
Does the proposed Zoning By-law Amendment conform with the policies of the Urban Hamilton Official Plan, in particular policy B.3.3.1?
Does the proposed Zoning By-law Amendment meet the intent of the City Wide Corridor Planning Principles and Design Guidelines, which encourage new development to have a minimum building height of two storeys, for a minimum of 75% of the building frontage along arterial streets?
Does the proposed Zoning By-law Amendment conform to the Urban Hamilton Official Plan and Zoning By-law No. 05-200 definitions of a multiple dwelling?
Does the proposed Zoning By-law Amendment result in any adverse impacts?
Does the proposed Zoning By-law Amendment represent good land use planning and is it in the public interest?
How does the Tribunal’s order and terms of settlement in OLT file OLT-22-002312 regarding the subject lands impact the current matter?
Development Engineering
Does the proposed Zoning By-law Amendment conform with the policies of the Urban Hamilton Official Plan, in particular policies C.5.3.6, C.5.3.13, C.5.3.14, C.5.3.15, C.5.3.17, C.5.4.3 and C.5.4.5?
Should the proposed Zoning By-law Amendment, if approved, be subject to a Holding Provision in respect to servicing?
Transportation Planning
Is the development proposal consistent with Provincial Planning Statement (2024) (“PPS”) in terms of policies 3.2 for Transportation Systems?
Is the development proposal consistent with Provincial Planning Statement (2024) (“PPS”) in terms of policies 3.3 for Transportation and Infrastructure Corridors?
Does the proposal comply with the Urban Hamilton Official Plan to assess the impact of proposed developments on current travel patterns and/or future transportation requirements to ensure movement of people and goods, including but no limited to policy C.4.5.12?
Does the proposal comply with the Urban Hamilton Official Plan Policy C.4.2.19 such that the development will not negatively affect the use of the adjacent transportation corridor?
ATTACHMENT 3 ORDER OF EVIDENCE
Zest (Town Square) Developments Inc. and Zest Communities Inc. (“Zest”)
City of Hamilton
Reply by Zest (if any)
ATTACHMENT 4
MEANING OF TERMS USED IN THE PROCEDURAL ORDER
A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
direct examination by the party presenting the witness;
direct examination by any party of similar interest, in the manner determined by the Tribunal;
cross-examination by parties of opposite interest;
re-examination by the party presenting the witness; or
another order of examination mutually agreed among the parties or directed by the Tribunal.
NATDOCS\83420587\V-1