12778602 Canada Inc. v. Fort Erie (Town), 2025 CanLII 119044

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 13, 2025

CASE NO(S).: OLT-25-000349 OLT-25-000350

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 12778602 Canada Inc. Subject: Conditions of approval of draft plan of subdivision Description: To permit the development of 90 residential units on the subject property Reference Number: CON-01-2024 Property Address: 0 - 15850 Rebstock Road Municipality/UT: Fort Erie/Niagara OLT Case No.: OLT-25-000349 OLT Lead Case No.: OLT-25-000349 OLT Case Name: 12778602 Canada Inc. v. Fort Erie (Town)

PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 12778602 Canada Inc. Subject: Conditions of approval of draft plan of subdivision Description: To permit the development of 90 residential units on the subject property Reference Number: SUB-04-2024 Property Address: 0 - 15850 Rebstock Road Municipality/UT: Fort Erie/Niagara OLT Case No.: OLT-25-000350 OLT Lead Case No.: OLT-25-000349

Heard: September 25, 2025, by Video Hearing

APPEARANCES:

Parties 12778602 Canada Inc. ("Applicant") Town of Fort Erie ("Town")

Counsel Rocco Vacca Linda Ford Denise Baker

MEMORANDUM OF ORAL DECISION DELIVERED BY YASNA FAGHANI AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1This appeal relates to Draft Plan of Subdivision ("DPS") and Draft Plan of Condominium ("DPC") applications (together the "Applications") pursuant to s. 51(39) of the Planning Act (the "Act"). The Town of Fort Erie approved the draft DPS and DPC subject to conditions. The Applicant appeals the Town’s decision with respect to some of the conditions.

2A Zoning By-Law Amendment ("ZBA") appeal related to the Applications was initiated for a residential development consisting of stacked back-to-back townhouses on the property municipally located at 0 - 15850 Rebstock Road in the Town ("Subject Property").

3The Town refused the ZBA, and the Applicant filed an appeal. The Town and Applicant engaged in settlement discussions.

4On February 8, 2024, The Tribunal ordered that the ZBA appeal be allowed in accordance with the Minutes of Settlement, and the Town to amend the by-law permitting the proposed development. As a result of the settlement, the density of the proposed development was reduced from 103 units per hectare to 61 units per hectare, eliminated stacked townhouses as a housing form, reduced height from 3.5 storeys to 2.5 storeys, provided 25% landscaping, removed parking along the entrance of the driveway, and provided appropriate setbacks with landscaping to separate the development from existing single detached dwellings to the south and east.

5Thereafter, the Applicant submitted applications for DPS and DPC to facilitate the proposed development. The Applicant appeals the imposition of the Town’s condition in the DPS and DPC which prohibited roof top patios within the proposed development.

6On September 25, 2025, the Tribunal held its first hearing event regarding the Applications, which was intended to be a Case Management Conference ("CMC"). In advance of the CMC, the Parties advised the Tribunal that they had reached a settlement and filed settlement materials including Minutes of Settlement. The Parties also advised that it was their intent to present a settlement proposal to the Tribunal at the CMC.

PROCEDURAL MATTERS

7The Tribunal confirmed with the Parties that there were no issues with service of Notice of the CMC and as such, no further notice is required. The Tribunal was in receipt of the Affidavit of Service of Marie Wakefield dated July 11, 2025, which was marked as Exhibit 1.

STATUS REQUESTS

8Prior to the CMC, the Tribunal received a request for Participant status by Faith Blacquiere. In her statement, she noted that she was granted Participant status in the related ZBA appeal, as well as a related Official Plan Amendment ("OPA") appeal because she is a former resident of the area and has relatives and friends living in the neighbourhood that will be impacted. As a researcher, it was noted in the Tribunal’s Order granting her Participant status that "she would bring a unique perspective on the factual intensification in the area".

9Counsel for the Applicant argued against granting Participant status to Ms. Blacquiere because she is not a resident of Fort Erie (she lives in Ottawa) and the DPS and DPC appeals relate to conditions that would impact immediate and abutting neighbours. Counsel submitted that the issues in the Applications are local and, unlike the OPA and ZBA appeals, do not encompass broader land use planning issues. Counsel for the Town echoed the Applicant’s counsel submissions and noted that the Parties have worked hard to address the problems in the DPS and DPC that would benefit the local community.

10In response, Ms. Blacquiere noted that her relatives live quite close to the development (across the street) but do not abut the Subject Property. Further, upon inquiry from the Tribunal, Ms. Blacquiere noted that she is not a formal representative of anyone in particular.

11After hearing all of the submissions, the Tribunal was not persuaded in granting Participant status to Ms. Blacquiere. The Tribunal accepts Counsel for the Applicant and Town’s position that the Applications before it concern local matters which would concern immediate neighbours. Although Ms. Blacquiere was granted Participant status in previous appeals relating to the proposed development, the Tribunal noted that each Application has to be assessed separately and status is granted after considering the specific facts pertaining to the matter.

PROPOSED SETTLEMENT

12After addressing preliminary matters at the CMC, and in the absence of any opposition, the Tribunal granted the Parties’ request to convert the CMC to a Hearing to consider settlement in accordance with Rule 19.6 of the Tribunal’s Rules of Practice and Procedure.

HEARING

13The Tribunal received, reviewed, and considered the following central materials and submissions:

i. The uncontested opinion evidence of Max Fedchyshak, Registered Professional Planner, as tendered orally as well as contained in the comprehensive affidavit, sworn September 17, 2025 (marked as Exhibit 2 with all exhibits attached thereto); and

ii. Oral submissions of the representatives of the Parties;

DECISION

14The Tribunal acknowledges that the evidence of Mr. Fedchyshak, which the Town adopts and agrees with in support of the settlement reached, represents good planning and addresses concerns with respect to overlook into adjacent existing lower density residential uses to the south and east. Mr. Fedchyshak submitted that the concerns are addressed in two ways:

1. Rooftop patios would be removed on the south facing units of Blocks 8 and 9 and on the east corner units of Blocks 3, 6, and 9; and

2. Fencing along the eastern and southern boundary of the Subject Property would be constructed to the greatest height permitted under the Town’s Fence By-law.

15Mr. Fedchyshak testified that the proposed development is an energy efficient form of development as it provides compact built-form and intensification where municipal services exists and are within the Built-up Urban Area of Fort Erie where intensification is generally encouraged. Further, the Subject Property is designated for residential use in the Town of Fort Erie Official Plan ("Town OP") and that the Applications implement the residential intensification policies of the Town OP.

16Additionally, Mr. Fedchyshak noted that the Subject Property is zoned Residential Multiple 1 (RM1-793) in the Town of Fort Erie Zoning By-Law 129 129-90. He elaborated that the Site-Specific zone of the Subject Property was approved as part of the OLT decision issue on February 8, 2024. In his opinion the Applications comply will all of the provisions of the RM1-793 zone for the reasons elaborated in his written Affidavit.

17The Tribunal having accepted the uncontroverted opinion evidence of Max Fedchyshak as presented, finds that the Application has regard to those applicable matters of Provincial interest found in s.2 of the Act; is consistent with the Provincial Policy Statement, 2024; conform to the Niagara Official Plan (2022); conform to the Town OP; and that the Applications otherwise reflect principles of good land use planning.

ORDER

18THE TRIBUNAL ORDERS THAT:

1. Participant Status is denied to Faith Blacquiere.

2. The appeal is allowed, and the Conditions of Draft Plan of Subdivision attached as Attachment 1 and Conditions of Draft Plan of Condominium attached as Attachment 2 to this Order are approved.

"Yasna Faghani"

Yasna Faghani

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.