Losani Homes (1998) Ltd. v. Brantford (City), 2025 CanLII 12025

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 12, 2025

CASE NO(S).: OLT-24-001069

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

Applicant and Appellant: Losani Homes (1998) Ltd.

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

Description: To permit the designation and zoning of the Subject Lands for residential development with a townhouse block.

Reference Number: OP-01-24

Property Address: 501 Shellard Lane

Municipality: Brantford

OLT Case No.: OLT-24-001069

OLT Lead Case No.: OLT-24-001069

OLT Case Name: Losani Homes (1998) Ltd. v. Brantford (City)

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

Applicant and Appellant: Losani Homes (1998) Ltd.

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

Description: To permit the designation and zoning of the Subject Lands for residential development with a townhouse block.

Reference Number: PZ-13-24

Property Address: 501 Shellard Lane

Municipality: Brantford

OLT Case No.: OLT-24-001070

OLT Lead Case No.: OLT-24-001069

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Losani Homes (1998) Ltd.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit the designation and zoning of the Subject Lands for residential development with a townhouse block.

Reference Number: 29T-16502

Property Address: 501 Shellard Lane

Municipality: Brantford

OLT Case No.: OLT-24-001071

OLT Lead Case No.: OLT-24-001069

Heard: January 23, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

Losani Homes (1998) Ltd.

Jennifer Meader Mark de Jong

City of Brantford

Geoff Daley

memorandum of oral DECISION delivered BY STEVEN T. MASTORAS ON January 23, 2025, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal was scheduled as a first Case Management Conference (“CMC”) relating to appeals pursuant to sections 22(7), 34(11), and 51(34) of the Planning Act (“Act”) as the result of the City of Brantford (“City”) failure to adopt a requested Official Plan Amendment (“OPA”), and the refusal or neglect to make a decision regarding a Zoning By-law Amendment (“ZBA”) and a Draft Plan of Subdivision (“DPS”) (together the “Applications” / “Appeals”). The Appeals were submitted by Losani Homes (1998) Ltd. (“Appellant”) for the municipal address known as 501 Shellard Lane (“Subject Property”).

2The Applications relate to a Site Specific proposal that is seeking: a multiple dwelling block approval containing a total of 123 residential units with a mix of two-storey, three-storey, back-to-back townhouse dwellings, and some single-detached homes along Blackburn Lane; a maximum lot coverage of approximately 7532.4 square metres (“m²”); a landscaped area of 6741.6 m²; and a hard surface area of 7311.9 m².

3The Applications are also seeking to re-designate the Subject Property to “Residential” proposing the rezoning change to a “Site Specific Residential Medium Density Type A (RFA-xx) Zone and to a Residential Type 1D, Exception 6 (R1D-6) Zone”. The DPS will implement the requested OPA designations as part of the Appeals to facilitate the proposed development.

4The Tribunal was in receipt of an Affidavit of Service, signed by Victoria Peacock on December 18, 2024, providing Notice of this CMC Hearing, and is marked as Exhibit 1.

STATUS REQUESTS

5The Tribunal confirmed that there was one written Participant Status Request from Simar Bikramjit, who was not present at the CMC, and is a local resident expressing his concern and objection to the application including but not limited to the following issues below:

• development in a Nature Reserve area;

• destruction of a critical wetland/ecosystem/greenspace;

• tree preservation;

• flooding, and groundwater issues;

• management of water management; and,

• wildlife impact.

6The Parties did not object to this request, and despite the requestor’s absence at the CMC, the Tribunal conferred Participant Status on Simar Bikramjit.

HEARING REQUEST, AND PROCEDURAL ORDER

7Counsel for each of the Parties confirmed on consent to seek a Two-Phase Hearing process commencing, later in 2025, beginning with a Phase 1 Hearing focused on the “threshold” question of the future developability of the Subject Property, requiring up to 10-days of the Tribunal schedule. The Parties further confirmed this for clarity, in written form, on consent that:

The purpose of Phase 1 of the hearing is to determine whether a portion of the subject lands are appropriately designated Core Natural Area in the City’s Official Plan and Zoning By-law. Phase 1 will determine whether any portion of the lands currently designated Core Natural Area should be designated Residential, and if so the extent to which the subject lands should be designated Residential in both the City’s Official Plan and Zoning By-law. In order to assess this issue, which will be detailed through the Issues List, both parties anticipate calling witnesses to give expert evidence in the following disciplines: hydrology, ecology, land use planning, and engineering.

8The need for a Phase 2 Hearing, would then be subject to the Tribunal’s decision from the Phase 1 Hearing, which could be set to hear the details of the proposed built-form of the development, at the discretion of the Tribunal.

9The Tribunal further directed that a detailed Procedural Order (“PO”) and Issues List (“IL”) be submitted to the Case Coordinator on or before February 7, 2025, related to the Phase 1 Hearing. A PO was submitted on February 7, 2025, and is approved as attached below. However, a request for a reasonable extension of time for submission of the IL for the Phase 1 Hearing was received on consent. The Tribunal, therefore, directs that an IL for the Phase 1 Hearing be submitted to the Case Coordinator for the Tribunal’s review and consideration, on or before February 28, 2025.

10The Tribunal further directs that Phase 1 Hearing is scheduled to commence for the duration of ten (10) days on Monday, November 24, 2025, to Friday, December 5, 2025, beginning at 10 a.m., by Video Hearing.

11Parties 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/519389173

Access code: 519-389-173

12Parties 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

13Persons 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: 519-389-173.

14Individuals 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

15The Tribunal was also recently advised by the Parties that although a mediation assessment previously scheduled on the same day of the CMC, was recently cancelled/postponed, the Tribunal reinforced the availability of Tribunal-led mediation if mutually requested, at any time during this process.

16Furthermore, in the interest of ensuring expeditious resolution of matters, the Tribunal noted that a separate matter under appeal by the same Appellants, consisting of an Official Plan Amendment appeal (Case No. OLT-24-001085), was separately withdrawn on January 20, 2025.

17A second matter was confirmed as ongoing, as a Comprehensive Zoning By-law (“CZBL”) appeal (Case No. OLT-24-001086), by this and a number of other appellants. There exists the possibility that this CZBL appeal could eventually be consolidated on a Site Specific basis, as it is related to the Subject Property.

18The same Case Coordinator is engaged with all of these files, and the Parties were directed to keep the Tribunal updated on all matters.

ORDER

19THE TRIBUNAL ORDERS that:

a) The date and particulars of the Phase 1 Hearing referenced above, are so ordered;

b) The Procedural Order as attached below to this Decision marked as Schedule 1, and together with the issues list when filed will hereby govern this proceeding; and

c) All other directions in this Decision are so ordered.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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 1

CASE NO(S).: OLT-24-001069

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

Applicant(s)/Appellant(s): Losani Homes (1998) Ltd.

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

Description: To permit the designation and zoning of the Subject Lands for residential development with a townhouse block.

Reference Number: OP-01-24

Property Address: 501 Shellard Lane

Municipality: Brantford

OLT Case No.: OLT-24-001069

OLT Lead Case No.: OLT-24-001069

OLT Case Name: Losani Homes (1998) Ltd. v. Brantford (City)

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

Applicant(s)/Appellant(s): Losani Homes (1998) Ltd.

Subject: Request to Amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the designation and zoning of the Subject Lands for residential development with a townhouse block.

Reference Number: PZ-13-24

Property Address: 501 Shellard Lane

Municipality: Brantford

OLT Case No.: OLT-24-001070

OLT Lead Case No.: OLT-24-001069

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13; as amended:

Applicant(s)/Appellant(s): Losani Homes (1998) Ltd.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit the designation and zoning of the Subject Lands for residential development with a townhouse block.

Reference Number: 29T-16502

Property Address: 501 Shellard Lane

Municipality: Brantford

OLT Case No.: OLT-24-001071

OLT Lead Case No.: OLT-24-001069

1. 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

2. This hearing will be separated into 2 phases and this Procedural Order applies only to Phase 1. Phase 1 will only address the threshold issue of whether the subject lands are properly designated Core Natural Area. Phase 2 of the hearing, if necessary, will address if/how the subject lands should be developed. A separate Procedural Order will be issued in respect of Phase 2 once a Decision has been rendered in respect of Phase 1.

3. The video hearing will begin on November 24, 2025, at 10:00 a.m. at https://global.gotomeeting.com/join/519389173 .

4. The parties’ initial estimation for the length of the hearing is 10 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.

5. The parties and participants identified at the case management conference are set out in Attachment 1.

6. The issues for Phase 1 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.

7. 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.

8. 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.

9. 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

10. 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 June 2, 2025, and in accordance with paragraph 23 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.

11. Expert witnesses in the same field shall have a meeting on or before July 7, 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 September 7, 2025.

12. 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 14 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.

13. 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 14 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 14 below.

14. On or before September 26, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.

15. On or before September 26, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before October 15, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before October 27, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within twenty-one (21) days after the evidence is received and in accordance with paragraph 23 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 5, 2025.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 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.

23. All filings shall be submitted electronically unless otherwise directed. 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.

24. 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.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment to Sample Procedural Order

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.

ATTACHMENT #1 – PARTIES AND PARTICIPANTS

1. Losani Homes (1998) Ltd. (Applicant)

2. The Corporation of the city of Brantford (Respondent)

3. Bikramjit Simar (Participant)

ATTACHMENT #2 – ISSUES LIST

[To be provided on or before February 28, 2025]

ATTACHMENT #3 – ORDER OF EVIDENCE

1. Losani Homes (1998) Ltd.

2. The Corporation of the City of Brantford

3. Losani Homes (1998) Ltd (Reply if necessary)

ATTACHMENT #4 – SUMMARY OF KEY DATES