Lux 387 M.D. Holdings Inc. v. Hamilton (City), 2025 CanLII 121102

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 19, 2025

CASE NO(S).: OLT-25-000404

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

Applicant and Appellant: Lux 387 M.D. Holdings Inc., et al.

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

Description: To permit the development of a residential subdivision consisting of 17 lots

Reference Number: ZAC-18-048

Property Address: 387,397,405,409 Hamilton Drive

Municipality/UT: City of Hamilton

OLT Case No.: OLT-25-000404

OLT Lead Case No.: OLT-25-000404

OLT Case Name: Lux 387 M.D. Holdings Inc. v. Hamilton (City)

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

Applicant and Appellant: Lux 387 M.D. Holdings Inc., et al.

Subject: Proposed Plan of Subdivision – Refusal or neglect to make a decision

Description: To permit the development of a residential subdivision consisting of 17 lots

Reference Number: 25T-2018009

Property Address: 387,397,405,409 Hamilton Drive

Municipality/UT: City of Hamilton

OLT Case No.: OLT-25-000405

OLT Lead Case No.: OLT-25-000404

Heard: November 10, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
Lux 387 M.D. Holdings Inc., Lux 397 M.D. Holdings Inc., Lux 405 M.D. Holdings Inc., and Lux 409 M.D. Holdings Inc.	David Bronskill
City of Hamilton	Michael Finley

MEMORANDUM OF ORAL DECISION DELIVERED BY C. I. MOLINARI ON NOVEMBER 10, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a second Case Management Conference (“CMC”) with respect to appeals filed pursuant to ss. 34(11) and 51(39) of the Planning Act (“Act”) by Lux 387 M.D. Holdings Inc., Lux 397 M.D. Holdings Inc., Lux 405 M.D. Holdings Inc., and Lux 409 M.D. Holdings Inc. regarding the refusal by the City of Hamilton of Rezoning and Draft Plan of Subdivision applications to facilitate the development of a 17-lot residential subdivision on the properties municipally known as 387, 397, 405, and 409 Hamilton Drive.

STATUS REQUESTS

2In advance of the CMC, the Tribunal received Participant status requests from Weever Apps Inc., Patrick Fung, Miriam Sager, Bhavisha Morphet, and Susan Yarwood, collectively citing concerns related to the environment, lot size, density, municipal planning initiatives, affordable housing, traffic, and infrastructure, among other concerns. No additional requests for Participant status were received during the CMC.

3There were no objections by the Parties and the Tribunal granted Participant status to all requestors, as they each have a genuine and direct interest in the matter and could assist the Tribunal in making its decision at the merit hearing.

4No requests for Party status were received ahead of, or during, the CMC.

PROCEDURAL ORDER

5The Tribunal was in receipt of a draft Procedural Order (“PO”), complete with an Issues List. The draft PO requires finalization, and the Parties agreed to submit the final draft PO to the Case Coordinator by Friday, November 14, 2025, for approval by the Tribunal.

6The Tribunal has since received, reviewed, and approved the PO attached as Schedule 1 to this Decision.

HEARING EVENT

7A six-day merit hearing was scheduled to commence at 10:00 a.m. on Monday, June 22, 2026, through to June 29, 2026.

8Parties, Participants and observers are asked to log in to the event at least 15 minutes before the hearing begins to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/692665589

Access code: 692-665-589

9Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html

10Anyone who experiences technical difficulties accessing the GoTo Meeting application or who only wishes 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 as indicated above.

11Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of those participating in the event to ensure that they are properly connected at the correct time. Any questions prior to the event may be directed to the Tribunal’s Case Coordinator.

ADVISORIES

12The Tribunal advised the Parties of the options for Tribunal-led mediation and for a written hearing in the event a settlement is reached, and to contact the Case Coordinator to determine next steps should the need arise.

13The Tribunal advised the Parties to ensure that the Participants’ concerns and s. 2 of the Act are addressed in the witness statements.

ORDER

14THE TRIBUNAL ORDERS THAT:

a) a six-day merit hearing will be held by video hearing as scheduled above; and

b) the Procedural Order, attached as Schedule 1 to this Decision, is approved and shall govern the proceedings.

15The Member is not seized of this matter.

“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.

SCHEDULE 1

ISSUE DATE: CASE NO(S).: OLT-25-000404

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

Applicant and Appellant: Lux 387 M.D. Holding Inc., et al.

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

Description: To permit the development of a residential subdivision consisting of 17 lots

Reference Number: ZAC-18-048

Property Address: 387, 397, 405, 409 Hamilton Drive

Municipality/UT: City of Hamilton

OLT Case No.: OLT-25-000404

OLT Lead Case No.: OLT-25-000404

OLT Case Name: Lux 387 M.D. Holdings Inc. v. Hamilton (City)

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

Applicant and Appellant: Lux 387 M.D. Holdings Inc., et al.

Subject: Proposed Plan of Subdivision – Refusal or neglect to make a decision

Description: To permit the development of a residential subdivision consisting of 17 lots

Reference Number: 25T-2018009

Property Address: 387, 397, 405, 409 Hamilton Drive

Municipality/UT: City of Hamilton

OLT Case No.: OLT-25-000405

OLT Lead Case No.: OLT-25-000404

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. The video hearing will begin on June 22, 2026 at 10:00 a.m.

3. The length of the hearing is six (6) 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.

4. The parties and participants are set out in Attachment 1. See Attachment 4 for the meaning of these terms.

5. 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.

6. 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.

7. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal as soon as possible. Any person who retains 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.

8. 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

9. 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, the expert witness(es)' curriculum vitae and Acknowledgment of Expert Duty form(s), and the order in which the witnesses will be called. This material must be delivered on or before March 13, 2026 and in accordance with paragraph 22 below. For expert witnesses, a party is to identify the area of expertise in which the witness is proposed to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed, shall be made by motion in accordance with the Tribunal’s Rules of Practice and Procedure and notice of same must be served on the parties on or before March 27, 2026.

10. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, and updated supporting documents and reports to the other parties on or before February 20, 2026. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

11. Expert witnesses in the same field shall have at least one meeting before the hearing to try to resolve or reduce issues for the hearing. The meeting shall occur on or before April 10, 2026. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties and the Tribunal on or before April 17, 2026, if agreement is reached.

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 13. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that they intend to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the parties at the same time as the delivery of witness statements, as in paragraph 13.

13. A witness (including any expert witness) or participant must provide to the Tribunal and the parties a witness statement (full disclosure including reports) or participant statement, respectively, on or before May 1, 2026, or the witness may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, except as permitted by the Ontario Land Tribunal Act, 2021 and the Tribunal's Rules of Practice and Procedure.

14. 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.

15. On or before May 29, 2026, the parties may provide to all other parties a written response to any written evidence.

16. On or before May 15, 2026, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before May 29, 2026, the parties shall provide copies of their visual evidence to all of the other parties. The Tribunal and all parties shall be notified if a model will be used, and all parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

18. 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.

19. 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.

20. On or before June 12, 2026, the parties shall prepare and file a detailed Hearing Plan that identifies the following, at a minimum: the identified parties participating in the Hearing Event, preliminary matters (if any to be addressed), the anticipated order of evidence, the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Hearing Plan”). The Hearing Plan should be adhered to guide the Hearing Event to the best ability of all the parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Hearing Plan throughout the Hearing Event.

21. The parties shall prepare a Joint Document Book on or before June 12, 2026, and which, if requested by the Tribunal, one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with paragraph 22.

22. All filing of documents and materials shall be electronic to the Tribunal, the parties and participants. The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable should it request same. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, or as may be amended. Paragraph 22 applies regardless if the hearing event is in-person or electronic.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted in paragraph 10. The Tribunal’s Rule 17 applies to such requests.

24. The Tribunal may conduct mediation on consent of all parties, on consent of those parties who wish to participate in mediation, or if the Tribunal sees fit.

25. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 4.

The Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

SUMMARY OF DATES

DATE	EVENT
February 20, 2026	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
March 13, 2026	Exchange of witness lists (names, disciplines and order to be called)
March 27, 2026	Last date to challenge identification of expert witness
April 10, 2026	Experts meeting prior to this date
April 17, 2026	Agreed Statement of Facts
May 1, 2026	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
May 15, 2026	Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
May 29, 2026	Exchange of Reply Witness Statements
May 29, 2026	Exchange of visual evidence (if any)
June 12, 2026	Finalize Joint Document Book
June 12, 2026	Final Hearing Plan filed with the Tribunal
June 22, 2026	Hearing commences

ATTACHMENT 1 PARTIES/PARTICIPANTS

Parties

1. Lux 387 M.D. Holding Inc., et al. David Bronskill (416) 597-4299 dbronskill@goodmans.ca

2. City of Hamilton Michael Finley (416) 369-6690 michael.finley@gowlingwlg.com

Participants

1. Holden, Andrew (Weever Apps Inc.) (289) 689-4484 office@cartanova.ca

2. Fung, Patrick (905) 869-2322 wtfung@cogeco.ca

3. Morphet, Bhavisha morphetb@gmail.com

4. Sager, Mirian (289) 237-0415 mirsager@yahoo.ca

5. Yarwood, Susan (905) 308-7553 sueyarwood63@gmail.com

ATTACHMENT 2 ISSUES LIST

City of Hamilton

1. Does the Proposed Zoning Bylaw Amendment Application and Draft Plan of Subdivision (the (“Proposal”) protect natural features and areas for the long term? PPS 4.1.1 UHOP C 2.1.1. C2.1.5 C.2.5.1, C.2.5.9

2. Has the Proposal demonstrated that a. The removal of natural features has been avoided or minimized where possible? b. the natural features and ecological functions of Core Areas will be protected or enhanced? c. Connectivity and linkage between Core Areas will be maintained or enhanced; and d. Linkages within the natural heritage system will be protected or enhanced UHOP C.2.3.3, C.2.5.8, C.2.5.9, C.2.7.1-2.7.1.6, F.3.2.1.11,

3. Has the Proposal demonstrated that it will protect, enhance, and have no negative impacts on natural features, including significant wildlife habitat, key natural heritage features and their ecological functions, including: a. By avoiding natural heritage features; and b. By maintaining, restoring, or improving: c. The connectivity between key natural heritage features and d. The biodiversity of natural heritage systems PPS 4.1.2, 4.1.5(b), 4.1.5(d) UHOP C.2.5.4, C.2.5.8, F 3.2.1.2, F.3.2.1.10

4. Does the Proposal sufficiently assess whether development or site alteration will occur in the habitat of endangered or threatened species? PPS 4.1.7 UHOP C.2.5.2

5. Has the Proposal demonstrated that there will be no negative impacts on the natural features or on their ecological functions on the Adjacent Lands to the subject properties? PPS 4.1.8 UHOP C.2.5.5

6. Does the Proposal demonstrate that the urban tree canopy will be maintained or increased? UHOP C.2.11.1, C.5.6.1

7. Has the Proposal established a sufficient vegetation protection zone to protect Core Areas and their ecological functions and to achieve and maintain natural, self-sustaining vegetation? UHOP C.2.5.9, C.2.5.10

8. Does the Proposal conserve, maintain, and enhance the natural heritage and topographic features of the City and its communities? UHOP B.3.3.2.3

9. Is the Proposal consistent with the goals and objectives articulated in the Urban Forest Strategy, Biodiversity Action Plan and Climate Action Strategy including, but not limited to: a. the objective to achieve 30% tree canopy cover b. protecting, restoring and enhancing natural areas within Hamilton to support biodiversity, establish and enhance core areas, connect fragmented habitats, and enhance ecosystem function c. Monitor, maintain and improve the diversity and resilience of urban trees and forests UHOP C2.1.1, C.2.11.1, C.5.6.1

10. Does the Proposal represent good planning?

ATTACHMENT 3 ORDER OF EVIDENCE

1. Lux 387 M.D. Holding Inc., et al.

2. City of Hamilton

3. Lux 387 M.D. Holding Inc., et al., in reply (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.