Dickenson Limited Partnership and Dickenson GP Inc. v. Hamilton (City), 2025 CanLII 14500

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: FEBRUARY 19, 2025

CASE NO.: OLT-24-000803

PROCEEDING COMMENCED UNDER subsection 36(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Dickenson Limited Partnership and Dickenson GP Inc.

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

Description: To permit an industrial warehouse development

Reference Number: ZAH-22-021

Property Address: 9451,9517, 9569, 9579, 9593 and 9867 Dickenson Road, 1199 and 1205 Glancaster Road

Municipality/UT: Hamilton/Hamilton

OLT Case No.: OLT-24-000803

OLT Lead Case No.: OLT-24-000803

OLT Case Name: Dickenson Limited Partnership and Dickenson GP Inc. v. Hamilton (City)

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

Applicant and Appellant: Dickenson Limited Partnership and Dickenson GP Inc.

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

Description: To permit an industrial warehouse development

Reference Number: 25T-202203

Property Address: 9451,9517, 9569, 9579, 9593 and 9867 Dickenson Road, 1199 and 1205 Glancaster Road

Municipality/UT: Hamilton/Hamilton

OLT Case No.: OLT-24-000804

OLT Lead Case No.: OLT-24-000803

BEFORE:

D. CHIPMAN MEMBER

Friday, the 14th day of February, 2025

THE TRIBUNAL ORDERS that further to the Decision issued on January 22, 2025, the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on July 7, 2025. The Tribunal has set aside 15 days for the hearing.

“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.

SCHEDULE “A”

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 Monday July 7, 2025 at 10:00am at the following link:

GoTo Meeting : https://global.gotomeeting.com/join/909787981

Access Code: 909-787-981

3. The parties’ initial estimation for the length of the hearing is 15 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 identified at the case management conference are set out in Attachment 1.

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. The meaning of the terms used in this Procedural Order are identified in Attachment 4.

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 Monday March 10, 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 Tuesday April 8, 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 coordinator on or before Tuesday April 15, 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 Friday May 9, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 23 below.

15. On or before Friday May 9, 2025, a participant shall provide copies of their written participant statement to the other parties and to the OLT case coordinator 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 Friday June 6, 2025, the parties may provide to all other parties and the OLT case coordinator a written response to any written evidence in accordance with paragraph 23 below.

17. On or before Monday June 9, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before Friday June 13, 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.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before Monday June 23, 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 Monday June 23, 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.

These Members are not seized. So orders the Tribunal.

SUMMARY OF DATES

DATE	EVENT
Monday March 10, 2025	Exchange List of Proposed Witnesses
Friday March 28, 2025	Deadline to file Motion to Challenge Witness Qualification
Friday April 4, 2025	Last day to provide revised proposal, including revised plans and drawings (if any)
Tuesday April 8, 2025	Deadline for Expert Witness Meeting
Tuesday April 15, 2025	Deadline for Statement of Agreed Facts and Issues
Friday May 9, 2025	Deadline for Witness Statements; Deadline for Expert Witness Statements; and Deadline for Participant Statements
Friday June 6, 2025	Deadline for Reply Witness Statements (if any); and Deadline for Reply Expert Witness Statements (if any)
Monday June 9, 2025	Deadline for advising the Tribunal if all the reserved hearing dates are required
Friday June 13, 2025	Deadline for Visual Evidence
Monday June 23, 2025	Deadline for Joint Document Book
Monday June 23, 2025	Deadline for Preliminary Hearing Plan
Monday July 7 2025 – Friday July 25, 2025	Commencement of Hearing (15 days)

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

Parties	Counsel/Representative
Dickenson Limited Partnership and Dickenson GP Inc.	Aird & Berlis LLP Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Alexander J. Suriano Email: asuriano@airdberlis.com Tel: 437-880-6108 Anna Lu Email: alu@airdberlis.com Tel: 416-865-3419
City of Hamilton	City of Hamilton City Hall 71 Main Street West, 6th Floor Hamilton, Ontario L8P 4Y5 Rachel McVean Email: Rachel.McVean@hamilton.ca Tel: (905) 546-2424 Ext.2622

ATTACHMENT 2 ISSUES LIST

ISSUES OF CITY OF HAMILTON

NOTE: The identification of an issue on this list does not mean that all Parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the Hearing.

PLANNING

1. Is the development proposal consistent with the Provincial Planning Statement (2024) (“PPS”), including but not limited to policies 2.3.1.2 b), 2.9.1 b), c) and d), 3.5.1, 3.6.1, 3.6.2, 4.1.1, 4.1.2, 4.1.3, 4.1.5, 4.1.6, 4.1.7, 4.1.8, 4.2.1, 4.2.2., 4.6.1 and 4.6.2?

2. Does the proposal conform to the policies of the Urban Hamilton Official Plan, including but not limited to policies C.2.2.2, C.2.2.4, C.2.2.8, C.2.3, C.2.3.1, C.2.3.3, C.2.5.3, C.2.5.4, C.2.5.5, C.2.5.8, C.2.5.9, C.2.5.10, C.2.5.11, C.2.5.12, C.2.5.13, C.2.11.1, C.2.11.4, C.2.11.5, and F.1.14.1.2 of Volume 1 of the Urban Hamilton Official Plan and B.8.2.2 b), B.8.2.3 e), B.8.2.11, B.8.12.1, B.8.12.2, B.8.3.5, , B.8.9, B.8.9.3, B.8.12.1 and B.8.14.15, of Volume 2 of the Airport Employment Growth District Secondary Plan?

3. Does the proposal conform with policies B.3.4.4, B.3.4.2.13 of Volume 1 of the Urban Hamilton Official Plan and B.8.2.12 and B.8.13.4 of Volume 2 of the Airport Employment Growth District Secondary Plan?

4. Does the proposal conform with policies C.5.3.6, C.5.3.17, C.5.4.11, C.5.7.2 of Volume 1 of the Urban Hamilton Official Plan and B.8.2.9, B.8.3.8 B.8.9.3, B.8.9.6, B.8.9.12, B.8.11.1 and B.8.14.15 of Volume 2 of the Airport Employment Growth District Secondary Plan?

5. Does the proposal conform with policies C.4.2.19 of Volume 1 and B.8.10.15 a) and c) of Volume 2 of the Airport Employment Growth District Secondary Plan?

6. Does the proposal conform with policy B.3.6.3.19 of Volume 1 of the Urban Hamilton Official Plan and B.8.2.8 f), B.8.3.6, and B.8.4.5.8 n) of Volume 2 of the Airport Employment Growth District Secondary Plan?

7. Is it appropriate to revise the alignment of a Major Collector Road on Map B.8-3 – Airport Employment Growth District Secondary Plan – Road Classification prior to an Environmental Assessment being completed?

8. Does the proposed development represent good land use planning and is it in the public interest?

NATURAL HERITAGE

9. Does the applicant’s Environmental Impact Statement demonstrate that the features and functions of Core Areas, if any, will not be negatively impacted, including required setbacks, as required under the Urban Hamilton Official Plan, including but not limited to Volume 1 policies C.2.3, C.2.3.3, C.2.5.4, C.2.5.5, C.2.5.8, C.2.5.9, C.2.5.10, C.2.5.12, and C.2.5.13?

10. Does the proposed development conform with the Urban Hamilton Official Plan Volume 1 policy C.2.11.1, C.2.11.4, and C.2.11.5 and Volume 2 B.8.2.2 and B.8.2.11 to encourage sustainable forestry practices and the protection and restoration of trees?

TRANSPORTATION

11. Is the proposal consistent with the Provincial Planning Statement (2024) (“PPS”) in terms of policies 3.2 for Transportation Systems and 3.3 1) 2) 3) Transportation Infrastructure Corridors?

12. Is the proposal well connected to the City and Region by a seamless, multi-modal transportation network conforming to Airport Employment Growth District Secondary Plan policies 8.2.5 a) d) h)?

13. Does the proposal present a transportation network that shall be implemented as per the Airport Employment Growth District Secondary Plan Map B.8-1 – Airport Employment Growth District Land Use Plan, Map B.8-2 – Airport Employment Growth District Natural Heritage System, Map B.8-3 – Airport Employment Growth District Road Classification Map, and Map B.8-4 – Airport Employment Growth District Phasing Plan?

14. Does the proposal provide a transportation network and allowance in the right-of-way to support the eco-industrial design of the business park and be capable of accommodating sustainable design elements as per policies 8.10.1 b) c) of the Airport Employment Growth District Secondary Plan (OPA 35)?

15. Does the proposal conform to policy 8.16.7 b) of the Airport Employment Growth District Secondary Plan (OPA 35)?

16. Does the proposal conform to policy 8.16.8 of the Airport Employment Growth District Secondary Plan (OPA 35)?

17. Does the proposed development conform with the Urban Hamilton Official Plan Policy C.4.2.19?

18. Does the proposed development conform with the Airport Employment Growth District Secondary Plan Policy 8.10.12 d)?

19. Does the proposed development conform with the Urban Hamilton Official Plan Policy 4.5.7 c) (Arterial Daylighting Triangles)?

20. Does the proposal conform 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 not limited to policy C.4.5.12?

DEVELOPMENT ENGINEERING

21. Is the development proposal consistent with the Provincial Planning Statement (2024) (“PPS”), including but not limited to policies 3.1.1(c), 3.6.1(b) 4, 3.6.1(c), 4.2.1(a), 4.2.3, 6.1.8 and 6.2.1(d)?

22. Does the proposed development conform with the Urban Hamilton Official Plan Policy C.5.0 Infrastructure and specifically Policies 5.3.14 to 5.3.17, inclusive?

23. Does the proposed development conform with the Urban Hamilton Official Plan Policy C.5.4 Storm Water Management Facilities, Policies 5.4.1(a)(c)(d)(f) and (g), 5.4.3, 5.4.4(a) and (b),5.4.5, 5.4.8, 5.4.11(a)(b) and (c)?

24. Does the proposed development conform with the Urban Hamilton Official Plan Policy C.5.6.1(a) Green Infrastructure (OPA167)?

25. Does the development proposal conform with Airport Employment Growth District Secondary Plan (OPA 35) Section 8.9.3, 8.9.4, 8.9.5, 8.9.6, 8.9.7 and 8.9.11?

26. Does the development proposal conform with Airport Employment Growth District Secondary Plan (OPA 35) Section 8.11.1 and 8.11.2?

27. Does the development proposal conform with Airport Employment Growth District Secondary Plan (OPA 35) Section 8.14.10, 8.14.11 and 8.14.12?

28. Does the development proposal conform with Airport Employment Growth District Secondary Plan (OPA 35) Section 8.14.15(a)(b)(c) and (d)?

29. Does the development proposal conform with Airport Employment Growth District Secondary Plan (OPA 35) Section 8.16.9 and 8.16.10?

30. How does the timing for land acquisition to facilitate road urbanization works on Dickenson Road West, between Upper Janes Street and Street “A” affects, the costs for implementation of the Master Servicing strategy?

31. Is there existing external drainage that meets the City’s criterion for a significant swale that may affect developable area of Block 4, as noted on the proposed Draft Plan of Subdivision?

32. Does the proposed development conform with Policy C.5.4 a), c), d), f) and g), C.5.4.3, 5.4.4 a) and b), C4.4.8 and C.5.4.12 of Hamilton’s Urban Official Plan? Does the proposed stormwater management strategy comply with approved watershed and sub-watershed plans, as well as relevant municipal and provincial guidelines? Does the proposed design ensure there are no negative impacts on surrounding developments including Airport lands or natural features like creeks, and woodlots?

ARTERIAL 1N

33. Does the Arterial 1N (Dickenson Road and Glancaster Road) alignment fulfill the requirements of the Phases 3 & 4 of the Municipal Class Environmental Assessment process? Are the road’s recommended alignment, cross-section, plan & profile and the evaluation criteria, such as, the natural heritage system, archeological and other technical design details consistent with the Planning Application process and related conditions?

34. Should the Arterial 1N Phases 3 & 4 Municipal Class Environmental Assessment be filed with the MECP and have passed the minimum 30-day Public Comment period and any Section 16 appeals resolved?

ISSUES OF DICKENSON LIMITED PARTNERSHIP AND DICKENSON GP INC.

PLANNING

1. Does the proposed development conform with policies C.2.2.5, C.2.2.6, and 2.3.2 of Volume 1 of the Urban Hamilton Official Plan?

2. Does the proposed development conform with policies B.8.2.7 g) and h), B.8.4.5, B.8.4.5.1. a), B.8.4.5.7, and B.8.4.7.1 a), b), c) and d) of Volume 2 of the Urban Hamilton Official Plan?

3. Does the proposal conform with policy B.8.14.27 of Volume 2 of the Urban Hamilton Official Plan?

NATURAL HERITAGE

4. Does the proposed development conform with policies C.2.2.5, C.2.2.6 and C.2.3.2 of Volume 1 of the Urban Hamilton Official Plan?

ATTACHMENT 3 ORDER OF EVIDENCE

1. Dickenson Limited Partnership and Dickenson GP Inc.
2. City of Hamilton
3. Reply by Dickenson Limited Partnership and Dickenson GP Inc. (if any)

ATTACHMENT 4

PURPOSE OF THE PROCEDURAL ORDER

Case management conferences are scheduled by the Tribunal to organize the hearing. This sample procedural order is provided to identify who may participate in the hearing, the issues in dispute, and the matters that are required to be carried out before the hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a party or a participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the case management conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

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 authorization 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.