Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 21, 2025
CASE NO(S).: OLT-24-001136
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Schout Communities Inc.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit townhouse dwellings
Reference Number: 350303-0040
Property Address: 3770 Hazel Street
Municipality/UT: Fort Erie/Niagara
OLT Case No.: OLT-24-001136
OLT Lead Case No.: OLT-24-001136
OLT Case Name: Schout Communities Inc. v. Fort Erie (Town)
Heard: February 28, 2025 by video hearing
APPEARANCES:
Parties
Counsel
Schout Communities Inc.
Jennifer Meader Meredith Baker (in absentia)
Town of Fort Erie
Denise Baker
MEMORANDUM OF ORAL DECISION DELIVERED BY S. DIXON ON FEBRUARY 28, 2025 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Decision and Order arises from the first Case Management Conference (“CMC”) held regarding an appeal filed by Schout Communities Inc. (“Appellant”) pursuant to s. 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) concerning a draft plan of subdivision application for a vacant land condominium (“Application”) in the Town of Fort Erie (“Town”) for lands known municipally as 3770 Hazel Street (“Subject Lands”).
2The Application seeks to facilitate the development of 93 townhouse units with associated common elements including private roads, internal sidewalks, visitor parking, landscaped areas, and shared amenity space.
3The Application was submitted on February 27, 2023 and was supported by Planning Staff at the Town. Town Council did not make a decision on the Application within the statutory timeframe prescribed by the Act and the appeal was filed on that basis.
NOTICE
4The Tribunal was in receipt of an Affidavit of Service sworn by Victoria Peacock on February 3, 2025, which was marked as Exhibit 1. There were no concerns with the service of notice for the CMC and as such, no further notice is required in these proceedings.
STATUS REQUESTS
5The Tribunal received one request for participant status by Basel Alhatabeh on behalf of Wood Village Homes Inc. in support of the Application. Wood Village Homes Inc. is the owner of lands abutting the Subject Lands.
6The participant status request was not opposed by the Parties and was granted by the Tribunal.
OPPORTUNITIES FOR SETTLEMENT
7Counsel for the Appellant advised the Tribunal that the Parties are engaged in settlement discussions with the Town and will continue in that regard.
DRAFT PROCEDURAL ORDER AND ISSUES LIST
8The Parties submitted a draft Procedural Order and Issues List to the Tribunal in advance of the CMC. However, counsel for the Town, having only been recently retained by their client, requested an additional two weeks to finalise the draft Issues List.
9That request was not opposed by counsel for the Appellant, and a revised draft Procedural Order and Issues List was provided to the Tribunal on March 14, 2025.
10The Tribunal hereby approves the Procedural Order and Issues List attached as Schedule 1, which shall govern the remainder of these proceedings.
HEARING DATES
11After some discussion on the issues and the potential types and number of witnesses required by each Party, the Parties agreed that a 10-day Hearing on the Merits was appropriate. Given the ongoing settlement discussions, the Parties requested that the hearing be scheduled for January 2026.
12The Tribunal agreed with this approach and scheduled a Hearing on the Merits, to be conducted by video hearing, commencing at 10 a.m. on Monday, January 12, 2026 for 10 consecutive business days.
13Parties are asked to log in to the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/692665589
Access Code: 692-665-589
14Parties 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 GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
15Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1-647-497-9373 or (Toll Free) 1-888-299-1889. The Access Code is as indicated above.
16Individuals 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 video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
17THE TRIBUNAL ORDERS that Basel Alhatabeh is granted participant status on behalf of Wood Village Homes Inc. and is hereby a participant to these proceedings.
18THE TRIBUNAL ORDERS that the Procedural Order and Issues List attached to this Order as Schedule 1 are in effect and shall govern the remainder of these proceedings.
19No further notice is required.
20This Member is not seized.
“S. Dixon”
S. DIXON
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
PROCEDURAL ORDER
CASE NO.: OLT-24-001136
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Schout Communities Inc.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit townhouse dwellings
Reference Number: 350303-0040
Property Address: 3770 Hazel Street
Municipality/UT: Fort Erie/Niagara
OLT Case No.: OLT-24-001136
OLT Lead Case No.: OLT-24-001136
OLT Case Name: Schout Communities Inc. v. Fort Erie (Town)
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 January 12, 2026 at 10:00 am.
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.
The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
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 October 10, 2025 and in accordance with paragraph 21 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 October 24, 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 November 7, 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 12 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 12 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 12 below.
On or before November 21, 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 21 below.
On or before November 21, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 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 December 8, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before December 19, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 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 December 15, 2025 and in accordance with paragraph 21 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before December 19, 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 January 5, 2026 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.
A summary of the various filing dates is contained in Attachment 4.
This Member is not seized.
So orders the Tribunal.
ATTACHMENT 1
Parties
- Schout Communities Inc.
TMA Law 25 Main Street West, Suite 2010 Hamilton, ON L8P 1H1
Jennifer Meader Email: jmeader@tmalaw.ca Phone: 905.529.3476
Meredith Baker Email: mbaker@tmalaw.ca Phone: 905.529.3476
- The Town of Fort Erie
WeirFoulds LLP 1320 Cornwall Road, Suite 201 Oakville, ON L6J 7W5
Denise Baker Email: dbaker@weirfoulds.com Phone: 416.947.5090
Participants
- Basel Alhatabeh c/o Wood Village Homes Inc.
SimpsonWigle LAW LLP 1 Hunter Street East, Suite 200 Hamilton, ON L8N 3W1
Bilal Mirza Email: mirzab@simpsonwigle.com Phone: 905.528.8411 Ext. 370
ATTACHMENT 2
Issues List
Town of Fort Erie
Does the proposed draft plan of vacant land condominium have regard for matters of provincial interest as set out in section 2 of the Planning Act and in particular h, j, n, p, r, and s?
Does the proposed draft plan of vacant land condominium have regard for the criteria set out in section 51(24) of the Planning Act, including subsections (a), (b), (c), (d), (f), (k) and (m)?
What are the appropriate conditions of draft plan approval as authorized by subsection 51(25) of the Planning Act?
Does the proposed draft plan of vacant land condominium conform to the Town’s Official Plan including policies 2.1, 4.18.4, 4.18.13.2, 5.6.1, 5.6.2, 5.6.3, 12.7.2, and Site Specific Policy Area #22
Is the proposed development in the public interest and does it represent good planning?
Schout Communities Inc.
Is a requirement that the Applicant construct a 1.5m wide concrete sidewalk on Belleview Boulevard, as reflected in condition 12 included in Appendix 6 of Staff Report PDS-46-1-2024, reasonable and appropriate in accordance with the Planning Act and the Development Charges Act? Does it meet the four-part test that requires conditions imposed under subsection 51(25) of the Planning Act to be “reasonable, relevant, necessary and equal”?
Is a requirement that the Applicant improve and urbanize with curb and gutter the subject land frontages and the Hazel Street/Belleview Boulevard intersection, as reflected in condition 34 included in Appendix 6 of Staff Report PDS-46-1-2024, reasonable and appropriate in accordance with the Planning Act and the Development Charges Act? Does it meet the four-part test that requires conditions imposed under subsection 51(25) of the Planning Act to be “reasonable, relevant, necessary and equal”?
Is the proposed orientation of condominium units #1-24 with frontage onto interior roads appropriate and good planning? Does it have regard for the criteria set out in section 51(24) of the Planning Act?
ATTACHMENT 3
Order of Evidence
- Schout Communities Inc.
- The Town of Fort Erie
- Schout Communities Inc. (in reply)
ATTACHMENT 4
Summary of Filing Dates
EVENT
DATE
List of Witnesses
October 10, 2025
Expert Witness Meetings
October 24, 2025
Agreed Statement of Facts & Remaining Issues
November 7, 2025
Witness and Expert Witness Statements
November 21, 2025
Participant Statement
November 21, 2025
Confirm Hearing Dates with Tribunal
December 8, 2025
Reply Witness Statement
December 15, 2025
Visual Evidence
December 19, 2025
Joint Document Book
December 19, 2025
Hearing Plan
January 5, 2026
OLT Hearing Commences
January 12, 2026