City of Niagara Falls v. Cytec Canada Inc., 2025 CanLII 33059

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 09, 2025

CASE NO(S).: OLT-25-000194

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: City of Niagara Falls

Request for: Request for Directions

Heard: April 08, 2025, In writing

APPEARANCES:

Parties

Counsel

City of Niagara Falls (“City”)

P. DeMelo, D. Pateman

Cytec Canada Inc. (“Cytec”)

A. Burton, S. Floras, J. Wilker

800460 Ontario Limited (“800460”)

S. Premi, T. Richardson

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND FINAL ORDER OF THE TRIBUNAL

Link to Final Order

PART ONE: INTRODUCTION

1This decision arises from a written motion for directions filed by the City as directed by the Tribunal on March 25, 2025 (“Motion”).

2The Motion is for:

An order of the Tribunal that appeals to instruments Official Plan Amendment 179 (“OPA 179”), Zoning By-law Amendment 2025-21 (“ZBA 2025-21”), and Draft Plan of Subdivision 26T-11-2023-02 filed by Cytec Canada Inc. (“Cytec”) that fail to meet the legislative requirements of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) and do not constitute proper appeals, pursuant to subsection 9(1) of the Ontario Land Tribunal Act, Rule 5.6 of the Ontario Land Tribunal Rules of Practice and Procedure, and section 1 and subsections 17(24), 34(19), and 51(48) of the Act.

3Cytec’s appeals against the approvals of three planning instruments granted in 2025 by the City’s Council bearing municipal file numbers OPA 179, ZBA 2025-21 (AM-2024-035), and Draft Plan of Subdivision 26T-11-2023-02 concerning a proposed development at the property known municipally as 9304 McLeod Road (“Subject Lands” or “Subject Property”).

4The City alleges that Cytec claims to be entitled to maintain the above-described appeals because it is a ‘specified person’ as defined by section 1 of the Act but has failed to demonstrate how it would qualify as a ‘specified person’. The City claims that Cytec owns only one parcel of lands within 300 metres (“m”) of the Subject Property (“Beechwood Lands”) which does not involve the type of activity required by the definition of ‘specified person’.

5The Parties therefore obviously differ as to whether Cytec meets the requirements of subsection 1(1) of the Act as a ‘specified person’. That provision states (below, emphasis added):

“specified person” means,

(a) a corporation operating an electric utility in the local municipality or planning area to which the relevant planning matter would apply,

(b) Ontario Power Generation Inc.,

(d) a company operating a natural gas utility in the local municipality or planning area to which the relevant planning matter would apply,

(e) a company operating an oil or natural gas pipeline in the local municipality or planning area to which the relevant planning matter would apply,

(f) a person required to prepare a risk and safety management plan in respect of an operation under Ontario Regulation 211/01 (Propane Storage and Handling) made under the Technical Standards and Safety Act, 2000, if any part of the distance established as the hazard distance applicable to the operation and referenced in the risk and safety management plan is within the area to which the relevant planning matter would apply,

(g) a company operating a railway line any part of which is located within 300 metres of any part of the area to which the relevant planning matter would apply,

(h) a company operating as a telecommunication infrastructure provider in the area to which the relevant planning matter would apply; (“personne précisée”)

(i) NAV Canada,

(j) the owner or operator of an airport as defined in subsection 3 (1) of the Aeronautics Act (Canada) if a zoning regulation under section 5.4 of that Act has been made with respect to lands adjacent to or in the vicinity of the airport and if any part of those lands is within the area to which the relevant planning matter would apply,

(k) a licensee or permittee in respect of a site, as those terms are defined in subsection 1 (1) of the Aggregate Resources Act, if any part of the site is within 300 metres of any part of the area to which the relevant planning matter would apply,

(l) the holder of an environmental compliance approval to engage in an activity mentioned in subsection 9 (1) of the Environmental Protection Act if any of the lands on which the activity is undertaken are within an area of employment and are within 300 metres of any part of the area to which the relevant planning matter would apply, but only if the holder of the approval intends to appeal the relevant decision or conditions, as the case may be, on the basis of inconsistency with land use compatibility policies in any policy statements issued under section 3 of this Act,

(m) a person who has registered an activity on the Environmental Activity and Sector Registry that would, but for being prescribed for the purposes of subsection 20.21 (1) of the Environmental Protection Act, require an environmental compliance approval in accordance with subsection 9 (1) of that Act if any of the lands on which the activity is undertaken are within an area of employment and are within 300 metres of any part of the area to which the relevant planning matter would apply, but only if the person intends to appeal the relevant decision or conditions, as the case may be, on the basis of inconsistency with land use compatibility policies in any policy statements issued under section 3 of this Act, or

(n) the owner of any land described in clause (k), (l) or (m);

6The Motion was required because in 2024, the rights of appellants were changed under the Cutting Red Tape to Build More Homes Act, 2024, S.O 2024, c. 16 (“Bill 185”) which has given rise to the dispute between the City and Cytec.

7Bill 185 modified the Act by amending the appeal rights under subsections 17(24), 17(36) and 34(19) of the Act. The Act now requires that the person filing an appeal must be one of:

(a) The Applicant or the person that requested the amendment;

(b) A ‘specified person’, as defined under subsection 1(1) of the Act (see above in paragraph [5]) who, before the plan was adopted or the by-law was passed, made oral submissions at a public meeting or written submissions to the council;

(c) A public body, as defined under subsection 1(1) of the Act that, before the plan was adopted or the by-law was passed, made oral submissions at a public meeting or written submissions to the council; or

(d) The registered owner of any land to which the plan or by-law would apply, if, before the plan or by-law was adopted or passed, the owner made oral submissions at a public meeting or written submissions to the council or the Minister.

8The materials filed for the Motion were:

(a) City’s Notice of Motion, comprising 219 pages;

(b) Cytec’s Responding Motion Record, comprising 135 pages;

(d) Letter from counsel for 800460, comprising 2 pages.

PART TWO: THE PARTIES’ ARGUMENTS ON THE ISSUES

9800460 made its submission via its letter to the Tribunal dated March 27, 2025 as follows (below, emphasis added):

The purpose of this email is to advise the Tribunal that we have reviewed the City’s motion material in detail and that we fully support the position of the City.

The detailed research assembled by the City confirms that Environmental Compliance Approval(s) (“ECA”) apply to Cytec’s facility at 9061 Garner Road. There is no evidence that there is any such approval that applies to the separate and distinct parcel of land owned by Cytec known as the Beechwood Lands. The Beechwood Lands are not part of nor are they contiguous with the Cytec Facility. The vast majority of the Beechwood Lands constitute wetland.

In our view, based on the City’s comprehensive work, it is clear that Cytec does not meet the definition of “specified person” and that its 2025 appeals are invalid.

In its review of this matter, the City engaged Cytec making multiple requests for Cytec to produce an ECA for the Beechwood Lands. It stands to reason that if Cytec had any evidence to show the Beechwood Lands were covered by an ECA, it would have produced it. Unfortunately, Cytec has been wholly unco-operative and has failed to respond, leading to the need for the City to seek the Tribunals direction on the matter. Finally, we add even if an ECA could be produced, Cytec would still need to show how these lands are within an employment area. That item has also been addressed in the City’s material.

10Cytec argues that (below, emphasis added):

Cytec owns eighteen (18) separate parcels of land that comprise approximately 1,000 acres (collectively the “Cytec Property”) upon which Cytec operates a sophisticated chemical manufacturing plant that produces highly specialized products for the international market.

The Cytec Property is within 300 metres (231 metres) of what is referred to as the McLeod Property, which are the lands the City has approved to re-designate from industrial to allow residential development. The McLeod Property is the subject of the Cytec Appeals in the three letters of appeal contained in the City’s motion record.

The City has drawn hollow distinctions between Cytec landholdings by asserting that each of the eighteen (18) parcels of land that Cytec owns must be evaluated separately, for a Cytec ECA to confer an appeal right.

The legislation does not bear this interpretation. A microscopic investigation of the registered land title for each parcel owned by Cytec, or the parsing of each ECA in search of a municipal address, lot or plan is not warranted for Cytec to prove an appeal right. The Cytec ECAs contain no reference to individual or registered parcels of land, except for the Brown Road Landfill ECA

All lands owned by Cytec are part of its operations. The Cytec Property and Cytec ECAs must be considered and appreciated within the context of its manufacturing operations which Cytec, or its predecessor companies have undertaken since 1941. This approach is consistent with the modern rule of statutory interpretation and its application to meaning of the term “specified person” in section 1(1)(l) of the Planning Act.

11Cytec also goes on in its written submissions to argue that in subsection 1(1)(l) of the Act, the term “if any of the lands” encompasses the entire Cytec Property, given that its landholdings are integrated and that its manufacturing operations are carried out under a number of environmental compliance approvals (“ECAs”). Cytec also alleges that the City has a ‘broader agenda’ aimed at ‘depriving Cytec’ of its appeal rights:

…as plainly stated by the assertion of Ms. Dolch in her affidavit - “that the applications for the official plan, zoning by-law and plan of subdivision were intended to replace prior approvals that were granted in 2023 and which are the subject of a hearing to commence on April 7, 2025.” (Note the OLT has [now]…scheduled these appeals to be heard on April 22, 2025).

12Thus, Cytec suggests that the City’s true objective is to deny Cytec’s right to contest the hearing to commence on April 22, 2025, because without Cytec’s appeal of the 2025 instruments then they will eventually be ordered into force and will thereby replace the 2023 instruments that are the sole subject matter of that OLT appeal – thus rendering the hearing moot.

13The City responds to Cytec’s arguments by pointing out that the material filed by Cytec:

…confirms that there is no ECA that would apply to the Beechwood Lands and that there is no activity that occurs on the Beechwood Lands which would fall within the context of any ECA that would be regulated by section 9(1) of the EPA. The only ECAs that are relevant are those that apply to 9061 Garner Road, which as the City has noted is in excess of 850m from the Subject Lands. It is respectfully submitted that Cytec’s own materials confirm that to be the case.

14The City maintains that a review of the ECA (identified in the City Motion as the 2022 Certificate), as well as any of the ECAs provided by Cytec, shows that the activity authorized under the respective ECAs do not include ‘monitoring’ on other lands or sites and further does not include the requirement for ‘buffering’ as an activity – contrary to the submissions by Cytec. Although Cytec may consider the Beechwood Lands as part of its self-defined “Buffering Lands” this does not address the requirement under the Act which requires that Cytec identify that they are:

…the holder of an environmental compliance approval to engage in an activity mentioned in subsection 9 (1) of the Environmental Protection Act if any of the lands on which the activity is undertaken are within an area of employment and are within 300 metres of any part of the area to which the relevant planning matter would apply.

15Counsel for the City further argues that the only lands which Cytec identifies as falling within 300 m of the Subject Property are the Beechwood Lands. No ECA has been identified that applies to these lands and no activity mentioned in subsection 9(1) of the Environmental Protection Act (“EPA”) is undertaken on the Beechwood Lands.

16Subsection 9(1) of the EPA provides as follows:

Approval, plant or production process

9 (1) No person shall, except under and in accordance with an environmental compliance approval,

(a) use, operate, construct, alter, extend or replace any plant, structure, equipment, apparatus, mechanism or thing that may discharge or from which may be discharged a contaminant into any part of the natural environment other than water; or

(b) alter a process or rate of production with the result that a contaminant may be discharged into any part of the natural environment other than water or the rate or manner of discharge of a contaminant into any part of the natural environment other than water may be altered. R.S.O. 1990, c. E.19, s. 9 (1); 2010, c. 16, Sched. 7, s. 2 (4).

17The City contends that subsection 9(1) of the EPA speaks to regulating activities that may result in the “discharge or from which may be discharged a contaminant …” into the natural environment. Subsection 9(1) of the EPA does not speak to monitoring or buffering, or to the regulation of monitoring or buffering, which Cytec has described as the only use that can be made of the Beechwood Lands. Subsection 9(1) of the EPA speaks to regulating the discharge of contaminants not to the monitoring of contaminants or to the buffering against contaminants that may be discharged. The City maintains that monitoring and buffering are not items that fall under activities under subsection 9(1) of the EPA.

18The City further points out that Cytec does not dispute that the Beechwood Lands is a separate legal parcel from the lands governed by the various ECAs which Cytec has produced. The City notes that none of the ECAs provided by Cytec identify that they include the Beechwood Lands and that there are no alleged activities occurring on the Beechwood Lands that could result in a discharge of a contaminant into any part of the natural environment as identified in subsection 9(1) of the EPA.

19The City also submits that Cytec’s claims that “buffering” and “monitoring” should be considered as activities regulated under subsection 9(1) of the EPA or any of the ECAs identified is “…akin to Cytec suggesting that if it were to use the Beechwood Lands for staff parking that this would fall within its scope of operations and be covered by the activities regulated by the ECA”. The City argues that there must be a connection between the use that is identified for the lands in question and how that use is authorized under the ECA, and with subsection 9(1) of the EPA.

20Finally, the City, in its reviews of the various ECA certificates contained in Cytec’s Responding Motion Record, notes that none involve any permitted activities that could or would occur on the Beechwood Lands.

21As for certain allegations made by Cytec concerning the site plan and site plan agreement, the City’s counsel argues that Cytec incorrectly references, in a supporting affidavit included in its Motion materials, that the lands owned by Cytec, north of Brown Road and the Beechwood Lands, are shown in the Site Key Plan which are attached to its site plan agreement. However, neither the lands north of Brown Road nor the Beechwood Lands are subject to a site plan agreement. The site plan and amending agreement apply only to and are registered against title to the Cytec facility at 9061 Garner Road, being PIN 64263-0090LT, as shown in the exhibits to the same affidavit, and no other Cytec Holdings. Thus, neither the original nor the amending site plan agreement applies to the Beechwood Lands.

FINDINGS AND CONCLUSIONS

22Despite the relatively voluminous filings and the very detailed submissions made by counsel for the two main Parties for the Motion, the issues raised are rather straightforward.

23Clearly, Bill 185 was an effort by the Legislature to restrict appeal rights in proceedings under the Act. This was recognized by this Tribunal in the OLT Decision cited by Cytec in its materials: Domtech v Quinte West (City) 2024 OLT-23-001173 (“Domtech”) and, in the Tribunal’s opinion, flows from a common sense reading of the amendments as is described in paragraphs [5] and [7] above. In the Tribunal’s view, as was the focus in Domtech, an appellant must squarely fall within the amended definition of ‘specified person’ as set out in subsection 1(1)(l) of the Act. In Domtech, the appellant did meet the definition. In this proceeding, it is the Tribunal’s view that Cytec does not, despite the interesting and creative arguments made by its counsel.

24The actual language of subsection 1(1)(l) of the Act is:

25In the Tribunal’s view, as opposed to the interpretations urged by Cytec’s counsel, the plain and ordinary construction of this language in keeping with the overall purposes of Bill 185 requires the ECA activity under subsection 9(1) of the EPA to be undertaken on lands that are within 300 m of the area to which the planning instruments apply (there is no controversy here concerning whether they are in an employment area). The Tribunal’s opinion is that Cytec is unable to demonstrate this based on its materials filed. Thus, there is no need to expound further on principles of statutory interpretation in an effort to extrapolate this provision to take into account Cytec’s lengthy recital of the planning history concerning its much larger other land holdings and no doubt valuable manufacturing operations.

26Cytec does not point to any specific provisions of the example ECAs referred to in its supporting affidavit that govern what the City has defined as the Beechwood Lands (that are within 300 m of the relevant planning area). The Tribunal agrees with the City that only the Cytec parcels at 9061 Garner Road, not the Beechwood Lands, are subject to the ECAs shown in that affidavit.

27The fact that Cytec may consider its entire 1000 acres as being the “lands” does not determine how the Tribunal must interpret subsection 1(1)(l) of the Act. The Tribunal also specifically disagrees with the contention by Cytec that suggests that ECA holders acquired broad rights of appeal beyond those expressly set out in this provision, as follows:

The amendment to the meaning of a specified person to include ECA holders, signals the object and intent of the legislation is to ensure ECA holders will have the opportunity to challenge municipal decisions on the basis of inconsistency with the land use compatibility policies in the Provincial Planning Statement issued under section 3 of the Planning Act

28In the Tribunal’s opinion, the overall intent of the changes introduced by Bill 185 was to restrict, not expand, appellate rights. The fact that ECA holders may not have been previously included as ‘specified persons’ should not trigger a series of interpretations that extends appeal rights beyond the plain and ordinary meaning of the clear language chosen by the Legislature. Ascribing any motives to the City underlying the democratic promulgation in 2025 of new planning instruments is irrelevant. Moreover, when one takes into account the residential housing purposes underlying those instruments, they might mesh quite well with the rather evocative title of the legislation: Cutting Red Tape to Build More Homes Act.

ORDER

29THE TRIBUNAL ORDERS THAT:

(a) The amendments to the Planning Act, R.S.O. 1990, c. P.13, as amended made under the Cutting Red Tape to Build More Homes Act, 2024, S.O 2024, c. 16 preclude the appeals filed by Cytec Canada Inc. with respect to instruments Official Plan Amendment 179, Zoning By-law Amendment 2025-21, and Draft Plan of Subdivision 26T-11-2023-02 approved in 2025 by the City of Niagara; and

(b) There shall be no order as to the costs incurred by the Parties on this motion for directions brought by the City of Niagara Falls

30This Vice Chair shall remain available to assist with any matters arising from the Orders made above.

“William R. Middleton”

WILLIAM R. MIDDLETON

VICE-CHAIR

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.