Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 15, 2025
CASE NO(S).: OLT-23-000906 OLT-23-000937
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Cytec Canada Inc. Subject: By-law No. 2023-078 Description: To implement a residential plan of subdivision consisting of 498 dwelling units Reference Number: AM-2023-007 Property Address: 9304 McLeod Road Municipality/UT: Niagara Falls/Niagara OLT Case No.: OLT-23-000906 OLT Lead Case No.: OLT-23-000906 OLT Case Name: Cytec Canada Inc. v. Niagara Falls (City)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Cytec Canada Inc. & 2610823 Ontario Inc. Applicant: City of Niagara Falls Subject: OPA 147 Description: Proposed modifications to implement the City’s Employment Lands Strategy Reference Number: By-law No. 2023-037 Property Address: Employment Lands within the City of Niagara Falls Municipality/UT: City of Niagara Falls / Region of Niagara OLT Case No.: OLT-23-000937 OLT Lead Case No.: OLT-23-000937 OLT Case Name: Cytec Canada Inc. & 2610823 Ontario Inc. v. Niagara (City)
Heard: April 22, 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
Regional Municipality of Niagara ("Niagara")
A. Suriano
DECISION DELIVERED BY WILLIAM R. MIDDLETON AND FINAL ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Decision arises from an earlier Decision of the Tribunal issued April 9, 2025, in a matter closely related to this proceeding, concerning instruments approved by the City in 2025, being in OLT-25-000194 ("Prior Decision").
2In the Prior Decision, the Tribunal precluded the appeals filed by Cytec with respect to 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 (collectively, "2025 Instruments").
3The current proceeding involves 2023 planning instruments that will be superseded by the 2025 Instruments, which would ordinarily be expected to soon come into force because there are no longer any outstanding appeal proceedings related to them. Counsel for the City has noted that he will be attending before City Council on May 6, 2025 (apparently the first opportunity to do so) to update it on the Prior Decision and regarding the request by 800460 to have the 2023 planning instruments rescinded. In that situation, the current proceeding would become moot (although for the reasons stated below it is unnecessary to determine that issue at this time).
4However, if Cytec was to be successful in a possible future request to review the Prior Decision pursuant to section 23 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 ("OLTA") and/or in a possible appeal of the Prior Decision, then it is possible at some future date that Cytec will be permitted to prosecute its appeal of the 2025 Instruments. In that event, the current proceeding will not necessarily become moot – and it may also be that the best course of action then would be to consolidate or hear the two appeal proceedings together under Rule 16 of the OLT Rules of Practice and Procedure ("Rules").
5Due to the above-noted circumstances, and because it is still unknown whether Cytec will seek to review or appeal the Prior Decision, the City, supported by 800460 and by Niagara, seeks an adjournment of the current appeal proceedings, which are scheduled for a hearing to commence on Tuesday, April 22, 2025 ("April 22 hearing"). They argue that this is reasonable in light of the 'mootness' aspect described above and point to the potential for the incurrence of duplicative and/or unnecessary costs and time. No motion has been filed but correspondence has been delivered.
6However, Cytec opposes this adjournment request – also by correspondence only – and notes that it has followed the governing Procedural Order in this proceeding and has incurred costs in connection with preparation for the April 22 hearing. It also claims to have been surprised by the position now being taken by the City and the 800460 – while it is unnecessary for this Tribunal to determine the likelihood of that, it does seem unlikely that Cytec's very experienced counsel had not anticipated the various dynamics of the situation that have now arisen.
ANALYSIS/DECISION
7The circumstances here are quite unique because of the impact of the enactment in 2024 of the Cutting Red Tape to Build More Homes Act, 2024, S.O 2024, c. 16 ("Bill 185"), which limited the rights of third-party appellants. In the Prior Decision, the Tribunal ruled that Bill 185 precluded Cytec's appeal of the 2025 Instruments.
8The current proceeding involving only the 2023 planning instruments was underway before Bill 185 came into force. Then, earlier in 2025, the City duly enacted the 2025 Instruments. Until the Prior Decision, the current proceedings simply continued on and the upcoming hearing had been previously scheduled in due course.
9In the Tribunal's view, it must have due regard in these unusual circumstances to its mandate to efficiently conduct its proceedings and to act fairly, taking into account the competing interests of all Parties, and to consider, in its discretion, what measures would offer the best opportunity for a fair, just, and expeditious resolution of the merits of the proceedings – pursuant to section 12 of the OLTA and Rules 1.3 and 1.4 of the Rules.
10In the Tribunal's view, given the uncertainties that exist here and the need to allow Cytec time to consider what steps, if any, it wishes to take in respect of the Prior Decision, the cancellation of the April 22 hearing is reasonable and balances the legitimate concerns of all Parties. In the event that a hearing of this appeal proceeding is still required in due course, the Tribunal will prioritize its scheduling to accommodate it.
11From a practical standpoint, if Cytec does not seek to review or appeal the Prior Decision, and if the 2023 planning instruments that are the subject matter of this proceeding are rescinded by the City, then there simply may be no basis whatsoever for the current proceedings to continue – although it is unnecessary at this juncture for the Tribunal to determine that issue. Moreover, absent a decision by Cytec to withdraw its appeal or some other agreement by the Parties, such a determination would require further motion practice since the Tribunal does not intend to adjudicate that matter based on merely the correspondence filed by the Parties to date. In the Tribunal's view, there is clearly insufficient time for such motion practice to be completed – and for the Tribunal to make a ruling – before April 22, 2025. Thus, the April 22 hearing date would need to be rescheduled for that reason alone.
12Finally, the Tribunal notes that Cytec has filed another motion in this matter, seeking a confidentiality order in respect of certain written material and intended oral evidence ("Confidentiality Motion"). While the Tribunal is considering the materials as filed, due to the uncertainties associated with the unique situation here as detailed above, the need to adjudicate the motion proceedings leading up to the Prior Decision on a priority basis, and the determination reached in the Prior Decision, it has deferred its ruling on the Confidentiality Motion.
13In all of the circumstances described above, the Tribunal exercises its discretion to cancel the April 22 hearing and to require a status update from the Parties within 60 days. This will, inter alia, permit: (i) Cytec to determine what steps if any to take in respect of the Prior Decision; (ii) the Parties to consider and initiate motion practice concerning the impact of the Prior Decision on the current appeal proceedings, and any appeal thereof; and (iii) the Tribunal to deal with the Confidentiality Motion once it becomes clear whether it is necessary to do so.
ORDER
14THE TRIBUNAL ORDERS THAT:
(a) The hearing of this appeal now scheduled to commence on Tuesday, April 22, 2025 shall be cancelled, subject to possible future rescheduling;
(b) Cytec Canada Inc. shall advise the Tribunal in accordance with the prescribed time limits as to whether it seeks to review the April 9, 2025 Decision of the Tribunal and/or seeks to appeal that Decision;
(c) In any event, the Parties shall advise the Tribunal in writing within 60 days of the date of issuance of this Decision as to all pertinent matters of status, including but not limited to whether the planning instruments that are the subject matter of this proceeding have been rescinded;
(d) Any motions regarding the continuation of this proceeding, including but not limited to any matters under Rule 16 of the OLT's Rules of Practice and Procedure, shall be commenced in writing only pursuant to Rule 10.3 of the OLT's Rules of Practice and Procedure within 75 days of the date of issuance of this Decision, except as may otherwise be directed by the Tribunal.
15This Vice-Chair shall remain available to assist with any matters arising from the Orders made above and the ongoing case management of this proceeding.
"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.