Montemurro v. Fort Erie (Town), 2025 CanLII 43247

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 06, 2025

CASE NO(S).: OLT-22-004707 OLT-25-000081 OLT-25-000108

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Appellant: Carlo Montemurro

Subject: Refusal of Application

Description: Objection to designation By-law

Reference Number: BL 136-2022

Property Location: 1 Burns Place

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-22-004707

OLT Lead Case No.: OLT-22-004707

OLT Case Name: Montemurro v. Fort Erie (Town)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 2580749 Ontario Inc. O/A Warm Homes and Niagara Regional Mortgage Services

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit development for a mix of townhouse dwellings, single-detached and a fourplex as an addition of the existing heritage dwelling for a total of 38 dwelling units within 6 blocks

Property Address: 1 Burns Place

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-25-000081

OLT Lead Case No.: OLT-25-000081

OLT Case Name: 2580749 Ontario Inc. v. Fort Erie (Town)

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

Applicant and Appellant: 2580749 Ontario Inc. O/A Warm Homes and Niagara Regional Mortgage Services

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

Property Address: 1 Burns Place

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-25-000082

OLT Lead Case No.: OLT-25-000081

PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c. O.18

Applicant and Appellant: 2580749 Ontario Inc. O/A Warm Homes and Niagara Regional Mortgage Services

Subject: Refusal of Heritage Alteration Permit

Description: To apply for a heritage permit which facilitates the retention of the existing heritage dwelling on the subject site for a residential fourplex

Property Address: 1 Burns Place

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-25-000108

OLT Lead Case No.: OLT-25-000108

OLT Case Name: 2580749 Ontario Inc. v. Fort Erie (Town)

Heard: April 8, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

Carlo Montemurro and 2580749 Ontario Inc.

Raj Kehar Narmada Gunawardana

Town of Fort Erie

Andrea Skinner Tom Halinski (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED ON APRIL 8, 2025 BY J. CAMPBELL AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from a Case Management Conference ("CMC") of the Ontario Land Tribunal ("Tribunal") regarding (i) an appeal by 2580749 Ontario Inc. O/A Warm Homes and Niagara Regional Mortgage Services ("2580749") concerning a failure by the Town of Fort Erie ("Town") to adopt a requested Official Plan Amendment ("OPA") and Zoning By-Law Amendment ("ZBA") in respect of the property located at 1 Burns Place, Fort Erie ("Subject Property") ("OLT-25-000081"); (ii) an appeal by 2580749 concerning the failure by the Town to issue a Heritage Alteration Permit ("DP") in respect of the Subject Property ("OLT-25-000108"); and (iii) an appeal by Carlo Montemurro ("Montemurro", and together with 2580749, the "Appellant") of Heritage Designation By-law No. 136-2022 ("Designation By-Law") in respect of the Subject Property ("OLT-22-004707").

2At the CMC, (i) Kelly and Lorraine Dion, Fabian Denis, James Traves, Tom Davis, William and Wendy Clark, and Mark Dittenhoffer each requested Participant status; (ii) the Parties requested the consolidation of OLT-22-004707, OLT-25-000081, and OLT-25-000108; (iii) the Parties considered a consolidated Procedural Order ("PO") and Issues List ("IL"); and (iv) opportunities for settlement were discussed.

BACKGROUND

3Montemurro purchased the Subject Property on October 14, 2021. 2580749 is the beneficial owner of the Subject Property. On October 17, 2022, the Town passed the Designation By-Law, which, pursuant to subsection 29(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended ("OHA"), designated the Subject Property to be of cultural heritage value and/or interest.

4The Appellant seeks to redevelop the Subject Property with 38 residential dwellings consisting of 33 townhouses in six development blocks, a single-detached dwelling, and preservation of the existing heritage dwelling with some modifications to repurpose it as a fourplex (the "Proposed Development").

5On November 24, 2022, Montemurro appealed the Designation By-Law to the Tribunal pursuant to subsection 29(11) of the OHA, which appeal is proceeding as OLT-22-004707.

6On September 5, 2024, applications for the OPA and ZBA (the "OPA and ZBA Applications") were filed with the Town to facilitate the Proposed Development. Following a Motion for Determination brought by the Appellant, the OPA and ZBA Applications were deemed to be complete pursuant to an order of the Tribunal dated January 28, 2025. 2580749 subsequently appealed the failure of the Town to approve the OPA and ZBA Applications, which appeal is proceeding as OLT-25-000081.

7On September 6, 2024, the Appellant applied for the DP pursuant to subsections 33 and 34 of the OHA ("DP Application") in order to permit the Proposed Development. The Town refused the DP Application. On February 4, 2025, 2580749 subsequently appealed the refusal of the Town to grant the DP, which appeal is proceeding as OLT-25-000108.

Status Requests

8At the CMC, Kelly and Lorraine Dion, Fabian Denis, James Traves, Tom Davis, William and Wendy Clark, and Mark Dittenhoffer submitted a request for Participant status on the basis that each had an interest in neighbouring properties. The requests for Participant status were received by the Tribunal on consent. The Tribunal found that there were reasonable grounds to add Kelly and Lorraine Dion, Fabian Denis, James Traves, Tom Davis, William and Wendy Clark, and Mark Dittenhoffer as Participants and granted each of them Participant status, as requested.

Consolidation

9The Parties jointly requested that the appeals in respect of each of the Designation By-Law, the OPA and ZBA Applications and the DP Application be consolidated as they address the same heritage issues and there will be substantial overlap in the evidence to be provided in respect of each of the appeals.

10The Tribunal has the authority to consolidate hearings pursuant to section 16.1 of the Tribunal’s Rules of Practice and Procedure (the "Rules"), which provide as follows:

16.1 The Tribunal may order that two or more proceedings or any part of them, be consolidated, heard at the same time, or heard one after the other, or stay or adjourn any matter until the determination of any other matter, subject to any applicable statutory or regulatory restrictions.

11Further, in determining whether to grant the requested consolidation, the Tribunal considered sections 1.3 and 1.6 of the Tribunal Rules, which provide as follows:

1.3 Interpretation of the Rules. These Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.

1.6 Tribunal May Exempt From Rules. The Tribunal may grant all necessary exceptions from these Rules or from any procedural order, or grant other relief as it considers necessary and appropriate, to ensure that the real questions in issue are determined in a fair, just, expeditious and cost-effective manner.

12The Tribunal was persuaded that consolidating the three appeals would lead to better efficiencies than would be achieved through hearing the matters separately. The three matters relate to the same Subject Property and Proposed Development, and have common heritage issues, which will involve hearing evidence from the same witnesses. Consolidation will also enable the Tribunal to deal with the issues in a comprehensive, efficient, and cost-effective manner and avoid potential pre-determination of issues in subsequent proceedings.

13Accordingly, based on the joint submissions of the Parties, the Tribunal granted the requested relief and consolidated OLT-22-004707, OLT-25-000081, and OLT-25-000108 pursuant to Rule 16.1 of the Rules.

Procedural Order and Issues List

14Having determined that each of the three appeals shall be consolidated, the Tribunal then reviewed a draft PO which had been prepared on the basis of a 10-day Hearing scheduled to commence on Monday, October 27, 2025. The Parties were in agreement on the key dates set out in the draft PO, and the Tribunal had no objections.

15The Parties then reviewed a draft IL, which did not yet incorporate final comments by the Town. After the discussion, it was agreed that the Town would provide their final comments and/or additions on the draft IL to the Appellant by Tuesday, April 22, 2025, and a proposed final version of the IL would be delivered to the Tribunal on or prior to Wednesday, April 30, 2025.

16Following the CMC, the finalized IL was delivered to the Tribunal by the Parties. The Tribunal had no objections to the finalized IL.

Settlement Opportunities

17The Parties then discussed opportunities for settlement and expressed a mutual willingness to engage in mediation. The Tribunal encouraged such endeavours and referred the Parties to the Case Coordinator to pursue Tribunal-led mediation.

ORDER

18The Tribunal orders THAT:

(i) Kelly and Lorraine Dion, Fabian Denis, James Traves, Tom Davis, William and Wendy Clark, and Mark Dittenhoffer are granted Participant status in these proceedings;

(ii) OLT-22-004707, OLT-25-000081, and OLT-25-000108 are hereby consolidated (the "Consolidated Appeal"); and

(iii) The Procedural Order and Issues List appended as Schedule A hereto shall be the Procedural Order and Issues List in respect of the Consolidated Appeal.

19There will be no further notice.

20This Member is not seized.

"Jennifer Campbell"

JENNIFER CAMPBELL

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 A

CASE NO(S).: OLT-22-004707 OLT-25-000081 OLT-25-000108

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Appellant: Carlo Montemurro

Subject: Refusal of Application

Description: Objection to designation By-law

Reference Number: BL 136-2022

Property Location: 1 Burns Place

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-22-004707

OLT Lead Case No.: OLT-22-004707

OLT Case Name: Montemurro v. Fort Erie (Town)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 2580749 Ontario Inc. O/A Warm Homes and Niagara Regional Mortgage Services

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit development for a mix of townhouse dwellings, single-detached and a fourplex as an addition of the existing heritage dwelling for a total of 38 dwelling units within 6 blocks

Property Address: 1 Burns Place

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-25-000081

OLT Lead Case No.: OLT-25-000081

OLT Case Name: 2580749 Ontario Inc. v. Fort Erie (Town)

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

Applicant and Appellant: 2580749 Ontario Inc. O/A Warm Homes and Niagara Regional Mortgage Services

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

Property Address: 1 Burns Place

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-25-000082

OLT Lead Case No.: OLT-25-000081

PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c. O.18

Applicant and Appellant: 2580749 Ontario Inc. O/A Warm Homes and Niagara Regional Mortgage Services

Subject: Refusal of Heritage Alteration Permit

Description: To apply for a heritage permit which facilitates the retention of the existing heritage dwelling on the subject site for a residential fourplex

Property Address: 1 Burns Place

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-25-000108

OLT Lead Case No.: OLT-25-000108

OLT Case Name: 2580749 Ontario Inc. v. Fort Erie (Town)

PROCEDURAL ORDER

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 Monday, October 27, 2025, at 10:00 a.m. at:

https://meet.goto.com/996288525

Access Code: 996-288-525

Audio-only Telephone line: (Toll-Free) 1-888-455-1389 or +1 (647) 497-9391

3. 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 procedural order deadlines are generally found in Attachment 1.

4. The Parties and Participants identified at the case management conference are set out in 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.

5. The issues are set out in the Issues List attached as Attachment 3. 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 4 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 the 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 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 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 and the order in which they will be called. This list must be delivered on or before Friday, July 25, 2025 and in accordance with paragraph 22 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.

10. Expert witnesses in the same field shall have a meeting on or before Friday, August 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 co-ordinator on or before Friday, August 15, 2025

11. 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 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.

12. 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 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 13 below.

13. On or before Friday, September 5, 2025, the Parties shall provide copies of their expert witness statements to the other Parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before Friday, September 5, 2025, a Participant shall provide copies of their written Participant statement to the other Parties in accordance with paragraph 22 below. A Participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before Friday, September 12, 2025, the Parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Friday, October 10, 2025, the Parties shall provide copies of their visual evidence to all of the other Parties in accordance with paragraph 22 below. If a model will be used, all Parties must have a reasonable opportunity to view it before the hearing.

17. On or before Friday, October 3, 2025, the Parties may provide to all other Parties and the OLT’s Case co-ordinator a written response to any written evidence in accordance with paragraph 22 below.

18. The Parties shall cooperate to prepare a joint document book, which shall be shared with the OLT case co-ordinator on or before Friday, October 17, 2025.

19. 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.

20. 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.

21. The Parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, October 17, 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.

22. All filings shall be submitted electronically and in hard copy, if requested by the Tribunal. 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.

23. 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.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF KEY DATES

Date

Hearing event

July 25, 2025

Exchange of List of Witnesses

August 8, 2025

Expert Witness Meeting

August 15, 2025

Filing of Statement (s) of Agreed Facts and Issues

September 5, 2025

Exchange of Witness Statements

September 5, 2025

Delivery of Participant Statements

September 12, 2025

Confirmation to Tribunal if all reserved hearing dates are still required

October 10, 2025

Exchange of Visual Evidence

October 3, 2025

Exchange of Reply Witness Statements

October 17, 2025

Filing of Joint Document Book

October 17, 2025

Filing of Hearing Plan

October 27, 2025

Hearing Commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. Carlo Montemurro, 2580749 Ontario Inc. O/A Warm Homes and Niagara Regional Mortgage Services

Raj Kehar / Narmada Gunawardana WeirFoulds LLP 4100-66 Wellington Street West Toronto, ON M5K 1B7 rkehar@weirfoulds.com 416-947-5051 ngunawardana@weirfoulds.com 647-715-7117

2. Town of Fort Erie

Tom Halinski Aird & Berlis LLP Brookfield Place, 181 Bay St. #1800, Toronto, ON M5J 2T9 thalinski@airdberlis.com 416-865-7767

PARTICIPANTS

1. Kelly and Lorraine Dion

lstewart34@cogeco.ca 905-328-6945

2. William Clark

wclark1333@gmail.com 289-320-8424

3. Mark Dittenhoffer

mark.dittenhoffer@gmail.com 519-740-8255

4. Tom Davis

Tom.turbo.davis@gmail.com 905-650-8719

5. Fabian Denis

fabiandenis1@gmail.com 416-799-9303

6. James Traves

james.traves1@gmail.com 289-686-3333

ATTACHMENT 3

ISSUES LIST OF THE TOWN OF FORT ERIE

(As it applies to the Official Plan Amendment, Zoning By-law Amendment, and Heritage Permit Application appeals)

1. Does the proposal have regard to matters of provincial interest as set out in Section 2 of the Planning Act, and in particular, sections (a), (d), (f), (h), (j), (l), (n), (p) and (r)?

2. Is the proposal consistent with the Provincial Planning Statement, and in particular, sections 2.2.1, 2.3.1, 3.1, 3.5, 3.6, 3.9, 4.1 and 4.6?

3. Does the proposal conform with the Niagara Official Plan, and in particular, sections 2.2.1.1, 2.2.4.1, 2.3.1.1, 2.3.1.4, 5.2.2.4, 5.2.2.14, 5.2.5.1, 5.2.5.3, 5.2.5.4, 6.5.1.1, 6.5.1.2, 6.5.1.5, 6.5.1.7 and 6.5.1.8?

4. Does the proposal conform with the Bridgeburg Secondary Plan and the Town Official Plan, and in particular, sections 4.15.6, 4.15.13.1, 4.15.13.2, 4.15.19, 4.15.20, 4.15.22, 5.6.1, 5.6.2, 5.6.3, 8, 11.1, 11.2, 11.3, 11.4 and 12?

5. Does the proposal conflict with the cultural heritage attributes identified in By-law 136-2022?

6. Does the proposed development adequately and appropriately protect cultural heritage resources?

7. Should a heritage alteration permit be issued, and if so, what conditions would be appropriate?

8. Are block townhouses and a fourplex compatible with the Low-Density Residential land use designation?

9. Are the proposed densities and heights appropriate?

10. Is a "gated community" appropriate and does it conform with the objectives and vision of the Town’s Official Plan?

11. Has the proposed development appropriately investigated potential archaeological resources on the lands?

12. Has the Appellant demonstrated the technical feasibility of the proposal, including servicing and waste collection?

13. Would the proposal result in unacceptable transportation impacts?

14. Does the proposed development provide appropriate parking for the proposed gatehouse?

15. Is the proposal to use a Special Policy Area and a Holding (H) Zone provision until a more detailed review is completed of natural heritage features appropriate?

16. Does the proposed development appropriately protect the existing watercourse?

17. Is the proposed development in the public interest, and does it represent good planning?

18. If the Tribunal determines to approve the proposal, are the implementing instruments, in form and in content, satisfactory to the Town, and do they appropriately implement the Tribunal’s determination?

ISSUES LIST OF THE APPELLANT

(As it applies to the Objection to the Designation By-law)

19. Does the subject site have design value or physical value?

20. Does the subject site have historical value or associative value?

21. Does the subject site have contextual value?

22. Is there any natural heritage on the subject site that has cultural heritage value?

23. Is the "setting of the house located back from the street in a landscape of mature trees on approach with expansive lawn surrounding the main building" a heritage attribute of the subject site?

24. Is the double garage auxiliary building a heritage attribute of the subject site?

25. Is the asphalt shingle roof a heritage attribute of the subject site?

26. Is it appropriate to identify heritage attributes for the subject site that are interior to the building, including marble fireplaces, kitchen fireplace, stairs, etc.?

27. Have any of the heritage attributes identified in the Town’s designation by-law 136-2022 lost their integrity such that they are no longer heritage attributes of the subject site?

28. What amendments, if any, are required to the Town’s designation bylaw 136-2022, including with respect to:

a. the Description of the Property;

b. the Statement of Cultural Heritage Value or Interest; and

c. the Description of Heritage Attributes?

29. Is a decision to approve the Town’s designation by-law consistent with the Provincial Planning Statement, 2024, or any applicable predecessor, thereof?

ATTACHMENT 4

ORDER OF EVIDENCE

1. Appellant

2. Town of Fort Erie

3. Appellant (Reply)