Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 30, 2025
CASE NO(S).: OLT-25-000201
PROCEEDING COMMENCED UNDER subsection 22(6.2) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant: 2691715 Ontario Limited and Mizrahi Developments
Respondent: City of Hamilton
Subject: Motion for directions regarding complete applications
Description: To seek directions to proceed with the proposed residential development
Property Address: 159 and 163 Sulphur Springs Road
Municipality/UT: Hamilton/Hamilton
OLT Case No: OLT-25-000201
OLT Lead Case No: OLT-25-000201
OLT Case Name: 2691715 Ontario Limited and Mizrahi Developments v. Hamilton (City)
PROCEEDING COMMENCED UNDER section 34(10.5) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Motion for directions regarding complete applications
Description: To seek directions to proceed with the proposed residential development
Property Address: 159 and 163 Sulphur Springs Road
Municipality/UT: Hamilton/Hamilton
OLT Case No: OLT-25-000202
OLT Lead Case No: OLT-25-000201
OLT Case Name: 2691715 Ontario Limited and Mizrahi Developments v. Hamilton (City)
Heard: May 26, 2025 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2691715 Ontario Limited, Mizrahi Developments (“Applicants”) | Roberto D. Aburto, Alice M. Mihailescu |
| City of Hamilton (“City”) | Peter Krysiak |
DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1On March 19, 2025, the Applicants filed a Motion for Directions, pursuant to Sections 22(6.2) and 34(10.5) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”) and Rule 10 of the Rules of Practice and Procedure, seeking a Tribunal determination that their applications for an Official Plan Amendment (“OPA”) and their Zoning By-law Amendment (“ZBA”), both filed with the City on December 19, 2024 (together the “Applications”), are complete as of March 19, 2025.
2The Applications relate to lands municipally known as 159 and 163 Sulphur Springs Road in Ancaster, Ontario. (“Subject Property”). The Applicants intend to develop the approximately 10-hectare Subject Property through the construction of 75 residential units (14 detached dwellings and 61 block townhouses), as well as open spaces, natural heritage features, recreational trails, and private roads.
3The Draft Plan of Condominium application filed concurrently with the Applications is being held in abeyance at the request of the Applicants until such time as the Applications are decided upon.
4The Subject Property is currently within the scope of the Rural Hamilton Official Plan (“RHOP”). However, the OPA would bring the Subject Property into the Urban Hamilton Official Plan (“UHOP”) by expanding City’s urban boundary into the Greenbelt Plan Area and the Niagara Escarpment Plan Area.
5On January 15, 2025, the City informed the Applicants, through the Applicants’ agent, that their Applications had been deemed incomplete, and provided a list of 24 deficiencies.
6As a result of subsequent discussions and negotiations, as well as the Applicants’ Motion for Directions, the City’s Reply to the Applicants’ Motion, and the Applicants’ Response thereto, there remained only four alleged deficiencies still in dispute when the Tribunal heard the Motion, namely:
a. Item 10: Energy and Environmental Assessment Report
b. Item 11: Financial Impact Analysis and Financial Strategy
c. Item 19: School and City Recreation Facility and Outdoor Recreation / Parks Issues Assessment
d. Item 20: Sub-watershed Planning
7It is not in dispute that the appropriate fees have been paid to the City by the Applicants.
POSITION OF PARTIES
8The Applicants submit that the information and material required under sections 22(4) and 22(5) of the Act (for the OPA) and sections 34(10.1) and 34(10.2) of the Act (for the ZBA) have been provided and that requirements purportedly made by the City under section 22(5) of the Act and section 34 (10.2) of the Act are unreasonable. For the Applicants, perfection is not required at this stage in the process as planning applications are inherently an iterative process. However, the Applicants acknowledge that, once the Applications are complete, there is then broad discretion for the City to request further relevant planning information or materials. Moreover, in the spirit of the obiter dictum set out in Re Top of the Tree Developments Inc., 2007 CarswellOnt 7921 (OMB), they concede that it would be in their interest to provide such additional information and material, soon after the Applications are deemed complete, to ensure an efficient and cost-effective review of their Applications.1
9The City takes the contrary position. Although the City notes that they have either waived certain requirements or the Applicants have voluntarily provided additional information and material, the four items in dispute are required and constitute a reasonable request.
10The Motion Record before the Tribunal included six affidavits, which were considered by the Tribunal:
a. An affidavit of Rachelle Larocque, dated March 19, 2025, and marked as Exhibit 1;
b. An affidavit of Rachel Redshaw, dated March 19, 2025, and marked as Exhibit 2;
c. An affidavit of Dave Heyworth, dated May 12, 2025, and marked as Exhibit 3;
d. An affidavit of Meg Oldfield, dated May 9 2025, and marked as Exhibit 4;
e. An affidavit of Rachel Redshaw, dated May 20, 2025, and marked as Exhibit 5; and,
f. An affidavit of Rachelle Larocque, dated May 20, 2025, and marked as Exhibit 6.
ANALYSIS
11Pursuant to section 22(6) of the Act, the City may only refuse to accept or further consider the OPA where the information and material prescribed2 under section 22(4) or required by City Council under section 22(5) has not been provided. The information and material under section 22(4) is prescribed in Schedule 1 of Ontario Regulation 543/06: Official Plans and Plan Amendments which sets out a list of prescribed information and material referred to under section 22(4). The information and material required by City Council under section 22(5) must be contained in its official plan (“OP”).
12Similarly, with respect to the ZBA, the City may only refuse to accept or further consider such an application in which the information and material prescribed under section 34(10.1) or required by City Council under section 34(10.2) has not been provided. The information and material under section 34(10.1) is prescribed in Schedule 1 of the Ontario Regulation 545/06: Zoning By-laws, Holding By-laws and Interim Control By-laws which sets out a list of the prescribed information and material referred to under section 34(10.1) of the Act. The information and material required by City Council under section 34(10.2) must be contained in the City’s OP.
13Section F.1.19 of the UHOP stipulates the requirements for a complete OPA and ZBA. The RHOP provides similar requirements.
14Pursuant to section 22(6.4) of the Act (for the OPA) and section 34(10.5) of the Act (for the ZBA), the Applicants may make a Motion for Direction to the Tribunal to determine whether (a) the information and material has been provided; or (b) whether the information and material required by Council, either pursuant to section 22(5) or section 34(10.2), is reasonable.
15The Parties agree that the information and material that the City claims are necessary for completeness relate to matters required by the City Council under the UHOP and the RHOP and not to matters prescribed by the Province through Regulations.
16The Parties also concur that the four items still in dispute relate to both the OPA and the ZBA.
Item 10 (Energy and Environmental Assessment Report)
Item 11 (Financial Impact Analysis and Financial Strategy)
17The Applicants argue that the substance of information has already been provided in the Applications for Items 10 and 11. Alternatively, they submit that having to reformat and resubmit information in the form requested by the City is unreasonable in the present circumstances.
18The City argues that it should not be expected to go on a “treasure hunt” for requested information, and that it is “not too much to ask” that information be repackaged given the complicated process inherent in the City’s review. The City relies on Re Parc Downsview Park Inc. (Canada), 2010 CarswellOnt 7821 (OMB) in support of the proposition that municipalities have under the Act a level of discretion when an OPA is being processed which allows a municipality to ensure that the quality and detail of information provided will enable the process to move forward in a timely fashion and ultimately allow an informed decision to be made.3
19The Tribunal notes that Re Parc Downsview Park Inc. (Canada) is not binding nor is it persuasive as it is clearly distinguishable. In that case, a planning assessment letter of less than five pages was not satisfactory to support an application seeking approximately 25 individual changes to an official plan. By contrast, the Applicants have provided much more detailed information and documentation with respect to far more focused Applications.
20The Tribunal finds that the substance of the information has already been provided. Therefore, the failure of the Applicants to provide Items 10 and 11 does not render the Applications incomplete. After completeness, it would not be unreasonable for the City to request the information to be reformatted to assist the City in the review of the Applications. Such a request aligns with the iterative process which characterizes land planning applications after these have been deemed complete and prior to City Council’s decision.
Item 19 (School and City Recreation Facility and Outdoor Recreation / Parks Issues Assessment)
21The Applicants argue that Item 19 is an unreasonable requirement as it should appropriately be viewed as a discretionary matter regarding completion of the Applications. It is unclear to the Applicants why this is being requested, as this should be completed by the City (with respect to recreation facilities and parks) and the local school boards (with respect to potential impact on enrollment). The Applicants estimate that it is not credible that an increase of 75 units would have an undue impact. The evidence of Ms. Larocque further brought to light that Mr. Heyworth, the City’s planner, indicated that an exchange of emails with the Hamilton-Wentworth District School Board (“School Board”) would be sufficient to satisfy this requirement. The Applicants submitted an email on May 15, 2025 to the School Board as recommended but had not received a reply.
22For its part, while admitting that this “requirement” is discretionary, the City argues that that the proposed development has a potential impact on community facilities which can relate to a financial impact. For the City, this requirement is reasonable.
23The Tribunal agrees with the position of the Applicants and finds that the City’s request is unreasonable. The failure of the Applicants to provide Item 19 does not render the Applications incomplete. The recreation and school impacts of this 75-unit development can and should be assessed through the normal circulation process after the Applications are deemed complete, as set out in sections 17(15), 22(6.4) and 34(10.7) of the Act. In its Response to the Motion, the City admits that the proposed expansion “is not large” and provides no specific evidence of a potential planning impact related thereto. Moreover, the proposal put forward by Mr. Heyworth is untenable as it carries the risk of placing the Applications in unresolvable limbo should the School Board fail to respond to the Applicants’ emailed request. It may amount to an unlawful delegation of the City’s responsibilities to consider the Applications complete in favour of the School Board.
Item 20 (Sub-watershed Planning)
24The Applicants argue that Item 20 is an unreasonable requirement. Based on the evidence of Ms. Larocque and Mr. Heyworth, the City has waived the requirement of a Sub-watershed plan in favour of a sub-catchment study. The City has received Terms of Reference from the Applicants for that study but has not responded. This would be in addition to the previously provided Functional Servicing Report, the Hydrogeological Investigation, the Erosion Hazard Delineation, and the Fluvial Geomorphological Investigation. Given that there is no major waterway present on the Subject Property, and given the relatively modest scale of development, the Applicants submit that for this site the necessary information can be comprehensively addressed though the Stormwater Management Plan and the Environmental Impact Study.
25The City submits that this request is reasonable based on a memorandum prepared by Dillon Consulting which was approved by City Council on August 16, 2024 and which was referred to by the City as the Draft Framework for Processing and Evaluating Urban Boundary Expansion applications (“Guidelines”). These Guidelines have not been incorporated in an OP. The memorandum was prepared in anticipation of future potential urban boundary expansion to be led by private landowners given recent and proposed legislative changes. It recommends, amongst other things, an approach to Sub-watershed planning for urban boundary expansion applications.
26The Tribunal agrees with the position of the Applicants and finds that the City’s request is unreasonable. The failure of the Applicants to provide Item 19 does not render the Applications incomplete. The City has accepted less than a Sub-watershed plan. In addition, the mere existence of these Guidelines, which are of general application, does not make them reasonable in all circumstances without due regard to the facts of these specific Applications. Moreover, the Tribunal notes that Mr. Heyworth only makes a passing reference to the Guidelines in his evidence and does not base his opinion on these as Counsel for the City argues.
ORDER
27UPON MOTION to the Tribunal by 2691715 Ontario Limited and Mizrahi Development for their Application for an Official Plan Amendment and their Application for a Zoning By-law Amendment, both filed with the City of Hamilton on December 19, 2024, being made pursuant to Section 22(6.2) and Section 34(10.5) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”), and after hearing the Motion, THE TRIBUNAL ORDERS that the Motion for Direction is granted and the Applications are complete as of May 26, 2025.
28The Tribunal directs the Registrar to advise the clerk of the City of Hamilton of this Decision pursuant to sections 22(6.4) and 34(10.7) of the Act.
“Jean-Pierre Blais”
JEAN-PIERRE BLAIS 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.