Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 04, 2025
CASE NO(S).: OLT-25-000069
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant and Appellant: 1991803 Ontario Inc.
Subject: Application to amend the Zoning By-Law – Refusal or neglect to make a decision
Description: To permit the development of two 20-storey towers, with step-backs, atop a four-storey podium
Reference Number: ZAC-24-020
Property Address: 1494 Upper Wellington Street
Municipality/UT: Hamilton/Hamilton
OLT Case No.: OLT-25-000069
OLT Lead Case No.: OLT-25-000069
OLT Case Name: 1991803 Ontario Inc. v Hamilton (City)
Heard: June 11, 2025, by Video Conference
APPEARANCES:
Parties
Counsel
1991803 Ontario Inc. (“Appellant”)
R. Cheeseman
S. Fleming
City of Hamilton (“City”)
R. McVean
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON ON june 11, 2025, AND ORDER OF THE TRIBUNAL
1This matter involves an appeal by the Appellant due to the failure of the City to make a decision regarding the Appellant’s application for an amendment to permit the development of two 20-storey towers at the property municipally known as 1494 Upper Wellington Street in the City (“Subject Property”).
2A Case Management Conference (“CMC”) was held on Wednesday June 11, 2025. The affidavit of service of the Notice of CMC of Darlene Hornsby dated April 23, 2025, was made Exhibit A to the CMC hearing.
3The following persons sought Participant status by way of written request prior to the CMC: Helen Sardo (who lives adjacent to the Subject Property); Karen and Steve Carlino; Janet Bard and Jim McCallum (who also both live adjacent to the Subject Property); Italo Di Pietro (who resides in the block directly behind the Subject Property); Peter Edmonson and Marlene Horning; Rick Pinder (who lives directly across from the Subject Property); Sreekumar Paliath; Stephen Anastasi; and Wanda Zan (who lives in close proximity to the Subject Property). However, only three requestors; Helen Sardo, Karen Carlino and Janet Bard appeared at the CMC. In addition, Yong Cui also appeared and sought Participant status although he had not filed a prior written request. He also lives very close to the Subject Property. Subsequent to the CMC, Wanda Zan and Peter Edmonson confirmed in writing their interest in being Participants. An additional requestor, Judith Lee, also sought Participant status and there were no objections from the Parties.
4Hearing no objections from either Party and taking into account how closely the persons noted above in paragraph [3] live in relation to the Subject Property, the Tribunal grants Participant status to the following persons: Helen Sardo, Karen Carlino, Janet Bard, Peter Edmonson, Wanda Zan, Yong Cui and Judith Lee.
5There were no further requests for Party status.
6The Parties advised the Tribunal that they were seeking a 20-day hearing which the Tribunal has scheduled as follows, to commence on: Monday April 13, 2026, to Friday May 8, 2026, at 10 a.m. by video hearing.
GoTo Meeting: https://meet.goto.com/348282861
Access Code: 348-282-861
7Parties and Participants are asked to log in to the events at least 15 minutes before it begins to test their video and audio connections as appropriate:
8Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1 888 299 1889. The Access Code is as indicated above.
9Parties and/or Participants 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html
10Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line.
11Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.
12The Parties provided a draft Procedural Order which was finalized subsequent to the CMC to account for the now-scheduled hearing event.
13As a final note, the Parties remain interested in arranging for a mediation facilitated by the Tribunal’s mediation group – and are encouraged to schedule mediation at the earliest practicable opportunity.
ORDER
14THE TRIBUNAL ORDERS THAT:
(a) The Procedural Order appended as Attachment 1 to this Decision shall govern the future conduct of this proceeding; and
(b) This Vice Chair shall remain available to assist with the ongoing case management of this matter, subject to the Tribunal’s calendar.
“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.
ATTACHMENT 1
CASE NO(S).: OLT-25-000069
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant and Appellant: 1991803 Ontario Inc.
Subject: Application to amend the Zoning By-Law – Refusal or neglect to make a decision
Description: To permit the development of two 20-storey towers, with step-backs, atop a four-storey podium
Reference Number: ZAC-24-020
Property Address: 1494 Upper Wellington Street
Municipality/UT: Hamilton/Hamilton
OLT Case No.: OLT-25-000069
OLT Lead Case No.: OLT-25-000069
OLT Case Name: 1991803 Ontario Inc. v Hamilton (City)
Procedural Order
- 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 Monday, April 13, 2026, at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is 20 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
If the Applicant intends to seek approval of a revised proposal at the hearing, the Applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports which it intends to rely upon, to all the Parties on or before Friday, November 28, 2025.The Applicant acknowledges that any revisions to the proposal after that date without the consent of the parties or which do not seek to scope or resolve concerns expressed in the Witness Statement(s) filed by another party, may be grounds for a request to adjourn 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 Friday, December 12, 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.
Expert witnesses in the same field shall have a meeting on or before Friday, January 9, 2026 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, January 23, 2026.
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.
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.
On or before Friday, February 6, 2026, 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.
On or before Friday, February 6, 2026, 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.
On or before Monday, March 9, 2026: (a) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required; and (b) a party seeking to limit or exclude any written or oral evidence must deliver a written motion under Rule 10 seeking such an Order
On or before Thursday, April 2, 2026, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, February 20, 2026.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Tuesday, April 7, 2026.
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 Tuesday, April 7, 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 unless otherwise directed. 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.
Date:
TRIBUNAL REGISTRAR
Summary of Procedural Dates
Date
Event
Friday, December 12, 2025
Witness List
Friday, January 9, 2026
Final day for expert witness meeting
Friday, January 23, 2026
Statement of Agreed Facts and Issues filed
Friday, February 6, 2026
Expert witness and witness statements due
Friday, February 6, 2026
Written participant statement due
Friday, February 20, 2026
Response to written evidence due
Monday, March 9, 2026
Hearing date confirmation; motion to limit or exclude written or oral evidence
Thursday, April 2, 2026
Visual evidence due
Tuesday, April 7, 2026
Joint Document Book due
Tuesday, April 7, 2026
Preliminary hearing plan due
Monday, April 13, 2025
Hearing
Attachment to Sample Procedural Order
Meaning of terms used in the Procedural Order:
A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
- direct examination by the party presenting the witness;
- direct examination by any party of similar interest, in the manner determined by the Tribunal;
- cross-examination by parties of opposite interest;
- re-examination by the party presenting the witness; or
- another order of examination mutually agreed among the parties or directed by the Tribunal.
ATTACHMENT 1
PARTIES
- Hamilton (City)
City of Hamilton
50 Main Street East, 5th Floor
Hamilton, ON L8N 1E9
Rachel McVean, Solicitor
- 1991803 Ontario Inc.
211-277 Lakeshore Road E
Oakville, ON L6J 6J3
Russell D. Cheeseman
Tel: 416-955-9529
Stephanie Fleming
Tel: 417-955-9533 ext. 106
PARTICIPANTS
- Helen Sardo
- Janet Bard
- Karen Carlino
- Peter Edmonson
- Wanda Zan
ATTACHMENT 2
ISSUES LIST
Development Planning and Urban Design
Is the proposed development consistent with Policies 2.1.6, 2.2, 2.4, 2.9, 3.4 and 3.6 of the Provincial Planning Statement (2024) (“PPS”) with regards to developing housing within the settlement area, mitigation measures to address climate change, promoting energy efficiency, Sewage, Water and Stormwater requirements, and potential impacts to the existing John C. Munro Hamilton International Airport?
Does the proposed development comply with Urban Hamilton Official Plan (“UHOP”) Policies including but not limited to Policies B.2.4.2.2, B.2.4.1.4, and B.3.3.3.5, C.2.11.1 and C.5.6., with respect to compatibility with the surrounding neighbourhood, location of the towers, transition in height and density to adjacent lands, breakdown of units, vehicle access, amenity space, streetscape, impacts to the transportation network, infrastructure capacity, sustainable design principles, tree preservation, and natural heritage?
Does the proposed development comply with the City’s Urban Design Policies including but limited to Policies B.3.3.1.8 and B.3.3.2.3 to B.3.3.2.10, with respect to new built form including but not limited to compatibility and enhancement of the existing character of the neighbourhood, animating the street edge, transition between public and private spaces?
Does the proposed development comply with the UHOP policies, including but not limited to Policies B.3.3.3.2, B.3.3.3, B.3.3.4, E.4.6.24 and E.3.6.8 f), with respect to shadow and wind impacts, privacy of adjacent residential uses, existing and planned street proportions, the existing built form of adjacent neighbourhoods, setbacks and building elevations in accordance?
Does the proposed development comply with UHOP policies B.2.4 and E.3.2.4 with respect residential intensification and the maintaining the existing character of the surrounding neighbourhood?
Does the proposed development comply with UHOP policy E.3.3.2 with respect to height, massing, arrangement of buildings and compatibility with the surrounding area?
Does the proposed development comply with UHOP policies E.3.6.8., in particular criteria b) and c), as they relate to appropriate separation distance or suitable intervening land use to the adjacent low density residential uses and the preservation of natural heritage system features?
Does the proposed development meet the following criteria listed in Policy E.3.6.8 d):
- provide adequate landscaping, amenity features and on-site parking with associated buffering;
- compatible with the existing and future uses in the surrounding area in terms of height, massing and arrangement of buildings and structures;
- provide adequate access to minimize conflicts between traffic and pedestrians both on-site and on surrounding streets;
- provide a mix of unit sizes to accommodate a range of household sizes and income levels; and,
- incorporate sustainable building and design principles.
Does the proposed development contribute to an active public realm by minimizing the view of surface parking areas, parking structures, utility and service structures and expanses of blank walls as per policy E.3.6.8 e)?
Does the proposal have any negative impacts on the public view corridor as per policy E.3.6.8 g)?
Does the proposed development meet the design policies for residential greenfield design related to minimizing changes to existing topography and preserving existing trees and natural heritage features as per policy E.3.7.5?
Are the proposed site specific performance standards compatible and in keeping with the intent of the Zoning By-law?
Does the proposed Zoning By-law Amendment represent good land use planning and is it in the public interest?
Does the proposed development create pedestrian oriented places that are safe, accessible and easy to navigate for people of all ages as per UHOP policy B.3.3.1.3?
Does the proposed development ensure new development is compatible with and enhances the character of the existing environment and locale as per UHOP policy B.3.3.1.5?
Does the proposed development create a place that is adaptable and flexible to accommodate future demographic and environmental changes, including the impacts of a changing climate as per UHOP policy B.3.3.1.6?
Does the proposed development respect natural process and features and contribute to environmental sustainability as per UHOP policy B.3.3.1.7?
Does the proposed development foster a sense of community pride and identity by respecting existing character, development patterns, built form and landscapes, and promote quality design consistent with the surrounding environment, and conserving, maintaining and enhancing the natural features of the community, and demonstrate sensitivity to the community identity and character to place in both the public and private realm; and contribute to the character and ambiance of the community through appropriate streetscape and amenity designs as required in UHOP policy B.3.3.2.3 (a), b), e), f), and g))?
Does the proposed development create quality spaces that visually connect the public and private realms, and organize the spaces in logical arrangement of new buildings, streets, structures and landscaping, and contribute to the overall appearance and cohesiveness of the urban fabric, and streets with continuous animated street edge, incorporated transitional areas between public and private spaces using landscaping, planters, porches and canopies and or stairs, and creating public spaces that are human-scaled and comfortable, and reinforcing and emphasizing important public vistas and view corridors as required in UHOP policy B.3.3.2.4 (a), b), e), f), g), h))?
Does the development proposal enhance the character of the existing environment by complimenting and animating the surrounding building design and placement, respecting the existing natural heritage features by adapting and incorporating existing characteristics, complimenting the existing massing patterns, rhythm and character of the surrounding context, and encouraging harmonious and compatible infill by minimizing the impacts of shadowing to adjacent properties and the public realm as required by UHOP policy B.3.3.2.6(a), b), d), e)?
Does the proposed development promote the reduction of greenhouse gas emissions, the ability to adapt to the impacts of a changing climate and protect and enhance the natural environment by integrating, protecting and enhancing environmental features and landscapes, and encourage on-site storm water management through Low-Impact-Design (LID) technology and green infrastructure as required by UHOP policy B.3.3.2.8(b), (c)?
Does the proposed development play a role in community health by creating high-quality, safe streetscapes, parks and open spaces; and reduce air, noise and water pollution by facilitating and promoting the use of active transportation through building and site design, provide adequate green space, landscaped buffering, and using appropriate paving materials as required by UHOP policy B.3.3.2.9 (a), d)i-iii)?
Does the proposed development demonstrate how it is designed to minimize the impact on neighbouring buildings and public spaces by creating transitions in scale, ensuring privacy and sunlight are provided to adjacent properties, and minimizing the impacts of shadow and wind as required by UHOP policy B.3.3.3.2(a), b), c))?
Does the proposed development demonstrate it is massed to respect existing and planned street proportions as required in UHOP policy B.3.3.3.3?
Does the proposed development illustrate how well it defines the street through consistent setbacks and building elevations as reference in UHOP policy B.3.3.3.4?
Does the proposed development create comfortable pedestrian environments by including a quality landscape edge, and using design techniques such as building step-backs to maximize sunlight to pedestrian areas as required by UHOP policy B.3.3.3.5(c), e))?
Does the proposed development demonstrate quality design with respect to the surface parking lots and the inclusions of landscaped islands to provide shade and visual relief from hard surfaces, as well as including the use of permeable paving systems and other low-impact development practices as referenced by UHOP policies B.3.3.10.7 and B.3.3.10.8?
Natural Heritage
- Has adequate consideration been given to the protection of trees in conformity with Urban Hamilton Official Plan policy C.2.11.1?
Transportation
Is the development proposal consistent with the PPS in terms of policies 3.2 for transportation systems?
Is the development proposal consistent with the PPS in terms of policies 3.3 for transportation and infrastructure corridors?
Does the proposal comply with the UHOP to assess the impact of proposed developments on current travel patterns and/or future transportation requirements to ensure movement of people and goods, including but not limited to Policy C.4.5.12?
Does the proposal comply with the UHOP to include provisions for sufficient parking, loading, maneuvering and off-street parking, including but not limited to Policy C.4.5.19?
Cultural Heritage
- Does the proposal demonstrate compliance with policies B.3.4.4 and B.3.4.4.6 in regards to the Archeological potential of the subject site?
Development Engineering
Does the proposed development have appropriate regard for criteria set in Section 3.1. c) of the PPS?
Does adequate infrastructure capacity exist to support the proposed development as per UHOP Policies C.5.3.13 and C.5.3.17 ?
Does the Functional Servicing Report demonstrate that the existing municipal system has adequate capacity to support the proposed intensification?
ATTACHMENT 3
ORDER OF EVIDENCE
1991803 Ontario Inc.
City of Hamilton
1991803 Ontario Inc., in reply