Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
January 31, 2025
CASE NO(S).:
OLT-23-000937
OLT-23-000906
OLT-24-000393
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)
PROCEEDING COMMENCED UNDER subsection 34(19) 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:
City of Niagara Falls / Region of 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 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
2610823 Ontario Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a mixed-use community consisting of 1,344 dwelling units, including 679 detached dwellings, 155 on-street townhomes and 510 multi-residential dwelling units
Reference Number:
AM-2021-16
Property Address:
8970 & 9015 Stanley Avenue
Municipality/UT:
City of Niagara Falls / Region of Niagara
OLT Case No.:
OLT-24-000393
OLT Lead Case No.:
OLT-24-000393
OLT Case Name:
2610823 Ontario Inc. v. Niagara Falls (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
2610823 Ontario Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a mixed-use community consisting of 1,344 dwelling units, including 679 detached dwellings, 155 on-street townhomes and 510 multi-residential dwelling units
Reference Number:
AM-2022-015
Property Address:
8970 & 9015 Stanley Avenue
Municipality/UT:
City of Niagara Falls / Region of Niagara
OLT Case No.:
OLT-24-000394
OLT Lead Case No.:
OLT-24-000393
BEFORE:
KURTIS SMITH
Friday, the 31st
MEMBER
day of January, 2025
THE TRIBUNAL ORDERS that further to the Decision issued on August 7, 2024, the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on April 7, 2025. The Tribunal has set aside 10 days for the hearing.
“Euken Lui”
EUKEN LUI
ACTING REGISTRAR
Ontario Land Tribunal
Website: 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”
PROCEDURAL ORDER
The Tribunal orders that:
- 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
- A hearing respecting matters under the Planning Act is scheduled to proceed by video as follows:
Monday, April 7th, 2025 at 10 a.m.
GoTo Meeting: https://meet.goto.com/370987861
Access code: 370-987-861
Audio-only line: (Toll Free) 1-888-455-1389 or +1 (647) 497-9391
Access code: 370-987-861
- The hearing shall proceed as follows:
Site Specific issues related to 9034 McLeod,
(Cytec, 800460 Ontario Inc, City, Region)
The parties’ initial estimation for the length of the hearing is two (2) weeks. April 7th to April 18th, 2025.
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 summarized in Attachment “1” to this Order.
The parties and participants in the hearing as identified at the Case Management Conference are listed in Attachment “2” to this Order.
The Issues are set out in the Issues List attached as Attachment “3” to this Order. 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 “4” hereto. 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
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 November 1st, 2024, and in accordance with paragraph 24 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae, the Acknowledgment of Expert’s Duty form, and the area of expertise in which the witness is prepared to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other parties on or before November 15th, 2024.
Expert witnesses in the same field shall have a meeting on or before January 15th, 2025 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties may prepare and file a Statement of Agreed Facts and Issues with the OLT case coordinator on or before January 31st, 2025.
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 and the curriculum vitae and Acknowledgment of Expert Duty form previously provided in paragraph 11. Copies of this must be provided as in paragraph 15 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that they intend to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same as the delivery of expert witness statements, as in paragraph 15.
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 15 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 15 below.
On or before February 14th, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 24 below or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.
On or before February 14th, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 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 March 14th, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before March 7th, 2025, the parties may provide to all other parties and the OLT case coordinator a written response to any written evidence in accordance with paragraph 24 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before March 14th, 2025.
On or before March 20th, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
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 March 21st, 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.
All filings shall be submitted electronically and in hard copy. 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 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.
ATTACHMENT “1”
SUMMARY OF KEY DATES
Date
Hearing Event
November 1st, 2024
Exchange of List of Witnesses and the order in which they will be called – para. 11
November 15th, 2024
Notice of Motion (if required) to challenge witness(es) – para. 11
January 15th, 2025
Expert Witness Meeting – para. 2
January 31st, 2025
Filing of Statement(s) of Agreed Facts and Issues – para. 11
February 14th, 2025
Exchange of Witness & Participant Statements – paras. 14 and 15
March 14th, 2025
Confirmation to Tribunal if all reserved hearing dates are still required – para. 6
March 7th, 2025
Exchange of Reply Evidence/Statements – para. 17
March 14th, 2025
Filing of Joint Document Book – para. 18
March 20th, 2025
Exchange of Visual Evidence – para. 19
March 17th, 2025
Notification to Tribunal and Parties if witness not to provide oral evidence – para. 21
April 11th, 2025
Filing of Hearing Plan – para. 3
April 7th, 2025
Contested Hearing (if required) – para. 2
ATTACHMENT “2”
PARTIES AND PARTICIPANTS
PARTIES
CITY OF NIAGARA FALLS
KAGAN SHASTRI DeMELO WINER PARK LLP
188 Avenue Road
Toronto, ON
M5R 2J1
Counsel : Paul DeMelo
Email : pdemelo@ksllp.ca
REGIONAL MUNICIPALITY OF NIAGARA
AIRD & BERLIS LLP
Counsel : Alexander J Suriano
Email : asuriano@airdberlis.com
CYTEC CANADA INC.
THOMSON ROGERS LAWYERS
3100-390 Bay Street
Toronto, ON
M5H 1W2
Counsel : Jeff Wilker / Al Burton
Email: jwilker@trlaw.com aburton@trlaw.com
800460 ONTARIO LIMITED
SULLIVAN MAHONEY
Counsel: Sarah Premi / Thomas Richardson
Email : sjpremi@sullivan-mahoney.com tarichardson@sullivan-mahoney.com
2610832 ONTARIO INC.
TMA LAW
25 Main Street West, Suite 2010
Hamilton, ON
L8P 1H1
Counsel : Nancy Smith
Email : nsmith@tmalaw.ca
PARTICIPANTS (OLT-23-000937)
Mark Fiorentino
2601052 Ontario Inc.
7473 Reixinger Road
Tel. 289-257-0464
Email : CZARBO1@hotmail.com
ATTACHMENT “3”
ISSUES LIST
- Do the OPA 147 policies and mapping and Zoning By-law 2023-78 as appealed by Cytec (“collectively the Cytec appealed matters”) have regard for matters of provincial interest identified in section 2 of the Planning Act, including but not limited to sections (a), (h), (k), (l), (m), (n), (o) and (p)?
- Does the Tribunal have jurisdiction and authority to approve OPA 147 policies and mapping as appealed by Cytec given the approved Region of Niagara Official Plan (“RNOP”), including Minister modification 24?
- Does Zoning By-law 2023-078 appropriately implement s. 36 of the Planning Act?
Provincial Planning Statement 2024 (“PPS 2024”)
- Are the Cytec appealed matters consistent with the PPS 2024, including but not limited to policies 2.8.1., 2.8.2, 3.5, 3.6.8, 4.1, 4.2, 6.1.4 and 6.1.5?
Region of Niagara Official Plan (“RNOP”)
- Do the Cytec appealed matters conform with the RNOP, including, but not limited to, policies 4.2 including 4.2.4.2, 4.5, 5.2, 7.12.2.5, and modification 24?
City of Niagara Falls Official Plan (“City OP”)
Do the Cytec appealed matters conform with the City OP, including, but not limited to its employment policies and stormwater management policies?
What weight should be given to the approved policy framework in the existing City OP dealing with Cytec, including the Grand Niagara Secondary Plan, Garner South Secondary Plan, Heartland Forest OPA, and the prior Grand Niagara OPA?
General Land Use Planning Issues
Do the Cytec appealed matters protect the Cytec facility from incompatible sensitive land uses, including residential land uses?
Do the Cytec appealed matters appropriately minimize the risk to public health and safety?
Is the 2 km radius from the Cytec facility open to adjudication in light of the Minister’s modification 24 in the RNOP?
If so, what are the appropriate inputs, guidelines and risk assessment analysis under which to consider and determine the separation distance?
Are Provincial D-6 Guidelines relevant to the risk assessment?
What is the appropriate assessment of the risk factor of phosphine storage and manufacturing in the event of a phosphine release?
Do the Cytec appealed matters meet the employment land conversion tests?
Has it been demonstrated that the Cytec appealed matters will not impact on the viability of the existing employment designations including the Cytec facility?
Are the approval of Cytec appealed matters premature in the absence of a risk assessment to determine the suitability of residential uses on the 9304 McLeod lands (“the Beechwood lands”)? Are the Region’s modifications to OPA 147 as appealed by Cytec for a future risk assessment appropriate and technically sound?
Do the Cytec appealed matters impose appropriate height and density restrictions on residential uses on part of the Beechwood lands that are situated beyond the 2km radius from Cytec facility? Should the Cytec appealed matters include a notice clause?
Do the Cytec appealed matters provide adequate or appropriate protections to Thompson Creek in order to maintain the existing conditions of Thompson Creek? If not, should residential uses be permitted on the Beechwood lands that depend on stormwater drainage into the Thompson Creek, without the consent of the owner (Cytec) of Thompson Creek? Should OPA 147 policies and mapping as appealed by Cytec include additional policies for the protection of Thompson Creek?
Do the Cytec appealed matters represent good planning?
Are the Cytec appealed matters in the public interest?
Procedural Issues
In light of the federal/provincial legislation governing phosphine, phosphine derivatives and phosphorus, its manufacture and storage, does Cytec have the authority to disclose information related to the manufacture and storage of phosphine? Further, does the Tribunal have the authority to order disclosure of information related to the manufacture and storage of phosphine and is such disclosure warranted? If so, should the Tribunal issue a confidentiality/non disclosure order regarding any production of any such Cytec information?
Should the Cytec appealed matters be heard together?
ATTACHMENT “4”
ORDER OF EVIDENCE
SITE SPECIFIC ISSUES RELATED TO 9034 MCLEOD,
(CYTEC, 800460 ONTARIO INC, CITY, REGION)
CYTEC CANADA INC.
REGIONAL MUNICIPALITY OF NIAGARA
CITY OF NIAGARA FALLS
800460 ONTARIO LIMITED
2610832 ONTARIO INC.
CYTEC CANADA INC. (REPLY)
ATTACHMENT “5”
DEFINITIONS
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 authorization 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.