Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 26, 2025

CASE NO(S).: OLT-24-000748

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

Appellant: Upper West Side Landowners Group Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: Applications for the purposes of Urban Boundary Expansion Reference Number: UHOPA-20-018 Property Address: Various Addresses: (9285, 9445, 9511, 9625 and 9751 Twenty Road West and 555 Glancaster Road, Glanbrook (Ward 11)) Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-24-000748 OLT Lead Case No: OLT-24-000748 OLT Case Name: Upper West Side Landowners Group Inc. v Hamilton (city)

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

Appellant: Upper West Side Landowners Group Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Reference Number: UHOPA-20-019 Property Address: Various Addresses: (9285, 9445, 9511, 9625 and 9751 Twenty Road West and 555 Glancaster Road, Glanbrook (Ward 11)) Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-24-000749 OLT Lead Case No: OLT-24-000748

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

Appellant: Upper West Side Landowners Group Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Reference Number: UHOPA-20-020 Property Address: Various Addresses: (9285, 9445, 9511, 9625 and 9751 Twenty Road West and 555 Glancaster Road, Glanbrook (Ward 11)) Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-24-000750 OLT Lead Case No: OLT-24-000748

Heard: August 18, 2025 by Video Hearing

APPEARANCES:

Parties Upper West Side Landowners Group Inc. City of Hamilton

Counsel Ira Kagan Sarah Kagan Joel Farber Kristie Stitt (in absentia) Matthew Rutledge (in absentia) David Germain Jaikaran Goraya Patrick MacDonald (in absentia)

DECISION DELIVERED BY C.I. MOLINARI AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is a Motion for Disclosure (“Motion”) in relation to appeals brought by Upper West Side Landowners Group Inc. (“UWSLG”) pursuant to s. 22(7) of the Planning Act (“Act”), against the City of Hamilton (“City”) for its failure to make a decision within the timeframes prescribed by the Act on Official Plan Amendment applications (“Applications”) respecting the properties municipally known as 9285, 9445, 9511, 9625 and 9751 Twenty Road West and 555 Glancaster Road (“Properties”).

BACKGROUND

2The Applications were filed on August 12, 2020 to implement an urban boundary expansion (“UBE”) to include the portions of the lands bound by Twenty Road West, Upper James Street, Dickenson Road, and Glancaster Road that are currently within the rural area, yet surrounded by lands within the urban boundary.

3The Applications propose to modify policies in the Urban Hamilton Official Plan (“UHOP”), the Rural Hamilton Official Plan and the Airport Employment Growth District Secondary Plan to allow for a mixed-use development with a significant residential component. Proposed amendments to the UHOP include text changes to policies related to airport noise from the John C. Munro Hamilton International Airport ("Airport").

4The Applications were deemed complete by the City on September 15, 2020. On or about June 27, 2024, UWSLG appealed the Applications.

5The Procedural Order (“PO”), with an extensive list of issues (“IL”), was approved and attached to the Tribunal Decision issued on February 11, 2025, with the following notable exchange dates:

EVENT	DATE
Parties to exchange their List of Witnesses	Friday August 15, 2025
Deadline for Meeting of Like Experts	Friday November 14, 2025
Deadline to file Statement of Agreed Facts and Issues	Friday December 12, 2025
Parties to exchange their Witness and Expert Witness Statements	Tuesday January 13, 2026

6UWSLG seeks the disclosure of certain information and material identified in paragraph [10] below in relation to issues 7, 8, 16, 17, and 46-63 on the IL pertaining to water and wastewater servicing (“Servicing Issues”), and issues 12, 27, 28, 32 and 33 pertaining to airport noise and land use compatibility respecting the Airport (“Airport Issues”).

7The City’s hydraulic model for water and wastewater consists of two separate and distinct models: the hydraulic water model (“Water Model”) and the hydraulic wastewater model (“Wastewater Model”) (together “Models”).

8With an eight-week merit hearing scheduled to commence on Monday, April 13, 2026, UWSLG submitted that they are unable to properly prepare for the hearing without the requested disclosure by the City in a timely manner, given the exchange dates in the PO as listed in paragraph [5]. It contended that the items listed in paragraph [10] were requested from, but had not yet been provided by, the City, resulting in the need for the motion hearing.

THE MOTION

Moving Party

9The materials before the Tribunal from UWSLG include:

1. Motion Record (Exhibit 4), containing the Notice of Motion, and Affidavits of:
   • John Corbett, land use planner, affirmed on July 30, 2025;
   • Colin Novak, acoustical engineer, affirmed on July 30, 2025; and
   • Rob Merwin, servicing engineer, affirmed on July 30, 2025;
2. Reply Motion Record (Exhibit 7), containing the Reply to Response to Motion, and an Affidavit of Rob Merwin, affirmed August 14, 2025; and
3. Affidavits of Service for the service of the Motion material on August 1, 2025 (Exhibit 1) and the service of the Reply Motion material on August 14, 2025 (Exhibit 2).

10UWSLG brought the Notice of Motion seeking disclosure of the Models, as in item 1 below, the information in items 2 through 5 below (“Airport Information”), as well as items 6 through 8 below:

Regarding Servicing Issues:

1. an Order directing the City to deliver to UWSLG its Models;

Regarding Airport Issues: 2. an Order directing the City to deliver to UWSLG the fully populated Transport Canada Noise Exposure Forecast Computer Program (“NEFCalc”) used to delineate the Noise Exposure Forecast ("NEF") and Noise Exposure Projection ("NEP") contour lines for the Airport (“Contour Lines”) identified in the 2023-2043 Airport Master Plan ("2023 AMP") undertaken by the operator of the airport (“TradePort”); 3. an Order directing the City to deliver to UWSLG the shapefiles of the Contour Lines identified in the 2023 AMP (“Shapefiles”); 4. an Order directing the City to provide to UWSLG certain listed information and/or data with respect to the Contour Lines identified in the 2023 AMP (“2023 AMP Data”); 5. an Order directing the City to provide to UWSLG certain additional listed information about the Airport, to the extent that the information is not provided in response to paragraph 4 above;

General: 6. an Order that the Models and Airport Information be provided no later than 20 days after the Tribunal issues its Order; 7. an Order granting the costs of the Motion to UWSLG; and 8. such further and other relief as Counsel for UWSLG may request and the Tribunal may permit.

Responding Party

11The materials before the Tribunal from the City include:

1. Responding Motion Record (Exhibit 5), containing the Notice of Response to Motion, and Affidavits of:
   • Raymond Kessler, City’s Chief Corporate Real Estate Officer, sworn on August 8, 2025; and
   • Gabriela Caterini, servicing engineer, sworn on August 8, 2025; and
2. Affidavit of Service for the service of the Response Motion material on August 8, 2025 (Exhibit 3).

12In its Responding Motion Record, the City advised that it is prepared to consent to the release of the Water Model, subject to UWSLG executing the documents attached as Exhibits C and D to the Affidavit of Ms. Caterini, being an Undertaking and Acknowledgement form (“Undertaking Form”) and a Water Model Acknowledgement form (“Water Model Form”) (together “Forms”).

13In its Responding Motion Record, the City also requested:

1. an Order dismissing:
   • the Motion with respect to the relief sought in items 2 through 7 of the Notice of Motion;
   • the Motion with respect to the relief sought in item 1 of the Notice of Motion, as it pertains to the Wastewater Model;
2. that, in the alternative, should the Tribunal see fit to grant the relief sought by UWSLG with respect to the Wastewater Model, the City requests that the Tribunal order that any such disclosure be:
   • limited to the relevant catchment areas; and
   • subject to UWSLG executing the Forms, with such changes as may be required to make reference to the Wastewater Model; and
3. such further and other relief as the City may request and the Tribunal may permit.

Party Status Request

14The Elfrida Community Builders Group Inc. (“Elfrida”), a Participant to the proceedings, also filed a Responding Motion Record (Exhibit 6) requesting Party status in the motion hearing, and disclosure of the Wastewater Model to it, if ordered to be disclosed to UWSLG, for use in an unrelated appeal (“Elfrida Appeal”). Neither UWSLG nor the City were opposed to the Party status request.

15A request for Party status from a Participant on a time-limited and event-limited basis is highly unusual, and the Tribunal denied the request for the following reasons:

1. the Tribunal previously denied Elfrida Party status at the first CMC;
2. Elfrida filed a Request for Review of the denied Party status request, which was dismissed by the Chair of the Tribunal;
3. the Tribunal’s Rules of Practice and Procedure (“Rules”) does not provide for a Participant to file motion material or for a Participant to benefit from an order for disclosure;
4. the purpose of Elfrida’s request is related to the Elfrida Appeal which is wholly unrelated and extraneous to the current proceedings; and
5. there would be no benefit to the current proceedings to grant disclosure to Elfrida, and it would not assist the Tribunal in effectively and completely adjudicating on the issues at the merit hearing.

16The Tribunal did not allow for submissions by Counsel for Elfrida at the motion hearing given that it is a Participant and not a Party.

17However, based on Rule 1.6 of the Rules, which allows for the Tribunal to make exceptions to the Rules, the Tribunal did provide for limited consideration of Elfrida’s request for disclosure as a Participant, if ordered to be disclosed to UWSLG, and for Elfrida to make submissions through a Participant Statement. Counter to the assertion in the Participant Statement received from Elfrida after the hearing, the Tribunal did not hold that, “should disclosure of the Wastewater Model be ordered to the UWSLG, it would extend the same disclosure to the Elfrida Group (as a pariticpant [sic]) in its written decision”. Rather, the Tribunal advised that disclosure would only be considered after the motion hearing, and through the written decision.

18The City advised that, if the Tribunal were to order disclosure to UWSLG of the Wastewater Model limited to the relevant catchment area, and order disclosure to Elfrida, the City would disclose to Elfrida the catchment area of the Wastewater Model relevant to the Elfrida Appeal.

Grounds for the Motion

19UWSLG’s grounds for the Motion as it applies to servicing include the following, as summarized:

1. Over 20 issues on the IL raised by the City are related to servicing, and question, among other things, whether there is servicing capacity for the UBE.
2. Policy 2.3.2.1(b) of the Provincial Planning Statement, 2024 ("PPS") requires the Tribunal to consider if there is sufficient capacity in the existing or planned infrastructure and public service facilities for UBEs.
3. The Models are relevant to the Servicing Issues and necessary so that Mr. Merwin can undertake his own analysis of the City’s servicing capacity and provide an opinion based on the same data that the City uses and to test the City's analysis of the servicing capacity.
4. The Models are available to the City and presumably being relied on by the City respecting the servicing issues on the IL. UWSLG will be highly prejudiced if they are not provided with the Models, which would interfere with the orderly progress of the merit hearing and the Tribunal would not receive the best evidence available.

20UWSLG’s grounds for the Motion as it applies to airport noise include the following, as summarized:

1. Five of the issues raised by the City deal with airport noise and land use compatibility respecting the Airport.
2. NEFs and NEPs are used to assess and manage airport noise impacts on surrounding communities. Several data inputs and assumptions are put into NEFCalc to produce the Contour Lines around an airport.
3. The Contour Lines identify what areas are above the 30 NEF/NEP Contour Line. The City's issues ask, among other things, what the appropriate Contour Lines are for the Airport.
4. Policies 3.4.2(a) and 2(b) of the PPS prohibit new residential development in areas above the 30 NEF/NEP Contour Line, unless it can be demonstrated that there will be no negative impacts on the long-term function of the Airport.
5. It is unknown what data and information were used as inputs in NEFCalc. The additional information referred to in paragraph [10], item 5, is essential to properly utilize the software to forecast reliable future Contour Lines and is therefore relevant to the Airport Issues.

Water Model

21The City advised that it was no longer opposed to the release of the Water Model, subject to UWSLG’s engineering witness signing the Forms, as the Water Model is calibrated to a finer level of granularity than the Wastewater Model and is relatively current and up to date.

Moving Party Submissions

22UWSLG advised that it was not opposed to Mr. Merwin signing the Water Model Form.

23With respect to the Undertaking Form, Counsel for UWSLG stated that he had advised Mr. Merwin against signing it, since paragraph 3 of the form requires Mr. Merwin to personally indemnify the City “from any and all actions, causes of action, claims and demands arising from: (a) the Recipient’s use of the data and information; and, (b) any use by a person who obtained the data and information through the Recipient”.

24Regarding paragraph 4 of the Undertaking Form, requiring Mr. Merwin to agree to “not transfer the data and information to any third party”, UWSLG disputed the interpretation by the City that ‘data and information’ refers only to the Model itself. It proffered that ‘data and information’ could refer to input data or information (such as the number of homes served by a pumping station or the capacity of the pumping station), or the conclusions and analysis drawn from the Models. UWSLG also submitted that ‘any third party’ would refer to anyone other than Mr. Merwin, including UWSLG, other witnesses, legal counsel and the Tribunal.

25With respect to paragraph 5, related to the ‘data’ not being intended for third party use, “unless for the sole purposes of supporting City staff in infrastructure management and operational decisions”, UWSLG suggested that such wording would be inclusive of barring the use of the data for the rendering of a Tribunal decision, and is not appropriate language for a witness to have to agree to for appeals before the Tribunal.

26It was UWSLG’s submission that the disclaimer included in the Water Model Form, highlighted in italic, bold, blue font on the form and reproduced below, should be sufficient, and therefore it should not be necessary to also have similar wording in the Undertaking Form:

The model files are exclusively created for the City of Hamilton use. Any use by others is done so at their own risk. It is the user’s responsibility to calibrate and validate the model locally for its intended use. The City of Hamilton does not warrant the accuracy of these modelling files.

27UWSLG submitted that, although Elfrida’s witness signed the Undertaking Form, Elfrida’s Counsel acknowledged that the witness did so without first seeking legal advice. UWSLG further submitted that one witness’s decision to sign the Undertaking Form does not justify its execution by another witness.

28UWSLG further submitted that, given the City put the Servicing Issues on the IL, UWSLG is therefore in need of the Water Model in order to address the Servicing Issues. Without the Water Model, UWSLG submitted that it would not be able to sufficiently prepare for the merit hearing.

29Further, UWSLG submitted on several occasions that “if we can’t have it now, the City can’t use it later”, with ‘it’ referring to the Model and 'later' referring to during the merit hearing. It was UWSLG’s position that the Parties should prepare for and attend the merit hearing having used the same Water Model in their analysis, as output from two different models would not be comparable, and that UWSLG would otherwise be prejudiced and at a disadvantage.

30For the benefit of both Parties and to achieve a fair and just hearing, UWSLG posited that it should be given the opportunity, and be expected, to provide analysis of the Water Model in its witness statements which would require its disclosure at this stage of the proceedings.

31Based on UWSLG’s submissions, it requested the Tribunal to order the City to release the Water Model, subject only to Mr. Merwin signing the Water Model Form.

Responding Party Submissions

32With respect to the Undertaking Form, the City advised that there are inherent inaccuracies with the Model, and it requires the form to be signed to safeguard against potential legal claims. Further, the City submitted that Elfrida’s witness signed the Undertaking Form, suggesting it is therefore appropriate and consistent with standard practice.

33The City stated that paragraph 3 of the Undertaking Form serves as a reasonable precaution to protect the City from liability arising from parties relying, “to their detriment”, on the Water Model, which the City noted has inherent inaccuracies.

34Further, the City submitted that paragraph 4 of the Undertaking Form is also reasonable as it limits the Model itself from being transferred to any third party but does not impose such prohibition on the transmission of the conclusions drawn from the use of the Model to others; only that such conclusions must be accompanied by an acknowledgement of the limitations as noted.

35With respect to paragraph 5, related to the ‘data’ not being intended for third party use, “unless for the sole purposes of supporting City staff in infrastructure management and operational decisions”, the City noted that it is simply a factual statement.

36The City submitted that, if the Tribunal determines any or all of paragraphs 3, 4 and/or 5 to be inappropriate, such paragraphs should be struck and Mr. Merwin should still be required to sign the form as, in its submission, paragraph 2 is important.

37Through questioning from the Tribunal with respect to the specific wording on the Undertaking Form requiring a corporation to sign rather than a witness, the City confirmed that, despite the wording, it requires UWSLG’s witness to execute the Undertaking Form in order to receive the Model.

Analysis and Findings

38With respect to paragraph 3 of the Undertaking Form relating to indemnifying and saving harmless the City, the Tribunal finds that it is wholly unreasonable to require a witness, in their personal capacity, to agree to financial compensation, and protection from liability, to the City from “any and all actions, causes of action, claims and demands” arising from the witness’s use of the ‘data and information’ and any use by a person who obtained the ‘data and information’ through the witness. Such indemnification is an overly burdensome request of a witness and would expose such witness to unreasonable risk and exposure.

39With respect to paragraph 4 of the Undertaking Form, the Tribunal finds that, since the majority of paragraph 1 of the form has been left blank, and therefore ‘data and information’ is not yet a defined term, it is unclear whether such data and information is limited to the Water Model itself or if it would prohibit a witness from transferring any data or information from the use of, or inputs to or from, the Model to any third party, including other witnesses, Counsel of UWSLG, the Tribunal, or anyone involved in the merit hearing. Therefore, it is not reasonable to require the form to be executed by Mr. Merwin in its current form.

40With respect to paragraph 5 of the Undertaking Form, the Tribunal finds that, although the City characterizes it as a factual statement, it would require Mr. Merwin to affirm such without his express knowledge of the contents of the paragraph. Further, the Tribunal agrees with UWSLG that the clause restricting ‘third party use’ is overly broad, could preclude use of the data at the merit hearing, and it is inappropriate for Mr. Merwin to be required to acknowledge or agree to the contents of the paragraph.

41Additionally, the Water Model Form contains a disclaimer as quoted in paragraph [26] on which the City can rely with respect to the Water Model in lieu of paragraph 2 of the Undertaking Form.

42With respect to the Water Model itself, it is the Tribunal’s finding that UWSLG would be at a disadvantage and prejudiced without disclosure of the model for the reasons expressed. Further, as the City no longer opposes disclosure, and the model is relevant and necessary to the determination of the servicing issues in dispute, the Tribunal finds that the City must disclose the Water Model to UWSLG.

43In this respect, the Tribunal will not require the execution of the Undertaking Form by any representative or witness of UWSLG for the reasons set out above and will order the City to release the Water Model to UWSLG, subject only to Mr. Merwin signing the Water Model Form.

Wastewater Model

Moving Party Submissions

44The submissions of UWSLG regarding the Undertaking Form, covered in paragraphs [23] to [31] in relation to the Water Model, also apply to the Wastewater Model, with necessary modifications.

45UWSLG submitted that Rule 30.01(1)(a) of the Rules of Civil Procedure defines a ‘document’ to include “data and information in electronic form” and that therefore the request for the Wastewater Model is a request for the disclosure of a document.

46UWSLG submitted that, in paragraph 29 of the Responding Motion Record, the City stated: “City staff would not rely exclusively on the Wastewater Model to assess the availability of sufficient infrastructure to service the [Properties]”, thereby confirming that it would be relied on by the City, in conjunction with other material. UWSLG noted that, as further set out in paragraph 29, the City indicated its intention to use the Wastewater Model as a means of verifying the accuracy of other material, stating: “[a]t most, staff would use the Wastewater Model as one tool to independently check results derived through this other information” (including: capacity tracking tools, sewer design sheets and sanitary drainage plans, engineering drawings, pumping station data, flow monitoring data and flood records).

47UWSLG further submitted that, if the City is to verify its results against the Wastewater Model, UWSLG’s inability to access the model would preclude it from effectively testing the evidence on that point during the hearing.

48In addition, it submitted that the City has not addressed any prejudice or harm if the Wastewater Model is disclosed, and that UWSLG would be highly prejudiced if it is not disclosed in a timely manner, as it is relevant to the Servicing Issues and necessary for Mr. Merwin to undertake an analysis of the servicing capacity, test the City's analysis in this regard, and provide his opinion based on the same data and analysis. Further, without disclosure, UWSLG submitted that it would not be able to cross-examine the City’s witnesses on their evidence in this regard and that therefore disclosure is necessary.

49UWSLG further submitted that in order to achieve a fair and just hearing, it needs the opportunity to analyze and address the Wastewater Model in the witness statements. Similar to its submissions relating to the Water Model, UWSLG submitted an all or nothing position that, if they can’t have the Wastewater Model now, the City should not be able to use it during the merit hearing, noting that otherwise UWSLG would be prejudiced and at a disadvantage. Further, on the matter of the accuracy of the Wastewater Model, UWSLG suggested that this should be a matter to be addressed in the merit hearing, in relation to the appropriate weight that should be given to the testimony concerning the model.

50With respect to the City’s alternative relief limiting any disclosure to relevant catchment areas, UWSLG agreed to limit its request to the catchment areas identified in paragraph 3 of Mr. Merwin’s Supplementary Affidavit, being a subset of the original request, and including “all existing development, currently approved development (i.e. draft plan approved lands or other relevant approvals) and future flows contributing to the systems”. However, it asserted that it requires the “modelling files” in order to know the size and capacity of the existing and planned pipes.

51Regarding the test of necessity and the City’s assertion that the Wastewater Model is not needed and that the “servicing capacity issues can be addressed through a combination of flow meter information and other publicly available data”, UWSLG argued that such information was vaguely referenced, not offered by the City, not sufficient, and would require UWSLG to utilize a different model, leading to additional issues at the merit hearing related to which model is more accurate.

52Regarding the City’s assertions that the Wastewater Model was “created exclusively for use by the City for high-level strategic planning and trunk level sewer analysis” and that it has not been the City’s practice to release it to ‘external private parties’, UWSLG noted that ‘high-level strategic planning’ is what the Servicing Issues address. It furthered that suggesting the model is for the exclusive use by the City is inconsistent with the role of the City to serve the public interest, especially in a hearing before the Tribunal which “stands in the shoes of the City when determining the appeals”. It questioned how the Tribunal could properly function if the City can ‘keep the model secret’ but use it in the merit hearing. It furthered that the City’s past practice to not release the model does not mean it is the right thing to do in this instance.

53With respect to the City’s contention that the Wastewater Model is not calibrated in the vicinity of the Properties and should not be used as a standalone tool to address questions of servicing capacity, UWSLG argued that such is not a sufficient reason not to disclose it, especially since it is willing to sign the Water Form, with necessary modifications to reflect the Wastewater Model. It noted that both parties should “have the same model with its same limitations” for use at the merit hearing, with UWSLG being on equal footing with the City should the model be calibrated prior to the commencement of the merit hearing.

Responding Party Submissions

54The City submitted that UWSLG does not need the Wastewater Model as it is not necessary, nor sufficient, to address the wastewater related Servicing Issues, and that therefore it is not relevant and should not be disclosed.

55The City submitted that the Wastewater Model is not fit for the purpose of addressing the Servicing Issues due to the “limited purpose for which it was developed and the lack of calibration, particularly in the vicinity of the [Properties]”, and as it is “not suitable for the purpose for which it has been requested” due to substantial errors in the input data. Further, it should not be used as a standalone tool to address servicing capacity, as it cannot be relied on to provide accurate results and:

must be interpreted with experience and understanding of the wastewater system’s operations, and in conjunction with other information including: capacity tracking tools, sewer design sheets and sanitary drainage plans, engineering drawings, pumping station data, flow monitoring data and flood records. Without this other information, the Wastewater Model is not reliable.

56The City explained that the City’s wastewater system generally services the core urban area and more peripheral areas and “is less reliable and incomplete at the boundaries of the urban area where separated sewage systems operate and where the [Properties are] located”. Further, the Wastewater Model is in the process of being updated to address the limitations, with completion of the update anticipated during the first half of 2026.

57The City submitted that the Wastewater Model is complex with many variable parameters that can “drive the outputs and results” and changes to the parameters can lead to potentially incorrect results. It noted that it would not rely exclusively on the Wastewater Model to assess servicing for the Properties and would use it as “one tool to independently check results derived through this [sic] other information”.

58The City advised that it has not been the City’s practice to release the Wastewater Model to external private parties, but that it does provide public access to sewer locations, pipe sizes, slope information, and flow meter information upon request and subject to standard data sharing agreements. It was the City’s submission that this publicly accessible information would enable UWSLG to undertake its own modeling exercise to address servicing capacity issues with more accurate results, as has been done in other cases, and therefore, the Wastewater Model is not needed by UWSLG for use at the merit hearing. Further, it submitted that Mr. Merwin does not state in his Affidavit that he cannot undertake his own modeling exercise, and Elfrida’s engineer, Nathan Jamieson, was satisfied that an analysis could be undertaken without the Wastewater Model by doing its own analysis.

59The City acknowledged Mr. Jamieson’s assertion at paragraph 38 of his Affidavit that this approach is “less effective, as it is more time-consuming, relies on incomplete inputs, and will not produce results directly comparable to the City’s” and that the Wastewater Model “is the most accurate and efficient approach”, but submitted that it was Ms. Caterini’s opinion that this is not the case and that the Wastewater Model is not accurate and does not represent the latest information.

60The City also submitted that the outputs of the Wastewater Model would be confusing for the Tribunal at the merit hearing and would not assist the Tribunal in determining the wastewater related Servicing Issues.

61The City further noted that any disclosure of information to any externally retained witnesses would be subject to more stringent requirements than those in the Undertaking Form and the Water Form.

62With respect to the City’s alternative request to have any disclosure of the Wastewater Model, if ordered, to be geographically scoped to the “relevant catchment areas”, it submitted that the City is prepared to disclose all of the items requested by Mr. Merwin in paragraph 3 of his Supplementary Affidavit, other than the “modelling files”.

Analysis and Findings

63The Tribunal findings regarding the Undertaking Form, covered in paragraphs [38] to [43] in relation to the Water Model, also apply to the Wastewater Model, with necessary modifications.

64With respect to the Wastewater Model itself, the Tribunal finds that Ms. Caterini’s evidence that “City staff would not rely exclusively on the Wastewater Model” and that it would, at most, use it “as one tool to independently check results” makes clear that the City will rely on the Wastewater Model to some extent and therefore necessitates that it be disclosed in order for UWSLG to be on a level playing field at the merit hearing, at a minimum with respect to the City’s use of the model.

65Further, with respect to UWSLG’s assertion that the outputs of the Wastewater Model would be confusing for the Tribunal at the merit hearing and would not assist it in determining the wastewater related Servicing Issues, the Tribunal finds it premature to make such a determination at this stage, and it would be more appropriately addressed during the merit hearing.

66The Tribunal prefers the submissions and evidence of UWSLG, with collaboration from Mr. Jamieson’s Affidavit, that the Wastewater Model must be disclosed since the City intends to rely on it in some capacity. Based on the submissions and evidence of the City, the Tribunal is assured that UWSLG is now fully aware of the model’s inherent limitations and errors.

67It is the Tribunal’s finding that UWSLG would be at a disadvantage and prejudiced without disclosure of the Wastewater Model for the reasons expressed. The integrity of the Wastewater Model is an issue that should be addressed and tested at the merit hearing by both parties to ensure a proper evidentiary basis and procedural fairness.

68Furthermore, the Tribunal is not prepared to order the Wastewater Model be excluded from use at the merit hearing. The City’s intent to rely on it, albeit in a limited capacity, demonstrates a level of utility and relevance of the model. Accordingly, prohibiting its use entirely during the merit hearing would not serve the public interest.

69Additionally, irrespective of the extent to which the City may rely on the Wastewater Model, the existence of evidence that is, to any extent, both relevant and necessary requires disclosure of the Wastewater Model to ensure the Tribunal can make a full and fair determination of the issues at the merit hearing.

70Therefore, the Tribunal finds that the City must disclose to UWSLG the Wastewater Model, limited to the catchment areas identified in paragraph 3 of Mr. Merwin’s Supplementary Affidavit, without UWSLG executing the Undertaking Form.

2023 AMP

Moving Party Submissions

71UWSLG advised that Appendix "D" of the UHOP contains Contour Lines that were delineated by the Airport's 2010 Master Plan ("2010 AMP"), which was based on a comprehensive 2006 Noise Impact and Evaluation Study, and which outlined the type of information and data being requested in items 4 and 5 of paragraph [10].

72UWSLG also advised that the UHOP states that residential and other sensitive land uses are not permitted within the 28 Contour Line, which, on the Noise Exposure Forecast Contours and Primary Zoning Regulation Area mapping in Appendix D to the UHOP, covers a portion of the Properties, whereas the 30 Contour Line is shown to only slightly intersect the Properties. The 2010 AMP projected that the Contour Lines would expand until 2015, due to increases in itinerant traffic, but then shrink considerably from 2015 to 2025, largely as a result of the introduction of quieter aircraft.

73Further, UWSLG submitted that the Contour Lines increased in size and changed in shape in the 2023 AMP, rather than decreased as expected, without sufficient explanation. The area identified as being above 30 NEF/NEP has increased such that it now includes larger portions of the Properties.

74UWSLG advised that, unlike the 2010 AMP, the 2023 AMP was not supported by a detailed Noise Study and contains insufficient information and data to properly understand and analyze the new Contour Lines. Further, the City has not indicated whether it will be relying on the Contour Lines in the UHOP or the Contour Lines in the 2023 AMP, and may not do so until witness statements are filed.

75UWSLG contended that it is fair and reasonable to assume that the question of which Contour Lines are applicable to the Appeals will be debated during the merit hearing and may be a critical issue respecting land use. Moreover, while the PPS 2024 prohibits sensitive land uses, including residential, above the 30 NEF/NEP subject to policy 3.4.2(b), the City’s position appears to be that sensitive lands uses should be prohibited above the 28 NEF/NEP, as provided for in the UHOP, which would have a greater impact on the Properties.

76UWSLG also contended that it is fair and reasonable to assume that, in pursuing the airport noise issue, the City will rely upon data and information used to delineate the Contour Lines in the 2023 AMP, which is not public information. To properly prepare for and respond to the airport noise issues, UWSLG stated that it requires access to that information.

77It was advanced by UWSLG that waiting until January 13, 2026, when the witness statements are to be exchanged, to request the Airport Information would not allow UWSLG sufficient time to fully respond to the issues or to prepare a fulsome reply witness statement. To the extent that the City intends to rely upon non-public information respecting the 2023 AMP, UWSLG contends that it is necessary for all of the Airport Information to be shared with it, well in advance of the deadline to file witness statements.

78UWSLG asserted that any Airport Information that is not shared with it well in advance of the merit hearing should not be allowed to be used by the City during the merit hearing.

79UWSLG proffered an alternative, noting that if the Airport does not have the Airport Information in paragraph [10], item 5 in electronic form, it requests an order for a limited examination for disclosure by written questions pursuant to Rule 9.1(d) of the Rules (“Scoped Disclosure”).

80UWSLG noted that it disagrees that the City does not have control over the Airport Information, but that, even if it were true, the City has access to the Airport Information and that most, if not all, should be readily available to the Airport, and therefore the City.

81UWSLG submitted that it would be highly prejudiced if it is not provided with the Airport Information in a timely manner, and that, for the benefit of both Parties and the Tribunal, the disclosure ought to be granted to offer the best opportunity for a fair and just resolution of the merits of the Appeals, noting that, if the disclosure request is denied, the Tribunal will not receive the best available evidence at the merit hearing. It furthered that it would also be highly prejudiced if it receives the Airport Information later through exchange of witness statements and/or oral testimony, noting that once the Airport Information is received, it will take its acoustical engineers many months to analyze the data and delineate their own Contour Lines.

82UWSLG made submissions related to the unfairness of the timing, if delayed, of the disclosure of the Airport Information, including any portion of the 2023 AMP Data, as the City’s witnesses employed by TradePort’s consultant, Avia NG (“Avia”) have prior knowledge of the Airport Information, having been TradePort’s consultant who undertook the work, and would be able to prepare for the merit hearing in a shorter timeframe than UWSLG’s witnesses.

83Further, UWSLG submitted that the City’s suggestion to defer consideration of the Motion to the merit hearing, in the event it receives the Airport Information, would be an inefficient use of time, that an adjournment would be unreasonable for a scheduled eight-week hearing, and that UWSLG should not be penalized for proactively seeking to resolve the matter through this Motion.

84Finally, UWSLG submitted that it is sufficient that the request for the Scoped Disclosure is in the Motion Record and in the Reply Motion Record and does not need to specifically be in the ‘prayer for relief’ portion of the Notice of Motion.

Responding Party Submissions

85The City advised that the only Airport Information it has in its possession are the Shapefiles and that it recently received permission from TradePort to disclose them to UWSLG and will do so shortly.

86With respect to the Airport Information other than the Shapefiles (“Partial Airport Information”), the City submitted that TradePort has custody of the Partial Airport Information, whereas the City does not. Further, the City submitted that: the City, through a subsidiary, owns the airport lands and buildings; the City does not manage or operate the Airport; TradePort, the operator of the airport through a lease agreement, is an arm’s length party over which the City has no control; and TradePort is not an affiliate or subsidiary of the City. The City asserted that this operating arrangement and corporate structure is determinative to the portion of the Motion requesting disclosure of the Partial Airport Information, as the City cannot disclose what it does not have, and cannot compel TradePort to disclose it. In this regard, it submitted that the Motion must be dismissed with respect to the Partial Airport Information request.

87Further, the City took the Tribunal to an email from the City solicitor to Counsel for UWSLG, dated June 23, 2025, advising that “the City will be working with the airport operator to gather the information we need to inform our specific issues, and we are happy to work out an arrangement to share that when available so our respective witnesses are working off the same information”. In the email, the City further clarified that “this does not mean it will look like the full list you requested…”.

88The City submitted that the 2023 AMP and the associated Airport Technical Report were prepared by TradePort in conjunction with its consultants and that the City had no direct or indirect relationship with the authors of either report. As such, it submitted that “the City was not and is not privy to any of the assumptions, analysis or technical work undertaken to arrive at the NEF Contour Lines set out in the [2023] AMP” and that the 2023 AMP was approved by City Council in October, 2023.

89The City submitted that it has been seeking the release of “information needed to inform the issues for the hearing before the Tribunal” and that those discussions are ongoing, although TradePort has expressed concerns that some of the Partial Airport Information being sought may be ‘commercially sensitive’.

90In this respect, the City submitted that since it does not have the Partial Airport Information, the Tribunal should dismiss the Motion as it relates to the Partial Airport Information.

91In relation to the City’s witnesses who are employed by Avia, the City submitted that TradePort’s consent to the witnesses’ participation was conditional upon Avia not disclosing to the City any confidential information related to previous work undertaken for TradePort.

92The City confirmed its intention to rely on both the 2023 AMP and the 2023 AMP Data, as they are both relevant to the Airport Issues. However, the City indicated that its reliance on the 2023 AMP Data is contingent upon obtaining access to it, and it is accordingly seeking disclosure from TradePort, and in turn, disclosure to UWSLG and the Tribunal. Such negotiations with TradePort are ongoing, although TradePort has recently indicated their willingness to disclose the 2023 AMP Data subject to a confidentiality agreement, which is not yet finalized. To this point, the City noted that it could only agree to disclosure to UWSLG and the Tribunal on such terms of a confidentiality agreement.

93The City made submissions related to the inappropriateness for the Tribunal to issue an order for a Scoped Disclosure, which would effectively preclude the City from calling its case at the merit hearing, and for which UWSLG did not properly request relief in the ‘prayer for relief’ portion of its Notice of Motion, as required by Rule 10.4 of the Rules. The City noted that Mr. Novak found the 2023 AMP Data to be relevant, and as it is the Tribunal’s mandate to render decisions consistent with provincial policy, it would be inconsistent to exclude information relevant to policy 3.4 of the PPS, which prohibits new residential development in areas above 30 NEF/NEP.

94The City also submitted that with respect to procedural fairness, a pre-emptive ruling by the Tribunal restricting the City’s evidence with respect to the Partial Airport Information is not an appropriate remedy to any unfairness perceived by UWSLG. The City proffered that if it fails to obtain the Partial Airport Information, the remedy could be addressed at the merit hearing through arguments by UWSLG that it undermines any weight that should be given to the 2023 AMP. Otherwise, if the City obtains the Partial Airport Information, the remedy could be an adjournment of the merit hearing, changes to the witness statement exchange date, or a future motion to exclude evidence. It suggested that no unfairness would arise with these remedies since the merit hearing is scheduled in April 2026, and the City is not in control of the timing for disclosure from TradePort.

95In conclusion, the City submitted that the time for UWSLG to seek any relief, if required, is at the merit hearing, not pre-emptively. The City is not in receipt of the Partial Airport Information, Mr. Kessler’s Affidavit is uncontradicted, and no alternative relief is warranted as UWSLG did not seek it. For those reasons, the City argued that the Motion should be denied as it relates to the Partial Airport Information.

Analysis and Findings

96Given the imminent disclosure of the Shapefiles by the City, item 3 in paragraph [10] is no longer in dispute.

97Similar to the analysis and findings for the Water Model in paragraphs [38] to [41], the Tribunal does not intend to require the execution of the Undertaking Form, by any representative or witness of UWSLG for the disclosure of the Partial Airport Information, if and when the City is in receipt of such.

98The Tribunal accepts the City’s uncontroverted submissions that it is not in receipt of the Partial Airport Information and that it has no control to compel TradePort to disclose it. Similarly, the Tribunal accepts that the 2023 AMP Data is relevant and necessary for the determination of the issues regarding airport noise and land use compatibility respecting the Airport at the merit hearing.

99The City’s submission, that a Tribunal order for a Scoped Disclosure would preclude it from calling its case at the merit hearing, is overstated. UWSLG must be afforded a fair and reasonable opportunity to access and respond to the evidence relied upon by the City. Equitable access to material or information on which UWSLG seeks to rely is essential to maintaining procedural fairness and integrity of the hearing process. That integrity demands that both Parties are given a meaningful opportunity to examine and address the evidence presented by the other, ensuring that the proceedings are conducted in a manner that is procedurally fair to all Parties.

100Deferring resolution of the Motion to the merit hearing, should the City obtain the Partial Airport Information, or any portion of it, whether through an adjournment of the merit hearing or a motion to exclude evidence, would unnecessarily delay the matter and compromise procedural integrity by shifting a determinative issue to a later stage. An adjournment would be prejudicial to UWSLG given their proactive steps to resolve the issue through the present Motion, and a motion to exclude evidence would result in a duplication of efforts expended at this hearing. Moreover, both options would result in unnecessary expenditures of time and resources by both Parties in the preparation for the merit hearing, when the evidentiary scope would remain uncertain.

101Further, although UWSLG did not request relief for an order to scope information in the ‘prayer for relief’ portion of its Notice of Motion, the Tribunal notes that Rule 10.4 does not address this specifically, and Rule 1.6 provides for the Tribunal to grant exceptions from the Rules to ensure that the real questions in issue are determined in a fair, just, expeditious and cost-effective manner. In this respect the Tribunal grants UWSLG leave from Rule 10.4 in this regard, in as much as it is necessary.

102The Tribunal finds that UWSLG’s request for an order compelling the City to disclose the Airport Information, or any portion of it, within 20 days of the issuance of this decision is impractical given the City does not have control over when, or if, it will be in receipt of any of the information.

103Having given consideration to all the submissions, the Tribunal finds that the City must disclose to UWSLG the Airport Information, or any portion of it, that is made available to it, or is known by the Avia witnesses due to Avia’s prior work for TradePort and is to be relied on at the merit hearing, within five business days of it being made available. If the Airport Information, or any portion of it, is not available to be disclosed by Monday, October 13, 2025, being three months prior to the exchange date for the witness statements, or is deemed by TradePort to be privileged and subject to a confidentiality agreement, then neither Party may rely on it in their witness statements and/or through oral evidence at the merit hearing, unless both Parties come to a mutually acceptable alternative arrangement.

SUMMARY FINDINGS

104In considering the Motion, the Tribunal has taken into consideration the written and oral submissions of both Parties, as well as Rules 1.6, 9, and 10 of the Rules, Rules 29.2.03, and 30.01(1)(a), 30.01(2) and 30.02(4) of the Rules of Civil Procedure regarding Proportionality in Discovery and Discovery of Documents respectively, and s. 12 of the Ontario Land Tribunal Act, 2021.

105Rule 9.1 of the Rules has a two-part test to be met for an order for discovery in this case: (1) that UWSLG has requested the Models and Airport Information, and the request has been refused, or no answer has been received; and (2) that the Models and Airport Information requested is necessary and relevant to the disposition of the issues in the proceeding.

106In this regard, UWSLG has demonstrated that the Models and Airport Information were requested, and either refused by the City, or met with no response, although the City has agreed to provide the Water Model subject to UWSLG’s engineering witness signing the Forms. Additionally, the Tribunal finds that the disclosure requests are relevant and necessary as the City will, to some extent, rely on the Models and Airport Information at the merit hearing, and they are required to address the Servicing Issues and Airport Issues. As such, the Tribunal finds that the tests for discovery, pursuant to Rule 9.1 of the Rules, have been met.

107It is essential that witnesses from both Parties are on a level playing field with respect to access to the Models and Airport Information, and use thereof, in their analysis and determination of the Servicing Issues and Airport Issues in their respective witness statements and through their oral evidence at the merit hearing. The Tribunal finds therefore, that UWSLG would be at a disadvantage, and prejudiced, without the Models and Airport Information.

108Further, at the merit hearing it will be necessary for the Tribunal to be presented with the best and most fulsome evidence available, in order to ensure that the Servicing Issues and Airport Issues are determined in a fair, just, expeditious and cost-effective manner.

109In this respect, the Tribunal finds that the Motion should succeed, in part, and that the request for production of the Models and Airport Information should be granted as outlined in the Order clause.

Elfrida

110The Tribunal has considered the request by Elfrida, as a Participant, for the City to provide disclosure of the Wastewater Model for use in the Elfrida Appeals, if ordered to be disclosed to UWSLG.

111Although the Tribunal is ordering disclosure to UWSLG, the Tribunal finds that any similar disclosure to Elfrida is a private matter for the City and Elfrida to determine outside the purview of this motion hearing.

112Further, as the purpose of the disclosure request is unrelated and extraneous to the current proceedings, it would not assist the Tribunal in effectively and completely adjudicating on the issues of the current Appeals.

113For these reasons, the Tribunal will not order disclosure to Elfrida through this Decision.

Costs

114Regarding the request for costs by UWSLG, the Tribunal advised that a cost award would need to be pursued through a separate motion request made within 30 days of the issuance of this Decision, in compliance with Rule 23 of the Rules. The Tribunal further advised that the standard for a cost award against a party is limited to conduct during the proceedings as per Rule 23.9.

ORDER

115THE TRIBUNAL ORDERS THAT the Motion for Disclosure brought by Upper West Side Landowners Group Inc. is granted, in part, and the Tribunal provides the following directions for the purposes of this appeal before the Tribunal:

1. The City is directed to disclose to Upper West Side Landowners Group Inc. the following, as related to the Official Plan Amendment applications under appeal, no later than 20 business days after the issue date of this Decision and Order: a. the City’s hydraulic water model, subject only to Mr. Merwin signing the Water Model Acknowledgement form attached as Exhibit D to the Affidavit of Gabriela Caterini; b. the City’s hydraulic wastewater model, geographically scoped to the catchment areas identified in paragraph 3 of Mr. Merwin’s Supplementary Affidavit, subject only to Mr. Merwin signing the Water Model Acknowledgement form attached as Exhibit D to the Affidavit of Gabriela Caterini, with necessary modifications to reflect the Wastewater Model;
2. The City is directed to disclose to Upper West Side Landowners Group Inc. the following, as related to the Official Plan Amendment applications under appeal, within five business days of receipt thereof: c. the information in items 2 through 5 in the Motion Record related to the 2023-2043 Airport Master Plan, or any portion thereof.
3. If the City is not in receipt of the information referenced in 2.c. above by Monday, October 13, 2025, or if such information is deemed by TradePort to be privileged and subject to a confidentiality agreement, then neither Party may rely on such information in their witness statements or through oral evidence at the merit hearing, unless both Parties come to a mutually acceptable alternative arrangement.
4. If the City is not in receipt of the information referenced in 2.c. above by Monday, October 13, 2025, Upper West Side Landowners Group Inc. may, pursuant to Rule 9.1(d) of the Rules, submit a list of written questions to the City, and the City shall, in good faith, provide responsive answers to the questions within five business days of receipt.

116THE TRIBUNAL ORDERS THAT the requests by Elfrida Community Builders Group Inc. for party status in this motion hearing and for disclosure of the City’s hydraulic wastewater model are denied.

117The Member is not seized and no further notice is required.

118The Member may be available for further case management, including a Telephone Conference Call if required, subject to the Tribunal’s calendar.

“C. I. Molinari”

C. I. MOLINARI 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.