Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 26, 2026
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 East 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.
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 East 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.
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 East and 555 Glancaster Road, Glanbrook (Ward 11))
Municipality/UT: Hamilton/Hamilton
OLT Case No: OLT-24-000750
OLT Lead Case No: OLT-24-000748
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Upper West Side Landowners Group Inc.
Motion for: Directions
Heard: January 15, 2026 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Upper West Side Landowners Group Inc. | Ira Kagan, Sarah Kagan, Joel Farber, Daniel Angelucci (in absentia), Matthew Rutledge (in absentia) |
| City of Hamilton | David Germain, Jaikaran Goraya, Patrick MacDonald (in absentia) |
MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI ON JANUARY 15, 2026 AND FINAL ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is a motion for direction (“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”) to implement an urban boundary expansion (“UBE”) and to designate for residential uses the properties municipally known as 9285, 9445, 9511, 9625 and 9751 Twenty Road West and 555 Glancaster Road (“Properties”).
2The Motion brought by UWSLG seeks direction pertaining to a recent ‘in the alternative’ position tabled by the City that, at the merit hearing, should the Tribunal approve a UBE, the Properties should be designated for employment uses rather than residential (“Alternative Position”).
3At the request of UWSLG and due to the limited timeframe preceding the commencement of the merit hearing, the Tribunal issued an oral Decision. The oral Decision was based on the materials submitted, which the Tribunal member had reviewed thoroughly before the motion hearing, together with the submissions made during the hearing.
4For the reasons set out herein, the Tribunal granted the Motion and ordered that the City is not permitted to seek the Alternative Position or lead employment land needs (“ELN”) evidence in the merit hearing. The ruling does not preclude the City from pursuing an Employment designation in the future should the appeals be unsuccessful.
BACKGROUND
5The Applications were filed on August 12, 2020, to implement a 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.
6The 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 (“AEGD 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.
7The Applications were deemed complete by the City on September 15, 2020, and subsequently appealed on or about June 27, 2024.
8The Procedural Order (“PO”) was approved and attached to the Tribunal Decision issued on February 11, 2025, and updated by Order issued on June 9, 2025. The list of issues (“IL”) in the PO attached to the Order issued on June 9, 2025 remains unchanged from the IL in the PO attached to the Decision issued on February 11, 2025.
9In its Decision issued on December 18, 2025 (“Dec 2025 Decision”), the Tribunal divided the upcoming merit hearing into two phases: ‘Part One Hearing Together’ (“Phase 1”) and ‘UWSLG Part Two Hearing’ (“Phase 2”).
10Phase 1 will deal with residential land needs (“RLN”) in the City generally and related issues common to appeals filed by UWSLG (under OLT-24-000748), Elfrida Community Builders Groups Inc. (under OLT-25-000591), and Whitechurch Landowners Group Inc. (under OLT-25-000613). The Phase 1 appeals will be heard together pursuant to Rule 16 of the Tribunal’s Rules of Practice and Procedure (“Rules”), commencing on Monday, April 13, 2026.
11Phase 2, scheduled to commence on Monday, May 11, 2026, will address the UWSLG appeals and will proceed on the following two discrete matters, with the determination of the first dictating whether the second requires adjudication:
should the Properties be brought into the urban area through a UBE; and if so,
should the Properties be designated for residential development.
12The Alternative Position only affects the Phase 2 hearing.
13The Dec 2025 Decision amended the IL for the Phase 2 hearing by deleting the City’s issues 1, 2, 6, 24 and 50 (“Issue 1”, “Issue 2”, etc.) (and assigning and renumbering them with minor wording changes as ‘Residential Land Need’ issues 1, 2, 3, 4, and 5, common to the parties to the Phase 1 hearing). All remaining issues on the IL are to be addressed during the Phase 2 hearing. For the purposes of this Decision, references will follow the original IL numbering, including the deleted issues.
14Additional background information is available in the previous related Tribunal decisions.
RECENT EVENTS
15On November 28, 2025, the City advised UWSLG by email (“Nov 2025 Email”) that the City is taking the position that, should the Tribunal approve the UBE through the Phase 2 hearing, the Properties should be designated for employment uses “for all the reasons outlined in the issues list” and that it was “raising this now, in advance of the deadline for Phase 2 like expert meetings, so that all experts are aware of this alternative position”. It further stated:
In our view, this refinement of the City’s position is captured by the current issues list, several of which reference accommodating an appropriate range and mix of uses (e.g. issues 2, 3 and 6) and several of which explicitly reference providing for employment uses (e.g. issues 25 and 26). There are also many other issues re: compatibility, etc. that we will argue must lead the Tribunal to this outcome. If you disagree, please advise and we can draft an additional issue(s) to reflect this refinement, as contemplated in the procedural order.
16UWSLG responded to the City by email also on November 18, 2025, that the IL does not reasonably or fairly indicate that the City would be seeking an employment designation for the Properties, and that such an interpretation would call for an ELN assessment (“ELNA”), something that is not contemplated by a fair or reasonable reading of the IL.
17Following this email exchange, UWSLG requested the motion hearing for a determination of the City’s position related to designating the Properties for employment uses through the Phase 2 hearing, should the Tribunal approve the proposed UBE.
UWSLG – MOVING PARTY
18The materials before the Tribunal from UWSLG include:
Affidavits of Service for the service of the Motion material on December 31, 2025 (Exhibit 1) and the service of the Reply Motion material on January 12, 2026 (Exhibit 2);
Motion Record (Exhibit 4), containing the Notice of Motion and Affidavit of John Corbett, land use planner, affirmed on December 29, 2025; and
Reply Motion Record (Exhibit 6), containing the Reply to Response to Motion and Affidavit of Daryl Keleher, affirmed on January 11, 2026.
19UWSLG brought the Notice of Motion seeking:
a determination that the IL as set out in the PO issued February 11, 2025 (and unchanged in the updated PO dated June 9, 2025) does not raise any issue respecting ELN for the Properties, being the whitebelt lands proposed for a residential urban expansion, or for any other lands in the City;
a determination that the only evidence that can and should be led in the Phase 2 hearing is evidence which is relevant to issues on the IL;
an Order that the City is prohibited from seeking its Alternative Position in the Phase 2 hearing;
an Order that the City is prohibited from leading any evidence of ELN in the Phase 2 hearing;
an Order granting the costs of the Motion to UWSLG; and
such further and other relief as UWSLG may request and the Tribunal may permit.
CITY – RESPONDING PARTY
20The materials before the Tribunal from the City include:
Affidavit of Service for the service of the Response to Motion material on January 8, 2026 (Exhibit 3); and
Responding Motion Record (Exhibit 5), containing the Notice of Response to Motion, and Affidavit of David Heyworth, land use planner, sworn on January 8, 2026.
21In its Responding Motion Record, the City requested:
- an Order:
a. dismissing the Motion; and
b. granting the City its costs of the Motion; and
- such further and other relief as the City may request and the Tribunal may permit.
NOTICE
22There were no concerns raised regarding the service of notice, and the Tribunal was satisfied that proper notice had been provided.
THE MOTION
23The following sections address the submissions of UWSLG and the City, with the issues raised in the Nov 2025 Email considered first, followed by the remainder of each Party’s submissions.
Alternative Position
24UWSLG submitted that the City should be prohibited from seeking the Alternative Position at the Phase 2 hearing due to the late notice of its intent to pursue the Alternative Position, the IL does not address the Alternative Position or the calling of ELN evidence, and there would be no prejudice to the City if it is denied the opportunity to present the Alternative Position and prejudice to UWSLG if the City is allowed, among other submissions as addressed below.
25The City submitted that UWSLG seeks to limit the City’s evidence and narrow the issues; that the IL addresses the Alternative Position and it is directly relevant to certain issues on the IL; that the Tribunal can only determine the appropriateness of an employment designation after hearing such evidence; and that UWSLG’s submissions are more appropriately made in closing submissions at the Phase 2 hearing, among other submissions as addressed below.
November 28, 2025 Email from City to UWSLG
26In the Nov 2025 Email, the City stated that the Alternative Position is captured by the City’s Issues 2, 3, 6, 25 and 26 and that other issues deal with land use compatibility (“LUC”). The Parties’ submissions on each issue, as they relate to the Alternative Position, are addressed below, except as noted.
27Based on the submissions, the Tribunal finds that none of the issues listed in the Nov 2025 Email justifies the Alternative Position or the leading of ELN evidence.
Issue 2 – Are the applications necessary for the City of Hamilton to accommodate an appropriate range and mix of land uses to meet projected needs as per Section 2.1.3 and 2.1.4 of the Provincial Planning Statement?
28Issue 2 is reworded in the Dec 2025 Decision as follows: “Is an urban expansion(s) warranted for the City of Hamilton to accommodate an appropriate range and mix of land uses to meet projected needs as per Sections 2.1.3 and 2.1.4 of the Provincial Planning Statement, 2024?”. However, the versions are similar and they both reference policies 2.1.3 and 2.1.4 of the Provincial Planning Statement, 2024 (“PPS”).
29UWSLG submitted that chapter 2 of the PPS deals with people and homes and thus policy 2.1.3 and 2.1.4 “have nothing to do with employment land needs or designating land for employment purposes”. It noted that Issue 2 is now to be addressed in Phase 1, which is limited to RLN. It also submitted that section 2.8, not policies 2.1.3 or 2.1.4, addresses employment and that accordingly, Issue 2 does not justify the Alternative Position.
30The City submitted that the wording in policy 2.1.3 in the PPS, that “sufficient land shall be made available to accommodate an appropriate range and mix of land uses to meet projected needs”, is not restricted to RLN, and that the policy specifically references “employment areas”. It submitted that there is nothing in the wording of the issue or policy 2.1.3 to restrict the interpretation to residential land uses and that Issue 2 therefore fairly contemplates the calling of ELN evidence.
31The City also submitted that, like Issues 3, 6, 26 and 34, Issue 2 references a ‘full range and mix of uses’ and that these issues therefore “entail consideration of the full range of potential uses and needs”. It further submitted that there is nothing in the wording of these issues, or in the PPS policies that they reference, that limits them only to residential uses or land needs, that they are “broadly worded and encompass all needs”, and that some of the issues explicitly reference employment needs.
Finding
32Issue 2 was classified in the Dec 2025 Decision as one of the five ‘Residential Land Need’ issues and is now to be addressed in Phase 1. In this respect, the Tribunal agrees with UWSLG and finds that the City cannot rely on Issue 2 to further its response to the Motion, as it does not clearly contemplate ELN evidence in support of the Alternative Position. Further, despite the reference to “employment areas” in policy 2.1.3 of the PPS, the Tribunal finds that, had the City intended to rely on the policy in this manner, it should have, and arguably would have, worded the issue to explicitly reference ‘employment areas’, ‘employment uses’ or ‘employment land needs’.
Issue 3 – Do the applications support the achievement of complete communities as per Section 2.1.6 of the Provincial Planning Statement?
33UWSLG did not address Issue 3 in its motion material but made submissions that it is a “tortured interpretation” to claim that Issue 3 is related to ELN and amounts to an ex post facto interpretation of the issue.
34The City contended that since UWSLG did not address Issue 3 in its motion material, the Tribunal should disregard UWSLG’s related submissions.
35The City submitted that the term ‘complete community’ is a specific reference in policy 2.1.6 of the PPS and the policy includes a reference to employment uses, and therefore fairly contemplates the calling of ELN evidence at the merit hearing. Further, it submitted that there is nothing in the policy or the issue that restricts consideration to residential uses.
Finding
36The Tribunal finds that the lack of reference to Issue 3 by UWSLG in its motion material hinders its argument. However, the Tribunal does not agree with the City that a reference to ‘employment uses’ in policy 2.1.6 of the PPS, in the context of a list of uses to consider in achieving complete communities, opens the door for the City to lead ELN evidence.
37Tribunal finds that nothing in the wording of Issue 3 suggests that the City intended an alternative land use scenario to fall within its scope. The issue may necessitate evidence regarding the surrounding land use context, but it does not extend to an evaluation of whether some other form of development on the Properties, including an employment designation, might better achieve that objective.
Issue 6 – Is there a need for the applications for additional land to accommodate an appropriate range and mix of land uses as per Section 2.3.2.1 a) of the Provincial Planning Statement?
38Issue 6 is referenced and reworded in the Dec 2025 Decision as follows: “Issue 3: Is there a need for additional urban land to accommodate an appropriate range and mix of land uses as per Section 2.3.2.1a) of the Provincial Planning Statement, 2024?”. However, the versions are similar and they both reference policy 2.3.2.1 a) of the PPS, which, as it relates to the Applications, is with respect to what planning authorities shall consider in allowing a UBE.
39UWSLG noted that Issue 6 is now to be addressed in Phase 1, which is limited to RLN, and submitted that it does not capture the Alternative Position.
40The City noted that there is a dispute over whether Issue 6 is to be addressed only in Phase 1 or if a portion of it is to be addressed in Phase 2. It submitted that it is similar to Issues 2 and 3 with reference to a ‘range and mix of uses’ but applies specifically to UBEs and does not limit consideration to residential uses only.
Finding
41The Tribunal notes that the Dec 2025 Decision indicates that the City filed the motion to “have the five common Residential Land Need Issues” heard together, including the issue now numbered as Issue 6. As the Dec 2025 Decision is silent on whether Issue 6 is to be addressed solely in Phase 1 or in part in Phase 2, the Tribunal finds that there is no reasonable argument that Issue 6 remains a live issue for Phase 2. Similar to the finding in Issue 2, the Tribunal agrees with UWSLG and finds that the City cannot rely on Issue 6 to further its response to the Motion, as it does not clearly contemplate ELN evidence in support of the Alternative Position. Further, despite the reference to “a range and mix of land uses” in policy 2.3.2.1 a) of the PPS, the Tribunal finds that, had the City intended to rely on the policy in this manner, it should have, and arguably would have, worded the issue to explicitly reference ‘employment areas’, ‘employment uses’ or ‘employment land needs’.
Issue 25 – Do the applications impact the City’s ability to achieve its Employment Area Density Targets in Section 2.3.4.5 of the Urban Hamilton Official Plan.
42UWSLG submitted that, on plain reading, Issue 25 does not capture the City’s Alternative Position and that it is difficult to understand how the issue is relevant to the Appeals. It noted that the relevance of the issue will be dealt with during the Phase 2 merit hearing.
43UWSLG further submitted that the employment density targets in the UHOP only apply to lands that are currently in the urban area, and, as the Properties are not in the urban area, the Applications “cannot possibly fail to achieve employment density in existing employment lands” and that therefore Issue 25 does not require or justify the leading of ELN evidence.
44Additionally, UWSLG noted that City’s December 14, 2020 report to the General Issues Committee, indicated that the City’s draft Employment Land Review report determined that “sufficient designated employment lands remain to accommodate job growth to 2051”, and the “supply capacity of the City’s existing employment lands is approximately 114,420 jobs, while the forecast of new jobs to be accommodated over the planning horizon is approximately 112,090 jobs, which equates to a small employment land surplus to 2051 of approximately 60 ha”.
45The City did not address Issue 25 in its motion material or in its submissions.
Finding
46The Tribunal agrees with UWSLG that Issue 25 does not, on its face, contemplate the need for an ELNA, given that the Properties are not currently employment lands and further, the issue is directed at employment area density targets specifically, not ELN.
Issue 26 - Are the residential and employment uses identified in the applications based on the approved population and employment forecast and time horizon in the Urban Hamilton Official Plan, specifically Sections A.2.3.1-A.2.3.3?
47UWSLG noted that there are no employment uses identified in the Applications and that, accordingly, Issue 26 does not capture the Alternative Position. It added that it had recently appealed a separate application to the Tribunal related to existing employment lands within the whitebelt lands, but that it is not currently before the Tribunal. UWSLG submitted that, since the City was aware of the other application at the time it prepared its list of issues on the IL, it is possible that many of the City’s issues speak to that other application and not the current appeals, and that it cannot possibly justify the Alternative Position.
48The City submitted that Issue 26 makes a clear reference to job numbers that underpin ELN and that therefore there is a need to call ELN evidence.
Finding
49The Tribunal finds that the wording of Issue 26 lacks sufficient clarity in its reference to “employment uses identified in the applications”, given no such uses were identified in the Applications. In this respect, the City cannot rely on it to capture the Alternative Position.
Issue 34 – Do the applications implement the Minutes of Settlement issued by the Ontario Municipal Board agreed to by the Applicant and City of Hamilton on February 3, 2015 related to OMB case Nos. PL101300, PL90114 & PL110331?
50Although Issue 34 was not listed in the Nov 2025 Email, the City’s Responding Motion Record identifies it as being one of several issues that reference ‘a full range and mix of uses’, the City’s needs, and employment needs specifically, and in that regard, the City noted that it requires consideration of “the full range of potential uses and needs”. As such, it was addressed by the Parties as follows.
51UWSLG submitted that, despite the wording of Issue 34, the Tribunal does not approve or issue minutes of settlement and specifically did not do so with respect to the one entered into between the City and UWSLG (“MOS”). It further submitted that Issue 34 does not call for, nor require, ELN evidence, but rather calls for legal submissions, and that UWSLG will argue in the Phase 2 hearing that the MOS does not demand an employment land designation for the Properties. In this respect, it submitted that the City is free to argue that the MOS does demand an employment land designation, but that such an argument does not justify the need for ELN evidence in the Phase 2 hearing.
52UWSLG submitted that the MOS is not determinative of future land uses and merely recorded the City’s then‑preference for employment uses, a preference not reflected in the IL. It further submitted that the City took no steps to act on the MOS and that, in the subsequent Municipal Comprehensive Review, City staff identified an excess of employment lands and a shortfall of residential lands, but the City did not act on that advice. It also submitted that the City therefore did not do what it now claims the MOS required and that accordingly, the MOS provides no support for the City’s position.
53The City submitted that there is nothing in the wording of the listed issues, including Issue 34, that limits it to a consideration of residential uses or RLN only, that the issues are broadly worded and encompass all needs, and that certain of the issues explicitly reference ELN. It further noted that, in the MOS, the Parties agreed that it is the intent of the City that it will “continue to look to the AEGD former study area as its first priority for employment lands”.
54The City noted that the MOS addresses the calling of ELN evidence as follows:
- Nothing in these Minutes of Settlement or the draft Order shall prohibit the City from seeking to introduce evidence or make submissions regarding employment land need in the Phase 2 Hearing, or prohibit the UWSLG from objecting to the introduction of such evidence or submissions in the Phase 2 Hearing.
55The City submitted that the wording makes clear that ELN evidence would be an issue for Phase 2, and that nothing in the wording precludes the City from calling such evidence. The City noted that, otherwise, ELN would not have been addressed in the MOS, and that having put it on the record in the MOS, no prejudice arises to UWSLG.
Finding
56The Tribunal notes that it is not bound by the MOS signed between the City and UWSLG. Further, the Tribunal finds that the wording in the MOS is that nothing shall prohibit the City from seeking to introduce ELN evidence, not that they would necessarily be allowed to do so. The wording clearly puts the question in the Tribunal’s hands to determine if such evidence would be allowed. Further, although the MOS does establish that the City was contemplating designating the Properties for employment uses at the time, the IL itself, including Issue 34, does not reflect that intention.
57The Tribunal agrees with UWSLG that, as worded, Issue 34 neither directly addresses nor requires ELN evidence, and is limited to an interpretation concerning the implementation of the MOS. In this respect, Issue 34 is not determinative of the Motion.
Other Issues
Issues 12, 13, 17, 21, 25, 27, 28, 31, 32 and 33
58UWSLG also spoke to Issues 12, 13, 17, 21, 25, 27, 28, 31, 32 and 33 which the City listed in its Responding Motion Record, as well as Issue 14. The Tribunal finds no reasonable need to address those issues, other than Issues 13, 14 and 25 as addressed below and above respectively, as the City did not address the former in either its submissions or in its Responding Motion Record, other than to note that they “deal with the reasons why the [Properties] are more appropriate for employment versus residential uses”. Upon review of the wording of Issues 12, 17, 21, 27, 28, 31, 32 and 33, the Tribunal disagrees with the City’s generalized statement in this regard and finds that there are no grounds for making a finding that they support the inclusion of ELN evidence at the Phase 2 hearing.
Issue 13 – Do the applications maintain land use compatibility between sensitive land uses and employment areas in accordance with Section 3.5.1 and 3.5.2 of the Provincial Planning Statement to maintain the long-term operational and economic viability of the planned uses and function of these areas as per Section 2.8.2.4 of the Provincial Planning Statement?
and
Issue 14 - Do the applications include the removal of lands from employment areas as defined under the Provincial Planning Statement? If so, are the applications consistent with the Section 2.8.2.5 of the Provincial Planning Statement?
59UWSLG raised Issues 13 and 14, despite no mention of them in the Nov 2025 Email, as both issues reference section 2.8 of the PPS related to employment, although it submitted that neither issue captures the Alternative Position despite including the word ‘employment’, and that it is necessary to look beyond the word to understand the questions that the issues raise.
60UWSLG posited that the employment areas referred to in Issue 13 must relate to certain lands within the AEGD Secondary Plan, as the Applications do not include any designated employment lands. UWSLG noted that the Properties are adjacent to lands designated for employment uses in the AEGD Secondary Plan and posited that Issue 13 raises LUC between the Properties, if approved for residential uses, and existing employment lands, but does not capture the Alternative Position. It further posited that, if the Tribunal determines in Phase 1 that there is a need for more residential land in the City, it can still determine in Phase 2 that the Properties are not appropriate for residential uses and would therefore remain rural and outside the urban area. It noted that it does not follow that the Properties should be designated for employment uses through the Phase 2 hearing. It noted that the City has recently commenced a city-wide ELNA review, which it submitted is the proper process by which the Properties should be considered for employment uses.
61With respect to Issue 14, UWSLG noted that the Properties are not currently designated for employment uses and thus are not lands within an employment area proposed to be removed. It submitted that it is “obvious and straightforward” that the answer to Issue 14 is ‘no’, and that the issue does not capture the Alternative Position.
62The City did not address Issues 13 and 14 in its Response to Motion nor in its submissions.
Finding
63The Tribunal finds that Issue 13 is related to LUC rather than employment uses and Issue 14 is related to the removal of lands from employment areas and is clearly not relevant to the Motion.
Non‑Issue‑Specific Submissions
64Submissions were made related to the timing of the Nov 2025 Email, whether the requirement for an LNA in the ‘Formal Consultation Document’ issued by the City for the consultation meeting between the City and UWSLG held on April 15, 2020 included a requirement for an ELNA, prejudice to the Parties, the City’s counter position during the AEGD Secondary Plan appeals, the current ELNA process the City is undertaking, the contents of the MOS, and others. The City also filed caselaw in support of its position. The Tribunal finds, however, that the finding on the contents of the IL is determinative and therefore the Motion succeeds on that alone. Further, the non‑issue‑specific submissions do not amount to sufficient or compelling arguments to dissuade from that finding.
65Nonetheless, the Tribunal finds it relevant to briefly address the timing of the Nov 2025 Email as it relates to the finding on the IL, the City’s ELNA process, the contents of the MOS, and additionally, the caselaw submitted by the City.
Timing of Nov 2025 Email
66UWSLG submitted that the City first advised UWSLG in the Nov 2025 Email of its intention to seek the Alternative Position during the Phase 2 hearing, and that the following wording in the email makes it clear that the City’s proposal to seek the Alternative Position is a very recent decision:
[…] We are raising this now, in advance of the deadline for Phase 2 like expert meetings, so that all experts are aware of this alternative position.
In our view, this refinement of the City’s position is captured by the current issues list, several of which reference accommodating an appropriate range and mix of uses (e.g. issues 2, 3 and 6) and several of which explicitly reference providing for employment uses (e.g. issues 25 and 26).
[emphasis added by UWSLG]
67UWSLG noted that the Nov 2025 Email is clear that the Alternative Position is new, and that the City considers it a ‘refinement’ and submitted that calling it such does not change its nature or minimize its impact on the hearing process, nor does UWSLG agree that it is a ‘refinement’.
68Further, UWSLG posited that the Alternative Position is an ex post facto, or after‑the‑fact, justification for the change in position. It submitted that the City could have, and should have, been explicit in the IL that ELN was an issue to be addressed, had it contemplated such at the time of the framing of the IL.
69UWSLG submitted that the timing of the Nov 2025 Email speaks to the lack of genuineness of the City’s position, that the IL captures the Alternative Position. It noted the nine‑month interval between the approval of the IL and the date of the email, which it characterized as being “very, very late in the process”. UWSLG also suggested that the timing may reflect that counsel for the City “had only recently been instructed to pursue the Alternative [Position]”, noting that it is not aware of anything on the public record evidencing a shift in the City Council’s position on maintaining the urban boundary.
70The City submitted that nothing turns on the timing of the Nov 2025 Email since the MOS was clear that the Alternative Position would be addressed. It further submitted that there is nothing in the Rules or the PO that limits a Party from refining its position, and that in this case, it is simply a refinement, with no new issues proposed.
71The Tribunal considers the content and timing of the Nov 2025 Email to be probative of the City’s awareness of both the lack of clarity and the absence of any prior mention of the Alternative Position. Had the IL referenced the Alternative Position, the City would not have needed to issue the Nov 2025 Email to ensure that all experts were aware of it.
City’s ELNA process
72UWSLG noted that the City has recently commenced an ELNA to determine whether additional lands should be added to the City’s urban area for employment purposes, submitting that this is the proper process for the City to consider whether the Properties should be designated for employment should the appeals fail.
73UWSLG submitted that the City “cannot use the Appeals in furtherance of its own planning initiatives for employment lands”, for which there have been no substantive reports, technical analysis, substantive decisions, or public consultations, and for which the outcome remains uncertain.
74The City submitted that the City’s ELN process is irrelevant to the appeals and that a redesignation to employment lands can be done separately from such a process.
75The Tribunal finds that, if the UBE portion of the appeals succeed, and the redesignation to residential portion of the appeals fails, the City is able to subsequently pursue an employment designation on the Properties through the ELN process and, separate from other findings in this Decision, there is therefore no need to add such a component to the Phase 2 portion of the appeals. Further, as no public notification has been provided for the City’s Alternative Position, the most appropriate route for the City to pursue such an employment designation for the Properties in this scenario remains through the ELN process.
Caselaw
76The City submitted that the only instance in which the Tribunal should pre-emptively preclude a particular outcome before the evidence is heard, is where the outcome lies outside of the Tribunal’s jurisdiction, which is not the case in this instance. It noted that the Tribunal has the power under s. 17(50) of the Act to approve a modified OPA including the designation of uses not contemplated in the OPA application.
77The City submitted Divisional Court (“Court”) decision Maplehurst Bakeries Inc. v. Brampton (City), 1999 CanLII 19928 (ON SCDC) (“Maplehurst”) in which the Court found in the first paragraph that the Tribunal, as previously constituted, has “as a matter of general principle”, “jurisdiction to extend or expand the boundaries of an adopted official plan amendment” and “jurisdiction to approve an official plan amendment which contains modifications which would change the uses proposed in the official plan amendment”. The Court noted that “the changes involve adding residential uses when no residential uses are called for in the official plan amendment”. It cautioned, however, that “[t]hat does not mean, however, that the Board might not exceed its jurisdiction by expanding the boundaries to an unreasonable extent or by adding uses which were completely incompatible and inappropriate to other permitted uses”.
78The City argued that, by extension and without controversy over jurisdiction, the Tribunal can add in employment uses despite no employment uses being proposed in the OPA. The City noted that this would need to be determined through evidence submitted at the Phase 2 hearing, but requested that the Tribunal find the IL sufficient to allow for evidence in that regard.
79The City also submitted Tribunal decision Evergreen Environmental Inc. v. Oshawa (City) 2022 CanLII 1598 (ON LT) (“Evergreen”) in which the Tribunal found in paragraph [25] that “a change in the position of a party does not necessarily reflect improper conduct” and that a party “may re-evaluate its position in the course of a proceeding as the evidence becomes available and events transpire”.
80The Tribunal does not consider the caselaw directly applicable to the matter of the Alternative Position. In the case of Maplehurst, it is distinguishable from the Motion, as Maplehurst addressed the Tribunal’s jurisdiction, not whether the issues in that case were sufficient to permit the parties to argue for a change in land use that was not “called for in the official plan amendment”. In the case of Evergreen, the finding of the Tribunal in paragraph [25] is in reference to a party’s re-evaluation of its position in the course of a proceeding, not a reinterpretation, broadening, or clarification of the intent or wording of issues in a proceeding.
Other Submissions
81The City submitted that there are two distinct issues to be determined, each of which involves the evaluation of different criteria. First, whether the City should be precluded from presenting ELN evidence. And second, whether the City should be precluded from seeking the Alternative Position. The City cautioned the Tribunal to weigh them having regard to the mandates of the Tribunal concerning the public interest and the principle of good land use planning, as well as ensuring the best evidence is presented.
82The City submitted that, if during Phase 2 the Tribunal accepts the Appellant’s position that the Properties should be subject to a UBE, it would then be logical for the City to be able to argue for, and request that, the OPA redesignate the Properties as ‘Employment’ rather than ‘Residential’.
83The City further submitted that the only instance in which the Tribunal should “pre-emptively preclude a particular outcome before the evidence is heard, is where that outcome lies outside of the Tribunal’s jurisdiction” and that such is not the case in this matter. It noted that it is “well settled law” that the Tribunal has the power under s. 17(50) of the Act to modify, and approve as modified, an OPA including adding new uses that were not contemplated in the Application.
84The Tribunal disagrees with the City in this respect and finds that this Motion is not about the Tribunal’s jurisdiction to modify and approve an OPA by adding uses not contemplated in the Application, but rather that, given the findings herein that the issues on the IL do not sufficiently capture an intent to present ELN evidence in support of the Alternative Position, it follows that the City should be precluded from presenting ELN evidence and from seeking the Alternative Position.
SUMMARY FINDINGS
85In considering the Motion, the Tribunal has taken into consideration the written and oral submissions of both Parties, as well as Rules 1 and 10 of the Rules, and s. 12 of the Ontario Land Tribunal Act, 2021.
86The findings in this motion hearing apply to the Phase 2 hearing, and to whether, based on the IL, it is appropriate for the City to pursue the Alternative Position during that hearing, with the aim of having the Properties designated for employment rather than residential uses, should the Tribunal determine that the Properties ought to be added to the urban boundary through a UBE.
87In this respect, and further to the ‘Finding’ sections above, the Tribunal finds that individually and collectively, the issues on the IL do not capture an intent to present ELN evidence in support of the Alternative Position. Therefore, the Tribunal finds that the Motion should succeed, and the City should be prohibited from leading ELN evidence and seeking the Alternative Position at the Phase 2 hearing, as outlined in the Order clause.
Costs
88Regarding the requests for costs by both parties, 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.
ORDER
89THE TRIBUNAL ORDERS THAT the motion for direction brought by Upper West Side Landowners Group Inc. is granted, and the Tribunal directs that the City of Hamilton is prohibited from seeking an employment designation or leading Employment Land Needs evidence at the Phase 2 hearing commencing on Monday, May 11, 2026, under Tribunal lead case number OLT‑24‑000748, should the Tribunal determine that the lands subject to the Phase 2 hearing, being those lands owned by Upper West Side Landowners Group Inc., are to be brought into the urban area through an urban boundary expansion.
90The Member is not seized.
91The 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.