Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 15, 2026

CASE NO(S).: OLT-21-001788

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Ontari Holdings Ltd.

Subject: Proposed Plan of Subdivision - Failure of the City of Hamilton to make a decision

Purpose: To develop a prestige business park

Property Address/Description: 140 Garner Road East

Municipality: City of Hamilton

Municipal File No.: 25T-201806

OLT Lead Case No.: OLT-21-001788

OLT Case No.: OLT-21-001788

OLT Case Name: Ontari Holdings Ltd. v. Hamilton (City)

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: Ontari Holdings Ltd.

Respondent: Hamilton Conservation Authority

Subject: Appeal of refusal to grant permission for development

Property Address: 140 Garner Road East

Municipality: City of Hamilton

OLT Case No.: OLT 21-001567

OLT Case Name: Ontari Holdings Ltd. v. Hamilton Conservation Authority

Heard: February 27, 2026 by Video Hearing

APPEARANCES:

Parties	Counsel
Ontari Holdings Ltd. (“Appellant”)	Patrick J. Harrington Meaghan Barrett
City of Hamilton (“City”)	Patrick MacDonald Brian Duxbury

MEMORANDUM OF ORAL DECISION DELIVERED BY A. SAUVE ON FEBRUARY 27, 2026 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Settlement Hearing was convened at the request of the Parties concerning an appeal brought by the Appellant under s. 51(34) if the Planning Act. The application being appealed concerns the proposed development of a business park in the City. The Parties are seeking a final Order approving the Draft Plan of Subdivision and related conditions.

2The subject lands are located on the south side of Garner Road East, east of Fiddler’s Green Road, west of Highway No. 6, and northwest of the John C. Munroe International Airport (“subject lands”). The subject lands comprise approximately 35.27 hectares (“ha”) and are within the Airport Employment Growth District (“AEGD”) Secondary Plan area.

3The subject lands are designated and zoned for industrial uses, though they are currently occupied by agricultural fields, woodlots, and a 1.8 ha area that has been identified as an unevaluated wetland. There is a significant woodland located at the southeast corner of the subject lands, adjacent to the wetland feature.

4The proposed Draft Plan of Subdivision contemplates the creation of 18 blocks to facilitate the future development of an industrial subdivision, a stormwater management pond, and a public road. Blocks are also included on the Draft Plan of Subdivision for the existing natural heritage features on site. The specific blocks of subdivision proposed include:

a) Two (2) Development blocks to accommodate the future industrial subdivision;

b) One (1) Stormwater Management block to accommodate the proposed stormwater management pond;

c) One (1) Servicing Easement block to be registered as an easement as part of the Draft Plan of Subdivision;

d) Three (3) Road Widening blocks to be dedicated to the City for expansion of the Garner Road right-of-way;

e) Two (2) blocks in conjunction with ‘Street A’ which are to be dedicated to the City for use as a temporary cul-de-sac and future right-of-way extension of Street A;

f) Two (2) Woodland blocks to be dedicated to the City for the continued conservation of the existing woodlands on site and their respective vegetative protection zones;

g) One (1) Wetland block to be dedicated to the City for the continued conservation of the wetland to be enhanced and partially relocated on site and its respective vegetative protection zone;

h) Five (5) Open Space blocks dedicated to the City for the continued conservation of the existing natural areas on site and to provide natural heritage linkages; and,

i) One (1) Linkage block to provide a natural heritage linkage along the southern property line connecting the southwesterly woodland with the southeasterly woodland.

5A previous owner of the subject lands applied for draft plan approval to implement the industrial uses permitted on the site in 2018.

6The Appellant and current owner proposed a revised draft plan proposal for the subject lands in 2021 and filed a request with the Hamilton Conservation Authority (“HCA”) for a permit to relocate and enhance the existing wetland on the property.

7In June 2021, the HCA Board of Directors refused the permit. The Appellant appealed this decision to the Tribunal. In December 2021, the Appellant also appealed Council’s failure to render a decision on its draft plan application to the Tribunal. These matters were consolidated and set down for a 15-day hearing, scheduled to commence in October 2023.

8The October 2023 hearing was adjourned at the Appellant’s request, to allow for additional monitoring and study in support of the proposed wetland relocation. Between 2023 and 2025, the Appellant’s consultant team engaged in further research and participated in a series of without prejudice discussions with representatives of the City. This further study and additional discussions led to further revisions to the proposed development, resulting in a settlement which is reflected in the Draft Plan (see Attachment 1 to this Decision) and related conditions (see Attachment 2 to this Decision).

9Following amendments to the Conservation Authorities Act, the Appellant withdrew its HCA permit appeal.

STATUS REQUESTS

10The Tribunal did not receive any Party status requests.

11The Tribunal had previously granted Participant status to 27 people. The Tribunal received a further 31 Participant status requests prior to this hearing. Two of those requests, from Linda Nelles and Debarah Boyd, were blank and rejected. The remaining requests were granted. The following are new Participants to this appeal:

1. Dr. Sally McKay
2. Catherine Thomas
3. Paul deGroot
4. Sarah Bradbury
5. Lindsay Dandridge
6. Lindsay Potts
7. Heather Bancroft
8. Ellen Wall
9. Doreen Stermann
10. Miriam Sager
11. Mike Gill
12. Jessie Chang
13. Jen Rogers
14. Ontario Nature (Sarah Hasenack)
15. Caroline Hill Smith
16. Jaime MacLean
17. Victoria Koch
18. Trish Vanson
19. Melanie Bonanno
20. John David Moffatt
21. Hamilton Naturalists’ Club (Jen Baker)
22. Sue Yarwood
23. Matthew Walker
24. Susan and Hub Kennedy
25. Judith Green
26. Dorothy McIntosh
27. Julie Palmese
28. Six Nations of the Grand River Elected Council (SNGREC) – Emmett Vanson
29. Brittany N. Zigmond

EVIDENCE

12The following were made exhibits at this Hearing:

1. Affidavit of Service of Meaghan Barrett sworn February 25, 2026
2. Settlement Motion Record

13The Parties presented two witnesses in support of their settlement agreement who both provided evidence by way of Affidavit and viva voce:

1. Matt Johnston – A professional land use planner whom the Tribunal qualified to provide expert opinion evidence in the field of Land Use Planning.
2. Ken Glasbergen – A senior ecologist whom the Tribunal qualified to provide expert opinion evidence in the field of Ecology.

14The witnesses informed the Tribunal that the Draft Plan and Draft Conditions:

• implement the existing Airport Prestige Business (M11) Zone and Airport Prestige Business land use designation on the subject lands;
• protect and enhance the natural heritage features on the subject lands and their functions by providing appropriate buffers and connections, resulting in a net ecological benefit for the natural heritage system;
• increase the size of the wetland, which will increase from an area of 1.8 ha to 2.8 ha;
• allow for the enhancement and partial relocation of the expanded wetland; and
• provide for development that implements the eco-industrial vision in the AEGD Secondary Plan.

15Mr. Johnston led the Tribunal through criteria under s. 51(24) of the Planning Act and proffered that the proposed development has regard to “the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality” and to the criteria listed in clauses 51(24)(a) to (m).

16Mr. Johnston provided evidence that the Proposed Settlement is not premature as the required studies have been completed and demonstrate that the proposed use is appropriate and can proceed. He also testified that the Zoning By-law that applies to the subject lands includes an existing Holding Provision which requires the submission of an updated Functional Servicing Report, a Transportation Impact Study, and addresses Development Engineering comments and that this Holding Provision ensures that development cannot proceed on the subject lands until adequate servicing is available.

17Concerning the Draft Plan Conditions in Attachment 2 to this Decision, Mr. Johnston opined that they will provide for the orderly development of the municipality and that any necessary updates to required studies or additional studies to be completed will be secured through the Draft Plan Conditions and future site plan approval.

18Overall, Mr. Johnston opined that the proposed Draft Plan of Subdivision has appropriate regard for matters of provincial interest as identified in the Planning Act, is consistent with the applicable polices of the Provincial Planning Statement, 2024 (“PPS”), conforms with and implements the goals and objectives of the Urban Hamilton Official Plan (“UHOP”) and the AEGD Secondary Plan, and implements the intent of the City of Hamilton Zoning By-law No. 05-200 (“ZBL”).

19Mr. Glasbergen testified that the Settlement being proposed meets the City’s and AEGD's biodiversity, tree cover, and eco-industrial park initiatives, and that the proposal aims to increase plant and wildlife habitat diversity on the site and expand the size of the wetland and Significant Woodland.

20Mr. Glasbergen also testified that the proposed Settlement is consistent with the natural heritage policies in the PPS and conforms with the natural heritage policies of the UHOP, including the natural heritage policies in the AEGD.

21Ultimately, Mr. Glasbergen opined that the Settlement Proposal provides a development application that will result in the protection and enhancement of the property's key natural heritage features. He opined that this Settlement Proposal meets the City’s and AEGD's biodiversity, tree cover, and eco-industrial park initiatives, is consistent with the natural heritage policies in the PPS, and conforms with the natural heritage policies of the UHOP, including the natural heritage policies in the AEGD Secondary Plan.

PARTICIPANT STATEMENTS

22The Participant Statements are generally not supportive of the Application for various reasons, including as set out below, along with the Tribunal’s summary of the related uncontested evidence/submissions:

1. Concern over the removal of the wetland – The Tribunal was provided evidence that the wetland is not proposed to be removed from the property. A portion of the wetland is to be maintained in its existing location, and a portion of the wetland is proposed to be realigned. Overall, the size of the wetland will be increased by approximately 1 ha.

2. Concern for downstream flooding – The Tribunal was provided evidence that the Functional Servicing report from Odan Detech provides detailed flood modelling and that the proposed development does not pose a downstream flooding risk.

3. Concern for the loss of biodiversity of both plants and animals – The Tribunal was provided evidence that the area of the current wetland was ploughed and cropped until approximately the mid-1970s and, as a result, the wetland form is very uniform, which strongly influences its current form and function. Also, the homogeneous nature of the wetland has created conditions favourable to a limited number of plant species and provides habitat for only a limited number of wildlife species. The Tribunal was informed that the realigned wetland will be planted with a much greater diversity of plant species and will support a much more diverse wildlife habitat structure.

4. One of the Participants, Emmett Vanson on behalf of Six Nations of the Grand River Elected Council, raised that the First Nation was not consulted regarding this application. The duty to consult flows from the honour of the Crown and is constitutionalized by section 35 of the Constitution Act, 1982. Where conduct that could have an adverse impact on section 35 Aboriginal or treaty rights, the Crown has a duty to consult with the rights holding group and, where appropriate, accommodate the rights. The duty to consult can arise in relation to established treaty rights and in relation to rights not yet determined. (Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73)

However, the issues raised in the Participant Statement are generalized environmental concerns and do not raise any specific potential negative effects to their Aboriginal and Treaty Rights. As such, a consultation was not necessary for this application as the relevant test was not met.

ANALYSIS AND FINDINGS

23Having reviewed the uncontested and uncontroverted affidavit and viva voce evidence of Mr. Johnston and Mr. Glasbergen, the Tribunal finds that the revised application for the Draft Plan of Subdivision has appropriate regard for the matters of Provincial interest as identified in the Planning Act, is consistent with the applicable policies of the PPS, conforms with and implements the goals and objectives of the UHOP and the AEGD Secondary Plan, and complies with and implements the ZBL.

24The revised proposal and the proposed conditions adequately address the various planning evaluation criteria set out in the Provincial and local policy framework. Several Participant Statements were received from members of the community in relation to this application. The Participant Statements expressed common themes of ecological concerns, including the proposed treatment of the wetland and resulting hydrogeological, flooding, and other impacts to the watershed. The Tribunal finds that the concerns raised by the Participants are addressed by the proposal and the related conditions of approval.

25The Tribunal grants the appeal in part and finds the proposed Draft Plan of Subdivision and related conditions are in the public interest and represent good planning.

ORDER

26THE TRIBUNAL ORDERS THAT the appeal is allowed in part, and:

1. The draft plan of subdivision, attached as Attachment 1 to this Decision, is approved, subject to the fulfilment of the conditions set out at Attachment 2 to this Decision;

2. The 29 persons listed in paragraph [11] of this Decision are granted Participant Status.

3. The Tribunal may be spoken to in the event there are difficulties implementing this Order.

“A. Sauve”

A. SAUVE 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.

Attachment 1

Attachment 2