Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

October 12, 2021

CASE NO(S).:

DC190014

DC190015

PROCEEDING COMMENCED UNDER subsection 22(2) of the Development Charges Act, 1997, S.O. 1997, c. 27, as amended

Appellant:

Leitrim South Holdings

Subject:

Development Charge By-Law No. 2019-158

Property Address/Description:

4800 Bank Road

Municipality:

City of Ottawa

OLT Case No.:

DC190014

OLT File No.:

DC190014

OLT Case Name:

Leitrim South Holdings v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 14 of the Development Charges Act, 1997, S.O. 1997, c. 27, as amended

Appellant:

BOMA, Caivan Communities, Claridge Homes, Greater Ottawa Home Builder’s Association; and others

Subject:

Development Charge By-Law No. 2019-156

Property Address/Description:

All lands within the City of Ottawa

Municipality:

City of Ottawa

OLT Case No.:

DC190015

OLT File No.:

DC190015

OLT Case Name:

BOMA v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 14 of the Development Charges Act, 1997, S.O. 1997, c. 27, as amended

Appellant:

BOMA, Caivan Communities, Claridge Homes, Greater Ottawa Home Builder’s Association; and others

Subject:

Development Charge By-Law No. 2019-158

Property Address/Description:

All lands within the City of Ottawa

Municipality:

City of Ottawa

OLT Case No.:

DC190015

OLT File No.:

DC190016

PROCEEDING COMMENCED UNDER subsection 14 of the Development Charges Act, 1997, S.O. 1997, c. 27, as amended

Appellant:

BOMA, Caivan Communities, Claridge Homes, Greater Ottawa Home Builder’s Association; and others

Subject:

Development Charge By-Law No. 2019-161

Property Address/Description:

All lands within the City of Ottawa

Municipality:

City of Ottawa

OLT Case No.:

DC190015

OLT File No.:

DC190017

PROCEEDING COMMENCED UNDER subsection 14 of the Development Charges Act, 1997, S.O. 1997, c. 27, as amended

Appellant:

BOMA, Caivan Communities, Claridge Homes, Greater Ottawa Home Builder’s Association; and others

Subject:

Development Charge By-Law No. 2019-162

Property Address/Description:

All lands within the City of Ottawa

Municipality:

City of Ottawa

OLT Case No.:

DC190015

OLT File No.:

DC190018

Heard:

September 29, 2021 by Video Hearing (“VH”)

APPEARANCES:

Parties

Counsel

City of Ottawa

T. Marc, G. Schromm, and C. Enta

Leitrim South Holdings Inc.

D. Kelly, U. Melinz, M. Brodie, P. Osterhout, T. Stanton (student-at-law)

2058280 Ontario Ltd.

R. Aburto, M. Polowin and J. Polowin

Kanata West Owners Group Inc., West Ottawa Land Holdings Ltd. and West Ottawa Holdings (2) Ltd.

D. Kelly, U. Melinz, M. Brodie, P. Osterhout, T. Stanton (student-at-law)

Greater Ottawa Home Builders Association (“GOHBA”), Fernbank Landowners and Group Inc. TCK Co-Tenancy

D. Kelly, U. Melinz, M. Brodie, P. Osterhout, and T. Stanton (student-at-law)

Richmond Village Development Corporation, Barrhaven Conservancy Development Corporation and Glenview (Kanata) Holdings Ltd. (Caivan Communities)

P. Harrington

851 Industrial Storage Limited Partnership, 851 Industrial Storage GP Corporation, 2536662 Ontario Inc., 2356346 Ontario Inc., Nicolls Island Holdings Inc. and Riocan Holdings Inc.

R. Aburto, M. Polowin and J. Polowin

Riocan Holdings (JVT) Inc.

D. Kelly, U. Melinz, M. Brodie, P. Osterhout, and T. Stanton (student-at-law)

Minto Communities Inc.

D. Kelly, U. Melinz, M. Brodie, P. Osterhout, and T. Stanton (student-at-law)

Building Owners and Managers Association (“BOMA”)

D. Kelly, U. Melinz, M. Brodie, P. Osterhout, and T. Stanton (student-at-law)

2325483 Ontario Inc. cob as Thomas Cavanagh Construction Limited

D. Kelly, U. Melinz, M. Brodie, P. Osterhout, and T. Stanton (student-at-law)

Claridge Building Corporation

D. Kelly, U. Melinz, M. Brodie, P. Osterhout, and T. Stanton (student-at-law)

Ages Drive Development Inc.

D. Kelly, U. Melinz, M. Brodie, P. Osterhout, and T. Stanton (student-at-law)

MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON SEPTEMBER 29, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal held its third Case Management Conference (“CMC”) with regard to certain appeals against the City’s Development Charges By-laws.

2In the lead up to the hearing, the Tribunal had been provided with a status update chart (Exhibit 1) concerning nine outstanding matters.

3The Tribunal heard submissions on each of those nine matters, noted the withdrawal of two matters, that six matters remained under discussion, and one matter required a hearing.

4At the CMC, the Tribunal inquired of the parties if Tribunal-led mediation would be of assistance for the six matters that remained under discussion, set a further CMC for the remaining matters for Friday, February 4, 2022 and set a 5 day hearing for the appeal concerning Chapman Mills to commence on Monday, April 4, 2022, all for the reasons set out below.

DECISION

5With regard to the Caivan appeal, concerning the Richmond Area Specific development charge for wastewater, that appeal was noted as being withdrawn.

6With regard to the GOHBA and BOMA appeals concerning the park component, that was withdrawn (Exhibit 2).

7With regard to:

a. the Monahan Stormwater matter,

b. the Transitional Matters in the Development Charge By-law,

c. the Leitrim (Area Specific Stormwater) matter,

d. the Robert Grant matter,

e. Campeau Drive matter, and

f. Roads and Related Services,

the Tribunal was advised that all these matters remain under active discussion.

8In response to the Tribunal’s inquiries with regard to Tribunal-led mediation, the Tribunal was advised that for some matters the parties were very close to resolution, and for other matters although they had no instructions, they would be open to Tribunal-led mediation.

CHAPMAN MILLS

9On the matter of Chapman Drive, the outstanding issue is the characterization of the road as being either a Major Collector or an Arterial Roadway. The Tribunal was provided with a draft Procedural Order (Exhibit 3) and the parties advised that they wished to have that matter set down for a 5 day hearing.

10The Tribunal provided direction with regard to a modest refinement of the draft Procedural Order and set a 5 day hearing by VH to commence on Monday, April 4, 2022 at 10 a.m.

Monday, April 4, 2022 at 10 a.m. (5 day hearing) GoTo Meeting: https://global.gotomeeting.com/join/379670477 Access code: 379-670-477 Audio-only telephone line: +1 (647) 497-9373 or (Toll Free): 1 888 299 1889 Audio-only access code: 379-670-477

11The Procedural Order and Issues List for this hearing is appended hereto as Attachment 1.

FOURTH CMC

12At the request of the parties, for all the remaining matters, the Tribunal set a further CMC by VH for Friday February 4, 2022 commencing at 10 am.

Friday, February 4, 2022 at 10 a.m. (1 day - CMC) GoTo Meeting: https://global.gotomeeting.com/join/853176301 Access code: 853-176-301 Audio-only telephone line: +1 (647) 497-9391 or (Toll-Free): 1 888 455 1389 Audio-only access code: 853-176-301

VIDEO HEARINGS

13Parties and participants are asked to log into the video hearings at least 15 minutes before the start of the event to test their video and audio connections.

14Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available:

https://app.gotomeeting.com/home.html

15Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line.

16Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

17There will be no further notices.

18I am not seized of the Chapman Mills hearing or of the fourth CMC.

19Scheduling permitting, I may be available for case management purposes.

20This is the Order of the Tribunal.

“Blair S. Taylor”

blair s. taylor

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

CASE NO(S).: DC190015

PROCEEDING COMMENCED UNDER subsection 14 of the Development Charges Act, 1997, S.O. 1997, c. 27, as amended

Appellant:

Minto Communities Inc., Caivan Communities,

Subject:

Development Charge By-Law No. 2019-156

Property Address/Description

All lands within the City of Ottawa

Municipality

City of Ottawa

LPAT Case No.:

DC190015

LPAT File No.:

DC190015

LPAT Case Name:

BOMA v. Ottawa (City)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on April 4, 2022 at 10 a.m.at

GoTo Meeting: https://global.gotomeeting.com/join/379670477

3. The parties’ initial estimation for the length of the hearing is five days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before 80 days and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before 21 days before the hearing and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before 15 days before the hearing.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before 60 days before the hearing, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before 60 days before the hearing, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before 14 days before the hearing, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within twenty-one (21) days after the evidence is received and in accordance with paragraph 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before 14 days before the hearing.

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before seven days before the hearing.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before 65 days before the hearing with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES

1. Caivan Communities
2. Minto Communities Inc.
3. City of Ottawa

ATTACHMENT 2

LIST OF ISSUES

1. What is the planned function of Chapman Mills Drive according to the official plan, environmental assessment and other planning and transportation documents? Is its planned function as an arterial or major collector road?
2. Does Chapman Mills Drive serve a local or city-wide function?
3. Is Chapman Mills Drive a local service or development charge eligible according to the development charge background study?
4. If Chapman Mills is properly classified as an Arterial Roadway, what is the resulting effect on the 2019 DC By-law?
5. Does the Tribunal have the jurisdiction to revise the status of Chapman Mills Drive given:
   1. Its designation in the Official Plan
   2. The effect that such would have on the amount of the Development Charge.

ATTACHMENT 3

ORDER OF EVIDENCE

1. Minto Communities Inc and Caivan Communities (Joint case)

2. City of Ottawa

3. Reply by Minto Communities Inc. and Caivan Communities

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.