Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 31, 2022
CASE NO(S).: OLT-21-001158
PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act, S.O. 1997, c. 27, as amended
Appellant: Hamount Investments Ltd.
Subject: Development Charges By-law No. 2021-42
Municipality: Town of Wasaga Beach
OLT Case No.: OLT-21-001158
OLT File No.: OLT-21-001158
OLT Case Name: Hamount Investments Ltd. v. Wasaga Beach (Town)
Heard: March 16, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel
Hamount Investments Ltd.
John Alati
("Appellant")
Alex Lusty
Town of Wasaga Beach
Sarah Hahn
("Town")
Carly Emmett (Student-at-law)
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON MARCH 16, 2022 AND ORDER OF THE TRIBUNAL
1This was the first Case Management Conference (“CMC”) conducted in this Appeal brought by the Appellant pursuant to s. 14 of the Development Charges Act, 1997, in relation to Development Charge By-law No. 2021.42 enacted by Council on April 27, 2021. The Parties are ready to proceed to a hearing governed by a Procedural Order.
MEDIATION AND SETTLEMENT
2The Tribunal first inquired as to the possibility of settlement and whether the Parties would wish to consider Tribunal-led mediation. The Parties have canvassed the opportunity for mediation and anticipate ongoing discussions to possibly resolve issues as the Parties progress towards the hearing date.
PROCEDURAL ORDER
3The Parties forwarded a first draft of a Procedural Order the day before the CMC, which unfortunately did not find its way to the Panel Member in time for the CMC. A productive discussion regarding the form of the Procedural Order occurred nonetheless and Counsel were canvassed on conflict dates and scheduling preferences. With the benefit of the scheduled dates of the hearing, the Parties undertook the revision of a final draft of the Procedural Order and Issues List and submitted it to the Panel for final review.
4The Panel also discussed with Counsel the requirement for a Telephone Conference Call (“TCC”) hearing to be conducted approximately 45 days prior to the start of the hearing for the purposes of reviewing a draft hearing plan and confirming the number of days ultimately required for the hearing.
5The fixed dates for the hearing on the merits are now provided in the Procedural Order appended to this Decision and the coordinates for the hearings are set out below in this Decision.
6Appended to this Decision as Attachment 1 is the Procedural Order, which will now govern all further pre-hearing procedural requirements and the hearing of the Appeal.
7For the purposes of the pre-hearing TCC Status Hearing on Friday, September 16, 2022, the Parties are to jointly provide a brief written status report to the Tribunal on or before Monday, September 12, 2022, confirming the total number of days required for the hearing, supported by a preliminary outline of a workplan, setting out the anticipated order and schedule of witnesses, the estimated time frames for the evidence-in-chief, cross- and re-examination for all scheduled witnesses, as well as the time allotted for opening and closing submissions and any anticipated preliminary motions or matters. If a settlement is achieved, or if issues are resolved, such that the number of days allocated for the hearing can be reduced, the Parties will advise the Tribunal accordingly so that hearing dates may be released from the Tribunal’s calendar.
8If an in-person hearing is proposed on a consent basis as an alternative form of hearing, the Parties may also, in advance of the hearing or at the TCC, provide details with respect to the proposed venue including all information as may be required at that time to ensure that the in-person hearing can be conducted safely, and in compliance with all requirements of the Tribunal and all applicable Provincial and local regulations, orders or directives then in effect. The Tribunal will determine the appropriate method of hearing based upon the information provided by the Parties, and the Tribunal’s resources, but in the absence of any further direction, the hearing of the Appeal shall proceed as directed herein.
FINAL STATUS HEARING AND HEARING ON THE MERITS
TCC Status Hearing – September 16, 2022
9The TCC Status Hearing to review the draft hearing plan and address any other matters relating to the hearing, including the possibility of an in-person hearing, will commence at 9 a.m. on Friday, September 16, 2022, with the following dial-in instructions:
Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848. When prompted, enter the code 4779874# to be connected to the call.
Hearing of the Appeal – November 7 to November 18, 2022
10The nine-day video hearing of the Appeal will commence at 10 a.m. on Monday, November 7, 2022, and continue to Friday, November 18, 2022, with the Tribunal standing down on Friday, November 11, 2022, in observance of Remembrance Day.
11The Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/692665589
Access Code: 692-665-589
12For the video hearing, all Parties, witnesses or observers 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.
13Persons 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: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The access codes are as indicated above.
14Individuals are directed to connect to each of the events on the assigned dates at the correct time. It is the responsibility of the persons participating in the hearings 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.
15There will be no further notice with respect to each of the two hearing events, and the Panel Member is not seized.
16The Tribunal so orders and provides these CMC directives for the purposes of the case management of this Appeal.
"David L. Lanthier"
DAVID L. LANTHIER
VICE-CHAIR
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
CASE NO(S).: OLT-21-001158
PROCEEDING COMMENCED UNDER subsection 14 of the Development Charges Act, 1997, S.O. 1997, c. 27, as amended
Appellant: Hamount Investments Ltd.
Subject: Development Charges By-law No. 2021-42
Municipality: Town of Wasaga Beach
OLT Case No.: OLT-21-001158
OLT File No.: OLT-21-001158
OLT Case Name: Hamount Investments Ltd. v. Wasaga Beach (Town)
Procedural Order
- 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
The video hearing will begin on Monday, November 7, 2022 at 10 a.m. via videoconference at https://global.gotomeeting.com/join/692665589, access code is 692-665-589. The Tribunal will not be sitting on Friday, November 11, 2022. No further notice shall be required.
The parties’ initial estimation for the length of the hearing is 9 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.
The parties and participants identified at the case management conference are set out in Attachment 1.
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.
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.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before August 8, 2022 and in accordance with paragraph 20 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 proposed to be qualified.
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 11 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.
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 11 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 11 below.
On or before September 8, 2022 the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 20 below.
The parties shall prepare and file a preliminary hearing plan with the Tribunal September 12, 2022 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence October 7, 2022 in accordance with paragraph 20 below.
Expert witnesses in the same field shall have a meeting on or before October 13, 2022 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 October 21, 2022.
October 21, 2022 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 20 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 21, 2022.
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 November 3, 2022.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
All filings shall be submitted electronically and in hard copy with the Tribunal upon request. 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.
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.
A summary of the various procedural dates is contained in Attachment 4.
This Member is [not] seized. So orders the Tribunal.
ATTACHMENT 1
LIST OF PARTIES
- Hamount Investments Ltd.
John Alati and Alex Lusty Davies Howe LLP 425 Adelaide Street West, 10th Floor Toronto, ON M5V 3C1 johna@davieshowe.com and alexl@davieshowe.com Tel: (416) 977-7088 Fax: (416) 977-8931
- Town of Wasaga Beach
Sarah Hahn Barriston Law 151 Ferris Lane, Suite 202 Barrie, ON L4M 6C1 shahn@barristonlaw.com Tel: (705) 792-9200 Fax: (705) 792-6911
ATTACHMENT 2
ISSUES LIST
NOTE: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.
- Have development charges been calculated using a methodology that is reasonable and in compliance with the Development Charges Act with respect to the allocation of the benefit-to-existing development and post-period benefit for the following projects:
a. Veterans Way – Projects 2.1.1 and 2.1.10
b. Beach Drive – Project 2.1.5
c. Mosley Street – Projects 2.1.6 and 2.1.7
- Is the method used to calculate the development charges reasonable and in compliance with the Development Charges Act with respect to the classification of the following projects as development charge eligible and not a local service:
a. Ayling-Reid Court Trunk Watermain (Developer Driven) – Project 3.1.3
b. Lyons Court & Ayling-Reid Court Sewer (Developer Driven) – Project 4.2.1
Is the method used to account for seasonal population in the calculation of the development charges reasonable and in compliance with the Development Charges Act?
If the methodology used to calculate the development charges imposed by the By-law have not been calculated using a methodology that is reasonable and in compliance with the Development Charges Act in light of Issues 1 to 3 above, what is an appropriate alternative methodology and resulting development charges?
ATTACHMENT 3
ORDER OF EVIDENCE
Town of Wasaga Beach
Hamount Investments Ltd.
Reply by Town of Wasaga Beach (if any)
ATTACHMENT 4
SUMMARY OF PROCEDURAL DATES
Date
Hearing Event
August 8, 2022
Exchange of list of witnesses and the order in which they will be called
September 8, 2022
Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons
September 12, 2022
Parties to prepare and file preliminary hearing plan
October 7, 2022
Exchange of response evidence/statements (if any)
October 13, 2022
Meeting of expert witnesses in the same field
October 21, 2022
Filing of agreed statement of facts
October 21, 2022
Completion of joint document book
October 21, 2022
Exchange of visual evidence (if any)
October 31, 2022
Notification to Tribunal and parties if witness not providing oral evidence
November 3, 2022
Parties to upload cross examination materials
November 7, 2022
Hearing begins