Lora Bay Corporation v. Blue Mountains (Town), 2022 CanLII 32475

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 21, 2022

CASE NO(S).: OLT-22-002256 (Formerly DC190007)

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

Appellant: Lora Bay Corporation

Subject: Development Charges By-law No. 2019-17

Municipality: Town of The Blue Mountains

OLT Case No.: OLT-22-002256

Legacy Case No.: DC190007

OLT Lead Case No.: OLT-22-002256

Legacy Lead Case No.: DC190007

OLT Case Name: Lora Bay Corporation v. Blue Mountains (Town)

Heard: March 29, 2022 via video hearing

APPEARANCES:

Parties

Counsel

Lora Bay Corporation

R. Uukkivi and J. Evola

Town of the Blue Mountains

L. Longo

MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON MARCH 29, 2022 AND ORDER OF THE TRIBUNAL

1This is the third Case Management Conference (“CMC”) held respecting an appeal by Lora Bay Corporation against Development Charge By-law No. 2019-17 and is convened to receive an update from counsel as to any progress made in the resolution of this appeal.

2The parties have requested that the Tribunal: schedule a 10-day hearing, schedule a date for the hearing of motions and also schedule a further CMC via telephone conference call (“TCC”) to bring the Tribunal up to date.

3The Tribunal schedules Monday, July 4, 2022 commencing at 10 a.m. for the hearing of motions.

4The hearings are scheduled to proceed by video as follows:

5The hearing is scheduled to commence on Monday, January 30, 2023 at 10 a.m. for the hearing of this matter. 10 days have been set aside.

Monday, July 4, 2022, at 10 a.m. GoTo Meeting: https://meet.goto.com/638422541 Access code: 638-422-541 Audio-only telephone line: +1 (647) 497-9373 Audio-only access code: 638-422-541

Monday, January 30, 2023 at 10 a.m. for 10 days. GoTo Meeting: https://meet.goto.com/687587165 Access code: 687-587-165 Audio-only line: +1 (647) 497-9373 Audio-only access code: 687-587-165

6Parties and participants 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.

7Parties 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

8Persons 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.

9Individuals 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 event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

10A Case Management Conference has been scheduled to proceed by telephone conference call on Friday, October 7, 2022 at 9 a.m.

11Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code #4779874 to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case

12The parties are directed to advise the Tribunal as soon as possible prior to any of these hearing events if any of the dates set out above are not necessary.

13The proceeding will be governed by Attachment “1” hereto.

14There will not be any further notice.

15It is so ordered.

“R.G.M. Makuch”

R.G.M. MAKUCH

VICE-CHAIR

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”

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll Free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunal ontarien de l’aménagement du territoire 655 rue Bay, suite 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web: olt.gov.on.ca

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

Appellant: Lora Bay Corporation

Subject: Development Charges By-law No. 2019-17

Municipality: Town of The Blue Mountains

OLT Case No.: DC190007

OLT File No.: DC190007

Case name: Lora Bay Corporation v. Blue Mountains (Town)

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 January 30, 2023 at 10:00 a.m. virtually. A further case management conference or telephone conference event will be scheduled if a party or the Tribunal wishes to convert the hearing to an in-person event.

3. The parties’ initial estimation for the length of the hearing is 10 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 3.

5. The issues are set out in the Issues List attached as ATTACHMENT 4. 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 5 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. The fourth Case Management Conference in these proceedings will take place on July 4, 2022. Any motions to be heard at the fourth Case Management Conference are to be served and filed by way of Notice of Motion on before June 17, 2022. Any Notices of Responses to Motion shall be served by June 24, 2022. Any Reply Submissions are to be submitted June 30, 2022. The Tribunal’s Rules of Practice and Procedure apply in relation to any Motion(s).

10. The fifth Case Management Conference in these proceedings is scheduled to be heard on October 7, 2022 by way of Telephone Conference Call.

11. 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 October 10, 2022 (16 weeks prior to the Hearing) 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.

12. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules of Practice and Procedure and notice of same must be served on the other Parties on or before October 24, 2022 (14 weeks prior to the Hearing).

13. Expert witnesses in the same field shall have a meeting on or before December 5, 2022 (8 weeks prior to 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 December 19, 2022 (6 weeks prior to the Hearing).

14. 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 24 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.

15. 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 paragraph 24 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 24 below.

16. On or before November 7, 2022 (12 weeks prior to the Hearing) , the parties shall provide copies of their witness and/or expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 25 below.

17. On or before November 7, 2022 (12 weeks prior to 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.

18. On or before January 16, 2023 (2 weeks prior to 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.

19. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before November 28, 2022 (9 weeks prior to the Hearing) and in accordance with paragraph 22 below.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 16, 2023 (2 weeks prior to the Hearing).

21. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.

22. 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 on or before January 23, 2023 (1 weeks prior to the Hearing) that the written evidence is not part of their record.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 9, 2023 (3 weeks prior to 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.

24. 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.

25. 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF PROCEDURAL DATES

HEARING EVENT

DATE

Deadline to file Motion Materials ahead of July 4, 2022 CMC

June 17, 2022

Deadline to file Responding Motion Materials ahead of July 4, 2022 CMC

June 24, 2022

Motion Date

July 4, 2022

Telephone Conference Call

October 7, 2022

Parties to exchange witness lists

October 10, 2022

Last date to challenge qualification of expert witnesses

October 24, 2022

Parties to exchange witness statements and expert witness statements

November 7, 2022

Parties to exchange reply witness statements and reply expert witness statements (if any)

November 28, 2022

Meeting of experts to occur prior to this date

December 5, 2022

Agreed statement of facts to be filed

December 19, 2022

Parties to file Hearing Plan

January 9, 2023

Parties to File Joint Document Book with the Tribunal Parties to file Visual Evidence

January 16, 2023

Last Day for Party to Notify Other Parties if witness will not provide oral evidence

January 23, 2023

OLT Hearing Commences

January 30, 2023 for 10 days, concluding on February 10, 2023

ATTACHMENT 2

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.

ATTACHMENT 3

PARTIES AND PARTICIPANTS

Parties

Lora Bay Corporation

Raivo Uukkivi Cassels Brock & Blackwell LLP Scotia Plaza 40 King Street West, Suite 2100 Toronto, Ontario M5H 3C2 ruukkivi@cassels.com 416-860-6613

Jennifer Evola Cassels Brock & Blackwell LLP Scotia Plaza 40 King Street West, Suite 2100 Toronto, Ontario M5H 3C2 jevola@cassels.com 416-860-6753

Town of The Blue Mountains

Leo Longo Aird & Berlis LLP Brookfield Place 181 Bay Street, Suite 1800 Toronto, Ontario M5J 2T9 llongo@airdberlis.com 416.865.7778

ATTACHMENT 4

ISSUES LIST

Notice of Passing of By-law

1. Was proper notice of passing of the By-law provided, in compliance with Section 13 of Development Charges Act and Section 10 of O. Reg. 82/98?

Determination of Development Charges

2. Does the By-law comply with the method prescribed in Section 5(1) of the Development Charges Act, regarding determination of the development charges?
3. Does the By-law meet the content and timing requirements of Sections 2 and 6-8 of the Development Charges Act?
4. Has the Town properly determined the quantity and quality of service in accordance with Section 4 of O.Reg. 82/98?

Background Study (General)

5. Did the Background Study comply with the requirements prescribed in the Development Charges Act, Sections 10-12 and in O.Reg 82/98, Section 8?
6. Has the Background Study properly calculated development charges to pay for increased capital costs required because of increased needs arising from development of the area to which the by-law applies?
7. Does the Background Study appropriately take into account historical service levels?
8. Is reliance upon Town standards appropriate in lieu, or as a measurement, of historical levels of service?

Growth Forecast

9. Has the Town of Blue Mountains 2019 Development Charges Background Study (the “2019 DCBS”) included properly forecast population and housing units?
10. Are the household size, seasonal housing and growth assumptions for build out appropriate?
11. Do the 2019 DCBS Growth Projections align with the Town and County Official Plan Projections? More specifically, do they align with the Growth Management Strategy Dated December 17, 2015 and Update Dated May 17, 2018?

Roads and Related

12. Are the quality standard costs (replacement costs) applied to roads in the determination of the Level of Service fair, reasonable, and in accordance with the Development Charges Act?
13. Has the Town justified the projects included in the Roads and Related Capital Program through a Road Needs Study or Transportation Master Plan? Specifically, are the inclusion of Road ID #s 1210, 1262, 1264, 1306, 1356, 1374, 1408, 1441, 1442, 1443, 1444, 1480, 1486, 1796, 1801, 1802, 1821, 1822, 1844, 1888,1889, 1900, 1902, 1904, 1905, 1921, 1925, 2460, 4176, 4181 and n/a (3rd line unopened), in the road and related capital program fair and justified?
14. The recommended improvements for a number of road and related projects are different than what was identified in the Town’s 2010 Road Needs Study. Projects in this category include: 10621, 1064, 1066, 1211, 1212, 1213, 1214, 1254, 1256, 1270, 1272, 1300, 1302, 1320, 1400, 1401, 1438, 1439, 1440, 1483, 1484, 1798, 1810, 1812, 1814, 1820, 1823, 1824, 1825, 1826, 1833, 1834, 1917, 1918, 1919, 1920, 1923, 1924, 1939, 1940, 1941, 1942, 1943, 1960, 1961, 1990, 1991, 1992, 2012. Is this change to the type of improvement fair and reasonable without additional justification from the Town?
15. Is the inclusion of pedestrian route and streetlight costs in the roads and relation capital program fair and reasonable if they have not been justified by a supporting road needs or transportation study?
16. Are the capital cost estimates for the Roads and Related Capital Program projects fair, reasonable, and in accordance with the Development Charges Act?
17. Is the benefit to existing (“BTE”) for the Roads and Related Capital Program projects fair, reasonable, and in accordance with the Development Charges Act?
18. Has the post period benefit (“PPB”) for the Roads and Related Capital Program projects been taken into account in accordance with the Development Charges Act?

Town-wide Services

19. Are the replacement costs assumed for library and parks and recreation, parking and solid waste included in the level of service fair, reasonable, and in accordance with the Development Charges Act?
20. Are the capital cost estimates for library, parks, recreation, parking, and solid waste fair, reasonable, and in accordance with the Development Charges Act?
21. Is the allocated BTE fair, reasonable, and in accordance with the Development Charges Act for library, parks, recreation, parking, and solid waste?

Water Supply and Treatment Capital Program

22. Are the capital costs for the Town-wide and Area Specific water supply and treatment projects fair, reasonable, and in accordance with the Development Charges Act?
23. Is the BTE for the Town-wide and Area Specific water supply and treatment projects fair, reasonable, and in accordance with the Development Charges Act?
24. Has the PPB for the Town-wide and Area Specific water supply and treatment projects been taken into account in accordance with the Development Charges Act?

Sewage Treatment Capital Program

25. Are the capital costs for the Town-wide and Area Specific sewage treatment projects fair, reasonable, and in accordance with the Development Charges Act?
26. Is the BTE for the Town-wide and Area Specific sewage treatment projects fair, reasonable, and in accordance with the Development Charges Act?
27. Has the PPB for the Town-wide and Area Specific sewage treatment projects been taken into account in accordance with the Development Charges Act?

Asset Management Plan

28. Does the By-law comply with the requirements prescribed in the Development Charges Act, Section 10(2)(c.2) and (3) as it relates to an asset management plan?
29. The Town’s 2014 Asset Management Plan identifies a replacement value for roads and related at $160.9 million. Why is this estimate vastly different from the $394.2 million identified in the 2019 Development Charges Background Study?

ATTACHMENT 5

ORDER OF EVIDENCE

1. Lora Bay Corporation

2. Town of The Blue Mountains

3. Reply of Lora Bay Corporation (if any)