Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 31, 2023 CASE NO(S).: OLT-22-004519

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

Appellant: Dunpar Developments Inc. Subject: Development Charges By-law Description: New Town of Oakville Development Charges By-law Reference Number: DC BL 2022.068 Property Address: Town Wide Municipality: Town of Oakville OLT Case No.: OLT-22-004519 OLT Lead Case No.: OLT-22-004519 OLT Case Name: Dunpar Developments Inc. v. Oakville (Town)

Heard: October 24, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Dunpar Developments Inc. ("Dunpar/Appellant")	G. Mutlu, M. Nemanic (in absentia), L. Johnston (in absentia)
Town of Oakville ("Town/Oakville")	A. Biggart, N. Chandra

MEMORANDUM OF ORAL DECISION DELIVERED BY Kurtis Smith ON October 24, 2023, AND ORDER OF THE TRIBUNAL

1This was the third Case Management Conference (“CMC”) regarding Dunpar’s appeal to Oakville’s Town-Wide Development Charges By-law No. 2022.068.

2The CMC was scheduled to provide additional time for the Parties to refine the wording in the Issues List (“IL”).

3Prior to the CMC, the Tribunal received an updated Draft Procedural Order (“PO”) and IL. During the CMC, the Parties confirmed that the PO and IL was provided on consent.

4The final draft PO and IL, populated with all the dates in accordance with the hearing dates provided below, is to be delivered to the Tribunal for final review and approval on or before Tuesday, October 31, 2023.

5Subsequent to the conclusion of the CMC, the Tribunal received and reviewed the finalized PO and IL. The Tribunal finds the PO and IL are acceptable and attached the PO, including the IL, to this Order as Schedule 1.

6The Parties anticipate a five (5)-day hearing is required to fully address the issues to this appeal. The Tribunal advised that five days are available for the Hearing of the Merits in respect to this matter.

7A five-day (5) Merits Hearing will convene on Monday, April 22, 2024, by Video Hearing at 10 a.m.

8Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/979388733

Access Code: 979-388-733

Audio-Only Line: 1-888-299-1889 (Toll Free) OR +1 (647)-497-9373

9Parties 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 at: https://app.gotomeeting.com/home.html

10Persons 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 mentioned above.

11Individuals 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.

ORDER

12The Tribunal Orders its directions as set out above.

“Kurtis Smith”

KURTIS SMITH

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.

SCHEDULE 1

CASE NO(S).: OLT-22-004519

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

Appellant: Dunpar Developments Inc. Subject: Development Charges By-law Description: New Town of Oakville Development Charges By-law Reference Number: DC BL 2022.068 Property Address: Town Wide Municipality: Town of Oakville OLT Case No.: OLT-22-004519 OLT Lead Case No.: OLT-22-004519 OLT Case Name: Dunpar Developments Inc. v. Oakville (Town)

DRAFT Procedural Order

The Tribunal orders that:

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 22, 2024 at 10:00 a.m. as directed in the Tribunal's Decision and Order by video conference with the login details to be provided by the Tribunal.

3. The parties’ initial estimation for the length of the hearing is five (5) 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 procedural order deadlines are generally found in Attachment 1 to this Order.

4. The parties and participants identified at the case management conference are set out in Attachment 2 (the meaning of these terms is set out in Attachment 5).

5. The issues are set out in the Issues List attached as Attachment 3. 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 4 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 January 12, 2024 (at least 100 calendar days prior to the start of 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.

10. Expert witnesses in the same field shall have a meeting on or before February 7, 2024 (at least 75 calendar days prior to the start of 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 February 22, 2024 (at least 60 calendar days prior to the start of 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 March 8, 2024 (at least 45 calendar days prior to the start of 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 March 8, 2024 (at least 45 calendar days prior to the start of 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. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence no later than March 22, 2024 (at least 30 calendar days prior to the start of the hearing).

16. Any party who intends to challenge the relevance of any of the evidence filed by any other party shall, within 14 days of the witness statements being filed in accordance with paragraph 13, notify the other parties and request a motion date from the OLT case-coordinator.

17. On or before April 8, 2024 (at least 14 calendar days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before April 8, 2024 (at least 14 calendar days prior to the start of 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. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 15, 2024 (at least 7 calendar days prior to the start of the hearing).

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 15, 2024 (at least 7 calendar days prior to the start of 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.

23. 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.

24. 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

SUMMARY OF KEY DATES

Number of Calendar Days Prior to the Start of the Hearing	Hearing Event
At least 100 days before	Exchange of List of Witnesses and the order in which they will be called
At least 75 days before	Expert Witness Meeting
At least 60 days before	Filing of Statement(s) of Agreed Facts and Issues
At least 45 days before	Exchange of Witness Statements
At least 45 days before	Delivery of Participant Statements
At least 30 days before	Exchange of Reply Evidence/Statements
At least 14 days before	Exchange of Visual Evidence
At least 14 days before	Confirmation to Tribunal if all reserved hearing dates are still required
At least 7 days before	Filing of Joint Document Book
At least 7 days before	Filing of Hearing Plan
At least 7 days before	Notification to Tribunal and Parties if witness not to provide oral evidence
April 22, 2024 – April 26, 2024	Hearing

Attachment 2

PARTIES AND PARTICIPANTS

PARTIES

TOWN OF OAKVILLE Nadia Chandra (LSO #46824J) T: 905 845 6601, ext. 3912 E: nadia.chandra@oakville.ca

Andrew Biggart (LSO# 38966F) T: 416 622 6601 E: abiggart@ritchieketcheson.com

DUNPAR DEVELOPMENTS INC. Luke Johnston (LSO# 68457J) T: 416.236.9800, ext. 256 E: l.johnston@dunpar.ca

Michael Nemanic (LSO# 77426E) T: 416.236.9800, ext. 232 E: m.nemanic@dunpar.ca

Giouzelin Mutlu (LSO# 84107Q) T: 416.236.9800, ext. 237 E: g.mutlu@dunpar.ca

Attachment 3

DRAFT ISSUES LIST OF DUNPAR DEVELOPMENTS INC.

Capital Cost Inclusions

1. Do any of the Capital Programs include in-period development related costs that are monetary transfers to entities that are not the Town of Oakville or a local board thereof, such as Halton Region Conservation Authority. If so, are these in-period development related capital costs not being incurred on behalf of and authorized by the Town of Oakville? If yes, are these eligible capital cost inclusions per subsection 5(3) of the Development Charges Act, 1997, S.O. 1997, c. 27 (the “Development Charges Act”)?

Historical Service Level

2. Are service level indicators and quality standard costs which determine the historical service standards for the Growth Studies Capital Program included in the Development Charge Background Study. In particular:

   1. If service level indicators and quality standard costs are not included in the Development Charge Background Study, is the absence of these service level indicators and quality standard costs in accordance with subsection 5(1) the Development Charges Act and O. Reg. 82/98, including being fair and reasonable?

   2. If service level indicators and quality standard costs are included in the Development Charge Background Study, is the application of these the service level indicators and quality standard costs in accordance with subsection 5(1) the Development Charges Act and O. Reg. 82/98, including being fair and reasonable?

Post-Period Benefit

3. Has the post period benefit for projects under the following Capital Programs been calculated in accordance with the Development Charges Act and O. Reg. 82/98:

   1. Fire Protection Services;
   2. Growth Studies;
   3. Library Services;
   4. Parks and Recreation Services;
   5. Services Related to a Highway (Roads); and
   6. Transit Services.

In particular, is it in accordance with the Development Charges Act and O. Reg. 82/98, including being fair and reasonable, for the City to include capital projects with a timing identified as being “2031+” as in-period development related capital costs?

Attachment 4

ORDER OF EVIDENCE

1. Town of Oakville;
2. Dunpar Developments Inc.; and
3. Reply by Town of Oakville (if any).

Attachment 5

DEFINITIONS

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.