Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 06, 2023 CASE NO(S).: OLT-22-004746

PROCEEDING COMMENCED UNDER subsection 42(4.9) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant: Niagara Home Builders’ Association Subject: Passing of Parkland Dedication By-law No. 2022-149 Property Location/Description: Entire Municipality Municipality: City of Welland OLT Case No.: OLT-22-004746 OLT Lead Case No.: OLT-22-004746 OLT Case Name: Niagara Home Builders’ Association v. Welland (City)

Heard: October 27, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Niagara Home Builders’ Association	Jennifer Meader
City of Welland	Brendan O’Callaghan

MEMORANDUM OF ORAL DECISION DELIVERED BY J. INNIS AND DAVID BROWN ON OCTOBER 27, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a second Case Management Conference (“CMC”) in respect of an appeal filed by Niagara Home Builders’ Association (“Appellant”) pursuant to s. 42 (4.9) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) against the decision of the City of Welland (“City”) Council for its passing of Parkland Dedication By-law No. 2022-149

CASE MANAGEMENT

2The Parties advised the Tribunal that discussions have not resulted in a settlement of the matter and requested that the Tribunal schedule a hearing to consider the merits of the Appeal. The Tribunal was advised that each Party intends to call two witnesses and that the Parties anticipate that five days will be required to conduct the hearing.

3The Parties expressed an openness to continue discussions and further confirmed that they will keep the Tribunal apprised of any developments with their resolution efforts, which the Tribunal finds satisfactory.

Procedural Order and Issues List

4The Tribunal was in receipt of a draft Procedural Order (“PO”) and Issues List (“IL”). The Tribunal reviewed the IL and requested clarification on Issues #2, #4, and #5.

5Mr. O’Callaghan advised that Issue #2, where it references the Act, refers to those matters of provincial interest as set out in s. 2 of the Act. With respect to Issue #4, Mr. O’Callaghan submitted that the issue may be redundant as By-law No. 2022-149, notwithstanding the Appeal, is in force and effect.

6Ms. Meader clarified that Issue #5 on the IL, when it references Bill 23, is intended to address the alternative rates and the charges “cap” provisions. She proposed to revise the wording of the issue to clearly reflect the specific components of Bill 23 that apply to this matter.

7The Parties were directed to revise Issues #2 and #5 to provide the clarification sought, to strike Issue #4 from the IL and to provide the revised IL in the final PO for the Tribunal’s consideration.

8The Tribunal was provided with a final version of the PO and finds it acceptable. The PO attached as Attachment 1 to this Order shall be in force for governing the proceedings leading up to and including the hearing.

Hearing

9The Tribunal scheduled a five-day hearing commencing on Monday, July 22, 2024, at 10 a.m. by video hearing.

10Parties 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.

GoTo Meeting: https://global.gotomeeting.com/join/914098901

Access code: 914-098-901

11Parties 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

12Persons 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 code is as indicated above.

13Individuals 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

14THE TRIBUNAL ORDERS THAT a five-day hearing of the merits of the Appeal shall commence on Monday, July 22, 2024, at 10 a.m. by video as set out in paragraphs [10] through [13] of this Decision.

15AND THE TRIBUNAL ORDERS THAT the Procedural Order appended as Attachment 1 to this Order shall govern the proceedings leading up to an including the hearing.

“J. Innis”

J. Innis MEMBER

“David Brown”

David Brown 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

ISSUE DATE: CASE NO: OLT-22-004746

PROCEEDING COMMENCED UNDER subsection 42(4.9) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant: Niagara Home Builders’ Association Subject: Passing of Parkland Dedication By-law No. 2022-149 Property Address/Description: Entire Municipality Municipality: City of Welland OLT Case No.: OLT-22-004746 OLT Lead Case No.: OLT-22-004746 OLT Case Name: Niagara Home Builders’ Association v. Welland (City)

PROCEDURAL ORDER

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 July 22, 2024 at 10:00 a.m.

GoTo Meeting: https://global.gotomeeting.com/join/914098901

Access code: 914-098-901

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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

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 May 3, 2024, 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 May 13, 2024, 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 May 17, 2024.

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 May 24, 2024, 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 May 24, 2024, 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 June 17, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before July 5, 2024, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before June 17, 2024, and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 12, 2024.

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 July 15, 2024 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 Panel is not seized.

So orders the Tribunal.

Summary of Dates

DATE	EVENT
May 3, 2024	Exchange of witness lists (names, disciplines and order to be called)
May 17, 2024	Agreed Statement of Facts
May 24, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
June 17, 2024	Exchange of Reply Witness Statements (if any)
July 5, 2024	Exchange of visual evidence (if any)
July 15, 2024	Work Plan filed with the Tribunal
July 12, 2024	Finalize Joint Document Book
July 22, 2024	Hearing commences

Attachment 1

List of Parties and Participants

Parties:

City of Welland Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9 Brendan O’Callaghan Tel: 647.426.2832 Email: bocallaghan@airdberlis.com

Niagara Home Builders’ Association Turkstra Mazza Associates 15 Bold Street Hamilton, Ontario L8P 1T3 Jennifer Meader Tel: 416.605.0508 Email: jmeader@tmalaw.ca

Attachment 2

Issues List

City of Welland

1. Does Parkland Dedication By-law No. 2022-149 constitute good land use planning?
2. Is Parkland Dedication By-law No. 2022-149 consistent with the requirements of section 2 of the Planning Act and the Provincial Policy Statements?
3. Is Parkland Dedication By-law No. 2022-149 in conformity with the Growth Plan and the City’s Official Plan?

Niagara Home Builders’ Association

4. Should the Parkland Dedication By-law No. 2022-149 (the “By-law”) be amended to align with the provisions of the Planning Act as amended by Bill 23, including: (a) The alternative rate of 1 hectare of land for every 600 dwelling units, where conveyance of land is required; (b) The alternative rate of 1 hectare of land for every 1,000 dwelling units, where payment of money in lieu of land (CIL) is required; (c) Where the alternative rates apply, caps on the amount of land or CIL to a maximum of: (i) 10% of the land or value of land, for land proposed for development or redevelopment that is five hectares or less in area; and (ii) 15% of the land or value of land, for land proposed for development or redevelopment that is greater than five hectares in area; (d) Determination of the amount of land or CIL required according to: (i) The date a site plan application was made; or (ii) If site plan approval was not required, the date a zoning by-law amendment was made; or (iii) If neither site plan approval nor zoning approval was required, the date a first building permit was issued. (e) Exemptions for non-profit housing; and (f) Exemptions for second and third dwelling units on a parcel of land containing a single detached building, a semi-detached building, or a townhouse building.

5. Are the fixed rates per dwelling unit, set out in section 5.2 of the By-law, appropriate?

6. Are the alternative dedication rates, set out in section 4.2 of the By-law, appropriate?

7. Should the By-law contain separate rates for different geographical areas of the municipality?

8. Is the indexing provision, set out in section 6 of the By-law, fair, reasonable, and in accordance with the Planning Act?

Attachment 3

Order of Evidence

City of Welland’s Case in Chief Niagara Home Builders’ Association City of Welland in Reply

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.

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