Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 14, 2023
CASE NO(S).: OLT-23-000811
PROCEEDING COMMENCED UNDER subsection 42(10) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 488-500 Upper Wellington Nominee Inc.
Subject: Cash-in-Lieu
Description: Protest of Fee of Parkland Contribution Cash-in-Lieu
Property Address: 488-500 Upper Wellington Street
Municipality/UT: City of Hamilton
OLT Case No.: OLT-23-000811
OLT Lead Case No.: OLT-23-000811
OLT Case Name: 488-500 Upper Wellington Nominee Inc. v Hamilton (City)
Heard: December 4, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 488-500 Upper Wellington Nominee Inc. | J. Park S. Kagan |
| City of Hamilton | P. MacDonald P. Boutis (in absentia) |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON DECEMBER 4, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the second Case Management Conference (“CMC”) regarding an appeal pursuant to section 42(10) of the Planning Act (“Act”) by 488-500 Upper Wellington Nominee Inc. (“Applicant”) against the City of Hamilton (“City”) with respect to the determination of the value of land required as payment of parkland to the City as cash-in-lieu in relation to the property located at 488-500 Upper Wellington Street (“Subject Property”).
Update
2Counsel for the Applicant advised the Tribunal that a draft Procedural Order (“PO”), including Issues List, had been submitted, on consent, for the Tribunal’s consideration, and that a three-day Hearing was being sought.
3Regarding the draft PO, the Tribunal directed that several minor errors be corrected. The Tribunal also had concerns about the inclusion of a particular paragraph in the draft PO and directed the Parties to provide a written submission, on consent, outlining the appropriateness of its inclusion in the PO for the Tribunal’s consideration.
4Subsequent to the Hearing, the Parties advised the Tribunal that the paragraph in question had been removed from the PO, on consent, and submitted a final version for the Tribunal’s review. The Tribunal approves the PO, as revised, and it shall govern the proceedings.
SCHEDULING OF FUTURE EVENTS
5The Tribunal scheduled a three-day Merit Hearing, commencing at 10 a.m. on Tuesday, March 26 and continuing until Thursday, March 28, 2024, by Video Hearing.
6Parties 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/979388733
Access code: 979-388-733
7Parties 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted above.
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.
ORDER
10The Tribunal Orders that:
a) The Procedural Order (including Issues List) included as Schedule A to this Order is approved and will govern the proceedings; and
b) A three-day Hearing of the Merits is scheduled as outlined in paragraph [5] above.
11The Member is not seized on this matter.
“S. Bobka”
S. BOBKA 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.
SCHEDULE A
CASE NO.: OLT-23-000811
PROCEEDING COMMENCED UNDER subsection 42(10) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 488-500 Upper Wellington Nominee Inc.
Subject: Cash-in-Lieu
Description: Protest of Fee of Parkland Contribution Cash-in-Lieu
Property Address: 488-500 Upper Wellington Street
Municipality/UT: City of Hamilton
OLT Case No.: OLT-23-000811
OLT Lead Case No.: OLT-23-000811
OLT Case Name: 488-500 Upper Wellington Nominee Inc. v Hamilton (City)
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 Tuesday March 26, 2024 at 10 a.m. via videoconference.
The parties’ initial estimation for the length of the hearing is 3 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 are set out in Attachment 1.
The issues are set out in the Issues List attached as Attachment 2. Except for scoping or removing issues, there will be no changes to this list unless the Tribunal permits. A party who asks for changes may have costs awarded against it.
The Tribunal’s Meaning of Terms used in the Procedural Order are attached as Attachment 3 to this Order.
The order of evidence shall be as listed 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.
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 Wednesday January 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.
All parties shall exchange all information and documents that are relevant to the disposition of the issues in this proceeding on or before Monday November 27, 2023
If any party takes the position that information or documents that are relevant to the disposition of the issues in this proceeding have not been disclosed by another party or other parties in accordance with paragraph 10 above or are not admissible, the matter shall be dealt with by way of a motion in writing. The moving party shall serve a notice of written motion on or before Tuesday, December 12, 2023 and the motion shall proceed in accordance with the timing set out in Rule 10.3 of the Tribunal’s Rules
Expert witnesses in the same field shall have a meeting on or before Thursday, January 11, 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 Friday, January 26, 2024.
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 16 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 witness 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 15 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 15 below.
On or before Friday, February 9, 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.
On or before Tuesday, February 20, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within (Fifteen (15) days) after the evidence is received, and in no event later than Monday, March 11, 2024, in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, March 15, 2024.
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 Tuesday, March 19, 2024, that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the tribunal on or before Tuesday, March 19, 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 to 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.
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.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunals’ Rule 17 applies to such requests.
This Member is not seized.
So orders the Tribunal.
SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| Wednesday, January 3, 2024 | Exchange of witness lists (names and titles) |
| Thursday, January 11, 2024 | Expert Meeting Deadline |
| Friday, January 26, 2024 | Agreed Statement of Facts |
| Friday, February 9, 2024, | Exchange of Witness Statements |
| Monday, March 11, 2024 | Exchange of Reply Witness Statements (if any) |
| Tuesday, February 20, 2024 | Advise Tribunal if all Hearing Dates Required |
| Friday, March 15, 2024 | Preparation of Joint Document Book |
| Tuesday, March 19, 2024 | Preliminary Hearing Plan filed with the Tribunal |
| Tuesday, March 26, 2024 | Hearing commences |
ATTACHMENT 1
PARTIES
Parties
- 488-500 Upper Wellington Nominee Inc.
Jason Park and Sarah R. Kagan Kagan Shastri DeMelo Winer Park LLP 250 Yonge Street, Suite 2302 P.O. Box 65 Toronto, ON M5B 2L7 Tel: 416.368.2100 Email: jpark@ksllp.ca / skagan@ksllp.ca
- City of Hamilton
Paula Boutis Legal Services Division 50 Main St E. Hamilton, Ontario, L8N 1E9 Tel: 905.546.2424 Email: paula.boutis@hamilton.ca
ATTACHMENT 2
Meaning of Terms used in the Procedural Order
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. If an unincorporated group wishes to become a party, 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 the witness’ opinions on those issues; and a list of reports 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 for the opinions and (5) a list of reports 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 agree 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
ISSUES LIST[^1]
CITY OF HAMILTON LIST OF ISSUES
- What is the applicable law for the determination of parkland dedication (or cash-in-lieu) owing by the applicant for the lands known as 488-500 Upper Wellington Street, Hamilton under the following:
a. Planning Act b. Building Code Act c. City of Hamilton parkland dedication by-laws
Was a building permit for the purposes of subsection 42(3.5) of the Planning Act issued for this project prior to November 28, 2022?
If 42(3.3) of the Planning Act applies, what is the value of the subject lands and the effective date for determining value?
ATTACHMENT 4
ORDER OF EVIDENCE
- 488-500 Upper Wellington Nominee Inc.
- City of Hamilton
- 488-500 Upper Wellington Nominee Inc. in reply
Note 1: Where two or more parties raise the same technical issue, they may co-ordinate and rely upon an independent expert upon agreement of the parties. Where, however, a single party alone raises a technical issue then that party must call technical evidence in support of that issue from a qualified independent expert.
Note 2: 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.