Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 12, 2023

CASE NO(S).: OLT-22-004657, OLT-22-004386

PROCEEDING COMMENCED UNDER section 37(17) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellants: See Schedule 1, See Schedule 2

Subject: Community Benefits Charge By-law

Description: New City of Toronto Community Benefits Charge By-law

Reference Number: BL 1139-2022

Property Address: City Wide

Municipality: City of Toronto

OLT Case No: OLT-22-004657

OLT Lead Case No: OLT-22-004657

OLT Case Name: Dunpar Developments Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: See Schedule 1

Request for: Motion for Directions

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: See Schedule 1 and Schedule 2

Request for: Motion for Directions

Schedule 1

Appeal No.	Appellant Name	Representative
1	Dunpar Developments Inc.	Luke Johnston and Michael Nemanic

Schedule 2

Appeal No.	Appellant Name	Representative
1	Freed Developments Ltd.	Andrew Jeanrie
2	Fengate Capital Management Ltd.	Andrew Jeanrie
3	Mattamy Urban Neighbourhoods Inc.	Andrew Jeanrie
4	Oxford Properties Group Inc.	Andrew Jeanrie
5	Westerkirk Capital Inc.	Andrew Jeanrie

PROCEEDING COMMENCED UNDER section 37(17) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Camrost-Felcorp Inc.

Appellant: Sheridan Retail Inc (Dunpar Homes)

Appellant: Mississauga I GP Inc., Mississauga II GP Inc., Mississauga IIII GP Inc.

Subject: Community Benefits Charge By-law

Description: New City of Mississauga Community Benefits Charge By-law

Reference Number: CBC BL 0134-2022

Property Address: City Wide

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-22-004386

OLT Lead Case No: OLT-22-004386

OLT Case Name: Camrost-Felcorp Inc. v. Mississauga (City)

PROCEEDING COMMENCED UNDER section 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, and the Tribunal’s Rules of Practice and Procedure

Request by: Sheridan Retail Inc. (Dunpar Homes)

Request for: Motion for Directions

Heard: September 13, 2023, by Video Hearing

APPEARANCES:

Parties	Counsel/Representative
City of Toronto	A. Moscovich, N. Muscat
City or Mississauga	R. Kehar, L. Magi
Dunpar Developments Inc, Sheridan Retail Inc.	L. Johnston (In absentia), M. Nemanic, G. Mutlu
Freed Developments Limited	A. Jeanrie, S. Brazzell
Fengate Capital Management Limited	A. Jeanrie, S. Brazzell
Mattamy Urban Neighbourhoods Inc.	A. Jeanrie, S. Brazzell
Oxford Properties Group Inc.	A. Jeanrie, S. Brazzell
Westerkirk Capital Inc.	A. Jeanrie, S. Brazzell

DECISION DELIVERED BY BRYAN W. TUCKEY AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The Tribunal convened a Motion Hearing (“Hearing”) for the above noted matters. A total of six entities, as illustrated in the appearances, have filed an appeal against either the decision of the City of Toronto (“Toronto”) Community Benefits Charges (“CBC”) By-law No. 1139-2022 (“Toronto By-law”) and/or the City of Mississauga (“Mississauga”) CBC By-law No. 0134-2020 (“Mississauga By-law”) to adopt these By-laws pursuant to s. 37(17) of the Planning Act R.S.O. 1990, c. P13 (“Act”).

2The effect of both municipal By-law’s is to define a CBC that is payable for the capital costs of facilities, services and matters required for development and redevelopment and a definition of exemptions to the payment of all the lands within in the geographic area of the two cities. The CBC legislative requirements are set out in the amended s. 37 provisions of the Act. Toronto adopted the By-law on August 15, 2022, and Mississauga on June 22, 2022.

3A CBC represents a new funding tool enacted under the Act that permits municipalities to levy a charge against higher density development to fund associated development-related capital infrastructure requirements. The CBC provisions replace the previous s. 37 height and density bonusing provisions found within the Act. Municipalities make use of CBCs to fund capital cost of services that are related to the needs of new development if these costs are not already recovered from development charges and parkland provisions.

4At the June 7, 2023, Case Management Conference (“CMC”) for the Toronto By-law (Tribunal Case No. OLT-22-004657), the Tribunal directed that the:

1. Schedule 1 Appellant Dunpar Developments Inc. (“Dunpar”) bring a motion to demonstrate that the issues raised in their appeal, specifically the jurisdiction of the Tribunal to vary from the 4% Community Benefit Charge prescribed in the City of Toronto’s By-law No. 1139-2022, as established in Ontario Regulation 509/20 (“Regulation”), falls within the jurisdiction of the Tribunal.

2. Schedule 1 Appellant (Dunpar) and Schedule 2 Appellants bring a motion that the issues raised in their appeal, specifically the jurisdiction of the Tribunal to “add or remove, or reduce the scope of, an exemption provided in the by-law” pursuant to s. 37 (24) (b) of the Planning Act falls within the jurisdiction of the Tribunal.

5In an Order issued by the Tribunal on June 29, 2023, it was noted that Dunpar brought an appeal against the Mississauga By-law (Tribunal Case No. OLT-22-004386) in a similar fashion as it brought in the appeal against the Toronto By-law. Both appeals sought relief from the 4% quantum prescribed in the Regulation.

6The Tribunal considered the appeals with respect to the 4% quantum worthy of consolidation, given the sole Appellant, in order to ensure the most efficient, cost effective and consistent outcome. The Tribunal ordered that the appeal against the Mississauga By-law is properly consolidated with the Motion directed under OLT-22-004657, being the Schedule 1 Appeals against the Toronto By-law.

7It was brought to the attention of the Tribunal that Service between all parties was in keeping with the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”).

8The consolidated motions are what the Tribunal will be adjudicating at this Hearing.

9The following documents are before the Tribunal in respect of this Motion:

1. Motion Record of Dunpar Developments Inc.

2. Motion Record of Sheridan Retail Inc.

3. Motion Record of Freed Developments Ltd et al. (Schedule 2 Appellants)

4. Responding Motion Record City of Toronto

5. Responding Motion Record of the City of Mississauga.

6. Reply to Response to Motion of Dunpar Developments Inc/Sheridan Retail Inc.

7. Reply to Response to Motion of Freed Developments Ltd et al. (Schedule 2 Appellants)

8. Book of Authorities of Dunpar Developments Ltd.

9. Supplementary Book of Authorities of Dunpar Developments Ltd.

10. Book of Authorities of the City of Mississauga

CONSITUTIONAL QUESTION

10At the outset of the Hearing, Ms. Moscovich, counsel for Toronto, noted that in Dunpar’s Motion Record there is a question of the “constitutional validity” of both the Toronto and Mississauga By-laws, thereby bringing a constitutional question into this Hearing. Ms. Moscovich rightly noted that both the Courts of Justice Act s. 109 and the Tribunal Rules s. 11.1 require that where a party intends to raise a question with respect to constitutional validity, notice of a constitutional question shall be served and filed on all parties to the proceeding, the Attorney General of Canada and the Attorney General of Ontario. There is no evidence that this notice requirement is complied with by Dunpar.

11Mr. Kehar, Counsel for Mississauga, agreed with Ms. Moscovich’s submission in its entirety. He added that it is clear that when a party is challenging a by-law on constitutional grounds, then the Attorney General of Canada and the Attorney General of Ontario must be notified. It is then in their constitutional capacity to determine if either have a reason to be part of a proceeding in its first instance. Since neither Attorney General is properly notified, this Tribunal has no jurisdiction to make any ruling in respect of constitutional validity.

12Mr. Nemanic, Counsel for Dunpar, advised the Tribunal that his client is not asking for relief from the constitution but only that the Tribunal be aware of certain case law with respect of the constitution that in their contention should be respected. He noted that, depending on the decision of the Tribunal, Dunpar may in the future bring forward a Motion with respect to the constitutional validity of both the Toronto and Mississauga By-law. At that time, proper notice will be made.

13The Tribunal finds that the “constitutional validity” of the Toronto and Mississauga By-law is not properly before it at this proceeding and that the Tribunal has no jurisdiction to have any consideration of constitutional matters. Therefore, no argument is brought forward by Dunpar with respect of either By-laws “constitutional validity”.

MOTION 1 - Schedule 1 Appellant (“Dunpar”) bring a motion to demonstrate that the issues raised in their appeal, specifically the jurisdiction of the Tribunal to vary from the 4% CBC rate prescribed in the Toronto By-law and the Mississauga By-law as established in Ontario Reg.509/20, falls within the jurisdiction of the Tribunal.

Introduction

14The Tribunal, in its June 7, 2023, Decision, Ordered that Dunpar and Sheridan Retail Inc. (“Sheridan”) “bring a motion to demonstrate that the issues raised in their appeal, specifically the jurisdiction of the Tribunal to vary from the 4% CBC” in the Toronto By-law (OLT-22-004657). When the Tribunal learned that a similar Motion was being considered in the proceeding of the Mississauga By-law (OLT-22-004386), it was determined that it was appropriate to consolidate the two matters, in keeping with the Rules, “to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.” Such an approach will also ensure a consistent adjudication and outcome of the matter.

15Schedule 2 Appellants are barred from responding to the Dunpar’s Motion No.1.

16The Tribunal heard submissions from Dunpar, Sheridan, Mississauga, and Toronto in respect of Motion No. 1.

Legislative and Statutory Imperatives

17With regard to Motion No. 1, Party submissions made reference to the following paragraphs of the Act and the Regulation. First, the Act states:

37(9) Before passing a community benefits charge by-law under subsection (2), the municipality shall prepare a community benefits charge strategy that,

(a) identifies the facilities, services and matters that will be funded with community benefits charges; and

(b) complies with any prescribed requirements.

37(23) after the hearing, the Tribunal may,

(a) dismiss the appeal in whole or in part;

(b) order the council of the municipality to repeal or amend the by-law in accordance with the Tribunal’s order; or

(c) repeal or amend the by-law in such manner as the Tribunal may determine.

37(24) The Tribunal may not amend or order the amendment of a by-law so as to,

(a) increase the amount of a community benefits charge that will be payable in any particular case;

(b) add or remove, or reduce the scope of, an exemption provided in the by-law;

(c) change a provision for the phasing in of community benefits charges in such a way as to make a charge, or part of a charge, payable earlier; or

(d) change the date, if any, the by-law will expire 2020, c. 18, Sched. 17, s.1.

37(32) The amount of a community benefits charge payable in any particular case shall not exceed an amount equal to the prescribed percentage of the value of the land as of the valuation date, 2020, c. 18, Sched. 17, s.1.

18In respect of the Regulation the following clauses are noted in submissions.

2. A community benefits charge strategy prepared under subsection 37(9) of the Act shall,

(a) include estimates of the anticipated amount, type and location of development and redevelopment with respect to which community benefits charges will be imposed;

(b) include estimates of the increase in the need for facilities, services and matters attributable to the anticipated development and redevelopment to which the community benefits charge by-law would relate;

(c) identify the excess capacity that exists in relation to the facilities, services and matters referred to in clause (b);

(d) Include estimates of the extent to which an increase in a facility, service or matter referred to in clause (b) would benefit existing development;

(e) include estimates of the capital costs necessary to provide the facilities, services and matters referred to in clause (b); and

(f) identify any capital grants, subsidies and other contributions made to the municipality or that the council of the municipality anticipates will be made in respect of the capital costs referred to in clause (e).

3. For the purpose of subsection 37(32) of the Act, the prescribed percentage is four per cent.

Appellant’s Submissions

19Dunpar’s and Sheridan’s submissions are made by Ms. Mutlu and Mr. Nemanic (“Dunpar’s Solicitors”). It is their submission that the Tribunal “has the jurisdiction to reduce the 4% rate of the community benefits charge to be imposed on development or redevelopment as prescribed by” either Toronto’s or Mississauga’s By-law. Written submissions are found in Exhibit 1 with respect to the Toronto By-law and in Exhibit 2 with respect to the Mississauga By-law. The submissions, although in different documents, are largely the same in content and argument. The Tribunal will use both written and oral submission in the construct of this Decision.

20Dunpar’s Solicitors outlined in detail the grounds for the Motion and the various Act and Regulation clauses that are most relevant in this proceeding. Dunpar provided both cities with a draft Issues List which “request relief that would have the Tribunal jurisdiction to reduce the CBC rate from 4% to a lower amount to grant such relief.”

21Dunpar’s Solicitors made this admission that s. 37 of the Act does permit a municipality to adopt a CBC by-law to recover the cost required to fund growth related needs. The Act excludes certain prescribed forms of development or redevelopment, as provided in s. 37(4). They go on to assert that s. 37(32) is clear that any CBC charge “in any particular case shall not exceed an amount equal to the prescribed percentage of the value of the land.”

22Dunpar’s Solicitors submitted that if an appellant chooses to appeal the municipal adoption of a CBC by-law, the Tribunal must hold a hearing to resolve such an appeal. After holding a hearing, the Tribunal may dismiss the appeal, order the municipality to repeal or amend the by-law, “or repeal or amend the bylaw in such a manner as the Tribunal may determine.” It is noted that s. 8 of the Ontario Land Tribunal Act (“OLTA”) does provide the Tribunal with the jurisdiction to make orders or give directions as may be necessary or incidental to the exercise of its jurisdiction.

23Dunpar’s Solicitors noted the limitations of the Tribunal’s powers, as found in s. 37(24).

24It is stated that the Toronto By-law Article 415-49 C defines the rate imposed by the City as follows:

C. The amount of the community benefit charge payable is 4 percent of the value of the land that is the subject of the development or redevelopment on the day before the day the first building permit is issued in respect of the development or redevelopment.

25The Mississauga By-law has a similar rate definition, found in s. 7, as follows:

7. The amount of the community benefits charge is four percent (4%) of the value of the land that is the subject of development or redevelopment as of the valuation date.

26Dunpar’s Solicitors outlined what they consider to be the oft-repeated modern principles of interpretation.

27The first principle is:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with this scheme of the statute, the object of the statue and the intention of Parliament.

28The second principle of statutory interpretation relates to taxation. It is the Dunpar’s Solicitors submission that a CBC is in effect a tax, a “CBC By-law should be interpreted in favor of the taxpayer as per this settled principle of interpretation” being.

It is clear that development charges are a form of tax – see Re Ontario Cancer Treatment and Research Foundation and the Corporation of the City of Ottawa et. al., supra, at p.255. It is also true that the general rule is that taxing statues will be interpreted in favour of the taxpayer – see Johns Manville Canada Inc. v Her Majesty the Queen, (1985) 1985 CanLII 43 (SCC), 2 S.C.R. 46 at p.67.

29The final principle of statutory interpretation proffered by Dunpar’s Solicitors is that:

an interpretation of legislation that would have subordinate legislation comply with its jurisdiction limits, and not conflict with the purpose of superior Provincial or Federal legislation, including the constitution, is to be preferred:

Supplementing (the modern) approach is the presumption that Parliament intended to enact legislation in conformity with the Charter (…) if a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted.

30With this analysis of modern principles of interpretation, Dunpar’s Solicitors concluded that the underlying purpose of the Development Charges Act (“DCA”) is that “growth should pay for growth.” Judicial evidence of this principle is found in the words of the Division Court – Toronto District School Board v. Ontario, 2021 CarswellOnt 8784 which cited an earlier Supreme Court decision – Ontario Home Builders’ Association v. York Regional Board of Education, 1996 CarswellOnt 3403.

The Court’s majority reasons in Ontario Home Builders’ Association place central emphasis on the objective of requiring new growth to participate in paying for the amenities - including available and accessible public education - that give value to such development. In this sense, the objective of requiring growth to pay for itself is not just one element of the inspiration for legislation - it is the key to the constitutional validity of that legislation.

31Dunpar’s Solicitors submitted that there is similarity between the CBC and the educational development charges as found in the Divisional Court’s reasons in Toronto District School Board v. Ontario Home Builders Association. Dunpar’s Solicitors submitted that “an interpretation of section 37 of the Planning Act, the CBC Regulations, and the CBC By-law that would maintain the constitutional validity of the foregoing legislation should be preferred.”

32Mr. Nemanic asserted that s. 37(32) of the Act states that the amount of community benefits charge cannot exceed the amount prescribed in the Regulations. He also pointed out that the maximum rate prescribed by the Regulations is 4%. Therefore, he maintains that the applicable legislation provides that the maximum amount of a CBC is 4%. Although rate cannot be exceeded, nothing in these provisions provide that the CBC rate cannot be lower. It would be possible for Toronto and Mississauga to “max out” their imposition of CBCs without regard to the underlying purpose of s. 37 of the Act that growth should pay for growth and the municipalities could potentially collect CBCs to fund non-growth related capital needs. The CBC rate in the Act serve to “create a ceiling without creating a floor”.

33Mr. Nemanic relied heavily on the affidavit of Mr. Faludi (Exhibit 1, pg. 16) a professional land use planner, Land Economist, and a Certified Management Consultant, to support his argument that the CBC charge in both municipalities could be less than 4%.

34Mr. Faludi completed an economic analysis that included such topics as the amount of the charge, the calculation of the charge, development forecast and capital needs forecast. This analysis led him to make certain observations and opinions.

35The Tribunal notes that, with respect to the estimate of potential CBC revenues for the time period of 2022 – 2031, in relationship to the capital program for both Toronto and Mississauga, the following observations were made by Mr. Faludi. Toronto’s estimated capital program is $2.468 billion. Comparing this to applying the 4%, the over-estimation of capital costs would be more than $1.759 billion. Mississauga’s estimated capital program is $139.1 million. Comparing this to applying the 4%, the over-estimation of capital costs would be more than $45.5 million.

36Mr. Faludi opined that Dunpar could demonstrate that it would be fair, reasonable and in compliance with the Act for the 4% CBC prescribed in both municipal By-laws to be reduced to a lower amount. Therefore, nothing restricts “a municipality from using a rate lower than 4%, or, for that matter, from restricting the Tribunal from ordering a council of a municipality to amend the by-law to a rate lower than 4%. Dunpar would have to prove that the Capital Program Projects exceed what is required to service growth in Toronto and Mississauga.

37Mr. Faludi submits that to make an appropriate case to illustrate an over-estimation, Dunpar is required to demonstrate that neither Toronto nor Mississauga have properly followed the prescribed rules found in para. 2 of the Regulation in calculating that a CBC in the amount of 4% is required to fund the capital cost of the Capital Program Projects.

38Mr. Faludi directed the Tribunal to other municipalities that have acknowledged that the rate of a CBC can be between 0% and 4%. The language used by City of Richmond Hill and the Town of Aurora are found within his affidavit.

39Mr. Nemanic concluded that:

…read in their grammatical and ordinary sense, subsection 37(32) of the Planning Act and section 3 of the CBC Regulations collectively provide that the maximum amount of a community benefit charge is 4%, which the CBC rate is not permitted to exceed. However, nothing in these provisions provide that the CBC rate cannot be lower than 4%.

Municipal Response

40Both Toronto and Mississauga:

1. Oppose Dunpar’s motion for an order that the Tribunal has jurisdiction to vary the rate imposed or to reduce the rate imposed by their respective By-laws pursuant to s. 37(32) of the Act.

2. Request an order dismissing any portion of Dunpar’s appeal related to the 4% rate pursuant to s. 19(1)(d) of the OLTA on the basis that the Tribunal has no jurisdiction to vary the Rate imposed by the City pursuant to s.37(32) of the Act. It is submitted based on Dunpar’s issues list that all of its issues are related to the Rate with exception of issue no.2.

3. As an alternative, both municipalities request an order dismissing any portion of Dunpar’s appeal related to the Rate pursuant to s. 19(1)(c) of the OLTA on the basis that the Appeal has no reasonable prospect of success.

41Ms. Moscovich and Mr. Kehar (“Municipal Solicitors”) submitted that the Act does not permit the Tribunal to interfere with a City Council’s decision to impose the rate permitted by s. 37(32). The wording of s. 37 conveys a legislative intent that confers exclusive jurisdiction on the municipality to set the prescribed rate without interference from the Tribunal. The construct of both the Toronto By-law and Mississauga By-law are entirely consistent with the CBC scheme set out in the Act and Regulation. Both municipal By-laws set a CBC payable of 4% of the land that is subject to development or redevelopment.

42Mr. Kehar submitted that the Act does not require a municipality to set out an amount in its CBC by-law. The Act only requires that a CBC by-law be adopted in order for a municipality to impose CBCs against land. Hence, a municipality could simply pass a by-law that indicates CBCs are to be imposed within the municipality. If this were to occur, the by-law would effectively default to the legislative scheme and rules. If a municipality was to make use of such an option, the charge, rate, and the amount applied to an exception would be dictated entirely by the Act. In such a scenario, an attack on the by-law would be an attack on the legislation.

43The Toronto and Mississauga By-laws simply default to the rules in the Act. To the extent that the by-law mirrors its enabling legislation, it must be shielded from attack.

44The Municipal Solicitors noted that as “a creature of statute”, the Tribunal stands in the shoes of the municipality only with respect to spheres of jurisdiction conferred on it by the Act. To support this submission, the Tribunal learned that in the Ontario Court of Appeal decision Richmond Hill (Town) v. Elginbay Corporation, 2018 ONCA 72 it was found that the Ontario Municipal Board had no jurisdiction,

to interfere with the municipality's imposition of the “alternative parkland rate” in section 42(3) of the Planning Act because the Act did not provide a right to appeal the imposition of that rate to the Tribunal. The Court of Appeal reasoned that because the Planning Act required the Parkland rates to be imposed through the parkland by-law specifically and there was no right to appeal the parkland by-law to the Tribunal, there was a “legislative direction that the rate under s.43(3) be a matter for the municipality”.

45In the Richmond Hill (Town) v. Elginbay Corporation decision, “the Court of Appeal therefore concluded that the Tribunal had no jurisdiction to interfere with the rate chosen by the Municipality.”

46Mr. Kehar described the features of s. 37 that convey a similar legislative intent to allow municipalities to charge the prescribed rate without interference from the Tribunal.

1. CBC by-laws may be appealed to the Tribunal but s. 37 does not require municipalities to specify the rate in the CBC by-law. Therefore, a CBC by-law could simply state that CBCs are imposed in a municipality with no further detail and the municipality would still be entitled to impose 4% on an individual basis by virtue of s. 37(32). This is very different than the DCA which require municipalities to set out in their Development Charge By-laws (“DC By-laws”) as there are specific rules for determining when a development charge is payable and the amount owing.

2. S. 37 does not provide the right of appeal to the Tribunal for charges imposed on an individual basis. This means,

the Tribunal has no jurisdiction to step into the shoes of the municipality and interfere with the rate imposed for a specific development application. The only aspect of the amount that may be disputed is the land value…

The Act provides for a dispute mechanism that occurs without the involvement of the Tribunal.

3. The “Planning Act does not require municipalities to justify the rate imposed for CBCs” nor require municipalities to justify the rate by way of the Community Benefits Charge Strategy (“Strategy”). Again, this is very different than the DCA which requires municipalities to justify the development charge imposed by way of a development charges background study. There is no requirement for a municipality to amend or replace their CBC by-law at any point nor prepare an updated Strategy even if a municipality is of the opinion a revision to the by-law is appropriate.

4. “The dispute resolution process provided for by s. 37(33) to 37(41) still allows municipalities to impose the 4% rate.” Ss. (40) and (41) read as follows:

(40) if an appraisal is prepared in accordance with subsection (38)he municipality shall immediately refund to the owner the difference, if any, between the amount of the community benefits charged imposed by the municipality and the maximum amount determined in accordance with subsection (32) based on the value of the land identified in the appraisal referred to in subsection (38).

(41) for greater certainty, a refund is not required under subsection (36), (37) or (40) if the maximum amount determined in accordance with subsection (32), based on the value of the land identified in the applicable appraisal, is greater than the amount of the community benefits charge imposed by the municipality.

It is Mr. Kehar’s submission that “these subsections convey a legislative intent for the municipality to be able to charge the 4% rate in any individual case, without interference from the Tribunal.”

5. In addition, s. 37(31) states that, on an appeal of an amendment to a by-law, the powers of the Tribunal relate only to the amendment. Municipal councils are required to review the CBC by-law every five years but there is no requirement for a municipality to amend or replace the said by-law. In fact, this leaves the Tribunal without jurisdiction to vary the rate even as municipal needs change. It is Mr. Kehar’s submission that:

the Tribunal’s inability to vary the rate in accordance with changing need signifies an intention to keep the Tribunal out of municipalities' imposition of the prescribed rate. It is submitted that an interpretation that permits the Tribunal to bury the rate upon the first enactment of the by-law but not subsequently (due to the restriction in Subsection 37(31)) would render the initial ability to interfere pointless.

47Mr. Kehar submitted “that an interpretation of the Act that permits the Tribunal to interfere with the 4% rate imposed by the municipality would result in an absurdity in the legislative scheme.” He made reference to Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC) (1998) 1 SCR 27. At paragraph 27 of this Decision three relevant points are made.

1. “The legislature does not intend to produce absurd consequences.”

2. “An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is illogical or incoherent, or if it is incompatible with other provisions or the object of the legislative enactment.”

3. “An interpretation is also absurd where it defeats the purpose of the statue or render some aspect of it pointless or futile.”

48It is Mr. Kehar’s submission that, in the case before the Tribunal,

if all municipalities had to do to shield their rates from appeal was to keep the rate out of the CBC by-law, any right of appeal to the rate as part of the by-law would be pointless. Respectfully, it cannot have been the intention of the legislature that the City’s efforts to be transparent would subject the rate to Tribunal scrutiny while less transparency (leaving the rate out of the by-law) would inoculate the rate from appeal.

49In conclusion, Mr. Kehar opined that “the only reading that avoids this absurdity is that while other parts of the by-law are subject to appeal and fall within the jurisdiction of the Tribunal, there is no right of appeal on what rate to impose, whether found in the By-law or not.”

50Dunpar, in its submission, states that s. 37(23) and (24) provide the Tribunal the ability to reduce the rate to below 4%. Mr. Kehar advised the Tribunal that the modern approach to statutory interpretation is found in Rizzo & Rizzo Shoes Ltd which reads as follows:

‘today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.'

51When one applies this principle, and when read in conjunction with the entirety of s. 37, s 37(23) and (24), one can only conclude the Act does not have the effect of permitting the Tribunal to reduce the rate below 4%. The reasons provided are:

1. “The Tribunal's ability, if any, to decrease the amount charged simply ensures that the amount charged does not exceed 4% of the value of the land as prohibited by s. 37(24)”

2. “The Tribunal's inability to amend the by-law to increase the amount of CBCs owing in any particular case means that if the by-law is silent on the rate to calculate CBCs, then the Tribunal, in introducing a rate into the by-law, runs the risk of increasing that which might otherwise be charged under the by-law and a particular case, thereby contravening 37(24)(a).”

52Ms. Moscovich submits that the Act and Regulation set the amount, not the Strategy. A municipality must prepare a Strategy prior to the passage of a CBC by-law. S. 37(9) is the only subsection that refers to the Strategy and the Regulation provides additional clarity regarding what the contents of a Strategy should contain. In her estimation, Dunpar incorrectly argues that the Strategy is intended to be determinative of the CBC amount, just as the DCA background study is determinative of the amount charged under a Development Charge By-law (“DC By-law”).

53Ms. Moscovich advises the Tribunal that the DCA “is markedly different than the Planning Act in its characterization of the content and purpose of the background study as compared to the Planning Act’s approach to the CBC Strategy.” The following reasons are proffered as part of her submission.

1. The Act does not require a CDC By-law to set an amount whereas the DCA specifically requires that a DC by-law set out the amount of the charge.

2. There is no requirement for the Strategy to inform the amount of the CBC or how revenues might be spent. The DCA clearly indicates that the Background Study is intended to determine the amount of development charges to be imposed.

3. The DCA legislates the expiry of a DC by-law every ten years, which is informed by a new Background Study. The Act only requires a municipal Council to review it's CBC by-law every five years. The purpose of this review is to determine the need to revise the by-law, but there is no requirement to amend or replace the by-law nor is there a requirement to update the Strategy.

4. The municipal reporting requirements of the DCA are much more prescriptive, as the treasurer of the municipality must include in their annual statement information indicating an expectation that the collection and spending of DC revenue is in substantial alignment with the spending anticipated in the Background Study. The CBC scheme does require reporting on the allocation on the spending of CBC funds, however it does not require that the funds be spent or allocated in keeping with the Strategy.

5. The DCA does not dictate the amount of the charge through a prescribed rate. The DCA scheme has the charge being determined using a prescriptive procedure for developing the background study. The Act prescribes the amount and does not anticipate municipalities having to calculate an amount.

54The Municipal Solicitors made the submission that these comparisons illustrate a meaningful difference between the two statues. If the Legislature wanted to recreate the DCA, it easily could have done so. Instead, it did not. It is the Act and Regulation that determine the CBC amount, not the Strategy. Therefore, Dunpar’s reference to the DCA within the context of this Motion has little to no relevance.

55The Municipal Solicitors both noted that the capital programs set out in Toronto and Mississauga's Strategies demonstrate that funding needed to support growth related demand is far in excess of expected CBC revenues. Even if the Tribunal where to find it does have the jurisdiction to vary the amount contained in Toronto or Mississauga's By-laws, Dunpar must prove that Toronto over-estimated its capital program by $1.759 billion and in Mississauga over-estimated its capital program between $45.5 and $49.8 million. There is no reasonable prospect of Dunpar successfully presenting a case to discredit either City’s capital program.

56To bolster this submission, Ms. Moscovich made note of Issues submitted by Dunpar. She argued that it appears from these draft Issues submitted to Toronto (Exhibit 4 pg. 255) that it is Dunpar’s strategy, should this matter be adjudicated at a Merits Hearing, to attack all aspects of Toronto’s Strategy to ‘whittle’ down the appropriateness and need of the facilities, services and matters to prove a less costly capital program. She outlined her argument as follows:

1. Draft Issue no. 3 suggests that the Strategy underestimates projected housing growth. It is assumed, that Dunpar would argue by establishing additional growth that the cost of facility services in matters would be spread across a larger population or number of units, thereby supporting a lower rate. In fact, the capital program would incrementally increase with additional growth as with a higher population there would a need for additional facilities, services and matters with a higher associated cost to serve these populations.

2. Draft Issues nos. 7 & 8 criticize the Strategy because it has not properly reduced its capital program to reflect benefit to existing development or post-period benefit. This assertion is notwithstanding the fact that the Strategy nets out both benefit to existing and post-period benefit, even though the Act and Regulation do not require this exercise to be undertaken. The Act and the DCA vary significantly in how municipalities are to determine service levels. The Act uses a prescribed rate as the mechanism for controlling the amount of the CBC.

3. Draft Issue no. 5 seems to imply that the Strategy does not demonstrate a link between housing growth and they need for affordable housing. Such an argument would reduce the cost of the capital program by the amount of the affordable housing capital program, which is $1.275 billion. The Strategy is not required by legislation or Regulation to justify the relationship between development and the need for affordable housing or any other program.

4. In Mr. Binnings affidavit the issue of how municipalities fund the construction of affordable housing is addressed in detail. Affordable housing has traditionally been viewed by the legislature as a growth-related capital cost. Affordable housing was frequently secured by Toronto through the height and density bonusing regime of the repealed section 37 of the Planning Act. The ability to fund affordable housing through the DCA was repealed in 2022 in the More Homes Built Faster Act, 2022, S.O. 2022, C. 21. Since this is not an eligible service under the DCA, a portion of the eligible cost seem appropriately funded under the CBC. Ms. Moscovich noted in her submission that many CBC by-laws both approved by the Tribunal and in force an effect, have related approaches, including costs for affordable housing programs.

5. Draft Issue no. 6 challenges the appropriateness of including costs that will be incurred by the Toronto Waterfront Revitalization Corporation and/or the Toronto Region Conservation Authority and advocates that these costs should be removed from the capital program. There is no legislative restriction on the spending of CBCs. So, facilities services and matters that may fall under the jurisdiction of a board or agency of the City are appropriately funded.

6. Finally with respect to draft Issues nos. 9 and 10, Dunpar must establish that 4% does not represent good planning nor have regard to matters of Provincial Interest, is inconsistent with the Provincial Policy Statement (“PPS”) and does not conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). Ms. Moscovich referenced a previous Ontario Land Tribunal Decision, for case number OLT-22-004424, issued on May 24, 2023 (The Building and Land Development Association v Markham (City), 2023 CanLII 46227 (ON LT)). Ms. Moscovich submits such an argument:

would be a futile exercise given it is the same Minister that has set the prescribed amount as has issued the PPS and GP [Growth Plan]. The Minister would have considered matters of Provincial Interest in setting the amount (and in determining excluded development, for that matter).

57Ms. Moscovich noted that the Minister of Municipal Affairs and Housing has determined through the Regulation the prescribed amount of the CBC that may be imposed by a municipality “is 4% of the land subject to development.” The Legislature has determined that 4% is the appropriate rate for municipalities to be able to fund facilities, services and matters to support growth. Both the Toronto By-law and Mississauga By-law simply “reiterates the edict of the Minister.”

58Ms. Moscovich asserts that the Tribunal should afford a high degree of deference to quasi-legislative decisions of municipal councils. It is her submission that appellate bodies should apply significant deference to this type of decision, provided the decision is made within the parameters of the enabling legislation. The Supreme Court decision in Catalyst Paper Corp. v. North Cowichan (District), (2012) SCC 2, 2012 SCC 2, [2012] 1 SCR 5 with respect to a municipal taxation by-law has relevance to this matter. It reads:

The case law suggests that review of municipal bylaws must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation. Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature. Bylaws are not quasi-judicial decisions. Rather, they involve an array of social, economic, political and other non-legal considerations. “Municipal governments are democratic institutions”, per LeBel J. for the majority in Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64, (2000) 2 S.C.R. 919, at para. 33. In this context, reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable.

59The Municipal Solicitors assert that “City Council is best positioned to make decisions about its growth-related needs.” Council is informed both by the information directly before it but also by the knowledge of its constituencies, which include historical spending patterns and demand for facilities, services and matters.

60Mr. Kehar stated that he adopts all of the submissions of Toronto’s counsel as they relate to the Mississauga By-law. He also:

submitted that a finding that the Tribunal does not have jurisdiction to vary the rate would be dispositive of all of Dunpar’s appeal with exception to issue no.2. The remainder of Dunpar’s issues relies on the Tribunal’s ability to vary the rate. Should this Tribunal determine that it does not have jurisdiction to do so, the appeal on all of Dunpar’s issues, with exception to Issue no.2, cannot stand.

61Mr. Kehar spent much of his time advocating that, as an alternative, Dunpar’s appeal of the rate has no reasonable prospect of success and should be dismissed without a hearing, pursuant to s. 19(1)(c) of the OLTA, because there is no reasonable prospect that Dunpar can demonstrate that the 4% rate is too high.

62The Tribunal is advised that in Francis v. Ajax (Town) 2022 CarswellOnt 9779 at paras. 27 and 28, the Decision held that in order for a party to demonstrate a reasonable prospect of success within the meaning of s. 19(1)(c) of the OLTA, then the party must establish “the prospect of evidence that could sustain their appeal at a hearing” [Tribunal emphasis]. Mr. Kehar opined that Dunpar has failed to show the prospect of any such evidence.

63Both municipal Strategies located in the affidavits of Craig Binning clearly show the amounts required to fund capital costs created by CBC-eligible development far exceeds 4% of the value of CBC-eligible land. In order for there to be any reduction in the 4% cap, Dunpar would have to demonstrate that a reduction in the $10’s of millions in Mississauga’s case, and a reduction in excess of a $1 billion in Toronto’s case, should be excluded. Dunpar, in its submissions or supporting affidavits, has given no indication that it can provide any evidence to establish that such a reduction is achievable.

64Dunpar and its experts argued that it is “technically possible” to demonstrate a reduction in the 4% rate by reducing required projects. Unfortunately, the test is not whether the result they seek is “technically possible”; it is whether what Dunpar intends to show has a reasonable prospect of success by reference to what evidence will be presented that could sustain its appeal at the hearing. Mr. Kehar submits that “Dunpar has failed to provide any such evidence because such evidence is not possible [to] proffer.”

65Mr. Kehar submits that there is no appeal against either municipality’s Strategy nor does the legislation suggest there is such an appeal mechanism. All an appellant can do is appeal the CBC by-law, as stated in s. 37(17) of the Act. Therefore, any arguments Dunpar may proffer in respect of the Strategies is moot.

Tribunal Findings with Respect to Motion 1

66With respect to the contested Motion No. 1, the Tribunal has been asked by Dunpar to find that the Tribunal has the jurisdiction to reduce the 4% rate of the CBC to be imposed on development or redevelopment as prescribed by both the Toronto and Mississauga By-laws in accordance with the provisions of the Act and Regulation.

67The Tribunal finds that it does not have the jurisdiction to vary the rate nor reduce the rate imposed found in the Toronto and Mississauga By-laws as requested in the Dunpar Motion Record.

68Both Toronto and Mississauga have extremely well-established planning policy in respect of the requirements for a CBC which are reflected in the construct of their respective by laws. Both municipalities followed careful, complete and comprehensive planning and economic reviews completed over a number of months. The reviews follow a very transparent and iterative process that include many different stakeholders. They faithfully followed the “legislative scheme” as prescribed in s. 37 of the Act and the Regulation.

69Dunpar, in its submissions, led the Tribunal to the “oft-repeated modern principles of interpretation”. In the Tribunal’s opinion, the two principles that are most relevant in this matter are:

1. “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute” and

2. that “the CBC By-law should be interpreted in favor of the taxpayer”.

70With respect to the reading of the statute, the Tribunal is persuaded by the reading of both s. 37(32) of the Act and para. 3 of the Regulation. S. 37(32) of the Act reads:

37(32) The amount of a community benefits charge payable in any particular case shall not exceed an amount equal to the prescribed percentage of the value of the land as of the valuation date…[Tribunal emphasis]

Para. 3 of the Regulation reads:

3. For the purposes of subsection 37 (32) of the Act, the prescribed percentage is four per cent. [Tribunal emphasis]

71The Tribunal finds that when the Act and Regulation are read in their grammatical and ordinary sense, within the construct and location within s. 37 of the Act, two things are evident. First, the percentage relates to the “charge payable in any particular case” which directly apply to a development application, not to a By-law of a municipality. In the Act, subsections following s. 37(32) speak entirely to the implementation of the CBC as “…in any particular case shall not exceed an amount equal to the prescribed percentage of the value of land as of the valuation date…” rather than for the inclusion of a percentage in a municipal CBC By-law.

72Secondly, in the Regulation, “the prescribed percentage is four per cent.” The legislation does not speak to the ability a municipality to set a rate higher than 4% in any particular case, but through s. 37(33) to (44) of the Act does establish a dispute resolution process should there be a difference in the appraised value of the lands, which are the basis for the payment of the CBC. Should the conclusion of the dispute resolution process find that the charge in a particular case is less than 4%, the amount paid by a development entity would be less than 4%. Therefore, the Tribunal finds it is inappropriate to place any reliance on s. 37(32) speaking to a rate that is found in the municipal by-law but instead finds it is appropriate speaking specifically to individual development applications applied for in any given municipality.

73The second principle of statutory interpretation relied on by Dunpar is that since a CBC by-law is a tax, it should be interpreted in the favour of the taxpayer. The Tribunal finds that it is abundantly clear from the submissions that the Legislature of the Province did adopt changes to s.37 of the Act that clearly are in the favour of the taxpayer (or in this case the home buyer). The Strategies for both Toronto and Mississauga demonstrated that a full cost recovery of estimated facilities, services and matters are well in excess of the prescribed 4% found in the Regulation.

74The Tribunal finds the submissions of Dunpar that attempt to establish a similarity between the CBC and the educational development charge is not a sound argument and is therefore not relevant in this matter. If the Legislature would have preferred to enact a legislative scheme similar to the DCA then it would have done so.

75The Tribunal prefers the Municipal Solicitors submissions in respect of the relationship of the CBC and finds the legislative scheme of the DCA is very different than what is found in the Act. The Tribunal agrees that the Strategy is not determinative of the CBC in the same way that a development charges background study is determinative in the amount charged under a DC By-law.

76The Tribunal finds that the CBC legislative scheme found in the Act differs significantly from the DCA. The following are some examples.

1. A CBC does not require a CBC By-law to set a rate.

2. A CBC by-law could simply state that CBCs are imposed in a municipality with no further detail related to the rate and the municipality would still be entitled to impose a 4% rate on an individual basis by virtue of s.37(32).

3. A CBC does not provide the right of appeal to the Tribunal for charges imposed on a case-by-case basis. The Tribunal has no jurisdiction to step into the shoes of a municipality and interfere with the rate imposed for a specific development application. All that can be disputed is the value of the land and the Act provides a dispute resolution mechanism outside the involvement of the Tribunal. The legislative intent of the dispute resolution process is that no matter what is found in the municipal CBC by-law, the municipality still may be able to charge the 4% rate, if justified in an individual case, without interference from the Tribunal.

4. There is no requirement for the Strategy to inform with respect to the amount of the CBC revenues or where it is to be spent. The Act states that a municipality shall prepare a Strategy that identifies the facilities, services and matters that will be funded with CBCs. The Tribunal finds the Strategy is more descriptive than prescriptive and is intended to serve as an accountability measure that was found lacking in the previous s. 37 of the Act.

5. The CBC legislative scheme does require reporting on the allocation of the spending of CBC funds but does not require the funds to be spent or allocated strictly in keeping with the Strategy.

6. The CBC legislative scheme does not require the rate to be determined or justified using a prescriptive procedure, such as the development of a background study. It also does not anticipate municipalities having to calculate an amount. There is no requirement for a municipality to amend or replace their CBC by-law at any point or prepare an updated Strategy, even if a municipality is of the opinion a revision to the by-law is appropriate.

77The Tribunal agrees with the Municipal Solicitors that the Act does not permit the Tribunal to interfere with a City Council’s decision to impose a rate as a City Council is permitted to impose such a rate on a case-by-case basis in keeping with s. 37(32). The Tribunal should apply significant deference to the quasi-legislative decisions of municipal councils. Any review by this Tribunal of a CBC by-law must recognize “the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation”. The wording of s. 37 of the Act conveys a legislative intent that confers exclusive jurisdiction to the municipality in the setting of a prescribed rate. Both municipal by-laws are found to be faithful to and entirely consistent with the CBC legislative scheme set out in the Act and Regulation.

78The Tribunal also agrees with the Municipal Solicitors’ submission that the Act does not require a municipality to set out an amount or rate in its by-law. Therefore, a municipality could pass a by-law that stays silent on a rate, thereby defaulting to the rate found in the Regulation. If this was the outcome, an attack on the By-law is tantamount to attack on the legislation.

79The Tribunal is indeed ‘a creature of statute” hence it can only stand in the shoes of a municipality within the spheres of jurisdiction conferred on it by the Act. This finding is supported by the Ontario Court of Appeal Decision Richmond Hill (Town) v. Elginbay Corporation, 2018 ONCA 72. It is the Tribunal’s opinion that there is a clear “legislative direction” that the rate established by a By-aw is a matter for the municipality to determine. This finding is of course subject s. 37(32), where the amount of a CBC “charge payable in any particular case shall not exceed an amount equal to the prescribed percentage of the value of the land as of the valuation date” and the dispute resolution process found in the following sections of the Act.

80The Tribunal finds it is not within its jurisdiction to vary or, for that matter, impose a different rate, whether a rate is established in the municipal By-law or not. The legislative purpose is evident to this Tribunal that there is a clearly defined rate cap which a municipality must use in all matters related to the CBC. Only when a complete application is before the municipality, and the land values have been determined as defined in the Act, can an appropriate review of the appropriate rate be determined, in keeping with the dispute resolution process defined in s. 37 of the Act.

81The Tribunal agrees with the assertion of the Municipal Solicitors that the intent of the legislation is to have the municipality be as transparent as possible. That is why municipalities do not shield their rates from appeal by not including the rate in the CBC by-law. That being said, it would be an absurd and ridiculous outcome to challenge a reduction in the 4% rate in the municipal by-law when the implementation of the rate is subject to the legislation in s. 37(32) of the Act that applies to “any particular case”. An applicant may submit to a municipality a development or redevelopment on lands, but the rate is prescribed through Regulation as 4% albeit subject to the requisite dispute resolution process.

82The Tribunal finds that it is the Act and Regulation that set the rate not the Strategy. The Strategy is not intended to be determinative of the CBC rate or amount to be collected by a municipality for facilities, services and matters. S. 37 of the Act is entirely different than the DCA where the background study is determinative of the amount charged under a DC By-law.

83The Tribunal finds that there is no legislative restriction on how CBCs are established with respect to expenditures that may fall under the jurisdiction of a board or agency of the City. Therefore, it is appropriate to include costs that will be incurred by agencies such as the Toronto Waterfront Revitalization Corporation and/or the Toronto Region Conservation Authority.

84The Tribunal understands that a 4% rate found in a municipal CBC by-law was thoroughly reviewed by the Minister to ensure a 4% rate does have regard to matters of Provincial Interest in the Act, is consistent with the PPS and does conform to the Growth Plan. The Minister, in his consideration of changes to s. 37, would have taken into full consideration of all Provincial Interests and statutory documents in his final determination on a 4% rate. Both the Toronto and Mississauga By-laws simply “reiterates the edict of the Minister”.

85In conclusion, as put forth in the June 7, 2023, Decision, the Tribunal’s question has been answered in this Motion Hearing. The Tribunal does not have the jurisdiction to vary the 4% CBC prescribed rate in The Toronto and Mississauga By-law as established in the Regulation falls within the jurisdiction of the Tribunal.

MOTION NO. 2 – Schedule 1 (Dunpar) and Schedule 2 Appellants bring a motion that the issues raised in their appeals against the Toronto By-law, specifically the jurisdiction of the Tribunal to “add or remove, or reduce the scope of, an exemption provided" in the by-law” pursuant to [s. 37 (24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec37subsec24_smooth) (b) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) falls within the jurisdiction of the Tribunal.

Introduction

86The Tribunal heard submissions from Dunpar, Schedule 2 Appellants and Toronto in respect of Motion No. 2.

87All Parties agreed that the Tribunal does not have the jurisdiction to “add or remove, or reduce the scope of, an exemption provided in the by-law” pursuant to the Act, s. 37 (24)(b). The consensus on this jurisdictional issue in effect answered the foundational question asked by the Tribunal in its June 7, 2023, Decision and raised by Motion No. 2.

88The Tribunal is presented with the request from the Schedule 2 Appellants for:

an Order confirming that the Tribunal’s jurisdiction to ‘amend the by-law in such a manner as the Tribunal may determine’ pursuant to section 37(23)(c) of the Planning Act includes the power to amend the by-law in accordance with the issues raised by the Schedule 2 Appellants.

89Dunpar made a request for:

an Order that the Tribunal has the jurisdiction to exclude non-residential gross floor area from the CBC By-law’s imposition of the Charge, without conflicting with paragraph 37(24)(b) of the Planning Act, and in accordance with the Planning Act and the CBC Regulations.

90The Tribunal heard submissions from all Parties in respect of their requested relief.

Legislative and Statutory Imperatives

91With regard to Motion No. 2, all Party submissions made reference to the following paragraphs of the Act.

37(24)(b) The Tribunal may not amend or order the amendment of a by-law so as to,

(b) add or remove, or reduce the scope of, an exemption provided in the by-law;

37(23)(c) after the hearing, the Tribunal may,

(c) repeal or amend the by-law in such manner as the Tribunal may determine, 2020, c. 18 Sched. 17, s. 1

37(4) A community benefits charge may not be imposed with respect to,

(a) development of a proposed building or structure with fewer than five storey structures at or above ground;

(b) development of a proposed building or structure with fewer than 10 residential units;

(c) redevelopment of an existing building or structure that will have fewer than five storeys at or above ground after the redevelopment;

(d) redevelopment that proposes to add fewer than 10 residential units to an existing building or structure; or

(e) such types of development or redevelopment as are prescribed. 2020, c. 18, Sched. 17, s. 1.

92With regard to Motion 2, all Party submissions made reference to the paragraph 1 of the Regulation which includes a considerable list of excluded development and redevelopment.

The following are types of development or redevelopment for the purposes of clause 37 (4) (e) of the Act:

1. Development or redevelopment of a building or structure intended for use as a long-term care home within the meaning of subsection 2(1) of the Long Term Care Homes Act, 2007.

2. Development or redevelopment of a building or structure intended for use as a retirement home within the meaning of subsection 2 (1) of the Retirement Homes Act, 2010.

3. Development or redevelopment of a building or structure intended for use by any of the following post-secondary institutions for the objects of the institution:

i. A university in Ontario that receives direct, regular and ongoing operating funding from the Government of Ontario,

ii. a college or university Federated or affiliated with a university described in subparagraph i’

iii. an Indigenous Institute prescribed for the purposes of section 6 of the Indigenous Institutes Act, 2017.

4. Development or redevelopment of a building or structure intended for use as a memorial home, club house or athletic grounds by an Ontario branch of the Royal Canadian legion.

5. Development or redevelopment of a building or structure intended for use as a Hospice to provide end of life care.

6. Development or redevelopment of a building or structure intended for use as residential premises by any of the following entities:

i. a corporation with share capital to which the Corporations Act applies, that is in good standing under that Act and whose primary object is to provide housing,

ii. a corporation without share capital to which the Canada Non-for profit Corporation Act applies, that is in good standing under that Act and whose primary object is to provide housing,

iii. a non-profit housing co-operative that is in good standing under the Co-operative Corporations Act.

Appellant’s Submissions

93Mr. Jeanrie, Counsel for the Schedule 2 Appellants, stated that his clients core issue in their Appeals is that if non-residential Gross Floor Area (“GFA”) is not included as an exemption, then it:

could have unintended consequences such as creating disincentives to desirable forms of development including mixed-use projects and purpose-built rental developments and creating future confusion when it comes to the application of the CBC By-law.

94Since it is determined that the question raised by the Tribunal’s June 7, 2023, Decision has been answered, it is the submission from the Schedule 2 Appellants that there is an additional jurisdictional question to be addressed by this motion to ensure all such matters are resolved prior to setting a hearing date.

95The proposed additional question is as follows:

1. Does the Tribunal have the jurisdiction to amend the CBC By-law in order to clarify its application?

96It is Mr. Jeanrie’s submission that it is not contrary and within the legal authority of the Tribunal to clarify the Toronto By-law to ensure that non-residential GFA will not be charged under the CBC. This is not therefore a request to add an “exemption”, but a clarification of the Toronto By-law to ensure its fair and consistent application. Further, Mr. Jeanrie stated that such a clarification is consistent with Toronto's legal authority.

97It is Mr. Jeanie’s submission, that the Tribunal does have the jurisdiction to amend the Toronto By-law and to provide clarification with respect to the issues raised by Schedule 2 Appellants. This is pursuant to s. 37(23) of the Act. To this end, the Toronto By-law would be clarified by the Tribunal, “as it relates to the application of the charge against non-residential GFA in a mixed-use building”.

98To come to this conclusion, Mr. Jeanrie outlined a two-part rationale. Core to this is whether the Tribunal has the jurisdiction to make have such a clarification.

1. S. 8(2) of the OLTA is clear that the Tribunal “is empowered to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited legislatively.” OLTA s. 8(2) reads:

“The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act”.

Appeals in this proceeding are pursuant to s. 37(17) of the Act and when this is combined with the contents found in s. 37(23), then the Tribunal has very broad powers within such an appeal, which include the power to repeal or amend the Toronto By-law (save and except the “Limitations on powers”, as set out in s. 37(23)).

It is the submission of the Schedule 2 Appellants that the combination of the aforementioned powers provides the Tribunal broad authority to amend the Toronto By-law along with it's “statutory power to hear and determine all questions of law relating to matters within its jurisdiction”. The Tribunal therefore can amend the Toronto By-law so that the non-residential portion of a mixed-use development is not subject to a CBC charge.

2. Should the Tribunal be convinced that the non-residential portion of a mixed-use development is not appropriately charged under the Toronto By-law, one must ask whether the Tribunal is prepared to amend the Toronto By-law in this regard for the benefit of Toronto and those applications that will be subject to this By-law.

A second jurisdictional matter must now be addressed by this Tribunal: dose the Tribunal have the authority to amend the Toronto By-law “to provide clarification as to the application of the legislative regime”.

It is noted that it is the clear intent of s. 37(23) that the Tribunal has the power to “amend the by-law in such a manner as the Tribunal may determine.” Therefore, this Tribunal has the authority to make amendments to the Toronto By-law as it may determine as being appropriate. It is Mr. Jeanrie’s assertion that no other provisions of the Act nor s. 37(24) of the Act result in any legislative restriction on the Tribunal’s authority to amend the Toronto By-law in an effort to clarify its operation and application.

Mr. Jeanrie submitted, in keeping with case law found in his submission, that any restriction on the Tribunal’s broad power to amend the Toronto By-law “as it so determines must be construed narrowly and must take into consideration the purpose of the Planning Act.” Reference is made to s.1.1(d) of the Act “to provide for planning process is that are fair by making them open, acceptable, timely and efficient.”

Therefore, it is the submission of Schedule 2 Appellants that inserting an appropriate provision to the Toronto By-law, will facilitate the efficient application of the By-law in accordance with the statutory authority that is available to Toronto in keeping with s. 37 of the Act and is consistent with the purpose described in s. 1.1.(d).

The Schedule 2 appellants offered no suggested wording as to how such a clarification would be properly articulated within the context of the Toronto By-law.

99Dunpar’s submissions closely followed those of the Schedule 2 Appellants. In this section of the Decision, the Tribunal will not repeat these assertions but will describe previously undiscussed positions this Appellant puts forward.

100Although s.37(24)(b) may give the impression that there is a limit on the Tribunal’s jurisdiction to exclude non-residential GFA from the Toronto By-law, it is Dunpar’s position that s. 37 of the Act does not allow Toronto to include non-residential GFA in the calculation of a CBC. Therefore, Dunpar is requesting the Tribunal to determine whether non-residential mixed-use GFA is a “classification" that is within the “scope” of” the Toronto By-law. If the conclusion is that it is not, then the Tribunal should amend the Toronto By-law to be consistent with the Act and the CBC Regulations.

101The Tribunal has the authority to determine whether the Toronto By-law is drafted in a matter that is in compliance with both the requirements of the Act and the CBC Regulations. If it is not, then the Tribunal may exercise its powers under s. 8 of OLTA and correct this deficiency.

102In reply, with respect to Motion No. 2, Mr. Nemanic used most of his allocated time to submit arguments in respect of Toronto’s request that the Tribunal dismiss Dunpar’s appeal (motion to dismiss is also discussed later in this Decision). Mr. Nemanic continued to assert that both the Toronto and Mississauga By-laws are centered on the following submissions:

1. The Strategy determines the amount of the CBC charge.

2. The Act and Regulation prescribe the content of CBC By-laws; they prescribed the permissible content of a CBC By-law but do not restrict the form of the By-law.

3. The Strategy determines the capital needs attributable to development, which will include estimates of the increase in need for facilities, services and matters attributed to anticipated development and redevelopment to which the CBC By-laws “would relate”. Mr. Nemanic submits that the ordinary grammatical meaning of the phrase ”would relate” entails that there is a direct connection between the Strategies calculation of the capital needs attributable to growth and the amount of the CBC.

103Mr. Nemanic submits that the municipal assertion that Dunpar’s appeal has no reasonable prospect of success in demonstrating that the CBC charge should be reduced below 4% is not properly before the Tribunal. He submits that the Tribunal does not have the authority under s. 19 of the OLTA to dismiss an appeal in the absence of providing a notice of its intention to dismiss the preceding pursuant to ss. 19(2) per the plain language of ss. 19(4).

Dismissal

(19)(4) The Tribunal shall not dismiss a proceeding under subsection (1) until it has given notice under subsection (2) and considered any submissions made under subsection (3).

104S. 37 of the Act does not have a dismissal provision and Dunpar submits that, since the Tribunal has not provided notice to Dunpar, it has no jurisdiction to dismiss Dunpar’s appeals of the Toronto and Mississauga By-laws.

105Mr. Nemanic, through his oral submission, continues to criticize the Strategy in a manner similar to that of a DCA appeal by stating the Strategy lacks transparency and clarity as it often does not include the data, assumptions and reasoning in support of statutory-prescribed calculations and provides little information about the facilities, services and matters that the municipalities intend to fund through the CBC. Therefore, the Strategy does not allow Dunpar to accurately review whether the Strategy’s estimate, found within it, are necessary to fund the proposed capital program and are eligible costs which have been fairly and reasonably estimated.

106Dunpar submits it requires the data and assumptions underlying the Strategy’s reasoning to further refine and scope their issues. This can occur only when Dunpar receives adequate disclosure of information which is within the municipalities exclusive control and possession.

107Mr. Nemanic submits that Mr. Faludi’s affidavit satisfies his clients obligations at this preliminary juncture in respect of Dunpar’s appeals against the Toronto and Mississauga By-laws. Dunpar has appealed a range of other “growth-funding” taxation tools and is prepared to retain the necessary experts to support these appeals.

108Mr. Nemanic noted that the Tribunal’s only interests in this motion should be whether it has the jurisdiction to decide whether it has the authority to reduce the amount of the CBC charges from 4% and to exempt non-residential gross floor area from CBC charges.

109Mr. Nemanic advised the Tribunal that it has the authority to amend both the DC By-laws and the parkland by-laws to be consistent with their respective Acts.

Toronto’s Response

110Ms. Moscovich advised the Tribunal that Toronto, with respect of the Schedule 2 Appellants,

requests an order dismissing the Schedule 2 Appellants appeals pursuant to subsection 19 (1)(d) of the Ontario Land Tribunal Act, 2021 on the basis that the Tribunal has no jurisdiction to exclude non-residential gross floor area from the imposition of community benefits charges and the Schedule 2 Appellants seek no other remedy through their appeal.

111With respect of Dunpar’s Motion, Toronto: requests an order dismissing Dunpar's appeal.

i. pursuant to subsection 19(1)(d) of the Ontario Land Tribunal Act, 2021 on the basis that the Tribunal has no jurisdiction to exclude non-residential gross floor area from the imposition of community [benefit] charges.

ii. In the alternative pursuant to [the] Ontario Land Tribunal Act, 2021 subsection 19(1)(c) on the basis that Dunpar has no reasonable prospect of success on an appeal.

112Ms. Moscovich advised the Tribunal that Toronto opposes Dunpar’s and Schedule 2 Appellants motion for an order that the Tribunal has the jurisdiction to exclude non-residential gross floor area from the imposition of the CBC without conflicting with paragraph 37(24)(b) of the Act.

113Ms. Moscovich submitted that Toronto agrees with all Appellants that the Tribunal " does not have jurisdiction to add an exemption.” She went on to submit that all of the Appellants have simply tried to:

1. “reframe the question to categorize the exclusion of non-residential uses in a mixed-use building as something other than a request for an exemption” and

2. argue that the Tribunal,

does have the jurisdiction to interpret the Planning Act and that as a matter of statutory interpretation, the Tribunal should find that the Act already excludes non-residential gross floor area in mixed-use buildings from the imposition of the charge.

114Ms. Moscovich is appreciably clear in her advice to the Tribunal, that it is incumbent on all Appellants to establish, “through their motion material, that the Planning Act already includes such an exemption”. Neither Dunpar nor the Schedule 2 Appellants have put forward an argument in support of their position and therefore they have failed to establish credibility to this salient point. Toronto agrees that the Tribunal does have the jurisdiction to interpret the Act but disagrees that the Act may be read in any way to include non-residential GFA from the imposition of the charge found in the Toronto By-law. Therefore, “it follows that in fact the appellants are seeking the addition of an exemption, which the Tribunal cannot do”.

115Ms. Moscovich is of the view that the Legislature carefully considered what are appropriate exemptions, all of which are included in the Toronto by-law. Evidence of this careful consideration is found in:

1. S. 37(4) of the Act, which clearly identifies developments where the Toronto By-law may not impose a charge.

2. S. 1 of the Regulation, which prescribes other excluded uses, none of which include non-residential uses as a general category. It is noted that some Institutional uses are identified as exemptions in the legislation.

3. S. 37(32.1) of the Act, which was further amended to provide a “discount” for portions of residential buildings containing affordable units or previously existing GFA.

116It is Ms. Moscovich’s assertion that the Legislature has carefully considered what was appropriate as an exemption in the drafting of s. 37. Had the Legislature intended to exclude non-residential GFA, then it would have simply been enumerated under the list of exclusions in s.37(4) or those prescribed exclusions found in the Regulation. Also, a discount could have been added in a similar matter as the legislation treats GFA attributable to affordable housing or previously existing GFA. She argued:

Nothing in the Act suggests an exclusion for non-residential components of mixed-use buildings, and the appellants have failed to establish a case to the contrary. In the absence of any language excluding such GFA, reading in such an exclusion would equate to the adding of an exemption.

117Ms. Moscovich noted many times in her oral submissions that the Toronto By-law largely mimics the content and structure of s. 37 and the Regulations. The reason for this is to ensure that Council, in the adoption of the Toronto By-law, in no way runs afoul in it's listing or interpretation of acceptable exemptions.

118Ms. Moscovich responded to all the Appellants’ assertion that the Tribunal would benefit from hearing submissions, affidavit evidence and expert evidence to assist it in the determination of whether non residential uses should be ‘clarified’. It is Toronto’s submission that:

1. Statutory interpretation is a question of law that should be supported by only legal argument. By calling expert evidence planning opinion evidence, all the appellants intend to rely on this evidence to support their position in the addition of an exemption.

2. The Tribunal asked all the Appellants a question ahead of the motion hearing, whether it has the jurisdiction to determine that non-residential GFA should be excluded from the imposition of the charge in the Toronto By-law. The Appellant’s have only established that the Tribunal has jurisdiction to interpret the Act. Neither Dunpar nor the Schedule 2 Appellants have attempted to substantiate a position that the Act provides such an exclusion. This is because they have no basis to argue this point.

3. Dunpar and the Schedule 2 Appellants failed to address the legal issue in full. Nothing in their submissions has established that the Act can be interpreted to exempt non-residential GFA, thus making it impossible for the Tribunal to determine that the Act “provides a de facto exclusion”. “While it is accepted that the Tribunal has jurisdiction to interpret the Act, it has no foundation upon which to read in an exemption”.

4. Given that neither the Act nor the Regulation exclude non-residential GFA from the exclusion of a CBC,

the Tribunal must find that in fact what the appellants intend to pursue through their appeals is the addition of an exemption for non-residential GFA in mixed use buildings. All parties have conceded that the Tribunal is statute barredfrom such course of action.

Tribunal Findings With Respect to Motion 2

119The Tribunal concurs with all parties that the Tribunal does not have the jurisdiction to “add or remove, or reduce the scope of, an exemption provided in the by-law” pursuant to s. 37(24)(b) of the Act and, therefore, any such conclusion of this Tribunal would clearly conflict with the Act.

120It is obvious that the Legislature was fully aware of all potential exemptions in the construct and drafting of s. 37 of the Act . The list of exemptions is clear and concise in their wording and application. Nowhere in the Act or Regulation is there a mention of a blanket exemption of non-residential portions of a mixed-use buildings being included as such. Had the Legislature determined that such an exemption was appropriate, then it had ample opportunity to make such a change as provided for in their decision to add ‘discounts’ for portions of residential buildings containing affordable units or previously existing GFA.

121Toronto City Council and staff fully considered the requests of Dunpar and the Schedule 2 Appellants and made a clear policy choice not to include the non-residential portion of mixed-use developments in the Toronto By-law. This policy decision is well within the legislative authority of a local Council. Should the Council have chosen to include exemptions not specifically listed in s. 37(4) of the Act and the Regulations, then they would have made a request to the Minister to assist in an interpretation. A clarification from the Minister would have been a prudent course of action before the adoption of the Toronto By-law, should a determination that non-residential GFA were to be a listed exemption.

122The Tribunal finds that the Toronto By-law is drafted in a manner that is in clear compliance with the both the requirements of the Act and the Regulations. Therefore, the Tribunal will not exercise its powers under s. 8 of the OLTA as requested by Dunpar and the Schedule 2 Appellants to correct this deficiency.

123The Tribunal finds that the request of Dunpar and Schedule 2 Appellants, “to amend the CBC By-law in order to clarify its application”, is tantamount to adding an exemption to the list of exemptions found in s. 37(4) of the Act. Such an addition is clearly not within the jurisdiction of this Tribunal.

124The Tribunal agrees with Toronto’s assertions that:

1. The calling of expert planning opinion evidence in this matter would not support a statutory interpretation that is clearly a question of law. No planner is able to provide evidence on the thinking of the Legislature in its construct of its legislative responsibility in the drafting of s. 37.

2. Dunpar and the Schedule 2 Appellants have not provided sufficient legal submissions to convince the Tribunal that the interpretation of the Act allows it to ‘clarify’ and include such an inclusion. As mentioned earlier, such a request is tantamount to adding an exemption to the list of exemptions found in s. 37(4) of the Act. “While it is accepted that the Tribunal has jurisdiction to interpret the Planning Act, it has no foundation upon which to read in an exemption”.

3. It appears clear that Dunpar and the Schedule 2 Appellants intend to pursue through their appeals an additional exemption for non-residential GFA in mixed-use buildings.

125The Tribunal finds that there is little benefit for expert planning opinion evidence in making this decision. A planner does not have the latitude in opinion nor knowledge of the intentions of the Legislature of the Province in its drafting of s. 37 or the Regulations. They must be read as written.

126And finally, the Tribunal finds that Dunpar’s and the Schedule 2 Appellants agree that, although the Tribunal does have broad powers to interpret legislation, this power does not include the clarifying in a way that is tantamount to amending Toronto’s By-law or could, on the face of it, amend Provincial Legislation and Regulation. The Provincial legislative regime and how it is to be applied is very clear, detailed and straight forward in respect of permitted exemptions.

127In conclusion, the Tribunal’s question as put forth in its June 7, 2023, Decision has been answered in this motion hearing. The Tribunal does not have the jurisdiction to “add or remove, or reduce the scope of, an exemption provided in the by-law” pursuant to s. 37(24)(b) of the Act nor does it have the jurisdiction to clarify the Toronto By-law that is requested by Dunpar and the Schedule 2 Appellants.

MOTIONS TO DISMISS

128First, the Tribunal must deal with the motion to dismiss Dunpar’s appeals requested by both Toronto and Mississauga in respect of the foundational question of whether the Tribunal has the jurisdiction to vary the prescribed 4% rate found in the Regulation. They argue that if the Tribunal finds that it does not have the jurisdiction to vary the rate, then Dunpar does not have a valid appeal remaining.

129Mr. Kehar argues that a party must show a reasonable prospect of success in an appeal to the Tribunal and demonstrate that there are legitimate planning matters at issue. In his submission, he stated “there is no genuine land use planning matters at issue in the appeal because all legislative tests are already deemed to be satisfied. As such, it is submitted that Dunpar’s appeal of the rate has no reasonable prospect of success and should be dismissed without a hearing on the merits.

130Mr. Nemanic submitted that the motion to dismiss is not properly before the Tribunal. He made specific note of s. 19 of OLTA and Rule 10 of the Ontario Land Tribunal Rules of Practice and Procedure. It is his opinion that should the Tribunal choose to dismiss Dunpar’s appeal, it would run afoul of notice provisions as defined in the Rules. The effect of not following appropriate statutory procedure and powers “is to deny Dunpar its day in court”. (Additional submissions of Mr. Nemanic and Ms. Moscovich are found earlier in this Decision)

131The Tribunal finds that in respect of Motion No. 1, it is asked to answer a foundational jurisdictional issue. The questions asked by the Tribunal did not imply that a dismissal of Dunpar’s Issues would be part of its decision making in this Motion Hearing.

132Secondly, with respect to Motion No. 2, the Tribunal is again charged to answer a foundational question and determine if it has the jurisdiction to “add or remove, or reduce the scope of, an exemption provided in the by-law” pursuant to s. 37(24)(b) of the Act.

133That being said, within the context of the conclusions and subsequent Order in this Decision, the Tribunal questions whether Dunpar’s appeal is indeed valid for either the Toronto or the Mississauga By-law. The Tribunal is prepared to strike all issues from Dunpar’s Issues List that relate to the conclusions of Motion Nos. 1 and 2 that are part of the submissions by either Toronto or Mississauga and considered during this proceeding.

134With respect to Dunpars Issues submitted to Toronto, the Tribunal is prepared to strike all 12 Issues from the Dunpar Issues List. With no issues remaining before the Tribunal, the effect of this decision is that dismissal of Dunpar’s Appeal to the Toronto By-law.

135Following the same reasoning, the Tribunal is prepared to strike all of Dunpar Issues from the Issues List, save and except Issue 2, that are submitted to Mississauga.

136The Tribunal directs that at the next CMC for Tribunal Case OLT-22-004386, Mississauga should bring forward the appropriate material to strike the remaining Dunpar Issue, now that the there is a Tribunal ruling on Motion No.2 related to non-residential GFA.

CONCLUSIONS

Motion No. 1

137The Tribunal does not have the jurisdiction to vary from the 4% prescribed rate in either the Toronto or the Mississauga By-law.

138As noted previously in this Decision, Ms. Moscovich submitted that should the Tribunal determine it does not have the jurisdiction to vary the prescribed rate, it would mean the Tribunal could strike the issues found in the Issues List presented in this appeal with the exception of issue No. 2. The Tribunal agrees.

139The Tribunal strikes Issues No. 1, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 from the Dunpar Issues List submitted to Toronto.

140As noted previously in this Decision Mr. Kehar submitted that should the Tribunal determine it does not have jurisdiction to vary the prescribed rate, the effect would be that the Tribunal could strike of all of Dunpar’s Issues found in Issues List presented in this appeal (Exhibit 5 Tab 3) with the exception of Issue No.2. The Tribunal agrees.

141The Tribunal strikes Issues No. 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 from the Dunpar Issues List submitted to Mississauga.

142The Tribunal notes that Issue No. 2 of Dunpar’s Mississauga’s Issues list speaks to exemptions for non-residential GFA in the CBC. Motion No. 2 in this decision provides a finding and Order with respect to its jurisdiction in this regard. The Tribunal did not have this matter as it relates to Mississauga before it in these proceedings. Therefore, at the next CMC for OLT Case No. OLT-22-004386, Mississauga should bring forward the necessary material to have Issue No. 2 removed from the Issues List. At that point, a determination whether Dunpar has a valid appeal can be made.

Motion No. 2

143The Tribunal concurs with all Parties that the Tribunal does not have the jurisdiction to “add or remove, or reduce the scope of, an exemption provided in the by-law” pursuant to s. 37(24)(b). The Tribunal concludes that the request of Dunpar and the Schedule 2 Appellants “to amend the CBC By-law in order to clarify its application” is tantamount to adding an exemption to the Toronto By-law which is also beyond the Tribunal’s jurisdiction.

144These conclusions speak only to the appeals against the Toronto By-law.

145With respect to Schedule 2 Appellants, Issue 1 of their submitted Issues List (provided to the Tribunal subsequent to the Motion Hearing date) is correctly struck from the Issues List submitted to Toronto.

146With respect of Dunpar, Issue 2 of their submitted Issues list is appropriately struck from the Issues List submitted to Toronto.

147The Tribunal has now struck all of Dunpar’s Issues from the Issues List Therefore, Dunpar no longer has a valid appeal against the Toronto By-law and this Appeal is appropriately dismissed.

ORDER

148THE TRIBUNAL ORDERS that the motion brought forward by Dunpar Developments Inc./Sheridan Retail Inc. against the Community Benefits By-law for City of Toronto (By-law No. 1139-2022) and the City of Mississauga (By-law No. 0134 – 2022) to determine if the Tribunal has the jurisdiction to vary the 4% Community Benefits Strategy prescribed rate is denied. The Tribunal does not have the jurisdiction to vary the rate prescribed in Ontario Reg. 509/20.

149THE TRIBUNAL ORDERS that the motion brought forward by the Schedule 2 Appellants and Dunpar Developments Inc./Sheridan Retail Inc. against the Community Benefits By-law for City of Toronto (By-law No. 1139-2022) to determine if the Tribunal has the jurisdiction to determine if the Tribunal has the jurisdiction to “add or remove, or reduce the scope of, an exemption provided by the by-law” or to amend a Community Benefits By-law in order to clarify its application is denied. The Tribunal does not have the jurisdiction to make such changes pursuant to s. 37(24)(b) of the Planning Act.

150THE TRIBUNAL ORDERS that the Issues presented to the City of Toronto in respect of By-law No. 1139-2022 by the appellants are:

1. Issue 1 of the Schedule 2 Appellants is hereby struck from the Issues List.

2. All of the Issues submitted by Dunpar Developments Inc./Sheridan Retail Inc. are struck from the Issues List.

151THE TRIBUNAL ORDERS that the appeal by Dunpar Developments Inc./Sheridan Retail Inc. against Community Benefits By-law for City of Toronto By-law No. 1139-2022 is hereby dismissed.

152THE TRIBUNAL ORDERS that Issues No. 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 submitted with respect to Community Benefits By-law for the City of Mississauga By-law No. 0134 – 2022 by Dunpar Developments Inc./Sheridan Retail Inc. are struck from the Issues List.

“Bryan W. Tuckey”

BRYAN W. TUCKEY 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.