Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 15, 2023
CASE NO(S).: OLT-22-003536
PROCEEDING COMMENCED UNDER subsection 69(3) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Fouro Towers Builders Ltd. & Sasson Construction Inc.
Subject: Protest the levying of fees in relation to an application for site plan
Property Location/Description: 9331-9399 Markham Road
Municipality: City of Markham
OLT Case No.: OLT-22-003536
OLT Lead Case No.: OLT-22-003536
OLT Case Name: Fouro Towers Builders Ltd. v. Markham (City)
PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Markham
Request for: Request for Directions (Adjournment)
Heard: February 1, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Fouro Towers Builders Ltd. Sasson Construction Inc. (“Appellants”)
Paul DeMelo, co-counsel Kristie Stitt, co-counsel
City of Markham (“City”)
Robert Wood, co-counsel Maggie Cheung-Madar, co-counsel
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY AND JEAN-PIERRE BLAIS ON FEBRUARY 1, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal dated April 27, 2022, pursuant to s. 69(3) of the Planning Act (the “Act”), for fees charged by the City for processing an application for Site Plan approval (“Application”) in relation to a proposed development by the Appellants on lands situated at 9331-9399 Markham Road (the “Subject Property”) in the City.
2The Application was submitted by the Appellants to facilitate the construction of a mixed-use building containing a total number of 933 residential units, 74,840 square metres of gross floor area and 619 parking spaces.
3The appeal concerns the payment under protest of fees calculated in accordance with By-law No. 2021-113 which the City advised the Appellant amounted to a total of $4,000,085.56. The Appellant paid under protest $1,619,344.85 upon submission of the Application and the remaining balance of $2,380,740.71 is payable upon execution of the Site Plan agreement.
4Given the nature of the appeal, there are no other Parties having an interest in the proceeding.
5This Hearing Event was held pursuant to a Notice of Hearing dated December 30, 2022, sent administratively by the Tribunal to the Appellants and the City. The matter was set down for a two-day hearing on the merits, commencing on February 1, 2023.
ADJOURNMENT REQUEST
6Prior to this Hearing Event, the City filed a Motion to Adjourn and an Amended Motion to Adjourn dated January 27, 2023 and January 31, 2023, respectively, returnable on the first day of the Hearing Event. The Appellants filed a Responding Motion Record dated January 30, 2023.
7Having heard the positions of Counsel, and having verified the availability of Counsel and witnesses, the matter was adjourned, on consent, to a four-day merit hearing to be held from Tuesday, April 18 to Friday, April 21, 2023.
PROCEDURAL MATTERS
8Pursuant to Rule 17.5(g) of the Ontario Land Tribunal Rules of Practice and Procedure, the Tribunal took the opportunity to convert this Hearing Event into a Case Management Conference and to set out direction on procedural next steps in this proceeding as set out in the Tribunal’s Order below.
9The Tribunal notes that on January 27, 2023, the Appellants provided its materials, including witness statements, to the City and the Ontario Land Tribunal’s case co-ordinator.
10The Tribunal emphasizes that the dates set out in the Tribunal’s Order below are a direction given by the Tribunal after discussion with Counsel. The Tribunal expects the Parties to adhere to the timeline and any delay or further adjournment requests will not be viewed favourably by the Tribunal.
ORDER
11The Tribunal orders that the hearing on the merit of this matter will be held by video hearing on Tuesday, April 18, 2023, commencing at 10 a.m. Four days have been set aside for this matter.
12Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://meet.goto.com/558205565
Access code: 558-205-565
13Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
14Persons 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 558-205-565.
15Individuals 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.
16The Tribunal further directs as follows:
a. On or before Tuesday, March 28, 2023, the City shall provide its materials including witness statements to the Appellants and to the Ontario Land Tribunal’s case coordinator.
b. On or before Tuesday, April 4, 2023, the Appellants may provide a written response to the materials filed by the City;
c. On or before Tuesday, April 4, 2023, Mr. DeMelo and Ms. Stitt are to file with the Ontario Land Tribunal’s case co-ordinator an agreed upon Joint Document Book;
d. On or before Tuesday, April 11, 2023, Mr. DeMelo and Ms. Stitt are to file with the Ontario Land Tribunal’s case co-ordinator an agreed upon preliminary Hearing Plan with a proposed schedule for the hearing that identifies the parties participating in the hearing, the preliminary matters to be addressed (if any), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, the expected 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. During the hearing, the Tribunal may, at its discretion, change or alter the hearing plan at any time.
17Parties 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.
18No further notice will be given.
19The Panel Members are not seized; however, they will remain available for case management subject to the Tribunal’s calendar.
“C. Hardy”
C. HARDY
MEMBER
“Jean-Pierre Blais”
JEAN-PIERRE BLAIS
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.