CORRECTION NOTICE

OLT CASE NO(S).:

OLT-22-001374

DECISION ISSUE DATE(S):

April 06, 2023

CORRECTION NOTICE ISSUE DATE:

April 13, 2023

Correction to: In the “APPEARANCES” section of the Decision, Counsel Vito Cairone was incorrectly listed as being co-counsel to Trafalgar Heights Inc. (Appellant/Complainant”), when in fact he was Co-Counsel with Paul DeMelo for the Regional Municipality of Halton (“Region”).

Originally:

Parties

Counsel

Trafalgar Heights Inc. (“Appellant/Complainant”)

Town of Oakville (“Town”) and

Regional Municipality of Halton (“Region”)

Corrected to:

Patrick Harrington Vito Cairone

Paul DeMelo

Parties

Counsel

Trafalgar Heights Inc. (“Appellant/Complainant”)

Patrick Harrington

Town of Oakville (“Town”)

Paul DeMelo

Regional Municipality of Halton (“Region”)

Paul DeMelo Vito Cairone

“Euken Lui”

EUKEN LUI REGISTRAR

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.

ISSUE DATE:

April 06, 2023

CASE NO(S).:

OLT-21-001374

PROCEEDING COMMENCED UNDER subsection 22(2) of the Development Charges Act, 1997, S.O. 1997, c. 30

Appellants:

Trafalgar Heights Inc.

Subject:

Development Charge Complaint

Description:

Error in the calculation of the Region of Halton DC By-law

Reference Number:

20-0267/0268/0269/0270

Property Address:

2481, 2485 and 2489 Taunton Road

Municipality:

Town of Oakville

OLT Case No:

OLT-21-001374

OLT Lead Case No:

OLT-21-001374

OLT Case Name:

Trafalgar Heights v Town of Oakville

PROCEEDING COMMENCED UNDER subsection 22(2) of the Development Charges Act, 1997, S.O. 1997, c. 30

Appellants:

Trafalgar Heights Inc.

Subject:

Development Charge Complaint

Description:

Error in the calculation of the Town of Oakville DC By-law

Reference Number:

20-0267/0268/0269/0270

Property Address:

2481, 2485 and 2489 Taunton Road

Municipality:

Town of Oakville

OLT Case No:

OLT-21-001477

OLT Lead Case No:

OLT-21-001374

OLT Case Name:

Trafalgar Heights Inc. v Region of Halton

Heard:

March 2 and 3, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Trafalgar Heights Inc. (“Appellant/Complainant”)

Patrick Harrington Vito Cairone

Town of Oakville (“Town”) and Regional Municipality of Halton (“Region”)

Paul DeMelo

DECISION DELIVERED BY W. DANIEL BEST AND S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Appellant filed appeals under the Development Charges Act (“DCA”) to the absence of decisions by the Region and the Town on the Appellant’s complaint to the calculation of Development Charges (“DCs”) that it had paid under protest for its development at 2481, 2485 and 2489 Taunton Road in Oakville (the “Property”).

2The DCs include the Region/Town’s Development Charges for servicing, front- end payments, and education charges (collectively, the “DCBLs”), all administered by the Town on behalf of the Region and Boards of Education.

3This case is not an appeal of the Region and Town’s DCBLs per se, but a complaint on how they were applied to the Complainant’s development. Under the DCA s. 20(6) and s. 24(4), the Tribunal may dismiss the complaint or rectify any incorrect determination or error found in relation to applying the DCBLs.

4The DCs are in connection with the issuance of building permits for the Phase 2 of a high-density mixed-use/residential development on the Property including three residential towers (Towers B, C, and D) (“collectively, the “Development”).

5The Complainant asserts that the Region and Town calculated DCs for 21 apartment units as 2-bedroom units where they should be classified as 1-bedroom units. The resulting overpayment is requested for refund in the amounts of:

• $22,442.97 for the Region’s FERP;

• $72,531.27 for the Region’s DCBL; and

• $168,800.52 for the Town’s DCBL.

ISSUES and PARTIES’ POSITIONS

Appellant

6In his opening statements, Mr. Harrington advised the Tribunal that the development was approved in 2017 and that the DCs were paid under protest in March 2021 for Phase 2.

7Complaints were lodged on June 25, 2021 with both the Town and Region. On August 25, 2021 the Complainant filed Appeals for the non-decision of the Town and Region Councils.

8Mr. Harrington stated that the fundamental matter before the Tribunal is that in order for a room (in this instance a den) to be defined as a bedroom, it must qualify as “habitable” per the requirement of the DCBLs. In the absence of a definition for habitable within both DCBLs, reference must be made to other relevant regulations and by-laws. Specifically, in calculating the charges, twenty-one (21) of the Development’s one bedroom and den (1B+D) units were incorrectly classified as “Apartments - 2 Bedrooms +" as such label is applied in the DCBLs. Pursuant to subsection 1(9) of the Town’s DC By-law:

bedroom means a habitable room of at least seven (7) square metres, including a den, study, loft, or other similar area, but does not include a living room, dining room or kitchen.

9Mr. Harrington contended that, although the area referred to as a den in the floor plans for the 1B+D units in the Development is over seven square metres, this space is not “habitable” as a bedroom and should not be considered a bedroom as defined in the DCBLs. It must be noted that the DCBLs do not contain a definition of “habitable”.

10Mr. Harrington stated that to interpret the term habitable, reference must be made to other relevant regulations and by-laws. Section 9.7.2.3 of the Ontario Building Code (O. Reg. 332/12) (“OBC”) requires 5% of the area of “rooms that are used for sleeping” to be served with unobstructed glass. The den areas identified on the floor plans for the 1B+D units do not include any windows or other types of glass and have not been designed to be used as bedrooms. These den spaces would not comply with the OBC requirements for a bedroom and cannot therefore be considered habitable.

11It should also be noted that section 9.2.5 of the Town of Oakville Property Standards By-law 2017-007 (“PSBL”), dealing with the maintenance and occupancy of property within the Town, provides that “all bedrooms, living rooms and dining rooms shall have a window or a door which contains a window that faces directly to the outside of the building.” The den areas identified do not meet this standard.

12Given that habitable is not defined in the DCBLs, Mr. Harrington submits that it is appropriate to refer to other relevant regulations and by-laws to interpret this term, and it is clear from the above references that the den area does not qualify as “habitable” for the purpose of the DCs. It is on this basis that the Complainant requested that the Town and Region rectify the incorrect application of their DCBLs by correctly identifying the 1B+D units as “Apartments - Bachelor and 1 Bedroom”, recalculating the DCs and issuing a refund for the overpayment.

13Mr. Harrington confirmed that he would be calling one witness, Mr. David Collins, the project architect for the Trafalgar Heights Inc. project.

Region and Town

14Mr. DeMelo began his opening statement with his position that the scope of the Tribunal’s authority is specified within DCA s. 20(6) to assess whether the DCs were calculated in error per the applicable DCBLs.

15Mr. DeMelo asserts that the Appellant bases this appeal on the OBC definition which is outside of these DCBLs. The intent of the DCBLs is to capture what is in the development and what could be there in the future. The DC is to collect growth-related costs at the time of the building permit.

16Mr. DeMelo further advised the Tribunal that the development of a DCBL is based on the completion of a DC background study. It is his view that there was no error in the application of the DC charges applied in this case and that the Appellant is merely attempting to import a definition into the DCBLs in question where one does not exist.

17Mr. DeMelo confirmed that he will be presenting one witness, Mr. Matt Day, the Manager of Finance for the Town of Oakville to speak to both the Region and the Town’s DCBLs.

EVIDENCE

Appellant

18Mr. Collins was presented as an expert witness for the Appellant on architecture and the OBC. Mr. DeMelo advised he had no concerns with the evidence to be submitted by Mr. Collins if it was specific to architecture and the OBC, but that Mr. Collins was not an expert on the DCBLs. The Tribunal qualified Mr. Collins as an expert witness in the field of architecture.

19Evidence provided by Mr. Collins referenced the definition of a bedroom in the OBC. Mr. Collins confirmed that a den could not be classified as a bedroom under the OBC, specifically sections 3.7.2.1.2; 9.5.7.1; and 9.7.2.3. Mr. Collins further asserts that the design of the dens does not comply with the natural light and view as required by the OBC.

20Mr. Collins advised the Tribunal that under the PSBL, a bedroom requires a window, or a door which contains a window, that faces directly to the outside of the building. The dens under appeal do not meet these requirements as defined in the PSBL.

21Mr. Collins summarized his evidence that for the purpose of a building permit or plans examination, the dens would not meet the requirements of a bedroom.

22Under cross-examination, Mr. Collins agreed that definitions could differ in various pieces of legislation or by-laws. Mr. Collins confirmed that the OBC does not define the term bedroom but emphasized that it does prescribe certain parameters.

23Mr. Collins did not dispute the assertion of Mr. DeMelo that there was no requirement for the OBC language to be inserted into other instruments such as DCBLs.

24Mr. Collins did not dispute that the PSBL was tied to maintenance requirements as distinct from the DCBLs.

25Mr. Collins confirmed that by the Webster’s Dictionary definition of habitable, the den would meet the definition. He further advised that he works in several other municipalities and the definition of dens and bedrooms will differ.

26Under re-examination, Mr. Collins confirmed that the use of dens as bedrooms could not be “habitable” as they do not meet the parameters of the OBC.

Region and Town

27Mr. Matt Day was presented as an expert witness on behalf of the Region and Town. Mr. Day is the Manager of Finance for the Town of Oakville and oversees the collection of DCs for the Region, Town and School Boards. There were no concerns regarding Mr. Day’s qualifications, and the Tribunal qualified Mr. Day as an expert witness in municipal finance and development charges.

28Mr. Day confirmed that the definition of bedroom is the same in the DCBLs at issue here. He advised that the Appellant’s request is not how DCs are consistently calculated and applied under the DCBLs. Mr. Day opined that the consistent application of the DCBLs’ requirements is critical to ensuring funds are captured correctly and to avoid disadvantaging other developers. Mr. Day disagrees with the Appellant’s position and opines that the DCs were calculated correctly under the requirements of the DCBLs.

29Using the example of DCBL 2018-001, Mr. Day advised how other pieces of legislation were imported into the by-law for certain terms or uses, but the OBC is not one of them, other than to reference that DCs are payable at the building permit stage. Mr. Day also shared the exemptions to the by-law.

30Mr. Day advised that within the context of the DCBLs, the Webster’s Dictionary definition of “habitable” is appropriate and refers to space that is suitable or fit to live in. Mr. Day opined that a washroom, storage room, or a room with low ceilings could not be a bedroom, but that a den is capable of habitation given its size and integration within a dwelling unit. He opined that one should not otherwise look outside the DCBLs to interpret their application.

31Mr. Day stated that collaboration with the building department occurs and is incorporated into the process of determining the DCs respecting site plan and other variables such as demolition credits; residential vs. non-residential components; unit matrix; gross floor area; and how the DCs would apply.

32Mr. Day stated that in cases where a den was involved, the department would reach out to the developer to avoid a delay in the issuance of a building permit. In this application, the developer confirmed that this type of unit was included in Tower B (21 units) and Tower D (1unit). Working with the building department, the confirmation of size and habitability of the dens was determined. This allowed for the completion of the DC calculation and the advising of the developer.

33Mr. Day advised that the current framework has been in place since 1999. During the development of the DCBLs and required consultations for the development of the DC Background Studies, there were no requests from developers, Council, or staff for changes to the process for determining what constitutes a bedroom.

34In Phase 1 of this development, Mr. Day advised that dens were not treated as bedrooms as they did not meet the size parameters of 7 square metres. Mr. Day advised that the developer was surprised in Phase 2 that the dens would be treated as bedrooms under the DCBLs.

35Mr. Day stated that for the purpose of a building permit, the dens could not be considered as bedrooms, but different considerations arise in the creation of DCBLs where the intention is that growth pays for growth. In these DCBLs, dens are included within the definition of bedroom because of their contribution to living space and were considered to warrant a higher DC by the Background Studies.

36Mr. Day confirmed that he was aware of other DC by-laws where some municipalities include dens as bedrooms while others do not, but that each approach is based on the research and directions arising from a specific Background Study.

37Under cross-examination, Mr. Day advised that growth pays for growth within the context of population and employment. He also concurred with the concept that DCs are intended to be right-sized based on the development and that exemptions funded by the Town ensure that discounts are applied if existing residents benefit or if charges are outside the period of the DC background study.

38Mr. Day advised he had no dispute with Mr. Collin’s evidence as he was referencing the OBC.

39Under cross-examination, Mr. Day advised that staff confirmed the size of the dens with the developer and building department. He stated that finance staff do not ask if the dens are habitable, but relies on the DCBLs’ definition. Finance staff do ask the building department if there are any issues.

40Mr. Day agreed that a two-bedroom unit would have a greater financial impact on services compared to a one-bedroom unit based on persons per unit (“PPU”) calculations.

41Mr. Day stated that in determining if a room could be a bedroom, he would rely on the building department. He advised that he does not read the term habitable within the context of lawfully habitable, but rather whether it would be reasonable or suitable to live in as part of the dwelling.

42Mr. Day was asked about his knowledge of the exchange between the Appellant and finance staff member regarding dens being defined as dining rooms. He acknowledged the email and stated he would rely on the building department to define spaces. Mr. Day stated that these dens were not dining rooms, but that if they were, then they may fall outside the definition of a bedroom.

43Mr. DeMelo confirmed with Mr. Day that PPUs are determined at the time of a Background Study. Mr. Day stated he was not aware of where lawfully habitable fits into the OBC.

FINDINGS

44The Tribunal considered the evidence of the witnesses, counsels’ arguments, and the case law submitted by the Parties.

45The Tribunal’s authority here is to ascertain whether the Complaints are valid in that the DCBLs were applied incorrectly. The DCBLs exist and are not subject to change by the Tribunal. The Tribunal must evaluate the Parties’ interpretations of the DCBLs to make a finding on the Appeals’ validity. The Tribunal finds that the Appeals will be dismissed.

46The Tribunal finds that the evidence presented by the Appellant failed to demonstrate where there was an incorrect determination or error that was the subject of the complaint.

47Mr. Harrington asserted that an interpretation of a by-law in isolation ignores the modern principles of statutory interpretation to read and apply requirements in light of their broad context, purpose and applicability. He argued that a DCBL, which reflects the impacts of development on required services, should not charge a fee for a space that is not otherwise permitted to be so used. Since these dens are not legally habitable as a bedroom, they are not captured by this definition of a bedroom in the DCBLs.

48The Tribunal disagrees with the Appellant’s assertion. The definition of bedroom does not specify “legally habitable,” only “habitable” and the Tribunal accepts the Region and Town’s position that the general English definition of that word applies. A den is living space, and, for reasons that arise from the Background Studies for these DCBLs, which are not at issue here, such space, for the purpose of DCs, bumps these units into the two-bedroom category.

49A DCBL, when in force and effect, sets out the municipality’s approach to calculating and collecting DCs. The Tribunal accepts that a plain and ordinary reading of the DCBLs’ definition results in the finding that a den of a certain size, along with other living spaces such as a loft, constitute a bedroom for the purpose of calculating the DC, being the only reason that the DCBL and its definitions exist. It matters not that a den space may not satisfy the OBC requirements to be used as a bedroom. For the purpose of the DCBLs, a den is a bedroom.

50The Tribunal agrees with Mr. DeMelo that the building permits were issued for these spaces as lawful dens, and that they fail to constitute lawful bedrooms under the OBC. However, the DCBLs address a different purpose with different requirements. Here, these dens constitute “bedrooms” for the only purpose of calculating appropriate DCs.

51The introduction and importation of new language into the respective DCBLs is not the role of the Tribunal. Such action would alter the DC policy decisions of the Region and Town. The Tribunal’s role is to implement the specific requirements of the DCA and finds that there was no incorrect or erroneous application of the DCBLs by the Region and Town.

ORDER

52The Tribunal Orders that the appeals are dismissed.

W. Daniel Best”

W. DANIEL BEST

MEMBER

“S. Tousaw”

S. TOUSAW VICE-CHAIR

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.