Losani Homes (1998) Ltd. v. Grimsby (Town), 2023 CanLII 43661

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

May 15, 2023

CASE NO(S).:

OLT-22-003940

PROCEEDING COMMENCED UNDER section 14 of the Development Charges Act, 1997, S.O. 1997, c. 27, as amended

Appellant:

Losani Homes (1998) Ltd.

Subject:

Development Charges By-law No. 2022-17

Municipality:

Town of Grimsby

OLT Case No.:

OLT-22-003940

OLT Lead Case No.:

OLT-22-003940

OLT Case Number:

Losani Homes (1998) Ltd. v. Grimsby (Town)

Heard:

February 14, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Town of Grimsby

T. Halinski (in absentia)

M. Barrett

Losani Homes (1998) Limited

J. Meader

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON FEBRUARY 14, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened the first Case Management Conference (“CMC”) for the above noted matter. Losani Homes (1998) Ltd. (“Appellant”) filed an appeal against the Town of Grimsby (“Town”) in respect of the Development Charges By-law No. 2022-17 (“the By-law”) pursuant to s. 14 of the Development Charges Act, 1997 (“the Act”).

2The Town enacted the By-law which encompasses the entire municipality on March 21, 2022 under s. 2 (1) of the Act. It is appealed by one party.

3The Tribunal gave notice on December 7, 2022. No further notice is required.

4There are no additional parties or participants requesting status with respect of this matter.

5Ms. Meader, Counsel for the Appellant advised the Tribunal that both parties are working in good faith in an effort to resolve issues. But these discussions to date have not been successful. Therefore, Ms. Meader is requesting a four day merits hearing to be scheduled. She estimates that she will be calling four witnesses.

6Ms. Barrett on behalf of the Town informed the Tribunal that the Town is in agreement with the scheduling of a merits hearing and is expecting to call three witnesses.

7Both parties are committed to continue their efforts to resolve or reduce issues prior to the commencement of a merits hearing.

8The Tribunal was not presented with a draft Procedural Order (“PO”). The Appellant and the Town maintain a good working relationship with respect to this matter and are confident that a PO will be available to the Tribunal within a two week timeframe for the Tribunal’s consideration, review, and approval. The PO is attached to this decision.

9Tribunal-led mediation is offered and discussed. Both Parties were of the opinion that such mediation is premature as the Issues List has not been finalized. Parties are aware mediation may be requested at any time during the course of these proceeding.

TRIBUNAL DISPOSTION

10Given the commitment Counsel for both the Appellant and the City are to finalize the PO in a timely manner, the Tribunal is comfortable to schedule a merits hearing commencing on Tuesday, October 10, 2023 to Friday October 13, 2023 for four days.

11The Tribunal directs that the PO be provided to the Tribunal no later than 4:30 p.m. Tuesday, February 28, 2023 for the Tribunal’s consideration, review, and approval.

MERITS HEARING TECHNICAL DETAILS

12A four day merits hearing will convene at 10 a.m. on Tuesday, October 10, 2023to Friday October 13, 2023 by video hearing.

13Parties 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://global.gotomeeting.com/join/927921077

Access code: 927-921-077

14Parties 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.

15Parties 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

16Persons 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, provided above.

17Individuals 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.

18The Procedural Order appended as Attachment 1 is approved and is in full force and effect.

19No further notice will be given.

20The Member is not seized.

21The Tribunal so orders.

“Bryan W. Tuckey”

BRYAN W. TUCKEY

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.

ATTACHMENT 1

CASE NO(S).: OLT-22-003940

PROCEEDING COMMENCED UNDER subsection 14 of the Development Charges Act, 1997, S.O. 1997, c. 27, as amended

Appellant:

Losani Homes (1998) Ltd.

Subject:

Development Charges By-law No. 2022-17

Municipality:

Town of Grimsby

OLT Case No.:

OLT-22-003940

OLT Lead Case No.:

OLT-22-003940

OLT Case Number:

Losani Homes (1998) Ltd. v. Grimsby (Town)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on October 10, 2023 at 10:00 am through video link

https://global.gotomeeting.com/join/927921077

When prompted, enter the code 927-921-077

3. The parties’ initial estimation for the length of the hearing is 4 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

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

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before May 15, 2023 and in accordance with paragraph 21 below. A party who intends to call an expert witness must include a copy of the witness’ curriculum vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before June 14, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before August 3, 2023.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before July 14, 2023, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before August 18, 2023, the parties shall provide copies of their reply witness and expert witness statements to the other parties and to the OLT case co-ordinator.

15. On or before September 5, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before September 25, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 21 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before September 29, 2023.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 3, 2023 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES

1. Losani Homes (1998) Ltd.

Turkstra Mazza Associates

15 Bold Street

Hamilton, ON L8P 1T3

Jennifer Meader

Tel: 905.529.3476

Email: jmeader@tmalaw.ca

2. The Town of Grimsby

Aird & Berlis LLP

181 Bay Street, #1800 Brookfield Place

Toronto, ON M5J 2T9

Tom Halinski

Tel: 416.865.7767

Email: thalinski@airdberlis.com

ATTACHMENT 2

ISSUES LIST

Note: The identification of an issue on the Issues List does not constitute an acknowledgment by the Tribunal or any party that the issue is relevant or appropriate, of that the Tribunal has jurisdiction over it. The identification of an issue by a party indicates that party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other parties that case they may need to meet, but it is not intended to prejudice the right of other parties to object to such issue and/or evidence.

1. Does the Town’s Notice of Passing in respect of the DC By-law meet the legislative requirements for providing notice?

2. Are the capital cost estimates for Projects 15, 16, and 17 in the Services Related to a Highway category fair, reasonable, and in accordance with the Development Charges Act (“DC Act”)?

3. Are the cost estimates for the projects included in the Background Study prepared in support of the DC By-law fair, reasonable, and in accordance with the DC Act?

4. Are the costs attributed to existing development (“BTE”) included in the Background Study fair reasonable, and in accordance with the DC Act? More particularly:

a. Is the BTE allocated to the three Road Urbanization projects (Projects 1 to 3) fair, reasonable, and in accordance with the DC Act?

b. Is the BTE for the Hunter Road Upgrades (Project 8) fair or reasonable at 10% of the gross costs?

c. Are the costs attributed to growth outside the ten-year period of the DC By-law (“PPB”) for certain projects included in the Background Study fair, reasonable, or in accordance with the DC Act?

5. Will the proposed DC By-law result in a charge that will exceed the average level of service provided in the City over the previous ten years?

6. Has the Town assumed that debt will be incurred for the Casablanca/QEW improvements, despite having a positive reserve fund balance for the Transportation service category?

7. Has the Town has inappropriately assumed that debt will be incurred for Project 15 (through the inclusion of Project 16)?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Losani Homes (1998) Ltd.

2. Town of Grimsby

3. Losani Homes (1998) Ltd. in reply

ATTACHMENT 4

SUMMARY OF KEY DATES

SUMMARY OF DATES

EVENT

May 15 , 2023

Parties to exchange lists of witnesses and the order in which they will be called, including a copy of the Curriculum Vitae and discipline.

June 14 , 2023

Expert witnesses in the same field shall have a meeting.

August 3, 2023

Parties file a Statement of Agreed Facts and Issues with the OLT case coordinator.

July 14 , 2023

Witness Statements, Expert Reports, Participant Statements, and the written evidence of witnesses to be exchanged.

August 18, 2023

Reply Witness Statements and the reply to written evidence of witnesses (if any) to be exchanged.

September 25, 2023

Parties to exchange copies of Visual Evidence.

October 3, 2023

Parties to file Preliminary Hearing Plan with the OLT case coordinator.

September 29, 2023

Parties to file Joint Document Book with the OLT case coordinator.

September 5, 2023

Parties to advise Tribunal whether all scheduled hearing days are required.

October 10, 2023

Hearing commences.