Centurion (Dundas) Holdings Ltd. v. Hamilton (City), 2023 CanLII 43694

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

May 19, 2023

CASE NO(S).:

OLT-22-004846

PROCEEDING COMMENCED UNDER subsection 42(10) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Centurion (Dundas) Holdings

Subject:

Cash-in-Lieu

Description:

Protest of Fee of Parkland Contribution Cash-in-Lieu

Property Address:

71 Main Street

Municipality/UT:

Hamilton

Municipal File No.:

Roll No 2518 260 2500 60000000

OLT Case No.:

OLT-22-004846

OLT Lead Case No.:

OLT-22-004846

OLT Case Name:

Centurion (Dundas) Holdings Ltd. v. Hamilton (City)

Heard:

May 5, 2023, via video-hearing

APPEARANCES:

Parties

Counsel

Centurion (Dundas) Holdings Ltd.

Derek Schmuck

City of Hamilton

Patrick MacDonald

MEMORANDUM OF ORAL DECISION DELIVERED BY N. EISAZADEH AND ORDER OF THE TRIBUNAL

1This is the first Case Management Conference respecting an appeal filed by Centurion (Dundas) Holdings Ltd. (“Applicant”), pursuant to s.42(10) of the Planning Act, of the decision of the City of Hamilton (the “City”) regarding the amount required for the cash-in-lieu fee contribution for parkland paid by the Applicant under protest, related to the development project municipally located at 71 Main Street, Hamilton, Ontario.

2The Tribunal and Statutory Parties received no requests for granting of Party or Participant status. The appeal will proceed to be heard on its merits with the participation of only the Statutory Parties.

3The Parties indicated they have engaged in some settlement discussions but have not reached a resolution to date. They informed the Tribunal that they will continue to engage in discussions and attempt to narrow and scope the issues in dispute. They indicated they are aware of the availability of Tribunal-assisted mediation and are to contact the case coordinator should they wish to avail themselves of this resource.

4The Parties provided the Tribunal with a draft Procedural Order (“PO”) inclusive of an Issues List (“IL”). The Parties requested Tribunal assistance in reviewing the IL, on which the Parties had some disagreement. Following a discussion on narrowing the language of some of the issues, with Tribunal direction, the Parties were able to come to amicable revisions of the IL. The final PO as approved by the Tribunal is attached as Schedule 1.

5Having reviewed the possible number of witnesses and the possible scope of issues described by the parties, the Tribunal ordered and set a two day hearing by video, commencing on Thursday, November 16, 2023, at 10 a.m.

6Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/709076365

Access code: 709-076-365

7Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

8Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1(647) 497-9373. The access code is 709-076-365.

9Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

10The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Partis indicated there were none.

11There will be no further notice.

12The presiding Tribunal Member is not seized but remains available through the Case Coordinator should the need arise.

13So Orders the Tribunal.

“N. Eisazadeh”

N. Eisazadeh

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Schedule 1

CASE NO(S).: OLT-22-004846

ONTARIO LAND TRIBUNAL

PROCEEDING COMMENCED UNDER subsection 42(10) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Centurion (Dundas) Holdings

Subject: Cash-in-Lieu

Description: Protest of Fee of Parkland Contribution Cash-in-Lieu

Property Address: 71 Main Street

Municipality/UT: City of Hamilton

Municipal Reference No.: Roll No. 2518 260 2500 60000000

OLT Case No.: OLT-22-004846

OLT Lead Case No.: OLT-22-004846

OLT Case Name: Centurion (Dundas) Holdings Ltd. v. Hamilton (City)

PROCEDURAL ORDER

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.

2. This procedural order is made pursuant to the Tribunal’s Rule 26 and the Rules of Civil Procedure.

Organization of the Hearing

3. The video hearing will begin on _November 16, 2023 at __10 a.m. at _______________________.

4. The parties’ initial estimation for the length of the hearing is _2 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.

5. 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).

6. 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, except as otherwise described in paragraph 13 herein, and a party who asks for changes may have costs awarded against it.

7. The order of evidence and argument 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.

8. 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.

9. 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

10. 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 August 18, 2023_______ (date – at least 90 days prior to the start of the hearing ) and in accordance with paragraph 24 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.

11. All parties shall exchange all information and documents that are relevant to the disposition of the issues in this proceeding on or before July 19, 2023___ (date – 120 days before the hearing).

12. If any party takes the position that information or documents that are relevant to the disposition of the issues in this proceeding have not been disclosed by another party or other parties in accordance with paragraph 11 above or are not admissible, the matter shall be dealt with by way of a motion in writing. The moving party shall serve a notice of written motion on or before August 3, 2023___ (date – 105 days before the hearing) and the motion shall proceed in accordance with the timing set out in Rule 10.3 of the Tribunal’s Rules.

13. Expert witnesses in the same field shall have a meeting on or before September 1, 2023__ (75 days before the hearing) 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 September 15, 2023______ (date – at least 60 days prior to the start of the hearing).

14. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 16 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

15. 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 16 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 16 below.

16. On or before October 2, 2023_______ (date – at least 45 days prior to the start of the hearing), 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 24 below.

17. On or before October 2, 2023____________ (date – at least 45 days prior to the start of the hearing), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

18. On or before October 12, 2023________ (date – at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

19. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fifteen (15) days after the evidence is received, and in no event later than October 17, 2023, and in accordance with paragraph 24 below.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 6, 2023________ (date – at least 10 days prior to the start of the hearing).

21. 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.

22. 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.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 9, 2023_______ (date – at least 7 days prior to the start of the hearing) 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.

24. 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.

25. 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

LIST OF PARTIES AND PARTICIPANTS

PARTIES

Centurion (Dundas) Holdings Ltd.

Derek A. Schmuck

SimpsonWigle Law LLP

1 Hunter Street East, Suit 200

Hamilton, ON L8N 3W1

Tel: 905-528-8411 ext 353

Fax: 905-528-9008

Email: Schmuckd@simpsonwigle.com

City of Hamilton

Patrick MacDonald

Legal Services Division, Corporate Services Department

50 Main Street East, 5th Floor

Hamilton, ON L8N 1E9

Tel: 905-546-2424 Ext. 4708

Fax: 905-546-4370

Email: Patrick.MacDonald@hamilton.ca

ATTACHMENT 2

ISSUES LIST

1. What is the applicable law for the determination of parkland dedication (or cash-in-lieu) owing by the applicant for the lands known as 71 Main Street, Dundas under the following:

a. Planning Act

b. Building Code Act

c. City of Hamilton parkland dedication by-laws

2. Was a building permit for the purposes of subsection 42(3.5) of the Planning Act issued for this project prior to November 28, 2022?

3. If 42(3.3) of the Planning Act applies, what is the value of the subject lands and the effective date for determining value?

ATTACHMENT 3

ORDER OF ARGUMENT AND EVIDENCE

1. Centurion (Dundas) Holdings Ltd.

2. City of Hamilton

3. Reply by Centurion (Dundas) Holdings Ltd. (if any)