CORRECTION NOTICE

OLT CASE NO(S).:

OLT-22-004657

DECISION ISSUE DATE(S):

June 07, 2023

CORRECTION NOTICE ISSUE DATE:

August 01, 2023

RE: Dunpar Developments Inc. v. Toronto (City)

Correction to: the Order clause on page 7, paragraph 24, item c.

Originally:

Corrected to:

24…

c. Replies from the Moving Parties will be circulated to all Parties and the Tribunal no later than Friday, August

18, 2023, at 4:30 p.m.

24…

c. Replies from the Moving Parties will be circulated to all Parties and the Tribunal no later than Friday, September

8, 2023, at 4:30 p.m.

“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:

June 7, 2023

CASE NO(S).:

OLT-22-004657

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

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)

Heard: May 18, 2023 by Video Hearing (“VH”)

APPEARANCES:

Parties Counsel

City of Toronto A. Moscovich

N. Muscat

Dunpar Developments Inc. M. Nemanic

G. Mutlu

L. Johnston (in absentia)

Freed Developments Limited A. Jeanrie (in absentia)

S. Brazzell

Fengate Capital Management Limited A. Jeanrie (in absentia)

S. Brazzel

Mattamy Urban Neighbourhoods Inc.

A. Jeanrie (in absentia)

S. Brazzell

Oxford Properties Group Inc.

A. Jeanrie (in absentia)

S. Brazzell

Westerkirk Capital Inc.

A. Jeanrie (in absentia)

S. Brazzell

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON MAY 18, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened the second Case Management Conference (“CMC”) for the above noted matter. A total of six entities as illustrated in the appearances have filed an appeal against the Decision of the City of Toronto (“City”) to adopt the Community Benefits Charges By-law No. 1139-2022 (“By-law”) pursuant to s. 37(17) of the Planning Act (“Act”). At the first CMC, it was anticipated that the second “would be to either present a final draft of a PO and schedule a merits hearing or to bring forward a Motion in keeping with Rule 10 – Ontario Land Tribunal Rules of Practice and Procedure with respect of issues that, in the City’s view, may not be within the jurisdiction of the Tribunal.”

2The effect of the By-law is to define a Community Benefit Charge (“CBC”) that is payable for the capital costs of facilities, services and matters required for development and redevelopment of all lands in the geographic area of the City. The CBC legislative requirements are set out in the amended s. 37 provisions of the Act. The City adopted the By- law on August 15, 2022.

3Mr. Nemanic Counsel for Dunpar Developments Inc. (“Dunpar”) took issue with some observers to this CMC. All proceedings of the Tribunal follow an ‘Open Court’ principal and therefore, all hearings and CMCs are open to the public.

4Ms. Moscovich, Counsel for the City, provided background with respect to the status of this matter for the benefit of the Parties and Tribunal. She made note of correspondence

dated May 2, 2023, circulated to the Parties which provides additional detail to her oral statements. She stated that: the City received Issues later than expected and the Issues articulated by Dunpar continue to be too broad to determine the required hearing time or provide the opportunity for the City to prepare a detailed response. There remains the question of Tribunal jurisdiction in regard to some of the issues that the Appellant Parties have provided. She also noted that any reduction in rates defined in the By-law would require the City to reimburse applicants who will have already paid the charge.

5Ms. Moscovich outlined that the Issues that touched on Tribunal jurisdiction are generally related to two matters being:

a. the ability for the Tribunal or for that matter the City to vary the 4% CBC prescribed by the By-law as established in Ontario Reg. 509/20 as asserted by Dunpar; and

b. the assertion that the By-law should exempt non-residential uses from CBC in mixed-use development. She noted the legislative limits of the Tribunal’s powers as defined in s. 37 (24) of the Act.

6Ms. Moscovich requested the Tribunal schedule a third CMC and a two phase merits hearing totalling five weeks.

7Mr. Nemanic asserted that the City has not prepared a comprehensive and transparent background study similar to one that would be completed for the construct of a Development Charge By-law to justify the CBC as defined by the By-law. As a result, it is not possible for his client to determine if the CBCs are fair and equitable nor in a position to further refine issues. He also asserted that the prescribed 4% is not a jurisdictional issue but that of legislative interpretation.

8Mr. Nemanic submitted at the Tribunal must consider the question whether the City is disclosing all information that is required for his client to draft Issues for an Issues List.

9Ms. Brazzell on behalf of the Schedule 2 Appellants, that an Issues List has been provided to the City and all Parties on a without prejudice basis.

10The Parties were made aware of the availability of Tribunal-led mediation at the first

CMC.

TRIBUNAL FINDINGS

11The Tribunal advised the Parties it is not inclined to set a hearing date until the two foundational matters in respect of the Tribunal’s jurisdiction is determined. The foundational matters are as follows.

a. The Tribunal directs that Schedule 1 Appellant bring a motion to demonstrate that the issues raised in their appeal, specifically the jurisdiction of the Tribunal (or the City) to vary from the 4% CBC prescribed in the City’s By-law, as established in Ontario Reg.509/20, falls within the jurisdiction of the Tribunal.

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

12The Tribunal directs that the City will respond to both motions. The Schedule 2 Appellants are barred from responding to the Dunpar motion with respect to the Tribunal’s ability to vary from the prescribed 4% CBC.

13All motions will be brought in accordance with Rule 10 - Ontario Land Tribunal Rules of Practice and Procedure in keeping with the schedule defined in paragraph 26 of the Order.

14The Tribunal is prepared to convene a third full-day CMC/Moton Hearing to commence at 10 a.m. on Wednesday, September 13, 2023. This CMC is the appropriate time to hear the Motions as described in paragraph 11 of this Decision.

15The Tribunal advised the Parties it is not inclined to deal with Dunpar’s disclosure of information matter prior to the jurisdictional issues being adjudicated.

CASE MANAGEMENT TECHNICAL DETAILS

16A full-day CMC will convene on Wednesday, September 13, 2023, by VH at 10 a.m.

17Parties are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/927921077 Access code: 927-921-077

18Parties 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 at: https://app.gotomeeting.com/home.html

19Persons 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) 497-9391 or Toll-Free 1-888-299-1889. The access code is 927-

921-077.

20Individuals 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 events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

21THE TRIBUNAL ORDERS THAT:

A third Case Management Conference/Motion Hearing is scheduled to proceed by

Video Hearing on Wednesday, September 13, 2023, at 10 a.m.;

a. Schedule 1 Appellant 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 Reg.509/069, falls within the jurisdiction of the Tribunal; and,

b. Schedule 1 Appellant. 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 provide in the by-law” pursuant to s. 24 b) of the Planning Act falls within the jurisdiction of the Tribunal.

22The City of Toronto will respond to all motions.

23Schedule 2 Appellants are barred from responding to the Dunpar Developments Inc. motion with respect to the Tribunal’s ability to vary from the prescribed 4% Community Benefit Charge.

24All motions will be brought in accordance with Rule 10 - Ontario Land Tribunal’s Rules of Practice and Procedure in keeping with the following schedule:

a. Motions from the Moving Parties will be circulated to all Parties and the Tribunal no later than Friday, July 7, 2023, at 4:30 p.m.

b. Responses to the Motions by the City of Toronto will be circulated to all Parties and the Tribunal no later than Friday, August 18, 2023, at 4:30 p.m.

c. Replies from the Moving Parties will be circulated to all Parties and the Tribunal no later than Friday, August 18, 2023, at 4:30 p.m.

25The Member may be spoken to if there are any issues with respect to the implementation of these Orders.

26The Member is not seized.

27The 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

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