Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 30 2023
CASE NO(S).: OLT-22-004364
PROCEEDING COMMENCED UNDER subsection 14 of the Development Charges Act, R.S.O. 1997, c. 27
Appellant: Sheridan Retail Inc.
Subject: Development Charge Appeal
Description: Development Charge Appeal
Reference Number: Development Charge By-law 0133-2022
Property Address: City-wide
Municipality: City of Mississauga
OLT Case No: OLT-22-004364
OLT Lead Case No: OLT-22-004364
OLT Case Name: Sheridan Retail Inc. v Mississauga (City)
Heard: June 19, 2023 by Video Conference
APPEARANCES:
Parties
Counsel
City of Mississauga
Andrew Biggart
Lia Magi
Sheridan Retail Inc.
Michael Nemanic
Giouzelin Mutlu
Luke Johnston (in absentia)
DECISION DELIVERED BY W. DANIEL BEST AND S. TOUSAW AND ORDER OF THE TRIBUNAL
1This second Case Management Conference (“CMC”) was convened for an appeal by Sheridan Retail Inc. (“Appellant”) of the City of Mississauga (“City”) Development Charges By-law 0133-2022 (“By-law”).
2In compliance with the directions from the first CMC, the Appellant filed a completed Procedural Order (“PO”) with an Issues List. The Tribunal was advised that the Issues List submitted was not on consent of the City, primarily related to the use of the terms “fair and reasonable” and to requirements arising from the Planning Act (“Act”).
3Michael Nemanic, counsel for the Appellant, submitted that the Issues of concern to the City are standard considerations for Development Charges Act (“DCA”) appeals to ensure legislative compliance. He argued that the proposed wording should be retained because this case is the Appellant’s hearing and the City is welcome to challenge an Issue’s relevance at the merits hearing. Mr. Nemanic argued that case law has found that a By-law may not contravene the DCA but may also be found unfair, such that it is appropriate to include the tests of “fair and reasonable” in the Issues. He also noted that the courts have supported a link to the DCA via s. 24(1) of the Act:
“Despite any other general or special Act, where an official plan is in effect … no by-law shall be passed for any purpose that does not conform therewith.”
4Andrew Biggart, counsel for the City, identified concerns with the use of the words “fair and reasonable” within the context of the DCA. He argued that these are standard considerations for the background studies leading to a By-law but are not enunciated tests under the DCA. He expressed concern with reference to the Provincial Policy Statement, 2020 (“PPS”) and A Place to Grow: The Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”) in Issue 20 of the Issues list. While the Official Plan sets the background context for a By-law, Planning Act matters are not under appeal here. Acknowledging that s. 24(1) of the Planning Act appears to refer to all by-laws of a municipality, he argued that numerous examples of by-laws passed under the Municipal Act or other legislation are not required to “conform” with an “official plan” and such is the case here for a Development Charges By-law.
5The Tribunal considered the submissions of both Parties on the matter. The Tribunal will grant some deference to the Appellant who is entitled to a full hearing on its matters of concern.
6Regarding the matter of “fair and reasonable”, the Parties agreed these tests would be addressed relative to the studies leading to the development charges (“DCs”). These subset tests are well established benchmarks and as such should not be a “stand alone” requirement. This will allow the Parties to argue their weight and relevance at the hearing on the merits. The Tribunal directs that all references to “fair and reasonable” and “fairly and reasonably” be placed after the reference to the DCA in each of the relevant issues in the Issues List (e.g., “in compliance with the DCA and O. Reg. 82/98, including being fair and reasonable”).
7Regarding Issue 20, the City agrees to the first three lines but opposes the remaining requirements on the basis that Planning Act matters are not at issue and the DCA does not require consistency and conformity. This was not a full motion hearing with thorough case law analyzed, other than Mr. Nemanic referring to a few cases.
8The Tribunal finds that Development Charge (“DC”) calculations are guided in part by official plans and will leave those questions in Issue 20 but directs that the references to the PPS and Growth Plan be removed. The relevant Official Plans that are in force and effect were required to be “consistent with” and “conform with” at the time of their approval. The weight to be attributed to Official Plan conformity of a DC By-law may be argued at the merits hearing.
9The Tribunal directs that the wording of Issue 20 be amended to read as follows:
- Does the City’s methodology for calculating BTE without distinguishing between the local and regional characteristics and functions of the listed Capital Sub-Projects for the Recreation and Parks Development Capital Program conform to the policies of the Mississauga Official Plan (the “OP”) and the Region of Peel Official Plan (the “ROP”) with reference to:
a. Policy 5.6.2 of the ROP.
b. Policies 6.3.64-6.3.65, 6.3.68-6.3.71, 7.4.1-7.4.3, 7.4.14-7.4.15, 19.19.1, 19.19.4-19.19.5 of the OP.
10Within 14 days of the issuance of this Decision, the Parties are directed to file with the Case Coordinator the final PO in accordance with this Decision for the final approval of the Tribunal.
11The Parties agreed that a 14-day hearing would be appropriate. Accordingly, a hearing has been set for 10:00 a.m. on Monday, June 24, 2024 to Friday, July 12, 2024 inclusive, by video hearing. No further Notice will be given.
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:
GoTo Meeting: 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: (Toll Free) 1 888 299 1889 or +1 (647) 497-9373. 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.
ORDER
16The Tribunal Orders the directions contained in this Decision.
17THE TRIBUNAL ORDERS that, within 14 days of the issuance of this Decision, the Parties will file, with the Case Coordinator, the final Procedural Order in accordance with this Decision for the approval of the Tribunal.
18The Panel Members are not seized and may be spoken to through the Tribunal’s Case Coordinator if there are any issues with respect to the implementation of this Order.
“W. Daniel Best”
W. DANIEL BEST
MEMBER
“S. Tousaw”
S. TOUSAW
VICE-CHAIR
Ontario Land Tribunal
Website: www.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.