Losani Homes (1998) Ltd. v. Hamilton (City), 2023 CanLII 73709

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 08 2023

CASE NO(S).: OLT-22-003154

PROCEEDING COMMENCED UNDER subsection 69(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Losani Homes (1998) Ltd.

Subject: Fees Appeal

Description: Protest of Fee for site plan application

Property Address: 505, 509, 513 and 517 Highland Road West

Municipality/UT: City of Hamilton

OLT Case No.: OLT-22-003154

OLT Lead Case No.: OLT-22-003154

OLT Case Name: Losani Homes (1998) Ltd. v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c. 27

Appellant: Losani Homes (1998) Ltd.

Description: Development Charges Complaint

Reference Number: DC BL 11-174

Property Address: 505, 509, 513 and 517 Highland Road West, Stoney Creek

Municipality: City of Hamilton

OLT Case No.: OLT-23-000511

OLT Lead Case No.: OLT-23-003154

OLT Case Name: Losani Homes (1998) Ltd. v. Hamilton (City)

Heard: June 27, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Losani Homes (1998) Ltd.	R. Kehar
City of Hamilton	A. Biggart M. Kovacevic (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON JUNE 27 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened the first Case Management Conference (“CMC”) for the matters listed above. Losani Homes (1998) Ltd. (“Appellant”) has filed appeals against the decision of the City of Hamilton (“City”) in respect of properties municipally known as 505, 509, 513, and 517 Highland Road West (“Subject Property”). The two appeals are as follows:

a. An appeal of Council’s decision regarding the City’s Development Charges By-law(s) pursuant to s. 22(1) of the Development Charges Act (OLT Case No. OLT-23-000511); and,

b. A payment under protest of fees appeal pursuant to s. 69(3) of the Planning Act (OLT Case No. OLT-22-003154).

2The Tribunal served notice for OLT-22-003154 on May 17, 2023 and abridged that notice to include OLT-23-000511 on June 13, 2023. No further notice is required.

3There are no additional requests for Party or Participant status at this proceeding.

BACKGROUND

4Raj Kehar, Counsel for the Appellant, provided background with respect to the appeals for the benefit of the Tribunal and Parties. He submitted that the development charges that the City has assessed against the Appellant’s proposed development are incorrectly determined, and/or there was an error in the application of the City’s relevant Development Charges By-law(s). In respect of the appeal against the payment of fees, Mr. Kehar made the submission that the fees charged against the revived site plan application for the proposed development is not appropriate.

5A draft Procedural Order (“PO”) is presented to the Tribunal for its review and approval. The Tribunal finds that the PO as presented is appropriate to guide the adjudication of this matter.

6Parties requested that the Tribunal schedule a four-day Merits Hearing to adjudicate these matters.

TRIBUNAL FINDINGS

7The Tribunal is prepared to schedule a four-day Merits Hearing on these matters.

8Mr. Kehar will finalize and submit the PO to the Tribunal at his earliest convenience.

9These matters are appealed under very different Provincial legislation. Counsel for both Parties submitted that these matters are best adjudicated in keeping with Rule 16.3 of the Ontario Land Tribunal’s Rules of Practice and Procedure “Matters Heard Together”. The Tribunal agrees.

10The Tribunal directs that the Parties prepare a clear Hearing Plan for the benefit of the Member presiding at the Hearing. This Hearing Plan will describe how the Hearing will proceed, what if any evidence is relative to both matters and when each distinct matter is to be heard. The report following the meeting of the expert witnesses should clearly describe what facts are and are not in dispute at the Hearing.

11The Parties are aware of the availability of Tribunal-led mediation and understand they may request this mediation at their convenience.

MERIT HEARING TECHNICAL DETAILS

12A four-day Hearing will convene on Tuesday, January 9, 2024, by Video Hearing at 10 a.m.

13Parties 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:

Tuesday, January 9, 2024 (Four-day Merits Hearing)

GoTo Meeting: https://global.gotomeeting.com/join/719383509

Access Code: 719-383-509

Audio-only telephone line: (647) 497-9373 Toll Free: 1-888-299-1889

Audio-only Access Code: 719-383-509

14Parties 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

15Persons 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 mentioned above.

16Individuals 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

17THE TRIBUNAL ORDERS THAT:

a. A Merits Hearing is scheduled to commence on Tuesday, January 9, 2024, at 10 a.m.

b. OLT Case Nos. OLT-22-003154 and OLT-23-000511 will be heard together in keeping with Rule 16.3 of the Ontario Land Tribunal Rules of Practice and Procedure.

c. The Procedural Order attached as Schedule 1 is in full force and effect.

“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

CASE NO(S).: OLT-22-003154

PROCEEDING COMMENCED UNDER subsection 69(3) of the Planning Act, R.S.O. 1990, c. P.13:

Applicant(s)/Appellant(s): Losani Homes (1998) Ltd.

Subject: Fees Appeal

Property Address/Description: 505, 509, 513 and 517 Highland Road West, Stoney Creek

Municipality: City of Hamilton

Municipal File No.: DA-19-125

OLT Case No.: OLT-22-003154

OLT File No.: OLT-22-003154

PROCEEDING COMMENCED UNDER subsection 22(1) of Development Charges Act, 1997, S.O. 1997, c. 27

Applicant(s)/Appellant(s): Losani Homes (1998) Ltd.

Subject: Development Charges Complaint

Property Address/Description: 505, 509, 513 and 517 Highland Road West, Stoney Creek

Municipality: City of Hamilton

Municipal File No.: DA-19-125 / DC BL 11-174

OLT Case No.: OLT-23-000511 OLT Lead Case No.: OLT-22-003154

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 January 9, 2024 at 10:00 a.m. at https://global.gotomeeting.com/join/719383509

3. The parties’ initial estimation for the length of the hearing is four (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 October 20, 2023 and in accordance with paragraph 22 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 November 3, 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 coordinator on or before November 17, 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 November 24, 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 November 24, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before December 1, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before December 1, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. On or before December 8, 2023, the parties may provide a written reply to any evidence that has been received in accordance with paragraphs 13, 14 or 16.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before December 15, 2023.

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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before December 15, 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.

21. 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.

22. 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/PARTICIPANTS

PARTIES

1. Losani Homes (1998) Ltd.

Raj Kehar WeirFoulds LLP 4100-66 Wellington Street West Toronto, ON M5K 1B7 rkehar@weirfoulds.com 416-947-5051

2. City of Hamilton

R. Andrew Biggart Ritchie Ketcheson Hart & Biggart LLP 1 Eva Road., Suite 206 Etobicoke, ON M9C 4Z5 abiggart@ritchieketcheson.com 416-622-6601 Ext: 227

ATTACHMENT 2

ISSUES LIST

The identification of an issue does not mean that all parties agree that such issues, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

1. Are the development charges imposed on the proposed development incorrectly determined?

2. Are there error(s) in the application of the City of Hamilton Development Charge By-laws No. 19-14 and No. 11-174 in this instance?

3. Is it appropriate for the City to have levied a revival fee for the site plan application?

4. Is the amount of the revival fee for the site plan application appropriate and justified?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Losani Homes (1998) Ltd.

2. City of Hamilton

3. Losani Homes (1998) Ltd. (Reply)

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.