Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 21, 2023
CASE NO(S).: OLT-23-000314
PROCEEDING COMMENCED UNDER subsection 22(2) of the Development Charges Act, 1997, S.O. 1997, c. 27.
Applicant/Appellant: Sher Markham Inc.
Description: Development Charge Complaint
Reference Number: 9704 McCowan Road PLAN 21 139775
Property Address: 9704 McCowan Road
Municipality/UT: Markham/York
OLT Case No: OLT-23-000314
OLT Lead Case No.: OLT-23-000314
OLT Case Name: Sher Markham Inc. v. Markham (City)
Heard: August 11, 2023 by Telephone Conference Call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Sher Markham Inc. ("Sher" / "Appellant") | A. Lusty, N. Gunawardana |
| City of Markham ("City") | A. Baker, M. Grant |
| Regional Municipality of York ("Region") | B. Ogunmefun, S. Whalen |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. TOUSAW ON AUGUST 11, 2023 AND ORDER OF THE TRIBUNAL
1A Telephone Conference Call (“TCC”) was held at the Parties’ request to address their disagreements on how to proceed with a written motion hearing that the Tribunal had directed at the first Case Management Conference (“CMC”) one month ago.
2Sher appealed, under s. 22(2) of the Development Charges Act (“DCA”), the absence of decisions of the City and Region to Sher’s complaint to development charges affecting 9704 McCowan Road, Markham.
3For various reasons, some of which could not be disclosed by the Parties due to their ongoing confidential discussions, the Parties disagree on when and how to address their differences related to the relevance of various matters on Sher’s proposed Issues List (“IL”) for the hearing on the merits.
4After hearing the Parties’ submissions, the Tribunal directed that the written motion hearing would not proceed as previously anticipated, and that Sher is to file its IL with the draft Procedural Order (“PO”), subject to the insertion of a disclaimer that the relevance/jurisdiction of issues may be challenged at the hearing.
5The City and Region requested this approach, whereas Sher requested that its IL be used with no disclaimer added. The Tribunal found that utilizing Sher’s IL ensures that the Appellant’s issues are addressed, while the disclaimer addresses the City and Region’s position that some of the IL may be argued as absent the Tribunal’s jurisdiction. The Tribunal will include the disclaimer given the fine-grained disputes over the IL, and the avoidance of the written motion hearing. The Tribunal acknowledges that jurisdictional issues may always be argued at a hearing, with or without such disclaimer on the IL. A full hearing on the merits of the appeal will ensue.
6The previously scheduled written motion hearing is cancelled, and the Tribunal approves the attached PO, as received from Sher on behalf of the Parties.
7The Parties are encouraged to continue their discussions in pursuit of the reduction of issues or a possible settlement and to remain aware of the availability of Tribunal-led mediation.
8The Tribunal Orders its directions as set out above.
9This Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“S. Tousaw”
S. tousaw
VICE-CHAIR
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.
CASE NO(S).: OLT-23-000314
PROCEEDING COMMENCED UNDER subsection 22(2) of the Development Charges Act, 1997, S.O. 1997, c. 30.
Appellant: Sher Markham Inc.
Description: Development Charge Complaint
Reference Number: 9704 McCowan Road PLAN 21 139775
Property Address: 9704 McCowan Road
Municipality: Markham/York
OLT Case No.: OLT-23-000314
OLT Case Name: Sher Markham Inc. v. Markham (City)
Procedural Order
- 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
- The video hearing will begin on Wednesday, November 22, 2023 at 10:00 a.m. via videoconference at:
GoTo Meeting Link: https://global.gotomeeting.com/join/660145013
Access Code: 660-145-013
Audio-only Telephone Line: +1 (647) 497-9373 or (Toll Free) 1-888-299-1889
Access Code: Same as the Access Code above
No further notice shall be required.
The parties’ initial estimation for the length of the hearing is 3 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.
The parties and participants identified at the case management conference are set out in Attachment 1.
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.
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.
Any person intending to participate in the hearing shall 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.
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
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 Thursday, August 24, 2023 and in accordance with paragraph 21 below. A party who intends to call an expert witness must include a copy of the witness’ Acknowledgement of Expert’s Duty Form, Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
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 12 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.
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 12 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 12 below.
On or before Monday, September 25, 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 21 below.
On or before Monday, September 25, 2023 a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before Wednesday, October 18, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required. If the parties agree that no hearing dates are intended to be released from the Tribunal’s calendar, no party is required to advise the Tribunal of anything further in this regard.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence Monday, October 23, 2023 in accordance with paragraph 21 below.
On or before Tuesday, November 7, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Monday, November 13, 2023.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Wednesday, November 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.
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.
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.
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.
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.
A summary of the various procedural dates is contained in Attachment 4.
This Member is [not] seized.
So orders the Tribunal.
Attachment 1
LIST OF PARTIES
- Sher Markham Inc.
Alex Lusty Davies Howe LLP 425 Adelaide Street West, 10th Floor Toronto, ON M5V 3C1 alexl@davieshowe.com Tel: (416) 977-7088 Fax: (416) 977-8931
- The Regional Municipality of York
Bola Ogunmefun and Samantha Whalen 17250 Yonge Street Newmarket, ON L3Y 6Z1 bola.ogunmefun@york.ca and samantha.whalen@york.ca Tel: 1 (877) 464-9675 ext. 71459
- City of Markham
Andrew Baker and Michael Grant Borden Ladner Gervais LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West Toronto, ON M5H 4E3 abaker@blg.com and mgrant@blg.com Tel: (416) 367-6250 and (416) 367-6120 Fax: (416) 367-6749
Attachment 2
ISSUES LIST
The identification of an issue does not mean that all parties agree that such issue, 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 the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and/or argument at the hearing.
Definitions
Which Statistics Canada Dwelling Type definition best describes the 20‑units at issue?
Which defined residential unit type best describes the 20-units at issue in each of York Region DC By-laws 2017-35 and 2018-42 and City of Markham DC By-law 2017-116?
Is there a discrepancy between the definitions by dwelling type incorporated into the methodology used to calculate the applicable development charges and the definitions used in the by-laws to impose them upon specific unit types?
The Regional DC By-laws
Do the 20-units require the level of servicing associated with “Multiple Unit Dwelling” as defined in York Region DC By-laws 2017-35 and 2018-42?
Does imposing the “Multiple Unit Dwelling” rate on the 20-units in York Region DC By-laws 2017-35 and 2018-42 contravene sections 2 and 5(6)(2) of the Development Charges Act such that an error in the application of the By-laws has occurred?
Does imposing the “Multiple Unit Dwelling” rate on the 20-units in York Region DC By-laws 2017-35 and 2018-42 result in cross-subsidy to other classifications of dwellings such that an error in the application of the By-law has occurred?
The City’s DC By-law
Do the 20-units require the level of servicing associated with “Multiple Dwelling Unit” as defined in City of Markham DC By-law 2017-116?
Does imposing the “Multiple Dwelling Unit” rate on the 20-units in City of Markham DC By‑law 2017-116 contravene sections 2 and 5(6)(2) of the Development Charges Act such that an error in the application of the By-law has occurred?
Does imposing the “Multiple Dwelling Unit” rate on the 20-units in City of Markham DC By-law 2017-116 result in cross-subsidy to other classifications of dwellings such that an error in the application of the By-law has occurred?
Attachment 3
ORDER OF EVIDENCE
- Sher Markham Inc.
- City of Markham
- The Regional Municipality of York
- Reply by Sher Markham Inc. (if any)
ATTACHMENT 4
SUMMARY OF PROCEDURAL DATES
| Date | Hearing Event |
|---|---|
| Thursday, August 24, 2023 | Exchange of list of witnesses and the order in which they will be called. |
| Monday, September 25, 2023 | Exchange of witness and expert witness statements/written evidence, evidence outlines for witnesses under summons. |
| Monday, September 25, 2023 | Exchange written participant statements. |
| Wednesday, October 18, 2023 | Advise Tribunal if hearing dates may be released. |
| Monday, October 23, 2023 | Exchange of written response to evidence/statements (if any) |
| Tuesday, November 7, 2023 | Exchange of visual evidence (if any) |
| Monday, November 13, 2023 | Completion of joint document book |
| Wednesday, November 15, 2023 | Parties to prepare and file preliminary hearing plan |
| Wednesday, November 22, 2023 | Hearing begins |