Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 06, 2023 CASE NO(S).: OLT-23-000265

PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c. 29.

Applicant/Appellant: McLean-Peister Ltd. Subject: Appeal of dismissal Description: A Development Charge Complaint for a multi-storey industrial facility. Reference Number: COR-CFN-23-007 Property Address: 375 New Dundee Road Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-23-000265 OLT Lead Case No: OLT-23-000265 OLT Case Name: McLean-Peister Ltd v. Waterloo (Region)

PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c. 29.

Applicant/Appellant: McLean-Peister Ltd. Subject: Appeal of dismissal Description: A Development Charge Complaint for a multi-storey industrial facility. Reference Number: FIN-2023-064 Property Address: 375 New Dundee Road Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-23-000289 OLT Lead Case No: OLT-23-000265 OLT Case Name: McLean-Peister Ltd v. Kitchener (City)

Heard: August 21, 2023, by Video Hearing

APPEARANCES:

Parties	Counsel
McLean Peister Ltd.	J. Doherty (in absentia), T. Neill*
Regional Municipality of Waterloo	R. Brookes*
City of Kitchener	K. Hughes*

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON AUGUST 21, 2023 AND ORDER OF THE TRIBUNAL

1The Tribunal convened the first Case Management Conference (“CMC”) in respect of the appeals by McLean Peister Ltd (“Appellant”). The Appellant has filed appeals pursuant to s. 22(1) of the Development Charges Act against the Regional Municipality of Waterloo (“Region”) Tribunal Case No. OLT-23-000265 and the City of Kitchener (“City”) Tribunal Case No. OLT-23-000289. The property is municipally known as 375 New Dundee Road in the City (“Subject Property”).

2The Tribunal served notice on July 7, 2023. No further notice is required.

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

BACKGROUND

4Mr. Neill, Counsel for the Appellant, provided background with respect to the appeals for the benefit of the Tribunal and Parties. The proposed development is a multi-storey facility primarily consisting of self-storage units and will also include retail space and an adjacent parking area.

5Mr. Neill submitted that the Development Charges assessed to the Appellants proposed development merit both a reduction in the charge levied by the Region, and a refund of the charge levied by the City for the construction of a watermain. The original complaint also alleged that the Appellant should receive an Industrial discount pursuant to the Regions Development Charge By-law. Mr. Neill advised the Tribunal that his client is no longer pursuing this complaint.

6Mr. Brookes, Counsel for the Region, noted that the Regional Council denied the credit for the construction of the watermain, and confirmed that the Appellant has abandoned the Industrial discount.

7All Parties requested that the two appeals be consolidated in keeping with Rule 16.1 of the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”). Mr. Brookes advised the Tribunal that the appeals against the Region and City are by the same developer and are with respect to the same development. Albeit that the appeals are under two different Development Charge By-laws, the legal Issues are similar and there is considerable similarity with respect to the Issues that will find their way onto the Procedural Order’s (“PO”) Issues List.

8Ms. Hughes, Counsel for the City, agrees with this approach and that these two Tribunal matters are best consolidated.

9All Parties consented to the consolidation of these proceedings in keeping with Rule 16.1 and 16.2 of the Rules.

10The Tribunal is advised that a draft PO is extremely close to being submitted on consent by all Parties. Therefore, the Parties request that they be permitted to submit a PO as soon as possible for the review and approval of the Tribunal. With this assurance, Mr. Neill requested that the Tribunal schedule a three-day Merits Hearing to adjudicate the appeals. All Parties consented to this request.

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

TRIBUNAL FINDINGS

12The Tribunal is prepared to schedule a three-day Merits Hearing on these matters.

13Mr. Neill will finalize and submit the PO to the Tribunal no later than 4.30 p.m. on Friday August 25, 2023. Should the PO not be submitted in that time frame, this Tribunal will schedule a Telephone Conference Call to determine the status.

14The Tribunal is in receipt of the final PO and finds it acceptable to manage the Merits Hearing. The PO is attached as Schedule 1 to this decision.

15The Tribunal finds that Ontario Land Tribunal Case file No. OLT-23-000265 and No. OLT-23-000289 are appropriately consolidated in keeping with Rule 16.1 and 16.2 of the Rules. The Tribunal agrees that the consolidation of these two matters will allow for a “fair, just, expeditious and cost-effective resolution of the merits of the proceedings”.

MERIT HEARING TECHNICAL DETAILS

16A three-day Merits Hearing will convene on Monday February 26 to Wednesday February 28, 2024, by Video Hearing at 10 a.m.

17Parties 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

Audio-Only Line: 1-888-455-1389 (Toll Free) OR +1 (647) 497-9373

Access Code: 709-076-365

18Parties 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 mentioned above.

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

ORDER

21Accordingly, the Tribunal Orders that:

22A Merits Hearing is scheduled to commence on Monday February 26, 2024, at 10 a.m.

23Ontario Land Tribunal Case file Nos. OLT-23-000265 and OLT-23-000289 are consolidated in keeping with Rule 16.1 and 16.2 of the Ontario Land Tribunal Rules of Practice and Procedure.

24The Procedural Order attached as Schedule 1 is in full force and effect.

25The Tribunal Member is not seized.

26There is no further notice.

“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

Procedural Order

CASE NO(S).: OLT-23-000265

PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c. 29.

Applicant/Appellant: McLean-Peister Ltd. Subject: Appeal of dismissal Description: A Development Charge Complaint for a multi-storey industrial facility. Reference Number: COR-CFN-23-007 Property Address: 375 New Dundee Road Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-23-000265 OLT Lead Case No: OLT-23-000265 OLT Case Name: McLean-Peister Ltd. v. Waterloo (Region)

PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c. 29.

Applicant/Appellant: McLean-Peister Ltd. Subject: Appeal of dismissal Description: A Development Charge Complaint for a multi-storey industrial facility. Reference Number: FIN-2023-064 Property Address: 375 New Dundee Road Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-23-000289 OLT Lead Case No: OLT-23-000265 OLT Case Name: McLean-Peister Ltd. v. Kitchener (City)

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 Monday, February 26, 2024 at 10:00 a.m. via video conference.

3. The parties’ initial estimation for the length of the hearing is three (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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

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, e-mail 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. The Appellant’s list must be delivered on or before Tuesday, November 7, 2023 and the City of Kitchener’s / The Regional Municipality of Waterloo’s respective lists must be delivered on or before Tuesday, November 14, 2023, in accordance with paragraph 21 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 Friday, February 2, 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 with the OLT case co-ordinator on or before Friday, February 9, 2024.

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 Friday, December 15, 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.

14. On or before Wednesday, January 3, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before Friday, February 9, 2024, 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.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by Friday, January 26, 2024 in accordance with paragraph 21 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, February 9, 2024.

18. 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 Friday, February 16, 2024 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.

KEY EXCHANGE DATES

Exchange of Witness Lists for Appellant Tuesday, November 7, 2023

Exchange of Witness Lists for City of Kitchener and The Regional Municipality of Waterloo Tuesday, November 14, 2023

Exchange of Expert / Witness Statements Friday, December 15, 2023

Advise OLT if any hearing dates can be vacated Wednesday, January 3, 2024

Exchange of Reply Expert / Witness Statements Friday, January 26, 2024

Meeting of Experts in Same Field By Friday, February 2, 2024

Filing of Statement of Agreed Facts Friday, February 9, 2024

Filing of Visual Evidence Friday, February 9, 2024

Filing of Joint Book of Documents Friday, February 9, 2024

Filing of Hearing Plan Friday, February 16, 2024

Hearing Date Monday, February 26, 2024

Attachment #1 Parties and Participants

Counsel for McLean Peister Ltd. GOWLING WLG (CANADA) LLP Barristers & Solicitors 345 King Street West Suite 600 Kitchener, ON N2G 0C5 John S. Doherty Tel: 519-575-7518 john.doherty@gowlingwlg.com Kevin Dias Tel: 519-575-7527 kevin.dias@gowlingwlg.com

Counsel for The Regional Municipality of Waterloo REGIONAL MUNCIPALITY OF WATERLOO 150 Frederick Street Eighth Floor Kitchener, ON N2G 4J3 Richard Brookes Tel: 519-575-4458 rbrookes@regionofwaterloo.ca

Counsel for the City of Kitchener THE CORPORATION OF THE CITY OF KITCHENER 200 King Street West Kitchener, ON N2G 4G7 Katherine Hughes, Assistant City Solicitor (Development and Planning) 519-741-2200, Ext. 7266 katherine.hughes@kitchener.ca

Attachment #2 Issues List

Was there an error in the application of the development charges by-law of the City of Kitchener (By-law 2019-086) by charging for water services in its development charge given the site of the subject development had no water services directly along its frontage?

Was there an error in the application of the development charges by-law of The Regional Municipality of Waterloo (By-law 19-037) by charging for water services in its development charge given the site of the subject development had no water services directly along its frontage?

Is the 200mm watermain and tee connection installed by the Appellant entitled to a development charge credit pursuant to section 38 of the Development Charges Act and sections 6.5-6.7 (inclusive) of City of Kitchener By-law 2019-086 in relation to the development charge paid to the City of Kitchener, being the lower-tier municipality?

Is the 200mm watermain and tee connection installed by the Appellant entitled to a development charge credit pursuant to section 38 of the Development Charges Act and section 8 of Regional Municipality of Waterloo By-law 19-037 in relation to the development charge paid to The Regional Municipality of Waterloo, being the upper-tier municipality?

What is the proper amount of the development charge credit if the Appellant is entitled to such in relation to the development charge paid to the City of Kitchener and/or The Regional Municipality of Waterloo?

Attachment #3 Order of Evidence

1. McLean Peister Ltd. – Appellant
2. The Corporation of the City of Kitchener
3. The Regional Municipality of Waterloo
4. Reply – McLean Peister Ltd. – Appellant