Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 16, 2023

CASE NO(S).: OLT-23-000509

PROCEEDING COMMENCED UNDER subsection 22(2) of the Development Charges Act, 1997, S.O. 1997, c. 30.

Applicant/Appellant: 140 Old Mill Road LP and 140 Old Mill Road Coinvest LP Subject: Industrial Building and Warehousing Description: Determination of the Development Charges Reference Number: DC By-law 19-037 Property Address: 140 Old Mill Road Municipality/UT: Cambridge/Waterloo OLT Case No: OLT-23-000509 OLT Lead Case No: OLT-23-000509 OLT Case Name: 140 Old Mill Road LP v Waterloo (Region)

Heard: August 28, 2023 By Video Hearing

APPEARANCES:

Parties	Counsel
140 Old Mill Road LP and 140 Old Mill Road Coinvest LP	S. Ferri A. Sanichara
Regional Municipality of Waterloo	P. DeMelo R. Brookes

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON AUGUST 28, 2023 AND ORDER OF THE TRIBUNAL

1The Tribunal convened the first Case Management Conference (“CMC”) in respect of the appeal by 140 Old Mill Road LP and 140 Old Mill Road Coinvest LP (“Appellant”). The Appellant has filed an appeal pursuant to s. 22(2) of the Development Charges Act against the Regional Municipality of Waterloo’s (“Region”) failure to make a decision on the Appellants complaint. The property is municipally known as 140 Old Mill Road in the City of Cambridge. (“subject property”).

2The Tribunal served notice on July 4, 2023, and no further notice is required.

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

BACKGROUND

4Mr. Ferri, Counsel for the Appellant, provided background with respect to the appeal for the benefit of the Tribunal and Parties. The proposed development is a building to be constructed on the subject property that is located at the southeast corner of Fountain Street and Highway 401 in Cambridge. The appeal as described by the Appellant, is the incorrect allocation of an additional assessment, and an error in the application of the Region’s Development Charges By-law.

5The Tribunal is advised that a draft Procedural Order (“PO”) is extremely close to being submitted on consent by all Parties. The Parties are finalizing the drafting of the Issues for the Issues List. Therefore, the Parties request that they be permitted to submit a PO no later than September 7, 2023, for the review and approval of the Tribunal. With this assurance, Mr. Ferri requested that the Tribunal schedule a five-day Merits Hearing to adjudicate the appeal. All Parties agreed with the request for the scheduling of a Merits Hearing.

6The Parties are aware of the availability of Tribunal-led mediation and understand they may request this mediation at their convenience.

TRIBUNAL FINDINGS

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

8Mr. Ferri will finalize and submit the PO to the Tribunal no later than 4.30 p.m. on Thursday, September 7, 2023. Should the PO not be submitted in that time frame, this Tribunal will schedule a Telephone Conference Call to determine status.

9The Tribunal may be spoken to should the Parties have difficulty in finalizing the Issues for the Issues List.

10The 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.

MERIT HEARING TECHNICAL DETAILS

11A five-day Merits Hearing will convene on Monday November 20, 2023, by Video Hearing at 10 a.m.

12Parties 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/909787981

Access Code: 909-787-981

Audio-Only Line: 1-888-455-1389 (Toll Free) OR +1 (647)-497-9391

13Parties 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

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 mentioned above.

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

16Accordingly, the TRIBUNAL ORDERS THAT:

1. A Merits Hearing is scheduled to commence on Monday, November 20, 2023, at 10 a.m.

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

3. The Tribunal Member is not seized.

17There 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

CASE NO(S).: OLT-23-000509

PROCEEDING COMMENCED UNDER subsection 22(2) of the Development Charges Act, 1997, S.O. 1997, c. 30.

Applicant/Appellant: 140 Old Mill Road LP and 140 Old Mill Road Coinvest LP Subject: Industrial Building and Warehousing Description: Determination of the Development Charges Reference Number: DC By-law 19-037 Property Address: 140 Old Mill Road Municipality/UT: Cambridge/Waterloo OLT Case No: OLT-23-000509 OLT Lead Case No: OLT-23-000509 OLT Case Name: 140 Old Mill Road LP v Waterloo (Region)

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, November 20, 2023 at 10 a.m. via Virtual Hearing login to be confirmed.

3. The length of the hearing is 5 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. The summary of event dates for exchange of documents and other procedural matters is set out in Attachment 4.

8. 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.

9. 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

10. 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 [45 days before the start of the hearing] 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.

11. Expert witnesses in the same field shall have a meeting on or before [38 days before the start of the hearing] 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 co-ordinator on or before [23 days before the start of the hearing].

12. 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.

13. 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.

14. On or before [24 days before the start of the hearing], 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.

15. On or before [100 days before the start of the hearing], 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.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence no later than [30 days before the start of the hearing] and in accordance with paragraph 22 below.

17. On or before [35 days before the start of the hearing] the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before [10 days before the start of the hearing], 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.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before [10 days before the start of the hearing].

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before [7 days before the start of the hearing] 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.

23. All filings shall be submitted electronically. 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 Rule 7.

24. 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 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.

Attachment 1

List of Parties and Participants

1. 140 Old Mill Road Limited Partnership and 140 Old Mill Road c/o Steven C. Ferri & R. Arti Sanichara Loopstra Nixon LLP 416.748.4752 sferri@loonix.com asanichara@ln.law

2. The Regional Municipality of Waterloo c/o Paul M. DeMelo Kagan Shastri DeMelo Winer Park LLP 437.780.3435 pdemelo@ksllp.ca

Attachment 2

Issues List

1. Did the Region err in its application of the DC By-law? a. Does the DC By-law, including at (sub)sections 4(8), 11, and 12, and the DC Act, including section 26, act as a bar to an additional or different amount being assessed (“Second DC Charge Assessment”) for the development of a 123,592m2 building on the Broccolini Lands (“Development”); and b. Did the Region err in its application of the DC By-law, including sections 5, 11, 12, and 14 and the DC Act, including section 26.2 and section 29, by determining the Second DC Charge Assessment on a date after the issuance of the first building permit for the Development.

2. Was the amount of the Second DC Charge Assessment incorrectly determined? a. Is the Appellant entitled to rely on communications by the Region and the local municipality that the full assessed development charge payable for the Development is $9,082,948.59, including communications made pursuant to section 29 of the DC Act (“First DC Charge Assessment”), such that it is not required to pay the Second DC Charge Assessment? Are these communications sufficient evidence of the full development charge? b. What is the applicable development charge rate that would apply to the Development?; c. Does the 60% reduction in development charges for an Industrial Building set out in section 4(11) of the DC By-law apply to the apply to the Development?; and, d. Is the Second DC Charge Assessment prohibited by subsection 5(6) of the DC Act?

3. Is Council for the Region, or alternatively is the Ontario Land Tribunal pursuant to the powers under Section 20(6) of the DC Act, permitted to allow for a development charge calculation that is not authorized by the DC By-law? Would a decision that allows for a development charge other than that permitted under the DC By-law be contrary to the prohibition against bonussing under Section 106 of the Municipal Act?

Note: 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 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.

Attachment 3

Order of Evidence

1. 140 Old Mill Road Limited Partnership and 140 Old Mill Road
2. The Regional Municipality of Waterloo
3. 140 Old Mill Road Limited Partnership and 140 Old Mill Road (Reply)

Attachment 4

Summary of Exchange Dates

Event	Due Date
Witness List Due	Friday, October 6, 2023
Expert Meeting, if required	Friday, October 13, 2023
Witness Statements Due	Friday, October 27, 2023
Reply Witness Statement	Friday, November 10, 2023
Joint Document Book to Tribunal	Friday, November 10, 2023
Hearing Plan to Tribunal	Monday, November 13, 2023