Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 14, 2024
CASE NO.(S).: OLT 22-004364
PROCEEDING COMMENCED UNDER subsection 14 of the Development Charges Act, R.S.O. 1997, c. 27
Appellants: Sheridan Retail Inc
Subject: Development Charge Complaint
Description: Development Charge Complaint
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)
PROCEEDING COMMENCED UNDER subsections 9.1 and 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Sheridan Retail Inc
Request for: Request for Directions
Heard: January 31, 2024 via Video Conference
APPEARANCES:
Parties
Sheridan Retail Inc
Counsel
Michael Nemanic Giouz Multuc Luke Johnston (in absentia)
Parties
City of Mississauga
Counsel
Andrew Biggart Lia Magi
MEMORANDUM OF ORAL DECISION DELIVERED BY SHARYN VINCENT ON JANUARY 31, 2024 AND ORDER OF THE TRIBUNAL
Link to Final Order
1A Motion has been brought by Sheridan Retail Inc (also known as Dunpar Developments, “Dunpar”) seeking an order of the Tribunal directing further disclosure on the part of the City of Mississauga (“City”) with respect to the matters set out in Attachment 1 hereto, forming part of this Order, together with the addition of three Issues to the approved Issues List, and subject to the outcome of the Motion for Disclosure, the reconsideration of the scheduled hearing dates, all in connection with the appeals brought against the City’s Development Charges By-law No. 0133-2022.
2Pursuant to the Tribunal Order issued on August 24, 2023, a 14-day Hearing has been scheduled to consider the appeal brought by Dunpar, and the request for the Disclosure Order filed pursuant to s. 9.1 of the Ontario Land Tribunal’s Rules of Practice and Procedure. This arises out of the dispute between the Parties with respect to the matters in Attachment 1, which Dunpar contends have not been addressed to date in the responses provided by the City to requests for background data not found in the Development Charge Background Study, or other reliable publicly accessible sources.
3At the outset of the Hearing, as was established in the Responding Record, the Parties confirmed that they had achieved agreement on the three additional issues, and the Tribunal was satisfied, and therefore ordered that the approved Issues List be revised accordingly pursuant to clause five (5) of the approved Procedural Order.
4Both Parties acknowledged the significant resolution of the light between the Parties, which had been achieved since the original request for additional information in June of 2023, up to the responses received in January of 2024. Attachment 1, as previously referenced, represents the summary of what Dunpar contends remains unanswered.
5Using Attachment 1 as an agenda of sorts, the Tribunal heard very detailed submissions from both Parties. Firstly, the Mover referring to the affidavits sworn by each of the witnesses comprising the Dunpar team who as they individually prepare for the scheduled hearing, finds lacking the data in the background study to the Development Charges By-law; and in rebuttal, the City responded by framing responses provided to date against the original questions posed, asserting that answers to the questions as asked, had been answered.
6Having heard and considered both the written and oral submissions, and being mindful of the approaching three-week Hearing and related exchange deadlines, the Tribunal rendered the following Order:
While the Tribunal is persuaded that the City has used its best efforts to respond to what it construed the questions to be, the submissions today demonstrate that in fact, as characterized by Mr. Biggert, there have been perhaps two ships passing in the night.
The Tribunal is persuaded that the appellant has satisfied the Tribunal’s rules with respect to disclosure by demonstrating relevance and necessity in order to ensure that the best evidence is put before the Tribunal for adjudication in the scheduled hearing on the merits of the appeal of the development charges by-law.
7THE TRIBUNAL THEREFORE ORDERS as follows:
The Tribunal amends the Issues List to include the three additional Issues as agreed to by the Parties, and thereupon invokes clause five of the existing Procedural Order which stipulates that there will be no further changes to the Issues List unless otherwise approved by the Tribunal.
The Tribunal orders that Dunpar make no further requests or demands for information;
The Tribunal orders that the scheduled Hearing is peremptory; and
The Tribunal orders the City to use its best efforts to respond to all of the requests in Attachment 1, forming part of this Order, by Monday, March 11, 2024, recognizing the voluntary undertaking given during the course of submissions to comply with items 2(c) and 2(d).
8The Tribunal would recommend that a meeting of experts in advance of the mandatory meeting and filing of statements of agreed facts be convened to ensure that the respective asks are mutually understood.
9The Member will remain seized to assist in case management up to the point of the exchange of witness statements, at which time the matter will be in the hands of the assigned presiding Member.
“Sharyn Vincent”
SHARYN VINCENT
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.
ATTACHMENT 1
- Outstanding 2022-2031 Budget Details
c. Confirmation of where the Capital Subprojects 1.1.11 to 1.1.12 (Dundas St. BRT) and Capital Subprojects 1.1.13 (Lakeshore Road BRT) are funded in the disclosed itemized project list, and if funded elsewhere, disclosure of the relevant budget detail(s) for the reasons stated in the Affidavit and Reply Affidavit of Ms. Deanna Green.
d. 2022-2031 Budget Details (an itemized project list) for Capital Subprojects 3.1.9 to 3.1.27 and Capital Subproject 3.3.1 included in the Library Services Capital Program for the reasons stated in the Affidavit and Reply Affidavit of Mr. Rowan Faludi.
e. 2022-2031 Budget Details (an itemized project list) for the listed Capital Projects included in the Transit Services Capital Program for the reasons stated in the Affidavit and Reply Affidavit of Mr. Kenneth Chan:
i. Capital Subprojects 1.1.1 to 1.1.5 (Buses);
ii. Capital Subprojects 1.2.1 to 1.2.3 (Vehicles and Equipment);
iii. Capital Subprojects 1.3.1 to 1.3.3 (Buildings and Facilities);
iv. Capital Subprojects 1.4.1 to 1.4.12 (Bus Stations, Shelters, and Pads); and,
v. Capital Subprojects 1.5.1 to 1.5.2 (Studies).
- Outstanding Post-Period Benefit Information
f. An itemized project list confirming what portion of the Other Developed Related Costs includes expenditures related to post period benefit for the listed Capital Projects included in various Capital programs for the reasons stated in the Affidavit of Mr. Rowan Faludi:
i. Capital Subprojects 3.1.27 and 3.1.28 (Library Services Capital Program);
ii. Capital Subprojects 5.8.14 to 5.8.18, 5.8.22, and 5.8.26 (Parks and Recreation Capital Program);
iii. Capital Subprojects 1.3.2 to 1.3.3 and 1.4.11 to1.4.12 (Transit Services Capital Program);
iv. Capital Subprojects 1.1.1 to 1.1.2 (Public Works Services Capital Program); and,
v. Capital Subprojects 1.2.4 to, 1.2.8, 1.2.15 to 1.2.16, 1.2.18, 1.2.21, 1.3.1 to 1.3.3, and 1.4.21 to 1.4.24 (Roads and Related Infrastructure Capital Program).
- Outstanding Transportation Model Inputs
g. The following inputs from the City’s Transportation Model referenced in Ms. Deanna Green’s information and disclosure request, Affidavit, and Reply Affidavit, for the reasons stated in the Affidavit and Reply Affidavit of Ms. Deanna Green:
i. The screenline volume to capacity (v/c) ratios and traffic volume and link capacities for existing and forecasted conditions (2041) and,
ii. The v/c threshold used to determine when a road widening or new road is required.
h. The following inputs from the City’s Transportation Model referenced in Mr. Kenneth Chan’s information and disclosure request, for the reasons stated in the Affidavit and Reply Affidavit of Mr. Kenneth Chan:
i. A modal link volume to capacity analysis for auto and transit modes for the three scenarios referenced in Mr. Kenneth Chan’s information and disclosure request:
A) 2016 land use (population and employment numbers) on the 2016 network
B) 2016 land use on the 2031 network; and,
C) 2041 land use on the 2031 network.