Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 06, 2024
CASE NO(S).:
OLT-22-004664
PROCEEDING COMMENCED UNDER subsection 42(4.9) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Appellant:
Innovation Developments Kitchener Limited et al
Subject:
Parkland Dedication appeals
Description:
Parkland Dedication By-law
Reference Number:
By-law No. 2022-101
Property Address:
City Wide
Municipality/UT:
City of Kitchener
OLT Case No.:
OLT-22-004664
OLT Lead Case No.:
OLT-22-004664
OLT Case Name:
Innovation Developments Kitchener Limited v. Kitchener (City)
Heard:
February 21, 2024, by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
City of Kitchener
Brian Duxbury
Katherine Hughes
Kitchener Stirling Developments Limited
Kitchener Charles Developments Limited
Meaghan McDermid
Polocorp Inc.
Thomas Sanderson
Steven O’Melia (in absentia)
Vanmar Developments Inc.
Urban Legend Developments Limited
Kim Mullin
VIVE Development Corporation
King Charles Properties (Kitchener) Limited
Kim Mullin
Innovation Developments Kitchener Limited
Sandra Marki*
Patrick Harrington (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY W. daniel best ON February 21, 2024, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This second Case Management Conference (“CMC”) was conducted for the above-noted matter. The remaining Parties to the proceeding, as illustrated in the appearances, have filed appeals against the City of Kitchener (“City”) to adopt the Parkland Conveyance By-law No. 2022-101 (“By-law”) pursuant to s. 42(4.9) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”).
2The effect of the By-law is to establish the City’s requirements for the conveyance of land for park or other public recreational purposes as a condition of development, redevelopment, or approval of a plan of subdivision. The By-law provides the City’s specific application of the Act conditions, including interpretations, exemptions, and requirements of conveyances.
3The Parties have been working diligently and have presented a draft Procedural Order (“PO”) and scoped Issues List (“IL”) for the consideration of the Tribunal. It is their intention to continue discussions.
4The Tribunal requested that a draft PO be submitted, on consent, to ensure that the Issues of all Parties are included, and that the appropriate dates for the exchange of documents and meetings of expert witnesses are reflected. The City was directed to submit the draft PO before Friday, February 23, 2024, to the Case Coordinator.
5Having the benefit of receiving the submitted revised draft PO from the City prior to the issuance of this Decision, and having examined the IL attached to the PO, the Tribunal deems the attached PO to be in of force and effect to govern the proceedings at the Hearing of the Merits scheduled below. Any changes to the PO will require the approval of the Tribunal.
6Based on the discussions during the CMC regarding the scope of the Issues and the expected number of witnesses each Party will rely on, the Tribunal determined that it would be reasonable to schedule the hearing for five (5) days.
7The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.
8A five-(5) day Hearing of the Merits is scheduled to commence on Monday, August 26, 2024, at 10 a.m. by Video Hearing.
9Parties 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:
GoToMeeting: https://global.gotomeeting.com/join/927921077
Access Code: 927-921-077
10Parties 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: https://app.gotomeeting.com/home.html
11Persons 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: (Toll Free) 1-888-299-1889 or +1 (647) 497-9391. The access code is as indicated above.
12Individuals 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
13THE TRIBUNAL ORDERS the directions contained in this Decision.
14The Procedural Order, appended to this Decision as Schedule 1, is approved and in force and effect.
15There will be no further notice.
16The Member is not seized and may be spoken to through the Tribunal’s Case Coordinator if there are any issues with respect to the implementation of this Order.
“W. Daniel Best”
W. DANIEL BEST
MEMBER
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.
SCHEDULE 1
CASE NO(S).: OLT-22-004664
PROCEEDING COMMENCED UNDER subsection 42(4.9) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Innovation Developments Kitchener Limited et al
Subject:
Parkland Dedication appeals
Description:
Parkland Dedication By-law
Reference Number:
By-law No. 2022-101
Property Address:
City Wide
Municipality/UT:
City of Kitchener
OLT Case No.:
OLT-22-004664
OLT Lead Case No.:
OLT-22-004664
OLT Case Name:
Innovation Developments Kitchener Limited v. Kitchener (City)
- 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 Monday, August 26, 2024 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is five (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.
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).
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 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.
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 May 28, 2024 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.
Expert witnesses in the same field shall have a meeting on or before June 12, 2024 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 June 21, 2024.
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.
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.
On or before June 27, 2024, 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.
On or before June 27, 2024, 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.
On or before July 19, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before August 9, 2024, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence July 26, 2024 in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before August 16, 2024.
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 on August 9, 2024 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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before August 19, 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.
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.
This Member is [not] seized.
So orders the Tribunal.
Summary of Key Dates
Date
Event
May 28, 2024
Exchange of list of witnesses and the order in which they will be called
June 12, 2024
Meeting of expert witnesses in the same field
June 21, 2024
Filing of Agreed Statement of Facts and Issues
June 27, 2024
Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons, participant statements
July 26, 2024
Exchange of responding evidence
August 9, 2024
Exchange of visual evidence
August 16, 2024
Filing of Joint Document Book
August 19, 2024
Filing of Hearing Plan
August 26, 2024
Hearing
ATTACHMENT 1
PARTIES AND PARTICIPANTS
Party
Contact Information
City of Kitchener
Represented by:
Duxbury Law Professional Corporation
1 King St W.
Hamilton, ON l8P 1A4
Brian Duxbury
905-570-1242
Katherine Hughes
Innovation Developments Kitchener Limited
Represented by:
Aird Berlis
Brookfield Place,
181 Bay St, Suite 1800
Toronto, ON M5J 2T9
Patrick Harrington
VIVE Development Corporation/ King- Charles Properties (Kitchener) Limited
Represented by:
Wood Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5
Kim Mullin
416-203-5633
Vanmar Developments Inc. & Urban Legend Developments Ltd.
Represented by:
Wood Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5
Kim Mullin
416-203-5633
Kitchener Stirling Developments Limited & Kitchener Charles Developments Limited
Represented by:
Davies Howe LLP
425 Adelaide St, W. 10th Floor
Toronto, ON M5V 3C1
Meaghan McDermid
416-977-7088
Polocorp Inc.
Represented by:
Miller Thomson
115 King St, S
Waterloo, ON N2J 5A3
Steven O'Melia
519-593-3289
ATTACHMENT 2
ISSUES LIST
OLT-22-004664
Appeals of City of Kitchener Park Dedication By-law 2022-101
Consolidated Issues List
Notes: The identification of an issue on this Consolidated Issues List does not mean
that all appellants intend to pursue the issue.
- Should Park Dedication By-law 2022-101 (the “By-law”) be amended to align
with the provisions of the Planning Act as amended by Bill 23. If so, what are the
necessary amendments?
- Should the transition period in s. 273.1.6 of the By-law be extended beyond 12
months and, if so, what is the appropriate transition period?
- Should the transition period in s. 273.1.6 of the By-law capture development
proposals that do not require any Planning Act approvals.
- Should development or redevelopment which receives site plan approval in
principle during the transition period be subject to transition?
- Should the suspension contemplated by s. 273.1.6 also apply where an
additional approval and/or permit is required, the issuance of which is outside the
authority of the City of Kitchener or the Chief Building Official to provide?
- Are the reduction provisions in s. 273.1.4.2 appropriate? Should they capture any
residential redevelopment initiative, regardless of whether parkland was
previously dedicated or cash-in-lieu of parkland was previously paid.
- Should the By-law provide an exemption from or reduction in parkland dedication
requirements for purpose-built rental housing?
- Should the By-law provide credit for privately-owned public spaces (POPS) or
encumbered lands and, if so, what is the appropriate amount of credit?
- Is it appropriate for key aspects of the parkland dedication regime, such as
exemptions and reductions in parkland dedication and maximum per unit rates,
to be set out in a park dedication policy rather than in the By-law. If not, how
should the By-law be amended so that it comprehensively addresses the City’s
parkland dedication regime?
- Are the land valuation rates included in Appendix A of the By-law reasonable?
ATTACHMENT 3
ORDER OF EVIDENCE
- City of Kitchener
- All Other Parties
- City of Kitchener in Reply