Dunpar Homes et. al. v. Mississauga (City), 2024 CanLII 23421

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 14, 2024

CASE NO(S).: OLT-22-004366

PROCEEDING COMMENCED UNDER subsection 42(4.9) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Building Industry Land Development Association

Appellant: Dunpar Homes

Appellant: GWL Realty Advisors Inc.

Appellant: Mississauga I GP Inc., Mississauga II GP Inc., Mississauga III GP Inc. and others

Subject: Parkland Conveyance By-Law No. 0137-2022

Reference Number: By-Law No. 0137-2022

Property Address: (City-wide)

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-22-004366

OLT Lead Case No: OLT-22-004366

OLT Case Name: Dunpar Homes et. al. v. Mississauga (City)

Heard: March 1, 2024 by Video Hearing (“VH”)

APPEARANCES:

Parties

Counsel

City of Mississauga (“City”)

R. Kehar, M. Minkowski

Dunpar Developments Inc./

M. Nemanic, G. Mutlu

Sheridan Retail Inc. (“Dunpar”)

Oxford Properties Group

M. Laskin

Building Industry and Land Development Association

R. Howe

(“BILD”)

GWL Realty Advisors Inc.

A. Frank

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

1This matter proceeded to a second Case Management Conference (“CMC”) by video on Friday, March 1, 2024. The background of this matter was summarized in the previous Decision of Member Tuckey dated December 21, 2023 (“December 2023 Decision”), and need not be reiterated.

2On consent, the Parties sought a ten-day hearing in March, 2025, preceded by a further CMC in late September or October 2024. They also sought to finalize a Procedural Order (“PO”) in this matter.

3Counsel for Dunpar advised that he has filed an application in the Divisional Court for leave to appeal the December 2023 Decision and may be filing at least one further such application. Although Dunpar consented to the requests described in paragraph [2] above, Dunpar’s counsel seemed to suggest that some specific provision should be made to reflect possible future amendments to the issues list to be set out in the PO. Counsel for the City essentially opposed any such effort on the basis that it would be difficult to do so as there is no way to ascertain whether the Divisional Court would grant leave to appeal and what rulings it might make on appeal even if leave was granted and the Court made determinations in favour of Dunpar.

4The Tribunal noted that if the Divisional Court grants leave to appeal then the effect will likely result in at least a partial stay of these proceedings – and, perhaps, a full stay pending the argument of the appeal. The Tribunal also noted that the PO may need to be amended to reflect additional issues and that this will be dealt with if and as required. There is also the matter of certain amendments to the Planning Act that will impact this proceeding if and when they are proclaimed into force. Again, the Tribunal will deal with all of those possible eventualities if and as required. It is impractical to attempt to account for such significant contingencies in the PO at this juncture.

5The Tribunal has scheduled a further CMC to take place on Monday, October 7, 2024 by video hearing.

6The Tribunal has also scheduled the hearing of this matter to proceed for a period of ten days commencing Monday, March 17, 2025 and ending Friday, March 28, 2025 by video.

7The hearings are scheduled to proceed by video as follows:

Monday, October 7, 2024 at 10 a.m. (one-day CMC) GoTo Meeting: https://global.gotomeeting.com/join/979388733 Access code: 979-388-733 Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 979-388-733 Monday, March 17, 2025 at 10 a.m. (ten-day Merit Hearing) GoTo Meeting: https://global.gotomeeting.com/join/344779885 Access code: 344-779-885 Audio-only line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 344-779-885

8Parties 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.

9Parties 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

10Persons 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.

11Individuals 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 Video Hearing 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.

12In the event that the Parties wish to arrange for the above-noted hearing to take place in-person, they must contact the Tribunal to make that request.

13The Tribunal also reminded the Parties of the availability of the OLT’s mediation services to assist in their ongoing efforts to resolve the disputes underlying this proceeding.

ORDER

14THE TRIBUNAL ORDERS THAT:

(a) a further Case Management Conference shall be held as described above;

(b) the hearing of this matter will proceed for a ten-day period in 2025, as described above.

15The Procedural Order appended as Attachment A shall govern the future conduct of this proceeding, as may be amended by the Tribunal in due course.

16This Vice-Chair shall remain available to assist the Parties with the ongoing case management of this matter, subject to the Tribunal’s schedule.

"William R. Middleton"

WILLIAM R. MIDDLETON

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 A

CASE NO(S).: OLT-22-004366

PROCEEDING COMMENCED UNDER subsection 42(4.9) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Building Industry Land Development Association

Appellant:

Dunpar Homes

Appellant:

GWL Realty Advisors Inc

Appellant:

Mississauga I GP Inc., Mississauga II GP Inc.,

Mississauga IIII GP Inc. and others

Subject:

Parkland Conveyance By-law 0137-2022

Description:

Dunpar Homes et al v Mississauga (City)

Municipality/ UT:

City of Mississauga/ Peel

OLT Case No: OLT File No.:

OLT-22-004366 OLT-22-004386

OLT Case Name:

Dunpar Homes et al v Mississauga (City)

PROCEDURAL ORDER

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 March 17, 2025 at 10 a.m. The Hearing will run until March 28, 2025, inclusive.

3. The parties’ initial estimation for the length of the hearing is 10 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 procedural order deadlines are generally found in Attachment 1 to this Order.

4. The parties identified at the case management conferences are set out in Attachment 2.

5. The issues are set out in the Issues List attached as Attachment 3. 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, except if the Issues List is modified to reduce issues, or in order to address anticipated changes to the Provincial Policy Statement and Growth Plan or through mediation or pursuant to a settlement between any of the parties, or is otherwise on consent of the parties or upon further direction from the Tribunal.

6. The order of evidence shall be as set out in Attachment 4 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, 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.

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. This list must be delivered on or before December 13, 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.

10. Expert witnesses in the same field shall have a meeting on or before February 7, 2025 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 February 28, 2025.

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 January 24, 2025 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.

14. On or before February 18, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before February 28, 2025 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.

16. On or before February 19, 2025 the parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 22 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 March 7, 2025.

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 March 7, 2025 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. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal's Video Hearing Guide, or as may be amended. Section 22 applies regardless if the hearing event is in person or electronic.

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.

ATTACHMENT 1

SUMMARY OF KEY DATES

Date

Hearing Event

December 13, 2024

Exchange of List of Witnesses

February 7, 2025

Expert Witness Meeting

February 28, 2025

Filing of Statement(s) of Agreed Facts and Issues

January 24, 2025

Exchange of Witness Statements

February 19, 2025

Exchange of Reply Witness Statements

February 28, 2025

Exchange of Visual Evidence

February 18, 2025

Confirmation to Tribunal if all reserved hearing dates are still required

March 7, 2025

Filing of Joint Document Book

March 7, 2025

Filing of Preliminary Hearing Plan

March 17, 2025

Hearing Commences

ATTACHMENT 2

PARTIES

Party

Counsel

Contact

City of Mississauga

Raj Kehar Chantal deSereville

WeirFoulds LLP Suite 201, 1320 Cornwall Road Oakville, ON L6J 7W5 Raj Kehar rkehar@weirfoulds.com (416) 947-5051 Chantal deSereville cdesereville@weirfoulds.com

(416) 941-5901

Dunpar Developments Inc/ Sheridan Retail Inc.

Luke Johnston Michael Nemanic Giouzelin Mutlu

DUNPAR DEVELOPMENTS INC. 105 Six Point Road Toronto, ON M8Z 2X3 Luke Johnston Tel: 416.236.9800 x 256 Email: l.johnston@dunpar.ca

Michael Nemanic Tel: 416.236.9800 x 232 Email: m.nemanic@dunpar.ca

Giouzelin Mutlu Tel: 416-236-9800 x 237 Email: g.mutlu@dunpar.ca

Oxford Properties Group

Max Laskin

GOODMANS LLP 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 Max Laskin mlaskin@goodmans.ca

Tel: (416) 597-4299

Building Industry & Land Development Association

Robert Howe

GOODMANS LLP 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 Robert Howe rhowe@goodmans.ca

Tel: (416) 597-4299

GWL Realty Advisors Inc.

Jason Park Adrian Frank

Kagan Shastri DeMelo Winer Park LLP Barristers and Solicitors 250 Yonge Street, Suite 2302 Toronto, ON M5B 2L7 Jason Park jpark@ksllp.ca Adrian Frank afrank@ksllp.ca Tel: (416) 645-4584

ATTACHMENT 3

ISSUES LIST

Issue # (as numbered in the original global issues list)

Issue

Party Issue #

Should the provisions of the By-law regarding: (a) the alternative rate for parkland conveyance; and (b) the alternative rate for cash-in-lieu of parkland, including the use of the CIL Capped Rate; be amended to comply with the provisions of subsections 42(3) and (6.0.1), and 51.1(2) and (3.1) of the Planning Act (the “Act”) that address those matters, and the maximum parkland requirements provided for in subsections 42(3.3) and 51.1(3.4) of the Act.

BILD (Issue #1) Oxford Properties Group (Issue #1)

Does the City of Mississauga’s Parkland By-law (0137-2022) comply with the following provisions of the Planning Act, and if not, what amendments are required to achieve compliance in each case: a. Subsection 42(3), which establishes a maximum alternative rate for parkland dedication of 1 hectare for each 600 net residential units; c. Subsection 42(3.3), which establishes a maximum conveyance or payment based on the size of the subject development or redevelopment; d. Subsection 42(4), which requires official plan policies in order for an alternative requirement under subsection 42(3) to be included in a parkland by-law; and e. Subsection 42(6.0.1), which establishes a maximum alternative rate for cash-in-lieu of 1 hectare for each 1000 net residential units.

GWLRA (Issue #1)

Does section 10 of the By-law, which provides that only those units for which a landowner can provide evidence that a previous parkland conveyance or cash-in-lieu payment was made are to be excluded from the calculation of parkland conveyance or cash-in-lieu requirements where the alternative rate is applied, comply with subsections 42(3), (3.0.2) and (6.0.1), and 51.1(2), (3.0.1) and (3.1) of the Act, which provide that only “net residential units” are to be included in calculating parkland conveyance or cash-in-lieu requirements, and accordingly that all units on lands at the time of development or redevelopment or the date of draft plan approval are to be excluded from the relevant calculation?

BILD (Issue #4) Oxford Properties Group (Issue #4)

Does the City of Mississauga’s Parkland By-law (0137-2022) comply with the following provisions of the Planning Act, and if not, what amendments are required to achieve compliance in each case: b. subsection 42(3.0.2), which establishes how “net residential units” are to be determined;

GWLRA (Issue #1)

Does the By-law, and in particular the definition of “Additional Residential Unit”, comply with the provisions of section 42(1.3) of the Act, which exempt second or third residential units in certain housing types, and new residential units in certain ancillary buildings, from parkland conveyance and cash-in-lieu requirements. Should the By-law be amended to provide an exemption that complies with the Act?

BILD (Issue #7) Oxford Properties Group (Issue #7)

Should the By-law contain provisions that address the parkland conveyance or cash-in-lieu requirements for development that may be subject to subsections 42(3.0.1), (3.5) or (6.0.3), or 51.1(3.2) or (3.5) of the Act? If so, what should they be, including how should the alternative parkland rates be applied to such development?

BILD (Issue #3) Oxford Properties Group (Issue #3)

Are the provisions of the By-law sufficiently clear in terms of when the alternative rates for calculating parkland conveyance or cash-in-lieu requirements will be applied, and in particular the definitions and use of the terms "Residential Low Density" and "Residential Medium and High Density”? *This issue is to be interpreted in accordance with the explanatory note provided by BILD and Oxford in letter attached as Schedule “B” of the Reply Motion Record of the City of Mississauga dated October 6, 2023

BILD (Issue #2) Oxford Properties Group (Issue #2)

Does the By-law comply with section 42(1.2) of the Act, which exempts non-profit housing development from parkland conveyance and cash-in-lieu requirements. Should the Bylaw be amended to provide an exemption that complies with the Act.

BILD (Issue #5) Oxford Properties Group (Issue #5)

• *BILD, Oxford, and GWLA reserve the right to raise the following issues should subsection 42(4.30) – 42(4.39) come into force and effect pending the disposition of the appeal.
  • BILD and Oxford (Issue 15): Should the By-law be amended to provide that interests in land other than a fee simple conveyance, or that certain lands subject to encumbrances such as lands that abut one or more other parcels of land on a horizontal plane, lands subject to easements or other restrictions, or lands that contain below grade infrastructure, satisfy parkland conveyance requirements?
  • GWLA (Issue 16): Should the Parkland By-law be amended to provide that interests in land other than a fee simple conveyance may satisfy parkland conveyance requirements—for example, stratified lands, lands containing below-grade infrastructure, or lands subject to easements?
  • Dunpar/ Sheridan (Issue 18): Should the Parkland By-law be modified to allow a greater range of land, including non-fee simple parkland, to be counted towards the quantum of parkland required to be conveyed to the City as a condition of development or redevelopment, if additional lands are included in the City’s existing and forecasted supply of parkland?
• *BILD and Oxford reserve the right to raise the following issue should the provisions of Bill 23 excluding Affordable and Attainable Units from the calculation of net residential units in applying the alternative rate come into force and effect prior to the disposition of the appeal:
  • Issue 13: Should the By-law be amended to exempt affordable and attainable residential units from parkland conveyance and cash-in-lieu requirements?

ATTACHMENT 4

ORDER OF EVIDENCE

1. City of Mississauga

2. Building Industry & Land Development Association

3. Oxford Properties Group

4. GWL Reality Advisors Inc.

5. City of Mississauga in reply