Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 16, 2024

CASE NO(S).: OLT-23-000794

PROCEEDING COMMENCED UNDER section 14 of the Development Charges Act, 1997, S.O. 1997, c. 27

Appellant: Hewitts Creek Landowners Group Inc.

Appellant: Barrie Central Developments Inc. and 129 Collier LP

Appellant: 440 Essa Developments Inc. (One Urban Developments Inc.)

Appellant: Salem Landowners Group Inc.

Description: Determination of the development charges

Reference Number: By-law 2023-74

Property Address: City-wide

Municipality/UT: Barrie/Simcoe

OLT Case No.: OLT-23-000794

OLT Lead Case No.: OLT-23-000794

OLT Case Name: 440 Essa Developments Inc. v. Barrie (City)

Heard: February 27, 2024 by Video Hearing (“VH”) March 15, 2024 (in writing)

APPEARANCES:

Parties	Counsel
440 Essa Developments Inc. (One Urban Developments Inc.) (“Appellants”)	Naomi Mares, Alexander Suriano (in absentia)
Hewitts Creek Landowners Group Inc. (“Appellant”)	Chris Barnett
Barrie Central Developments Inc. and 129 Collier LP (“Appellants”)	Matt Helfand, Andrea Skinner (in absentia)
Salem Landowners Group Inc. (“Appellant”)	Robert Howe
Corporation of the City of Barrie (“Respondent”)	Bruce Engell, Kelin Algayer

DECISION DELIVERED BY ROBERT G. ACKERMAN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing event is the second Case Management Conference (“CMC”) conducted in these Appeals pursuant to section 14 of the Development Charges Act, 1997, S.O. 1997 c. 27 (the “Act”), from the Decision of the Council for the Corporation of the City of Barrie (the “City”) passing Development Charges By-law 2023-74. At the first CMC before Member Bryan W. Tuckey, on November 7, 2023, a 20-day Hearing on the Merits was scheduled for September 23 to October 22, 2024, and this CMC was Ordered for the purpose of establishing the terms of a Procedural Order (“PO”).

PROCEDURAL ORDER

2A draft PO had been circulated among Counsel and to the Tribunal prior to the CMC. The Tribunal reviewed the draft PO with Counsel and was advised that, while there was general agreement among all counsel as to its provisions, discussions were continuing respecting the timelines under paragraphs 12, 16 and 20 and regarding the Issues List (“IL”). The Tribunal provided its directions regarding the PO and Mr. Algayer, Counsel for the City, undertook to submit a finalized draft PO and IL incorporating the Tribunal’s Directions once the agreement regarding the IL was concluded.

3The Tribunal has subsequently received and reviewed the revised draft of the PO, List of Parties and Participants, IL and Order of Evidence and is advised that the PO may be issued on the consent of the Parties. The fixed dates for the Hearing on the Merits and for the Pre-Hearing timeline are now provided in the PO appended to this Decision.

4Appended to this Decision as Schedule 1 is the PO, which will now govern all further Pre-Hearing procedural requirements and the Hearing of the Appeals on the Merits.

5Appended to this Decision as Attachment 1, Attachment 2 and Attachment 3 respectively, are the List of Parties and Participants, the IL and the Order of the Evidence, which shall govern the conduct of the Hearing of the Appeals.

ORDER

6THE TRIBUNAL ORDERS THAT the Procedural Order appended as Schedule 1 to this Decision shall govern the conduct of these Proceedings and that the List of Parties and Participants, the Issues List and the Order of the Evidence, appended as Attachment 1, Attachment 2 and Attachment 3 respectively, shall govern the conduct of the Hearing of the Appeals on the Merits.

“Robert G. Ackerman”

ROBERT G. ACKERMAN 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.: OLT-23-000794

PROCEEDING COMMENCED UNDER section 14 of the Development Charges Act, 1997, S.O. 1997, c. 27

Appellant: Hewitts Creek Landowners Group Inc.

Appellant: Barrie Central Developments Inc. and 129 Collier LP

Appellant: 440 Essa Developments Inc. (One Urban Developments Inc.)

Appellant: Salem Landowners Group Inc.

Description: Determination of the development charges

Reference Number: By-law 2023-74

Property Address: City-wide

Municipality/UT: Barrie/Simcoe

OLT Case No.: OLT-23-000794

OLT Lead Case No.: OLT-23-000794

OLT Case Name: 440 Essa Developments Inc. v. Barrie (City)

PROCEDURAL ORDER

1. The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

2. The hearing will begin on September 23, 2024 at 10 a.m. at:

GoTo Meeting: https://meet.goto.com/996288525

Access code: 996-288-525

Audio-only telephone line: (Toll Free) 1 888 455 1389 or +1 (647) 497-9391

Audio-only access code: 996-288-525

3. The length of the hearing will be about four (4) weeks ending October 22, 2024 (the Tribunal will not be sitting on October 14, 2024 and October 15, 2024).

4. The Parties identified at the Prehearing Conference are listed in Attachment 1 to this Order.

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 is set out in Attachment 3.

7. Any person intending to participate in the hearing should provide a telephone number and contact information to the Tribunal and the other parties as soon as possible. Any such person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, email address, mailing address and phone number as soon as possible. Contact information is set out in Attachment 1.

Requirements Before the Hearing

8. 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 19 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.

9. Expert witnesses in the same field shall have a meeting on or before June 25, 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 August 23, 2024.

10. 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 12 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.

11. 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 12 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 12 below.

12. On or before July 25, 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 19 below.

13. On or before August 9, 2024, participants shall provide copies of their written participant statement to the other parties in accordance with paragraph 19 below. A participant cannot present oral submissions at the hearing on the content of their written statement unless ordered by the Tribunal.

14. On or before August 19, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before September 9, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 19 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 within thirty (30) days after the evidence is received and in accordance with paragraph 19 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 September 13, 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 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.

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.

23. The Tribunal will conduct mediation on consent of the parties or on motion of a party if the Tribunal sees fit.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

PARTIES

Counsel/Agent*

1. City of Barrie Bruce Engell WeirFoulds LLP 66 Wellington Street West Suite 4100 – TD Centre Toronto, ON M5K 1B7 E-mail: bengell@weirfoulds.com Tel.: 416-947-5081 Fax: 416-365-1876

   Kelin Algayer WeirFoulds LLP 66 Wellington Street West Suite 4100 – TD Centre Toronto, ON M5K 1B7 E-mail: kalgayer@weirfoulds.com Tel.: 437-419-2137 Fax: 416-365-1876

2. Salem Landowners Group Inc. Robert D. Howe Goodmans LLP Bay Adelaide Centre – West Tower 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 E-mail: rhowe@goodmans.ca Tel.: 416-597-5158 Fax: 416-979-1234

3. Hewitts Creek Landowners Group Inc. Chris Barnett Osler, Hoskin & Harcourt LLP 100 King Street West 1 First Canadian Place Suite 6200, P.O. Box 50 Toronto, ON M5X 1B8 E-mail: cbarnett@osler.com Tel.: 416-862-6651 Fax: 416-862-6666

4. Barrie Central Developments Inc. and 129 Collier LP Andrea Skinner Aird & Berlis LLP 181 Bay Street, Suite 1800 Brookfield Place Toronto, ON M5J 2T9 E-mail: askinner@airdberlis.com Tel.: 416-865-3423 Fax: 416-863-1515

   Matthew Helfand Aird & Berlis LLP 181 Bay Street, Suite 1800 Brookfield Place Toronto, ON M5J 2T9 E-mail: mhelfand@airdberlis.com Tel.: 416-865-4624 Fax: 416-863-1515

5. 440 Essa Developments Inc. (One Urban Developments Inc.) Alexander J Suriano Aird & Berlis LLP 181 Bay Street, Suite 1800 Brookfield Place Toronto, ON M5J 2T9 E-mail: asuriano@airdberlis.com Tel.: 437-880-6108 Fax: 416-863-1515

   Naomi Mares Aird & Berlis LLP 181 Bay Street, Suite 1800 Brookfield Place Toronto, ON M5J 2T9 E-mail: nmares@airdberlis.com Tel.: 647-426-2842 Fax: 416-863-1515

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that said issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

Salem Landowners Group Inc. and Hewitts Creek Landowners Group Inc.

1. Are the City’s estimated capital costs of services related to a highway on a City-wide basis appropriate?
2. Are the costs associated with phased road projects appropriate?
3. Are the estimated capital costs of active transportation facilities appropriate?
4. Are the soft cost and contingencies used by the City to estimate the capital costs of water, wastewater and services related to a highway appropriate?
5. Are the capital cost estimates for water and wastewater distribution and collection services used by the City to calculate the area-specific development charges for the Salem and Hewitt’s Creek areas appropriate?
6. Does the oversizing of wastewater collection facilities in the Salem and Hewitt’s Creek warrant an allocation of post period benefit?
7. Are the benefit to existing allocations and the post-period benefit for services related to a highway adequate?
8. Are the capital cost estimates and allocations for water and wastewater facilities used by the City reasonable?
9. Are the City’s calculations concerning allocations of post period benefit and benefit to existing development for wastewater service facilities appropriate?
10. Are the City’s calculations of the present value of debenture principal payments that extend beyond 2041 for water facilities appropriate?
11. For services with a negative reserve fund balance, was it appropriate for the cash flow analysis for such services to treat the negative balance as a recovery in the first year of the analysis?
12. Is the methodology for calculating the historical level of service appropriate and in accordance with the methodology provided in the Act and regulations?
13. Are the size of certain facilities and the replacement costs assumptions for libraries and indoor recreation facilities appropriate given the existing levels of services within the City?
14. Is the methodology for calculating the historical level of service based on the quality and quantity of existing facilities adequate and in accordance with the methodology provided in the Act and regulations?

Barrie Central Developments Inc. and 129 Collier LP

15. Is the level of service inventory analysis contained in the 2023 DC Background Study adequate given that the new projects are assigned a value of $700 (project 1.1.2.) and $776 (project 1.1.3) per square foot, respectively, to the Hewitt and Salem branch libraries?
16. Is the Development Charges By-law No. 2023-74 consistent with the Development Charges Act and the regulations thereunder with respect to capital costs identified in the 2023 DC Background Study?
17. Is the value of existing community centres in the parks and recreation level of service consistent with the cost of new facilities (projects 3.5.1 and 3.5.2) and is the inventory analysis contained in the 2023 DC Background Study adequate?
18. Is the inclusion of 6.74% of the value of the 70 Collier Street facility and towards the Parks and Recreation DC appropriate and in accordance with the Development Charge Act?
19. Are the capital costs assumed by the DC Background Study appropriate, specifically for roads, water, wastewater and stormwater/drainage projects?
20. Do the capital costs for new roads, interchanges, roundabouts, road widening, and other road works within the Former Municipal Boundary and Salem & Hewitt areas include an assumption for land acquisition costs to be incurred by the City given some of these lands are already secured for free by the City via the land development process? If yes, is that appropriate?
21. Is the BTE with respect to the reconstruction of roads, the “MBR Retrofit”, and the replacement of water and wastewater infrastructure allocated in the 2023 DC Background Study appropriate?
22. Are the inclusions for non-growth-related capital works contained in the 2023 Background Study, such as, but not limited to, the Water System Upgrades Due to New Water Quality Regulations, SWTP Optimization Implementation, sewer replacements and reinforcements of watermains appropriate?
23. Is the inclusion of the “Trail Bridges” in the Road Capital Program appropriate?
24. Have the Principal Payments in the capital project list, and the Interest on Debenture Payments throughout the planning period been discounted?
25. Are the cash flow tables appropriate and in accordance with the Act?
26. Is the inclusion of the lines for “Prior Funded Shares of Projects” for roads, stormwater drainage, wastewater and water distribution in the 2023 DC Background Study appropriate?
27. Is the residential development forecast appropriate given that the breakdown was determined by year and geography, as set out in Table A-14 of the 2023 DC Background Study?
28. Is the non-residential forecast appropriate given the figures allocated for “Work at Home” contained in Table A-6 of the 2023 DC Background Study and the absence of “no fixed place of work” assumptions?
29. Is the method and approach used to determine average household size assumptions contained in Table A-5 of the 2023 DC Background Study appropriate and consistent with the Act and regulations?
30. Are the size of certain facilities and the replacement costs assumptions for libraries and indoor recreation facilities appropriate given the existing levels of services within the City?
31. Is the methodology for calculating the historical level of service based on the quality and quantity of existing facilities adequate and in accordance with the methodology provided in the Act and regulations?
32. Do the Active Transportation costs incorporated into road project costs ensure consistency of methodology and avoid double counting?
33. Are the assumptions concerning post-period benefit and benefit to existing taken into consideration in the 2023 DC Background Study adequate?
34. Are the soft cost and contingencies for design progression estimated by the City appropriate?
35. Is the approval for a development in a site plan control area provided in the Development Charges By-law No. 2023-74 in accordance with the Development Charges Act?

440 Essa Development Inc.

38. Is the Development Charges By-law No. 2023-74 consistent with the Development Charges Act and the regulations thereunder with respect to capital costs identified in the 2023 DC Background Study?
39. Are the assumptions concerning post-period benefit and benefit to existing taken into consideration in the 2023 DC Background Study adequate?
40. Are the inclusions for non-growth-related capital works contained in the 2023 Background Study, such as, but not limited to, the Water System Upgrades Due to New Water Quality Regulations, SWTP Optimization Implementation, sewer replacements and reinforcements of watermains appropriate?
41. Are the soft cost and contingencies for design progression estimated by the City appropriate?
42. Is the approval for a development in a site plan control area provided in the Development Charges By-law No. 2023-74 in accordance with the Development Charges Act?
43. Is the level of service inventory analysis contained in the 2023 DC Background Study adequate given that the new projects are assigned a value of $700 (project 1.1.2) and $776 (project 1.1.3) per square foot, respectively, to the Hewitt and Salem branch libraries?
44. Do the capital costs for new roads, interchanges, roundabouts, road widening, and other road works within the Former Municipal Boundary and Salem & Hewitt areas include an assumption for land acquisition costs to be incurred by the City given some of these lands are already secured for free by the City via the land development process? If yes, is that appropriate?
45. Is the inclusion of 6.74% of the value of the 70 Collier Street facility and towards the Parks and Recreation DC appropriate and in accordance with the Development Charge Act?
46. Have the Principal Payments in the capital project list, and the Interest on Debenture Payments throughout the planning period been discounted?
47. Are the cash flow tables appropriate and in accordance with the Act?
48. Is the residential development forecast appropriate given the breakdown by year and geography, as set out in Table A-14 of the 2023 DC Background Study?
49. Is the method and approach used to determine average household size assumptions contained in Table A-5 of the 2023 DC Background Study appropriate and consistent with the Act and regulations?
50. Is the inclusion of the lines for “Prior Funded Shares of Projects” for roads, stormwater drainage, wastewater and water distribution in the 2023 DC Background Study appropriate?
51. Are the capital costs assumed by the DC Background Study appropriate, specifically for roads, water, wastewater and stormwater/drainage projects?

ATTACHMENT 3

ORDER OF EVIDENCE

1. City of Barrie
2. Salem Landowners Group Inc.
3. Hewitts Creek Landowners Group Inc.
4. Barrie Central Developments Inc. and 129 Collier LP
5. 440 Essa Development Inc.
6. City of Barrie (Reply, if any)

1409-4508-7752.2