BILD et al. v. Durham (Region), 2024 CanLII 68166

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 12, 2024

CASE NO(S).: OLT-23-000888

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

Appellant: Bowmanville North (Soper Spring) Landowners Group Inc.

Appellant: Building Industry Land Development Association (BILD) c/o Paula Tenuta, SVP, Policy Advocacy

Appellant: Durham Region Home Builder's Association

Appellant: Fieldgate Development ("Fieldgate”) Umiak Investment Limited ("Umiak")

Subject: Appeal of Decision

Description: Development Charge By-Law 42-2023

Reference Number: By- Law 42-2023

Property Address: Region Wide

Municipality: Durham

OLT Case No.: OLT-23-000888

OLT Case Name: BILD ET AL v. Durham (Region)

Heard: July 5, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Bowmanville North (Soper Spring) Landowners Group Inc.	Alex Lusty Mark Flowers (in absentia)
Building Industry Land Development Association & Durham Region Home Builder's Association	Rodney Gill Robert Howe (in absentia)
Shoal Bayly Ontario Inc.	John Alati Michael Cook (in absentia)
Regional Municipality of Durham	Denise Baker Chantal DeSereville (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY G.A CROSER ON JULY 5, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“CMC”) concerning Appeals of the Regional Municipality of Durham’s (“Region”) Development Charges By-law No. 42-2023. At the first CMC, held on April 25, 2024, the Parties were instructed by Vice Chair Wilkins to produce a draft Procedural Order (“PO”) and Issues List (“IL”) for the Tribunal’s review in advance of the next CMC. These documents were duly received by the Tribunal.

CHANGE IN STATUS

2The identification and production of the IL led Paul DeMelo, Counsel for Fieldgate Developments and Umiak Investments Limited, to request a change in his clients’ status from ‘Party’ to ‘Participant’. DeMelo explained that the concerns of his clients were addressed by other Parties in the IL, and to prevent unnecessary overlap at a hearing event asked for this change to his clients’ status.

3The other Parties had no comment on DeMelo’s request, and the Tribunal will record this change in the file.

MEDIATION

4The Parties indicated that they would be reaching out to the OLT’s Mediation Team with respect to scheduling a mediation assessment.

HEARING

5The Parties requested a 20-day Hearing. Denise Baker, for the Region, stated that they would forward an updated PO with the hearing dates. This was received and the Member has reviewed and approved this document which is included with this Decision as Schedule A.

6The Hearing is scheduled to proceed by video beginning on Monday, February 24, 2025, at 10:00 a.m. and continuing until Monday, March 24, 2025. The Parties were informed that the Tribunal would not be sitting on Monday, March 3, 2025.

7Parties and Participants are asked to log in to 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/519389173

Access Code: 519-389-173

8Parties and participants 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

9Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: (Toll Free) 1 888-299-1889 or +1 (647) -497-9373.The access code is indicated as above.

10Individuals 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

11THE TRIBUNAL ORDERS that:

a. A finalized Procedural Order attached to this Order as Schedule A, is approved and shall govern the proceedings;

b. A 20-day Merit Hearing is scheduled to take place via Video hearing commencing on Monday, February 24, 2025, and ending on Monday, March 24, 2025. The Tribunal will not be sitting on Monday, March 3, 2025; and

c. Fieldgate Developments and Umiak Investments Limited’s status in this proceeding is changed from ‘Party’ to ‘Participant’.

12The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“G.A. Croser”

G.A. CROSER

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 A

OLT CASE NO(S).: OLT-23-000888

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

Appellant: Bowmanville North (Soper Spring) Landowners Group Inc.

Appellant: Building Industry Land Development Association (BILD) c/o Paula Tenuta, SVP, Policy Advocacy

Appellant: Durham Region Home Builder's Association

Appellant: Fieldgate Development ("Fieldgate”) Umiak Investment Limited ("Umiak")

Subject: Appeal of Decision

Description: Development Charge By-Law 42-2023

Reference Number: By- Law 42-2023

Property Address: Region Wide

Municipality: Durham

OLT Case No.: OLT-23-000888

OLT Case Name: BILD ET AL v. Durham (Region)

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 Monday February 24, 2025, at 10:00 a.m.: https://global.gotomeeting.com/join/519389173

3. The parties’ initial estimation for the length of the hearing is 20-days. The Tribunal will not sit on Monday March 3, 2025 therefore the last day of the hearing will be Monday March 24, 2025. 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 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.

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.

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 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

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 Friday September 27, 2024 and in accordance with paragraph 21 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 Friday October 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 Tribunal’s Case Co-ordinator on or before Friday November 22, 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 Friday December 13, 2024 the parties shall provide copies of their witness statements, including expert witness statements, and/or brief outlines (if any), to the other parties and to the Tribunal’s Case Co-ordinator and in accordance with paragraph 21 below.

13. On or before Friday January 24, 2025, the parties shall exchange reply witness statements (if any) and provide the same to the Tribunal’s Case Co-ordinator and in accordance with paragraph 21 below.

14. On or before Monday January 20, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. The parties shall cooperate to prepare a joint document book and/or visual evidence (if any) which shall be shared with the Tribunal’s Case Co-ordinator on or before Friday February 7, 2025.

16. 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.

17. 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.

18. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday February 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.

19. 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 Tribunal’s Rule 7.

20. 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 1

Summary of Key Dates

Date	Hearing Event
Friday September 27, 2024	Exchange of List of Witnesses
Friday October 25, 2024	Expert Witness Meeting
Friday November 22, 2024	Filing of Statement(s) of Agreed Facts and Issues
Friday December 13, 2024	Exchange of Witness Statements
Friday January 24, 2025	Exchange of Reply Witness Statements
Monday January 20, 2025	Confirmation to Tribunal if all reserved hearing dates are still required
Friday February 7, 2025	Filing of Joint Document Book and/or Visual Evidence (if any)
Friday February 7, 2025	Filing of Hearing Plan
Monday February 24, 2025	Hearing Commences

ATTACHMENT 2

Parties and Participants

Party	Counsel	Contact
Regional Municipality of Durham	Denise Baker Chantal DeSereville	WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 dbaker@weirfoulds.com Phone: 416-947-5090 cdesereville@weirfoulds.com Phone: 416-947-5901
Bowmanville North (Soper Spring) Landowners Group Inc.	Mark Flowers Alex Lusty	Davies Howe LLP The 10th Floor 425 Adelaide Street West Toronto, ON M5V 3C1 markf@davieshowe.com Phone: 416-977-7088 Alexl@davieshowe.com Phone: 416-977-8931
Building Industry Land Development Association (BILD) & Durham Region Home Builder's Association (DRHBA).	Robert Howe Rodney Gill	Goodmans LLP Bay Adelaide Centre - West Tower 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 rhowe@goodmans.ca Phone: 416-979-2211 rgill@goodmans.ca Phone: 416-597-4136
Shoal Bayly Ontario Inc.	John Alati Michael Cook	Davies Howe LLP The 10th Floor 425 Adelaide Street West Toronto, ON M5V 3C1 johna@davieshowe.com Phone: 416-977-7088 michaelc@davieshowe.com Phone: 416-977-8931
PARTICIPANT
Fieldgate Development ("Fieldgate”) Umiak Investment Limited ("Umiak")	Paul DeMelo	Kagan Shastri DeMelo Winer Park LLP 250 Yonge Street, Suite 2302 Toronto, ON M5B 2L7 Phone: 416-645-4584 pdemelo@ksllp.ca

ATTACHMENT 3

Issues List

Issues of Bowmanville North (Soper Springs) Landowners Group Inc.

1. Are the capital costs associated with Sanitary Sewer Projects 300 and 305 reasonable and fair given the feasibility of a less costly gravity sanitary sewer alternative consisting of:

a. a replacement sanitary sewer from Longworth Avenue to Concession Road 3,

b. a new sanitary sewer from Concession Road 3 to Liberty Street North along Concession Road 3, and

c. a new sanitary sewer from Concession Road 3 to Liberty Street North under a proposed road shown in the Soper Springs Preferred Land Use Alternative Map and generally depicted on Map J3 of the Clarington Official Plan travelling approximately 1,200m northwest?

2. Should an approximately 1,200m watermain under a proposed road connecting Concession Road 3 and Liberty Street North, as shown in the Soper Springs Preferred Land Use Alternative Map and generally depicted on Map J3 of the Clarington Official Plan, be included as a project to be funded through the Region’s development charges? If so, to what extent?

3. Should an approximately 1,200m road (inclusive of stormwater sewer and other cost components) connecting Concession Road 3 and Liberty Street North as shown in the Soper Springs Preferred Land Use Alternative Map and generally depicted on Map J3 of the Clarington Official Plan be included as a project to be funded through the Region’s development charges. If so, to what extent?

4. Have development charges been calculated using a methodology that is reasonable, fair, and in compliance with the Development Charges Act with respect to the allocation of the benefit-to-existing (“BTE”) development for Water Project 301, the New Liberty Street North Zone 1 Reservoir which was estimated by the Background Study to have a 0% BTE?

5. Have development charges been calculated using a methodology that is reasonable, fair, and in compliance with the Development Charges Act with respect to the allocation of the post-period benefit (“PPB”) for the following projects:

a. Water Project 301, New Liberty Street North Zone 1 Reservoir;

b. Water Project 302, Expansion of Zone 2 Reservoir;

c. Water Project 308, Zone 2 Feedermain to Zone 2 Reservoir, and,

d. Sanitary Projects 303, 304, and 306, being trunk sanitary sewers generally located in southeast Bowmanville;

all of which were estimated in the Background Study to have a 0% PPB?

Issues of BILD, DRHBA and Shoal Bayly Ontario Inc.

Regional Road Services

1. Was the methodology, including estimates, inputs and assumptions, and costs paid to the Region, used to calculate the estimated capital costs of regional road services funded by the development charge reasonable and in accordance with the requirements of the Act?

2. Does the background study make appropriate allocations of benefit to growth outside the nine-year horizon of the study (i.e., post period benefit), for road projects that will have capacity to service such growth, in a manner that is reasonable and in accordance with the Act?

3. Does the background study make appropriate allocations to benefit to existing development for roads in a manner that is reasonable and in accordance with the provisions of the Act?

Water Services

4. Was the methodology, including estimates, inputs and assumptions, and costs paid to the Region, used to calculate the estimated capital costs of water services funded by the development charge reasonable and in accordance with the requirements of the Act?

5. Was the methodology used to calculate the portion of projects identified as “Region Share” projects funded by the development charge reasonable and in accordance with the requirements of the Act (including projects #217, #218, #219, #220, #221, #222, #223, #226, #228, #239, and #607)?

6. Does the background study make appropriate allocations to growth outside the nine-year horizon of the study (i.e., post period benefit), for water projects that will have capacity to service such growth, in a manner that is reasonable and in accordance with the Act, including, but not limited to:

(a) Project #100 - Expansion of Ajax WSP from 163.6 MLD to 327 MLD

(b) Project #203 - New Myrtle Rd. Zone 4 Reservoir 13 ML – Whitby

(c) Project #204 - New Winchester Rd. Zone 4 Reservoir 16 ML – Oshawa

(d) Projects #208 & #209 - New Duffs Rd. Zone 4/5 PS – Whitby

(e) Projects #212 & #213 – New Harmony Road Zone 4/5 PS – Whitby

(f) Projects #224, #225, #226, #227, #228, #229, #230, #234, #235 & #236 – Zone 4/5 feedermains

(g) Project #207 – Expansion of Thickson Road Zone 3 PS – Whitby

(h) Project #301 – New Liberty St. N. Zone 1 Reservoir, 11 ML and demolish existing elevated tank

(i) Project #302 – Expansion of Zone 2 Reservoir from 9 to 18 ML

(j) Project #308 - Zone 2 Feedermain to Zone 2 Reservoir

(k) Project # 501 – Storage Facility Uxbridge

7. Was it reasonable and in accordance with the Act for the background study to allocate no benefit to existing development share to certain projects, including, but not limited to Project #301 – New Liberty St. N. Zone 1 Reservoir, 11 ML and demolish existing elevated tank?

Sanitary Sewerage Services

8. Was the methodology, including estimates, inputs and assumptions, and costs paid to the Region, used to calculate the estimated capital costs of sanitary sewerage services funded by the development charge reasonable and in accordance with the requirements of the Act?

9. Was the methodology used to calculate the portion of projects identified as “Region Share” projects funded by the development charge reasonable and in accordance with the requirements of the Act (including projects (#103, #104, #105, #107, #108, #109, #112, #210, #212, #214, #215, #216, #217, #218, #219, #225, #226, #228, #229, #233, #234, #238, #244, #303, #304, #305, #307, #308, #312, #313, and #608)?

10. Does the background study make appropriate allocations to growth outside the nine-year horizon of the study (i.e., post period benefit), for sanitary sewerage projects that will have capacity to service such growth, in a manner that is reasonable and in accordance with the Act, including, but not limited to:

(l) Project #103 – York/Durham Sewage System - Primary Trunk Sanitary Sewer Twinning - Pickering (Region Share)

(m) Project #203 - St. Thomas St. Sanitary Sewage Pumping Station and forcemain(s) on Mid- Block Arterial from St. Thomas St. Sanitary Sewage Pumping Station to Whitby/ Oshawa Boundary – Whitby

(n) Project #206 - Expansion of Conlin Road SSPS, including forcemain on Simcoe / Britannia / Development / Conlin – Oshawa

(o) Project #214 - Trunk sanitary sewer (north of 407) from west of Cochrane St. to 400m east of Ashburn Rd. (Region Share)

(p) Project #215 - Sanitary sewer (south of 407) on Mid-Block from west of Cochrane St. to east of Highway 12 - Whitby (Region Share)

(q) Projects #239, #240 & #241 -Courtice Trunk Sanitary Sewer

(r) Project #303 - Trunk sanitary sewer on Baseline Rd. Simpson Ave. to Bennett Rd. (Region Share)

(s) Project #304 - Trunk sanitary sewer on Lambs Road from Baseline Rd. to Highway No. 2 (Region Share)

(t) Project #306 - Trunk sanitary sewer on Port Darlington Rd. from Baseline Rd. to existing easement

(u) Project #312 - Sanitary sewer on North St. from north side of CPR to Conc. Rd. 3 (Region Share)

(v) Project #313 - Sanitary sewer through development from North St. to Arthur St. (Region Share)

Maintenance Facilities

11. Were the growth-related capital costs of maintenance facilities for roads, water and sanitary sewerage services funded by the development charges calculated in a manner that is reasonable and in accordance with the Act, including, but not limited to, in respect of the allocation among services, and the benefit to existing development and post-period benefit allocations?

ATTACHMENT 4

Order of Evidence

1. Regional Municipality of Durham

2. Appellant, Building Industry Land Development Association

3. Appellant, Durham Region Home Builder's Association

4. Appellant, Shoal Bayly Ontario Inc.

5. Appellant, Bowmanville North (Soper Spring) Landowners Group Inc.

6. Regional Municipality of Durham, in Reply (if any)