Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 16, 2024 CASE NO(S).: OLT 23-001332

PROCEEDING COMMENCED UNDER subsection 257.65 of the Education Act, R.S.O. 1990, c. E.2.

Appellant: Building Industry and Land Development Association Appellant: Sionito Community Development Corporation 502800 Ontario Non-profit Corp., 1982 Description: Imposing education development charge Reference Number: EDC BL 2023-195 Property Address: City Wide Municipality/UT: Toronto/Toronto OLT Case No: OLT-23-001332 OLT Lead Case No: OLT-23-001332 OLT Case Name: Building Industry and Land Development Association v. Toronto Catholic District School Board

Heard: July 26, 2024, via video conference

APPEARANCES:

Parties Counsel

Building Industry and Land Development Association (BILD) Denise Baker and Katherine Chan

Sionito Community Development Corporation 502800 Alex Lusty

Toronto Catholic District School Board Andrew Baer and Julie Lesage

MEMORANDUM OF ORAL DECISION DELIVERED BY SHARYN VINCENT ON jULY 26, 2024 AND FINAL ORDER OF THE TRIBUNAL

1These directions flow from the second Case Management Conference (“CMC”) organizing the hearing of appeals brought pursuant to ss. 257.68 of the Education Act by BILD and Sioito Community Development Corporation 502800 (Sionito) against By-law 2023-195, enacted by the Toronto Catholic District School Board to levy education development charges.

2The issues as characterized by the Tribunal, differently constituted, in the order issued April 19, 2024, cite the assertion by BILD that the TCDSB does not meet the statutory and/or regulatory threshold for being eligible to pass an education development charge by-law whereas the appeal by Sionito asserts that By-law 2023-195 conflicts with the Development Charges Act, 199, S.O. 1997, c.27 regarding exemptions for non-profit housing.

3At that proceeding, Counsel for the TCDSB indicated intention to bring a Motion challenging the jurisdiction of the Tribunal to determine certain aspects of the appeals, and in April a filing date was scheduled for no later than June 26, 2024. The Motion date was formally vacated on July 26, 2024, and the Parties proceeded to the case management conference in order to crystalize an issues list and to set the appeals down for hearing dates. Those determinations are the subject of this Order.

AREAS IN DISPUTE

4Given the discrete nature of the two appeals, the Parties proposed a two phase hearing, first dealing with the challenges subject of the appeal by BILD. Once decided, Sionito would make a determination as to whether phase 2 was required and advise the Tribunal accordingly.

5The Parties however disagreed with the draft issues list as proffered by TCDSB which Counsel for BILD contended included two issues which were strictly legal argument, which would therefore not be addressed by any witness qualified to give opinion evidence, and therefore were not properly before the Tribunal as issues.

6Counsel for the TCDSB advised the Tribunal that the intent was to put the position of the School Board front and centre to ensure that when raised, the submissions would not be unexpected.

7The Tribunal agreed with Counsel for BILD, directed that the two issues be struck from the list and that other language within three of the remaining seven issues, be tightened.

NEXT HEARING EVENT

8Phase 1 was then scheduled for five days commencing Wednesday, May 5th, 2025.

9Parties and participants 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:

https://global.gotomeeting.com/join/927921077

Access code: 927-921-077

10Parties 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

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 same as mentioned 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 that the appeal by BILD against By-law 2023-195 is herein scheduled and the Parties shall be governed by the attached Procedural Order, forming ATTACHMENT 1 to this Order.

14The member is not seized but may be called upon to assist in the implementation of this Order.

“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

CASE NO(S).: OLT 23-001332

PROCEDURAL ORDER

PROCEEDING COMMENCED UNDER subsection 257.65 of the Education Act, R.S.O. 1990, c. E.2, as amended

Appellant: Building Industry and Land Development Association Appellant: Sionito Community Development Corporation 502800 Ontario Non-profit Corp., 1982 Description: Imposing education development charge Reference Number: EDC BL 2023-195 Property Address: City Wide Municipality/UT: Toronto OLT Case No.: OLT-23-001332 OLT Lead Case No.: OLT-23-001332 OLT Case Name: Building Industry and Land Development Association v. Toronto Catholic District School Board

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.

2. The hearing of the appeals shall be phased, with all of the issues of Building Industry and Land Development Association heard in phase one, as well as the TCDSB phase one issues. All requirements and deadlines in this Procedural Order under the heading “Requirements Before the Hearing” shall be only with respect to the first phase of the hearing. The first phase shall be heard and decided. Depending on the outcome of the first phase, a case management conference will be held to confirm the issues of Sionito Community Development Corporation 502800 and any additional issues of the TCDSB, to establish a second Procedural Order with requirements and deadlines for the second phase of the hearing and set down the hearing for the second phase.

Organization of the Hearing

3. The video hearing for the first phase will begin on May 5th, 2025. The hearing will be conducted virtually.

4. The parties’ initial estimation for the length of the first phase of the hearing is 5 hearing 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.

5. The parties and participants identified at the case management conference are set out in Attachment 2.

6. The phase one 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. To clarify, the issues of Sionito Community Development Corporation 502800 and any phase two issues of the TCDSB shall be determined following a decision rendered in phase one.

7. The order of evidence for the first phase of the hearing 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.

8. 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.

9. 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 (Phase One Only)

10. 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 (January 15, 2025) 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. Any challenges to the qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal's Rules and notice of same must be served on the other Parties on or before (January 26, 2025).

11. Expert witnesses in the same field shall have a meeting on or before (January 30, 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 14, 2025).

12. 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 14 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.

13. 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 14 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 14 below.

14. On or before (February 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.

15. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on for before (March 26, 2025) and in accordance with paragraph 22 below.

16. On or before (March 31, 2025) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before (April 18, 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.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before (April 25, 2025).

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before (April 28, 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.

22. 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.

23. 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 DATES (Phase One Only)

DATE EVENT

January 15, 2025 Exchange of witness lists (names and disciplines)

January 26, 2025 Last date to challenge identification of expert witness

January 30, 2025 Experts meeting prior to this date

February 14, 2025 Agreed Statement of Facts if any

February 24, 2025 Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

March 26, 2025 Exchange of Reply Witness Statements (if any)

March 31, 2025 Confirm with the Tribunal if all the reserved hearing dates are still required

April 18, 2025 Exchange of visual evidence (if any)

April 25, 2025 Finalize Joint Document Book

April 28, 2025 Hearing Plan filed with the Tribunal

May 5, 2025 Hearing (Phase 1) commences

ATTACHMENT 2 - LIST OF PARTIES

Building Industry and Land Development Association Denise Baker WeirFoulds LLP dbaker@weirfoulds.com

Katherine Chan WeirFoulds LLP kachan@weirfoulds.com

Sionito Community Development Corporation 502800 Ontario Alex Lusty Davies Howe LLP alexl@davieshowe.com

Toronto Catholic District School Board Andrew Baker Borden Ladner Gervais LLP abaker@blg.com

Julie Lesage Borden Ladner Gervais LLP jlesage@blg.com

ATTACHMENT 3 - ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the OLT or any party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT at the hearing will be a matter of evidence and argument at the hearing. 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 OLT.

Issues of Building Industry and Land Development Association (Phase One):

1. Has the Toronto Catholic District School Board met the eligibility requirements set out in section 257.61 of the Education Act and section 10 of Ontario Regulation 20/98 in order to be eligible to pass the proposed Education Development Charge By-law No. 195?
2. Is the methodology used to determine school site needs, specifically by dividing elementary school and secondary school review areas into two parts, contrary to section 257.61 of the Education Act and sections 7 to 10 of Ontario Regulation 20/98?
3. Is the methodology used to determine the number of new dwelling units which have been exempt or deducted from inclusion in the calculation of the charge justified and in accordance with section 257.61 of the Education Act and sections 7 to 10 of Ontario Regulation 20/98?
4. Is it appropriate to use the review area level specific pupil yield factors as set out in the Toronto Catholic District School Board’s Education Development Charges Background Study for determining the number of pupils requiring accommodation? Is such an approach in accordance with section 257.61 of the Education Act and sections 7 to 10 of Ontario Regulation 20/98?
5. Is the methodology used to determine Site Preparation Costs and Study Costs in accordance with section 257.61 of the Education Act and sections 7 to 10 of Ontario Regulation 20/98?
6. Are the proposed land values used to calculate the charge contained in the Education Development Charge By-law supportable?
7. Is the Land Escalation factor of 10% annually appropriate and justified over the next 5 & 15 year periods?

Issues of Sionito Community Development Corporation 502800 (Phase 2):

To be determined.

Issues of Toronto Catholic District School Board (Phase 2):

To be determined

ATTACHMENT 4 - ORDER OF EVIDENCE (Phase 1 Hearing)

1. Building Industry and Land Development Association
2. Toronto Catholic District School Board
3. Building Industry and Land Development Association Reply (if any)

ATTACHMENT 5 - PURPOSE OF THE PROCEDURAL ORDER AND MEANING OF TERMS

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.