Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 13, 2024

CASE NO(S).: OLT-24-000288

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

Appellant: 2820746 Ontario Corp. Appellant: Delbrook Group Subject: Development Charges Description: Determination of the development charges Reference Number: 2024-04; 2024-05; 2024-06 Property Address: Township-wide Municipality/UT: Tay/Simcoe OLT Case No: OLT-24-000288 OLT Lead Case No: OLT-24-000288 OLT Case Name: 2820746 Ontario Corp. et al. vs. Tay (Township)

Heard: September 11, 2024, by Teleconference Call (“TCC”)

APPEARANCES:

Parties	Counsel/Representative*
2820746 Ontario Corp.	J. Reyes B. Teichman (in absentia)
Delbrook Group	M. Shafiei* (in absentia)
Township of Tay	C. Emmett S. Hahn

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON SEPTEMBER 11, 2024 AND ORDER OF THE TRIBUNAL

1This was the Status Hearing in the matter of an Appeal by 2820746 Ontario Corp. and Delbrook Group arising from the Township of Tay (“Township”) passing of By-laws Nos. 2024-04, 2024-05 and 2024-06 under s. 2 of the Development Charges Act, 1997 with respect to Township-wide development charge rates.

2The Tribunal received a preliminary draft Procedural Order (“PO”) and Issues List (“IL”); however, it was not provided on the consent of the Parties. Delbrook Group was not responsive in providing their IL or confirming that all of their issues are the same as 2820746 Ontario Corp.

3The Counsel to the Township confirmed to the Tribunal that the Township has no concerns with the draft PO.

4After the Status Hearing, the Tribunal received communication that Delbrook Group withdrew the Appeal.

5The Tribunal received, reviewed and approved the PO appended as Schedule 1 to this Decision.

ORDER

6The Tribunal directives above are so ordered.

7This Member is not seized.

8There will be no further notice.

“P. Tomilin”

P. TOMILIN 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(S).: OLT-24-000288

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

Appellant: 2820746 Ontario Corp. o/a Circle City Appellant: Delbrook Group Subject: Development Charges Description: Determination of the development charges Reference Number: 2024-04; 2024-05; 2024-06 Property Address: Township-wide Municipality/UT: Tay/Simcoe OLT Case No.: OLT-24-000288 OLT Lead Case No.: OLT-24-000288 OLT Case Name: 2820746 Ontario Corp. et al vs. Tay (Township)

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 November 12, 2024 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 4 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.

4. The parties and participants identified at the case management conference are set out in Attachment 2 (see the sample procedural order for the meaning of these terms).

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 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 September 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 September 18, 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 September 25, 2024.

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 October 11, 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.

14. On or before October 11, 2024, a 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.

15. On or before November 1, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before November 1, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 4, 2024.

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 November 4, 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.

22. 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.

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

DATE	EVENT
September 13, 2024	Exchange of witness lists (names, disciplines and order to be called)
September 18, 2024	Last date to challenge identification of expert witnesses
September 18, 2024	Experts’ Meeting
September 25, 2024	Experts’ Agreed Statement of Facts and Issues (if any)
October 11, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
November 1, 2024	Exchange of Reply Witness Statements (if any)
November 1, 2024	Exchange of visual evidence (if any)
November 1, 2024	Parties to confirm if all hearing dates required
November 4, 2024	Filing of Joint Document Book and Hearing Plan
November 12, 2024	Hearing commences

ATTACHMENT 2 – PARTIES

Party	Representative/ Contact Information
Appellant	2820746 Ontario Corp. o/a Circlecity Development E: zoey@circlecity.community Overland LLP 5255 Yonge Street, Suite 1101 Toronto, ON M2N 6P4 Brad Teichman T: 416-730-0180 C: 416-432-5171 E: bteichman@overlandllp.ca
Township of Tay	Barriston LLP 151 Ferris Lane, Suite 300 Barrie, ON L4M 6C1 Sarah Hahn T: 705-792-9200 E: shahn@barristonlaw.com Carly Emmett T: 705-792-9200 E: cemmett@barristonlaw.com

ATTACHMENT 3 – ISSUES LIST

Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

OLT Case No. OLT-24-000288

Issues List of 2820746 Ontario Corp.

Wastewater Service

1. Has the Victoria Harbour Phase 2 Waste Water Treatment Plant (WWTP) and Debenture Interest Costs projects (Project numbers 5.2.1 and 5.2.2) been cancelled or suspended to a date beyond the planning horizon that underlies the development charge by-law? If yes, should the capital costs attributable to these works be removed from the calculation of the wastewater development charge?

2. Should a portion of the capital costs applicable to the Victoria Harbour Phase 1 WWTP Debt and the Victoria Harbour Phase 1 WWTP Debt Interest be allocated to existing development?

3. Is the increase in costs between 2018 and 2023 for the Victoria Harbour Phase 1 WWTP Debt ($966,429 to $1,714,722) reasonable and supportable?

4. Are the stated capital costs of the wastewater programs unreasonable having regard to the corresponding costs identified in the 2018 development charges background study?

Water Service

5. Should a portion of the capital costs applicable to the Phase 1 Water Treatment Plant (WTP) Principal Debt and Phase 1 WTP Debt Interest (Items 6.1.1 and 6.1.2) be allocated to existing development?

6. Is the increase in capital costs between 2018 and 2023 for Phase 2 Construction (Item 6.2.1) from $1.4 million to $4.17 million reasonable and supportable?

7. Is the increase in capital costs between 2018 and 2023 for New Standpipe (Item 6.2.2) from $4 million to $10 million reasonable and supportable? Is the allocation of part of such costs to the post period component reasonable and supportable?

8. Are the stated capital costs of the water programs unreasonable having regard to the corresponding costs identified in the 2018 development charges background study?

Road Services

9. There are no details or justification provided for the projects and associated capital costs included in the “Provision for Growth Related Road Works” (Appendix C.1, Table 2, Project 4.1) as part of the Services Related to a Highway capital program. Without further description of the projects which make up the category, do the applicable development charges and background study reflect projects that are not growth related or otherwise development charge eligible?

10. Is the increase in unit costs between 2018 and 2023 of 200% for high class bituminous asphalt and low-class bituminous surface treatment associated with roads reasonable and supportable?

Parks & Recreation

11. There are no details or justification provided for the projects and associated capital costs included in the “Parks and Trail Development” (Appendix B.3, Table 2, Project 3.2.1) as part of the Parks and Recreation capital program. Without further description of the projects which comprise this service, do the applicable development charges and background study reflect projects that are not growth related or otherwise development charge eligible?

12. Is the use of a standard $600 per square foot unit rate for buildings associated with parks and recreation reasonable and supportable?

13. Should there be an allocation of capital costs to existing development for parks and recreation projects identified as Items 3.2.1 (parks and trail development), 3.2.3 (Trail Extension – Trestle Trail along Ney into Port McNicoll) and 3.2.4 (First Avenue Trail)?

14. Is the increase in the cost of Project 3.2.1 “Parks and Trail Development” between 2018 to 2023 of $108,000 to $300,000 appropriate and supportable?

Library Services

15. Is the increase in unit costs between 2018 and 2023 for library buildings from $200 to $500 per square foot reasonable and supportable?

16. Is the increase in unit costs between 2018 and 2023 for land associated with libraries ($250,000-$350,000 to $800,000 per hectare) reasonable and supportable?

Fire Services

17. Is the increase in unit costs between 2018 and 2023 for fire stations (approximately $215 to $500 per square foot) reasonable and supportable?

18. Is the increase in unit costs between 2018 and 2023 for land associated with fire stations (approximately $400,000 to $800,000 per hectare) reasonable and supportable?

General

19. Does the calculation of the development charge reasonably account for benefit to existing or “other development related” costs for debenture and capital works, particularly as it relates to the parks and recreation, water and wastewater capital programs?

20. Do the roads, water and wastewater capital programs accurately reflect all eligible growth-related projects? Specifically, should the capital costs of the services that will construct be included in the calculation of the applicable development charges as eligible growth-related projects?

21. Do the unit costs included in the level of service calculations in the development charges background study accurately reflect expected replacement costs?

ATTACHMENT 4 – ORDER OF EVIDENCE

1. The Corporation of the Township of Tay
2. 2820746 Ontario Corp. o/a Circlecity Development – Appellant
3. Reply by The Corporation of the Township of Tay (if any)

SCHEDULE “A”

Appellant [Representative]: 2820746 Ontario Corp. o/a Circlecity Development c/o Brad Teichman bteichman@overlandllp.ca

Municipality [Representative]: Township of Tay c/o Sarah Hahn SHahn@barristonlaw.com

c/o Carly Emmett CEmmett@barristonlaw.com

SCHEDULE “B”

Attachment to Sample Procedural Order

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.