Eden Oak (Creditview Heights) Inc. v. Halton Hills (Town), 2024 CanLII 97526

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 01, 2024

CASE NO(S).: OLT-21-001147

PROCEEDING COMMENCED UNDER subsection 42(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Eden Oak (Creditview Heights) Inc.

Subject: Cash In-Lieu - Eden Oak (Creditview Heights) Inc.

Description: To permit a residential subdivision of 31 units and stormwater management ponds.

Reference Number: D12SUB08.0001 and 24T-08001/H

Property Address: 106 Park Street East

Municipality/UT: Halton Hills/Halton

OLT Case No: OLT-21-001147

OLT Lead Case No: OLT-21-001147

OLT Case Name: Eden Oak (Creditview Heights) Inc. v. Halton Hills (Town)

Heard: September 24, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Eden Oak (Creditview Heights) Inc.	Herbert Arnold
Town of Halton Hills	David Germain

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON SEPTEMBER 24, 2024, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a second Case Management Conference (“CMC”) relating to an appeal brought pursuant to s. 42(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) relating to an amount of cash-in-lieu of parkland being required by the Town of Halton Hills (“Town”) being disputed as too high (“Appeal”).

2The Appeal has been filed by Eden Oak (Creditview Heights) (“Appellant”) regarding the property located at 106 Park Street East, Halton Hills (“Subject Property”). The amount required by the Town which is in dispute is $675,250.00 and represents the primary issue before the Tribunal.

3At the previous CMC, the Tribunal scheduled a three (3) day hearing commencing on Wednesday, November 20, 2024, at 10 a.m. by Video Hearing. Details of the hearing were previously circulated.

4The Parties recently agreed and requested a Tribunal-led mediation assessment through the Case Coordinator and confirmed that this process was expected to move ahead immediately following this CMC. The Tribunal was encouraged by this and directed that the Parties keep the Case Coordinator updated on whether the timing or length of the Hearing may need to be modified in some fashion resulting from any progress from mediation discussions.

5An updated final draft Procedural Order (“PO”) was submitted to the Tribunal following this CMC on September 25, 2024, including the addition of the deadline timetable. The final PO is now approved by the Tribunal and will guide the proceedings related to the Hearing as scheduled and is attached as Schedule 1 to the Order below.

ORDER

6THE TRIBUNAL ORDERS that:

a) The Procedural Order attached as Schedule 1 shall govern the conduct of this proceeding; and,

b) All other directions in this Decision are so ordered.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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 1

CASE NO(S).: OLT-21-001147

PROCEEDING COMMENCED UNDER subsection 42(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Eden Oak (Creditview Heights) Inc.

Subject: Cash In-Lieu - Eden Oak (Creditview Heights) Inc.

Description: To permit a residential subdivision of 31 units and stormwater management ponds.

Reference Number: D12SUB08.0001 and 24T-08001/H

Property Address: 106 Park Street East

Municipality/UT: Halton Hills/Halton

OLT Case No: OLT-21-001147

OLT Lead Case No: OLT-21-001147

OLT Case Name: Eden Oak (Creditview Heights) Inc. v. Halton Hills (Town)

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 20, 2024, at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is three (3) 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

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 shall be as set out in Attachment 3 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 30, 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.

10. Expert witnesses in the same field shall have a meeting on or before October 20, 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 November 1, 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 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 21 below.

14. On or before October 20, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. 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 21 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 ten (10) days after the evidence is received and in accordance with paragraph 21 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 November 10, 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 November 10, 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.

ATTACHMENT 1

Parties

1. Eden Oak (Creditview Heights) Inc.
2. Town of Halton Hills

ATTACHMENT 2

Issues (UPDATED September 25, 2024):

Determination of Cash in Lieu of Parkland Dedication requirement pursuant to a condition of Draft Plan approval which reads as follows:

That the Owner agrees to provide cash-in-lieu of parkland at a rate of five per cent of the total developable area pursuant to the requirements of the Planning Act

The Appellant takes issue with the Retrospective Appraisal Report of Antec Appraisal Group dated March 12, 2020, prepared for the Town of Halton Hills:

1. For the reasons set out in the Realty Consulting Opinion of D. Bottero & Associates Limited dated August 30, 2024, prepared for the Appellant;
2. Based on the Comprehensive Appraisal Report and Valuation Analysis of D. Bottero & Associates Limited dated August 30, 2024, prepared for the Appellant; and,
3. Based on the total developable area used in item 1 above being incorrect as set out in an email dated September 11, 2024, with attachments from Counsel for the Appellant to Counsel for the Town of Halton Hills.

ATTACHMENT 3

Order of Evidence

1. Town of Halton Hills
2. Eden Oak (Creditview Heights) Inc.
3. Town of Halton Hills (Reply)

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.

Deadlines pursuant to Procedural Order

Deadline Date	Description
September 30, 2024	Deadline for Witness Lists
October 20, 2024	Deadline for Like Experts to meet
October 20, 2024	Deadline to confirm with Tribunal if all hearing dates are required
October 25, 2024	Deadline to file witness statements
November 1, 2024	Deadline to prepare and file Statement of Agreed Facts and Issues with OLT
November 1, 2024	Deadline to provide visual evidence
November 4, 2024	Deadline to file reply witness statements
November 10, 2024	Deadline to prepare/file Joint Document Book
November 10, 2024	Deadline to prepare and file preliminary hearing plan
November 5, 2024	Last day to make written motion to change written evidence
November 13, 2024	Deadline to advise Tribunal that written evidence is not part of party’s record
November 20, 2024	Video Hearing – 10:00 am start (3 days)