Paisley & Whitelaw Inc. v. Guelph (City), 2025 CanLII 5403

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 20, 2025

CASE NO(S).: OLT-24-000435

PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c. 27.

Appellant: Paisley & Whitelaw Inc.

Subject: Development charges complaint

Property Address: 1098 Paisley Road (1098 Paisley Road.)

Municipality/UT: Guelph/Wellington

OLT Case No: OLT-24-000435

OLT Lead Case No: OLT-24-000435

OLT Case Name: Paisley & Whitelaw Inc. v Guelph (city)

Heard: January 16, 2025 by video hearing

APPEARANCES:

Parties	Counsel
Paisley & Whitelaw Inc.	M. de Jong J. Meader (in absentia)
City of Guelph	A. Thornton I. White

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON JANUARY 16, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened the first Case Management Conference (“CMC”) for the matter listed above. Paisley & Whitelaw Inc. (“Appellant”) filed an appeal against the decision of the City of Guelph (“City”) to dismiss a complaint relating to the application of development charges for the property located at 1098 Paisley Road, Guelph (“subject property”). The Appellant has appealed City Council’s decision pursuant to s. 22(1) of the Development Charges Act, 1997, S.O. 1997, C.27 (“DC Act”).

2The Appellant is in the process of developing the subject property, which includes the construction of Buildings A, B and C. The appeal is limited to development charges relating to Building C.

3On February 28, 2019, the Appellant paid development charges relating to Buildings A and B and on March 2, 2019, the new DC By-law No. (2019)-203722 came into force. Following the initial development charge payment on Buildings A and B, the Appellant revised the total number and breakdown of unit types and in August 2022 City Staff agreed to use rates in effect at the time of the second foundation permit. This resulted in an overpayment of development charges on Buildings A and B in the amount of $809,318.00 (“overpayment”). A discrepancy arose between the Parties as to how the development charges (including the application of the overpayment) was calculated for Building C.

4The Appellant is appealing the decision of City Council to dismiss its complaint that the development charges for Building C were incorrectly determined, the credit available to be used against the development charge for Building C was incorrectly determined, and there was an error in the application of the DC By-law.

CONFIRMATION OF NOTICE

5The Tribunal served notice for Case File No. OLT-24-000435 on September 17, 2024, and confirmed with Counsel that there were no known issues with service of the Notice of this CMC. No further notice is required.

STATUS REQUESTS

6The Tribunal did not receive any written requests, nor was there any person or entity present at the CMC requesting Party or Participant status in the proceedings.

OPPORTUNITIES FOR SETTLEMENT / MEDIATION

7Counsel for the Appellant advised that settlement is unlikely, and mediation would not assist in resolving or scoping the issues. He explained that there exists significant disparity between the positions of the Parties on some factual issues which, at this point in the proceedings, suggests little to no chance of resolving the matter through settlement or mediation. The City concurred with the Appellant’s submissions.

PROCEDURAL ORDER AND ISSUES LIST

8In advance of the CMC, the Parties submitted a draft Procedural Order (“PO”) and Issues List (“IL”) which were reviewed by the Tribunal.

9During the CMC, the Parties and the Tribunal reviewed the PO and IL, including a discussion of the timelines proposed in the draft PO, which the Tribunal noted were significantly shorter than those contained in the Tribunal’s standard form. The Parties explained that the proposed timelines were truncated in the hope of scheduling an expedited hearing, however, this became a moot point given the Tribunal’s calendar availability.

10The Parties and the Tribunal also reviewed Issue 1 and the Tribunal’s concern with the use of the word “enforceability”. The Parties agreed that following the CMC, they would have a discussion around revising the wording of Issue 1.

11Following the provision of hearing dates, the Appellant updated the draft PO incorporating the revisions discussed at the CMC and filed same with the Tribunal for review and approval.

12The PO appended to this Order as Attachment 1 shall govern all further pre-hearing procedural requirements and the hearing of the appeal.

NEXT STEPS

13The Parties jointly requested that the Tribunal schedule a 1.5-day hearing for the appeal. The Parties collectively intend to call four witnesses and submitted that the hearing could be completed in the requested time.

14The Tribunal agreed with Counsels’ assessment of the length of hearing and scheduled a two-day video hearing commencing on Thursday May 15, 2025, at 10 a.m.

GoToMeeting: https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

15Parties, witnesses and observers 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

16Persons 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The Access Code is as indicated above.

17Individuals 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 Video Hearing 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

18THE TRIBUNAL ORDERS THAT the Procedural Order attached as Attachment 1 to this Order shall govern the proceedings.

19The case management directives above are so ordered.

20There will be no further notice and this Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.

“C. Hardy”

c. hardy

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-24-000435

PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act, 1997, S.O. 1997, c. 27.

Appellant: Paisley & Whitelaw Inc.

Subject: Development charges complaint

Property Address: 1098 Paisley Road (1098 Paisley Road.)

Municipality/UT: Guelph/Wellington

OLT Case No: OLT-24-000435

OLT Lead Case No: OLT-24-000435

OLT Case Name: Paisley & Whitelaw Inc. v Guelph (city)

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 May 15, 2025 and May 16, 2025 at 10:00 am, through video link https://global.gotomeeting.com/join/709076365 When prompted, enter the code 709-076-365

3. The parties’ initial estimation for the length of the hearing is 1.5 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 (see the sample procedural order for the meaning of these terms).

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 March 21, 2025 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 March 28, 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 April 30, 2025.

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 March 31, 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.

14. On or before March 31, 2025, 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 April 10, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before May 2, 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.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before April 11, 2025 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 May 2, 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 May 8, 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 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.

24. A summary of the various filing dates is contained in Attachment 4.

ATTACHMENT 1

Parties & Participants

1. Paisley & Whitelaw Inc.

TMA Law 25 Main Street West, Suite 2010 Hamilton, ON L8P 1H1

Jennifer Meader Email: jmeader@tmalaw.ca Phone: 905.529.3476

Mark de Jong Email: mdejong@tmalaw.ca Phone: 905.529.3476

2. The City of Guelph

1 Carden Street Guelph, ON N1H 3A1

Allison Thornton Email: allison.thornton@guelph.ca Phone: 519.822.1260

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 the 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, but shall not preclude any other party from calling evidence on the issue.

1. Did the City and the Appellant enter into a valid and binding Early Payment Agreement under Section 27 of the Development Charges Act, 1997?

2. Did the City apply the applicable Development Charge rate to the development charges owing by the Appellant for Building C?

3. Did the City account for the interest properly owing to the Appellant on funds held on account when calculating the development charge payment owing in respect of Building C?

4. In light of the answers to questions 1-3 above, is there any refund due to the Appellant, and if so in what amount?

ATTACHMENT 3

Order of Evidence

1. Paisley & Whitelaw Inc.
2. The City of Guelph
3. Paisley & Whitelaw Inc. in reply

ATTACHMENT 4

Summary of Filing Dates

EVENT	DATE
List of Witnesses	March 21, 2025
Expert Witness Meetings	March 28, 2025
Witness and Expert Witness Statements	March 31, 2025
Participant Statement	March 31, 2025
Reply Witness Statement	April 11, 2025
Agreed Statement of Facts & Remaining Issues	April 30, 2025
Visual Evidence	May 2, 2025
Joint Document Book	May 2, 2025
Hearing Plan	May 8, 2025
OLT Hearing Commences	May 15, 2025