Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
October 15, 2021
CASE NO(S).:
PL190312
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Bay-Elizabeth Construction Ltd. and Smye Homes Ltd.
Subject:
Minor Variance
Variance from By-law No.:
438-86 and 569-2013
Property Address/Description:
70 and 100 Edward St., 636 Bay St.
Municipality:
City of Toronto
Municipal File No.:
A0454/18TEY
OLT Case No.:
PL190312
OLT File No.:
PL190312
OLT Case Name:
Bay-Elizabeth / Smye Homes v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A
Subject:
Site Plan
Property Address/Description:
70 and 100 Edward St., 636 Bay St.
Municipality:
City of Toronto
OLT Case No.:
PL190312
OLT File No.:
PL190312
PROCEEDING COMMENCED UNDER subsection 69(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Bay-Elizabeth Construction Ltd. and Smye Homes Ltd.
Subject:
Protest the levying of fees in relation to an application to facilitate the development of 2 mixed use buildings
Property Address/Description:
70 and 100 Edward St., 636 Bay St.
Municipality:
City of Toronto
OLT Case No.:
PL190312
OLT File No.:
MM160028
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
1Yorkville Inc.
Appellant:
1095909 Ontario Limited (Wynn Group of Companies)
Appellant:
11 Yorkville Partners Inc.
Appellant:
110 Adelaide Street East Inc.; and others
Subject:
Proposed Official Plan Amendment No. OPA 352
Municipality:
City of Toronto
OLT Case No.:
PL161316
OLT File No.:
PL161316
OLT Case Name:
ADI Development Group Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
1 Yorkville Inc.
Appellant:
1095909 Ontario Limited (Wynn Group of Companies)
Appellant:
11 Yorkville Partners Inc.
Appellant:
110 Adelaide Street East Inc.; and others
Subject:
By-law No. BL 1106-2016
Municipality:
City of Toronto
OLT Case No.:
PL161316
OLT File No.:
PL161317
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
1 Yorkville Inc.
Appellant:
11 Yorkville Partners Inc.
Appellant:
110 Adelaide Street East Inc.
Appellant:
1147380 Ontario Limited; and others
Subject:
By-law No. BL 1107-2016
Municipality:
City of Toronto
OLT Case No.:
PL161316
OLT File No.:
PL161318
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant(s):
Multiple Appellants
Subject:
By-law No. 569-2013
Municipality:
City of Toronto
OLT Case No.:
PL130592
OLT File No.:
PL130592
OLT Case Name:
Bahardoust v. Toronto (City)
Case Name: Bay-Elizabeth / Smye Homes v. Toronto (City)
BEFORE:
T.F. NG
Friday, the 15th
MEMBER
day of October, 2021
THE TRIBUNAL ORDERS that the Procedural Order, attached hereto as Appendix “1” is hereby amended and shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing scheduled to commence on Monday, January 10, 2022 at 10:00 a.m. by Videoconference at https://global.gotomeeting.com/join/955318493. The length of the hearing will be 7 days.
“Euken Lui”
EUKEN LUI
ACTING REGISTRAR
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.
APPENDIX 1
PROCEEDING COMMENCED UNDER Subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Bay-Elizabeth Construction Ltd. & Smye Homes Ltd.
Subject:
Minor Variance
Property:
100 Edward Street Et Al.
Municipality:
City of Toronto
Municipal File No.: O.L.T. Case No.:
A0454/18 TEY PL190312
O.L.T. File No.: O.L.T. Case Name:
PL190312 Bay-Elizabeth/Smye Homes v. Toronto (City)
AND SEE ATTACHMENT “1”
PROCEDURAL ORDER
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
The video hearing will begin on Monday, January 10, 2022 at 10:00 A.M. at the following link https://global.gotomeeting.com/join/955318493. No further notice shall be required.
The length of the hearing will be approximately 7 days. The Tribunal will not sit on Monday, January 17, 2021. 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 parties (see Attachment “5” for the meaning of these terms) identified at the Case Management Conference are listed in Attachment “2” to this Order.
The issues for the hearing are set out in the Issues List attached as Attachment “3” to this Order. 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, except if the Issues List is modified on consent of the parties, through mediation or pursuant to a settlement between any of the parties.
The Order of Evidence for the hearing is listed 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.
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.
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
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 November 26, 2021 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.
Expert witnesses in the same field shall have a meeting on or before December 1, 2021 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 coordinator on or before December 1, 2021.
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. 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.
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. 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.
On or before December 1, 2021, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 21 below.
On or before December 1, 2021, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before December 7, 2021 and in accordance with paragraph 21 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before December 15, 2021.
On or before December 15, 2021, 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.
Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case coordinator, on or before January 3, 2022.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before December 15, 2021 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.
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 Rule 7.
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.
SUMMARY OF DATES
DATE
EVENT
November 26, 2021
Parties to exchange lists of witnesses (names, disciplines, and order to be called)
December 1, 2021
Expert witnesses in the same field shall have a meeting
December 1, 2021
Parties must prepare and file a Statement of Agreed Facts and Issues
December 1, 2021
Witness Statements, expert reports, Participant Statements, and the written evidence of witnesses to be exchanged
December 7, 2021
Reply Witness Statements and the reply to written evidence of witnesses (if any) to be exchanged
December 15, 2021
Joint document book to be filed
December 15, 2021
Parties to exchange copies of visual evidence
December 15, 2021
Parties to file draft hearing plan with the OLT case coordinator
January 3, 2022
Password protected cross examination documents to be exchanged and filed with the OLT case coordinator
January 10, 2022
Hearing commences
Attachment 1
TITLE OF PROCEEDING
PROCEEDING COMMENCED UNDER Subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A
Appellant:
Bay-Elizabeth Construction Ltd. & Smye Homes Ltd.
Subject:
Site plan approval
Property:
100 Edward Street Et Al.
Municipality:
City of Toronto
O.L.T. Case No.:
PL190312
O.L.T. File No.: O.L.T. Case Name:
MM160028 Bay-Elizabeth/Smye Homes v. Toronto (City)
PROCEEDING COMMENCED UNDER Subsection 69(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Bay-Elizabeth Construction Ltd. & Smye Homes Ltd.
Subject:
Protest the levying of fees in relation to an application site plan approval
Property:
100 Edward Street Et Al.
Municipality:
City of Toronto
O.L.T. Case No.:
PL190312
O.L.T. File No.: O.L.T. Case Name:
MM160028 Bay-Elizabeth/Smye Homes v. Toronto (City)
PROCEEDING COMMENCED UNDER Subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Bay-Elizabeth Construction Ltd. & Smye Homes Ltd.
Subject:
Proposed Official Plan Amendment No. OPA 352
Property:
100 Edward Street Et Al.
Municipality:
City of Toronto
O.L.T. Case No.:
PL190312
O.L.T. File No.: O.L.T. Case Name:
PL161316 Bay-Elizabeth/Smye Homes v. Toronto (City)
PROCEEDING COMMENCED UNDER Subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Bay-Elizabeth Construction Ltd. & Smye Homes Ltd.
Subject:
By-law No. 1106-2016
Property:
100 Edward Street Et Al.
Municipality:
City of Toronto
O.L.T. Case No.:
PL190312
O.L.T. File No.: O.L.T. Case Name:
PL161316 Bay-Elizabeth/Smye Homes v. Toronto (City)
PROCEEDING COMMENCED UNDER Subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Bay-Elizabeth Construction Ltd. & Smye Homes Ltd.
Subject:
By-law No. 1107-2016
Property:
100 Edward Street Et Al.
Municipality:
City of Toronto
O.L.T. Case No.:
PL190312
O.L.T. File No.: O.L.T. Case Name:
PL161316 Bay-Elizabeth/Smye Homes v. Toronto (City)
PROCEEDING COMMENCED UNDER Subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Bay-Elizabeth Construction Ltd. & Smye Homes Ltd.
Subject:
By-law No. 569-2013
Property:
100 Edward Street Et Al.
Municipality:
City of Toronto
O.L.T. Case No.:
PL190312
O.L.T. File No.: O.L.T. Case Name:
PL130592 Bay-Elizabeth/Smye Homes v. Toronto (City)
Attachment 2
LIST OF PARTIES
Party
- Bay-Elizabeth Construction Ltd.
John Alati
Davies Howe LLP The Tenth Floor
425 Adelaide Street West
Toronto, Ontario M5V 3C1
Email: johna@davieshowe.com
Tel: 416-977-7088
Fax: 416-977-8931
- City of Toronto
Brendan O’Callaghan City of Toronto Legal Services
Planning & Administrative Tribunal Law 55 John Street, 26th Floor Toronto, Ontario M5V 3C6
Email: brendan.callaghan@toronto.ca Tel: 416-392-7786
Fax: 416-397-5624
- The Hospital for Sick Children
Catherine A. Lyons
Goodmans LLP
333 Bay Street, Suite 3400
Toronto, Ontario M5H 2S7
Email: clyons@goodmans.ca
Tel: 416-979-2211
Fax: 416-979-1234
Attachment 3
ISSUES LIST
The identification of an issue on this list does not mean that all parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.
City of Toronto
Does the proposed development have regard for the matters of provincial interest listed in Section 2 of the Planning Act, including subsections (d), (f), (j), (p), (q) and (r)?
Would the approval of the proposed development have regard for the decisions of City Council as required by Section 2.1 of the Planning Act?
Is the proposed development consistent with the Provincial Policy Statement (2014), including Parts I to V and in particular sections 1.1.3.3, 1.4.3, 1.7.1, 2.6.3, 4.7, and 4.8?
Does the proposed development conform to and not conflict with the Growth Plan for the Greater Golden Horseshoe (2019), including sections 1.2, 2.2.1.4, 2.2.6.3, 4.2.7, 5.2.5.6, 5.2.5.8?
Does the proposed development conform to the policies of the Toronto Official Plan, including sections 3.1.1.6, 9 and 10; 3.1.2; 3.1.3; 3.1.5.5, 23, 26, 44, 45 and 46; 4.5.2; and 4.8.4?
Is there appropriate regard for policies that have been approved by City Council that are not yet in force (or were not in force at the time the applications were submitted) such as:
a. Official Plan Amendment 352 - Downtown Tall Building Setback Area, as well as implementation zoning by-laws 1106-2016 and 1107-2016.
Does the proposed development adequately address the Tall Building Design Guidelines (May 2013), including the Downtown Tall Buildings: Vision and Supplementary Design Guidelines?
Does the proposed development adequately address the Council-approved draft Growing Up Guidelines?
Does the proposed development comply with the flight path protection requirements for the SickKids Hospital heliport, including By-law 1432-2017?
Does the proposed development conserve the view from the public realm to City Hall?
Does the proposed development have appropriate regard for the adjacent properties on the Heritage Register?
Does the proposed massing include appropriate tower setbacks, stepbacks, separation distances, and floor plate sizes?
Does the proposed height and massing frame the edges of streets with good proportion and maintain sunlight, sky view and comfortable wind conditions for pedestrians on surrounding streets?
Does the proposed development provide adequate pedestrian facilities, including clearway widths, weather protection, and amenity for the adjacent public realm?
Does the proposed development adequately minimize the building's impact on the public realm through the appropriate location and design of air vents?
Does the proposed development provide adequate lighting for the site and the adjacent public realm?
Does the proposed development adequately provide for public safety by eliminating areas of entrapment/concealment and incorporating glazing to provide views through doors?
Does the proposed development provide adequate bicycle parking facilities?
Does the proposed development provide adequate amenities for bicycle users, including appropriate ingress and egress to bicycle parking facilities and provision of bicycle repair facilities?
Does the proposed development comply with the Toronto Green Standard?
Does the proposed development adequately address The Accessibility for Ontarians with Disabilities Act and the City of Toronto's Vibrant Streets Design Guidelines?
Has the design of the proposed development, including tree planting and the proposed tunnel, been adequately coordinated with the location of public utilities?
Is the proposed paver treatment for Barnaby Lane acceptable?
Does the proposed development adequately comply with the City of Toronto's requirements for solid waste management services including waste storage rooms and appropriate access for waste collection vehicles?
Does the proposed development comply with the requirements of Toronto Fire Services?
Are the Functional Servicing and Stormwater Management Report, Servicing Plans, and Hydrogeological Assessment acceptable?
Is the design of the proposed tunnel and bridge crossing Barnaby Lane acceptable?
Is the design of the parking facilities acceptable, including appropriate signage and control gates?
Is the design of the site servicing facilities acceptable, including appropriate service corridor access and coordinated use of the loading spaces?
Given the proposed increase in height and density, should the owner be required to provide community benefits as described in section 5.1.1 of the Official Plan and enter into and register an Agreement to secure those benefits, pursuant to Section 45 of the Planning Act?
In the event that the Tribunal allows the appeals in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied:
a. the owner provide a complete set of plans and elevations;
b. the owner provide financial security for the proposed landscape works;
c. the owner provide payment for applications to injure or destroy trees and a cash in lieu payment for tree planting;
d. the owner prepare all documents and convey to the City:
- a 0.4 metre wide strip of land to the full extent of the site abutting Bay Street,
- a 0.25 metre wide strip on the east and west sides of Barnaby Place where it abuts 70 and 100 Edward Street,
- a surface easement for a 5.0 metre corner rounding at the southwest corner of the property (Edward Street and Elizabeth Street),
- a surface easement for a 6.0 metre corner rounding at the southeast corner of the property (Edward Street and Bay Street), and
- any surface easement lands required to provide a 2.1 metre pedestrian clearway on Elizabeth Street and 3.0 metres on Bay Street;
e. the owner submit all Environmental Site Assessment reports and pay all costs associated with the City retaining a third-party peer reviewer for the widening of Bay Street and the widening of Barnaby Lane;
f. the owner submit the necessary applications and enter into any required agreements with respect of the proposed underground tunnel connection beneath Barnaby Place and the proposed pedestrian bridge over Barnaby Place;
g. the owner and the City enter into and register an Agreement to secure the necessary post-approval conditions;
The Hospital for Sick Children
Does the proposed development adhere to City of Toronto By-law 1432-2017, made pursuant to the federal Aeronautics Act, in that does it does not traverse, impede, or interfere with The Hospital for Sick Children helipad and flight path?
Should the Tribunal allow the appeal to permit the proposed development, is it appropriate for its Order to be withheld pending confirmation of compliance with City of Toronto By-law 1432-2017 through a condition of a Site Plan Agreement, or any other appropriate Agreement?
Attachment 4
Order of Evidence
Bay-Elizabeth Construction Ltd./ Smye Homes Ltd.
The Hospital for Sick Children
City of Toronto
Reply by Bay-Elizabeth Construction Ltd./ Smye Homes Ltd.
Attachment 5
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.