2519371 Ontario Inc. v. Toronto (City), 2021 CanLII 118951

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 15, 2021

CASE NO(S).: PL180139

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 2519371 Ontario Inc.

Subject: Application to amend Zoning By-law No. 7625 - Refusal or neglect of the City of Toronto to make a decision

Existing Zoning: General Commercial Zone (C1) – Western portion Greenbelt (G) – Eastern portion

Proposed Zoning: Residential

Purpose: To permit the redevelopment of the subject property with a 14-storey residential building

Property Address/Description: 4155 Yonge Street

Municipality: City of Toronto

Municipality File No.: 17 245489 NNY 25 OZ

OLT Case No.: PL180139

OLT File No.: PL180139

OLT Case Name: 2519371 Ontario Inc. v. Toronto (City)

Heard: October 26, 2021 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

2519371 Ontario Inc.

Jane Pepino* Matthew Helfand*

City of Toronto

Robert Robinson*

Yonge Ridge Homeowners’ Association

Mark Lawrence

St. John’s York Mills Church

Doug Hart

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON OCTOBER 26, 2021 AND ORDER OF THE TRIBUNAL

1This is the first Case Management Conference (“CMC”) held as a video hearing for the appeal of 2519371 Ontario Inc. (the “Appellant”). The Appellant had filed a development application for lands municipally known as 4155 Yonge Street (“subject lands”) located in the City of Toronto (“City”) and is proposing the development of a 14-storey apartment building. The proposal required an Official Plan Amendment and a Zoning By-law Amendment.

2The City did not deal with the applications within the statutory time period, hence the Appellant appealed. The Tribunal has on record an appeal under s. 34(11) of the Planning Act (“Act”).

CMC

3At the CMC, the Affidavit of Service and the supplementary Affidavit were marked as Exhibits 1a and 1b respectively. Ms. Pepino informed the Tribunal that since the filing of the appeal on February 23, 2018, her clients had changed solicitors and engaged in revisions of the development. This culminated in a “with prejudice” letter of offer of settlement dated October 14, 2021 being sent to the City and copied to relevant parties. She stated that the proposed development is now revised to eleven storeys.

4Further, according to Ms. Pepino, there is an appeal under s. 17(40) of the Act (“additional OPA Appeal”) relating to the same proposed development which apparently was not yet logged into the Tribunal’s new digital file system. As of the date of issuing the Decision this additional OPA Appeal is now validated and before the Tribunal as OLT Case File No. OLT-21-001413. As subsequently confirmed with the parties, the related additional OPA Appeal will be administratively consolidated with this Appeal and a first CMC will be scheduled concurrently with the second CMC now scheduled and set out below.

5Ms. Pepino said she will be working with the case coordinator to revise the style of cause to administratively consolidate both appeals, once the other appeal is assigned a number.

6Counsel for the City, Mr. Robinson confirmed receipt of the with prejudice offer. Both counsel conceded that the revised proposal will need to go through the City internal review and external agency consultation process before any decision is obtained. Counsel, in the meantime requested for hearing dates to be fixed and a further CMC, in view of this being a matter since 2018, and that there is another appeal to be administratively consolidated.

MEDIATION

7Counsels stated that parties are open to mediation, however, that will be upon instructions from their respective clients and dependent on the decision reached on the with prejudice proposal.

PARTY STATUS AND PARTICIPANT STATUS REQUESTS

8Yonge Ridge Homeowners’ Association and St. John’s York Mills Church were granted party status without objections. Participant status was granted to York Mills Valley Association and David Smith (on behalf of Hillside Condominiums) without objections.

DRAFT PROCEDURAL ORDER

9Counsel for the Appellant and the City undertook to immediately furnish a draft Procedural Order with the essential timelines inserted upon the fixing of a five-day hearing which the parties jointly requested. The Procedural Order anticipates that the additional OPA Appeal will be administratively and adjudicatively consolidated with this Appeal. The parties expected to be able to prepare the draft Procedural Order within ten days of this CMC. Parties further requested a CMC to report on the status of the matter before the scheduled hearing and to finalize the Procedural Order.

10The Tribunal directed that the Procedural Order with the essential timelines filled in be forwarded to the Tribunal’s Case Coordinator on or before November 5, 2021. The Procedural Order which was subsequently received, reviewed and approved by the Panel, is now attached to this Decision and Order and is drafted in anticipation of the consolidation of this Appeal and the additional OPA Appeal now before the Tribunal.

11This matter will be scheduled for a five-day hearing commencing on Monday, September 19 to Friday September 23, 2022.

12A CMC for the parties to update the Tribunal on the status of this matter, further narrow any issues, and address the preparation of a draft hearing plan for the hearing will be fixed on Wednesday, May 4, 2022. As indicated, it is anticipated that the Tribunal will concurrently schedule a first CMC in the additional OPA Appeal on this date and any other matters relating to the consolidation of the Appeals can be then addressed.

HEARING TECHNICAL DETAILS

13The hearings are scheduled to proceed by video as follows:

Wednesday, May 4, 2022 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/814427877 Access code: 814-427-877 Audio-only telephone line: (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 814-427-877 Monday, September 19, 2022 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/292199877 Access code: 292-199-877 Audio-only line: (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 292-199-877

14Parties 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.

15Parties 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

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.

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 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

18The Tribunal orders as follows:

1. The Procedural Order appended to this Decision and Order as Attachment 1 will govern the proceedings.

2. A case management conference is fixed on Wednesday, May 4, 2022 for the parties to update the Tribunal on the status of the appeals, further narrow any issues, and address the preparation of a draft hearing plan for the hearing. It is anticipated that this hearing event will also be a first CMC in OLT Case File No. OLT-21-001413.

3. The hearing is fixed for five days commencing on Monday, September 19, 2022 and ending on Friday, September 23, 2022.

19There will be no further notice.

20The Member is not seized.

“T.F. Ng”

T.F. NG

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.

ATTACHMENT 1

ISSUE DATE: November 15, 2021

CASE NO(S).: PL180139

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant(s)/Appellant(s): 2519371 Ontario Inc.

Subject: Application to amend Zoning By-law No. 7625 – Refusal or neglect of the City of Toronto to make a decision

Existing Zoning: General Commercial Zone (C1) – Western portion Greenbelt (G) – Eastern portion

Proposed Zoning: Residential

Purpose: To permit the redevelopment of the subject property with a 11-storey residential building

Property Address/Description: 4155 Yonge Street

Municipality: City of Toronto

Municipal File No.: 17 245489 NNY 25 OZ

OLT Case No.: PL180139

OLT File No.: PL180139

OLT Case Name: 2519371 Ontario Inc. v. Toronto (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, or in person if permitted by the Tribunal, will begin on September 19, 2022.

3. A second Case Management Conference will be held on May 4, 2022 for the purpose of providing the Tribunal with a status update, finalizing the Issues List, and other matters.

4. The length of the hearing is 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.

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

6. 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.

7. 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 consent 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 (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

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 June 13, 2022. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and identify the area of expertise in which the witness is prepared to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before July 11, 2022 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and issues and provide this list to all of the parties on or before July 21, 2022.

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 must be provided as in paragraph 14. 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. 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.

14. On or before August 5, 2022 the parties shall provide copies of their witness and expert witness statements to the case coordinator and the other parties in accordance with paragraph 24.

15. On or before August 5, 2022 a participant shall provide copies of their written participant statement to the case coordinator and the other parties in accordance with paragraph 24. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. Parties may provide to all other parties and file with the Clerk a written reply to any written evidence on or before August 30, 2022 in accordance with paragraph 24.

17. On or before September 9, 2022 the parties shall provide copies of their visual evidence to the case coordinator and all of the other parties. 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 case coordinator on or before September 9, 2022.

19. 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.

20. 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.

21. 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.

22. The parties shall prepare and file a hearing plan with the Tribunal on or before September 6, 2022 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.

23. All filing shall be electronic, unless otherwise directed by the Tribunal. 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.

24. 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

Summary of Dates

DATE

EVENT

June 13, 2022 (98 days prior to hearing)

Exchange of witness lists (names, disciplines and order to be called)

July 11, 2022 (70 days prior to hearing)

Experts meeting prior to this date

July 21, 2022 (60 days prior hearing)

Agreed Statement of Facts to be filed

August 5, 2022 (45 days prior to hearing)

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

August 30, 2022 (20 days prior to hearing)

Exchange of Reply Witness Statements (if any)

September 6, 2022 (13 days prior to hearing)

Hearing Plan filed with the Tribunal

September 9, 2022 (10 days prior to hearing)

Exchange of visual evidence (if any)

September 9, 2022 (10 days prior to hearing)

Finalize Joint Document Book

September 19, 2022

Hearing commences

Attachment 2

List of Parties and Participants

Parties:

2519371 Ontario Inc.

Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9

N. Jane Pepino Email: jpepino@airdberlis.com

Matthew Helfand Email: mhelfand@airdberlis.com

City of Toronto

City of Toronto Legal Services 55 John Street, 26th Floor, Metro Hall Toronto, ON M5V 3C6

Robert Robinson Email: rrobins2@toronto.ca

St. John’s York Mills Anglican Church

Douglas Hart Email: doug@hart-realestate.com

Yonge Ridge Homeowners Association

Mark Lawrence Email: marklawrence@sympatico.ca

Participants:

Hillside Condominiums (MTCC1324, TSCC1484, TSCC1758 – 18/28/38 William Carson Cres.)

David Smith Email: david_susan_smith@rogers.com

York Mills Valley Association

Chris Hewat Email: chris.hewat@blakes.com

Attachment 3

Issues List

NOTE: The identification of issues shall be finalized for the Case Management Conference scheduled to occur on May 4, 2022. 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 and shall not be construed as the OLT having jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the OLT.

City of Toronto

St. John’s York Mills Anglican Church

Yonge Ridge Homeowners Association

Attachment 4

Order of Evidence

1. 2519371 Ontario Inc.

2. City of Toronto

3. Yonge Ridge Homeowners Association

4. St. John’s York Mills Anglican Church

5. 2519371 Ontario Inc., in reply

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.

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