Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 03, 2021 CASE NO(S).: PL180617

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

Applicant and Appellant: 2245883 Ontario Inc. Subject: Application to amend Zoning By-law No. 438-86 and 569-2013 - Refusal or neglect of the City of Toronto to make a decision Existing Zoning: CR T5.0 C3.0 R3.0 (south portion) AND R4A Zl.O (north portion) Proposed Zoning: Site Specific (To be determined) Purpose: To permit 44-storey mixed-use building Property Address/Description: 808 Mount Pleasant Rd. Municipality: City of Toronto Municipality File No.: 17 261931 STE 22 OZ OLT Case No.: PL180617 OLT File No.: PL180617 OLT Case Name: 2245883 Ontario Inc. v. City of Toronto

Heard: November 19, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
2245883 Ontario Inc.	Andrea Skinner
City of Toronto	Mark Piel
Roehampton Towers Inc.	Marc Kemerer

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON NOVEMBER 19, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“CMC”) with respect to the appeal of 2245883 Ontario Inc. (“Applicant”) under s. 34(11) of the Planning Act (the “Act”) arising from the City of Toronto’s (“City”) failure to make a decision within the statutory timeframes on a Zoning By-law Amendment Application (“Application”).

2The purpose of the Application is to facilitate a proposed 35-storey mixed use building with a nine-storey podium and public park for the property municipally known as 808 Mount Pleasant Road, Toronto (“Subject Property”).

3Andrea Skinner advised the Tribunal that the Applicant and the City have reached a settlement in principle. Mark Piel advised that he has not received final instructions from the City regarding the settlement, but that instructions are forthcoming.

4Ms. Skinner and Marc Kemerer advised the Tribunal that settlement discussions were continuing and have been productive to date.

PROCEDURAL ORDER AND ISSUES LIST

5Ms. Skinner provided the Tribunal with a Draft Procedural Order (“DPO”) including a draft Issues List (“Issues List”), which the Parties have reviewed and considered.

6Mr. Piel made submissions regarding the timeline in the DPO. Mr. Piel advised that the City generally requests more expansive timelines of the Tribunal due to the City’s internal process of reviewing, reporting and obtaining instructions. However, given that the Applicant and the City have reached a settlement, in principle, Mr. Piel agreed to what he referred to as a “compressed timeline”.

7Ms. Skinner and Mr. Kemerer were in agreement with the proposed timelines contained in the DPO. In addition, the Parties informed the Tribunal that they are in agreement with fixing a hearing for four days.

8Mr. Kemerer included Issue 10(f) on the Issues List, which Ms. Skinner and Mr. Piel opposed. The proposed issue is related to a right-of-way in favour of Mr. Kemerer’s client, Roehampton Towers Inc (“Roehampton”).

9Ms. Skinner objected to the inclusion of Issue 10(f) on the basis that title matters are outside of the Tribunal’s jurisdiction. Easements and rights-of-way are matters of private law, which should be left to the Courts and as such, Ms. Skinner submitted that Issue 10(f) should not be included on the Issues List.

10Mr. Piel was in support of Ms. Skinner’s submissions and objected to the inclusion of Issue 10(f). He noted that a right-of-way is not a planning issue and is outside of the Tribunal’s jurisdiction. Further, Mr. Piel submitted that the Application includes parkland dedication and pursuant to s. 42 of the Act, the Tribunal’s only jurisdiction regarding parkland is in determining value of a cash-in-lieu offer, which is not part of this Application. As such, Issue 10(f) should be deleted from the Issues List.

11Mr. Kemerer submitted that including Issue 10(f) for the Tribunal’s consideration was not akin to asking the Tribunal to assume jurisdiction over s. 42 matters nor to determine a matter of private law. Rather, Issue 10(f) is related to the proposed parkland dedication as it will encroach upon Roehampton’s right-of-way. He submitted that this encroachment makes this a planning issue, which the Tribunal does have jurisdiction over.

12After consideration of the written and oral submissions of the Parties, the Tribunal was persuaded by the submissions of Ms. Skinner and Mr. Piel. The Tribunal finds that Issue 10(f) is outside of the jurisdiction of the Tribunal and should be deleted from the Issues List.

13The Tribunal tasked Ms. Skinner with coordinating the submission of the finalized DPO, on consent, for consideration by the Tribunal on or before Friday, November 26, 2021. The revised DPO was submitted to the Tribunal following the CMC and is approved as set out in Schedule 1. The Procedural Order found in Schedule 1 is in full force and effect and any changes must be made through the Tribunal’s Case Coordinator.

HEARING DATE AND THIRD CMC

14The Parties requested that the Tribunal fix a hearing date for four days. Ms. Skinner advised the Tribunal that the Applicant intends to call two witnesses and Roehampton intends to call two witnesses. As such, the Tribunal agreed that four days is appropriate for a hearing of the merits of this appeal.

15Accordingly, the hearing of these appeals will be fixed for a four-day period starting at 10 a.m. on Tuesday, May 24, 2022 by Video Hearing, as follows:

Tuesday, May 24, 2022 at 10 a.m. (four-day hearing) GoTo Meeting: https://global.gotomeeting.com/join/750681125 Access code: 750-681-125 Audio-only telephone line: Toll Free) 1 (888) 299-1889 or + (647) 497-9373 Audio-only access code: as indicated above.

16Parties 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.

17Parties 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

18Persons 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.

19Individuals 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 events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

20As discussed in paragraphs [3] and [4] above, the Parties have been involved in settlement discussions. The Parties requested that the Tribunal fix a third CMC date that potentially could be converted into a Settlement Hearing. The Tribunal reminded the Parties that if a settlement is reached, the general practice is that a Settlement Hearing could be requested through the Case Coordinator. After hearing submissions from the Parties that setting a date for a further CMC would provide discipline to expedite settlement discussions, the Tribunal was persuaded to set a further CMC date.

21Accordingly, the Tribunal fixed a third CMC to be held by Video Hearing starting at 10 a.m. on Friday, December 17, 2021. Parties are to participate by Video Hearing, as follows:

Friday, December 17, 2021 at 10 a.m. (one-day hearing) GoTo Meeting: https://global.gotomeeting.com/join/168701965 Access code: 168-701-965 Audio-only telephone line: Toll Free) 1 (888) 299-1889 or + (647) 497-9373 Audio-only access code: as indicated above.

22No further notice will be given for both Video Hearings, please refer to paragraphs [16] to [19] for general instructions.

23The Parties will advise the Tribunal no later than December 10, 2021 if the third CMC date is no longer required.

DECISION

24The Tribunal directs that Issue 10(f) on the Issues List is deleted.

25The Tribunal directs that Ms. Skinner will provide a final Procedural Order, which will include the revised Issues List, to the Tribunal on consent on or before November 26, 2021.

26The Tribunal is in receipt of the revised Procedural Order and Issues List and the Tribunal Orders that the Procedural Order and Issues List attached hereto as Schedule 1 is in force and effect.

27The Panel Member is not seized.

28This is the Order of the Tribunal.

“C. Hardy”

C. HARDY 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).: PL180617

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

Applicant(s)/Appellant(s): 2245883 Ontario Inc. Subject: Application to amend Zoning By-law No. 438-86 and 569-2013 - Refusal or neglect of City of Toronto to make a decision Existing Zoning: CR T5.0 C3.0 R3.0 (south portion) AND R4A Zl.O (north portion) Proposed Zoning: Site Specific (To be determined) Purpose: To permit 44-storey mixed-use building Property Address/Description: 808 Mount Pleasant Rd Municipality: City of Toronto Municipal File No.: 17 261931 STE 22 OZ OLT Case No.: PL180617 OLT File No.: PL180617 OLT Case Name: 2245883 Ontario Inc. v. City of Toronto

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 Tuesday, May 24, 2022 at 10:00 a.m. at https://global.gotomeeting.com/join/750681125 or (Toll Free) 1 (888) 299-1889 or +1 (647) 497-9373 (access code: 750-681-125). A further case management conference will be held on Friday, December 17, 2021 at 10:00 am at https://global.gotomeeting.com/join/168701965 or (Toll Free) 1 (888) 299-1889 or +1 (647) 497-9373 (access code: 168-701-965). The parties shall advise the Tribunal by Friday, December 10, 2021 if the case management conference is not required.

3. The parties’ initial estimation for the length of the hearing is about four (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 Wednesday, February 23, 2022 and in accordance with paragraph 23 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. Any challenges to the qualifications of a witness to give opinion evidence in the area of expertise proposed should be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or before Tuesday, March 15, 2022.

10. Expert witnesses in the same field may have a meeting - but no later than on or before Friday, March 25, 2022 - and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties may prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator, but no later than Monday, April 4, 2022.

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 Thursday, April 14, 2022, 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 23 below.

14. On or before Thursday, April 14, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 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 Friday, April 29, 2022, the Parties may provide to all other Parties a written reply to any written evidence.

16. On or before Wednesday May 4, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Tuesday, May 9, 2022.

18. 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 co-ordinator, on or before Friday, May 20, 2022.

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 Tuesday, May 9, 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.

22. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other Parties on or before Tuesday, February 8, 2022. The applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

23. All filings shall be submitted electronically and in hard copy if required. 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.

25. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
Tues. February 8. 2022	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
Wed. February 23, 2022	Exchange of witness lists (names, disciplines, CV, and order to be called)
Tues. March 15, 2022	Last date to challenge identification of expert witness
Fri. March 25, 2022	Experts meeting prior to this date, if such meeting occurs
Mon. April 4, 2022	Agreed Statement of Facts, if meeting occurs and matters agreed to
Thurs. April 14, 2022	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
Fri. April 29, 2022	Exchange of Reply Witness Statements (if any)
Wed. May 4, 2022	Exchange of visual evidence (if any)
Tues. May 9, 2022	Preliminary Hearing Plan filed with the Tribunal
Tues. May 9, 2022	Submit Joint Document Book
Fri. May 20, 2022	Provide to all parties and the Tribunal in password protected format, any documents that will be used by the party in the cross-examination of an opposing party’s witness.
Tues. May 24, 2022	Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

PARTIES:

1. 2245883 Ontario Inc.

Andrea Skinner Aird & Berlis LLP 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Tel: 416.865.3423 Fax: 416.863.1515 Email: askinner@airdberlis.com

2. City of Toronto

Mark Piel Solicitor, Planning & Administrative Tribunal Law 55 John Street 25th Floor Toronto, ON M5V 3C6 Tel: 416.392.2124 Email: mark.piel@toronto.ca

3. Roehampton Towers Inc.

Marc Kemerer Devry Smith Frank LLP 95 Barber Greene Road, Suite 100 Toronto, ON M3C 3E9 Tel: 416.446.3329 Fax: 416.446.3329 Email: Marc.Kemerer@devrylaw.ca

ATTACHMENT 3

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 and shall not be construed as the Tribunal have jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

Roehampton Towers Inc.

1. Does the proposed zoning by-law amendment (ZBA) have appropriate regard for matters of provincial interest set forth in section 2 of the Planning Act, specifically 2(h), (j), (n), (p) and (r)?

2. Is the proposed ZBA consistent with the Provincial Policy Statement (2020), specifically policies 1.1.3.2, 1.1.3.3, 1.1.3.4, and 1.4.3?

3. Does the proposed ZBA conform, and not conflict with, A Place to Grow: The Growth Plan for the Greater Golden Horseshoe (2019), specifically the Vision, Guiding Principles, and policy 2.2.1?

4. Does the proposed ZBA conform, and not conflict, with the City of Toronto Official Plan, specifically sections 3.1.1, 3.1.2, 3.1.3, and 4.5?

5. Does the proposed ZBA conform, and not conflict, with the former Yonge-Eglinton Secondary Plan (the applicable secondary plan for the Approval), specifically policies 2.4, 2.5, 2.7 and 2.15?

6. Does the proposed ZBA have appropriate consideration of OPA 405, specifically policies 1.2.1, 1.3.6, 5.1.1, 5.3.1, 5.3.4, and 5.3.5?

7. Does the proposed ZBA have appropriate regard for the City’s Tall Building Design Guidelines, specifically section 3.2.3?

8. Is the subject site an appropriate location for a tall tower?

9. If approved, will the proposed development preclude the adjacent site at 245 Roehampton Avenue from developing in a similar manner?

10. Does the proposed development, in its existing and planned context, represent good land use planning and urban design, having regard to matters such as:

(a) built form, massing, and scale, (b) building height, density and design (c) stepbacks and setbacks (d) light, sky view, and privacy; and (e) shadow impacts?

ATTACHMENT 4

ORDER OF EVIDENCE

1. 2245883 Ontario Inc.
2. City of Toronto
3. Roehampton Towers Inc.
4. 2245883 Ontario Inc. (in reply, if necessary)

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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