CP REIT Ontario Properties Limited v. Toronto (City), 2021 CanLII 134327

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 21, 2021 CASE NO(S).: PL180201

The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: CP REIT Ontario Properties Limited Subject: Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment Existing Designation: Mixed Use Areas Proposed Designated: Site Specific (To be determined) Purpose: To permit a comprehensive development of a mixed-use, transit-oriented community Property Address/Description: 1880-1890 Eglinton Avenue East and 1523 and 1525-1545 Victoria Park Avenue Municipality: City of Toronto Approval Authority File No.: 15 258686 ESC 37 OZ OLT Case No.: PL180201 OLT File No.: PL180201 OLT Case Name: CP REIT Ontario Properties Limited v. Toronto (City)

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

Applicant and Appellant: CP REIT Ontario Properties Limited Subject: Application to amend Zoning By-law No. 569-2013 - Refusal or neglect of City of Toronto to make a decision Existing Zoning: Commercial Residential Proposed Zoning: Site Specific (To be determined) Purpose: To permit a comprehensive development of a mixed-use, transit-oriented community Property Address/Description: 1880-1890 Eglinton Avenue East and 1523 and 1525-1545 Victoria Park Avenue Municipality: City of Toronto Municipality File No.: 20 209175 ESC 21 OZ OLT Case No.: PL180201 OLT File No.: PL210300

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: CP REIT Ontario Properties Limited Subject: Proposed Plan of Subdivision - Failure of City of Toronto to make a decision Purpose: To permit a comprehensive development of a mixed-use, transit-oriented community Property Address/Description: 1880-1890 Eglinton Avenue East and 1523 and 1525-1545 Victoria Park Avenue Municipality: City of Toronto Municipality File No.: 20 209194 ESC 21 SB OLT Case No.: PL180201 OLT File No.: PL210301

Heard: December 10, 2021 via video conference

APPEARANCES:

Parties	Counsel
CP REIT Ontario Properties Limited	S. Tomasella
City of Toronto	A. Hill and D. Elmadany
D.D. Acquisition Partnership	S. Mahadevan
Calloway REIT	M. Laskin
Bell Telephone Company of Canada	I. Tang

MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON DECEMBER 10, 2021 AND ORDER OF THE TRIBUNAL

1This is the fifth Case Management Conference (“CMC”) in this matter, which had initially been scheduled as a settlement hearing, the Tribunal was however advised by counsel that a full settlement was not achieved with all parties. The issues raised by D.D. Acquisition Partnership are the only issues that remain outstanding and require adjudication.

2Counsel are asking that a three-day hearing be scheduled and have provided the Tribunal with a draft Procedural Order for consideration.

3The Tribunal will consider the settlement reached as well as the D.D. Acquisition Partnership issues at the hearing.

4The hearing is scheduled to commence on Wednesday, March 23, 2022 at 10 a.m. am by video.

5Parties 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:

https://global.gotomeeting.com/join/987779277

Access code: 987-779-277

6Parties 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

7Persons 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. The access code is 987-779-277.

8Individuals 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.

9Three days have been set aside.

10The hearing scheduled to commence on Tuesday September 6, 2022 for 14 days will remain on the calendar for adjudication of the issues related to the application for subdivision approval.

11This matter will be governed by Attachment “1” hereto.

12There will not be any further notice.

13I am not seized but will continue with the case management if the Tribunal’s schedule permits.

14It is so ordered.

“R.G.M. Makuch”

R.G.M. MAKUCH 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

Ontario Land Tribunal Procedural Order

ISSUE DATE: CASE NO(S).: PL180201

PROCEEDING COMMENDED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: CP REIT Ontario Properties Limited Subject: Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment Existing Designation: Mixed Use Areas Proposed Designation: Site Specific (To be determined) Purpose: To permit a comprehensive development of a mixed-use, transit-oriented community Property Address/Description: 1880-1890 Eglinton Avenue East and 1523 and 1525-1545 Victoria Park Avenue Municipality: City of Toronto Municipal File No.: 15 258686 ESC 37 OZ OLT Case No.: PL180201 OLT File No.: PL180201 OLT Case Name: CP REIT Ontario Properties Limited v. Toronto (City)

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

Applicant/Appellant: CP REIT Ontario Properties Limited Subject: Application to amend Zoning By-law No. 569-2013 - Refusal or neglect of City of Toronto to make a decision Existing Zoning: Commercial Residential Proposed Zoning: Site Specific (To be determined) Purpose: To permit a comprehensive development of a mixed-use, transit-oriented community Property Address/Description: 1880-1890 Eglinton Avenue East and 1523 and 1525-1545 Victoria Park Avenue Municipality: City of Toronto Municipal File No.: 20 209175 ESC 21 OZ OLT Case No.: PL180201 OLT File No.: PL210300

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 Wednesday, March 23, 2022 at 10:00 a.m. at https://global.gotomeeting.com/join/328241653.

The length of the hearing will be about three (3) days. The Parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues, where possible. The procedural order deadlines are generally found in Attachment 1.

The Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order.

The Issues 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. An issue can be removed from the issues list without a formal order of the Tribunal with the consent of all Parties.

The order of evidence is 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, subject to the Tribunal’s approval, or by Order of the Tribunal.

Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.

If the hearing is to proceed electronically, 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 Wednesday, January 5, 2022 (77 days before the hearing). A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall 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 Friday, January 7, 2022 (75 days before the hearing).

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, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided as in Section 13. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other Parties at the same time as the delivery of expert witness statements, as in Section 13.

A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before Tuesday, February 22, 2022 (29 days before the hearing), or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.

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 Section 13.

As noted in Section 11, on or before Tuesday, February 22, 2022, the Parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other Parties and to the City Clerk.

On or before Monday, February 28, 2022 (23 days before the hearing), the Parties may provide to all other Parties and file with the City Clerk a written response to any written evidence.

On or before Monday, March 7, 2022 (16 days before the hearing), the Parties shall provide copies of their visual evidence to all of the other Parties.

A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving Party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion.

A Party who provides a witness’ written evidence 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.

On or before Wednesday, February 16, 2022 (35 days before the hearing), the Parties shall advise the Tribunal whether any of the scheduled hearing dates can be released. For greater certainty, the Parties are permitted to request the Tribunal to release any of the scheduled hearing dates following this date.

On or before Monday, March 7, 2022 (16 days before the hearing), the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be used to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.

If the hearing is to proceed electronically, 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 Tuesday, March 22, 2022 (one day before the hearing).This paragraph does not prevent Parties from filing materials for cross-examination after this date to the Tribunal for use at the hearing.

The Parties shall prepare a Joint Document Book on or before Monday, March 14, 2022 (9 days before the hearing). All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with Section 23.

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 and drawings, to the other Parties on or before Friday, December 31, 2021 (82 days before the hearing). The applicant must first obtain consent of the City, in writing, prior to submitting any such revised proposal at the hearing in accordance with this Section. If any such revised proposal is submitted without consent of the City, the hearing shall be adjourned. 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.

All filing of documents and materials shall be electronic. The Tribunal will be provided a hard copy of documents and materials. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. Section 23 applies regardless if the hearing event is in-person or electronic.

No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by Section 22. The Tribunal’s Rule 17 applies to such requests.

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.

BEFORE:

R.G.M. MAKUCH VICE-CHAIR TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
December 31, 2021 (82 days before hearing)	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
January 5, 2022 (77 days before hearing)	Exchange of witness lists (names, disciplines and order to be called)
January 7, 2022 (75 days before hearing)	Last date to challenge identification/qualification of expert witness
February 22, 2022 (29 days before hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
February 28, 2022 (23 days before hearing)	Exchange of Reply Witness Statements (if any)
February 16, 2022 (35 days before hearing)	Parties to advise Tribunal if any hearing dates can be released
March 7, 2022 (16 days before hearing)	Exchange of visual evidence (if any)
March 7, 2022 (16 days before hearing)	Final Work Plan filed with the Tribunal
March 14, 2022 (9 days before hearing)	Finalize Joint Document Book
March 23, 2022	Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

PARTIES:

1. CP REIT Ontario Properties Limited Aird & Berlis LLP Brookfield Place, 181 Bay Street Suite 1800, Box 754 Toronto, ON M5J 2T9 Sidonia Tomasella Tel: 416.865.7763 Fax: 416.863.1515 Email: stomasella@airdberlis.com

Maggie Bassani Tel: 416.865.3401 Fax: 416.863.1515 Email: mbassani@airdberlis.com

2. City of Toronto City Solicitor’s Office 26th Floor, Metro Hall 55 John Street Toronto, Ontario M5V 3C6 Amanda S. Hill Tel: 416.338.5790 Fax: 416.397.5624 Email: Amanda.Hill@toronto.ca

Daniel Elmadany Tel: 416.397.5709 Fax: 416.397.5624 Email: daniel.elmadany@toronto.ca

3. D.D. Acquisitions Partnership Wood Bull LLP 65 Queen Street West Suite 1400 Toronto, M5H 2M5 Sharmini Mahadevan Tel: 416.203.7345 Fax: 416.203.8324 Email: smahadevan@woodbull.ca

4. Calloway REIT Goodmans LLP Bay Adelaide Centre - West Tower 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 David Bronskill Tel: 416.597.4299 Fax: 416.979.1234 dbronskill@goodmans.ca

Max Laskin Tel: 416.849.6938 Fax: 416.979.1234 Email: mlaskin@goodmans.ca

5. Bell Canada Borden Ladner Gervais LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West, Suite 3400 Toronto, ON M5H 4E3 Isaac Tang Tel: 416.367.6143 Fax: 416.367.6749 Email: itang@blg.com

Lee English Tel: 416.367.6169 Fax: 416.367.6749 Email: lenglish@blg.com

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 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 Tribunal 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 Tribunal.

D.D. Acquisitions Partnership

1. Is it premature for the proposed Official Plan amendment (“OPA”) and Zoning By-law amendment (the “ZBL”) to provide for development on Block H2 if Block H2 is acquired to form part of Block C?
2. Is the consideration of the closure of Craigton Drive in the proposed OPA and ZBL premature with respect to the potential impacts on adjacent residential lands?
3. Is it appropriate for the one-storey portion of Building B1 to be permitted a height of 16.5 metres?
4. Is adequate buffering provided on Block B to adjacent residential lands?
5. Does the proposed development provide for adequate setbacks and separation distances to adjacent properties?
6. Does the proposed development on Blocks B, C, and H2 conform with Policy 3.1.2 of the City of Toronto Official Plan (as it applied at the date of the applications), in particular Policies 3.1.2.2 and 3.1.2.3?
7. Does the proposed development on Blocks B, C, and H2 have appropriate regard to the City of Toronto Retail Design Manual?
8. Does the proposed development on Blocks B, C, and H2 have appropriate regard to Policies 7.17 and 7.18 of the adopted Golden Mile Secondary Plan (OPA 499)?
9. Does the proposed development represent good land use planning?

ATTACHMENT 4

ORDER OF EVIDENCE

1. CP REIT Ontario Properties Limited
2. City of Toronto
3. Bell Canada
4. Calloway REIT
5. D.D. Acquisitions Partnership

Reply by CP REIT Ontario Properties Limited (if any)

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

The Tribunal recommends that the parties meet to discuss this sample Order before the Case Management Conference to try to identify the issues and the process that they want the Tribunal to order following the conference. The Tribunal will hear the parties’ comments about the contents of the Order at the conference.

Case Management Conferences usually take place only where the hearing is expected to be long and complicated. If you are not represented by a lawyer, you should prepare by obtaining the Guide to the Ontario Land Tribunal, and the Tribunal’s Rules, from the Tribunal Information Office, 15th Floor, 655 Bay Street, Toronto, M5G 1E5, 416-327-6800, or from the Tribunal website at http://elto.gov.on.ca/tribunals/lpat/about-lpat/.

Meaning of terms used in the Procedural Order:

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. If an unincorporated group wishes to become a party, 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, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as Parties can.

Written and Visual Evidence:

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.

Witness Statements:

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 the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (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 for the opinions and (5) a list of reports that the witness will generally rely on at the hearing, where relevant.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the Parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.