Askander v. Richmond Hill (Town), 2021 CanLII 135941

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

December 15, 2021

CASE NO(S).:

PL180073

PL110189

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

10870 Yonge Street Limited

Appellant:

Saad Askandar

Appellant:

Dogliola Developments Inc.

Appellant:

Richmond Hill Retirement Inc. et al; and others

Subject:

Proposed Official Plan Amendment No. OPA 8

Municipality:

City of Richmond Hill

OLT Case No.:

PL180073

OLT File No.:

PL180073

OLT Case Name:

Askander v. Richmond Hill (Town)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

10870 Yonge Street Limited

Appellant:

Saad Askandar

Appellant:

Dogliola Developments Inc.

Appellant:

Richmond Hill Retirement Inc. et al; and others

Subject:

By-law No. 1117-17

Municipality:

City of Richmond Hill

OLT Case No.:

PL180073

OLT File No.:

PL180074

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

Applicant and Appellant:

Yonge MCD Inc.

Subject:

Request to amend the Official Plan - Failure of Town of Richmond Hill to adopt the requested amendment

Existing Designation:

“Key Development Area” and “Neighbourhood”

Proposed Designated:

“Key Development Area” and “Neighbourhood” with amended policies

Purpose:

To permit a mixed use commercial/residential high rise building, 3 high rise residential buildings, 22 street townhouse dwelling units, 160 condominium townhouse dwelling units, 8 single detached dwellings, and a public park

Property Address/Description:

Various Addresses

Municipality:

City of Richmond Hill

Approval Authority File No.:

D01-16002

OLT Case No.:

PL180073

OLT File No.:

PL170770

OLT Case Name:

Yonge MCD Inc. v. Richmond Hill (Town)

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

Applicant and Appellant:

Yonge MCD Inc.

Subject:

Application to amend Zoning By-law No. 2523 and By-law 190-87 - Refusal or neglect of Town of Richmond Hill to make a decision

Existing Zoning:

Flood (F) Zone and Rural Residential (RR) Zone under By-law No. 2523 and Residential Single Family Six (R6) Zone under By-law No. 190-87

Proposed Zoning:

Multiple Family One (RM1) Zone, Multiple Family Two (RM2) Zone, Open Space (OS) Zone and Park (P) Zone with site-specific development standards

Purpose:

To permit a mixed use commercial/residential high rise building, 3 high rise residential buildings, 22 street townhouse dwelling units, 160 condominium townhouse dwelling units, 8 single detached dwellings, and a public park

Property Address/Description:

Various Addresses

Municipality:

City of Richmond Hill

Municipality File No.:

D-02-16012

OLT Case No.:

PL180073

OLT File No.:

PL170771

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

Applicant and Appellant:

Yonge MCD Inc.

Subject:

Proposed Plan of Subdivision - Failure of Town of Richmond Hill to make a decision

Purpose:

To permit a mixed use commercial/residential high rise building, 3 high rise residential buildings, 22 street townhouse dwelling units, 160 condominium townhouse dwelling units, 8 single detached dwellings, and a public park

Property Address/Description:

Various Addresses

Municipality:

City of Richmond Hill

Municipality File No.:

D-03-16006

OLT Case No.:

PL180073

OLT File No.:

PL170772

Proceeding commenced under subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellants:

Amir-Hessam Limited & 668152 Ontario Limited

583753 Ontario Limited

Yonge Bayview Holdings Inc.

K.J. Beamish Holdings Limited

Signature Developments Inc.

TSMJC Properties Inc.

Haulover Investments Limited

New Era Developments (2011) Inc.

Rice Commercial Group and Major Mac Realty Inc.

Loblaw Properties Limited

E. Manson Investments

North Leslie Residential Landowners Group Inc.

Montanaro Estates Limited and William & Yvonne Worden

Baif Developments Limited

Arten Developments Inc.

Stonecourt Construction Inc.

P. Campagna Investments Ltd., P.A. Campagna and 1480420 Ontario Ltd.

Ram Nischal, Rekha Nischal, Neelam Narula and Raj Kumar

Angelo, Louise and Josephine Cimetta and Shiplake Developments Ltd.

Great Land (Westwood) Inc.

775377 Ontario Ltd. (Belmont)

Robert Salna and Robert Salna Holdings Inc.

AME-SON Holdings Ltd.

Corsica Development Inc.

Elginbay Corporation

Sitzer Group Holdings No. 1 Limited, Grall Corporation Limited, Natweiss Investments Limited, 967933 Ontario Limited & Loblaws Inc. (owners of the Richmond Heights Shopping Centre)

Dickson 48 Property Inc., Sedgewick Property Inc., Long Body Homes Inc., & 1419079 Ontario

1191621 Ontario Inc.

1835942 Ontario Inc.

1122270 Ontario Inc.

Subject:

Failure of the Regional Municipality of York to announce a decision respecting the proposed new Official Plan for the Town of Richmond Hill

Municipality:

City of Richmond Hill

OLT Case No.:

PL110189

OLT File No.:

PL110189

OLT Case Name:

Cimetta v. Richmond Hill (City)

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

Applicant and Appellant:

TSMJC Properties Inc.

Subject:

Request to amend the Official Plan - Failure of the Town of Richmond Hill to adopt the requested amendment

Existing Designation:

Yonge-Bernard Key Development Area

Proposed Designation:

To amend the public street access, height and built form policies to facilitate the proposed development

Purpose:

To permit the development of a 16-storey residential building located mid-block and a row of 3-storey back-to-back townhouses with frontage on Yorkland Street for a total of 338 dwelling units

Property Address/Description:

10909 Yonge Street/ Block 29, Plan 65M-2819

Municipality:

City of Richmond Hill

Approval Authority File No.:

D01-16003

OLT Case No.:

PL110189

OLT File No.:

PL170598

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

Applicant and Appellant:

TSMJC Properties Inc.

Subject:

Application to amend Zoning By-law No. 184-87, as amended – Neglect of application by the Town of Richmond Hill

Existing Zoning:

“CC – Community Commercial”

Proposed Zoning:

“RM2 – Residential Multiple Family Two”

Purpose:

To permit the development of a 16-storey residential building located mid-block and a row of 3-storey back-to-back townhouses with frontage on Yorkland Street for a total of 338 dwelling units

Property Address/Description:

10909 Yonge Street/ Block 29, Plan 65M-2819

Municipality:

City of Richmond Hill

Municipality File No.:

D02-16018

OLT Case No.:

PL110189

OLT File No.:

PL170599

Heard:

July 12 to 30, 2021 by video hearing

APPEARANCES:

Parties

Counsel

City of Richmond Hill

Raj Kehar

Yonge-Bernard Residents’ Association

Jason Cherniak

Dogliola Developments Inc.

Ira T. Kagan and Kristie Jennings

10870 Yonge Street Limited

Sarah J. Turney

North Elgin Centre Inc.

Jeffrey Streisfield

Toronto and Region Conservation Authority

Barbara Montgomery

Richmond Hill Retirement Inc. and Oakridge Gardens Retirement Partnership

Mark Flowers and Robert Miller

TSMJC Properties Inc.

Quinto M. Annibale and Brendan Ruddick

Regional Municipality of York

Bola Ogunmefun

Yonge MCD Inc.

Patricia Foran and Patrick Harrington

Frank DiPede

Amber Stewart

Saad Askandar

In absentia (Phase 2)

DECISION DELIVERED BY G. BURTON AND D.S. COLBOURNE AND ORDER OF THE TRIBUNAL

1This is a final decision in these Appeals, following Phase 2 of the Hearings of Appeals of the Yonge and Bernard Key Development Area (“KDA”) Secondary Plan (the “Plan”), and Zoning By- law No. 111-17 (“ZBL”); as well as an appeal respecting amendments to Part 1 of the City of Richmond Hill (“City”) Official Plan (either “OP” or “Part 1 OP”) by TSMJC Properties Inc (“TSMJC”).

2The Appellant Parties are listed above. The Yonge-Bernard Residents Association (“YRA”) was granted Party status, and there were three individual Participants. There is a long history to these Appeals, and many proceedings have taken place to narrow the issues and to prepare for the Hearing. The former Ontario Municipal Board (“OMB”) and Local Planning Appeal Tribunal (“LPAT”), now known as the Ontario Land Tribunal (“OLT”), are all referred to herein as the Tribunal.

3In its Decision of February 26, 2021 on Phase 1 of the Hearing on the Appeals, the Tribunal approved and brought into effect a modified version of the Plan and ZBL. These applied to those lands within the KDA on the west side of Yonge Street, with the exception of the Di Pede lands in the northwest quadrant and certain policies (highlighted in the Decision in yellow) that were still in dispute during Phase 2. In the Phase 2 Hearing, the City sought approval of the version of the Plan and ZBL, including the policies highlighted in yellow, that was appended to the Tribunal’s Decision issued February 26, 2021. This was subject to further modifications as agreed to amongst the experts, as discussed below.

4It was determined in an earlier CMC that the Hearing on the Appeals would proceed in two Phases: Phase 1, the policies governing the entire area of the KDA in all applicable documents; then Phase 2, specifically on the subjects of Parks and Open Space, Greenways, the so-called ring road and issues specific to development proposals in each quadrant. Any general determination by the Tribunal following Phase 1 was reached on the understanding that it was without prejudice to any Party’s position on the quadrant-specific or other issues to be addressed in Phase 2 (see: Decision by Vice Chair R G M Makuch issued June 29, 2020, paras. 24 and 25).

5As mentioned, the Tribunal issued its Decision on Phase 1 of the Hearing on February 26, 2021. It noted that even before the Phase 1 Hearing, there was a comprehensive policy framework for both a Secondary Plan and an implementing ZBL. They had had both public review and stakeholder consultations. They were supported by City Staff, City Council, Region of York (the upper-tier municipality), as well as the Toronto and Region Conservation Authority (“TRCA”). All of the owners consented to the Phase 1 documents as modified, except North Elgin Properties Inc. (“NEC”) located in the northeast quadrant, and two others, Yonge-Bernard Residents’ Association (“YRA”) and Saad Askandar, a self-represented individual Appellant.

6The issues for Phase 1 of this matter were established by Vice Chair Makuch in the June 29, 2020 Decision. As stated in paragraph 18, these were principally:

• densities of development within the four KDA quadrants, and on a KDA-wide basis;

• building heights within the KDA;

• policies respecting traffic and transportation, including the proposed public road network and ring road system;

• the holding by-law regime; and

• the proposed redevelopment/expansion of the existing Bernard Bus Terminal (“BBT”) in the southeast quadrant. The landowner there, TSMJC, had raised issues that could affect landowners in the other quadrants, such as its location or relocation and any funding or cost-sharing arrangements.

7The Tribunal’s Phase 1 Decision of February 26, 2021 dealt with these issues. The Tribunal heard evidence on almost all the traffic and transportation issues, since decisions on these questions were needed in order to adjudicate on the modified policy framework. The goal was a consistent approach to density and height within all four quadrants, on a KDA-wide basis. Phase 2 could then address other questions: the road network (public or private), the parking rate, density in the northeast quadrant, traffic signal location and other site-specific issues. The Phase 1 Decision also included the “without prejudice” language, so that Parties were free to argue in Phase 2, for example, that the same densities could be achieved without having a ring road or other public road network in their quadrant, or to settle any site-specific issues.

8Two of the Appeals still before the Tribunal as part of the Phase 2 Hearing are the TSMJC Site-specific Application in the southeast quadrant, and that of the Richmond Hill Retirement Residences (“RHRR”) at 70 Bernard Avenue in the northeast quadrant. The remaining RHRR zoning Appeal relates to a technical matter with the previously issued decision for this property. The Tribunal had ordered (April 17, 2020) that the ZBL be approved on a site-specific basis as it applies to those lands, with modifications to three definitions in the ZBL. Thus the ZBL is now in effect as it applies to 70 Bernard Avenue. However, a technical amendment is still required.

Witnesses summoned by North Elgin Properties Inc., but summons quashed by the Tribunal

9Summons issued for Kevin Kwan and John MacKenzie, Senior Executives of the City and of the TRCA respectively, were quashed on the City’s and the TRCA’s request. The reason was that they had no personal knowledge of the Appeals, and thus could not provide relevant evidence to the Tribunal (see Decision in Appendix A below). In the end, neither witness was required in any event (see below, sub-phase 2B).

Dana Anderson’s Evidence

Background

10The City’s case was again first presented by the evidence of Ms. Anderson, a professional planner who was qualified as an expert witness in Phase 1 and continued as such in Phase 2. She had thoroughly reviewed the Tribunal’s February 26, 2021 Decision, which approved both the Plan and ZBL in general, with modifications. Thus these instruments are in effect for the western half of the KDA, except for the Di Pede lands in the northwest quadrant.

11The Phase 2 Hearing thus considered the Plan and the ZBL as they applied to the eastern half of the KDA, as well as to the Di Pede property. Ms. Anderson stated that the City was seeking approval of the Plan and ZBL in the same form as attached to the February 26, 2021 Decision, with some modifications resulting from agreements reached recently (these modifications are listed in Appendix A to her Reply Witness Statement, Exhibit 81).

12She expressed the issues in the Phase 2 Hearing as:

• the site-specific development application of TSMJC, and other issues specific to the TSMJC lands in the southeast quadrant;

• issues specific to the NEC lands in the northeast quadrant;

• issues specific to RHRR with a minor zoning revision, and

• issues specific to the Di Pede lands in the northwest quadrant.

13She again outlined the history of the planning process undertaken to develop the Plan and the ZBL. She had reviewed the policy framework, supporting documentation, comments from landowners and the public, and the planning reports and correspondence from City and agency staff. This recent review included all current landowner applications and related appeals. Pages 4-6 of her witness statement (Exhibit 80) sets out all additional sources considered.

14The background is described in the Decision of February 26, 2021 so will not be repeated in detail here. As mentioned, s. 4.4 of the City Part 1 OP (of 2010) authorises the Yonge Bernard Secondary Plan (Exhibit 1, page 640) and the KDA Plan forms Chapter 12 of this Part 1 Plan. Thus it must be read together with the policies in the Part 1 OP. This Plan is mostly in effect as approved in stages by the OMB.

15KDAs are areas of intensification on a Regional Corridor, where public rapid transit intersects with major nodes and commercial/retail development. Thus this KDA provides an opportunity for transit-oriented development of the existing larger parcels. It became important to note for Phase 2 that surrounding this KDA are residential communities, natural areas, parks and schools. Thus sufficient protection for natural hazards is also needed.

16Another factor was (as mentioned in the June 24, 2021 Decision) that many development applications submitted prior to the KDA resulted in an interim control by-law (“ICBL”) in 2016. This is still in effect for most of the KDA lands. One exception to the ICBL provisions is the RHRR at 70 Bernard Avenue, since it was approved by LPAT on April 17, 2020 [see Planning Act, s. 38(6.1)].

17The Urban Strategies Study for the ICBL had set out six “core” components for this KDA: an inter-connected street network, reinforcement of Yonge Street, integrated bus transit, integrated commercial uses, open space, permitted land uses, and building heights and densities. This report had recommended that the highest density be along the Yonge Street Corridor, with Floor Space Index (“FSI”) of 3.5 to 5 and height of 10-15 storeys. Transitional areas would have FSI from 1.5 to 2.0, with heights 4-10 storeys. A lower height of 3 storeys was recommended along the edges, next to Neighbourhoods. New streets would be created in a public and private network, as well as an open space network (right-of-way loops, urban squares and mid-block linear parks). Most of these recommendations were adopted in the Secondary Plan and zoning exercises.

18The Hearing of the Appeals had been set originally for July 2019, but had then been adjourned to consider new provincial and Regional growth initiatives. These would factor into whether the KDA should and could accommodate increased heights and densities. It is located on a priority transit corridor, with the recently constructed Bernard Bus Rapid Transit (“BRT”). Densities in priority transit corridors must meet the Growth Plan for the Greater Toronto Area (“Growth Plan”) minimum densities. The intersection of Yonge and Bernard was identified by the Region as a Major Transit Station Area (“MTSA”), as stated in the previous Decision. Only about 26.8 hectares of the 63.634 hectares within the circumference of this MTSA are actually within the KDA. However, the Region’s minimum density target for this MTSA is 200 residents and jobs (“R/J”) per hectare, as well as a mix of 80% residents and 20% jobs. The Phase 1 Decision of the Tribunal approved these targets as they applied to this KDA.

19The Open Space policies were addressed in the Phase 2 Hearing. As set out in the Decision on Phase 1, of special import is the fact that most of this KDA is located within the Oak Ridges Moraine (“ORM”) and subject to the ORM Conservation Plan (“ORMCP”). Most of the land here is designated “settlement” under the ORMCP, and thus must accommodate growth and support intensification. However, key natural heritage and hydrological features and water balance policies must also be implemented within a settlement area. All decisions made by approval authorities including OLT “shall conform with” the ORMCP as it exists on the date of the decision.

20The two prominent natural heritage features within the KDA, German Mills Creek and the Rouge River valley lands, frame its the eastern and western edges. These include Moraine lands, designated “Natural Core” in the City’s OP. ORMCP guidelines apply minimum vegetation protection zones (buffers) to the areas within the rivers’ meander belt, and to nearby “significant” woodlands and wetlands. In Ms. Anderson’s opinion, the proposed modifications to both documents for buffers are in conformity with the ORMCP. There is also the provision for separation distances in section 3.2.2.3 of the 2010 City OP (see below).

21Some residents and landowners in the quadrants east of Yonge Street opposed the introduction of new public streets. These might encourage automobile use and traffic in and through their residential neighborhoods, they believed. They recommended their removal from the Plan. In the Phase 1 Decision, the Tribunal indicated a preference for roads there to be public. This issue is further addressed below under the findings for NEC.

22The Region’s MTSA targets called this KDA a “redevelopment area”, where a greater mix of uses and more compact, transit-supportive urban form could take place. It is part of a “Protected MTSA”, or “PMTSA”. Thus some of the revisions proposed that were accepted by the Tribunal following Phase 1 were:

• Use of urban design principles to control height, rather than storeys (e.g. a 45-degree angular plane from a Neighbourhood property line; tower and mid-rise separations; and floor plate sizes).

• Height limits generally from 10 to 30 storeys; with taller permitted if density, built form and angular plane requirements are met (Schedule 2 of the Plan directs densities to specific areas).

• A system of linear parks, rather than urban squares.

• Privately owned urban “plazas” (“POPs”).

• Modified street configurations.

• A Holding provision in the ZBL to ensure the creation of necessary infrastructure prior to development approvals.

23The policies in section 4.4.1 of the Part 1 Plan of 2010 permit uses and development fronting onto Yonge Street and Bernard Avenue to have commercial, retail or community uses at grade, in a mixed-use building format. Densities and heights were modified to reflect a minimum FSI for the KDA of 2.5, with a maximum overall FSI of 4.0. These modifications also reflect how the density within the KDA is to be implemented.

Policy Assessment and Opinion

24Ms. Anderson reviewed the provisions of the documents not yet considered, together with her opinion on proposed amendments resulting from a settlement agreement with TSMJC, a major owner in the southeast quadrant and with RHRR in the northeast quadrant.

25To reiterate the purpose expressed in the Secondary Plan, it is to support the transformation from an auto-oriented and low-rise commercial area to a compact urban mixed-use, transit-supportive one. Improved connectivity via new roads and linear parks is encouraged. The three principles for the transformation are seen in section 12.1.3 of the Plan:

• improve connectivity via a fine-grained, walkable street network, and connections to the Greenway System, with linear parks, urban plazas and enhanced streetscapes;

• accommodate transition by way of built form, with non-residential mainly at the intersection of Yonge and Bernard and along the Yonge Corridor; and

• create local identity, encouraging vibrant mixed-use development, with active at-grade street frontages (“AGF”).

26Ms. Anderson testified that these are implemented by:

• a density of 5.5 FSI along Yonge Street, and 3.0 FSI in the interior “character areas”;

• Holding provisions in the ZBL, prior to any approval of increased density, based on minimum persons/jobs per hectare;

• requirement to demonstrate how the desired “mix of uses” is implemented (to ensure the desired mix of jobs and residents, and to achieve the Region’s R/J ratio of 80:20);

• flexibility for extent of buffers to existing hazard lands; and

• no maximum height for areas outside of the Neighbourhood Edge. Instead, control by urban design (angular plane, floor plate size, separation between buildings) and density provisions (e.g., maximum height in the area cannot exceed the allocated density).

27To repeat, densities are directed in Schedule 2 of the Plan to specific areas within the KDA. These are aligned with the “Character Areas” from the Urban Strategies Report. A minimum density of 1.5 FSI is required in order to achieve the Region’s minimum density requirement of 200 P/J per hectare for the Bernard MTSA. In Ms. Anderson’s opinion this requirement for FSI is appropriate. It addresses the conveyance of land for parks and public streets by allowing the transfer of unused density there to be counted to determine the quantity of developable lands. That is, to calculate FSI, the lot area is considered to be the total developable site area, including lands dedicated to parkland or public streets. Otherwise densities would be unnecessarily restrictive, and not meet development targets for higher order transit corridors.

28Respecting ‘Mix of Uses’ in section 12.2.1 of the Plan, a shift is planned from commercial to a greater proportion of residential uses to achieve a complete community, as the provincial policies require. The policies include a Schedule 4 to illustrate where “Active at Grade” frontages or AGF are encouraged. However, a minimum of 15% of total Gross Floor Area (“GFA”) is still required for non-residential uses, either within each new building or in one building in a larger redevelopment. The existing non-residential floor area must be maintained over time, and existing employment space should be replaced by an equivalent amount.

29The recommended Open Space strategy in the Urban Strategies Report included four elements to support intensification: identifying and preserving natural and defined “greenway systems” to frame the KDA; urban squares throughout for a sense of place and opportunities for public life; mid-block linear parks for alternate walking/cycling paths; and improved right-of-ways for enhanced streetscape environments.

30Several other subjects had arisen from the public consultations prior to enactment of the Plan:

• where the measurement of angular planes was to be taken;

• revision for adequate sunlight for parks;

• description for the Naughton Drive connection (by the Di Pede lands), and also that the access westward from Yonge Street on Naughton Drive would remain restricted;

• clarification that underground parking is permitted below public parks (stratification); and

• identifying collector and local streets on all schedules.

31In Ms. Anderson’s opinion, the Plan and the ZBL as approved by the Tribunal, and with now-proposed modifications, represent an appropriate policy and regulatory framework to achieve intensification within the KDA area, as well as within the City’s urban structure. They will enable a complete community, with a mix of land uses to support new residents and jobs. The present retail and service-commercial uses are maintained, and additional non-residential uses are encouraged. As well, the planned densities and built form policies respect the existing conditions. They will ensure compatible and appropriate forms and densities within this KDA.

32The Greenway System will ensure enhanced connectivity both within and through the KDA. It provides for a range of public realm and natural areas, hazard lands and their associated buffers, and open spaces, all contributing to the goal of a complete community.

33The proposed phasing of development with planned infrastructure is dealt with appropriately, she testified, to depend on:

• the completion of the Region’s capital projects;

• the shift in modal split as the area redevelops, facilitating transit and active transportation; and

• the provision of non-residential uses, for a balance of J/R to achieve the density targets.

34In summary, Ms. Anderson opined that the Plan and ZBL as approved by the Tribunal, and as further recommended to be modified, should be finally approved, as they:

• have due regard to relevant matters of provincial interest in s. 2 of the Planning Act;

• are consistent with and implement the Provincial Policy Statement (“PPS”) 2020;

• are in conformity with and implement the Growth Plan 2020 and the ORMCP, and implement the York Region OP (“RYOP”);

• address the functional policies of the Part 1 City OP, and implement the required Secondary Plan for the Yonge and Bernard KDA.

35In her opinion, the documents constitute good planning and are in the broader public interest.

36Ms. Anderson also addressed the (essentially) complete lack of participation by NEC in the Phase 2 Hearing. She maintained that the Plan should be applied to the NEC lands as well as the entire eastern half of the KDA. Despite the lack of evidence from NEC, she opined that the majority of issues in Michael Manett’s witness statement have been addressed. There are no differentiating land uses or physical factors warranting a change to the policy structure or the policies themselves as they apply to the NEC lands. These lands now contain retail and service commercial uses, as do the TSMJC and Longo’s lands. TSMJC have agreed to modifications to the policies to address some of the contextual factors. In Ms. Anderson’s opinion, some of those modifications could be applied to the NEC lands as well. As mentioned, she attached a list of proposed amendments as Appendix A to her Reply (see Exhibit 81).

The Phase 2 Hearing – Sub-phases

37As determined by the Tribunal CMC Decision of June 24, 2021, the Hearing was planned to consist of 4 sub-phases – 2A (southeast quadrant issues, TSMJC); 2B (northeast quadrant issues and NEC, other than the Greenway); 2C (Greenway system); and 2D – Issues respecting Di Pede lands in the northwest quadrant.

Sub-Phase 2A – TSMJC Appeals (Southeast Quadrant)

38As a reminder, the TSMJC lands are at municipal address 10909 Yonge Street, and are now occupied by the Upper Yonge Place commercial plaza. Official Plan Amendment and Zoning By-law Amendment (“ZBLA”) applications sought the redevelopment of only the surface parking lot at the southeast corner of the property (the “Site-specific Application”).

39At the request of the City and the Appellant TSMJC, the Tribunal had consolidated its Appeals of the 2010 Part 1 OP with its Appeals to the Plan and ZBL. Its Part 1 OP Appeal is mostly site- and area-specific, but the Tribunal had stated that it would allow any approved modifications, including modifications to the Part 1 OP, to apply more broadly to the entire KDA, as appropriate.

40The professional planning evidence for TSMJC was provided by Paul Lowes, a well-qualified and experienced expert, who had reached an Agreed Statement of Facts (“ASF”) with Ms. Anderson respecting the TSMJC Appeals (a Table found in Ms. Anderson’s witness statement in Exhibit 80). This resolved many issues prior to the Hearing, and assisted in scoping the issues for the Tribunal.

41In the ASF, the Parties agreed that the approved Plan attached to the Order of February 21, 2021 could be amended in accordance with the modifications in a Table attached as Appendix 1 to the ASF. These modifications apply only to 10909 Yonge Street. They address several issues in the Phase 2 hearing and will help to bring clarity and certainty to the Plan, as it relates to the TSMJC lands. They do not change the intent of the Plan, Ms. Anderson testified, nor the approved density planned for the area. Similarly, the ZBL as approved and attached to the Order of February 26, 2021 would be amended to address both the technical issues raised in the Phase 2 Hearing, and the specific issues related to the TSMJC lands. These modifications to the ZBL are appropriate and conform to the Plan, Ms. Anderson opined, and do not affect the approved density for the area.

42The revised proposal (Exhibit 84) would have two residential towers of 19 and 24 storeys connected by a 6-storey podium. Three-storey grade-related townhouses are proposed on the Yorkland Street façade of the podium. The apartment towers and townhouses are connected by a parking garage, partly underground, with outdoor amenity space on its roof. The 24-storey tower is located along the north portion of the site, with frontage along a new private street opposite Justus Drive. It is in the same location and with the general alignment of the existing driveway to the current plaza from Yorkland Street. The Parties agreed that the criterion in policy 12.4.4.2 (7) a) of the Plan is that the use of a stratified street or private street must be approved by Council, via an agreement such as a subdivision or site plan agreement or through a Council-approved policy. Here, however, the ASF sets out a Site-specific Exception in policy 7.1 to clarify that a “street” includes a private street for this development only. In Mr. Lowes’ opinion, this is an appropriate clarification which implements the Secondary Plan provision for private and stratified roads.

43The southerly tower would be shifted so that some issues are no longer relevant (TSMJC’s Issues 7 and 28, rear yard and tower setbacks). The ASF provides for revised wording of policy 12.2.3 (3) that clarifies the intent of the policy, and in effect allows for averaging of the density, with limitations.

44As well, Issues 23 and 31 (above grade parking in podium) are resolved through the revisions to policy 12.4.8 (2). Policy 7.1 (12) states that where there is a conflict, the Secondary Plan takes precedence.

45TSMJC agrees that, based on the modifications in the Table in Appendix B and its revisions to its Site-specific Application, all issues raised by TSMJC have now been addressed.

46Mr. Lowes stated that supporting studies are appended to his witness statement (Exhibit 83). He referred to TSMJC’s Concept Plan as one example of what could be developed on the site, with a public street or private street built to public standards (Exhibit 84, Tab 2). This also showed a proposed linear park. There would be 100% AGF on Yonge Street, and also 60% on Bernard Avenue and 40% on the internal road. At-grade retail and second floor commercial are included. A plan at page 7 shows the proposed distribution of FSI on the site.

47Mr. Lowes then further described the design represented in the Concept Plan. His conclusions were that the proposed modifications as set out in the ASF would bring clarity and certainty to the Secondary Plan as it applied to these lands, and that they all conform to the required provincial and local policy documents.

48Mr. Lowes dismissed NEC’s suggestion that affordable housing be part of a specific proposal, saying that this requirement is not needed in an individual development application. The City will implement policy 12.2.6.3 of the Plan by tracking the number of units contributing to the affordable housing target and will not require the policy to apply to each application. This is no longer an issue for TSMJC.

49Any BBT relocation could well be accommodated, he stated. An Environmental Assessment is still required. It could be relocated on an internal road, or at one building’s podium, with lay-bys. The ASF’s Appendix 1 includes proposed wording to allow for additional density within the quadrant when the BBT is finally located.

50Ms. Anderson agreed with Mr. Lowes’ opinion that the proposed modifications to the Plan and the ZBL for the southeast quadrant do not change the intent of the Plan, nor the approved density for the area. The ZBL amendments are appropriate and conform to the Plan, she opined, and that the revised Site-specific Application also conforms to the Plan and the ZBL as modified by the ASF. She also agrees with Mr. Lowes that the modifications to both instruments are consistent with the PPS and conform to the Growth Plan, the ORMCP, the RYOP and the Part of the City OP. The proposed modifications represent good planning and are in the public interest. Mr. Lowes testified that the ASF proposals resolve all issues raised by TSMJC.

51Ms. Anderson then put forward a minor modification to the minimum non-residential GFA for TSMJC lands as an exception to Schedule 4 of the KDA ZBL. A Site-specific Exception is recommended to permit flexibility so that the non-residential GFA is maintained on the lands. The proposed amount of 13,953 square metres (“sq. m.”) would retain about 80% of the existing non-residential GFA. However, the stated amount in the Table in the ASF has a numerical error, due to the conversion of non-residential space. This number should be 13,953 sq. m.

52Mr. Annibale for TSMJC submitted that no Party had expressed opposition to its Concept Plan, even the YRA, and that the Tribunal should approve it and other amendments, subject to receiving their final form following the approvals of the City and TSMJC. Development was slated to proceed in stages over approximately 10-15 years.

Sub-Phase 2B – Northeast Quadrant and NEC

Richmond Hill Retirement Residence

53The planning evidence for RHRR at 70 Bernard Avenue (following the April 17, 2020 determination on its Appeal to the ZBL) was provided by Billy Tung, a planner of many years’ experience. The RHRR had settled its remaining issues with the City. These included the appropriateness of the buffer system as applied to this parcel, as well as a minor amendment to the ZBL.

54The question was whether the Secondary Plan should designate the northern portion of 70 Bernard Avenue as part of the “Greenway System”. The Part 1 OP provides that the location of boundaries in the Schedules indicate the general location of this System and are approximate. No amendment is required where the limits have been refined by supporting studies to the satisfaction of the City and the TRCA. Mr. Tung testified that the proposed settlement includes a 5-metre (“m”) buffer from the north property line, which is south of Block 32, Plan 65M-2819 (the “Storm Channel Block”), rather than the ZBL’s requirement of a 10 m setback from the property line. Five metres would provide the limit for development along the northern portion of the 70 Bernard parcel. Mr. Tung also pointed out that the land is within the Settlement Area in the ORMCP, where such reductions (depending on essential technical studies) are permitted.

55The required Hazard Assessment Memo for 70 Bernard by Urbantech addressed the Regulatory Flood Plain and Slope Erosion for the northern portion of the 70 Bernard lands. Both the City and the TRCA are satisfied with a reduced 5 m buffer from the north property line to the proposed structures. Mr. Tung also stated that the City has agreed not to require conveyance of the fee simple in the buffer here, but that RHRR has instead agreed to convey a permanent access easement in favour of the City for maintenance of the buffer area, as a condition of site plan approval.

56In addition, in the earlier Tribunal Hearing and Decision of April 17, 2020, which approved the zoning here, the Applicant had missed a regulation in the ZBL for setbacks to the west and north lot lines. RHRR now seeks a refinement of the prior decision to include a west lot line setback (2.5 m) and a north lot line setback (5.0 m). Since the main wall of the proposed building contains windows with openings to the north and west lot lines, relief to the requirements in Table A3.2, Special Provision 6 is required. It would add Special Provision 15, as follows:

Notwithstanding special provision 6 of Table A3.2, the building main wall of a low rise, mid rise or high rise building on 70 Bernard Avenue that has windows or openings must be set back a minimum of 2.5 m from the west lot line and 5.0 metres from the north lot line.

57Mr. Tung’s opinions were that it would be appropriate and in the public interest to approve the settlement and the proposed amendment to the KDA ZBL, as conforming to all applicable provincial policies and plans. Ms. Anderson for the City agreed with Mr. Tung’s opinions on the settlement and the additional amendment to the KDA ZBL for the 70 Bernard Avenue lands.

58Mr. Tung’s opinions were reinforced by the evidence of John David Leighton of Urbantech, which had produced the required technical studies for 70 Bernard Avenue including a hazard assessment. He mentioned that storm drainage from the current building and parking lot now outlets through an existing storm headwall to Upper Rouge Creek. This section of the Upper Rouge Creek had been channelized as part of the development of the Elgin East Community between the mid-1980s and mid-1990s. Thus it is described as a “channel” to the immediate north of both RHRR and NEC properties.

59The technical studies were based on two natural hazard measurements in determining the development limits on the RHRR Lands: the Regulatory Flood Plain and Slope Erosion for the Upper Rouge Creek tributary to the north of the site. Urbantech were required to establish the following hazards: Physical top of bank; Stable top of bank; and Regional Storm Floodline.

60The TRCA was then in the process of updating the Floodplain mapping for Upper Rouge Creek. Following receipt of this update, Urbantech concluded that both the Regulatory Flood Plain and the Slope Erosion hazards were located outside of the footprint of the proposed RHRR development. Therefore, while a buffer is still required (see TRCA evidence below), the proposed reduction in the buffer for the RHRR structure is in his opinion acceptable.

Sub-phase 2B (continued) – NEC

61Mr. Kehar for the City pointed to the five minor modifications now proposed to the Plan and the ZBL (Exhibit 81, page 17). He then outlined the witnesses he expected to call for sub-phase 2B to deal with the issues raised by NEC. These included Ms. Anderson for factual background and her planning opinion; and Dan Terzievski and Carl Wong for transportation other than parking, which was to be dealt with by Jason Dahl and Jonathan Chai. Eldon Theodore was then to address the planning policy issues. Mr. Kehar also reiterated that NEC had raised 50 issues, most of them for this sub-phase.

62Ms. Ogunmefun repeated the Region’s goal to protect the road shown north of NEC as a public road, as shown on Schedule 4 of the Secondary Plan, together with the possibility of a signal at Link D when it is warranted.

63At the last minute (including both late on a Friday afternoon, and the second time early on a Monday morning), NEC announced that it would not call any witnesses to provide evidence in support of its issues raised for sub-phase 2B. This was despite the Tribunal’s Order that this portion of the continued Hearing would be expressly devoted to the NEC proposals and their case. As a result, the Tribunal cancelled 5 consecutive hearing dates, which had been set in advance by the Procedural Order for the Tribunal to hear evidence from the NEC witnesses. These changes to the Procedural Order was made at the last minute. NEC did not provide advance notice to the Parties or to the Tribunal of their decision not to call oral evidence to address the very issues which they had included and that had continued to remain on the issues list.

64However, before NEC announced its intention not to call witnesses, opposing witnesses had already provided opinions on many of the issues raised by NEC for this sub-phase 2B. Thus the Tribunal will set out pertinent evidence from those witnesses, only for the purpose of enabling it to draw conclusions from it. In the end, this evidence was largely unchallenged, except by wide-ranging and extremely lengthy cross-examination conducted by counsel for the NEC. The Tribunal frequently had to limit or terminate this cross-examination, after numerous warnings and cautions, because it was unduly repetitious and addressed subject areas that had been fully and fairly canvassed.

65All of the witnesses repeated many times that, absent the submission of an actual development application, they were unable to comment specifically on NEC’s “Concept Plan”, as it was called. This plan may be seen at Tab 80, Exhibit 1, Phase 1, and further in Exhibit 85, page 15. For example, such factors as car trip generation from the NEC site cannot be determined until the number and types of units are finalized. If the number of units there were to change, parking rates would as well. Underground parking could be affected by whether roads are public or private, or if stratification is ultimately approved. Only a development application accompanied by a parking strategy and transportation demand management (“TDM”) measures would suffice to accept a change in parking rates. This is only one subject of the many raised in the issues list.

66The City’s evidence on the transportation questions continued from Phase 1, again consisting of Mr. Wong on the engineering aspects, and Mr. Terzievski on transportation planning issues. Mr. Kehar stressed that NEC had raised 50 issues for this Hearing, many on the question of public versus private roads and Link D at Yonge Street. The transportation panel would thus address 1) public roads versus private; 2) traffic signals; 3) the Holding provision in the By-law; and 4) municipal monitoring. As stated, this evidence was provided prior in time to the anticipated NEC evidence on these issues. In the end it remained almost entirely unchallenged.

67Mr. Wong had considered further his Phase 1 witness statement, as well as that of NEC’s traffic expert Nixon Chan, concentrating on the proposed local road network and Link D. He supported the City’s proposed density for this quadrant based on the future modal split and road improvements. He discussed the warranting process for installation of traffic signals, saying that some movements at this intersection are at capacity at present.

68Mr. Terzievski supported the amendments proposed by TSMJC for sub-phase 2A, stating that they conform to the applicable OP policies. He also supported a fine-grained street grid, as well as a Holding provision, as conforming to the RYOP. He countered NEC’s proposal to eliminate the By-law’s Holding provision, saying that it is indeed justified. Mr. Wong stressed that the capital projects mentioned are essential before the Hold could be lifted for a project, so that the physical infrastructure can support an increase in modal splits.

69The Secondary Plan conforms to the RYOP in restricting access to Yonge Street at Link D (to the north of NEC’s site), as well as protecting for any future change in the BBT. Link D as a public road and with a signalized intersection would complete a continuous transportation network in the KDA. This would better distribute traffic both ways across Yonge Street (whether automotive, cycling and pedestrian traffic, including access to new linear parks). However, the Region cannot justify a break in the BRT for a signal at present, until one is warranted after full buildout of the KDA.

70A “woornerf” as counsel for NEC called it (see Exhibit 85, page 15) was proposed for the existing road north of NEC. This would be a private road with public access, running past NEC from Yonge Street and curving down to go past RHRR at 70 Bernard Avenue. Mr. Terzievski testified that this is not yet a policy approved by Council. The drawing at page 15 shows a much undersized pavement width, with no bike lanes, turning lanes or daylight triangles, and a narrow boulevard. The City witnesses emphasised that municipal standards would have to be met for any private or strata road having a municipal easement over it. A detailed submission on its functionality is needed. It is contrary to the policies as written. They opined that trip generation from the future NEC site could well be high volume, and this could not be accommodated on a narrow private road without proper connections. A special exception had been created to authorize a private road on the TSMJC parcel. Council is still considering a stratification policy, which NEC advocates.

71Messrs. Dahl, City engineer, and Chai of consultants HDR again provided lengthy evidence respectively on the policy and technical aspects of the parking issues. Both reaffirmed their earlier evidence on parking strategies, having reviewed the May 13, 2020 letter from LEA Consulting for NEC. A key principle in the intensification of the KDA is that minimum parking standards should be lowered, and other TDM strategies (shared parking, car share spaces, etc.) should be reached for every development. The Secondary Plan s. 12.4.3 permits reduced rates in the ZBL. Both comply with the RYOP. These would be applied to individual contexts only upon a formal application. The MTSA at Yonge and Bernard does not support the complete elimination of parking requirements, and the Growth Plan definitions do not include minimum parking standards. A site-specific context via an application and a detailed TDM plan are crucial before an appropriate parking rate for a development can be established. The high-water table as raised in cross-examination is not relevant for this context. Nor is the distance from public transit a factor to be considered for determining parking rates; a Site-specific Application with a TDM study is still needed.

72The City’s urban design witness Mr. Theodore also provided evidence in this sub-phase 2B. As before, he focused on height and density, and transition associated with height, as it relates to built form. He too had expended significant time and energy addressing the NEC issues, before finding out that it would call no witnesses.

73His planning evidence was similar to that in Phase 1, including his conclusion that the proposed urban design policies in the Plan and the ZBL represent good urban design that will achieve the objectives of the Part 1 OP. They will, he stated, enable good urban design in a manner consistent and in conformity with the direction provided in higher-order policy documents, including the Growth Plan 2020, the PPS 2020 and the RYOP.

74He mentioned in particular that the Plan informally frames the KDA through the proposed network of existing and new streets, and linear parks. This creates a series of manageable blocks between 0.9 hectare to 2.6 hectare, as reflected in Schedule 1. This is a sound urban design approach, as it establishes a finer urban grain within the large-lot parcel fabric there today, allowing for an equitable distribution of density. It also provides guidance for future building footprints, and reinforces a pattern of transition as one moves further away from Yonge Street.

75He addressed other features of the Plan and the ZBL. Densities inform the maximum height, and these align with the planned function of each of the “Character Areas” as set out in the Phase 1 Decision (see section 12.2.3 and Schedule 2 of the Plan, and Tables A-3.1, A-3.2, A-4.2, and Schedule B of the ZBL). In the ZBL, a 45°angular plane measured from the property boundary of existing low-rise dwellings will ensure an appropriate transition in height, as well as maintaining views and privacy (there is one exception, for flexibility, next to designated Neighbourhoods). Appropriately scaled street walls with active at-grade uses are maintained to achieve active streets. There is linear open space within the southeast quadrant in accordance with the policies of the Plan. The policies for Parks and Open Space in section 12.3 include east-west linear open spaces and POPS. These will assist in influencing the massing and orientation of future buildings within the KDA.

76Mr. Theodore was asked in cross why the requirement for AGF was implemented across the entire Yonge and Bernard streetscapes within the northeast quadrant, even though 70 Bernard Avenue had been built for many years. Mr. Theodore noted that any future redevelopment would have to meet this desirable requirement, and thus it protects for any redevelopment design. He also explained that the setbacks in the ZBL are required for spillout zones, and for both trees and patios.

77Mr. Theodore’s summation was positive: ”... the proposed design principles within the KDA Secondary Plan and KDA Zoning By-law will ensure a level of design flexibility in building height and massing, and helping to achieve an eclectic mix of built form, while ensuring development meets growth objectives, is of a high-quality, transit supportive, and creates a sense of place and a complete community”.

78In Ms. Anderson’s Reply in this sub-phase 2B, she pointed again to the proposed modifications to the Secondary Plan in Appendix A to her witness statement (Exhibit 80). She had not reached an agreement with Mr. Manett, planner for NEC, on proposed amendments. Respecting AGF in Schedule 4, a minimum of 15% of the total GFA for non-residential uses is encouraged as a target only, and is not a requirement in the ZBL. Another modification, to s. 12.2.1(4), Affordable Housing, is also a target rather than a minimum. It is dealt with in the ZBL. This could be satisfied in one building or several.

79The BBT policies raised by NEC are not a Phase 2 issue, as this issue was resolved in Phase 1. By Plan s. 12.4.5, a private road next to NEC is acceptable IF there is a public easement. By s. 12.4.5 this would be confirmed via a site plan application. Respecting parking, by s. 12.4.8 the tests for reduction in ratios by TDM measures would be dealt within the ZBLA. This would also address the number of affordable housing units. On the Holding provision in the ZBL, there are clear criteria for lifting a Hold to ensure an orderly and phased development, measuring by the new threshold of persons/jobs rather than GFA.

80Ms. Anderson outlined the structure of the ZBL once again, pointing out that it is already in effect in the entire west side of the KDA except for the Di Pede lands, and also for 70 Bernard Avenue in the northeast quadrant. The ZBL contains two zones, MU (Mixed Use) and OS (Open Space).

Sub-phase 2C – the Greenway System

81The evidence for the TRCA was provided first by Anthony Sun, Senior Planner, Development Plans and Permits, who outlined the TRCA’s role in development applications which are within the Natural Hazards section of the PPS. He explained that for applications under any of the Planning Act, Ontario Regulation (“O. Reg.”) 166/06 under the Conservation Authorities Act, and the Region of York’s regulation of natural heritage systems under the PPS, the TRCA must issue a permit. This is only if it accords with TRCA’s Living City Policies (“LCP”). The TRCA’s mandate is to reduce risks to the public by flood, erosion and slope instability. It has a Memorandum of Understanding (“MOU”) in place with the Region of York, through which TRCA provides the Region and its local municipalities with a technical review, comments and advice for natural heritage systems planning and natural hazards.

82Since the northern portion of both 70 Bernard Avenue and the NEC site are bordered by the “hazard” of a man-made drainage ditch which conveys part of the Rouge River through the Rouge River Valley lands, the TRCA studied the applications in detail.

83The authority for a Greenway System and the requirement for a 10 m buffer is found in section 3.2.2.3 of the 2010 City OP. This states:

1. Development shall be directed away from hazardous lands by designating all floodplain lands, with the exception of Special Policy Areas and Flood Vulnerable Areas, as part of the Greenway System.

2. Development and site alteration shall be prohibited within the floodplain subject to Conservation Authority regulations and the natural hazard policies of the Provincial Policy Statement.

3. A minimum protection zone of 10 metres shall be provided and enhanced from the outer limits of hazardous sites, as defined by the Town and the Conservation Authority, or such greater distance as may be determined through a Natural Heritage Evaluation, a Geotechnical Study, a floodplain assessment, or to conform to Provincial regulations.

As Ms. Anderson testified, these policies provide for the implementation of the Greenway System also set out in the Plan.

84Mr. Sun’s conclusion was that it is appropriate to modify the Secondary Plan to designate the northern portion for the northeast quadrant as “Greenway System”. The establishment of a Greenway System with acceptable buffer and access allowances to the flood and slope hazards will ensure that any redevelopment of the NEC lands will be consistent with the Part 1 Plan policies relating to Natural Hazards. It will also aid in assuring that such redevelopment will not result in increased risk to life and property. A Greenway System with buffer and access allowances will also help in obtaining the required O. Reg. 166/06 permit, prior to any further permits needed from the municipality.

85Ms. Anderson confirmed that Mr. Sun had provided a detailed response to the NEC issues related to the Greenway System, and justified its retention as both a designation on the Plan schedules as well as its associated policies. She opined that Mr. Sun’s opinions on these issues are valid, and that these policies including a reduced buffer (following technical studies), are appropriate.

86Further evidence for the TRCA was provided by Ali Shirazi, a Senior Manager and a Geotechnical Engineer. His experience has been in Geotechnical Engineering and Design, Slope Stability Assessment, Slope Hazards Mitigation and Remediation. He conducts geotechnical reviews to identify slope stability issues and potential slope hazards for planning and development applications, and to assess the appropriate risk mitigation and management. In his opinion, the Greenway System designation in the northeast quadrant is appropriate, because it triggers certain requirements for zoning and development applications.

87As a Geotechnical Engineer, it was his professional opinion that erosion hazard areas must be determined as part of the evaluation of natural hazards, with an appropriate geotechnical study. These zones will have to be protected by avoiding their development and alteration, and by providing adequate buffer from the erosion hazard limit by an erosion access allowance. This is required for slope maintenance and remedial works. He would reject NEC’s request that a policy be added that NEC’s site should have a “0” setback or buffer from Block 32, the ditch to the north, as it has a potentially hazardous slope.

88He explained that prior to development adjacent to a watercourse, the erosion hazard must be determined by a geotechnical study to determine the position of the Long-term Stable Top of Slope (“LTSTOS”). The LTSTOS line is made up of two allowances (setbacks), the toe erosion allowance and the stable slope allowance. Combined, these determine the LTSTOS to ensure that the erosion hazard is avoided by adequate setback from the top of slope. An appropriate buffer is also needed to ensure an adequate erosion access allowance for potentially hazardous slopes, if needed for remedial works or other slope maintenance.

89Mr. Shirazi would reject NEC’s proposal to remove the Greenway System designation from all lands within the Secondary Plan. The Greenway System should remain to provide adequate setback against erosion and slope instability hazards, as well as a suitable future access to erosion-prone slopes. This would ensure that risk management of erosion hazards can be implemented without constraints, should such hazards occur in the long term. Thus the Plan should be amended to designate the northern portion of the NEC lands as Greenway System. As such, there will be an opportunity to determine the appropriate setback from the erosion hazard, as well as an erosion access allowance to the potentially hazardous slopes at the time of a development application.

90TRCA’s evidence was further strengthened by the testimony of engineer Dan Hipple, Senior Manager of Water Resources Engineering at the TRCA. He provides technical opinions and manages water resources engineers and technologists in their review of water resources engineering documents in support of development applications and official plans circulated to TRCA for comments. These could be under the Planning Act or for infrastructure under the Environmental Assessment Act, as well as permit applications under the Conservation Authorities Act and O. Reg. 166/06. He was involved in reviewing the 70 Bernard Avenue and NEC sites from a water resources engineering perspective, including floodplain modelling and location, and spill potential.

91From the TRCA floodplain and topographic information for the NEC lands, he opined that that the NEC “Concept Plan” does not comply with the TRCA LCP (2014). These require that the floodplain boundary be updated based on a flood study, including updated base mapping via a topographic survey and hydraulic modelling. Removal of the Greenway System designation from the northeast quadrant is not appropriate. This provides appropriate direction and flexibility for development applications adjacent to watercourses and other natural hazards.

92Mr. Hipple testified that the NEC “Concept Plan” also does not comply with the 2020 PPS, specifically policy 3.1.1 (b), as it is “Hazardous land adjacent to river, stream and small inland lake systems which are impacted by flood hazards and/or erosion hazards”.

93TRCA had prepared Engineered Floodplain Mapping for the Rouge River as part of a watershed floodplain mapping exercise, including the lands within the KDA boundary. The TRCA Floodplain Mapping shows that the majority of the Greenway System is within the floodplain. NEC has not submitted reports or adequate information to update the floodplain mapping, nor provided a draft plan with buffer and development limits.

94He pointed out that Eric Greck for NEC had emailed an updated floodplain assessment. However, it provided only an updated topographic survey up to the proponent’s property line. It did not update the watercourse. Further, his information showed that at cross-section 1294.42, the proposed underground parking structure for NEC is located within the floodplain and will act as a retaining wall within the valley system (emphasis added). A “0” setback is proposed there for the garage wall from Block 32, the channel to the rear. To date, there has not been justification to consider a private development structure within the flood hazard, regardless of the potential engineering solutions put forward in the Hearing. The encroachment into the floodplain is not supported by the PPS or the LCP, he opined. A buffer zone is necessary between the floodplain and all proposed development. Such a buffer would perform several functions, including additional protection to the public from the natural hazards; access to hazard lands for maintenance; and be a safety factor for future floodplain mapping updates.

95The buffer existing in the Part 1 OP is justified, Mr. Hipple explained. It provides additional separation between the public and a flood hazard with fast-moving waters. There can also be debris blockages, or storms greater than the Regulatory Event. NEC’s proposal to build a portion of the underground parking structure in the floodplain could result in a pinch point. This may put the watercourse at a higher risk to trapping debris, blocking flows, and causing flooding. The buffer also provides essential access to hazard lands for vehicles to remove debris, or haul materials to repair erosion damage. As these elements change over time, the result can be fluctuations in floodlines. The addition of a buffer helps protect the public and development from an increased flood hazard by physically separating development, both horizontally and vertically, from flood hazards. Mr. Hipple also supported the 5 m buffer for the 70 Bernard parcel. From TRCA's perspective, this settlement is consistent with the intent of the Greenway System designation. As well, the new City policy provides flexibility in establishing buffers from natural hazard features.

96In conclusion Mr. Hipple testified that the designation of the northern portion of the NEC lands as Greenway System is appropriate. The Plan should be modified to include proposed new policy 12.3.1.3, as endorsed by City Council in May 2020. Prior to considering any reduced buffer for the NEC lands, the proponent must provide a Flood Study, including a detailed topographic survey of the Greenway System, to update the current floodplain computational modelling and mapping. It should also provide an appropriate buffer beyond the updated floodline elevation, and to establish appropriate development limits. There must be no structures (above ground or below) built inside the established buffer.

97Ms. Anderson replied to NEC’s comments on the Greenway System and other proposed modifications to the Plan and the ZBL for the eastern quadrants. The Greenway System designation and policies in section 12.3.1 of the Secondary Plan are essential to the protection of hazardous lands. The required buffer would only be considered for reduction where a detailed study is completed as required by the Plan. The City had engaged Savanta Inc. early in the Secondary Plan process to assess the existing ecological conditions and environmental constraints in the KDA area. In their March 13, 2017 report, Savanta identified a number of features including the tributary adjacent to the lands in the northeast quadrant, including the NEC lands. TRCA staff as a commenting agency in the KDA process had stated that the policy for a required buffer could only be reduced through a technical study.

98Ms. Anderson concluded her review of the issues raised by NEC in both the (anticipated) sub-phase 2B and in sub-phase 2C by stating:

It is my opinion that the proposed modifications in Appendix A address NEC’s issues related to: public and private roads (Issue 2, 7, 16, 21) mix of uses and non-residential uses (issue 9), density transfers (issue 11), affordable housing (issue 13), and further considerations for reduced parking standards (7, 23) and maintain the intent of the KDA Secondary Plan. (Exhibit 81).

Sub Phase 2D – Di Pede Settlement

99According to the evidence, the Di Pede lands (formally Silver Nimbus Holdings Inc.) are located on the north side of Naughton Drive, within the northwest quadrant of the Yonge Street and Bernard Avenue KDA. The lands are less than 200 m from the new Yonge/Bernard VIVA Transit station, an important gateway into the northerly section of the City. The Appellant proposes a mid-rise, multi-unit residential building for the site.

100The site has a frontage of about 30.5 m (100 feet) along the north side of Naughton Drive and a depth of approximately 98 m (322 feet), for a total lot area of about 0.298 hectares (0.74 acres). The site currently contains a vacant, one-storey single detached dwelling, which would be demolished in the proposed development on the property. There is existing vegetation along the periphery of the site. The witnesses for Frank Di Pede opined that there are no topographic constraints to the development of the property for the intended purpose.

101Directly abutting it to the north is the Phase I component of the Yonge MCD Inc. lands, to be comprised of stacked townhouse, semi-detached, single detached and six-storey “lifestyle” residential dwelling units.

102In accordance with Schedule 1 – “Character Areas” in the Secondary Plan, the subject property will be adjacent to a “planned new local street” to the north. This would run in an east-west direction, through the south portion of the Phase I Yonge MCD Inc. lands. Further to the north of the Di Pede lands, there is a combination of commercial uses along the west side of Yonge Street, including a multi-unit commercial block, and low density residential (single detached), as well as an Open Space component.

103To the south, directly opposite the site on the south side of Naughton Drive, there are existing two-storey street-oriented townhouses. Further to the south along Canyon Creek Avenue (the continuation of Bernard Avenue to the west of Yonge Street), the Dogliola/Treasure Hill stacked townhouse development is currently under construction.

104Abutting to the east of the Di Pede site (between it and Yonge Street) is the Phase II component of the Yonge MCD Inc. lands, a series of high-rise residential and mixed-use buildings. Further to the west there is a low-density residential community, comprised entirely of single detached residential.

105The property is located at the northerly terminus of existing Abitibi Street. The existing Abitibi Street ROW is intended to be extended in a northwesterly direction. It would terminate along Brookside Road further to the north. The extended Abitibi ROW will directly abut a portion of the subject lands, along the westerly lot line.

106Council had determined to incorporate the lands into the boundary of the Yonge and Bernard KDA (see Schedule 1 – Character Areas) as staff had recommended. However, they would then have been designated a combination of “Interior Character Area” (the easterly 20 m) and “Neighbourhood Edge” (remaining westerly 10 m). By a further modification, the site’s Interior Character Area designation was expanded to terminate along the easterly limits of the extended Abitibi Street, along the site’s west lot line. This effectively designated the entire property as “Interior Character Area”. The lands were provided with a maximum FSI of 3.0 times the lot area (consistent with the staff recommendation).

107In its closed session on May 14, 2020, City Council reversed its decision from the day before, which had the effect of reimposing the dual “Interior Character Area” and “Neighbourhood Edge” designations on the lands. Any building located within the site’s most westerly 10 m then would have a height limit of 3 storeys, and any building located in the easterly portion of the site would be required to have a minimum height of 4 storeys.

108In the opinion of Mr. Kotsopoulos, expert planning witness for the owner Mr. Di Pede, the subject property is well located within an area of the City that is ideal for redevelopment in a mid-rise residential form.

109In light of this opinion, Vincent Santamaura, an architect retained by the owner, prepared a Concept Development proposal. It consisted of the following:

• A residential development consisting of an 8-storey, mid-rise building with rooftop indoor and outdoor amenities, and two levels of underground parking. It would contain approximately 99 suites, with 110 parking spaces, lockers and bicycle storage units in the underground levels.

• The proposed development would have a total GFA of approximately 8,960 sq. m., and an overall density FSI of 3.0 times the lot area.

110Mr. Kotsopoulos opined that the proposed development will effectively implement key Provincial policy initiatives in the following manner:

• The proposed inclusion of the site within the KDA, subject to the modifications proposed by Mr. Di Pede, will make full and cost-effective use of the existing infrastructure, public transit, and human services systems in this highly urbanized environment. As well, the proposed development is close to existing urban amenities and public transportation. This will maximize opportunities for non-automobile modes of travel (i.e. walking, cycling or public transit).

• The subject lands are approximately 120 m from Yonge Street, and less than 200 m from the Bernard Avenue VIVA Transit Station, which has one of the more frequent levels of service within the Greater Toronto Area. The site has excellent access to it.

111In Mr. Kotsopoulos’ opinion, the proposal is an appropriate development for this under-utilized site. The built form will act as a logical transition between the higher density lands to the east and the lower density residential lands to the west. It would provide a unique opportunity for the City to achieve a well-designed urban form, highly accessible via public transit, with existing municipal services. The proposal will attract other complementary uses (commercial, institutional, retail, recreational and entertainment), all needed to round out the KDA to a complete and compact community. He stated:

In my opinion, there a limited number of other redevelopment sites in the City of Richmond Hill that contain the same prominent locational (proximity to the Yonge Street Corridor and proximity to the Bernard Avenue VIVA Transit Station) and land use context attributes as the subject lands (existing high density residential uses to the east, proposed high density on the abutting lands to the east and commercial to the east and south). Sites such as this need to be taken advantage of for higher density residential development. (Exhibit 119, page 17).

He continued that the proposal can more readily provide a broader range and mix of housing units, meeting the needs of the Municipality’s varied population from a social, cultural, and economic perspective. It will also noticeably improve the streetscape along this portion of the Yonge and Bernard KDA.

112In summary, the proposed modifications are supportive of, consistent with and advance the policy initiatives of the PPS. They would effectively implement the key Growth Plan policy initiatives. In Mr. Kotsopoulos’ opinion, to achieve the Growth Plan intensification policies, higher densities will be required in areas within an established urban boundary in order to achieve the population and employment targets. This promotes concentrated growth where it will have the least adverse impacts on rural and natural areas, while making efficient use of existing infrastructure. It is compatible with surrounding land uses. Thus it implements to goal of an urban, complete, and compact community. As such, it is in his opinion consistent with Growth Plan.

113Mr. Kotsopoulos reinforced that it is important to the success of increasing the transit modal split that transit-supportive densities be approved at appropriate locations. This development provides transit-supportive density, and the subject site is an ideal location for it.

114Based on the OP, Secondary Plan, ZBL and land use considerations, it would be appropriate to permit the proposed residential mid-rise development. There are additional reasons:

1. The Development Concept Plan illustrates how the subject site could be developed for a residential mid-rise building with an FSI of 3.0 times the lot area. The Secondary Plan had proposed to redesignate the property to a combination “Interior Character Area” and “Neighbourhood Edge” designations, which anticipate this form of development at this density on the subject site.

2. However, to construct a feasible development that achieves the City’s vision for the site, a further amendment to the “Neighbourhood Edge” portion of its designations is required. The proposed modifications would contribute to the planned function of community in the Plan. He noted that Mr. Santamaura’s Concept Plan would facilitate an appropriate mid-rise building, with only the westerly 5 m of the site being within the Neighbourhood Edge designation.

115Subject to Mr. Di Pede’s proposed modifications, the City’s modifications would facilitate the appropriate intensification of under-utilized lands, consistent with the intent of all applicable policy documents. It would promote intensification, compact urban form and the best use of existing infrastructure and services. The proposed design incorporates tiers and a gradation, and will ensure a development compatible with the adjacent land uses, both those proposed to the east and the existing low density residential to the west.

116Expanding the KDA to include the property is reasonable for this location, and diminishes the need to seek or redesignate other non-contiguous areas. This would discourage similar developments in new areas, amid adjacent commercial and lower-density residential lands. Subject to Mr. Di Pede’s proposed modifications, the City’s modifications satisfy the Secondary Plan’s locational criteria for Medium and High-Density Housing, and applicable design criteria.

117Respecting site amenities, circulation and accessibility, in his opinion the Concept Development Plan demonstrates that the site can have parking, attractive landscaping and allowance for adequate vehicular and pedestrian circulation movements.

118Dana Anderson for the City provided her opinions in support of the modifications in general and those to accommodate the proposals for the Di Pede lands. On pages 3-6 of her Reply Witness Statement (Exhibit 81) she explained:

It is my opinion, as set out in the responses provided in Paragraphs 32 and 33 of my witness statement that a mid-rise building may be developed with some minor modifications to the KDA Secondary Plan policies that would allow for a stepped transition from 3 storeys (within the 5 metre setback area), to 4 storeys (within the 5 to 10 metre setback area), to 8 storeys beyond the 10 metre setback area. This transition in my opinion would maintain the intent of the transitional policies for the Neighbourhood Edge and provide for a mid-rise building as contemplated in the Interior Character Area. This approach also maintains the angular plane policies of the KDA Secondary Plan and the transition requirements of Section 12.2.2(3) and assumes the required separation distances required in 12.2.4.1(4) are met.

In my opinion, a modified policy that would provide for further height transition and flexibility along Neighbourhood street edge on the DiPede lands while continuing to meet a 45 degree angular plane, would duly maintain the policy intent of the transition policy in Section 12.2.4.2...the modified wording to the height policy in Section 12.2.2(3) would maintain an appropriate height transition and maintain the intent of the three storey height limit for the Neighbourhood Edge areas...the new policy in the Built Form policies in Section 12.2.4.1(7) will provide added assurance of appropriate stepbacks.

In Paragraph 5.2 Mr. Kotsopoulos restates that a mid-rise form is required to achieve the maximum 3.0 FSI on the DiPede lands. I would note that the 3.0 FSI is a maximum and the proposed modifications to the policies to provide for additional transition from 3 to 4 to 8 storeys, would not restrict the achievement of an FSI within the maximum permitted...

…no Active At Grade Frontages are set out on Schedule D of the KDA Secondary Plan that would apply to the Di Pede lands.

…Mr. Kotsopoulos states that clarification is needed to address the maintenance of an access for the Di Pede lands to Naughton Drive. As stated in paragraph 35 of my witness statement, the policy in Section 12.4.4.2(9) of the KDA Secondary Plan regarding access is permissive and not restrictive, and as such access can be maintained. I also rely on the evidence of Mr. Terzievski provided in paragraphs 36 and 37 of his witness statement that affirms my opinion.

119Ms. Anderson also addressed the necessary amendments to the ZBL. Mr. Di Pede’s two zoning issues (minimum building height and location of amenity spaces) can be addressed through modifications permitting additional transition, and allowing for amenity space on rooftops. She set out the proposed modifications required to accommodate the Di Pede proposals (to be finally determined by the Parties before the Tribunal Order issues).

120In view of the opinions of Mr. Kotsopoulos, supported by the opinion of Ms. Anderson, the Tribunal will approve the modifications proposed, as well as the development for the Di Pede lands.

FINDINGS AND OPINIONS

The Secondary Plan and Zoning By-law

Findings on the merits

121The Tribunal will approve of all of the City’s documents before it in this Phase 2 Hearing, the City’s KDA Secondary Plan and By-law No. 117-17, all as amended. This will be subject to obtaining the final approval of the City and both TSMJC and the RHRR for the wording therein. They will also apply to the NEC lands in the northeast quadrant. NEC had the opportunity to persuade the Tribunal that they should not so apply, but absent any professional opinion to the contrary they will apply to the NEC lands as well. The NEC Appeals to the Plan and By-law are hereby dismissed. All other Appeals to the Secondary Plan and the Zoning By-law are also dismissed.

Findings on NEC

122All of the witnesses addressed NEC’s many issues, as set out in the issues list in the Procedural Order of June 24, 2021. A great deal of time and effort went into their witness statements, and the Tribunal is grateful for the information provided. However, it considers much of the effort to have been wasted in light of NEC’s failure to call any evidence in support of its issues. It relied on cross-examination throughout Phase 2 of the Hearing, especially in sub-phase 2B. This did little to counter the other Parties’ evidence. The time wasted was particularly evident in the testimony of City witnesses Messrs. Chai and Dahl, who went to great lengths to address and counter the many issues raised by NEC on the parking question. They always came back to the statement that a complete development application, with site-specific TDM measures, is required before any changes to parking standards can even be contemplated.

123As a result, the Tribunal cancelled 5 consecutive hearing dates, which had been set in advance by the Procedural Order for the Tribunal to hear evidence from the NEC witnesses. This change to the Procedural Order was made at the last minute because NEC did not provide any advance notice to the Parties or to the Tribunal of their decision not to call oral evidence to address the very issues which they included and had continued to remain on the issues list (see also the oral decision of July 12, 2021 (Appendix A)).

124The Tribunal paid careful attention to the cross-examination conducted by NEC and took detailed notes. Yet, upon review and reflection, the only conclusion that this Panel could reach is that the cross-examination conducted by counsel for NEC was largely a waste of the Tribunal’s and Parties’ time. It was unduly repetitious. More importantly, no supporting policy-based rationale was provided to contradict the authorities’ repeated insistence on a prior site-specific development application. Clearly this essential step in the development process had not occurred.

125The City’s witnesses were asked many unhelpful questions outside of their area of expertise and testimony, such as the parking panel being asked many questions on the possible relocation of the BBT, proximity of stops in the BRT line, and unused capacity on both, as well as questions on parking strategies in other municipalities. Others were the questions to Mr. Wong, the engineer, on whether the full buildout of the Dogliola lands to the west (not relevant in these sub-phases at least) would exceed the 3.0 FSI for the KDA. There were very many questions related to the proposed NEC Concept Plan, even to the TRCA witnesses. These were obviously irrelevant, since all witnesses testified that a complete development application is necessary before any specifics can be determined. These questions were mixed with repeated accusations that the witnesses were misleading the Tribunal. There were also questions on whether the witness understood what they were addressing. None of this was helpful.

126In addition, there was the Tribunal and Parties’ time wasted on arguing the motions to quash the two Summons to Witness. There were almost daily NEC motions for the Panel to recuse itself. These were addressed and determined many times, and finally, it had been hoped, in its formal Decision of May 10, 2021.

127Mr. Kehar found it necessary to request an order of the Tribunal that any further motions be brought in writing only, on 5 days’ Notice, and with the City alone having the right to reply. This was granted. He also relied on the Tribunal power in s. 18(3) of the Ontario Land Tribunal Act, 2021 to limit examination and cross-examination, if all matters have been disclosed and it is fair and appropriate to do so. Rulings to this end were called further evidence of bias against NEC.

128There were many motions from NEC requesting the recording of the Hearing, both in automated form and by a Court Reporter. These were all refused, even a legitimate one by another Party following a bereavement (with the Tribunal’s regret for these circumstances). The Tribunal ruled that following the unwarranted use of the Phase 1 recording of the proceedings (for the purpose of bringing many motions for recusal, all refused), no further recording was needed. The public was free to follow the proceedings via the daily Zoom link, and there was no need for a more permanent record. Other Tribunal hearings are not recorded, except where a statute requires this.

Costs Motions

129During and at the completion of Phase 1, several Parties indicated in writing and verbally that they would be seeking costs against other Parties to these proceedings.

130The Tribunal ruled that it would deal with any motions for costs in this matter after Phase 2.

131With the issuance of this Decision on Phase 2, if there are any Parties seeking costs against any other Party in this proceeding, the Tribunal will entertain motions in writing, in accordance with the Tribunal’s Rule 23. Replies (if necessary) may be made under the Tribunal’s Rule of Practice and Procedure.

“G. Burton”

G. BURTON

VICE-CHAIR

“D. Colbourne”

D. COLbourne

VICE-CHAIR

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

PL180073 and PL110189 – Appendix A

Transcription of Decisions and Ruling on Motions by NEC – Issued orally July 12, 2021

I. Dealing with Mr. Streisfield’s Notices of Motion submitted on Friday July 9th, 2021

Mr. Kehar submits that they are out of time, but we will determine them now in order to attempt to finalize them one more time. Many of the issues have been decided several times in the past.

They will be dealt with in numerical order.

Item # 1 – the recusal request

This is now at least the 5th time Mr. Streisfield has made this request. In his responding Motion of to-day’s date, July 12, 2021, Mr. Streisfield raises almost exactly the same issues as he has many times before.

Its final decision on this matter was issued on November 13, 2020. The Motion was, and is still refused, for the reasons and the law as set out in that decision. Para. 33 of the present Motion to the contrary is clearly incorrect. The Tribunal Chair’s designate refused to review the panel’s decision on this issue, and the Chair did so again on June 11, 2021.

We have reviewed the current documentation relating to this request, and find nothing different nor persuasive from the previous submissions. There was no intent whatsoever to produce “disrespectful laughing” at anything counsel for NEC says. This must have been misinterpreted. As we set out again at para.16 of the Tribunal Decision following the CMC, delivered July 24, 2021,we will not recuse ourselves for the reasons set out in previous decisions.

Item #2

With respect to our ability to deal with one of the zoning provisions for the property at 70 Bernard, omitted in the Conti decision:

This again was dealt with in our July 24th decision at para 6 – and as set out there we have determined that we have jurisdiction. We are not reviewing that decision. The original Appeal of the OP provisions is also still before the Tribunal.

Item #3

This deals with the type of hearing or venue. This matter was dealt with in para 2 of the July 24th decision. 99.9 % of all types of the Tribunal’s hearings are presently conducted in that fashion. The Tribunal determines the venue, and we do not need the parties’ consent.

Item #4

TRCA has made a motion to quash the summons of John Mackenzie and the production of any documents requested of him. This was closely considered, and a decision on that Motion will be provided after this one. As to the motion for production by Kelvin Kwan – we will deal with that issue in the Decision below.

Item #5

Striking the witness statements of Anthony Sun, Dan Hipple, and Ali Shirazi.

We have not read any of these statements. The TRCA has called them as witnesses. We will not strike their statements in advance, but will deal with this objection AFTER we have heard their testimony, and will then determine what weight to give their evidence.

The Tribunal is not in a position to deal with costs until after the Hearing and Decision.

On the question of redactions to the witness statements and issues list for the Phase 1 hearing – this was answered before, by Vice Chair Makuch and by this Panel as well. The Tribunal clearly has this power.

II. On the issue of the Hearing Plan:

We do not accept the revisions to the Hearing Plan made by NEC. Cross-examination is of course possible, but only in turn, after direct examination as usual.

As Mr. Kehar has submitted, the draft hearing plan sets outs reasonable time estimates for examination and cross-examination of each witness, on the consent of all other parties. The issue of summoned witnesses will be dealt with below, under the decision on the TRCA Motion. We accept the agreed-upon time, as provided, for the examination of Mr. Kwan.

III. Motion by TRCA to quash summons to John McKenzie:

The Tribunal will abridge the time required for service of this motion, as requested. It will issue a brief decision now, since the witness was required to appear today.

We accept the argument made by the TRCA that this witness cannot provide evidence that would meet the test of relevance for these appeals. He has no knowledge of the subject matter at issue, since he has had no involvement in them, as testified to in the affidavit of Anthony Sun presented in support of the motion to quash. As the chief executive of the TRCA, he can provide no factual or opinion evidence on the subject matter of the appeals. He cannot serve as the “expert” in this matter that NEC wishes him to be. The three witnesses with direct knowledge are already scheduled to testify on the issues raised by NEC. Most of the documents Mr. McKenzie was to produce were created after he started with the TRCA in any event.

The Tribunal had initially refused to issue the requested summons months ago, on the very grounds we now find pertinent and definitive. It was finally issued only so that the NEC could not claim a further ground of bias, yet here we are…the summons must be refused again.

It is an insult to the budgets of public authorities, and ultimately to the taxpayer, to summon a chief executive with no personal knowledge of an appeal.

The response to the summons to Mr. Kwan is similar, in that the City advised NEC that the summons is not likely to result in the evidence it seeks. Mr. Kwan is the Planning Commissioner, and relies on subordinate staff know the details of specific policy matters or applications. Mr. Kwan can likely speak to issues at a high level, but likewise is not aware of many of the details that NEC seeks to put to him. Most of the documents that he is to produce will no doubt be introduced by other City witnesses.

The Hearing Plan time limits will govern.