Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 14, 2021
CASE NO(S).: PL170905
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 567485 Ontario Ltd. and 887343 Ontario Ltd.
Subject: Request to amend the Official Plan - Refusal of request by the City of Toronto
Existing Designation: Apartment Neighbourhoods, Neighbourhoods and Natural Areas
Proposed Designated: Apartment Neighbourhoods, Neighbourhoods and Natural Areas
Purpose: To permit an infill residential development
Property Address/Description: 314-317 and 325 Bogert Avenue and 305-308 Poyntz Avenue
Municipality: City of Toronto
Approval Authority File No.: 16 272001 NNY 23 OZ
OLT Case No.: PL170905
OLT File No.: PL170905
OLT Case Name: 567485 Ontario Ltd. 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: 567485 Ontario Ltd. and 887343 Ontario Ltd.
Subject: Application to amend the former City of North York Zoning By-law No. 7625 - Refusal of Application by the City of Toronto
Existing Zoning: RM3 and R4
Proposed Zoning: Site specific to be determined
Purpose: To permit an infill residential development
Property Address/Description: 314-317 and 325 Bogert Avenue and 305-308 Poyntz Avenue
Municipality: City of Toronto
Municipality File No.: 16 272001 NNY 23 OZ
OLT Case No.: PL170905
OLT File No.: PL170906
Heard: November 23, 2021 by telephone conference call (“TCC”)
APPEARANCES:
Parties
Counsel
567485 Ontario Ltd. and 887343 Ontario Ltd. (“Applicant”)
David Bronskill
City of Toronto (“City”)
Ray Kallio
Toronto and Region Conservation Authority (“TRCA”)
Tim Duncan
Estelle Kosoy (“Added Party”)
Aaron Platt Jamie Cole
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON NOVEMBER 23, 2021 AND ORDER OF THE TRIBUNAL
1This further Case Management Conference (“CMC”) was scheduled by the Tribunal at the last CMC held on October 29, 2021, with further directives for deliveries in advance of this date.
2Counsel provided the required draft Procedural Order and Issues List. As indicated in the prior CMC Decision, the City, TRCA and the Applicant have reached a partial settlement and no longer have any outstanding issues. What remain to be determined are those outstanding issues that cannot be resolved between the Applicant and the Added Party. This is reflected in the Issues List in the Procedural Order.
3The Parties have advised that approximately three days will be required to allow the Tribunal to hear the presentation of the evidence to support a settlement of those issues resolved between the Parties and the evidence relating to the remaining contested issues.
4The Panel obtained available dates for the hearing of the Appeal, and discussed with counsel the requirement for a TCC to be conducted approximately 45 days prior to the start of the hearing to address the resolution of any further issues and obtain a status update.
PROCEDURAL ORDER
5Following this CMC, after confirming the scheduled date for the hearing of the Appeals, the Applicant provided the revised draft of the Procedural Order. The fixed dates for the hearing on the merits are now provided in the Procedural Order appended to this Decision and the coordinates for the hearings are set out below in this Decision.
6Appended to this Decision as Attachment 1 is the Procedural Order that will now govern all further pre-hearing procedural requirements and the hearing of the Appeals.
TELEPHONE HEARING AND VIDEO HEARING COORDINATES
TCC Status Hearing – April 1, 2022
7The TCC Status Hearing/CMC will commence at 9 a.m. on Friday, April 1, 2022, with the following dial-in instructions. Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call.
Hearing – May 18 to May 20, 2022
8For the three-day video hearing commencing at 10 a.m. on Wednesday, May 18, 2022, the Parties 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/452409629
Access Code: 452-409-629
9Parties 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.
10Persons 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: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
11Individuals are directed to connect to the events on the assigned dates at the correct time. It is the responsibility of the persons participating in the hearings to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.
12There will be no further notice with respect to each of the two hearing events, and the Panel Member is not seized on any of the hearings.
13The Tribunal so orders and provides these CMC directives for the purposes of the case management of these Appeals.
“David L. Lanthier”
DAVID L. Lanthier
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.
PL170905 – Attachment 1
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 567485 Ontario Ltd. and 887343 Ontario Ltd.
Subject: Request to amend the Official Plan - Refusal of request by the City of Toronto
Existing Designation: Apartment Neighbourhoods, Neighbourhoods and Natural Areas
Proposed Designated: Apartment Neighbourhoods, Neighbourhoods and Natural Areas
Purpose: To permit an infill residential development
Property Address/Description: 314-317 and 325 Bogert Avenue and 305-308 Poyntz Avenue
Municipality: City of Toronto
Approval Authority File No.: 16 272001 NNY 23 OZ
OLT Case No.: PL170905
OLT File No.: PL170905
OLT Case Name: 567485 Ontario Ltd. 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: 567485 Ontario Ltd. and 887343 Ontario Ltd.
Subject: Application to amend the former City of North York Zoning By-law No. 7625 - Refusal of Application by the City of Toronto
Existing Zoning: RM3 and R4
Proposed Zoning: Site specific to be determined
Purpose: To permit an infill residential development
Property Address/Description: 314-317 and 325 Bogert Avenue and 305-308 Poyntz Avenue
Municipality: City of Toronto
Municipality File No.: 16 272001 NNY 23 OZ
OLT Case No.: PL170905
OLT File No.: PL170906
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 May 18, 2022 at 10 a.m. by using this link:
GoTo Meeting: https://global.gotomeeting.com/join/452409629
Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373
Access Code: 452-409-629
The length of the hearing will be three (3) days. The Parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlement on issues, where possible. The procedural order deadlines are generally found in Attachment 1.
The Parties and Participants identified at the Case Management Conferences 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 or the modification is made on the consent of the parties, and a Party who asks for changes may have costs awarded against it.
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 on either the Parties’ 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 (https://olt.gov.on.ca/appeals-process/video-hearing/).
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 February 15, 2022. For expert witnesses, a party is to include 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 March 11, 2022.
Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the Parties and the Tribunal on or before March 25, 2022.
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 Error! Reference source not found.. 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 as the delivery of expert witness statements, as in Section Error! Reference source not found..
A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before April 27, 2022, 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 Error! Reference source not found..
On or before May 4, 2022, the Parties may provide to all other Parties a written response to any written evidence.
On or before May 4, 2022, the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.
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 May 13, 2022, 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 adhered 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.
The Parties shall prepare a Joint Document Book on or before on or before May 13, 2022, and which one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with Section 21.
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other Parties on or before February 18, 2022. The applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.
All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. 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 21 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 20. The Tribunal’s Rule 17 applies to such requests.
The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.
The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.
This Member is not seized.
So orders the Tribunal.
Attachment 1
Summary of Dates
DATE
EVENT
February 15, 2022
Exchange of witness lists (names, disciplines and order to be called)
March 11, 2022
Late date to challenge identification of expert witness
March 25, 2022
Experts meeting/Agreed Statement of Facts
April 27, 2022
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
May 4, 2022
Exchange of Reply Witness Statements (if any)
May 4, 2022
Exchange of visual evidence (if any)
May 13, 2022
Final Work Plan filed with the Tribunal
May 13, 2022
Finalize Joint Document Book
May 18, 2022
Hearing commences
ATTACHMENT 2
list of parties and participants
A. Parties
PARTIES
COUNSEL
567485 Ontario Ltd. 887343 Ontario Ltd. (“Appellants”)
Goodmans LLP Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 David Bronskill Email: dbronskill@goodmans.ca Tel: (416) 597-4299
City of Toronto
Legal Services Metro Hall, 26th Floor, Stn. 1260 55 John Street Toronto, ON M5V 3C6 Ray Kallio Email: ray.kallio@toronto.ca Tel: (416) 397-4063
Toronto and Region Conservation Authority
Folger Rubinoff LLP 77 King Street West Suite 3000, P.O. Box 95 Toronto, ON M5K 1G8 Tim Duncan Email: tduncan@foglers.com Tel: (416) 941-8852
Estelle Kosoy
Davies Howe LLP 425 Adelaide Street West, 10th Floor Toronto, ON M5V 3C1 Aaron Platt Email: aaronp@davieshowe.com Tel: (416) 977-7088 ext. 237 Jamie Cole Email: jamiec@davieshowe.com Tel: (416) 977-7088 ext. 239
B. participants
Susan Metzler 80 Stuart Street Toronto, ON M2N 1B3
Michael Capotosto mcapotosto@rogers.com
David Longenecker dave.longenecker@gmail.com
Brian McKenna 417-325 Bogert Avenue Toronto, ON M2N 1L8
Vlada Isaeva 450-325 Bogert Avenue Toronto, ON M2N 1L8
Liliya Parameeva 222-325 Bogert Avenue Toronto, ON M2N 1L8
Igor Astapov 344-325 Bogert Avenue Toronto, ON M2N 1L8
Constantin Bucataru constantin.bucataru@gmail.com
Collen Reynolds irishredheadcolleen@yahoo.ca
Anna Nastenko anna.nastenko@gmail.com
Arthur Birnbaum arthur@birnbaumlaw.ca
Vitaly Libbershtein vitalbershtein@hotmail.com
ATTACHMENT 3
order of evidence
- The Appellants
- City of Toronto, if any
- Toronto and Region Conservation Authority, if any
- Estelle Kosoy
- The Appellants (Reply, if any)
ATTACHMENT 4
Issues list
City of Toronto
No issues
Toronto and Region Conservation Authority
No issues
ESTELLE KOSOY
- Will the configuration of the proposed northerly east-west driveway providing the sole access for the proposed number of the automobiles from the Development to Easton Road (the “Easton Access”), result in undue impacts:
a. at the intersection of the site and Easton Road;
b. in the immediate local transportation network;
c. to queue lengths for turning movements from Easton Road onto Sheppard Avenue West;
d. to existing and future access(es) of the lands municipally known as 307 Sheppard Avenue West (“307 Sheppard”) including turning movements from that site onto Easton Road?
Is it appropriate to locate a driveway and access point for he proposed number of the parking spaces used by the Development within immediate proximity of southerly boundary of 307 Sheppard – particularly as the latter site will either retain its existing access or, may require a new driveway, curb-cut and access at or near its southerly boundary?
Does the Easton Access prevent 307 Sheppard from having reasonable and adequate transportation access and operations now, and in the future as contemplated by the Sheppard Avenue Commercial Area Secondary Plan?
Will the location of the Easton Access – and the number of vehicles using it – result in 307 Sheppard bearing an inequitable burden in addressing City of Toronto requirements and practices related to curb cuts, driveways and site access locations?
In agreeing to the proponent’s settlement offer, what information was available to the City and, by extension, Council with respect to the Easton Access’ impacts on traffic and vehicular circulation in the vicinity of the project?
ATTACHMENT 5
Purpose of the Procedural Order and Meaning of Terms
A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
direct examination by the party presenting the witness;
direct examination by any party of similar interest, in the manner determined by the Tribunal;
cross-examination by parties of opposite interest;
re-examination by the party presenting the witness; or
another order of examination mutually agreed among the parties or directed by the Tribunal.