GCD Trustee Limited v. Build Toronto, 2021 CanLII 51718

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 11, 2021

CASE NO(S).: PL151072

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

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

Appellant: GCD Trustee Limited

Appellant: RioCan Holdings (GTA Marketplace) Inc.

Subject: Proposed Official Plan Amendment No. 324

Municipality: City of Toronto

OMB Case No.: PL151072

OMB File No.: PL151075

OMB Case Name: GCD Trustee Limited v. Build Toronto

Heard: April 1, 2021 by telephone conference call

APPEARANCES:

Parties	Counsel
City of Toronto	Mark Crawford
RioCan Holdings (GTA Marketplace) Inc.	Albert Engel, Marko Petrovic and Joel Farber
GCD Trustee Limited	Andy Margaritis and John Alati

MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON APRIL 1, 2021 AND ORDER OF THE TRIBUNAL

1This Case Management Conference (“CMC”) was scheduled to get an update from the parties following the City Council’s consideration of the development applications for lands affected by OPA 324.

2Counsel advised the Tribunal that not much has happened with respect to the moving forward of the renewed application for redevelopment of the lands referred to as the Diamond-Kilmer Lands, which are subject to OPA 288.

3Mr. Crawford has indicated that his instructions are to move forward with the hearing of the appeal against OPA 324 and that he is requesting a hearing be scheduled to hear this matter.

4Mr. Margaritis informed the Tribunal that his client is in discussions with the owners of the Diamond-Kilmer Lands and if those discussions are successful, that this will likely satisfy their concerns with respect to OPA 324.

5Allan Burke appeared on behalf of the East Beach Community Association (“EBCA”) and expressed some concerns respecting traffic in the area of OPA 324 resulting from development of the Diamond-Kilmer Lands. It is noted that the EBCA’s appeal against OPA 288 was dismissed in January 2016 without holding a full hearing as a result of a motion by Build Toronto Inc. The Motion was supported by the City as well as by RioCan. It is also noted that the EBCA is neither an appellant nor a party in this proceeding respecting OPA 324. Subsequent to appearance at this CMC, counsel for the parties indicated via email correspondence that their clients did not object to EBCA being granted participant status. Accordingly, the EBCA is hereby granted participant status.

6A video hearing is scheduled to commence on Monday, March 14, 2022 at 10 a.m. Five days have been set aside.

https://global.gotomeeting.com/join/308853341

Access Code: 308-853-341

7Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.

8Parties 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

9Persons 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 1-888-455-1389 or +1 (647) 497-9391. The access code is 308-853-341.

10Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

11The proceeding will be governed by Attachment “1” hereto.

12There will be no further notice.

13I am not seized.

14It is so ordered.

“R.G.M. Makuch”

R.G.M. MAKUCH

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.

PL151072 – Attachment 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

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

Appellant: GCD Trustee Limited

Appellant: RioCan Holdings (GTA Marketplace) Inc.

Subject: Proposed Official Plan Amendment No. 324

Municipality: City of Toronto

OMB Case No.: PL151072

OMB File No.: PL151075

OMB Case Name: GCD Trustee Limited v. Build Toronto

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the Parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Monday, March 14, 2022 at 10 a.m.

GoTo Meeting: https://global.gotomeeting.com/join/308853341

Audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391

Access Code: 308-853-341

3. The length of the hearing will be about five (5) days. The Parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues, where possible. The procedural order deadlines are found in Attachment 1.

4. The Parties and Participants are listed in Attachment 2 to this Order.

5. The Issues are set out in the Issues List attached as Attachment 3 to this Order. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence is set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. 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.

8. 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/tribunals/lpat/).

Requirements Before the Hearing

9. 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 agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the parties and the Tribunal at least fifteen days (15) days prior to date for exchange of Expert Witness Statements as stated in Section 14 (on or before January 13, 2022).

10. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered at least sixty (60) calendar days before the hearing (on or before January 13, 2022). For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or before January 23*, 2022 (50 days before the hearing is scheduled to commence).

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided as in Section 14. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony. 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 14.

12. A witness or participant must provide to the Tribunal and the parties a witness statement or participant statement, respectively, at least forty five (45) calendar days prior to the scheduled commencement of the hearing (on or before January 28, 2022), or the witness may not give oral evidence at the hearing. A Participant cannot present oral submissions at the hearing on the content of their written statement, unless permitted by the Tribunal.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence, as in Section 14.

14. At least forty five (45) calendar days prior to the scheduled commencement of the hearing (on or before January 28, 2022), the parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other parties and to the City Clerk

15. At least thirty (30) calendar days prior to the scheduled commencement of the hearing (on or before February 12, 2022), the parties may provide to all other parties and file with the City Clerk a written response to any written evidence.

16. At least fifteen (15) calendar days prior to the scheduled commencement of the hearing (on or before February 27, 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.

17. 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.

18. 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.

19. On or before February 12, 2022 (thirty (30) days before the commencement of the hearing), the parties shall prepare and file a detailed draft Work Plan (defined below) that identifies the following, at a minimum: the identified parties participating in the hearing, preliminary matters (if aware of any to be addressed at that time), the date a witness is intended to attend the hearing, 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 to the best ability of all the Parties, and 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 draft Work Plan throughout the hearing.

20. The Parties shall prepare a Joint Document Book on or before February 22, 2022, (20 days before the hearing is scheduled to commence), 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.

21. All filing of documents and materials shall be electronic to the Tribunal and the Parties. 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 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.

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

23. 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.

24. 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
January 13, 2022 (60 days prior to hearing)	Exchange of witness lists (names, disciplines and order to be called)
January 23, 2022 (50 days prior to hearing)	Last date to challenge identification of expert witness
January 13, 2022 (60 days prior to hearing)	Experts meeting prior to this date
January 28, 2022 (45 days prior to hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
February 12, 2022 (30 days prior to hearing)	Exchange of Reply Witness Statements (if any)
February 27, 2022 (15 days prior to hearing)	Exchange of visual evidence (if any)
February 12, 2022 (30 days prior to hearing)	Final Draft Work Plan filed with the Tribunal
February 22, 2022 (20 days prior to hearing)	Finalize Joint Document Book
March 14, 2022	Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel/*Agent

1. City of Toronto

Mark A. Crawford City of Toronto, Legal Services Metro Hall, 26th Floor 55 John Street Toronto, Ontario M5V 3C6 E-mail: mark.crawford@toronto.ca Tel: 416-392-8864 Fax: 416-397-5624

2. Appellant RioCan Holdings (GTA Market Place) Inc.

Joel D. Farber Fogler Rubinoff LLP Lawyers 77 King Street West Suite 3000, P.O. Box 95 T.D. North Tower Toronto, Ontario M5K 1G8 E-mail: jfarber@foglers.com Tel: 416-365-3707 Fax: 416-941-8852

3. GCD Trustee Limited

John Alati and Andy Margaritis Davies Howe LLP 425 Adelaide Street West, 10th Floor Toronto, ON M5V 3C1 E-mail: johna@davieshowe.com andym@davieshowe.com Tel.: 416-977-7088 Fax: 416-977-8931

B. PARTICIPANT

1. Alan Burke c/o East Beach Community Association 2255B Queen Street East, Suite 248 Toronto, Ontario M4E 1G3 E-mail: ebca@bell.ca Tel: 416-694-3222 Fax: 877-462-8753

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet and shall not be construed as the Tribunal have jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

A. RioCan Holdings (GTA Market Place) Inc.

1. Is there a sufficient planning justification for the identification of the Blantyre Road extension north of Gerrard Street on the RioCan land as a planned but unbuilt road in the City of Toronto Official Plan;

2. Is there a sufficient technical justification for the identification of the Blantyre Road extension north of Gerrard Street on the RioCan land as a planned but unbuilt road in the City of Toronto Official Plan and have all reasonable alternatives (including no road) been sufficiently explored;

3. Is the identification of the Blantyre Road extension north of Gerrard Street on the RioCan land as a planned but unbuilt road in the City of Toronto Official Plan an appropriate Official Plan policy/amendment based on the in force policies of the Official Plan and any applicable policies under the PPS or Growth Plan; and

4. What are the impacts of the proposed designation of the Blantyre Road extension on RioCan as landowner, and are there appropriate mitigation policies that may be appropriate to include in OPA 324 in order to address any potential detrimental impact on RioCan as the landowner.

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence.

1. City of Toronto

2. RioCan Holdings (GTA Market Place) Inc.

3. GCD Trustee Limited

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorization from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the Case Management Conference, must ask the Tribunal to permit this.

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

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

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party 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 intends to present as evidence at the hearing.

Witness Statements:

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.

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

Additional Information:

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

The order of examination of witnesses: is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.