Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 17, 2021 CASE NO(S).: PL200308

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

Applicant and Appellant: Queensway Limited Partnership Subject: Application to amend Zoning By-law No. 514-2003 and No. 569-2013 - Refusal or neglect of City of Toronto to make a decision Existing Zoning: Limited Commercial & Class 1 Industrial Proposed Zoning: Site Specific (To be determined) Purpose: To permit a 16-storey mixed-use residential building Property Address/Description: 933-935 The Queensway Municipality: City of Toronto Municipality File No.: 19 156707 WET 03 OZ OLT Case No.: PL200308 OLT File No.: PL200308 OLT Case Name: Queensway Limited Partnership v. Toronto (City)

Case Name: Queensway Limited Partnership v. Toronto (City)

BEFORE: STEVEN COOKE MEMBER Thursday, the 17th day of June, 2021

THE TRIBUNAL ORDERS that the Procedural Order, attached hereto as Appendix “1” shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing scheduled to commence on Monday, March 7, 2022 at 10:00 a.m. by Videoconference at https://global.gotomeeting.com/join/829350469. The length of the hearing will be 10 days.

“Becky Fong” BECKY FONG REGISTRAR

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

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.

APPENDIX 1

ISSUE DATE: June 17, 2021 CASE NO(S).: PL200308

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

Applicant(s)/Appellant(s): Queensway Limited Partnership Subject: Application to amend Zoning By-law No. 514-2003 and No. 569-2013 - Refusal or neglect of City of Toronto to make a decision Property Address/Description: 933-935 The Queensway Municipality: City of Toronto Municipal File No.: 19 156707 WET 03 OZ OLT Case No.: PL200308 OLT File No.: PL200308 OLT Case Name: Queensway Limited Partnership v. Toronto (City)

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 March 7, 2022 at 10:00 a.m. at https://global.gotomeeting.com/join/829350469 or +1 (647) 497-9391 (access code: 829-350-469).

3. The length of the hearing will be about ten (10) days. The Parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues, where possible. The procedural order deadlines are generally found in Attachment 1.

4. The Parties and Participants identified at the case management conference are set out in Attachment 2 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 shall be as set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the Parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing 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) should 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 at least fifteen days (15) days prior to date for Expert Witness Statements as stated in Section 14 (on or before December 22, 2021), if this meeting takes place and if agreement is reached.

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 one hundred and twenty-one (121) calendar days before the hearing (on or before November 8, 2021). 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 qualifications of a witness to give opinion evidence in the area of expertise proposed should be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties at least one hundred and one (101) calendar days before the hearing is scheduled to commence (on or before November 26, 2021).

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 sixty (60) calendar days prior to the scheduled commencement of the hearing (on or before January 6, 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.

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 sixty (60) calendar days prior to the scheduled commencement of the hearing (on or before January 6, 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 forty-five (45) calendar days prior to the scheduled commencement of the hearing (on or before January 21, 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 thirty-one (31) calendar days prior to the scheduled commencement of the hearing (on or before February 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.

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. The Parties shall prepare a Joint Document Book fourteen (14) days before the hearing is scheduled to commence (on or before February 21, 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 (where feasible) and an accessible electronic format in accordance with Section 22.

20. At least twenty (20) days before the commencement of the hearing (on or before February 15, 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.

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 ninety (90) days before Expert Witness Statements as stated in Section 14 (on or before October 8, 2021). 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.

22. 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 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 22 applies regardless if the hearing event is in-person or electronic.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by Section 21. The Tribunal’s Rule 17 applies to such requests.

24. 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.

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

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
October 8, 2021 (90 days before Witness Statement Date)	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
November 8, 2021 (119 days prior to hearing)	Exchange of witness lists (names, disciplines and order to be called)
November 26, 2021 (101 days prior to hearing)	Last date to challenge identification of expert witness
December 22, 2021 (75 days prior to hearing)	Experts meeting prior to this date, if such meeting occurs
December 22, 2021 (75 days prior to hearing)	Agreed Statement of Facts, if meeting occurs and matters agreed to
January 6, 2022 (60 days prior to hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
January 21, 2022 (45 days prior to hearing)	Exchange of Reply Witness Statements (if any)
February 4, 2022 (31 days prior to hearing)	Exchange of visual evidence (if any)
February 15, 2022 (20 days prior to hearing)	Final Work Plan filed with the Tribunal
February 21, 2022 (14 days prior to hearing)	Finalize Joint Document Book
March 7, 2022	Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

PARTIES:

1. Queensway Limited Partnership

Eileen Costello Aird & Berlis LLP 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Tel: 416.865.4740 Fax: 416.863.1515 Email: ecostello@airdberlis.com

2. City of Toronto

Alexander Suriano City of Toronto 26th fl., 55 John St. Toronto ON M5V 3C6 Tel: 416.392.4827 Fax: 416.397.5624 Email: alexander.suriano@toronto.ca

Daniel Elmadany City of Toronto 26th fl., 55 John St. Toronto ON M5V 3C6 Tel: 416.397.5709 Fax: 416.397.5624 Email: daniel.elmadany@toronto.ca

ATTACHMENT 3

ISSUES LIST

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

A. City of Toronto

Planning Act

1. Does the proposed development have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including sections 2(h), (j), (k), (p), (q), and (r)?

2. Would approval of the proposed development by the Tribunal have regard to the decision of City Council and the information and material that City Council considered in making its decision as required by Section 2.1 of the Planning Act?

Provincial Policy Statement 2020

3. Is the proposed development consistent with the Provincial Policy Statement as required by Section 3(5) of the Planning Act, including sections 1.1.1, 1.1.3.2, 1.1.3.3, 1.3.1, 1.7.1, 1.2.6.1, 1.2.6.2, 4.6?

A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020

4. Does the proposed development conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe as required by Section 3(5) of the Planning Act, including sections 1.2.1, 2.2.1.4, 2.2.2.3, 2.2.5, 2.2.6, 5?

City of Toronto Official Plan

5. Does the proposed development conform with the policies of the City of Toronto Official Plan, including the policies related to: to Avenues (2.2.3), Employment Areas: Supporting Business & Employment Health (2.2.4); Healthy Neighbourhoods (2.3.1), Public Realm (3.1.1), Built Form (3.1.2 and 3.1.3), Housing (3.2.1), Natural Environment (3.4.); Mixed Use Areas (4.5) and Implementation (5.0)?

Guidelines

6. Does the proposed development meet the intent and purpose of the Queensway Avenue Urban Design Guidelines and Streetscape Improvements?

7. Does the proposed development meet the intent and purpose of the Tall Building Design Guidelines (2013)?

8. Does the proposed development meet the intent and purpose of the Mid-Rise Building Performance Standards and Urban Design Guidelines (2010) and Addendum (2016)?

9. Does the proposed development meet the intent and purpose of the Growing Up: Planning for Children in New Vertical Communities, Urban Design Guidelines (2020)?

Site Specific Issues

Queensway Avenue Study

10. Does the proposed development meet the intent of Zoning By-law 514-2003 and respond appropriately to The Queensway Avenue Study, The Queensway Design Guidelines and Streetscape Improvements including matters such as maximum allowable height, density, transition, angular plane, built form typology, front, rear and side yard setbacks and stepbacks?

11. Does the proposed development meet the intent of the Queensway Avenue Study and is the proposal in keeping with the character of The Queensway Avenue Study area?

Land Use Compatibility

12. Does the proposal fit in with the existing and planned context in The Queensway Avenue Study area as well as the nearby and adjacent Employment Areas lands and industrial uses?

13. Does the proposed development avoid, or where possible, minimize and mitigate against any adverse impacts on industrial manufacturing or other existing and planned employment uses in the adjacent and/or nearby, Employment Areas or within the influence area of any major facility, including impacts such as noise, traffic, odours, vibration, or other contaminants from nearby existing or planned employment uses?

14. Has the proposed development been designed, sited and/or oriented to address any potential issues that may arise from any existing or planned employment uses, such as such as noise, traffic, odours, vibration, or other contaminants?

15. Is the proposed residential use on the rear southeastern portion of the site (although designated Mixed Use Areas) compatible, given potential impacts such as noise, vibration and emissions due to the proximity of the proposed residential use to the abutting Core Employment Areas and Class 1 Industrial and Employment Industrial zoned lands along Queen Elizabeth Boulevard?

16. Have matters such as the Compatibility/Mitigation Report and Noise and Vibration Impact Study been appropriately addressed/resolved to the satisfaction of the City's peer reviewer?

Land Use Mix

17. Are the proposed non-residential uses sufficient given the site's existing non-residential gross floor area, the site's identification as within a Provincially Significant Employment Zone in the Growth Plan and designation as a Mixed Use Area in the City's Official Plan?

Land Use Planning and Urban Design

18. Is the proposed built form typology of a tall building on the site appropriate on this Avenue?

19. Are the built form type, height, density, massing, and scale of the proposed development appropriate, given principles of good planning and urban design; its relationship to the surrounding context; its transition; visual impact; shadow impact; wind impact; the public realm; existing and planned context?

20. Does the proposed development fit appropriately in the existing and planned built form context and minimize its impacts on surrounding properties (particularly the adjacent 3-storey townhouse development to the west) and the public realm, along The Queensway (including the north side walk), Canmotor Avenue and Queen Elizabeth Boulevard including such matters as height, massing, transition, density, setbacks, stepbacks, shadow, wind, overlook, skyview, privacy and visual impact?

21. Does the proposed development provide proper transition through setbacks and stepping down in height to the adjacent low-rise 3-storey, 74 residential unit, townhouse development to the west as to not create negative shadow, overlook, skyview, and visual impacts?

22. Does the proposed cantilevered portion of the proposal at Canmotor Avenue and Queen Elizabeth Boulevard fit appropriately into the built form context including height, massing, transition, setbacks, and stepbacks?

Site Organization and Public Realm

23. Would the approval of the proposed development create an inappropriate precedent for other developments along The Queensway, including matters such as the height; massing; scale; density; transition to lower scale properties; angular planes; setbacks (particularly to the rear); stepbacks; sensitive use compatibility; and level of intensification proposed and built form typology of a tall building on Avenues without proximity to higher order transit?

24. Is the proposed site organization, layout, pedestrian and vehicular access, expression of density, building siting, and orientation of the building appropriate?

25. Does the proposal provide for appropriate sunlight on the public realm, the proposed development, streets, parks, open spaces, outdoor amenity areas and surrounding properties and appropriately mitigate shadow impacts by maximizing sunlight?

26. Does the proposed development provide adequate soft landscaping and open space to improve the public realm (including the frontages along the Queensway, Canmotor Avenue and Queen Elizabeth Boulevard) by proposing adequate clearway for high-branching street trees, street furniture, a minimum width walkway for pedestrian access as well as on and through the site?

27. Does the proposed development provide appropriate vehicular site access and circulation including a pick up and drop off area and lay-by parking space locations?

Amenity Space

28. Does the proposed development provide outdoor amenity space in an appropriate location and limit shadow and wind impacts as well as provide access to sunlight and skyview?

Housing

29. Does the proposed development provide for an appropriate mix of unit types and sizes?

Public Interest and Good Planning

30. Is the proposed zoning by-law amendments good planning and in the public interest?

Implementation

31. If the requested Zoning By-law Amendments are approved by the Tribunal, in whole or in part, should the Tribunal's final order be withheld until it has been advised by the City Solicitor that:

a. the proposed Zoning By-law Amendments are in a final form satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

b. a Section 37 Agreement satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor, has been executed and registered on title to the subject lands to the satisfaction of the City Solicitor, securing community benefits to the satisfaction of the Chief Planner and Executive Director, City Planning in consultation with the Ward Councillor, and securing the matters required to support the development;

c. the owner has submitted a revised Functional Servicing Report to determine the stormwater runoff, sanitary flow and water supply demand resulting from this development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development and if upgrades/improvements to the existing municipal infrastructure are required to the satisfaction of the Chief Engineer and Executive Director of Engineering and Construction Services;

d. the owner has made satisfactory arrangements with the City and entered into the appropriate financially secured Development Agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to accommodate this development, according to the Functional Servicing Report accepted by the Chief Engineer and Executive Director of Engineering and Construction Services and the Urban Transportation Considerations Report accepted by the General Manager of Transportation Services;

e. the owner has secured any required noise mitigation measures identified in the submitted Noise and Vibration Impact Study, peer reviewed at the owner’s expense, to the satisfaction of the Chief Planner and Executive Director, City Planning; and the owner shall construct and maintain any required noise mitigation measures, with such design to be secured through the site plan application review process, to the satisfaction of the Chief Planner and Executive Director, City Planning;

f. the owner has secured any required mitigation measures identified in the submitted Compatibility/Mitigation Report, peer reviewed at the owner’s expense, to the satisfaction of the Chief Planner and Executive Director, City Planning; and the owner shall construct and maintain any required mitigation measures, with such design to be secured through the site plan application review process, to the satisfaction of the Chief Planner and Executive Director, City Planning;

g. the owner shall submit a detailed wind tunnel test complete with a statistical wind analysis to determine the impacts and efficacy of the recommended wind mitigation measures, evaluated to the satisfaction of the Chief Planner and Executive Director, City Planning; and the owner shall construct and maintain any required mitigation measures, to be secured through the site plan application review process, to the satisfaction of the Chief Planner and Executive Director, City Planning.

ATTACHMENT 4

ORDER OF EVIDENCE

1. Queensway Limited Partnership
2. City of Toronto
3. Queensway Limited Partnership (in reply, if necessary)

ATTACHMENT 5

MEANING OF TERMS USED IN THE PROCEDURAL ORDER

Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other Parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written 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 (CMC), 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 (only a party may do so). Subsection 33.2 of the Local Planning Appeal 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 may receive notice of a mediation or conference calls on procedural issues. Participants are not permitted to ask for costs, or review of a decision as Parties can.

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

Witness Statements:

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

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