Management Systems Resources Inc. v. Toronto (City), 2022 CanLII 112734

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

November 23, 2022

CASE NO(S).:

OLT-22-003639

(Formerly PL160041)

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

Appellant:

1380200 Ontario Limited

Appellant:

Alfred Hille

Appellant:

Management Systems Resources Inc.

Appellant:

Tippett Yorkdale Inc. & Wilson Yorkdale Inc.

Subject:

Proposed Official Plan Amendment No. 309

Municipality:

City of Toronto

OLT Case No.:

OLT-22-003639

Legacy Case No.:

PL160041

OLT Lead Case No.:

OLT-22-003639

Legacy Lead Case No.:

PL160041

OLT Case Name:

Management Systems Resources Inc. v. Toronto (City)

Heard:

October 31, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Champlain Torah Education Centre

Joel Farber Matthew Rutledge

City of Toronto

Mark Crawford

MEMORANDUM OF ORAL DECISION DELIVERED C. HARDY ON OCTOBER 31, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the fourth Case Management Conference (“CMC”) relating to appeals brought pursuant to s. 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) from the adoption of Official Plan Amendment No. 309 (“OPA 309”) by the City of Toronto (“City”).

2The purpose and effect of OPA 309 is to redesignate all land within the Tippett Road Area Regeneration Study that front onto the north side of Wilson Avenue and all the lands to the south of Wilson Avenue, which front onto Tippett Road to Mixed Use Areas. All remaining lands are proposed to be designated Neighborhoods and Parks and Open Space areas.

3A Procedural Order (“PO”) was issued by the Tribunal on April 22, 2020 and a ten-day (10) hearing was previously scheduled to commence on September 8, 2020. The hearing was adjourned and prior to this CMC, there has been no request prior to re-schedule the hearing.

4The purpose of this CMC was to address procedural matters, obtain a status update from the Parties, discuss an updated PO and set hearing dates.

Status Update and Procedural Matters

5Counsel for Champlain Torah Education Centre (“Torah”) explained that there were originally a number of Appellants appealing OPA 309. The majority of the matters have now been resolved and have site specific by-laws in place. The outstanding matter remaining in the appeal relates to Champlain Boulevard.

6The original Appellant, 1380200 Ontario Limited (“Appellant”), was the owner of 20 Champlain Boulevard. Torah is the owner of 18 Champlain Boulevard and is a Non-Appellant party in the appeal. Both properties are located in the Neighborhoods “A” designation of the proposed OPA 309.

7Subsequent to lodging the appeal, the Appellant sold the property at 20 Champlain Boulevard. Counsel for Torah submitted that they are unsure whether the new owners of 20 Champlain Boulevard are interested in maintaining the appeal with respect to their property but would make inquiries.

8Counsel for Torah requested an order from the Tribunal pursuant to Rule 8.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”) substituting Torah as the Appellant in the appeal.

9Prior to the third CMC, Counsel for Torah had requested that the City assign the appeal rights from the Appellant to Torah. At that time, Counsel for the City required time to review the matter and make a determination. Counsel for the City advised the Tribunal that they have sufficiently reviewed the matter and consent to the request.

10Upon hearing the update from the Parties and on the consent of the City, the Tribunal will make the order as requested.

Opportunities for Settlement/Mediation

11The Tribunal raised the issue of opportunities for settlement, including Tribunal-led mediation.

12The Parties agreed that they were in favour of Tribunal-led mediation but would like to set hearing dates out of an abundance of caution. The Parties would continue discussions and were hopeful they would be in a position to request mediation in the coming months.

Draft Procedural Order and Issues List

13The Parties advised that they have worked together to update the PO that was submitted to the Tribunal in advance of this CMC.

14The Tribunal notified the Parties that a new version of the Sample Procedural Order for Video Hearings was available on the Tribunal’s website and directed that the draft PO be amended to align with the Tribunal’s updated version.

15The Tribunal had concerns with the lack of specificity with some of the issues on the Issues List and directed the Parties to work together to scope the issues to cite specific policy sections as opposed to entire policy documents.

16Counsel for Torah undertook to revise, circulate to the Parties and resubmit the draft PO for the Tribunal’s review and approval within three (3) weeks of the CMC.

17On November 17, 2022, the Parties filed a revised draft PO, which the Tribunal has now reviewed and approves. It is attached to this Order and Decision as Attachment 1 and is in full force and effect.

Scheduling Hearing Dates

18After some discussion at the CMC, the Parties jointly requested that the Tribunal schedule a seven (7)-day hearing for the appeal. The Tribunal agreed with the proposed length of hearing and scheduled a seven (7)-day hearing commencing Monday, November 20, 2023. The Tribunal will not sit on Monday November 27, 2023 and Tuesday November 28, 2023.

Other Matters

19The Tribunal inquired as to whether there were any other matters to be addressed which may assist in the resolution of the appeals and the Parties indicated that there were none.

ORDER

20The Tribunal orders that Champlain Torah Education Centre is substituted for 1380200 Ontario Limited as the Appellant in accordance with Rule 8.2 of the Tribunal’s Rules of Practice and Procedure.

21The Tribunal approved the Procedural Order and Issues List attached as Attachment 1 to this Order and Decision and it is in full force and effect.

22The Tribunal orders that the hearing in this matter will be held by video hearing on Monday, November 20, 2023 commencing at 10 a.m. Seven days have been set aside. The Tribunal will not sit on November 27, 2023 and November 28, 2023.

23Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/765631861

Access code: 765-631-861

24Parties 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

25Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9391 or Toll Free 1-888-455-1389. The access code is 765-631-861.

26Individuals 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.

27The Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.

28No further notice will be given.

“C. Hardy”

c. hardy

MEMBER

Ontario Land Tribunal

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

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

ISSUE DATE:

CASE NO(S).: OLT-22-003639 (formerly PL160041)

ATTACHMENT 1

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

Appellant: Champlain Torah Education Centre

Appellant: Alfred Hille

Appellant: Management Systems Resources Inc.

Appellant: Tippett Yorkdale Inc. & Wilson Yorkdale Inc.

Subject Proposed Official Plan Amendment 309

Municipality: City of Toronto

OLT Case No.: OLT-22-003639

Legacy Case No.: PL160041

OLT Lead Case No.: OLT-22-003639

Legacy Lead File No.: PL160041

OLT Case Name: Management Systems Resources Inc. v. Toronto (City)

Organization of the Hearing

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.

2. The video hearing will begin on November 20, 2023 at 10:00 a.m. The hearing will be held by videoconference:

https://global.gotomeeting.com/join/765631861

Access code: 765-631-861

3. The parties’ initial estimation for the length of the hearing is 7 days. It should be noted that the Tribunal will not sit on November 27, 2023 or November 28, 2023. 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 to this Order.

5. The issues are set out in the Issues List attached as Attachment 2. 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 3 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 should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. 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 August 22, 2023 (date – at least 90 days before the hearing is scheduled to commence) and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. 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 on or before September 11, 2023 (date – at least 70 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. Copies of this must be provided as in section 12. 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. 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 12.

12. 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 paragraph 12 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 12 below.

13. On or before September 21, 2023 (date – at least 60 days before the hearing is scheduled to commence), the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.

14. On or before September 21, 2023 (date – at least 60 days before the hearing is scheduled to commence), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. Expert witnesses in the same field shall have a meeting on or before October 1, 2023 (date – at least 50 days before the hearing is scheduled to commence) and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before October 21, 2023 (date – at least 30 days before the hearing is scheduled to commence).

16. On or before October 16, 2023 (date – at least 35 days before the hearing is scheduled to commence) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before October 21, 2023 (date – at least 30 days before the hearing is scheduled to commence) the parties may provide a written response to any written evidence to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before November 10, 2023 (date – at least 10 days before the hearing is scheduled to commence).

19. On or before November 10, 2023 (date – at least 10 days before the hearing is scheduled to commence), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

21. A party who provides written evidence of a witness 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 13, 2023 (date – at least 7 days prior to the start of the hearing) with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. All filings shall be submitted electronically and in hard copy. 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.

24. 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.

25. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 4.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

SUMMARY OF DATES

DATE

EVENT

August 22, 2023 (at least 90 days prior to the start of the hearing)

Exchange of witness lists (names, disciplines and order to be called)

September 11, 2023 (at least 70 days before the hearing is scheduled to commence)

Last date to challenge identification of expert witness

September 21, 2023 (date – at least 60 days before the hearing is scheduled to commence)

Exchange of witness statements, summoned witness outlines, expert reports and participant statements

October 1, 2023 (date – at least 50 days before the hearing is scheduled to commence)

Experts meeting prior to this date

October 16, 2023 (date – at least 35 days before the hearing is scheduled to commence)

Parties shall confirm with the Tribunal if all the reserved hearing dates are still required/

October 21, 2023 (date – at least 30 days before the hearing is scheduled to commence)

Exchange of responses to witness statements, summoned witness outlines, expert reports and participant statements; Circulation of Agreed Statement of Facts (if any)

November 10, 2023 (date – at least 10 days before the hearing is scheduled to commence)

Exchange of visual evidence (if any); Finalize Joint Document Book

November 13, 2023 (date – at least 7 days before the hearing is scheduled to commence)

Preliminary Hearing Plan

November 20, 2023 (7 day hearing commences. The Tribunal will not sit on November 27, 2023 or November 28, 2023.)

Hearing commences

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

PARTIES

COUNSEL/AGENT

City of Toronto

Mark 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

Champlain Torah Education Centre

Joel Farber Fogler, Rubinoff LLP 77 King Street West, Suite 3000 TD Centre North Tower Toronto, Ontario M5K 1G8 E-mail: jfarber@foglers.com

Tel.: 416-365-3707 Fax: 416-941-8852 Matthew Rutledge Fogler, Rubinoff LLP 77 King Street West, Suite 3000 TD Centre North Tower Toronto, Ontario M5K 1G8 E-mail: mrutledge@foglers.com Tel.: 416-864-7607 Fax: 416-941-8852

PARTICIPANT

Ed Foster Email: eifoster@yahoo.ca

N/A

ATTACHMENT 2

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. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

Issue List of Champlain Torah Education Centre

1. Is modifying the proposed Official Plan Amendment to allow a Mixed Use Areas designation on the subject lands (18 & 20 Champlain Boulevard) consistent with Policies 1.4.3 and 1.6.7.4 the Provincial Policy Statement, 2020?

2. Is modifying the proposed Official Plan Amendment to allow a Mixed Use Areas designation on the subject lands in conformity with Policies 2.2.1, 2.2.4, 2.2.6 and 4.2.10 of A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019?

3. Is modifying the proposed Official Plan Amendment to allow a Mixed Use Areas designation on the subject lands in conformity with the Policies in Section 2.3.1 Healthy Neighbourhoods in the Toronto Official Plan?

4. Is modifying the proposed Official Plan Amendment to allow a Mixed Use Areas designation on the subject lands in conformity with the Policies in Section 3.1.2 Built Form Policies in the Toronto Official Plan?

5. Is modifying the proposed Official Plan Amendment to allow a Mixed Use Areas designation on the subject lands in conformity with the Policies in Section 4.5 of the Toronto Official Plan?

6. Is modifying the proposed Official Plan Amendment to a Mixed Use Area designation on the subject lands compatible with the land use designations and policies applicable to the balance of the lands subject to OPA 309/SASP 387?

7. Is it appropriate in Sections 2.3 and 3.2 Mud Creek Pathway in SASP 387 to require that privately-owned land be made publicly-accessible?

8. Are the policies of Section 4 reflecting the proposed location and configuration of new public streets appropriate to service the subject lands?

9. Should the proposed Section 5 Transportation policies in Official Plan Amendment 309 more specifically address the transportation improvements contributions (see Section 5.13) expected from the future developments that occur as a result of the proposed policies and land uses changes provided for in Official Plan Amendment 309 including the proposed designation of the subject lands as Mixed Use Area?

10. Should Section 5.8 with respect to new development contributions on Champlain Blvd be more clearly defined and are such policies appropriate? In particular, is it appropriate and equitable that lands fronting on Champlain bear the entire burden of any additional transportation and streetscape improvements contemplated in Section 5.8, or should adjacent lands also be required to contribute to the enumerated improvements and enhancements?

11. Section 6 - Should the subject lands be permitted heights and densities consistent with adjacent lands proposed by OPA 309 to be designated Mixed Use Area ‘C” including approved zoning permissions for lands immediately to the west of the subject lands?

12. Section 7 - Is a Mixed Use Area designation appropriate for the subject lands?

13. Should Section 7. Land Use in proposed Official Plan Amendment 309 contain policies that recognize and protect the existing non-residential uses on the subject lands?

14. Is the requirement in Section 7.1 c) in proposed Official Plan Amendment 309 requiring that developments on the subject lands include an increase in the amount of existing non-residential GFA that existed on the date of adoption of this OPA appropriate and/or good land use planning?

15. Are the affordable housing policies in Section 8. Housing in the proposed Official Plan Amendment 309 justified in planning terms before the development potential of the subject lands has been fully determined?

16. Should the policies in Section 12.4 a), b) and c) in the proposed Official Plan Amendment 309 be modified to allow a new public road connection to Tippett Road from the subject lands?

17. Should the policies in Section 12. 4 f) be modified to provide to provide flexibility with respect to the development setback from the Mud Creek Pathway as it relates to the future development potential of the subject lands?

18. Is the intent and purpose of Section 12.4 h) and i) restricting development on the subject lands to grade-related, low rise or low scale development efficient and good land use planning?

19. Does a proposed Mixed Use Areas designation on all or a portion of the subject lands represent good land use planning?

ATTACHMENT 3

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. Champlain Torah Education Centre

ATTACHMENT 4

Meaning of terms used in the Procedural Order:

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.