Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 13, 2022

CASE NO(S).: OLT-22-004377

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

Applicant and Appellant: 120 Metcalfe JV Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To facilitate the redevelopment of the property with an 8-storey mixed-use building Reference Number: OPA-2021-01 Property Address: 120 Metcalfe Street, 101 & 103 Mosley Street Municipality/UT: Aurora/York OLT Case No.: OLT-22-004377 OLT Lead Case No.: OLT-22-004377 OLT Case Name: 120 Metcalfe JV v. Aurora (Town)

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

Applicant and Appellant: 120 Metcalfe JV Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To facilitate the redevelopment of the property with an 8-storey mixed-use building Reference Number: ZBA-2021-01 Property Address: 120 Metcalfe Street, 101 & 103 Mosley Street Municipality/UT: Aurora/York OLT Case No.: OLT-22-004378 OLT Lead Case No.: OLT-22-004377

Heard: December 2, 2022 by video hearing ("VH")

APPEARANCES:

Parties	Counsel
120 Metcalfe JV (the "Applicant/Appellant")	Max Laskin
Town of Aurora	Denise Baker
2601622 Ontario Inc.	Eileen Costello & Naomi Mares

MEMORANDUM OF ORAL DECISION DELIVERED BY K. R. ANDREWS ON DECEMBER 2, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference ("CMC") regarding an appeal by 120 Metcalfe JV. The appeal arises following a non-decision concerning Official Plan amendment ("OPA") and Zoning By-law amendment ("ZBA") applications to permit the redevelopment of the property located at 120 Metcalfe Street and 101 & 103 Mosley Street with an 8-storey mixed-use building ("the subject property").

Service of Notice of CMC

2There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.

Requests for Status

3On consent of the parties, the Tribunal granted Party status to 2601622 Ontario Inc.

4The Tribunal notes that 2601622 Ontario Inc. has a similar appeal currently before the Tribunal involving its own proposed development across the street from the subject property. 2601622 Ontario Inc.'s property is municipally known as 26, 30, 32, and 34-38 Berczy Street, and is located at the northwest corner of Berczy Street and Mosley Street, to the north of the subject property, separated by Mosley Street. The Tribunal further notes that 120 Metcalfe JV was previously granted Party status in 2601622 Ontario Inc.'s case.

5Status was granted to 2601622 Ontario Inc. in the present case upon the Tribunal finding that it has a genuine interest in the outcome of these appeals, and it will likely assist the Tribunal in the effective and complete resolution of the matter.

6The Tribunal notes that Counsel for 2601622 Ontario Inc. confirmed that her client's involvement in the present case would be protective in nature, relating only to its interests pertaining to its project across the street.

MEDIATION AND SETTLEMENT

7The Tribunal explored the possibility of mediation and settlement with the parties. The parties both expressed openness to resolution discussions and/or Tribunal led mediation. They further confirmed that they will keep the Tribunal apprised of any developments with their resolution efforts, which the Tribunal finds satisfactory.

PROCEDURAL ORDER AND ISSUES LIST

8The Tribunal received and reviewed a draft Procedural Order from the parties. The Tribunal finds it acceptable and the proceedings shall be governed by it (see Schedule 1).

HEARING

9Upon request of the parties, the Tribunal set a seven (7)-day hearing commencing on Monday, January 15, 2024 at 10:00 a.m. by VH. No further Notice is required for the hearing.

10The hearing is scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/927921077

Access Code: 927 921 077

11Persons 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) 497-9391. The Access Code is as indicated above.

12Parties 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.

13Parties 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

14Individuals 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.

ORDER

15THE TRIBUNAL ORDERS that:

1. The date and particulars of the hearing are set out above;
2. 2601622 Ontario Inc. is granted Party status; and
3. The Procedural Order appended as Schedule 1 shall govern the proceedings.

16The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

"K.R. Andrews"

K.R. ANDREWS 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.

SCHEDULE 1

CASE NO(S).: OLT-22-004377

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

Applicant and Appellant: 120 Metcalfe JV Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To facilitate the redevelopment of the property with an 8-storey mixed-use building Reference No: OPA-2021-01 Property Address: 120 Metcalfe Street, 101 & 103 Mosley Street Municipality: Aurora/York OLT Case No.: OLT-22-004377 OLT Lead Case No.: OLT-22-004377 OLT Case Name: 120 Metcalfe JV v. Aurora (Town)

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

Applicant and Appellant: 120 Metcalfe JV Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To facilitate the redevelopment of the property with an 8-storey mixed-use building Reference No: ZBA-2021-01 Property Address: 120 Metcalfe Street, 101 & 103 Mosley Street Municipality: Aurora/York OLT Case No.: OLT-22-004378 OLT Lead Case No.: OLT-22-004377

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

The video hearing will begin on January 15, 2024 at 10:00 a.m. at https://global.gotomeeting.com/join/927921077

2. The parties' initial estimation for the length of the hearing is 7 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.

3. Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order. See Attachment 5 for the meaning of these terms.

4. The issues are set out in the Issues List attached as Attachment 3. 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.

5. 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.

6. 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.

7. 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

8. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised plans and proposed instruments to the other parties on or before August 18, 2023 in accordance with paragraph 23 below.

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 September 18, 2023 and in accordance with paragraph 23 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. Expert witnesses in the same field shall have a meeting on or before October 10, 2023 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 Coordinator on or before October 17, 2023.

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 paragraph 14 below. 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.

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 14 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 14 below.

13. On or before November 16, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with paragraph 23 below.

14. On or before November 16, 2023, 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. On or before December 11, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before December 20, 2023, 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.

17. Parties may provide to all other parties and the OLT Case Coordinator a written response to any written evidence within fifteen (15) days after the evidence is received 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 Coordinator on or before January 5, 2024.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 8, 2024 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.

22. 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.

23. 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.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
August 18, 2023	Revised plans and instruments (if any)
September 18, 2023	Exchange of witness lists (names, disciplines and order to be called)
October 10, 2023	Experts Meeting
October 17, 2023	Agreed Statement of Facts
November 16, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
December 1, 2023	Exchange of Reply Witness Statements (if any)
December 11, 2023	Parties to confirm with the Tribunal if all the reserved hearing dates are still required
December 20, 2023	Exchange of visual evidence (if any)
January 5, 2024	Preparation of Joint Document Book
January 8, 2024	Hearing Plan filed with the Tribunal
January 15, 2024	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. 120 Metcalfe JV Max Laskin, Goodmans LLP mlaskin@goodmans.ca 416.849.6938

2. Town of Aurora Denise Baker, WeirFoulds LLP dbaker@weirfoulds.com 416.847.5090

3. 2601622 Ontario Inc. Eileen Costello & Naomi Mares, Aird & Berlis LLP ecostello@airdberlis.com; nmares@airdberlis.com 416.865.4740; 647.426.2842

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the OLT or any party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT will be a matter of evidence at the hearing or in a motion, as necessary. 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 OLT having jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the OLT.

TOWN OF AURORA ISSUES

1. Is the proposed development consistent with the Provincial Policy Statement, including policies 1.2.6, 1.6, 1.6.8., 1.7.1 and 2.6?
2. Does the proposed development conform with the Growth Plan, including policies 2.2.2., 4.2.7?
3. But for the amendment to the Official Plan, does the proposal conform to the Town's Official Plan and in particular policy 4.0, 4.1, 4.2, 8.0, 8.1.3a), 11.0, 11.1, 11.2, 11.6, 11.6.1, 11.6.2, 11.8, 11.10, 11.11, 11.12, 11.13, 11.17, 13.0-13.3 inclusive and Schedules B1, B2, B3 and D?
4. Has a Comprehensive Plan been prepared which appropriately demonstrate how the proposal will complement and contribute to the orderly redevelopment and transportation within the area, as required by the Official Plan?
5. Has an appropriate Urban Square been provided for on the property, and does it conform to the requirements of the Official Plan?
6. Has sufficient private amenity space been provided?
7. Is the proposed height, massing and siting of the building on the lot appropriate in order to properly transition to the adjacent stable residential neighbourhood?
8. Does the proposed development have a negative impact on the adjacent stable residential development in terms of overlook, privacy and shadowing?
9. Does the scale and massing of the building negatively impact the streetscape character of the neighbourhood?
10. Does the proposed development have appropriate regard for the applicable Town Urban Design Guidelines and Urban Design Strategy?
11. Does the proposed development adequately protect for the future alignment of Berczy Street?
12. Has the proposed development addressed the technical comments provided by the Town's Traffic Analyst?
13. Has sufficient parking been provided for the proposed development?
14. Does the proposed development address the comments of Metrolinx?
15. Is a Holding provision required to be added to the proposed zoning by-law with respect to the requirement for the filing of an RSC?
16. If the proposed development is approved, does the proposed Official Plan amendment and Zoning by-law amendment contain adequate provisions and regulations to implement the proposal that is before the Tribunal for adjudication?

ATTACHMENT 4

ORDER OF EVIDENCE

1. 120 Metcalfe JV
2. Town of Aurora
3. 2601622 Ontario Inc.
4. 120 Metcalfe JV in reply (if any)

ATTACHMENT 5

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 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.

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.