D.D. Acquisitions Partnership v. Toronto (City), 2022 CanLII 13990

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

February 24, 2022

CASE NO.:

PL200495

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

Appellant:

D.D. Acquisitions Partnership

Subject:

Failure of City of Toronto to announce a decision respecting Proposed Official Plan Amendment No. 19 251045 ESC 21 OZ

Municipality:

City of Toronto

OLT Case No.:

PL200495

OLT File No.:

PL200495

OLT Case Name:

D.D. Acquisitions Partnership v. Toronto (City)

BEFORE:

SHARYN VINCENT

Thursday, the 24th

ASSOCIATE CHAIR

day of February, 2022

THE TRIBUNAL ORDERS that the Procedural Order, attached hereto as Appendix “1” is hereby amended and 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, July 4, 2022 at 10:00 a.m. by Videoconference at https://global.gotomeeting.com/join/839539149. The length of the hearing will be 15 days.

“Euken Lui”

EUKEN LUI

ACTING 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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

APPENDIX 1

ISSUE DATE:

CASE NO.: PL200495

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

Appellant:

D.D. Acquisitions Partnership

Subject:

Failure of City of Toronto to make a decision respecting Proposed Official Plan Amendment No. 19 251045 ESC 21 OZ

Municipality:

City of Toronto

OLT Case No.:

PL200495

OLT File No.:

PL200495

OLT Case Name:

D.D. Acquisitions 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 Monday, July 4, 2022 at 10:00 a.m. at https://global.gotomeeting.com/join/839539149.

3. The length of the hearing will be fifteen (15) 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 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. An issue can be removed from the issues list without a formal order of the Tribunal with the consent of all Parties.

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. 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 Monday, March 7, 2022 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. 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 Friday, March 25, 2022.

10. Expert witnesses in the same field shall have a meeting on or before Monday, April 11, 2022 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 Friday, April 15, 2022.

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 13 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 13 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 13 below.

13. On or before Friday, April 29, 2022, the Parties shall provide copies of their witness statements and expert witness statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 23 below.

14. On or before Friday, April 29, 2022, 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. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, May 20, 2022 in accordance with paragraph 23 below.

16. On or before Friday, June 3, 2022, 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. The Parties shall prepare a Joint Document Book which shall be shared with the OLT case-coordinator on or before Tuesday, June 14, 2022.

18. Any documents which may be used by a Party in cross examination of an opposing Party’s witness shall be password protected and only be accessible to the Tribunal and the other Parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case-coordinator, on or before Thursday, 29 June 2022.

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 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.

21. On or before Monday, May 30, 2022, the Parties shall advise the Tribunal whether any of the scheduled hearing dates can be released. For greater certainty, the Parties are permitted to request the Tribunal to release any of the scheduled hearing dates following this date.

22. The Parties shall prepare and file a hearing plan with the Tribunal on or before Thursday, June 9, 2022 with a proposed schedule for the hearing that identifies, at a minimum, the Parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date a witness is intended 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. 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 Rule 7 of the Tribunal’s Rules.

24. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other Parties on or before Friday, February 4, 2022. The applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

25. 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.

26. 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

Friday, February 4, 2022

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

Monday, March 7, 2022

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

Friday, March 25, 2022

Last date to challenge identification/qualification of expert witness

Monday, April 11, 2022

Experts meeting prior to this date

Friday, April 15, 2022

Agreed Statement of Facts

Friday, April 29, 2022

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

Friday, May 20, 2022

Exchange of Reply Witness Statements (if any)

Monday, May 30, 2022

Parties to advise Tribunal is any hearing dates can be released

Friday, June 3, 2022

Exchange of visual evidence (if any)

Thursday, June 9, 2022

Final Work Plan filed with the Tribunal

Tuesday, June 14, 2022

Finalize Joint Document Book

July 4, 2022

Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

Parties:

D.D. Acquisitions Partnership

Wood Bull LLP

65 Queen Street West, Suite 1400

Toronto ON M5H 2M5

Sharmini Mahadevan

Tel: (416) 203-7345

Fax: (416) 203-8324

Email: smahadevan@woodbull.ca

City of Toronto

City of Toronto Legal Services

55 John Street, 26^th^ Floor, Metro Hall

Toronto, ON M5V 3C6

Amanda Hill

Tel: (416) 338-5790

Fax: (416) 397-5624

Email: amanda.hill@toronto.ca

Daniel Elmadany

Tel: (416) 397-5709

Fax: (416) 397-5624

Email: daniel.elmadany@toronto.ca

CP REIT Ontario Properties Limited

Aird & Berlis LLP

Brookfield Place, 181 Bay Street, Suite 1800

Toronto ON M5J 2T9

Sidonia Tomasella

Tel: (416) 865-7763

Fax: (416) 863-1515

Email: stomasella@airdberlis.com

Maggie Bassani

Tel: (416) 865-3401

Fax: (416) 863-1515

Email: mbassani@airdberlis.com

Bell Canada

Borden Ladner Gervais LLP

Bay Adelaide Centre, East Tower 22 Adelaide Street West, Suite 3400 Toronto, ON, Canada M5H 4E3

Isaac Tang

Tel: (416) 367-6143

Fax: (416) 367-6749

Email: itang@blg.com

Lee English

Tel: (416) 367-6169

Fax: (416) 367-6749

Email: lenglish@blg.com

Stardel Property Management Inc.

Overland LLP

Yonge Norton Centre

5255 Yonge Street, Suite 1101

Toronto, ON M2N 6P4

Brad Teichman

Tel: (416) 730-0180

Fax: (416) 730-9097

Email: bteichman@overlandllp.ca

ATTACHMENT 3

ISSUES LIST

Bell Canada

Provincial Policy Statement, 2020

1. Is the Proposed Development consistent with the PPS 2020, including policies 1.1.1(a), (c), (e), and (g), 1.1.3.2 (b), 1.1.3.3, 1.2.1(a) and (d), 1.2.6, 1.4.3(c), 1.6.1, 1.6.4, and 1.7.1(c) and (l)?

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

2. Does the Proposed Development conform with the Growth Plan, including policies 2.2.1.3(b), 3.2.1.1, 3.2.1.2, 3.2.1.4 and 3.2.1.5 ?

General

3. Does the Proposed Development create land use compatibility issues with the Bell Lands that should be addressed as part of the application and/or implementing documents?

Stardel Property Management Inc.

1. Will the proposed development give rise to unacceptable impacts on the adjacent multi-residential property located at 5 Rannock Street having regard to, among other things, the reduced setbacks of 2.0 metres?

2. Does the proposed development provide an appropriate tower setback from the lot line shared with 5 Rannock Street having regard to the future development of such property?

3. Does the location of the proposed tower unduly limit the redevelopment potential and intensification of adjacent lands, including 5 Rannock Street?

4. Does the height and density of the proposed development conform to the Council-adopted Golden Mile Secondary Plan, including polices 7.25, 7.30, 7.42, and maps 45-5, 45-12, 45-13 and 45-14?

5. Do the heights and densities of the proposed development have adequate regard for the scale of the existing apartment neighbourhood?

6. Does the scale and massing of the proposed development provide adequate transition to the adjacent lands in accordance with OP Policy 4.2.2 (a)?

7. Does the proposed development adequately limit shadow impacts and provide for adequate sunlight on the adjacent property in accordance with OP Policy 3.1.2?

8. Do the proposed towers adequately respond to the design guidelines prescribed by the City of Toronto’s Tall Building Guidelines?

City of Toronto

1. Has the infrastructure required to support the anticipated growth in the overall context of the Golden Mile Secondary Plan ("GMSP") area, including streets, density, servicing, parks, and community service facilities been addressed comprehensively and in coordination with other GMSP landowners?

2. If the answer to Issue #1 is no, is the approval of the proposed Official Plan Amendment premature?

3. Should the proposed Official Plan Amendment be revised to remove the City's lands (portion of the north-south segment of Craigton Drive, between Rannock Street and Pharmacy Avenue) from forming part of the Starlight lands, remove the policies in the proposed Official Plan Amendment and remove that land from the site area or density calculations for the development site?

4. Until Issue #3 is addressed, is the consideration of the proposed Official Plan Amendment premature?

5. Is the hearing premature in the absence of the applicant revising the proposed development and Official Plan Amendment to show the parkland conveyance in the size, location and configuration that is satisfactory to the City, pursuant to Section 42 of the Planning Act, and the City’s Parkland Dedication By-law (Chapter 415, Article III of the Municipal Code)?

6. Where the City has determined that on-site parkland will be required pursuant to section 42(1) of the Planning Act and the City’s Parkland Dedication By-law Chapter 415, Article III of the Municipal Code (the “Section 42 Parkland”), does the Local Planning Appeal Tribunal have the jurisdiction to determine the size, location and configuration of the Section 42 Parkland for a site?

Planning Act

7. Would approval of the proposed Official Plan Amendment by the Tribunal have regard for the purposes of the Planning Act in Section 1.1?

8. Does the proposed Official Plan Amendment have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including subsections 2(f),(h),(i),(j),(k),(n), (o),(p) (q), and (r)?

9. Would approval of the proposed Official Plan Amendment 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(2) of the Planning Act?

Provincial Policy Statement, 2020

10. Is the proposed Official Plan Amendment consistent with the Provincial Policy Statement including policies 1.1.1, 1.1.3.2, 1.1.3.3, 1.1.3.6, 1.1.3.7, 1.2.1, 1.2.6, 1.3.1, 1.4.3, 1.5, 1.6.1, 1.6.5, 1.6.6, 1.6.7, 1.6.8, 1.7, 1.8, 2.2, and 4.6?

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

11. Is the proposed scale of development and transition of built form to adjacent areas appropriate and is the proposed intensification appropriate in light of other objectives of A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020)?

12. Does the proposed Official Plan Amendment conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), including policies 1.2.1, 2.2.1.4, 2.2.2.3, 2.2.6, 3.2.1.1, 3.2.1.2, 3.2.3, 3.2.5, 3.2.6, 3.2.7, 3.2.8, 4.2.5, 5.2.4, and 5.2.5?

Official Plan

13. Does the proposed Official Plan Amendment conform with the policies of the City of Toronto Official Plan, including the policies related to:

a. Structuring Growth in the City (Section 2.2.);

b. Avenues (Section 2.2.3);

c. Employment Areas (Section 2.2.4);

d. Bringing the City Together, Transportation (Section 2.4);

e. Public Realm (Section 3.1.1);

f. Built Form (Section 3.1.2, Section 3.1.3);

g. Public Art (Section 3.1.4);

h. Housing (Section 3.2.1);

i. Community Services and Facilities (Section 3.2.2);

j. Parks and Open Spaces (Section 3.2.3);

k. Building New Neighbourhoods (Section 3.3);

l. Natural Environment (Section 3.4);

m. Apartment Neighbourhoods (Section 4.2); and

n. Implementation (Section 5).

14. Does the proposed Official Plan Amendment maintain the intent and purpose of the policies of the Official Plan Amendment 499, Golden Mile Secondary Plan?

Land Use Planning and Urban Design

15. Does the proposal represent a scale of development and density that is appropriate for the surrounding area and does it provide an appropriate transition in scale and massing, within the West Park and Meadoway Transition Area, and to adjacent areas?

16. Does the proposal contemplate adequate lands to be identified, set aside and orientated for public park purposes?

17. Should the proposal be encouraged to include affordable housing to support the City's and the Growth Plan's housing policy objectives to provide a full range of housing (tenure and affordability) within new developments?

18. Should the proposal be revised to ensure that the site, overall and over each phase of residential development, will achieve a balanced mix of unit types, and to support the creation of housing suitable for families, development or redevelopment containing more than 80 new residential units will include larger units, including policy direction for:

a. A minimum of 10 per cent of the total number of the new residential dwelling units will be 3-bedroom units; and

b. An additional minimum of 25 per cent of the total number of the new residential dwelling units will be 2-bedroom units?

19. Does the proposal provide for a built form that is appropriate urban design, including appropriate building types, stepbacks and setbacks, base building heights, mid-rise heights and massing, separation distances between tall building towers, tower floor plate size, tall building heights and shadow impacts consistent with applicable policies and relevant guidelines?

Transportation

20. Should the proposal be revised to increase the right-of-way width of the new north-south public street?

21. Does the proposal consider the required network improvements for all modes, to support the proposed development and density increase, including:

a. Off-site improvements; and/or

b. Financial contributions towards the costs associated with future land acquisition and construction of the required transportation improvements in the event that the off-site improvements cannot be achieved?

22. Does the proposal’s Transportation Study appropriately and comprehensively review the constraints identified in the Transportation Master Plan for the Golden Mile, to ensure there are adequate network improvements and mitigating measures for all modes?

23. Does the Official Plan Amendment consider the adequacy and sufficiency of hard infrastructure investments and financial contributions to the Transportation Demand Management ("TDM") Plan?

Phasing of Development

24. Should the Official Plan Amendment be revised to include policies related to phasing of development addressing matters, including affordable housing, community service facilities, municipal infrastructure, public streets, public parkland and other such matters required to support the development of the site?

Compatibility/Mitigation

25. Do the proposed official plan policies appropriately implement the polices of the Provincial Policy Statement, the Growth Plan and the City's Official Plan related to employment areas, and specifically those policies that require the protection and preservation of employment areas for current and future uses?

26. Do the proposed official plan policies appropriately mitigate against the potential adverse effects arising from the introduction of sensitive land uses on the Employment Areas and major facilities within the vicinity of the subject lands?

27. Does the Official Plan Amendment conform to policy 2.2.4 and 3.4.21 of the Official Plan, including the requirement for Compatibility and Mitigation Studies, Noise, Odour, Vibration and Air Quality Studies to be submitted for a Zoning By-law Amendment application and peer reviewed at the applicant's expense?

Public Interest and Good Planning

28. Is the proposed Official Plan Amendment good planning and in the public interest?

Implementation

29. If the requested Official Plan Amendment is 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 the final form of the Official Plan Amendment is in a manner satisfactory to the Chief Planner and the City Solicitor?

ATTACHMENT 4

ORDER OF EVIDENCE

1. D.D. Acquisitions Partnership (Applicant/Appellant)

2. CP REIT Ontario Properties Limited

3. Bell Canada

4. Stardel Property Management Inc.

5. City of Toronto

6. D.D. Acquisitions Partnership, in reply

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.