Temple Ave Partners Inc. v. Toronto (City), 2022 CanLII 18620

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 07, 2022

CASE NO(S).: OLT-21-001749

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

Applicant and Appellant: Temple Ave Partners Inc.

Subject: Application to amend Zoning By-law No. 569-2013 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: Residential (R (d2.0) (x811))

Proposed Zoning: Site specific – to be determined

Purpose: To permit the development of a 16-storey residential building

Property Address/Description: 2-24 Temple Avenue

Municipality: City of Toronto

Municipality File No.: 21 105906 STE 04 OZ

OLT Case No.: OLT-21-001749

OLT Lead Case No.: OLT-21-001749

OLT Case Name: Temple Ave Partners Inc. v. Toronto (City)

Heard: February 15, 2022 by video hearing

APPEARANCES:

Parties

Counsel

City of Toronto

Marc Hardiejowski

Temple Ave Partners Inc.

Zachary Fleischer

Sanjoy Pan

Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON FEBRUARY 15, 2022 AND ORDER OF THE TRIBUNAL

1The Ontario Land Tribunal (“OLT” or “Tribunal”) conducted a case management conference (“CMC”) in this proceeding by video hearing (‘VH”) on February 15, 2022.

2This proceeding relates to an application by Temple Ave Partners Inc. (“Applicant”) to amend Zoning By-law No. 569-2013 of the City of Toronto (“City”) to permit a development of a 16-storey residential building at 24 Temple Avenue in the City (“Subject Site”). The City failed to make a decision on this application and the Applicant therefore appealed to the OLT.

3No entity other than the City and the Applicant sought Party status at the CMC, but Sanjoy Pan, who owns and resides in a residence at 26 Temple Avenue directly adjacent to the Subject Site, sought Participant status. Given his proximity, and there being no objections from either Party, the Tribunal granted Participant status to Mr. Pan.

4The Parties had submitted a draft Procedural Order (“PO”) to the Tribunal prior to the VH and sought a 7-day hearing of the appeal.

5The Tribunal has scheduled the hearing to commence at 10 a.m. on Monday, September 26, 2022 for a period of 7 days ending on October 4, 2022, as follows:

https://meet.goto.com/442599157

Access Code: 442-599-157

6Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections.

7Parties 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.

8Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.

9Individuals 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 VH 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.

10Subsequent to the VH, counsel for the Parties submitted an agreed, revised PO governing the conduct of the hearing of this appeal, which is appended as Attachment 1 to this Decision.

ORDER

11The Tribunal orders that the hearing of this appeal shall commence at 10 a.m. on Monday, September 26, 2022 for a period of 7 days ending on October 4, 2022, as detailed above in paragraph [5].

12The Tribunal further orders that the hearing in this proceeding shall be governed by the Procedural Order set out in Attachment 1 hereto.

“William R. Middleton”

william r. middleton

MEMBER

Ontario Land Tribunal

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

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

OLT-21-001749 – Attachment 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

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

Applicant and Appellant:

Temple Ave Partners Inc.

Subject:

Application to amend Zoning By-law No. 569-2013 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning:

Residential (R (d2.0) (x811))

Proposed Zoning:

Site specific – to be determined

Purpose:

To permit the development of a 16-storey residential building

Property Address/Description:

2-24 Temple Avenue

Municipality:

City of Toronto

Municipality File No.:

21 105906 STE 04 OZ

OLT Case No.:

OLT-21-001749

OLT Lead Case No.:

OLT-21-001749

OLT Case Name:

Temple Ave Partners Inc. 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, September 26, 2022 at 10 a.m. Parties are directed to the following link to access the video hearing:

GoTo Meeting: https://meet.goto.com/442599157

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

Access Code: 442-599-157

Parties 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.

3. The length of the hearing will be 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.

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.

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 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/appeals-process/video-hearing/).

Requirements Before the Hearing

9. 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 March 24, 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.

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 on or before May 30, 2022. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and must include a copy of the witness's curriculum vitae and Acknowledgment of Expert's Duty Form. 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 June 20, 2022.

11. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of 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 on or before June 28, 2022.

12. 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 15. 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 15.

13. A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before July 22, 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.

14. 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 15.

15. On or before July 22, 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 OLT case co-ordinator in accordance with Section 23 below.

16. On or before August 12, 2022, the Parties may provide to all other Parties a written response to any written evidence.

17. On or before August 29, 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.

18. 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 or unless otherwise on a timeline agreed to by the parties.

19. 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.

20. On or before September 16, 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. The Parties shall prepare a Joint Document Book on or before September 6, 2022. One hard copy of the Joint Document Book shall be filed with the Tribunal as soon as possible in advance of the hearing. All Parties must be served by the appellant with the Joint Document Book in paper or an accessible electronic format in accordance with Section 23.

22. At the time of cross-examination, the Parties shall provide to all Parties and the Tribunal, in a password protected format, any documents that will be used by the Party in cross-examination of an opposing Party's witness, unless the presiding Member directs otherwise. The password protected documents shall only be accessible to the Tribunal and the other Parties if they are introduced as evidence at the hearing.

23. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal shall 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 by 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 23 applies regardless if the hearing event is in-person or electronic.

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 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.

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.

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

March 24, 2022

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

May 30, 2022

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

June 20, 2022

Last date to challenge identification of expert witness

June 28, 2022

Experts Meeting and Agreed Statement of Facts

July 22, 2022

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

August 12, 2022

Exchange of Reply Witness Statements (if any)

August 29, 2022

Exchange of Visual Evidence (if any)

September 6, 2022

Preparation of Joint Document Book

September 16, 2022

Final Work Plan filed with the Tribunal

September 26, 2022

Hearing commences

ATTACHMENT 2

list of parties and participants

A. PARTIES

PARTIES

COUNSEL

Temple Ave Partners Inc.

Goodmans LLP Bay Adelaide Centre – West Tower 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 David Bronskill Email: dbronskill@goodmans.ca Tel: (416) 597-4299 Zachary Fleisher Email: zfleisher@goodmans.ca Tel: (416) 597-4286

City of Toronto

Legal Services Metro Hall 55 John Street, 26th Floor Toronto, ON M5V 3C6 Marc Hardiejowski Email: marc.hardiejowski@toronto.ca Tel: (416) 393-4960

B. PARTICIPANT

Sanjoy Pan Email: sanjoy.k.pan@gmail.com Tel: (416) 723-0745

ATTACHMENT 3

ISSUES LIST

CITY OF TORONTO ISSUES

Provincial Policy

Does the proposal represent good and appropriate land-use planning with respect to provincial policy?

Planning Act

1. Does proposal have regard to matters of provincial interest including:

• Having regard to Section 2 of the Planning Act, in particular, subsections (h), (j), and (r).

Provincial Policy Statement, 2020

2. Is the proposal consistent with the policies of the Provincial Policy Statement, 2020 including, but not limited to:

• Building Strong Communities (1.0), in particular, policy 1.1.1(b), and (c)

• Housing (1.4), in particular, policy 1.4.3(a)

• Public Spaces, Recreation, Parks, Trails and Open Spaces (1.5), in particular 1.5 (b), and

• Implementation and Interpretation (4.0), in particular, policy 4.6.

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

3. Does the proposal conform to the policies of the Growth Plan including, but not limited to:

• Guiding Principles (1.2.1)

• Managing Growth (2.2.1), in particular, policies 2.2.1.4, and

• Housing 2.2.6.1, and 2.2.6.3.

Municipal Policy

Does the proposal conform to the City of Toronto Official Plan?

4. Does the proposal conform to the policies of the City of Toronto Official Plan including, but not limited to:

• Healthy Neighbourhoods (2.3.1)

• The Public Realm (3.1.1)

• Built Form (3.1.2)

• Built Form – Tall Buildings (3.1.3)

• Housing (3.2.1)

• Community Services and Facilities (3.2.2), and

• Apartment Neighbourhoods Areas (4.2)

Design Guidelines

Is the proposal consistent with the intent of the applicable urban design guidelines?

Tall Buildings Guidelines

5. Does the proposal meet the intent of the Tall Buildings Design Guidelines (2013), including, but not limited to:

• Fit and transition in scale (1.3)

• Sunlight and skyview (1.4)

• Base building (3.1.1)

• Middle (3.2.1), and

• Separation Distances (3.2.3)

Growing-Up Urban Design Guidelines

6. Does the proposal meet the intent of the Growing-Up Urban Design Guidelines (2020), including, but not limited to:

• Building (2.1)

Good Planning

Does the proposal represent good planning regarding appropriate scale, and existing and planned context?

7. Are the height and massing of the proposal, including the impact of the height on matters such as views, privacy, overlook, shadowing, wind, and the streetscape appropriate?

8. Does the proposed height and massing fit with the existing and planned built form context in the Temple Avenue and Dufferin Street neighbourhood?

9. Does the proposal make an appropriate built form transition in relation to the scale and character of the surrounding area?

10. Is the site appropriate for a tall building?

11. Are the setbacks from the property lines appropriate?

12. Are the stepbacks of the tower element from the base building element of the proposed building appropriate?

13. Are the proposed stepbacks at an appropriate height?

Zoning By-law

14. Does the proposal represent good and appropriate planning regarding site functioning and performance, in particular?

• The number of vehicle parking spaces for residents, visitors, and accessible spaces and their location

• The substandard amount of indoor and outdoor amenity space

• The lack of setbacks from the property lines

• The substandard landscaping provision, and

• The access to parking

15. In the event that the Tribunal allows the appeal in whole or in part, what are the appropriate benefits under Section 37 of the Planning Act to be secured as a part of the Zoning Bylaw Amendment, and do those benefits confirm with Official Plan policies 5.1.1.5 and 5.1.1.6?

Public Interest

16. Does the proposal building offer an appropriate range of unit types?

17. Are the proposed Zoning By-law Amendments good planning and in the public interest?

Conditions

18. If the proposed development is approved in whole or in part, should the Tribunal's Order be withheld until the following conditions are satisfied and the Tribunal receive confirmation from the City Solicitor that:

a) the amending by-laws be finalized, in a form and content acceptable to the City Solicitor and Chief Planner and Executive Director, City Planning, in a manner that implements the proposed development; and

b) that any necessary agreements, including but not limited to, a Section 37 agreement, be entered into to the satisfaction of the Chief Planner and Executive Director, City Planning and executed and registered on title to the satisfaction of the City Solicitor.

ATTACHMENT 4

ORDER OF EVIDENCE

1. Temple Ave Partners Inc.

2. City of Toronto

3. Temple Ave Partners Inc. 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 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.