Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 22, 2022

CASE NO(S).: OLT-21-001198

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

Applicant and Appellant: King Street I GP Inc.

Subject: Application to amend Zoning By-law No. 438-86 and Zoning By-law No. 569-2013 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: Reinvestment Area (RA) (Zoning By-law No. 438-86) Commercial Residential Employment CRE (x41) (Zoning By-law No. 569-2013)

Proposed Zoning: Reinvestment Area (RA) with site specific provisions (Zoning By-law No. 438-86) Commercial Residential Employment CRE (x41) with site specific provisions (Zoning By-law No. 569-2013)

Purpose: To facilitate the development of a 40-storey mixed-use building with 488 dwelling units and ground floor retail space

Property Address/Description: 234-250 King Street East & 162 Princess Street

Municipality: City of Toronto

Municipality File No.: 20 233 160 STE 13 OZ

OLT Case No.: OLT-21-001198

OLT File No.: OLT-21-001198

OLT Case Name: King Street I GP Inc. v. Toronto (City)

Heard: February 04, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
King Street I GP Inc.	D. Bronskill
City of Toronto	J. Jakubowski
DewarKim Investments Inc.	C. deSereville

MEMORANDUM OF ORAL DECISION DELIVERED BY D.S. COLBOURNE AND G. BURTON ON FEBRUARY 4, 2022 AND ORDER OF THE TRIBUNAL

1The Tribunal conducted a Case Management Conference (“CMC”) on February 4, 2022 for the purposes of considering two requests for status and further consideration of the Procedural Order, the associated Issues List, as well as to set a date for the hearing.

2Despite the fact that neither Elizabeth Jordan nor Armen Tootikian had filed the regular forms requesting status, the Tribunal considered their requests in light of this late notification. None of the other Parties or Participants had objections to their requests.

3The Tribunal granted Participant status to both Ms. Jordan and Mr. Tootikian. Jake Gold and Tristan Sones already had Participant status.

4The Tribunal was requested to seek a date in the latter part of the year for nine hearing days.

5The hearing is scheduled to proceed by video on December 5 to December 15, 2022 at 10 a.m.

[6] 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: https://global.gotomeeting.com/join/519389173 Access code: 519-389-173

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) 299-1889 or +1 (647) 497-9373. The access code is 519-389-173.

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 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.

10There will be no further notice.

11This Panel is not seized.

12This proceeding shall be governed by Attachment 1 hereto.

“D.S. Colbourne”

D.S. COLBOURNE VICE-CHAIR

“G. Burton”

G. BURTON VICE-CHAIR

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.

ATTACHMENT 1

CASE NO(S).: OLT-21-001198

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

Applicant and Appellant: King Street I GP Inc.

Subject: Application to amend Zoning By-law No. 438-86 and Zoning By-law 569-2013 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: Reinvestment Area (RA) (Zoning By-law No. 438-86) Commercial Residential Employment CRE (x41) (Zoning By-law 569-2013)

Proposed Zoning: Reinvestment Area (RA) with site specific provisions (Zoning By-law No. 438-86) Commercial Residential Employment CRE (x41) with site specific provisions (Zoning By-law 569-2013)

Purpose: To facilitate the development of a 40-storey mixed-use building with 488 dwelling units and ground floor retail space

Property Address/Description: 234-250 King Street East & 162 Princess Street

Municipality: City of Toronto

Municipality File No.: 20 233 160 STE 13 OZ

OLT Case No.: OLT-21-001198

OLT File No.: OLT-21-001198

OLT Case Name: King Street I GP 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 December 5, 2022 at 10:00 a.m. Please refer to the Decision for video hearing details.

3. The length of the hearing will be nine (9) 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/tribunals/lpat/).

Requirements Before the Hearing

9. 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 September 9, 2022.

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 July 29, 2022. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and provide their curriculum vitae. 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 August 19, 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, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided as in Section 14. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other Parties at the same as the delivery of expert witness statements, as in Section 14.

12. A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before September 30, 2022, or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the Party calling them must file a brief outline of the expert’s evidence, as in Section 14.

14. On or before September 30, 2022, the Parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other Parties.

15. On or before October 14, 2022, the Parties may provide to all other Parties a written response to any written evidence.

16. On or before November 4, 2022, the Parties shall advise the Tribunal of whether any hearings dates scheduled for this matter may be released from the Tribunal's calendar. This request may only be made on consent of all of the Parties. If no hearing dates are intended to be released from the Tribunal's calendar, no Party is required to advise the Tribunal anything further in that regard.

17. On or before October 21, 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.

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 November 4, 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 on or before November 18, 2022, and which one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with Section 23.

22. 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 June 10, 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.

23. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents 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 or as permitted by Section 22. 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
June 10, 2022	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
July 29, 2022	Exchange of witness lists (names, disciplines and order to be called)
August 19, 2022	Last date to challenge identification of expert witness
September 9, 2022	Experts meeting prior to this date
September 16, 2022	Agreed Statement of Facts
September 30, 2022	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
October 14, 2022	Exchange of Reply Witness Statements (if any)
October 21, 2022	Exchange of visual evidence (if any)
November 4, 2022	Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
November 4, 2022	Final Work Plan filed with the Tribunal
November 18, 2022	Finalize Joint Document Book
December 5, 2022	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. King Street I GP Inc David Bronskill Goodmans LLP dbronskill@goodmans.ca 416.597.4299

2. City of Toronto Joanna B. Wice Solicitor, City of Toronto Legal Services Joanna.wice@toronto.ca 416-397-5737

Jessica Jakubowski Solicitor, City of Toronto Legal Services Jessica.Jakubowski@toronto.ca 416-392-3331

3. DewarKim Investments Inc. Sylvain Rouleau WeirFoulds LLP srouleau@weirfoulds.com 416-947-5016

Chantal deSereville WeirFoulds LLP cdesereville@weirfoulds.com 416-941-5901

PARTICIPANTS

1. First Gulf King Street Inc. & First Gulf Ontario Street Corporation mlaskin@goodmans.ca

2. Elizabeth Jordan (388 Adelaide Street East) liz_jordan@hotmail.com

3. Jake Gold (388 Adelaide Street East) jakegold@mgmtrust.ca

4. Tristan Sones (388 Adelaide Street East) tsones@rogers.com

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. The identification of an issue on this list by a Party indicates that Party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the Tribunal 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 Tribunal.

City of Toronto Issues List

1. Do the proposed development and zoning by-law amendment represent good planning, have regard to the matters of provincial interest, conform with the Growth Plan, 2019, conform with the Toronto Official Plan, and are they consistent with the Provincial Policy Statement, 2020?

2. Height Is the height of the proposed development and for the zoning by-law amendment good planning? Is the proposed height appropriate for the site? In particular: a) Does the proposal have appropriate regard for the Tall Building Guidelines? b) Does the proposal conform with the Toronto Official Plan, including sections 2.2.1, 3.1.2, 3.1.3 and 4.5? c) Does the proposal conform with the Downtown Plan, including section 3, 4, 5, 6, and 9? d) Does the proposal conform with the in force King-Parliament Secondary Plan, including sections 2, 3, 4, and 8? e) Does the proposal have appropriate regard for OPA 525 (the updated King-Parliament Secondary Plan) and the implementing zoning by-laws?

3. Built form Do the proposed development and zoning by-law amendment provide for a built form that is good planning? Is the proposed built form appropriate in terms of massing and transition? In particular: a) Does the proposal have appropriate regard for the Tall Building Guidelines? b) Does the proposal conform with the Toronto Official Plan, including sections 2.2.1, 3.1.1, 3.1.2, 3.1.3, and 4.5? c) Does the proposal conform with the Downtown Plan, including sections 3, 4, 5, 6, 7, 8, and 9? d) Does the proposal conform with the in force King-Parliament Secondary Plan, including sections 2, 3, 4, and 8? e) Does the proposal have regard for OPA 525 (the updated King-Parliament Secondary Plan) and the implementing zoning by-laws? f) Does the proposal have appropriate regard for OPA 352 and the implementing zoning by-laws?

4. Heritage conservation Do the proposed development and zoning by-law amendment provide for the appropriate conservation of the cultural heritage values, attributes and character of the heritage buildings? Has the proposed development been designed to ensure that the integrity of the partial retained buildings' heritage value and attributes will be retained? a) Does the proposal conform with the St. Lawrence Neighbourhood HCD Plan polices ? b) Does the proposal conform with the Toronto Official Plan, particularly the polices in section 3.1.5? c) Does the proposal conform with the Downtown Plan, particularly polices 3.3, 4.1, 6.22, 7.3.3, 7.19.1, 9.1.2, 9.1.4, 9.6.2, 9.11, 9.25.3, and 12.4 ? d) Does the proposal conform with the King-Parliament Secondary Plan, particularly polices 3.1.4, 4.1, and 4.4? e) Does the proposal conform with the Growth Plan, 2019, particularly section 4.2.7? f) Is the proposal consistent with Provincial Policy Statement, 2020, particularly polices 2.6.1 and 2.6.3?

5. Order if approved In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied: a) The zoning by-law amendment has been prepared in a content and form satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning; b) The owner has addressed all outstanding issues raised by Engineering and Construction Services as they relate to the Zoning By-law Amendment application, to the satisfaction of the Chief Engineer and Executive Director, Engineering and construction Services; c) The owner has submitted a Revised Heritage Impact Assessment that includes a conservation strategy for the on-site significant heritage resources to the satisfaction of the Senior Manager, Heritage Planner; d) If the properties at 234-236, 240 and 242 King Street East are designated under Part IV, section 29 of the Ontario Heritage Act, the owner has entered into a Heritage Easement Agreement with the City for the properties at 234-236, 240 and 242 King Street East, to the satisfaction of the Senior Manager, Heritage Planning including execution and registration of such agreement to the satisfaction of the City Solicitor; e) The owner provides a detailed Conservation Plan, prepared by a qualified heritage consultant that is substantially in accordance with the conservation strategy set out in the Revised Heritage Impact Assessment required by Part 5.c. above, to the satisfaction of the Senior Manager, Heritage Planning; f) The owner has entered into, and registered on title to the lands, an agreement with the City pursuant to section 37 of the Planning Act, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, securing community benefits and other matters in support of the development; and g) The owner withdraw its appeal of Official Plan Amendment 525, being the King-Parliament Secondary Plan, and the associated Zoning By-law 393-2021, as they relate to the subject lands.

DewarKim Investments Inc. Issues List

1. Block Context Do the proposed development and zoning by-law amendment adequately respond to the block context to achieve a built form that is good planning and good design? Does the proposed built form size, placement and orientation fit within the existing and planned context and achieve appropriate transition in this regard? In particular: a) Does the proposal have regard to matters of provincial interest, including sections 2(n) and (r) b) Is the proposal consistent with the Provincial Policy Statement, 2020; c) Does the proposal conform with the Growth Plan 2020; d) Does the proposal conform with the Toronto Official Plan, including sections 3.1.2, 3.1.3, and 4.5? e) Does the proposal conform with the Downtown Plan, including section 9? f) Does the proposal conform with the in force King-Parliament Secondary Plan, including sections 2, 3 and 8? g) Does the proposal have regard for OPA 525 (the updated King-Parliament Secondary Plan) and the implementing zoning by-laws? h) Does the proposal have appropriate regard for OPA 352 and the implementing zoning by-laws? i) Does the proposal have appropriate regard for the Block Context Plan Terms of Reference? j) Does the proposal have appropriate regard for the Tall Building Guidelines?

2. Lane Design Does the proposed modifications to the design and function of the existing lane support safe multi-modal movement options to achieve good planning and design? In particular: a) Does the proposal have regard to matters of provincial interest, including sections 2(f), (h), (h.1), (o), (q) and (r) b) Is the proposal consistent with the Provincial Policy Statement, 2020; c) Does the proposal conform with the Growth Plan 2020; d) Does the proposal conform with the Toronto Official Plan, including sections 2.2, 2.4, 3.1.1, 3.1.2, and 4.5? e) Does the proposal conform with the Downtown Plan, including sections 3, and 8? f) Does the proposal conform with the in force King-Parliament Secondary Plan, including sections 3 and 5? g) Does the proposal have regard for OPA 525 (the updated King-Parliament Secondary Plan) and the implementing zoning by-laws? h) Does the proposal have appropriate regard for OPA 352 and the implementing zoning by-laws?

ATTACHMENT 4

ORDER OF EVIDENCE

1. King Street I GP Inc
2. City of Toronto
3. DewarKim Investments Inc.

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.

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