Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 17, 2022

CASE NO(S).: OLT-22-002961

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

Applicant and Appellant: Rimap and Main Developments Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a 40-storey mixed-use building Reference Number: 21 215777 WET 03 OZ Property Address: 5238 Dundas Street West and 28 Jopling Avenue South Municipality/UT: Toronto/Toronto OLT Case No.: OLT-22-002961 OLT Lead Case No.: OLT-22-002961 OLT Case Name: Rimap and Main Developments Inc. v. Toronto (City)

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

Applicant/Appellant: Rimap and Main Developments Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a 40-storey mixed-use building Reference Number: 21 215777 WET 03 OZ Property Address: 5238 Dundas Street West and 28 Jopling Avenue South Municipality/UT: Toronto/Toronto OLT Case No.: OLT-22-002962 OLT Lead Case No.: OLT-22-002961

Heard: June 8, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Rimap & Main Developments Inc. ("Appellant / Applicant")	David Bronskill
City of Toronto ("City")	Sara Amini Cameron McKeich

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON JUNE 8, 2022, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (the "CMC") of an appeal by Rimap & Main Developments Inc. following the City's neglect/failure to render a decision respecting an application for an official plan amendment and zoning by-law amendment to permit the re-development of 5238 Dundas Street West and 26 Jopling Avenue (the "Subject Property").

2The Subject Property is approximately 2753.8 m² in area and is currently occupied by a 1-storey commercial building, associated surface parking, and a 1-storey detached dwelling. The proposed development involves a 40-storey mixed use building, including approximately 475 dwellings, 380 m² of ground floor retail and 117 underground parking spaces.

Service of Notice of CMC

3There was no issue with service of the Notice of this CMC, so no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which is marked as Exhibit 1.

Requests for Status

4No one appeared at the CMC seeking either party or participant status.

MEDIATION AND SETTLEMENT

5The Tribunal explored the possibility of mediation and settlement with the parties. The parties indicated that it is too early to assess the prospects of resolution, given that a staff report has not yet been provided (expected late June 2022). However, the parties confirmed that they would pursue resolution once the matter has been considered by council and instructions have been provided.

6The parties indicated that, realistically, the parties may enter into resolution discussions by the fall of 2022, with instructions to settle being possible in early 2023.

PROCEDURAL ORDER AND ISSUES LIST

7The Tribunal received and reviewed a draft Procedural Order (the "PO") from the Applicant. It required updating to reflect dates, etc., and the City did not have an opportunity to contribute to the issues list because a staff report and instructions from council are still outstanding.

8The Tribunal requested, and the parties agreed, that the Applicant would update the existing draft PO with hearing dates provided at the present CMC and return it to the Tribunal by June 13, 2022. In addition, the Tribunal confirmed that the parties have until August 2, 2022, to firm up the issues list.

9The Tribunal received the updated draft PO from the Applicant, as requested, which is appended hereto as Attachment 1.

HEARING

10Upon request of the parties, the Tribunal set a 10-day hearing commencing on Monday, April 24, 2023 at 10 a.m. by video hearing. No further Notice is required for the hearing.

11Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/709076365

Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889

Access code: 709-076-365

12Parties 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 at: https://app.gotomeeting.com/home.html

13Persons 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, as indicated above.

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 video hearing 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:

a) The date and particulars of the hearing are set out above;

b) The draft Procedural Order appended as Attachment 1 shall govern the proceedings, noting that the parties have until August 2, 2022, to confirm the issues list; and

c) The 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: 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.

ATTACHMENT 1

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 April 24, 2023, at 10:00 a.m.

3. The length of the hearing will be ten (10) 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 February 24, 2023.

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 February 3, 2023. 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 February 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, 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 March 10, 2023, 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 March 10, 2023, 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 March 24, 2023, the Parties may provide to all other Parties a written response to any written evidence.

16. On or before April 14, 2023, 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 April 7, 2023, 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 April 14, 2023, 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 April 14, 2023, 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 January 20, 2023. 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
January 20, 2023	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
February 3, 2023	Exchange of witness lists (names, disciplines and order to be called)
February 17, 2023	Last date to challenge identification of expert witness
February 24, 2023	Agreed Statement of Facts
March 10, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
March 24, 2023	Exchange of Reply Witness Statements (if any)
April 7, 2023	Exchange of visual evidence (if any)
April 14, 2023	Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
April 14, 2023	Final Work Plan filed with the Tribunal
April 14, 2023	Finalize Joint Document Book
April 24, 2023	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

Rimap and Main Developments Inc. David Bronskill Goodmans LLP dbronskill@goodmans.ca

City of Toronto Sara Amini Solicitor, City of Toronto Legal Services Sara.Amini@toronto.ca

Cameron McKeich Solicitor, City of Toronto Cameron.McKeich@toronto.ca

PARTICIPANTS

N/A

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

ATTACHMENT 4

ORDER OF EVIDENCE

Rimap & Main Developments Inc.

City of Toronto

Reply (if any)

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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