Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 22, 2022

CASE NO.: OLT-21-001651

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

Applicant/Appellant: BJL Sumach Corp.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: to permit a 143-unit mixed use development

Reference Number: 20 220233 STE 13 OZ

Property Address: 471-479 Queen Street E.

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-21-001651

OLT Lead Case No: OLT-21-001651

OLT Case Name: BJL Sumach Corp. v. Toronto (City.)

BEFORE:

T. F. NG MEMBER

Wednesday, the 22nd day of June, 2022

B. RAJAEE MEMBER

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, March 13, 2023 at 10:00 a.m. by Videoconference at https://global.gotomeeting.com/join/687587165. The length of the hearing will be 10 days.

"Euken Lui"

EUKEN LUI 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: June 22, 2022 CASE NO(S).: OLT-21-001651

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

Applicant(s)/Appellant(s): BJL Sumach Corp.

Subject: Application to amend City of Toronto Zoning By-law 569-2013 and former city of Toronto Zoning By-Law 438-86 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning: Mixed Use

Proposed Zoning: Mixed Use (Site Specific)

Purpose: To permit a 15 storey, 143-unit mixed use development

Property Address/Description: 471-479 Queen St E.

Municipality: City of Toronto

Municipal File No.: 20 220233 STE 13 OZ

OLT Case No.: OLT-21-001651

OLT File No.: OLT-21-001651

OLT Case Name: BJL Sumach Corp. 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 March 13, 2023 at 10:00 a.m. at https://global.gotomeeting.com/join/687587165.

3. The length of the hearing will be about 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 set out 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 shall be as set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the Parties' consent, subject to the Tribunal's approval, or by Order of the Tribunal.

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 (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

9. Expert witnesses in the same discipline(s) should 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 at least fifty days (50) calendar days before the hearing is scheduled to commence (on or before Friday January 20, 2023), if this meeting takes place and if agreement is reached.

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 at least eighty-five (85) calendar days before the hearing is scheduled to commence (on or before Friday December 6, 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 qualifications of a witness to give opinion evidence in the area of expertise proposed should be made by motion in accordance with the Tribunal's Rules and notice of same must be served on the other Parties at least seventy-five (75) calendar days before the hearing is scheduled to commence (on or before Wednesday December 28, 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, at least forty-five days (45) calendar days prior to the scheduled commencement of the hearing (on or before Friday January 27, 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. At least forty-five days (45) calendar days prior to the scheduled commencement of the hearing (on or before Friday January 27, 2023), the Parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other Parties and to the City Clerk

15. At least thirty-five days (35) days prior to the scheduled commencement of the hearing (On or before Monday, February 6, 2023), the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. At least thirty (30) calendar days prior to the scheduled commencement of the hearing (on or before Friday February 10, 2023), the Parties may provide to all other Parties and file with the City Clerk a written response to any written evidence.

17. At least twenty (20) calendar days prior to the scheduled commencement of the hearing (on or before Tuesday February 21, 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 seven (7) days before the hearing that the written evidence is not part of their record.

20. The Parties shall prepare a Joint Document Book ten (10) days before the hearing is scheduled to commence (on or before Friday March 3, 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 (where feasible) and an accessible electronic format in accordance with Section 22.

21. At least ten (10) days before the commencement of the hearing (on or before Friday March 3, 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.

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 forty-five (45) days before a City Council meeting that is forty-five (45) days before Expert Witness Statements as stated in Section 14 (on or before Friday October 28, 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 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 22 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 21. 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
Friday October 28, 2022 (45 days before a City Council meeting that is 45 days before Witness Statement Date)	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
Friday December 16, 2022 (85 days prior to hearing)	Exchange of witness lists (names, disciplines and order to be called)
Wednesday December 28, 2022 (75 days prior to hearing)	Last date to challenge identification of expert witness
Friday January 20, 2023 (50 days prior to hearing)	Experts meeting prior to this date, if such meeting occurs
Friday January 20, 2023 (50 days prior to hearing)	Agreed Statement of Facts, if meeting occurs and matters agreed to
Friday January 27, 2023 (45 days prior to hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
Friday February 10, 2023 (30 days prior to hearing)	Exchange of written response to written evidence (if any)
Tuesday February 21, 2023 (20 days prior to hearing)	Exchange of visual evidence (if any)
Friday March 3, 2023 (10 days prior to hearing)	Final Work Plan filed with the Tribunal
Friday March 3, 2023 (10 days prior to hearing)	Finalize Joint Document Book
Monday March 13, 2023	Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

PARTIES:

BJL Sumach Corp. Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9

Eileen P.K. Costello Tel: 416.865.4740 Fax: 416.863.1515 Email: ecostello@airdberlis.com

Matthew Helfand Tel: 416.865.4624 Fax: 416.863.1515 Email: mhelfand@airdberlis.com

City of Toronto City of Toronto Legal Services 55 John Street, 26th Floor, Metro Hall Toronto, ON M5V 3C6

Mark Crawford Tel: 416.392.8864 Email: mark.crawford@toronto.ca

Colin Dougherty Tel: 416.392.3116 Email: colin.doughtery@toronto.ca

Preserve Corktown Miller Thomson LLP 40 King Street West, Suite 5800 P.O. Box 1011 Toronto, Ontario M5H 3S1

Douglas F. Best Tel: 416.595.8588 Fax: 416.595.8695 Email: dbest@millerthomson.com

PARTICIPANTS:

1. Corktown Residents and Business Association Andre Bermon, President
2. Andrew Hilton
3. Coralina Lemos
4. Andrew Bourgeois

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 have 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.

A. CITY OF TORONTO

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. 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 building type, height, setbacks, massing and scale, and location? In particular: a) Does the proposal have appropriate regard for the performance standards of the Avenues and Mid-Rise Buildings Study (2010) and addendum (2016)? b) Does the proposal have appropriate regard for the Tall Building Design Guidelines (2013)? c) Does the proposal conform with Toronto Official Plan, particularly sections 2.2.1, 3.1.2, 3.1.3, 4.5? d) Does the proposal conform with the Downtown Plan, particularly section 3, 4, 6, and 9? e) Does the proposal conform with the in-force King-Parliament Secondary Plan, particularly sections 2, 3, and 4? f) Does the proposal have appropriate regard for the King-Parliament Urban Design Guidelines? g) Does the proposal have appropriate regard for OPA 525 (the newly adopted King-Parliament Secondary Plan) and implementing zoning by-law 394-2021? h) Is the proposal consistent with Provincial Policy Statement, 2020, particularly policies 1.1.3.4 and 1.71? i) Does the proposal conform with Growth Plan, 2019, particularly policy 5.2.5.6? j) Does the proposal have regard for subsections 2 (p) and (r) of the Planning Act?

3. Public Realm Do the proposed development and zoning by-law amendment result in a high quality public realm? In particular: a) Does the proposal have appropriate regard for the performance standards of the Avenues and Mid-Rise Buildings Study (2010) and addendum (2016)? b) Does the proposal have appropriate regard for the Tall Buildings Design Guidelines (2013)? c) Does the proposal conform with Toronto Official Plan, particularly policy 3.1.1? d) Does the proposal conform with the Downtown Plan, particularly sections 3, 6, 7, and 9? e) Does the proposal conform with the in-force King-Parliament Secondary Plan, particularly sections 2, 3, and 5? f) Does the proposal have appropriate regard for the King-Parliament Urban Design Guidelines? g) Does the proposal conform with the Growth Plan, 2019, particularly policy 5.2.5.6? h) Is the proposal consistent with Provincial Policy Statement, 2020, particularly policy 1.5.1? i) Does the proposal have regard for subsection 2(r) of the Planning Act?

4. Other a. Has the proposed development and zoning by-law satisfactorily addressed all site access, loading and solid waste issues? b. Does the proposed development and zoning by-law provide adequate outdoor amenity space?

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 City Solicitor has confirmed: a) The draft Zoning By-law Amendments are in a form satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor; 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 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 d) 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.

B. PRESERVE CORKTOWN

1. Does the proposed development: a) Have a building height and density that are appropriate for, and will set a desirable precedent within, the immediate surrounding area? b) Provide appropriate and safe vehicular and pedestrian access to and from the site, which includes reliance on a private laneway? c) Provide a design that contributes positively to, and can enhance, the heritage assets of the immediate surrounding area and larger Corktown neighbourhood?

2. Issues 1, 2, 3 and 4 of the City of Toronto.

ATTACHMENT 4

ORDER OF EVIDENCE

1. BJL Sumach Corp.
2. City of Toronto
3. Preserve Corktown
4. BJL Sumach Corp. (in reply, if necessary)

ATTACHMENT 5

MEANING OF TERMS USED IN THE PROCEDURAL ORDER

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 (CMC), 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 (only a party may do so). Subsection 33.2 of the Local Planning Appeal 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 may receive notice of a mediation or conference calls on procedural issues. Participants are not permitted to 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 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.

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.