BJL Properties Inc. v. Toronto (City), 2022 CanLII 58203

Ontario Land Tribunal

Issue Date: June 27, 2022 Case No.: OLT-22-002187

Proceeding Commenced Under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: BJL Properties Inc. Subject: Application to amend Zoning By-law Nos. 438-86 and 569-2013 – Neglect or Refusal of application by the City of Toronto Existing Zoning: CRE (x12) and CRE (x23) Proposed Zoning: CR SS1 (x339) Purpose: To permit the development of a 19-storey mixed use building on the lands Property Address: 102 Berkeley Street Municipality: City of Toronto Municipal File No.: 21 221292 STE 13 OZ OLT Lead Case No.: OLT-22-002187 OLT Case No.: OLT-22-002187 OLT Case Name: BJL Properties Inc. v. Toronto (City)

Before: S. BRAUN, MEMBER B. RAJAEE, MEMBER

Monday, the 27th day of June, 2022

THESE MATTERS having come before the Tribunal for a Case Management Conference on June 06, 2022;

AND THE TRIBUNAL having received the requested copy of the Procedural Order, on consent;

THE TRIBUNAL ORDERS that the Procedural Order attached hereto as Schedule 1 is in full force and effect.

"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.

SCHEDULE 1

PROCEDURAL ORDER

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

1The video hearing will begin on Wednesday, May 31, 2023 at 10:00 A.M. No further notice shall be required.

2The length of the hearing will be approximately 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.

3The parties and participants (see Attachment "4" for the meaning of these terms) identified at the Case Management Conference are listed in Attachment "1" to this Order.

4The issues for the hearing are set out in the Issues List attached as Attachment "2" 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, except if the Issues List is modified on consent of the parties, through mediation or pursuant to a settlement between any of the parties.

5The Order of Evidence for the hearing is listed in Attachment "3" 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.

6Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative's name, address, email address and the phone number as soon as possible.

7Any person who intends to participate in the hearing, including parties, counsel, and witnesses, is expected to review the Tribunal's Video Hearing Guide, available on the Tribunal's website.

Requirements Before the Hearing

8A 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 are intended to be called. This list must be delivered on or before Monday, January 30, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness' Curriculum Vitae and the area of expertise in which the witness is proposed to be qualified.

9Expert witnesses in the same field shall have a meeting on or before Monday, March 6, 2023 to try to resolve or reduce the issues for the hearing. Following the experts' meeting, and if there is agreement, the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case coordinator on or before Monday, March 13, 2023.

10An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13. 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.

11Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert's evidence as in paragraph 13. A party who intends to call a witness who is not an expert must file a brief outline of the witness' evidence, as in paragraph 13 below.

12If 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 Monday, February 27, 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.

13On or before Monday, March 27, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 22 below.

14On or before Monday, March 27, 2023, a participant shall provide copies of their written participant statement to the other parties and the OLT case coordinator in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before Monday, April 24, 2023 and in accordance with paragraph 22 below.

16The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before Monday, May 15, 2023.

17On or before Monday, May 15, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18Any documents which may be used by a party in cross examination of an opposing party's witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case coordinator.

19A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal's Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20A party who provides a witness' written evidence or expert witness statement 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 prior to the hearing that same is not part of their record.

21The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, May 15, 2023 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22All filings shall be electronic and, if requested by the Tribunal, also in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

23No 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.

This Member is not seized. So Orders the Tribunal.

SUMMARY OF DATES

DATE	EVENT
Monday, January 30, 2023	Parties to exchange lists of witnesses (names, disciplines, and intended order to be called)
Monday, February 27, 2023	Applicant shall provide copies of any revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports to the other Parties, if applicable
Monday, March 6, 2023	Expert witnesses in the same field shall have a meeting
Monday, March 13, 2023	Parties must prepare and file a Statement of Agreed Facts and Issues, if there is agreement
Monday, March 27, 2023	Witness Statements, expert reports, Participant Statements, and the written evidence of witnesses to be exchanged
Monday, April 24, 2023	Reply Witness Statements and the reply to written evidence of witnesses (if any) to be exchanged
Monday, May 15, 2023	Joint document book to be filed
Monday, May 15, 2023	Parties to exchange copies of visual evidence
Monday, May 15, 2023	Parties to file draft hearing plan with the OLT case coordinator
Wednesday, May 31, 2023	Hearing commences

Attachment 1

LIST OF PARTIES AND PARTICIPANTS

PARTIES

1. BJL Properties Inc. Mark Flowers and Jamie Cole Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, ON M5V 3C1 Email: markf@davieshowe.com and jamiec@davieshowe.com Tel: 416-977-7088 Fax: 416-977-8931

2. City of Toronto Mark Crawford and Michael Mahoney City of Toronto Legal Services Planning & Administrative Tribunal Law Section | 55 John Street, 26th Floor Toronto, ON M5V 3C6 Email: mark.crawford@toronto.ca and michael.mahoney@toronto.ca Tel: 416-392-8864 Fax: 416-397-5624

3. MPCT 49 Ontario Street LP and Whiterock 49 Ontario Street LP Joe Hoffman and Rodney Gill Goodmans LLP Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 Email: jhoffman@goodmans.ca and rgill@goodmans.ca Tel: 416 597-5168/416-597-4136 Fax: 416-979-1234

PARTICIPANT

1. Queen Ontario LP Liana Langley, Tricon Residential Email: llangley@triconresidential.com Tel: 416-990-6732

Attachment 2

ISSUES LIST

The identification of an issue on this list does not mean that all parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

CITY OF TORONTO

Planning Act

1. Does the proposed development have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including (d), (j) and (r)?

2. Would approval of the proposed development by the Tribunal have regard to the decision of City Council and the information and material that City Council considered in making its decision as required by Section 2.1 of the Planning Act?

Provincial Policy Statement (2020)

3. Is the proposed development consistent with the Provincial Policy Statement (2020), including policies 1.1.3.3, 1.7.1.a)-g), 2.6.3 and 4.6?

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

4. Does the proposed development conform to, and not conflict with, A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), including section 1.2.1 and policies 2.2.1.4, 2.2.2.3 and 5.2.5.6?

City of Toronto Official Plan

5. Does the proposed development conform with the policies of the City of Toronto Official Plan, as modified by Official Plan Amendments 479 (Public Realm) and 480 (Built Form) as approved by the Minister of Municipal Affairs and Housing, including the policies related to: a. Downtown: The Heart of Toronto (2.2.1); b. The Public Realm (3.1.1.1-3.1.1.7, 3.1.1.11-3.1.1.16, 3.1.1.18-3.1.1.20, 3.1.1.27); c. Built Form (3.1.2); d. Built Form – Building Types (3.1.3); e. Heritage Conservation (3.1.5.1-3.5.7, 3.5.1.10, 3.5.1.12, 3.5.1.14-3.5.1.17, 3.5.1.22-3.5.1.23, 3.5.1.25-3.5.1.29); f. Parks and Open Spaces (Section 3.2.3); g. Mixed Use Areas (4.5); h. Regeneration Areas (4.7); i. Height and/or Density Incentives (5.1.1); j. Secondary Plans: Policies for Local Growth Opportunities (5.2.1); k. Implementation Plans and Strategies for City-Building (5.3.2); and l. Interpretation (5.6)?

Downtown Secondary Plan

6. Does the proposed development conform with the policies of the Downtown Secondary Plan being Section 6, Chapter 41 of the Official Plan, including the policies related to Complete Communities (3.1-3.5), Directing Growth (4.1-4.2), Land Use and Economy (6.19-6.22, 6.25-6.26, 6.32-6.33), Parks and Public Realm (7.1, 7.3-7.6, 7.34-7.35, 7.39-7.43), Mobility (8.4 and 8.5), Built Form (9.1-9.11, 9.13-9.14, 9.17, 9.21-9.27, 9.29, 9.30-9.34), Making it Happen (14.1, 14.6), and Map 41-3?

King-Parliament Secondary Plan

7. Does the proposed development conform with the policies of the King-Parliament Secondary Plan (1996) being Chapter 6, Section 15 of the Official Plan, including the policies related to Major Objectives (2.2, 2.5-2.7), Urban Structure and Built Form (3.1.1-3.1.4, 3.2), Heritage (4.4) and Pedestrian Environment (5.1)?

8. Does the proposed development maintain the intent and purpose of the policies of the Council-adopted King-Parliament Secondary Plan (2021, OPA 525) being intended to replace the King-Parliament Secondary Plan (1996), including the policies related to Objectives (2.1-2.2, 2.4-2.5), Urban Structure (3.1-3.2, 3.5-3.6), Heritage (4.1), Parks and Public Realm (5.1-5.2), Old Town Policy Area (8.1-8.6), Map 15-2 Policy Areas,

Official Plan Amendment 352 and Tall Building Design Guidelines (2013)

9. Does the proposed development maintain the intent and purpose of Official Plan Amendment 352, Downtown Tall Building Setbacks, and relating Zoning By-law Amendments?

10. Does the proposed development maintain the intent and purpose of the applicable Tall Building Design Guidelines?

Other Design Guidelines

11. Does the development have appropriate regard to the applicable King-Parliament Urban Design Guidelines?

12. Does the development have appropriate regard to the applicable Growing Up: Planning for Children in New Vertical Communities Guidelines?

Site-Specific Issues

13. Does the proposed development represent good land use planning, heritage conservation and urban design, having regard to matters such as: a. The existing and planned context; b. The conservation of adjacent heritage resources; c. The appropriateness of the proposed built form, massing and scale, building setbacks and stepbacks, streetwall height, building height, density, and design; d. Establishing an appropriate built form relationship to the adjacent and abutting properties regarding the proposed setbacks, stepbacks, base building heights, overall building height and separation distances; e. The appropriateness of, improvements to and impacts on the public realm?

14. Does the proposed development ensure adequate access to or, as the case may be, limit and minimize the impact on, considerations such as overlook and privacy, shadow and loss of skyview and sunlight?

15. Does the proposed development establish appropriate relationships at grade, including provision of an appropriate pedestrian realm, streetscaping and contributions to public space?

16. Does the proposed development conform to the policies of the City of Toronto Official Plan and Chapter 415, Article III of the Toronto Municipal Code? Does the proposed development make an appropriate contribution to the area's public parkland needs?

17. Does the proposed development comply with the City of Toronto's Private Tree By-law and City Street Tree By-law, and does the proposed development provide sufficient soil volumes to support the proposed trees?

18. Does the proposed development provide a range of affordable housing options?

19. Does the proposed development provide adequate indoor and outdoor amenity space?

20. Has the proposed development provided an appropriate Travel Demand Management (TDM) Plan to accommodate the demands associated with the development?

21. Has the proposed development demonstrated that there is sufficient infrastructure capacity to accommodate the proposed development?

22. Is the form and content of the Zoning By-law Amendment appropriate?

23. Do the proposed development and Zoning By-law Amendment represent good planning and urban design, and is approval of the proposal in the public interest?

Conditions to OLT Order on Zoning By-law Amendment

[24] If the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied and the Tribunal receive confirmation from the City Solicitor that: a. the zoning by-law amendment be finalized, in a form and content acceptable to the City Solicitor and Chief Planner and Executive Director, City Planning, that implement the proposed development; b. the owner has provided for the withdrawal of its site-specific appeal of Official Plan Amendment 525, and shall not seek any party or participant status on the appeals; c. the owner has addressed all outstanding issues raised by Parks, Forestry and Recreation as they relate to the required parkland dedication, to the satisfaction of the General Manager, Parks, Forestry and Recreation and the City Solicitor; d. the owner has addressed outstanding issues in relation to transportation and has submitted a Transportation Demand Management plan, an access agreement for shared vehicle access and a loading agreement for shared loading facilities, to the satisfaction of the General Manager, Transportation Services; and e. the owner has addressed outstanding issues in relation to site servicing and has submitted a Functional Servicing and Stormwater Management Report, Hydrogeological and Geotechnical Reports, and any other related engineering reports and drawings, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and has agreed that the design and implementation of municipal infrastructure will be at the owner's sole cost and expense for any upgrades or improvements to City infrastructure identified in the approved Functional Servicing and Stormwater Management, Hydrogeological and/or Geotechnical Reports, with such improvements being secured to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services?

MPCT 49 ONTARIO STREET LP AND WHITEROCK 49 ONTARIO STREET LP

25Does the proposed development represent an appropriate built form relationship to the proposed mid-rise building on the adjacent 49 Ontario Street site?

26Should the proposed development provide for additional tower setbacks and stepbacks along the south property line?

27Should the south facing windows on the proposed development be located to ensure adequate privacy for potential future residents of the proposed developments at both the 102 Berkeley Street and 49 Ontario Street sites?

28Does the proposed development represent an appropriate relationship to the proposed park on the adjacent 49 Ontario Street site?

Attachment 3

ORDER OF EVIDENCE

1. BJL Properties Inc.
2. MPCT 49 Ontario Street LP and Whiterock 49 Ontario Street LP
3. City of Toronto
4. Reply of BJL Properties Inc., if any

Attachment 4

PURPOSE OF PROCEDURAL ORDER

Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek Party status in this proceeding, meet to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to Order following the conference. The Tribunal will hear submissions on the content of this procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Appeal Guide matching your appeal type and the Tribunal's Rules from the Tribunal, which are available on the Tribunal's website

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 Party, 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. Party 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, group, 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). 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 Party 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 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 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 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 wishes to address and the submission of the Participant on those issues; and a list of reports, if any, which the Participant wishes to refer to in their statement.

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 Party. (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 Party of opposite interest;
• re-examination by the Party presenting the witness;
• another order of examination mutually agreed among the Party or directed by the Tribunal.