Ontario Land Tribunal

Issue Date: July 13, 2022 Case No.: OLT-21-001666

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

Applicant and Appellant: Cosburn Developments Limited Subject: Application to amend Zoning By-law No. 6752 - Refusal or neglect of City of Toronto to make a decision Existing Zoning: R3A Proposed Zoning: Site Specific (To be determined) Purpose: To permit a residential apartment building which steps up to a height of 15 storeys Property Address: 5-19 Cosburn Avenue and 8-40 Gowan Avenue Municipality: City of Toronto Approval Authority File No.: 20 232897 STE 14 OZ OLT Case No.: OLT-21-001666 OLT Lead Case No.: OLT-21-001666 OLT Case Name: Cosburn Developments Limited v. Toronto (City)

Before: Carmine Tucci, Member Wednesday, the 13th day of July, 2022

THESE MATTERS having come before the Tribunal for a Case Management Conference on February 18, 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

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 October 24, 2022 at 10:00 a.m at https://meet.goto.com/687587165

3. The length of the hearing will be 5 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. 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 April 27, 2022. The applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

10. A Party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other Parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before August 2, 2022 For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and must include a copy of the witness's curriculum vitae and Acknowledgment of Expert's Duty Form. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal's Rules and notice of same must be served on the other Parties on or before August 5, 2022.

11. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the Parties and the Tribunal on or before August 10, 2022.

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in Section 15. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert's testimony. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal's Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other Parties at the same as the delivery of expert witness statements, as in Section 15.

13. A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before August 29, 2022, or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.

14. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the Party calling them must file a brief outline of the expert's evidence, as in Section 15.

15. On or before August 29, 2022, the Parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other Parties and to the OLT case co-ordinator in accordance with Section 23 below.

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

17. On or before October 4, 2022, the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal's Rule 10, which requires that the moving Party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion or unless otherwise on a timeline agreed to by the parties.

19. A Party who provides a witness' written evidence to the other Parties must have the witness attend the hearing to give oral evidence, unless the Party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

20. On or before October 14, 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 October 4, 2022. One hard copy of the Joint Document Book shall be filed with the Tribunal as soon as possible in advance of the hearing. All Parties must be served by the appellant with the Joint Document Book in paper or an accessible electronic format in accordance with Section 23.

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

23. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal shall be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal's Video Hearing Guide, dated July 2, 2020, or as may be amended. Section 23 applies regardless if the hearing event is in-person or electronic.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal's Rule 17 applies to such requests.

25. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

26. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is not seized.

So orders the Tribunal.

BEFORE: Name of Member: Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
April 27, 2022	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
August 2, 2022	Exchange of witness lists (names, disciplines and order to be called)
August 5, 2022	Last date to challenge identification of expert witness
August 10, 2022	Experts Meeting and Agreed Statement of Facts
August 29, 2022	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
September 12, 2022	Exchange of Reply Witness Statements (if any)
October 4, 2022	Exchange of visual evidence (if any) and preparation of Joint Document Book
October 14, 2022	Final Work Plan filed with the Tribunal
October 24, 2022	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. Cosburn Developments Limited David Bronskill and Zachary Fleisher, Goodmans LLP dbronskill@goodmans.ca / zfleisher@goodmans.ca 416.597.4299 / 416.597.4286

2. City of Toronto Jason Davidson and Nathan Muscat, City of Toronto Legal Services Jason.Davidson@toronto.ca / Nathan.Muscat@toronto.ca 416.392.4835 / 416.397.5475

ATTACHMENT 3

ISSUES LIST

CITY OF TORONTO ISSUES

Planning Act

1. Are the proposed development, and the Zoning By-law Amendment, consistent with the purposes of the Planning Act as set out in Section 1.1, including paragraphs (c) and (f)?

2. Does the proposed development and the Zoning By-law Amendment have regard for the matters of provincial interest as set out in Section 2 of the Planning Act, including Section 2 (f), (h), (j), (p), (q) and (r)?

3. Would the approval of the proposed development and the Zoning By-law Amendment have regard to the decision of City Council as required by Section 2.1 of the Planning Act?

Provincial Policy Statement (2020) and Growth Plan (2020)

4. Are the proposed development and the Zoning By-law Amendments consistent with the Provincial Policy Statement (2020) pursuant to Sections 2 and 3 of the Planning Act?

5. Would a decision to approved the proposed development and the Zoning By-law Amendment be consistent with the Provincial Policy Statement as required by Section 3(5) of the Planning Act, including 1.1.1, 1.1.3.3, .1.1.3.4, 1.2.1, 1.4.3, 1.5.1, 1.8.1, and 4.6

6. Does the proposed development, and Zoning By-law Amendments conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) as required by Section 3(5) of the Planning Act including 1.2.1, 2.2.1, 2.2.4, 2.2.6.1, and 2.2.6.3

City of Toronto Official Plan

7. Is the proposed development and the Zoning By-law Amendment appropriate and does the proposed development conform to the policies of the City of Toronto Official Plan including Sections 2 (i.e. Shaping the City and Healthy Neighbourhoods), Sections 3 (i.e. Public Realm, Built Form, Housing and Parks and Open Spaces), Sections 4 (i.e. Apartment Neighbourhoods, Parks and Open Space Areas) and Sections 5 (Implementation)?

2.3.1 Healthy Neighbourhoods 2.3.2 Toronto's Green Space System and Waterfront 2.4 Bringing the City Together: A progressive Agenda of Transportation Change 3.1.1 The Public Realm (as amended by OPA 479) 3.1.2 Built Form (as amended by OPA 480) 3.1.3 Built Form – Building Types 3.2.1 Housing 3.2.2 Community Services and Facilities 3.2.3 Parks and Open Spaces 4.2 Apartment Neighbourhoods 4.3 Parks and Open Space Areas 5.1.1 Height and/or Density Incentives

Guidelines

8. Does the proposed development appropriately address Council-approved City of Toronto Design Guidelines, including the City-wide Tall Building Design Guidelines and the Growing Up: Planning for Children in New Vertical Communities?

9. Do the proposed development and Zoning By-law Amendments provide for an appropriate unit mix, of which at least 10 percent of all proposed units would have at least three bedrooms?

10. Do the proposed development and Zoning By-law Amendments adequately support the objectives of the Growing-Up Guidelines with respect to the minimum unit size requirements for two-bedroom and three-bedroom units in order to accommodate within the new development a broad range of households, including families with children?

Built Form

12. Are the built form type, height, density, massing, location, placement and scale of the proposed development appropriate, given principles of good planning and urban design; its relationship to the surrounding context; transition; shadow impacts; the public realm; the relevant policy documents; and the further issues more particularly set out below?

13. Does the proposed development fit appropriately within the existing and planned built form context, with regard to its setbacks, separation distances, height, density, building base height, floorplate size and stepbacks?

14. Does the proposed development establish appropriate relationships at grade, including provision of an appropriate pedestrian realm, setbacks to the proposed on-site public park, streetscaping and contributions to public space?

15. Does the proposed development appropriately limit shadow and uncomfortable wind conditions on the public realm and neighbouring streets to preserve their utility in conformity with the Official Plan?

16. Does the proposed development represent good land use planning and good urban design having regard to the height, mass, setbacks, separation distance, scale and density of the proposed, including their impact on the following matters, without limiting the generality of the foregoing: i. fit with the existing and planned built form context; ii. appropriate base building height; iii. appropriate building setbacks in relation to the scale and character of the surrounding areas; iv. negative shadow and wind impacts on neighbouring properties; v. sky view and sunlight penetration into the public realm, including streetscape? vi. loss of privacy in adjacent buildings

Amenity Space

18. Does the proposed development provide for appropriate indoor and outdoor amenity space?

Parkland

21. Does the proposed development provide for an appropriate parkland dedication size, location, and configuration in accordance with the City of Toronto Municipal Code Chapter 415, Article III and the City of Toronto Official Plan to the satisfaction of the General Manager, Parks, Forestry and Recreation?

22. Does the proposed development provide appropriate building setbacks from the park to ensure maximum park utility, that building maintenance will not encroach into the park, and that the building will achieve the Ontario Building Code fire separation distances on the development site?

Infrastructure and Transportation

22. Does the proposed development satisfy infrastructure and transportation issues including, confirmation of water, sanitary and stormwater capacity in the area?

ATTACHMENT 4

ORDER OF EVIDENCE

1. Cosburn Developments Limited
2. City of Toronto
3. Cosburn Developments Limited in reply (if any)

ATTACHMENT 5

Meaning of Terms Used in the Procedural Order

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written 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.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person's background, experience and interest in the matter; a list of the issues which he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness' opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert's duty.

A participant statement is a short written outline of the person's or group's background, experience and interest in the matter; a statement of the participant's position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness' evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.