Dundeal 212 King LP v. Toronto (City), 2022 CanLII 71603

ISSUE DATE: August 4, 2022 CASE NO.: OLT-22-002097

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

Applicant and Appellant: Dundeal 212 King LP, 214 King Holdings Limited and 220 KSW LP Subject: Request to amend the Official Plan – Failure of City of Toronto to adopt the requested amendment Existing Designation: Regeneration Areas Proposed Zoning: Site Specific (To be determined) Purpose: To permit an 80-storey mixed-use building with 569 purpose-built rental units Property Address: 212-220 King Street West Municipality: City of Toronto Municipality File No.: 20 227738 STE 10 OZ OLT Case No.: OLT-22-002097 OLT Lead Case No.: OLT-22-002097 OLT Case Name: Dundeal 212 King LP v. Toronto (City)

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

Applicant and Appellant: Dundeal 212 King LP, 214 King Holdings Limited and 220 KSW LP Subject: Application to amend Zoning By-law No. 438-86 – Refusal or neglect of City of Toronto to make a decision Existing Zoning: Reinvestment Area (RA) (Zoning By-law No. 438-86) Proposed Zoning: Site Specific Purpose: To permit an 80-storey mixed-use building with 569 purpose-built rental units Property Address/Description: 212-220 King Street West Municipality: City of Toronto Municipality File No.: 20 227738 STE 10 OZ OLT Case No.: OLT-22-002098 OLT Lead Case No.: OLT-22-002097

BEFORE: S. deBoer, MEMBER T.F. NG, MEMBER

Thursday, the 4th day of August, 2022

THESE MATTERS having come before the Tribunal for a Case Management Conference on May 20, 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 April 24, 2023 at 10:00 a.m. at: https://global.gotomeeting.com/join/656004293.

3. The Parties’ initial estimation for the length of the hearing is 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. See Attachment 5 for the meaning of these terms.

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 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.

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.

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 21, 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 2, 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 13, 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 6, 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 6, 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 20, 2023, the Parties may provide to all other Parties a written response to any written evidence.

16. On or before March 20, 2023, the Parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before April 4, 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. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 14, 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.

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 24, 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 Members are not seized. So orders the Tribunal.

BEFORE:

Name of Member: Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1 SUMMARY OF DATES

DATE	EVENT
January 24, 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 13, 2023	Last date to challenge identification of expert witness
February 21, 2023	Agreed Statement of Facts
March 6, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
March 20, 2023	Exchange of Reply Witness Statements (if any)
March 20, 2023	Parties to confirm with the Tribunal if all the reserved hearing dates are still required.
April 4, 2023	Exchange of visual evidence (if any)
April 14, 2023	Preliminary Hearing Plan filed with the Tribunal
April 14, 2023	Finalize Joint Document Book
April 24, 2023	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

Dundeal 212 King LP, 214 King Holdings Ltd. and 220 KSW LP David Bronskill Goodmans LLP dbronskill@goodmans.ca

City of Toronto Mark Crawford Solicitor, City of Toronto Legal Services mark.crawford@toronto.ca

BentallGreenOak Adrian Frank Devine Park LLP adrian.frank@devinepark.com

PARTICIPANTS

Tracy Sutherland Sutherland.trace@gmail.com

200 King Street Holdings Inc. mschuman@mccarthy.ca/cmacdoug@mccarthy.ca

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

Issue 1 – Height. Is the development's proposed height appropriate, and does it represent good planning? In particular: a. Does the proposed height conform with Official Plan policies: 3.1.2 and 3.1.3 (Built Form), and 4.7 (Regeneration Areas)? b. Does the proposed height conform with the Downtown Plan, policy 6.23 (Mixed Use Areas 1), 9.8.1 9.8.2. 9.8.3 and 9.9 (Improving the Public Realm)? c. Does the proposed height conform to the King-Spadina Secondary Plan, policies 3.6 (General Built Form Principles)? d. Does the proposed height contribute to an appropriate step down in height from Height Transition Zone A to height Transition Zone B as set out in the King Spadina Secondary Plan (2020) policy 6.6.1 (Transition)? e. Does the proposed height have appropriate regard to Policy 6.8 (East Precinct) of the King Spadina Secondary plan (2020) for development within the East Precinct? Particularly policy 6.8.3 ensuring that building heights in the East precinct shall be subordinate to the buildings heights of the Financial District north of Front Street. f. Does the proposed height have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines? g. Is the proposed built form appropriate within this area of the East Precinct within the King Spadina Secondary Plan (2020)?

Issue 2 – Massing. Is the development's proposed massing, including setbacks, step backs, scale, separation distances, streetwall heights, density, and design, represent good planning? In particular: a. Does the proposed massing conform with Official Plan policies: 3.1.1 (Public Realm), 3.1.2 and 3.1.3 (Built Form) and 4.7 (Regeneration Areas)? b. Does the proposed massing conform with the Downtown Plan including policies 9.22 to 9.27 (Transition)? c. Do the proposed setbacks and step backs have appropriate regard to the policies of the King-Spadina Secondary Plan (1996) policies 3.6 (Built Form Principles)? d. Does the proposed massing conform with the King-Spadina Secondary Plan including policies 2 (Vision) and do the proposed setbacks and step backs have appropriate regard to the policies of the King-Spadina Secondary Plan (2020) for development within the East Precinct, policy 6.8 (East Precinct)? e. Does the massing of the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines? f. Does the proposed development represent over-development of the site?

Issue 3 – Streetscape & Public Realm. Is the proposed development's relationship with the public realm and resulting streetscape appropriate, and does it represent good planning? In particular: a. Does it conform with Official Plan policies 3.1.1 (Public Realm), 3.1.2 and 3.1.3 (Built Form), and 4.7 (Regeneration Areas)? b. Does it conform with the Downtown Plan? c. Does it conform with the King-Spadina Secondary Plan? d. Does the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines?

Issue 4 – Shadow Impacts. Does the proposed developments shadow impact on Victoria Memorial Square represent good planning? In particular: a. Does it conform with Official Plan policies: 3.1.1 (Public Realm), 3.1.2 and 3.1.3 (Built Form), and 4.7 (Regeneration Areas)? b. Does it conform with the Downtown Plan, policy 9.17 (Creating a Comfortable Microclimate)? c. Does it conform with the King-Spadina Secondary Plan (1996) policy 3.6 (General Built Form Principles)? d. Does it conform with the King-Spadina Secondary Plan (2020) policy 6.4 (Creating a Comfortable Microclimate)? e. Does the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines?

Issue 5 – Wind Impacts. Does the proposed developments wind impacts on the public realm represent good planning? In particular: a. Does it conform with Official Plan policies: 3.1.1 (Public Realm), 3.1.2 and 3.1.3 (Built Form)? b. Does it conform with the Downtown Plan? c. Does the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines?

Issue 6 – Heritage Conservation a. Does the development conform to Official Plan policies 3.15 (Heritage Conservation)? In particular in relation to the impacts of the development on the existing heritage building at 212, 214 and 220 King Street West. b. Does the development conform to the King-Spadina Secondary Plan (1996) policies 2 (Major Objectives) and 4 (Heritage)? In particular in relation to the impacts of the development on the existing heritage building at 212, 214 and 220 King Street West. c. Does the development conform to the King-Spadina Secondary Plan (2020) policies 2 (Vision) and 3 (Major Objectives)? In particular in relation to the impacts of the development on the existing heritage building at 212, 214 and 220 King Street West.

Issue 7 - Mid-Block Connection a. Does the proposed mid-block connection conform to King-Spadina Secondary Plan (2020) policies 4.10, 4.11, and 4.13.

Issue 8 - Housing a. Does the development conform to Downtown Plan policies 11 (Housing) with respect to the sizes of proposed dwelling units.

Issue 9 – Servicing a. Has the applicant demonstrated that adequate municipal services are in place to support the development, including but not limited to the availability of adequate sanitary sewage capacity and the implementation of appropriate stormwater management measures and groundwater management measures?

Issue 10 – Loading a. Has the applicant demonstrated that adequate loading is proposed to support the development?

Issue 11 – Implementation. In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the City Solicitor has indicated that the following conditions have been satisfied: a. The proposed Zoning By-law Amendments are in a form and content satisfactory to the Chief Planner and Executive Director, City Planning and City Solicitor; and b. The owner has addressed outstanding issues in relation to site servicing and has submitted a revised Functional Servicing and Stormwater Management Report and a detailed Hydrogeological providing confirmation of water, sanitary and stormwater capacity to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and entered into and registered a financially secured agreement satisfactory to the Chief Engineer and Executive Director, Engineering and Construction Services to construct, provide, make operational, and warrant any necessary upgrades to existing services and facilities or new services and facilities.

LEGISLATIVE & POLICY TESTS

Issue 12 – Policy Tests. Does the proposed development satisfy the applicable legislative and policy tests? Specifically: a. Does the proposed development have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including subsections 2 (f), (h), (p), and (r)? b. Would a decision to approve the proposed development be consistent with the Provincial Policy Statement as required by Section 3(5) of the Planning Act? c. Would a decision to approve the proposed development conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe as required by Section 3(5) of the Planning Act? d. Does the proposed development conform with the applicable policies of the City of Toronto Official Plan, Downtown Plan, and King-Spadina Secondary Plan? e. Would approval of the proposed development and Zoning By-law Amendments represent good planning and good urban design? Would it be in the public interest?

BentallGreenOak Issues List

Issue 1 – Massing. Is the development's proposed massing, including tower siting, orientation, setbacks, step backs, scale, separation distances, streetwall heights, density, and design, represent good planning? In particular: a. Does the proposed massing conform with Official Plan policies: 3.1.2 and 3.1.3 (Built Form), and 5.2.3 (Implementation Plans and Strategies For City-Building)? b. Does the proposed massing conform with the Downtown Plan including policies 6.18 to 6.22 (Mixed Use Areas), 9.1 (Built Form), 9.11 to 9.16 (Physical Determinants of Intensity and Scale), 9.22 to 9.27 (Transition)? c. Do the proposed setbacks, step backs, massing and orientation have appropriate regard to the policies of the King-Spadina Secondary Plan (1996) policies 3.6 (Built Form Principles)? d. Does the proposed massing conform with the King-Spadina Secondary Plan including policies 2 (Vision), and do the proposed setbacks, step backs, massing and orientation have appropriate regard to the policies of the King-Spadina Secondary Plan (2020) for development within the East Precinct, policy 6.8 (East Precinct)? e. Does the proposed massing and orientation of the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines, including Sections 1.4 (Sunlight and Sky View), 3.2.1 (Floor Plate Size and Shape), 3.2.2 (Tower Placement), 3.2.3 (Separation Distances), 3.2.4 (Tower Orientation & Articulation)? f. Would the proposed design better address the policies and guidelines listed above: a. By rotating the tower 90 degrees, to orient and present a slimmer façade to the tower approved for the adjacent property to the north at 100 Simcoe Street? b. By further off-setting the tower centreline from the tower at 100 Simcoe?

Issue 2 – Connectivity and Accessibility. Does the proposed development adequately address matters of connectivity and accessibility, and in particular: Does the proposal conform with Official Plan policies: 2.2.1 (Connectivity and Accessibility?

ATTACHMENT 4 ORDER OF EVIDENCE

1. Dundeal 212 King LP, 214 King Holdings Ltd. and 220 KSW LP
2. City of Toronto
3. BentallGreenOak
4. 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.