Tuxedo Court GP Ltd. v. Toronto (City), 2022 CanLII 73892

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 9, 2022

CASE NO.: OLT-22-002154

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

Applicant/Appellant: Tuxedo Court GP Ltd.

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

Description: to permit a two building, 644-unit mixed use development

Reference Number: 21 149511 ESC 24 OZ

Property Address: 40-42 Tuxedo Court

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-002154

OLT Lead Case No: OLT-22-002154

OLT Case Name: Tuxedo Court GP Ltd. v. Toronto (City.)

BEFORE:

S. BRAUN MEMBER

Tuesday, the 9th day of August, 2022

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, July 10, 2023 at 10:00 a.m. by Videoconference at https://global.gotomeeting.com/join/638422541. The length of the hearing will be 10 days.

“Euken Lui”

EUKEN LUI ACTING 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: CASE NO(S).: OLT-22-002154

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

Appellant: Tuxedo Court GP Ltd.

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

Description: To permit a two building, 644-unit mixed use development

Reference Number: 21 149511 ESC 24 OZ

Property Address/Description: 40-42 Tuxedo Court

Municipality: City of Toronto

OLT Case No.: OLT-22-002154

OLT Lead Case No.: OLT-22-002154

OLT Case Name: Tuxedo Court GP Ltd. v. Toronto (City)

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

• The video hearing will begin on July 10, 2023 at 10:00 a.m at https://global.gotomeeting.com/join/638422541.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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

• 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 12, 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.
• 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 March 10, 2023 and in accordance with Section 23 below. 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 April 7, 2023
• 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 April 14, 2023
• 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.
• A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before May 12, 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.
• 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.
• On or before May 12, 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 OLT case co-ordinator in accordance with Section 23 below.
• On or before May 26, 2023, the Parties may provide to all other Parties a written response to any written evidence.
• On or before June 5, 2023, the Parties shall confirm with the Tribunal is all the reserved hearing dates are still required.
• On or before June 9, 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.
• 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.
• 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.
• The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before June 30, 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.
• The Parties shall prepare a Joint Document Book on or before June 23, 2023. 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.
• 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.
• 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.
• 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.
• 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
March 10, 2023	Exchange of witness lists (names, disciplines and order to be called)
April 7, 2023	Last date to challenge identification of expert witness
April 14, 2023	Experts Meeting and Agreed Statement of Facts
May 12, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
May 26, 2023	Exchange of Reply Witness Statements (if any)
June 5, 2023	Parties to confirm with the Tribunal if all the reserved hearing dates are still required
June 9, 2023	Exchange of visual evidence (if any)
June 23, 2023	Preparation of Joint Document Book
June 30, 2023	Hearing Plan filed with the Tribunal
July 10, 2023	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. Tuxedo Court LP 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, City of Toronto Legal Services Jason.Davidson@toronto.ca 416.392.8165

3. Toronto and Region Conservation Authority Barbara Montgomery, TRCA Legal Counsel Barbara.Montgomery@trca.ca 416.661.6600 ext. 5682

ATTACHMENT 3

ISSUES LIST

CITY OF TORONTO ISSUES

Issue 1: Land Use. Does the proposal support the achievement of complete communities? Is the proposed land use appropriate and does it represent good planning? In particular:

1. Is the proposal consistent with the Growth Plan, in particular policies 1.2.1 (Guiding Principles) and 2.2.1.4 (Complete Communities)?
2. Does the proposal conform with the City of Toronto Official Plan, in particular polices 3.5.3 (The Future of Retailing) and 4.5.2 (Development Criteria in Mixed Use Areas)?

Issue 2 – Built-form. Is the development's proposed height appropriate, and does it represent good planning? Is the development's proposed massing, including setbacks, stepbacks, scale, separation distances, density, footprint; amenity space, site organization, impact, and design appropriate and does it represent good planning? In particular:

1. Does the proposal conform with the City of Toronto Official Plan, particularly polices 3.1.2 (Built Form, including 3.1.2.10 on amenity spaces), 3.1.3 (Built Form – Building Types), and 4.5.2 (Development Criteria in Mixed Use Areas)?
2. Does the proposal conform with SASP 322 policies? Does the proposal meet the intent of the Markham-Ellesmere Revitalization Study Urban Design Guidelines and Conceptual Master Plan, particularly guideline 2.0 (Public Realm Guidelines and guideline 3.0 (Site Development and Built Form Guidelines)?
3. Does the proposal meet the intent of City of Toronto Tall Building Design Guidelines, particularly Guidelines 1.4 (Sunlight and Sky View), 3.2.2 (Tower Placement) and 3.2.3 (Separation Distances)?
4. Does the proposed development represent over-development of the site?

Issue 3 – Housing. Does the proposal appropriately address the existing rental apartment building on site? Does the proposal create an adverse condition for residents in the existing rental apartment building?

1. Does the proposal conform with the City of Toronto Official Plan, in particular policy 3.2.1.5 (Housing)?
2. Does the proposal conform with SASP 322, in terms of renewal of the existing rental apartment building?
3. Does the proposed mix of unit types have appropriate regard to Official Plan Policy 3.2.1 which states that a full range of housing will be provided and maintained to meet the needs of current and future residents and meet the intent of the City of Toronto Growing Up: Planning for Children in New Vertical Communities Guidelines?

Issue 4 – Public Realm. Does the proposal appropriately address the public realm elements including the ravine, pedestrian/cycling connections, Public Street (Tuxedo Court extension), POPS, and public art?

1. Does the proposal conform with City of Toronto Official Plan, in particular policy 3.1.1 (Public Realm) and 3.4 (The Natural Environment)?
2. Does the proposal confirm with the Markham Ellesmere Urban Design Guidelines and Conceptual Master Plan, particularly guideline 2.0 (Public Realm Guidelines)?

Issue 5 - Infrastructure/Servicing Capacity. Is there sufficient infrastructure and servicing capacity to accommodate the proposed development and does it represent good planning?

Issue 6 – Policy Tests. Does the proposed development satisfy the applicable legislative and policy tests? In particular:

1. 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), (j), (p), and (r)?
2. 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, including 1.1.1, 1.1.3.3, .1.1.3.4, 1.2.1, 1.4.3, 1.5.1, 1.6, 1.71, 1.8.1, and 4.6?
3. 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? 1.2.1, 2.2.1, 2.2.6.1, 2.2.6.3
4. Does the proposed development conform with the applicable policies of the City of Toronto Official Plan, including the Public Realm (3.1.1), Built Form (3.1.2, 3.1.3), Housing (3.2.1), 3.2.3 (Parks and OS), Mixed Use Areas (4.5), and The Natural Environment (3.4)?
5. 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?

Issue 7 – Conditions. In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied:

1. the final form and content of the draft Zoning By-laws to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning, which is to include the following;
   1. Securing the existing rental dwelling units, Construction Mitigation and Tenant Communication Plan, needed improvements to the existing residential rental building, and other rental matters as required to conform with Section 3.2.1.5 of the Official Plan, to the satisfaction of the Chief Planner and Executive Director.
   2. the owner has addressed the major 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;
   3. Transportation Services has confirmed that the proposed transportation impact, parking and loading are acceptable;
   4. the owner has addressed the comments from the TRCA; and
   5. where applicable community benefits and other matters in support of the development are secured to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor.

TORONTO AND REGION CONSERVATION AUTHORITY ISSUES

1. Is the proposed amendment consistent with Sections 2.1 (Natural Features) and Section 3.1 (Natural Hazards) of the Provincial Policy Statement, 2020?
2. Is the proposed amendment in conformity with the Natural Heritage System policies of the Toronto Official Plan?
3. Have all woodlands features and all slope/erosion hazards been appropriately delineated and protected, with all applicable buffers applied?
4. Does the proposed ZBA demonstrate that all future building maintenance will be accommodated within the proposed property limits?
5. Has a minimum 10-metre setback been provided for the proposed building (above and below grade) measured inland from the stable top of bank?
6. Does the Zoning By-law Amendment identify acceptable buffers within an Open Space block, and are appropriate Zoning By-law categories assigned to the block?
7. Are the natural heritage features, natural hazards and buffer block appropriately identified for conveyance to a public agency for long-term preservation?
8. Has the appellant submitted, or committed to submit as part of the Zoning By-law Amendment and site plan approval, a Geotechnical Slope Stability Assessment?

ATTACHMENT 4

ORDER OF EVIDENCE

1. Tuxedo Court LP
2. City of Toronto
3. Toronto and Region Conservation Authority
4. Tuxedo Court LP 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.