Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 07, 2022

CASE NO(S).: OLT-22-001998 OLT-22-001999

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

Applicant and Appellant: Scardred 7 Company Limited Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the development of an 11-storey mixed-use residential building containing 450 units designed in a U-shaped tier building that ranges in height from 2-storeys to 11-storeys Reference Number: PLAN 21 120023 Property Address: 4038 & 4052 Highway 7 East Municipality/UT: City of Markham/ Regional Municipality of York OLT Case No.: OLT-22-001998 OLT Lead Case No.: OLT-22-001998 OLT Case Name: Scardred 7 Company Limited v. Markham (City)

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

Applicant/Appellant: Scardred 7 Company Limited v. Markham (City) Subject: Application to amend the Zoning By-law – Neglect to make a decision Description: To permit the development of an 11-storey mixed-use residential building containing 450 units designed in a U-shaped tier building that ranges in height from 2-storeys to 11-storeys Reference Number: PLAN 21 120023 Property Address: 4038 & 4052 Highway 7 East Municipality/UT: City of Markham/ Regional Municipality of York OLT Case No.: OLT-22-001999 OLT Lead Case No.: OLT-22-001998

Heard: August 11, 2022, by video hearing

APPEARANCES:

Parties	Counsel*/Representative
Scardred 7 Company Limited	Jeffery Streisfield*
City of Markham	Piper Morley*, Megan Cheung-Mader*
Unionville Ratepayers Association	Michael Gannon

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON AUGUST 11, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened the second Case Management Conference ("CMC") for the above noted matter. Scardred 7 Company Limited ("Applicant") has filed an appeal against the City of Markham ("City") for failing to make a decision for an Official Plan Amendment pursuant to s. 22(7) and a Zoning By-law Amendment pursuant to s. 34 (11) of the Planning Act. The property is known municipally as 4038 and 4052 Highway 7 East in the City of Markham ("subject property"). The purpose of this CMC is to review a draft Procedural Order ("PO") and schedule a Merits Hearing with respect to this matter.

2The effect of the two planning instruments under appeal is to allow a mixed-use development with an increased height and density on the subject property. Presently existing on the subject property is a sales office, a one-story commercial building, and a surface parking lot.

3There is some question with respect to the party status of the Unionville Ratepayers Association ("URA") represented by Michael Gannon. The Tribunal is asked to reconfirm the status the URA as part of this CMC's proceedings. The Tribunal agrees.

4Parties are represented as noted above at the CMC, but the participants were not in attendance.

5Mr. Streisfield, on behalf of the Applicant, provided background information with respect to the application for the benefit of the Tribunal and the Parties. The Applicant on July 12, 2022 submitted to the City and all Parties revised plans for the subject property. He noted that the footprint of the proposed building is unchanged, but the revised plans show a 12 storey mixed-use building with a total of 545 dwelling units. The proposal provides a transition of heights from the maximum 12 storeys to two storeys at the northern end of the subject property.

6Mr. Streisfield identified that the subject property is surrounded by four public streets and is located in a recent draft Plan of Subdivision. The proposed mixed-use building is located on the southern portion of the Applicants land holdings which is identified as Block 21 in this existing draft Plan of Subdivision.

7Mr. Streisfield provided to the Tribunal a draft PO, that is of sufficient detail to review at this CMC. Mr. Streisfeild described the salient changes that have been made to the PO. He also advised that the Applicant has provided a series of new and updated studies in support of the July 2021 revised plans. A draft Official Plan Amendment and a Zoning By-law Amendment are part of the resubmission package.

8Mr. Streisfield stated that the Applicant will be working with the City as staff reviews and comments on the material included as part of the resubmission. The Tribunal reminded all parties that Tribunal-led mediation may be requested at any time during the review process at their convenience.

9The parties consented to the content of the PO and requested that the Tribunal schedule a five day Merits Hearing.

TRIBUNAL DISPOSITION

10The Tribunal is prepared to schedule a five day Merits Hearing commencing on Monday, May 1, 2023 at 10 a.m.

11The Tribunal approves the draft PO which will come into full force and effect upon decision issuance. The approved PO is Attachment 1 to this decision.

HEARING TECHNICAL DETAILS

12A five day Merits Hearing will convene on Monday, May 1 to Friday, May 5, 2023, by video hearing at 10 a.m.

13Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/344779885

Access code: 344-779-885

14Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available at: https://app.gotomeeting.com/home.html

15Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889 The access code is 344-779-885.

16Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal's Case Coordinator having carriage of this case.

INTERIM ORDER

17Accordingly, the Tribunal Orders:

a. A five day Merits Hearing is to convene on Monday, May 1, 2023.

b. the Unionville Ratepayers Association is granted party status to this proceeding; and

c. the Procedural Order found in Attachment 1 is approved and is in full force and effect.

18No further notice will be given.

19The Member is not seized.

"Bryan W. Tuckey"

BRYAN W. TUCKEY

MEMBER

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.

ATTACHMENT 1

Procedural Order

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

Applicant and Appellant: Scardred 7 Company Limited Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the development of an 11-storey mixed-use residential building containing 450 units designed in a U-shaped tier building that ranges in height from 2-storeys to 11-storeys Reference Number: PLAN 21 120023 Property Address: 4038 & 4052 Highway 7 East Municipality/UT: City of Markham/ Regional Municipality of York OLT Case No.: OLT-22-001998 OLT Lead Case No.: OLT-22-001998 OLT Case Name: Scardred 7 Company Limited v. Markham (City)

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

Applicant/Appellant: Scardred 7 Company Limited Subject: Application to amend the Zoning By-law – Neglect to make a decision Description: To permit the development of an 11-storey mixed-use Residential building containing 450 units designed in a U-shaped tier building that ranges in height from 2-storeys to 11-storeys Reference Number: PLAN 21 120023 Property Address: 4038 & 4052 Highway 7 East Municipality/UT: City of Markham/ Regional Municipality of York OLT Case No.: OLT-22-001999 OLT Lead Case No.: OLT-22-001998

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

1. The video hearing will begin on Monday, May 1, 2023 at 10:00 a.m. Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/344779885

Access code: 344-779-885

2. The parties' initial estimation for the length of the hearing is 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.

3. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

4. The issues are set out in the Issues List attached as Attachment 2. The issues are subject to the Note at the top of Attachment 2. 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.

5. The order of evidence shall be as set out 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.

6. 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.

7. 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

8. 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 November 14, 2022_the date set out in Attachment 4__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 prepared to be qualified.

9. Expert witnesses in the same field shall have a meeting on or before January 9, 2023_the date set out in Attachment 4 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts' meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before January 30, 2023 the date set out in Attachment 4.

10. 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 paragraph 13 below. 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.

11. 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 paragraph 13 below. 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.

12. On or before February 17, 2023_the date set out in Attachment 4 the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

13. On or before February 17, 2023_the date set out in Attachment 4 participant shall provide copies of their written participant statement to the other parties 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.

14. On or before March 24, 2023_the date set out in Attachment 4, 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.

15. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before March 17, 2023 after the evidence is received and in accordance with paragraph 22 below.

16. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 24, 2023 as set out in Attachment 4..

17. A 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.

18. A party who provides written evidence of a witness 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.

19. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 28, 2023 the date set out in Attachment 4_ with a proposed schedule for the hearing that identifies, at 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.

20. 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 August 31, 2022. The applicant acknowledges that any revisions to the proposal after that date, which revisions do not narrow or fully settle issue(s) in the appeal, may be grounds for a request to adjourn the hearing.

21. All filings shall be submitted electronically. 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.

22. 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.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

Parties

Scarded 7 Company Limited (Applicant/Appellant) 4038 & 4052 Highway 7 East Jeffrey E. Streisfield Land Law ^TM 110 Blueski George Crescent Blue Mountain, ON, L9Y 0S9 Tel: (416) 460-2518 Email: jeffrey@landplanlaw.com

City of Markham Maggie Cheung-Madar Assistant City Solicitor | Legal Services City of Markham 101 Town Centre Boulevard. Markham, Ontario L3R 9W3 T:905-470-3583 | F:905-479-7764 Email: mcheung-madar@markham.ca

Piper Morley BLG Bay Adelaide Centre, East Tower 22 Adelaide Street West Suite 3400 Toronto, ON, Canada M5H 4E3 PMorley@blg.com 416.367.6591

Additional Parties and Participants

Unionville Residents Association Att: Michael Gannon mtgannon@rogers.com 647-868-3274

Participant Li, Brian and Suzanne __Ferrah Street, Markham 647-296-8468 Brisuz081509@hotmail.com

Attachment 2

Note: The identification of an issue on this Issues List does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant will be a matter of evidence and argument at the hearing.

Issues Raised by the Respective Parties

City of Markham

1. Does the Proposed Development have regard for matters of Provincial Interest as set out in the Planning Act, in particular policies: 2 (h), (j), (k), (p), (q), and (r)?
2. Is the Proposed Development consistent with the Provincial Policy Statement, 2020, in particular policies: 1.1.1 (b) and (e), and 1.1.3.2, 1.3.1(d), 1.4.3?
3. Does the Proposed Development conform to A Place to Growth: Growth plan for the Greater Golden Horseshoe, in particular policies: 2.2.1.4, 2.2.5.15, 2.2.6.1, and 2.2.6.2?
4. Does the Proposed Development conform to the Regional Municipality of York Official Plan, 2010, in particular policies: 3.5.4; 3.5.6; 3.5.8; 3.5.9; 3.5.10, 4.2, 4.2.1, 4.2,4, 4.2.6, 4.4, 4.4.1, 4.4.4, 4.4.8, and 5.4.5? {Note: The proposed development does not require an amendment to the YROP}
5. Does the Proposed Development conform to and/or have appropriate regard for the City of Markham Official Plan, 2014, in particular policies: 1.4.3 d); 2.2.2.1, 2.4.9; 4.1.1.2; 4.1.3; 4.1.3.2; 4.1.3.3; 4.1.3.4; 4.1.3.5; 8.3.1, 8.3.1.1, 8.3.1.2, 8.3.3.1, 8.3.3.2, 8.3.3.4, 8.3.3.5, 8.3.4, 8.3.4.1, 8.3.4.4, and 8.3.4.5?
6. Does the Proposed Development provide adequate transition in height and massing to ensure compatibility with the surrounding and existing planned context including the Buttonville Airport Zoning Regulations?
7. Is the density of the Proposed Development appropriate and compatible with the surrounding community?
8. Are appropriate building setbacks provided to ensure minimum setbacks between the proposed building and the property line?
9. Is the Proposed Development premature until:
   1. A satisfactory Transportation Impact Study and Parking Study is provided to the City?
   2. A satisfactory an updated functional servicing report is provided to the City?
   3. A satisfactory Wind/Shadow study has been provided to the City?
   4. A satisfactory hydrogeological study has been provided to the City?
   5. A satisfactory storm water management study has been revised to be in accordance with the Master Drainage and Servicing Plan Report and provided to the City?
10. Is the form and content of the proposed draft Zoning By-law Amendment appropriate?
11. Is the form and content of the proposed draft Official Plan Amendment appropriate?
12. Does the Proposed Development represent good planning and urban design and is it in the public interest?
13. Does the proposed zoning by-law amendment include appropriate holding provisions to address:
    1. Phasing of Development;
    2. The relaxing or lifting of any height restrictions imposed by Navigation Canada or Transport Canada;
    3. The provision of affordable housing;
    4. The requirement for a revised Draft Plan of Subdivision Approval and/or execution of a subdivision agreement; and
    5. Site Plan approvals?
14. If the requested Zoning By-law Amendment and Official Plan Amendment applications are approved by the Tribunal, should the Tribunal's final Order be withheld until the Tribunal has been advised by the City that:

a. that the proposed Zoning By-law Amendment and Official Plan Amendment are in a form satisfactory to the City; and

b. the applicant has provided satisfactory studies as set out in issue 9 above and the applicant has entered into any agreements require to secure the any required upgrades or improvements to the existing municipal infrastructure should they be required, all to the satisfaction of the City.

c. that the City is satisfied with the form and tenure of proposed affordable housing and has entered into any agreements required to secure affordable housing with the applicant to the satisfaction of the City.

**The City of Markham reserves the right to revise, scope or remove issues as matters are settled between the parties

URA Issues List as of August 2 2022

1. Is the planned height (11 stories) and density (5.2 FSI) appropriate for this location in view of policies in the 2014 Markham Official Plan, particularly policy 9.19.9 (g) which specifies a maximum height of 4 stories?

2. Is the massing of the buildings appropriate in view of the close proximity to existing and planned single detached dwellings to the east and north?

3. Does the proposal provide sufficient affordable housing?

4. Is there sufficient parkland in the area so that 100% cash-in-lieu of parkland is appropriate for this development?

5. Will this development cause unacceptable traffic conditions on local roads in the area, such as Alfredo St, Village Parkway and Ferrah Street, and are the cycling facilities on William Meleta Drive adequate?

6. Are the shadow impacts to residences to the north and west acceptable?

Attachment 3

Order of Evidence

Scardred 7 Company Ltd. City of Markham Unionville Residents Association Scardred 7 Company Reply

Attachment 4

List of Exchange & Key Dates

1. List of Witnesses on or before November 14, 2022
2. Meeting of Experts on or before January 9, 2023
3. Agreed Statement of Facts on or before January 30, 2023
4. Witness Statements on or before February 17, 2023
5. Participant Statements on or before February 17, 2023
6. Reply to Witness Statements on or before March 17, 2023
7. Joint Document Book on or before March 24, 2023
8. Visual Evidence on or before March 24, 2023
9. Hearing Plan on or before February 28, 2023
10. Hearing May 1- 5, 2023 (5 days)

Attachment to Sample Procedural Order

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 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 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.