Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

September 15, 2022

CASE NO(S).:

OLT-22-003301

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

Applicant/Appellant

Blauson Assets Management Ltd.

Subject:

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

Description:

To permit a new residential building comprised of a five-storey podium above which are the 25-storey West Tower (Tower A) and the 29-storey East Tower (Tower B)

Reference Number:

20 118393 ESC 20 OZ

Property Address:

320 McCowan Road

Municipality/UT:

Toronto

OLT Case No:

OLT-22-003301

OLT Lead Case No:

OLT-22-003301

OLT Case Name:

Blauson Assets Management Ltd. v. Toronto (City)

PROCEEDING COMMENCED UNDER section 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject:

Site Plan

Description:

To Permit a new residential building comprised of a five-storey podium above which are the 25-storey West Tower (Tower A) and the 29-storey East Tower (Tower B)

Reference Number:

21 198274 ESC 20 SA

Property Address:

320 McCowan Road

Municipality/UT:

Toronto

OLT Case No:

OLT-22-003302

OLT Lead Case No:

OLT-22-003301

OLT Case Name:

Blauson Assets Management Ltd. v. Toronto (City)

Heard:

August 4, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Blauson Assets Management Ltd.

J. Park

City of Toronto

M. Mahoney

D. Crupi and Sons Ltd.

D. White

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON AUGUST 4, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On August 4, 2022, the Tribunal held a Case Management Conference (“CMC”) for zoning by-law amendment and site plan approval appeal proceedings brought by Blauson Assets Management Ltd. (“Appellant”) in relation to a proposed residential development on the lands located at 320 McCowan Road (subject property).

2At the CMC, the Tribunal addressed: requests for party and participant status, the identification of issues, opportunities for settlement discussions, and the setting of hearing dates.

Requests for Status

3D. Crupi and Sons Ltd. requested Party status. It owns and operates an asphalt plant immediately to the west of the subject property and has concerns regarding the introduction of sensitive uses near its facilities. Neither of the Parties objected to its request for status. The Tribunal found that there are reasonable grounds to add D. Crupi and Sons Ltd. as a Party and granted its request for status.

4Velda Foster, who is currently a tenant in a building on the subject property, requested Participant status. The proposed development would be adjacent to where she lives. She expressed access and general impact concerns. None of the Parties objected and the Tribunal granted her request for Participant status.

Identification of Issues and the Preparation of a draft Procedural Order

5Prior to the CMC, on August 3, 3022, the Appellant filed a draft Procedural Order and Issues List with the Tribunal. At the CMC, the Parties discussed the issues and identified the witnesses that they would call at a hearing. They agreed to file a final draft Procedural Order and Issues List with the Tribunal subsequent to the CMC with hearing dates and procedural due dates incorporated. The Parties filed these documents on August 18, 2022. The Tribunal has reviewed and approves them.

6The Appellant requested that its site plan approval appeal proceeding be deferred until after the zoning by-law amendment proceeding has been concluded to allow it time to work with the City. After some discussion, the other Parties agreed.

Opportunities for Settlement Discussions

7The Parties expressed an interest in settlement discussions and an openness to the possibility of mediation, which the Tribunal encouraged.

Scheduling of Hearing

8The Tribunal scheduled a ten (10)-day hearing commencing on Monday, September 18, 2023.

ORDER

9The Tribunal approves the draft Procedural Order and Issues List attached as Attachment 1 to this Order and Decision.

10The Tribunal orders that the site plan approval appeal proceeding in Tribunal Case No. OLT-22-003302 is held in abeyance until the Tribunal’s disposition of the zoning by-law amendment appeal proceeding in Tribunal Case No. OLT-22-003301.

11The Tribunal orders that the hearing in Tribunal Case No. OLT-22-003301 shall be held by video hearing commencing on Monday, September 18, 2023 commencing at 10 a.m. Ten days have been set aside.

12Parties and participants 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:

https://global.gotomeeting.com/join/638422541

Access code: 638-422-541

13Parties 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: https://app.gotomeeting.com/home.html

14Persons 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: Toll Free: 1(888) 455-1389 or +1(647) 497-9391. The access code is 638-422-541.

15Individuals 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 event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

16This Member is not seized.

17There will be no further notice.

“Hugh S. Wilkins”

HUGH S. WILKINS

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.

Ontario Land Tribunal

655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll Free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunal ontarien de

l’aménagement du territoire

655 rue Bay, suite 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web: olt.gov.on.ca

ATTACHMENT 1

ISSUE DATE: CASE NO(S).: OLT-22-003301

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

Applicant/Appellant: Blauson Assets Management Ltd.

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

Description: To permit a new residential building comprised of a five-storey podium above which are the 25-storey West Tower (Tower A) and the 29-storey East Tower (Tower B)

Reference Number: 20 118393 ESC 20 OZ

Property Address: 320 McCowan Road

Municipality/UT: Toronto

OLT Case No.: OLT-22-003301

OLT Lead Case No.: OLT-22-003301

OLT Case Name: Blauson Assets Management Ltd. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Blauson Assets Management Ltd.

Subject: Site Plan

Description: To Permit a new residential building comprised of a five-storey podium above which are the 25-storey West Tower (Tower A) and the 29-storey East Tower (Tower B)

Reference Number: 21 198274 ESC 20 SA

Property Address: 320 McCowan Road

Municipality/UT: Toronto

OLT Case No.: OLT-22-003302

OLT Lead Case No.: OLT-22-003301

OLT Case Name Blauson Assets Management Ltd. V. Toronto (City)

PROCEDURAL ORDER

The Tribunal orders that:

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 hearing is scheduled to proceed by video as follows:

Date: Monday, September 18, 2023, at 10:00 a.m.

GoTo Meeting: https://global.gotomeeting.com/join/638422541

Access Code: 638-422-541

Audio only telephone line: Toll Free: 1(888) 455-1389 or 1(647) 497-9391

Audio-only access code:

3. The parties’ initial estimation for the length of the hearing is 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” to this Order.

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 shall be as set out in Attachment “4” hereto. 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. 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 Friday, May 19, 2023, and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified. 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 Friday, June 9, 2023.

10. Expert witnesses in the same field shall have a meeting on or before Thursday, July 6, 2023, 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 Thursday, July 20, 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. 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.

12. 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.

13. On or before Friday, August 4, 2023, 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.

14. On or before Friday, August 4, 2023, a 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.

15. On or before Friday, August 18, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before Tuesday, August 29, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence provided that such reply is provided to all other parties on or before Friday, August 18, 2023, in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, September 8, 2023.

19. 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 at least 15 days before the Tribunal hears the motion.

20. 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 on or before Monday, September 11, 2023, that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, August 18, 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.

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

23. 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 Friday, May 5, 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.

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

25. 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 KEY DATES

Date

Hearing Event

Friday, May 5, 2023

Filing of revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports (if required) – para. 23

Friday, May 19, 2023

Exchange of List of Witnesses and the order in which they will be called – para. 9

Friday, June 9, 2023

Notice of Motion (if required) to challenge witness(es) – para. 9

Thursday, July 6, 2023

Expert Witness Meeting – para. 19

Thursday, July 20, 2023

Filing of Statement(s) of Agreed Facts and Issues – para. 10

Friday, August 4, 2023

Exchange of Witness Statements – para. 13 Delivery of Participant Statements – para. 14

Friday, August 18, 2023

Confirmation to Tribunal if all reserved hearing dates are still required – para. 15

Friday, August 18, 2023

Filing of Hearing Plan – para. 21

Tuesday, August 29, 2023

Exchange of Visual Evidence – para. 16

Friday, August 18, 2023

Exchange of Reply Evidence/Statements – para. 17

Friday, September 8, 2023

Filing of Joint Document Book – para. 18

Monday, September 11, 2023

Notification to Tribunal and Parties if witness not to provide oral evidence – para. 20

Monday, September 18, 2023

Contested Hearing (if required) – para. 2

ATTACHMENT “2”

PARTIES AND PARTICIPANTS

PARTIES

BLAUSON ASSETS MANAGEMENT LTD.

Jason Park / Olivia Rasekhi

Devine Park LLP

2302 - 250 Yonge Street

Toronto, ON M5B 2L7

T: 416.645.4572 / 416.645.4532

E: jason.park@devinepark.com / olivia.rasekhi@devinepark.com

CITY OF TORONTO

Mark Piel Legal Services, Planning & Administrative Tribunal Law 26th fl., 55 John St.

Toronto ON M5V 3C6

T: 416.392.2124

E: mark.piel@toronto.ca

D. CRUPI & SONS LTD.

David White

Devry, Smith Frank LLP

85 Bayfield Street, Suite 300

Barrie, ON L4M 3A7

T: 705.721.3624

E: david.white@devrylaw.ca

PARTICIPANTS

Velda Foster T: 416.888.1589 E: bkrmmcrzer@gmail.com

ATTACHMENT “3”

ISSUES LIST

CITY OF TORONTO

1. Does the subject application have regard to matters of provincial interest set out in Section 2 of the Planning Act, in particular the matters referred to in sections 2(f) and (r)?

2. Would the approval of the subject application have regard for the decisions of City Council as required by Section 2.1 of the Planning Act?

3. Is the subject application consistent with the Provincial Policy Statement (2020) generally and, in particular, Sections 1.1.1, 1.1.3.2, 1.2.6.1, 1.6.6.1, 1.6.8.3, 1.6.6.7, and 4.7?

4. Does the subject application conform with A Place to Grow: A Growth Plan for the Greater Golden Horseshoe (2020) generally and in particular, Sections 2.2.1.4(f), 3.2.1, and 3.2.6?

5. Does the subject application conform with the City of Toronto Official Plan, including, but not limited to: Section 3.1.1.5, 3.1.1.6, 3.1.2.1 and 3.1.2.3?

6. Does the subject application have adequate regard for the Council-adopted policies contained in Official Plan Amendment 479 including, but not limited to: Section 3.1.1.2, 3.1.1.13 and 3.1.1.16?

7. Does the subject application have adequate regard for the Council-adopted policies contained in Official Plan Amendment 480 including, but not limited to: Section 3.1.2.1, 3.1.2.5, 3.1.2.6, 3.1.2.7, 3.1.2.13, and 3.1.3.10?

8. Does the subject application have appropriate regard for the Tall Buildings Design Guidelines (2013) generally and in particular Guidelines 1.1, 1.3, 1.4, and 4.1?

9. Is the proposed maximum permitted height for the building(s) within the subject application appropriate?

10. Is the height, and scale of the proposed development appropriate, given principles of good planning and urban design; its relationship to the surrounding context; including the public realm; the relevant policy documents; and the issues more particularly set out below?

11. Are the shadow impacts anticipated to be cast by the subject application over the existing building and the associated outdoor amenity space on the site appropriate?

12. Does the proposal as contemplated by the subject application fit appropriately within the existing and planned built form context, with regard to its height?

13. Does the subject application meet the requirements of the Toronto Green Standard for Total Soil Volume?

14. Is the subject application supported by a satisfactory Functional Servicing and Stormwater Management Report that demonstrates that any capacity and servicing concerns respecting the proposed development are addressed in a manner consistent with the procedures set out by the Province of Ontario and the City of Toronto such as:

a. Design Criteria for Sewers and Water Mains (2009) prepared by the City of Toronto;

b. Water Supply for Public Fire Protection (1999) prepared by Fire Underwriters Survey;

c. Wet Weather Flow Management Guidelines (2006) prepared by the City of Toronto; and

d. Toronto Municipal Code, Chapter 681, Sewers?

15. Is the subject application supported by a satisfactory Functional Servicing and Stormwater Management Report that demonstrates that the subject site can be adequately serviced by existing City municipal infrastructure?

16. Is the subject application supported by a satisfactory Hydrogeological/Geotechnical Report?

17. Is the subject application compatible with the adjacent rail corridor having regard to matters of noise impacts?

18. Does the subjection application appropriately mitigate noise impacts from the adjacent rail corridor?

19. Does the subject application represent good land use planning?

20. Is the subject application in the public interest?

D. CRUPI & SONS LTD.

1. Does the rezoning application for 320 McCowan Road conform to the 2020 Growth Plan, specifically Section 2.2.5 (8) relating to the development of “sensitive land uses”?

2. Is the rezoning application for 320 McCowan Road consistent with the 2020 Provincial Policy Statement, specifically Sections 1.2.6.1, 1.2.6.2 and 1.3.2.1?

3. Does the rezoning application for 320 McCowan Road comply with the City of Toronto Official Plan policies (as amended by OPA 231) relating to the introduction of Sensitive Uses within the Potential Influence Area of a Class III Industrial Facility (“Asphalt Plant”)?

4. Does the rezoning application for 320 McCowan Road conform to the Ministry of the Environment, Conservation and Parks “D Series” guidelines, specifically Guideline D-1, D-1-1, D-1-3 and D-6 as they relate to minimizing the potential for conflicts between an existing Class III Industrial Facility and a proposed adjacent high rise, high density residential development?

ATTACHMENT “4”

ORDER OF EVIDENCE

1. Blauson Assets Management Ltd.

2. City of Toronto

3. D. Crupi & Sons Ltd.

4. Reply by Blauson Assets Management Ltd. (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 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.