First Capital Holdings (Ontario) Corporation v. Toronto (City), 2022 CanLII 93037

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 7, 2022

CASE NO.: OLT-22-003642

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

Applicant/Appellant: First Capital Holdings (Ontario) Corporation

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

Description: To permit two, 21-storey towers and a 9-storey midrise building

Reference Number: 19 244758 NNY 16 OZ

Property Address: 801 York Mills Rd. & 1855 Leslie Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-003642

OLT Lead Case No.: OLT-22-003642

OLT Case Name: First Capital Holdings (Ontario) Corporation v. Toronto (City)

BEFORE:

G. BURTON, VICE-CHAIR

Friday, the 7th day of October, 2022

THE TRIBUNAL ORDERS that further to the Decision issued on September 16, 2022, the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on Monday, July 31, 2023. The Tribunal has set aside fourteen (14) days for the hearing.

“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.

SCHEDULE A

ISSUE DATE:

CASE NO(S).: OLT-22-003642

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

Applicant/Appellant: First Capital Holdings (Ontario) Corporation

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

Description: To permit two, 21-storey towers and a 9-storey midrise building

Reference Number: 19 244758 NNY 16 OZ

Property Address: 801 York Mills Rd. & 1855 Leslie Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-003642

OLT Lead Case No.: OLT-22-003642

OLT Case Name: First Capital Holdings (Ontario) Corporation v. Toronto (City)

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 July 31, 2023 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 14 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.

4. 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).

5. The issues are set out in the Issues List attached as 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.

6. 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.

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. 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 March 17, 2023 The applicant acknowledges that any revisions to the proposal after that date, except revisions arising from the expert’s witness meetings or with the consent of the parties, may be grounds for a request to adjourn the hearing.

10. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before November 25, 2022 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.

11. Expert witnesses in the same field shall have a meeting on or before April 28, 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 May 8, 2023.

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 14 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.

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 paragraph 14 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.

14. On or before June 2, 2023, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 21 below.

15. On or before June 2, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before July 14, 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. On or before June 30, 2023 Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 21 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 July 21, 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 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 at least 7 days before the hearing 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 July 21, 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. 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 AND PARTICIPANTS

Appellant/Party	Counsel	Contact
First Capital Holdings (Ontario) Corporation	Denise Baker	WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 Phone: 416-947-5090 dbaker@weirfoulds.com
City of Toronto	Roman Ivanov	City of Toronto Metro Hall 55 John Street Toronto ON M5V 3C6 Phone: 416-392-4807 roman.ivanov@toronto.ca
Hastad Property Management Services Inc.	Robert Leck	Stiver Vale 195 Main Street South Newmarket, ON L3Y 3Y9 Phone: 905-895-4571 x 224 raleck@stivervale.com
York Mills Leslie Residents Inc.	Conner Harris	Rayman Harris LLP 250 The Esplanade, Suite 202 Toronto, ON M5A 1J2 Phone: 416-597-5422 conner@rbllp.com
Ellen Kessler	Ian Flett	Eric K. Gillespie Professional Corporation 160 John Street, Suite 300 Toronto, ON M5C 1E5 Phone: 416 939 6396 Email: iflett@gillespielaw.ca

Participant	Contact
Branko Jaksic	416-449-0142 bjaksic@rogers.com
Earl Haslett	437-580-3011 33 Hurlingham Crescent Eahaslett@gmail.com
Stephen Nitikman	416-576-1705 Phaselock2000@gmail.com
Thomas Yu	416-828-3781 projectbp@hotmail.com
Tyson Chu	416-258-7912 Tysonmit1951@gmail.com
WillowWood School Fred Howe	416-444-7644 55 Scarsdale Road Toronto, ON M3B 2R3 fredhowe@willowwoodschool.ca

ATTACHMENT 2: ISSUES LIST

Note: the identification of an issue 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 the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing.

CITY OF TORONTO

Planning Act

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

City of Toronto Official Plan

2. Does the proposed development conform to the policies of the City of Toronto Official Plan with respect to Healthy Neighbourhoods (2.3.1), the Public Realm (3.1.1), Built Form (3.1.2), Built Form – Building Types (3.1.3), Housing (3.2.1), Mixed Use Areas (4.5) and Implementation (5)?

Guidelines

3. Does the proposed development appropriately respond to and meet the intent and purpose of the Tall Buildings Guidelines?

4. Does the proposed development appropriately respond to, and satisfy the intent of, the residential unit size guidelines of Growing Up: Planning for Children in New Vertical Communities Guidelines (2020)?

Built Form

5. Is the massing of the proposed towers and associated base appropriate?

6. Are the floor plates of the two towers in the proposed development of appropriate scale?

7. Does the development provide appropriate transition to low-rise Neighbourhoods to the south?

8. Is the massing of the proposed development appropriate in terms of its impact on access to sunlight, overlook, privacy, wind effects, and shadow?

9. Is the proposed transition between the townhouse component of the proposed development and the lands municipally know as 799 York Mills Road appropriate?

Streetscape & Public Realm

10. Is the proposed development's relationship with the public realm and resulting streetscape appropriate?

11. Does the proposed development establish appropriate relationships at grade, including provision of an appropriate pedestrian realm, streetscaping and contributions to public space?

Amenity Space

12. Is the location and design of the proposed amenity space appropriate?

Shadow Impacts

13. Are the shadow impacts of the proposed development on York Mills Road public realm appropriate?

Wind Impacts

14. Does the proposed development provide comfortable wind conditions and limit wind impacts on the public realm, along the York Mills Road public realm, particularly at the northwest corner of the west tower?

Public Interest and Good Planning

15. Are the proposed development and Zoning By-law Amendment good planning and in the public interest?

Conditions on any Approval

16. 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:

a. The Zoning By-law Amendment has been prepared in a content and form satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning;

b. The City has advised that any building envelope changes to address the findings of the wind tunnel study have been made to the satisfaction of the Chief Planner and Executive Director, City Planning Division;

c. The City has confirmation of water, sanitary and stormwater capacity from the Chief Engineer and Executive Director, Engineering and Construction Services, or the determination of whether holding provisions are required in the Zoning By-law Amendment;

d. The owner has entered into one or more agreements to secure such matters as may be required to support the development, including but not limited to parkland conveyances and pedestrian and vehicular access easements for public use, with such agreement(s) to be registered on title to the lands, all to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor;

e. The owner has addressed all 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;

f. The owner has provided vehicle and bicycle parking and loading spaces in accordance with accordance with the requirements of Zoning By-law 569-2013 to the satisfaction of the General Manager, Transportation Services; and

g. The owner has submitted a Transportation Demand Management Plan and secured such matters arising from the accepted Travel Demand Management Plan, as may be required, to the satisfaction of the Chief Planner and Executive Director, City Planning.

Hastad Property Management Services Inc.

1. Is the height and density appropriate?

2. Are the proposed site-specific Zoning Setbacks appropriate and do they respect the existing and proposed land uses for the property at 799 York Mills Road?

3. Does the proposed development have any adverse impacts on the property at 799 York Mills Road with respect to shadowing?

4. Does the proposed development provide adequate and convenient visitor and commercial parking on site?

5. Does the proposed development have any adverse impacts on 799 York Mills Road with respect to privacy and light.

6. Does the proposed development have any adverse impacts on 799 York Mills Road with respect to traffic?

7. Does the proposed development allow for access to the private roadway within the development, from 799 York Mills Road?

8. Is the proposed width of the proposed private, internal roadway appropriate and adequate for the type and level of traffic using it?

9. Does the proposed development provide an adequate and appropriate area for the manoeuvring of trucks accessing proposed loading and garbage areas, that does not impede traffic flows?

10. Is the proposed development designed to provide Emergency Access and Public Safety regarding Issue No. 9 above?

11. Does the proposed development have any adverse impacts on 799 York Mills Road with respect to vibration damage during construction?

12. Does the proposed development have any adverse impacts on 799 York Mills Road with respect to dewatering during and after construction?

13. Does the proposed development being accommodated within the existing servicing infrastructure, have any impacts on the existing and future servicing of 799 York Mills Road?

York Mills Leslie Residents Inc. (“YMLRI”)

1. YMLRI adopts the following issues as set out in the Issues List of the City of Toronto:

Issues 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15.

Urban Design and Built Form

2. Are the setbacks from neighbouring properties as proposed in the applications appropriate and sufficient?

3. Do the applications, or any proposed modifications to the applications, adequately account for and protect the privacy of neighbouring properties?

4. Do the applications, or any modifications to the applications, meet the City of Toronto’s angular plane requirements?

5. Do the applications or any proposed modifications to the applications, meet the intent and purpose of the City of Toronto’s Complete Streets Guidelines and Streetscape Manual?

Traffic Management and Parking

6. Are the traffic management studies carried out in support of the applications complete and appropriate?

7. Do the applications, or any proposed modifications to them, include adequate traffic management measures considering the scale of the proposed development?

8. Do the applications, or any proposed modifications to them, include adequate parking?

9. Do the applications, or any proposed modifications to the applications, conform to the Growth Plan for the Greater Golden Horseshoe (2019), including but not limited to policies 3.2.2, 3.2.3, and 3.2.4?

10. Are the applications, or any proposed modifications to the applications, consistent with the Provincial Policy Statement (2020), including but not limited to policy 1.6.7?

Heights and Densities

11. Do the applications, or any modifications to the applications, conform to the City of Toronto Official Plan, including but not limited to policies 2.1, 2.2, 3.2, 4.2, and 4.6?

12. Do the applications, or any proposed modifications to the applications, conform to the Growth Plan for the Greater Golden Horseshoe (2019), including but not limited to policies 2.2.1, 2.2.3, 2.2.4, 2.2.6, 5.2.1, 5.2.4, and 5.2.5?

13. Are the applications, or any proposed modifications to the applications, consistent with the Provincial Policy Statement (2020), including but not limited to policies 1.1.1, 1.1.3, and 1.4?

Natural Heritage

14. Has preservation of mature trees and an appropriate tree canopy been adequately considered?

15. Do the applications, or any modifications to the applications, conform to the City of Toronto Official Plan, including but not limited to policies 2.3.2, 3.4, and 4.3?

16. Do the applications, or any proposed modifications to the applications, conform to the Growth Plan for the Greater Golden Horseshoe (2019), including but not limited to 4.2.2, 4.2.9, and 4.2.10?

17. Are the applications, or any proposed modifications to the applications, consistent with the Provincial Policy Statement (2020), including but not limited to policies 1.8 and 2.1?

Ellen Kessler

Planning Act

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

City of Toronto Official Plan

2. Does the proposed development conform to the policies of the City of Toronto Official Plan with respect to Healthy Neighbourhoods (2.3.1), the Public Realm (3.1.1), Built Form (3.1.2), Built Form – Building Types (3.1.3), Mixed Use Areas (4.5) and Implementation (5)?

Guidelines

3. Does the proposed development appropriately respond to and meet the intent and purpose of the Tall Buildings Guidelines?

4. Does the proposed development appropriately respond to, and satisfy the intent of, the residential unit size guidelines of Growing Up: Planning for Children in New Vertical Communities Guidelines (2020)?

Built Form

5. Is there appropriate transition in scale and massing between the proposed townhouse element and the neighbourhood designated properties to the south?

6. Are sufficient measures in place to mitigate or eliminate overlook and privacy impacts from the development onto neighbouring properties?

Stormwater

7. Is the stormwater management plan sound and capable of managing all site stormwater under a variety of climate scenarios?

8. Will the development adversely impact groundwater flow to the detriment of neighbouring properties?

ATTACHMENT 3: ORDER OF EVIDENCE

1. First Capital Holdings (Ontario) Corporation
2. City of Toronto
3. Hastad Property Management Services Inc.
4. York Mills Leslie Residents Inc.
5. Ellen Kessler
6. First Capital Holdings (Ontario) Corporation, in reply

Attachment 4

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.