Ontario Land Tribunal

ISSUE DATE: October 3, 2022

CASE NO(s).: OLT-22-002141 OLT-22-003090

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

Applicant and Appellant: MPI Sherbourne Inc. Subject: Request to amend the Official Plan - Failure of City of Toronto to adopt the requested amendment Description: To permit a 10-storey student residence building Property Address: 294, 296, and 298 Sherbourne Street Municipality/UT: Toronto/Toronto OLT Case No.: OLT-22-002141 OLT Lead Case No.: OLT-22-002141 OLT Case Name: MPI Sherbourne Inc. v. Toronto (City)

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

Applicant and Appellant: MPI Sherbourne Inc. Subject: Application to amend Zoning By-law No. 438-86 - Refusal or neglect of City of Toronto to make a decision Description: To permit a 10-storey student residence building Property Address: 294, 296, and 298 Sherbourne Street Municipality/UT: Toronto/Toronto Municipality File No.: 21 178622 STE 13 OZ OLT Case No.: OLT-22-002142 OLT Lead Case No.: OLT-22-002141

PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended

Appellant: MPI Sherbourne Inc. Subject: Appeal of refusal of Heritage Permit Application Property Address: 294, 296, and 298 Sherbourne Street Municipality: City of Toronto OLT Case No.: OLT-22-003090 OLT Lead Case No.: OLT-22-003090 OLT Case Name: MPI Sherbourne Inc. v. Toronto (City)

BEFORE: SHARYN VINCENT VICE-CHAIR Monday, the 3rd Day of October 2022

THESE MATTERS having come before the Tribunal for a Case Management Conference on May 31, 2022;

AND THE TRIBUNAL having received the requested Procedural Order, on consent;

THE TRIBUNAL ORDERS that the Procedural Order attached hereto as Schedule 1 is in full force and effect.

"Euken Lui"

EUKEN LUI ACTING REGISTRAR

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.

SCHEDULE 1

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the Parties' request or its own motion.

Organization of the Hearing

2. The video hearing will begin on September 18, 2023 at 10:00 a.m.

3. The length of the hearing will be about fifteen (15) days. The Parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues, where possible. The procedural order deadlines are generally found in Attachment 1.

4. The Parties and Participants identified at the Case Management Conference are set out in Attachment 2 to this Order. Unless the Tribunal directs otherwise, a person who wishes to become a party or participant at the hearing who is not listed in Attachment 2 must make the necessary motion to the Tribunal.

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 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 shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative's name, address, email address and the phone number.

8. If the hearing is to proceed electronically, 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 (https://olt.gov.on.ca/tribunals/lpat/).

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 eighty-eight (88) days before Expert Witness Statements as stated in Section 15 (on or before May 1, 2023). If the applicant provides a revised proposal, the Parties shall have the right to revise and/or augment the issues list. 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.

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 at least one hundred and nineteen (119) calendar days before the hearing is scheduled to commence (on or before May 22, 2023). For expert witnesses, a Party 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 at least one hundred and one (101) calendar days before the hearing is scheduled to commence (on or before June 9, 2023).

11. Expert witnesses in the same discipline(s) should 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 at least eighty (80) calendar days before the hearing is scheduled to commence (on or before June 30, 2023), if this meeting takes place and if agreement is reached.

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, the acknowledgement of expert's duty and curriculum vitae. 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.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement, but the party calling them must file a brief outline of the expert's evidence, as in Section 15.

14. A participant must provide to the Tribunal and the Parties a participant statement at least fifty-two (52) calendar days prior to the scheduled commencement of the hearing (on or before July 28, 2023). Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.

15. At least fifty-two (52) calendar days prior to the scheduled commencement of the hearing (on or before July 28, 2023), the Parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other Parties and the Tribunal, or the witness may not give oral evidence at the hearing.

16. At least forty (40) calendar days prior to the scheduled commencement of the hearing (on or before August 9, 2023), the Parties may provide to all other Parties a written response to any written evidence.

17. At least forty (40) calendar days prior to the scheduled commencement of the hearing (on or before August 9, 2023), the Parties shall advise the Tribunal of whether any hearings dates scheduled for this matter may be released from the Tribunal's calendar. This request may only be made on consent of all of the Parties. If no hearing dates are intended to be released from the Tribunal's calendar, no Party is required to advise the Tribunal anything further in that regard.

18. At least twenty-five (25) calendar days prior to the scheduled commencement of the hearing (on or before August 24, 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.

19. 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.

20. 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 seven (7) days before the hearing that the written evidence is not part of their record.

21. The Parties shall cooperate to prepare a Joint Document Book twenty (20) days before the hearing is scheduled to commence (on or before August 29, 2023), and which one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in an accessible electronic format in accordance with Section 23.

22. At least seventeen (17) days before the commencement of the hearing (on or before September 1, 2023) the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified parties participating in the hearing, the preliminary matters (if any to be addressed), the date each witness is expected to attend, the identified witness name/expertise, 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.

23. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal's Video Hearing Guide, dated July 2, 2020, or as may be amended. Section 23 applies regardless if the hearing event is in-person or electronic.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by Section 9. The Tribunal's Rule 17 applies to such requests.

25. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

26. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

May 1, 2023 (88 days before the Witness Statement Date)

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

May 22, 2023 (119 days prior to hearing)

Exchange of witness lists (names, disciplines and order to be called)

June 9, 2023 (101 days prior to hearing)

Last date to challenge identification of expert witness

June 30, 2023 (80 days prior to hearing)

Experts meeting prior to this date

June 30, 2023 (80 days prior to hearing)

Agreed Statement of Facts

July 28, 2023 (52 days prior to hearing)

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

August 9, 2023 (40 days prior to hearing)

Exchange of written response to written evidence (if any)

August 24, 2023 (25 days prior to hearing)

Exchange of visual evidence (if any)

August 29, 2023 (20 days prior to hearing)

Finalize Joint Document Book

September 1, 2023 (17 days prior to hearing)

Final Work Plan filed with the Tribunal

September 18, 2023

Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

PARTIES:

MPI Sherbourne Inc. Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9 Eileen P.K. Costello Tel: 416.865.4740 Fax: 416.863.1515 Email: ecostello@airdberlis.com

Meaghan Barrett Tel: 416.865.3064 Fax: 416.863.1515 Email: mbarrett@airdberlis.com

City of Toronto City of Toronto Legal Services 55 John Street, 26th Floor, Metro Hall Toronto, ON M5V 3C6 Daniel Elmadany Tel: 416.397.5709 Fax: 416.397.5624 Email: daniel.elmadany@toronto.ca

Colin Dougherty Tel: 416.392.3116 Email: colin.doughtery@toronto.ca

PARTICIPANTS:

Thoywell, Paulene and Karen Kennedy - kennedyresidence@rogers.com and ladykennedy@hotmail.ca

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party's intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the Tribunal have jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

A. City of Toronto

Planning Act

1. Do the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including but not limited to (d), (h), (p), and (r)?

2. Would approval of the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments by the Tribunal have regard to the decision of City Council and the information and material that City Council considered in making its decision as required by Section 2.1 of the Planning Act?

Provincial Policy Statement 2020

3. Are the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments consistent with the Provincial Policy Statement as required by Section 3(5) of the Planning Act, including but not limited to policies 1.1.3.3, 1.1.3.4, 1.4.3, 1.7.1, 2.6, and 4.6?

A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020

4. Do the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments 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, including but not limited to policies 1.2.1, 2.2.1, 2.2.2.3, 2.2.3, 4.2.7, and 5.2.4?

5. Do the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments maintain the intent and purpose of the Protected Major Transit Station Area, College Station, Site and Area Specific Policy 603, ("SASP 603") as adopted by City Council?

6. If the Minister approves the Protected Major Transit Station Area, College Station, SASP 603, instead of question #5 above, do the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments conform to, Policies 2.2.4.6, 2.2.4.8, and 2.2.4.9 of the Place to Grow: Growth Plan for the Greater Golden Horseshoe, and SASP 603?

City of Toronto Official Plan

7. Do the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments conform with the policies of the City of Toronto Official Plan, including but not limited to the policies related to:

a. Structuring Growth in the City (Section 2.2);

b. Healthy Neighbourhoods (Section 2.3.1);

c. Public Realm (Section 3.1.1);

d. Built Form (Section 3.1.3, Section 3.1.4);

e. Heritage Conservation (Section 3.1.6);

f. Neighbourhoods (Section 4.1);

g. Apartment Neighbourhoods (Section 4.2); and

h. Implementation (Sections 5.2, 5.3.1, 5.3.2, 5.6)?

8. Do the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments conform with Chapter 6, Section 41 of the Official Plan being the Downtown Plan, including but not limited to the policies related to:

a. Interpretation (1.5, 1.6, 1.7);

b. Complete Communities (3.1, 3.3, 3.18);

c. Directing Growth (4.1-4.2);

d. Parks and Public Realm (7.3.2); and

e. Built Form (9.1, 9.4, 9.8-9.15, 9.17, 9.21, 9.22-9.28)?

9. Do the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments conform with Chapter 7, Site and Area Specific Policy 461, Garden District ("SASP 461") of the Official Plan?

10. Do the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments conform with Chapter 7, Site and Area Specific Policy 517, Downtown Tall Building Setbacks ("SASP 517") of the Official Plan?

Proposed Amendments to the Official Plan

11. Is the proposed development compatible with its physical context and does the Official Plan Amendment to permit the proposed development not affect nearby Neighbourhoods or Apartment Neighbourhoods in a manner contrary to the neighbourhood protection policies of the Plan?

12. Is the requested Official Plan Amendment to re-designate lands included in the proposed development from Neighbourhoods to Apartment Neighbourhoods appropriate?

13. Are the requested Official Plan Amendments to SASP 461 to permit the proposed development appropriate?

Land Use Planning and Urban Design

14. Do the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments represent a scale and type of development that is appropriate for the surrounding area and does it provide an appropriate transition in scale and massing to adjacent areas, including Neighbourhoods?

15. Does the proposed development fit appropriately within the existing and planned built form context, with regard to its setbacks, separation distances, height, density, building base height, angular plane, floorplate size and stepbacks?

16. Does the proposed development provide for appropriate transition in height, mass and scale?

17. Does the proposed development:

a. provide access to direct sunlight and daylight on the public realm;

b. maintain open views of the sky from the public realm; and

c. protect privacy within adjacent buildings and lands?

Heritage Conservation

18. Is the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments contrary to the objectives of the Garden District Heritage Conservation District Plan?

19. Is the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments in conflict with the Garden District Heritage Conservation District Plan?

20. Does the proposed development, the proposed Official Plan Amendments, and Zoning By-law Amendments conserve the cultural heritage value and heritage attributes of the District and the Sherbourne Street Character Sub-Area in the Garden District Heritage Conservation District Plan?

21. Does the proposed development maintain the intent and purpose of the principles set out in the Standards and Guidelines for the Conservation of Historic Places in Canada?

22. Has the proposed development been designed to conserve the cultural heritage values, attributes and character of adjacent heritage properties, and to mitigate visual and physical impact on them, including:

a. 292 Sherbourne Street;

b. 300 Sherbourne Street;

c. 283-285 Sherbourne Street;

d. 291-295 Sherbourne Street?

Public Interest and Good Planning

23. Are the proposed Official Plan Amendments good planning and in the public interest?

24. Are the proposed Zoning By-law Amendments good planning and in the public interest?

Implementation

25. If the requested Official Plan Amendment and Zoning By-law Amendments are approved by the Tribunal, in whole or in part, should the Tribunal's final order be withheld until it has been advised by the City Solicitor that:

a. the proposed Official Plan and Zoning By-law Amendments are in a final form and content satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

b. the Ontario Land Tribunal has been advised by the City Solicitor that the Functional Servicing Report, Stormwater Management Report, Hydrogeological Report and Groundwater Report has been completed to the satisfaction of the Executive Director Engineering and Construction Services; and

c. the owner has entered into the appropriate agreement(s) with the City for the design, construction and financial securities for any improvements to the municipal infrastructure, in connection with a Functional Servicing Report as accepted by the City's Executive Director, Engineering and Construction Services should such Director determine that improvements to such infrastructure are required, to support the development, all to the satisfaction of the Executive Director of Engineering and Construction Services.

26. If the requested application to erect a building under Section 42 of the Ontario Heritage Act is approved by the Tribunal, in whole or in part, should the Tribunal's final order be withheld until it has been advised by the City Solicitor that:

a. That prior to final Site Plan Approval for the proposal, for the property located at 294-298 Sherbourne Street the owner shall:

i. Provide final site plan drawings to the satisfaction of the Senior Manager, Heritage Planning.

ii. Provide a detailed landscape plan for the subject property, satisfactory to the Senior Manager, Heritage Planning.

iii. Provide an Interpretation Plan for the subject property, to the satisfaction of the Senior Manager, Heritage Planning and thereafter shall implement such Plan to the satisfaction of the Senior Manager, Heritage Planning.

b. That prior to the issuance of any permit for all or any part of the property at 294-298 Sherbourne Street, including a heritage permit or a building permit the owner shall:

i. Provide building permit drawings, including a description of materials and finishes, to be prepared by the project architect and a qualified heritage consultant to the satisfaction of the Senior Manager, Heritage Planning.

ATTACHMENT 4

ORDER OF EVIDENCE

1. MPI Sherbourne Inc.
2. City of Toronto
3. MPI Sherbourne Inc. (in reply, if necessary)

ATTACHMENT 5

MEANING OF TERMS USED IN THE PROCEDURAL ORDER

Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other Parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorization from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal's Rules of Practice and Procedure.

NOTE (only a party may do so). Subsection 33.2 of the Local Planning Appeal 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 may receive notice of a mediation or conference calls on procedural issues. Participants are not permitted to ask for costs, or review of a decision as Parties can.

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party 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.

Witness Statements:

A witness statement is a short written outline of the person's background, experience and interest in the matter; a list of the issues which the witness will discuss and the witness' opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert's (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness' opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person's or group's background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the Parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness' evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

The order of examination of witnesses: is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by Parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the Parties or directed by the Tribunal.