BET Realty Limited v. Mississauga (City), 2022 CanLII 93054

Ontario Land Tribunal

Issue Date: October 04, 2022 Case No(s).: OLT-21-001693

Proceeding commenced under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: BET Realty Limited and 3420 Hurontario Street Incorporated Subject: Request to amend the Official Plan - Failure of City of Mississauga to adopt the requested amendment Existing Designation: "Residential High Density" and "Office" Proposed Designated: Residential High Density – Special Site Purpose: To permit residential, retail and office uses Property Address/Description: 3420 and 3442 Hurontario Street Municipality: City of Mississauga Approval Authority File No.: OZ 20/022 W7 OLT Case No.: OLT-21-001693 OLT Lead Case No.: OLT-21-001693 OLT Case Name: BET Realty Limited v. Mississauga (City)

Proceeding commenced under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: BET Realty Limited and 3420 Hurontario Street Incorporated Subject: Application to amend - Zoning Bylaw 0225-2007, as amended and neglect of City of Mississauga to make a decision Existing Zoning: "RA-3-20 – Residential Apartment 3 Zone Exception 20" and "0-10" – Office Exception Zone 10" Proposed Zoning: "RA5-XX" Purpose: To permit residential, retail and office uses Property Address/Description: 3420 and 3442 Hurontario Street Municipality: City of Mississauga Municipality File No.: OZ 20/022 W7 OLT Case No.: OLT-21-001694 OLT Lead Case No.: OLT-21-001693

Heard: September 16, 2022 by video hearing ("VH")

Appearances

Parties	Counsel
BET Realty Limited and 3420 Hurontario Street Incorporated	Jonathan Cheng
City of Mississauga ("City")	Lia Magi

Memorandum of Oral Decision Delivered by K.R. Andrews on September 16, 2022 and Order of the Tribunal

Introduction

1This is the second Case Management Conference ("CMC") respecting an appeal by BET Realty Ltd. and 3420 Hurontario Street Inc. ("Applicant") following City's neglect/failure to render a decision respecting an Official Plan Amendment and Zoning By-law Amendment application to permit two apartment buildings, 30 and 36 storeys consisting of 680 dwelling units with ground floor office and/or retail commercial uses, at 3420 and 3442 Hurontario Street.

2The agenda for the present CMC includes confirmation of the draft procedural order and issues list and setting the hearing dates.

Mediation and Settlement

3The Tribunal notes that the parties are pursuing Tribunal-led mediation concurrently with preparing for a hearing.

Procedural Order and Issues List

4The Tribunal received and reviewed a draft Procedural Order from the parties. The Tribunal finds it acceptable, and the proceedings shall be governed by it (see Schedule 1).

Hearing Date

5Upon request of the parties, the Tribunal set a 7-day hearing commencing on Monday, March 27, 2023 at 10 a.m. by VH. No further notice is required for the hearing.

6Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

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

Access Code: 344-779-885

7Parties 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.

8Persons 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 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

9Individuals 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 VH 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.

Order

10The Tribunal Orders that:

1. The date and particulars of the hearing are set out above;
2. The Procedural Order appended as Schedule 1 shall govern the proceedings; and
3. No further notice is required and the Member is not seized.

"K.R. Andrews"

K.R. ANDREWS MEMBER

Ontario Land Tribunal Website: www.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.

OLT-21-001693 – Schedule 1

Ontario Land Tribunal

Proceeding commenced under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: BET Realty Limited and 3420 Hurontario Street Incorporated Subject: Request to amend the Official Plan - Failure of City of Mississauga to adopt the requested amendment Existing Designation: "Residential High Density" and "Office" Proposed Designated: Residential High Density – Special Site Purpose: To permit residential, retail and office uses Property Address/Description: 3420 and 3442 Hurontario Street Municipality: City of Mississauga Approval Authority File No.: OZ 20/022 W7 OLT Case No.: OLT-21-001693 OLT Lead Case No.: OLT-21-001693 OLT Case Name: BET Realty Limited v. Mississauga (City)

Proceeding commenced under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: BET Realty Limited and 3420 Hurontario Street Incorporated Subject: Application to amend - Zoning Bylaw 0225-2007, as amended and neglect of City of Mississauga to make a decision Existing Zoning: "RA-3-20 – Residential Apartment 3 Zone Exception 20" and "0-10" – Office Exception Zone 10" Proposed Zoning: "RA5-XX" Purpose: To permit residential, retail and office uses Property Address/Description: 3420 and 3442 Hurontario Street Municipality: City of Mississauga Municipality File No.: OZ 20/022 W7 OLT Case No.: OLT-21-001694 OLT Lead Case No.: OLT-21-001693

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 Monday, March 27, 2023 at 10 a.m. in accordance with the following link:

GoTo Meeting: https://global.gotomeeting.com/join/344779885 Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373 Access Code: 344-779-885

3. The length of the hearing will be 7 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 procedural order deadlines are generally found in Attachment 1.

5. Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order.

6. 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.

7. The order of evidence is set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the Parties' consent, subject to the Tribunal's approval, or by Order of the Tribunal.

8. 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.

9. 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

10. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the Parties and the Tribunal on or before Wednesday, February 1, 2023, if this meeting takes place and if agreement is reached.

11. 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 Wednesday, January 11, 2023. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed 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, January 13, 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, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided as in Section 13. 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 13.

13. On or before Wednesday, February 8, 2023, the parties shall provide copies of their witness and/or expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with Section 24 below.

14. On or before Wednesday, February 8, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with Section 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement.

15. 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 13.

16. On or before Wednesday, March 1, 2023, the Parties may provide to all other Parties a written response to any written evidence.

17. On or before Wednesday, March 8, 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. On or before Wednesday, March 8, 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 fifteen (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. On or before Wednesday, March 8, 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 Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the "Work Plan"). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.

22. The Parties shall prepare a Joint Document Book on or before Wednesday, March 15, 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 paper or an accessible electronic format in accordance with Section 24.

23. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal to the other Parties on or before Wednesday, January 11, 2023. The City may revise its Issues List, including adding any new issues arising from a revised proposal, and identify any additional witnesses within 14 days of receiving a revised proposal without a motion to the Tribunal. 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. In the event of a dispute, the Tribunal may be spoken to.

24. 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 24 applies regardless if the hearing event is in-person or electronic.

25. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by Section 23. The Tribunal's Rule 17 applies to such requests.

26. 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.

27. 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.

Attachment 1: Summary of Dates

Date	Event
Wednesday, January 11, 2023	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
Wednesday, January 11, 2023	Exchange of witness lists (names, disciplines and order to be called)
Friday, January 13, 2023	Last date to challenge identification of expert witness
Wednesday, February 1, 2023	Agreed Statement of Facts
Wednesday, February 8, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
Wednesday, March 1, 2023	Exchange of Reply Witness Statements (if any)
Wednesday, March 8, 2023	Parties to advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
Wednesday, March 8, 2023	Exchange of visual evidence (if any)
Wednesday, March 8, 2023	Final Work Plan filed with the Tribunal
Wednesday, March 15, 2023	Finalize Joint Document Book
Monday, March 27, 2023	Hearing commences

Attachment 2: List of Parties

Parties	Counsel

1. BET Realty Limited and 3420 Hurontario Street Incorporated | Stikeman Elliott LLP
   5300 Commerce Court West
   199 Bay Street
   Toronto, ON M5L 1B9
   
   Calvin Lantz
   Email: clantz@stikeman.com
   Tel: (416) 869-5669
   
   Jonathan Cheng
   Email: jcheng@stikeman.com
   Tel: (416) 869-6807
2. City of Mississauga | Legal Services Division
   300 City Centre Drive
   Mississauga, ON L5B 3C1
   
   Lia Magi
   Email: lia.magi@mississauga.ca
   Tel: (905) 615-3200 ext. 3086

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.

City of Mississauga

PLANNING ACT:

1. Does the proposed development have regard to matters of Provincial Interest as outlined in Section 2 of the Planning Act?

PROVINCIAL POLICIES:

2. Does the proposed development demonstrate consistency with the Provincial Policy Statement 2020?
3. Does the proposed development conform to the Growth Plan for the Greater Golden Horseshoe?

REGION OF PEEL OFFICIAL PLAN:

4. Does the proposed development conform to the Region of Peel Official Plan including but not limited to Sections 5.3 Urban System and 5.5 Growth Management?

MISSISSAUGA OFFICIAL PLAN:

5. Does the proposed development conform to the Mississauga Official Plan, including but not limited to policies in: a. Chapter 5: Direct Growth – Sections 5.3.1 Downtown, 5.4 Corridors and 5.5 Intensification Areas b. Chapter 7: Complete Communities – Section 7.2 Housing c. Chapter 8: Parking – Section 8.4 d. Chapter 9: Build a Desirable Urban Form – Sections 9.1, 9.2.1 Intensification Areas and 9.5 Site Development and Buildings e. Chapter 10: Foster a Strong Economy – Section 10.2 Office and 10.4 Retail f. Chapter 11: General Land Use Designations – Sections 11.2.5 Residential and 11.2.7 Office g. Chapter 12: Downtown – Sections 12.3 Downtown Fairview and Section 12.3.2.2 Site 2 h. Chapter 19: Implementation – Sections 19.4 Development Applications and 19.5 Criteria for Site Specific Official Plan Amendments

PLANNING, DESIGN & LANDSCAPE ISSUES:

6. Are the proposed heights excessive and do they result in overdevelopment of the site?
7. Does the proposed height provide an appropriate transition downward from the Downtown toward Cooksville and adjacent heights to the west and south?
8. Will the development proposal provide sufficient parking that is appropriately designed and located? Does the exposed, aboveground parking structure conform to Mississauga Official Plan?
9. Are the proposed zoning by-law and exception standards appropriate?
10. Is the proposal compatible with the character of the area given the height and massing?
11. Have the Sun/Shadow requirements been adequately addressed?
12. Have the Pedestrian Level Wind conditions been adequately addressed?
13. Have the Environmental Noise conditions been adequately addressed?
14. Does the proposal adequately address the loss of existing office space/use?
15. Are the uses proposed on the ground floor appropriate?
16. Does the proposed development have appropriate regard to the Downtown Fairview Character Area?
17. Is the access on Hurontario Street appropriately designed for an urban area and the pedestrian environment?
18. Is there an adequate supply of affordable units being proposed?
19. Does the site access and circulation meet the requirements of Fire & Emergency Services and the Region of Peel?
20. Is approval of the proposal premature until the following is provided to the satisfaction of the City, and other public authorities as applicable: a. Streetscape Feasibility Plan which includes the existing utilities; b. Receipt of a Temporary Discharge to Storm Sewer Commitment letter; c. Confirmation Letter from an Engineer that the Aboveground Storage Tanks, Wells and Septic Tanks have been removed; d. Record of Site Condition (including all supporting documentation); e. Receipt of a revised Transportation Impact Study (including all turning movements); f. Receipt of a Hydrogeological Study; g. Revised Functional Servicing & Stormwater Management Report (including information regarding the required 5mm runoff retention on-site); h. Revised Noise Study; i. Revised Civil Drawings & Site Plan; j. Acceptable access arrangements; and k. Receipt of an executed Development Agreement to the satisfaction of the City?
21. Does the proposed development represent good planning and is it in the public interest?

Attachment 4: Order of Evidence

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence.

1. BET Realty Limited and 3420 Hurontario Street Incorporated
2. City of Mississauga

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.