Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

October 17, 2022

CASE NO.:

OLT-22-003395

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

Applicant/Appellant

Marine Lake Developments Limited

Subject:

Request to amend the Official Plan – Failure to adopt the requested amendment

Description:

To permit a 59-storey mixed-use tower, including a 3-storey base building

Reference Number:

21 219268 WET 03 OZ

Property Address:

2189 Lake Shore Boulevard W

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-22-003395

OLT Lead Case No:

OLT-22-003395

OLT Case Name:

Marine Lake Developments Limited v. Toronto (City)

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

Applicant/Appellant

Marine Lake Developments Limited

Subject:

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

Description:

To permit a 59-storey mixed-use tower, including a 3-storey base building

Reference Number:

21 219268 WET 03 OZ

Property Address:

2189 Lake Shore Boulevard W

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-22-003396

OLT Lead Case No:

OLT-22-003395

BEFORE:

STEVEN COOKE

Monday, the 17^th

VICE-CHAIR

day of October, 2022

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on May 23, 2023.

“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.

ATTACHMENT “A”

Case No. OLT-22-003395

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:

Marine Lake Developments Limited

Subject:

Request to amend the Official Plan– Failure to adopt the requested amendment

Description:

To permit a 59-storey mixed-use tower, including a 3-storey base building

Reference Number:

21 219268 WET 03 OZ

Property Address/Description:

2189 Lake Shore Boulevard W

Municipality:

Toronto

OLT Case No.:

OLT-22-003395

OLT Lead Case No.:

OLT-22-003395

OLT Case Name:

Marine Lake Developments Limited 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:

Marine Lake Developments Limited

Subject:

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

Description:

To permit a 59-storey mixed-use tower, including a 3-storey base building

Reference Number:

21 219268 WET 03 OZ

Property Address/Description:

2189 Lake Shore Boulevard W

Municipality:

Toronto

OLT Case No.:

OLT-22-003396

OLT Lead Case No.:

OLT-22-003395

OLT Case Name:

Marine Lake Developments Limited v. Toronto (City)

1The 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

2The video hearing will begin on May 23, 2023 at 10:00 a.m.

3The parties’ initial estimation for the length of the hearing is 7 days, running from May 23 to 26 and from May 31 to June 2, 2023. 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.

4The parties and participants identified at the case management conference are set out in Attachment 2.

5The issues are set out in the Issues List attached as Attachment 4. 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. An issue can be removed from the issues list without a formal order of the Tribunal on consent of all Parties.

6The 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.

7Any 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.

8Any 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

9If 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 December 12, 2022, 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.

10A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of witnesses on or before February 22, 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 party who intends to challenge the qualifications of an expert witness shall bring a written motion for the challenge within 5 days of receiving the confirmed witness list.

11Expert witnesses in the same field shall have a meeting on or before March 29, 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 April 3, 2023.

12An 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.

13Expert 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 [14] below.

14On or before April 10, 2023, the parties shall provide copies of their witness and/or expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph [22] below.

15On or before April 10, 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.

16The Parties may provide to all other Parties and the case co-ordinator a written response to any written evidence on or before April 24, 2023 and in accordance with paragraph [22] below.

17On or before May 15, 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.

18The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before May 15, 2023.

19A 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.

20A 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.

21The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 15, 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.

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

23No 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 to Sample Procedural Order

Meaning of terms used in the Procedural Order:

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

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

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

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

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

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

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

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

December 12, 2022

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

February 22, 2023

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

March 29, 2023

Last date of Expert Witness Meetings

April 3, 2023

Agreed Upon Statement of Facts

April 10, 2023

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

April 24, 2023

Exchange of Reply Witness Statements (if any)

May 15, 2023

Exchange of Visual Evidence (if any), Joint Document Book, and Hearing Plan

May 23, 2023

Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. Marine Lake Developments Limited

2. City of Toronto

PARTICIPANTS

1. Toronto Standard Condominium Corporation No. 2745

ATTACHMENT 3

ORDER OF EVIDENCE

1. Marine Lake Developments Limited

2. City of Toronto

3. Marine Lake Developments Limited (Reply)

ATTACHMENT 4

ISSUES LIST

NOTE: THE IDENTIFICATION OF AN ISSUE ON THIS ISSUES LIST DOES NOT MEAN THAT ALL PARTIES AGREE THAT SUCH AN ISSUE, OR THE MANNER IN WHICH IT IS APPROPRIATE OR RELEVANT FOR THE PROPER DETERMINATION OF THE APPEALS. THE EXTENT OF THE APPROPRIATENESS AND/OR RELEVANCE OF THE ISSUE MAY BE A MATTER OF EVIDENCE AND/OR ARGUMENT AT THE HEARING.

City of Toronto

1. Does the proposed development have regard to the matters of provincial interest set out in Section 2 of the Planning Act, including subsections (f), (h), (j), (p) and (r)?

2. Is the proposed development consistent with the Provincial Policy Statement, 2020 including policies 1.1.1(b), 1.1.1(e), 1.1.1(g), 1.2.1(a), 1.2.1(d), 1.5.1a), 1.6.1, 1.6.6, 1.6.7, 1.7.1(b), 1.7.1(c), 1.7.1(d). 1.7.1(e), 1.7.1(g) and 4.6?

3. Does the proposed development conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), including policies 2.2.1.3, 2.2.1.4, 2.2.4.8, 2.2.4.10, 2.2.6.3, 3.2.1.1, 3.2.1.2, 3.2.2.1, 3.2.2.3, 3.2.3.4 and 3.2.6?

4. Does the proposed development conform to and maintain the intent and purpose of the City of Toronto Official Plan, including:

(a) Section 2.1 – Building a More Liveable Urban Region;

(b) Section 2.2 - Structuring Growth in the City: Integrating Land Use and Transportation

(c) Section 2.3.1– Healthy Neighbourhoods;

(d) Section 3.1.1 – Public Realm;

(e) Section 3.1.3 – Built Form

(f) Section 3.1.4 – Built Form – Building Types;

(g) Section 4.5 – Mixed Use Areas; and

(h) Section 5.6 – Interpretation

5. Does the proposed development conform to the Motel Strip Secondary Plan?

6. Does the proposed development appropriately respond to Council approved Urban Design Guidelines, including: Motel Strip and Humber Bay Shores Urban Design Guidelines, Toronto Tall Building Design Guidelines, Growing Up Guidelines, and the Pet Friendly Design Guidelines and Bird Friendly Development Guidelines?

7. Streetscape and Public Realm

Is the proposed development's relationship with the public realm and resulting streetscape appropriate for the site and representative of good planning and urban design? In particular:

(a) Does the proposed relationship of the development to the public realm conform with the Official Plan policies 3.1.1 (Public Realm), 3.1.2 and 3.1.3 (Built Form), and 4.5 (Mixed Use Areas)?

(b) Does the proposed relationship of the development to the public realm respond to the Park Lawn Lake Shore Transportation Master Plan, and in particular:

(i) Does the proposed streetscape for Lake Shore Boulevard West provide a minimum of 3 metres of property for a sidewalk, furnishing/tree planting zone, bike lane and curb zone as per Transportation Master Plan recommendations?

(ii) Does the proposed streetscape for Marine Parade Drive provide additional space for a sidewalk, furnishing/tree planting zone, and curb?

(c) Does the proposed relationship of the development to the public realm have appropriate consideration for the City of Toronto Tall Building Design Guidelines?

(d) Does the proposed development provide Privately-Owned Publically Accessible Space (POPS) consistent with City of Toronto POPS guidelines?

(e) Do the proposed development's retail uses have appropriate consideration for the Retail Design Manual?

8. Built Form

Does the proposed development provide an appropriate built form in terms of height, transition, massing and scale, separation distances, tower floor plate size, streetwall height and building design? In particular:

(a) Does the proposed massing conform with Official Plan policies 2.3.1 (Healthy Neighbourhoods), 3.1.1 (Public Realm), 3.1.2 and 3.1.3 (Built Form), and 4.5 (Mixed Use Areas)?

(b) Is the height of the proposed development in keeping with the existing and planned context for the site?

(c) Does the proposed development fit in the existing and planned context in terms of architectural expression and design excellence?

(d) Does the proposed tower floor plate size have appropriate consideration for the City of Toronto Tall Building Design Guidelines?

(e) Does the proposed mix of dwelling types have appropriate consideration for the Growing Up Guidelines?

(f) Does the proposed development provide appropriate consideration for the Pet Friendly Guidelines?

9. Density

Is the proposed development's Floor Space Index of 16.4 times the area of the lot appropriate for the site and representative of good planning? In particular, is the proposed density consistent with the Motel Strip Secondary Plan?

10. Shadow Impact

Does the proposed development maximize sunlight and limit shadow impacts on the surrounding public realm, open spaces, outdoor amenities, and adjacent existing and proposed public parks, and are the shadow impacts representative of good planning and urban design? In particular:

(a) Do the shadow impacts associated with the proposal conform with Official Plan policies 3.1.1 (Public Realm), 3.1.2 and 3.1.3 (Built Form), 3.2.3 (Parks and Open spaces), 4.5 (Mixed Use Areas) and 6.11 (Motel Strip Secondary Plan)?

(b) Do the shadow impacts associated with the proposal have appropriate regard to the Humber Bay Shores Urban Design Guidelines and Public Realm Plan and minimize impacts on the proposed public park fronting Lake Shore Boulevard West within the Christies Secondary Plan area?

(c) Do the shadow impacts associated with the proposal have appropriate consideration for the City of Toronto Tall Building Design Guidelines?

11. Wind Impact

Does the proposed development result in comfortable and appropriate pedestrian-level wind conditions, and are the wind impacts representative of good planning and urban design? In particular:

(a) Do the wind impacts associated with the proposal conform with Official Plan policies 3.1.1 (Public Realm), 3.1.2 and 3.1.3 (Built Form), 3.2.3 (Parks and Open Spaces), and 4.5 (Mixed Use Areas)?

(b) Do the wind impacts associated with the proposal conform with the Motel Strip Secondary Plan?

12. Amenity Space

Does the proposed development provide an adequate amount of indoor and outdoor amenity space, and are the proposed spaces well-designed? In particular:

(a) Do the proposed amenity spaces conform with Official Plan policy 3.2.1?

(b) Do the proposed indoor and outdoor amenity spaces have appropriate consideration for the Growing Up Guidelines in terms of size and location?

(c) Do the proposed outdoor amenity spaces have appropriate consideration for the Pet Friendly Guidelines in terms of size and location?

13. Transportation

Does the proposed development result in acceptable traffic conditions? In particular:

(a) Does the proposed development provide potential for southbound queues along Marine Parade Drive for the southbound-to-eastbound inbound movements that extend into the signalised intersection at Lake Shore Boulevard West and would turning restrictions for the inbound southbound-to-eastbound and, outbound westbound-to-southbound movements at the proposed Marine Parade Drive site access resolve these?

(b) Are the radii for vehicle drive access designed to City standards to enhance pedestrian and active transportation safety?

(c) Does the proposed development allocate a minimum 3 metres of property along Lake Shore Boulevard West for pedestrian, cycling, and public realm improvements as per Transportation Master Plan recommendations?

14. Sewer Capacity

(a) Is there sufficient capacity in the sanitary system and is there an acceptable sanitary system solution constructed and operational?

(b) Should the subject lands be zoned with a holding provision ("H") until such time as an acceptable sanitary system solution is constructed and operational?

(c) Is there sufficient capacity in the sanitary system to accommodate the proposed short-term construction dewatering flows, or are the upgrades to the sanitary sewer system required prior to any excavation on the site for the below ground building structure?

15. Urban Forestry Requirements

Does the proposed development meet the requirements of Urban Forestry including soil volume, tree removal, protection and tree planting?

16. Attenuation Measures

Are noise, vibration, electro-magnetic interference and stray currents from the TTC infrastructure attenuated at the lowest technically feasible levels?

17. Draft By-law Amendment

Is the form and content, including regulatory standards, of the proposed draft Zoning By-law appropriate?

18. Good Urban Design and Good Planning

In light of the foregoing issues, does the proposed development and draft zoning by-law amendment represent good urban design and good planning, and is approval in the public interest?

19. Conditions of Approval

In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions have been satisfied:

(a) The amending by-laws have been finalized and submitted in a form and content acceptable to the City Solicitor and Chief Planner and Executive Director, City Planning, in a manner that implements the proposal, as approved;

(b) A Noise and Vibration Feasibility Study, has been submitted and peer reviewed by a third-party Noise and Vibration Consultant retained by the City of Toronto at the owner's expense, and the owner has agreed to implement the noise and vibration control measures and recommendations identified through the peer review, with these measures to be secured through the Site Plan Control process, all to the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with Toronto Public Health;

(c) The owner has submitted a Transportation Impact Study including a revised Parking Justification to the satisfaction of the General Manager, Transportation Services and the Chief Planner;

(d) The owner has submitted a revised Energy Report to the satisfaction of the Executive Director of Environment and Climate;

(e) The owner has submitted a revised Hydrogeology Investigation Report to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

(f) The owner has submitted the required Solid Waste Management Information to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

(g) The owner has submitted a Functional Servicing Report to determine the storm water runoff, sanitary flow and water supply demand resulting from this development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development to the satisfaction of the Chief Engineer and Executive Director of Engineering and Construction Services;

(h) The owner has made satisfactory arrangements with Engineering and Construction Services and entered into the appropriate agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support this development, according to the accepted Functional Servicing Report and Traffic Impact Study to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the City Solicitor;

(i) The owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review as they relate to the zoning by-law amendment application, to the satisfaction of the Supervisor, Tree Protection and Plan Review; and

(j) The owner has submitted a revised Landscape Plan and/or Tree Inventory and Preservation Plan Report and that Tree Preservation matters are resolved to the satisfaction of the General Manager, Parks, Forestry and Recreation.