738489 Ontario Limited v. Toronto (City), 2022 CanLII 9914

Local Planning Appeal Tribunal

Procedural Order

ISSUE DATE: February 11, 2022 CASE NO(S).: PL171510, MM180018

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

Applicant and Appellant: 738489 Ontario Limited Subject: Application to amend Zoning By-law No. 438-86 - Refusal or neglect of City of Toronto to make a decision Existing Zoning: Reinvestment Area (RA) Proposed Zoning: Site Specific (To be determined) Purpose: To permit a mixed-use development with retail and commercial uses Property Address/Description: 582-590 King Street West, 471 and 473 Adelaide Street West and 115 Portland Street Municipality: City of Toronto Municipality File No.: 17 215103 STE 20 OZ LPAT Case No.: PL171510 LPAT File No.: PL171510 LPAT Case Name: 738489 Ontario Limited v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Referred by: 738489 Ontario Limited Subject: Site Plan Property Address/Description: 582-590 King Street West, 471 and 473 Adelaide Street West and 115 Portland Street Municipality: City of Toronto LPAT Case No.: PL171510 LPAT File No.: MM180018

THESE MATTERS having come before the Tribunal for its first Prehearing Conference on December 18, 2018 and subsequent Prehearing Conference on January 24, 2019 and Case Management Conference on September 10, 2021;

AND THE TRIBUNAL having received the requested copy of the 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

Schedule 1

1. The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

2. The hearing will begin on Tuesday, May 3, 2022 at 10:00 a.m. at https://global.gotomeeting.com/join/934565789

3. The length of the hearing will be about three (3) 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 prehearing conference are listed in Attachment 1 to this Order.

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. An issue can be removed from the issues list without a formal order of the Tribunal with the consent of all Parties.

6. The order of evidence shall be listed 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.

7. Any person intending to participate in the hearing should provide a telephone number to the Tribunal as soon as possible (preferably before the case management conference). Any such person who will be retaining a representative should advise the other parties and the Tribunal of the representative's name, address and phone number as soon as possible.

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.

Requirements Before the Hearing

9. On or before Friday, February 25, 2022, the applicant shall advise the parties of any changes to the submitted plans that it intends to present to the Tribunal and will provide the revised plans, if any, to the parties electronically. The applicant acknowledges that any revisions to the plans 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, the other parties and to the Clerk a list of the witnesses and the order in which they will be called. This list must be delivered by Friday, March 4, 2022.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing, 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.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert's evidence, as in section 12.

13. On or before Friday, April 1, 2022, the parties shall provide copies of their witness and expert witness statements to the other parties.

14. A participant must provide to the Tribunal and the parties a participant statement on or before Friday, April 1, 2022. A participant cannot present oral submissions at the hearing, unless ordered by the Tribunal.

15. On or before Friday, April 15, 2022, the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties a written response to any written evidence within seven (7) days after the evidence is received.

17. 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.)

18. 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 7 days before the hearing that the written evidence is not part of their record.

19. The Parties shall prepare a Joint Document Book on or before Tuesday, April 19, 2022. All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with Section 22.

20. The parties shall prepare and file a hearing plan with the Tribunal on or before April 25, 2022 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.

21. If the hearing is to proceed electronically, any documents which may be used by a party in cross examination of an opposing party's witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before Monday, May 2, 2022.This paragraph does not prevent Parties from filing materials for cross-examination after this date to the Tribunal for use at the hearing.

22. All filing of documents and materials shall be electronic. The Tribunal will be provided a hard copy of documents and materials. 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 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.

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.

24. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 4.

This Member is not seized.

So orders the Tribunal.

BEFORE: Name of Member ) Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

PARTIES:

738489 Ontario Limited Aird & Berlis LLP Brookfield Place, 181 Bay Street Suite 1800, Box 754 Toronto, ON M5J 2T9 Maggie Bassani Tel: 416.865.3401 Fax: 416.863.1515 Email: mbassani@airdberlis.com

City of Toronto 26th Floor, Metro Hall 55 John Street Toronto, Ontario M5V 3C6 Mark Crawford Tel: 416.392.8864 Fax: 416.397.5624 Email: mark.crawford@toronto.ca

Toronto Standard Condominium Corporation No. 2376 Donnelly Law 276 Carlaw Avenue, Suite 203 Toronto, Ontario M4M 3L1 David Donnelly Tel: 416.572.0464 Fax: 416.572.0465 Email: david@donnellylaw.ca

C Squared Properties 580 King Inc. Goodmans LLP Bay Adelaide Centre - West Tower 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 David Bronskill Tel: 416.597.4299 Fax: 416.979.1234 Email: dbronskill@goodmans.ca

1572653 Ontario Inc. Ritchie Ketcheson Hart & Biggart LLP 1 Eva Road, Suite 206 Toronto, Ontario M9C 4Z5 R. Andrew Biggart Tel: 416.622-6601 ext. 227 Fax: 416.622-4713 Email: abiggart@ritchieketcheson.com

Grange Community Association Inc. Max Allen 78 St. Patrick Street, TH116 Toronto, ON M5T 3K8 Tel: 416.593.1238 Email: mallen6@sympatico.ca

PARTICIPANTS:

1. Robert Hickman (105 Portland Street)
2. Garment District Neighbourhood Association
3. Dieter Riedel (10 Morrison Street)
4. Martin Kicinski (461 Adelaide St W, Unit 543)
5. Dana Radojevic (461 Adelaide St W, Unit 1017)
6. Kelvin Lo (461 Adelaide St W)

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 these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

TSCC 2376

1. Does the proposed zoning by-law amendment contain adequate regulations to mitigate nuisance impacts related to privacy, overlook and access to light?

2. Does the proposed zoning by-law amendment conform with the Built Form policies in Section 3.1.2 of the City of Toronto Official Plan and the General Built Form principles as outlined in s. 3.6 of the King Spadina Secondary Plan?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 738489 Ontario Limited
2. City of Toronto
3. C Squared Properties 580 King Inc.
4. 1572654 Ontario Inc.
5. Grange Community Association
6. TSCC 2376
7. Reply by 738489 Ontario Limited (if any)

ATTACHMENT 4

Purpose of the Procedural Order and Meaning of Terms

The Tribunal recommends that the parties meet to discuss this sample Order before the prehearing conference to try to identify the issues and the process that they want the Tribunal to order following the conference. The Tribunal will hear the parties' comments about the contents of the Order at the conference.

Prehearing conferences usually take place only where the hearing is expected to be long and complicated. If you are not represented by a lawyer, you should prepare by obtaining the Guide to the Local Planning Appeal Tribunal, and the Tribunal's Rules, from the Tribunal Information Office, 15th Floor, 655 Bay Street, Toronto, M5G 1E5, 416-327-6800, or from the Tribunal website at _________________.

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 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, group 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). 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 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 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 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 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 wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.

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.

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