Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 23, 2023

CASE NO(S).: OLT-23-000209

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

Applicant/Appellant: Calloway Real Estate Investment Trust Inc.

Subject: Zoning By-law Amendment Application – failure to make a decision

Description: To permit five mid-rise buildings and three rows of townhouses

Reference Number: ZBA-2021-04

Property Address: 14700 and 14720-14760 Yonge Street

Municipality/Upper Tier: Town of Aurora/York Region

OLT Case No.: OLT-23-000209

OLT Lead Case No.: OLT-23-000209

OLT Case Name: Calloway Real Estate Investment Trust Inc. v. Aurora (Town)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: SmartCentres REIT (Aurora 14700 Yonge) Limited Partnership X and Calloway Real Estate Investment Trust Inc.

Subject: Site Plan Control Application – failure to approve

Description: To permit five mid-rise buildings and three rows of townhouses

Reference Number: SP-2021-09

Property Address: 14700 and 14720-14760 Yonge Street

Municipality/Upper Tier: Town of Aurora/York Region

OLT Case No.: OLT-23-000210

OLT Lead Case No.: OLT-23-000209

OLT Case Name: Calloway Real Estate Investment Trust Inc. v. Aurora (Town)

Heard: July 5, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Smart Centers Calloway Real Estate Investment Trust Inc.	Zachary Fleisher
City of Aurora	Patricia De Sario

MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON JULY 5, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Ontario Land Tribunal (the “Tribunal”), was with respect to the appeals of the non-decision by the City of Aurora (the “City”) regarding applications to amend the Zoning By-law and a Site plan.

2The Applications would facilitate redevelopment with five mid-rise buildings and three rows of townhouses containing 900 residential units, to be constructed in two phases bisected by a new private road, and green open space.

3The Tribunal heard the Applications represent good planning and urban design. The proposal will result in the desirable intensification of underutilized lands; will assist in achieving Provincial and Town policy directions promoting intensification within built-up areas, and will result in a vibrant, pedestrian-oriented mixed-use area.

4City Council failed to make a decision within the statutory timeframe.

5The purpose of the Case Management Conference was to receive status updates from all Parties to organize the Hearing of these appeals.

6The Appellant submitted an Affidavit of Service sworn by Linda Roberts and is marked as Exhibit 1.

7The Tribunal received a request for Participant Status from YRCC (Mosaics Community) c/o First Service Residential. The Tribunal granted Participant Status with no objections from the Parties.

8The Tribunal heard that the Parties are seeking a five (5) day Merit Hearing.

9The Tribunal hereby schedules a Hearing of these appeals commencing on Monday, January 8, 2024, at 10 a.m. Five (5) days have been set aside.

10Parties and Participants are asked to log into the Hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoToMeeting: https://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

Audio-Only Telephone Line: +1 (647) 497-9373 OR Toll-Free +1 888-299-1889

11Parties 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

12Persons 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 provided above.

13Individuals 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 Hearing by video 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

14An updated Procedural Order and Issues List is herein included as Attachment 1.

15No further notice will be given.

16The Member is not seized.

17So Orders the Tribunal.

“Carmine Tucci”

CARMINE TUCCI MEMBER

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 1

CASE NO(S).: OLT-23-000209

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

Applicant/Appellant: SmartCentres REIT (Aurora 14700 Yonge) Limited Partnership X and Calloway Real Estate Investment Trust Inc.

Subject: Zoning By-law Amendment Application – failure to make a decision

Description: To permit five mid-rise buildings and three rows of townhouses

Reference Number: ZBA-2021-04

Property Address: 14700 and 14720-14760 Yonge Street

Municipality/Upper Tier: Town of Aurora/York Region

OLT Case No.: OLT-23-000209

OLT Lead Case No.: OLT-23-000209

OLT Case Name: Calloway Real Estate Investment Trust Inc. v. Aurora (Town)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: SmartCentres REIT (Aurora 14700 Yonge) Limited Partnership X and Calloway Real Estate Investment Trust Inc.

Subject: Site Plan Control Application – failure to approve

Description: To permit five mid-rise buildings and three rows of townhouses

Reference Number: SP-2021-09

Property Address: 14700 and 14720-14760 Yonge Street

Municipality/Upper Tier: Town of Aurora/York Region

OLT Case No.: OLT-23-000210

OLT Lead Case No.: OLT-23-000209

OLT Case Name: Calloway Real Estate Investment Trust Inc. v. Aurora (Town)

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 January 8, 2024 at 10:00 a.m at https://global.gotomeeting.com/join/519389173

3. The parties’ initial estimation for the length of the hearing is 5 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. Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order. See Attachment 5 for the meaning of these terms.

5. The issues are set out in the Issues List attached as Attachment 3. 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 should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. 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 September 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.

10. Expert witnesses in the same field shall have a meeting on or before October 4, 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 October 19, 2023.

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. Copies of this must be provided as in paragraph 13 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.

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 paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before November 3, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before November 3, 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.

15. On or before November 3, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before November 22, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within twenty (20) days after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before December 8, 2023.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

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

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

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
September 22, 2023	Exchange of witness lists (names, disciplines and order to be called)
October 4, 2023	Experts Meeting
October 19, 2023	Agreed Statement of Facts
November 3, 2023	Parties to confirm with the Tribunal if all the reserved hearing dates are still required
November 3, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
November 23, 2023	Exchange of Reply Witness Statements (if any)
December 1, 2023	Exchange of visual evidence (if any)
December 8, 2023	Preparation of Joint Document Book
December 15, 2023	Hearing Plan filed with the Tribunal
January 8, 2024	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. SmartCentres REIT (Aurora 14700 Yonge) Limited Partnership X and Calloway Real Estate Investment Trust Inc.

   David Bronskill and Zachary Fleisher, Goodmans LLP dbronskill@goodmans.ca / zfleisher@goodmans.ca 416.597.4299 / 416.597.4286

2. Town of Aurora

   Patricia De Sario, Town Solicitor pdesario@aurora.ca 905.726.4758

PARTICIPANTS (OLT-23-000209)

1. YRCC 920 (Mosaics Community) c/o First Service Residential

   Kassel Prince, McIntosh Perry Consulting Engineers k.prince@mcintoshperry.com 365-509-2040

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the OLT or any party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT will be a matter of evidence at the hearing or in a motion, as necessary. 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 OLT having jurisdiction over such matters in each circumstance. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the OLT.

TOWN OF AURORA ISSUES

1. Does the proposed zoning by-law amendment (“ZBA”) and site plan application (“SPA”) have regard for matters of Provincial interest as outlined in the Planning Act?

2. Is the proposed ZBA consistent with the Provincial Policy Statement (PPS) given the location and context of the subject lands and the level of intensification proposed, with specific consideration for sections 1.1.1, 1.1.3.2, 1.1.3.4, 1.4.3, 1.5.1, 1.6.6, 1.6.7, 1.7.1, 1.8.1, 2.2.1, 3.2, and 4.0?

3. Is the proposed ZBA in conformity with to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), as amended, with specific consideration for sections 1.2.1, 2.2.1, 3.2.1, 3.2.2, 3.2.3, 3.2.6, 3.2.7, 4.2.10, and 5.2.5?

4. Does the Proposed Development conform to the Town of Aurora Official Plan, including the policies of the Promenade General, Focus Area, and Special Design Areas, with specific consideration for sections 3.1, 3.3, 4.1, 4.2, 4.3, 4.4, 5.1, 5.2, 6.1, 6.2, 6.3, 6.4, 6.5, 6.7, 11 and 14?

5. Is the Proposed Development appropriate in terms of compatibility with the existing area and in terms of avoiding negative impacts (shadows, noise, privacy) to the existing and adjacent residential uses including the townhouses on Mosaics Avenue?

6. Does the Proposed Development provide the appropriate amount, configuration and design of commercial and retail space to accommodate the needs of current and future residents?

7. Does the Proposed Development provide adequate parking supply (residential and commercial), visitor parking, and transportation and traffic management internally as well as for the surrounding area including Murray Drive and Yonge Street to accommodate the level of intensification and density being proposed?

8. Does the Proposed Development have appropriate parking space dimensions, aisle widths, bicycle parking, and loading space requirements?

9. Is the Proposed Development and entire ZBA site area appropriately phased to ensure efficient and coordinated development?

10. Does the Proposed Development represent appropriate urban design in addressing matters including height, scale, siting, transitions, building articulation, setbacks, buffers, screening, and public art, while having regard for the streetscape and public realm?

11. Is the Proposed Development appropriate for the site and surrounding area from an emergency services response perspective (including retaining the ability to appropriately serve and access the existing residential townhouses on Mosaics Avenue)?

12. Does the Proposed Development provide appropriate turning radius requirements and maneuverability for trucks, loading, and waste removal?

13. Does the Proposed Development appropriately account for existing access to Yonge Street from Mosaics Avenue at the southern portion of the site?

14. Does the Proposed Development account for accessibility needs of users through the site including sufficient accessible parking?

15. Does the Proposed Development provide sufficient amenity area for residents?

16. Does the Proposed Development provide sufficiently sized and located park and urban square opportunities?

17. Does the Proposed Development appropriately account for stormwater management and wellhead protection?

18. Has the Proposed Development accounted for all opportunities to provide pedestrian connections, including sidewalks and road crossings?

19. Is a Holding provision required to be added to the proposed Zoning By-law with respect to the requirement for filing a Record of Site Condition?

20. Is a Holding provision required to be added to the proposed Zoning By-law with respect to any potential servicing capacity constraints? Appropriate servicing and downstream sanitary sewer analysis, with civil engineering drawings and sewer capacity models will need to be updated.

21. Will the retaining wall on the southern extent of the property be improved and maintained?

22. Have all of the technical comments pertaining to the site plan application been addressed, noting that the appropriate conditions of site plan approval will need to be developed?

ATTACHMENT 4

ORDER OF EVIDENCE

1. SmartCentres REIT (Aurora 14700 Yonge) Limited Partnership X and Calloway Real Estate Investment Trust Inc.
2. Town of Aurora
3. SmartCentres REIT (Aurora 14700 Yonge) Limited Partnership X and Calloway Real Estate Investment Trust Inc.. in reply (if any)

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.