Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 15, 2023 CASE NO(S).: OLT-23-000720

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

Applicant and Appellant: Curated North Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a 40-storey residential building with 487 units Reference Number: PLAN 22 265093 Property Address: 17, 19, 21 and 23 Morgan Avenue Municipality/UT: City of Markham/ Regional Municipality of York OLT Case No.: OLT-23-000720 OLT Lead Case No.: OLT-23-000720 OLT Case Name: Curated North Inc. v. Markham (City)

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

Applicant/Appellant: Curated North Inc. Subject: Application to amend the Zoning By-law – Neglect to make a decision Description: To permit a 40-storey residential building with 487 units Reference Number: PLAN 22 265093 Property Address: 17, 19, 21 and 23 Morgan Avenue Municipality/UT: City of Markham/ Regional Municipality of York OLT Case No.: OLT-23-000721 OLT Lead Case No.: OLT-23-000720

Heard: October 11, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Curated North Inc.	D. Bronskill
City of Markham	A. Biggart, M. Cheung-Madar
Canadian National Railway Company	K. Pirak
Sunfield Homes Ltd.	J. Fraser, S. Tomasella

MEMORANDUM OF ORAL DECISION DELIVERED BY S. Dixon ON October 11, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) held regarding appeals filed by Curated North Inc. (“Appellant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), regarding Official Plan and Zoning By-law Amendment applications (“Applications”) in the City of Markham (“City”) for lands municipally known as 17, 19, 21 and 23 Morgan Avenue (“Subject Lands”).

2The Applications seek to facilitate the development of a 40-storey residential building with 387 dwelling units.

3The City did not make a decision on the Applications within the statutory timeframe established by the Act and the Appeals were filed on that basis.

SERVICE OF NOTICE

4The Tribunal was in receipt of an Affidavit of Service sworn by Nancy Borges on September 6, 2023, which was marked as Exhibit 1. There were no issues with the service of notice for the CMC and as such, no further notice is required.

REQUESTS FOR STATUS

5The Tribunal was in receipt of two requests for Party Status from (1) Canadian National Railway Company (“CN”) and (2) Sunfield Homes Ltd. (“Sunfield”).

6CN has an active rail line approximately 215 metres to the south of the Subject Lands and wants to ensure that its operations are not impacted by the Applications. They provided comments to the City relating to noise, vibration, air quality, and safety as part of the application review process.

7Sunfield owns seven contiguous properties to the immediate south of the Subject Lands (“Sunfield Properties”). They want to ensure that the proposed redevelopment of the Subject Property does not negatively impact the development potential of the Sunfield Properties.

8The requests for Party Status were not opposed by the Appellant or the City and were both granted by the Tribunal.

9The Tribunal was in receipt of a Participant Status Request and Participant Statement from Ward One (South) Thornhill Residents Inc. (“WOSTRI”), represented at the CMC by Brian Fischer and Evelin Ellison. WOSTRI has concerns with the proposed scale, design, servicing, and environmental considerations associated with the Applications. Their request was not opposed by any of the Parties and WOSTRI was granted Participant Status by the Tribunal.

OPPORTUNITIES FOR SETTLEMENT

10The Parties advised the Tribunal that they are open to informal and/or Tribunal-led mediation but require further discussion amongst themselves before proceeding in that regard. Should Tribunal-led mediation be desired, the Parties will contact the Tribunal to request same.

PROCEDURAL ORDER AND ISSUES LIST

11The Appellant provided the Tribunal with a Draft Procedural Order (“DPO”) in advance of the CMC, which was generally acceptable to the Tribunal. However, given the additional status requests, a Draft Issues List (“DIL”) was not prepared. The Tribunal directed that the Parties finalise a DPO and DIL and provide them to the Tribunal no later than Friday, October 27, 2023.

12The updated DPO and DIL were sent to the Tribunal on Friday, November 3, 2024. The Tribunal has reviewed and modified same and hereby approves the Procedural Order and Issues List attached to this Decision and Order as Schedule 1.

HEARING DATES

13The Appellant requested that a 10-day hearing be scheduled for this matter. However, that request was opposed by the City on the basis that the Subject Lands are in an area of the City that is currently being studied from a land use planning perspective and that is ultimately intended to be part of a future Yonge Street Corridor Secondary Plan. While the study is in its early stages, the City anticipates that a preferred development concept for the study area will be released in 2024. It is their position that a hearing of merits for the Applications in advance of the study completion would be highly prejudicial to the City and the study itself.

14The City also noted that potential mediation between the Parties and the drafting and refinement of the Issues List could affect the need for and/or timing of a hearing. Rather than schedule a hearing at this stage, the City proffered that scheduling a second CMC would allow the Parties to address the variables of this case prior to scheduling a hearing. Counsel for the City noted that should the Tribunal schedule a hearing at this time, the City is prepared to bring a motion requesting the adjournment of same.

15The Appellant took issue with the City’s position, noting that the Appeals were filed because of the City’s failure to decide on the Applications within the statutory timeframe of the Act. Waiting even longer for a study to be completed, counsel proffered, would be highly prejudicial to the Appellant, particularly considering that there is no firm completion date for the City’s study. Counsel further proffered that the Applications should be evaluated against the policies that were in force at the time the Applications were submitted, not against the unknown provisions of a policy document that does not yet exist.

16CN and Sunfield did not oppose the scheduling of a hearing.

17The Tribunal found it prudent to schedule a second CMC for early in the new year to allow the Parties time to discuss the issues and provide the Tribunal with an update on any potential revisions to the Applications, settlement opportunities, the status of the City’s study, and to address any motions, if necessary. Accordingly, the Tribunal scheduled a second CMC for Wednesday, January 10, 2024.

18The Tribunal notes that discussions between the Parties in advance of the second CMC may result in a refinement of the issues contained in the Issues List attached to this Decision and Order. Any proposed changes to the Issues List shall be addressed at the second CMC for the Tribunal’s consideration.

19The Tribunal also found it prudent to schedule a hearing, particularly considering the lack of availability of certain Parties until the latter half of 2024. In response to the City’s assertion that they are prepared to file a motion to adjourn the Hearing, the Tribunal directed the City to file any such motion in writing.

20Regarding the number of days to set aside for the Hearing, the Tribunal considered the addition of two Parties, the prospective issues in this matter, and the number of witnesses that may be called by all Parties after hearing submissions pertaining to same. Accordingly, the Tribunal scheduled a 12-day Video Hearing commencing Tuesday, September 3, 2024. The Tribunal will not sit on Monday, September 9, 2024 or Tuesday, September 10, 2024. The Hearing is therefore scheduled to conclude on Friday, September 20, 2024.

21The Second CMC and Hearing are each scheduled to proceed by Video Hearing, as follows:

Wednesday, January 10, 2024 at 10 a.m. (one-day CMC) https://global.gotomeeting.com/join/765631861 Access Code: 765-631-861 Audio-Only Telephone Line: +1 (647) 497-9391 or (Toll Free) 1-888-455-1389 Audio-Only Access Code: As indicated above.

Tuesday, September 3, 2024 at 10 a.m. (12-day Merit Hearing) https://meet.goto.com/996288525 Access Code: 996-288-525 Audio-Only Telephone Line: +1 (647) 497-9391 or (Toll Free) 1 888 455 1389 Audio-Only Access Code: As indicated above.

22Parties are asked to log into the Video Hearings at least 15 minutes before the start of the events to test their video and audio connections:

23Parties 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.

24Persons 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 as indicated above.

25Individuals are directed to connect to the events on the assigned dates at the correct times. It is the responsibility of the persons participating in the Video Hearings to ensure that they are properly connected to the events at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

26THE TRIBUNAL ORDERS that the Procedural Order and Issues List attached as Schedule 1 to this Order are approved.

27THE TRIBUNAL ORDERS that a Case Management Conference will commence by Video Hearing on Wednesday, January 10, 2024 at 10 a.m.

28THE TRIBUNAL ORDERS that a hearing of merits will commence by Video Hearing on Tuesday, September 3, 2024 at 10 a.m. 12 consecutive days have been set aside for the Hearing, excluding September 9 and 10, 2024.

“S. Dixon”

S. DIXON 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.

SCHEDULE 1

CASE NO.: OLT-23-000720

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

Applicant/Appellant: Curated North Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a 40-storey residential building with 487 units Reference Number: PLAN 22 265093 Property Address: 17, 19, 21 and 23 Morgan Avenue Municipality/UT: City of Markham/Regional Municipality of York OLT Case No.: OLT-23-000720 OLT Lead Case No.: OLT-23-000720 OLT Case Name: Curated North Inc. v. Markham (City)

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

Applicant/Appellant: Curated North Inc. Subject: Application to amend the Zoning By-law – Neglect to make a decision Description: To permit a 40-storey residential building with 487 units Reference Number: PLAN 22 265093 Property Address: 17, 19, 21 and 23 Morgan Avenue Municipality/UT: City of Markham/Regional Municipality of York OLT Case No.: OLT-23-000721 OLT Lead Case No.: OLT-23-000720

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

Organization of the Hearing

2. The video hearing will begin on September 3, 2024 at 10 a.m. A second video case management conference is scheduled for January 10, 2024 at 10 a.m.

3. The length of the hearing is twelve (12) days (not sitting on September 9-10, 2024). 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 case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

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.

6. The 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.

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 April 26, 2024, 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 challenges to the 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 May 10, 2024.

10. Expert witnesses in the same field shall have a meeting 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 June 28, 2024.

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 June 28, 2024, 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.

14. On or before June 28, 2024, 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 July 30, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before July 29, 2024, 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 on or before July 19, 2024, 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 August 16, 2024.

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 August 16, 2024, 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. 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. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties before March 1, 2024. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for the Tribunal to adjourn the hearing.

24. 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.

SUMMARY OF DATES

DATE	EVENT
March 1, 2024	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
April 26, 2024	Exchange of witness lists (names, disciplines and order to be called)
May 10, 2024	Challenges to qualifications of witnesses, if any
June 28, 2024	Experts Meeting and Agreed Statement of Facts
June 28, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
July 19, 2024	Exchange of Reply Witness Statements (if any)
July 29, 2024	Exchange of visual evidence (if any)
July 30, 2024	Parties to confirm with Tribunal if all hearing dates are required
August 16, 2024	Final Hearing Plan filed with the Tribunal
August 16, 2024	Joint Document Book filed with the Tribunal
September 3, 2024	Hearing commences

ATTACHMENT 1

PARTIES/PARTICIPANTS

Parties

1. Curated North Inc. David Bronskill (416) 597-4299 dbronskill@goodmans.ca

2. City of Markham Andrew Biggart (416) 622-6601, x. 1003 abiggart@ritchieketcehson.com

3. Canadian National Railway Company Katarzyna Sliwa/Kevin Pirak (416) 863-4628/(416) 863-4566 kat.sliwa@dentons.com/kevin.pirak@dentons.com

4. Sunfield Homes Ltd. Sidonia Tomasella/Jasmine Fraser (416) 865-7763/(647) 426-2316 stomasella@airdberlis.com/jcmfraser@airdberlis.com

Participants

1. Ward One (South) Thornhill Residents Inc. c/o Brian Fischer & Evelin Ellison (905) 731-7571/(905) 889-1351 fischer@sympatico.ca/vp@thornhillwardone.com

ATTACHMENT 2

ISSUES LIST

Note: The identification of an issue on this 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 will be a matter of evidence and argument at the hearing.

City of Markham

1. Does the proposed development have appropriate regard for the matters of provincial interest set out in Section 2 of the Planning Act, including subsections (f), (h), (i), (j), (m), (p), (r)?
2. Is the proposed development consistent with the Provincial Policy Statement (2020) as required by Section 3(5) of the Planning Act, including but not limited to sections 1.1.1, 1.1.3, 1.2.1, 1.4.1, 1.4.3, 1.6.6, 1.6.8?
3. Does the proposed development conform to and not conflict with the Growth Plan for the Greater Golden Horseshoe (2020), as required by Section 3(5) of the Planning Act, including but not limited to policies 2.2.1.1, 2.2.1.3, 2.2.1.4, 2.2.2.2, 2.2.4.9.a, 2.2.4.11, and 2.2.6.1.a?
4. Does the proposed development conform to the in force 2022 York Region Official Plan, including but not limited to sections:
   1. 2.3.41 – Foundation for Complete Communities;
   2. 4.4.1, 4.4.5, 4.4.10, 4.4.11, 4.4.17, 4.4.19, 4.4.21, 4.4.24, 4.4.25, and 4.4.42 – An Urbanizing Region – Intensification; and
   3. 6.2.3, 6.3.3, 6.4.3, 6.5.7 – Servicing our Communities?
5. Does the proposed development conform to and have appropriate regard for the 2014 City of Markham Official Plan, including but not limited to the following sections:
   1. 2.2.2.1, 2.2.2.4, 2.4.3, and 2.4.9 - Sustainable Growth;
   2. 4.1.1.1, 4.1.2.4, 4.1.3.1, 4.2.1.1, 4.2.3.1, 4.3.1.1, and 4.3.1.4 - Healthy Neighbourhoods and Communities;
   3. 6.1.8.4, 6.1.8.5, 6.1.8.7, 6.1.8.8, and 6.1.8.10 - Urban Design and Sustainable Development;
   4. 8.1.5, 8.2.1.1.a), 8.2.1.3, 8.2.4.1, 8.2.4.4, 8.2.4.5, 8.3.1.1, 8.3.1.2, 8.3.1.4, 8.3.4.1, 8.3.4.4, and 8.3.4.5.d) - Land Use;
   5. 9.18.6, 9.18.7,9.18.8.2, 9.18.8.3, and 9.18.8.4 - Thornhill; and
   6. 10.1.2.1, 10.1.2.2, 10.1.2.4, 10.1.2.5, 10.1.2.8, 10.1.4 – Implementation?
6. Is the proposed development compatible and appropriate in its urban design/built form, in terms of the following: height, density, scale, massing and built form, setbacks, transition, and siting of the proposed building, given the established residential communities surrounding the subject lands?
7. Are the community amenities, including parks, amenity space, libraries, schools, and recreational facilities, adequate in size for the amount of density proposed? Is there an opportunity or a need for an off-site public park?
8. Should the proposed development provide pedestrian connections to the Clark subway station that extends to the western property line?
9. Does the proposed development include an appropriate amount of affordable housing?
10. Is it premature or good planning to approve the proposed development until:
    1. All studies, policies, principles and schedules of the City’s Yonge Street Corridor Secondary Plan are finalized;
    2. A second statutory public meeting is held to seek public input on the revised proposal;
    3. A comprehensive block plan is complete;
    4. A revised Transportation Mobility Plan has been received to the satisfaction of the City;
    5. Third parties’ comments including those required by Metrolinx, CN Rail, and the school boards, have been addressed satisfactorily;
    6. Confirmation that the proposed development can be appropriately serviced in terms of water, wastewater and storm water management infrastructure capacity and allocation and that this infrastructure and capacity can be evenly and appropriately distributed for the entire Yonge Street Corridor Secondary plan area; and
    7. The planned transportation networks including the Clark subway station and any bus routes and other facilities upgrades are operational?
11. Is it appropriate to apply a holding provision to the Zoning By-law Amendment to address:
    1. Servicing infrastructure including appropriate water and sanitary sewage capacity and allocation;
    2. Reimbursement agreement for the oversized Meadowview-Dudley Sanitary Sewer to be enforced as the proposed development falls within the area subject to this agreement; and
    3. Transportation improvements, including but not limited to any possible road realignments to support the delivery of the Clark subway station which is intended to support and justify the density proposed.
12. Does the proposed development represent good planning and is it in the public interest?
13. If the requested Official Plan Amendment and Zoning By-law Amendment applications are approved by the Tribunal, should the Tribunal's final Order be withheld until the Tribunal has been advised by the City that: a. The proposed Zoning By-law Amendment and Official Plan Amendment are in forms satisfactory to the City; b. The appellant has provided additional studies and/or reports to satisfy matters as set out in Issue #10 above and the appellant has entered into any agreements required to secure any required upgrades or improvements to the existing municipal infrastructure should they be required, all to the satisfaction of the City; and c. The City is satisfied with the form and tenure of proposed affordable housing and has entered into any agreements required to secure affordable housing with the appellant.

Canadian National Railway Company

Planning Act and Planning Policies

1. Does the proposed Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) have sufficient regard to matters of provincial interest as outlined in sections 2 (f), (h), (l), (m), (n), (o), (p) and (r) of the Planning Act?
2. Do the proposed OPA and ZBA take into consideration matters addressed by the Places to Grow Act, 2005, in particular section 14(4)?
3. Is the proposed OPA and ZBA: a. consistent with the Provincial Policy Statement 2020 (“PPS”), specifically Part III, Part IV and Part V policies 1.0, 1.1.1, 1.1.2, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.2.1 a), b) and d), 1.2.3, 1.3.1, 1.4.3 (b)(1.), 1.4.3(f), 1.6.1, 1.6.2, 1.6.3, 1.6.4, 1.6.7.1, 1.6.7.2, 1.6.7.3, 1.6.8.1, 1.6.8.2, 1.6.8.3, 1.6.8.4, 1.6.8.5, 1.6.9.1, 1.7.1 a), c), g), k); 4.0 and associated definitions; b. conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”) specifically sections: 1.2, 1.2.1, 1.2.3, 2.1, 2.2.1.3(c), 2.2.1.4, 2.2.2.3, 2.2.5.1, 2.2.5.2, 2.2.5.5, 2.2.5.8, 3.1, 3.2.1.1, 3.2.1.2, 3.2.1.4, 3.2.1.5, 3.2.2.1, 3.2.2.2, 3.2.4, 3.2.5., 4.2.10.1 (a), (c) and (i), 4.2.10.2 (a), 5.2.3.1, 5.2.4.5, 5.2.5.8 and associated schedules and definitions; c. conform with the 2022 Region of York Official Plan, specifically sections: 1.4, 2.1.3.a, 2.1.4.a, 2.1.4.d, 2.2, 2.2.2, 2.2.4, 2.2.5, 2.2.10, 2.3, 2.3.1, 2.3.2, 2.3.4, 2.3.5, 2.3.11, 2.3.28, 2.3.46, 2.3.50, 4.1, 4.1.2, 4.1.3, 4.1.5, 4.2.1, 4.2.17, 4.2.18, 4.4, 4.4.1, 4.4.3, 4.4.4, 4.4.9, 4.4.12, 4.4.14, 4.4.18, 4.4.19, 4.4.20, 4.4.34.c, 4.4.36, 4.4.37, 4.4.38, 4.4.42 (a, b), 4.4.47, 4.4.49, 6.0, 6.1, 6.1.1, 6.2, 6.2.1, 6.2.5, 6.3.37, 6.3.52, 6.3.53, 6.3.58, 6.5.3, 7.0, 7.1, 7.3.2, 7.3.8.a, 7.4.11 and associated schedules and definitions; and d. conform with the approved City of Markham Official Plan (As approved in June 2014, as amended) specifically sections: 1.1, 1.2, 1.3.2, 1.4.1, 1.4.3 (h), 2.1, 2.2.2, 2.2.2.1, 2.2.2.2, 2.2.2.3, 2.2.2.5, 2.2.4, 2.2.4.1, 2.2.5, 2.2.5.1, 2.3.2 (h), 2.4, 2.4.9, 2.4.11, 2.5, 2.5.2, 2.2.5.1, 2.2.5.1, 2.5.2.2, 4.0, 4.1.1.1, 5.1, 5.1.1, 5.1.1.1 (a, b, d), 5.1.1.2, 5.1.1.4, 5.1.1.8, 5.1.3.1 (a), 5.1.4.3, 5.1.7, 5.1.7.2, 6.1, 6.1.1.1 b), 6.1.1.1 c), 6.1.1.1. e), 6.1.1.1 j), 6.1.1.1 k), 6.1.1.3, 6.1.1.5 i), 6.1.8, 6.1.8.2. 6.1.8.3 b), 6.1.8.4, 6.1.8.5, 6.2.2, 6.2.2.1, 7.1, 7.1.1.1 b), 7.1.6, 7.1.6.1, 7.1.6.2, 7.1.6.2 b), 7.1.6.6, 7.1.6.10, 7.1.7, 7.1.7.1, 7.1.7.2, 8.0, 8.1.5, 8.3, 8.3.1.1, 8.3.1.2, 8.3.1.4 j), 8.3.4, 8.3.4.1, 8.3.4.2, 8.3.4.3, 8.4.3.4, 8.3.4.5, 8.10, 8.10.10.1, 9.18.2, 9.18.8.1, 10.1, 10.1.2, 10.2.1.4, 11.1.1, 11.1.2, and associated schedules and definitions.

GGH Transportation Plan

4. Should the OPA and ZBA have regard to the 2051 Greater Golden Horseshoe Transportation Plan, and if so, do these instruments have proper regard for them?

Railway Operations

5. Do the OPA and ZBA give consideration to CN’s statutory rights, obligations and the legislation that governs CN operations including sections 5, 95, 95.1, 95.2, 95.3, and 98 of the Canada Transportation Act (S.C. 1996), c. 10 and sections 8(1), 19, 47.1 of the Railway Safety Act (1985, c.32) and associated guidelines and regulations? Specifically, in relation to its mandate to carry products, including dangerous goods, operate a railway, noise, vibration and odour emissions, and its ability to add additional infrastructure on railway lands?

Freight Supportive Guidelines

6. Do the Province of Ontario’s Freight Supportive Guidelines apply to the development application, and if so does the proposed development meet the requirements of the Province of Ontario’s Freight Supportive Guidelines?

FCM/RAC Guidelines/NPC-300/CN Guidelines

7. Do the proposed OPA and ZBA have regard to the Federation of Canadian Municipalities/Railway Association of Canada Guidelines for New Development in Proximity to Railway Operations (“FCM/RAC Guidelines”)? How should the FCM/RAC Guidelines be applied?
8. Should the acoustic assessment take into consideration the frequency content/character of the noise sources and the following federal documents: • “Guidelines for the Resolution of Complaints Concerning Railway Noise and Vibration”, Canadian Transportation Agency, October 2008; • “Railway Noise Measurement and Reporting Methodology”, Canadian Transportation Agency, August 2011; and • “Guidance for Evaluating Human Health Impacts in Environmental Assessment: NOISE”, Health Canada, January 2017?
9. Do the proposed OPA and ZBA have regard to NPC-300 and its requirements, including acoustic assessment and feasibility under Class 1 and Class 4 and in the context of the role of the Canadian Transportation Agency in addressing noise complaints?
10. Do the proposed OPA and ZBA rely on an appropriate assessment of the transportation noise sources in the area (i.e., all sources and with current data) and the required building component requirements to meet the applicable indoor noise criteria?
11. Do the proposed OPA and ZBA rely on an appropriate consideration of the cumulative impact of all transportation noise sources and the required acoustical mitigation measures?

Mitigation/Implementation

12. If the proposed development is approved, how will any required mitigation measures be secured and enforced by the municipality?
13. Is the use of condominium declarations an appropriate means to secure long term mitigation measures? If it is not, should the development be approved?
14. If development of sensitive land uses is feasible and good planning, should any private agreements under NPC-300, environmental easements and agreements under the Industrial Mining and Lands Compensation Act be required for the residential development of the Subject Lands?
15. Is residential development or other sensitive uses on the Subject Lands in the proposed OPA and ZBA good planning?
16. If residential development is feasible on all or a portion of the Subject Lands what policies should be contained in the OPA to ensure the implementation and maintenance of any necessary on-site receptor mitigation and phasing to address any environmental and land use impacts?
17. What planning tools and agreements are needed and may be utilized to secure implementation of recommendations of technical studies and other requirements identified through the review and consideration of the OPA and ZBA?

Sunfield Homes Ltd.

1. Does the proposed development conform to the in force 2022 York Region Official Plan, in particular sections 4.4.1, 4.4.5, 4.4.17, and 4.4.19?
2. Does the proposed development conform to and have appropriate regard for the 2014 City of Markham Official Plan, in particular sections 2.2.2.1, 2.2.2.4, 2.4.3, 2.4.9, 4.1.2.4 c), 6.1.8.4, 6.1.8.8, 8.1.5, 8.2.4.1, 8.2.4.5, 8.3.4.1, 8.3.4.4, 8.3.4.5, and 9.18.6?
3. Is the proposed development compatible and appropriate in terms of the following: scale, massing and built form, setbacks, transition, and siting of the proposed building, relative to the surrounding context and, particularly, the redevelopment potential of the lands at 16 to 30 Glen Cameron Road?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Curated North Inc.
2. City of Markham
3. Canadian National Railway Company
4. Sunfield Homes Ltd.
5. Curated North Inc., in reply (if any)

ATTACHMENT 4

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.