Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 16, 2023
CASE NO(S).: OLT-23-000216
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Constantine Scollard Inc.
Subject: Zoning By-law Amendment
Description: To permit a 61-storey mixed use building containing 79 dwelling units
Property Address: 23-32 Scollard Street and 21-25 Davenport Road
Municipality/UT: Toronto
Municipal File No.: 21 252450 STE 11 OZ
OLT Case No.: OLT-23-000216
OLT Lead Case No.: OLT-23-000216
OLT Case Name: Constantine Scollard Inc. v. Toronto (City)
Heard: September 28, 2023 via Video Hearing
APPEARANCES:
Parties
Counsel
Constantine Scollard Inc.
Matthew Lakatos-Hayward David Bronskill (in absentia)
City of Toronto
Gabe Szobel Adam Ward
ABC Residents Association/Greater Yorkville Ratepayer’s Association
R. Andrew Biggart
MEMORANDUM OF ORAL DECISION DELIVERED ON SEPTEMBER 28, 2023 BY S. deBOER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This decision arises from the first Case Management Conference (“CMC”) held in preparation for a hearing of the merits of the Appeal by Constantine Scollard Inc. (“Appellant”) pursuant to s. 34(11) of the Planning Act against the City of Toronto’s (“City”) refusal of the Zoning By-law Amendment Application (“ZBA”) for the lands municipally known as 23-32 Scollard Street and 21-25 Davenport Road in the City of Toronto (“Subject Properties”).
2At this CMC, the Tribunal considered requests for Party or Participant status, and secondly, set a hearing date and to finalize a Procedural Order (“PO”) and Issues List (“IL”) that is to be used to govern the merits hearing.
3The Tribunal marked the Affidavit of Service by Linda Roberts dated August 29, 2023, as Exhibit 1 for this Hearing.
BACKGROUND
4The Zoning By-law Amendment is intended to permit the redevelopment of the subject properties with a 61-storey mixed-use building. The non-residential portion would have an approximate gross floor area of 8,642 square metres. The residential portion of the redevelopment would have 79 residential dwelling units with a gross floor area of approximately 10,534 square metres.
5The Subject Properties are located west of Yonge Street between Davenport Road and Scollard Street and are approximately 1,058 square metres in size and are irregularly shaped. The Subject Properties have a frontage of 26 metres on Davenport Road and 30 metres on Scollard Street. Currently there are a series of two and three-storey buildings containing both commercial and residential uses.
STATUS REQUESTS
6Prior to the commencement of the CMC, the Tribunal received a Party request from ABC Residents Association/Greater Yorkville Ratepayer’s Association (“ABC-GYRA”). With consent of the City and the Appellant, the Tribunal granted Party status to ABC-GYRA.
7The Tribunal did not receive any Participant requests prior to, or, during the CMC.
OPPORTUNITIES FOR RESOLUTION
8The Tribunal canvassed the Parties with respect to opportunities for settlement, including the use of Tribunal-led mediation. Although the Parties had not yet explored mediation, they indicated they intended to discuss the possibility of requesting Tribunal-led mediation following the CMC. Should the Parties wish to pursue same they may contact the Case Coordinator for assistance.
PROCEDURAL ORDER AND ISSUES LIST
9A draft PO and IL was received by the Tribunal prior to the commencement of the CMC. The Tribunal reviewed same with the Parties, who were directed to revisit the IL to eliminate any repetitive issues and to submit, for the Tribunal’s review and approval, a revised PO and IL within the next five business days.
10Since the CMC, the Tribunal has received and reviewed the updated PO and IL and approves of its contents. The PO and IL will be used to govern the upcoming hearing.
SCHEDULING OF HEARING
11Based on the number of witnesses the Parties intend to call, the Tribunal has scheduled a hearing of the merits that will occur by video conference beginning on April 29, 2024, at 10 a.m. for a duration of 10 days.
12Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting Link: https://meet.goto.com/943363669
Access code: 943-363-669
13Parties 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
14Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is same as mentioned above.
15Individuals 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
16THE TRIBUNAL ORDERS that ABC-GYRA is granted Party status for the upcoming hearing.
17THE TRIBUNAL ORDERS that a Hearing of the Merits will commence on Monday April 29, 2024, at 10 a.m. for a duration of ten days.
18The Procedural Order is to govern the procedures leading up to and including the Video Hearing as set out in Attachment 1 and is in full force and effect on the issue date of this Order.
19There will be no further notice.
20The Member is not seized.
“S. DeBoer”
S. DEBOER
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.
CASE NO(S).: OLT-23-000216
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Constantine Scollard Inc.
Subject: Zoning By-law Amendment
Description: To permit a 61-storey mixed use building containing 79 dwelling units
Reference Number: 21 252450 STE 11 OZ
Property Address: 23-32 Scollard Street and 21-25 Davenport Road
Municipality/UT: Toronto
OLT Case No.: OLT-23-000216
OLT Lead Case No.: OLT-23-000216
OLT Case Name: Constantine Scollard Inc. v. Toronto (City)
- 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
The video hearing will begin on April 29, 2024 at 10:00 a.m.
The length of the hearing is ten (10) 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 parties and participants are set out in Attachment 1. See Attachment 4 for the meaning of these terms.
The issues are set out in the Issues List attached as Attachment 2. With the exception of removal or narrowing of the issues, there will be no changes to this list unless the Tribunal permits and/or the parties’ consent to the changes. A party who asks for changes to this list may have costs awarded against it.
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.
Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal as soon as possible. Any person who retains 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.
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
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, the expert witness(es)' curriculum vitae and Acknowledgment of Expert Duty form(s), and the order in which the witnesses will be called. This list must be delivered on or before January 5, 2024. For expert witnesses, a party is to identify the area of expertise in which the witness is proposed to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules of Practice and Procedure and notice of same must be served on the parties on or before January 22, 2024.
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, and updated supporting documents and reports to the other parties on or before October 30, 2023. 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.
Expert witnesses in the same field shall have at least one meeting before the hearing to try to resolve or reduce issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties and the Tribunal on or before February 12, 2024, if agreement is reached.
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. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that they intend to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the parties at the same time as the delivery of witness statements, as in paragraph 13.
A witness (including any expert witness) or participant must provide to the Tribunal and the parties a witness statement (full disclosure including reports) or participant statement, respectively, on or before February 26, 2024 or the witness may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, except as permitted by the Ontario Land Tribunal Act, 2021 and the Tribunal's Rules of Practice and Procedure.
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.
On or before March 15, 2024, the parties may provide to all other parties a written response to any written evidence.
On or before March 31, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before April 12, 2024, the parties shall provide copies of their visual evidence to all of the other parties. The Tribunal and all parties shall be notified if a model will be used, and all parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.
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.
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 on or before April 22, 2024 that the written evidence is not part of their record.
On or before April 19, 2024, the parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.
The parties shall prepare a Joint Document Book on or before April 19, 2024, and which, if requested by the Tribunal, one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with paragraph 22.
All filing of documents and materials shall be electronic to the Tribunal, the parties and participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable should it request same. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, or as may be amended. Paragraph 22 applies regardless if the hearing event is in-person or electronic.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted in paragraph 10. The Tribunal’s Rule 17 applies to such requests.
The Tribunal may conduct mediation on consent of all parties, on consent of those parties who wish to participate in mediation, or if the Tribunal sees fit.
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.
SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| October 30, 2023 | Last date to provide copies of revised proposal, including all revised plans and drawings (if any) |
| January 5, 2024 | Exchange of witness lists (names, disciplines, and order to be called) |
| January 22, 2024 | Last date to challenge identification of expert witness |
| February 12, 2024 | Agreed Statement of Facts |
| February 26, 2024 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| March 15, 2024 | Exchange of Reply Witness Statements (if any) |
| March 31, 2024 | Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any) |
| April 12, 2024 | Exchange of visual evidence (if any) |
| April 19, 2024 | Final Work Plan and Joint Document Book filed with the Tribunal |
| April 29, 2024 | Hearing commences |
ATTACHMENT 1
PARTIES/PARTICIPANTS
Parties
Constantine Scollard Inc. David Bronskill/Matthew Lakatos-Hayward (416) 597-4299/(416) 849-6906 dbronskill@goodmans.ca/mlakatoshayward@goodmans.ca
City of Toronto Adam Ward/Gabe Szobel (416) 394-2787/ (416) 338-1889 adam.ward@toronto.ca/gabe.szobel@toronto.ca
ABC Residents Association/Greater Yorkville Ratepayers’ Association R. Andrew Biggart (416) 622-6601 x 1003 abiggart@ritchieketcheson.com
ATTACHMENT 2
ISSUES LIST
City of Toronto
Site-Specific Issues
- Is the development's proposed height appropriate, and does it represent good planning? In particular:
(a) Does the proposed height conform with Official Plan policies: 3.1.3 and 3.1.4 (Built Form), and 4.5 (Mixed Use Areas)?
(b) Does it conform with the Downtown Plan (OPA 406)?
(c) Does it conform with Site and Area Specific Policy 211?
(d) Does it have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines?
- Is the development's proposed massing, including setbacks, stepbacks, scale, separation distances, streetwall height, density, and design appropriate, and does it represent good planning? In particular:
(a) Does the proposed massing conform with Official Plan policies: 3.1.1 (Public Realm), 3.1.3 and 3.1.4 (Built Form) and 4.5 (Mixed Use Areas)?
(b) Does the proposed massing conform with the Downtown Plan (OPA 406)?
(c) Does the proposed massing conform with Site and Area Specific Policy 211?
(d) Does the massing of the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines?
(e) Does the proposed development represent over-development of the site?
- Is the proposed development's relationship with the public realm, including the setback from Yonge Street, and resulting streetscape appropriate, and does it represent good planning? In particular:
(a) Does it conform with Official Plan policies 3.1.1 (Public Realm), 3.1.3 and 3.1.4 (Built Form), and 4.5 (Mixed Use Areas)?
(b) Does it conform with the Downtown Plan (OPA 406)?
(c) Does it conform with Site and Area Specific Policy 211?
(d) Does the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines?
(e) Does it meet the requirements of the Toronto Green Standard?
- Does the proposed developments shadow impact, including impacts on shadow sensitive areas such as Belmont House, represent good planning? In particular:
(a) Does it conform with Official Plan policies: 3.1.3 and 3.1.4 (Built Form) and 4.5 (Mixed Use Areas)?
(b) Does it conform with the Downtown Plan (OPA 406)?
(c) Does it conform with Site and Area Specific Policy 211?
(d) Does the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines?
Has the applicant demonstrated that adequate municipal services are in place to support the development, including but not limited to the availability of adequate sanitary sewage capacity and the implementation of appropriate stormwater management measures and groundwater management measures?
In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the City Solicitor has indicated that the following conditions have been satisfied:
(a) The proposed Official Plan Amendment and Zoning By-law Amendment are in a form and content satisfactory to the Chief Planner and Executive Director, City Planning and City Solicitor; and
(b) The owner has addressed outstanding issues in relation to site servicing and has submitted a revised Functional Servicing and Stormwater Management Report and a detailed Hydrogeological providing confirmation of water, sanitary and stormwater capacity to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and entered into and registered a financially secured agreement satisfactory to the Chief Engineer and Executive Director, Engineering and Construction Services to construct, provide, make operational, and warrant any necessary upgrades to existing services and facilities or new services and facilities.
Legislative and Policy Tests
- Does the proposed development satisfy the applicable legislative and policy tests? Specifically:
(a) Does the proposed development have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including subsections 2 (f) and (r)?
(b) Does the proposed development have appropriate regard for the decision of City Council as required by Section 2.1 of the Planning Act?
(c) Would a decision to refuse the proposed development be consistent with the Provincial Policy Statement as required by Section 3(5) of the Planning Act?
(d) Would a decision to refuse the proposed development conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe as required by Section 3(5) of the Planning Act?
(e) Does the proposed development conform with the applicable policies of the City of Toronto Official Plan, Downtown Plan, and Site and Area Specific Policy 211?
(f) Would approval of the proposed development and Official Plan and Zoning By-law Amendments represent good planning and good urban design? Would it be in the public interest?
ABC Residents Association/Greater Yorkville Ratepayers’ Association
Does the proposed development have appropriate regard for matters of provincial interest set forth in Section 2 of the Planning Act, including 2(h), 2(o), and 2(r) of the Planning Act?
Is the proposed development consistent with the Provincial Policy Statement 2020, including sections 1.0, 1.1, 1.1.3, 1.5, and 4.0.
Does the proposed development conform to and not conflict with the Provincial Growth Plan for the Greater Golden Horseshoe 2020, including section 1.2.1, 1.2.3, 2.2.1, 4.2.5, 5.2.
In addition to adopting Issues 1(a) through (d) of the City of Toronto’s Issues:
(a) Does the proposed height have appropriate regard for the Bloor-Yorkville/North Midtown Urban Design Policies?
(b) Does the proposed development adequately limit the impact of its shadows on shadow sensitive areas and uses?
- In addition to adopting Issues 2(a) through (e) of the City of Toronto’s Issues:
(a) Does the proposed massing have appropriate regard for the Bloor-Yorkville/North Midtown Urban Design Policies?
(b) Does the proposed development adequately limit the impact of its shadows on shadow sensitive areas and uses?
Issues 3(a) through (e) of the City’s Issues are adopted by ABC and GYRA.
Issues 4(a) through (d) of the City's Issues are adopted by ABC and GYRA
Would approval of the proposed development and Zoning By-law Amendments:
(a) represent good planning and good urban design?
(b) be in the public interest?
ATTACHMENT 3
ORDER OF EVIDENCE
Constantine Scollard Inc.
City of Toronto
ABC Residents Association/Greater Yorkville
Constantine Scollard (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 authorization 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.