Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 21, 2023
CASE NO(S).: OLT-22-004660
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Berkeley Carlyle (Junction) Inc.
Subject: Zoning By-law Amendment
Description: To permit construction of two residential buildings with 535 units and a total GFA of 52,980 square metres
Property Address: 159,161-181 Mulock Ave. & 6 Lloyd Ave.
Municipality/UT: Toronto
Municipal File No.: 19 239452 WET 05 OZ
OLT Case No.: OLT-22-004660
OLT Lead Case No.: OLT-22-004660
OLT Case Name: Berkeley Carlyle (Junction) Inc. v. Toronto (City)
Heard: June 1, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel/Agent* |
|---|---|
| Berkeley Carlyle (Junction) Inc. (Appellant / Applicant) | Daniel Artenosi and Michael Cara |
| City of Toronto | Gabe Szobel |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN ON October 25, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the third Case Management Conference (“CMC”) respecting an appeal by Berkeley Carlyle (Junction) Inc. (the “Applicant/Appellant”) following City of Toronto (“City”) Council’s failure to render a decision within the statutory time frame respecting a revised application for a Zoning By-law Amendment to permit the re-development 159, 161-181 Mulock Avenue and 6 Lloyd Avenue (“Subject Property”), in order to construct two residential buildings with heights of 31 and 44 storeys and one eight-storey office building, with a total floor space index (“FSI”) of 8.37.
STATUS UPDATE
2Parties informed the Tribunal at the second CMC, that a draft Procedural Order and Issues List (“PO/IL”) would be prepared prior to the third CMC. Prior to the hearing, Parties provided the Tribunal the draft PO/IL. Following the third CMC, the Tribunal received a final draft PO/IL from the Parties. The Tribunal finds the draft PO/IL acceptable and the proceedings shall be governed by it (see Schedule 1 attached to this decision).
3On consent of all Parties, a Hearing of six (6) days was requested.
HEARING
4Upon request of the Parties, the Tribunal set a six-day (6-day) Hearing to commence on Monday, April 15, 2024 at 10 a.m. by Video Hearing. No further Notice is required for the hearing.
5Parties and Participants are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Conference Link: https://meet.goto.com/943363669
Access code: 943-363-669
6Parties 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.
7Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated in paragraph 5 above.
8Individuals 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 Video Hearing 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.
9There will be no further notice and this panel is not seized.
ORDER
10THE TRIBUNAL ORDERS that:
The date and particulars of the hearing are set out above in this decision; and
The Procedural Order appended as Schedule 1 shall govern the proceedings.
“S. Mann”
S. MANN 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
Ontario Land Tribunal
Procedural Order
CASE NO.: OLT-22-004660
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Berkeley Carlyle (Junction) Inc.
Subject: Zoning By-law Amendment
Description: To permit construction of two residential buildings with 535 units
Property Address: 159, 161-181 Mulock Ave. & 6 Lloyd Ave.
Municipality/UT: City of Toronto
OLT Case No.: OLT-22-004660
OLT Lead Case No.: OLT-22-004660
OLT Case Name: Berkeley Carlyle (Junction) 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 hearing will begin on Monday, April 15, 2024 at 10:00 a.m.
The length of the hearing will be 6 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.
In the event that oral hearings are not possible at the time of the final case management conference, the hearing referenced in paragraph 1 above may be converted to a video hearing at that time.
The Parties identified at the Case Management Conference are listed in Attachment 2 to this Order.
The Issues are set out in the Issues List attached as Attachment 3 to this Order. 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.
The order of evidence is 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 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. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.
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. (https://olt.gov.on.ca/tribunals/lpat/).
Requirements Before the Hearing
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal to the other Parties which for the purposes of this paragraph shall consist of revised architectural plans and drawings on or before December 18, 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.
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 December 28, 2023. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and is to provide a copy of their curriculum vitae. 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 and notice of same must be served on the other Parties on or before January 8, 2024.
Expert witnesses in the same discipline(s) shall have at least one meeting on or before January 17, 2024 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting(s) 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 the Parties and the Tribunal on or before February 1, 2024.
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 paragraph 16. 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 the Tribunal's Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends 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 other parties at the same time as the delivery of expert witness statements, as in paragraph 16.
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 16.
On or before February 16, 2024, a Participant shall provide copies of their written participant statement to the other Parties and to the Tribunal in accordance with paragraph 23 below. A Participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before February 16, 2024, the Parties shall provide copies of their witness and expert witness statements to the other Parties and to the Tribunal case coordinator and in accordance with paragraph 23 below.
On or before March 18, 2024, the Parties shall provide copies of their written response(s) to any written evidence to the other Parties and to the Tribunal in accordance with paragraph 23 below.
On or before March 27, 2024, the Parties shall file with the Tribunal a detailed Work Plan that identifies the following, at a minimum: the Parties participating in the hearing, preliminary matters to be addressed (if any), 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. In the event of a disagreement between the Parties about the Work Plan, the Tribunal may be spoken to.
The Parties shall prepare a Joint Document Book On or before March 27, 2024, and which 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 23 below.
On or before April 1, 2024, the Parties shall provide copies of their visual evidence to the other Parties and the Tribunal in accordance with Section 23.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with Rule 10 of the Tribunal’s Rules.
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.
All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7 of the Tribunal’s Rules.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. Rule 17 of the Tribunal’s Rules shall apply 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 5.
This Member is not seized.
ATTACHMENT 1
SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| December 18, 2023 (120 days prior to hearing) | Last date to provide copies of revised proposal, including all revised plans and drawings (if any) |
| December 28, 2023 (110 days prior to hearing) | Exchange of Witness Lists |
| January 8, 2024 (99 days prior to hearing) | Deadline to Challenge Witnesses or Qualifications |
| January 17, 2024 (90 days prior to hearing) | Experts meeting(s) prior to this date |
| February 1, 2024 (75 days prior to hearing) | Deadline to File Any Agreed Statement(s) of Facts |
| February 16, 2024 (60 days prior to hearing) | Exchange of Witness Statements and Experts Reports, Participant Statements (if any), and summoned witness outlines (if any) |
| March 18, 2024 (29 days prior to hearing) | Exchange of Reply Witness Statements (if any) |
| March 27, 2024 (20 days prior to hearing) | Filing of Work Plan and Joint Document Book |
| April 1, 2024 (15 days prior to hearing) | Exchange of visual evidence (if any) |
| Monday April 15, 2024 – Monday April 22, 2024 | Ontario Land Tribunal Hearing |
ATTACHMENT 2
LIST OF PARTIES
| A. PARTIES | Counsel/*Agent |
|---|
- Berkeley Carlyle (Junction) Inc. (Applicant/Appellant) | Daniel Artenosi / Michael Cara
Overland LLP
Yonge Norton Centre
5255 Yonge Street, Suite 1101
Toronto, ON M2N 6P4
Email: dartenosi@overlandllp.ca / mcara@overlandllp.ca
Tel: 416.730.0320 / 416.730.8844 - City of Toronto | Gabe Szobel
The City of Toronto, Legal Services
Metro Hall, 55 John Street, 26th Floor Toronto, ON M5V 3C6
Email: gabe.zobel@toronto.ca
Tel: 416.338.1889
ATTACHMENT 3
ISSUES LIST
NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. 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 Tribunal 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 Tribunal.
City of Toronto
Issue 1 – Policies and Guidelines. Does the proposed development conform to, is consistent with or has regard for applicable policies and guidelines? Specifically:
Does the proposed development have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including subsections 2(h), (j), and (r)?
a. Is the proposed development consistent with the Provincial Policy Statement, 2020, including sections 1.1.1, 1.7.1, 4.6?
b. Does the proposed development conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), including sections 1.2.1, 2.2.1.4, 2.2.?
c. Does the proposed development conform with the applicable policies of the City of Toronto Official Plan including: Structuring Growth in the City: Integrating Land use and Transportation (2.2); Healthy Neighbourhoods (2.3.1), Avenues: Reurbanizing Arterial Corridors (2.2.3); The Public Realm (3.1.1); Built Form (3.1.3 & 3.1.4); Neighbourhoods (4.1) and Mixed Use Areas (4.5), Interpretation (5.6), Official Plan Amendment 231 and associated Site and Area Specific Policy 447?
d. Does the proposed development have appropriate regard to the Keele-St Clair Avenue Secondary Plan (Official Plan Amendment 537)?
e. Does the proposed development meet the intent of applicable City of Toronto Urban Design Guidelines including Tall Building Design Guidelines, St. Clair Avenue West (Glenholme to Keele), Growing Up: Planning for Children in New Vertical Communities Guidelines?
f. Would approval of the proposed development and Zoning By-law Amendments represent good planning and good urban design? Would it be in the public interest?
Issue 2 – Height.
Is the development's proposed height appropriate in the existing and planned context?
Issue 3 – Building Placement.
Are the proposed development’s setbacks and separation distances appropriate?
Issue 4 – Transition in scale.
Does the proposed development provide good transition between areas of different intensity and scale, particularly to lower scale Neighbourhoods.?
Issue 5 – Amenity Space.
Is the proposed development's provision and location of indoor and outdoor amenity space appropriate?
Issue 6 – Unit Mix.
Does the proposed unit mix and unit sizes provide appropriate housing choices?
Issue 7 - Implementation.
a. 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:
i. The form and content of the Zoning By-law Amendment is satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;
ii. The owner has submitted a revised Functional Servicing and Stormwater Management Report to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and such report shall determine the stormwater run-off, sanitary flow and water supply demand resulting from the development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development and/or any upgrades that may be required;
iii. The owner has submitted a revised Hydrological Review Report, Servicing Report Groundwater Summary Form and Hydrological Review Summary Form to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
iv. The owner has provided a revised Pedestrian Wind Study, such report to be reviewed with recommendations implemented as part of the Zoning By-law and/or secured in a development agreement to the satisfaction of the Chief Planner and Executive Director, City Planning Division;
v. The owner has submitted revised drawings illustrating the conveyance of lands required by the General Manager, Transportation Services and the Chief Planner and Executive Director, City Planning;
vi. The owner has submitted revised Noise and Vibration Feasibility Study and a Rail Safety Study, to be peer reviewed by consultants retained by the City at the owner's expense, to the satisfaction of the Chief Planner and Executive Director, City Planning;
vii. The owner shall, at the owner's own expense, initiate the Metrolinx Deviation Process with Metrolinx and Metrolinx's Technical Advisor AECOM, and the owner has submitted requested information and makes required revisions noted in correspondence, dated July 17, 2023, from Metrolinx, to the satisfaction of the Manager, Technical Review, Metrolinx;
viii. The owner has submitted a revised Transportation Impact Study including all requested revisions to the satisfaction of the General Manager, Transportation Services;
ix. The owner makes satisfactory arrangements with Engineering and Construction Services and enters into the appropriate agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support this development, according to the Functional Servicing Report accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and Traffic Impact Study accepted by the General Manager, Transportation Services;
x. The owner has addressed all outstanding issues raised by Urban Forestry noted in correspondence, dated July 6, 2023, including the need for an updated Arborist Report and Landscape Plan, to the satisfaction of the General Manager of Parks, Forestry and Recreation;
xi. The owner has made revisions to meet the Toronto Green Standard requirements to the satisfaction of the Chief Planner and Executive Director, City Planning.
ATTACHMENT 4
ORDER OF EVIDENCE
NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence. The Order of Evidence will be described in greater detail in the Work Plan that is filed with the Tribunal.
- Berkeley Carlyle (Junction) Inc. (Applicant/Appellant)
- City of Toronto
- Reply by Berkeley Carlyle (Junction) Inc. (if necessary)
ATTACHMENT 5
Purpose of the Procedural Order and Meaning of Terms
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 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, must ask the Tribunal to permit this.
Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.
NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as parties can.
Written and Visual Evidence:
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party 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 intends to present as evidence at the hearing.
Witness Statements:
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 the witness 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 the expert’s (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 will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.
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.