Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 22, 2023

CASE NO(S).: OLT-23-000747

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

Applicant/Appellant: Fouro Towers Builders Ltd. & Sasson Construction Inc.

Subject: Application to amend the Zoning By-law – neglect to make a decision

Description: Proposed two high-rise mixed-used towers

Reference Number: ZA 18 140091

Property Address: 9331-9399 Markham Road

Municipality/UT: Markham/York

OLT Case No.: OLT-23-000747

OLT Lead Case No.: OLT-23-000747

OLT Case Name: Fouro Towers Builder Ltd. & Sasson Construction Inc. v. Markham (City)

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

Subject: Site Plan

Description: Proposed two high rise mixed-used towers

Reference Number: 22.114181.000.00.SPC

Property Address: 9331-9399 Markham Road

Municipality/UT: Markham/York

OLT Case No: OLT-23-000748

OLT Lead Case No: OLT-23-000747

Heard: October 10, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Fouro Towers Builders Ltd. & Sasson Construction Inc.

Ira Kagan Sarah Kagan

City of Markham

Maggie Cheung-Madar

MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON OCTOBER 10, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

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

2The purpose of the Case Management Conference (“CMC”) was to organize the Hearing of these appeals.

3The Subject Property consists of an assembly of three properties, municipally known as 9331-9399 Markham Road, and is located on the east side of Markham Road, north of 161h Avenue and south of Bur Oak Avenue in the City of Markham. The Subject Property is generally rectangular in shape and approximately 1.13 hectares (2.79 acres) in area with an approximate lot depth of 122 metres, and frontage of about 91.4 metres along Markham Road. It is currently occupied by six (6) single-storey commercial buildings, which are proposed to be demolished.

4The proposed rezoning and site plan control approvals will facilitate a proposed high-rise mixed-use development in a U-shaped building, consisting of two residential towers of 37-storeys (Tower A) and 42-storeys (Tower B), connected by a three-storey elevated sky bridge. Together, the towers will accommodate 933 residential units.

5City Council failed to make a decision within the statutory timeframe.

6The Tribunal received an Affidavit of Service sworn by Fredric N. Cheng, which is marked as Exhibit 1.

7The Tribunal heard that the Parties are seeking a 10-day hearing.

8A 10-day Hearing has been scheduled to proceed by video on Monday, April 15, 2024 at 10 A.M.

9Parties 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:

https://meet.goto.com/996288525

Access code: 996-288-525

10Parties 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

11Persons 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: +1 (647) 497-9391 or Toll-Free 1-888-455-1389. The access code is 996-288-525.

12Individuals 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.

13The Tribunal hereby schedules a Hearing of these appeals to commence on Monday, April 15, 2024 at 10 am. Ten (10) days have been set aside.

14The Tribunal requests that the updated Procedural Order and Issues List be submitted to the Case Manager by Monday February 5, 2024.

15At the time of the issuance of this Decision, the Tribunal received an updated Procedural Order and Issues List herein attached as Schedule 1.

16There will be no further notice.

17The Member is not seized.

“Carmine Tucci”

CARMINE TUCCI

MEMBER 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.

Schedule 1

OLT-23-000747

OLT-23-000748

ONTARIO LAND TRIBUNAL

Tribunal ontarien de l’aménagement du territoire

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

Applicant/Appellant: Fouro Towers Builders Ltd. & Sasson Construction Inc.

Subject: Application to amend the Zoning By-law – neglect to make a decision

Description: Proposed two high rise mixed-used towers

Reference Number: ZA 18 140091

Property Address: 9331-9399 Markham Road

Municipality/UT: Markham/York

OLT Case No: OLT-23-000747

OLT Lead Case No: OLT-23-000747

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

Applicant/Appellant: Fouro Towers Builders Ltd. & Sasson Construction Inc.

Subject: Site Plan

Description: Proposed two high rise mixed-used towers

Reference Number: 22.114181.000.00.SPC

Property Address: 9331-9399 Markham Road

Municipality/UT: Markham/York

OLT Case No: OLT-23-000748

OLT Lead Case No: OLT-23-000747

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 Monday April 15, 2024 at 10:00 a.m. via videoconference.

3. The parties’ initial estimation for 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see Attachment 2 for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 3. Except for scoping or removing issues, there will be no changes to this list unless the Tribunal permits. A party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as listed 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 telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any such person who will be retaining a representative (legal counsel or agent) 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 Friday November 17, 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. Any party who intends to challenge a witness’s qualifications shall advise the other parties of same by Friday December 1, 2023.

10. Expert witnesses in the same field shall have a meeting on or before Friday January 19, 2024 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 Friday February 2,, 2024. Any discussions held at a meeting of expert witnesses shall be considered confidential and without prejudice, and shall not be shared at the hearing, with the exception of the Statement of Agreed Facts and the remaining issues to be addressed at the hearing resulting from any such meeting.

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 in accordance with paragraph 13 below. The Expert Witness Statement shall also include: an acknowledgement of expert’s duty form and the area(s) of expertise. 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 in accordance with paragraph 13 below.

13. On or before Friday February 23, 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 Friday February 23, 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 Friday March 15, 2024, parties shall provide copies of their Reply Witness Statements, if any, to all other parties and the OLT case co-ordinator in accordance with paragraph 22 below.

16. On or before Tuesday April 2, 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. The parties shall cooperate to prepare a Joint Document Book, which shall be uploaded to the OLT’s file share server, pursuant to the directions provided by the OLT case co-ordinator, on or before Monday April 8, 2024.

18. A person wishing to change written evidence, including witness statements, after Witness Statements and Reply Witness Statements have been filed 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.

19. A party who provides written evidence of a witness to the other parties must have that witness attend the hearing to give oral evidence, unless the party notifies the Tribunal on or before Friday April 5, 2024, that the written evidence is not part of their record.

20. 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 which the Applicant intends to reply upon, to the other Parties on or before Monday October 16, 2023. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties or leave of the Tribunal, may be grounds for a request to adjourn the hearing. The Parties acknowledge that this requirement does not apply to revisions to the proposal which address or resolve issues raised by the other parties.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday April 5, 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 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 in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by 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.

24. A summary of the various filing dates is contained in Attachment 5.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES & PARTICIPANTS

Parties

1. Fouro Towers Builders Ltd. & Sasson Construction Inc.

Paul DeMelo and Sarah R. Kagan

Kagan Shastri DeMelo Winer Park LLP

188 Avenue Road

Toronto, ON M5R 2J1

Tel: 416.368.2100 ext. 228/243

Email: pdemelo@ksllp.ca / skagan@ksllp.ca

2. City of Markham (Approval Authority and Local Municipality)

Maggie Cheung- Madar, Victoria Chai

Solicitors for the City of Markham

101 Town Centre Boulevard

Markham, ON L3R 9W3

Tel: 905-475-4737 / 905-470-3596

Email: MCheung-Madar@markham.ca / vchai@markham.ca

PARTICIPANTS

3. None

ATTACHMENT 2

Meaning of Terms used in the Procedural Order

Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (“CMC”), must ask the Tribunal to permit this.

A participant is an individual 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 the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing. 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 agree 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.

ATTACHMENT 3

ISSUES LIST[1]

CITY OF MARKHAM LIST OF ISSUES

Planning

1. Does the Proposed Development have regard for matters of Provincial Interest as set out in Section 2 of the Planning Act, including but not limited to:

(h) the orderly development of safe and healthy communities;

(j) the adequate provision of a full range of housing, including affordable housing;

(k) the adequate provision of employment opportunities;

(p) the appropriate location of growth and development;

(r) the promotion of built form that:

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant?

2. Is the Proposed Development consistent with the Provincial Policy Statement, as required by Section 3(5) (a) of the Planning Act, including the following Sections:

• 1.1.1 and 1.1.3 (Managing and Directing Land Use)

• 1.4.1 and 1.4.3 (Housing)

• 1.6.1, 1.6.6.1, 1.6.2 and 1.6.6.7 (Infrastructure and Public Service Facilities)

• 1.6.7 (Transportation System)?

3. Does the Proposed Development conform with and not conflict with the Growth Plan for the Greater Golden Horseshoe, as required by Section 3(5) (b) of the Planning Act, including the following Sections:

• 2.2.1 (Managing Growth);

• 2.2.4 (Transit Corridor and Station Areas)

• 2.2.5.15 (Complete Communities)

• 2.2.6 (Housing)

• 3.2.1 to 3.2.23 (Integrated Planning)

• 3.2.6 to 3.2.8 (Infrastructures and Public Service Facilities)

• 4.2.5 (Public Open Space)?

4. Does the Proposed Development conform to the Regional Municipality of York Official Plan, 2010, in particular policies:

• 5.6.4, 5.6.5, 5.6.6 and 5.6.7 (Complete Communities)

• 3.5.4, 3.5.6, 3.5.8, 3.5.9, 3.5.10 (Affordable Housing)

• 7.3.2, 7.3.3, 7.3.4 (Water and Wastewater Servicing)?

5. Does the Proposed Development conform to Section 9.3.7 of the 2014 Markham Official Plan? Is it premature to make a decision on the Proposed Development while the Markham Road Mount Joy Corridor Secondary Plan is still underway?

6. Does the Proposed Development generally conform to the 1987 Official Plan, in particular, policies:

• 3.4.6.2 (Community Amenity Area)

• 6.1.2 (Services and Utilities)

• 2.13 (Housing)?

7. Does the Proposed Development appropriately reflect the City’s most recent vision for the area as reflected in the draft Markham Road Mount Joy Corridor Secondary Plan, including Sections:

• 2.1.3 to 2.1.7 (Healthy and Resilient Community)

• 3.1.5 (Mixed Use Neighbourhood Area)

• 4.4 (Stormwater Management),

• 5.1 and 5.2 (Affordable Housing and Infrastructure and Service),

• 6.1.9, 6.1.16, 6.1.25, 6.1.26, 6.1.30, 6.1.32, 6.1.33 (Streetscape and built form),

• 7.1 and 7.1.3 (Transportation System and Transit and Active Transportation Network)

• 7.2.1 to 7.2.4 (Municipal Water, Wastewater and Stormwater Management,

• 8.3.3 (Mixed Use High Rise)

• 8.7 (Height and Density)?

8. Is it premature to make a decision on the Proposed Development until a second statutory public meeting is held to seek public input on the revised proposal?

Urban Design

9. Does the proposed Zoning By-law Amendment appropriately address issues of use, massing, density, location, size, setbacks, character, commercial floor areas and other matters pertaining to site configuration, functionality, and operation, including: parking, vehicular movement, fire services, waste collection, snow storage and removal, landscaping, amenity space, buffering and relationships and compatibility with adjacent uses?

10. Does the Proposed Development appropriately address the Markham Built Form, Height and Massing Study Built Form Principles, in particular guidelines TB.04 and TB.05 with respect to Tall Buildings?

11. Does the Proposed Development appropriately address issues of an appropriate built form for this section of the Markham Road Mount Joy Corridor Secondary Plan, and has sufficient information been provided to address compatibility with future residential development on adjacent properties as it relates to, but not limited to the following:

a. Appropriate transition

b. Scale and Massing

c. Shadow impacts and sun access

d. Wind comfort and safety

e. Impact on the public ream, including proposed (anything applicable)??

f. Setbacks (both above and below grade)

g. Separation distances between future towers and adjacent properties

h. Unencumbered landscape buffers

i. Community amenities to support a residential population including but not limited to, equally accessible communal open spaces, outdoor amenity areas, soft green space and landscape buffers to create and mitigate views?

12. Does the Proposed Development include an appropriate amount of affordable housing?

13. Does the Proposed Development represent good planning and urban design and is it in the public interest?

Engineering

14. Can the Proposed Development be appropriately serviced in terms of water, wastewater and stormwater management infrastructure, capacity and allocation?

15. Does the Proposed Development appropriately follow the preferred sanitary servicing solution as identified by the Markham Road Mount Joy Corridor Secondary Plan study?

Transportation

16. Can the Environmental Assessment requirement for the two new collector roads to be conveyed to the City, which will be designed and constructed by the Owner, be adequately satisfied through the approvals of the Zoning Bylaw Amendment and site plan?

Other Technical Issues

17. Does the Proposed Development adequately address all outstanding comments from City departments including:

a. technical comments provided by Fire Services;

b. compliance with the requirements identified in the memo prepared by Waste Management Operations dated May 24, 2022;

c. removal of all landscaping elements from the public ROW of Edward Jeffreys Avenue and Anderson Avenue; and

d. provision of more detailed information to fully demonstrate the repair work and costs associated with the maintenance of the proposed crash wall ?

18. Is approval of the Proposed Development premature until the following studies or documents are revised to the satisfaction of the City:

• Transportation Impact Study,

• Functional Traffic Design Study,

• Parking Study,

• Traffic Demand Management Study

• Environmental Site Assessment

• Hydrological Study

• Functional Servicing and Stormwater Management Report

• Draft Zoning By-law Amendment ?

19. Is it appropriate to apply a holding provision to the Zoning By-law Amendment to address:

• Servicing capacity and allocation; and

• Transportation Improvements, including but not limited to two new collector roads and intersection design, as well as signal improvement ?

20. If the proposed site plan is approved, what are the appropriate conditions, aside from the usual requirements imposed by the City?

• Conveyance of the proposed roads and crash wall;

• Approval of the proposed crash wall from Metrolinx;

• Signage and Pavement Marking plan

21. In the event that the Tribunal allows the appeal in whole or in part, should the Final Order be withheld pending the City Solicitor advising the Tribunal that:

a. the final form of the Zoning By-law Amendment is satisfactory to the City; and

b. the appellant has provided satisfactory responses and studies as set out in issues 17 and 18 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.

**The City of Markham reserves the right to revise, scope or remove issues as matters are settled between the parties

ATTACHMENT 4

ORDER OF EVIDENCE

1. Fouro Towers Builders Ltd. & Sasson Construction Inc.

2. City of Markham

3. Fouro Towers Builders Ltd. & Sasson Construction Inc. in reply

ATTACHMENT 5

SUMMARY OF FILING DEADLINES

EVENT

DATE

First Case Management Conference

October 10, 2023

Parties to exchange their List of Witnesses

Friday November 17, 2023

Deadline to challenge expert witness qualifications

Friday December 1, 2023

Expert Witness Meeting(s) deadline

Friday January 19, 2024

Agreed Statement of Facts and Issues filed

Friday February 2, 2024

Parties to exchange their Witness and Expert Witness Statements & Participants to provide their Participant Statements

Friday February 23, 2024

Parties to exchange their Reply Witness Statements

Friday March 15, 2024

Parties to exchange their Visual Evidence

Tuesday April 2, 2024

Parties to advise Tribunal if written evidence is no longer part of their record

Friday April 5, 2024

Preliminary Hearing Plan filed

Friday April 5, 2024

Joint Document Book filed

Monday April 8, 2024

OLT Hearing

April 15 – 26, 2024

Note 1: Where two or more parties raise the same technical issue, they may co-ordinate and rely upon an independent expert upon agreement of the parties. Where, however, a single party alone raises a technical issue then that party must call technical evidence in support of that issue from a qualified independent expert.

Note 2: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.