Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 01, 2023
CASE NO(S).:
OLT-23-000334
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
BayviewEg Investment Corp
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description: Reference Number:
To permit a 35-storey mixed use building 22 225964 NNY 15 OZ
Property Address:
(Various Addresses) ((589 – 595 Eglinton Avenue East 61 – 67 Mann Avenue))
Municipality/UT:
City of Toronto
OLT Case No:
OLT-23-000334
OLT Lead Case No:
OLT-23-000334
OLT Case Name:
BayviewEg Investment Corp v. Toronto (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Description:
Application to amend the Zoning By-law – Refusal or neglect to make a decision To permit a 35-storey mixed use building
Reference Number:
22 225964 NNY 15 OZ
Property Address:
589 – 595 Eglinton Avenue East and 61 – 67 Mann Avenue
Municipality/UT:
City of Toronto
OLT Case No:
OLT-23-000335
OLT Lead Case No:
OLT-23-000334
Heard:
November 7, 2023 by video hearing
APPEARANCES:
Parties
Counsel
BayviewEg Investment Corp.
R. Gill D. Bronskill (in absentia)
City of Toronto
R. Kallio
MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI AND A. MASON ON NOVEMBER 7, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened a second Case Management Conference (“CMC”) in respect of an appeal filed pursuant to subsections 22(7) and 34(11) of the Planning Act (“Act”) by BayviewEg Investment Corp. (“Appellant”) against the City of Toronto (“City”) for its failure to make a decision on Official Plan Amendment and Zoning By-law Amendment applications within the timeframe prescribed by the Act.
2The lands that are the subject of the application are known municipally as 589-595 Eglinton Avenue East and 61-67 Mann Avenue (“Subject Lands”). The Appellant proposes to redevelop the Subject Lands with a 35-storey mixed-use building containing approximately 442 residential units.
PARTIES/PARTICIPANTS
3In advance of the CMC, additional written requests for Participant status were received from:
Jim Parker – citing concerns related to height, the lack of a graduated buffer to the neighbouring two-storey dwellings, parking, and the ratio of unit types, and
Leaside Residents Association – citing concerns related to building density, building height, built form, setbacks, transition to neighbouring properties, parking, the public realm, shadowing, wind, and rental units.
4With the consent of the Parties, the additional Participant status requests were granted.
5The Parties were again advised to ensure that their witnesses address the concerns of the Participants in their evidence.
NEXT STEPS
6The Parties advised that they were engaged in private mediation scheduled for Tuesday, November 14, 2023, after which they would provide the Tribunal with an update on the status of the appeal.
DRAFT PROCEDURAL ORDER
7Ahead of the second CMC, the Tribunal was in receipt of a draft Procedural Order (“PO”) and the City’s Issues List (“IL”). The Parties indicated that the date for the exchange of witness statements was abridged, on consent, due to the private mediation. Following the CMC, the Tribunal received the final draft PO including the IL and a list of all Participants. The approved PO is appended to this decision as Attachment 1.
HEARING EVENTS
8As scheduled at the first CMC, a 7-day video hearing is scheduled to commence on Wednesday, February 28, 2024 at 10 a.m. through to Friday, March 8, 2024, exclusive of Monday, March 4, 2024 and will proceed as follows:
Wednesday, February 28, 2024 at 10 a.m. through Friday, March 08, 2024
(Exclusive of March 04, 2024):
GoTo Meeting: https://global.gotomeeting.com/join/660145013
Access code: 660-145-013
Audio-only line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889
Audio-only access code: 660-145-013
9Parties and Participants are asked to log in to the video hearing at least 15 minutes before the start of the event to test video and audio connections.
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 at:
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 the audio-only telephone line.
12Individuals are directed to connect to the event on the assigned dates at the correct times. It is the responsibility of the persons participating in hearing events by video to ensure that they are properly connected at the correct time. Questions prior to these hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
13The Tribunal confers Participant status to the following additional Participants in this proceeding:
Jim Parker, and
Leaside Residents Association.
14The Procedural Order, appended as Attachment 1 to this decision, is deemed to be in force and effect to govern the hearing of the merits.
15No further notice is required.
16The Panel is not seized of this matter.
“C.I. Molinari”
C.I. MOLINARI
MEMBER
“A. Mason”
A. Mason
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.
ATTACHMENT 1
ISSUE DATE: CASE NO(S).: OLT-23-000334 & OLT-23-000335
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
BayviewEg Investment Corp.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit development of a 35-storey building containing approximately 442 residential units
Reference Number:
22 225964 NNY 15 OZ
Property Address:
589-595 Eglinton Avenue East, 61-67 Mann Avenue
Municipality:
City of Toronto
OLT Case No.:
OLT-23-000334
OLT Lead Case No.:
OLT-23-000334
OLT Case Name:
BayviewEg Investment Corp. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
BayviewEg Investment Corp.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit development of a 35-storey building containing approximately 442 residential units
Reference Number:
22 225964 NNY 15 OZ
Property Address:
589-595 Eglinton Avenue East, 61-67 Mann Avenue
Municipality/UT:
City of Toronto
OLT Case No.:
OLT-23-000335
OLT Lead Case No.:
OLT-23-000334
- 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 February 28, 2024 at 10:00 a.m. The hearing will not occur on March 4, 2024.
The length of the hearing is seven (7) 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 identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
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.
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 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.
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 and the order in which they will be called. This list must be delivered on or before December 1, 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.
Expert witnesses in the same field shall have a meeting on or before December 22, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before December 22, 2023.
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.
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.
On or before January 19, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before January 19, 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.
On or before February 2, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before February 9, 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.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before February 2, 2024 and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 16, 2024.
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 at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 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.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
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 on or before December 1, 2023. 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.
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.
The Panel is not seized.
So orders the Tribunal.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
SUMMARY OF DATES
DATE
EVENT
December 1, 2023
Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
December 1, 2023
Exchange of witness lists (names, disciplines and order to be called)
December 22, 2023
Experts Meeting and Agreed Statement of Facts
January 19, 2024
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
February 2, 2024
Exchange of Reply Witness Statements (if any)
February 9, 2024
Exchange of visual evidence (if any)
February 16, 2024
Preparation of Joint Document Book
February 16, 2024
Final Work Plan filed with the Tribunal
February 28, 2024
Hearing commences
ATTACHMENT 1 PARTIES/PARTICIPANTS
Parties
- BayviewEg Investment Corp.
David Bronskill (416) 597-4299 dbronskill@goodmans.ca
- City of Toronto Ray Kallio (416) 397-4063 ray.kallio@toronto.ca
Participants
Fletcher, Hugh and Barbara (416) 484-8492/(647) 229-0055 hugh.fletcher@sympatico.ca
Hamilton, Jill (647) 746-7574 jill.hamilton@sympatico.ca
Hung, Katherine Katherine.gm.hung@gmail.com
Parker, Jim (647) 667-8651 camplake@gmail.com
South Eglinton Davisville Residents Association c/o Jeff Latto (416) 435-3170 jeff.latto@gmail.com
ATTACHMENT 2 ISSUES LIST
City of Toronto
Issues List
589-595 Eglinton Avenue East and 61-67 Mann Avenue
Does the proposed development, Official Plan and Zoning By-law Amendment have regard for the purposes of the Planning Act as set out in Section 1.1 of the Planning Act?
Does the proposed development, Official Plan and Zoning By-law Amendment have regard for the matters of provincial interest as set out in subsections 2(f), (h),(j), (n), (p), (q), and (r) of the Planning Act?
Provincial Policy Statement (2020)
- Is the proposed development, Official Plan and Zoning By-law Amendment consistent with the Provincial Policy Statement (2020) pursuant to Section 3 of the Planning Act, including Policies 1.1.1(b), 1.1.1(e), 1.1.1(g), 1.1.3.3, 1.1.3.4, 1.2.1(a), 1.5.1 (a), 3.2.1, and 4.6?
A Place to Grow – Growth Plan for the Greater Golden Horseshoe (2020)
- Does the proposed development, Official Plan, and Zoning By-law Amendment conform to and not conflict with A Place to Grow - Growth Plan for the Greater Golden Horseshoe (2020), including Policies 2.2.1.4 , 2.2.2.3(b), (d) and (f), 2.2.5.3 and 5.2.5.6?
City of Toronto Official Plan
Is the proposed Official Plan amendment consistent with the general intent of the Official Plan and the Yonge-Eglinton Secondary Plan?
Do the proposed development and Zoning By-law Amendment conform to the policies of the City of Toronto Official Plan (“the Official Plan”) with respect to the Mixed-Use Areas (4.5), Neighbourhoods (4.1.1), Healthy Neighbourhoods (2.3.1.3, 2.3.1.4, 2.3.1.5, 2.3.1.7), the Built Environment (3.1), the Human Environment (3.2.1.1-3.2.1.4, 3.2.2.1,3.2.3), the Natural Environment (3.4.1), and Implementation (5), among others?
Yonge-Eglinton Secondary Plan (OPA 405)
Do the proposed development and Zoning By-law Amendment conform to the policies of the Yonge-Eglinton Secondary Plan (OPA 405), being Chapter 6, Section 21 of the Official Plan, with respect to the following: Vision Statement (1.1), Goals (1.2), Character Areas (1.3), Area Structure (2), Midtown Transit Station Areas (2.4), Land Use (2.5), Retail Streets (2.6), Parks and Public Realm (3), Mobility (4), Built Form (5), Housing (7), Making it Happen (Implementation) (9), and Interpretation (10), among others.
Does the development provide an appropriate active transportation connection as required on Map 21-9 of the YESP?
Land Use
- Is the proposed redesignation of Neighbourhood lands to Mixed Use appropriate?
Site Organization
- Is the Site appropriately organized to minimize impacts within and surrounding the site, including vehicular access, driveways, ramps, drive aisles, bicycle and vehicle parking, loading, servicing, storage areas, utilities, and related structures?
Public Realm
Does the proposed development adequately improve the public realm, particularly as it relates to Eglinton Avenue East as a Priority Retail Street within the Yonge-Eglinton Secondary Plan?
Does the proposed development fit within the broader existing and planned context, in consideration of the future public realm framework?
Does the proposed development establish appropriate relationships at grade, including setbacks, streetwalls, relationship to adjacent developments, and the provision of an adequate public realm including contributions to streetscaping, public spaces, and private open spaces?
Built form
Are the built form type, height, density, massing, location, placement and scale of the proposed development appropriate, given principles of good planning and urban design, including but not limited to the following: the relationship of the proposed development to the surrounding planned and existing context, appropriate setbacks and step backs, transition to adjacent and nearby Neighbourhoods lands that are outside of OPA 405 area, shadow impacts and relationship to the public realm?
Is the shadow impact of the proposed development on the public realm, and surrounding area adequately limited?
Does the proposed built form limit the impact of pedestrian level wind on the public realm and amenity areas?
Guidelines
If it is determined that a tall building is appropriate for the site, does the proposed development meet the intent and purpose of the Tall Building Design Guidelines?
Does the proposed development meet the intent and purpose of the Growing Up: Planning for Children in New Vertical Communities (2020)?
Does the proposed development meet the intent and purpose of the Pet Friendly Design Guidelines and Best Practices for New Multi-Unit Buildings?
Housing
- Does the proposed development reflect the Official Plan and the Yonge-Eglinton Secondary Plan's goals of providing a full range of housing in terms of form, tenure, and affordability?
Amenity Space
- Does the proposed development provide sufficient indoor and outdoor amenity space?
Transportation
- Does the proposed development provide sufficient parking and loading for the development?
Public Interest and Good Planning
- Does the proposed development represent good planning and is in the public interest?
Site Specific Issues
In accordance with provisions for soil volume in Section EC 1.1 of the Toronto Green Standard, does the site provide appropriate configuration of soil in relationship to the adjacent public realm, below-/above-/at- grade utilities, and vehicular facilities including the below-grade parking garage?
Are the water, wastewater, stormwater, and other essential infrastructure of the site and surrounding areas and other relevant areas, able to accommodate the proposed development?
Order if approved
- In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied:
a) the final form and content of the draft Official Plan Amendment and Zoning By-law are to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;
b) the owner has satisfactorily addressed the Engineering and Construction Services matters in the Engineering and Construction Services Memorandum dated August 21, 2023, or as may be updated, all to the satisfaction of the Chief Engineer & Executive Director;
c) the owner has satisfactorily addressed Transportation Services matters in the Transportation Services memo August 21, 2023, or as may be updated in response to further submissions filed by the Owner, all to the satisfaction of the Chief Engineer & Executive Director;
d) the owner has submitted a revised Transportation Demand Management Plan acceptable to, and to the satisfaction of the Chief Planner and Executive Director, City Planning and the General Manager, Transportation Services and that matters arising from such Plan be secured, if required;
e) the owner has submitted a Subsurface Investigation for the possible presence of methane gas on the property and any required mitigation measures are to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
f) the owner has satisfactorily addressed matters from the Urban Forestry memorandum dated August 18, 2023, or as may be updated in response to further submissions filed by the Owner, all to the satisfaction of Urban Forestry;
g) the owner has submitted an updated complete Toronto Green Standards (TGS) Checklist and Statistics Template, to the satisfaction of the Chief Planner and Executive Director, City Planning;
h) the owner has secured an acceptable Tenant Relocation and Assistance Plan for tenants of the four (4) rental dwelling units proposed to be demolished at the time of application, addressing financial compensation and other assistance to lessen hardship. The Tenant Relocation and Assistance Plan shall be to the satisfaction of the Chief Planner and Executive Director, City Planning Division and implemented prior to the issuance of Notice of Approval Conditions for Site Plan Approval;
i) the owner has provided a legal undertaking to the City, to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning Division, to secure the Tenant Relocation and Assistance Plan required in Part 2.h. above.
ATTACHMENT 3 ORDER OF EVIDENCE
BayviewEg Investment Corp.
City of Toronto
BayviewEg Investment Corp. in reply (if any)
Attachment to Sample Procedural Order
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.
1405-8433-1269