Camrost Felcorp Investments Inc. v. Toronto (City), 2023 CanLII 115125

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

December 1, 2023

CASE NO.:

OLT-23-000146

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

Applicant/Appellant

Camrost Felcorp Investments Inc.

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit a 40-storey mixed-use tower consisting of residential units, office space and retail space

Reference Number:

22 176960 STE 12 OZ

Property Address:

181 - 191 Eglinton Avenue East

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-23-000146

OLT Lead Case No:

OLT-23-000146

OLT Case Name:

Camrost Felcorp Investments Inc. v. Toronto (City)

BEFORE:

STEVEN T. MASTORAS

Friday, the 1^st day of

MEMBER

December, 2023

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on Monday, February 12, 2024.

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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.

ATTACHMENT “A”

PROCEDURAL ORDER

Purpose of the Procedural Order

Case management conferences are scheduled by the Tribunal to organize the hearing. This sample procedural order is provided to identify who may participate in the hearing, the issues in dispute, and the matters that are required to be carried out before the hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a party or a participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the case management conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

ISSUE DATE: December 1, 2023 CASE NO(S).: OLT-23-000146

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

Applicant and Appellant:

Camrost Felcorp Investments Inc.

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit a 40-storey mixed-use tower consisting of residential units, office space and retail space

Reference Number:

22 176960 STE 12 OZ

Property Address:

181-191 Eglinton Avenue East

Municipality/UT:

Toronto/Toronto

OLT Case No.:

OLT-23-000146

OLT Lead Case No:

OLT-23-000146

OLT Case Name:

Camrost Felcorp Investments Inc. v. Toronto (City)

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 hearing will begin on Monday February 12, 2024 at 10:00 a.m. by video hearing.

3. The parties’ initial estimation for the length of the hearing is nine (9) 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 found in Attachment 1.

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

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

6. The order of evidence is set out in Attachment 4. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearings Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. 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 on or before Friday September 15, 2023 (150 days before the hearing is scheduled to commence). The applicant acknowledges that any revisions to the plans, except those that are very minor, after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

10. 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 October 20, 2023 (115 days before the hearing is scheduled to commence) 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 proposed to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before Friday December 8, 2023 (66 days before the hearing is scheduled to commence) 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 the remaining issues to be addressed at the hearing with the OLT case coordinator on or before Friday December 22, 2023 (52 days before the hearing is scheduled to commence).

12. 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 14 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.

13. 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 14 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 14 below. 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 other parties at the same as the delivery of expert witness statements, as in paragraph 14 below.

14. On or before Friday December 22, 2023 (52 days before the hearing is scheduled to commence), the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator in accordance with paragraph 22 below.

15. On or before Friday December 22, 2023 (52 days before the hearing is scheduled to commence), 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 permitted by the Tribunal.

16. On or before Friday January 12, 2024 (31 days before the hearing is scheduled to commence), parties may provide to all other parties and the OLT case coordinator a written response to any written evidence in accordance with paragraph 22 below.

17. On or before Friday January 26, 2024 (17 days before the hearing is scheduled to commence), 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.

18. 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.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator in accordance with paragraph 22 below on or before Friday February 2, 2024 (10 days before the hearing is scheduled to commence).

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday February 2, 2024 (10 days before the hearing is scheduled to commence), 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 preliminary hearing plan. Any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal or on consent of parties. The Tribunal may, at its discretion, change or alter the preliminary hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable.

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.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

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.

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

August 31, 2023 (165 days before the hearing is scheduled to commence)

Draft issues lists due

September 15, 2023 (150 days before the hearing is scheduled to commence)

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

October 20, 2023 (115 days before the hearing is scheduled to commence)

Exchange of witness lists (names, disciplines and order to be called)

December 8, 2023 (66 days before the hearing is scheduled to commence)

Experts meeting prior to this date

December 22, 2023 (52 days before the hearing is scheduled to commence)

Statement of agreed facts filed with the Tribunal

December 22, 2023 (52 days before the hearing is scheduled to commence)

Exchange of witness statements, summoned witness outlines, expert reports and participant statements

January 12, 2024 (31 days before the hearing is scheduled to commence)

Exchange of reply witness statements (if any)

January 26, 2024 (17 days before the hearing is scheduled to commence)

Exchange of visual evidence (if any)

February 2, 2024 (10 days before the hearing is scheduled to commence)

Hearing plan filed with the Tribunal

February 2, 2024 (10 days before the hearing is scheduled to commence)

Joint document book filed with the Tribunal

February 12-23, 2024 (excluding February 19, 2024)

Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

PARTIES:

1. Camrost Felcorp Investments Inc.

2. City of Toronto

3. 181 Eglinton Holdings Inc.

PARTICIPANTS:

1. Toronto Lands Corporation (on behalf of Toronto District School Board)

2. South Eglinton Davisville Residents’ Association

ATTACHMENT 3

LIST OF ISSUES

Note: The identification of an issue on this issues list is intended to provide notice to all parties that a party will lead evidence and/or argument on the matter. This identification does not serve as an acknowledgement of relevancy 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.

CITY OF TORONTO:

NOTE: The City of Toronto’s Issues List is provided without prejudice to their right to revise same upon receipt of formal City Council instructions.

SITE SPECIFIC ISSUES

Issue 1 – Massing. 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: 2.2.2 (Centres: Vital Mixed Communities), 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 Policy 3.2, 5.1.1, 5.2, 5.3 and 5.4 of the Yonge-Eglinton Secondary Plan?

c. Does the massing of the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines, specifically Guidelines 1.4 and 3.2.1?

d. Does the proposed development represent over-development of the site?

Issue 2 – Streetscape & Public Realm. Is the proposed development's relationship with the public realm, including the setback from Eglinton Avenue and Brownlow Avenue, 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 Policy 3.1 (Area-wide Public Realm Policies) and 3.2.6 (Public Realm Moves) of the Yonge-Eglinton Secondary Plan?

c. Does the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines, specifically Guidelines 4.1 and 4.2?

d. Does it meet the requirements of the Toronto Green Standard, Version 4?

Issue 3 – Heritage. Does the proposed development demonstrate consideration for the integrity of neighbouring properties with cultural heritage value.

a. Does it conform with Official Plan policy 3.1.6.5?

b. Does it conform with Policy 5.1.1.k and 5.2 of the Yonge-Eglinton Secondary Plan?

Issue 4 – Community Space. Does the proposal provide for the enhancement of community and neighbourhood amenities.

a. Does it conform with Official Plan Policies 2.3.1.7 (Healthy Neighbourhoods), Policies 3.1.3.11 (Built Form) and 3.2.2 (Community Services and Facilities)

b. Does it conform with, 6.1, 6.3 and 6.10 (Community Services and Facilities) of the Yonge-Eglinton Secondary Plan?

Issue 5 – Wind Impacts. Does the proposed development’s wind impacts on the public realm and adjacent properties 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 Policy 5.1.1.h, 5.1.1j and 5.6.6 of the Yonge-Eglinton Secondary Plan?

c. Does the development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines, specifically guideline 3.2.1?

Issue 6 – Servicing. Has the applicant demonstrated that adequate municipal services are in place to support the development, inclusive of the availability of adequate sanitary sewage capacity, appropriately proposed stormwater management measures and groundwater management measures?

Issue 7 – Parking and Loading. Does the application demonstrate that adequate vehicle parking and loading will be in place to support the development?

Issue 8 - Implementation. 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 Zoning By-law Amendment is in a form with 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;

a. Reference should be made to Engineering and Construction Services memo dated October 28, 2022

LEGISLATIVE & POLICY TESTS

Issue 9 – Policy Tests. Does the proposed development satisfy the applicable legislative and policy tests? Specifically:

c. Does the proposed development conform with the applicable policies of the City of Toronto Official Plan and the Yonge-Eglinton Secondary Plan?

d. 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), (h), (p), (q) and (r)?

e. Does the proposed development have appropriate regard for the decision of City Council as required by Section 2.1 of the Planning Act?

f. 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?

g. 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?

h. Would approval of the proposed development and Zoning By-law Amendment represent good planning and good urban design? Would it be in the public interest?

181 EGLINTON HOLDINGS INC.:

1. None.

ATTACHMENT 4

ORDER OF EVIDENCE

IN CHIEF:

1. Camrost Felcorp Investments Inc.

2. City of Toronto

3. 181 Eglinton Holdings Inc.

REPLY:

1. Camrost Felcorp Investments Inc.