Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 04, 2023 CASE NO(S).: OLT-23-000875

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: ABC Residents Association Applicant: NDI (1 Roxborough Street West) Inc. Subject: Proposed Official Plan Amendment Description: To permit a 12-storey mixed-use building with a total of 28 residential units Reference Number: 22 154014 STE 11 OZ Property Address: 1080 – 1088 Yonge Street Municipality/UT: Toronto / Toronto OLT Case No.: OLT-23-000875 OLT Lead Case No.: OLT-23-000875 OLT Case Name: ABC Residents Association v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: ABC Residents Association Subject: By-law No. 761-2023 Description: To permit a 12-storey mixed-use building with a total of 28 residential units Reference Number: 22 154014 STE 11 OZ Property Address: 1080 – 1088 Yonge Street Municipality/UT: Toronto / Toronto OLT Case No.: OLT-23-000876 OLT Lead Case No.: OLT-23-000875

Heard: November 22, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
ABC Residents Association	Andrew Biggart (in absentia), Christina Kapelos
NDI (1 Roxborough Street West) Inc.	David Bronskill
City of Toronto	Gabe Szobel, Marc Hardiejowski (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED ON NOVEMBER 22, 2023, BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This Decision arises from the first Case Management Conference (“CMC”) held in preparation for a Hearing of the Merits of the Appeal by ABC Residents Association (“Appellant”) pursuant to s. 17(36) and s. 34(19) of the Planning Act against the City of Toronto’s approval of the Official Plan Amendment (“OPA”) and the Zoning By-law Amendment (“ZBA”) Applications for the lands municipally known as 1080 -1088 Yonge Street (“Subject Properties”).

2At this CMC, the Tribunal considered a request for status. The Tribunal reviewed the draft Procedural Order (“PO”) and Issues List (“IL”) and reviewed the requested Hearing dates.

3The Affidavit of Service by Justin Niddrie dated on Tuesday, October 24, 2023, was marked as Exhibit 1 to the Hearing.

BACKGROUND

4The purpose of the OPA would permit NDI (1 Roxborough Street West) Inc. (“Applicant”) to construct a 12-storey Mixed-Use building where Site and Area Specific Policy No. 211 requires the development in the “Yonge Street Corridor north of Ramsden Park” area to maintain the existing character of mainly three-storey buildings built to the street line with shops at street level.

5The purpose of the ZBA would allow for certain performance standards to be permitted regarding building height, building setbacks, gross floor area and floor space index.

STATUS REQUESTS

6Prior to the CMC, the Tribunal received a Participant request and statement from Frank Copping. The Tribunal approved the Participant request and statement with consent from the Parties. No other requests for status were received prior to, or, during the CMC.

OPPORTUNITIES FOR RESOLUTION

7The Parties informed the Tribunal that Tribunal-led Mediation has been requested by the Parties. The Mediation team has completed its initial assessment of the file, and the Parties are waiting to hear back as to the next steps in the process.

PROCEDURAL ORDER AND ISSUES LIST

8A draft PO and IL was received by the Tribunal prior to the commencement of the CMC. The Tribunal reviewed same with the Parties and approves of its contents. The PO and IL will be used to govern the proceedings prior to and during the upcoming Hearing.

SCHEDULING OF HEARING

9Based on the number of witnesses the Parties intend to call, the Tribunal has scheduled a Hearing of the Merits that will occur by Video Hearing beginning on Monday, July 15, 2024, at 10 a.m. for a duration of five (5)-days.

10Parties and Participants are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoToMeeting: https://global.gotomeeting.com/join/344779885

Access Code: 344-779-885

11Parties 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

12Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as mentioned above.

13Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the Hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the Hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

14THE TRIBUNAL ORDERS that a Hearing of the Merits will commence on Monday, July 15, 2024, at 10 a.m. for a duration of five (5)-days.

15THE TRIBUNAL ORDERS that the Procedural Order is to govern the procedures leading up to and including the Video Hearing as set out in Schedule 1 and is in full force and effect on the issue date of this Order.

16There will be no further notice.

17The Member is not seized.

“S. DeBoer”

Steve Deboer MEMBER Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

SCHEDULE 1

CASE NO(S).: OLT-23-000875

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: ABC Residents Association Applicant: NDI (1 Roxborough Street West) Inc. Subject: Proposed Official Plan Amendment Description: To permit a 12-storey mixed-use building with a total of 28 residential units Reference Number: 22 154014 STE 11 OZ Property Address: 1080-1088 Yonge Street Municipality/UT: Toronto/Toronto OLT Case No.: OLT-23-000875 OLT Lead Case No.: OLT-23-000875 OLT Case Name: ABC Residents Association v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: ABC Residents Association Subject: By-law No. 761-2023 Description: To permit a 12-storey mixed-use building with a total of 28 residential units Reference Number: 22 154014 STE 11 OZ Property Address: 1080-1088 Yonge Street Municipality/UT: Toronto/Toronto OLT Case No.: OLT-23-000876 OLT Lead Case No.: OLT-23-000875

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, July 15, 2024 at 10 a.m., through to Friday, July 19, 2024.

3. The length of the hearing is five (5) 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 are set out in Attachment 1. See Attachment 4 for the meaning of these terms.

5. 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.

6. 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.

7. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal as soon as possible. Any person who retains a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

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, the expert witness(es)' curriculum vitae and Acknowledgment of Expert Duty form(s), and the order in which the witnesses will be called. This list must be delivered at least on or before March 15, 2024. For expert witnesses, a party is to identify the area of expertise in which the witness is proposed to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules of Practice and Procedure and notice of same must be served on the parties on or before April 5, 2024.

10. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, and updated supporting documents and reports to the other parties on or before February 9, 2024. 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.

11. Expert witnesses in the same field shall have at least one meeting before the hearing to try to resolve or reduce issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties and the Tribunal at least on or before April 26, 2024, if agreement is reached.

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 13. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that they intend to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the parties at the same time as the delivery of witness statements, as in paragraph 13.

13. A witness (including any expert witness) or participant must provide to the Tribunal and the parties a witness statement (full disclosure including reports) or participant statement, respectively, on or before May 10, 2024 or the witness may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, except as permitted by the Ontario Land Tribunal Act, 2021 and the Tribunal's Rules of Practice and Procedure.

14. 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.

15. On or before May 31, 2024, the parties may provide to all other parties a written response to any written evidence.

16. On or before June 5, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before June 24, 2024, the parties shall provide copies of their visual evidence to all of the other parties. The Tribunal and all parties shall be notified if a model will be used, and all parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

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. 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.

20. On or before June 24, 2024, the parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.

21. The parties shall prepare a Joint Document Book on or before June 24, 2024, and which, if requested by the Tribunal, one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with paragraph 22.

22. All filing of documents and materials shall be electronic to the Tribunal, the parties and participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable should it request same. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, or as may be amended. Paragraph 22 applies regardless if the hearing event is in-person or electronic.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted in paragraph 10. The Tribunal’s Rule 17 applies to such requests.

24. 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.

25. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 4.

This Member is not seized.

So orders the Tribunal.

SUMMARY OF DATES

DATE	EVENT
Friday, February 9, 2024	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
Friday, March 15, 2024	Exchange of witness lists (names, disciplines and order to be called)
Friday, April 5, 2024	Last date to challenge identification of expert witness
Friday, April 26, 2024	Experts meeting prior to this date
Friday, April 26, 2024	Agreed Statement of Facts
Friday, May 10, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
Friday, May 31, 2024	Exchange of Reply Witness Statements (if any)
Wednesday, June 5, 2024	Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
Monday, June 24, 2024	Exchange of visual evidence (if any)
Monday, June 24, 2024	Final Work Plan filed with the Tribunal
Monday, June 24, 2024	Finalize Joint Document Book
Monday, July 15, 2024	Hearing commences

ATTACHMENT 1 - PARTIES/PARTICIPANTS

Parties

1. NDI (1 Roxborough Street West) Inc. - David Bronskill (416) 597-4299 dbronskill@goodmans.ca
2. City of Toronto - Gabe Szobel/Marc Hardiejowski (647) 280-0365/(416) 392-4960 gabe.szobel@toronto.ca/marc.hardiejowski@toronto.ca
3. ABC Residents Association - Andrew Biggart/Christina A. Kapelos (416) 622-6601, x. 1003/x.1001 abiggart@ritchieketcheson.com/tkapelos@ritchieketcheson.com

Participants

1. Frank Copping (416) 788-9796 frank.copping@yahoo.ca

ATTACHMENT 2 - ISSUES LIST

ABC Residents Association

1. Is the proposed development consistent with the Provincial Policy Statement 2020, including sections 1.0, 1.1, 1.1.3, 1.4, 1.5, 1.7 and 4.0?
2. Does the proposed development conform to and not conflict with the Provincial Growth Plan for the Greater Golden Horseshoe 2020, including section 1.2.1, 1.2.3, 2.2.1, 2.2.6, 4.2.5, 5.2.
3. Is the development’s proposed height and massing appropriate in relation to adjacent properties?
4. Does the proposed development provide an appropriate transition of scale and density to the adjacent Neighbourhood?
5. Does the proposed development create undue impact from overlook, shadowing and privacy on the adjacent Neighbourhood?
6. Does the proposed development adequately limit shadows on areas to the west including Ramsden Park?
7. Does the proposed development conform with the Downtown Plan (OPA 406)?
8. Does the proposed development conform with Site and Area Specific Policy 211?
9. Does the proposed development conform with Official Plan policies 2.3.1 (Healthy Neighbourhoods) 3.1.3 and 3.1.4 (Built Form) and 4.5 (Mixed Use Areas)?
10. Does the proposed development have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines?
11. Does the proposed development represent an overdevelopment of the site, when one considers matters such as setbacks, step backs and separation distances from the adjacent Neighbourhoods designated area?
12. Does the proposal represent good land use planning and urban design having regard to:
    1. the provincial and municipal policy framework identified in this issues list:
    2. the overall height, base building height, mass, building setbacks, stepbacks, scale and density of the Proposal, including the impact of height and setbacks on the following matters: i. privacy and overlook concerns into the abutting properties. ii. fit with the existing and planned built form context. iii. gradual transition in relation to the scale and character of the surrounding area, including the Neighbourhood to the west. iv. shadow impact on the adjacent streets and open spaces.
13. Does the Proposed Development appropriately respond to the Mid-Rise Design Guidelines and Performance Standards?
14. Does the Proposed Development have appropriate regard for the Council approved amendments to the Mid-rise Guidelines?
15. Does the Proposed Development adequately respond to recent OLT decisions for similar contexts?
16. Given the answers to all of the above issues, would approval of the proposed development represent good planning and good urban design?

ATTACHMENT 3 - ORDER OF EVIDENCE

1. ABC Residents Association
2. NDI (1 Roxborough Street West) Inc.
3. City of Toronto
4. ABC Residents Association, in reply (if any)

Attachment 4 - Meaning of terms used in the Procedural Order:

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