Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 14, 2023

CASE NO(S).: OLT-22-004171

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

Applicant/Appellant: Glen Everest Developments Inc.

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

Description: to permit a 12 storey, 427 unit development

Reference Number: 21 134156 ESC 20 OZ

Property Address: 54-62 Glen Everest Road

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-004171

OLT Case Name: Glen Everest Development Inc v. Toronto (City.)

Heard: February 3, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Glen Everest Developments Inc.	Joe Hoffman
City of Toronto	Jason Davidson
Tenants Have No Rights Association	Cindee Berry*

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON FEBRUARY 3, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened the second Case Management Conference (“CMC”) for the above-noted matter. Glen Everest Developments Inc. (“Applicant”) has filed an appeal against the City of Toronto (“City”) for failing to make a decision for a Zoning By-law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act. The property is known municipally as 54-62 Glen Everest Road in the City of Toronto (“subject property”). The purpose of this CMC is to finalize the Issues found in the Issues List of the draft Procedural Order (“PO”) which will allow the Tribunal to approve the PO and bring it into full force and effect with respect of the scheduled Merits Hearing.

2The effect of the ZBA is to permit a 12-storey residential building with a total of 414 units. The Applicant proposes to replace the existing 68 rental units on the site. The existing rental building would be demolished. A separate application has been submitted to the City for rental housing demolition. The proposal has a Gross Floor Area (“GFA”) of approximately 31,410 square metres with a Floor Space Index (“FSI”) of 6.37.

3At the first CMC convened on November 1, 2022 the Tenants Have No Rights Association (‘THNRA”) represented by Ms. Berry, requested Participant status but subsequently requested their status be changed to that of a Party. The Tribunal consented to this change and directed that THNRA submit their Issues to all Parties and the Tribunal. During the course of the November 2022 CMC, Ms. Berry was advised of the Tribunal’s jurisdiction with respect of this ZBA appeal matter. It is noted that the Tribunal has no jurisdiction with regard to matters pursuant to s. 111 of the City of Toronto Act 2006 (“Toronto Act”).

4The Applicant, upon receipt of the THNRA issues, noted that many were dealing with matters such as tenant’s relocation and assistance. Mr. Hoffman, Counsel for the Applicant, submitted that it is incumbent on the Tribunal to ensure the THNRA issues are within its jurisdiction and serve to focus on the land use matters before the Tribunal.

5A draft PO is submitted by the Applicant with a response from THNRA. The only area dispute in respect of the draft PO relate to the THNRA’s issues relating to tenant relocation, terms of occupancy and requisite financial compensation and arrangements.

6Mr. Hoffman advised the Tribunal and all Parties that his client understands tenant concerns are important, take them very seriously, and is committed to work with the tenants with respect of their concerns. He submits that the Tribunal has no jurisdiction to adjudicate demolition and conversion of rental properties pursuant to s. 111 of the Toronto Act. Should certain Issues submitted by the THNRA be included in the PO, jurisdictional issues would result. Mr. Hoffman did suggest that should the Tribunal approve this ZBA appeal at a subsequent hearing, the Tribunal Member has the option of withholding the Final Order subject to conditions one of which could require the receipt of a demolition of residential rental properties permit from the City. Conditions of this type will be addressed at a future hearing.

7Mr. Davidson, Counsel for the City, agreed that the Tribunal does not have jurisdiction with respect to matters regulated by s. 111 of the Toronto Act.

8Ms. Berry described in detail the concerns of the tenants of the existing building and the THNRA. She expressed a desire to provide testimony at the July 2023 hearing with respect to these concerns. Therefore, the THNRA should be added to the Order of Evidence found in Attachment 3 of the PO. The Tribunal agrees.

9From Ms. Berry’s description, there is no doubt that the impact of this change weighs heavily on the existing residents of the building. Ms. Berry at this CMC has made the City well aware of the THNRA’s views towards their desired terms to be included in any agreement that is entered into between the Applicant and the City with respect of this matter. It is clearly the City’s responsibility to craft the terms of such an agreement.

10Two of the THNRA Issues dealing with inappropriate shadowing on green space and the cenotaph to the north and limitations on natural light and privacy in relation to properties on the south side of Glen Everest Road are appropriately before this Tribunal. They should be included in the Issues List.

11The Tribunal and Parties took considerable time to assist Ms. Berry in her understanding of the legislative prerequisites, responsibilities, and the process that this Tribunal and the City follows in the discharge of their legislative obligations. Ms. Berry is also reminded of the Role and Obligations of a Party as defined in Rule 8.1 of the Ontario Land Tribunal – Rules of Practice and Procedure. Both the City and the Applicant committed to meet with Ms. Berry with respect of this matter.

FINDINGS

12The Tribunal finds it has no jurisdiction with respect of Issues presented by THNRA as they relate to tenant relocation, terms of occupancy and requisite financial compensation and arrangements as prescribed in s. 111 of the Toronto Act. These Issues will not be part of the PO’s Issues List.

13With respect to the PO, the Tribunal directs the following changes or additions will be made:

a. The THNRA will be added to the Order of Evidence found in Attachment 3 immediately following the “City of Toronto”.

b. Issue 1 of the THNRA found in the Issues List – Attachment 4 will read: “Will the proposal result in inappropriate shadowing on green space and the cenotaph north of the subject property?”

c. Issue 2 of the THNRA found in the Issues List – Attachment 4 will read: “Will the proposal inappropriately limit natural light and result in privacy concerns in relation to the properties on the south side of Glen Everest Road?”

14Mr. Hoffman will submit to the Tribunal copies to all parties a final draft of the PO for Tribunal review and approval.

15All other Issues submitted by the THNRA are beyond the jurisdiction of this Tribunal. It has the legislated responsibility is to address and adjudicate the planning merits of this ZBA application. Matters such as rental housing replacement and tenant relocation and are appropriately dealt with through the City’s rental housing demolition control process.

16The Merits Hearing is scheduled to commence on Monday, July 17, 2023 at 10 a.m. The technical details for this Hearing are found in the Tribunal decision issued on November 21, 2022 and are not repeated in this decision.

ORDER

17Accordingly, the Tribunal orders:

1. The Procedural Order found in Attachment 1 is approved and is in full force and effect.

18No further notice will be given.

19The Member is not seized.

“Bryan W. Tuckey”

BRYAN W. TUCKEY 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.

ATTACHMENT 1

ONTARIO LAND TRIBUNAL PROCEDURAL ORDER

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

Applicant and Appellant: Glen Everest Developments Inc.

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

Description: To permit a 12-storey, 427-unit development

Reference Number: 21 134156 ESC 20 OZ

Property Address/Description: 54-62 Glen Everest Road

Municipality: Toronto

OLT Case No.: OLT-22-004171

OLT Lead Case No.: OLT-22-004171

OLT Case Name: Glen Everest Development 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 video hearing will begin on Monday, July 17, 2023 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 8 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 2.

5. The issues are set out in the Issues List attached as Attachment 4. 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 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 Hearing 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, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other Parties on or before March 17, 2023 the applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

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 witnesses on or before April 18, 2023, and in accordance with paragraph 24 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 the qualifications of an expert witness shall bring a written motion for the challenge within 5 days of receiving the confirmed witness list.

11. Expert witnesses in the same field shall have a meeting on or before May 23, 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 May 26, 2023.

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.

14. On or before June 2, 2023, 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 24 below.

15. On or before June 2, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. The Parties may provide to all other Parties, the City Clerk, and the case co-ordinator a written response to any written evidence on or before June 16, 2023.

17. On or before June 27, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before July 7, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 7, 2023.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 7, 2023, 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.

23. At the time of cross-examination, the Parties shall provide to all Parties and the Tribunal, in a password protected format, any documents that will be used by the Party in cross-examination of an opposing Party's witness, unless the presiding Member directs otherwise. The password protected documents shall only be accessible to the Tribunal and the other Parties if they are introduced as evidence at the hearing.

24. 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.

25. 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

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.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
March 17, 2023	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
April 18, 2023	Exchange of witness lists, including names, disciplines and order to be called
May 23, 2023	Last date of Expert Witness Meetings
May 26, 2023	Agreed Upon Statement of Facts
June 2, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
June 16, 2023	Exchange of Reply Witness Statements (if any)
June 27, 2023	Notification to Tribunal if all hearing dates required
July 7, 2023	Exchange of Visual Evidence (if any), Joint Document Book, and Hearing Plan
July 17, 2023	Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. Glen Everest Developments Inc.
2. City of Toronto
3. Tenants Have No Rights Association (THNRA)

PARTICIPANTS

4. Ryan Debergh

ATTACHMENT 3

ORDER OF EVIDENCE

1. Glen Everest Developments Inc.
2. City of Toronto
3. Tenants Have No Rights Association (THNRA)
4. Glen Everest Developments Inc. (Reply)

ATTACHMENT 4

ISSUES LIST

City of Toronto

Planning Act

1. Does the proposed development and zoning by-law amendment have regard to the matters of provincial interest listed in Section 2 of the Planning Act?

Provincial Policy Statement (2020)

2. Are the proposed development and Zoning By-law Amendment consistent with the Provincial Policy Statement (2020) pursuant to Section 3 of the Planning Act, including Sections 1.1.1, 1.1.3, 1.5.1, and 1.6.6?

A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020)

3. Do the proposed development and Zoning By-law Amendment conform with, and not conflict with, the Growth Plan for the Greater Golden Horseshoe (2020), including Sections 5.2.5.5 and 5.2.5.6?

City of Toronto Official Plan

4. Do the proposed development and Zoning By-law Amendment conform with the policies of the City of Toronto Official Plan with respect to Growth Management – Avenues (Chapter 2.2.3), Healthy Neighbourhoods (Chapter 2.3.1), Public Realm (3.1.1), Built Form (Chapter 3.1.2), Housing (Chapter 3.2.1), Community Services and Facilities (Chapter 3.2.2), Natural Environment (Chapter 3.4), Mixed Use Areas (Chapter 4.5), and Implementation (Chapter 5)?

5. Do the proposed development and Zoning By-law Amendment conform with the policies of the Kingston Road Avenue Study (Cliffside Village Community) and associated Urban Design Guidelines with respect to Sustainable Development, Public Realm, Built Form, and Vehicular Movement – Parking and Access?

City of Toronto Guidelines

6. Does the proposal meet the intent and purpose of the Avenues and Mid-Rise Building Guidelines, including the Mid-Rise Building Performance Standards and Addendum?

7. Does the proposal meet the intent and purpose of the Growing Up Guidelines: Planning for Children in New Vertical Communities?

8. Does the proposal meet the intent and purpose of the Complete Streets Guidelines?

Site Specific Issues

9. Are the proposed density, height, massing, setbacks and stepbacks, and site organization of the proposed development appropriate given principles of good planning and urban design?

10. Does the proposed height, density, massing and built form provide appropriate transition to the adjacent lands designated Neighbourhoods, and mitigate overlook, privacy and shadowing on adjacent properties, and mitigate shadowing on the Scarborough War Memorial?

11. Does the proposal mitigate issues related to grade changes on the site, including providing interior access to units where stairs are required for access, and avoiding excessive use of stairs to access individual units?

12. Does the proposal minimize blank facades at grade along public streets and walkways to provide active frontages and promote a vibrant public realm?

13. Does the design and location of the proposed amenity spaces provide for a range of uses, including promoting social interaction and supporting families with children?

14. Does the proposal provide safe and accessible pedestrian walkways, including through the proposed mid-block pedestrian connections, in accordance with the City of Toronto Design Standards and Complete Streets Guidelines?

15. Does the proposal provide adequate public realm improvements, including the implementation of a new public pedestrian walkway within the portion of the Aylesford Drive right-of-way to be stopped up and closed adjacent to the site?

16. Is the location of the proposed vehicle and loading access to the site appropriate and adequately address concerns regarding access to the adjacent property to the south?

17. Is the proposed loading area adequately screened?

18. Does the proposal provide adequate transportation demand management (TDM) measures to support the proposed development?

19. Has the applicant provided the appropriate pedestrian crossing design information identified by Transportation Services in the September 22, 2022 memorandum from Engineering and Construction Services?

20. Is there sufficient infrastructure capacity to accommodate the proposed development (including water, sanitary and stormwater)?

21. Has the applicant satisfied all engineering and transportation issues identified in the September 22, 2022 memorandum from the Manager, Development Engineering, Scarborough District?

22. Do the proposed building and underground garage setbacks enable adequate soil depth and support the provision of long-lived, large growing shade trees?

23. Is the proposal compliant with Tier 1 of the Toronto Green Standard Version 4?

24. Is proposed the rental housing replacement appropriate, including the proposed total GFA of rental replacement units and replacement GFA by unit type?

25. Does the proposed development represent an overdevelopment of the site?

26. Is the Zoning By-law Amendment good planning and in the public interest?

27. If the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied and the Tribunal has received confirmation from the City Solicitor that:

a. The proposed Zoning By-law Amendments are in a form and content satisfactory to the Chief Planner and Executive Director, City Planning and City Solicitor;

b. City Council has approved the associated Rental Housing Demolition Application in accordance with Chapter 667 of the Toronto Municipal Code and pursuant to Section 111 of the City of Toronto Act, 2006, which allows for the demolition of existing rental dwelling units on site and appropriate tenant assistance;

c. The owner has provided a revised Functional Servicing Report and Stormwater Management Report, satisfactory to the Chief Engineer and Executive Director, Engineering and Construction Services and the owner has made satisfactory arrangements with Chief Engineer and Executive Director, Engineering and Construction Services and has entered into a financially secured Development Agreement for the construction of any improvements to the existing and/or new municipal infrastructure, should it be determined that upgrades are required to the infrastructure and/or new infrastructure is required to support this development according to a Site Servicing accepted by the Chief Engineer and Executive Director of Engineering and Construction Services; and

d. The owner has entered into an agreement pursuant to Section 111 of the City of Toronto Act, 2006 to the satisfaction of the Chief Planner and Executive Director, City Planning and such agreement registered on title to the satisfaction of the City Solicitor.

THNRA

1. Will the proposal result in inappropriate shadowing on green space and the cenotaph north of the subject property?

2. Will the proposal inappropriately limit natural light and result in privacy concerns in relation to the properties on the south side of Glen Everest Road?