Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

December 20, 2023

CASE NO(S).:

OLT-22-003667

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant:

9218 Yonge Street Inc.

Subject:

Request to amend the Official Plan – Failure to adopt the requested amendment

Description:

To permit a high-density mixed-use development comprised of two (2) towers with heights at 36-storeys and 42-storeys connected by a 6-storey podium consisting of 796 residential units and ground floor commercial uses

Reference Number:

D01-21010

Property Address:

9218 Yonge Street

Municipality/UT:

City of Richmond Hill/ Regional Municipality of York

OLT Case No:

OLT-22-003667

OLT Case No:

OLT-22-003667

OLT Case Name:

9218 Yonge Street Inc. v. Richmond Hill (City)

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

Applicant/Appellant:

9218 Yonge Street Inc.

Subject:

Application to amend the Zoning By-law – Neglect to make a decision

Description:

To permit a high-density mixed-use development comprised of two (2) towers with heights at 36-storeys and 42-storeys connected by a 6-storey podium consisting of 796 residential units and ground floor commercial uses

Reference Number:

D02-21020

Property Address:

9218 Yonge Street

Municipality/UT:

City of Richmond Hill/ Regional Municipality of York

OLT Case No.:

OLT-22-003668

OLT Lead Case No.:

OLT-22-003667

Heard:

December 4, 2023 by video hearing

APPEARANCES:

Parties

Counsel

9218 Yonge Street Inc.

Michael Cara Christopher Tanzola

City of Richmond Hill

Carlton Thorne

Regional Municipality of York

Bola Ogunmefun

2864249 Ontario Inc.

Brett Davis Isaac Tang (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED by BITA M. RAJAEE ON DECEMBER 4, 2023 AND ORDER OF THE TRIBUNAL

1This was the third Case Management Conference (“Third CMC”) in relation to appeals brought under s. 22(7) and s. 34(11) of the Planning Act (“Act”) by 9218 Yonge Street Inc. (“Applicant”) resulting from the failure of the City of Richmond Hill (“City”) to make a decision within the statutory timeframe on applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) in relation to the lands municipally known as 9218 Yonge Street in the City (“Subject Property”). The OPA and ZBA are required to give effect to the Applicant’s proposal to redevelop the Subject Property with a mixed-use building.

2The first CMC for this matter took place on January 25, 2023 (“First CMC”). It was confirmed at the First CMC that Notice had been properly given and the proceedings could continue without further Notice. Moreover, at the First CMC, status was conferred on the following:

a) Party Status was granted to the Regional Municipality of York and to 2864249 Ontario Inc.; and,

b) Participant Status was granted to Oxford Properties Group and Roman and Victoria Yusfin.

3The second CMC for this matter took place on Wednesday, May 31, 2023 (“Second CMC”), where the Hearing was scheduled for April 22, 2024 until May 7, 2024, for twelve (12) days. The particulars of that Hearing are contained in the Decision issued on June 19, 2023, pertaining to the Second CMC. Additionally, the Procedural Order (“PO”) and Issues List (“IL”) were reviewed and ratified by the Tribunal.

4At the Second CMC, the Applicant’s Counsel had advised that the Applicant intended to make a resubmission to the City, which would respond to many of the issues identified by the City and may lead to the scoping or removal of some of the issues. The Third CMC was scheduled to address any procedural matters, such as any that may arise from the Applicant’s resubmission to the City.

5Prior to the Third CMC, the City provided the Tribunal with a revised IL, which had been scoped pursuant to the Applicant’s resubmission to the City. The Parties filed a revised PO and IL incorporating the City’s revisions which were reviewed at the Third CMC and approved by the Tribunal. The updated and agreed-upon IL and PO, attached to this Decision, will govern this proceeding.

6The Parties further advised that they remained in discussions with the hope of achieving a settlement agreement. The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Hearing and, should they wish to pursue Tribunal-assisted mediation, they may reach out to the Tribunal’s Case Coordinator in writing for assistance in this regard.

ORDER

7THE TRIBUNAL ORDERS that the updated Procedural Order and Issues List, attached as Schedule A to this Decision, shall govern the proceedings.

8The Member is not seized but may be available for Case Management should procedural issues arise and scheduling permit.

“Bita M. Rajaee”

BITA M. RAJAEE

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.

SCHEDULE A

CASE NO(S).: OLT-22-003667

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

9218 Yonge Street Inc.

Subject:

Request to amend the Official Plan – Failure to adopt the requested amendment

Description:

To permit a high-density mixed-use development comprised of two (2) towers with heights at 36-storeys and 42-storeys connected by a 6-storey podium consisting of 796 residential units and ground floor commercial uses

Property Address:

9218 Yonge Street

Reference Number: Municipality:

D01-21010 City of Richmond Hill

OLT Case No.:

OLT-22-003667

OLT Lead Case No.:

OLT-22-003667

OLT Case Name:

9218 Yonge Street Inc. v. Richmond Hill (City)

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

Applicant and Appellant:

9218 Yonge Street Inc.

Subject:

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

Description:

To permit a high-density mixed-use development comprised of two (2) towers with heights at 36-storeys and 42-storeys connected by a 6-storey podium consisting of 796 residential units and ground floor commercial uses

Property Address:

9218 Yonge Street

Municipality:

City of Richmond Hill

Reference Number: OLT Case No.:

22 184087 NNY 16 OZ OLT-22-003668

OLT Lead Case No.:

OLT-22-003667

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the Parties’ request or its own motion.

Organization of the Hearing

2. The hearing will begin on April 22, 2024 at 10:00 a.m. by way of video hearing.

3. The length of the hearing will be twelve (12) 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 generally found in Attachment 1.

4. The Parties identified at the Case Management Conference are listed in Attachment 2 to this Order.

5. The Issues are set out in the Draft Issues List attached as Attachment 3 to this Order. Subject to paragraph 10 below, 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 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 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. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.

8. If the hearing is to proceed electronically, 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. (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

9. If the Appellant intends to seek approval of a revised proposal at the hearing, the Appellant shall provide copies of the revised proposal, inclusive of all revised plans, drawings, studies, reports, and draft instruments to be used or relied upon, to the other Parties by no later than July 14, 2023 after which time, the Appellant may not revise its proposal, except to narrow or resolve issues, or with the consent of the Parties, or with leave of the Tribunal. The Appellant acknowledges that any revisions to the proposal after July 14, 2023, except as set out above, may be grounds for an adjournment.

10. The City of Richmond Hill shall be entitled to reconsider its issues and to deliver a final Issues List to the Applicant and the Tribunal on or before November 24, 2023.

11. 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 11, 2023. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and is to provide a copy of their curriculum vitae. 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 and notice of same must be served on the other Parties on or before December 22, 2023.

12. Expert witnesses in the same discipline(s) shall have at least one meeting on or before January 16, 2024 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting(s) 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 the Parties and the Tribunal on or before January 23, 2024.

13. 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, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided, as in paragraph 16. 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 the Tribunal's Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends 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 time as the delivery of expert witness statements, as in paragraph 16.

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 16.

15. On or before February 22, 2024, a Participant shall provide copies of their written participant statement to the other Parties and to the Tribunal 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. On or before February 22, 2024, the Parties shall provide copies of their witness and expert witness statements to the other Parties and to the Tribunal case coordinator and in accordance with paragraph 24below.

17. On or before March 18, 2024, the Parties shall provide copies of their written response(s) to any written evidence to the other Parties and to the Tribunal in accordance with paragraph 24below.

18. On or before March 25, 2024, the Parties shall confirm with the Tribunal if all the hearing dates are still required.

19. On or before April 2, 2024, the Parties shall file with the Tribunal a detailed Work Plan that identifies the following, at a minimum: the Parties participating in the hearing, preliminary matters to be addressed (if any), 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. In the event of a disagreement between the Parties about the Work Plan, the Tribunal may be spoken to.

20. The Parties shall prepare a Joint Document Book on or before April 2, 2024 and which 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 24 below.

21. On or before April 8, 2024, Parties shall provide copies of their visual evidence to the other Parties and the Tribunal in accordance with paragraph 24 below.

22. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with Rule 10 of the Tribunal’s Rules.

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

24. All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7 of the Tribunal’s Rules.

25. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. Rule 17 of the Tribunal’s Rules shall apply to such requests.

26. 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.

27. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

July 14, 2023

Deadline for Applicant to Provide Revised Proposal to Parties (in accordance with Paragraph 9 of Procedural Order)

November 24, 2023

Deadline for City to Deliver Final issues List to the Applicant and the Tribunal

December 11, 2023

Exchange of Witness Lists

December 22, 2023

Deadline to Challenge Witnesses or Qualifications

January 16, 2024

Experts meeting(s) prior to this date

January 23, 2024

Deadline to File Any Agreed Statement(s) of Facts

February 22, 2024

Exchange of Witness Statements and Experts Reports, Participant Statements (if any), and summoned witness outlines (if any)

March 18, 2024

Exchange of Reply Witness Statements (if any)

March 25, 2024

Parties to Advise if Any Hearing Dates Can be Released

April 2, 2024

Filing of Work Plan and Joint Document Book

April 8, 2024

Exchange of visual evidence (if any)

April 22, 2024 – May 7, 2024

Ontario Land Tribunal Hearing

ATTACHMENT 2

LIST OF PARTIES

A. PARTIES

Counsel/*Agent

9218 Yonge Street Inc. (Applicant/Appellant)

Christopher Tanzola / Michael Cara Overland LLP Yonge Norton Centre 5255 Yonge Street, Suite 1101 Toronto, ON L4B 3P4 Email: ctanzola@overlandllp.ca / mcara@overlandllp.ca Tel: 416.730.0645 / 416.730.8844

The City of Richmond Hill

Carlton Thorne City of Richmond Hill, Legal Services 255 East Beaver Creek, 8th Floor Richmond Hill, ON M5V 3C6 Email: carlton.thorne@richmondhill.ca Tel: 905.747.6479

The Regional Municipality of York

Bola Ogunmefun / Samantha Whalen 17250 Yonge Street Newmarket, ON L3Y 6Z1 Email: bola.ogunmefun@york.ca / samantha.whalen@york.ca Tel: 905.830.4444 ext. 71459 / 905.830.4444 ext. 71422

2864249 Ontario Inc.

Isaac Tang / Brett Davis Borden Ladner Gervais LLP Bay Adelaide Centre, East Tower, 22 Adelaide St. W, Toronto, ON M5H 4E3 Email: itang@blg.com / bdavis@blg.com Tel: 416.367.6143 / 416.367.6632

B. PARTICIPANTS

Counsel/*Agent

Oxford Properties Group

Caterina Facciolo EY Tower, Suite 2100 100 Adelaide St. W. Toronto, ON M5H 0E2 Email: cfacciolo@oxfordproperties.com Tel: 416.350.7925

Roman and Victoria Yusfin

94 Brillinger Street Richmond Hill, ON L4C 8Y2 Email: yusfin@hotmail.com Tel: 647.988.4951

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. The identification of an issue on this list by a Party indicates that Party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the Tribunal having jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the Tribunal.

City of Richmond Hill Issues List

1. Does the development proposal consisting of Official Plan and Zoning By-law Amendments for the subject lands (collectively the “development proposal”) have regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act?

2. Is the development proposal in conformity with the relevant policies in the York Region Official Plan (2010) (the “ROP”);

3. Does the development proposal have appropriate regard for the relevant policies in the 2022 York Region Official Plan (the “2022 ROP”);

4. Does the development proposal maintain the intent and principles of and does it conform with the City’s Official Plan (the “Plan”) as adopted by City Council on July 12, 2010, as approved by the former Ontario Municipal Board, as amended, specifically as it relates to the in-force policies of the Plan respecting:

a. Density, including but not limited to Sections 4.4.1 and 6.22;

b. Affordable housing, including but not limited to Section 3.1.5; and,

c. Any other policies related thereto.

5. Does the development proposal represent an overdevelopment of the site?

6. Has the appropriateness and feasibility of the development proposal been identified and satisfactorily addressed with respect to matters related to, but not necessarily limited to, the provision of appropriate underground setbacks, transportation demand management, parking, waste management (inclusive of appropriate access and clearances) and tree preservation?

7. Are the proposed Official Plan Amendment and Zoning By-law Amendment appropriate, including with respect to whether the proposed instruments sufficiently regulate matters including but not limited to permitted uses, unit mix, density, setbacks, pedestrian connections and parking in a manner consistent with good planning?

8. Is the development proposal appropriate and does it represent good planning?

Regional Municipality of York Issues List

Transportation Planning

9. Does the proposed development conform with the policies of the York Region Official Plan (2010), including but not limited to Section 5.2 (Sustainable Cities, Sustainable and Section 7.2 (Moving People and Goods) and does the proposed development have appropriate regard for the equivalent policies in the 2022 York Region Official Plan?

10. Does the proposed development provide safe and efficient access to accommodate the development, including providing a fine grid road network?

Additional Issues

Planning Act

11. Does the proposed development have appropriate regard for the matters of provincial interest as set out in Section 2 of the Planning Act, including (f), (h), (m), (p) and (n)?

Provincial Policy Statement

12. Is the proposed development consistent with the Provincial Policy Statement (2020), including but not limited to Sections 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.4.3, 1.6.8.1, and 4.6?

Growth Plan

13. Does the proposed development conform with and not conflict with the Growth Plan for the Greater Golden Horseshoe (2020), including but not limited to Sections 1.2.1, 2.2.2(3), 2.2.4(2), 2.2.4(9), 3.2.2.1, and 5.2.5(8)?

Region of York Official Plan

14. Does the proposed development conform with the policies of the Region of York Official Plan (2010), including but not limited to Sections 5.2 (Sustainable Cities, Sustainable Communities), 5.3 (Intensification), 5.4 (Regional Centres and Corridors), 6.3.36, 6.3.44, 6.3.47, (Moving People and Goods) 7.1 (Reducing the Demand for Services), and 7.5 (Energy and Utilities)?

City of Richmond Hill Official Plan

15. Does the proposed development maintain the intent and principles of, and do they generally conform with, the policies of the City of Richmond Hill Official Plan, including but not limited to Sections 3.1.5 (Housing), 3.4.1 (Urban Design), 3.5.4 (Transit Oriented Development), 4.4.1 (Land Use), and 4.4.2 (Design), 5.1 (Secondary Plans) and 6.22 (Exceptions)?

Land Use and Built Form

16. Are the proposed building height, built form, tower setbacks, and overall site design appropriate?

17. Does the proposed development have appropriate regard for the City of Richmond Hill’s Urban Design Guidelines including but not limited to Section 6.6?

Draft Secondary Plan

18. Does the proposed development have appropriate regard for the draft Yonge and Carville/16th Avenue Key Development Area (KDA) Secondary Plan (2018) and Draft OPA 18.5 (2023), including but not limited to Sections 11.2.2 (Height), 11.2.3 (Density), and 11.4.2 (Transit) and related Schedules that identify the need for a local east-west road on the site?

Transportation and Parking

19. Are the proposed vehicular and loading accesses appropriately located and consolidated, including as it relates to the existing interface with 9212 Yonge Street, which is located immediately to the south of the site? Is it appropriate for the proposed development to provide a connection to 9212 Yonge Street?

20. Does the proposal provide an appropriate parking rate?

Form of Amendments

21. Is the form and content of the draft Zoning By-law Amendment appropriate?

22. Is the form and content of the draft Official Plan Amendment appropriate?

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence. The Order of Evidence will be described in greater detail in the Work Plan that is filed with the Tribunal.

1. 9218 Yonge Street Inc. (Applicant/Appellant)

2. Parties in Support of 9218 Yonge Street Inc.

3. Parties in Opposition of 9218 Yonge Street Inc.

4. Reply by 9218 Yonge Street Inc. (if necessary)

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

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

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as parties can.

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party 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 intends to present as evidence at the hearing.

Witness Statements:

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 the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

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

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.