BJL Properties Inc. and 47 Camden Inc. v. Toronto (City), 2023 CanLII 19233

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 07, 2023

CASE NO(S).: OLT-22-003265

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

Applicant/Appellant: BJL Properties Inc. and 47 Camden Inc.

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

Description: To permit a 16-storey mixed-use building

Reference Number: 21 235947 STE 10 OZ

Property Address: 39-47 Camden Street

Municipality: City Toronto

OLT Case No.: OLT-22-003265

OLT Lead Case No.: OLT-22-003265

OLT Case Name: BJL Properties Inc. and 47 Camden Inc. v. Toronto (City)

Heard: February 21, 2023 by video hearing

APPEARANCES:

Parties

Counsel

BJL Properties Inc.; and 47 Camden Inc.

Eileen Costello

City of Toronto

Derin Abimbola Ray Kallio

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY AND W. DANIEL BEST ON FEBRUARY 21, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened the second Case Management Conference (“CMC”) for the above noted matter. BJL Properties Inc. and 47 Camden 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 39 – 47 Camden Street in the City of Toronto (“subject property”).

2The effect of the ZBA is to allow a mixed-use development with an increased height and density on the subject property. The subject property is currently vacant but was formerly occupied by two non-residential buildings and a surface parking lot.

3All Parties are present and represented by counsel as noted in the appearances. No participants are in attendance at this proceeding.

4Ms. Costello, on behalf of the Applicant, provided a status update for the benefit of the Tribunal and the City. Ms. Costello advised that the City has received direction from its Council with respect of this matter and has circulated an Issues List for the Applicant's consideration. A draft Procedural Order (“PO”) is before the Tribunal at this proceeding. She noted that there will be a final review of Issues by parties and expects she will be able to submit a final PO for the Tribunal’s consideration, review, and approval no later than Friday, February 24, 2023. The Tribunal agrees with this timeframe.

5Ms. Costello noted that she has had discussions with Ms. Abimbola with respect of number of witnesses that may be called and is requesting the Tribunal schedule a five day Merits Hearing. She advised the Tribunal that she has had direct discussions with the City on previous files and expects to have similar discussions with respect to this matter.

6Ms. Abimbola is in general agreement with Ms. Costello’s update and estimates a five day hearing is required.

7Given the mature nature of the PO and Issues List the Tribunal is comfortable in scheduling a Merits Hearing with respect of this matter.

8The Parties are aware of the availability of Tribunal-led mediation. Parties are of the opinion this may be a possible path for this matter and understand they may request this mediation at their convenience.

MERITS HEARING ADMIISTRATIVE DETAILS

9A five day Merits Hearing will convene on Monday, April 15 until Friday, April 19, 2024, by video hearing at 10 a.m.

10Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/765631861

Access code: 765-631-861

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 at: 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: +1 (647) 497-9373 or Toll Free 1-888-299-1889 The access code is 765-631-861.

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 events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

14Accordingly, the Tribunal Orders:

a. A five day Merits Hearing is to convene on Monday, April 15, 2024.

b. The Procedural Order found at Attachment 1 comes into full force and effect.

15No further notice will be given.

16The Members are not seized.

“Bryan W. Tuckey”

BRYAN W. TUCKEY

MEMBER

“W. Daniel Best”

W. DANIEL BEST

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

ISSUE DATE: March 7, 2023

CASE NO(S).: OLT-22-003265

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

Applicant and Appellant: BJL Properties Inc. and 47 Camden Inc.

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

Description: To permit a 16-storey mixed-use building

Reference Number: 21 235947 STE 10 OZ

Property Address: 39-47 Camden Street

Municipality: City Toronto

OLT Case No.: OLT-22-003265

OLT File No.: OLT-22-003265

OLT Case Name: BJL Properties Inc. and 47 Camden Inc. v. Toronto (City)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time, either on request by the parties or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.

Organization of the Hearing

2. The video hearing will begin on April 15, 2024 at 10:00 a.m. by linking onto https://global.gotomeeting.com/join/765631861

or by phone via the call-in numbers: +1 (647) 497-9373 or Toll Free 1-888-299-1889.

3. The parties’ initial estimation for 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 procedural order deadlines are found in Attachment 1.

5. 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).

6. 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.

7. The order of evidence shall be as 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 the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

8. 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.

9. 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

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, updated supporting documents and reports, to the other parties on or before Wednesday, October 18, 2023 (at least 120 days before witness statements are to be filed) in accordance with paragraph 24 below. The applicant acknowledges that any revisions to the proposal after that date without consent of the parties may be grounds for the Tribunal to adjourn the hearing..

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 Monday, December 18, 2023 (at least 119 days prior to the start of the hearing) 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.

12. Expert witnesses in the same field shall have a meeting on or before Tuesday, January 16, 2024 (at least 90 days prior to the start of the hearing) 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 Thursday, February 15, 2024 (at least 60 days prior to the start of the hearing).

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. Copies of this must be provided as in paragraph 15 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.

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 15 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 15 below.

15. On or before Thursday, February 15, 2024 (at least 60 days prior to the start of the hearing), 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.

16. On or before Thursday, February 15, 2024 (at least 60 days prior to the start of the hearing), 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.

17. On or before Monday, March 11, 2024 (at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before Friday, March 15, 2024 (at least 31 days prior to the start of the hearing), 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. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within eleven (11) days after the evidence is received and in accordance with paragraph 24 below.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Tuesday, March 26, 2024 (at least 20 days prior to the start of the hearing).

21. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 13 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.

22. 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.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, April 8, 2024 (at least 7 days prior to the start of the hearing) 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.

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

SUMMARY OF DATES

DATE

EVENT

Wednesday, October 18, 2023 (120 days before Witness Statement Date)

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

Monday, December 18, 2023 (119 days prior to hearing)

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

Tuesday, January 16, 2024 (90 days prior to hearing)

Experts meeting prior to this date, if any

Thursday, February 15, 2024 (60 days prior to hearing)

Agreed Statement of Facts, if any

Thursday, February 15, 2024 (60 days prior to hearing)

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

Monday, February 26, 2024 (11 days after Witness Statement received)

Exchange of Reply Witness Statements (if any)

Monday, March 11, 2024 (35 days prior to hearing)

Confirm if reserved hearing dates still required

Friday, March 15, 2024 (31 days prior to hearing)

Exchange of visual evidence (if any)

Tuesday, March 26, 2024 (20 days prior to hearing)

Finalize Joint Document Book

Monday, April 8, 2024 (7 days prior to hearing)

Hearing Plan filed with the Tribunal

April 15, 2024

Hearing commences

ATTACHMENT 2

PARTIES:

1. BJL Properties Inc. and 47 Camden Inc.

Eileen Costello

Aird & Berlis LLP

181 Bay Street, Suite 1800

Toronto, ON M5J 2T9

Tel: 416.865.4740

Fax: 416.863.1515

Email: ecostello@airdberlis.com

2. City of Toronto

Ray Kallio

Metro Hall 26th fl.

55 John St.

Toronto ON M5V 3C6

Tel: 416.397.4063

Fax: 416.397.5624

Email: Ray.Kallio@toronto.ca

Derin Abimbola

Metro Hall 26th fl.

55 John St.

Toronto ON M5V 3C6

Tel: 416.338.1376

Fax: 416.397.5624

Email: Derin.Abimbola@toronto.ca

PARTICIPANTS

1. Garment District Neighbourhood Association

Valerie Eggertson

Tel: 416.576.2426

Email: secretary@gdnatoronto.org

2. Mason Shan

Tel: 647.987.4739

Email: mason.u.shan@gmail.com

3. Nadine Burdak

Tel: 416.567.9016

Email: nburdak.design@gmail.com

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the OLT or any party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT at the hearing will be a matter of evidence and argument at the hearing. 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 OLT 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 OLT.

CITY OF TORONTO

Planning Act

1. Does the proposed development have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including, but not limited to, (f), (h), (j), (p), and (r)?

2. Would the approval of the proposed development and the proposed Zoning By-law Amendment have regard to the decision of City Council and the information and material that City Council considered in making its decision as required by Section 2.1 of the Planning Act?

Provincial Policy Statement 2020

3. Would the proposed development and the proposed Zoning By-law Amendment be consistent with the Provincial Policy Statement as required by Section 3(5)(a) of the Planning Act, including, but not limited to, Policies 1.1.3.3, 1.1.3.4, 1.4.3, 1.7.1, 2.6.2, and 4.6, reading Provincial Policy Statement (2020) in its entirety and applying the relevant policies.

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

4. Does the proposed development and the proposed Zoning By-law Amendment conform with, and not conflict with, A Place to Grow: Growth Plan for the Greater Golden Horseshoe as required by Section 3(5)(b) of the Planning Act, including but not limited to, Sections 1.2.1, 2.2.1, and 2.2.6, reading A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) in its entirety and applying the relevant policies?

City of Toronto Official Plan

5. Does the proposed development and the proposed Zoning By-law Amendment conform with the policies of the City of Toronto Official Plan, including but not limited to, the following Sections:

a. Public Realm (Section 3.1.1);

b. Built Form (Section 3.1.2, Section 3.1.3, Section 3.1.4);

c. Housing (Section 3.2.1); and,

d. Regeneration Areas (Section 4.7)?

6. Does the proposed development and the proposed Zoning By-law Amendment conform with Chapter 6, Section 41 of the Official Plan being the Downtown Plan, including but not limited to, the following Sections:

a. Interpretation (1.5, 1.6);

b. Complete Communities (3.1, 3.3, 3.18);

c. Directing Growth (4.1, 4.2);

d. Mixed Use Areas (6.19, 6.20, 6.22, 6.25, 6.26);

e. Built Form (9.1, 9.8, 9.10, 9.12 to 9.14, 9.23 to 9.27); and

f. Housing (11.1)?

7. Does the proposed development and proposed Zoning By-law Amendment conform to the King-Spadina Secondary Plan (1996), in particular Policy 3.6 (Built Form Principles)?

8. Does the proposed development and proposed Zoning By-law Amendment have appropriate regard for the King-Spadina Secondary Plan, as modified (2022), in particular:

a. Section 2 (Vision), Section 3 (Major Objectives), Policy 6.1 (Built Form), Policy 6.3 (Base Building), Policy 6.6.7 (Transition), Policies 6.10 to 6.14 (West Precinct), and Policy 7.2 (St. Andrew's Playground)?

Public Interest and Good Planning

9. Is the proposed development and proposed Zoning By-law Amendment in the public's interest and does it represent good planning and good urban design?

Height and Massing

10. Does the proposed development and the proposed Zoning By-law Amendment represent a height, massing, density and scale of development that is appropriate for the surrounding area, in particular the West Precinct, and does it provide an appropriate transition to adjacent areas?

11. Does the proposed development and the proposed Zoning By-law Amendment fit appropriately within the existing and planned built form context, with regard to its setbacks, step backs, scale, separation distances, streetwall heights, building base height, and floorplate size?

12. Does the proposed development protect privacy within adjacent buildings and lands?

13. Does the proposed development have appropriate regard to the applicable Tall Building Design Guidelines (2013) and the Downtown Tall Building Vision and Supplementary Design Guidelines (2012)?

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

Streetscape and Public Realm

15. Is the proposed development's relationship with the public realm and resulting streetscape appropriate and does it represent good planning?

Housing

16. Does the proposed development meet the intent and purpose of the Growing Up: Planning for Children in New Vertical Communities, Urban Design Guidelines (2020)?

Amenity Space

17. Is the provision of indoor and outdoor amenity space appropriate?

Servicing, Access and Loading

18. Does the proposed development and proposed Zoning By-law Amendment have adequate municipal services in place to support the development, including but not limited to the availability of adequate sanitary, storm and water capacity, including water pressure, and the implementation of appropriate stormwater management measures and groundwater management measures?

19. Does the proposed development provide appropriate and adequate access to the below grade parking garage?

20. Does the proposed development provide for adequate loading to support the development?

Conditions

21. If the proposal is approved in whole or in part, should the Tribunal's final Order be withheld until all the following conditions are satisfied and the Tribunal has been advised by the City Solicitor that:

a. the final form and content of the draft Zoning By-law is in a form and content satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning;

b. the owner has, at its sole expense:

i. provided a Phase Two Environmental Site Assessment, a revised Functional Servicing Report, Stormwater Management Report, and Hydrogeological Assessment to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water;

ii. addressed all outstanding issues raised by Engineering and Construction Services identified in the memorandum, dated March 9, 2022, and any other comments that may arise further to the review of materials submitted as part of the process to address the issues set out in the memorandum, dated March 9, 2022, from Engineering and Construction Services, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

iii. provided an Archeological Assessment, prepared by a qualified and licensed archeologist, to the satisfaction of the Senior Manager, Heritage Planning, Urban Design, City Planning; and,

iv. provided a Composite Utility Plan and revised Landscape Plan (with an updated soil volume plan) and has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review identified in the memorandum, dated January 26, 2022, to the satisfaction of General Manager, Parks, Forestry and Recreation.

ATTACHMENT 4

ORDER OF EVIDENCE

1. BJL Properties Inc. and 47 Camden Inc.

2. City of Toronto

3. BJL Properties Inc. and 47 Camden Inc. (in reply, if necessary)

ATTACHMENT 5 PURPOSE OF THE PROCEDURAL ORDER AND MEANING OF TERMS

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.