Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 22, 2023
CASE NO(S).: OLT-22-004501
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Amdev (Beamish) LP
Subject: Application to amend Zoning By-law – Refusal or Neglect to make a decision
Purpose: To permit a 52-storey mixed-use building
Property Address: 4-10 Beamish Drive
Municipality: City of Toronto
Approval Authority File No.: 19 232228 WET 03 OZ
OLT Case No.: OLT-22-004501
OLT Lead Case No.: OLT-22-004501
OLT Case Name: Amdev (Beamish) LP v. Toronto (City)
Heard: January 19, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Amdev (Beamish) LP | David Bronskill/Rodney Gill |
| City of Toronto | Sara Amini/Marc Hardiejowski |
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON JANUARY 19, 2023 AND ORDER OF THE TRIBUNAL
Introduction
1This was the first Case Management Conference (“CMC”) for the above noted matters. Amdev (Beamish) LP (“Applicant”) has filed an appeal against the City of Toronto’s (the “City”) failure to make a decision regarding a Zoning By-law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act.
2The property is known municipally as 4-10 Beamish Drive in the City (“Subject Property”). The Applicant plans to redevelop the Subject Property as a 52-storey residential building, including 37,593 square metres (“sq m”) residential Gross Floor Area (“GFA”) and 296 sq m of at-grade non-residential GFA.
3The Affidavit of Service by Linda Roberts sworn on December 13, 2022 for the Notice of the CMC was reviewed and marked as Exhibit 1.
Parties and Participants
4There were no requests received for the granting of Party status and none were granted.
5The Tribunal reviewed the requests received for the granting of Participant status. With consent of the parties, the following were granted Participant status:
- Liberty Development Corporation;
- Maria De Anglis Pater and Tomasz Pater; and,
- South Eatonville Residents Association.
Updates
6The City informed that in order to complete the finalization of the Issues List for the City, they need instruction from City Council. The planned date for receiving this instruction was identified as February 7, 2023.
7The Parties jointly reviewed the initial Issues List. Based on past experience and proposed scope of the development, it was anticipated by the Parties that that opinion evidence to be brought forth at a future hearing will be focussed in the areas of land use planning, urban design, transportation engineering and possibly forestry.
8The Tribunal having considered the submissions of the Parties set a hearing on the merits.
9The Tribunal Orders that the hearing will have a duration of ten (10) days, and will commence on Monday, September 18, 2023 at 10 a.m.
10The hearing will be based on a Tribunal-approved Procedural Order (“PO”). The parties promised to provide the final draft PO to the Tribunal around February 28, 2023. This has since been received.
11The PO as approved by the Tribunal is attached as Schedule 1 in this Decision.
Hearing Technical Details
12The hearing for a duration of ten (10) days is scheduled to commence on Monday, September 18, 2023 by video hearing at 10 a.m.
13Parties 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.
14The Hearing is scheduled to proceed by video as follows:
https://meet.goto.com/348282861
Access Code: 348-282-861
15Persons 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 indicated above.
16Parties 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
17Individuals 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.
18No further notice will be given.
19This Member is not seized but may be reached through the Case Coordinator for case management purposes prior to the hearing.
20The Tribunal so Orders.
“Jatinder Bhullar”
JATINDER BHULLAR
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
ISSUE DATE: March 22, 2023 CASE NO(S).: OLT-22-004501
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Amdev (Beamish) LP
Subject: Application to amend the Zoning By-law – Refusal or Neglect to make a decision
Purpose: To permit a 52-storey mixed-use building
Property Address: 4-10 Beamish Drive
Municipality: City of Toronto
Approval Authority File No.: 19 232228 WET 03 OZ
OLT Case No.: OLT-22-004501
OLT File No.: OLT-22-004501
OLT Case Name: Amdev (Beamish) LP v. Toronto (City)
PROCEDURAL ORDER
- The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.
Organization of the Hearing
The video hearing will begin on September 18, 2023 at 10:00 a.m. via video hearing.
The parties’ initial estimate for the length of the hearing is 10 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 parties and participants identified at the case management conference are set out in Attachment 2.
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.
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 consent or by Order of the Tribunal.
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.
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
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 July 24, 2023. 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 challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed may 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 August 28, 2023 following the exchange of expert witness lists.
Expert witnesses in the same field shall have a meeting on or before August 14, 2023 to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties on or before August 28, 2023, if this meeting takes place and if agreement is reached.
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 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 as the delivery of expert witness statements, as in paragraph 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 13. 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 13.
On or before August 4, 2023, the parties shall provide copies of their witness and expert witness statements to the case coordinator and the other parties in accordance with paragraph 23. If required, one hard copy of each witness and expert witness statement shall be filed with the Tribunal.
On or before August 4, 2023, a participant shall provide copies of their written participant statement to the case coordinator and the other parties in accordance with paragraph 23. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before August 14, 2023, the parties shall provide copies of their visual evidence to the OLT case coordinator and all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing. If required, one hard copy of each piece of visual evidence shall be filed with the Tribunal.
Parties may provide to all other parties and file with the Clerk a written response to any written evidence on or before August 28, 2023, in accordance with paragraph 23. If required, one hard copy of each written response shall be filed with the Tribunal.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before September 8, 2023. If required, one hard copy of the joint document book shall be filed with the Tribunal.
At the time of cross-examination, the parties shall provide to all parties and the Tribunal, in password protected format, any documents that will be used by the party in the 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 it is introduced as evidence at the hearing.
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 fifteen (15) days before the Tribunal hears the motion.
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 seven (7) days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a hearing plan with the Tribunal on or before September 11, 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.
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 July 7, 2023. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for the Tribunal to adjourn the hearing.
All filing shall be electronic to the Tribunal, the Parties and Participants, and, if requested by the Tribunal at a later time, 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. 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, referenced in paragraph 8 above, or as may be amended. Section 23 applies regardless if the hearing event is in-person or electronic.
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.
ATTACHMENT 1
SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| July 7, 2023 | Last date to provide copies of revised proposal, including all revised plans and drawings (if any) |
| July 24, 2023 | Exchange of witness lists (names, disciplines and order to be called) |
| August 28, 2023 | Last date to challenge identification of expert witness |
| August 14, 2023 | Experts meeting prior to this date, if any |
| August 28, 2023 | Agreed Statement of Facts, if any |
| August 4, 2023 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| August 28, 2023 | Exchange of Reply Witness Statements (if any) |
| August 14, 2023 | Exchange of visual evidence (if any) |
| September 11, 2023 | Hearing Plan filed with the Tribunal |
| September 8, 2023 | Finalize Joint Document Book |
| September 18, 2023 | Hearing commences |
ATTACHMENT 2
Parties and Participants
PARTIES:
Amdev (Beamish) LP David Bronskill/Rodney Gill 416.597.4299/416.597.4136 dbronskill@goodmans.ca/rgill@goodmans.ca
City of Toronto Marc Hardiejowski 416-392-4960 marc.hardiejowski@toronto.ca
PARTICIPANTS
Liberty Development Corporation Ira Kagan, Kagan Shastri DeMelo Winer Park Lawyers LLP 416.368.2100 x226 ikagan@ksllp.ca
Maria De Anglis Pater and Tomasz Pater 416.805.4035/416.903.7149 mpater8@gmail.com mistyblue911@hotmail.com
South Eatonville Residents Association Lucy Falco 416.533.0738 lucyfalco@sympatico.ca
ATTACHMENT 3
ISSUES LIST
A. CITY OF TORONTO
Does the proposed development and Zoning By-law Amendment have appropriate regard for the matters of provincial interests set forth in Section 2 of the Planning Act, including (h), (j), (n), (q), and (r)?
Would the approval of the proposed development and Zoning By-law Amendment have appropriate regard for the decision of City Council as required by Section 2.1 of the Planning Act?
Provincial Policy Statement (2020)
- Is the proposed development and Zoning By-law Amendment consistent with the Provincial Policy Statement (2020), including but not limited to 1.1.1, 1.1.3.3, 1.1.3.4, 4.6, and 4.7?
A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020)
- Does the proposed development and Zoning By-law Amendment conform to, and not conflict with, A Place to Grow: Growth Plan for the Greater Golden Horseshoe, including, but not limited to, Section 2.2.1.4, 2.2.2.3, 2.2.6.3, 2.2.6.4, and 5.2.5.6?
City of Toronto Official Plan
Does the proposed development and Zoning By-law Amendment conform with the policies of the City of Toronto Official Plan with respect to Growth Management – Centres (Chapter 2.2.2), Healthy Neighbourhoods (Chapter 2.3.1), Public Realm (Chapter 3.1.1), Built Form (Chapter 3.1.3 and 3.1.4), Parks and Open Spaces (Chapter 3.2.3), Natural Environment (Chapter 3.4), Mixed Use Areas (Chapter 4.5), and Implementation (Chapter 5)?
Does the proposed Zoning By-law Amendment Application meet the intent of the principles and vision and conform with the policies of the Etobicoke Centre Secondary Plan, including the following: Section 2, 3.3.1, 3.3.1.3, 3.3.1.5, Section 3.4, 3.10.1, 3.10.3, 3.10.6, and 3.13.3?
Guidelines
Does the proposed development have appropriate regard for the Etobicoke Centre Urban Design Guidelines?
Does the proposed development have appropriate regard for the Etobicoke Centre Public Space & Streetscape Plan?
Does the proposed development have appropriate regard for the applicable City of Toronto Tall Building Design Guidelines?
Does the proposed development have appropriate regard for the applicable Growing Up: Planning for Children in New Vertical Communities Guidelines?
Site Specific Issues
- Does the proposed development represent good land use planning and urban design, having regard to matters such as:
a. The fit of the proposed development within the existing and planned context;
b. The appropriateness of the proposed built form in terms of height, density, transition, massing and scale, separation distances, base building height, streetwall height, ground floor height and building design;
c. Whether the proposed setbacks and stepbacks are appropriate;
d. Whether the proposed sunlight access and shadow impacts are appropriate;
e. Whether the proposed development results in comfortable and safe pedestrian level wind conditions appropriate to the intended uses;
f. Whether the proposal creates a safe and attractive pedestrian realm;
g. Whether vehicular access and circulation is located and organized appropriately in the context of the block;
h. Whether the proposed publicly-accessible open space on private property and open landscape sizes and locations are appropriate and connect to the surrounding open space network;
i. Whether there is appropriate consideration of children and family-friendly unit design in terms of unit type, mix and size;
j. Whether there is appropriate consideration of pet-friendly amenities commensurate with a development with greater than 200 units; and
k. Whether the proposed amount and quality of indoor and outdoor amenities meet the intent of the appropriate policies and guidelines?
Does the proposed development provide a range of housing to accommodate a range of incomes and household sizes?
Has the applicant provided updated engineering studies to the satisfaction of the Manager, Development Engineering, Etobicoke York District?
Does the proposed development appropriately address the matters of concern by the City’s Transportation Services Division including but not limited to site access and traffic impact?
Does the functional servicing submission for the proposed development adequately address what municipal servicing infrastructure improvements are required in the area as a result of the proposed development, if any?
Has the applicant satisfied all Urban Forestry issues to the satisfaction of the Supervisor, Tree Protection & Plan Review, Etobicoke York District?
Is the proposed development appropriately designed and buffered to mitigate adverse effects including but not limited to noise and electromagnetic field?
Is the proposed development and Zoning By-law Amendments representative of good planning and in the public interest?
Is the form and content of the Zoning By-law Amendment appropriate?
Implementation
Holding Symbol
- If it is determined that upgrades are required to the infrastructure to support the development according to the Functional Servicing and Storm Water Management Report and the Traffic Impact Study, should a Holding (H) symbol pursuant to Section 36 of the Planning Act be included in the amending by-law until such time as the owner has made satisfactory arrangements, including entering into appropriate agreement(s) with the City for the design and construction of any improvements to the municipal infrastructure and the provision of financial securities to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and General Manager, Transportation Services?
Conditions
- In the event the Zoning By-law Amendment are approved in whole or in part, should any final Order be withheld until such time as the City Solicitor advises that:
a. the draft Zoning By-law Amendment are provided in a form and with content satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;
b. the owner has submitted a revised Functional Servicing and Stormwater Management Report to the satisfaction of the Chief Engineer and Executive Director of Engineering and Construction Services, and such report shall determine the stormwater run-off, sanitary flow and water supply demand resulting from the development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development and/or any upgrades that may be required;
c. the owner has entered into financially secured agreement(s) for the construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support this development, according to the Functional Servicing Report accepted by the Chief Engineer and Executive Director of Engineering and Construction Services;
d. the owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review, as they relate to the Zoning By-law Amendment application, to the satisfaction of the Supervisor, Tree Protection and Plan Review and the General Manager, Parks, Forestry and Recreation;
e. the owner has provided a revised Transportation Impact Study to the satisfaction of the General Manager, Transportation Services; and
f. the owner has provided a revised Pedestrian Wind Study to the satisfaction of the Chief Planner and Executive Director, City Planning, with recommendations implemented as part of the amending Zoning By-laws to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor.
ATTACHMENT 4
ORDER OF EVIDENCE
- Amdev (Beamish) LP
- City of Toronto
- Amdev (Beamish) LP (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.