Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 31, 2023

CASE NO(S).:

OLT-22-004197

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

Applicant and Appellant:

7818 Dufferin Inc.

Subject:

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

Purpose:

To permit a 27-storey mixed-use building, a 22-storey mixed-use building and two blocks of 3-storey street townhomes

Property Address:

7818 Dufferin Street

Municipality:

City of Vaughan

Municipal File No.:

OP.21.004

OLT Case No.:

OLT-22-004197

OLT Lead Case No.:

OLT-22-004197

OLT Case Name:

7818 Dufferin Inc. v. Vaughan (City)

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

Applicant and Appellant:

7818 Dufferin Inc.

Subject:

Application to amend Zoning By-law - Refusal or neglect to make a decision

Purpose:

To permit a 27-storey mixed-use building, a 22-storey mixed-use building and two blocks of 3-storey street townhomes

Property Address:

7818 Dufferin Inc.

Municipality:

City of Vaughan

Municipal File No.:

Z.21.006

OLT Case No.:

OLT-22-004198

OLT Lead Case No.:

OLT-22-004197

Heard:

March 13, 2023, by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

7818 Dufferin Inc.

Patrick Harrington John Pappas

City of Vaughan

Zaynab Al-waadh

Regional Municipality of York

Bola Ogunmefun

Brownridge Ratepayers Association

Ms. Sandra Yeung-Racco*

MEMORANDUM OF ORAL DECISION DELIVERED BY KurTis Smith and David Brown ON March 13, 2023, AND ORDER OF THE TRIBUNAL

1This is the second Case Management Conference (“CMC”) with respect to an appeal filed by 7818 Dufferin Inc. (the “Appellant”) regarding the failure of the City of Vaughan (the “City”) to make a decision within the timeframe prescribed in the Planning Act, R.S.O. 1990, c. P. 13, as amended, on an application for an Official Plan Amendment (“OPA”) and an application to Amend the Zoning By-law (“ZBA”) relating to the property municipally known as 7818 Dufferin Street (“Subject Lands”).

2The Appellant is proposing to redevelop the Subject Lands with a mixed-use development comprised of a 27-storey tower on a 7/10 storey podium base, a 22-storey tower on a 7/8 storey podium base and two blocks of townhouse dwellings. The proposal will provide 863 residential units, 311.19 square metres of grade related retail, and a total of 731 parking spaces.

3The purpose of this CMC is to finalize the draft Procedural Order (“PO”), the Issues List (“IL”), and to schedule the matter for the hearing of the merits of the appeals.

4Prior to the commencement of the CMC, the Tribunal received a request for Party Status from the Regional Municipality of York (the “Region”). The Party Status Request Form was marked as Exhibit 1. Counsel for the Region submitted that the Region is an approval authority and a commenting agency for certain planning matters in the City. The Region is requesting Party Status in this appeal to ensure that their comments are addressed.

5The Parties did not object to the Region being granted Party Status. The Tribunal granted Party Status to the Region.

6Counsel for the Appellant, Mr. Harrington, updated the Tribunal on the status of the appeals and advised that discussions are ongoing with the City in respect to the appeals. Mr. Harrington advised that City staff have completed their review of the proposal and have prepared a staff report for City Council supporting the OPA and ZBA. City Council considered the staff report and indicated support for the proposal with amendments and subject to conditions.

7Mr. Harrington advised that the Parties anticipate a 10-day hearing is required to fully address the issues proposed on the IL. After the Tribunal reviewed the issues identified on the IL, Mr. Harrington explained that the Parties will work collaboratively to revise and refine the issues and submit a final PO to the Tribunal.

8The Tribunal encouraged the Parties to continue their discussions with a goal of narrowing the scope of the issues identified, resolving issues and ultimately achieving a settlement of this matter. The Parties were advised that Tribunal-assisted mediation is available to the Parties, should that be of assistance.

9Subsequent to the conclusion of the CMC, the Tribunal received and reviewed a finalized PO and IL from the Parties on consent. The Tribunal finds the PO and IL are acceptable and attaches the PO, including the IL, to this Order. The PO shall govern the proceedings leading up to and including the hearing of the merits.

10The Tribunal advised that 9 days are available for the hearing of the merits in respect of this matter. The hearing is scheduled to proceed by video commencing on Monday, January 22, 2024, at 10:00 am by video. The Tribunal will not sit on Monday, January 29, 2024.

11Parties 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:

GoTo Meeting: https://meet.goto.com/558205565

Access code: 558-205-565

12Parties 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

13Persons 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 558-205-565.

14Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

15THE TRIBUNAL ORDERS that the Regional Municipality of York is conferred Party Status in these proceedings.

16THE TRIBUNAL ORDERS that a hearing of the merits be scheduled for 9 days commencing on January 22, 2024, at 10:00 am by video hearing as set out above.

17THE TRIBUNAL ORDERS that the Procedural Order included as Schedule 1 of this Order shall govern the proceedings leading up to and including the hearing of the merits for this matter.

18No further notice will be given.

19The Panel is not seized of this matter.

20The Panel may be spoken to, subject to the Tribunal’s calendar, should any issues arise in respect to the implementation of the Procedural Order.

“Kurtis Smith”

Kurtis Smith

Member

“David Brown”

DAVID bROWN

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

Ontario Land Tribunal

ISSUE DATE: CASE NO(S). OLT-22-004179

ONTARIO LAND TRIBUNAL

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

Appellant:

7818 Dufferin Inc.

Subject:

Request to amend the Official Plan – Failure of the City of Vaughan to adopt the requested amendment

Purpose:

To permit a 27-storey mixed use building, a 22-story mixed use building and two blocks of 3-storey street townhomes

Property Address:

7818 Dufferin Street

Municipality:

City of Vaughan

Municipality File No.:

OP.21.004

OLT Case No.:

OLT-22-004197

OLT File No.:

OLT-22-004197

OLT Case Name:

7818 Dufferin Inc. v. Vaughan (City)

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

Appellant:

7818 Dufferin Inc.

Subject:

Application to amend Zoning By-law – Refusal or neglect of the City of Vaughan to make a decision

Purpose:

To permit a 27-storey mixed use building, a 22-story mixed use building and two blocks of 3-storey street townhomes

Property Address:

7818 Dufferin Inc.

Municipality:

City of Vaughan

Municipality File No.:

Z.21.006

OLT Case No.:

OLT-22-004197

OLT File No.:

OLT-22-004197

OLT Case Name:

7818 Dufferin Inc. v. Vaughan (City)

PROCEDURAL ORDER

The Tribunal Orders that:

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, January 22, 2024 at 10:00 A.M.

3. The parties’ initial estimation for the length of the hearing is 9 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.

6. The issues are set out in the Issues List attached as Attachment 3. Other than the deletion/resolution of issues, 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. 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. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of their intended witnesses. This list must be delivered on or before Tuesday, August 2, 2023 and in accordance with paragraph 23 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.

11. Expert witnesses in the same field shall have a meeting on or before Tuesday, September 13, 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 Tribunal Case Co-ordinator on or before Friday, September 23, 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 Tuesday, October 11, 2023 the parties shall provide copies of their expert witness statements to the other parties and to the Tribunal Case Co-ordinator and in accordance with paragraph 23 below.

15. On or before Tuesday, October 11, 2023 a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 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 Tuesday, November 8, 2023, the Parties may provide to all other parties and the Tribunal Case Co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with section 23 below.

17. On or before Tuesday, November 22, 2023 the parties shall provide copies of their visual evidence to all of the other parties in accordance with section 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. The parties shall cooperate to prepare a joint document book which shall be provided to the Tribunal Case Co-ordinator on or before Tuesday, December 13, 2023.

19. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the Tribunal Case Co-ordinator, on or before before 9:00 am on the day the material will used.

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 hearing plan with the Tribunal on or before Tuesday, January 10, 2024 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. All filing of documents and materials shall be electronic and, where feasible, 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 email shall be governed by the Rule 7.

24. 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.

OLT-22-004197

Attachment 1

Summary of Key Events

DATE

EVENT

August 2, 2023

Exchange of witness lists (names, disciplines and CVs included)

September 13, 2023

Experts meeting prior to this date

September 23, 2023

Agreed Statement of Facts

October 11, 2023

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

November 8, 2023

Exchange of Responding Witness Statements (if any)

November 22, 2023

Exchange of visual evidence (if any)

December 13, 2023

Joint Document Book filed with the Tribunal

January 10, 2024

Hearing Plan filed with the Tribunal

January 22 – Feb 2, 2024 (excl. January 29, 2024)

Hearing (9 days)

Attachment 2

Parties:

7818 Dufferin Inc.

Aird & Berlis LLP

Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9

Patrick Harrington / John George Pappas Tel: (416) 865-3424 / (416) 865-7719 Email: pharrington@airdberlis.com / jpappas@airdberlis.com

City of Vaughan

City of Vaughan – Legal Services

2141 Major Mackenzie Drive Vaughan, ON L6A 1T1

Zaynab Al-waadh Tel: (905) 832-8585 ext. 8063 Email: zaynab.al-waadh@vaughan.ca

Brownridge Ratepayers Association

Sandra Yeung-Racco Email: SandraYeungRacco@outlook.com

Regional Municipality of York

Legal & Court Services Department

17250 Yonge Street Newmarket, ON L6A 1T1

Bola Ogunmefun Tel: 1-877-464-9675 ext. 71459 Email: bola.ogunmefun@york.ca

OLT-22-004197

Attachment 3

Issues List

NOTE: the identification of an issue on the Issues List is intended to provide notice to all Parties that a Party will lead evidence and/or argument on the matter. The identification of an issue on the Issues List does not constitute an acknowledgment by the Tribunal or any Party that such issue, or the manner in which the issue has been expressed, is either appropriate or relevant to the determination at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

Legend:

City – City of Vaughan

Region – Region of York

BRA – Brownridge Ratepayers Association

OPA – Official Plan Amendment

ZBA – Zoning By-law Amendment

A - Policy Context

Do the proposed OPA and ZBA have appropriate regard to the following matters of provincial interest set out in section 2 of the Planning Act:

• (f) - the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;

City

• (h) - the orderly development of safe and healthy communities;

City

• (n) - the resolution of planning conflicts involving public and private interests;

City

• (o) - the protection of public health and safety;

City

Are the proposed OPA and ZBA consistent with the Provincial Policy Statement 2020, including but not limited to the following policies:

• 1.1.1(g)

City

• 1.1.3.2(b)

City

• 1.1.3.3

City

• 1.1.3.6

City

• 1.1.3.7(b),

City

• 1.2.1(a), (d)

City

• 1.4.3(c), (d)

City

• 1.6.6.1

City

• 1.6.6.7

City

• 2.2.1(i)

City

• 4.2

City

• 4.6.

City

Are the proposed OPA and ZBA in conformity with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2020 including but not limited to the following policies:

• 1.2.1

City

• 2.1

City

• 3.1

City

• 3.2.6.2(a) – (c)

City

• 3.2.7.1

City

• 3.2.7.2

City

Do the proposed OPA and ZBA conform with the York Region Official Plan 2010, including but not limited to the following policies:

• 2.3.41

City

• 7.3.1 – 7.3.4

City

Do the proposed OPA and ZBA conform with the City of Vaughan Official Plan 2010, including but not limited to the following policies/schedules: (including but not limited to,

• Schedule 1

City

• 2.2.1.2

City

• 2.2.5

City

• 2.2.5.11

City

• 8.2.1.2

City

• 8.3.1.3

City

• 9.2.3.6

City

• 10.1.2.5

City

• 10.1.2.6

City

• 10.1.2.8

City

• 10.1.2.20

City

• Schedule 13

City

B - Transportation

Has the parking study provided appropriate justification on the proposed parking rates for residential, visitor, and non-residential uses?

City; BRA

Does the proposed parking study justify the reduced parking space dimensions from the City’s Zoning By-law and is the proposed parking space dimensions appropriate for developments within the City of Vaughan?

City; BRA

C – Servicing

Will the site servicing (water, wastewater, stormwater) conform to the conclusions and recommendations of the Integrated Urban Water Master Plan Environmental Assessment (“IUW MP EA”)?

City

Does the proposed development have sufficient downstream capacity?

City

Will the Owner contribute its cost of the infrastructure works and/or undertake the necessary improvement works to the downstream sanitary infrastructure associated with implementing the municipal servicing improvements for the build out of the Dufferin Major Transit Area, identified in the IUW MP EA?

City

D – Environment

Has a Phase Two Environmental Site Assessment report and any subsequent remedial action plan been provided to the satisfaction of the City?

City

E - Land Use Compatibility

Are the proposed heights and densities for this project appropriate for its context?

BRA

Is the project proposed to be sited too close to the adjacent hydro corridor?

BRA

Does the project offer sufficient green space and/or amenity space given the context and size of the proposal?

BRA

F – Development Planning

Does the proposed development represent good planning? Would approval of the proposed development be in the public interest?

City; BRA

G - Implementation

In the event that the Tribunal allows the appeals in whole or in part, what is the appropriate form and content of the proposed Official Plan Amendment to VOP 2010 and Zoning By-law Amendment to By-law 1-88?

City

In the event the Tribunal allows the appeals in whole or in part, should the proposed development be subject to a Holding Provision (“H”) to require the completion and provision of, to the satisfaction of the City and the Region, the requirements, including but not limited to the following:

(i) Approvals for any pedestrian and vehicular access easements to Dufferin Street and Beverley Glen Boulevard;

City; Region

(ii) Contributing towards the cost of infrastructure works and/or undertaken the necessary improvement works and enter into a Development Agreement with the City, if required for these works associated with implementing the municipal servicing improvements for the ultimate buildout of the Dufferin Major Transit Station Area based on the conclusions and recommendations of the ongoing Integrated Urban Water Master Plan EA, to the satisfaction of the City;

City

(iii) Submitting an updated Transportation Study to the satisfaction of Vaughan Development Engineering and the Region. Any mitigation measures identified through the updated Transportation Study will be the responsibility of the Owner. The Owner shall agree in an agreement with the City and the Region to implement the recommendations of the transportation report, to the satisfaction of the City and the Region;

City; Region

(iv) Obtaining the necessary approvals, and provided proof of same to the City and the Region, from Infrastructure Ontario (“IO”) for the proposed access to Centre Street in the southwest corner of the subject lands over the Ministry of Government and Consumer Services (‘MGCS’) owned lands (PIN 03274-0256);

City; Region

(v) Vaughan Council has identified and allocated water supply and sewage capacity to the subject lands;

City

(vi) Obtaining approval of a Site Development Application, to the satisfaction of the City and Hydro One Networks Inc.;

City

(vii) Dedicating a 0.14 ha public park, meeting all standards and requirements of the City free of all charges and encumbrances and having pubic road frontage. In addition to the parkland conveyance, the Owner shall provide cash-in-lieu of parkland dedication to meet the requirement of the Planning Act, the Vaughan Official Plan (VOP) 2010 (Section 7.3.3 Parkland Dedication) and the Parkland Dedication By-law;

City

(viii) Submitting a Phase Two Environmental Site Assessment for the subject lands, delineating the petroleum hydrocarbon impacted soil, and including an assessment of groundwater quality in a potable groundwater condition, unless formal approval of the use of non-potable groundwater conditions to address the groundwater exceedance has been obtained. If remediation is necessary, then the submission of a Remedial Action Plan, followed by the completion of all remedial works is required;

City

(ix) Submitting a Letter of Reliance issued for the Environmental Site Assessment reports and a Ministry of the Environment, Conservation and Parks (‘MECP’) Record of Site Condition (‘RSC’). A copy of the RSC filed on the Environmental Site Registry will be required at the Site Plan stage.

City

OLT-22-004197

Attachment 4

Order of Evidence

1. 7818 Dufferin Inc. (Applicant/Appellant), in chief

2. City of Vaughan

3. Regional Municipality of York

4. Brownridge Ratepayers Association

5. 7818 Dufferin Inc., in reply

52490389.1