Double Diamond Capital Inc. v. Toronto (City), 2023 CanLII 26318

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 27, 2023

CASE NO(S).: OLT-22-002705

PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: 333 Sheppard Avenue East Ltd. Appellant: Double Diamond Capital Inc. Appellant: LBS Group Ltd. Appellant: SheppBonn Ltd. Subject: Proposed Official Plan Amendment Description: To replace the eastern segment of the existing Sheppard Avenue Commercial Area Secondary Plan Reference Number: OPA 560 Property Address: All lands within the Sheppard Willowdale Secondary Plan Municipality/UT: Toronto/Toronto OLT Case No: OLT-22-002705 OLT Lead Case No: OLT-22-002705 OLT Case Name: Double Diamond Capital Inc. v. Toronto (City)

Heard: February 28, 2023 by video hearing

APPEARANCES:

Parties	Counsel
333 Sheppard Avenue East Limited	Sarah Kagan, Ira T. Kagan (in absentia)
Double Diamond Capital Inc.	Samantha Lampert
LBS Group Ltd.	Sarah Turney
SheppBonn Ltd.	Lee English, Isaac Tang (in absentia)
City of Toronto	Daniel Elmadany, Yasmeen Peer

MEMORANDUM OF ORAL DECISION DELIVERED BY G.C.P. BISHOP AND GREGORY J. INGRAM ON FEBRUARY 28, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) respecting an appeal by 333 Sheppard Avenue East Ltd., Double Diamond Capital Inc., LBS Group Ltd., and SheppBonn Ltd. (the “Applicants/Appellants”) regarding the City of Toronto (“City”) decision to adopt Official Plan Amendment No. 560 (“OPA 560”) amending the eastern segment of the existing Sheppard Willowdale Commercial Area Secondary Plan (“Secondary Plan”).

BACKGROUND

2On January 16, 2022, the City approved the scope of the study of western and eastern segments of Sheppard Avenue commercial areas with the direction to review residential and retail uses and appropriate measures for adjoining properties. The first phase of this study is already completed, regarding the western portion of the Secondary Plan area. Phase 2 of the Secondary Plan is the subject of the appeals.

PROCEDURAL ORDER AND ISSUES LIST UPDATE

3The OLT was informed by Counsel for the City, Daniel Elmadany, of the following with respect to the Procedural Order (“PO”) and Issues List (“IL”):

• The PO and IL have been updated from 3 of the 4 Appellants. The City indicated that it is in discussions with the remaining Appellant, SheppBonn Ltd., and are discussing how its issues are to be properly framed in the context of the appeal of OPA 560 as it relates to SheppBonn’s appeal package.
• The Draft PO discussed at the first CMC has also been updated with dates corresponding to the upcoming hearing scheduled for this matter. The content remains the same and only the dates were added and is appended to this Decision as Attachment 1.
• A written update would be provided by the end of the day on March 3, 2023.

4Counsel for SheppBonn Ltd., Lee English, indicated that his client’s IL has been provided to the City and discussions are ongoing. He requested an additional few days in order to come to agreement on the list. Mr. English indicated that the issues were not insurmountable and if they were not progressing then they would contact the OLT Case Coordinator.

5The three other Appellants indicated that they had no other issues or business to bring forward at this time.

6The Tribunal agreed to the additional time and also indicated that it would be possible to coordinate a Telephone Conference Call (“TCC”) if needed in order to support finalizing the IL.

SUBSEQUENT TO THE CMC

7On Friday, March 3, 2023, the final PO with IL was received by the Tribunal and as noted, is appended to this Decision. The Tribunal acknowledges that the City and SheppBonn Ltd. have not come to an agreement on their IL.

8The Tribunal concurs with the City and SheppBonn Ltd. and has issued the attached PO, which includes a revised draft IL of SheppBonn Ltd. The IL includes the following caveat:

Note 1: The City disagrees with the Issues List submitted by SheppBonn Ltd. The City and SheppBonn Ltd. will work together to resolve any outstanding matters related to the SheppBonn Ltd. Issues List and will provide an update to the Tribunal on or before March 31, 2023. The inclusion of the SheppBonn Ltd. Issues List is without prejudice to the City’s ability to object to, or move to strike, any of SheppBonn Ltd.’s issues in accordance with the Ontario Land Tribunal Rules of Practice and Procedure, including Rule 10.

9To resolve the outstanding matters between the City and SheppBonn Ltd. regarding the IL, the Tribunal also accepts the proposal between the Parties as follows:

• SheppBonn Ltd. will provide a substantive response to the City’s proposed revisions to the SheppBonn Ltd. IL by March 22, 2023;
• The City and SheppBonn Ltd. will provide an update to the Tribunal by March 31, 2023, regarding the status of the SheppBonn Ltd. IL; and,
• If the parties do not come to agreement on the IL, the City may bring a motion in accordance with the OLT Rules to address outstanding concerns with the IL and the appeal.

10SheppBonn Ltd. confirms that the scope of its appeal of OPA 560 is limited to the properties municipally known as:

• 81, 87, 91, 93 and 95 Sheppard Avenue East;
• 17, 19, 21, 23 and 25 Bonnington Place; and,
• 8, 10, 12, 14 and 16 Lyndale Drive

ORDER

11The Tribunal Orders the directives, as listed, in paragraph 9 above and in the attached Procedural Order, appended as Attachment 1.

12The panel is not seized.

13No further notice is required

14The panel may be available if required and the Parties may contact the Case Coordinator if issues arise.

“G.C.P. Bishop”

G.C.P. BISHOP

ALTERNATE CHAIR

“Gregory J. Ingram”

GREGORY J. INGRAM

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Attachment 1

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunaux de l’aménagement du territoire Ontario 655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca

CASE NO.: OLT-22-002705

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 333 Sheppard Avenue East Ltd. Appellant: Double Diamond Capital Inc., Appellant: LBS Group Ltd Appellant: SheppBonn Ltd Subject: Proposed Official Plan Amendment Description: To replace the eastern segment of the existing Sheppard Avenue Commercial Area Secondary Plan Reference: OPA 560 Property Address/Description: All lands within the Sheppard Willowdale Secondary Plan Municipality: City of Toronto OLT Case No.: OLT-22-002705 OLT Lead Case No.: OLT-22-002705 OLT Case Name: Double Diamond Capital Inc., v. Toronto (City)

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 July 24, 2023 at 10:00 a.m.

3. The length of the hearing will be about ten (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 procedural order deadlines are generally found in Attachment 1.

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

5. The Issues are set out in the Issues List attached as Attachment 3 to this Order. There will be no changes to this list unless the Tribunal permits, and an Appellant 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 the Parties' 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. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing to try to resolve or reduce the issues for the hearing. 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 all of the Parties and the Tribunal at least thirty-one days (31) days prior to date for Expert Witness Statements as stated in Section 14 (on or before April 21, 2023), if this meeting takes place and if agreement is reached.

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 the witnesses and the order in which they will be called. This list must be delivered at least one hundred and nineteen (119) calendar days before the hearing (on or before March 27, 2023). For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified. 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 April 14, 2023 (101 days before the hearing is scheduled to commence).

11. 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 Section 14. 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 Section 14.

12. A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, at least sixty-three (63) calendar days prior to the scheduled commencement of the hearing (on or before May 22, 2023), or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.

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 Section 14.

14. At least sixty-three (63) calendar days prior to the scheduled commencement of the hearing (on or before May 22, 2023), the Parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other Parties.

15. At least forty-five (45) calendar days prior to the scheduled commencement of the hearing (on or before June 9, 2023), the Parties may provide to all other Parties a written response to any written evidence.

16. At least forty (40) calendar days prior to the scheduled commencement of the hearing (on or before June 14, 2023), the Parties shall advise the Tribunal of whether any hearings dates scheduled for this matter may be released from the Tribunal's calendar. This request may only be made on consent of all of the Parties. If no hearing dates are intended to be released from the Tribunal's calendar, no Party is required to advise the Tribunal anything further in that regard.

17. At least thirty-one (31) calendar days prior to the scheduled commencement of the hearing (on or before June 23, 2023), the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving Party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion.

19. 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 days before the hearing that the written evidence is not part of their record.

20. On or before June 23, 2023, (thirty-one (31) days before the commencement of the hearing), the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), 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.

21. The Parties shall prepare a Joint Document Book on or before July 4, 2023, (20 days before the hearing is scheduled to commence), 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 Section 23.

22. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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, dated July 2, 2020, or as may be amended. Section 22 applies regardless if the hearing event is in-person or electronic.

23. 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.

24. 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.

25. 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
March 27, 2023 (119 days prior to hearing)	Exchange of witness lists (names, disciplines and order to be called)
April 14, 2023 (101 days prior to hearing)	Last date to challenge identification of expert witness
April 21, 2023 (96 days prior to hearing)	Experts meeting prior to this date
April 21, 2023 (96 days prior to hearing)	Agreed Statement of Facts
May 22, 2023 (63 days prior to hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
June 9, 2023 (45 days prior to hearing)	Exchange of Reply Witness Statements (if any)
June 14, 2023 (40 days prior to hearing)	Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
June 23, 2023 (31 days prior to hearing)	Exchange of visual evidence (if any)
June 23, 2023 (31 days prior to hearing)	Final Work Plan filed with the Tribunal
July 4, 2023 (20 days prior to hearing)	Finalize Joint Document Book
July 24, 2023	Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. APPELLANT/CITY REPRESENTATIVES

*Counsel/Agent

1. City of Toronto Daniel Elmadany/Yasmeen Peer City of Toronto, Legal Services Metro Hall, 26th Floor 55 John Street Toronto, Ontario M5V 3C6 E-mail: daniel.elmadany@toronto.ca; Yasmeen.Peer@toronto.ca Tel: 416.397.5709; 416.392.4264

2. Appeal #1, Double Diamond Capital Inc., Samantha Lampert/John Alati Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, ON M5V 3C1 E-mail: samanthal@davieshowe.com; johna@davieshowe.com Tel: 416.263.4521; 416.263.4509

3. Appeal #2, 333 Sheppard Avenue East Limited Ira Kagan Kagan Shastri LLP 188 Avenue Road Toronto, ON M5R 2J1 E-mail: Ikagan@ksllp.ca Tel.: 416.368.2100, ext. 226

4. Appeal #3, LBS Group Ltd Sarah J. Turney Fasken Martineau DuMoulin LLP 333 Bay Street Suite 2400 Toronto, ON M5H 2T6 E-mail: sturney@fasken.com Tel.: 416.865.4542

5. Appeal #4, SheppBonn Ltd. Isaac Tang and Lee English Borden Ladner Gervais LLP Bay Adelaide Centre - East Tower 22 Adelaide Street West Toronto, ON M5H 4E3 E-mail: itang@blg.com; lenglish@blg.com Tel.: 416.367.6143; 416.367.6169

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 have 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.

A. Appeal #1, Double Diamond Capital Inc.,

1. Are the policies of the Sheppard Willowdale Secondary Plan (the "SWSP") under appeal by Double Diamond Capital Inc., consistent with the Provincial Policy Statement (PPS) 2020 Policies 1.1.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.2.1, 1.4.3, 1.6.3, 1.6.7.2, 1.6.7.4, 1.7.1, and 1.8.1?

2. Do the policies of the SWSP under appeal by Double Diamond Capital Inc., conform with the Growth Plan policies 2.2.1.2, 2.2.1.3, 2.2.1.4, 2.2.2.3, 2.2.4.9, 2.2.4.10, 2.2.6.1, 3.2.1.1, 3.2.1.2, 3.2.1.3, 3.2.2.1, 3.2.2.4 and 3.2.3.2?

3. Is the proposed height and density for Mixed Use Area “A” appropriate given the immediate planned context and the proximity to transit?

4. Do the requirements for setback, massing, screening, angular planes, and unit type and size in Policies 3.2, 4.4, 4.5, 4.6, 4.7 ,4.8 and 4.9 of the SWSP provide sufficient flexibility to permit a variety of low-rise and taller mid-rise built forms that are responsive to site-specific conditions and sensitive to their context?

5. Should Special Policy – Willowdale Area 1 be expanded to include all the properties on the block bounded by Sheppard Avenue East to the south, Willowdale Avenue to the west, Maplehurst Avenue to the north, and Longmore Street to the east considering the immediate planned context, proximity to transit and City building objectives, as well as the policies proposed on the properties to the west which are designated as mixed-use areas? If so, what modifications to Special Policy 1 – Willowdale Area (including Policy 12.5) and Map 29-1 of the SWSP would be appropriate?

6. Do the policies of the SWSP under appeal by Double Diamond Capital Inc., represent good planning and is it in the public interest?

B. Appeal #2, 333 Sheppard Avenue East Limited

1. Should the lands known municipally as 333 & 335 Sheppard Avenue East be removed from the Sheppard Willowdale Secondary Plan (OPA 560)?

2. If the answer is NO, then what modifications to the permitted density on Map 29-3 and the built form policies in Section 4 are warranted to OPA 560 as they apply to those properties?

C. Appeal #3, LBS Group Ltd

1. Do the parkland policies of OPA 560 conform to the City of Toronto’s Official Plan Policy 3.1.1 (Policy 18)?

2. Should OPA 560 be amended by removing the “Potential New Park Location” symbol from the LBS property (located at 258 Sheppard Ave East)?

3. Should section 12.5.b of OPA 560 be amended to: (i) expressly give the City flexibility to locate parkland in manner that accounts for the development of parkland that occurs in and around the secondary plan area; and (ii) prioritize the placement of new parks in locations that create parkland linkages?

D. Appeal #4, SheppBonn Ltd. (See Note 1 below)

1. Do the policies of the Sheppard Willowdale Secondary Plan (the "SWSP") under appeal by SheppBonn Ltd, have regard to the matters of provincial interest set out in s. 2 of the Planning Act, including subsections 2(e), (f), (h), (j), (m), (n), (p), (q) and (r)?

2. Are the policies of the SWSP under appeal by SheppBonn Ltd, consistent with the Provincial Policy Statement, including policies 1.1.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.2.1, 1.4.3, 1.6.3, 1.6.6.1, 1.6.7.1, 1.6.7.2, 1.6.7.4, 1.7.1 and 1.8.1?

3. Do the policies of the SWSP under appeal by SheppBonn Ltd, conform with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (as amended in August 2020), including policies 2.2.1.2(a), 2.2.1.3(c), 2.2.1.4, 2.2.2.3, 2.2.3.1, 2.2.3.2, 2.2.4.1, 2.2.4.2, 2.2.4.3, 2.2.4.6, 2.2.4.8, 2.2.4.9, 2.2.4.10, 2.2.4.11, 2.2.6.1(e), 2.2.6.2(c) and (d), 3.2.1.1, 3.2.1.2, 3.2.2.1, 3.2.2.2, 4.2.10.1(a) and (b), 5.2.3.1.

4. Do the policies of the SWSP under appeal by SheppBonn Ltd, maintain the general intent and purpose the City of Toronto Official Plan, including policies 2.1.1, 2.2.1, 2.2.2, 2.2.3, 2.2.5(h), 2.2.2.1, 2.2.2.2, 2.2.3, 2.3.1.3, 2.3.1.4, 2.4.4, 2.4.8. 3.1.3.1, 3.1.3.5, 3.1.3.6, 3.2.1.1, 3.2.1.2, 4.5, 5.2.1.3 and 5.2.1.4?

5. Should the Secondary Plan boundaries be expanded to include the properties on the east side of Bonnington Place from Sheppard Avenue East to Lyndale Drive and certain properties on the north side of Lyndale Drive, specifically 81 Sheppard Avenue East, 17, 19 and 21 Bonnington Place and 8, 10, 12, 14 and 16 Lyndale Drive (together with 25 Bonnington Place and 87, 91, 93 and 95 Sheppard Avenue East, the “Properties of Interest")? If so, should those properties be designated as Mixed Use Areas or should it remain “Neighbourhoods”?

6. Should the Secondary Plan be revised for the Properties of Interest, to increase permitted heights and densities , in recognition of:

a. their proximity to the North York Centre Secondary Plan; b. their inclusion in SASP 725 (OPA 570), being the protected major transit station area for the Sheppard-Yonge Station; c. their proximity to existing and planned developments; and. d. their frontage on a Major Street and adjacent to the North York Centre service road?

7. Is it appropriate to apply a 45 degree angular plane from lands designated as “Neighbourhoods” in accordance with proposed Policies 4.8.1 and 4.8.2 for the Properties of Interest?

8. Is it appropriate to require a 7.5 metre minimum rear yard setback from lands designated as “Neighbourhoods” in accordance with proposed Policy 4.5 for the Properties of Interest?

9. Is it appropriate to require a soft landscaped area that is a minimum of 1.5 metres wide along a property line abutting lands designated as “Neighbourhoods” in accordance with proposed Policy 4.9.1 for the Properties of Interest?

10. Should the Secondary Plan be revised to permit remnant parcels of lands that remain after the North York Centre South Service Road has been identified to be included within the Secondary Plan area, without the need for an official plan amendment?

Note 1: The City disagrees with the Issues List submitted by SheppBonn Ltd. The City and SheppBonn Ltd. will work together to resolve any outstanding matters related to the SheppBonn Ltd. Issues List and will provide an update to the Tribunal on or before March 31, 2023. The inclusion of the SheppBonn Ltd. Issues List is without prejudice to the City’s ability to object to, or move to strike, any of SheppBonn Ltd.’s issues in accordance with the Ontario Land Tribunal’s Rules of Practice and Procedure, including Rule 10.

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.

A. Evidence-in-Chief

1. City of Toronto
2. Appeal #1, Double Diamond Capital Inc.,
3. Appeal #2, 333 Sheppard Avenue East Limited
4. Appeal #3, LBS Group Ltd
5. Appeal #4, SheppBonn Ltd.
6. City of Toronto (Reply, if any)

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.