Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 24, 2023

CASE NO(S).: OLT-22-004049

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

Applicant/Appellant: NJS Developments Inc.

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

Description: To permit 348-unit residential apartment building

Reference Number: OP.21.023

Property Address: 3836-3850 Major Mackenzie Drive W.

Municipality/UT: Vaughan/York

OLT Case No.: OLT-22-004049

OLT Lead Case No.: OLT-22-004049

OLT Case Name: NJS Developments Inc. v. Vaughan (City)

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

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

Description: To permit a 348-unit residential apartment building

Reference Number: Z.21.047

Property Address: 3836-3850 Major Mackenzie Drive W.

Municipality/UT: Vaughan/York

OLT Case No.: OLT-22-004050

OLT Lead Case No.: OLT-22-004049

Heard: February 21, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
NJS Developments Inc.	Steven Ferri
City of Vaughan	Marc Kemerer Candace Tashos
Regional Municipality of York	Bola Ogunmefun
G Group Major Mackenzie Inc.	Matthew Helfand

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS AND KURTIS SMITH ON FEBRUARY 21, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) before the Ontario Land Tribunal (“Tribunal”), with respect to an appeal by NJS Developments Inc. (“Appellant / Applicant”). The appeal arises following a non-decision concerning an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) applications to permit the development of a tiered 2-storey to 12-storey residential apartment building with a total of 348 units on the subject lands municipally known as 3836 and 3850 Major Mackenzie Drive West, in the City of Vaughan (“City”).

2The purpose of this CMC is to finalize the draft Procedural Order and Issues List.

Requests for Status

3Michele Williamson attended the CMC seeking Participant status. Ms. Williamson is a neighbour in the area of the proposed development. On consent of the Parties, the Tribunal granted Participant status to Ms. Williamson and allows her one week to serve and file a revised Participant statement.

4No one else attended the CMC seeking either Party or Participant status.

PROCEDURAL ORDER AND ISSUES LIST

5The Tribunal received and reviewed a draft Procedural Order (“PO”) and Issues List (“IL”) from the Appellant on consent. The Tribunal finds it acceptable, and the proceedings shall be governed by it (see Schedule 1).

6The Tribunal notes that the Appellant confirmed that its development plans have changed since it initially submitted its application for appeal, as a result of ongoing discussions with the other Parties in an effort to resolve or at least scope issues between them, and their plans may continue to change as part of such ongoing efforts. It is further noted that the City confirmed that its issues, as reflected in the draft PO, are based on the current revised version of the Appellant’s plans.

7The Tribunal further notes that the Appellant confirmed that it would not object on procedural grounds if the added party, G Group Major Mackenzie Inc. (“G Group”), raises new issues in the future if the Appellant’s proposed development plans change significantly from the aforementioned revised plans. Counsel for G Group explained that they are satisfied with the currently stated issues of the Issues List, based on the current version of the Appellant’s plan, but may wish to raise additional issues if those plans substantially change, for example, as part of an effort to resolve issues between the Appellant and the municipalities.

ORDER

8The Tribunal Orders that:

a. The Procedural Order appended as Schedule 1 shall govern the proceedings; and,

b. Michele Williamson is granted Participant status;

9The Members are not seized but may be spoken to through the Case Coordinator if any issues arise.

“K.R. Andrews”

K.R. ANDREWS

MEMBER

“Kurtis Smith”

Kurtis Smith

Member

Ontario Land Tribunal

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

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

SCHEDULE 1

CASE NO(S).: OLT-22-004049

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

Applicant/Appellant: NJS Developments Inc.

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

Description: To permit 348-unit residential apartment building

Reference Number: OP.21.023

Property Address: 3836-3850 Major Mackenzie Drive W.

Municipality/UT: Vaughan/York

OLT Case No.: OLT-22-004049

OLT Lead Case No.: OLT-22-004049

OLT Case Name: NJS Developments Inc. v. Vaughan (City)

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

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

Description: To permit a 348-unit residential apartment building

Reference Number: Z.21.047

Property Address: 3836-3850 Major Mackenzie Drive W.

Municipality/UT: Vaughan/York

OLT Case No.: OLT-22-004050

OLT Lead Case No.: OLT-22-004049

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 video hearing will begin on June 5, 2023 at 10:00 a.m.. Unless otherwise subsequently ordered by the Tribunal, the Hearing shall proceed by videoconference. A second Case Management Conference by video hearing will be held on February 21, 2023.

3. The parties’ initial estimation for the length of the hearing is 15 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 parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The current issues are set out in the Issues List attached as Attachment 2. The City and Region shall each provide a final issues list to the parties and the Tribunal no later than February 14, 2023. There will be no changes to the final Issues List unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 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. The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.

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 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 the witnesses and the order in which they will be called. This list must be delivered on or before March 21, 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 April 14, 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 OLT case co-ordinator on or before April 21, 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 April 28, 2023, 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 23 below.

15. On or before April 14, 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 May 1, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before May 19, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before May 11, 2023, and in accordance with paragraph 23 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before May 26, 2023.

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 preliminary hearing plan with the Tribunal on or before May 29, 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.

23. 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.

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.

25. A summary of the various procedural dates is contained in Attachment 5.

These Members are not seized.

So orders the Tribunal.

ATTACHMENT 1

LIST OF PARTIES / PARTICIPANTS

Parties

1. NJS Developments Loopstra Nixon LLP 135 Queens Plate Drive, Suite 600 Toronto, ON M9V 6V7 Steven Ferri / Alex Whyte Email: sferri@loonix.com / awhyte@loonix.com Tel: 416-748-4752 / 416-748-4136

2. City of Vaughan City of Vaughan Vaughan City Hall 2141 Major Mackenzie Drive Vaughan, ON L6A 1T1 Candace Tashos Email: Candace.Tashos@vaughan.ca Tel: 905-832-8585 ext. 3618

Devry Smith Frank LLP 95 Barber Greene Road, Suite 100 Toronto, ON M3C 3E9 Marc Kemerer Email: marc.kemerer@devrylaw.ca Tel: 416-446-3329

3. Region of York The Regional Municipality of York 17250 Yonge Street Newmarket, ON L3Y 6Z1 Bola Ogunmefun Email: Bola.Ogunmefun@york.ca Tel: 1-800-464-9675 ext. 71459

4. G Group Major Mackenzie Inc. Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Andrea Skinner / Andrew Helfand Email: askinner@airdberlis.com / mhelfand@airdberlis.com Tel: 416-865-3423

Participants

Michele Williamson Email: michywill.mw@rogers.com Tel: 289-553-4808

ATTACHMENT 2

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 relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a Party indicates that Party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other Parties the case they need to meet. No Party shall make submissions or tender evidence on an issue not identified on the Issues List without leave of the Tribunal.

CITY OF VAUGHAN

Policy

1. Does the proposed development have regard to relevant matters of provincial interest under Section 2 of the Planning Act, specifically section 2 (h), (o) and (r)?

2. Is the proposed development consistent with the Provincial Policy Statement, 2020, specifically sections 1.1.1(c), 1.1.3.2 (a), 1.1.3.4, 1.4.3 (f), 1.5.1 (a) and 4.6?

3. Does the proposed development conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (Office Consolidation August 2020) sections 2.2.1.3 (c) and 2.2.1.4 (e)?

4. Does the proposed development conform to York Region Official Plan 2010 policies 5.2.8 (b), (d), (e) and (f), 5.3.6, 5.5.1, 5.5.3 (c) and (g), 5.5.4 (e) and 5.5.5?

5. Does the proposed development conform to City of Vaughan Official Plan 2010 (“VOP 2010”) policies 2.2.3.2 to 2.2.3.4, 4.3.2, 9.1.1.2, 9.1.1.3 (e), 9.1.2.1 (a) and (b), 9.1.2.7 (d) and (e), 9.1.2.9 (a) and (b), 9.2.1.1, 9.2.1.2, 9.2.1.4, 9.2.1.5, 9.2.1.6, 9.2.2.1, 9.2.2.2, 9.2.2.3, 9.2.3.4, 9.2.3.5, 10.1.2.1 to 10.1.2.3, 10.1.2.5, 10.1.2.6 10.1.2.8, Schedule 1 (Urban Structure) and Schedule 13 (Land Use)?

6. Are the proposed Official Plan and Zoning By-law amendments appropriate within the context of the Vaughan Official Plan 2010, Zoning By-law 1-88 and Zoning By-law 001-2021?

7. Would the proposed development establish a consistent level of design excellence as required by the City-Wide Urban Design Guidelines (2018)?

Land Use Compatibility/Height and Density

8. Is the proposed built form appropriate, specifically the proposed heights, densities, form, massing, streetwall heights, bulk, scale, site design/layout, building stepbacks, transition and spacing considering the wind conditions, site, location, the policy context, and the existing character of the surrounding lands?

9. Does the proposed development seek an appropriate height and density, massing and overall built form for the subject lands considering compatibility with and transition to the existing and planned low-rise residential and low-rise mixed-use developments within the surrounding community?

10. Would the proposed development establish an appropriate relationship to the public realm and to abutting properties?

11. Would the proposed development result in adverse impacts on abutting lands including privacy and overlook?

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

13. Does the proposed development satisfy comments raised by Vaughan’s Design Review Panel?

Transportation

14. Is the proposed one-way loading access from Sandwell Street appropriate given the existing conditions including adjacent streets and neighbouring properties?

15. Is the proposed visitor parking rate adequate to accommodate the proposed development?

16. What type of applications, reports and studies will be required, to the satisfaction of the City and York Region, to ensure that the proposed accesses from Sandwell Street and Sunset Terrace are supported?

Implementation

17. If the Tribunal allows the appeals in whole or in part, should the proposed Zoning By-law Amendment be subject to a Holding provision “(H)” to secure, to the satisfaction of the City and, where applicable, York Region , the matters set out in Recommendation 3 of the 17 January 2023 City Planning Recommendation Report?

18. 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 Amendments to By-laws 1-88 and 001-2021?

REGION OF YORK

19. Has the applicant provided an appropriate Traffic Impact Study (the “TIS”) consistent with the recommendations of the York Region’s Transportation Mobility Plan Guidelines for Development Applications (November 2016), and does it identify the traffic impacts of existing and proposed development(s) in the surrounding area?

20. Does the TIS appropriately address the transportation infrastructure needs of the proposed development, such as a fine grid road network and connection of Street A to Major Mackenzie Drive, consistent with the approved York Region Official Plan?

21. Has the applicant identified and provided an appropriate Transportation Demand Management (TDM) Plan to address the impacts of the proposed development on the existing transportation network?

22. Has the proposed development provided sufficient land dedication on Major Mackenzie Drive as per Map 11 of the Regional Official Plan (2022)?

23. Has the proposed development provided sufficient pedestrian and cycling connections to and from the development?

ATTACHMENT 3

ORDER OF EVIDENCE

1. NJS Developments Inc.
2. City of Vaughan
3. Region of York
4. G Group Major Mackenzie Inc.
5. NJS Developments Inc. (Reply)

ATTACHMENT 4

SAMPLE PROCEDURAL ORDER

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.

ATTACHMENT 5

SUMMARY OF DATES

DATE	EVENT
February 14, 2023	City to file its final issues list
March 21, 2023	Exchange of witness lists
April 14, 2023	Experts meeting prior to this date
April 21, 2023	Exchange of agreed statement of facts
April 14, 2023	Exchange of participant statements
April 28, 2023	Exchange of witness statements and expert witness statements
May 1, 2023	Confirmation that all hearing dates are required
May 11, 2023	Exchange of written response to evidence
May 19, 2023	Exchange of visual evidence
May 26, 2023	Finalize and file joint document book
May 29, 2023	File hearing plan with the Tribunal
June 5, 2023	Hearing commences