Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 16, 2023

CASE NO.: OLT-22-002352

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

Applicant and Appellant: 2040 Yonge St. Ltd., Yonge Glebe Investments Ltd. & Yonge Street Investments Ltd.

Subject: Application to amend Zoning By-law No. 438-86 & 569-2013 - Refusal or neglect of the City of Toronto to make a decision

Existing Zoning: Commercial residential (CR))

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit 14-storey mixed use building

Property Address/Description: 2010-2050 Yonge Street

Municipality: City of Toronto

Municipal File No.: 21 235352 STE 12 OZ

OLT Case No.: OLT-22-002352

OLT Lead Case No.: OLT-22-002352

OLT Case Name: 2040 Yonge St. Ltd. ET AL v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, as amended

Referred by: 2040 Yonge St. Ltd., Yonge Glebe Investments Ltd. & Yonge Street Investments Ltd.

Subject: Site Plan

Property Address/Description: 2010-2050 Yonge Street

Municipality: City of Toronto

OLT Case No.: OLT-22-002353

OLT Lead Case No.: OLT-22-002352

OLT Case Name: 2040 Yonge St. Ltd. ET AL v. Toronto (City)

BEFORE:

SHANNON BRAUN MEMBER

Tuesday, 16th day of May, 2023

THESE MATTERS having come before the Tribunal for a Case Management Conference on July 25, 2022;

AND THE TRIBUNAL having received the requested copy of the Procedural Order, on consent,

THE TRIBUNAL ORDERS that the Procedural Order attached hereto as Schedule 1 is in full force and effect.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

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.

PROCEDURAL ORDER

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

1The video hearing will begin on Monday, August 28, 2023 at 10:00 A.M. at the following link: https://global.gotomeeting.com/join/519389173. No further notice shall be required.

2The length of the hearing will be approximately nine (9) days, concluding on Friday, September 8, 2023. 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.

3The parties and participants (see Attachment “4” for the meaning of these terms) identified at the Case Management Conference are listed in Attachment “1” to this Order.

4The issues for the hearing are set out in the Issues List attached as Attachment “2” to this Order. 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, except if the Issues List is modified on consent of the parties, through mediation or pursuant to a settlement between any of the parties.

5The Order of Evidence for the hearing is listed 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.

6Any 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.

7Any 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

8A 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 are intended to be called. This list must be delivered on or before Friday, June 30, 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 proposed to be qualified.

9Expert witnesses in the same field shall have a meeting on or before Friday, July 7, 2023 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting, and if there is agreement, the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case coordinator on or before Wednesday, July 12, 2023.

10An 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.

11Expert 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 below.

12If 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 Thursday, April 20, 2023. The applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

13On or before Monday, July 17, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 23 below.

14On or before Monday, July 17, 2023, a participant shall provide copies of their written participant statement to the other parties and the OLT case coordinator 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.

15On or before Monday, July 24, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before Friday, August 4, 2023 and in accordance with paragraph 23 below.

17The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before Friday, August 18, 2023.

18On or before Friday, August 11, 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.

19Any 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 OLT case coordinator.

20A 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.

21A party who provides a witness’ written evidence or expert witness statement 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 prior to the hearing that same is not part of their record.

22The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, August 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.

23All filings shall be electronic and, if requested by the Tribunal, also 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 Rule 7.

24No 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.

SUMMARY OF DATES

DATE	EVENT
Thursday, April 20, 2023	Applicant shall provide copies of any revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports to the other Parties, if applicable
Friday, June 30, 2023	Parties to exchange lists of witnesses (names, disciplines, and intended order to be called)
Friday, July 7, 2023	Expert witnesses in the same field shall have a meeting
Wednesday, July 12, 2023	Parties must prepare and file a Statement of Agreed Facts and Issues, if there is agreement
Monday, July 17, 2023	Witness Statements, expert reports, Participant Statements, and the written evidence of witnesses to be exchanged
Monday, July 24, 2023	Parties to advise Tribunal if all Hearing dates required
Friday, August 4, 2023	Reply Witness Statements and the reply to written evidence of witnesses (if any) to be exchanged
Friday, August 18, 2023	Joint document book to be filed
Friday, August 11, 2023	Parties to exchange copies of visual evidence
Friday, August 11, 2023	Parties to file draft hearing plan with the OLT case coordinator
Monday, August 28, 2023	Hearing commences

Attachment 1

LIST OF PARTIES

Party

1. 2040 Yonge St. Limited, Yonge Glebe Investments Ltd. & Yonge Street Investments Inc. Mark Flowers and Hannah Ruby Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, ON M5V 3C1 Email: markf@davieshowe.com and hannahr@davieshowe.com Tel: 416-977-7088 Fax: 416-977-8931

2. City of Toronto Matthew Longo City of Toronto Legal Services Planning & Administrative Tribunal Law Section | 55 John Street, 26th Floor Toronto, ON M5V 3C6 Email: matthew.longo@toronto.ca Tel: 416-392-8109 Fax: 416-397-5624

LIST OF PARTICIPANTS

N/A

Attachment 2

ISSUES LIST

The identification of an issue on this list does not mean that all parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

City of Toronto

1. Do the proposed development, Zoning By-law Amendment and Site Plan Control applications represent good planning and is their approval in the public interest? Planning Act

2. Do the proposed development, Zoning By-law Amendment and Site Plan Control applications have appropriate regard for the matters of provincial interest as set out in Section 2 of the Planning Act, including paragraph (r)?

Provincial Policy Statement, 2020

3. Are the proposed development, Zoning By-law Amendment and Site Plan Control application consistent with the Provincial Policy Statement (2020) pursuant to Section 3 of the Planning Act, including policy 4.6?

Growth Plan, 2020

4. Do the proposed development, Zoning By-law Amendment and Site Plan Control application conform to and not conflict with the Growth Plan for the Greater Golden Horseshoe (2020) including policy 2.2.2.3?

Toronto Official Plan

5. Do the proposed development, Zoning By-law Amendment and Site Plan Control applications conform to the City of Toronto Official Plan, including the following policies: a) 2.2.3 Avenues: Reurbanizing Arterial Corridors b) 2.3.1 Healthy Neighbourhoods c) 3.1.1 The Public Realm d) 3.1.3 Built Form e) 3.1.4 Built Form – Building Types f) 4.5 Mixed Use Areas g) 5.1.3 Site Plan Control h) 5.2.1 Secondary Plans: Policies for Local Growth Opportunities

Official Plan Amendment 405 – Yonge-Eglinton Secondary Plan

6. Do the proposed development, Zoning By-law Amendment and Site Plan Control applications conform to the Yonge-Eglinton Secondary Plan (OPA 405), including the policies related to: a) 1.2.1 Goals b) 1.3.2 Character Areas: Midtown Villages c) 2.4.1 Midtown Transit Station Areas d) 2.5.9 Mixed Use Areas "C" e) 2.6.1 Development on Priority Retail Streets f) 3.1 Area-Wide Public Realm Policies g) 3.2.4 Yonge Street Square Extension h) 3.3 Parks and Open Spaces i) 4.0 Mobility j) 5.1 Built Form Principles k) 5.3 Permitted Building Types and Urban Design Standards – Midtown Midrise (5.3.18-5.3.27) l) 5.4.3 Building Heights m) 5.6.5 and 5.6.6 Sunlight and Comfort

Guidelines and Other Supporting Documents

7. Do the proposed development, Zoning By-law Amendment and Site Plan Control applications appropriately respond to and maintain the intent of Council-approved City of Toronto Guidelines, including the City-wide Mid-rise Design Guidelines; Growing Up Guidelines: Planning for Children in New Vertical Communities; Pet Friendly Design Guidelines; Best Practices for Bird-Friendly Glass; Best Practices for Effective Lighting?

8. Do the proposed development, Zoning By-law Amendment and Site Plan Control applications implement the direction of the Midtown Public Realm Implementation Strategy (2022) with respect to the Yonge Street Square Extension?

9. Do the proposed development, Zoning By-law Amendment and Site Plan Control applications provide adequate tree planting area and soil volume as per TGS?

Built Form and Massing

10. Do the built form characteristics of the proposed development represent good land use planning and urban design, conform to the Official Plan, and respect the direction of the applicable Urban Design Guidelines, including: a) Is the proposed height of the building, being 14 storeys and 59.8 metres including mechanical penthouse, appropriate? b) Is the proposed building setback along Glebe Road West appropriate in order to realize the Yonge Street Squares extension design including landscaped streets, plazas, parks and/or open spaces? c) Are the proposed building stepbacks appropriate: i. 1.5m stepback above Level 2 ii. 1.5m stepback above Level 6 iii. 1.5m stepback above Level 10 iv. 5.5m stepback above Level 6 for the southern portion of the rear (west) façade? d) Does the proposed development fit within the existing and planned built form context? e) Does the proposed development adequately minimize overlook and privacy impacts on the privacy of the neighbouring properties to the west, including residents of the existing building and potential future redevelopment at 20 Glebe Road West? f) Does the proposed development establish appropriate relationships at grade, including provision of an appropriate pedestrian realm, streetscaping and contributions to public space? g) Do the proposed setbacks on the Yonge Street, Glebe Road West and Lola Road provide sufficient space to facilitate soft landscaping and the planting of street trees? h) Does the proposed development comply with the Yonge Street Squares Extension Public Realm Design, including the provision of streetscape elements, street furniture, and landscape elements such as trees and planters?

11. Does the proposed development provide adequate wind conditions and limit wind impacts on the public realm, outdoor amenity areas, and adjacent properties? Has adequate testing been done to demonstrate this?

Infrastructure and Transportation

12. Does the proposed development allow for and accommodate necessary conveyances identified to increase pedestrian and vehicular safety, including: a) The provision of a 0.4-metre road widening along the Yonge Street frontage to satisfy the requirement for a 27.0-metre wide right-of-way? b) The provision of a 5.0-metre corner rounding at the northeast corner of the site, to be secured to a minimum height of 3.0 metres above grade via a Pedestrian Clearway Easement?

13. Is it appropriate for the development to have two accesses? Does this conform to the City's Official Plan policies and is it desirable from a pedestrian safety and public realm perspective?

Site Plan

14. Does the proposed site plan present an acceptable streetscape and pedestrian realm, adequate provision of new tree planting, and sufficient soil volume to accommodate new trees on the site?

15. Does the development adequately limit negative impacts on the public realm and nearby residences with respect to intrusive illumination, the location and visibility of access and service areas, and the screening and integration of utilities? Are the mitigation measures recommended in the reports provided by the applicant adequately implemented in the site plan and should they be secured as a condition of approval?

Implementation

16. In the event that the proposed development is approved in whole or in part, should the Tribunal Order with respect to the zoning by-law amendment be withheld until the City Solicitor has indicated the following conditions have been satisfied: a) The proposed Zoning By-law Amendment is in form and content satisfactory to the Chief Planner and Executive Director, City Planning and City Solicitor; b) the owner has addressed all outstanding issues raised by Engineering and Construction Services in their memo dated January 9, 2023 as they relate to the Zoning By-law Amendment, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; c) The owner has addressed outstanding issues in relation to site servicing and has submitted a revised Functional Servicing and Stormwater Management Report and a detailed Hydrogeological Report providing confirmation of water, sanitary and stormwater capacity to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and in the event these reports identify the need for upgrades to existing services and facilities or new services and facilities, the owner has entered into a financially secured agreement satisfactory to the Chief Engineer and Executive Director, Engineering and Construction Services to construct, provide, make operational, and warrant said improvements.

17. In the event the Site Plan application is approved in whole or in part, should the Tribunal Order be withheld until the applicant has completed all revisions to plans and studies to the satisfaction of the City Divisions, and satisfied all pre-approval conditions that may be imposed by the Tribunal?

2040 Yonge St. Limited, Yonge Glebe Investments Ltd. & Yonge Street Investments Inc.

18. If the site plan application is to be approved, what are the appropriate conditions of approval?

Attachment 3

Order of Evidence

1. 2040 Yonge St. Limited, Yonge Glebe Investments Ltd. & Yonge Street Investments Inc.
2. City of Toronto
3. Reply of 2040 Yonge St. Limited, Yonge Glebe Investments Ltd. & Yonge Street Investments Inc., if any

Attachment 4

PURPOSE OF PROCEDURAL ORDER

Case Management Conferences are scheduled by the Tribunal to organize the Hearing. This sample procedural order is provided to identify who may participate in the Hearing, the issues in dispute, and the matters that are required to be carried out before the Hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a Party or a Participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek Party status in this proceeding, meet to discuss this sample procedural order before the date of the Case Management Conference and try to identify the issues and process they want the Tribunal to Order following the conference. The Tribunal will hear submissions on the content of this procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Appeal Guide matching your appeal type and the Tribunal’s Rules from the Tribunal, which are available on the Tribunal’s website

meaning of terms used in the procedural order

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 Party, 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. Party 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, group, 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). Subsection 33.2 of the Local Planning Appeal 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 Party 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 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 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 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 wishes to address and the submission of the Participant on those issues; and a list of reports, if any, which the Participant wishes to refer to in their statement.

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 Party. (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 Party of opposite interest;
• re-examination by the Party presenting the witness; or
• another order of examination mutually agreed among the Party or directed by the Tribunal.