Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 07, 2023

CASE NO(S).: OLT-22-002710

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

Appellant: Markee Developments Inc.

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

Description: To permit the development of 15 residential and mixed-use buildings

Reference Number: 21 169802 NNY 17 OZ

Property Address: 3377 Bayview Avenue

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-002710

OLT Lead Case No: OLT-22-002710

OLT Case Name: Markee Developments v. Toronto (City)

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

Appellant: Markee Developments Inc.

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

Description: To permit the development of 15 residential and mixed-use buildings

Reference Number: 21 169802 NNY 17 OZ

Property Address: 3377 Bayview Avenue

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-002713

OLT Lead Case No: OLT-22-002710

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, and the Tribunal’s Rules of Practice and Procedure

Request by: Bayview Woods Neighbourhood Association

Request for: Adjournment of a hearing event

Heard: June 1, 2023 by video conference

APPEARANCES:

Parties	Counsel/Representative*
The Bayview Woods Neighbourhood Association	Alan Milliken Heisey
Markee Developments Inc.	David Bronskill
City of Toronto	Jessica Braun
Toronto Region Conservation Authority	Steven Heuchert* Barbara Montgomery, in absentia

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON JUNE 1, 2023 AND ORDER OF THE TRIBUNAL

BACKGROUND

1Markee Developments Inc. (“Appellant”) submitted applications for an official plan amendment and a zoning by-law amendment (together “Applications”) to the City of Toronto (“City”) on June 11, 2021. On March 3, 2022, the Appellant appealed the Applications to the Tribunal pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13., as amended (“Act”) for the failure of the City to make a decision on the Applications within the statutory timelines set out in the Act. The Applications relate to the property municipally known as 3377 Bayview Avenue, Toronto (“Subject Property”).

2The Subject Property is approximately 22.8 hectares with frontage on Bayview Avenue and Garnier Court. It is located within the Toronto Region Conservation Authority (“TRCA”) regulated area with the eastern portion of the Subject Property being below the top-of-bank associated with the German Mills Creek. The Subject Property is currently occupied by Tyndale University with associated buildings and landscaped open space.

3The Applications have undergone revisions since originally submitted to the City and propose to redevelop the Subject Property with multiple buildings containing residential housing units comprised of a mix of affordable rental and market rental units, non-residential uses, public parks, and a new public roadway.

4On July 20, 2022 the Tribunal held a Case Management Conference (“CMC”) with respect to the proceedings where TRCA and The Bayview Woods Neighbourhood Association (“BWNA”) were granted Party status and Michael Lancefield and Bayview Cummer Neighbourhood Association were granted Participant status. At the CMC, the Tribunal set a 15-day video hearing to commence on July 10, 2023 at 10 a.m. On September 23, 2022, the Tribunal issued a Procedural Order governing the proceedings. As described below, further to the settlement reached between the Appellant, City and TRCA, one week of the scheduled hearing has been released and the hearing is now set to commence on July 17, 2023 at 10 a.m.

5Over the course of several months in 2022, the Appellant was engaged in without prejudice settlement discussions with the City. The settlement offer dated March 14, 2023, which includes a revised set of plans and updated phasing plan, was accepted by City Council on March 29, 2023.

MOTION TO ADJOURN

6On April 24, 2023 BWNA requested an adjournment of the hearing, which was opposed by the Appellant. The Tribunal notified the Parties that it had fixed June 1, 2023 to hear the Motion to Adjourn by video hearing. The City and TRCA took no position on the Motion to Adjourn and were in attendance at the Motion event as observers and as a friend to the Tribunal.

7The materials before the Tribunal on the Motion to Adjourn were the following:

i. Bayview Woods Neighbourhood Association Revised Motion Record dated May 15, 2023 including the affidavit of Christian Chan sworn May 3, 2023;

ii. Markee Developments Inc. Notice of Response to Motion dated May 25, 2023

8The Tribunal reviewed the written materials of the Parties in detail and heard oral argument on the Motion to Adjourn. The Tribunal granted the request to abridge the notice required for service of the Motion to Adjourn.

BWNA Position on the Motion to Adjourn

9BWNA brings a Motion to Adjourn for an order of the Tribunal:

i. Directing the Appellant and the City of Toronto to provide the BWNA and the Participants with the complete revised submission made to the City of Toronto by the Appellant in or about January 2023 that forms the basis/foundation for the settlement arrived at between the City and the Appellant on March 29, 2023, including all revised plans, drawings, proposed instruments, updated supporting documents and reports on or before June 15, 2023;

ii. Adjourning the hearing of the within appeals to dates on or after October, 2023;

iii. Revising the timelines in the Procedural Order of September 23, 2023 as follows:

a) The BWNA is to provide a revised issues list, if any, on or before June 30, 2023.

b) 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 on or before July 15, 2023.

c) On or before August 15, 2023, the Parties shall provide copies of their witness statements and expert witness statements.

d) On or before August 30, 2023, the Parties may provide to all other Parties a written response to any written evidence.

e) On or before September 15, 2023, the Parties shall provide copies of their visual evidence to all of her other Parties.

f) On or before September 22, 2023, the Parties shall prepare and file a preliminary hearing plan.

g) Materials filed in support of the revised proposal including disclosure of reports the BWNA was unaware of that were provided as recently as April 26, 2023.

h) The Parties shall prepare a Joint Document Book on or before October 1, 2023.

iv. Abridging the time for service for the within Notice of Motion;

v. Awarding the BWNA its costs of this motion.

10Alan Milliken Heisey, Counsel for BWNA, submitted that Procedural Orders ensure procedural fairness and noted that while expediency is a consideration for the Tribunal, a fair and just process are also important considerations. In particular, he took the Tribunal to paragraph 9 of the Procedural Order which states:

If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other Parties on or before January 13, 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.

11Mr. Heisey argued that this paragraph was inserted at the request of the City, not BWNA. When the Appellant made a decision to exclude BWNA in settlement discussions, they risked failing to comply with paragraph 9, providing BWNA with grounds to request an adjourned hearing in order to ensure a coherent process.

12A key revision, according to BWNA, is the proposed change to the Official Plan designation and the change to the proposed zoning category. Mr. Heisey submitted that the result of these revisions will likely lead to changes to and potential scoping of the Issues List of BWNA. Mr. Heisey did acknowledge that there were certain aspects of the revised proposal which BWNA considered improvements to the original Applications and will likely remove some of BWNA’s issues from the Issues List.

13Mr. Heisey explained to the Tribunal that when it became apparent to BWNA that there was a potential settlement, he decided to “wait” and avoid duplication of expert meetings and witness statements in an effort to save BWNA from incurring additional time and costs.

14BWNA remains unclear whether they have received all of the revised submissions and materials which were circulated among the Appellant, City and TRCA and led to the settlement of their respective issues. Mr. Heisey advised that since February 2023 multiple requests have been made to the Appellant and the City for full submissions to which no clear answer has been provided. He argued that the piecemeal disclosure provided by the Appellant resulted in BWNA witnesses lacking the time required to review and respond to the revised documents within the timelines set out in the Procedural Order. In essence, Mr. Heisey submitted that the intent was for Parties to have complete disclosure approximately four months prior to the exchange of witness statements. In reality, the late disclosure resulted in BWNA having preparation time of two months for some witnesses and one month for others which they argue is unreasonable and unfair.

Appellant Position on the Motion to Adjourn

15The Appellant seeks an order of the Tribunal:

i. Dismissing the Motion;

ii. Directing that the BWNA file any witness statements on or before June 16, 2023;

iii. Directing that the Participants may file participant statements on or before June 16, 2023;

iv. Directing that the Respondent may file reply witness statements on or before June 30, 2023.

16The Appellant suggested that the above revised timelines extending the deadlines for BWNA to submit witness statements would cure any potential prejudice to BWNA. The revision to the timelines would allow BWNA experts additional time to review and respond to the revised proposal.

17David Bronskill, Counsel for the Appellant, submitted that there is no requirement to include all Parties to a proceeding in settlement discussions. The Appellant chose to engage in discussions with the City and TRCA which resulted in a settlement offer dated March 14, 2023, which was considered and accepted by City Council on March 29, 2023. This further resulted in the Parties being in a position to release one week of hearing dates. Mr. Bronskill argued that it is in the public interest to encourage settlements between Parties in an effort to narrow some or all of the issues in an appeal.

18Mr. Bronskill argued that BWNA has been in possession of the revised plans and supporting settlement letter since March 30, 2023. Further, BWNA has had the Appellant’s witness statements since they were circulated on May 5, 2023 in accordance with the Procedural Order. The Appellant argued that despite having the revised plan since March 30, 2023 and the Appellant’s witness statements since May 5, 2023, BWNA has failed to provide a response to the revised plans, has failed to provide any witness statements and has failed to provide an updated issues list. BWNA has had two months to review the settlement materials and four weeks to review the witness statements and have not provided a meaningful response.

19The Appellant argued that any adjournment of the hearing would only prejudice the Appellant. Mr. Bronskill argued that the settlement has the effect of directly responding to some of the issues raised by BWNA in their Issues List. Any alleged prejudice to BWNA would be cured by the Appellant’s consent to the late filing of witness statements by BWNA and the late filing of Participant statements.

20The Appellant submitted that it is common practice for proposals to be revised, even during the course of a hearing, in response to evidence tendered, issues raised and questions posed by the Tribunal. It was further argued that the Tribunal has inherent jurisdiction to approve a modified proposal based on evidence, and there is nothing different in this case. In response to BWNA’s arguments regarding paragraph 9 of the Procedural Order, Mr. Bronskill submitted that the Appellant’s failure to meet the timing requirement in this paragraph does not lead to an automatic right to an adjournment. The language is discretionary.

21Mr. Bronskill argued that the question before this Tribunal is a balance of prejudice and in this case, BWNA will not suffer any prejudice if the hearing on the merits proceeds as scheduled. Mr. Heisey acknowledged that once BWNA became aware of the potential settlement, they decided to “wait”. As such, neither time nor expense has been expended by BWNA on preparation of witness statements. Further, BWNA will have had sufficient time to prepare its witness statements given that they received the revised proposal on March 30, 2023 and have had the Appellant’s witness statements since May 5, 2023.

22Upon questioning by the Tribunal with respect to Mr. Heisey’s concern in relation to the extent/completeness of disclosure of materials received to date, Mr. Bronskill and Jessica Braun, Counsel for the City, confirmed that complete revised materials had been provided to BWNA.

Findings on the Motion to Adjourn

23Given the quickly approaching hearing date, after hearing the submissions and arguments of the Appellant and BWNA, the Tribunal took a short recess to consider the arguments and orally dismissed the Motion to Adjourn.

24The starting point for a request for an adjournment is set out in Rule 17.1 of the Tribunal’s Rules of Practice and Procedure (“Rules”) which clearly emphasizes that hearing dates are fixed. The Rules provide that even if all Parties consent, an adjournment may not be granted by the Tribunal. The Tribunal has the authority and discretion to control the adjudicative process, including the fixing of hearing dates, which will remain in place unless the Tribunal finds compelling reasons to grant an adjournment.

25In this Motion before the Tribunal, the decision turns on prejudice and the Tribunal finds that BWNA has had reasonable time to conduct further review and similarly continues to have sufficient time to compile all of its evidence in time to proceed to the hearing as scheduled. BWNA did not proffer any evidence that would satisfy the Tribunal that prejudice would be suffered by BWNA if the hearing proceeded as scheduled.

26BWNA’s request of the Tribunal, if granted, would effectively be frustrating a settlement reached between the statutory Parties. The Tribunal has always encouraged Parties to engage in productive discussions leading up to a hearing event in an effort to facilitate Parties reaching agreement on some or all of the outstanding issues. Providing there is no demonstrable prejudice to any Parties, the Tribunal will not stand in the way of such discussions. The Tribunal does not have any evidence before it demonstrating that BWNA or any other Party or Participant will suffer prejudice if the hearing takes place as scheduled.

27The Tribunal agrees with BWNA that Procedural Orders are not requests, rather, they are orders which are required to be complied with by the Parties. However, the Tribunal does have discretion in this regard and notes that one valid reason for non-compliance would be an impending settlement. One of the purposes of a Procedural Order is to promote timely interactions between opposing Parties in advance of a hearing event. The intent of these interactions is to have the Parties reach common ground on some of the issues in order to scope, or alternatively fully resolve, the matters to be adjudicated. Revisions to plans are often part of this process and may have the effect of settling all or part of an appeal. This is an extremely important step in the adjudicative process before the Tribunal.

28Based on the above, the Tribunal finds that the reasons advanced by BWNA in support of the Motion to Adjourn do not rise to the standard required to alter hearing dates that have been fixed. The Tribunal finds that granting the Motion to Adjourn in the absence of substantive reasons represents an unreasonable delay and does not represent a judicious use of the Tribunal’s calendar, which is a public resource.

29In making this decision on the Motion to Adjourn, the Tribunal is making no finding on the merits of the appeal.

30Given the Tribunal’s dismissal of the Motion to Adjourn, the Parties were provided with case management directives amending certain timelines set out in the Procedural Order issued on September 23, 2022, as follows:

DATE	EVENT
June 9, 2023	BWNA to provide revised Issues List
June 15, 2023	Participant Statements due
June 15, 2023	BWNA to provide witness statements for all witnesses with the exception of Planning witnesses
June 22, 2023	BWNA to provide witness statements for Planning witnesses
July 5, 2023	Reply witness statements due
July 10, 2023	Exchange of visual evidence (if any)
July 10, 2023	Joint Document Book due
July 10, 2023	Final Work Plan filed with the Tribunal
July 17, 2023	Contested Settlement commences

ORDER

31THE TRIBUNAL ORDERS that the Motion to Adjourn brought by Bayview Woods Neighbourhood Association is denied and the hearing event will proceed as scheduled commencing on July 17, 2023, in accordance with the amended deliverable deadlines, as set out in paragraph 30 of this decision.

“C. Hardy”

c. hardy

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.