2806275 Ontario Inc. et al. v. Toronto (City), 2023 CanLII 50964

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 6, 2023

CASE NO.: OLT-22-004574

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

Applicant / Appellant: 2806275 Ontario Inc., 2478443 Ontario Inc., and 2469882 Ontario Inc.

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

Description: To permit a 35-storey mixed-use building with 472 residential units, including 53 rental replacement units and at-grade commercial retail.

Reference Number: 21 235591 NNY 08 0Z

Property Address: 836 and 838 Roselawn Avenue and 131 Lyon Court

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-004574

OLT Case Name: 2806275 Ontario Inc. et al. v. Toronto (City)

BEFORE:

S. VINCENT

Monday, the 5th day of June, 2023

VICE-CHAIR

THIS MATTER having come before the Tribunal for a Case Management Conference, and the Tribunal in its Decision issued March 1, 2023;

AND THE TRIBUNAL having adjourned the second Case Management Conference scheduled to commence on June 2, 2023, having been advised that the parties have resolved the draft Procedural Order and Issues list on consent;

THE TRIBUNAL ORDERS that the Procedural Order attached to this Order as Schedule “A” shall be issued and the attached Procedural Order shall be in force and effect for the purposes of governing the procedures leading up to and including the hearing, which is scheduled to commence on Monday, March 11, 2024 at 10:00 AM for 10 days to proceed by video as follows:

Go To Meeting: https://global.gotomeeting.com/join/765631861

Access Code: 765-631-861

Audio-only telephone line: Toll Free 1-888-455-1389, or (647) 497-9391

Audio-only access code: 765-631-861

“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.

SCHEDULE “A”

Case No. OLT-22-004574

ONTARIO LAND TRIBUNAL PROCEDURAL ORDER

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

Applicant and Appellant: 2806275 Ontario Inc., 2478443 Ontario Inc., and 2469882 Ontario Inc.

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

Description: To permit a 35-storey mixed-use building with 472 residential units including 53 rental replacement units and at-grade commercial retail.

Reference Number: 21 235591 NNY 08 0Z

Property Address/Description: 836 and 838 Roselawn Avenue and 131 Lyon Court

Municipality: Toronto

OLT Case No.: OLT-22-004574

OLT Lead Case No.: OLT-22-004574

OLT Case Name: 2806275 Ontario Inc. et al. v. Toronto (City)

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 March 11, 2024 at 10:00 a.m.

3. The length of the hearing is 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.

4. The parties and participants identified at the case management conference are set out in Attachment 2.

5. The issues are set out in the Issues List attached as Attachment 4. 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.

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. 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 the phone number as soon as possible.

8. 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

9. 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 November 10, 2023 without the consent of the Parties may be grounds for a request to adjourn 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 witnesses on or before December 12, 2023, and in accordance with paragraph 24 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. Any party who intends to challenge the qualifications of an expert witness shall bring a written motion for the challenge within 5 days of receiving the confirmed witness list.

11. Expert witnesses in the same field shall have a meeting on or before January 16, 2024, 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 January 22, 2024.

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 January 29, 2024, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 24 below.

15. On or before January 29, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. The Parties may provide to all other Parties, the City Clerk, and the case co-ordinator a written response to any written evidence on or before February 9, 2024.

17. On or before February 20, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before March 1, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 1, 2024.

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 March 1, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. At the time of cross-examination, the Parties shall provide to all Parties and the Tribunal, in a password protected format, any documents that will be used by the Party in cross-examination of an opposing Party's witness, unless the presiding Member directs otherwise. The password protected documents shall only be accessible to the Tribunal and the other Parties if they are introduced as evidence at the hearing.

24. 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.

25. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

Euken Lui_

TRIBUNAL REGISTRAR

Attachment to 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 1

SUMMARY OF DATES

DATE

EVENT

November 10, 2023

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

December 12, 2023

Exchange of witness lists, including names, disciplines and order to be called

January 16, 2024

Last date of Expert Witness Meetings

January 22, 2024

Agreed Upon Statement of Facts

January 29, 2024

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

February 9, 2024

Exchange of Reply Witness Statements (if any)

February 20, 2024

Notification to Tribunal if all hearing dates required

March 1, 2024

Exchange of Visual Evidence (if any), Joint Document Book, and Hearing Plan

March 11, 2024

Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. 2806275 Ontario Inc., 2478443 Ontario Inc., and 2469882

2. City of Toronto

ATTACHMENT 3

ORDER OF EVIDENCE

1. 2806275 Ontario Inc., 2478443 Ontario Inc., and 2469882

2. City of Toronto

3. 2806275 Ontario Inc., 2478443 Ontario Inc., and 2469882 (reply, if any)

ATTACHMENT 4

ISSUES LIST OF THE CITY OF TORONTO

131 Lyon Court and 836 and 838 Roselawn Avenue

Provincial Policies

1. Would approval of the proposed development and Zoning By-law Amendment be consistent with the Provincial Policy Statement (2020) and, in particular, policies 1.1.3.3, 1.1.3.4, 1.1.3.5, 1.6.7.2, 1.7.1(e), and 4.6?

2. Would approval of the proposed development and Zoning By-law Amendment conform to, and not conflict with, A Place to Grow: Growth Plan for the Greater Golden Horseshoe and in particular, policies 2.2.1.4(c) and (e), 2.2.2.3(b), (d), and (f), 2.2.6.1(e), 2.2.6.3, 5.2.5.6?

Built Form and Site Organization

3. Does the proposal conform with the Toronto Official Plan built-form and site organization-related policies including: Healthy Neighbourhoods (2.3.1); Public Realm (3.1.1), Built Form (3.1.3), Built Form – Building Types (3.1.4), and Apartment Neighbourhoods (4.2), and have regard for the Tall Building Guidelines and in particular:

(a) Does the proposed development fit appropriately within the existing and planned context, with regard to its setbacks, stepbacks, separation distances, tower height, base building height, density, massing, angular plane, projections, and other aspects?

(b) Does the proposed development establish appropriate relationships at grade, including setbacks and streetwalls, which would appropriately frame and define the public realm and streetscape?

(c) Is the site appropriately organized to minimize impacts within the site, surrounding areas, and the public realm, and improve the safety and attractiveness including vehicular street access, driveways, ramps, drive aisles, bicycle and vehicle parking, loading, servicing, storage areas, utilities, and related structures?

(d) Does the proposed development ensure comfortable wind conditions in the public realm, adjacent open spaces, and the outdoor amenity spaces of the proposed development and adjacent developments?

(e) Is the proposed development designed to adequately limit shadow impacts on the public realm, surrounding properties particularly those designated Apartment Neighbourhoods and Neighbourhoods, and outdoor amenity spaces of the proposed development and surrounding properties?

Public Realm – Streetscape, Landscaping, and Open Space

4. Does the proposal conform with the Toronto Official Plan public realm-related policies including Bringing the City Together: A Progressive Agenda of Transportation Change (2.4), Healthy Neighbourhoods (2.3.1); Public Realm (3.1.1), Built Form (3.1.3), Built Form – Building Types (3.1.4), and The Natural Environment (3.4.1), Apartment Neighbourhoods (4.2); have regard for the Tall Building Guidelines; and meet the Toronto Green Standard - with respect to the matters below?

(a) Does the proposal provide for appropriate open space and walkways within the site and connect with the public realm of the block and surrounding area?

(b) Does the proposal contribute appropriately to the landscaped character of the Apartment Neighbourhoods lands in the block and surrounding area?

(c) Does the proposal provide adequate soil volume, in appropriate locations on the site and in the abutting street right-of-way?

Retail

5. Is the proposed retail space appropriately configured and designed, to ensure small-scale retail in accordance with Policy 4.2.1 and as informed by the Retail Design Manual?

Net New Residential

6. Are the proposed unit mix and unit sizes appropriate, and do they conform with City of Toronto Official Plan policy 3.2.1.1 (Housing)?

7. Does the proposal meet the intent and purpose of the Growing Up Urban Design Guidelines (2020), specifically guidelines 2.1?

Mobility

8. Does the proposed development provide the appropriate Travel Demand Management Measures in accordance with policies 2.4.2, 2.4.3, and 2.4.9 of the Official Plan, and the Toronto Green Standard?

Pet Friendly Design

9. Does the proposed development meet the intent and purpose of the Pet Friendly Design Guidelines for High Density Communities (2019), specifically guideline 4.1 and 4.2?

Public Interest and Good Planning

10. Are the proposed development and Zoning By-law Amendment, good planning and in the public interest?

Implementation & Outstanding Issues to be Addressed

11. In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied:

(a) the final form and content of the draft Zoning By-law amendment is to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor;

(b) the owner has submitted architectural plans reflecting the proposal as approved in whole or in part, to the satisfaction of the Chief Planner and Executive Director, City Planning;

(c) the owner has submitted a revised pedestrian level wind study, including the identification of any required mitigation measures to be secured in the zoning by-law amendment and through the site plan control process, to the satisfaction of the Chief Planner and Executive Director, City Planning;

(d) City Council has approved the Rental Housing Demolition Application (Application No. 21 235748 NNY 08 RH) under Chapter 667 of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006 and, should City Council authorize the demolition, that the Applicant has entered into, and registered on title to the lands, an agreement pursuant to Section 111 of the City of Toronto Act securing the replacement of the existing rental dwelling units, including unit mix, size and rents, tenant assistance to mitigate hardship, and other rental related matters, all to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;

(e) the owner has submitted an updated complete Toronto Green Standards (TGS) Checklist and Statistics Template, to the satisfaction of the Chief Planner and Executive Director, City Planning;

(f) the owner has submitted a revised Travel Demand Management Plan acceptable to, and to the satisfaction of, the Chief Planner and Executive Director, City Planning and the General Manager, Transportation Services;

(g) the owner has, at its sole cost and expense facilitated the City undertaking a peer review of the submitted Noise and Vibration Assessment, and secured any recommended mitigation measures in the amending by-law, all to the satisfaction of the Chief Planner and Executive Director, City Planning;

(h) the owner has satisfactorily addressed the matters in the Engineering and Construction Services Memorandum dated January 24, 2022, and any outstanding issues arising from the ongoing technical review (including provision of acceptable reports and studies), as they relate to the Zoning By-law Amendment application to the satisfaction of the General Manager, Transportation Services and Chief Engineer and Executive Director, Engineering and Construction Services; and;

(i) the owner has provided financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the acceptable Functional Servicing Report and Stormwater Management Report, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and General Manager, Toronto Water, where it has been determined that improvements or upgrades are required to support the development. In requiring any off-site municipal infrastructure upgrades, the owner is to make satisfactory arrangements with Engineering & Construction Services for Work on the City's Right-of-Way.

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