Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
June 13, 2023
CASE NO(S).:
OLT-22-004667
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Silver Hotel Management Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the redevelopment of the property as 20-storey mixed use building
Reference Number:
21 252235 NNY 08 OZ
Property Address:
2451 Dufferin Street
Municipality/UT:
Toronto
OLT Case No.:
OLT-22-004667
OLT Lead Case No.:
OLT-22-004667
OLT Case Name:
Silver Hotel Management Inc. v. Toronto (City)
Heard:
May 31, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
2432905 Ontario Inc.
D. Bronskill (in absentia)
R. Gill
City of Toronto
K. Czajkowski
U. Gautam
MEMORANDUM OF ORAL MEMORANDUM OF ORAL DECISION DELIVERED BY bryan w. tuckey ON MAY 31, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened the second Case Management Conference for the above noted matter. 2432905 Ontario Inc. (“Applicant”) has filed an appeal against the City of Toronto (“City”) for failing to make a decision for a Zoning By-law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act. The property is municipally known as 2451 Dufferin Street, in the City (“subject lands”).
2The effect of the ZBA is to permit the development of the subject lands with a 20-storey mixed-use development including base elements ranging from five to 10 storeys. The proposed development has a Floor Space Index of 5.74 and includes 462 residential units.
3All Parties and Participants are in attendance at this proceeding.
BACKGROUND AND TRIBUNAL DISPOSITION
4Rodney Gill, Counsel for the Applicant, provided background information with respect of the status of this matter for the benefit of the Tribunal, Parties and Participants. The Parties have had a number of discussions regarding the content of a draft Procedural Order (“PO”). He requested an eight-day Merits Hearing to adjudicate the issues found in the Issues List.
5The Tribunal is presented with a draft PO for its review and approval. All Parties committed to narrow, scope and, if possible, find resolution to issues prior to the commencement of the Hearing. He committed to inform the Tribunal if the Hearing time may be reduced as discussions continue.
6Kasia Czajkowski, Counsel for the City, is in agreement with the background and requests of the Applicant.
7The Tribunal is prepared to schedule an eight-day hearing for this matter commencing Monday, April 22, 2024 to Wednesday, May 1, 2024.
8The Tribunal finds the PO is sufficient to manage the conduct of a Hearing. It is attached as Schedule 1 to this Decision.
9The Parties are aware of the availability of Tribunal-led mediation. Parties are of the opinion this may be a possible path for this matter and understand they may request this mediation at their convenience.
MERITS HEARING TECHNICAL DETAILS
10An eight-day Merits Hearing will convene on Monday, April 22, 2024, by Video Hearing at 10 a.m.
11Parties and Participants are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections.
https://global.gotomeeting.com/join/914098901
Access Code: 914-098-901
12Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
13Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
14Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
15Accordingly, the Tribunal Orders:
16An eight-day Merits Hearing is to convene on Monday, April 22, 2024.
17The Procedural Order found at Schedule 1 is approved and comes into full force and effect.
18No further notice will be given.
19The Member is not seized.
“Bryan W. Tuckey”
BRYAN W. TUCKEY
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
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Silver Hotel Management Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the redevelopment of the property as 20-storey mixed use building
Reference Number:
21 252235 NNY 08 OZ
Property Address:
2451 Dufferin Street
Municipality/UT:
Toronto
OLT Case No.:
OLT-22-004667
OLT Lead Case No.:
OLT-22-004667
OLT Case Name:
Silver Hotel Management Inc. v. Toronto (City)
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
The video hearing will begin on April 22, 2024 at 10 a.m. by video-conference.
The parties’ initial estimation for the length of the hearing is 8 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1.
The issues are set out in the Issues List attached as Attachment 2. 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.
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.
The meaning of the terms used in this Order are set out in Attachment 4.
Any person intending to participate in the hearing shall 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.
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
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 December 20, 2023. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and shall provide a copy of the witness’ curriculum vitae.
Expert witnesses in the same discipline(s) shall have at least one meeting to be held no later than February 1, 2024, to try to resolve or reduce the issues for the hearing. Following the experts’ meeting, 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 February 9, 2024.
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 15 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.
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 15 below.
On or before February 16, 2024 the parties shall provide copies of their expert or non-expert witness statements (including all relied upon documents) to the other parties and to the OLT case co-ordinator and in accordance with paragraph 24 below.
On or before March 15, 2024, the parties shall provide copies of their responding witness statements to the other parties and to the OLT case co-ordinator.
On or before March 22, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required; provided that if the Parties agree that no hearing dates are intended to be released from the Tribunal's calendar, no Party is required to advise the Tribunal of anything further in this regard.
On or before April 12, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before April 12, 2024. All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with Section 25.
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.
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.
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of a revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other Parties on or before January 19, 2024. The applicant acknowledges that any substantial revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn to be decided on its merits by the Tribunal.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 15, 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.
All filings shall be submitted electronically. 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. Hard copy shall be provided to the Tribunal upon request.
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.
ATTACHMENT 1 LIST OF PARTIES AND PARTICIPANTS
PARTIES
2432905 ONTARIO INC.
Represented by:
GOODMANS LLP
333 Bay Street, Suite 3400
Toronto, ON
M5H 2S7
David Bronskill
Tel: (416) 597-4299
Lawyers for 2432905 Ontario Inc.
CITY OF TORONTO
City Clerk
c/o Toronto City Hall
100 Queen Street West,
Toronto, ON
M5H 2N2
Kasia Czajkowski
Tel: (416) 338-5725
Fax: (416) 397-5624
Uttra Gautam
Tel: (416) 392-8047
Fax: (416) 397-5624
Lawyers for the City of Toronto
PARTICIPANTS
DUFFERIN AND CASTLEFILED DEVELOPMENT CORP.
Represented by:
GOODMANS LLP
333 Bay Street, Suite 3400
Toronto, ON
M5H 2S7
Max Laskin
Tel: (416) 849-6938
Lawyers for Dufferin and Castlefield Development Corp.
ATTACHMENT 2 ISSUES LIST
Issues of the City of Toronto
- Do the proposed development and Zoning By-law Amendments have appropriate regard for the following matters of provincial interest set out in Section 2 of the Planning Act: Sections 2 (f), (h), (q), and (r)?
Provincial Policy Statement (2020)
- Are the proposed development and Zoning By-law Amendments consistent with the following policies of the Provincial Policy Statement (2020): policies 1.1.1, 1.1.3, 1.4.3, 1.5.1, 1.6, 1.6.7.2, 3.2.2, and 4.6?
A Place to Grow – Growth Plan for the Greater Golden Horseshoe (2020)
- Do the proposed development and Zoning By-law Amendments conform to, and not conflict with, the following policies of A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020): policies 2.2.1.4, 2.2.6.3, and 5.2.5.6?
City of Toronto Official Plan
- Do the proposed development and Zoning By-law Amendments conform with the following policies of the City of Toronto Official Plan:
a. Avenues (2.2.3)
b. Healthy Neighbourhoods (2.3.1)
c. The Public Realm (3.1.1)
d. Built Form (3.1.3)
e. Built Form – Building Types (3.1.4)
f. Parks and Open Spaces (3.2.3)
g. Mixed Use Areas (4.5.2)
City of Toronto Guidelines
Does the proposal adequately support the unit mix and size objectives of the Growing Up Guidelines?
Does the proposed development meet the intent and purpose of the City of Toronto Tall Building Guidelines, in particular guidelines 3.1.1, 3.1.2, 3.1.3, 3.1.5, 3.2.1, 3.2.2, 3.2.4, 3.2.5, and 4.1, 4.2, 4.3, 4.4?
Does the proposal meet the requirements of the Toronto Green Standard?
Site Specific Issues
Do the proposed development and zoning by-law amendments being approved prior to an Avenue Study implement Section 2.2.3 (2.2.3.3, 2.2.3.4, 2.2.3.5) of the Official Plan for the Mixed Use Area designation?
Is the site organization and built form of the proposed development appropriate, including height, transition, setbacks, stepbacks, articulation, and massing, and are the resulting impacts appropriate?
Is the wind impact of the proposed development on the public realm and outdoor amenity areas acceptable and does it provide comfortable wind conditions and limit wind impacts on proposed outdoor amenity spaces?
Parkland
- Has a parkland dedication of an appropriate size, location and configuration been proposed under Section 42 of the Planning Act?
General
- Are the proposed Zoning By-law Amendments good planning and in the public interest?
Implementation
- 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 and the Tribunal receives confirmation from the City Solicitor that:
a) the final form and content of the draft Zoning By-law are to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;
b) the owner has satisfactorily addressed the matters in the Engineering and Construction Services Memorandum dated February 23, 2022, and the Transportation Services Memorandum dated February 25, 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;
c) the owner has submitted a Functional Servicing Report to determine the storm water runoff, sanitary flow and water supply demand resulting from this development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
d) the owner has made satisfactory arrangements with Engineering and Construction Services and entered into the appropriate agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support this development, according to the Functional Servicing Report accepted by the Chief Engineer and Executive Director, Engineering and Construction Services;
e) the owner has provided space within the development for installation of maintenance access holes and sampling ports on the private side, as close to the property line as possible, for both the storm and sanitary service connections, in accordance with the Sewers By-law Chapter 681.10;
f) 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;
g) the owner has submitted architectural and landscape plans, revised sun/shadow and wind studies reflecting the proposal as approved in whole or in part, to the satisfaction of the Chief Planner and Executive Director, City Planning;
h) 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;
i) 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;
j) the owner has submitted a methane gas investigation report and associated certified letter regarding the investigation of subsurface methane gas acceptable to, and to the satisfaction of the General Manager, Solid Waste Management Services;
k) the owner has addressed all outstanding issues raised by Urban Forestry and Tree Protection and Plan Review as they relate to the Zoning By-law Amendment application, to the satisfaction of the General Manager, Parks, Forestry and Recreation;
l) 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;
ATTACHMENT 3 ORDER OF EVIDENCE
2432905 Ontario Inc.
City of Toronto
2432905 Ontario Inc. (Reply, if any)
ATTACHMENT 4 MEANING OF TERMS
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 PROCEDURAL DATES
DATE
EVENT
December 20, 2023
Exchange of list of witnesses and the order in which they will be called
January 19, 2024
Delivery of revised proposal (if any)
February 1, 2024
Meetings of expert witnesses to be completed
February 9, 2024
Filing of agreed statement of facts from meetings of expert witnesses
February 16, 2023
Exchange of expert reports/expert witness statements/witness statements, evidence outlines for witnesses under summons, participant statements
March 15, 2024
Exchange of responsive evidence
March 22, 2024
Confirm with the Tribunal if all the reserved hearing dates are still required
April 12, 2024
Exchange of visual evidence
April 12, 2024
Completion of joint document book
April 15, 2024
Parties to prepare and file hearing plan
April 22, 2024
Hearing commences
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