Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 20, 2023

CASE NO(S).: OLT-22-004682

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: DIG Developments Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit the construction of a 53-unit, three-storey townhouse development

Reference Number: 11 120956 NNY 34 SB

Property Address: 78 Tisdale Avenue

Municipality: Toronto

OLT Case No.: OLT-22-004682

OLT Lead Case No.: OLT-22-004682

OLT Case Name: DIG Developments Inc. v. Toronto (City)

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

Applicant and Appellant: DIG Developments Inc.

Subject: Site Plan – Failure of Approval Authority to make a decision

Description: To permit the construction of a 53-unit, three-storey townhouse development

Reference Number: 10 320052 NNY 34 SA

Property Address: 78 Tisdale Avenue

Municipality: Toronto

OLT Case No.: OLT-22-004683

OLT Lead Case No.: OLT-22-004682

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: DIG Developments Inc.

Subject: Minor Variance – Approval Authority Refusal of Application

Description: To permit the construction of a 53-unit, Three-storey townhouse development

Reference Number: A0205/22NY

Property Address: 78 Tisdale Avenue

Municipality: Toronto

OLT Case No.: OLT-22-004684

OLT Lead Case No.: OLT-22-004682

Heard: June 6, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

DIG Developments Inc.

Raj Kehar

(“Applicant”)

City of Toronto

Cameron McKeich

(“City”)

Derin Abimbola

MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS ON JUNE 6, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant wishes to develop a site at 78 Tisdale Avenue, in the City (“Subject Property”). A former owner of the Subject Property had applied for rezoning to construct a development of townhouses comprised of 35 three-storey units, in six blocks, on a new public street. This rezoning application was filed on December 24, 2010, and ultimately, received the approval of the City on January 31, 2017. The former owner had also made related Applications for Site Plan approval and Draft Plan of Subdivision approval. The proposed development pursuant to the new By-law No. 261-2017 was never constructed.

2Following the receivership of the former owner, the Applicant, now the beneficial owner of the Subject Property, proposes a development of 53 back-to-back townhouses, as well as to increase the height of the townhouses and to make other configuration changes. To this end, the Applicant applied for a series of Minor Variances with the City. On June 9, 2022, the City’s Committee of Adjustment denied the application.

3The Applicant has appealed the Minor Variances decision, as well as the purported non-decision with respect to the Site Plan application and the Draft Plan of Subdivision application. The appeals are brought pursuant to sections 45(12) and 51(34) of the Planning Act and section 114(5) of the City of Toronto Act.

4On June 6, 2023, the Tribunal held its second Case Management Conference (“CMC”) to organize the appeals and establish next steps in this proceeding.

PARTICIPANTS

5Counsel for the Applicant agreed that the four participants who had been given provisional Participant status at the first CMC could be given Participant status.

OPPORTUNITIES FOR SETTLEMENT

6Counsel for the Parties indicated that they are in the process of entering Tribunal assisted mediation. Although the Parties will be engaging in mediation, they nevertheless requested that the Tribunal set a date for a hearing on the merits if mediation is unsuccessful in whole or in part.

NEXT STEPS

7A draft Procedural Order, including an Issues List, agreed upon by both Parties, was provided to the Tribunal prior to this second CMC. The Tribunal noted that the Issues List was fulsome but, based on the discussion at the CMC, it needed a minor refinement. The Tribunal directed that the issues relating to the Minor Variance application under s. 45(1) of the Act be melded together. The Tribunal directed the Parties to work cooperatively and to provide the Tribunal with a final Procedural Order, including the Issues List, on or before Wednesday, June 21, 2023. The draft Procedural Order was submitted and is attached to this Decision.

8Counsel for the Applicant indicated that a five-day hearing would be required to consider the matter in the absence of a settlement. Counsel for the City agreed that a five-day hearing would be adequate. Both Counsel also agreed that if required, and after the outcome of the mediation is known, they may request the Tribunal to set a third CMC hearing to further scope out the hearing on the merits and consider other procedural matters. They also submitted that such a further CMC could be converted into a settlement hearing if mediation is successful in whole or in part.

9Accordingly, the Tribunal finds that setting a five-day merit reasonable in the circumstances and directed that the hearing commence on Monday, June 10, 2024, to Friday, June 14, 2024.

10Parties 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/660145013

Access code: 660-145-013

11Parties 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.

12Persons 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.

13Individuals 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.

14Finally, the Parties also agreed to the adjournment, pending mediation, of the appeal with respect to the Proposed Plan of Subdivision pursuant to s. 51(34) of the Planning Act.

ORDER

15THE TRIBUNAL ORDERS that:

1. Ilir Kurizo, Grant Thornton Limited, Yasmin Shariff and Parviz Musa are granted Participant status in this proceeding;

2. The appeal with respect to the Proposed Plan of Subdivision is adjourned sine die;

3. The hearing on the merits of this matter will be held by video hearing commencing on Monday, June 10, 2024, at 10 a.m. Five days have been set aside for this matter.

4. The Procedural Order, including the Issues List, attached as Schedule A to this Decision, is approved.

16The Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.

“Jean-Pierre Blais”

Jean-Pierre blais

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 A

CASE NO(S).: OLT-22-004682

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: DIG Developments Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit the construction of a 53-unit, three-storey townhouse development

Reference Number: 11 120956 NNY 34 SB

Property Address: 78 Tisdale Avenue

Municipality: Toronto

OLT Case No.: OLT-22-004682

OLT Lead Case No.: OLT-22-004682

OLT Case Name: DIG Developments Inc. v. Toronto (City)

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

Applicant and Appellant: DIG Developments Inc.

Subject: Site Plan – Failure of Approval Authority to make a decision

Description: To permit the construction of a 53-unit, three-storey townhouse development

Reference Number: 10 320052 NNY 34 SA

Property Address: 78 Tisdale Avenue

Municipality: Toronto

OLT Case No.: OLT-22-004683

OLT Lead Case No.: OLT-22-004682

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: DIG Developments Inc.

Subject: Minor Variance – Approval Authority Refusal of Application

Description: To permit the construction of a 53-unit, Three-storey townhouse development

Reference Number: A0205/22NY

Property Address: 78 Tisdale Avenue

Municipality: Toronto

OLT Case No.: OLT-22-004684

OLT Lead Case No.: OLT-22-004682

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on June 10, 2024 at 10:00 a.m. at:

https://global.gotomeeting.com/join/660145013

Access code: 660-145-013.

3. The parties’ initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The 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.

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. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before March 1, 2024 and in accordance with paragraph 22 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 challenges to an expert witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed, shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or before March 15, 2024.

10. Expert witnesses in the same field shall have a meeting on or before April 5, 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 April 19, 2024.

11. 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 13 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.

12. 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 13 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 13 below.

13. On or before April 29, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before April 29, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before May 10, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before May 20, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within twenty (20) days after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before May 27, 2024.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before May 31, 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.

22. 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.

23. 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.

24. 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 February 16, 2024. 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.

ATTACHMENT 1

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. DIG Developments Inc.

Raj Kehar WeirFoulds LLP 4100-66 Wellington Street West Toronto, ON M5K 1B7 rkehar@weirfoulds.com 416-947-5051

2. City of Toronto

Derin Abimbola / Cameron McKeich City of Toronto Legal Services Metro Hall 26th floor, 55 John Street Toronto, ON M5V 2C6 derin.abimbola@toronto.ca cameron.mckeich@toronto.ca 416-392-8047

PARTICIPANTS

1. llir Kurizo
2. Grant Thornton Limited
3. Yasmin Shariff
4. Parviz Musa

ATTACHMENT 2

ISSUES LIST

The identification of an issue does not mean that all parties agree that such issues, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

CITY OF TORONTO

Planning Act

1. Does the proposed development have regard for the matters of provincial interest as set out in Section 2 of the Planning Act, in particular Section 2 (f), (h), (i), (j), (o), (p) and (r)?

Provincial Policy Statement (2020)

2. Is the proposed development consistent with the Provincial Policy Statement, 2020 including Sections 1.1.3.3 and 4.6?

Growth Plan for the Greater Golden Horseshoe (2020)

3. Does the proposed development conform with the Growth Plan for the Greater Golden Horseshoe, 2020 including Section 5.2.5.8?

City of Toronto Official Plan

4. Does the proposed development maintain the general intent and purpose of the City of Toronto Official Plan, including policies 2.2 (Structuring Growth in the City), 2.3.1 (Healthy Neighbourhoods), 3.1.1 (Public Realm), 3.1.3 (Built Form) 3.1.4 (Building Types – Townhouse and Low-Rise apartments), 4.1 (Neighbourhoods) and 5.5 (The Planning Process), 5.6 (Interpretation)?

5. Does the proposed development meet the general intent and purpose of the City of Toronto Townhouse and Low-rise Apartment Design Guidelines?

City of Toronto Zoning By-laws

6. Does the minor variance application maintain the general intent and purpose of the Zoning By-law No. 7625 and site-specific Zoning By-law Nos. 261-2017 and 762-2017 with respect to the variances sought for:

a) Building Height; b) Number of Storeys; c) Number of Dwelling Units; d) Lot coverage; and e) Outline of Proposed Blocks? f) Front yard setbacks

Are the proposed variances minor?

7. Are the proposed variances minor in nature, both individually and cumulatively, in particular with respect to:

a) Impact on adjacent land uses, including privacy and overlook; and b) Ability to store and remove solid waste?

Are the proposed variances desirable for the appropriate development of the land?

8. Are the proposed variances desirable for the appropriate development of the land, and in particular, is the site organization, proposed vehicular and pedestrian access, and the proposed location of buildings, utilities, landscaped open spaces and the public street appropriate?

Prematurity

9. Are the minor variance and site plan control applications premature in the absence of a draft plan of subdivision application?

10. Are the minor variance and site plan control applications premature in the absence of supporting information including:

a) Accessibility Design Standards Checklist; b) Project Data Sheet; c) Contaminated Site Assessment; d) Geotechnical Study/Hydrogeological Review; e) Stormwater Management Report; f) Environmental Impact Study; g) Servicing Report; h) Transportation Impact Study; i) Tree Preservation Plan; j) Energy Efficiency Report; k) Toronto Green Standard (Version 4) Checklist; l) Planning Rationale; m) Energy Strategy; n) Boundary Plan of Survey; o) Concept Site and Landscape Plan; p) Lighting Plan; q) Public Utilities Plan; r) Site Grading Plan; s) Site and Building Elevations; t) Roof Plan; and u) Topographical Survey.

Implementation

11. In the event the proposed development is approved in whole or in part, should the Tribunal withhold its Order(s) on the minor variances until the Tribunal receives confirmation from the City Solicitor that the following conditions have been satisfied:

a) The owner is to provide the following to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services:

i) Contaminated Site Assessment; ii) Geotechnical Study/Hydrogeological Review; iii) Stormwater Management Report; iv) Environmental Impact Study; v) Servicing Report; and vi) Transportation Impact Study.

b) The owner is to provide the following to the satisfaction of the Chief Planner and Executive Director, City Planning:

i) Tree Preservation Plan; ii) Energy Efficiency Report; iii) Toronto Green Standard (Version 4) Checklist; iv) Planning Rationale; v) Energy Strategy; vi) Boundary Plan of Survey; vii) Concept Site and Landscape Plan; viii) Lighting Plan; ix) Public Utilities Plan; x) Site Grading Plan; xi) Site and Building Elevations; xii) Roof Plan; and xiii) Topographical Survey.

12. In the event the proposed development is approved in whole or in part, should the Tribunal withhold its Order(s) on the Site Plan Control application until the Tribunal receives confirmation from the City Solicitor that the following conditions have been satisfied:

a) the owner has submitted a draft plan of subdivision application and received approval from the Chief Planner and Executive Director, City Planning; b) the City has issued Notice of Approval Conditions for the Site Plan Control application to the satisfaction of the Chief Planner and Executive Director, City Planning; and c) the owner has completed all required conveyances to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and the City Solicitor.

ATTACHMENT 3

ORDER OF EVIDENCE

1. DIG Developments Inc.
2. City of Toronto
3. DIG Developments Inc. (Reply)