Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 28, 2023

CASE NO(S).: OLT-23-000059

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

Applicant and Appellant: FCTH Holdings (Ontario) Corporation

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

Description: To permit a 39-storey tower rising from a 5-storey pedestrian scaled podium with retail uses

Reference Number: 20 229112 NNY 18 OZ

Property Address: 5051-5061 Yonge Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-23-000059

OLT Lead Case No.: OLT-23-000059

OLT Case Name: FCTH Holdings (Ontario) Corporation v. Toronto (City)

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

Applicant and Appellant: FCTH Holdings (Ontario) Corporation

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

Description: To permit a 39-storey tower rising from a 5-storey pedestrian scaled podium with retail uses

Reference Number: 20 229112 NNY 18 OZ

Property Address: 5051-5061 Yonge Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-23-000060

OLT Lead Case No.: OLT-23-000059

Heard: July 4, 2023 by video hearing

APPEARANCES:

Parties	Counsel
FCTH Holdings (Ontario) Corporation	R. Gill, D. Bronskill (in absentia)
City of Toronto	M. LaFortune, J. Braun, C. Dougherty (in absentia)
5925 Yonge Street Inc. and Carmela Battista	G. O’Brien, M. Cook (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON JULY 4, 2023 AND ORDER OF THE TRIBUNAL

1This was the second Case Management Conference (“CMC”) for the appeals filed by FCTH Holdings (Ontario) Corporation (“Applicants/Appellants”) from the failure of the City of Toronto (“City”) to make a Decision on an application for an Official Plan Amendment (“OPA”) and rezoning applications for the properties located at 5051–5061 Yonge Street (“subject property” / “Site”).

2The Tribunal was informed that 5925 Yonge Street Inc. and Carmela Battista has retained new Counsel on May 18, 2023. Michael Cook will take full carriage of the case.

3The Tribunal was in receipt of a draft Procedural Order (“PO”) and Issues List (“IL”). The estimated maximum time required for the merit hearing is seven (7) days, but the Parties are hopeful that the numbers of days may be reduced.

4The Tribunal set down a seven (7) day video hearing, to commence on Wednesday, May 15, 2024, at 10 a.m. with access to this event is as follows:

5Parties 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/979388733

Access code: 979-388-733

6Parties 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

7Persons 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: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 979-388-733.

8Individuals 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.

9The Tribunal approves the Procedural Order, and it is appended as Attachment 1 to govern these proceedings.

10This Member is not seized.

11There will be no further notice.

“P. Tomilin”

P. TOMILIN 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.

ATTACHMENT 1

CASE NO(S).: OLT-23-000059

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

Applicant and Appellant: FCTH Holdings (Ontario) Corporation

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

Description: To permit a 39-storey tower rising from a five-storey pedestrian scaled podium with retail uses

Reference Number: 20 229112 NNY 18 OZ

Property Address: 5051-5061 Yonge Street

Municipality/UT: City of Toronto

OLT Case No.: OLT-23-000059

OLT Lead Case No.: OLT-23-000059

OLT Case Name: FCTH Holdings (Ontario) Corporation v. Toronto (City)

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

Applicant and Appellant: FCTH Holdings (Ontario) Corporation

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

Description: To permit a 39-storey tower rising from a five-storey pedestrian scaled podium with retail uses

Reference Number: 20 229112 NNY 18 OZ

Property Address: 5051-5061 Yonge Street

Municipality/UT: City of Toronto

OLT Case No.: OLT-23-000060

OLT Lead Case No.: OLT-23-000059

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 Wednesday, May 15, 2024 at 10:00 a.m. Parties 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/979388733

Access code: 979-388-733

3. The length of the hearing is seven (7) 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.

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 February 5, 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 the 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 February 15, 2024.

10. Expert witnesses in the same field shall have a meeting on or before March 1, 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 March 11, 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 March 21, 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 March 21, 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 April 10, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before April 19, 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 by April 1, 2024 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 3, 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 3, 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. If requested, the Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended.

23. 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 by December 22, 2023 filed in accordance with paragraph 13. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for the Tribunal to adjourn the hearing.

24. 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.

SUMMARY OF DATES

DATE	EVENT
December 22, 2023	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
February 5, 2024	Exchange of witness lists (names, disciplines and order to be called)
March 1, 2024 and March 11, 2024	Experts Meeting and Agreed Statement of Facts
March 21, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
April 1, 2024	Exchange of Reply Witness Statements (if any)
April 19, 2024	Exchange of visual evidence (if any)
May 3, 2024	Preparation of Joint Document Book
May 3, 2024	Final Work Plan filed with the Tribunal
May 15, 2024	Hearing commences

ATTACHMENT 1 PARTIES/PARTICIPANTS

Parties

1. FCTH Holdings (Ontario) Corporation David Bronskill/Rodney Gill (416) 597-4299/(416) 597-4136 dbronskill@goodmans.ca/rgill@goodmans.ca

2. City of Toronto Jessica Braun/Colin Dougherty (416) 392-7237/(416) 392-3116 Jessica.braun@toronto.ca colin.dougherty@toronto.ca

3. 5925 Yonge Street Inc. and Carmela Battista Michael Cook 416.977.7088 michaelc@davieshowe.com

Participants

1. YCCA (Yonge Corridor Condominium Association), Sally Gustin (representative)
2. Gautam Chaudhuri
3. Shashi Joglekar
4. Murad Jiwani
5. Dusan Toth
6. Ayvun Jeganathan

ATTACHMENT 2

ISSUES LIST

City of Toronto Issues List

1. Planning Act & Provincial Policy a. Do the proposed development including the Official Plan Amendment and Zoning By-law amendment represent good planning, have regard to the matters of provincial interest, conform with the Growth Plan, 2019, and are they consistent with the Provincial Policy Statement, 2020? Specifically, does the proposal: i. Have regard to Sections 2(k) and 2(r) of The Planning Act? ii. Is it consistent with the Provincial Policy Statement policies 1.1.1, 1.1.2, 1.1.3, and 1.3? iii. Does it conform with the Growth Plan (2019) policies 2.2.1, 2.2.3, and 2.2.5?

2. Land Use a. Are the proposed land uses and mix of uses for the proposed development appropriate and do they represent good planning. Does the application appropriate address: i. Does the proposal comply with the provisions of the North York Centre Secondary Plan policy 2.1 with respect to permitted uses?

3. Height & Density a. Is the height and density of the proposed development good planning? Is the proposed height and density appropriate for the site? In particular: i. Does the proposal have regard for the Planning Act, particularly subsections 2(k), (l), and (r)? ii. Does the proposal conform with the Toronto Official Plan, polices 3.1.3, 3.1.4, and 4.5.2? iii. Does the proposal conform with the North York Centre Secondary Plan, particularly Policies 1.10, 1.13, 1.14, 3.2, 3.3, 5.1, 5.3, 5.4, and 5.6? iv. Does the proposal have appropriate regard for the Tall Building Guidelines, particularly Guidelines 1.4, 3.1.1?

4. Built form a. Do the proposed development provide for a built form that is good planning? Is the proposed built form appropriate in terms of massing and transition? In particular: i. Does the proposal have regard for the Planning Act, particularly subsections 2(r)? ii. Does the proposal conform with the Toronto Official Plan, particularly polices 3.1.1, 3.1.3, 3.1.4 and 4.5.2? iii. Does the proposal conform with the North York Centre Secondary Plan, particularly Policies 1.13, 1.14, 1.17, 5.1, 5.3, 5.4 and 5.6? iv. Does the proposal have appropriate regard for the Tall Building Guidelines particularly Guidelines 1.4, 3.1.1, 3.2.2 and 3.2.3 and 3.2.5?

5. Transportation a. Do the proposed development provide sufficient parking for the development? In particular: i. Does the proposal conform with the North York Centre Secondary Plan, particularly Policies 4.3, 4.6 and Appendix 1. b. Does the proposed Transportation Demand Management plan satisfy the requirements of the Toronto Green Standard?

6. Parks a. Has a parkland dedication of an appropriate size been proposed under Section 42 of the Planning Act? b. Does the proposed size, location, and configuration of parkland dedication conform to Policy 3.2.3 of the City of Toronto Official Plan, Chapter 415 Article III of the Toronto Municipal Code, and the City of Toronto Parkland Strategy?

7. Engineering Matters a. Is there sufficient infrastructure capacity to accommodate the proposed development (including water, sanitary and stormwater)? b. Has the applicant demonstrated that the release of the existing City easements on site is appropriate, and that the on-site service connections proposed to be abandoned can be disconnected as proposed without impacting adjacent properties?

8. Order if approved a. 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: i. The official plan and zoning by-law amendment has been prepared in a content and form satisfactory to the City Solicitor and the Chief Planner and Executive Director, City Planning; ii. The owner has addressed all outstanding issues raised by Engineering and Construction Services memorandum dated June XX, 2023 as they relate to the Official Plan and Zoning By-law Amendment application, to the satisfaction of the Chief Engineer and Executive Director, Engineering and construction Services; iii. The owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review as they relate to the Official Plan and Zoning By-law Amendment application, to the satisfaction of the Supervisor, Tree Protection and Plan Review; General Manager, Parks, Forestry and Recreation and the City Solicitor;

Issues List of 5925 Yonge Street Inc. and Carmela Battista

1. Is the proposed development consistent with the following policies of the Provincial Policy Statement 2020: 1.1.1 e); 1.1.3.2 a) and b); 1.1.3.6; 1.4.3 d); 1.6.6.1; and 1.7.1 c)?

2. Does the proposed development conform to the following policies of the Growth Plan for the Greater Golden Horseshoe 2019: 2.2.2.3 d) and e); and 2.2.4.9?

3. Does the proposed development conform to policy 2.2.2 a) of the City of Toronto Official Plan?

4. Is the proposed development premature until such time as a Block Plan is prepared incorporating all lands within the development block (which includes the subject site and the lands to the immediate south owned collectively by 5925 Yonge Street Inc. and Carmela Battista) to ensure that comprehensive planning is carried out, which preserves the development potential of all the lands within the development block?

5. Has the Appellant carried out an appropriate analysis of municipal servicing for the proposed development in light of the overall servicing requirements for, and development potential of, the lands within the development block?

6. Is the proposed height, massing and density of the proposed development appropriate in light of servicing requirements and the need to make efficient use of land and municipal infrastructure within the development block, particularly when considering the ownership of the lands within the development block?

ATTACHMENT 3 ORDER OF EVIDENCE

1. FCTH Holdings (Ontario) Corporation
2. City of Toronto
3. 5925 Yonge Street Inc. and Carmela Battista
4. Reply of FCTH Holdings (Ontario) Corporation, if any.

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.

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