2509225 Ontario Inc. v. Toronto (City), 2023 CanLII 71732

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

August 04, 2023

CASE NO(S).:

OLT-22-004331

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

2509225 Ontario Inc.

Subject:

By-law No. 1006-2022

Description:

To permit a new master planned community with four new development blocks, new streets and new public park

Reference Number:

19 147759 NNY 17 OZ

Property Address:

2550 Victoria Park Avenue and 2, 4, 6 Lansing Square

Municipality/UT:

Toronto/Toronto

OLT Case No.:

OLT-22-004331

OLT Lead Case No.:

OLT-22-004331

OLT Case Name:

2509225 Ontario Inc. v. Toronto (City)

Heard:

August 1, 2023 by video hearing

APPEARANCES:

Parties

Counsel

2509225 Ontario Inc.

Jonathan Cheng

City of Toronto

Amanda Hill

Gabe Szobel (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY s. dixon ON august 1, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision and Order arises from the second Case Management Conference (“CMC”) held regarding an appeal filed by 2509225 Ontario Inc. (“Appellant”) pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, in respect of the passing of Zoning By-law No. 1006-2022 (“ZBL”) by the City of Toronto (“City”) for the lands municipally known as 2550 Victoria Park Avenue and 2, 4 and 6 Lansing Square (“Subject Lands”).

2The City adopted the ZBL on July 22, 2022, for the purposes of facilitating a mixed-use development on the Subject Lands.

3The Appellant asserts that the ZBL contains significant technical and drafting deficiencies that impede the ability to develop the Subject Lands with the Appellant’s proposed development. It is the Appellant’s position that the ZBL, as adopted, is inconsistent with the Provincial Policy Statement, 2020, does not conform with the Growth Plan for the Greater Golden Horseshoe, 2020, and does not conform with the City’s Official Plan.

OPPORTUNITIES FOR SETTLEMENT

4At the first CMC, the Parties advised the Tribunal that they were hopeful a settlement could be reached and presented to City Council for instruction at the July 2023 City Council meeting. This second CMC was scheduled as an opportunity to either present a City Council-endorsed settlement to the Tribunal or schedule a hearing in the event a settlement could not be reached.

5At the outset of this CMC, the Tribunal was advised that the Parties were not able to reach a consensus in time for City Council’s consideration. While the Parties are still engaged in efforts to reach a settlement, they requested that a three-day hearing be scheduled to provide certainty that the matter will be resolved in a timely manner (whether by way of contested hearing or otherwise).

PROCEDURAL ORDER AND ISSUES LIST

6In anticipation of their request for hearing dates, the Parties submitted a Draft Procedural Order (“DPO”) and Issues List (“IL”) to the Tribunal in advance of the CMC. The Tribunal reviewed the DPO and IL with the Parties and directed that a number of revisions be made. The Tribunal further directed that an updated DPO be sent to the Tribunal no later than Thursday, August 3, 2023.

7Having received the updated DPO as directed, the Tribunal has reviewed and hereby approves the Procedural Order and IL attached to this Decision and Order as Schedule 1.

HEARING DATES

8The Tribunal granted the Parties’ request to schedule a hearing and has set aside three days commencing Wednesday, November 29, 2023 at 10 a.m. for a Video Hearing.

9Parties 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/442599157

Access Code: 442-599-157

10Parties 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.

11Persons 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) 1-888-455-1389 or +1 (647)- 497-9391. The access code is as indicated above.

12Individuals 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 Video Hearing 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

13THE TRIBUNAL ORDERS that a hearing of merits will commence by Video Hearing on Wednesday, November 29, 2023 at 10 a.m. Three consecutive days have been set aside for the hearing.

14There will be no further notice.

15This Member is not seized.

“S. Dixon”

s. dixon

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.

Ontario Land Tribunal

655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349

Toll free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunaux de l’aménagement du territoire Ontario 655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349

Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca

SCHEDULE 1

ISSUE DATE: August 04, 2023 CASE NO.: OLT-22-004331

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

2509225 Ontario Inc.

Subject:

By-law No. 1006-2022

Description:

To permit a new master planned community with four new development blocks, new streets and new public park

Property Address:

2550 Victoria Park Avenue and 2, 4, 6 Lansing Square

Municipality/UT:

Toronto

OLT Case No.:

OLT-22-004331

OLT Lead Case No.

OLT-22-004331

OLT Lead Case Name:

2509225 Ontario Inc. v. Toronto (City)

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 Wednesday, November 29, 2023 at 10:00 a.m. in accordance with the following links:

Virtual Hearing: https://global.gotomeeting.com/join/442599157

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

Access Code: 442-599-157

3. The length of the hearing will be 3 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 procedural order deadlines are generally found in Attachment 1.

5. The parties and participants identified at the case management conference are set out in Attachment 2 to this Order.

6. The issues are set out in the Issues List attached as Attachment 3 to this Order. 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.

7. The order of evidence shall be as set out in Attachment 4 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.

8. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number.

9. 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

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 the witnesses and the order in which they will be called. This list must be delivered on or before Monday, September 18, 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 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 Monday, September 25, 2023.

11. Expert witnesses in the same field shall have a meeting on or before Monday, October 2, 2023 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 Tribunal case coordinator on or before Wednesday, October 11, 2023.

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, the acknowledgement of expert’s duty and the expert’s Curriculum Vitae. Copies of this information 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same time as the delivery of expert witness statements, as in paragraph 14 below.

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 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 14 below.

14. On or before Monday, October 23, 2023, the parties shall provide copies of their witness and/or 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 Monday, October 23, 2023, 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. On or before Monday, October 23, 2023, the parties shall advise the Tribunal of whether any hearing dates scheduled for this matter may be released from the Tribunal’s calendar. This request may only be made on consent of all of the parties. If 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 that regard.

17. On or before Monday, November 6, 2023, the parties may provide to all other parties a written response to any written evidence in accordance with paragraph 24 below.

18. On or before Monday, November 6, 2023, 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. 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. On or before Monday, November 13, 2023, the parties shall prepare and file a preliminary hearing plan 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. The Parties shall prepare a Joint Document Book which shall be shared with the OLT case coordinator on or before Monday, November 13, 2023.

23. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal to the other parties on or before Monday, September 18, 2023. If the revised proposal gives rise to materially new issues not already identified in the Issues List, the Tribunal may be spoken to. 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, except to the extent that the revised proposal seeks to resolve issues identified in the Issues List. In the event of a dispute, the Tribunal may be spoken to.

24. 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 Rule 7.

25. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by paragraph 23 above. The Tribunal’s Rule 17 applies to such requests.

26. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1 SUMMARY OF DATES

DATE

EVENT

Monday, September 18, 2023

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

Monday, September 18, 2023

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

Monday, September 25, 2023

Last date to challenge identification of expert witness

Monday, October 2, 2023

Deadline for experts’ meeting to be held

Wednesday, October 11, 2023

Agreed statement of facts and issues

Monday, October 23, 2023

Exchange of witness/expert statements, expert reports, written participant statements and summoned witness outlines

Monday, October 23, 2023

Parties to advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)

Monday, November 6, 2023

Exchange written responses to written evidence (if any)

Monday, November 6, 2023

Exchange of visual evidence (if any)

Monday, November 13, 2023

Preliminary hearing plan filed with the Tribunal

Monday, November 13, 2023

Finalize Joint Document Book

Wednesday, November 29, 2023

Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel/*Agent

2509225 Ontario Inc.

Calvin Lantz Stikeman Elliott LLP 5300 Commerce Court West 199 Bay Street Toronto, ON M5L 1B9

E-mail: clantz@stikeman.com Tel.: 416-869-5669

Jonathan Cheng Stikeman Elliott LLP 5300 Commerce Court West 199 Bay Street Toronto, ON M5L 1B9

E-mail: jcheng@stikeman.com Tel.: 416-869-6807

City of Toronto

Gabe Szobel

City of Toronto, Planning and Administrative Tribunal Law

Metro Hall, floor 25

55 John Street

Toronto, ON M5V 3C6

E-mail: gabe.szobel@toronto.ca

Tel.: 416-338-1889

Amanda Hill

City of Toronto, Planning and Administrative Tribunal Law

Metro Hall, Floor 26

55 John Street

Toronto, ON M5V 3C6

E-mail: amanda.hill@toronto.ca

Tel.: 416-338-5790

B. PARTICIPANTS

None.

ATTACHMENT 3 ISSUES LIST

1. Is the form and content of By-law No. 1006-2022, as passed by City Council, appropriate to permit the proposed development of the property municipally known as 2550 Victoria Park Avenue and 2, 4, 6 Lansing Square, Toronto (the “Property”)—and if not, should By-law No. 1006-2022 be modified in the manner proposed by the Applicant / Appellant (the “Modified ZBA”) to permit the proposed development of the Property, and in particular:

a. is it appropriate to apply the parking supply requirements and standards contained within Zoning By-law No. 569-2013, as amended, and in particular, as amended by By-law No. 89-2022 and By-law No. 125-2022 (the “Citywide Zoning By-law”) to the proposed development of the Property; and

b. if the parking supply requirements and standards contained within the Citywide Zoning By-law should not apply for the proposed development of the Property, what parking supply requirements and standards should apply?

2. Does the Modified ZBA:

a. have appropriate regard for the matters of Provincial interest set forth in Section 2 of the Planning Act;

b. demonstrate consistency with the Provincial Policy Statement, 2020;

c. conform with the Growth Plan for the Greater Golden Horseshoe, 2019, as amended;

d. conform with the City of Toronto Official Plan, as amended; and

e. constitute good planning?

3. If the Modified ZBA is approved by the Tribunal, in whole or in part, should the Tribunal’s final order be withheld until it has been advised by the Applicant / Appellant that:

a. an agreement under Subsection 37(7) of the Planning Act satisfactory to the City Solicitor and Chief Planner and Executive Director, City Planning, has been executed and registered on title, and/or other arrangements have been made, to secure appropriate community benefits and other matters in support of the development, as such matters are set out in City Council’s decision on Agenda Item NY25.3, which was considered in its meeting on July 14, 15 and 16, 2021?

ATTACHMENT 4 ORDER OF EVIDENCE

1. 2509225 Ontario Inc.

2. City of Toronto

3. 2509225 Ontario Inc. in reply (as needed)

ATTACHMENT 5

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.