Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 24, 2023

CASE NO.: OLT-22-003917

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

Applicant and Appellant: Timbercreek Four Quadrant GP2 Inc.

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

Description: To permit the redevelopment of the Subject Property with a public park and 5 mixed-use buildings

Reference Number: PLAN 20 130784

Property Address: 288, 298 & 300 John Street

Municipality/UT: Markham/York

OLT Case No.: OLT-22-003917

OLT Lead Case No.: OLT-22-003917

OLT Case Name: Timbercreek Four Quadrant GP2 Inc. v. Markham (City)

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

Applicant/Appellant: Timbercreek Four Quadrant GP2 Inc.

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

Description: To permit the redevelopment of the Subject Property with a public park and 5 mixed-use buildings

Reference Number: PLAN 20 130784

Property Address: 288, 298 & 300 John Street

Municipality/UT: Markham/York

OLT Case No.: OLT-22-003918

OLT Lead Case No.: OLT-22-003917

BEFORE:

JATINDER BHULLAR MEMBER

Thursday, the 24th day of August, 2023

THE TRIBUNAL ORDERS that further to the motion hearing on August 15, 2023, the revised Procedural Order attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on October 10, 2023. The Tribunal has set aside seven days for the hearing.

THE TRIBUNAL ORDERS that decision for both motions is substituted by the issuance of this updated Procedural Order and no separate decision shall issue.

THE TRIBUNAL ORDERS that no costs will be determined or awarded given the minor nature of the changes and the parties having jointly contributed effort in order to reduce the number of issues on the Issues List as in the Procedural Order attached.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

SCHEDULE A

Procedural Order OLT-22-003917

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

CASE NO.: OLT-22-003917

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

Applicant/Appellant: Timbercreek Four Quadrant GP2 Inc.

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

Property Address/ Description: To permit the redevelopment of the Subject Property with a public park and 5 mixed-use buildings at 288, 298 & 300 John Street, Markham

Municipality: Markham

Reference Number: PLAN 20 130784

OLT File No.: OLT-22-003917

OLT Case No.: OLT-22-003917

OLT Case Name: Timbercreek Four Quadrant GP2 Inc. v Markham (City)

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

Applicant/Appellant: Timbercreek Four Quadrant GP2 Inc.

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

Property Address/ Description: To permit the redevelopment of the Subject Property with a public park and 5 mixed-use buildings at 288, 298 & 300 John Street, Markham

Municipality: Markham

Reference Number: PLAN 20 130784

OLT File No.: OLT-22-003918

OLT Case No.: OLT-22-003917

OLT Case Name: Timbercreek Four Quadrant GP2 Inc. v Markham (City)

PROCEDURAL ORDER

The Tribunal orders that:

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 October 10, 2023 at 10:00 a.m.. All Parties and participants shall attend the first day of the hearing.

3. The parties’ initial estimation for the length of the hearing is 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. The procedural order deadlines are generally found in Attachment 1 to this Order.

4. The Parties and participants identified at the Case Management Conference are listed in Attachment 2 to this Order.

5. The Preliminary Issues are set out in the Issues List attached as Attachment 3. The Parties will attempt to narrow or resolve the Preliminary Issues which may result in Issues being revised or removed from the Issues List. The finalized Issues List will be provided to the Tribunal no later than the date of the second Case Management Conference to be scheduled by the Tribunal. Once finalized there will be no changes to this list unless the Tribunal permits it and a Party who asks for changes may have costs awarded against it.

6. The order of evidence is listed 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.

7. All Parties and Participants (or their representatives) shall provide a mailing address, email address, and telephone number to the Tribunal. Any such person who retains a representative (legal counsel or agent) subsequent to the Case Management Conference must advise the other Parties and the Tribunal of the representative’s name, mailing address, email address and phone number as soon as possible. Contact information is set out in Attachment 2.

8. If the hearing is to proceed electronically, 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 (https://olt.gov.on.ca/tribunals/lpat/planning-matters/).

Requirements Before the Hearing

9. Expert witnesses in the same discipline(s) shall have at least one meeting at least 80 days before the hearing to try to resolve or reduce the issues for the hearing. 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 August 7, 2023, if this meeting takes place and if agreement is reached.

10. A Party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and to 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 June 12, 2023. For expert witnesses, a Party is to include a copy of the curriculum vitae and the area of expertise in which the witness is proposed to be qualified. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified. Any challenges to the qualifications of a witness to give opinion evidence in the area of expertise proposed should 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 June 30, 2023.

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 expert witness statements must be provided as in section 13. 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 as the delivery of expert witness statements, as in section 13.

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 and their area of expertise, as in Section 13.

13. On or before August 28, 2023, the Parties shall provide copies of their witness and expert witness statements to the other Parties and the Tribunal.

14. A participant shall provide copies of their written participant statement to the other parties on or before August 28, 2023 in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless otherwise permitted by the Tribunal.

15. Parties may provide to all other Parties and the OLT case coordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.

16. On or before September 8, 2023, the Parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before September 25, 2023, the Parties shall provide copies of their visual evidence to all of the other Parties. If a model is proposed to be used, the Tribunal must be notified before the hearing. All Parties must have a reasonable opportunity to view it before the hearing.

18. On or before October 3, 2023, the Parties shall prepare and file a preliminary hearing plan with a proposed schedule for the hearing that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), the anticipated order of evidence, the date a witness is intended to attend, the identified witness name/expertise, and the approximate time allotted for each witness in Chief, Cross Examination and any 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.

19. The Parties shall cooperate to prepare a Joint Document Book which shall be shared with the OLT case coordinator on or before September 29, 2023.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

21. A Party who provides the written evidence of a witness to the other Parties must have that witness attend the hearing to give oral evidence, unless the Tribunal and the Parties are notified at least seven (7) days before the hearing that the written evidence is not part of their record.

22. All filing of documents and materials shall be electronic and, where feasible, in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents email shall be governed by the Rule 7.

23. Parties are required to deliver a hard (where required) and electronic copies of their evidence filed in accordance with this Procedural Order inclusive to the Tribunal, and to all other Parties are required to deliver electronic copies on or by 4:30 p.m. on the date ascribed above.

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

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

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
June 12, 2023	Exchange of witness lists (names, disciplines and order to be called)
June 30, 2023	Last date to challenge identification of expert witness
July 21, 2023	Experts meeting prior to this date
As mutually agreed between the parties or on/before September 8, 2023	Agreed Statement of Facts
August 28, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
September 8, 2023	Exchange of Reply Witness Statements (if any)
September 8, 2023	Parties to confirm with the Tribunal if any hearing dates are to be released from the hearing calendar (if any)
September 25, 2023	Exchange of Visual Evidence (if any)
October 3, 2023	Final Hearing Plan filed with the Tribunal
September 29, 2023	Finalize Joint Document Book
October 10, 2023	Hearing commences

ATTACHMENT 2

Parties and Participants

PARTIES/REPRESENTATIVES*

City of Markham Maggie Cheung-Madar City of Markham, Legal Services Department 101 Town Centre Boulevard Markham, Ontario, L3R 9W3 Email: mcheung-madar@markham.ca Tel: 905-477-7000 x 3583

BORDEN LADNER GERVAIS LLP Bay Adelaide Centre, East Tower 22 Adelaide Street West Toronto, Ontario M5H 4E3 Andrew Baker Email: abaker@blg.com Tel: 416.367.6250 Julie Lesage Email: JLesage@blg.com Tel: 416.367.6276 Lawyers for the Appellant, Timbercreek Four Quadrant GP2 Inc.

Talia Gordner and Annik Forristal McMillan LLP Brookfield Place, 181 Bay Street Suite 4400 Toronto, Ontario, M5J 2T3 Email: talia.gordner@mcmillan.ca; annik.forristal@mcmillan.ca Tel: 416.865.7834; 416.865.7292

PARTICIPANTS

1. York Region Condominium Corporation #784, York Region Condominium Corporation #794 and York Region Condominium Corporation #798

Lynn Samuels Email: lsamuels@gpmmanagement.com Tel: 905-882-1961

Eric Lakien Email: eric@lakien.com Tel: 416-526-8000

2. Ward One (South) Thornhill Residents Inc. (WOSTRI)

Evelin Ellison Email: vp@thornhillwardone.com Tel : 905-889-1351

Brian Fischer Email : Fischer@sympatico.ca Tel: 905-731-7571

3. Aileen-Willowbrook Residents Association (AWRA)

Alena Gotz Email: awra.thornhill@gmail.com Tel: 647-631-1843

Luis Olivera Perez Email: vp1.awra.thornhill@gmail.com Tel : 416-877-3544

4. Lucy Pallotta

Email : lpallotta1971@gmail.com Tel : 416-556-7561

ATTACHMENT 3

Issues List

NOTE: The identification of an issue on the Issues List is intended to provide notice to all Parties that a Party will lead evidence and/or argument on the matter. This identification does not serve as an acknowledgment of relevancy or jurisdiction of the Tribunal on such matters; merely notice that a Party may seek to establish the issue’s relevancy. The identification of a change to the Issues List does not constitute an admission by the opposing Party that the revised issue is relevant, it is only an indication that the identifying Party will seek to demonstrate the relevance of the revised issue to the matters before the Tribunal.

Note to reader: The annotations indicates which issue is associated with which appeal.

CONSOLIDATED ISSUES LIST

1. Does the proposed development have regard for the relevant matters of provincial interest set out in Section 2 of the Planning Act, including subsections (p), (q), and (r)?

2. Is the proposed development consistent with the Provincial Policy Statement (2020) as required by Section 3(5) of the Planning Act, including but not limited to sections 1.1.1 a) and b), 1.1.3.2 a), b), e), f), 1.3.1 d), 1.4.3 b), c), d), f), 1.5.1 a), b), 1.6.3 a), 1.6.7.4, and 1.7.1 e)?

3. Does the proposed development conform to and not conflict with the Growth Plan for the Greater Golden Horseshoe (2020), as required by Section 3(5) of the Planning Act, including but not limited to sections 2.2.1(4) a), 2.2.1(4) d) iii., 2.2.1(4) e), 2.2.4(10), 2.2.5(3), 2.2.5(15), and 4.2.7(1)?

4. Does the proposed development conform to the 2022 York Region Official Plan, including but not limited to sections:

2.0 The Foundation for Complete Communities;

4.4 Intensification of Local Centres and Corridors; and

6.3 Moving People and Goods.

5. Does the proposed development conform to and/or have appropriate regard for the City of Markham Official Plan, 2014, including but not limited to sections:

a. Section 2.0 Sustainable Growth, and more specifically 2.2.2 Building Complete Communities;

b. Section 2.5 Centres and Corridors, and more specifically 2.5.3 Local Centres and Corridors;

c. Section 4.0 Healthy Neighbourhoods and Communities, and more specifically 4.1 Housing; and,

d. Section 9.18 Thornhill, and more specifically 9.18.11 Local Centre – Thornhill Centre.

6. Is the proposed development premature until:

   1. A comprehensive assessment of the area assessing development potential and compatibility with the surrounding community is complete?

7. Are the heights of the proposed buildings and the density of the proposed development appropriate and compatible, given the established residential communities surrounding the subject lands?

8. Does the proposed development appropriately integrate into the urban fabric, considering the existing and future needs of the community, including the compatibility with the surrounding area and provision of community amenities?

9. Are the designs of the proposed buildings compatible or complementary to the existing and adjacent area surrounding the subject lands?

10. Are the community amenities sufficient to accommodate the proposed density?

11. Do the proposed development, Official Plan Amendment and Zoning By-law Amendments represent good planning and are these in the public interest?

12. If the requested Official Plan Amendment and Zoning By-law Amendment applications are approved by the Tribunal, should the Tribunal's final Order be withheld until the Tribunal has been advised by the City that:

a. The proposed Zoning By-law Amendment and Official Plan Amendment are in a form satisfactory to the City; and

b. The applicant has provided additional studies and/or reports to satisfy matters as set out in issue 6 above and the applicant has entered into any agreements require to secure any required upgrades or improvements to the existing municipal infrastructure should they be required, all to the satisfaction of the City.

**The City of Markham reserves the right to revise, scope or remove issues subject to Council direction. For certainty, however, no issues shall be added or expanded.

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence. The order of this list will be revised and refined through the final hearing plan.

1. The Appellant, Timbercreek Four Quadrant GP2 Inc.

2. The City of Markham

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

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. If an unincorporated group wishes to become a Party, 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 authorization 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, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as Parties can.

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a Party 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 intends to present as evidence at the hearing.

Witness Statements:

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 the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A Party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the Parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.