Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 1, 2023
CASE NO.: OLT-22-004828
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: The Elia Corporation
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: An official plan amendment is required to permit the proposed density of the development
Reference Number: OZ/OPA 21/008 W4 & T-M 21/003 W4
Property Address: 4615 Hurontario Street, 136 Eglinton Avenue East, and 25, 35, 55, 105 and 110 Elia Avenue
Municipality/UT: Mississauga/ Region of Peel
OLT Case No.: OLT-22-004828
OLT Lead Case No.: OLT-22-004828
OLT Case Name: The Elia Corporation v. Mississauga (city)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: The Elia Corporation
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: A zoning bylaw amendment is required to permit the proposed development
Reference Number: OZ/OPA 21/008 W4 & T-M 21/003 W4
Property Address: 4615 Hurontario Street, 136 Eglinton Avenue East, and 25, 35, 55, 105 and 110 Elia Avenue
Municipality/UT: Mississauga/ Region of Peel
OLT Case No.: OLT-22-004829
OLT Lead Case No.: OLT-22-004828
OLT Case Name:
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: The Elia Corporation
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: Development proposes 8 apartment buildings ranging in height from 28-storeys to 42-storeys with ground related commercial uses, a 45-storey mixed use building and 8 blocks of town houses
Reference Number: OZ/OPA 21/008 W4 & T-M 21/003 W4
Property Address: 4615 Hurontario Street, 136 Eglinton Avenue East, and 25, 35, 55, 105 and 110 Elia Avenue
Municipality/UT: Mississauga/ Region of Peel
OLT Case No.: OLT-22-004830
OLT Lead Case No.: OLT-22-004828
OLT Case Name:
BEFORE:
WILLIAM MIDDLETON MEMBER
AARON SAUVE VICE CHAIR
Thursday, the 24^th^ day of August, 2023
THE TRIBUNAL ORDERS that further to the Decision issued on April 18, 2023, the Procedural Order, as amended in accordance with the Tribunal's directions and 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 June 24, 2024. The Tribunal has set aside 14 day(s) for the hearing.
“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
The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.
Further refinement of this Procedural Order is anticipated as the positions of the parties are refined.
Organization of the Hearing
The hearing will commence on Monday, March 4, 2024 at 10am and will be conducted virtually.
The length of the hearing will be 15 days.
The parties and participants to the hearing are set out in Attachment 1.
The Issues are set out in the Issues List attached as Attachment 2. Except as contemplated in paragraph 2, there will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on consent or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal and the other parties as soon as possible. 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.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses, their professional qualifications, their areas of expertise, completed Acknowledgements of Expert’s Duty, the precise area and discipline in which they will seek to be qualified to provide expert testimony, and the intended order in which the witnesses will be called during the hearing. This information must be delivered on or before Monday, November 6, 2023. Any challenge by a Party to the qualifications or expertise of a witness must be filed with the Tribunal with supporting reasons within 30 days.
Expert witnesses in the same field shall have a meeting on or before Friday, November 24, 2023 to try to resolve or reduce the issues for the hearing. Expert meetings and discussions are to be held on a without prejudice and confidential basis, except insofar as it may be necessary for an expert to seek out resources or information (e.g. consult with other experts or counsel) that may be required in order for the expert witness to comply with the duties and obligations outlined in this section. The without prejudice and confidential nature of the discussions includes not being cross-examined or examined, by any party, regarding any statements or positions that may have been made or taken during an expert meeting or discussion. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties by no later than Tuesday, December 5, 2023.
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 section 14. 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 7.4 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 section 14.
On or before Friday, January 5, 2024, a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing or the participant may not give oral evidence at the hearing on the content of their written statement, unless ordered by the Tribunal.
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 section 14. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section 14.
On or before Friday, January 5, 2024, the parties shall provide copies of their witness and expert witness statements to the other.
On or before Friday, February 2, 2024, the parties shall provide any reply witness statements responding to any written evidence received to the other parties.
On or before Monday, February 19, 2024, the parties shall provide copies of their visual evidence to the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides a witness’ evidence 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 the record.
The parties shall prepare and file a hearing plan with the Tribunal on or before Monday, February 26, 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.
The parties shall prepare and file a Joint Document Book with the Tribunal on or before Monday, February 26, 2024. The Parties shall jointly bear the cost of preparing the Joint Document Book and shall share equally in the cost of printed copies (if any) provided to the Tribunal and for use as a witness copy. Parties shall bear their own cost of printed copies for their own use.
Documents may be delivered by personal delivery, registered or certified mail or email, or otherwise as the Tribunal may direct. The delivery of documents by email shall be governed by the Tribunal’s Rules (Rule 7) on this subject. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness, and except as contemplated in paragraph 6 of this Order. The Tribunal’s Rule 17 applies to such requests.
The purpose of the Procedural Order and the meaning of the terms used in the Procedural Order are set out in Attachment 4.
This Member is not seized.
So orders the Tribunal.
BEFORE:
Date: August 24, 2023
WILLIAM MIDDLETON MEMBER
AARON SAUVE VICE CHAIR
______________________________________ TRIBUNAL REGISTRAR
ATTACHMENT 1
LIST OF PARTIES and participants
Parties
- The Elia Corporation
KAGAN SHASTRI DeMELO WINER PARK LLP 188 Avenue Road Toronto, ON., M5R 2J1 Ira T. Kagan / Sarah R. Kagan Tel: 416-368-2100 x. 226 / 243 ikagan@ksllp.ca / skagan@ksllp.ca
- City of Mississauga
LOOPSTRA NIXON LLP 135 Queens Plate Drive, Suite 600 Toronto, ON., M9W 6V7 Mark Joblin / Alexandra Whyte Tel: 416-746-4710 mjoblin@loonix.com / awhyte@loonix.com
- Region of Peel
Rachel Godley Regional Municipality of Peel 10 Peel Centre Drive, Suite A, 5th Floor Brampton, ON., L6T 4B9 Tel: (905) 791-7800 x7189 rachel.godley@peelregion.ca
Participants
Ms. Danielle Vrga 80 Acorn Place, Suite 18 Mississauga, ON., L4Z 4C9 Tel: 647-226-4718 danillevrga@gmail.com
Mr. Hossam Al-Alkhooly 25 Kingsbridge Gardens Circle, Suite 220 Mississauga, ON.,L5R 4B1 Hossam.alkhooly@gmail.com
Ms. Marisa Baratta 4688 Antelope Crescent Mississauga, ON., L4Z 2W9 mabreads@gmail.com
ATTACHMENT 2
ISSUES LIST
Note 1: Where two or more parties raise the same technical issue, they may co-ordinate and rely upon an independent expert upon agreement of the parties. Where, however, a single party alone raises a technical issue then that party must call technical evidence in support of that issue from a qualified independent expert.
Note 2: The identification of an issue does not mean that all parties agree that such issue, 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 MISSISSAUGA
- Does the proposed development have regard to matters of Provincial Interest as outlined in Section 2 of the Planning Act as it relates to
(p) the appropriate location of growth and development
(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians
(r) the promotion of built form that,
(i) is well-designed,
(ii) encourages a sense of place, and
(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant?
PROVINCIAL POLICIES:
- Does the proposed development demonstrate consistency with the Provincial Policy Statement 2020, including but not limited to:
a. Policy 1.1.3.4 - appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety.
- Does the proposed development conform to the Growth Plan for the Greater Golden Horseshoe, including but not limited to:
a. Policy 2.2.4.3 – Major transit station areas on priority transit corridors or subway lines will be planned for a minimum density target of:
b) 160 residents and jobs combined per hectare for those that are served by light rail transit or bus rapid transit?
b. Policy 5.2.5?
c. Schedule 4?
REGION OF PEEL OFFICIAL PLAN, OFFICE CONSOLIDATION 2021:
- Does the proposed development conform to the Region of Peel Official Plan as it relates to development and intensification, including policies 5.2.2.1, 5.3.1.4, 5.3.1.5, and 5.3.2.6?
REGION OF PEEL OFFICIAL PLAN, 2022:
Does the proposed development conform to the Region of Peel Official Plan in relation to Section 5.6 Urban Systems, taking into account the characteristics of existing communities, to include in their official plans that: b) support pedestrian friendly and transit supportive urban development?
Does the proposed development conform to the Region of Peel Official Plan in relation to Section 5.6.19?
MISSISSAUGA OFFICIAL PLAN:
- Does the proposed development conform to the Mississauga Official Plan, including but not limited to policies in:
a. Chapter 7: Complete Communities – Sections 7.3.9, 7.3.10
b. Chapter 9: Build a Desirable Urban Form – Sections 9.1.10, 9.1.11, 9.1.14, 9.2.1.3, 9.2.1.10, 9.2.1.14, 9.2.1.15, 9.2.1.16, 9.2.1.21, 9.2.1.22, 9.2.1.29, 9.5.1.9, 9.5.3.7, 9.5.3.9
c. Chapter 13: Major Nodes – Section 13.1.1.2, 13.1.1.3, 13.4.9
d. Chapter 19: Implementation – Section 19.5 Criteria for Site Specific Official Plan Amendments
PLANNING & URBAN DESIGN ISSUES:
Are the proposed zoning by-law and exception standards appropriate?
Does the proposal appropriately address pedestrian scale given the height, massing, orientation and location?
Does the proposal demonstrate compatibility and integration with the public realm by ensuring adequate sunlight and sky view?
Have the City’s standards for Shadow Study requirements been adequately addressed?
Have the City’s standards for Pedestrian Wind Comfort and Safety Study been adequately addressed?
Does the proposal adequately provide for amenity areas?
Does the proposal adequately provide landscape buffers?
Does the proposal provide for an appropriate built form?
Does the proposed development have appropriate regard to the Uptown Major Node Character Area?
Has the Streetscape Feasibility Plan adequately addressed City requirements?
Is the layout of Block 1 consistent with the conceptual road network in Mississauga Official Plan for the Uptown Major Node?
COMMUNITY SERVICES ISSUE:
Can a community park be accommodated on site?
Can a Peel District School Board elementary school be accommodated on the site?
TRANSPORTATION & WORKS:
HOLDING “H” PROVISION
- In the event that the Tribunal allows the appeal in whole or in part, should the Zoning By-law include an “H” (Holding) provision which requires the following conditions to be satisfied:
a. Receipt of satisfactory Architectural Drawings to reflect the agreed upon design and noise barriers
b. Receipt of a satisfactory Functional Servicing and Stormwater Management Report
c. Receipt of a satisfactory Noise and Vibration Report
d. Receipt of a satisfactory Traffic Impact Study
e. Receipt of a satisfactory executed Development Agreement
f. Receipt of satisfactory land dedications and easements
g. Receipt of satisfactory affordable housing contributions
h. Receipt of a record of site condition
i. Receipt of Hydrogeological Investigation Report.
- In the event that the Tribunal allows the appeal in whole or in part, should the Final Order be withheld pending the City Solicitor advising the Tribunal that the Owner and City have agreed to the final form of the Official Plan Amendment and Zoning By-law Amendment?
SUMMARY:
- Does the proposed development represent good planning and is it in the public interest?
Region of peel
Has the applicant submitted a satisfactory FSR including plans for watermain and sanitary sewer upgrades and phasing?
Has the applicant submitted a viable Waste Management Plan in accordance with the Waste Collection Design Standards Manual?
ATTACHMENT 3
ORDER OF EVIDENCE
The Elia Corporation
The City of Mississauga
The Region of Peel
The Elia Corporation, in Reply
ATTACHMENT 4
Purpose of the Procedural Order and Meaning of Terms
The Tribunal recommends that the parties meet to discuss this sample Order before the Case Management Conference to try to identify the issues and the process that they want the Tribunal to order following the conference. The Tribunal will hear the parties’ comments about the contents of the Order at the conference.
Case Management Conferences usually take place only where the hearing is expected to be long and complicated. If you are not represented by a lawyer, you should prepare by obtaining the Guide to the Ontario Land Tribunal, and the Tribunal’s Rules, from the Tribunal Information Office, 15th Floor, 655 Bay Street, Toronto, M5G 1E5, 416-212-6349, or from the Tribunal’s website at https://olt.gov.on.ca/about-olt/.
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 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 (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
- direct examination by the party presenting the witness;
- direct examination by any party of similar interest, in the manner determined by the Tribunal;
- cross-examination by parties of opposite interest;
- re-examination by the party presenting the witness; or
- another order of examination mutually agreed among the parties or directed by the Tribunal.
ATTACHMENT 5
Summary of Filing Dates
EVENT
DATE
1^st^ Case Management Conference
Friday, March 31, 2023
Parties to exchange their List of Witnesses
Monday, November 6, 2023
Deadline for Meeting of Like Experts
Friday, November 24, 2023
Deadline to file Statement of Agreed Facts and Issues
Tuesday, December 5, 2023
Parties to exchange their Witness and Expert Witness Statements Participants to provide their Participant Statements
Friday, January 5, 2024
Parties to exchange their Reply Witness Statements
Friday, February 2, 2024
Parties to exchange their Visual Evidence
Monday, February 19, 2024
Parties to File Joint Document Book Parties to File Preliminary Hearing Plan
Monday, February 26, 2024
Hearing commences
Monday, March 4, 2024