Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 21, 2023 CASE NO(S).: OLT-22-004578

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

Applicant/Appellant: Urban Capital Harbour (Marlee) Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the development of a 12-storey residential building Reference Number: 21 251194 NNY 08 OZ Property Address: 774-782 Marlee Avenue Municipality: City of Toronto OLT Case No.: OLT-22-004578 OLT Lead Case No.: OLT-22-004578 OLT Case Name: Urban Capital Harbour Marlee Inc. v. Toronto (City)

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

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the development of a 12-storey residential building Reference Number: 21 251194 NNY 08 OZ Property Address: 774-782 Marlee Avenue Municipality/UT: City of Toronto OLT Case No.: OLT-22-004579 OLT Lead Case No.: OLT-22-004578

Heard: June 6, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Urban Capital Harbour (Marlee) Inc.	David Bronskill
City of Toronto	Marc Hardiejowski, Uttra Gautam (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN ON JUNE 06, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) respecting an appeal by Urban Capital Harbour (Marlee) Inc. (the “Applicant/Appellant”) following City of Toronto Council’s failure to render a decision respecting an application for an official plan amendment and a zoning by-law amendment to permit the re-development of 774-782 Marlee Avenue (“subject property”).

2The subject property is located on the west side of Marlee Avenue, just south of Lawrence Avenue West. The total site area is 3,629 square metres (“m²”), based on a frontage of approximately 79.24 metres (“m”) along Marlee Avenue and a depth of approximately 45.63 m. It is currently occupied by five one-storey single family dwellings.

REVISED APPLICATION

3The Applicant’s initial proposal for development consisted of a 12-storey residential building containing 301 dwelling units. The initial proposed development consisted of approximately 19,085 m² of gross floor area (“GFA”). Driveway access would be provided from a covered private driveway on the north side of the subject property internalized loading facilities and a ramp to a two-level underground parking garage with 180 vehicular parking spaces.

4Since the first CMC, the Applicant has revised its proposal to facilitate a residential building consisting of 362 dwelling units. The revised proposed development would consist of approximately 22,301 m² of GFA. Driveway access would remain as mentioned above but with a reduction of a vehicular parking spaces to 163.

Service of Notice of CMC

5As a result of the Applicant’s revised proposal, a second Affidavit of Service was served. There was no issue with service of the Notice of this CMC, and so, no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 2.

Requests for Status

6At the first CMC, the Tribunal had granted the Wenderly Park Community Association Inc.(“Association”) Participant status. Jerry Wang, on behalf of the Association, had requested Party Status, which was not granted due to the uncertainty as to whether the Association would actively participate. At the time of this Hearing, the Association was not able to provide evidence satisfactory to be granted Party status and as a result, retained their Participant status.

MEDIATION AND SETTLEMENT

7The Tribunal explored the possibility of mediation and settlement with the Parties. The Parties indicated that settlement discussions were premature at this time, but that they would, however, commit to discussing resolution as the matter progressed.

PROCEDURAL ORDER AND ISSUES LIST

8Following the Hearing event, the Tribunal received and reviewed the Procedural Order from the Parties. The Tribunal finds it acceptable, and the proceedings shall be governed by it. (See Schedule 1). Access details for the seven (7) day hearing on the merits can be found in the Decision from the first CMC issued on March 9, 2023.

ORDER

9The Tribunal Orders that the Procedural Order, appended as Schedule 1 to this Decision, shall govern these proceedings.

10The Member is not seized but may be spoken to through the Case Coordinator if any issues should arise.

“S. Mann”

S. MANN MEMBER

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

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

Schedule 1

CASE NO(S).: OLT-22-004578

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

Applicant/Appellant: Urban Capital Harbour (Marlee) Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the development of a 12-storey residential building Reference Number: 21 251194 NNY 08 OZ Property Address: 774-782 Marlee Avenue Municipality: City of Toronto OLT Case No.: OLT-22-004578 OLT Lead Case No.: OLT-22-004578 OLT Case Name: Urban Capital Harbour Marlee Inc. v. Toronto (City)

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

Applicant/Appellant: Urban Capital Harbour (Marlee) Inc. Subject: Application to amend Zoning By-law – Refusal or neglect to make a decision Description: To permit the development of a 12-storey residential building Reference Number: 21 251194 NNY 08 OZ Property Address: 774-782 Marlee Avenue Municipality/UT: City of Toronto OLT Case No.: OLT-22-004579 OLT Lead Case No.: OLT-22-004578

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 January 22, 2024 at 10:00 a.m.

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 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before November 28, 2023 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.

10. Expert witnesses in the same field shall have a meeting on or before October 30, 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 OLT case co-ordinator on or before November 29, 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 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 December 8, 2023, 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 November 19, 2023, 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 December 18, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before December 18, 2023, 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 on or before December 18, 2023 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 January 12, 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 January 15, 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 and 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 by email shall be governed by Rule 7.

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 on or before September 11, 2023. 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
September 11, 2023	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
November 28, 2023	Exchange of witness lists (names, disciplines and order to be called)
October 30, 2023	Experts Meeting
November 19, 2023	Exchange of Participant Statements
November 29, 2023	Experts Agreed Statement of Facts
December 8, 2023	Exchange of Witness Statements, summoned witness outlines, and Expert Reports
December 18, 2023	Exchange of Reply Witness Statements (if any)
December 18, 2023	Exchange of visual evidence (if any)
December 18, 2023	Parties to confirm requirement for hearing dates
January 12, 2024	Preparation of Joint Document Book
January 15, 2024	Preliminary Hearing Plan filed with the Tribunal
January 22, 2024	Hearing commences

ATTACHMENT 1 PARTIES/PARTICIPANTS

Parties

1. Urban Capital Harbour (Marlee) Inc. David Bronskill (416) 597-4299 dbronskill@goodmans.ca

2. City of Toronto Mark Hardiejowski/Uttra Gautam (416) 392-4960/(416) 396-7986 mark.hardiejowski@toronto.ca/uttra.gautam@toronto.ca

Participants

1. Wenderly Park Community Association Inc. wenderlyparkca@gmail.com

ATTACHMENT 2 ISSUES LIST

City of Toronto

Planning Act

1. Do the proposed development, Official Plan and Zoning By-law Amendments have appropriate regard for the following matters of provincial interest set out in Section 2 of the Planning Act: Sections 2 (f), (h),(p), (q), and (r)?

Provincial Policy Statement (2020)

2. Are the proposed development, Official Plan and Zoning By-law Amendments consistent with the following policies of the Provincial Policy Statement (2020): policies 1.1.1, 1.1.3, 1.4.3, 1.6, and 4.6?

A Place to Grow – Growth Plan for the Greater Golden Horseshoe (2020)

3. Do the proposed development, Official Plan and Zoning By-law Amendments conform to, and not conflict with, the following policies of A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020): policies 2.2.1.4, 2.2.6.3, and 5.2.5.6?

City of Toronto Official Plan

4. Do the proposed development, Official Plan and Zoning By-law Amendments conform with the following policies of the City of Toronto Official Plan:

a. Healthy Neighbourhoods (2.3.1) b. The Public Realm (3.1.1.2, 3.1.1.3, 3.1.1.6, 3.1.1.12, 3.1.1.13, 3.1.1.16); c. Built Form (3.1.3.1, 3.1.3.3, 3.1.3.4, 3.1.3.5, 3.1.3.6, 3.1.3.7, 3.1.3.9, 3.1.3.10, 3.1.3.11, 3.1.3.13); d. Built Form – Building Types (3.1.4.9; 3.1.4.10; 3.1.4.11); e. Housing (3.2.1): 3.2.1.12; and, f. Parks and Open Spaces (3.2.3.5); g. Natural Environment (3.4.1); h. Neighbourhoods (4.5.1) i. Mixed Use Areas (4.5.2); and j. Implementation (5.3.1) ?

City of Toronto Guidelines

5. Does the proposal adequately support the size objectives of the Growing Up Guidelines?

6. Does the proposed development meet the intent and purpose of the City of Toronto Tall Building Guidelines?

7. Does the proposal meet the requirements of the Toronto Green Standard particularly as it relates to transportation demand management, electric vehicle infrastructure, tree planting, soil volume, stormwater management and tree planting requirements?

Site Specific Issues

8. Has the applicant provided sufficient information and materials to assess the proposal? In particular has the applicant provided the following information and supporting documentation to support the revised proposal?

a) Sun/Shadow Study; b) Pedestrian Level Wind Study; c) Draft Official Plan Amendment; d) Draft Zoning By-law Amendment; e) Block Context Plan; f) Landscape Plans and Soil Volume Information; g) Tree Preservation Plan; h) Toronto Green Standards Checklist; i) Transportation Impact Study; j) Transportation Demand Management Plan; k) Functional Servicing Report and associated Plans and Drawings; l) Stormwater Management Report and associated Plans and Drawings.

9. Is the proposed redesignation of the property from Neighbourhoods to Mixed Use Areas appropriate?

10. Is the proposed height and density appropriate for the site?

11. Are the site organization and built form of the proposed development appropriate in terms of its proposed massing, including setbacks, step backs, scale, separation distances, streetwall heights, design, and transition to neighbouring properties? Are the resulting impacts appropriate? In particular:

a) Does the development have appropriate regard to the applicable City of Toronto Growing Up: Planning for Children in New Vertical Communities Guidelines, in particular, as it relates to the sizes of the units and type of amenity spaces? b) Does the proposed massing of the base building provide appropriate grading relationships and transition to and interface with the neighbouring properties to the north, west and south? c) Is the proposed tower transitioned appropriately to the surrounding land uses? d) Is the massing of the proposed development appropriate in terms of its impact on access to sunlight, overlook, and privacy?

12. Does the proposal provide for an appropriate relationship with the public realm and resulting streetscape?

13. Does the proposal provide for appropriate grading relationships with adjacent properties and open space?

14. Has the proposal demonstrated how the orderly development of adjacent properties can develop independently of this development site?

15. Is the wind impact of the proposed development on the public realm, and outdoor amenity areas acceptable?

16. Does the proposal provide sufficient accessible parking spaces?

17. Is it appropriate to include surface parking with the proposed development?

18. Is there sufficient infrastructure capacity to accommodate the proposed development (including water, sanitary and stormwater)?

19. Has a parkland dedication requirement of an appropriate size, location and configuration been proposed as per Section 42 of the Planning Act, Policy 3.2.3 of the City of Toronto Official Plan and Chapter 415 Article III of the Toronto Municipal Code?

20. Is it appropriate to remove 7 trees protected under Chapter 813 Article III of the Toronto Municipal Code and provide no replacement trees on site?

General

21. Are the proposed Official Plan and Zoning By-law Amendments good planning, good urban design, and in the public interest?

Implementation

a) the final form and content of the draft Official Plan and Zoning By-laws are to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning; a. provisions for a holding by-law pursuant to Section 36 of the Planning Act regarding the provision of an acceptable sanitary system solution constructed and operational as determined by the Chief Engineer & Executive Director, Engineering and Construction Services which may include the applicant obtaining MECP Environmental Compliance Approval and upgrading the existing municipal infrastructure off site; b) the owner has satisfactorily addressed the Transportation Services and Engineering and Construction Services matters and any outstanding issues arising from the ongoing technical review (including provision of acceptable reports and studies), as they relate to the Official Plan and Zoning By-law Amendment application to the satisfaction of the General Manager, Transportation Services and Chief Engineer and Executive Director, Engineering and Construction Services; c) Submit to the Chief Engineer and Executive Director of Engineering and Construction Services for review and acceptance, prior to approval of the rezoning application, a Functional Servicing Report to determine the storm water runoff, sanitary flow and water supply demand resulting from this development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development; d) Make satisfactory arrangements with Engineering and Construction Services and enter into the appropriate agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support this development, according to the accepted Functional Servicing Report accepted by the Chief Engineer and Executive Director of Engineering and Construction Services; e) the owner has provided financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the acceptable Functional Servicing Report and Stormwater Management Report, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and General Manager, Toronto Water, where it has been determined that improvements or upgrades are required to support the development. In requiring any off site municipal infrastructure upgrades, the owner is to make satisfactory arrangements with Engineering & Construction Services for Work on the City's Right-of-Way. f) Provide space within the development for installation of maintenance access holes and sampling ports on the private side, as close to the property line as possible, for both the storm and sanitary service connections, in accordance with the Sewers By-law Chapter 681.10. g) the owner has submitted a Housing Issues Report and tenant relocation and assistance plan to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor in accordance with Official Plan Policy 3.2.1.12; and h) the owner has submitted an updated complete Toronto Green Standards (TGS) Checklist and Statistics Template, to the satisfaction of the Chief Planner and Executive Director, City Planning; i) the owner has submitted a revised Travel Demand Management Plan acceptable to, and to the satisfaction of, the Chief Planner and Executive Director, City Planning and the General Manager, Transportation Services; j) 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 applications, to the satisfaction of the General Manager, Parks, Forestry and Recreation and the City Solicitor;

ATTACHMENT 3 ORDER OF EVIDENCE

1. Urban Capital Harbour (Marlee) Inc.
2. City of Toronto
3. Urban Capital Harbour (Marlee) Inc. in reply (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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