Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 29, 2023
CASE NO(S).: OLT-23-000409
PROCEEDING COMMENCED UNDER subsection 42(10) and 42(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Residences of Westerly Inc.
Subject: Determination of the value of land
Description: Development of two apartment towers, 20 storeys in height and the other is 27 storeys in height
Reference Number: 21-239157
Property Address / Description: 25 Cordova Avenue and 60 Central Park Roadway
Municipality: City of Toronto
OLT Case No.: OLT-23-000409
OLT Lead Case No.: OLT-23-000409
OLT Case Name: Residences of Westerly Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 42(10) and 42(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Residences of Westerly Inc.
Subject: Determination of the value of land
Description: Development of two apartment towers, 20 storeys in height and the other is 27 storeys in height
Reference Number: 21-250236
Property Address / Description: 25 Cordova Avenue and 60 Central Park Roadway
Municipality: City of Toronto
OLT Case No.: OLT-23-000477
OLT Lead Case No.: OLT-23-000409
Heard: August 10, 2023 by Video Hearing (“VH”)
APPEARANCES:
| Parties | Counsel |
|---|---|
| Residences of Westerly Inc. (“Applicant”) | Brendan O’Callaghan |
| City of Toronto (“Respondent”) | Michael Mahoney |
MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON AUGUST 10, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Hearing is the first Case Management Conference (“CMC”) conducted in this Application, pursuant to Sections 42(10) and 42(12) of the Planning Act. The Applicant is in the process of obtaining Building Permits for two apartment towers which will comprise a total of 612 residential units at 25 Cordova Avenue and 60 Central Park Roadway (the “Subject Property”), in the City of Toronto (the “City”). The Applicant disputes the City’s calculation of the total amount of the Park Levies owing at the building permit stage. The Applicant has paid, under protest, the Park Levy amount assessed, with the respect to the Building Permit for 25 Cordova Avenue, and Counsel has advised that the Applicant will also pay, under protest, the Park Levy amount assessed with respect to the Building Permit for 60 Central Park Roadway, when that Building Permit becomes available. The Applicant seeks the Tribunal’s determination of the value of the Subject Property for Park Levy purposes, and an Order that the City refund any overpayment of the Park Levies.
PROCEDURAL ORDER
2Counsel advised the Tribunal that the Parties were content with the provisions of the draft Procedural Order (“PO”), Issues List and Order of the Evidence circulated by Counsel for the Applicant prior to this CMC, and that they would like to set an early date for a three-day Hearing to be held either by VH, or in-person at the Tribunal’s facilities at 655 Bay Street, Toronto, which would finalize the draft PO.
3Following consultation respecting the Tribunal’s calendar and the availability of the Parties, Counsel and witnesses, a three-day Hearing on the Merits by VH was agreed upon, commencing on Wednesday, October 25, 2023 to Friday, October 27, 2023.
4The Tribunal inquired concerning the prospects for the Mediation of the dispute, and Counsel advised that the Parties intend to meet privately as, in view of the early Merit Hearing date, there is insufficient time for Tribunal-led mediation.
5The Tribunal has subsequently received and reviewed the updated draft of the PO, Issues List and Order of Evidence. The fixed dates for the Merit Hearing are now provided in the PO appended to this Decision as Schedule 1, and the coordinates for the Hearing are set out below in this Decision.
6Appended to this Decision as Schedule 1 is the PO, which will now govern all further pre-hearing procedural requirements and the hearing of the Appeal.
HEARING – OCTOBER 25 TO OCTOBER 27, 2023
7For the three-day Merit Hearing commencing at 10 a.m. on Wednesday, October 25, 2023, Counsel are directed to advise the Case Coordinator by October 18, 2023 whether the Parties prefer the Merit Hearing to be in-person or by VH.
8For the three-day in-person Merit Hearing, commencing at 10 a.m. on Wednesday, October 25, 2023, and continuing to Friday, October 27, 2023, the Parties are tasked to attend at the Tribunal’s facilities at 655 Bay Street, 14th Floor, Toronto, at 10 a.m. on Wednesday, October 25, 2023.
9For the three-day VH, commencing at 10 a.m. on Wednesday, October 25, 2023, and continuing to Friday, October 27, 2023, the Parties are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/719383509
Access Code: 719-383-509
10Parties, witnesses and observers 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted 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 Hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
Other Matters
13There will be no further notice with respect to the hearing event and the Member is not seized.
14The Tribunal so Orders and provides these Case Management Conference directives for the purposes of the case management of this Proceeding.
“Robert G. Ackerman”
ROBERT G. ACKERMAN MEMBER
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 1
CASE NO(S).: OLT-23-000409
PROCEEDING COMMENCED UNDER subsection 42(10) and 42(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Residences of Westerly Inc.
Subject: Determination of the value of land
Description: Development of two apartment towers, 20 storeys in height and the other is 27 storeys in height
Reference Number: 21-239157
Property Address / Description: 25 Cordova Avenue and 60 Central Park Roadway
Municipality: City of Toronto
OLT Case No.: OLT-23-000409
OLT Lead Case No.: OLT-23-000409
OLT Case Name: Residences of Westerly Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 42(10) and 42(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Residences of Westerly Inc.
Subject: Determination of the value of land
Description: Development of two apartment towers, 20 storeys in height and the other is 27 storeys in height
Reference Number: 21-250236
Property Address / Description: 25 Cordova Avenue and 60 Central Park Roadway
Municipality: City of Toronto
OLT Case No.: OLT-23-000477
OLT Lead Case No.: OLT-23-000409
PROCEDURAL ORDER
- 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
A) If by video the hearing will begin on October 25, 2023, (date) at 10 a.m./
p.m.B) In the alternative, the in-person hearing will begin on October 25, 2023, (date) at 10 a.m./p.m.at 655 Bay Street, 14th Floor, Toronto.The parties’ initial estimation for the length of the hearing is 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.
The parties and participants identified at the case management conference are set out in Attachment 1.
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.
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.
The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.
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.
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
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 September 8, 2023. 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.
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.
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.
On or before September 22, 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 23 below.
On or before October 11, 2023, the parties shall provide copies of their reply witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.
On or before September 20, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before October 13, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within 25 days after the evidence is received and in accordance with paragraph 23 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 13, 2023.
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 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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 11, 2023, 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.
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 the Rule 7.
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.
A summary of the various procedural dates is contained in Attachment 5.
This Member is [not] seized.
So orders the Tribunal.
ATTACHMENT 1
LIST OF PARTIES / PARTICIPANTS
Parties
Tridel Development Corporation Aird & Berlis LLP Brookfield Place, 181 Bay Street, Suite 1800 Toronto ON M5J 2T9 Brendan O’Callaghan Tel: 416.865.2832 Email: bocallaghan@airdberlis.com
City of Toronto Legal Department 100 Queen St. W. Toronto, ON M5H 2N2 Michael Mahoney and Tel: 416.392.4846 Email: Michael.Mahoney@toronto.ca
Colin Dougherty Tel: 416.392.3116 Email: Colin.Dougherty@toronto.ca
ATTACHMENT 2
ISSUES LIST
- The issue in this hearing is the market value of the subject property on the day before the issuance of the first building permit.
ATTACHMENT 3
ORDER OF EVIDENCE
The case in Chief by Tridel. The case by the City of Toronto. Reply by Tridel.
ATTACHMENT 4
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.
ATTACHMENT 5
SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| September 8, 2023 | Exchange of witness lists (names, disciplines and order to be called) |
| September 15, 2023 | Last date to challenge identification of expert witness |
| September 22, 2023 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| October 11, 2023 | Exchange of written response to written evidence (if any) |
| October 13, 2023 | Exchange of visual evidence (if any) |
| October 13, 2023 | Final Work Plan filed with the Tribunal |
| October 13, 2023 | Finalize Joint Document Book |
| October 25, 2023 | Hearing commences |