Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 06, 2023

CASE NO(S).: OLT-22-004195

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

Applicant and Appellant: 100 Davenport Limited Partnership

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

Purpose: To permit a 19-storey mixed-use building

Property Address: 100 Davenport Road

Municipality: City of Toronto

Municipal File No.: 21 231497 STE 11 OZ

OLT Case No.: OLT-22-004195

OLT Lead Case No.: OLT-22-004195

OLT Case Name: 100 Davenport Limited Partnership v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c 11, Sched. A

Applicant and Appellant: 100 Davenport Limited Partnership

Subject: Site Plan

Purpose: To permit a 19-storey mixed-use building

Property Address: 100 Davenport Road

Municipality: City of Toronto

Municipal File No.: 21 231498 STE 11 SA

OLT Case No.: OLT-22-004196

OLT Lead Case No.: OLT-22-004195

Heard: July 4, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
100 Davenport GP Inc. c/o 100 Davenport Limited Partnership	Adrian Frank
ABC Residents Association/ Greater Yorkville Residents Association	Andrew Biggart
Belmont House	Andrew Biggart
City of Toronto	Jessica Braun

MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON JULY 4,2023 AND ORDER OF THE TRIBUNAL

1This is the second Case Management Conference (“CMC”) for the Appeal, held as a Video Hearing.

2The Tribunal was informed that the CMC would serve as a status update.

3The Tribunal was notified that the Parties are satisfied with the Procedural Order, as circulated. The Parties have agreed that ten (10) days for the Hearing is no longer required and have requested to release three (3) days.

4Accordingly, the appended Procedural Order, included herein as Schedule 1, reflects the revised Hearing dates and duration.

5The Tribunal hereby schedules a Video Hearing of these appeals on Thursday, October 26, 2023, commencing at 10 a.m. Seven (7) days have been set aside.

6Parties and Participants are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/687587165

Access code: 687-587-165

7Parties and Participants 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

8Persons 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.

9Individuals 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.

10No further notice will be given.

11The Member is not seized.

12So Orders the Tribunal.

“Carmine Tucci”

CARMINE TUCCI

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-22-004195

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

Applicant and Appellant: 100 Davenport Limited Partnership

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

Purpose: To permit a 19-storey mixed-use building

Property Address: 100 Davenport Road

Municipality: City of Toronto

Municipal File No.: 21 231497 STE 11 OZ

OLT Case No.: OLT-22-004195

OLT Lead Case No.: OLT-22-004195

OLT Case Name: 100 Davenport Limited Partnership v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c 11, Sched. A

Applicant and Appellant: 100 Davenport Limited Partnership

Subject: Site Plan

Purpose: To permit a 19-storey mixed-use building

Property Address: 100 Davenport Road

Municipality: City of Toronto

Municipal File No.: 21 231498 STE 11 SA

OLT Case No.: OLT-22-004196

OLT Lead Case No.: OLT-22-004195

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the Parties’ request or its own motion.

Organization of the Hearing

2. The hearing will begin on Thursday, October 26, 2023 at 10:00 a.m. as directed in the Tribunal's Decision and Order issued November 24, 2022, with further details as follows:

October 26, 2023 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/687587165 Access code: 687-587-165 Audio-only line: +1 (647) 497-9373 (Alternate: 1-888-299-1889) Audio-only access code: 687-587-165

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

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

5. The Issues are set out in the Issues List attached as Attachment 3 to this Order. The Parts will attempt to resolve the issues prior to the hearing on the merits of the appeal. There will be no changes to the Issues List unless the Tribunal permits, and a Party who asks for changes may have costs awarded against it.

6. The order of evidence is set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the Parties' consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

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

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/).

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, the expert witness(es)' curriculum vitae and Acknowledgement of Expert Duty form(s), and the order in which the witnesses will be called. This list must be delivered on or before July 28, 2023. 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 witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or before August 11, 2023.

10. Expert witnesses in the same discipline(s) shall have at least one meeting on or before August 25, 2023 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 September 7, 2023, if this meeting takes place and if agreement is reached.

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, and the curriculum vitae and Acknowledgment of Expert Duty Form previously provided as in Section 9. Copies 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 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that they intend 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 14.

12. A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before September 11, 2023 or the witness may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, excepted as permitted by the Ontario Land Tribunal Act, 2021 and the Tribunal's Rules of Practice and Procedure.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the Party calling them must file a brief outline of the expert’s evidence, as in Section 14.

14. On or before September 11, 2023, the Parties shall provide copies of their expert witness statements (full disclosure including reports) to the other Parties.

15. On or before October 10, 2023, the Parties may provide to all other Parties a written response to any written evidence.

16. On or before October 13, 2023, the Parties shall advise the Tribunal of whether any hearings dates scheduled for this matter may be released from the Tribunal's calendar. This request may only be made on consent of all of the Parties. If no hearing dates are intended to be released from the Tribunal's calendar, no Party is required to advise the Tribunal anything further in that regard.

17. On or before October 16, 2023, the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving Party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion.

19. A Party who provides a witness’ written 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 their record.

20. On or before October 16, 2023, the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.

21. The Parties shall prepare a Joint Document Book on or before October 16, 2023, and which one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with Section 23.

22. 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 June 30, 2023. The applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

23. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. 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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. Section 23 applies regardless if the hearing event is in-person or electronic.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by Section 22. The Tribunal’s Rule 17 applies to such requests.

25. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

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

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
June 30, 2023	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
July 28, 2023	Exchange of witness lists (names, disciplines and order to be called)
August 11, 2023	Last date to challenge identification of expert witness
August 25, 2023	Experts meeting prior to this date
September 7, 2023	Agreed Statement of Facts
September 11, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
October 10, 2023	Exchange of Reply Witness Statements (if any)
October 13, 2023	Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
October 16, 2023	Exchange of visual evidence (if any)
October 16, 2023	Final Work Plan filed with the Tribunal
October 16, 2023	Finalize Joint Document Book
October 26, 2023	Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

*Counsel/Agent

1. 100 Davenport GP Inc. c/o 100 Davenport Ltd. Partnership Kagan Shastri DeMelo Winer Park LLP 2302 - 250 Yonge Street Toronto, ON M5B 2L7 Jason Park E-mail: jpark@ksllp.ca Tel.: 416.645.4572 Olivia Rasekhi E-mail: orasekhi@ksllp.ca Tel.: 416.645.4532

2. City of Toronto City of Toronto, Legal Services Metro Hall, 26th Floor 55 John Street Toronto, Ontario M5V 3C6 Jessica Braun E-mail: Jessica.Braun@toronto.ca Tel: 416-392-7237 Colin Dougherty E-mail: colin.dougherty@toronto.ca Tel: 416-392-3116

3. TSCC No. 2280 Aird Berlis LLP 66 Wellington St W Suite 4100, Toronto, ON M5K 1B7 Jane Pepino E-mail: jpepino@airdberlis.com Tel.: 416.865.7727 Naomi Mares E-mail: nmares@airdberlis.com Tel.: 647.426.2842

4. ABC Residents Association/ Greater Yorkville Residents Association/Belmont House Ritchie Ketcheson Hart & Biggart LLP 1 Eva Rd., Suite 206 Etobicoke, Ontario M9C 4Z5 Andrew Biggart E-mail: abiggart@ritchieketcheson.com Tel.: 416.622.6601, Ext. 227

B. PARTICIPANTS

1. Toronto Lands Corporation (c/o Paul Nichols) E-mail: PNichols.TLC@tdsb.on.ca Tel.: 289-659-6602

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. The identification of an issue on this list by a Party indicates that Party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the Tribunal have jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the Tribunal.

A. City of Toronto

No issues.

B. ABC Residents Association/Greater Yorkville Residents Association/Belmont House

Provincial Statutory & Policy Requirements

Planning Act

1. Does the proposed development have appropriate regard for matters of provincial interest set forth in Section 2 of the Planning Act, including 2(h), (n), (o), and (r) of the Planning Act?

Provincial Policy Statement 2020

2. Is the proposed development consistent with the Provincial Policy Statement 2020, including sections 1.0, 1.1, 1.1.3, 1.4, 1.5, 1.7 and 4.0.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2020

3. Does the proposed development conform to and not conflict with the Provincial Growth Plan for the Greater Golden Horseshoe 2020, including section 1.2.1, 1.2.3, 2.2.1, 2.2.6, 4.2.5, 5.2.

City of Toronto Official Plan

4. Does the proposed development conform to the adopted and in-force policies of the City of Toronto Official Plan, including: Policy 2.3.1 (Healthy Neighbourhoods); Policy 3.1.2 (Built Form; Policy 3.1.3 (Built Form - Tall Buildings); Policy 4.5 (Mixed Use Areas); Policy 5.1.1 (Height and/or Density Incentives); Area Specific Policy 211; and OPA 320 (Healthy Neighbourhoods)?

City of Toronto Zoning By-Laws 438-86 and 569-2013

5. Is it appropriate and consistent with good planning for the proposed development to be in excess of (i) the height, density and massing limits for the CR District as prescribed by Zoning By-laws 438-86 and 569-2013, and (ii) the stepping down in height from 76 Davenport Road to three storeys at 100 Davenport Road which, as this Tribunal previously found, demonstrates a reasonable sensitivity to the height variations in the neighbourhood and represents an appropriate transition and fit with the surrounding area?

Site-Specific Issues

6. Does the proposed development have adequate regard for the 2006 decision of the OMB in Case No. PL050331, and has the appellant demonstrated a planning justification sufficient to warrant a departure from that decision?

7. Does the proposed development have adequate regard for the 2019 decision of the Local Planning Appeal Tribunal and has the appellant demonstrated a planning justification sufficient to warrant a departure from that decision?

8. Does the proposed development represent good land use planning and urban design, having regard to the existing and planned land use context and the following matters:

a. the appropriateness of the proposed built form, building type, massing and scale, building heights, density, urban design as well as the transition to and fit with adjacent areas, and the transition and fit within the urban structure of Bloor-Yorkville/North Midtown, including shadow impacts on both the public and private realms;

b. whether the proposed development has appropriate regard to the adopted City of Toronto Design Guidelines, including the Tall Building Guidelines and the Bloor-Yorkville/North Midtown Urban Design Guidelines;

c. whether the proposed development would create undue impacts for Belmont House including shadow impacts and impacts on the quality of life and care for residents of Belmont House and the special needs of seniors who require exposure to direct sunlight for therapeutic purposes.

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.

1. 100 Davenport GP Inc. c/o 100 Davenport Ltd. Partnership
2. City of Toronto
3. TSCC No. 2280
4. ABC Residents Association/ Greater Yorkville Residents Association/Belmont House
5. Reply by 100 Davenport GP Inc. c/o 100 Davenport Ltd. Partnership (if any)

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.