DKI Queen Inc. et al v. Toronto (City), 2023 CanLII 97680

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 19, 2023

CASE NO(S).: OLT-22-004733

PROCEEDING COMMENCED UNDER subsection 41(4) of the Ontario Heritage Act, R.S.O. 1990, c. O. 18, as amended

Appellant: DKI Queen Inc.

Appellant: Queen and Brock Holdings Inc. and KingSett Capital Inc.

Subject: Parkdale Main Street Heritage Conservation District

Municipality: City of Toronto

OLT Case No.: OLT-22-004733

OLT Lead Case No.: OLT-22-004733

OLT Case Name: DKI Queen Inc. et al v. Toronto (City)

Heard: September 14, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
DKI Queen Inc.	M. Lakatos-Hayward, D. Bronskill (in absentia)
Queen and Brock Holdings Inc. and KingSett Capital Inc.	M. Barrett
City of Toronto	M. Longo and C. Barnett
2090416 Ontario Inc., 10225614 Canada Inc., and 2283169 Ontario Inc.	L. Dean

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS AND DANIEL NELSON ON SEPTEMBER 14, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a second Case Management Conference (“CMC”) pursuant to appeals under s. 41(4) of the Ontario Heritage Act (“OHA”) associated with the City of Toronto’s (“City”) By-Law No. 1218-2022, which designates the Parkdale Main Street Heritage Conservation District and adopts the Parkdale Main Street Heritage Conservation District Plan (“HCD”). DKI Queen Inc., Queen and Brock Holdings Inc. and KingSett Capital Inc. (“KingSett”) (together “Appellants”) appealed the By-law.

2Parties and Participants were established at the first CMC in March 2023.

PROCEDURAL ORDER, ISSUES LIST AND HEARING DATE

3On consent, the City submitted a draft Procedural Order and Issues List (“PO/IL”) on September 13, 2023, which required some additional clarification and the Parties agreed to scope issues further and agreed to provide a final update to the Tribunal accordingly within a two-week period.

4Following some further discussion and consultation around scheduling and the PO/IL, the Parties ultimately consented to a nine-day Hearing event in September 2024, at the direction of the Tribunal and that a final PO/IL shall be submitted to the Case Coordinator on or before September 29, 2023.

5Therefore, the Tribunal directs that a Hearing is scheduled to commence on Tuesday, September 10, 2024, at 10 a.m. and continue to Friday, September 20, 2024, by Video Conference for a total of nine days.

6Statutory Parties and anyone seeking Party or Participant status 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/348282861

Access code: 348282861

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: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated 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 events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

10Finally, the Tribunal is encouraged by the ongoing discussions between the Parties in an effort to scope issues and continue settlement negotiations and further encourages Tribunal-assisted mediation if mutually agreed to by the Parties.

ORDER

11THE TRIBUNAL ORDERS that:

a) The Hearing is scheduled by Video Conference to commence on Tuesday, September 10, 2024, at 10 a.m. and continue to Friday, September 20, 2024, at 10:00 a.m. for a total of nine days.

b) The final Procedural Order and Issues List submitted on September 29, 2023, marked as Schedule 1 below, will guide the Hearing event as scheduled by this Order.

12There will be no further notice.

13The Panel Members are not seized of this matter.

“Steven T. Mastoras”

STEVEN T. MASTORAS MEMBER

“Daniel Nelson”

DANIEL NELSON 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-22-004733

PROCEEDING COMMENCED UNDER subsection 41(4) of the Ontario Heritage Act, R.S.O. 1990, c. O. 18, as amended

Appellant: DKI Queen Inc.

Appellant: Queen and Brock Holdings Inc. and KingSett Capital Inc.

Subject: Parkdale Main Street Heritage Conservation District

Municipality: City of Toronto

OLT Case No.: OLT-22-004733

OLT Lead Case No.: OLT-22-004733

OLT Case Name: DKI Queen Inc. et al v. Toronto (City)

Procedure 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 video hearing will begin on September 10, 2024 at 10 a.m. in a virtual setting via GoTo Meeting.

3. The parties’ initial estimation for the length of the hearing is 9 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.

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 other than to strike issues from the list 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 May 2, 2024 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. Any party wishing to challenge the qualifications of a proposed expert witness shall provide notification and the basis for that challenge on or before May 17, 2024.

10. Expert witnesses in the same field shall have a meeting at least twenty days prior to the exchange of Expert Witness Statements as in section 13 on or before June 28, 2024 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 August 30, 2024.

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 July 5, 2024, 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 July 5, 2024, 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. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before July 26, 2024.

16. On or before July 26, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before August 9, 2024, 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.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before August 30, 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. If one or more Appellants wish to propose any modification(s) to the Parkdale Main Street Heritage Conservation District or the Parkdale Main Street Heritage Conservation District Plan, any such modifications shall be delivered to all Parties and the City on or before June 1, 2024 before the hearing. Should an Appellant attempt to advance any modification(s) without the Consent of the City, the Tribunal may limit or exclude such modification(s) from being considered at the hearing of the merits.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 3, 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.

23. All filings shall be submitted electronically, with hard copy to the Tribunal if requested. 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 22 applies whether 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. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

SUMMARY OF DATES

DATE	EVENT
May 3, 2024	Exchange of witness lists (names, disciplines, and order to be called)
May 17, 2024	Last date to challenge identification of expert witness
June 28, 2024	Last date for meeting of experts
July 5, 2024	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
July 26, 2024	Exchange of Reply Witness Statements (if any)
August 9, 2024	Exchange of visual evidence (if any)
August 30, 2024	Finalize Joint Document Book
September 10, 2024	Hearing commences

Attachment 1

Parties/Participants

PARTIES/REPRESENTATIVES

1. City of Toronto Chris Barnett Osler, Hoskin & Harcourt LLP 100 King Street West 1 First Canadian Place, Suite 6200, P.O. Box 50 Toronto, Ontario M5X 1B8 Email: cbarnett@osler.com Tel: 416.862.6651 Fax: 416.862.6666

Matthew Longo City of Toronto, Legal Services Division Metro Hall, 26th Floor 55 John Street Toronto, Ontario M5V 3C6 Email: matthew.longo@toronto.ca Tel: 416-392-8109-4063 Fax: 416-397-5624

2. Lawyers for Queen & Brock Holdings Inc. & KingSett Capital Inc. Eileen Costello Meaghan Barrett Aird & Berlis LLP 181 Bay Street, Suite 1800 Toronto, Ontario, M5J 2T9 Email: ecostello@airdberlis.com; mbarrett@airdberlis.com Tel: 416.865.4740; 416.865.3064

3. Lawyers for DKI Queen Inc. David Bronskill Goodmans LLP Bay Adelaide Centre - West Tower 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 Email: dbronskill@goodmans.ca Tel: 416.597.4299 Fax: 416.979.1234

4. 2090416 Ontario Inc., 10225614 Canada Inc., and 2283169 Ontario Inc. Laura Dean Aird & Berlis LLP 181 Bay Street, Suite 1800 Toronto, Ontario, M5J 2T9 Email: ldean@airdberlis.com Tel: 416.865.7706

Participants

1. Sunnyside Historical Society/Parkdale Village Historical Society (represented by Adam Wynne)
2. West Side Community Council

Attachment 2

Issues List

The identification of an issue on this list does not mean that it has been accepted by all parties and does not preclude any party from objecting to an issue on the grounds that the said issue is not relevant or material to the determination of the matter in dispute. No party shall advance an issue not identified on the Issues List at the hearing without leave of the Tribunal.

ISSUES LIST OF KINGSETT CAPITAL INC.

1. Does the Parkdale Heritage Conservation District Plan (the “Plan”) conform with clause 41(1)(b) of the Ontario Heritage Act and related section 3 of O. Reg. 9/06?

Interpretation/Scope

2. Should the Plan be modified to remove any provisions, such as the definition of adjacent, which could be understood to have effect beyond the boundaries of the Plan?

3. Should the Plan include a “deeming” provision providing that any heritage permit granted by Council is deemed to be in accordance with the Plan?

4. Are defined terms within the Plan adequate and are they consistent and in conformity with in-force policy and legislation?

Objectives

5. Are the Plan’s Objectives sufficiently clear, precise and accurate so as to provide certainty with respect to the application of Section 41.2?

6. Are the Plan’s Objectives compatible with the existing and planned context of this area of Queen Street West, given that the lands contained in the Plan boundary include lands which are located on Avenues and therefore planned for growth?

7. Are the design requirements for properties, including policies 6.11 and 7.6.6 unnecessarily limiting to the provision of high-quality architecture as required by Objective 8?

8. Is there a conflict between Objective 7 (which requires that new developments and additions “conserve and maintain the cultural value of the District”) and Objective 8 (which states that work must be “compatible” with the District’s cultural heritage value)?

Policies and Guidelines

9. Are the Plan’s policies, guidelines and objectives internally consistent?

10. Are quantified urban design policies including stepbacks appropriate for inclusion in an HCD Plan?

11. Are the mandatory stepbacks in policies 6.11.5, 6.11.6, 6.11.7, 7.6.5, 7.6.6 and 7.6.7 appropriate?

12. Should the requirement to “conserve” the horizontal rhythm of the facades of adjacent heritage properties in policy 7.7.1 be revised?

13. Is reference to the requirement to “maintain” in policies 6.8.1, 6.11.5, 6.11.6, 6.11.11, 6.11.12, 6.12.5, 6.12.6, 6.15.3, 7.6.5 and 7.6.7, and in the associated guidelines, appropriate given the definition of “maintained” in the Plan?

14. Is the mandatory requirement in policy 6.15.3 and in the guidelines to policies 6.2.1 and 6.9.2 to replace “in-kind” appropriate?

15. Are the views identified in Section 5.5 appropriate and supported by the necessary heritage evidence?

16. Are Section 5.5 and policy 8.4.1 concerning heritage views sufficiently clear? If not, what modifications are necessary?

17. Should the Plan be modified to remove the provisions respecting views, given that to the extent they are necessary or justified they are or can be addressed through the Official Plan?

18. Should the Plan, including policies 6.7.2 and 6.11.8, be modified to permit a contributing property to be relocated provided that appropriate consideration is given to the provisions of the Official Plan and the other provisions of the Plan?

19. Should the Plan be modified to acknowledge that any negative impact on the cultural heritage values of a heritage resource should not automatically justify preventing works intended to address health, safety, security, accessibility or sustainability?

Mandatory Review Period

20. Should the Plan require a mandatory review after a certain period of time?

21. Is the failure to include a mandatory review contrary to Official Plan Policy 3.1.5(31)(b), which directs that HCD studies and plans will “include protocols for amendment and periodic review”?

Inadequate Consideration of the Policy Landscape

22. Should the Plan be modified to provide an appropriate framework to integrate land use planning considerations, including but not limited to conformity with provincial plans and consistency with the Provincial Policy Statement, 2020 into the decision making thereunder?

23. Does the failure to do so render it non-conforming with the Official Plan, inconsistent with the Provincial Policy Statement and in conflict with the Growth Plan for the Greater Golden Horseshoe, 2019? If so, what are appropriate modifications?

24. Is the failure to consider complementary changes to the Official Plan and Zoning By-law contrary to Official Plan Policy 3.1.5(31)(c), which directs that HCD studies and plans will “include provisions addressing the relationship between the Heritage Conservation District Plan and the Official Plan and provincial policy within the context of the Heritage Conservation District Plan’s directions for conserving the cultural heritage values and character of the Heritage Conservation District, its attributes, and the properties within it, including but not limited to identifying any required changes to the Official Plan and zoning by-law”?

Site Specific Issue

25. In the event the Ontario Land Tribunal approves the Zoning By-law Amendment and Official Plan Amendment in OLT Lead Case No. OLT-22-002167, should that approval be included in Schedule F of the Plan?

ISSUES LIST OF DKI QUEEN INC. (1266 QUEEN STREET WEST)

26. Does the Parkdale Main Street Heritage Conservation District Plan (the “HCD Plan”) reflect good heritage conservation planning that is in the public interest?

27. Should By-law No. 1218-2022 and the HCD Plan be revised to exclude the property known municipally as 1266 Queen Street West?

28. Should the HCD Plan provide transition and/or exempt developments for which planning applications have been submitted?

29. Is the Statement of Objectives in Chapter 4.0 of the HCD Plan reasonable and appropriate in light of the statutory requirements of section 41.2 of the Ontario Heritage Act, or should the objectives be modified to better reflect the development and built form permitted and anticipated for the area?

30. Is it appropriate for the HCD Plan to impose an additional layer of land use planning and urban design control especially for non-contributing properties? If so, are the mandatory requirements in Chapter 7 appropriate, reflective of good heritage conservation planning and in the public interest, having regard for the policy context for the area?

31. Are the Plan’s Objectives compatible with the existing and planned context of the area? Should the HCD Plan be revised to recognize that properties with additional depth are appropriate for a greater scale of intensification especially for non-contributing properties?

32. Does the HCD Plan locate the alleged gateway at the correct location with consideration to the lack of contributing properties, grade changes, and other identified views?

33. Are the HCD Plan’s Objectives and Policies and Guidelines for Parks and Public Realm sufficiently clear, precise, accurate and in accordance with the Ontario Heritage Act?

2090416 Ontario Inc., 10225614 Canada Inc., and 2283169 Ontario Inc. has indicated they will shelter under issues 1-26

Attachment 3

Order of Evidence

1. City of Toronto
2. Queen & Brock Holdings Inc. & KingSett Capital Inc.
3. DKI Queen Inc.
4. 2090416 Ontario Inc., 10225614 Canada Inc., and 2283169 Ontario Inc.
5. City of Toronto – Reply (if any)