Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
October 31, 2024
CASE NO(S).:
OLT-24-000676 OLT-24-000198
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Nipigon Investments Inc. and Nipigon Property Limited
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a 50-storey residential building
Reference Number:
23 198805 NNY 18 OZ
Property Address:
26, 28, 30, 32 and 34 Nipigon Ave
Municipality/UT:
Toronto
OLT Case No.:
OLT-24-000676
OLT Lead Case No.:
OLT-24-000676
OLT Case Name:
Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Nipigon Investments Inc. and Nipigon Property Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a 50-storey residential building
Reference Number:
23 198805 NNY 18 OZ
Property Address:
26, 28, 30, 32 and 34 Nipigon Ave
Municipality/UT:
Toronto
OLT Case No.:
OLT-24-000677
OLT Lead Case No.:
OLT-24-000676
OLT Case Name:
Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, as amended
Appellant:
Nipigon Investments Inc. and Nipigon Property Limited
Subject:
Site Plan
Description:
To permit a 50-storey residential building
Reference Number:
23 212767 NNY 18 SA
Property Address:
26, 28, 30, 32 and 34 Nipigon Avenue
Municipality/UT:
City of Toronto
OLT Case No.:
OLT-24-000198
OLT Lead Case No.:
OLT-24-000198
OLT Case Name:
Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City)
Heard:
October 23, 2024, by Video Hearing
APPEARANCES:
Parties
Counsel
Nipigon Investments Inc. and Nipigon Property Limited
David Bronskill Rodney Gill (in absentia)
City of Toronto
Jamie Dexter Jessica Braun (in absentia)
Metrolinx
Jessica Karban Christel Higgs (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON October 23, 2024, AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal is a second Case Management Conference (“CMC”) relating to Appeals pursuant to s. 22(7) and s. 34(11) of the Planning Act (“Act”), and a more recent Appeal, administratively combined, under s.114(15) of the City of Toronto Act in the City of Toronto (“City” / “Toronto”). The Appeals are the result of the City’s refusal of applications for an Official Plan Amendment (“OPA”), a Zoning By-law Amendment (“ZBA”), and a Site Plan Application (“SPA”) (together, the “Appeals” / “Applications”).
2The Appeals have been filed by Nipigon Investments Inc. and Nipigon Property Limited (“Appellants” / “Applicants”), as owners of the properties municipally known as 26, 28, 30, 32, and 34 Nipigon Avenue in Toronto (“Subject Lands”).
3The Applications are seeking permission to redevelop the Subject Lands with a 50-storey residential building on top of a three-storey podium, with a total height of 165.3 metres (“m”). The total proposed gross floor area is approximately 38,686 square metres, resulting in a floor space index of 17 times the lot area. The Applications propose 569 residential units, 438 bicycle parking spaces, and 132 vehicle parking spaces (“Proposal”).
4The Subject Lands are located on the north side of Nipigon Avenue, one block south of Steeles Avenue East, and approximately 160 m southeast of the intersection at Yonge Street and Steeles Avenue East and are currently occupied by three single-storey detached homes and two two-storey detached homes.
5Counsel for Metrolinx informed the Tribunal that expropriation of the Subject Lands continues to remain imminent, and that while the registration has not yet occurred, Metrolinx is still anticipating Ministerial approval by November 2024.
SETTLEMENT HEARING REQUEST AND PROCEDURAL ORDER
6Following the last CMC, the Tribunal was advised that a Settlement Proposal (“Settlement”) has been reached between the City and the Applicant, approved on October 9, 2024, which does not include Metrolinx.
7After hearing submissions, the Tribunal determined that a request for a contested Settlement Hearing scheduled for a period of five (5) days would be appropriate, based on the number of anticipated witnesses. The Applicant and the City are expected to pursue a Tribunal Decision allowing the Appeals, and approval of the Applications, through an Interim Order, and the City did not expect to present any witness testimony related to the Settlement.
8Therefore, the Tribunal has scheduled a contested Settlement Hearing commencing on Monday, February 24, 2025, to Friday, February 28, 2025, at 10 a.m. by Video Conference.
GoTo Meeting: https://global.gotomeeting.com/join/765631861
Access Code: 765-631-861
9Parties 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
10Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: Toll-Free 1(888) 299-1389 or +1 (647) 497-9391. The Access Code is indicated above.
11Individuals 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 Video Hearing 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.
12A draft Procedural Order (“PO”) was submitted, and the Tribunal provided direction that all four Participants should be included in the PO and that Issue 2, should more appropriately reflect legislative changes implementing the requisite consistency with the new Provincial Planning Statement 2024 (“New PPS”), noting its effective date of October 20, 2024. The Tribunal also noted that the legislative changes revoked the Growth Plan for the Greater Golden Horseshoe, 2020, which resulted in the Tribunal’s direction that Issue 4 should, accordingly, be removed from the Issues List. Subsequent to the CMC, the Parties submitted the final PO on consent, which is now approved by the Tribunal, as set out in Schedule 1 to this Decision below and will guide future proceedings related to the matter.
ORDER
13THE TRIBUNAL ORDERS that:
a) The date and particulars of the Hearing are set out above; and,
b) The directions provided in this Decision are so ordered.
14The Member is not seized of this matter.
15There will be no further notice.
“Steven T. Mastoras”
STEVEN T. MASTORAS
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-24-000676 OLT-24-000198
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Nipigon Investments Inc. and Nipigon Property Limited
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a 50-storey residential building
Reference Number:
23 198805 NNY 18 OZ
Property Address/Description:
26, 28, 30, 32 and 34 Nipigon Ave
Municipality:
City of Toronto
OLT Case No.:
OLT-24-000676
OLT Lead Case No.:
OLT-24-000676
OLT Case Name:
Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Nipigon Investments Inc. and Nipigon Property Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a 50-storey residential building
Reference Number:
23 198805 NNY 18 OZ
Property Address/Description:
26, 28, 30, 32 and 34 Nipigon Ave
Municipality:
City of Toronto
OLT Case No.:
OLT-24-000677
OLT Lead Case No.:
OLT-24-000676
OLT Case Name:
Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, as amended
Appellant:
Nipigon Investments Inc. and Nipigon Property Limited
Subject:
Site Plan
Description:
To permit a 50-storey residential building
Reference Number:
23 212767 NNY 18 SA
Property Address/Description:
26, 28, 30, 32 and 34 Nipigon Ave
Municipality:
City of Toronto
OLT Case No.:
OLT-24-000198
OLT Lead Case No.:
OLT-24-000198
OLT Case Name:
Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City)
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
The video hearing will begin on February 24, 2025 at 10:00 a.m.
The length of the hearing is five (5) 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.
The parties and participants identified at the case management conference are set out in Attachment 2. See Attachment 4 for the meaning of these terms.
The issues are set out in the Issues List attached as Attachment 3. 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 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.
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 December 13, 2024, and in accordance with paragraph 23 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 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 of Practice and Procedure and notice of same must be served on the parties on or before December 20, 2024.
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, and updated supporting documents and reports to the other parties on or before December 20, 2024. 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.
Expert witnesses in the same field shall have at least one meeting on or before January 17, 2025 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 January 17, 2025.
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 14 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. 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 parties at the same time as the delivery of witness statements, as in paragraph 14.
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 14 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 January 24, 2025, the parties shall provide copies of their witness statements 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 January 24, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before February 7, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before February 14, 2025, 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 on or before February 7, 2025, 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 February 14, 2025.
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 February 14, 2025, 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 or as permitted in paragraph 10. The Tribunal’s Rule 17 applies to such requests.
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.
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.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
ATTACHMENT 1 SUMMARY OF DATES
| DATE | EVENT |
|---|---|
| December 13, 2024 | Exchange of witness lists (names, disciplines and order to be called) |
| December 20, 2024 | Last date to challenge identification of expert witness |
| December 20, 2024 | Last date to provide copies of revised proposal, including all revised plans and drawings (if any) |
| January 17, 2025 | Experts meeting prior to this date |
| January 17, 2025 | Agreed Statement of Facts |
| January 24, 2025 | Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements |
| February 7, 2025 | Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any) |
| February 7, 2025 | Exchange of Reply Witness Statements (if any) |
| February 14, 2025 | Exchange of visual evidence |
| February 14, 2025 | Final Work Plan filed with the Tribunal |
| February 14, 2025 | Finalize Joint Document Book |
| February 25, 2025 | Hearing commences |
ATTACHMENT 2 PARTIES/PARTICIPANTS
Parties
- Nipigon Investments Inc. and Nipigon Property Limited
Counsel: Rodney Gill, Goodmans LLP rgill@goodmans.ca 416.597.4136
David Bronskill
416.597.4299
- City of Toronto
Counsel:
Jessica Braun
416.392.7237
Jamie Dexter
416.394.2799
- Metrolinx
Counsel:
Christel Higgs
416.947.6700
Participants
Alavi, Shala (416) 474-0182 sh_alavi@hotmail.com
Harrison, Dale (647) 238-9221 dalerharrison@gmail.com
Petruzzo, Tony (647) 402-8258 tpetruzzo@gmali.com
Seifkar, Navid (416) 505-2454 navid.seifkar@yahoo.com
ATTACHMENT 3 ISSUES LIST
Nipigon Investments Inc. and Nipigon Property Limited
N/A
City of Toronto
N/A
Metrolinx
Do the proposed Official Plan amendment (OPA), zoning amendment (ZBA) and Site Plan Approval application (SPA) have regard to the matters of provincial interest as required by section 2 of the Planning Act as described in section 1.1(c)?
Are the proposed OPA and ZBA consistent with the transit supportive and infrastructure protection policies of the Provincial Planning Statement, 2024, as required by the Planning Act including Chapter 1: Introduction – Vision (pg 1), Chapter 1: Introduction – Role of the Provincial Planning Statement (pg 2), Relationship with Provincial Plans (pg 5), 2.1(6.a), 2.3.1(2.a-e), 2.3.1(3), 2.3.1(6), 2.4.1(2.c), 2.4.1(3.a), 2.4.2(6.a-c), 2.4.3(1), 2.8.2(1), 2.8.2(2), 2.9(1.b), 3.1(1.a-c), 3.1(2.a,b), 3.2(1), 3.2(3), 3.3(1-3), 3.3(5), 3.4(1.a-b), 6.2(1.a, d), 6.2(8) (and associated definitions) and relevant/associated transition regulations?
Do the proposed OPA, ZBA and SPA conform with the transit policies of the City of Toronto Official Plan including 2.1(1a), 2.1(1d), 2.2(1b), 2.2(1c), 2.2(3), 2.2(4), 2.2(6), 2.2(7)?
Do the proposed OPA, ZBA and SPA have appropriate regard for the transit policies of the City of Toronto Yonge North Secondary Plan (OPA 615, currently under appeal at the OLT) including 1.4, map 49-10?
Do the proposed OPA, ZBA and SPA consider the Yonge North Subway Extension Updated Environmental Project Report Addendum April 14, 2022?
Do the proposed OPA, ZBA and SPA and technical reports accurately reflect and incorporate the Yonge North Subway Extension project as it relates to the appellant’s lands?
To what extent, if at all, do the OPA, ZBA and SPA provide for the construction and/or use of the properties for transit-related purposes?
Do the proposed OPA, ZBA and SPA represent good land use planning?
ATTACHMENT 4 ORDER OF EVIDENCE
Nipigon Investments Inc. and Nipigon Property Limited
City of Toronto
Metrolinx
Nipigon Investments Inc. and Nipigon Property Limited, in reply, if any
ATTACHMENT 5
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.
1392-2267-4959