Fora (77 Erskine) Inc. v. City of Toronto, 2024 CanLII 118360

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: NOVEMBER 21, 2024

CASE NO.: OLT-24-000250

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

Applicant/Appellant: Fora (77 Erskine) Inc.

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

Description: To redevelop property with a 35-storey building including 377 new residential units

Reference Number: 22 205741 NNY 15 OZ

Property Address: 77 Erskine Avenue

Municipality/UT: Toronto

OLT Case No.: OLT-24-000250

OLT Case Name: Fora (77 Erskine) Inc. v. City of Toronto

BEFORE:

DALE CHIPMAN MEMBER

Thursday, the 21st day of November, 2024

THE TRIBUNAL ORDERS that further to the Decision issued on July 16th, 2024, the Procedural Order, as agreed to between the Parties and attached hereto as Schedule “A”, shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing, which is scheduled to commence on March 10th, 2025. The Tribunal has set aside 10 days for the hearing.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

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.

ISSUE DATE: NOVEMBER 21, 2024 CASE NO(S).: OLT-24-000250

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

Applicant and Appellant: Fora (77 Erskine) Inc.

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

Description: To redevelop property with a 35-storey building including 377 new residential units

Reference Number: 22 205741 NY 15 OZ

Property Address: 77 Erskine Avenue

Municipality: Toronto/Toronto

OLT Case No.: OLT-24-000250

OLT Lead Case No.: OLT-24-000250

OLT Case Name: Fora (77 Erskine) Inc. v. City of Toronto

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 March 10, 2025 at 10 a.m. at https://meet.goto.com/680885805.

3. The length of the hearing is ten (10) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

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

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

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

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

Requirements Before the Hearing

9. 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 November 25, 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.

10. 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 January 14, 2025 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.

11. Expert witnesses in the same field shall have a meeting on or before February 10, 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 February 24, 2025.

12. 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.

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 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.

14. On or before January 24, 2025, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.

15. 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.

16. On or before February 3, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before March 3, 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.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 23 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 28, 2025.

20. 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.

21. 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.

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

23. 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.

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.

BEFORE:

Dale Chipman

Date: November 21st, 2024

“Euken Lui”____

TRIBUNAL REGISTRAR

SUMMARY OF DATES

DATE	EVENT
November 25, 2024	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
January 14, 2025	Exchange of witness lists (names, disciplines and order to be called)
January 20, 2025	Last date to challenge identification of expert witness
January 24, 2025	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
February 3, 2025	Exchange of Reply Witness Statements (if any)
February 3, 2025	Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
February 10, 2025	Experts meeting prior to this date
February 24, 2025	Agreed Statement of Facts
February 28, 2025	Finalize Joint Document Book
March 3, 2025	Exchange of visual evidence (if any)
March 3, 2025	Final Hearing Plan filed with the Tribunal
March 10, 2025	Hearing commences

ATTACHMENT 1 PARTIES/PARTICIPANTS

Parties

1. Fora (77 Erskine) Inc. David Bronskill (416) 597-4299 dbronskill@goodmans.ca
2. City of Toronto Jason Davidson (416) 392-4835 jason.davidson@toronto.ca

Participants

• Tatiana Lysenko
• John Douglas Warren
• Toronto Standard Condominium Corporation No. 2034
• Claire Sumerlus
• Thomas Chan
• Darlene Hunt
• Karen Hunt
• Beverley Golds
• Michelle Pangindian
• Gregory Plant
• Jeff Wiseman

ATTACHMENT 2 ISSUES LIST

City of Toronto

77 ERSKINE AVE – ISSUES LIST

Planning Act

1. Are the proposed development and Zoning By-law Amendment consistent with the purposes of the Planning Act as set out in Section 1.1 of the Planning Act?
2. Do the proposed development and Zoning By-law Amendment have appropriate regard for the matters of provincial interest as set out in subsections 2(f), (h), (i), (j), (m), (p), (q), (r) and (s) of the Planning Act?
3. Would the approval of the proposed development and the Zoning By-law Amendment have regard for any information and material received by City Council, as required by Section 2.1 of the Planning Act?

Provincial Planning Statement (2024)

4. Are the proposed development and Zoning By-law Amendment consistent with the Provincial Planning Statement (2024), as required by Section 3(5) of the Planning Act and in particular Sections 2.1.6.a), 2.2.1, 2.4.1.3.b), 2.4.2.6.b), 3.2.2, 3.6.1, 3.6.8, 3.9.1.a), 6.1.5 and 3.1.11?

City of Toronto Official Plan

5. Are the proposed development and Zoning By-law Amendment appropriate and does the proposed development conform with the policies of the City of Toronto Official Plan, with respect to:
   1. Policy 2.4: Bringing the City Together: A Progressive Agenda of Transportation Change (in particular 2.4.2 and 2.4.15);
   2. Policy 3.1.1: The Public Realm (in particular 3.1.1.1, 3.1.1.2, 3.1.1.3, 3.1.1.6, 3.1.1.13, 3.1.1.14, 3.1.1.15, and 3.1.1.16);
   3. Policy 3.1.3: Built Form;
   4. Policy 3.1.4: Built Form – Building Types (in particular 3.1.4.7 to 3.1.4.12 inclusive);
   5. Policy 3.2.1: Housing (in particular 3.2.1.1, 3.2.1.5, 3.2.1.6, and 3.2.1.12);
   6. Policy 3.2.3: Parks and Open Spaces;
   7. Policy 4.2: Apartment Neighbourhoods (in particular 4.2.1 and 4.2.2)
   8. Policy 5.1.2: Holding By-laws;
   9. Policy 5.2.1: Secondary Plans;
   10. Policy 5.3.2: Implementation Plans and Strategies for City-Building

Yonge-Eglinton Secondary Plan

6. Do the proposed development and Zoning By-law Amendment conform with the policies of the Yonge-Eglinton Secondary Plan (OPA 405), with respect to the following:
   1. Section 1: Vision (in particular 1.1, 1.2, 1.3, and 1.3.3);
   2. Section 2.1: Area Structure – General (in particular 2.1.1);
   3. Section 2.2: The Provision of Infrastructure to Ensure A Complete Community (in particular 2.2.1);
   4. Section 2.5: Land Use (in particular 2.5.10 and 2.5.1);
   5. Section 3.1: Area-Wide Public Realm Policies (in particular 3.1.1, 3.1.3, 3.1.4, 3.1.5, 3.1.8, and 3.19);
   6. Section 3.2: Public Realm Moves (in particular 3.2.1 and 3.2.6);
   7. Section 3.3: Parks and Open Spaces;
   8. Section 4: Mobility (in particular 4.1, 4.2, 4.5, 4.13-4.15, 4.29, 4.30, 4.32);
   9. Section 5.1: Built Form Principles (in particular 5.1.1);
   10. Section 5.3: Permitted Building Types and Urban Design Standards (in particular 5.3.4, 5.3.5.b., 5.3.6, 5.3.31, 5.3.33, 5.3.34, 5.3.35, and 5.3.39);
   11. Section 5.4: Building Heights (in particular 5.4.3);
   12. Section 5.6: Sunlight and Comfort (in particular 5.6.6);
   13. Section 5.7: Amenity Space (in particular 5.7.2);
   14. Section 7: Housing (in particular 7.1);
   15. Section 8: Energy and Resilience

Public Realm

7. Does the proposed development reflect the Public Realm Moves policies of the YESP?
8. Does the development have appropriate regard to the Midtown Public Realm Implementation Strategy?
9. Does the proposed development establish appropriate relationships at grade, including provision of adequate space for pedestrian realm, streetscaping, sufficient soil volume/depth to support large canopy trees, and contributions to public space?
10. Does and should the development provide an on-site midblock connection that achieves the intent of the YESP?

Built Form

11. Is the site appropriate for a tall building?
12. Does the proposed development have appropriate regard to the Tall Building Design Guidelines? [NTD: We have many examples of where we just reference the guidelines and prefer to keep as drafted]
13. Is the proposed development compatible with the surrounding physical context?
14. Does the proposed development appropriately address and mitigate wind impacts on the site, the proposed amenity spaces, the public realm and surrounding properties?
15. Does the proposed development represent good land use planning and good urban design, with respect to the proposed tower setbacks and stepbacks, tower separation distance, massing and scale, including impact on the following matters, without limiting the generality of the foregoing:
    1. fit with the existing and planned built form context;
    2. the relationship to the public realm;
    3. appropriate front yard setbacks;
    4. appropriate tower stepbacks and setbacks;
    5. gradual transition in relation to the scale and character of the surrounding areas; and
    6. relationship to neighbouring properties, including existing and planned developments.

Amenity Space

16. Are the proposed amenity spaces appropriately designed and located for their intended uses?
17. Does the proposed development have appropriate regard to the Pet Friendly Design Guidelines and Best Practices for New Multi-Unit Buildings?

Tree Preservation

18. Does the development provide for sufficient soil volume to support tree growth in accordance with the Official Plan policies and the Toronto Green Standards?

Housing

19. Have satisfactory arrangements been made to comply with Section 3.2.1 of the Official Plan with respect to Rental Housing Demolition and Replacement?
20. Does the proposed development provide for appropriate mix of unit types and sizes to accommodate larger families, including appropriate minimum amounts of 2 and 3 bedrooms consistent with the goals of the Official Plan and the YESP and the intent of the Growing Up: Planning for Children in New Vertical Communities Urban Design Guidelines?

Transportation

21. Does the proposed development and zoning by-law amendment provide sufficient Travel Demand Management measures, parking and loading for the development?

Public Interest and Good Planning

22. Are the proposed development and Zoning By-law Amendment good planning and in the public interest?

Servicing and Infrastructure

23. Are the water, wastewater, stormwater, and other essential infrastructure of the site and surrounding areas and other relevant areas, able to accommodate the proposed development? If not, should a Holding (“H”) Symbol be placed on the Zoning By-law Amendment for the Site until such infrastructure is available to support the development?

Parkland

24. Has a parkland dedication of an appropriate size, location and configuration been proposed under Section 42 of the Planning Act?
25. Does the proposed parkland dedication conform to Chapter 415 Article III of the Toronto Municipal Code, with Policy 3.2.3 of the City of Toronto Official Plan, and with the City of Toronto Parkland Strategy?

Order If Approved

26. In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied:

a) the final form and content of the draft Zoning By-law amendment is to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;

b) the owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review as they relate to the application, to the satisfaction of the Supervisor, Tree Protection and Plan Review;

c) the owner has provided a revised Transportation Impact Study (TIS), including acceptable Travel Demand Management (TDM) measures, to the satisfaction of the General Manager, Transportation Services, and the Chief Planner and Executive Director, City Planning Division;

d) the owner has addressed all outstanding issues raised by Engineering and Construction Services, including a revised Functional Servicing Report and Stormwater Management Report, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, and the General Manager, Toronto Water;

e) the owner has made satisfactory arrangements with the City and has entered into the appropriate agreement(s) for the design and construction of any improvements to municipal infrastructure, should it be determined that upgrades and/or road improvements are required to the infrastructure to support the development, according to the accepted Engineering Reports and Transportation Impact Study accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Transportation Services; and,

f) City Council has approved the Rental Housing Demolition Application No. 22 233227 NNY 15 RH in accordance with Chapter 667 of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006 to permit the demolition of the thirty seven (37) existing rental dwelling units at 77 Erskine Avenue, and the owner has entered into, and registered on title to the lands, one or more agreements with the City, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, securing all rental housing-related matters necessary to implement City Council's decision including:

i. replacement of the existing 37 rental housing units, including the same number of units, bedroom type and size and with similar rents; and

ii. an acceptable Tenant Relocation and Assistance Plan addressing the right for existing tenants to return to a replacement rental unit on the lands at similar rents, the provision of rent gap assistance, and other assistance to lessen hardship, all to the satisfaction of the Chief Planner and Executive Director, City Planning?

ATTACHMENT 3 ORDER OF EVIDENCE

1. Fora (77 Erskine) Inc.
2. City of Toronto
3. Fora (77 Erskine) Inc., in reply (if any)

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.

1406-6692-7883