ABC Eglinton LP v Toronto (City), 2024 CanLII 126135

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 2, 2024

CASE NO(S).: OLT-24-000731

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: ABC Eglinton LP

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit redevelopment of the Property for a 19-storey mixed-use development.

Reference Number: 23 127502 NNY 08 OZ

Property Address: 444-466 Eglinton Avenue West

Municipality: Toronto

OLT Case No.: OLT-24-000731

OLT Lead Case No.: OLT-24-000731

OLT Case Name: ABC Eglinton LP 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: ABC Eglinton LP

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

Description: To permit redevelopment of the Property for a 19-storey mixed-use development.

Reference Number: 23 127502 NNY 08 OZ

Property Address: 444-466 Eglinton Avenue West

Municipality: Toronto

OLT Case No.: OLT-24-000732

OLT Lead Case No.: OLT-24-000731

Heard: November 27, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
ABC Eglinton LP	David Bronskill Rodney Gill (in absentia)
City of Toronto	Jamie Dexter Kasia Czajkowski
Cathy Rodrigues	Daniel Angelucci Michael Foderick (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY KURTIS SMITH ON November 27, 2024 AND ORDER OF THE TRIBUNAL

1The Tribunal convened the second Case Management Conference (“CMC”) in relation to the appeals filed by ABC Eglinton LP. The Decision issued on October 8, 2024 by Member S. DeBoer (“First CMC Decision”) provides the background to this matter and need not be repeated.

2The purpose of this CMC is to review and approve the Draft Procedural Order (“DPO”) for the merit hearing previously scheduled on a temporary basis, as outlined in paragraph 10 and 11 of the First CMC Decision.

3The DPO was submitted prior to the commencement of the CMC on consent of the Parties.

4In advance of the CMC the Tribunal noted that the Participant Status Request filed by Pat Sniderman was not considered at the previous CMC, although it was submitted in advance. On consent of the Parties the Tribunal granted Participant Status to Pat Sinderman.

5Counsel for Cathy Rodrigues, Mr. Angelucci informed the Tribunal that a settlement has been reached in principle with the Appellant. Therefore no issues have been identified in the Issues List (“IL”) of the DPO. Mr. Angelucci requested that “in the unlikely event” the settlement fails, that his client can request additional issues be added. Paragraph 5 of the DPO outlines the process for a Party to request changes to the IL. Therefore, in the event the Settlement between the Appellant and Cathy Rodrigues fails, the Tribunals will consider their request to add issues to the IL.

ORDER

6THE TRIBUNAL ORDERS THAT the Procedural Order appended as Schedule 1 shall govern the conduct of this proceeding.

“Kurtis Smith”

Kurtis Smith 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.: OLT-24-000731

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: ABC Eglinton LP

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit redevelopment of the Property for a 19-storey mixed-use development.

Reference Number: 23 127502 NNY 08 OZ

Property Address: 444-466 Eglinton Avenue West

Municipality: Toronto

OLT Case No.: OLT-24-000731

OLT Lead Case No.: OLT-24-000731

OLT Case Name: ABC Eglinton LP 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: ABC Eglinton LP

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

Description: To permit redevelopment of the Property for a 19-storey mixed-use development.

Reference Number: 23 127502 NNY 08 OZ

Property Address: 444-466 Eglinton Avenue West

Municipality: Toronto

OLT Case No.: OLT-24-000732

OLT Lead Case No.: OLT-24-000731

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 Tuesday, June 17, 2025, at 10:00 a.m. as directed in the Tribunal's Decision and Order.

3. The length of the hearing will be about 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. 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/guides/).

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 at least one hundred and eighteen (118) calendar days before the hearing (on or before Wednesday, February 19, 2025). 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 Monday, March 10, 2025 (99 days before the hearing is scheduled to commence).

10. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing 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 at least nineteen days (19) days prior to date for Expert Witness Statements as stated in Section 14 (on or before Friday, March 28, 2025), 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 Wednesday, April 16, 2025 (sixty-two (62) calendar days prior to the scheduled commencement of the hearing) or the witness may not give oral evidence at the hearing. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

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 Wednesday, April 16, 2025 (sixty-two (62) calendar days prior to the scheduled commencement of the hearing), the Parties shall provide copies of their expert witness statements (full disclosure including reports) to the other Parties.

15. On or before Friday, May 2, 2025 (forty-six (46) calendar days prior to the scheduled commencement of the hearing) the Parties may provide to all other Parties a written response to any written evidence.

16. On or before Friday, May 9, 2025 (thirty-nine (39) calendar days prior to the scheduled commencement of the hearing), 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 Friday, May 16, 2025 (thirty-two (32) calendar days prior to the scheduled commencement of the hearing), 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 Friday, May 16, 2025 (thirty-two (32) days before the commencement of the hearing), 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 Wednesday, May 28, 2025 (20 days before the hearing is scheduled to commence), 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 Friday, January 17, 2025 (eighty-four (84) days before Expert Witness Statements as in Section 14). 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
Friday, January 17, 2025 (84 days before Witness Statement Date)	Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
Wednesday, February 19, 2025 (118 days prior to hearing)	Exchange of witness lists (names, disciplines and order to be called)
Monday, March 10, 2025 (99 days prior to hearing)	Last date to challenge identification of expert witness
Friday, March 28, 2025 (81 days prior to hearing)	Experts meeting prior to this date
Friday, March 28, 2025 (81 days prior to hearing)	Agreed Statement of Facts
Wednesday, April 16, 2025 (62 days prior to hearing)	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
Friday, May 2, 2025 (46 days prior to hearing)	Exchange of Reply Witness Statements (if any)
Friday, May 9, 2025 (39 days prior to hearing)	Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)
Friday, May 16, 2025 (32 days prior to hearing)	Exchange of visual evidence (if any)
Friday, May 16, 2025 (32 days prior to hearing)	Final Work Plan filed with the Tribunal
Wednesday, May 28, 2025 (20 days prior to hearing)	Finalize Joint Document Book
Tuesday, June 17, 2025	Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel/*Agent

1. City of Toronto Kasia Czajkowski / Jamie Dexter City of Toronto, Legal Services Metro Hall, 26th Floor 55 John Street Toronto, Ontario M5V 3C6 E-mail: Kasia.Czajkowski@toronto.ca / Jamie.Dexter@toronto.ca Tel: 416-338-5725 / 416-394-2799

2. ABC Eglinton LP Rodney Gill / David Bronskill Goodmans LLP Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 E-mail: rgill@goodmans.ca / dbronskill@goodmans.ca Tel: 416-597-4136 / 416-597-4299

3. Cathy Rodrigues Daniel Angelucci / Michael Foderick McCarthy Tetrault LLP Suite 5300 TD Bank Tower Box 48, 66 Wellington Street West Toronto, ON M5K 1E6 E-mail: dangelucci@mccarthy.ca / mfoderick@mccarthy.ca Tel: 416-601-7569 / 416-601-7783

B. PARTICIPANTS

Alison Phillips Gerri Richman James and Rebecca Norman Lauren Goldberg Michelle Zorn Peter Danson Susan Levin Luke Slan Reza Moazezi Pat Sniderman

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

Planning Act

1. Do the proposed Official Plan and Zoning By-law Amendment have appropriate regard for the matters of provincial interests as set out in Section 2 of the Planning Act, including subsections 2(h), (n), (p), and (r)?
2. Would the approval by the Tribunal of the proposed Official Plan and Zoning By-law Amendment have regard for any information and material received by City Council, in accordance with Subsection 2.1(2) of the Planning Act?

Provincial Planning Statement (2024)

3. Are the Official Plan Amendment, Zoning By-law Amendment, and proposed development consistent with the Provincial Planning Statement (2024) as required by Section 3(5) of the Planning Act, including policies 2.2, 2.3.1, 2.4.1, and 6.1.5?

City of Toronto Official Plan

4. Is the proposed amendment to the Official Plan consistent with the general intent of the Official Plan?
5. Does the proposed Zoning By-law Amendment conform with the policies of the City of Toronto Official Plan, including the policies related to: a) Structuring Growth in the City (Section 2.2); b) Healthy Neighbourhoods (Section 2.3.1); c) Public Realm (Section 3.1.1); d) Built Form (Sections 3.1.3 and 3.1.4); e) Housing (Section 3.2.1); f) Mixed Use Areas (Section 4.5); and g) Implementation (Sections 5.1.2, 5.2.1, 5.3.1, 5.3.2, 5.6)?

Yonge-Eglinton Secondary Plan

6. Do the proposed Official Plan and Zoning By-law Amendment conform with the policies of the Yonge-Eglinton Secondary Plan?

City of Toronto Guidelines

7. Does the proposed development meet the intent and purpose of The Tall Building Design Guidelines?
8. Does the proposal meet the requirements of the Toronto Green Standard?
9. Does the proposal meet the intent and purpose of the Pet Friendly Design Guidelines for High Density Communities (2019)?

Site-Specific Issues

Built Form, Height, Massing and Density

10. Is the site organization and built form of the proposed development appropriate, and more specifically: a) Are the proposed building configuration/orientation, height, tower floorplate size and massing appropriate? b) Are the proposed setbacks, step backs and separation distances appropriate? c) Does the proposal provide an appropriate transition to surrounding land uses and built forms? d) Are the shadow impacts from the proposed development acceptable? e) Are the wind impacts from the proposed development acceptable?

Transportation

11. Is the proposed parking supply appropriate?
12. Is the proposed laneway conveyance of 3.0 metres appropriate?

Public Interest and Good Planning

13. Do the proposed Official Plan and Zoning By-law Amendment provide for good planning and good urban design, and are they in the public interest?

Conditions

14. If the proposed development is approved in whole or in part, should the Tribunal's Order be withheld until the following conditions are satisfied, and the Tribunal has received confirmation from the City Solicitor that: a. The form and content of the Official Plan Amendment and Zoning By-law Amendment is satisfactory to the Executive Director, Development Review Division, the Chief Planner and Executive Director, City Planning Division, and the City Solicitor; b. The Owner has submitted a revised Functional Servicing Report, Stormwater Management Report, and Hydrogeological Review, including the Foundation Drainage Report or addendums ("Engineering Reports"), to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water; c. The Owner has secured the design and provision of financial securities for any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Engineering Reports, to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water, should it be determined that improvements or upgrades are required to support the development, according to the accepted Engineering Reports, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water; d. The Owner has submitted a revised Transportation Impact Study or addendum, acceptable to, and to the satisfaction of, the General Manager, Transportation Services and the Chief Engineer and Executive Director, Engineering and Construction Services and that such matters arising from such study, be secured if required; e. The Chief Planner and Executive Director, City Planning Division, has approved the Rental Housing Demolition applications (23 127667 NNY 08 RH) under Chapter 667 Residential Rental Property Demolition and Conversion Control of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006, which allows for the demolition of the existing rental units on the sites, 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; and f. Should it be determined that upgrades are required to the infrastructure to support the development according to the accepted Functional Servicing Report and/or the Transportation Impact Study, City Council direct the City Solicitor and appropriate City staff to request that a Holding provision (H) be included in the final form of the site specific Zoning By-law Amendment, not to be lifted until such time as the owner has made satisfactory arrangements, including entering into appropriate agreement(s) with the City, for the design and construction of any improvements to the municipal infrastructure and the provision of financial securities to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and General Manager, Transportation Services?

B. Cathy Rodrigues

No issues at this time.

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.

A. ABC Eglinton LP B. City of Toronto C. Cathy Rodrigues D. ABC Eglinton LP (in Reply, 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.