Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 22, 2024
CASE NO(S).:
OLT-23-000818
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
1240967 Ontario Inc. & Assessment Appeals Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To facilitate the development of a 29 storey residential building
Reference Number:
20 228056 NNY 06 OZ
Property Address:
3374 Keele Street
Municipality:
City of Toronto
OLT Case No.:
OLT-23-000818
OLT Lead Case No.:
OLT-23-000818
OLT Case Name:
1240967 Ontario Inc. & Assessment Appeals Inc. v. Toronto (City)
Heard:
February 15, 2024 by video hearing
APPEARANCES:
Parties
Counsel
1240967 Ontario Inc. and Assessment Appeals Inc.
Donya Yarahmadi Calvin Lantz (in absentia)
City of Toronto
Ray Kallio
Starlight Investment CDN AM GROUP GP LP
Joe Hoffman
memorandum of oral DECISION DELIVERED BY S. BOBKA on FEBRUARY 15, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This was the second Case Management Conference (“CMC”) regarding an appeal pursuant to s. 34(11) of the Planning Act (“Act”) regarding the failure of the City of Toronto (“City”) to render a decision on a Zoning By-law Amendment (“ZBA”) application for the property municipally known as 3374 Keele Street (“Subject Property”) in the City.
21240967 Ontario Inc. and Assessment Appeals Inc. (together the “Applicant”) proposes to redevelop the Subject Property with a residential building consisting of 296 units in a podium design, being a 21-storey tower atop an 8-storey podium, for a building height of 29-storeys.
3At the previous CMC, Starlight Investment CDN AM GROUP GP LP (“Starlight”) was added as a Party and Downsview Lands Community Voice Association (“DLCVA”) was granted Participant status.
UPDATE
4In advance of the CMC, the Parties submitted a draft Procedural Order (“PO”) including Issues List for the Tribunal’s review and consideration. It was jointly suggested by the Parties that a 10-day Hearing of the Merits be set in March 2025, subject to availability in the Tribunal’s calendar.
5The Tribunal requested clarification as to the number of witnesses required. Mr. Hoffman stated that his client expected to bring forward experts in transportation, servicing and possibly built form; Mr. Kallio stated that the City expected to bring forward experts in servicing, transportation, planning and urban design; and Ms. Yarahmadi stated that the Applicant expected to bring forward three witnesses.
SCHEDULING OF FUTURE HEARING
6Upon consideration, the Tribunal agreed with the proposed path forward and scheduled a 10-day video Hearing beginning on Monday, March 10, 2025 at 10 a.m.
7Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/660145013
Access Code: 660-145-013
8Parties 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
9Persons 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 same as mentioned above.
10Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
11The Parties were directed to submit the final PO (including IL) as soon as possible for approval, and Ms. Yarahmadi committed to take the lead. It has since been received, is approved, is attached as Schedule 1 to this Decision and will govern the proceedings.
ORDER
12The Tribunal Orders that:
a) A 10-day Hearing of the Merits is scheduled as set out in paragraph [6];
b) There will be no further notice; and
c) The Member is not seized on this matter.
“S. Bobka”
S. BOBKA
MEMBER
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.
SCHEDULE 1
Ontario Land Tribunal
655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349
Toll free: 1-866-448-2248 Website: olt.gov.on.ca
Tribunaux de l’aménagement du territoire Ontario 655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca
CASE NO.: OLT-23-000818
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
1240967 Ontario Inc. & Assessment Appeals Inc.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To facilitate the development of a 29 storey residential building
Property Address:
3374 Keele Street
Municipality/UT:
City of Toronto
OLT Case No.:
OLT-23-000818
OLT Lead Case No.
OLT-23-000818
OLT Lead Case Name:
1240967 Ontario Inc. & Assessment Appeals Inc. 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 March 10, 2025 at 10:00 a.m. in accordance with the following links:
Virtual Link: https://global.gotomeeting.com/join/660145013
Audio-only: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373
Access Code: 660-145-013
The length of the hearing will be 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.
The parties and participants identified at the case management conference are listed in Attachment 2 to this Order.
The issues are set out in the Issues List attached as Attachment 3 to this Order. 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 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.
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 November 12, 2024, and in accordance with paragraph 24 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae, Acknowledgement of Expert Duty form 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 and notice of same must be served on the other parties on or before November 20, 2024.
Expert witnesses in the same field shall have a meeting on or before December 10, 2024, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting, the experts must prepare and file a Statement of Agreed Facts and Issues with the Tribunal case coordinator on or before December 20, 2024.
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, the acknowledgement of expert’s duty and the expert’s Curriculum Vitae. Copies of this information 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 he/she intends 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 time as the delivery of expert witness statements, as in paragraph 14 below.
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 14 below.
On or before January 9, 2025, the parties shall provide copies of their witness and/or expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 24 below.
On or before January 9, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 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 3, 2025, the parties shall advise the Tribunal of whether any hearing 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 of anything further in that regard.
On or before January 24, 2025, the parties may provide to all other parties a written response to any written evidence in accordance with paragraph 24 below.
On or before February 10, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
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.
On or before February 18, 2025, the parties shall prepare and file a preliminary hearing plan 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.
The Parties shall prepare a Joint Document Book which shall be shared with the OLT case coordinator on or before February 18, 2025.
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 September 11, 2024, provided that the applicant may be relieved from updating certain of the aforementioned documents with the City’s consent. The applicant acknowledges that any revisions to the proposal after that date without consent of the Parties may be grounds for a request to adjourn the hearing, except to the extent that the revised proposal seeks to resolve issues identified in the Issues List. In the event of a dispute, the Tribunal may be spoken to.
All filings shall be submitted electronically. 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 Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by paragraph 23 above. The Tribunal’s Rule 17 applies to such requests.
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
September 11, 2024
Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
November 12, 2024
Exchange of witness lists (names, disciplines and order to be called)
November 20, 2024
Last date to challenge identification of expert witness
December 10, 2024
Experts meeting prior to this date, if any
December 20, 2024
Exchange of agreed statement of facts, if any;
January 9, 2025
Exchange of witness/expert statements, expert reports, and written participant statements;
January 24, 2025
Exchange of written response to written evidence, 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
Exchange of visual evidence, if any;
February 18, 2025
Preliminary hearing plan filed with the Tribunal
February 18, 2025
Parties to file Joint Document Book
March 10, 2025
Hearing commences (10 days)
ATTACHMENT 2
LIST OF PARTIES AND PARTICIPANTS
A. PARTIES
Counsel/*Agent
1240967 Ontario Inc. & Assessment Appeals Inc.
Calvin Lantz Stikeman Elliott LLP 5300 Commerce Court West 199 Bay Street Toronto, ON M5L 1B9 E-mail: clantz@stikeman.com Tel.: 416-869-5669 Donya Yarahmadi Stikeman Elliott LLP 5300 Commerce Court West 199 Bay Street Toronto, ON M5L 1B9 E-mail: DYarahmadi@stikeman.com Tel.: 416 869 6822
City of Toronto
Ray Kallio City of Toronto, Planning and Administrative Tribunal Law Metro Hall, 26th Floor 55 John Street Toronto, ON M5V 3C6 E-mail: ray.kallio@toronto.ca Tel.: 416-397-4063
Starlight Investments CDN AM Group GP LP
Joe Hoffman Goodmans LLP 333 Bay Street Suite 3400 Toronto, ON M5H 2S7 E-mail: jhoffman@goodmans.ca Tel.: 416-597-5168
B. PARTICIPANTS
Downsview Lands Community Voice Association Inc.
Patrick O’Neill E-mail: patrickoneill8@gmail.com Tel.: 647-632-1301
ATTACHMENT 3
ISSUES LIST
ISSUES LIST OF THE CITY OF TORONTO
Provincial Policies
- Do the proposed development and Zoning By-law Amendment have appropriate regard for the matters of provincial interest as set out in Section 2 of the Planning Act, in particular Sections 2(f), (h), (o), (p), (q), and (r)?
Provincial Policy Statement
- Are the proposed development and Zoning By-law Amendment consistent with the Provincial Policy Statement, in particular Policies 1.1.1(c) and (g), 1.1.3.4 and 1.6.6.1.
Growth Plan for the Greater Golden Horseshoe (2020)
- Are the proposed development and Zoning By-law Amendment consistent with the Growth Plan, in particular Policies 2.2.1.4 (c) and (d), 3.2.7(2).
City of Toronto Official Plan
- Do the proposed development and Zoning By-law Amendment conform with the policies of the City of Toronto Official Plan with respect to:
a) Structuring Growth in the City: Integrating Land Use and Transportation (2.2(2) and (9))
b) Avenues: Reurbanizing Arterial Corridors (2.2.3)
c) The Public Realm (3.1.1)
d) Built Form (3.1.3)
e) Built Form – Building Types (3.1.4)
f) Housing (3.2.1)
g) Parks and Open Spaces (3.2.3)
h) The Natural Environment (3.4)
i) Mixed Use Areas (4.5)
City of Toronto Guidelines
Does the proposed development meet the intent and purpose of the City of Toronto Tall Building Design Guidelines, including but not limited to sections 1.3, 1.4, 2.3, 2.4, 2.5, 2.6, 3.1.1 and 4.1?
Does the proposal meet the requirements of the Toronto Green Standard?
Site Specific Issues
Can the proposed development be adequately serviced by municipal infrastructure?
Is the site organization and built form of the proposed development appropriate, including height, transition, setbacks, stepbacks, articulation, and massing, and are the resulting impacts appropriate?
Does the proposal provide an appropriate public realm, including the abutting and adjacent streetscapes?
Has the proposed development satisfactorily addressed requirements from Transport Canada and Toronto Hydro?
Does the Zoning By-law Amendment represent good planning and in the public interest?
Implementation
- In the event the Tribunal allows the appeals, in whole or in part, City Council authorize the City Solicitor to request the Ontario Land Tribunal withhold its final Order approving the Zoning By-law Amendment until such time as the City Solicitor confirms that:
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, which amongst other matters must include a holding (H) provision to address municipal servicing;
b) the owner has satisfactorily addressed matters from Engineering and Construction Services as contained in the Engineering and Construction Services Memorandum dated May 16, 2023, or any outstanding issues raised by Engineering and Construction Services, arising from the ongoing technical review (including provision of acceptable reports and studies), as they relate to the Zoning By-law Amendment application, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
c) the owner has satisfactorily addressed matters from Tree Protection and Plan Review, Urban Forestry Memorandum dated May 15, 2023, or any outstanding issues raised by Urban Forestry, arising from the ongoing technical review (including provision of acceptable reports and studies), as they relate to the Zoning By-law Amendment application, to the satisfaction of the General Manager, Parks, Forestry & Recreation.
d) The owner has satisfactorily addressed matters from Engineering and Construction Services Memorandum dated May 16, 2023, or any outstanding issues raised by Engineering and Construction Services, arising from the ongoing technical review (including provisions of acceptable reports and studies), as they relate to the Zoning By-law Amendment application, to the satisfaction of the Chief Engineer and Executive Director of Engineering and Construction Services;
e) The owner has made satisfactory arrangements with Engineering and Construction Services and enter into the appropriate financially secured agreement with the City for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support this development, according to the accepted Functional Servicing Report accepted by the Executive Director of Engineering and Construction Services; and
f) The owner has provided space within the development for installation of maintenance access holes and sampling ports on the private side, as close to the property line as possible, for both the storm and sanitary service connections, in accordance with the Sewers By-law Chapter 681.10..
ISSUES LIST OF STARLIGHT INVESTMENTS CDN AM GROUP GP LP
Built Form and Public Realm
Does the proposed development provide for an appropriate relationship to the lands immediately adjacent to the subject site at 3390 Keele Street?
Does the proposed development provide adequate setbacks and tower separation distances from the adjacent property at 3390 Keele Street?
Does the proposed development inappropriately limit the future redevelopment potential of the lands immediately adjacent to the subject site at 3390 Keele Street?
Is a mid-block connection from Keele Street to Brookwell Park appropriate and in an appropriate location taking into account the adjacent property at 3390 Keele Street and the future redevelopment of 3390 Keele Street?
Site Servicing and Transportation
Is the proposed plan for municipal services for the proposed development appropriate adequate and efficient and does the proposed servicing conflict with or preclude the adequate servicing of the adjacent property at 3390 Keele Street, including the future development of 3390 Keele Street?
Is the proposed site access driveway location appropriate and does it conflict with the existing site access driveway for the adjacent property at 3390 Keele Street?
Good Planning and Public Interest
Is the form and content, including regulatory standards, of the proposed Draft Zoning By-law Amendment appropriate?
In respect of the foregoing issues, does the proposed development including the Draft Zoning By-law Amendment represent good planning and good urban design, and is approval in the public interest?
ATTACHMENT 4
ORDER OF EVIDENCE
1240967 Ontario Inc. & Assessment Appeals Inc.
City of Toronto
Starlight Investments CDN AM Group GP LP
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.