Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 12, 2024 CASE NO.: OLT-23-000200
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: NHD Developments Limited
Subject: Zoning Bylaw Amendment
Description: To permit two 45-storey residential towers connected by 8-storey podium & one 35-storey residential tower
Property Address: 4001 Steeles Avenue West, 5000 Jane Street, and 360 Hullmar Drive
Municipality/UT: Toronto
Municipal File No.: 22 140023 WET 07 OZ
OLT Case No.: OLT-23-000200
OLT Lead Case No.: OLT-23-000200
OLT Case Name: NHD Developments Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c.11, as amended
Applicant and Appellant: NHD Developments Limited
Subject: Site Plan Approval
Description: To permit two 45-storey residential towers connected by 8-storey podium & one 35-storey residential tower
Property Address: 4001 Steeles Avenue West, 5000 Jane Street, and 360 Hullmar Drive
Municipality/UT: Toronto
Municipal File No.: 22 140023 WET 07 OZ
OLT Case No.: OLT-23-000201
OLT Lead Case No.: OLT-23-000200
OLT Case Name: NHD Developments Limited v. Toronto (City)
BEFORE:
Carrie Hardy
This 12th day,
MEMBER
January, 2024
THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on November 12, 2024.
“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
Attachment “A”
- 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 November 12, 2024 at 10:00 a.m. at:
GoTo Meeting: https://global.gotomeeting.com/join/914098901
Access code: 914-098-901
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 identified at the case management conference are set out in Attachment 2 to this Order.
The issues are set out in the Issues List attached as Attachment 3 to this Order. With exception of removal or narrowing of the issues, there will be no changes to the Issues List unless the Tribunal permits and/or the parties consent to the changes. 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 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 as soon as possible. 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 at (https://olt.gov.on.ca/wp-content/uploads/2023/02/Video-Hearing-Guide.html).
Requirements Before the Hearing
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal to the other Parties which for the purposes of this paragraph shall consist of revised architectural plans, drawings and proposed instruments on or before June 5, 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.
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 July 15, 2024 and in accordance with paragraph 22 below. A party who intends to call and expert witness must include a copy of the witness’ Curriculum Vitae and 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 and must be served on the other parties on or before July 30, 2024.
Expert witnesses in the same discipline(s) shall have at least one meeting on or before August 14, 2024 to try to resolve or reduce the issues for the hearing. Following the experts’ meeting(s) the parties shall prepare and file a list of any agreed facts and the remaining issues to be addressed at the hearing and provide this list to the parties and the Tribunal on or before August 23, 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. 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.
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 September 6, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the Tribunal case coordinator and in accordance with paragraph 22 below.
On or before October 8, 2024, the parties shall confirm with the Tribunal if all the hearing dates are still required.
On or before October 21, 2024, the parties shall provide copies of their visual evidence to the other parties and the Tribunal in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the Tribunal case co-ordinator a written response to any written evidence within twenty-eight (28) calendar days after the evidence is received, on or before October 4, 2024 and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a Joint Document Book which shall be shared with the Tribunal case co-ordinator on or before November 1, 2024. All parties must be served with the Joint Document Book in an accessible electronic format in accordance with paragraph 22 below.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with Rule 10 of the Tribunal’s Rules.
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 and other parties at least 7 calendar 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 November 1, 2024 with a proposed schedule for the hearing that identified, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addresses), 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 to the Tribunal and the parties. The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable should it request same. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7 of the Tribunal’s Rules.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. Rule 17 of the Tribunal’s Rules shall apply 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
June 5, 2024 (94 days prior to the exchange of witness statements)
Last date to provide copies of revised proposal, including revised plans and draft instruments (if any)
July 15, 2024 (120 days prior to hearing)
Exchange of Witness Lists
July 30, 2024 (15 days after witness lists are exchanged)
Deadline to challenge witnesses or qualifications
August 14, 2024 (90 days prior to hearing)
Experts meeting(s) prior to this date
August 23, 2024 (81 days prior to hearing)
Deadline to file any Agreed Statement(s) of Facts
September 6, 2024 (67 days prior to hearing)
Exchange of Witness Statements and Experts Reports, and summoned witness outlines
October 4, 2024 (28 days after exchange of witness statements)
Exchange of Reply Witness Statements (if any)
October 8, 2024 (35 days prior to hearing)
Parties to advise if any hearing dates can be released
October 21, 2024 (22 days prior to hearing)
Exchange of visual evidence (if any)
November 1, 2024 (11 days prior to hearing)
Filing of Joint Document Book and Hearing Plan
November 12, 2024
Hearing commences (10 days)
- The Tribunal will not sit on November 18 and November 19, 2024.
ATTACHMENT 2
LIST OF PARTIES
NHD Developments Limited
Christopher J. Tanzola / Justine Reyes Overland LLP Yonge Norton Centre 5255 Yonge Street, Suite 1101 Toronto, ON M2N 6P4 Email: ctanzola@overlandllp.ca / jreyes@overlandllp.ca Tel: 416.730.0645 / 416.730.8377
City of Toronto
Sarah O’Connor City of Toronto, Legal Services Metro Hall, 26th Floor 55 John Street Toronto, ON M5V 3C6 Email: sarah.oconnor@toronto.ca Tel: 416.397.5378
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 having 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.
City of Toronto
Built Form & Scale - Building Heights and Massing
Is the proposed development scale, building typology and massing – including setbacks, stepbacks, separation distances, streetwall height, floorplate size, design, and tower heights appropriate?
Is the application located within an area of the City where this level of growth and intensification is anticipated? More specifically:
a. Is the proposed development located in a growth designation – in an urban growth centre (Policy 2.2.3), major transit station area (Policy 2.2.4.2), priority transit corridor (Policy 2.2.4.1.), or “adjacent to or near to existing and planned frequent transit” (Policy 2.2.4.10.) – in A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020)?
b. Does the Official Plan apply a land use designation that promotes significant growth? Does the proposed development conform with Policy 2.2.2 and Map 2 – Urban Structure of the Official Plan?
c. Is the proposed development located within one of the 115 Council-approved Protected Major Transit Areas, specifically SASP 643?
Does the proposed development conform with Policy 2.2.2 (Structuring Growth in the City), Policies 2.3.1.2 and 3 (Healthy Neighbourhoods), Section 3.1.3 (Built Form), 3.1.4 (Built Form - Building Types) and Policy 4.2.3 (Apartment Neighbourhoods) of the Official Plan?
Are the proposed building heights and massing compatible with the scale of existing apartment buildings on and adjacent to the site and conform with Policies 2.3.1.2 and 3 (Healthy Neighbourhoods) and 4.2.3 of the Official Plan?
Do the proposed heights meet the intent of the City of Toronto Tall Building Design Guidelines?
Does the proposed development represent over-intensification of the site?
Shadow & Wind Impacts
Does the proposed development locate and mass new buildings to minimize shadow and wind impacts and maximize sunlight access on planned Parks, proposed outdoor amenity spaces, public gathering spaces, Natural Areas (Black Creek), surrounding properties, including Listed heritage properties at 1000 Murray Ross Parkway and 4929 Jane Street, and adjacent streets?
Does it conform with Policies 2.3.1.2 and 3, Section 3.1.1 (Public Realm), Section 3.1.3 (Built Form), Section 3.2.3 (Parks and Open spaces), Policy 3.4.10 (The Natural Environment), and Policy 4.2.3 (Apartment Neighbourhoods) of the Official Plan?
Does the proposed height meet the intent of the Tall Building Design Guidelines as it relates to minimizing shadow and wind impacts and maximizing sunlight access?
Site Organization
Does the proposed development organize vehicle parking, vehicular access and ramps, loading, servicing, storage areas, and utilities to minimize their impact and improve the safety and attractiveness of the public realm, the site and surrounding areas?
Is the proposed location of outdoor amenity space and the location and design of the proposed landscaped open space appropriate?
Does the proposed development conform with Section 3.1.3 (Built Form) and Policy 4.2.3 (Apartment Neighbourhoods)?
Does the development meet the intent of the Tall Building Design Guidelines?
Does the development meet the intent of the Pet Friendly Design Guidelines for High Density Communities?
Urban Forestry
Are the proposed tree removals and plantings appropriate? In particular:
Does the proposed development conform with Policies 3.1.1.16 (Public Realm), 3.1.3.1 and 3.1.3.10 (Built Form) of the Official Plan?
Does the proposed development comply with the Municipal Code Chapter 813, Trees, Articles II and III?
Does the proposed development meet the intent of the Toronto Green Standards?
Housing
- Does the proposed development provide an appropriate mix of dwelling unit types? In particular:
i) Does the proposed development provide appropriate unit sizes and layouts, having appropriate regard to Section 3.2.1.1. of the Official Plan?
ii) Do the proposed unit sizes and layouts meet the intent of the Growing Up: Planning for Children in New Vertical Communities Guidelines?
- Does the application secure appropriate and needed improvements and renovations to the existing rental housing to extend the life of the existing buildings, and improve amenities for existing tenants, without pass-through costs to tenants? In particular:
i) Do the proposed building improvements conform with Policies 2.3.1.9 (Healthy Neighbourhoods), 3.2.1.5 (Housing), and 4.2.3 (Apartment Neighbourhoods) of the Official Plan?
ii) Are the existing rental units proposed to be secured in conformity with Policy 3.2.1.5 (Housing) of the Official Plan?
Technical Matters
Is there sufficient hard infrastructure and servicing capacity to accommodate the proposed development?
Has the applicant obtained a satisfactory peer review of the submitted Air Quality and Land Use Compatibility Study and implemented the recommendations of such a review in the design of the proposed development?
Good Planning & Policy Tests
Would approval of the proposed development and Zoning By-law Amendments represent good planning and good urban design? Would it be in the public interest?
Does the proposed development conform with the applicable policies of the Official Plan?
Would a decision to refuse the proposed development in its current form have appropriate regard to the matters of provincial interest as set out in Section 2 of the Planning Act?
Would a decision to approve the proposed development have appropriate regard for the decision of City Council as required by Section 2.1 of the Planning Act?
Would a decision to refuse the proposed development be consistent with the Provincial Policy Statement as required by Section 3(5) of the Planning Act?
Would a decision to refuse the proposed development conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe as required by Section 3(5) of the Planning Act?
Implementation
- In the event the appeals are allowed, should any final order be withheld until the following matters have been addressed:
a. the final form and content of the Zoning By-law Amendment is satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor;
b. the owner has provided a revised Functional Servicing Report, a revised Stormwater Management Report, a revised Hydrological Report and a revised Geotechnical Study, such reports to be reviewed to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
c. the owner has provided a revised Parking Study, a revised Loading Study, a revised Traffic Operations Assessment, and a revised Transportation Impact Study, to be reviewed to the satisfaction of the General Manager, Transportation Services;
d. the owner has provided a revised Pedestrian Wind Study, including a Wind Tunnel Study, such report to be reviewed with recommendations implemented as part of the amending Zoning By-laws and secured in a development agreement, to the satisfaction of the Chief Planner and Executive Director, City Planning;
e. the owner has provided an acceptable Land Use Compatibility Study and Air Quality Study, such reports to be peer reviewed by a third-party consultant on behalf of the City and at the owner's expense, with recommendations to be implemented as part of the amending Zoning By-laws and secured in a Site Plan Agreement, to the satisfaction of the Chief Planner and Executive Director, City Planning;
f. the owner has made satisfactory arrangements with the City and has entered into the appropriate agreements for the design and construction of any improvements to municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support the development, according to the accepted Functional Servicing Report, Stormwater Management Report, Geotechnical Report and Traffic Impact Study accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Transportation Services;
g. the owner has provided a revised Tree Preservation Plan and a revised Landscape Concept Plan to the satisfaction of the General Manager, Parks, Forestry and Recreation; and
h. the owner has made satisfactory arrangements and has entered into an appropriate agreement to secure the rental tenure of the 647 retained rental housing units for at least 20 years, as well as needed improvements to the existing rental property without pass-through costs to tenants, and a Construction Mitigation and Tenant Communication Plan, all to the satisfaction of the Chief Planner and Executive Director, City Planning.
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. The Order of Evidence will be described in greater detail in the Work Plan that is filed with the Tribunal.
NHD Developments Limited
City of Toronto
Reply by NHD Developments Limited (if necessary)
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.