Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
March 25, 2024
CASE NO(S).:
OLT-22-002812
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Tilzen Holdings Limited
Subject:
Request to amend the Official Plan – Refusal of request
Description:
To permit the construction of an 11-storey mixed use building with retail on the ground floor
Reference Number:
17 264567 NNY 23 OZ
Property Address:
145 Sheppard Avenue East
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-22-002812
Legacy Case No.:
PL180688
OLT Lead Case No.:
OLT-22-002812
Legacy Lead Case No.:
PL180688
OLT Case Name:
Tilzen Holdings Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Tilzen Holdings Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the construction of an 11-storey mixed use building with retail on the ground floor
Reference Number:
17 264567 NNY 23 OZ
Property Address:
145 Sheppard Avenue East
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-22-003741
Legacy Case No.:
PL180307
OLT Lead Case No.:
OLT-22-002812
Legacy Lead Case No.:
PL180688
PROCEEDING COMMENCED UNDER section 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A.
Applicant and Appellant:
Tilzen Holdings Limited
Subject:
Site Plan
Description:
To permit the construction of an 11-storey mixed use building with retail on the ground floor
Reference Number:
17 264570 NNY 23 SA
Property Address:
145 Sheppard Avenue East
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-22-003739
Legacy Case No.:
MM180036
OLT Lead Case No.:
OLT-22-002812
Legacy Lead Case No.:
PL180688
BEFORE:
P. TOMILIN
Monday, the 25th,
MEMBER
day of March, 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 January 20, 2025.
“Euken Lui”
EUKEN LUI
REGISTRAR (A)
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.
Attachment A
Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
March 25, 2024
CASE NO(S).:
OLT-22-002812
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Tilzen Holdings Limited
Subject:
Request to amend the Official Plan – Refusal of request
Description:
To permit the construction of an 11-storey mixed use building with retail on the ground floor
Reference Number:
17 264567 NNY 23 OZ
Property Address:
145 Sheppard Avenue East
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-22-002812
Legacy Case No.:
PL180688
OLT Lead Case No.:
OLT-22-002812
Legacy Lead Case No.:
PL180688
OLT Case Name:
Tilzen Holdings Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Tilzen Holdings Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the construction of an 11-storey mixed use building with retail on the ground floor
Reference Number:
17 264567 NNY 23 OZ
Property Address:
145 Sheppard Avenue East
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-22-003741
Legacy Case No.:
PL180307
OLT Lead Case No.:
OLT-22-002812
Legacy Lead Case No.:
PL180688
PROCEEDING COMMENCED UNDER section 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A.
Applicant and Appellant:
Tilzen Holdings Limited
Subject:
Site Plan
Description:
To permit the construction of an 11-storey mixed use building with retail on the ground floor
Reference Number:
17 264570 NNY 23 SA
Property Address:
145 Sheppard Avenue East
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-22-003739
Legacy Case No.:
MM180036
OLT Lead Case No.:
OLT-22-002812
Legacy Lead Case No.:
PL180688
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 January 20, 2025 at 10 a.m. through the following video link:
https://global.gotomeeting.com/join/638422541
Access code: 638-422-541
Parties 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 https://global.gotomeeting.com/install or a web application is available: https://app.gotomeeting.com/home.html
Persons who experience technical difficulties accessing the GoToMeeting application, or who only wish to listen to the event, can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889. The access code is 638-422-541
The parties’ initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 2.
The issues are set out in the Issues List attached as Attachment 3. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, which shall include revised architectural plans and drawings, to the other Parties on or before October 22, 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 October 2, 2024 and in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness’ curriculum vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before October 22, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties shall prepare and file any Statement(s) of Agreed Facts and Issues with the OLT case coordinator on or before November 6, 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 November 21, 2024, the parties shall provide copies of any witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 23 below.
On or before November 21, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before December 16, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before December 23, 2024, the parties shall provide copies of their written response(s) to any written evidence to the other parties and to the Tribunal in accordance with paragraph 23 below.
On or before December 31, 2024, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 13, 2025.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with the Tribunal’s Rules of Practice and Procedure.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 13, 2025 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
This Member is not seized.
So orders the Tribunal.
ATTACHMENT 1
SUMMARY OF DATES
DATE
EVENT
October 22, 2024
(30 days prior to Expert Witness Statements)
Deadline for Revisions to Proposed Development
October 2, 2024
(110 days prior to hearing)
Exchange of Witness Lists
October 22, 2024
(90 days prior to hearing)
Experts meeting(s) prior to this date
November 6, 2024
(75 days prior to hearing)
Deadline to File Any Agreed Statement(s) of Facts
November 21, 2024
(60 days prior to hearing)
Exchange of Witness Statements and Experts Reports, Participant Statements (if any), and summoned witness outlines (if any)
December 16, 2024
(35 days prior to hearing)
Parties to Advise If Any Hearing Dates Can Be Released
December 23, 2024
(30 days prior to hearing)
Exchange of Reply Witness Statements (if any)
December 31, 2024
(20 days prior to hearing)
Exchange of Visual Evidence (if any)
January 13, 2025
(7 days prior to hearing)
Filing of Work Plan and Joint Document Book
January 20, 2025 – January 25, 2025
Hearing
ATTACHMENT 2
LIST OF PARTIES AND PARTICIPANTS
A. PARTIES
Tilzen Holdings Limited
(Applicant/Appellant)
Daniel Artenosi / Michael Cara
Overland LLP
Yonge Norton Centre
5255 Yonge Street, Suite 1101
Toronto, ON M2N 6P4
Email: dartenosi@overlandllp.ca
Tel: (416) 730-0320
Email: mcara@overlandllp.ca
Tel: (416) 730-8844
City of Toronto
Mark Crawford
City of Toronto Legal Services
Metro Hall
55 John Street, 26th Floor
Toronto, ON M5V 3C6
Email: mark.crawford@toronto.ca
Tel: (416) 392-8864
Jiljan Inc. and Romby Investments Limited
Aaron Platt
Loopstra Nixon LLP
130 Adelaide Street West, Suite 2800
Toronto, ON M5H 3P5
Email: aplatt@LN.Law
Tel: (289) 904-2370
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.
Issues List of the City of Toronto
Does the proposal have regard to matters of provincial interest including:
Having regard to Section 2 of the Planning Act, in particular, subsections (f), and (r)?
Provincial Policy Statement, 2020
- Is the proposal consistent with the policies of the Provincial Policy Statement, 2020 including, but not limited to:
a. Managing and Directing Land Use to Achieve Efficient and Resilient Development and Land Use Patterns 1.1.1(g);
b. Implementation and Interpretation (4.0), in particular 4.6?
A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020
- Does the proposal conform to the policies of the Growth Plan including, but not limited to:
a. Delineated Built-up Areas (2.2.2), in particular, 2.2.2.3 (b);
b. Growth Forecasts (5.2.4), in particular, 5.2.4.5 (b)?
City of Toronto Official Plan
- Does the proposal conform to the policies of the City of Toronto Official Plan including, but not limited to:
a. Avenues (2.2.3), in particular, 2.2.3.2 (a) and (b);
b. Healthy Neighbourhoods (2.3.1);
c. Built Form (3.1.3);
d. Housing (3.2.1), in particular, 3.2.1.1;
e. Mixed Use Areas (4.5), in particular, 4.5.2?
Sheppard Avenue Commercial Area Secondary Plan
- Does the proposal conform to the policies of the Sheppard Avenue Commercial Area Secondary Plan including, but not limited to:
a. Density (2.2);
b. Vehicular Access and Parking (3.1), in particular 3.1.1 and 3.1.2;
c. Built Form and Streetscape (3.2), in particular 3.2.1, 3.2.1 (c) and (d);
d. Residential Protection (3.3.1)?
- Does the proposal have regard to the policies of the Sheppard Willowdale Secondary Plan including, but not limited to:
a. Density (3.4);
b. Setbacks (4.5);
c. Height (4.6);
d. Massing (4.7);
e. Transition to Neighbourhoods (4.8), in particular 4.8.1?
Site Specific Issues:
- Does the proposal provide appropriate:
a. Access to the site;
b. Site design, including servicing and loading;
c. Unit mix;
d. Parkland dedication?
Public Interest
- Is the proposed Official Plan Amendment and Zoning By-law Amendment good planning and in the public interest?
Conditions
- In the event that the Ontario Land Tribunal (formerly Local Planning Appeal Tribunal at time of receipt of these applications) allows the appeal of the Official Plan Amendment and Zoning By-law Amendment applications in whole or in part, City Council authorize the City Solicitor to request the Local Planning Appeal Tribunal to withhold its Order(s) approving the application until such time as:
a. The Tribunal has been advised by the City Solicitor that the proposed Official Plan and Zoning By-law Amendments are in a form satisfactory to the Chief Planner and City Solicitor, all to the satisfaction of the City Solicitor; and
b. The owner has submitted revised technical reports and plans including a revised Functional Servicing Report, a revised Stormwater Management Report, a revised Hydrogeological Report, and a revised Transportation Impact Study, all to the satisfaction of the Executive Director, Engineering and Construction Services.
Issues List of Jiljan Inc. and Romby Investments Limited
Does the proposal’s design unreasonably constrain the potential for the redevelopment of the lands to the immediate west?
Are there certain design features that should be precluded from the westerly façade of the proposal?
Given the fenestration on the lower floors of the proposed development, are the setbacks to the lands to the west appropriate?
Does the proposed development protect privacy within adjacent buildings by providing setbacks and separation distances from neighbouring properties and adjacent building walls containing windows? (Toronto Official Plan Policy 3.1.3.3)
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 Hearing Plan that is filed with the Tribunal.
Tilzen Holdings Limited (Applicant/Appellant)
City of Toronto
Jiljan Inc. and Romby Investments Limited
Reply by Tilzen Holdings Limited (if necessary)
Attachment to Procedural Order
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.