Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 29, 2024

CASE NO(S).: OLT-22-004571, OLT-22-003838

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

Applicant and Appellant: 1136974 Ontario Inc. (“Dunpar Homes”) Subject: Request to amend the Official Plan - Failure to adopt the requested amendment Purpose: To create a master plan consisting of new site and area specific policies and urban design guidelines Property Address/Description: 4195-4221 Dundas Street West and 556-564 Prince Edward Drive Municipality: City of Toronto Approval Authority File No.: 22 149111 WET 03 OZ OLT Case No.: OLT-22-004571 OLT Lead Case No.: OLT-22-004571 OLT Case Name: 1136974 Ontario Inc. (“Dunpar Homes”) 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: 1136974 Ontario Inc. (“Dunpar Homes”) Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Purpose: To permit 699 apartment and townhouse units containing retail and a relocated EMS Station Property Address/Description: 4195 Dundas Street West Municipality: City of Toronto Approval Authority File No.: 16 129328 WET 05 OZ OLT Case No.: OLT-22-003838 OLT Lead Case No.: OLT-22-003838

Heard: October 24, 2023 by video hearing

APPEARANCES:

Parties	Counsel*
1136974 Ontario Inc. (“Dunpar Homes”)	Michael Nemanic Giouzelin Mutlu
City of Toronto	Mark Crawford
Dundas Developments Limited.	Jonathan Nehmetallah

1The matter before the Ontario Land Tribunal (the “Tribunal”), is the second Case Management Conference (“CMC”) regarding the appeals of the failure of the City of Toronto (the “City”) to make a decision regarding an Application to amend the Official Plan (“OPA”).

2The purpose of the CMC was to receive status updates from all parties to organize the hearing of these appeals.

3The Tribunal was presented with a request for Party Status to Dundas Developments Limited.

4Dundas Developments Limited is the owner of lands (4231-4241 Dundas Street West) which are located directly west of the Subject Property (4195-4221 Dundas Street West and 556-564 Prince Edward Drive). The owner wishes to ensure that any approved development on the Subject Property does not adversely impact the owner's lands or the owner's ability to redevelop its lands in the future.

5There were no objections to the Status request. The Tribunal granted Party status to Dundas Developments Limited.

6Kingsway Park Ratepayers Inc. (“KPRI”) was granted party status in this matter at the first CMC. Due to its limited financial resources, KPRI has made the decision to convert its status to that of a participant. KPRI intends to submit a participant statement on the date set out in the Procedural Order.

7The Tribunal heard that the Parties are seeking a fifteen (15) day hearing.

8The Tribunal hereby schedules a hearing of these appeals commencing on Monday October 28, 2024 at 10 a.m. Fourteen (14) days have been set aside.

9Parties 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://meet.goto.com/348282861

Access code: 348-282-861

10Parties 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

11Persons 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.

12Individuals 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.

ORDER

13The Procedural Order attached as Schedule A shall govern the conduct of this proceeding.

14No further notice will be given.

15The Member is not seized.

“C. Tucci”

C. TUCCI 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 A

Case No.: OLT-22-004571, OLT-22-003838

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

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

Applicant and Appellant: 1136974 Ontario Inc. (“Dunpar Homes”) Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Purpose: To permit 699 apartment and townhouse units containing retail and a relocated EMS Station Property Address/Description: 4195 Dundas Street W Municipality: City of Toronto Approval Authority File No.: 16 129328 WET 05 OZ OLT Case No.: OLT-22-003838 OLT Lead Case No.: OLT-22-003838 OLT Case Name: 1136974 Ontario Inc. (“Dunpar Homes”) 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 October 28, 2024 at 10 a.m.
The parties’ initial estimation for the length of the hearing is 14 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 1. (See the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3. 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

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 June 30, 2024 (date – at least 120 days prior to the start of the hearing) and in accordance with paragraph 22 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.
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 City on or before June 30, 2024 (120 days before the hearing is scheduled to commence). After June 30, 2024, the applicant may not revise its proposal as described in the plans to be led in evidence in this proceeding except to address comments or Witness Statements from the City, which revisions must be made and filed on or before September 28, 2024 (30-days before the hearing is scheduled to commence), except with the consent of the City or leave of the Tribunal. In the event of a dispute, the Tribunal may be spoken to. The applicant acknowledges that any revisions made to the proposal after September 28, 2024 without the consent of the City may be grounds for a request to adjourn the hearing and/or the City shall be entitled to file one or more sur-reply to respond to any such revised proposal on or before October 3, 2024 (25 days before the hearing is scheduled to commence).
Expert witnesses in the same field shall have a meeting and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case coordinator on or before August 23, 2024 (at least 66 days prior to the start of the hearing).
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 August 29, 2024 (at least 60 days prior to the start of the hearing), the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before September 13, 2024 (at least 45 days prior to the start of the hearing), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 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 September 23, 2024 (at least 35 days prior to the start of the hearing) the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before October 8, 2024 (at least 20 days prior to the start of the hearing), the parties shall provide copies of their visual evidence to all of the other parties 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 OLT case coordinator a written response to any written evidence within twenty (20) days after the evidence is received and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 18, 2024 (at least 10 days prior to the start of 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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 21, 2024 (date – at least 7 days prior to the start of the hearing) 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

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. 1136974 Ontario Limited Luke Johnston, Dunpar Developments Inc. l.johnston@dunpar.ca Michael Nemanic, Dunpar Developments Inc. m.nemanic@dunpar.ca Giouzelin Mutlu, Dunpar Developments Inc. g.mutlu@dunpar.ca

2. City of Toronto Mark Crawford, City of Toronto Mark.crawford@toronto.ca

3. Dundas Development Limited Michael Foderick mfoderick@mccarthy.ca

PARTICIPANTS

1. Kingsway Park Ratepayers Inc. David Germain dgermain@trlaw.com

ATTACHMENT 2

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

Does the proposed development, Official Plan Amendment, 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 Section 2(h), 2(j), 2(p) and 2(r)?

Provincial Policy Statement (2020)

Is the proposed development, Official Plan Amendment, and Zoning By-law Amendments consistent with the Provincial Policy Statement (2020) pursuant to Section 3(5) of the Planning Act, including Sections 1.1.1, 1.1.3, 1.5.1, and 4.6?

A Place to Grow – Growth Plan for the Greater Golden Horseshoe (2020)

Does the proposed development, Official Plan Amendment, and Zoning By-law Amendments conform to and not conflict with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) pursuant to Section 3(5) of the Planning Act, including Sections 1.2.1, 2.2.1.4, 2.2.6, and 4.2.5?

City of Toronto Official Plan (March 2022)

Does the proposed development, Official Plan Amendment and Zoning By-law Amendments 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) b. Avenues (2.2.3) c. Healthy Neighbourhoods (2.3.1) d. The Public Realm (3.1.1) e. Built Form (3.1.3, 3.1.4) f. Parks and Open Spaces (3.2.3) g. Neighbourhoods (4.1) h. Parks and Open Space Areas (4.3) i. Mixed Use Areas (4.5) j. Interpretation (5.6) City of Toronto Guidelines
Does the proposal meet the intent and purpose of the Dundas Street West Urban Design Guidelines?
Does the proposed development meet the intent and purpose of the City of Toronto Mid-rise Buildings Performance Standards and Addendum?
Does the proposal provide an appropriate unit mix?

Site Specific Issues

Does the proposed built form fit within the existing and planned context?
Are the proposed building heights and massing appropriate along Dundas Street West and Prince Edward Drive?
Is the proposed building placement, ground floor articulation and resulting sidewalk zone along Dundas Street West appropriate?
Does the proposed development adequately limit shadow impacts and maintain sky views and sunlight access in the public realm?
Are the proposed setbacks, stepbacks and separation distances sufficient to provide good transition and to protect privacy within the proposed buildings and to adjacent properties?
Does the proposed Townhouse Block E have an appropriate frontage?
Does the proposal provide an acceptable updated Block Context Plan, Planning Rationale, Sun and Shadow Study and Pedestrian-Level Wind Study to support the proposed development?
Is the proposed vehicular access and circulation acceptable?
Is the proposed parking supply appropriate for this site?
Does the proposed development represent good planning and urban design?
Do the Official Plan Amendment and Zoning By-law Amendment applications represent good planning and are in the public interest?

Parkland Dedication

Has a parkland dedication of an appropriate size, location and configuration been proposed under Section 42 of the Planning Act?
Does the proposed development and proposed parkland dedication conform to Policy 3.2.3 of the City of Toronto Official Plan?
Has a parkland dedication been provided which conforms to Chapter 415 Article III of the Toronto Municipal Code?

Landscaping and Tree Preservation

Does the proposal provide an adequate setback and height along Dundas Street West to accommodate healthy and mature trees?
Is the extent of the proposed tree removal acceptable?

Implementation

If the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the following conditions are satisfied and the Tribunal receives confirmation from the City Solicitor that: a. The final form and content of the Official Plan and Zoning By-law Amendments are satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor; b. The owner has provided a revised Functional Servicing Report, Site Servicing Groundwater Summary, Hydrological Review Summary Form, a revised Hydrological Report, a revised Stormwater Management Report, and a revised Geotechnical Report to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; c. The owner has provided a revised Traffic Impact Study and a Transportation Demand Management Plan satisfactory to the General Manager, Transportation Services and the Chief Planner and Executive Director, City Planning; d. 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 the 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 and accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the Traffic Impact Study accepted by the General Manager, Transportation Services; e. The owner has provided loading spaces, parking spaces and accessible parking spaces, as well as drive aisle widths and turning radii, in accordance with the supply and dimensional requirements of City-wide Zoning By-law 569-2013 to the satisfaction of the General Manager, Transportation Services; f. The owner has provided a revised Pedestrian Level Wind Study, including wind tunnel test, Block Context Plan, Planning Rationale, Sun and Shadow Study to the satisfaction of the Chief Planner and Executive Director, City Planning; g. The owner has provided a revised Arborist Report, Tree Inventory and Preservation Plan, Landscape Plan, Planting Plan, and a Public Utility Plan (PUP) with a Quality Level A (QLA) overlay on the Soil Volume plan, to the satisfaction of the Supervisor, Tree Protection and Plan Review, Parks, Forestry and Recreation; h. The owner has provided a Toronto Green Standard Checklist and Statistics to the satisfaction of the Chief Planner and Executive Director, City Planning; and i. The owner has satisfied the requirements of the Toronto District School Board and the Toronto Catholic District School Board regarding signage and warning clause.

ATTACHMENT 3

1136974 Ontario Limited
City of Toronto
1136974 Ontario Limited in reply (if any)
Dundas Developments Limited

ATTACHMENT 4

Meaning of Terms Used in the Procedural Order

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written 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 (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.

1136974 Ontario Inc. (“Dunpar Homes”) v. Toronto (City), 2024 CanLII 40906

Case Summary