Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 03, 2024
CASE NO(S).: OLT-23-000836
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kaneff Properties Limited
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of a 29-storey apartment building
Reference Number: OZ 20/007 W4
Property Address: 3575 Kaneff Crescent
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-23-000836
OLT Lead Case No.: OLT-23-000836
OLT Case Name: Kaneff Properties Limited v. Mississauga (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kaneff Properties Limited
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of a 29-storey apartment building
Reference Number: OZ 20/007 W4
Property Address: 3575 Kaneff Crescent
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-23-000837
OLT Lead Case No.: OLT-23-000836
OLT Case Name: Kaneff Properties Limited v. Mississauga (City)
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Kaneff Properties Limited
Subject: Site Plan
Description: To permit the development of a 29-storey apartment building
Reference Number: SP 22-75 W4
Property Address: 3575 Kaneff Crescent
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-23-000838
OLT Lead Case No.: OLT-23-000836
OLT Case Name: Kaneff Properties Limited v. Mississauga (City)
Heard: December 1, 2023 via Video Hearing
APPEARANCES:
Parties
Counsel
Kaneff Properties Limited
Mark Flowers Narmada Gunawardana
City of Mississauga
Alex Ciccone Peter Pickfield (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED ON DECEMBER 1, 2023 BY S. DEBOER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision arises from the first Case Management Conference (“CMC”) held in preparation for a hearing of the merits of the appeal by Kaneff Properties Limited pursuant to s. 22(7), 34(11) and 41(12) of The Planning Act due to the failure of the City of Mississauga (“City”) to make a decision concerning the Official Plan Amendment Application (“OPA”) and the Zoning By-law Amendment Application (“ZBA”) and Site Plan Application (“SPA”) for the property municipally known as 3575 Kaneff Crescent (“Subject Property”).
2The purpose of the CMC was to consider requests for Party or Participant status, to consider the proposed Procedural Order (“PO”) and Issues List (“IL”) and to set a date for the hearing of the merits.
3The Tribunal approved and marked the Affidavit of Service by Olga Karmanova, dated Tuesday November 7, 2023, as Exhibit 1 to the hearing.
BACKGROUND
4The Subject Property is located in the Downtown Fairview Character Area and is designated Residential High Density. The Downtown Fairview Character Area permits a maximum of 25 storeys and a Floor Space Index (“FSI”) of 1.5 – 2.0. The proposed OPA is a site-specific amendment to permit a building height of 40 storeys and a maximum FSI of 12.0. A site-specific ZBA is required to change the zoning from RA5 – 4 to RA5 – Special Exception Zone to permit the proposed development with various site-specific development standards.
STATUS REQUESTS
5The Tribunal did not receive any requests for status, prior to, or during, the CMC.
OPPORTUNITIES FOR RESOLUTION
6The Tribunal canvassed the Parties with respect to the opportunities for settlement, including the use of Tribunal-led mediation. The Parties stated that they were open to Tribunal-led mediation and will request that a mediation assessment be completed through the case coordinator.
PROCEDURAL ORDER AND ISSUES LIST
7The Tribunal had received and reviewed the proposed PO and IL prior to the CMC. The Tribunal reviewed the PO and IL with the Parties and approves of its contents.
SCHEDULING OF HEARING
8Based on the number of witnesses the Parties intend to call, the Tribunal has scheduled a Merit Hearing to proceed by video conference, beginning at 10 a.m. on Monday, October 7, 2024, to Friday, October 11, 2024 and continuing Wednesday, October 16, 2024 to Friday, October 18, 2024, for a total duration of eight (8) days.
9Parties and Participants are asked to log in to 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/909787981
Access code: 909-787-981
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 in to an audio-only telephone line: +1 (647) 497-9391 or Toll-Free 1-888-455-1389. The access code is as mentioned above in paragraph 9.
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 Video Hearing 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 TRIBUNAL ORDERS that a Merit Hearing will proceed by video conference Monday, October 7, 2024, to Friday, October 11, 2024, and continue Wednesday, October 16 to Friday October 18, 2024, starting each day at 10 a.m., for a duration of eight days. The Tribunal will not sit on Monday, October 14, 2024 nor Tuesday, October 15, 2024.
14The Procedural Order is to govern the procedures leading up to and including the Video Hearing as set out in Schedule 1 and is in full force and effect on the issue date of this Order.
15There will be no further notice.
16The Member is not seized.
“S. deBoer”
S. DEBOER
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
CASE NO(S).: OLT-23-000836
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kaneff Properties Limited
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of a 29-storey apartment building
Reference Number: OZ 20/007 W4
Property Address: 3575 Kaneff Crescent
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-23-000836
OLT Lead Case No.: OLT-23-000836
OLT Case Name: Kaneff Properties Limited v. Mississauga (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kaneff Properties Limited
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of a 29-storey apartment building
Reference Number: OZ 20/007 W4
Property Address: 3575 Kaneff Crescent
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-23-000837
OLT Lead Case No.: OLT-23-000836
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kaneff Properties Limited
Subject: Site Plan
Description: To permit the development of a 29-storey apartment building
Reference Number: SP 22-75 W4
Property Address: 3575 Kaneff Crescent
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-23-000838
OLT Lead Case No.: OLT-23-000836
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 Monday, October 7, 2024, at 10:00 a.m. via videoconference. The Tribunal will not sit on Monday, October 14, nor Tuesday, October 15, 2024, the hearing will resume on Wednesday, October 16 and will conclude on Friday October 18, 2024. No further notice shall be required.
The parties’ initial estimation for the length of the Hearing is 8 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.
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 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
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 Friday, June 28, 2024, 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.
Expert witnesses in the same field shall have a meeting on or before Friday, July 19, 2024, and use best efforts to try to resolve or reduce the issues for the Hearing. Following the experts’ meeting, and if the expert witnesses reach an agreement, the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Thursday, August 8, 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 13 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 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 13 below.
On or before Friday, August 16, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator in accordance with paragraph 22 below.
On or before Friday, August 16, 2024, a participant shall provide copies of their written participant statement to the other parties and to the OLT case co-ordinator 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 Friday, August 30, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required. If the parties agree that 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 this regard.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence Monday, September 16, 2024, in accordance with paragraph 22 below.
On or before Friday, September 20, 2024, 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.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, September 27, 2024.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, September 30, 2024, 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.
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.
All filings shall be submitted electronically and in hard copy, if requested by the Tribunal. 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.
A summary of the various procedural dates is contained in Attachment 4.
This Member is not seized.
So orders the Tribunal.
ATTACHMENT 1
LIST OF PARTIES AND PARTICIPANTS
1. PARTIES
Kaneff Properties Limited
Mark Flowers and Narmada Gunawardana
Davies Howe LLP
425 Adelaide Street West, 10th Floor
Toronto, ON M5V 3C1
markf@davieshowe.com and narmadag@davieshowe.com
Tel: (416) 977-7088
Fax: (416) 977-8931
City of Mississauga
Peter Pickfield and Alex Ciccone
Garrod Pickfield LLP
9 Norwich Street West
Guelph, ON N1H 2G8
pickfield@garrodpickfield.ca and aciccone@garrodpickfield.ca
Tel: (519) 837-0500
Fax: (519) 763-2204
2. PARTICIPANTS
None
ATTACHMENT 2
ISSUES LIST
City of Mississauga
- Does the proposed development have regard to matters of Provincial Interest as outlined in Section 2 of the Planning Act as it relates to:
(h) the orderly development of safe and healthy communities;
(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;
(j) the adequate provision of a full range of housing, including affordable housing;
(p) the appropriate location of growth and development;
(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;
(r) the promotion of built form that
(i) is well-designed,
(ii) encourages a sense of place, and
(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant?
Provincial Policies
- Does the proposed development demonstrate consistency with the Provincial Policy Statement 2020, including but not limited to Section 1.1.3 Settlement Areas and Section 1.4 Housing, including but not limited to:
a. Policy 1.1.3.2 a - Land use patterns within settlement areas will achieve densities and a mix of uses that efficiently use land, resources, infrastructure, public service facilities and transit;
b. Policy 1.1.3.3 - Planning authorities shall identify appropriate locations and promote opportunities for intensification and redevelopment;
c. Policy 1.3.4 – Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while maintaining appropriate levels of public health and safety; and
d. Policy 1.4.3 - Planning authorities shall provide for an appropriate range and mix of housing types and densities to meet projected needs of current and future residents of the regional market area?
- Does the proposed development conform to the Growth Plan for the Greater Golden Horseshoe, including but not limited to:
a. Policy 2.2.1.3 a – establish a hierarchy of settlement areas, and of areas within settlement areas;
b. Policy 2.2.1.3 c – Municipalities shall undertake integrated planning to manage forecasted growth which will provide direction for an urban form that will optimize infrastructure, particularly along transit and transportation corridors, to support the achievement of complete communities through a more compact built form;
c. Policy 2.2.2.3 b – Municipalities will identify the appropriate type and scale of development in strategic growth areas and transition of built form to adjacent uses;
d. Policy 2.2.2.3 f – municipalities will develop a strategy to achieve the minimum intensification target and intensification throughout the delineated built-up area, which will be implemented through official plan policies and designations, updated zoning and other supporting documents;
e. Policy 2.2.4.3 b - Major Transit Station Areas on Priority transit corridors will be planned for a minimum density target of 160 residents and jobs per hectare for those that are served by light rail or bus rapid transit;
f. Policy 2.2.4.9 c – Municipalities shall support development within major transit station areas by providing alternative development standards, such as reduced parking standards;
g. Policy 2.2.6.2 d – Municipalities will support the achievement of complete communities by planning to diversify their overall housing stock across the municipality; and
h. Policy 5.2.4.5 b – Municipalities may plan for development beyond the horizon of this plan for strategic growth areas subject to minimum density targets provided that the type and scale of the built form for the development would be contextually appropriate?
Region of Peel Official Plan, 2018
- Does the proposed development conform to the Region of Peel Official Plan in relation to Section 5.3 Urban System, as it relates to:
a. Achieving intensification while taking into account the characteristics of existing communities, including policies 5.3.1.4, 5.3.1.5, 5.3.1.7, and 5.3.2.6; and
b. Policies pertaining to urban growth centres and the regional intensification corridor, including policies 5.3.3.1.1 and 5.3.3.2.4 d), f) and h)?
Mississauga Official Plan
- Does the proposed development conform to the Mississauga Official Plan, including but not limited to policies in:
a. Chapter 5: Direct Growth - Sections 5.3 City Structure (5.3.1), Corridors (5.4.4) and 5.5 Intensification Areas (5.5.2, 5.5.3, 5.5.4 and 5.5.13);
b. Chapter 7: Complete Communities – Section 7.2 Housing (7.2.2 b);
c. Chapter 9: Build a Desirable Urban Form – Sections 9.1 Introduction (9.1.3,
9.1.10 a), c) and e) and 9.1.11; 9.2.1 Intensification Areas (9.2.1.10, 9.2.1.11,
9.2.1.14, 9.2.1.15, 9.2.1.16, 9.2.1.25), 9.3 Public realm (9.3.5.5, 9.3.5.6 and 9.3.5.7) , and 9.5 Site Development and Buildings (9.5.1.1, 9.5.1.2 e), f), h), i), j),
k), m), 9.5.1.5, 9.5.3.9, 9.5.3.10, 9.5.4.1, 9.5.4.2, 9.5.4.5);
d. Chapter 12: Downtown – Sections 12.1.1 General (12.1.1.2 and 12.1.1.4), 12.1.2 Residential (12.1.2.2) and 12.3 Downtown Fairview (Map 12-3); and
e. Chapter 19: Implementation – Section 19.5 Criteria for Site Specific Official Plan Amendments
Planning and Urban Design
Does the proposal conform to the City Structure established in Mississauga Official Plan?
Is the proposal compatible with the character of the area and surrounding context?
Has an appropriate transition been provided to the surrounding neighbourhood?
Have the City’s standards for Shadow Study requirements been adequately addressed?
Have the City’s standards for Pedestrian Wind Comfort and Safety Study been adequately addressed?
Are the proposed zoning by-law and exception standards appropriate?
Is adequate parking proposed to support the development?
Does the proposal provide sufficient indoor and outdoor amenity area?
Does the proposal provide sufficient landscaped area?
Does the proposed development represent an overdevelopment of the site?
Does the proposal provide an appropriate interface with the public realm along Kaneff Crescent and Obelisk Way?
Has the Streetscape Feasibility Study appropriately addressed the building setbacks?
Is there an adequate supply of affordable units being proposed?
Holding “H” Provision
- In the event that the Tribunal allows the appeal in whole or in part, should the Zoning Bylaw include an “H” (Holding) provision which requires the following conditions to be satisfied:
Delivery of an executed Development Agreement to the satisfaction of the City of Mississauga, including provision for the required land dedications and upgraded boulevard/streetscape works.
General
Does the proposed development represent good planning and is it in the public interest?
In the event that the Tribunal allows the appeal in whole or in part, should the Final Order be withheld pending the City Solicitor advising the Tribunal that the Owner and City have agreed to the final form of the Official Plan Amendment and Zoning By-law Amendment?
Kaneff Properties Limited
- If the Site Plan application is to be approved, what are the appropriate conditions of approval?
ATTACHMENT 3
ORDER OF EVIDENCE
Kaneff Properties Limited
City of Mississauga
Kaneff Properties Limited in reply (if any)
ATTACHMENT 4
SUMMARY OF PROCEDURAL DATES
Date
Hearing Event
Friday, June 28, 2024
Exchange of list of witnesses and the order in which they will be called
Friday, July 19, 2024
Meetings of expert witnesses
Thursday, August 8, 2024
Filing of Statement of Agreed Facts and Issues
Friday, August 16, 2024
Exchange of witness and expert witness statements/written evidence, evidence outlines for witnesses under summons
Friday, August 16, 2024
Exchange copy of written participant statement
Friday, August 30, 2024
Confirm with tribunal if all the reserved hearing dates are still required.
Monday, September 16, 2024
Exchange of written response to evidence/statements
(if any)
Friday, September 20, 2024
Exchange of visual evidence (if any)
Friday, September 27, 2024
Completion of joint document book
Monday, September 30, 2024
Parties to prepare and file preliminary hearing plan
Monday, October 7, 2024
Hearing begins