Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 18, 2024

CASE NO(S).: OLT-24-000314

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18

Applicant/Appellant: 10725 Kennedy Developments Limited

Description: Designate the Francis and Mary Walker House as a heritage property

Reference Number: By-Law 2024-30

Property Address: 10725 Kennedy Road

Municipality/UT: Markham/York

OLT Case No: OLT-24-000314

OLT Lead Case No: OLT-24-000314

OLT Case Name: 10725 Kennedy Developments Limited v. Markham (City)

Heard: June 26, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
10725 Kennedy Developments Limited	Doug Pateman Ira Kagan (in absentia)
City of Markham	Maggie Cheung-Madar

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON JUNE 26, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) regarding an appeal filed pursuant to s. 29(11) of the Ontario Heritage Act (“OHA”) regarding the decision of the City of Markham to adopt By-law No. 2024-30 (“By-law”) to designate the property municipally known as 10725 Kennedy Road (“Subject Property”) in Markham.

2Notice of this CMC was provided by the Tribunal. There were no issues raised by the Parties, and upon review, the Tribunal finds that Notice was appropriately given and that no further Notice is required.

BACKGROUND

3The Subject Property is located on the east side of Kennedy Road, south of Elgin Mills Road East, and contains a single detached residence and two outdoor sheds.

4Prior to the passing of the By-law, the Subject Property was listed on the Markham Register of Property of Cultural Heritage Value or Interest as a non-designated property under the OHA.

5In November 2023, City Heritage staff issued a Notice of Intent to Designate for the Subject Property. Immediately following that, the Appellant, through legal counsel, filed a Notice of Objection regarding the proposed designation. In early February 2024, City Heritage staff prepared a report recommending that City Council designate the Subject Property.

6On or about February 28, 2024, City Council, through the By-law, designated the Subject Property as a property of Cultural Heritage value or interest.

7An Appeal was subsequently filed by the Appellant. For a property to be designated under the OHA, it must meet at least two of the nine criteria found in Ontario Regulation 9/06. It is the position of the Appellant that the Subject Property is not worthy of being designated as it lacks representative architectural style, craftsmanship, designing architect, and connection to the surrounding land uses and properties. In addition, the Appellant maintains that the Subject Property and its single detached dwelling is not unique in style, design, materials, or construction methods.

UPDATE

8Counsel for the Parties explained that all written materials had already been exchanged regarding this Appeal. It was jointly suggested by the Parties that a three-day Hearing of the Merits be set for early 2025, subject to availability on the Tribunal’s calendar.

9In advance of the CMC, the Parties had sought leave from the Tribunal to provide a ‘scaled back’ draft Procedural Order (“PO”), including Issues List (“IL”), given that materials had already been exchanged. The Tribunal consented to this approach, and the Parties provided their draft PO, including IL, for consideration by the Tribunal.

NEXT STEPS

10Upon review and consideration, the Tribunal agreed with the Parties’ proposed path forward and scheduled a three-day Hearing of the Merits to begin at 10 a.m. on Tuesday, February 4, 2025, by Video Hearing.

11Parties 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.

GoToMeeting: https://global.gotomeeting.com/join/344779885

Access code: 344-779-885

12Parties 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

13Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.

14Individuals 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.

15Following a brief discussion, the Tribunal directed that the final PO, including IL, be provided by Friday, July 5, 2024. It has since been received, considered, amended, and approved by the Tribunal and will govern the proceedings.

ORDER

16The Tribunal Orders that:

a. A Hearing of the Merits is scheduled as indicated in paragraph [10];

b. The Procedural Order, including Issues List, attached as Schedule A to this Order, shall govern the proceedings.

17There will be no further notice; and

18The Member is not seized on this matter.

“S. Bobka”

S. BOBKA

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

ISSUE DATE: July 18, 2024

CASE NO(S).: OLT-24-000314

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18

Applicant: 10725 Kennedy Developments Limited

Description: Designate the Property as a property of Cultural Heritage value or interest

Reference Number: Appeal of Heritage Designation

Property Address: 10725 Kennedy Road

Municipality/UT: Markham/York

OLT Case No: OLT-24-000314

OLT Lead Case No: OLT-24-000314

OLT Case Name: 10725 Kennedy Developments Limited v. Markham (City)

The Tribunal orders that:

1. 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

2. The video hearing will begin on Tuesday, February 4, 2025 and will be conducted virtually.

GoToMeeting: https://global.gotomeeting.com/join/344779885

Access code: 344-779-885

3. The length of the hearing is three (3) 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see Attachment 3 for the meaning of these terms).

5. The issue(s) 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.

6. 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.

7. 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.

8. 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

9. Parties shall contact the OLT Case Co-ordinator on or before Tuesday, December 31, 2024 to advise whether the three scheduled days are still required for the hearing.

10. The parties shall cooperate to prepare a Joint Document Book which shall be filed with the OLT Case Co-ordinator on or before Friday January 24, 2025.

11. The written evidence for this hearing has already been prepared and exchanged by both parties prior to the first Case Management Conference. The City’s written evidence is the staff reports to the Development Services Committee and City Council (dated November 14 and 15, 2023 and February 6 and 14, 2024) including its attachments, which informed City Council’s decision to designate the property. The Appellant’s written evidence is the Cultural Heritage Evaluation Report (dated February 6, 2024 prepared by LHC Heritage Planning & Archaeology Inc.) and which was attached to the appeal letter. 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.

12. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Tuesday January 28, 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.

13. All filings shall be submitted electronically. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

14. 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.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Summary of Key Dates

Date	Event
June 26, 2024	First Case Management Conference
Tuesday December 31, 2024	Confirm required number of hearing days with OLT case coordinator
Friday January 24, 2025	Filing of Joint Document Book
Tuesday January 28, 2025	Filing of Hearing Plan
Tuesday February 4, 2025	Hearing commences

Attachment 1: Parties and Participants

Party	Representation
10725 Kennedy Developments Limited	Ira T. Kagan/ Doug Pateman Kagan Shastri DeMelo Winer Park LLP 188 Avenue Road Toronto, ON, M5R 2J1 T: 416-368-2100 ext. 226/ / 261 E: ikagan@ksllp.ca / dpateman@ksllp.ca
City of Markham	Maggie Cheung-Madar Legal Services Department 101 Town Centre Boulevard Markham, ON L3R 9W3 T : 905-477-7000 x 3583 E : mcheung-madar@markham.ca

Participant	Representation
None

Attachment 2: Issues List

1. Are the minimum two heritage criteria [as required by section 29(1) of the Ontario Heritage Act and O. Reg. 9/06 as amended by O. Reg. 569/22] satisfied for the subject property and therefore should be designated?
   1. If so, what are the criteria that are satisfied?
   2. If so, are any modifications required to the Statement of Significance to reflect those criteria?

Attachment 3: 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.

Attachment 4: Order of Evidence

Order of Evidence

1. City of Markham
2. 10725 Kennedy Developments Limited
3. City of Markham- Reply (if any)