Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
August 08, 2024
CASE NO(S).:
OLT-23-000319
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Profile (TT) Inc. and Profile Developments Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendments
Description:
OPA to facilitate development of 53 residential Units in two blocks of four-storey stacked townhouses with ground floor commercial unit
Reference Number:
22 219197 ESC 25 OZ
Property Address
3351 – 3359 Ellesmere Road
Municipality:
City of Toronto
OLT Case No:
OLT-23-000319
OLT Lead Case No.:
OLT-23-000319
OLT Case Name:
Profile (TT) Inc./Profile Developments Inc. v Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
ZBA to facilitate development of 53 residential Units in two blocks of four-storey stacked townhouses with ground floor commercial unit
Reference Number:
22 219197 ESC 25 OZ
Property Address
3351 – 3359 Ellesmere Road
Municipality:
City of Toronto
OLT Case No:
OLT-23-000320
OLT Lead Case No.:
OLT-23-000319
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c 11, Sched. A, amended
Subject:
Site Plan
Description:
SPA to facilitate development of 53 residential Units in two blocks of four-storey stacked townhouses with ground floor commercial unit
Reference Number:
22 240955 ESC 25 SA
Property Address
3351 – 3359 Ellesmere Road
Municipality:
City of Toronto
OLT Case No:
OLT-23-000321
OLT Lead Case No.:
OLT-23-000319
Heard:
June 27, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Profile (TT) Inc. and Profile Developments Inc.
Chantal deSereville
City of Toronto
Jason Davidson
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON JUNE 27, 2024 AND ORDER OF THE TRIBUNAL
1The Tribunal held a Case Management Conference (“CMC”) on June 27, 2024 addressing the appeal filed by Profile (TT) Inc. and Profile Developments Inc. (“Appellants”) relating to the failure by the City of Toronto (“City”) to make a decision on the Appellants’ application for site plan approval for a proposed residential development at 3351-3359 Ellesmere Road (“subject property”).
2Two related proceedings regarding official plan and zoning by-law amendment appeals brought by the Appellants relating to the subject property were the subject of a settlement hearing in November 2023 at which the Tribunal orally approved, in principle, revised amendments to the City’s Official Plan and Zoning By-law.
3At the CMC on June 27, 2024, the Parties provided the Tribunal with an update on the status of the site plan approval appeal proceeding. They stated that discussions have continued, but no settlement has been reached. Both Parties continued to express optimism that a settlement will be reached, but requested that a hearing date be scheduled. They both stated that Tribunal-assisted mediation is not needed at this time, but indicated that they would contact the Tribunal with a request for mediation, if they determine that mediation is later needed.
4At the CMC, the Tribunal recommended changes to a draft Procedural Order and Issues List that was filed with the Tribunal beforehand. The Tribunal requested that the Parties narrow the issues set out in the Issues List and consider revising some of the language in both documents. Subsequent to the CMC, the Parties filed a revised draft Procedural Order and Issues List, which the Tribunal has now reviewed and approves as set out in Attachment 1 to this Order and Decision.
5The Tribunal scheduled a one-day hearing of the appeal to be held on Wednesday, October 2, 2024 at 10 a.m. by video conference call.
6Parties 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://global.gotomeeting.com/join/519389173
Access Code: 519-389-173
7Parties 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
8Persons 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: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is as indicated above.
9Individuals 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.
10There will be no further notice.
11The Member is not seized.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
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 1
CASE NO(S).: OLT-23-000319
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant:
Profile (TT) Inc. and Profile Developments Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendments
Description:
OPA to facilitate development of 53 residential Units in two blocks of four-storey stacked townhouses with ground floor commercial unit
Reference Number:
22 219197 ESC 25 OZ
Property Address
3351 – 3359 Ellesmere Road
Municipality:
City of Toronto
OLT Case No:
OLT-23-000319
OLT Lead Case No.:
OLT-23-000319
OLT Case Name:
Profile (TT) Inc./Profile Developments Inc. v Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
ZBA to facilitate development of 53 residential Units in two blocks of four-storey stacked townhouses with ground floor commercial unit
Reference Number:
22 219197 ESC 25 OZ
Property Address
3351 – 3359 Ellesmere Road
Municipality:
City of Toronto
OLT Case No:
OLT-23-000320
OLT Lead Case No.:
OLT-23-000319
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c 11, Sched. A, amended
Subject:
Site Plan
Description:
SPA to facilitate development of 53 residential Units in two blocks of four-storey stacked townhouses with ground floor commercial unit
Reference Number:
22 240955 ESC 25 SA
Property Address
3351 – 3359 Ellesmere Road
Municipality:
City of Toronto
OLT Case No:
OLT-23-000321
OLT Lead Case No.:
OLT-23-000319
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 2, 2024 at 10:00am.
The parties’ initial estimation for the length of the hearing is 1 day. 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 to this Order.
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, except with the agreement of the Tribunal
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
On or before July 26, 2024, the City shall deliver to the Applicant and the Tribunal the list of conditions of site plan approval it will be seeking should the Tribunal allow the Applicant’s site plan application.
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 August 2, 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. 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 must be served on the other parties.
Expert witnesses in the same field shall have a meeting on or before August 9, 2024 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 co-ordinator on or before August 16, 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 August 30, 2024, 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 August 30, 2024, 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 18, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before 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.
On or before September 13, 2024 the parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence 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 September 20, 2024.
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 September 27, 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.
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other Parties on or before ninety (90) days before Expert Witness Statements as in Section 14. 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.
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. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal's Video Hearing Guide, or as may be amended. Section 23 applies regardless if the hearing event is in person or electronic.
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 KEY DATES
Date
Hearing Event
July 26, 2024
City to submit its desired list of conditions of site plan approval to the Applicant and Tribunal
August 2, 2024
Exchange of List of Witnesses
August 9, 2024
Expert Witness Meeting
August 16, 2024
Filing of Statement(s) of Agreed Facts and Issues
August 30, 2024
Exchange of Witness Statements
September 13, 2024
Exchange of Reply Witness Statements
September 20, 2024
Exchange of Visual Evidence
September 18, 2024
Confirmation to Tribunal if all reserved hearing dates are still required
September 20, 2024
Filing of Joint Document Book
September 27, 2024
Filing of Preliminary Hearing Plan
October 2, 2024
Hearing Commences
ATTACHMENT 2
PARTIES AND PARTICIPANTS
Party
Counsel
Contact
Profile (TT) Inc. and Profile Developments Inc
Denise Baker
Chantal deSereville
WEIRFOULDS LLP 4100 – 66 Wellington Street West PO Box 35, TD Bank Tower Toronto ON, M5K 1B7 Denise Baker dbaker@weirfoulds.com (416) 947-5090 Chantal deSereville cdesereville@weirfoulds.com (416) 941-5901
City of Toronto
Jason Davidson
CITY OF TORONTO LEGAL SERVICES Planning and Administrative Tribunal Law Section 55 John Street, 26th Floor Metro Hall Toronto, M5V 3C6 Jason Davidson Jason.davidson@toronto.ca (416) 392-4835
ATTACHMENT 3
ISSUES LIST
Issues List of the City of Toronto
Built Form and Public Realm
Does the proposed development adequately address the public realm elements including Ellesmere Road, pedestrian/cycling connections, new public sidewalks, internal private sidewalks and streetscapes?
Does the proposed development have appropriate regard for the Townhouse and Low-Rise Apartment Guidelines, including appropriate screening and location of service elements, air conditioners, transformers, utility meters, communication boxes and other site and building equipment within the building?
Does the proposed development have appropriate regard for the Townhouse and Low-Rise Apartment Guidelines as it relates to well-designed primary entrances, including grade change between the public realm and entrances?
Has the proposed development demonstrated compliance with Toronto Green Standards Version 4 requirements?
Has the applicant addressed the issues identified in the Urban Design memorandum dated, June 5, 2024?
Has the applicant addressed the issues identified by Transportation Services in the revised memorandum dated June 4, 2024?
Does the proposed development provide for the appropriate road widenings and conveyances in accordance with Section 114 of the City of Toronto Act, 2006?
Does the proposed development meet the interim streetscape condition design requirements Durham-Scarborough BRT (DSBRT) 30% Preliminary Design (TPAP -approved)?
Urban Forestry
Does the proposed built form and proposed Landscape Plan provide sufficient space for healthy large-growing, long-lived trees?
Does the proposed development or proposed utilities have unacceptable conflicts with tree protection zones?
Has the applicant provided sufficient details and specifications, as per the City's Application Support Material: Terms of Reference, "Soil Volume Plan"; and does the proposal include adequate tree planting and soil volume to comply with TGS Version 4?
Has the applicant addressed the issues identified in the Urban Forestry's memorandum dated June 5, 2024, to the satisfaction of Urban Forestry?
Infrastructure and Servicing
Has the proposed development demonstrated that the grading plan appropriately captures and directs uncontrolled drainage area to the quality treatment structure before discharging to the municipal sewer?
Has the proposed development demonstrated that the locations and dimensions of all existing and proposed development-related underground and above-ground utility services and structures meet the minimum clearance requirements, including hydro streetlight/utility poles, fire hydrants, or other fixtures?
Has the applicant addressed the issues identified in Development Engineering's memorandum dated June 4, 2024, to the satisfaction of Engineering and Construction Services?
Order if approved:
What are the appropriate final site plan drawings and the appropriate post-approval conditions of Notice of Approval Conditions, to be secured in a site plan agreement to be entered into between the owner and the City and such agreement to be registered on title to the site to the satisfaction of the City Solicitor prior to any Order issuing, in the event the Tribunal determines to allow some form of site plan approval?
In the event the Tribunal determines to allow the site plan appeal in whole or in part should the Tribunal Order be withheld respecting such appeal until:
a) the related Tribunal Order has issued for the Zoning Appeal such that the related and necessary zoning by-law amendments are in full force and effect;
b) the final form and content of the Notice of Approval Conditions for the site plan approval application have been prepared to the satisfaction of the City; and
c) the City Solicitor has confirmed that all pre-approval conditions set out in the Notice of Approval Conditions have been satisfied?
Issues List of Profile (TT) Inc. and Profile Developments Inc
- What, if any, conditions should attach to the site plan approval?
ATTACHMENT 4
ORDER OF EVIDENCE
Profile (TT) Inc. and Profile Developments Inc.
City of Toronto
Profile (TT) Inc. and Profile Developments Inc. in reply