Jameson Plaza Limited v Toronto (City), 2024 CanLII 94874

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 23, 2024

CASE NO(S).: OLT-23-001241

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

Applicant and Appellant: Jameson Plaza Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a twelve-storey mixed-use building.

Reference Number: 23 147008 STE 04 OZ

Property Address: 1437-1455 Queen Street West

Municipality/UT: Toronto

OLT Case No.: OLT-23-001241

OLT Lead Case No.: OLT-23-001241

OLT Case Name: Jameson Plaza Limited v Toronto (City)

Heard: September 11, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Jameson Plaza Limited

David Bronskill

City of Toronto

Cameron McKeich

MEMORANDUM OF ORAL DECISION DELIVERED ON SEPTEMBER 11, 2024 BY S. DEBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The Tribunal convened a second Case Management Conference (“CMC”) with respect to the appeal by Jameson Plaza Limited (“Appellant”) pursuant to s. 34(11) of the Planning Act due to the City of Toronto’s (“City”) failure to make a decision within the statutory timelines pertaining to the Appellant’s Zoning By-law Amendment Application.

2The municipal address pertaining to this appeal is 1437-1455 Queen Street West (“Subject Lands”) in the City of Toronto.

3The Application proposed demolition of the existing buildings on the Subject Lands to allow for the construction of a new 12-storey mixed-use building. The new structure would contain 249 dwelling units with a gross floor area of 17,576 m² which would result in a floor space index of 5.48 relative to the gross floor area calculations under the City Zoning By-law No. 569-20213.

4The purpose of the CMC was to approve the Procedural Order (“PO”) that would be used to govern the upcoming hearing.

PARTY OR PARTICIPANT REQUESTS

5There were no Party nor Participant status requests made before or during the CMC.

OPPORTUNITIES FOR RESOLUTION

6The Parties stated that they are aware of the availability of Tribunal-led mediation. The Parties stated that this mediation is not needed at this time as discussions are ongoing between the Parties to try to resolve some or all of the issues. However, none of the issues have been resolved as of the time of this CMC.

PROCEDURAL ORDER AND ISSUES LIST

7The Tribunal received the draft PO prior to the commencement of the CMC. After review with the Parties, the Tribunal ruled that the PO was appropriate and approved of its contents. Therefore, the previously scheduled seven-day hearing event will proceed as scheduled.

SCHEDULING OF THE HEARING

8The Hearing shall commence by video hearing commencing on Tuesday, January 28, 2025, at 10 a.m. for a period of seven days.

Merit Hearing: Tuesday, January 28, 2025 at 10 a.m. – Wednesday, February 05, 2025

GoTo Meeting: https://global.gotomeeting.com/join/765631861 Access Code: 765-631-861 Audio-only line: +1 (647) 497-9391 or Toll-Free 1-888-455-1389 Audio-only access code: 765-631-861

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.

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 the audio-only telephone line.

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 TRIBUNAL ORDERS THAT the previously scheduled seven-(7) day hearing shall continue and will occur by Video Hearing commencing on Tuesday, January 28, 2025 at 10 a.m. The Procedural Order attached as Attachment 1 is approved and shall govern the proceedings up to and including the Merits Hearing.

“S. deBoer”

S. DeBoer

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.

ATTACHMENT 1

CASE NO(S).: OLT-23-001241

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

Applicant and Appellant: Jameson Plaza Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a twelve-storey mixed-use building.

Reference Number: 23 147008 STE 04 OZ

Property Address: 1437-1455 Queen Street West

Municipality/UT: Toronto

OLT Case No.: OLT-23-001241

OLT Lead Case No.: OLT-23-001241

OLT Case Name: Jameson Plaza Limited v Toronto (City)

Procedural Order

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 January 28, 2025 at 10:00 a.m.

3. The length of the hearing is seven (7) 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 are set out in Attachment 1. See Attachment 4 for the meaning of these terms.

5. 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.

6. 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.

7. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal as soon as possible. Any person who retains 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. 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, the expert witness(es)' curriculum vitae and Acknowledgment of Expert Duty form(s), and the order in which the witnesses will be called. This list must be delivered on or before November 1, 2024. For expert witnesses, a party is to identify the area of expertise in which the witness is proposed 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 of Practice and Procedure and notice of same must be served on the parties on or before November 8, 2024.

10. 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, and updated supporting documents and reports to the other parties on or before October 18, 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.

11. Expert witnesses in the same field shall have at least one meeting before the hearing to try to resolve or reduce issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties and the Tribunal on or before November 15, 2024, if agreement is reached.

12. 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. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that they intend to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the parties at the same time as the delivery of witness statements, as in paragraph 12.

13. A witness (including any expert witness) or participant must provide to the Tribunal and the parties a witness statement (full disclosure including reports) or participant statement, respectively, on or before November 29, 2024, or the witness may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, except as permitted by the Ontario Land Tribunal Act, 2021 and the Tribunal's Rules of Practice and Procedure.

14. 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.

15. On or before December 13, 2024, the parties may provide to all other parties a written response to any written evidence.

16. On or before December 13, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before January 17, 2025, the parties shall provide copies of their visual evidence to all of the other parties. The Tribunal and all parties shall be notified if a model will be used, and all parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

18. A person wishing to object to or change written evidence, including witness statements, must make a written motion to the Tribunal prior to the hearing commencement date. 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.

19. 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.

20. On or before January 24, 2025, the parties shall prepare and file a detailed Hearing Plan that identifies the following, at a minimum: the identified parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Hearing Plan”). The Hearing Plan should be adhered to guide the Hearing Event to the best ability of all the parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Hearing Plan throughout the Hearing Event.

21. The parties shall prepare a Joint Document Book on or before January 24, 2024, and which, if requested by the Tribunal, one (1) hard copy will be filed with the Tribunal as soon as practicable in advance of the Hearing. All parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with paragraph 22.

22. All filing of documents and materials shall be electronic to the Tribunal, the parties and participants. The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable should it request same. 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. Paragraph 22 applies regardless if the hearing event is in-person or electronic.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted in paragraph 10. The Tribunal’s Rule 17 applies to such requests.

24. The Tribunal may conduct mediation on consent of all parties, or if and as the Tribunal sees fit.

25. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 4.

BEFORE:

Name of Member:

Date:

____________________________

TRIBUNAL REGISTRAR

SUMMARY OF DATES

DATE

EVENT

October 18, 2024

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

November 1, 2024

Exchange of witness lists (names, disciplines and order to be called)

November 8, 2024

Last date to challenge identification of expert witness

November 15, 2024

Experts meeting prior to this date

November 15, 2024

Agreed Statement of Facts

November 29, 2024

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

December 13, 2024

Exchange of Reply Witness Statements (if any)

December 13, 2024

Parties to Advise Tribunal if any hearing dates are to be released from the hearing calendar (if any)

January 17, 2025

Exchange of visual evidence (if any)

January 24, 2025

Final Hearing Plan filed with the Tribunal

January 24, 2025

Finalize Joint Document Book

January 28, 2025

Hearing commences

ATTACHMENT 1 PARTIES/PARTICIPANTS

Parties

1. Jameson Plaza Ltd. David Bronskill (416) 597-4299 dbronskill@goodmans.ca

2. City of Toronto Sarah O’Connor/Cameron McKeich (416) 397-3578/(416) 338-4891 sarah.oconnor@toronto.ca/cameron.mckeich@toronto.ca

Participants

N/A

ATTACHMENT 2 ISSUES LIST

City of Toronto

SITE SPECIFIC ISSUES

Issue 1 – Height and Massing. Is the development's proposed height and massing, including setbacks, stepbacks, scale, separation distances, streetwall height, density and design appropriate, and does it represent good planning? In particular:

Does the proposed height and massing provide for an appropriate scale that fits with the existing and planned context in the Queen Street West neighbourhood, and provide proper transition to the surrounding context, particularly to the abutting lower-scaled residential district to the south?

Are the height and massing of the proposal, including the impact of the height on matters such as views, privacy, overlook, shadowing, wind, and the streetscape appropriate?

Are the proposed stepbacks at an appropriate height and of an appropriate depth?

Does the proposed height and massing conform with the applicable Official Plan policies?

Do the proposed height and massing have appropriate regard for the policies of OPA 445/SASP 566?

Do the height and massing of the proposal have appropriate regard to the applicable City of Toronto Tall Building Design Guidelines?

Do the height and massing of the proposal have appropriate regard to the applicable and/or the Mid-Rise Design Guidelines (2010)?

Issue 2 – Streetscape and Public Realm. Does the proposal provide for an appropriate public realm? In particular:

a. Are the setbacks from the property lines appropriate?

Do they provide sufficient open space for landscaping and tree planting?

Issue 3 – Urban Forest. Has the proposal demonstrated sufficient soil volumes to support tree planting? More particularly:

a. Does the proposal meet the requirements of the Toronto Green Standard?

Does the proposal meet the requirements of City of Toronto By-law 813-20?

Is the proposal in keeping with Toronto’s Strategic Forest Management Plan?

Issue 4 – Servicing. Has the applicant demonstrated that adequate municipal services are in place to support the development, including but not limited to the availability of adequate sanitary sewage capacity and the implementation of appropriate stormwater management measures and groundwater management measures?

Issue 5 – Parking and Loading. Has the applicant demonstrated that adequate vehicle parking and loading are in place to support the development?

Issue 6 – Implementation & Conditions of Approval. If the proposed development is approved in whole or in part, should the Tribunal's Order be withheld until the City Solicitor has confirmed that the following conditions have been met:

a. the amending by-laws be finalized, in a form and content acceptable to the City Solicitor and Chief Planner and Executive Director, City Planning, in a manner that implements the proposed development,

the applicant has satisfied all requests for further information identified in the Engineering and Construction Services memo to City Planning dated July 28, 2023, including but not limited to, a revised Functional Servicing Report to demonstrate the site can be adequately serviced to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, or the Chief Engineer and Executive Director, Engineering and Construction Services has determined whether holding provisions are required in the Zoning By-law Amendment,

the owner has made satisfactory arrangements with the City and has entered into the appropriate agreement(s) for the design and construction of any improvements to municipal infrastructure, should it be determined that upgrades and/or road improvements are required to support the development, according to the accepted Engineering Reports and Traffic Impact Study accepted by the Chief Engineer and Executive Director, Engineering and Construction Services, and the General Manager, Transportation Services,

any necessary studies, including those related to pedestrian level wind impacts, sun shadow, noise and vibration, have been completed, and their recommendations addressed to the satisfaction of the Chief Planner and Executive Director, City Planning, and,

the owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review and a soil volume plan and tree planting plan has been accepted by the Supervisor, Urban Forestry, Tree Protection & Plan Review?

LEGISLATIVE & POLICY TESTS

Issue 7 – Policy Tests. Does the proposed development satisfy the applicable legislative and policy tests? Specifically:

a. Does the proposed development have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including subsections 2 (d), (f), (h), (p), and (r)?

Would a decision to refuse the proposed development be consistent with the Provincial Policy Statement as required by Section 3(5) of the Planning Act?

Would a decision to refuse the proposed development conform to and not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe as required by Section 3(5) of the Planning Act?

Does the proposed development conform with the applicable policies of the City of Toronto Official Plan, including but not limited to:

• Healthy Neighbourhoods (2.3.1)

• The Public Realm (3.1.1)

• Built Form (3.1.3)

• Built Form – Building Types (3.1.4)

• Housing (3.2.1), and

• Mixed-Use Areas (4.5)?

Does the proposal have appropriate regard for the policies of OPA 445/SASP 566 – West Queen West and Parkdale Main Street, including, but not limited to:

• Built Form (6)

• Residential Uses (8)

• Commercial Uses (9)?

Would approval of the proposed development and Official Plan and Zoning By-law Amendments represent good planning and good urban design? Would it be in the public interest?

ATTACHMENT 3 ORDER OF EVIDENCE

1. Jameson Plaza Ltd.

2. City of Toronto

3. Jameson Plaza Ltd., in reply (if any)

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 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.