Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 09, 2024

CASE NO(S).: OLT-23-000427

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

Applicant/Appellant: DRC (Markham) Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: Propose to develop a mix-used building with two 40 storey towers and nine townhouse units. Reference Number: Plan 22 253004 Property Address: 8127-8149 Yonge Street Municipality/UT: Markham/York OLT Case No: OLT-23-000427 OLT Lead Case No: OLT-23-000427 OLT Case Name: DRC (Markham) Inc. v. Markham (City)

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

Applicant/Appellant: DRC (Markham) Inc. Subject: Application to amend the Zoning By-law – neglect to make a decision Reference Number: Plan 22 253004 Property Address: 8127-8149 Yonge Street Municipality/UT: Markham/York OLT Case No: OLT-23-000428 OLT Lead Case No: OLT-23-000427

Heard: January 24, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
DRC (Markham) Inc.	Paul DeMelo, Kristie Stitt
City of Markham	Maggie Cheung-Madar
Ali Dianat	Andrew Jeanrie

MEMORANDUM OF ORAL DECISION DELIVERED BY A. SAUVE ON JANUARY 24, 2024 AND ORDER OF THE TRIBUNAL

1This is the second Case Management Conference (“CMC”) of this matter with respect to the appeals of the non-decision of the City of Markham (the “City”) regarding Applications for Zoning By-law Amendment (“ZBA”) and Official Plan Amendment (“OPA”).

2The Applications would facilitate a mixed-use development with two 40-storey towers and nine townhouse units.

3The OPA would permit the proposed uses, site density and building height. The ZBA would amend Zoning By-law Nos. 2150 and 177-96 to permit the proposed uses and establish site-specific provisions such as increased density, building height, yard setbacks and parking rates.

4City Council failed to make a decision on the OPA and ZBA within the statutory timeframes.

NEXT STEPS

5The Parties have been negotiating but requested that the Tribunal set a seven-day Merit Hearing. If a resolution is found, then the Parties will contact the Case Coordinator and the Hearing dates can be converted to a Settlement Hearing.

6The Parties submitted a draft Procedural Order (“PO”) and Issues List (“IL”). Attached as Schedule 1 to this decision is the PO, with IL, which has been reviewed and is now approved by the Tribunal.

7The Tribunal hereby schedules a seven-day Merit Hearing of these appeals commencing on Thursday, November 21, 2024 at 10 a.m. and concluding on or before Friday, November 29, 2024.

8On that date, Parties 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.

9The CMC is scheduled to proceed by Video Hearing as follows:

GoToMeeting: https://meet.goto.com/996288525 Access Code: 996-288-525

10Persons 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: 1-888-455-1389 or + 1 (647) 497-9391. The Access Code is as indicated above.

11Parties 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

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.

13No further notice will be given.

14The Member is not seized.

“A. Sauve”

A. SAUVE 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 1

Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire

CASE NO(S).: OLT-23-000427

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

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 Hearing will begin on November 21, 2024, at 10:00 a.m. Unless otherwise subsequently ordered by the Tribunal, the Hearing shall proceed by videoconference.
The Parties’ initial estimation for 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.
The Parties and Participants identified at the case management conference are set out in Attachment 1.
The issues for the Hearing 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, direct evidence (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.
The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.
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 (https://olt.gov.on.ca/tribunals/lpat/).

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 July 4, 2024, and in accordance with paragraph 23 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 July 31, 2024 and try to resolve or reduce the issues for the Hearing. Following the experts’ meetings, and if any agreement is reached, the Parties must prepare and file a Statement of Agreed Facts and Issues with the Case Co-ordinator on or before September 5, 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 15 below. Instead of an Expert 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 and not paid to produce a report do not have to file an Expert Witness Statement; but the Party calling them must file an outline of the expert’s evidence as in paragraph 15 below.
A Party who intends to call a witness who is not an expert must file a Witness Statement, as in paragraph 15 below.
On or before October 10 2024, the Parties shall provide copies of their Witness Statements and Expert Witness Statements to the other Parties and to the Case Co-ordinator and in accordance with paragraph 23 below.
On or before October 10, 2024, a Participant shall provide copies of their written Participant Statement to the Parties and to the Case Co-ordinator in accordance with paragraph 23 below. A Participant cannot present oral evidence or submissions at the Hearing unless ordered by the Tribunal.
Parties may provide to all other Parties and the Case Co-ordinator a written response to any Written Evidence on or before October 24, 2024, and in accordance with paragraph 23 below.
On or before November 1, 2024 the Parties shall provide copies of their visual evidence to all of the other Parties in accordance with paragraph 23 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 Case Co-ordinator on or before November 14, 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 and the other Parties by October 24, 2024 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 November 14, 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 direct, cross-examination and re-direct 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 filing shall be electronic, unless the Tribunal requests a hard copy(ies) of any document. 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.

SUMMARY OF PROCEDURAL DATES

DATE	EVENT
July 4, 2024	Exchange of list of witnesses and the order in which they will be called
July 31, 2024	Meeting of expert witnesses in the same field
September 5, 2024	Filing of agreed statement of facts
October 10, 2024	Exchange of expert reports/expert witness statements/written evidence, evidence outlines for witnesses under summons, participant statements
October 24, 2024	Exchange of responding evidence
November 1, 2024	Exchange of visual evidence
November 14, 2024	Filing of Joint Document Book
November 14, 2024	Filing of Hearing Plan
November 21, 2024	Hearing commences

Attachment “1” List of Parties/Participants

PARTIES

Party	Counsel / Representative
DRC (Markham) Inc.	Paul DeMelo/ Kristie Stitt Kagan Shastri DeMelo Winer Park LLP 188 Avenue Road Toronto, ON M5R 2J1 Email: pdemelo@ksllp.ca / kstitt@ksllp.ca Tel: (416) 368-2100 ext. 228/ (416) 368-2100 ext. 244
City of Markham	Maggie Cheung-Madar Legal Services Department City of Markham 101 Town Centre Boulevard Markham, ON L3R 9W3 Email : MCheung-Madar@markham.ca Tel : 905-477-7000 x 3583
Ari Dianat	Andrew Jeanrie Bennett Jones LLP 3400 One First Canadian Place, P.O. Box 130, Toronto, ON, M5X 1A4 Email: JeanrieA@bennettjones.com Tel: 416-777-4814

Participants

Participant	Counsel / Representative
Henry Lamb

Attachment “2” Issues List

City of Markham

Note: The identification of an issue on this Issues List does not constitute an acknowledgement by the OLT or any party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant will be a matter of evidence and argument at the hearing.

**The City of Markham reserves the right to revise, scope or remove issues as matters are settled between parties

Does the Proposed Development have appropriate regard for the relevant matters of provincial interest set out in Section 2 of the Planning Act, including subsections (f), (h), (i), (j), (m), (p), (r)?
Is the Proposed Development consistent with the Provincial Policy Statement (2020) as required by Section 3(5) of the Planning Act, including but not limited to sections 1.1.1, 1.1.3, 1.2.1, 1.4.1, 1.4.3, 1.6.6, 1.6.8?
Does the Proposed Development conform to and not conflict with the Growth Plan for the Greater Golden Horseshoe (2020), as required by Section 3(5) of the Planning Act, including but not limited to sections policies 2.2.1.1, 2.2.1.3, 2.2.1.4, 2.2.2.2, 2.2.4.9.a, 2.2.4.11, and 2.2.6.1.a?
Does the Proposed Development conform to the 2019 York Region Official Plan, including but not limited to sections: a. 3.5.6, 3.5.7 – Healthy Communities; b. 4.2.4, 4.4.4 – Economic Vitality; c. 5.1.9, 5.4.6, 5.4.9,– An Urbanizing Region; and d. 7.1.1, 7.1.3, 7.1.7, 7.1.8, 7.2.53, and 7.3.2 – Servicing our Population.
Does the Proposed Development generally conform to the in force 2022 York Region Official Plan, including but not limited to sections: a. 2.3.41 – Foundation for Complete Communities; and b. 4.4.1, 4.4.5, 4.4.10, 4.4.11, 4.4.18, 4.4.21, 4.4.24, 4.4.25, and 4.4.42 – An Urbanizing Region. c. 6.2.3, 6.2.4, 6.4.3, 6.5.7 – Servicing our communities;
Does the Proposed Development conform to and/or have appropriate regard for the 2014 City of Markham Official Plan, including but not limited to the following sections: a. 2.2.2.1, 2.4.3, 2.4.7, and 2.4.9 - Sustainable Growth; b. 4.1.1.1, 4.2.1.1, 4.3.1.1 – Health Neighbourhoods and Communities c. 6.1.8.4, 6.1.8.7, and 6.1.8.10 - Urban Design and Sustainable Development; d. 8.1.5, 8.2.1.1.a, 8.2.1.3, 8.3.1.1, 8.3.1.2, 8.3.1.4, 8.3.3.1, 8.3.3.4, 8.3.3.5 - Land Use; e. 9.18.9.1, 9.18.9.2, 9.18.9.3 - Thornhill; and f. 10.1.2.1, 10.1.2.2, 10.1.2.4, 10.1.2.5, 10.1.2.8, 10.1.4 – Implementation.
Is the Proposed Development, including the proposed heights, densities, built-form, setbacks, and the mid-block laneway, compatible to the area context and appropriately reflect the City’s vision for the area as depicted in the Yonge Corridor Land use and Built Form Study (the “Yonge Study”)?
Does the Proposed Development include an appropriate amount of, and the mix of, residential and non-residential uses?
Does the Proposed Development include an appropriate amount of affordable housing?
Does the Proposed Development provide sufficient parkland dedication?
Are the community amenities, including parks, amenity space, sufficient to accommodate the proposed density?
Has a Functional Servicing Report been provided: a. To demonstrate there is sufficient sanitary sewer servicing to accommodate the Proposed Development? If not, what improvements are required? and b. To acknowledge the sanitary downstream constraints?
Has the Transportation Impact Study, prepared by LEA Consulting Ltd., dated August 2022, addressed the following: a. An updated assessment of the level of development that the transportation system can accommodate prior to and after the Yonge Subway extension as it relates to the Subject Lands. b. Identify the infrastructure improvements required for the Proposed Development, including the need for: i. Feasibility of proposed site access and traffic control. ii. Feasibility of the shared access arrangement with adjacent site immediately to the north. iii. Active transportation plan and connection to future subway station. c. Transportation Demand Management Plan prior to and after the Yonge Subway extension. d. The inclusion of rear laneway (along the east lot line) of the Subject Lands between Bay Thorn Drive and Kirk Drive, as depicted in the Yonge Study. e. Consideration of City's Yonge Street Corridor Secondary Plan, and in particular, emerging findings on the surrounding road network. f. Proposed reduction in the minimum required parking spaces. g. Proposed reduction of parking stall sizes within the underground facility (the proposed spaces within the garage are less than the current standard which may directly impact the potential total yield for the site).
Is approval of the Proposed Development premature until: a. The Appellant has demonstrated the Proposed Development is appropriate given the Subject Lands consist of a commercial plaza with units connected to the North that are not owned by the Appellant? b. A satisfactory comprehensive block plan is complete? c. All studies, policies, principles and schedules of the City's Yonge Street Corridor Secondary Plan are finalized? d. The planned transportation networks including the Royal Orchard subway station and any other facilities upgrades are operational? e. A satisfactory Transportation Impact Study is provided to the City? f. A satisfactory Functional Servicing Report is provided to the City? g. Satisfactory responses on all third parties' comments, including those required by York Region concerning transportation and sanitary servicing, is provided the City?
Does the Proposed Development represent good planning and are they in the public interest?
In the event the Tribunal allows the appeals, in whole or in part, should the Final Order be withheld pending the City Solicitor advising the Tribunal that: a. Should the Proposed Development be subject to a Holding (“H”) provision to require, among other things, the implementation of the Yonge subway extension, necessary transportation improvements, and sanitary servicing improvements to facilitate the Proposed Development; b. The final forms of the Official Plan Amendment and Zoning By-law Amendment are received to the satisfaction of the City; c. The Appellant has entered into any agreements required to secure any required upgrades or improvements to the existing municipal infrastructure, should they be required, at no costs to the City, all to the satisfaction of the City; d. The City is satisfied with the form and tenure of proposed affordable housing and has entered into agreements required to secure affordable housing with the Appellant; and e. The Appellant has provided the appropriate form and level of parkland benefit owing to the City in accordance with the Planning Act and has entered into agreements required to secure the same.

Ari Dianat

Does the proposed development, or any proposed modifications to the proposed development, preserve access to the abutting property to the north? Does the proposed development, take appropriate account for the existing access and parking agreements between the property and the abutting property to the north (8159 Yonge Street)?
Does the proposed development, or any proposed modifications to the proposed development, result in significant wind or shadow impacts on the abutting property to the north?
Does the proposed development, or any proposed modifications to the proposed development, unduly restrict the future development potential of the abutting property to the north?

Attachment “3” Order of Evidence

DRC (Markham) Inc.
City of Markham
Ari Dianat
DRC (Markham) Inc. (reply, if any)

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.

DRC (Markham) Inc. v. Markham (City), 2024 CanLII 9778

Case Summary