Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 07, 2024

CASE NO(S).: OLT-23-000761

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

Applicant/Appellant: 65 Agnes Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Reference Number: OZ/OPA 22-017 W7

Property Address: 65-71 Agnes Street

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-23-000761

OLT Lead Case No: OLT-23-000761

OLT Case Name: 65 Agnes Inc. v. Mississauga (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

Reference Number: OZ/OPA 22-0017 W7

Property Address: 65-71 Agnes Street

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-23-000762

OLT Lead Case No: OLT-23-000761

Heard: January 11, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

65 Agnes Inc. (the “Appellant”)

J. Cole M. Foderick (in absentia)

City of Mississauga (the “City”)

M. Minkowski K. Pfaff

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON JANUARY 11, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This second Case Management Conference (“CMC”) was held to prepare for a hearing on the merits of the Appellant’s appeals to the Tribunal, in the failure of the City to make decisions with respect to the Appellant’s application for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) within the respective prescribed statutory timelines (the “Appeals”) to permit the proposed development of a 29-storey apartment building on the lands municipally known as 65-71 Agnes Street, in the City of Mississauga.

MEDIATION SETTLEMENT OPPORTUNITIES

2Counsel for the Parties indicated that they have instructions from their respective clients to seek Tribunal-facilitated mediation and, in this regard, have contacted the Tribunal’s Case Coordinator to make this request. In light of the timeframe for the hearing on the merits of the Appeals to commence on Monday, June 17, 2024, the Parties indicated, and the Tribunal concurs, that the request for mediation, including any requirement for a mediation assessment, should be expedited, if reasonably possible.

PROCEDURAL ORDER

3As directed at the first CMC, the Parties submitted a draft Procedural Order including the Issues List (the “PO”) and, subject to a minor edit to add the standard wording that the Parties will advise the Tribunal at least 35 days prior to the start of the hearing if all of the reserved hearing dates are still required, the submitted draft PO is satisfactory to the Tribunal. As directed at the second CMC, the Parties provided a further revised draft PO and the PO is attached as Schedule A to this Order is approved.

ORDER

4The Tribunal so orders and provides these Case Management Conference directives for the purposes of the Case Management of the Appeals.

5The Member is not seized in this matter but will remain available for continued case management to the extent that the Tribunal calendar permits.

“D. Arnold”

D. Arnold

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

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

CASE NO(S).: OLT-23-000761

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

Applicant/Appellant: 65 Agnes Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Reference Number: OZ/OPA 22-017 W7

Property Address: 65-71 Agnes Street

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-23-000761

OLT Lead Case No: OLT-23-000761

OLT Case Name: 65 Agnes Inc. v. Mississauga (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

Reference Number: OZ/OPA 22-0017 W7

Property Address: 65-71 Agnes Street

Municipality/UT: Mississauga/Peel

OLT Case No: OLT-23-000762

OLT Lead Case No: OLT-23-000761

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 hearing will begin on Monday, June 17, 2024 at 10 a.m. by video hearing.

3. The parties’ initial estimation for the length of the hearing is nine (9) days. The Tribunal will not sit on June 24, 2024. 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 found in Attachment 1.

4. The parties and participants identified at the case management conference are set out in Attachment 2.

5. 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.

6. The order of evidence is set out in Attachment 4. 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 Hearings Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal to the other parties on or before March 19, 2024 (90 days before the hearing is scheduled to commence). The applicant acknowledges that any revisions to the plans, except those that are very minor, after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

10. 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 March 19, 2024 (90 days before the hearing is scheduled to commence) 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 proposed to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before April 3, 2024 (75 days before the hearing is scheduled to commence) 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 the remaining issues to be addressed at the hearing with the OLT case coordinator on or before April 18, 2024 (60 days before the hearing is scheduled to commence).

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 14 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.

13. 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 14 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 14 below. 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 other parties at the same as the delivery of expert witness statements, as in paragraph 14 below.

14. On or before May 3, 2024 (45 days before the hearing is scheduled to commence), the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator in accordance with paragraph 23 below.

15. On or before May 3, 2024 (45 days before the hearing is scheduled to commence), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless permitted by the Tribunal.

16. On or before May 13, 2024 (35 days before the hearing is scheduled to commence), the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before May 13, 2024 (35 days before the hearing is scheduled to commence), parties may provide to all other parties and the OLT case coordinator a written response to any written evidence in accordance with paragraph 23 below.

18. On or before June 3, 2024 (14 days before the hearing is scheduled to commence), 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.

19. 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.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator in accordance with paragraph 23 below on or before June 7, 2024 (10 days before the hearing is scheduled to commence).

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before June 7, 2024 (10 days before the hearing is scheduled to commence), 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 preliminary hearing plan. Any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal or on consent of parties. The Tribunal may, at its discretion, change or alter the preliminary hearing plan at any time in the course of the hearing.

23. 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.

24. 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.

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 1

SUMMARY OF DATES

DATE

EVENT

March 19, 2024 (90 days before the hearing is scheduled to commence)

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

March 19, 2024 (90 days before the hearing is scheduled to commence)

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

April 3, 2024 (75 days before the hearing is scheduled to commence)

Experts meeting prior to this date

April 18, 2024 (60 days before the hearing is scheduled to commence)

Statement of agreed facts filed with the Tribunal

May 3, 2024 (45 days before the hearing is scheduled to commence)

Exchange of witness statements, summoned witness outlines, expert reports and participant statements

May 13, 2024 (35 days before the hearing is scheduled to commence)

Exchange of reply witness statements (if any) Confirmation to Tribunal if all hearing days required

June 3, 2024 (14 days before the hearing is scheduled to commence)

Exchange of visual evidence (if any)

June 7, 2024 (10 days before the hearing is scheduled to commence)

Hearing plan filed with the Tribunal

June 7, 2024 (10 days before the hearing is scheduled to commence)

Joint document book filed with the Tribunal

June 17, 2024

Hearing commences

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

PARTIES:

1. 65 Agnes Inc.

Michael Foderick and Jamie Cole McCarthy Tétrault LLP Suite 5300, TD Bank Tower Box 48, 66 Wellington Street West Toronto, ON M5K 1E6 Email: mfoderick@mccarthy.ca and jpcole@mccarthy.ca

Tel: (416) 601-8300

2. City of Mississauga

Michal Minkowski and Katie Pfaff Mississauga City Hall 300 City Centre Drive Mississauga, ON L5B 3C1

Email:[Michal.Minkowski@mississauga.ca](mailto:Michal.Minkowski@mississauga.ca) and [Kathryn.Pfaff@mississauga.ca](mailto:Kathryn.Pfaff@mississauga.ca) Tel: (905) 615-3200 ext. 3280

PARTICIPANTS:

None.

ATTACHMENT 3

LIST OF ISSUES

Note: The identification of an issue on this issues list is intended to provide notice to all parties that a party will lead evidence and/or argument on the matter. This identification does not serve as an acknowledgement of relevancy to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

CITY OF MISSISSAUGA:

PLANNING ACT:

1. Does the proposed development have regard to matters of Provincial Interest as outlined in Section 2 of the Planning Act as it relates to

(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:

2. Does the proposed development demonstrate consistency with the Provincial Policy Statement 2020, including but not limited to Policy 1.1.3.4 - appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety.

3. Does the proposed development conform to the Growth Plan for the Greater Golden Horseshoe, including but not limited to:

a. Policy 2.2.4.3 – Major transit station areas on priority transit corridors or subway lines will be planned for a minimum density target of:

b) 160 residents and jobs combined per hectare for those that are served by light rail transit or bus rapid transit?

b. Policy 5.2.5?

c. Schedule 4?

REGION OF PEEL OFFICIAL PLAN, OFFICE CONSOLIDATION 2021:

4. Does the proposed development conform to the Region of Peel Official Plan as it relates to development and intensification, including policies 5.2.2.1, 5.3.1.4, 5.3.1.5, and 5.3.2.6?

REGION OF PEEL OFFICIAL PLAN, 2022:

5. Does the proposed development conform to the Region of Peel Official Plan in relation to Section 5.6 Urban Systems, taking into account the characteristics of existing communities, to include in their official plans that: b) support pedestrian friendly and transit supportive urban development?

6. Does the proposed development conform to the Region of Peel Official Plan in relation to Section 5.6.19?

MISSISSAUGA OFFICIAL PLAN:

7. Does the proposed development conform to the Mississauga Official Plan, including but not limited to policies in:

a. Chapter 7: Complete Communities – Sections 7.1.6, 7.2.2, 7.2.3, 7.2.4, 7.2.5;

b. Chapter 9: Build a Desirable Urban Form – Sections 9.1.10, 9.1.11, 9.1.14, 9.2.1.3, 9.2.1.10, 9.2.1.14, 9.2.1.15, 9.2.1.16, 9.2.1.21, 9.2.1.23, 9.2.1.25, 9.2.1.29, 9.2.1.36, 9.2.1.37, 9.3.5.6, 9.5.1.1, 9.5.1.2, 9.5.1.3, 9.5.1.9, 9.5.2.2, 9.5.2.5, 9.5.2.11, 9.5.3.4, 9.5.3.7, 9.5.3.8, 9.5.3.9, 9.5.3.10, 9.5.4.1, 9.5.4.2, 9.5.4.5, 9.5.5.5,

c. Chapter 12: Downtown – Sections 12.1.1.3, 12.1.1.4, 12.1.2.2, 12.4.1.3, 12.4.1.4, 12.4.1.6, 12.4.1.9; and

d. Chapter 19: Implementation – Section 19.5 Criteria for Site Specific Official Plan Amendments?

PLANNING & URBAN DESIGN ISSUES:

8. Are the proposed zoning by-law and exception standards appropriate?

9. Does the proposed development conform to the Downtown Cooksville Character Area MOP policies?

10. Does the proposal demonstrate consistency with the City’s Downtown Fairview, Cooksville and Hospital Built Form Standards?

11. Does the proposal appropriately address matters of built form, including pedestrian scale and the nature of the buildings, massing, height, orientation, podiums and location?

12. Have the City’s standards for Shadow Study requirements been adequately addressed, in terms of sunlight on the public realm and private and communal amenity area(s)?

13. Have the City’s standards for Pedestrian Wind Comfort and Safety Study been adequately addressed?

14. Does the proposal adequately provide for amenity areas?

15. Does the proposal adequately provide landscape buffers?

16. Is there an adequate supply of affordable units being proposed?

TRANSPORTATION & WORKS:

17. Has the land dedication for a sight triangle at the intersection of Agnes Street and Cook Street been appropriately identified to the satisfaction of the City?

18. Has the Traffic Impact Study sufficiently demonstrated feasibility of the development?

19. Is the proposal providing adequate parking having regard for the applicable municipal parking rate?

HOLDING “H” PROVISION

1. In the event that the Tribunal allows the appeal in whole or in part, should the Zoning By-law include an “H” (Holding) provision which requires the following conditions to be satisfied:

a. Receipt of updated reports, including a Functional Servicing and Storm Water Management Report and a Noise Feasibility Study, as well as revised engineering plans and drawings.

b. Receipt of satisfactory environmental documentation, including a letter of reliance for the Phase One and Phase II ESA reports; a written document, prepared by a Professional Engineer that includes a plan to decommission the wells or proof of decommissioning; a Storm Sewer Use By-Law Acknowledgement form; and a letter certified by a Qualified Person, stating that land to be dedicated to the City is environmentally suitable for the proposed use.

c. Delivery of an executed Development Agreement to the satisfaction of the City, including provision for any municipal infrastructure and streetscape improvements.

d. Receipt of satisfactory environmental studies and documents, including a reliance letter for the Phase One ESA, A Phase Two ESA report along with the reliance letter, a Storm Sewer Use By-law Acknowledgement form, a letter certified by a Qualified Person, stating that land to be dedicated to the City is environmentally suitable for the proposed use, and a written document prepared by a Professional Engineer that includes a plan to decommission the wells or proof of decommissioning.

e. Receipt of a Record of Site Condition.

f. Receipt of a Streetscape Feasibility Plan to the satisfaction of the City.

2. 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?

SUMMARY:

1. Does the proposed development represent good planning and is it in the public interest?

ATTACHMENT 4

ORDER OF EVIDENCE

IN CHIEF:

1. 65 Agnes Inc.

2. City of Mississauga

REPLY (if necessary):

1. 65 Agnes Inc.