Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 3, 2025

CASE NO.: OLT-24-001239

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Darryl Simmons

Subject: Minor Variance

Description: To permit an addition containing two suites

Reference Number: A/106/23

Property Address: 86 John Street

Municipality/UT: Markham/York

OLT Case No: OLT-24-001239

OLT LeadCase No: OLT-24-001239

OLT Case Name: Simmons v Markham (City)

BEFORE:

"L.P. You" MEMBER Tuesday, the 11th day of March, 2025

THE TRIBUNAL having heard submissions at the video hearing event conducted on February 27, 2025, and having received a draft Procedural Order from the Parties, and having considered and revised the terms of that draft Procedural Order.

THE TRIBUNAL ORDERS THAT the Procedural Order appended as Attachment A to this Order shall govern this proceeding including the hearing now scheduled to commence on March 14, 2025.

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

Ontario Land Tribunal Website: 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 A

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll Free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunal ontarien de l’aménagement du territoire 655 rue Bay, suite 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web: olt.gov.on.ca

CASE NO(S).: OLT-24-001239

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Darryl Simmons

Subject: Minor Variance

Description: To permit an addition containing two suites

Reference Number: A/106/23

Property Address: 86 John Street

Municipality: Markham/York

OLT Case No.: OLT-24-001239

OLT Lead Case No.: OLT-24-001239

OLT Case Name: Simmons v Markham (City)

PROCEDURAL ORDER

The Tribunal orders that:

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. A hearing respecting matters under the Planning Act is scheduled to proceed by video as follows:

Date: March 14, 17, 18 and 19 GoTo Meeting: https://global.gotomeeting.com/join/909787981 Access Code: 909-787-981 Audio only telephone line: 1 888 455 1389 or (647) 497-9391

3. The initial estimation for the length of the hearing is 4 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 procedural order deadlines are generally summarized in Attachment “1” to this Order.

4. The parties and participants in the hearing as identified at the Case Management Conference are listed in Attachment “2” to this Order.

5. The Issues are set out in the Issues List attached as Attachment “3” to this Order. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment “4” hereto. 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. The list of variances that are the subject of the hearing are as set out in Attachment “5” to this Order.

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 and the order in which they will be called. This list must be delivered on or before March 10, 2025, and in accordance with paragraph 20 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae, the Acknowledgment of Expert’s Duty form, and the area of expertise in which the witness is prepared to be qualified.

10. 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 and the curriculum vitae and Acknowledgment of Expert Duty form previously provided in paragraph 9. Copies of this must be provided as in paragraph 12 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. 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 9.

11. 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 12 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 12 below.

12. On or before March 10, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 20 below or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.

13. On or before March 12, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 20 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

14. On or before March 12, 2025, the parties may provide to all other parties and the OLT case coordinator a written response to any written evidence in accordance with paragraph 20 below.

15. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before March 13, 2025.

16. On or before March 12, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 20 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. 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.

18. 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.

19. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 13, 2025 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

20. All filings shall be submitted electronically and in hard copy. 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.

21. 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

March 10, 2025 Exchange of List of Witnesses and the order in which they will be called – para. 9 Exchange of Witness & Participant Statements – paras. 12 & 13

March 12, 2025 Exchange of Reply Evidence/Statements – para. 14 Exchange of Visual Evidence – para. 16 Notification to Tribunal and Parties if witness not to provide oral evidence – para. 18

March 13, 2025 Filling of revised Witness Statements and exchange of revised Witness Statements Filing of Joint Document Book – para. 15 Filing of Hearing Plan – para. 19

March 14 to 19 Contested Hearing (if required) – para. 2

ATTACHMENT “2”

PARTIES AND PARTICIPANTS

PARTIES

DARRYL SIMMONS Jeffrey E. Streisfield Land Law ™ 707- 215 Lonsdale Road, Toronto, ON. M4V 0B4 T: 416.460.2518 E: jeffrey@landplanlaw.com

ELENA CESARONI Adrian Frank Kagan Shastri DeMelo Winer Park LLP 188 Avenue Road Toronto, ON M5R 2J1 T: 416.645.4582 E: afrank@ksllp.ca

PARTICIPANTS

Barbara Belsito 41 Deanbank Drive E : barbara@networkcourt.ca

Dianne Berwick T : 905.881.1684 E : dianeberwick@rogers.com

Anthony Farr 34 Colborne Street E : farr-west@outlook.com

Joan Honsberger T : 905-889-3118 E : jo.honsie@sympatico.ca

Richard Kercz T : 416.561.6817 E : richardkercz@gmail.com

Cintia Nardi & Rodolfo Mure 85 John Street T : 647-200-1970 E : cintianardi@hotmail.com

Barry Nelson T : 905-709-2536 E : bnelson@pmci.ca

Audrey Simpson (c/o Napier Simpson) 90 John Street E : napiersimpson@sympatico.ca

Lister & Susan Smith 76 John Street E : listersmith@outlook.com

ATTACHMENT “3”

NOTE: The identification of an issue on this list by a party indicates that party’s intent to lead evidence on that issue. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the OLT. The identification of an issue on the Issues List does not mean that all parties agree 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 to the determination of the OLT will be a matter of evidence at the hearing or in a motion, as necessary.

ISSUES LIST

Elena Cesaroni

1. Do the proposed variances (individually and collectively) and the development they facilitate have appropriate and sufficient regard for matters of provincial interest, including in particular the conservation and management of significant architectural, cultural, historical, archaeological or scientific interest, as required by s. 2(d) of the Planning Act?

2. Are the proposed variances (individually and collectively) and the development they facilitate consistent with the Provincial Planning Statement 2024?

3. Do the proposed variances (individually and collectively) and the development they facilitate meet the statutory test set out in s. 45 of the Planning Act, and in particular:

   1. Do they maintain the general purpose and intent of the City of Markham Official Plan?
   2. Do they maintain the general purpose and intent of the zoning by-laws of the City of Markham?
   3. Are they minor in nature?
   4. Are they desirable for the appropriate development or use of the subject land, building or structure?

DARRYL SIMMONS

1. Is the proposed use of the lot (for 3 dwelling units) permitted by virtue of section 35.1(b) of the Planning Act?
2. Does O Reg 462/24 (https://www.ontario.ca/laws/regulation/r24462) eliminate the need for the following variance for density?

By-law 223-94, Section 1: a maximum floor area ratio of 43. 75 percent, whereas the by-law permits a maximum floor area ratio of 33 percent;

ATTACHMENT “4”

ORDER OF EVIDENCE

1. Darryl Simmons
2. Elena Cesaroni
3. Reply by Darryl Simmons (if any)

ATTACHMENT “5”

LIST OF SUBJECT VARIANCES* (*subject to Owner’s Issue)

a) By-law 2237, Amending By-law 101-90, Section 1.2 (iv): a building depth of 30.91 metres, whereas the by-law permits a maximum building depth of 16.8 metres; and

b) By-law 2237, Section 6.1: a rear yard setback of 16.17 feet, whereas the by-law requires a minimum rear yard setback of 30 feet.

ATTACHMENT “6”

DEFINITIONS

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.