Farag v. Markham (City), 2025 CanLII 29964

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 02, 2025

CASE NO(S).: OLT-24-001108

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Appellant: Mofreh Farag

Subject: Objection to Designation By-law 2024-177 (Rolph Boynton House)

Property Address: 10732 Victoria Square Blvd

Municipality: City of Markham

OLT Case No.: OLT-24-001108

OLT Lead Case No.: OLT-24-001108

OLT Case Name: Farag v. Markham (City)

Heard: March 25, 2025 by video hearing

APPEARANCES:

Parties	Counsel
City of Markham (“City”)	Maggie Cheung-Madar
Mofreh Farag (“Appellant”)	Michael Cook

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON MARCH 25, 2025 AND ORDER OF THE TRIBUNAL

1This decision arises from a Case Management Conference (“CMC”) held on Tuesday, March 25, 2025. This appeal is pursuant to the Ontario Heritage Act R.S.O. 1990, (“Act”) and involves Bylaw No. 2024-177 (“Bylaw”) designating the property municipally known as 10732 Victoria Square Blvd under the Act (“Property”).

2There were no persons or entities seeking Party or Participant status.

3Counsel for the Appellant and the City noted that the Appellant is preparing planning applications for the Property and the hope is that the heritage issues arising in this appeal will be dealt with in that context.

4The Tribunal noted that the notice of appeal filed before new counsel were retained by the Appellant may not satisfy the requirements described in section 29(16) of the Act – to which new counsel for the Appellant responded by indicating that his client has now retained a heritage expert to advise on this appeal. He also indicated that his client will also retain a land use planner. The City’s counsel noted that she has no current instructions to consider a motion under section 29(16).

5The Parties hope that they may be able to resolve the issues on this appeal as part of the future planning application process. The Tribunal encourage the Parties to consider using the OLT mediation facility to assist their discussion.

6In the meantime, as the Tribunal seeks to advance all appeals filed with the OLT, hearing days and dates were canvassed. The Parties agree that a three-day hearing will suffice and that a hearing date in February 2026 will provide enough time for preparation, settlement/mediation discussions and for possible consolidation with any appeals that could later be filed with respect to the intended planning applications. This has been scheduled accordingly.

7Accordingly, the Tribunal has set a three-day hearing on Wednesday, February 18, 2026 at 10 a.m. to February 20, 2026 by video conference:

GoToMeeting: https://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

8Parties 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.

9Parties 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

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 in to an audio-only telephone line: Toll-Free +1 (888) 299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

11Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the Video Hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator.

ORDER

12THE TRIBUNAL ORDERS THAT:

(a) The hearing of this appeal will commence as scheduled above;

(b) The Procedural Order appended as Attachment A hereto shall govern the conduct of this proceeding; and

(c) This Vice Chair shall be seized only with respect to the ongoing case management of this matter but shall not be seized in respect of any mediation that may be conducted or in respect of the final hearing.

“William R. Middleton”

WILLIAM R. MIDDLETON

Vice-Chair

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT A

CASE NO.: OLT-24-001108

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Appellant: Mofreh Farag

Subject: Objection to Designation By-law 2024-177 (Rolph Boynton House)

Property Address: 10732 Victoria Square Blvd

Municipality: City of Markham

OLT Case No.: OLT-24-001108

OLT Lead Case No.: OLT-24-001108

OLT Case Name: Farag v. Markham (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.

Organization of the Hearing

2. The video hearing will begin on February 18, 2026 at 10:00 a.m. as directed in the Tribunal's Decision and Order.

3. The Parties’ initial estimation of the length of the hearing is three (3) 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 found in Attachment 1.

4. The Parties are listed in Attachment 2 to this Order. Attachment 5 contains the meaning of these terms.

5. The issues are set out in the Issues List attached as Attachment 3 to this Order. There will be no changes to the Issues 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 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 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 Hearing Guide, available on the Tribunal’s website: (https://olt.gov.on.ca/wp-content/uploads/2023/02/Video-Hearing-Guide.html).

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 are to be called. This list must be delivered on or before December 19, 2025 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before January 27, 2026 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the Parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before February 3, 2026.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the Party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A Party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before January 6, 2026, the Parties shall provide copies of their expert witness statements to the other Parties and to the OLT case co-ordinator in accordance with paragraph 22 below.

14. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before January 16, 2026 and in accordance with paragraph 22 below.

15. On or before January 6, 2026, any Participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A Participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before January 14, 2026: (a) the Parties shall confirm with the Tribunal if all the reserved hearing dates are still required and (b) a Party seeking to limit or exclude any written or oral evidence must file a written motion.

17. On or before February 6, 2026, the Parties shall provide copies of their visual evidence to all of the other Parties in accordance with paragraph 22 below. If a model will be used, all Parties must have a reasonable opportunity to view it before the hearing.

18. The Parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 6, 2026.

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. 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.

21. The Parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 11, 2026 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.

22. All filings shall be submitted electronically unless otherwise directed. 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.

23. 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.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
December 19, 2025	Exchange and file witness lists
January 6, 2026	Exchange and file witness statements
January 14, 2026	Advise Tribunal as to anticipated hearing length and deliver written motion to limit or exclude any written or oral evidence
January 16, 2026	Exchange and file Reply Witness Statements
January 27, 2026	Experts meeting prior to this date
February 3, 2026	File Agreed Statement of Facts
February 6, 2026	File JDB and exchange visual evidence
February 11, 2026	File a preliminary hearing plan with the Tribunal
February 18, 2026	Hearing commences

ATTACHMENT 2

LIST OF PARTIES

Parties

1. MOFREH FARAG Davies Howe LLP The Tenth Floor 425 Adelaide St. W. Toronto, ON M5V 3C1 Michael Cook Email: michaelc@davieshowe.com Grace O’Brien Email: graceo@davieshowe.com

2. CITY OF MARKHAM City of Markham 101 Town Centre Blvd. Markham, ON L3R 9W3 Maggie Cheung-Madar Email: mcheung-madar@markham.ca

ATTACHMENT 3

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. The identification of an issue on this list by a Party indicates that Party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the Tribunal have jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the Tribunal.

A. MOFREH FARAG

General

1. Does the Rolph Boynton House (the “House”) located at 10732 Victoria Street (“Subject Property”) meet the prescribed criteria for determining cultural heritage value or interest set out in O.Reg. 9/06 (“Criteria”) under the Ontario Heritage Act, R.S.O. 1990, c. 0.18?

2. If so, does the entirety of the Subject Property meet the Criteria or just the House?

Specific

3. Do all the heritage attributes listed in the Statement of Significance currently exist on the House, and if so, are they character defining attributes that embody the cultural heritage value (if any) of the House? In particular:

   1. Rectangular, gable fronted plan;
   2. One-and-a-half storey height;
   3. Variegated brick in shades of red and brown;
   4. Concrete foundation;
   5. Steep gable roof with wide, projecting open eaves, hipped-roof dormers and single stack brick chimney;
   6. Gable-roofed front porch with a closed pediment and wooden Turscan half columns supported on brick pedestrals with concrete caps, and brick railing with concrete copings;
   7. Single-leaf front door; and
   8. Flat-headed window opening containing single-hung windows with one-over-one panes and concrete lugsills, with double and triple units.

4. If it is determined that the House has cultural heritage value or interest, do all the heritage attributes listed in issue 3 need to be maintained to preserve the cultural heritage value or interest of the House and the Subject Property, and if not, should the designation by-law be amended to reflect that determination?

5. Does the designation by-law prevent modification of the House and intensification of the Subject Property (including through a severance) in a manner that would appropriately preserve the cultural heritage value or interest of the House and the Subject Property?

6. If the answer to issue 5 is, at least in part, “yes”, is it appropriate and/or necessary to amend the designation by-law to allow for modifications to the House and/or intensificaiton of the Subject Property?

B. CITY OF MARKHAM

7. Are the minimum two heritage criteria as required by section 29(1) of the Ontario Heritage Act and O. Reg. 9/06 satisfied for the Subject Property and therefore should be designated? a. If so, what are the criteria that are satisfied? b. If so, are any modifications required to the Statement of Significance to reflect those criteria?

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence.

1. Mofreh Farag
2. City of Markham
3. Reply by Mofreh Farag

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

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. If an unincorporated group wishes to become a Party, 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, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure. Paragraph 17 of the Ontario Land Tribunal Act, 2021 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 and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a Party 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 intends to present as evidence at the hearing.

Witness Statements:

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 the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A Party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the Parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.