300 Bayview Ave. Ltd. & 1405768 Ont. Ltd. v. Toronto (City), 2021 CanLII 119313

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 19, 2021

CASE NO(S).: PL210257

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: 300 Bayview Ave. Ltd. & 1405768 Ont. Ltd.

Subject: Site Plan

Property Address/Description: 300 & 328 Bayview Avenue

Municipality: City of Toronto

OLT Case No.: PL210257

OLT File No.: PL210257

OLT Case Name: 300 Bayview Ave. Ltd. & 1405768 Ont. Ltd. v. Toronto (City)

Heard: October 22, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel

300 Bayview Ave. Ltd. & 1405768 Ontario Limited (“Applicant/Appellant”)

A. Heisey

City of Toronto (“City”)

M. Piel

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

1The Applicant/Appellant intends to redevelop its property located at 300 and 328 Bayview Avenue, in the City of Toronto (the “subject lands”), with a five-storey building to be used as a car dealership with parking at grade.

2The basis of the appeal is from the failure of the City of Toronto to approve the plans and drawings filed in respect of a Site Plan Application within the time period specified in the Planning Act, R.S.O. 1990, c. P. 13, as amended, at which point the Applicant appealed to the Tribunal pursuant to s. 41(12) of that statute.

3The 300 and 328 Bayview Avenue property is located on the west side of Bayview Avenue, south of Labatt Avenue, and east of Old Brewery Lane. The subject property is currently a four-storey building with surface parking used as a car dealership and a four-storey commercial building with parking at grade.

4The Site Plan Application seeks to develop the property with an expanded five storey building to be used as a car dealership. The proposed expanded building has been designed to relocate existing parking and ground floor, gross floor area (“GFA”) outside of the Toronto and Region Conservation Authority (“TRCA”) regulated flood plain. The GFA being proposed is reflective of the existing building GFA with additional GFA permitted for additional parking.

5More specifically, the appeal seeks to:

(i) obtain approval of the drawings and plans filed with Site Plan Application on December 24, 2019 as amended by resubmission, plans and drawings filed November 11, 2020 with the City.

(ii) amend the terms of the existing July 4, 1983, Site Plan Agreement affecting 300 Bayview Avenue and the Statement of Approval /Undertaking dated January 8, 2005, affecting 328 Bayview Avenue to permit the proposed development.

(iii) further and, in the alternative to item (ii) above, to settle the terms of a Site Plan Agreement to permit the development to proceed.

(iv) decide the appropriate conditions, if any, of approval of the Site Plan required by s. 115(11) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A.

REQUESTED NOTICE OF MOTION TO ADJOURN

6The Tribunal received a Notice of Motion to Adjourn from the City, which contained the following:

1. An order adjourning the one-day hearing scheduled to commence on October 22, 2021, pending the City's review of information provided to it by the Appellant on October 20, 2021.

2. An order rescheduling the hearing of the subject appeal to the next two consecutive days available in the Tribunal's hearing calendar.

3. An order for abridgment of service for this Notice of Motion; and,

4. such further or other relief as counsel may advise and the Tribunal permit.

7The Tribunal heard from both Parties on the Motion and further explored the rationale for the Adjournment request.

8Mr. Piel informed the Tribunal that the issue is whether the owner's conveyance of a 4.77 metre wide strip of land comprising the frontage of 300 Bayview Avenue, (the "Road-Widening Lands") is free and clear of encumbrances and in accordance with the City's environmental requirements, which require to be confirmed. The question of whether this should be prior to or after the approval of plans and drawings submitted by the owner, as per s. 114 of the City of Toronto Act, was cause for discussion.

9The materials provided by the Appellant by email on October 2021, notified the City that foundation piles located within the site encroach below grade into the Road-Widening Lands. Attached to the email were drawings showing the extent of the encroachments together with hand-written notes and calculations.

10Mr. Piel stated that the email presumes the City will accept the conveyance of the Road-Widening Lands subject to the encroaching foundation piles remaining in those lands. He stated the email was not clear, whether the encroaching foundation piles are necessary to support the proposed development.

11Mr. Piel informed the Tribunal that prior to receiving the email, the City did not intend on calling a witness with expertise in structural and/or civil engineering and to proceed with the hearing on October 22, 2021, as it would not promote good land use planning and is not in the public interest.

12The City is requesting time to consult with its professional experts and to consider whether accepting encroachments within the Road-Widening Lands would interfere with or prejudice its ability to provide or plan for the provision of municipal services within Bayview Avenue. Based on the professional experts’ findings, the City may wish to call an expert in civil and or structural engineering to provide evidence in chief on these matters.

13Mr. Piel maintained that in the event the City chooses to do so, the duration of the scheduled hearing should be two days in order for the parties to call and test the evidence of those experts. It was the City's submission, that a one-day hearing would be inadequate in that case.

14Mr. Heisey believed matters will prove to be uncontroversial other than the timing of the road widening and conveyance of lands, which could be resolved through discussions with the City post-approval to move this matter forward.

15Mr. Piel informed the Tribunal that Bayview Avenue is scheduled to be widened at some point in the future, although no date has been determined as of yet. Providing the approval to a Site Plan prior to the road widening was not in the best interests of the City or the public. Mr. Piel cited Mattamy (Rouge) Ltd. v. Toronto (City), 2003 CanLII 7635 (ON SCDC).

16Mattamy (Rouge) Ltd. v. Toronto (City) in which the Divisional Court findings are as outlined below:

Municipality contended that Board did not have jurisdiction to order municipality to assume laneways or services — Board stated case to Divisional Court as to whether board had jurisdiction to order municipality to assume public lane and to accept related services. — Board did not have jurisdiction — Assumption can only occur by municipality adopting by-law — Assuming roads was matter of ownership and liability rather than planning — Board did not have statutory jurisdiction to compel assumption of roads or acceptance of services — Board did not have inherent jurisdiction— Ordering assumption of roads and acceptance of services was not merely subsidiary or ancillary to general administrative function of board.

17Mr. Piel requested the adjournment of this hearing and that the appeal be heard on the next two consecutive days available in the Tribunal's hearing calendar. This he stated, was as a result of not having received, in advance of this hearing, drawings identifying the location of the piles, as well he had no idea of how long staff would need to review any new drawings and what, if any encroachments on the road widening, would occur as a result of the new piles being installed.

18Mr. Heisey informed the Tribunal that he would work with the City to provide the new drawings by November 3, 2021 as the impact of an extensive delay in moving this matter along would be detrimental to the dealership’s new certification process.

19The Tribunal directed that the Parties set a timeline to a hearing date that would allow for new drawings to be submitted and which would allow time for the review of the drawings by the City. The Tribunal further directed the Parties to commit to working together to meet the set timelines to bring this matter forward to a hearing.

20The Parties agreed on a February 2022 timeframe for a three-day hearing as reasonable in light of the new working schedule agreed to on consent.

21The Parties have committed to work to the following timeframe if the Tribunal would set a hearing date for February 2022.

1. November 3, 2021 – Foundation plans, revised plans and drawings to address the City’s latest comments;

2. November 22, 2021 - City will advise whether the City needs more days and the Issues List is to be provided to the Tribunal by the Parties;

3. December 17, 2021 - City would provide witness statements - the Appellant would provide witness statements from additional witnesses and/or supplementary witness statements (if any);

4. January 15, 2022 - Reply Witness Statements; and,

5. February 23-25, 2022 - Start of a three-day hearing, subject to witness availability.

22Both Parties agreed to keep the lines of communication open in order to move this matter forward to the hearing. The Tribunal directed the Parties to work diligently to ensure this date is adhered to.

23A three-day hearing on the merits of this matter will commence on Wednesday, February 23, 2022 as a video hearing at 10 a.m.

ORDER

24The Tribunal orders as follows:

1. That the Notice of Motion to Adjourn the one-day hearing of October 22, 2021, is granted.

2. A three-day hearing of the merits will commence as noted above.

25Parties 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:

Wednesday, February 23, 2022, 10 a.m.

https://global.gotomeeting.com/join/738071261

Access Code: 738-071-261

26Parties 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

27Persons 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.

28Individuals 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.

29No further notice of the hearing is required.

30This Member is not seized.

“D. Chipman”

D. CHIPMAN

MEMBER

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.