Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 15, 2021
CASE NO(S).: PL200628
The Ontario Municipal Board (the “OMB”) is continued under the name Local Planning Appeal Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board in any publication of the Tribunal is deemed to be a reference to the Tribunal.
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 10285773 Canada Corp.
Appellant: 1090011 Ontario Limited
Appellant: 1941 Eglinton East Holdings Inc.
Appellant: 2004085 Ontario Inc.; and others
Subject: Proposed Official Plan Amendment No. 499 (17 134997 EPS 00 TM)
Municipality: City of Toronto
LPAT Case No.: PL200628
LPAT File No.: PL200628
LPAT Case Name: 10285773 Canada Corp. v. Toronto (City)
Heard: May 19, 2021 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| City of Toronto | Daniel Elmadany, Amanda Hill |
| KS (Kingsett) Eglinton Square Inc. and KS Engelhart GP Inc. | Adam Brown, Jessica Smuskowitz |
| 10285773 Canada Corp., Artlife Developments | Isaac Tang, Lee English |
| Canadian Tire Real Estate Limited | Adrianna Pilkington |
| BRL Realty Limited | Ian Andres |
| Toronto District School Board and Toronto Lands Corporation | Pittman Patterson, Piper Morley |
| Samuel Sarick Limited | Katarzyna Sliwa, Aaron Kurts |
| Vitmont Holdings (Vic Park) Inc. | Gerry Borean |
| Yorkreal Holdings Inc. | John Dawson, Brendan Smith, Cynthia McDougall |
| S.A. Armstrong Ltd | Raivo Uukkivi, Marisa Keating, Ryan Middleton |
| 2004085 Ontario Inc. | Calvin Lantz |
| RioCan Holdings Inc., 2075936 Ontario Ltd et al., and 2076031 Ontario Ltd. | Calvin Lantz |
| 1941 Eglinton East Holdings Inc. | Mark Flowers |
| Dundeal Canada (GP) Inc. | David Bronskill |
| Calloway REIT (1900 Eglinton) Inc. | David Bronskill |
| Eglinton Warden Developments Limited, 20 Ashtonbee Holdings Limited | David Bronskill |
| 1920 Eglinton Avenue Holdings Limited | David Bronskill |
| Bell Canada | Isaac Tang, Lee English |
| D.D. Acquisitions Partnership | Kim Kovar, Sidonia Tomasella, Maggie Bassani |
| Cosmetica Investments Inc. | Andrew Jeanrie, Bruce Engell |
| 1090011 Ontario Limited | Conner Harris |
| Stardell Property Management Inc. | Brad Teichman, Michael Cara |
| Mondelez Canada Inc. | Kim Mullin, Monica Poremba |
MEMORANDUM OF ORAL DECISION BY BRYAN W. TUCKEY ON MAY 19, 2021 AND ORDER OF THE TRIBUNAL
1The Local Planning Appeal Tribunal, now the Ontario Land Tribunal (“Tribunal”), held the first Case Management Conference (“CMC”) by a video hearing for the above noted file. There are several appeals pursuant to s. 17(24) of the Planning Act against the approval by the City of Toronto (“City”) of Official Plan Amendment No. 499 (“OPA 499”)
2The Affidavit of Service for Notice received from the City sworn March 11, 2021 is marked as Exhibit 1 a) and a supplementary Affidavit of Service sworn April 9, 2021 is marked as Exhibit 1 b). No further notice is required.
3There are 21 parties of record having interest in this matter as described above. The City and all 21 Appellants were represented by Counsel as noted above. There are no requests for participant status.
NON-APPELLANT PARTIES
4Three additional parties, Metro Ontario Real Estate Ltd., Stardell Property Management Inc and Mondelez Canada Inc., requested standing at this CMC. These parties were granted status on consent subject their understanding that Rule 8.3 – Non-Appellant Party of the Tribunal’s Rules of Practice and Procedure applies, and the parties must identify the issues under which they will be sheltered. Rule 8.3, as it now reads and is effective following the revisions effective on June 1, 2021, provides:
A party to a proceeding before the Tribunal which arises under any of subsections 17(24) or (36), 34(19) or 51(39) of the Planning Act who is not an appellant of the municipal decision or enactment may not raise or introduce a new issue in the proceeding. The non-appellant party may only participate in these appeals of municipal decisions by sheltering under an issue raised in an appeal by an appellant party and may participate fully in the proceeding to the extent that the issue remains in dispute. A non-appellant party has no independent status to continue an appeal should that appeal be withdrawn by an appellant party.
5The City requested at this CMC, that the three Non-Appellant parties identify what issues under which they intend to shelter. Counsel for these three parties stated that they completely understand their responsibilities in keeping with Rule 8.3, but it is premature to do this now. There is no hearing scheduled, nor an Issues List for them to review and make their determination. The three Non-Appellant parties committed to inform the City, all other parties and the Tribunal once they had time to review and analyse the issues list when prepared for a Procedural Order.
BACKGROUND
6Counsel for the City, Ms. Hill, described the background and intent of OPA 499. The area is commonly known as the ‘Golden Mile” in the former City of Scarborough. Studies were initiated by the City in 2014 with the construction of the Light Rapid Transit line along Eglington Avenue. Upon completion of the study, a secondary plan was prepared in consultation with the public and landowners in the area. OPA 499 was adopted by City Council in October 2020. The Plan provides a comprehensive framework that envisions an area made up of high-quality, transit-supportive, mixed-use development.
7The Plan covers an area of approximately 113 hectares and is planned to undergo significant change with the construction of the Eglington Crosstown Light Rail Transit which will introduce five stops in the Plan area. OPA 499 establishes a long-term vision of creating a “connected, accessible, diverse, complete and liveable mixed use community”. A balance of residential, commercial and employment uses will be supported by a full range of municipal and community services including an improved network of parks, open space and pedestrian amenities.
8OPA 499 identifies a series of eight distinct Districts and Character Areas where the future will see a variety of built forms made up of high quality architecture intended to define, support and contribute to the public realm. Planned density is anticipated to support multi modal public transit and investment in the new transit facilities while implementing other objectives of the Plan.
9Ms. Hill advised the Tribunal that the planned Mixed-Use community will generate approximately 24,000 residential units with a population of approximately 43,000 residents and 19,000 jobs. Phase 1 and 2 of a Transportation Master Plan has been completed in advance of the road network and Phase 3 and 4 will commence soon. A complete series of Urban Design documents have been completed to assist with implementation.
10There are several site-specific appeals at various stages in the Tribunal process. Some have scheduled hearing dates while others will soon have CMC’s to begin the management of their appeals. These appeals are not in front of this Tribunal panel, but Appellant parties are clear that the City should not be asking for hearing dates on OPA 499 before CMC’s of the individual appeals are completed. Most site-specific appeals are within the boundaries of OPA 499, but some are outside the Plan area. Ms. Hill confirmed the City is not asking for hearing dates at this CMC.
TRIBUNAL MEDIATION AND ISSUES LISTS
11The City advised a Tribunal led mediation has been requested with the consent of parties in this appeal. A mediation assessment is scheduled and dates for a potential mediation have been requested. Parties advised they were prepared to enter mediation on a without prejudice basis to find common ground. Mediation has been successful in other complex Toronto matters and the Tribunal is encouraged to see this effort being made by all parties.
12The ‘Golden Mile is an important city building exercise in the City and although issues around OPA 499 are complex and seem somewhat daunting, there is a clear benefit to have all parties search for common ground, scope and define issues and determine if settlements may be found. The Tribunal-led mediation is the appropriate place to explore these opportunities.
13The City requested that the Tribunal direct those parties, who have not already done so, provide the City with their client’s issues list. Parties opined that preparing an Issues List to the detail required for a Procedural Order, prior to the considerations coming from CMC’s of the site-specific appeals and the conclusion of the mediation, would be premature. Many of the site-specific appeals have issues attached to existing Procedure Orders therefore, the City is aware of such issues.
14Parties advocated that at this stage of the process, the most appropriate way to introduce issues is in the framework of a mediation, on a without prejudice basis. Many parties are not prepared to complete an Issues List that are in the ‘public record’ but are intent on identifying and scoping issues in a preliminary, without prejudice manner within the framework of mediation. Once mediation has advanced to an appropriate stage, they will be in a better position to define remaining issues.
MOTIONS
15Mr. Flowers, Counsel for 1941 Eglington East Holdings Inc., advised the Tribunal that his client has received a letter from the City providing an opinion that the Tribunal does not have jurisdiction to decide on the conversion of employment lands outside a Municipal Comprehensive Review. The City has provided nothing to indicate how they came to this conclusion. There are other parties that have received similar letters.
16Mr. Flowers has a contrary opinion and believes the Tribunal does have this authority and that his client has a valid appeal. He advocates that the City bring forward a Motion in keeping with Rule 10 of the Tribunal’s – Rules of Practice and Procedure as quickly as possible to identify the basis of their assertion claiming that the Tribunal does not have jurisdiction to allow the conversion of employment lands outside of a municipal comprehensive review.
17Other parties who had received a similar letter had similar concerns and opined that a jurisdiction Motion is appropriate, but each appeal is different and could benefit from the issue identification and without prejudice discussion during mediation.
18Ms. Hill advised that the City is entering into a Municipal Comprehensive Review with a time frame for property owners to register their interests has been established. All property owners that received the letter in question own lands previously designated as employment and remain so with the adoption of OPA 499. Ms. Hill’s immediate objective is to focus on mediation to define, scope and find common ground.
19All parties agreed that a second CMC be scheduled in the September/October 2021 time frame once the results of the mediation are known. The Tribunal agrees.
FINDINGS
20The Tribunal finds that the three entities requesting party status should be granted such status to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding and agrees it is premature to ask the three Non-Appellant parties to determine the issues they will be sheltering under before an Issues List is completed for this matter. All parties know their responsibilities and will be required to fulfill this requirement when an Issues List is available.
21The Tribunal is pleased that the City and parties will enter Tribunal led-mediation to determine areas of common ground. Mediators have been successful, in past large complex Toronto matters, in scoping issues and finding areas of settlement which have secured fair, just and expeditious resolution of issues and made efficient use of their clients and Tribunal time.
22The Tribunal agrees that at this juncture, preliminary without prejudice issues are best dealt within the context of Tribunal-led mediation.
23The Tribunal finds that it is premature to have parties prepare Issues List for a hearing of the merits on OPA 499 but is prepared to Order their preparation prior to the next CMC in October 2021. The results of the Tribunal-led mediation will then be evident and parties will be in a much better position to define the issues that remain.
24The Tribunal finds that a determination of the Tribunal’s jurisdiction to allow the conversion of employment lands outside of a Municipal Comprehensive Review and the validity of certain appeals is a fundamental issue. It is not appropriately left as simply an issue on an Issues List. If the City intends to challenge Tribunal authority in this matter, it should bring forward a motion after mediation is completed in keeping with Rule 10 of the Tribunal’s Rules of Practice and Procedure.
ORDER
25Accordingly, the Tribunal Orders.
26THAT the next Case Management Conference is scheduled to proceed by video on Tuesday, October 12, 2021 at 10 a.m.
27Parties 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:
https://global.gotomeeting.com/join/608604325
Access code: 608-604-325
28Parties 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
29Persons 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 (647) 497-9391. The access code is 608-604-325.
30Individuals 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 CMC 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.
31THAT the Counsel for the City will submit a draft Issues List to the Tribunal no later than 4:30 p.m. on Monday, October 4, 2021.
32THAT Metro Ontario Real Estate Ltd., Stardell Property Management Inc and Mondelez Canada Inc. are granted party status. These three Non-Appellant parties are to advise the City, all other parties and the Tribunal, as to those issues they will be sheltering under after the Issues List is established for the contested hearing.
33The Tribunal may be spoken to should the City have challenges receiving the parties’ Issues Lists in a timely fashion to meet the Monday, October 4, 2021 deadline and any matters arising from this Order.
34No further notice will be given.
35The Tribunal Member is not seized.
“Bryan W. Tuckey”
BRYAN W. TUCKEY 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.