Ontario Land Tribunal
ISSUE DATE: November 18, 2022
CASE NO(S).: OLT 22-003698 (Formerly PL2100164)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 1583617 Ontario Inc. et al.
Subject: Application to amend Zoning By-law - Refusal or neglect to make a decision
Description: To permit a 49-storey residential development with retail at-grade
Property Address: 25 Mabelle Avenue
Municipality: City of Toronto
Municipality File No.: 18 270817 WET 03 OZ
OLT Case No.: OLT-22-003698
Legacy Case No.: PL200164
OLT Lead Case No.: OLT-22-003698
Legacy Lead Case No.: PL200164
OLT Case Name: 1583617 Ontario Inc. (et al.) v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Motion By: 1583617 Ontario Inc. et al.
Purpose of Motion: Request for Determination / Directions
Subject: Application to amend Zoning By-law - Refusal or neglect to make a decision
Municipality: City of Toronto
OLT Case No.: OLT-22-003698
Legacy Case No.: PL200164
OLT Lead Case No.: OLT-22-003698
Legacy Lead Case No.: PL200164
Heard: October 26, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1583617 Ontario Inc. et al. | Paul DeMelo |
| City of Toronto | Michael Mahoney and Jessica Braun |
DECISION DELIVERED BY SHARYN VINCENT AND STEVEN COOKE AND ORDER OF THE TRIBUNAL
BACKGROUND AND CONTEXT
1Pursuant to the decision of this Panel issued November 22, 2021, the Tribunal allowed the appeal brought by 1583617 Ontario Inc. et al. under s. 34(11) of the Planning Act against the failure of the City of Toronto to make a decision with respect to a request to amend Zoning By-law No. 1088-2002 to permit the lands at 25 Mabelle Avenue to be partially redeveloped to also accommodate a 49-storey residential building with retail at grade. The existing 30-storey apartment building is to be retained on site.
2The disposition, paragraph 70 of the decision, stated that:
the appeal is allowed, and the City of Toronto Zoning By-law No. 1088-2002 is hereby amended substantially in accordance with Attachment ”1”. The Final Order of the Tribunal is being withheld pending confirmation from the Parties on the final form of the By-law amendments, which is accurately reflecting the Tribunal’s decision, and, in a form acceptable to the City and the Applicant.
[For reference, Attachment 1, the draft By-laws to the November 2021 Decision, is appended hereto as Attachment 1].
3In July of 2022, eight months after the issuance of the decision granting the appeal, Counsel for 1583617 Ontario Inc. et al. wrote to the Tribunal advising that the Parties had not been able to agree on the final form of the necessary instruments, as the City was insisting upon the inclusion of a unit cap which had not formed part of Attachment 1 to the decision, and therefore, 1583617 Ontario Inc. et al. was requesting that the Tribunal exercise its authority to issue a final Order enacting the zoning amendments.
4Counsel for the City responded, arguing that the proponents, now seeking to increase the number of units within the same building mass subject of the Tribunal’s findings and approved in the November 2021 decision, were, de facto, seeking a s. 23 review, the prescribed timeframe for which had long passed, and therefore beyond the jurisdiction of the Tribunal to approve.
5The Parties were directed to argue the Tribunal’s jurisdiction through a Motion, the determination of which is the subject of this Decision.
CONSIDERATIONS
6The Tribunal, having considered the Motion and Responding Motion materials, and having heard the Oral Submissions of Counsel, rejects, for the following reasons, the City’s proposition that to Order into effect the Zoning By-law Amendment giving effect to the November 22, 2021 decision is beyond the jurisdiction of the Tribunal.
[