du territoire
Ontario Land Tribunal
Tribunal ontarien de l’aménagement
ISSUE DATE: December 2, 2022
CASE NO(S).: OLT-22-002106
(Formerly 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. and 1405768 Ont. Ltd.
Subject: Site Plan
Property Address/Description: 300 and 328 Bayview Avenue
Municipality: City of Toronto
OLT Case No.: OLT-22-002106
Legacy Case No.: PL210257
OLT Lead Case No.: OLT-22-002106
Legacy Lead Case No.: PL210257
OLT Case Name: 300 Bayview Ave. Ltd. and 1405768 Ont. Ltd. v. Toronto (City)
Heard: November 2, 2022, by telephone conference call
APPEARANCES:
Parties
Counsel
300 Bayview Ave. Ltd. and 1405768 Ont. Ltd.
A. Heisey
City of Toronto
M. Piel
MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN ON NOVEMBER 2, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal held a third Case Management Conference (“CMC”) to hear a status update with regard to an Interim Decision issued by the Tribunal on June 8, 2022.
2The Site Plan application seeks to develop the property known municipally as 300 and 328 Bayview Avenue, in the City of Toronto (“Subject Lands”) with an expanded five storey building to be used as a car dealership. The proposed expanded building will relocate the existing parking and ground floor outside of the Toronto and Region Conservation Authority (“TRCA”) regulated flood plain. The Gross Floor Area (“GFA”) being proposed is reflective of the existing building GFA with additional GFA permitted for additional parking.
INTERIM ORDER
3The Tribunal provided an Interim Order on June 8, 2022, which required the Appellant to satisfy the following conditions and provide the City with specific submissions:
(a) the satisfaction of the named City Official and as presented by the City in evidence as Appendix "4" to Exhibit 31 as modified by paragraph 11 of Exhibit 32;
(b) revise all necessary plans and drawings for the Tribunal's approval to illustrate the horizontal and vertical location of the active gas main on the site and resubmit the revisions to the satisfaction of the Director, Community Planning, Toronto & East York District for the City of Toronto in consultation with the Manager, Urban Forestry for the City of Toronto; and
(c) revise Drawing A2.0 (Ground Floor) to remove illustrations of the existing structure (above and below grade) on the site and resubmit the revised drawing to the satisfaction of the Director, Community Planning, Toronto & East York District for the City of Toronto
CASE MANAGEMENT CONFERENCE CONTEXT
4At this status update the Tribunal heard that the Applicant had deposited a reference plan for the Bayview Avenue Road widening conveyance which should allow for the finalization of the ESA Phase 1 and 2 Report and clearance by the City peer reviewer. It was also mentioned by Mr. Heisey that the Risk Assessment would be submitted by the first week of November 2022.
5As discussed at the CMC of October 6, 2022, in order to expedite this matter, it would be advantageous to both Parties if the demolish, excavation and shoring of the area in preparation for the conveyance, could happen simultaneously.
6Mr. Heisey stated his client is concerned with its ability to obtain conditional excavation and foundation permits to satisfy the remediation and conveyance of the Bayview Avenue road widening to the City.
7Mr. Heisey stated that the Appellant met virtually with representatives of the Building Department, on October 17, 2022, to determine whether they would be able to obtain conditional excavation and foundation permits. The Building Department officials advised they would speak to the Planning department to determine whether there would be an objection to the issuance of such permits. A further meeting between the Appellant and the City is scheduled in the near future to receive more information.
8Mr. Piel, referred to his email dated November 1, 2022, sent to the Applicant, regarding the view of the Building Division that neither a below grade (shoring) nor separate excavation permit is likely necessary for the subject project. He noted however, no building permit application has been filed to date for which the Building Division is able to reach a conclusion.
9Mr. Heisey stated he included the following paragraph in the draft site plan agreement submitted to the City to ensure that permits will be issued. The paragraph states:
City of Toronto Planning Department will endorse the issuance of conditional permits for shoring and excavation permits and foundation permits by the City of Toronto Chief Building Official prior to the satisfaction of all preapproval conditions.
10Mr. Piel stated that this paragraph is not in keeping with the standard site plan agreement form. The City therefore objects to including the Appellant's proposed clause in the site plan agreement.
11Further, Mr. Piel informed the Tribunal that Community Planning is of the view that it would not consent to Building Division's issuance of a conditional permit for the construction of the building in advance of acquiring the necessary road-widening. To do so he stated would effectively unwind the findings of the Tribunal in its decision dated June 8, 2022, and exposes the City to the risk that the road-widening would not be conveyed to the City prior to site plan approval.
12The Tribunal having heard all of the information, acknowledges the timeliness of the submissions of the ESAs and the Risk Assessment since the last status update.
13The Tribunal notes that within the email dialogue as well as in this status update there is a disjunct between what is being sought, being the below grade shoring and separate foundation permit for contamination removal purposes, as opposed to permits to allow for above grade construction of the building. The Tribunal recognized Mr. Heisey’s impatience to move this matter along.
14Based on the submission of Mr. Piel, the Tribunal agrees that without having a formal building permit application submission in front of the Buildings Department, the Appellant is failing its due diligence in moving this matter closer to a resolution. As stated in Mr. Piel’s email it is likely a permit for the excavation and shoring may not be needed at all. One won’t know until the formal submission takes place.
15The Tribunal recognizes the issuance of building permits is governed by the Building Code Act, 1992 (“BCA”) and the Tribunal is without jurisdiction to make determinations as to the appropriate timing of permit issuance. Such decisions are delegated to the Chief Building Official (“CBO”) and the CBO is required to discharge their statutory obligations under the BCA and is authorized by the BCA to exercise its discretion in determining whether a conditional permit should be issued in any given case.
16The Tribunal reminds the Appellant, that the onus is on them to conduct their due diligence on conformity with the City's processes to achieve the pre-approval conditions set out in the Interim Order of the Tribunal regarding the conveyance of the road widening without encumbrances pursuant to s. 114 of City Of Toronto Act.
17The Tribunal was informed that the Parties will reach out to the Tribunal to discuss this matter after the second meeting between the Applicant and the Buildings Department has occurred or if either Party wishes to advance the matter through a Motion Record.
18The Tribunal encourages both Parties to assist one another where possible. Going forward it is the Tribunal’s hope that once the permit application process begins, it will become clear as to what actions the Appellant needs to take to move this matter forward.
19This Tribunal member maintains carriage of this file until the Final Order is issued.
20The Member may be contacted through the Case Coordinator for further assistance to ensure this matter is moving towards the issuance of the Final Order.
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.