Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 01, 2022
CASE NO(S).:
OLT-22-002182
OLT-21-001894
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant:
1161 Kingston Road GP Inc.
Subject:
Minor Variance
Description:
to permit an 8 storey, 57-unit mixed use building
Reference Number:
A0276/21SC
Property Address:
1161 Kingston Road
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002182
OLT Lead Case No:
OLT-22-002182
OLT Case Name:
1161 Kingston Road GP Inc. v. Toronto (City.)
PROCEEDING COMMENCED UNDER section 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Site Plan
Description:
to permit an 8 storey, 57-unit mixed use building
Reference Number:
20 230414 ESC 20 SA
Property Address:
1161 Kingston Road
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-21-001894
OLT Lead Case No:
OLT-22-002182
OLT Case Name:
1161 Kingston Road GP Inc. v. Toronto (City.)
Heard:
November 25, 2022 by telephone conference call
APPEARANCES:
Parties
Counsel/Representative*
1161 Kingston Road GP Inc.
Matthew Lakatos-Hayward
City of Toronto
Sara Amini
Bernadette Crowe
Ian Flett
John Hartley
Self-represented*
MEMORANDUM OF ORAL DECISION DELIVERED BY M.A. SILLS ON NOVEMBER 25, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Telephone Conference Call (“TCC”) was convened by the Tribunal in response to a request by Mr. Lakatos-Hayward for direction regarding the filing of hearing materials.
2This matter involves two appeals by 1161 Kingston Road GP Inc. (“Appellant”) from the failure of the City of Toronto (“City”) to make a decision on a site plan control application in the requisite timeframe, and the refusal of a minor variance application by the City’s Committee of Adjustment (“COA”). These applications relate to the planned re-development of the property located at 1161 Kingston Road (“subject property”) with an 8-storey, 57 unit mixed use building. The subject property currently maintains a gas station and auto maintenance shop.
3Bernadette Crowe, who owns the adjacent lands to the south and is represented by Mr. Flett was granted party status at the first Case Management Conference (“CMC”) held on June 9, 2022.
4Mr. Hartley, who is self-represented and resides approximately 1.5 kilometres from the subject property was also granted party status. Mr. Hartley purports to have represented the Save Our City Association at the COA meeting. The presiding Members (differently constituted) specifically noted in the decision from the CMC (issued on June 9, 2022), that Mr. Hartley “was informed of his statutory requirements as a Party to participate fully in the proceedings”.
5At the second CMC on July 27, 2022, it was reported that a revised site plan control application had been submitted to the City (June 22, 2022) and provided to all parties. The Tribunal was further informed that productive discussions had taken place and a Draft Procedural Order (“DPO”) and Issues Lists has been prepared.
6The decision from the July 27, 2022 CMC notes that all parties were agreeable to the Issues List except for Mr. Hartley. The presiding Member (differently constituted), having heard submissions on the Issue Lists, detailed the necessary criteria to be met for the Tribunal to approve an issue.
7The parties, again with the exception of Mr. Hartley, agreed that the most efficient way to deal with this matter going forward was to schedule a five (5) day hearing in December 2022. Mr. Hartley, who stated he still required disclosure of documents from the City, wondered how a hearing date could be set if some parties didn’t have the respective documents. Attending counsel for the City (Mr. Muscat) advised that the City is willing to provide to Mr. Hartley any documents that are a matter of the public record, but first needed to know the specific documents required.
8Mr. Lakatos-Hayward told the Tribunal that he has had several conversations with Mr. Hartley during which he specifically explained that his request for all documents in the possession of the Applicant was inappropriate and/or unnecessary, particularly since some of these are privileged documents. Furthermore, Mr. Hartley has received the same level of disclosure as every other party in this proceeding, which is the same level of disclosure typically afforded to a party in a proceeding.
9In response to the statement by Mr. Hartley that mediation should be mandatory and that to set a hearing date without first exploring the option of mediation is not good use of the Tribunal’s time and resources, the presiding Member confirmed that “Tribunal led mediation is voluntary, and not mandatory”.
10To recap, two (2) Case Management Conferences have been conducted by the Tribunal on this file; June 9, 2022 and August 2, 2022. A four (4) day Hearing on the Merits has been scheduled beginning on Monday, December 12, 2022. The Procedural Order to govern the conduct of the Hearing on the Merits was approved by the Tribunal and brought into force and effect on August 17, 2022.
11The Procedural Order establishes a final submission date for, among other things, the list of witnesses to be called by a party and the date for the exchange of certain documents and materials. The Procedural Order is in and of itself an Order of the Tribunal, and as such, must be complied with unless the Tribunal agrees to amend the said Order. In this case, the Tribunal approved a request, without objection, to amend the Procedural Order by extending the deadline for the filing of the Confirmation of the witness lists and Agreed Upon Statement of Facts to November 1, 2022.
12For ease of reference, the Summary of Dates Chart found at page 10 of the in-force Procedural Order (denoting the amendment subsequently approved by the Tribunal) is provided below.
SUMMARY OF DATES
DATE
EVENT
September 13, 2022
Exchange of preliminary witness lists (names, disciplines and order to be called) and last date to provide copies of revised proposal, including all revised plans and drawings (if any)
September 28, 2022
Last date of Expert Witness Meetings
October 18, 2022 amended by the Tribunal to November 1, 2022
Confirmation of witness lists and Agreed Upon Statement of Facts
October 24, 2022
Last date to challenge qualifications of expert witnesses
October 28, 2022
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
November 7, 2022
Notification to Tribunal if all hearing dates required
November 11, 2022
Exchange of Reply Witness Statements (if any)
December 2, 2022
Exchange of Visual Evidence (if any) and Joint Document Book
December 5, 2022
Hearing Plan
December 12, 2022
Hearing commences
13On October 31, 2022, the Tribunal received email correspondence from Mr. Lakatos-Hayward confirming that his client had reached a settlement with the City and a separate settlement with Mr. Fleet’s client, Ms. Crowe.
14On November 2, 2022, the Tribunal received email correspondence from Mr. Lakatos-Hayward seeking direction from the Tribunal regarding Mr. Hartley’s participation in the hearing.
15In that correspondence, Mr. Lakatos-Hayward indicated that Mr. Hartley did not file a Preliminary Witness List as required on September 13, 2022, the purpose of which was to identify the attendees at the expert witnesses meeting to be held on or before September 28, 2022 (Rule 11 of the Procedural Order), nor did he file a Final Witness List by the November 1, 2022, deadline.
16On November 24, 2022, Mr. Hartley sent an email to Mr. Lakatos-Hayward, that does not appear to have been copied to the other parties or the Tribunal, wherein he re-asserts his willing to engage in mediation, and indicates it is his intention to call himself as a witness.
17Mr. Hartley continues the correspondence with allegations regarding “the erroneous information that was utilized to induce the Tribunal to assume jurisdiction” (of the minor variance application) and the failure of the parties to mediate, which in his opinion, should be a mandatory requirement of the Tribunal’s appeal process.
18Mr. Hartley goes on to identify issues related to what he referred to as the “rudimentary requirements” of the various governing planning policies and the principles of good planning which he perceives to be relevant and of concern, most of which had already been rejected by the Tribunal at the CMC on the basis that they either are not legitimate or genuine land use planning issues; are not within the jurisdiction of the Tribunal; and/or do not possess a clear nexus to the matters before the Tribunal. Moreover, he has identified a series of documents, reports, email correspondence, etc. that he apparently believes he is entitled to direct that Mr. Lakatos-Hayward provide to him.
19Mr. Hartley further confirmed in the email that it is his intention to make a motion at the outset of the hearing in respect of the issue of the jurisdiction the Tribunal to hear the minor variance application, and for which he is proposing to give viva voce evidence. He goes on to identify that “the jurisdictional issue will be for judicial review, should it be necessary”.
20Lastly, Mr. Hartley wrote that he has had the opportunity to read a great deal of the Affidavit of the planner to be called by Lakatos-Hayward as his sole witness. It is his assertion that the Affidavit contains technical reports “that are presumably being tendered as proof of the truth of the contents and conclusions of those reports”, which he alleges is grossly hearsay, and in his opinion is improper unless the planner is a recognized expert in those disciplines, then adding “which judging by his resume he is not”. He further states that “those reports cannot and should not be submitted to the Tribunal unless the author is called as a witness and subject to that “great engine of truth” namely, cross-examination. His concluding comment was that he objected most strenuously to the Affidavit, as it stands, being before the Tribunal in any way, shape or form.
21The Tribunal informed Mr. Hartley that as a result of his failure to comply with the requirements of a party as directed by the Procedural Order, the Tribunal will be deciding whether he will be allowed to continue as a party to the appeal, or alternatively, be afforded the opportunity to convert his status to Participant.
22Mr. Hartley was given a fulsome opportunity to make submissions about why he should be allowed to maintain party status. Essentially, Mr. Hartley saw this as an opportunity to re-assert his position about many of his contentions that had already been addressed and decided by the Tribunal at the CMCs.
23In particular, he reasserted his position that mediation should be a mandatory component of the appeal process and that setting a hearing date before first attempting to resolve the issues through Tribunal-led mediation is not a good use of the Tribunal’s time and resources. Moreover, he avows to having repeatedly confirmed his desire and willingness to participate in Tribunal-led mediation, and expounding his view that by not partaking in the mediation services offered by the Tribunal the parties were being disrespectful of the Tribunal.
24Ironically, it was Mr. Hartley’s conduct during the TCC that the Tribunal found to be, at best, discourteous, when he abruptly and without notice disengaged from the TCC, put the Tribunal and other attendees on hold for a period of 5–6 minutes, before retuning to the TCC and interrupting the Member who was speaking at the time. When asked by the Tribunal for an explanation, he wilily attributed his departure from the TCC to ‘technological inexperience’.
25In any event, the Tribunal has not been persuaded by Mr. Hartley’s commentary that his continued involvement as a party in this matter is in any way necessary or helpful to the effective adjudication and resolve of these appeals. Nor is the Tribunal prepared to allow the hearing process to be used as a platform for publicly espousing his personal views about this particular development or development in general, to threaten to challenge the rulings of the Tribunal and hearing processes, or to make slanderous remarks about the competency of others involved in this matter.
26The reality here is that the other three parties to these appeals have a legitimate stake in the outcome of these appeals and have worked diligently and collaboratively to come to a mutually agreeable resolve, while at the same time fulfilling their duties as a party, including complying with the procedural Order.
27Mr. Hartley, on the other hand, lives about 1.5 kilometres from the development site and is outside of the notice area for these applications. He was granted party status as an individual (rather than as a representative of the SOS group) at the first CMC and was informed of the role, responsibilities and statutory requirements of a party at that time. Many of those requirements are also established in the Procedural Order. Mr. Hartley has failed in every regard to comply with the exchange of documents and materials as ordered in the Procedural Order. He has now indicated that he will not be calling any expert evidence and as the Tribunal understands it, he does not have expertise in land use planning.
28The Tribunal finds Mr. Hartley’s non-compliance with the Procedural Order, and his continued attempts to raise issues that had either been deemed by the Tribunal to not be relevant and legitimate land use planning issues or are outside of the jurisdiction of the Tribunal, cause for revoking his party status. In particular, his failure to provide a Witness Statement or supporting documents and materials he intends to rely upon unfairly disadvantages the other parties. Moreover, although given a fulsome opportunity to address the Tribunal Mr. Hartley failed to identify any legitimate and justifiable reasons for his failure to comply with the Procedural Order, or to demonstrate in any palpable way that his continued involvement as a party is either necessary or would be of assistance to the Tribunal in the effective adjudication of these appeals.
29Accordingly, Mr. Hartley’s party status is hereby revoked.
30As an alternative, the Tribunal is prepared, and hereby grants Participant status to Mr. Hartley. In the event he chooses to continue his involvement in the hearing he will be permitted to submit a written Participant Statement detailing his concerns with the development proposal as revised. The Participant Statement is to be submitted to the Tribunal and circulated to counsel to the parties by no later than Friday, December 2, 2022. The Tribunal has clarified that as a Participant Mr. Hartley is not permitted to make oral submissions at the hearing, unless the presiding Member elects to call him as a witness.
31This is the Order of the Tribunal.
“M.A. Sills”
M.A. SILLS
VICE-CHAIR
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.