Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 22, 2022
CASE NO(S).: OLT-21-001332
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Birchcliff Developments Inc.
Subject: Request to amend the Official Plan - Failure of City of Toronto to adopt the requested amendment
Existing Designation: Mixed Use and Neighbourhoods
Proposed Designation: Site and Area-Specific Policy
Purpose: To permit a nine-storey, 279 unit mixed use development
Property Address/Description: 1615-1641 Kingston Road and 50-52 Birchcliff Avenue
Municipality: Toronto
Approval Authority File No.: 20 203471 ESC 20 OZ
OLT Case No.: OLT-21-001332
OLT File No.: OLT-21-001332
OLT Case Name: Birchcliff Developments Inc. v. Toronto (City.)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Birchcliff Developments Inc.
Subject: Application to amend Scarborough Birchcliff Community Bylaw No. 8786 – Neglect or Refusal of application by City of Toronto
Existing Zoning: Commercial Residential and Single Family Residential
Proposed Zoning: Site Specific
Purpose: To permit a nine-storey, 279 unit mixed use development
Property Address/Description: 1615-1641 Kingston Road and 50-52 Birchcliff Avenue
Municipality: Toronto
Municipal File No.: 20 203471 ESC 20 OZ
OLT Case No.: OLT-21-001332
OLT File No.: OLT-21-001333
Heard: January 24, 2022 by Video Hearing (“VH”)
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| John Hartley | Self-represented |
| Birchcliff Developments Inc. (“Applicant”) | J. Hoffman* |
DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal had held its first Case Management Conference (“CMC”) on January 24, 2022, with regard to the Applicant’s development proposal for the lands known municipally as 1615-1641 Kingston Road, and 50-52 Birchcliff Avenue (“Subject Lands”).
2At that time the Tribunal had before it 5 requests for party status and 89 requests for participant status. At the CMC the Tribunal granted party status to: Birch Cliff Village Community Residents Association, the Toronto Lands Corporation (as agent for the Toronto District School Board), and John Hartley in his personal capacity.
3John Hartley had also sought party status on behalf of two federal companies incorporated about one week prior to the CMC: Tenants Have No Rights Association (“Tenants”), and SOS Save Our City Association (“SOS”) for both of which he was listed as the sole director and officer.
4The Tribunal granted party status to Mr. Hartley, an adjacent resident, but directed written submissions concerning the two federal incorporations.
5The Tribunal received written submissions only from Mr. Hartley on behalf of both corporations, a written submission from the Applicant, and a reply from Mr. Hartley.
DECISION
6For the reasons set out below the Tribunal grants party status to Tenants, but does not grant party status to SOS.
STATUTORY AUTHORITY
7In this matter there is both an application for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”).
8The statutory provisions with regard to party status are dealt with in the Planning Act (“PA”). Section 22(11) states that s. 17(44.1) applies with regard to adding parties on the OPA appeal and s. 34(24.1) applies with regard to the ZBA appeal.
9Section 17(44.1) states the following:
Restriction re adding parties.
Despite subsection (44), in the case of an appeal under subsection (24) or (36), only the following may be added as parties:
- a person or public body who satisfies one of the conditions set out in subsection (44.2),
- The Minister.
- The appropriate approval authority.
10Section 17(44.2) then provides:
The conditions mentioned in paragraph 1 of subsection (44.1) are:
- Before the plan was adopted, the person or public body made oral submissions at a public meeting or written submissions to the council.
- The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party.
11With regard to the ZBA appeal, s. 34(24.1 and 24.2) of the PA provide the corollary direction with regard to adding parties.
BACKGROUND AND CONTEXT
12In this matter, the appeal to the Tribunal was on the basis of a non-decision by City Council. The development proposal concerns an assembly of lands (“Subject Lands”) on the south side of Kingston Road with about 100 metres (“m”) of frontage. The Subject Lands are apparently located within a Strategic Growth Area under A Place To Grow: the Growth Plan for the Greater Golden Horseshoe. The Subject Lands are on an Avenue and predominantly designated under the City’s Official Plan as Mixed Use for the Kingston Road frontage, and with a lesser portion as Neighbourhoods. The Subject Lands are currently occupied by 33 existing rental units.
13If party status were to be granted, it would have to be under s. 22(11) and 34(24.2) of the PA: i.e., that there are reasonable grounds to do so.
ISSUE
14Thus, the issue before the Tribunal then is simply framed: are there reasonable grounds upon which to add the two companies as parties?
JURISPRUDENCE
15Perhaps the seminal case with regard to party status is 1137528 Ontario Ltd. v Oakville (Town) O.M.B.D No. 770 where the Tribunal’s predecessor (the Ontario Municipal Board) provided this guidance with regard to the “obvious factors” to be considered by the Tribunal:
a. Has an appeal already been filed in relation to the policy which is sought to be challenged? (“Prior Appeal”);
b. To what extent is the public interest advanced if party status is granted? (“Public Interest”);
c. What prejudice, if any, would be suffered by the municipality or any other party to the proceedings? (“Prejudice”);
d. Does the person seeking party status have a direct interest in the policy? (“Direct Interest”);
e. Will granting party status avoid a multiplicity of proceedings? (“Multiplicity of Proceedings”);
f. What is the historical background of the policy sought to be challenged? (“Historical Background”).
COMMENTARY AND ANALYSIS
16Mr. Hartley submits that the Tenants should be granted party status in this matter to give voice to the tenants who, if the appeals were to be allowed, will be at risk of losing their homes, their quality of life, and access to affordable housing. Attached to his written submission is a letter from a tenant of Lenmore Court concerned about the loss of her home.
17On behalf of SOS, Mr. Hartley submits that it will represent “…the interests of the broader community of the City of Toronto”.
18Mr. Hartley told the Tribunal that the companies might call expert evidence if it were necessary, but did intend to cross examine witnesses.
19Counsel on behalf of the Applicant, objects to both requests for party status. Counsel points out that recently another appeal by Mr. Hartley was dismissed by the Tribunal for failure to pay the appeal fee and failure to respond to a request by the Tribunal. Secondly counsel submits that tenant relocation and assistance in a development application is not an issue for the Tribunal but rather the power to govern rental unit replacement is found in section 11 of the City of Toronto Act, and the Applicant had already filed the Rental Replacement Application with the City. Thirdly with regard to SOS, it is noted that the broader community interest is already before the Tribunal in the form of representation for the City of Toronto, and that the Tribunal did grant party status to the Toronto Lands Corporation as agent for the Toronto School Board, and also to the Birch Cliff Village Community Residents Association.
20To the Tribunal, applying the seven obvious factors to the Tenants, the appeal is already before the Tribunal, there is a public interest in intensification and redevelopment of existing areas, the existing tenants have a direct interest in the appeal and they would be prejudiced by not granting party status to Tenants.
21With regard to SOS, when applying the seven obvious factors, while the appeal is already before the Tribunal, the public interest is well represented by the City, the Toronto Lands Corporation and the Birch Cliff Village Community Residents Association all of whom have a direct interest in the appeal, whereas SOS does not.
DECISION
22To the Tribunal, the public interest in this appeal is very well represented, and the “broader community interest” of SOS lacks nexus to the appeal.
23With regard to Tenants, while the addition of this party may extend the length of the hearing, it would be overwhelmingly prejudicial not to grant party status to a corporation to represent the existing tenants who have a very direct interest and who seek to have their collective voices heard in this matter.
24Accordingly, the Tribunal will grant party status to Tenants, but will not grant party status to SOS.
25In so doing the Tribunal cautions that the appeal is a land use planning appeal on the merits of the application, as the Tribunal has no jurisdiction with regard to matters such as tenant relocation and assistance. Thus, the Tribunal directs the Tenants to focus on the land use planning issues before the Tribunal.
26This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR 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.