Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 06, 2022
CASE NO(S).: OLT-22-002287 (Formerly PL151222)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2226396 Ontario Inc., Et Al
Subject: Request to amend the Official Plan - Failure of City of Toronto to adopt the requested amendment
Existing Designation: Mixed Use Areas and Neighbourhoods
Proposed Designated: Mixed Use Areas Special Provision to be determined
Purpose: To permit mid-rise building that will include retail and commercial units
Property Address/Description: 53-63 Sheppard Avenue West & 62-68 Bogert Avenue
Municipality: City of Toronto
Approval Authority File No.: 15 170269 NNY 23 OZ
OLT Case No.: OLT-22-002287
Legacy Case No.: PL151222
OLT Lead Case No.: OLT-22-002287
Legacy Lead Case No.: PL151222
OLT Case Name: 2226396 Ontario 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: 2226396 Ontario Inc., Et Al
Subject: Application to amend site specific Zoning By-law No. 609-2001 and Zoning By-law 7625 - Refusal or neglect of City of Toronto to make a decision
Existing Zoning: Site-Specific Zoning By-law No. 609-2001
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit mid-rise building that will include retail and commercial units
Property Address/Description: 53-63 Sheppard Avenue West & 62-68 Bogert Avenue
Municipality: City of Toronto
Municipality File No.: 15 170269 NNY 23 OZ
OLT Case No.: OLT-22-002293
Legacy Case No.: PL151223
OLT Lead Case No.: OLT-22-002287
Legacy Lead Case No.: PL151222
PROCEEDING COMMENCED UNDER subsection 69(3) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: 2226396 Ontario Inc., Et Al
Subject: Protest the levying of fees in relation to an application for Official Plan Amendment and Zoning By-law Amendment
Property Location/Description: 53-63 Sheppard Avenue West & 62-68 Bogert Avenue
Municipality: City of Toronto
OLT Case No.: OLT-22-002299
Legacy Case No.: MM160021
OLT Lead Case No.: OLT-22-002287
Legacy Lead Case No.: PL151222
Heard: March 31, 2022, by Video Hearing (“VH”)
APPEARANCES:
Parties
Counsel
Sheppard Bogert Developments Limited (“Applicant”)
D. Bronskill
City of Toronto (“City”)
R. Kallio
MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON MARCH 31, 2022, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal held a Case Management Conference (“CMC”) to hear a status update with regard to an Interim Decision issued by the Tribunal on October 12, 2017.
2For the reasons set out below, the Tribunal set the matter down for two days commencing on Tuesday, June 14, 2022, and continuing, if required, on Wednesday, June 15, 2022.
DECISION
3The Tribunal’s Interim Decision in 2017 dealt with an Official Plan Amendment (“OPA”) and Zoning By-law Amendments (“ZBAs”) to facilitate the development of the lands known municipally as 53-63 Sheppard Avenue West, and 53-63 Bogert Avenue (“Subject Lands”) with a mixed use development including a 15 storey building and 7 townhouses.
4The Tribunal’s Decision was issued on an interim basis as it is noted at paragraph 36 that at the outset of the hearing, the parties had advised that all matters relating to s. 37 of the Planning Act contributions, site plan approval, and an appeal with respect to payment under protest, were matters to yet be dealt with by the parties.
5With regard to the status update, the Tribunal was advised by counsel for the Applicant that there was a new owner of the Subject Lands and that there were new plans envisaging a 16-storey building, but using the height approved by the Interim Decision. The Tribunal was also advised that with regard to the s. 37 contribution that there was a general agreement in principle with regard to the quantum and his instructions were not to contest the payment of the fees (MM160021).
6Counsel for the City submitted that the Tribunal had made its decision in 2017 and now the Applicant seeks to change the plans and if it wants to do that, it should make a new application to the City. He further submitted that the record is clear that the Tribunal is functus officio and has no jurisdiction to hear the matter as the hearing is over and it cannot be re-opened.
7Counsel for the Applicant indicated that he understands that the City wishes to put forward the jurisdictional argument and that can be accommodated by a motion, and that if the motion were successful then that would be the end of the matter, but if the motion were unsuccessful, then the most efficient and expeditious path forward would be to have a scheduled second hearing day to deal with the land use planning evidence.
8Counsel for the City was agreeable to this proposed approach.
9The Tribunal inquired of counsel if they had any submissions as to whether the original Tribunal member was seized of this matter?
10Counsel for the Applicant submitted that it would be helpful to have that member but that it was not necessary. Counsel for the City indicated that any member could hear the motion on jurisdiction, but if the hearing were continued to deal with the land use planning matter, the member who heard the matter in 2017 would be seized and it should be the same member.
11The Tribunal having heard the submissions of counsel set a two day hearing for Tuesday June 14, 2022, and continue, if necessary, on Wednesday June 15, 2022, commencing at 10 a.m. by VH.
12Parties and participants 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://meet.goto.com/914098901
Access code: 914-098-901
13Parties and participants 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
14Persons 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: +1 (647) 497-9373. The access code is 914-098-901.
15Individuals 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 hearing 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.
16There will be no further notice.
17I am not seized.
DIRECTIONS
18DIRECTIONS
19The Tribunal will provide the following directions with regard to the two day hearing.
20The first matter to be dealt with is the jurisdictional argument, which will be heard first.
21To that end, the City will serve and file its Motion materials relating to the jurisdiction of the Tribunal on or before Monday, May 2, 2022.
22The Applicant will serve and file its Motion Response on or before Friday, May 13, 2022.
23The Tribunal will hear the oral submissions of counsel on the Tribunal’s jurisdiction.
24With regard to the land use planning matter, the Tribunal directs that land use planning evidence will be provided by affidavit, supplemented by any visual evidence. The Applicant shall serve and file its land use planning evidence on or before Friday May 13, 2022.
25The City will serve and file its Response on or before Monday May 23, 2022.
26In the event that the Motion is allowed, the hearing will terminate. In the event that the Motion is dismissed, the hearing will continue based solely on counsel submissions on the land use planning affidavits and visual evidence in a manner similar to the former Bill 139 process.
27If there is to be any cross examination of the affiants, it is to be completed prior to the scheduled hearing, and relevant transcript extracts provided.
28All Motion materials (including Books of Authorities) and all land use planning evidence and visual evidence shall be filed with the Tribunal’s Case Coordinator in both electronic and hard copy formats in accordance in accordance with the timing set out above.
29Should the need arise, I may be spoken to with regard to these directions.
30Finally with regard to the appeal on the contested payment of fees, counsel for the Applicant undertook to forward a letter of withdrawal of that appeal and thus close File MM160021 (if it has not already been closed through the actions of the former counsel for the predecessor owner of the Subject Lands).
31This 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.