Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 13, 2022 CASE NO(S).: OLT-22-002461
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2245883 Ontario Inc. Subject: Application to amend Zoning By-law No. 438-86 and 569-2013 - Refusal or neglect of City of Toronto to make a decision Existing Zoning: CR T5.0 C3.0 R3.0 (south portion) AND R4A Zl.O (north portion) Proposed Zoning: Site Specific (To be determined) Purpose: To permit 44-storey mixed-use building Property Address/Description: 808 Mount Pleasant Rd Municipality: City of Toronto Municipality File No.: 17 261931 STE 22 OZ OLT File No.: OLT-22-002461 Legacy Case No.: PL180617 OLT Case No.: OLT-22-002461 Legacy File No.: PL180617 OLT Case Name: 2245883 Ontario Inc. v. City of Toronto
Heard: April 8, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Dr. Michael Shunock | J. Feiner, H. Brown |
| 2245883 Ontario Inc. | A. Skinner |
| City of Toronto | M. Piel |
DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Dr. Michael Shunock (“the Requestor”) seeks Party status in this Zoning By-law Amendment (“ZBA”) appeal pertaining to 808 Mount Pleasant Road (“site”) in Toronto.
22245883 Ontario Inc., the current owner of the site, acquired it from the previous owner, 2284064 Ontario Inc. (“together, the Applicant”). The Applicant had appealed to the Tribunal on the absence of a decision on its ZBA by the City of Toronto (“City”).
3The Applicant and the City oppose the Requestor’s Motion for Party status.
4For the reasons set out herein, the Tribunal denies the Motion.
BACKGROUND
5On the submissions of the Parties to this Motion, the Tribunal finds the following background to be factually correct, as supported by the Parties’ sworn Affidavits.
6Back in 2011, the Requestor sold his property at 820 Mount Pleasant Road to the Applicant on the condition that he be granted a right to purchase up to 3,500 square feet of main floor commercial space in the resulting development, at a specified cost per square foot.
7Following the Requestor’s registration on title of the right to purchase, the Applicant applied to the Court seeking to nullify such right. In 2017, the Court found that the Requestor’s right to purchase constituted a valid contingent interest in land, but recognized that how and where it will apply to a specific project remained unresolved given the absence of a development plan at that time.
8The Applicant filed a ZBA application to the City in late 2017 for the development of a mixed-use building. The City commenced notice and circulation of the ZBA application in early 2018, including sending Notice to the Requestor. The Requestor asserts that he received no such Notice.
9The Requestor did not attend the City’s community consultation meeting and did not make oral or written submissions to the City on the ZBA.
10The Applicant had purchased additional properties adjacent to the site which resulted in the Applicant, as the current owner, revising the development plan and filing a new ZBA application to the City on September 24, 2021, being just prior to the Tribunal’s first Case Management Conference (“CMC”) held five days later. The Applicant’s Affidavit confirms that the Requestor was sent Notice of the CMC, including instructions on how to seek Party status, if so desired. The Requestor asserts that he did not receive Notice.
11The Requestor did not attend the CMC and did not file a written request for Party status at that time.
12Roehampton Towers Inc. (the “Added Party”), a neighbour to the site, sought and was granted Party status at the CMC.
13A second CMC was held on December 3, 2021 at which the Applicant and the City advised of their settlement based on a final development plan and revised ZBA, leaving only the Added Party’s issues for a disputed hearing. Following further direction from the Tribunal, the Added Party advised on February 11, 2022 that it would not be pursuing its issues and withdrew as a Party.
14With the settlement of the Applicant and the City, and there being no other Parties, a settlement hearing would normally ensue. However, the Requestor filed a Party Status Request Form on February 12, 2022 which the Tribunal directed to this written Motion hearing.
15In the Request Form, the Requestor advises that he: supports the development, provided the right to purchase is satisfied; considers the ZBA to satisfy all legislative tests and represent good planning; will not be calling witnesses; has no issues to add to the Issues List; and requests the opportunity to cross-examine witnesses and make opening and closing submissions at the hearing.
16The site’s development plan includes conveying certain lands to the City as a parkland dedication, including 820 Mount Pleasant Road, which title includes the Requestor’s right of purchase. The Parties’ settlement includes a condition that this right of purchase be extinguished such that no encumbrances remain to the parkland dedication and eventual City ownership.
17The Requestor submits that he now takes issue with the size and location of the parkland dedication with reference to the requirements of s. 2.3 and s. 2.4 of Official Plan Amendment 405 (“OPA 405”).
18The Requestor’s Affidavit attests that, upon recent discussions with the Applicant, the Requestor believes the Applicant will honour the right to purchase or will arrange a buy-out of such right. However, this position appears contradicted by an email exchange provided by the Applicant, in which the Requestor notes that the Applicant does not recognize his future right of ownership.
REGULATORY CONTEXT
19The Applicant’s appeal on the proposed ZBA arises through s. 34(11) of the Planning Act (“Act”). Under s. 34(24.1) and s. 34(24.2) of the Act, a potential Party must have made oral submissions at a public meeting or written submissions to the council, or the Tribunal must be satisfied that reasonable grounds exist to grant Party status. These themes are carried forward in the Tribunal’s Rules of Practice and Procedure (“Rules”) related to Parties.
20Rule 8.2 of the Tribunal’s Rules enables the adding of a Party to a proceeding when “that person satisfies any applicable legislative tests necessary to be a party” and “provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.” Rule 8.1 notes that a person conferred party status may “identify issues raised in a notice of appeal for the approval of the Tribunal.”
FINDINGS
21The Requestor submits that he has a legitimate interest in this proceeding due to his registered right of purchase, and because he raises planning concerns regarding the size and location of the proposed parkland.
22The Applicant and the City respond that the right of purchase is a private, legal matter outside the Tribunal’s jurisdiction and that the Applicant’s perceived purchase rights are the only basis for the Party status request. Further, they contend that the planning issue of parkland dedication arises only from the right of purchase, and as a potential planning issue, is raised far too late in this hearing process and is not supported by planning evidence.
23The Tribunal accepts the Requestor’s contention that the parkland dedication and the City’s requirement for clear and unencumbered title affects his right to purchase. However, such right is not a land use planning matter, but a legal matter for which the Tribunal has no jurisdiction. Given the proposed settlement, the Applicant and the Requestor may well need to discuss and resolve, on consent or through legal channels, the resulting effects on the right to purchase, but such issue is not for the Tribunal to consider or determine.
24To matters of participation, the Requestor submits that the City and the Applicant failed to issue him Notice and failed to keep him informed of the proceedings and the eventual settlement. On this issue, the Tribunal accepts the City’s Affidavit as conclusive evidence that Notice was given as required by the Act. Similarly, the Tribunal accepts the Applicant’s Affidavit confirming that Notice was sent to the Requestor for the first CMC.
25The Requestor’s own evidence explains that he remained in regular contact with City officials, demonstrating his awareness of a slow, but continuing, development review process, and yet the Requestor failed to engage in both the City’s formal public process and the Tribunal’s proceedings. A fair and efficient process warrants the early identification of Parties and their issues in preparation for a hearing or potential settlement. The Requestor failed to be involved from the outset of this application at the City, and then again failed to engage at the appropriate CMC stage of the Tribunal.
26Only after filing the Party Status Request Form did the Requestor raise a potential planning issue, being parkland. The Requestor provides no rationale or planning evidence in support of his contention that the proposed parkland is improper. It is clear to the Tribunal that such issue was raised on the Requestor’s learning that a component of the proposed settlement involving parkland affects his right to purchase, and that a planning issue is required in support of Party status. In other words, the Tribunal finds that the issue raised is not parkland as a planning matter, but rather parkland as it relates to a private legal matter. It is understandable that the Requestor is concerned with the effect of the Applicant and City’s settlement related to parkland requirements. However, the Tribunal finds that the Requestor’s interest does not relate to matters of planning but rather to matters of legal rights and potential future ownership.
27Moreover, the Requestor does not explain how the OPA 405 references in support of parkland issues have relevance here. The cited s. 2.3 relates to an Urban Growth Centre and s. 2.4 involves Midtown Transit Station Areas, with neither section appearing to relate directly to matters of parkland. In response, the City’s planner confirms that the acquisition of parkland here conforms with the Yonge-Eglinton Secondary Plan.
28The Parties refer to, or engage the principles arising from, the case of Oakville (Town), Re 2010 CarswellOnt 7078, 66 O.M.B.R. 366 in which Vice-Chair Stefanko established the often cited “six tests” for Party status, summarized here as: an open appeal file; a valid public interest; the potential for prejudice; a direct interest; efficient proceedings; and relevant background. On the Requestor’s submissions, for the reasons explained earlier, the Tribunal finds that the request fails to satisfy most of the six tests: the absence of a valid public interest; a direct private interest but one outside the Tribunal’s jurisdiction; an undue complication to efficient proceedings; and the absence of relevant background to the general matter of parkland planning.
29In summary, the Tribunal finds that the Requestor failed to make oral or written submissions to the City, fails to provide reasonable grounds in support of Party status, and therefore does not satisfy the requirements of s. 34(24.1) and s. 34(24.2) of the Act. Consequently, the Requestor fails the legislative tests required by the Tribunal’s Rule 8, and the Tribunal finds that the Requestor’s presence is not necessary for the effective and complete adjudication of the issues in this case.
30To the Applicant’s raising of a potential Motion for Costs, the Tribunal will discourage but not prevent such filing. The Parties are cautioned that, on a preliminary basis, the Tribunal understands the Requestor’s impetus for seeking Party status given the legal matter arising from the proposed development plan, despite its resolution being found here to be a private matter between the Applicant and the Requestor. The Tribunal is inclined to be generous in the belief that the Requestor’s predicament results from a failure to understand the importance and benefits of early participation in a planning process in the pursuit of bona fide planning issues. The Act guarantees public engagement but places reasonable and appropriate conditions on such involvement.
ORDER
31The Tribunal Orders that the Motion of Dr. Michael Shunock seeking Party status is denied.
“S. Tousaw”
S. tousaw
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.