Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
April 28, 2022
CASE NO(S).:
OLT-22-002510
(Formerly PL200628)
PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant:
10285773 Canada Corp.
Appellant:
1090011 Ontario Limited
Appellant:
1941 Eglinton East Holdings Inc.
Appellant:
2004085 Ontario Inc.; and others
Subject:
Proposed Official Plan Amendment
Description:
Proposed Official Plan Amendment No. 499 (Golden Mile Secondary Plan)
Reference Number:
17 134997 EPS 00 TM
Property Address:
Various Addresses
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002510
Legacy Case No:
PL200628
OLT Lead Case No:
OLT-22-002510
Legacy Lead Case No:
PL200628
OLT Case Name:
10285773 Canada Corp. v. Toronto (City)
Heard:
April 1, 2022 by video hearing
APPEARANCES:
Parties
Counsel
City of Toronto
A. Hill, D. Elmadany and N. Muscat
KS (KingsetT) Eglington Square Inc. and KS Engelhart GP Inc.
A. Brown and J. Smuskowitz
10285773 Canada Corp. and Artlife Developments
I. Tang and L. English
RRL Realty Limited
I. Andres
Toronto District School Board and Toronto Lands Corporation
P. Patterson, P. Morley and J. Lesage
Samuel Sarrick Limited
K. Sliwa and K. Vergis-Mayo
Vitmont Holdings Inc.
G. Borean
Yorkreal Holdings Inc.
J. Dawson, B. Smith and C. McDougall
SA Armstrong Ltd.
R. Uukkivi, M. Keating and R. Middleton
Mattamy Eglington Limited Partnership
A. Jeanrie
Riocan Holdings Inc, 2075936 Ontario Ltd. at al and 2076031 Ontario Ltd.
C. Lantz
1941 Eglinton east Holdings Inc.
M. Flowers
Dundeal Canada (GP) Inc.
D. Bronskill
Eglington Warden Developments Limited, 20 Ashtonbee Holdings Limited and 1920 Eglington Avenue Holdings Limited
D. Bronskill
Bell Canada
I. Tang and L. English
D. D. Acquisitions Partnership
S. Mahadevan
CP REIT Ontario Properties Ltd.
S. Tomasella and M. Bassani
Cosmetica Investments Inc.
A. Jeanrie
1090011 Ontario Limited
J. Cherniak and B. Engell
Metro Ontario Real Estate Ltd.
C. Harris
Stardell Property Management Inc.
B. Teichman and M. Cara
Mondelez Canada Inc.
K. Mullin and M. Poremba
MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON APRIL 1, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the second Case Management Conference (“CMC”) held respecting appeals against the approval of Official Plan Amendment No. 499 (“OPA 499”) also referred to as the Golden Mile Secondary Plan (“GMSP”).
2Counsel for the City of Toronto (“City”) provided the Tribunal with an overview of the GMSP as well as the Tribunal assisted mediation process to date, which resulted in certain modifications being made to the plan by City Council. These will be presented to the Tribunal as recommended settlements with various Appellants at the next CMC. Counsel also referred to a number of appeals that are site specific including Zoning By-law Amendment applications, which will be proceeding to hearings in the near future.
3Counsel for the City has requested that the Tribunal provide direction to the parties to advise the City as to which parts of OPA 499 are under appeal no later than one month prior to the next CMC and the Tribunal has directed the parties to do so. The City intends to bring a motion for approval of the un-appealed portions of OPA 499 at the next CMC.
4Counsel for the City has volunteered to maintain the Appellant Index, which will be circulated to all parties as well as the Tribunal.
5A request was made and granted to substitute the Appellant in Appeal No. 11 from 2004085 Ontario Inc. to Mattamy Eglington Limited Partnership and to note the change in counsel from Calvin Lance to Andrew Jeanrie.
FUTURE CMC
6The next CMC is scheduled for Tuesday, May 31, 2022 commencing at 10 a.m.
7The purpose of the is to:
a) Confirm which portions of OPA 499 that are un-appealed;
b) Confirm the scope of the appealed portions of OPA 499;
c) Hear settlements or resolutions (if any);
d) Hear any possible motions for consideration of matters to be consolidated or to be heard together of site specific OPA applications; and
e) Consider phasing of the OPA 499 appeals.
MOTION BY 1941 EGLINTON EAST HOLDINGS INC.
81941 Eglinton East Holdings Inc. (“1941”) brings a motion for an order of the Tribunal:
scheduling a hearing to determine, at a minimum, the appropriate land use designation of the subject block and related policy as part of 1941’s appeal of OPA 499; and
directing the parties who would be participating in the hearing referred to above to prepare and provide to the Tribunal a draft Procedural Order for the hearing including an Issues List that will include, at a minimum, Issues 1, 3 (in part), 4 (in part), 5 and 6 of 1941’s draft Issues List dated April 27, 2021.
91941 relies on the Affidavit of Michael S. Goldberg, sworn March 17, 2022 in support of its Motion.
1941 Grounds for Motion
101941 maintains that it has the support of all of the private land owners within the block located southeast of the intersection of Eglington Avenue East and Warden Avenue bounded by Eglington Avenue East, Warden Avenue, Civic Road and Prudham Gate with respect to its appeal of OPA 499.
11The subject block is currently designated General Employment Areas in the City's Official Plan and it is proposed to remain designated for employment uses in OPA 499 and the GMSP. 1941 maintains that the subject block should not be designated solely for employment uses, and should instead be designated for high density mixed-use development similar to lands immediately across the street, on the north side of Eglinton Avenue East east of Warden Avenue.
121941 maintains that it made its position known to the City prior to the adoption of OPA 499 but that OPA 499 was adopted by City Council without addressing 1941’s concerns.
13In March 2021 the City wrote to counsel for 1941 requesting that 1941 formally withdraw its appeal, in part, regarding grounds related to a conversion of lands from General Employment Areas to Mixed Use Areas, or confirm in writing that these grounds will not be pursued within the context of OPA 499. The City also claimed that the Tribunal does not have authority on the appeal of OPA 499 to authorize conversions of Employment Areas outside the City's Municipal Comprehensive Review. The City also stated that it would bring a motion to dismiss the 1941 appeal respecting its request for an employment lands conversion if 1941 did not withdraw it appeal to OPA 499.
14In April 2021 counsel for 1941 advised the City that 1941 would not be withdrawing its appeal nor would it be confirming in writing that it would not be pursuing grounds related to conversion of lands from General Employment Areas to Mixed-Use Areas within the context of 1941’s appeal of OPA 499. I will also ask the City to identify the ground upon which it alleged that the Tribunal has no authority on the appeal of OPA 499 to authorize conversions of employment areas outside the City's Municipal Comprehensive Review.
15The City has not sought a motion hearing date for an order dismissing 1941's appeal until today’s CMC.
16Counsel for 1941 argues that subsection 17(50) of the Planning Act (“Act”), on an appeal of a municipally-related Official Plan Amendment, the Tribunal may “make modifications to all or part of the plan and approve all or part of the plan as modified”. Furthermore, pursuant to Policy 2.2.5.10 the Growth Plan for the Greater Golden Horseshoe, until the next municipal comprehensive review, lands within existing employment areas may be converted to a designation that permits non-employment uses provided that certain criteria are satisfied. One of those criteria is that the conversion would “not include any part of an employment area identified as a provincially significant employment zone". Counsel for 1941 argues that the subject block is not identified as a provincially significant employment zone and consequently 1941 maintains that the Tribunal has the authority to modify portions of OPA 499 including the land use designation of the subject block and related policies in the context of the 1941 appeal.
17At the first CMC held in May 2021, the City advised the Tribunal that it was requesting Tribunal assisted mediation respecting the appeals of OPA 499 and the various parties participated in such mediation continuing into February 2022.
181941 had expressed a desire and willingness to discuss the land use designation of the subject block during these mediations but it was never addressed.
19In July 2021, 1941 submitted an employment land conversion request to the City proposing to redesignate the subject lot from General Employment Areas to Mixed Use Areas. According to counsel, this request was made out of an abundance of caution, recognizing the uncertainty associated with its appeal of OPA 499, including the City's previously stated intention to proceed with a motion to dismiss the 1941 appeal. This request was submitted expressly without prejudice to its appeal of OPA 499.
20The deadline imposed by the Province for the City to complete the Municipal Comprehensive Review process is Friday, July 1, 2022 but the City Council recently requested that the Minister of Municipal Affairs and Housing set an alternative time frame of July 2023 by which the City's Official Plan must conform with the Growth Plan for the Greater Golden Horseshoe.
211941 maintains that a hearing should be scheduled without further delay to determine the appropriate land use designation for the subject block and related policies, given that the appeal has been outstanding for nearly 16 months, and that this matter has not been subject to Tribunal assisted mediation and that at a minimum, such hearings would engage Issues 1, 3 (in part), 4 (in part), 5 and 6 set out in 1941’s draft Issues List.
22Counsel argues that scheduling a hearing without further delay would be in keeping with section 12(2) of the Ontario Land Tribunal Act , 2021(“OLTA”), which states that the Tribunal shall adopt any practices and procedures that offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceeding.
23Furthermore, the determination of the appropriate land use designation for the subject lands will have implications for the balance of the appeal as most of the other issues that 1941 has identified on his draft Issues List, apply to built form (including height and density, which could be quite different depending on the land use), and other issues pertaining specifically to mixed use development, including development with residential uses.
24Counsel pointed to paragraph 10 of the Tribunal’s Decision arising from the first CMC noting that many of the other Appellants to OPA 499 with lands already designated Mixed-Use Areas have site specific development applications, and separate appeals already before the Tribunal at various stages and were not therefore seeking hearing dates in relation to their appeals of OPA 499. 1941 does not fall into this category of Appellants, as it has not submitted site specific development applications pending a determination of the appropriate land use designation of the subject lands.
Samuel Sarick Limited Position
25Samuel Sarick Limited (Sarick) filed a Response generally supporting 1941’s Motion and also requests that the lands be included in such a hearing. It relies on the 1941 motion materials as well as the Affidavit of Nick Pileggi, sworn March 24, 2022.
City Position
26The City relies on its Notice of Response to Motion, dated March 25, 2022, including the Affidavit of Christina Heydorn, sworn March 25, 2022.
27The City opposes the 1941 Motion and requests that it be dismissed. Furthermore, the City requests that a motion date be fixed by the Tribunal to consider the City’s Motion respecting the Tribunal’s jurisdiction and the validity of the matters raised by the 1941 Notice of Appeal.
28The City argues that 1941's request to have a hearing as part of its appeal on the appropriate land use designation is premature and contrary to the Tribunal's previous ruling on the matter.
29The City argues that implementing the outcome of the mediations first, scoping matters and then proceeding to deal with other procedural and or substantive matters is in keeping with the Tribunal’s June 15, 2021 Decision recognizing the benefit of mediation and the resulting scoping and narrowing of issues on appeal.
30Counsel for the City maintains that the City has been proceeding as expeditiously as it can while being mindful and respectful of the mediation process with affected Appellants.
31The City acknowledges that the Tribunal had directed the City to bring a motion to determine the Tribunal’s jurisdiction on this matter after the completion of mediation.
32The City argues that the phasing of the hearing of OPA 499 appeals should be done comprehensively and associating like matters, similar concerns and policy areas together to provide for a cost effective, efficient and expeditious process.
33The City is not currently seeking to schedule a hearing on any matters at this CMC and will be seeking to schedule matters in an organized manner at a further CMC once all parties in this case have confirmed their remaining outstanding issues.
34The City argues that the advancement of 1941's appeal to a hearing in advance of a proper determination of comprehensive phasing of the OPA 499 appeals based on the proper scoping of issues and understanding what matters remain to be contested is prejudicial to the City and other appellants. Furthermore, there is no urgency to 1941's request nor has 1941 demonstrated any urgency to the request to schedule its appeal in advance of all other OPA 499 appeals.
35There are no active development applications under the Act or the City of Toronto Act that are predicated on OPA 499 or rely on OPA 499. There is a conversion request submitted through the City's current Municipal Comprehensive Review, all of which is subject to approval by the Minister of Municipal Affairs and Housing. There is also no appeal of the decision of the Minister on the City's Municipal Comprehensive Review to the Tribunal permitted under the Act.
36The appropriate time to determine when any part of 1941's appeal should be scheduled for hearing, subject to a determination on a future motion date of the Tribunal's jurisdiction regarding such appeal, is through a proper phasing of all of OPA 499. At that time the determination of the phasing of OPA 499, recognized by the Tribunal as a complex matter, would provide the best opportunity for a fair, just, expeditious and cost effective resolution of the merits of the proceeding in an organized and comprehensive manner.
37The City requests that the Tribunal schedule a motion date so that the Tribunal has the full evidentiary record to be able to make necessary determinations on the issue of jurisdiction as contemplated in the Tribunal decision dated June 15, 2021 arising from the first CMC which was held on May 19, 2021.
38Scheduling a motion date in the future and properly considering this matter would not prejudice 1941. Conversely setting a hearing for the 1941 appeal in advance of proper consideration of fundamental jurisdictional issues would be highly prejudicial to the City.
39Scheduling a motion date in the future would permit time to carry out City Council’s direction with respect to landowners in advance of the contested motion and result in the most fair and just expeditious resolution of the merits of the proceedings in accordance with the OLTA and the Tribunal’s Rules of Practice and Procedure.
Tribunal’s Disposition
40The Tribunal will allow the 1941 Motion and provisionally schedule a hearing pending its decision respecting the City’s Motion as to the jurisdiction to hear this matter.
41While the City argued that scheduling the 1941 appeal would prejudice it and other parties, it did not proffer any cogent evidence to support this contention. No one other than the City opposed the motion.
42The Tribunal is satisfied that it would be in the public interest to schedule the 1941 appeal for hearing to determine, at a minimum, the appropriate land use designation of the subject block and related policy. The parties who would be participating in such a hearing should also prepare and provide to the Tribunal a draft Procedural Order for the hearing including an Issues List that will include, at a minimum, Issues 1, 3 (in part), 4 (in part), 5 and 6 of 1941’s draft Issues List dated April 27, 2021.
43The Tribunal finds that scheduling a hearing without further delay would be in keeping with section 12(2) of the OLTA, which directs the Tribunal to adopt any practices and procedures that offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceeding.
ORDER
44The Tribunal orders as follows:
The Appellant in Appeal No. 11 from 2004085 Ontario Inc. is substituted by Mattamy Eglington Limited Partnership;
A further CMC is scheduled for Tuesday, May 31, 2022;
The hearing of the City’s Motion as to jurisdiction is scheduled to be heard Wednesday, July 6, 2022;
Counsel for the City and 1941 have indicated that they have agreed to a schedule for the exchange of pleadings as well as the completion of any cross-examinations on Affidavits; and
The hearing of the 1941 appeal is provisionally scheduled to commence Monday, March 6, 2023 pending the Tribunal’s decision on the City’s motion respecting jurisdiction of the Tribunal to consider this matter.
45The hearings are scheduled to proceed by video as follows:
Tuesday, May 31, 2022 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/638422541
Access code: 638-422-541 Audio-only telephone line: 1 (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 638-422-541 Monday, March 6, 2023 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/979388733
Access code: 979-388-733 Audio-only line: 1 (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 638-422-541
46Parties 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.
47Parties 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
48Persons 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.
49Individuals 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.
50I am not seized.
51There will not be any further notice.
“R.G.M. Makuch”
R.G.M. MAKUCH
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.