Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 26, 2022
CASE NO(S).: PL210235
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Bel Ontario Inc & BJL Properties Ltd.
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: Reinvestment Area (RA) - Zoning By-law 438-86; Commercial Residential Employment (CRE) (x41) - Zoning By-law 569-2013
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit a 38-storey mixed-use building
Property Address/Description: 429-455 Richmond St E & 69,71,75 Ontario St
Municipality: City of Toronto
Municipality File No.: 19 265929 STE 12 OZ
OLT Case No.: PL210235
OLT File No.: PL210235
OLT Case Name: Bel Ontario Inc & BJL Properties Ltd. v. Toronto (City)
Heard: January 12, 2022 by video hearing
APPEARANCES:
Parties
Counsel*/Representative
Bel Ontario Inc. and BJL Properties Ltd.
Eileen Costello*
City of Toronto
Ray Kallio* Michael Mahoney* Colin Dougherty*
1734140 Ontario Limited
Michael Domovitch
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON JANUARY 12, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the second Case Management Conference (“CMC”) with respect to the appeal of Bel Ontario Inc. and BJL Properties Ltd. (“the Applicants”) pursuant to s. 34(11) of the Planning Act (the “Act”) arising from the City of Toronto’s (“City”) failure to make a decision within the statutory timeframes on a Zoning By-law Amendment Application (“Application”).
2The municipal addresses for the property are 69, 71 and 75 Ontario Street and 429-455 Richmond Street East, City of Toronto (“Subject Property”).
3The purpose of the Application is to facilitate a proposed 38-storey mixed use building with approximately 354 residential dwelling units and 394 square metres (“sq m”) of commercial space located at grade level.
PARTY STATUS REQUEST
4In advance of the first CMC held before a panel differently constituted on September 8, 2021 the Tribunal received one request for Party status from 1734140 Ontario Limited (“4140”) who is represented by Michael Domovitch. At the first CMC the Tribunal deferred granting Party status to 4140 until issues and witnesses were further established.
5Mr. Domovitch advised the Tribunal that 4140 continued to seek Party status for a number of reasons, including but not limited to the proximity of 4140’s property to the Subject Property and 4140’s involvement in the Application to date. When questioned by the Tribunal, Mr. Domovitch advised that 4140 would be calling at least one expert planning witness during the hearing of the merits, but that expert has yet to be retained.
6Mr. Domovitch noted that due to illness, he had made several adjournment requests of the Tribunal. The Tribunal reminded Mr. Domovitch that the Tribunal had responded to each adjournment request and that only Parties to a proceeding could make a request for an adjournment and that his Party status has yet to be determined.
7Ms. Costello objected to 4140’s request for Party status for three reasons. First, Ms. Costello stated that the Application would have no impact on 4140’s property as there is another property and a municipal road separating the two. Second, Ms. Costello raised concern with Mr. Domovitch’s conduct. She noted that Mr. Domovitch did not come prepared with an Issues List nor Witness List to the first CMC. Ms. Costello further noted that the Issues List that was circulated by Mr. Domovitch in advance of this CMC failed to set out the precise issues that must be decided by the Tribunal, the specific policies in dispute, the specific municipal addresses being referred to and contained repetition of the issues presented by the City. Third, Ms. Costello noted that many of 4140’s issues relate to impact on its development for which there has yet to be a development application filed or a land use planner retained.
8Mr. Kallio did not dispute any of the reasons that Ms. Costello put forward in her objection to the Party status request. Mr. Kallio did note that the City has no objection to 4140 being granted Party status. He noted that 4140 does have an interest as a landowner and that 4140 should be made a Party to these proceedings.
9The Tribunal carefully considered the submissions of the Parties and ordered that 4140 is granted Party status. 4140 has a genuine interest in the matter and is a landowner in close proximity to the Subject Property and advised the Tribunal that they would be bringing a full case. The Tribunal did note that the Parties must act in a courteous and respectful matter in all of their dealings with the Tribunal and with one another moving forward.
SETTLEMENT DISCUSSIONS
10The Tribunal reminded the Parties that Tribunal-led mediation is available if it would assist the Parties in any way and that requests can be made through the Case Management Coordinator.
ISSUES LISTS AND PROCEDURAL ORDER
Issues Lists
11Prior to the commencement of the CMC, Ms. Costello provided the Tribunal with a draft Procedural Order (“PO”) including a draft Issues List of the City. Under separate cover, the Tribunal also received a draft Issues List of 4140 in the event that they would be granted Party status.
12The Parties did not have any concerns with the draft Issues List of the City.
13The Tribunal provided a general direction to all Parties that the Issues List of 4140 was repetitive and broad and the Parties should work together to scope the issues. The Tribunal reminded the Parties that the purpose of an Issues List is to set out the precise issues that the Tribunal will be asked to decide and the case that the Parties are being asked to meet.
14Ms. Costello submitted that there is repetition in 4140’s Issues List with that of the City. In addition, Ms. Costello noted that a number of the issues on 4140’s list related to a development application of 4140 that does not exist as yet and it would not be appropriate for this Application to be tested against something that does not exist.
15Mr. Kallio did not have any comments with respect to 4140’s Issues List.
16The Tribunal directed that the Parties work together to remove repetition from 4140’s Issues List and scope the issues so that they are precise and specific. At the CMC, the Tribunal set out a timeline for the Parties with respect to the revision of 4140’s Issues List culminating in a revised PO and Issues List to be filed with the Tribunal by Ms. Costello on or before January 21, 2022.
17Subsequent to the CMC the Tribunal was notified by Mr. Domovitch of a health issue that prevented him from meeting the established deadline referred to in paragraph 16 above. The Tribunal granted the Parties an extension of the deadlines as follows:
Mr. Domovitch will provide the Parties with a revised Issues List that adheres to the Tribunal’s direction before end of business day on Monday, February 14, 2022;
Ms. Costello and Mr. Kallio will provide comments on the revised Issues List to Mr. Domovitch before end of business day on Wednesday, February 16, 2022;
Ms. Costello will file with the Tribunal a revised PO with attached Issues List on consent before end of business day on Friday, February 18, 2022.
Procedural Order
18At the commencement of the CMC, Mr. Kallio advised the Tribunal that after discussing timingwith Ms. Costello, the timelines in the originally submitted PO had been shortened.
19Mr. Domovitch noted that he was not involved in the discussions and that he would like time to consider the amended timelines. The Tribunal reminded Mr. Domovitch that when the timeline discussion took place, 4140 was not a Party and as such, there was no need for the Parties to consult with Mr. Domovitch. The Tribunal also noted that its website contains draft Procedural Orders for review and use by the public and the timelines in the those drafts are stricter than those being proposed by Mr. Kallio and Ms. Costello. As such, the Tribunal approved the amended timelines agreed upon by Mr. Kallio and Ms. Costello as follows:
Paragraph 11 – 60 days (change from 120 days)
Paragraph 12 – 50 days (change from 60 days)
Paragraph 15 – 45 days (change from 60 days)
Paragraph 17 – 25 days (change from 45 days)
Paragraph 18 – 15 days (change from 30 days)
20As stated in paragraph 17 above, Ms. Costello will file an amended PO containing the amended timelines with the Tribunal on or before Friday, February 18, 2022.
HEARING
21The Parties requested that the Tribunal schedule a ten (10)-day hearing for the appeal. They identified witnesses that they propose to call and the time that they estimate that each would need. The Tribunal has scheduled a ten (10)-day hearing commencing Monday, January 16, 2023.
ORDER
22The Tribunal orders that 1734140 Ontario Limited is a Party in these proceedings.
23The Tribunal directs that Ms. Costello provide a final Procedural Order with revised Issues List to the Tribunal on or before Friday, February 18, 2022.
24The Tribunal orders that the hearing in this matter will be held by video hearing on Monday, January 16, 2023 commencing at 10 a.m. Ten days have been set aside.
25Parties 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://global.gotomeeting.com/join/553571725
Access code: 553-571-725
26Parties 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
27Persons 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: (647) 497-9391 or Toll Free 1-888-455-1389. The access code is 553-571-725.
28Individuals 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.
29The Panel Member is not seized.
30No further notice will be given.
31This is the Order of the Tribunal.
“C. Hardy”
C. HARDY
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.