Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 02, 2022
CASE NO(S).: OLT-21-001851
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Gabriela Salvatore
Subject: By-law No. 916-2021
Municipality: City of Toronto
OLT Case No.: OLT-21-001851
OLT Lead Case No.: OLT-21-001851
OLT Case Name: Salvatore v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Gabriela Salvatore
Subject: By-law No. 917-2021
Municipality: City of Toronto
OLT Case No.: OLT-21-001851
OLT Lead Case No.: OLT-21-001852
OLT Case Name: Salvatore v. Toronto (City)
Heard: May 19, 2022 by video hearing (“VH”)
APPEARANCES:
Parties
Counsel
Gabriele Salvatore (“Appellant”)
M. Paiva, G. Croser
315 Spadina Facility Inc./ 315 Spadina LP (“Applicant”)
D. Bronskill, Z. Fleisher
City of Toronto (“City”)
M. Crawford
DECISION DELIVERED BY D. ARNOLD AND K.R. ANDREWS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing consisted of a Case Management Conference (“CMC”) and a motion to dismiss the appeal brought by the Applicant in this matter. The Appellant appealed the City’s decision to amend Zoning By-law Nos. 569-2013 and 438-86 through Zoning By-law Amendment Nos. 916-2021 and 917-2021 (the “ZBA”) to permit the proposed development described below for the lands municipally known as 315-325 Spadina Avenue, in the City of Toronto (the “Subject Property”). The Subject Property is located on the east side of Spadina Avenue and bounded by D’Arcy Street to the south, and a public lane at the rear.
2The proposed development consists of 15,294 square metres of gross floor area (“GFA”), including approximately 893 square metres of commercial space on the ground floor and 219 dwelling units, of which 10% of the dwelling units will be reserved for affordable rental housing. The Applicant agreed to provide this affordable housing component in exchange for certain increased density and/or height permission from the City pursuant to a voluntary agreement entered into between the City and the Applicant (the “s. 37 agreement”). The applicable statutory authority for the s. 37 agreement is described in the following paragraph.
3Section 37 of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) was amended by provisions of the COVID-19 Economic Recovery Act, 2020, S.O. 2020, c. 18 (the “2020 Act”) in order to provide for what is commonly referred to as the community benefits charges by-law regime. It is noted, however, that the s. 37 agreement was entered into by the City and the Applicant during the transition period provided pursuant to s. 37.1 of the Act (as amended by the 2020 Act) such that the statutory authority for the s. 37 agreement is the following predecessor version of s. 37 of the Act (commonly referred to as the density bonusing provision):
Increased density, etc., provision by-law
37(1) The council of a local municipality may, in a by-law passed under section 34, authorize increases in the height and density of development otherwise permitted by the by-law that will be permitted in return for the provision of such facilities, services or matters as are set out in the by-law.
Condition
(2) A by-law shall not contain the provisions mentioned in subsection (1) unless there is an official plan in effect in the local municipality that contains provisions relating to the authorization of increases in height and density of development.
Agreements
(3) Where an owner of land elects to provide facilities, services or matters in return for an increase in the height or density of development, the municipality may require the owner to enter into one or more agreements with the municipality dealing with the facilities, services or matters.
Registration of agreement
(4) Any agreement entered into under subsection (3) may be registered against the land to which it applies and the municipality is entitled to enforce the provisions thereof against the owner and, subject to the provisions of the Registry Act and the Land Titles Act, any and all subsequent owners of the land. R.S.O. 1990, c. P.13, s. 37.
Service of Notice of CMC
4There was no issue with service of the Notice of this CMC, and so no further notice is required. The Tribunal was in receipt of the Affidavit of Service of Justin Niddrie sworn March 14, 2022, which was marked as Exhibit 1 in evidence in this proceeding.
REQUESTS FOR STATUS
5No persons appeared at the CMC to request party or participant status.
MOTION TO DISMISS THE APPEAL WITHOUT A HEARING
6The Applicant served and filed with the Tribunal a Notice of Motion returnable at the present CMC, seeking an order dismissing the Appeal without a hearing pursuant to s. 34(25) of the Act and s. 9(1) and, or in the alternative, pursuant to s. 19(1)(c) of the Ontario Land Tribunal Act, 2021 (the “Motion”). The City served and filed a Response in support of the Motion. The Appellant served and filed a Response opposing the Motion.
7At the outset of oral submissions on this Motion, counsel for the Appellant advised that the Appeal is scoped to the issue of affordable housing and the insufficiency of affordable housing units prescribed by the ZBA only. Specifically, the scoped Appeal is now limited to the following grounds of appeal set out in the Notice of Appeal:
[T]he [ZBA] has a time limit on its provision of affordable housing (para. 9); and,
[T]he [ZBA] does not provide sufficient affordable housing units. (para. 10).
As such, submissions and considerations by the Tribunal on the Motion were restricted to this issue.
8The following documents were entered as Exhibits in Evidence in connection with this Motion:
Exhibit #2: The Applicant’s Motion Record
Exhibit #3: The Affidavit of Gabriela Salvatore sworn May 11, 2022
Exhibit #4: The Affidavit of Aimee Powell sworn May 11, 2022
Exhibit #5: The City’s Responding Motion Record.
THE APPLICANT’S POSITION ON THE MOTION
9The Applicant’s position is that the Appeal should be dismissed pursuant to s. 34(25) of the Act because the Appeal does not disclose an apparent land use planning ground on which the Tribunal could allow all or part of the Appeal and (or in the alternative) the Appeal should be dismissed pursuant to s. 19(1)(c) of the Ontario Land Tribunal Act, 2021, because the Appeal has no reasonable prospect of success.
10The Applicant submits that the Tribunal does not have jurisdiction to grant the relief sought by the Appellant. Specifically, the Applicant submits:
(a) Section 34 does not provide legislative authority to regulate, prohibit or restrict the affordability of a residential dwelling unit because this authority only relates to the use of the land or building itself (i.e., residential) and not to the person carrying on the use (and in this case, the financial circumstances and corresponding affordability of the residential use of the subject building by such persons). The Applicant referred to the Supreme Court of Canada decision in R. v. Bell 1979 CarswellOnt 579 (S.C.C.) (“Bell”) in this regard;
(b) Although s. 35.2 of the Act (commonly known as the “inclusionary zoning provisions”) provides certain legislative authority for municipalities to pass by-laws under s. 34 (and, by extension that may be considered by the Tribunal on appeal of such by-laws) to require the inclusion of affordable housing units in certain prescribed circumstances, these provisions are inapplicable to the ZBA that is the subject of the Appeal for a number of reasons, most notably that the application that was made for the ZBA predates inclusionary zoning policies of the City being in force and effect.
(c) There is no legislative authority for the Tribunal to issue an Order to amend the s. 37 agreement. The applicable s. 37 of the Act provided an entirely voluntary process by which property owners and municipalities may choose to negotiate the “quid pro quo” terms of an agreement whereby the property owner “elects to provide” certain facilities, services or matters in return for the municipality permitting increased density and/or height of a development than would otherwise be permitted by the Zoning By-law. Neither a municipality that enters into such an agreement, nor the Tribunal on appeal, has legislative authority to unilaterally amend the agreement to impose a requirement on the Applicant to provide more affordable housing and/or compel the City to provide inducements for same such as additional density or density; and,
(d) None of the policies of the Provincial Policy Statement (“PPS”), the City’s Official Plan (“OP”) nor the matters of provincial interest identified in s. 2 of the Act provide legislative authority for the City (or the Tribunal) to prescribe affordable housing requirements in a zoning by-law passed under s. 34 of the Act.
11In summary, the Applicant submits that the Appeal should be dismissed without a hearing as it does not disclose an apparent land use planning ground on which the Tribunal could grant the relief sought by the Appellant. In this regard, the Applicant referred to several decisions of the predecessor Tribunal, the Ontario Municipal Board, including: Whitely, Re (2012) CarswellOnt 6471 (O.M.B.) and Zellers Inc. v. Leamington (Town) (1999) CarswellOnt 4270 (O.M.B.) and Toronto (City) v. East Beach Community Association (1996) CarswellOnt 5740 (O.M.B.) as well as the Tribunal decision in ACORN v. Ottawa (City) (2022) CarswellOnt 7229 (O.L.T.).
THE CITY’S POSITION ON THE MOTION
12The City supported the Applicant’s Motion. It submits that s. 34(1) provides “an exhaustive list” of what can be regulated in a zoning by-law and affordable housing is not included.
13The City submits that there are only two ways to require affordable housing in connection with a zoning by-law amendment: (a) an inclusionary zoning by-law; and (b) through an agreement entered into, pursuant to the density bonusing provision of the former version of s. 37 of the Act.
14The City submits that the inclusionary zoning provisions do not apply to the application that was made for the ZBA and consequently, there is no jurisdiction of the Tribunal to amend or modify the ZBA to include an affordable housing component pursuant to those provisions. The City, therefore, utilized the only legislative authority available to it, being an agreement pursuant to s. 37 of the Act, in order to negotiate an affordable housing component comprising of approximately 10% of the residential units in exchange for permitting certain increased height and/or density in connection with the proposed development.
15The City agrees with the Applicant that the Tribunal has no jurisdiction to alter the mutually voluntary terms of an agreement made by a municipality and a property owner pursuant to s. 37 of the Act.
THE APPELLANT’S POSITION ON THE MOTION
16The Appellant opposes the Motion and submits that the Tribunal has jurisdiction to adjudicate and determine whether the relief sought by the Appellant should be granted. The Notice of Appeal filed by the Appellant stated that the ZBA is not consistent with the PPS and the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and does not conform with the City’s OP. The Notice of Appeal identifies two specific grounds of appeal pertaining to affordable housing, specifically: “the [ZBA] has a time limit on its provision of affordable housing” and “the [ZBA] does not provide sufficient affordable housing units.”
17The Appellant submits that s. 34 provides legislative authority for the Tribunal to amend the ZBA to increase the required amount of affordable residential housing units in accordance with the guidance of the Act and policy instruments. The Appellant submits that affordable housing is not “zoning by user” but rather a use in and of itself as a benefit to the community and to provide an “adequate range of housing” as contemplated by, among other things, s. 2(j) of the Act.
18The Appellant referred to the Act as well as provincial and OP policies, which the Appellant submits confer jurisdiction to amend or modify a zoning by-law as it relates to affordable housing, including:
(a) Section 2(j) of the Act, which requires that the Tribunal “shall have regard to... the adequate provision of a full range of housing, including affordable housing”;
(b) Policy 1.1.1(b) of the PPS states that “Healthy, liveable and safe communities are sustained by […] accommodating an appropriate affordable and market-based range and mix of residential types (including single-detached, additional residential units, multi-unit housing, affordable housing and housing for older persons)”;
(c) The Growth Plan provides various policies supporting a diverse range and mix of housing options and densities, including the establishment of targets for affordable housing and rental housing in municipal OPs; and
(d) The City’s OP contains policies that promote the provision of a full range of housing that meets the needs of a diverse population, including affordability considerations.
19The Appellant referred to the decision in De Luca v. Niagara Falls (City) 2021 CanLII 780 (L.P.A.T.) in support of the position that whether the ZBA will facilitate the provision of a range of housing is a genuine planning issue to be considered in determining consistency with the PPS and conformity with the Growth Plan and the OP.
20The Appellant submits that as the affordable housing component described in the s. 37 agreement between the Applicant and the City has been incorporated into the ZBA passed by the City, the Tribunal has jurisdiction to amend or modify this component pursuant to s. 34(19) of the Act. The Appellant submits that s. 11.2 of the Agreement states that “nothing [in this Agreement] shall be construed as purporting to limit the authority of the [Tribunal] to make amendments to the Zoning By-law Amendments affecting the Lands on appeal…” and accordingly, the Tribunal has jurisdiction to amend the ZBA to increase the amount of required affordable housing units.
21Consistent with the submissions of the Applicant and the City, the Appellant agrees that the inclusionary zoning provisions of the Act and any enabling OP policy do not apply in respect of the ZBA and this Appeal, as the Application that was the basis of the ZBA predates applicability of the inclusionary zoning provisions.
22The Appellant submits that the relief sought on the Appeal is for the Tribunal to “deem inconsistent” the ZBA with “provincial and local policies and, in so finding, either amend the ZBA to prescribe a larger percentage of affordable housing units (proposing 25%) and/or change the time period that such units are provided or, alternatively, to provide “guidance” on the meaning of “adequate housing” as that term is used in the various provincial and local planning legislation and policies. The Appellant submits that such guidance would be of invaluable assistance to municipalities, developers, and members of the public for consideration on future developments in Ontario. The Appellant submits that the Tribunal has a “duty to adjudicate on the issue of [housing] adequacy to provide direction to developers and municipalities moving forward.”
ANALYSIS AND FINDINGS
23The Act and the Ontario Land Tribunal Act, 2021 establish criteria for consideration of dismissing an appeal without a full hearing on the merits. Section 34(25) of the Act provides:
Dismissal without hearing
34(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:
- The Tribunal is of the opinion that,
i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,
ii. the appeal is not made in good faith or is frivolous or vexatious,
iii. the appeal is made only for the purpose of delay, or
iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.
The appellant has not provided written reasons for the appeal.
The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.
The appellant has not paid the fee charged by the Tribunal.
The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.
24Also pertinent to this Motion, s. 19(1)(c) of the Ontario Land Tribunal Act, 2021 provides that the Tribunal may dismiss a proceeding without a hearing “if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.”
25The Parties agreed and the Tribunal finds that the only provision of s. 34(25) that is relevant on the Motion is paragraph 1(i); specifically, the Tribunal may dismiss the Appeal if it is of the opinion that “the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal.”
26There is no question that the issue of housing, including affordable housing, is the subject of policies within the PPS, the Growth Plan, the City’s OP and s. 2(j) of the Act and the Tribunal finds that it is a land use planning ground insofar as such policies must be accorded the requisite consideration pursuant to the Act in connection with, among other things, a decision to approve or amend a zoning by-law. However, the Tribunal finds that it is crucial to read s. 34(25)1(i) in its entirety. Specifically, in addition to considering whether there is “an apparent land use planning ground”, the Tribunal must also consider whether it would have jurisdiction to grant all or part of the relief sought by the Appeal. If no such jurisdiction exists, then the criteria for dismissal of an appeal without a hearing prescribed by s. 34(25)1(i) have been met.
27The Tribunal derives its jurisdiction from legislation enacted by the Provincial Legislature.
28Section 34(26) of the Act prescribes the powers of the Tribunal that may be exercised in respect of an appeal of a zoning by-law amendment, specifically:
34(26) The Tribunal may,
(a) on an appeal under subsection (11) or (19), dismiss the appeal;
(b) on an appeal under subsection (11) or (19), amend the by-law in such manner as the Tribunal may determine or direct the council of the municipality to amend the by-law in accordance with the Tribunal’s order; or
(c) on an appeal under subsection (19), repeal the by-law in whole or in part or direct the council of a municipality to repeal the by-law in whole or in part in accordance with the Tribunal’s order.
29The Tribunal does not have jurisdiction pursuant to s. 34(26) to issue an order containing “guidance” or “direction” to municipalities, including the City, and residential land developers on the subject of affordable housing as urged by the Appellant. The Tribunal’s jurisdiction is with regard to the subject ZBA itself.
30Section 34 of the Act provides the enabling legislative authority for a municipality to pass a zoning by-law (and on an appeal, for the Tribunal to amend or modify the by-law). Section 34 contains a comprehensive and detailed description of the subject matter which may be provided for in such by-laws. There is no reference to the provision of affordable housing in s. 34. The caselaw, most notably the Supreme Court of Canada decision in Bell, supra, has established that zoning by-laws may regulate uses but not users, absent explicit legislative authority to regulate users. While a range of affordable housing in its built form (e.g., higher density residential buildings) may constitute a “use” that may be regulated pursuant to s. 34, regulation pertaining to the occupants of such use, such as the cost that the occupant must pay to rent or buy a residential dwelling unit, does not fall within the scope of s. 34 of the Act.
31Indeed, this perceived gap in the scope of s. 34 to achieve affordable housing objectives appears to have been addressed when the Provincial Legislature enacted more recent amendments to the Act, specifically s. 35.2 (commonly referred to as inclusionary zoning), that provides legislative authority for municipalities to pass zoning by-laws prescribing affordable housing requirements.
32All Parties agreed and the Tribunal finds that the inclusionary zoning provisions of s. 35.2 of the Act and related municipal planning instruments do not apply to the subject ZBA as the application relating to the ZBA predates the implementation of that legislative authority.
33The City and the Applicant voluntarily negotiated and entered into an agreement pursuant to the density bonusing provision of s. 37 of the Act whereby the City will permit greater height and/or density on the subject lands in return for the Applicant fulfilling specific obligations relating to the provision of affordable rental housing in the proposed development. The Tribunal finds that there is no legislative authority within the former s. 37 or otherwise for the Tribunal to issue an Order that amends the terms and conditions of that voluntary s. 37 agreement.
34In summary, the Tribunal recognizes that matters of provincial interest set out in s. 2 of the Act, and the policies of the Growth Plan, the PPS and the OP include reference to housing and, in some instances, affordable housing. These policies and statements are relevant considerations in carrying out the exercise of legislative authority to approve, refuse or amend a by-law passed under the Act. These policies and statements do not, however, provide independent or operative legislative authority to approve, refuse or amend a by-law. Therefore, in order to grant the relief sought by the Appellant, i.e., to prescribe specific numbers or percentages of affordable housing units and/or to address the sufficiency of the time limit for its provision, it would be necessary to find that the operative legislative authority of the Act, in this case s. 34 of the Act, contains the requisite legislative authority.
35With respect to the present Appeal, neither s. 34 nor the applicable former s. 37 provision provides the jurisdiction necessary to grant the relief sought by the Appellant, namely an increased quantum of affordable housing prescribed by the ZBA and/or address the sufficiency of the time limit for its provision. The Inclusionary Zoning provisions were not in place at the time and the applicable wording of s. 37 provides no jurisdiction for the Tribunal to amend the terms of the agreement entered into between the City and the Applicant. As such, the Tribunal finds that the Appeal does not contain a land use planning ground “on which the Tribunal could allow all or part of the Appeal” and accordingly the Tribunal is of the opinion that the Appeal has no reasonable prospect of success with respect to granting the relief sought by the Appellant.
ORDER
36The motion to dismiss the Appeal without a hearing is granted and the Appeal is hereby dismissed.
“D. Arnold”
D. ARNOLD
MEMBER
“K.R. Andrews”
K.R. ANDREWS
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.