Wenderly Park Community Association Inc. v. Toronto (City), 2022 CanLII 75895

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 18, 2022

CASE NO(S).: OLT-22-003449

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Wenderly Park Community Association Inc.

Applicant: Marlee Residences Inc.

Subject: Zoning By-law

Description: To permit redevelopment of site to construct 4-storey apartment building with below grade parking spaces and bicycle parking

Reference Number: BL 188-2022

Property Address: 722 and 724 Marlee Avenue

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-003449

OLT Lead Case No.: OLT-22-003449

OLT Case Name: Wenderly Park Community Association Inc. v. Toronto (City)

IN THE MATTER OF section 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended, and Rule 10 of the Tribunal’s Rules of Practice and Procedure

Request by: Marlee Residences Inc.

Request for: Motion to dismiss

Heard: July 13, 2022, by video hearing

APPEARANCES:

Parties

Counsel

Marlee Residences Inc. (“Applicant”)

M. Helfand

City of Toronto (“City”)

M. Longo/ U. Gautam

Wenderly Park Community Association

S. A. Hussain

Inc. (“Appellant”)

DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant had submitted a development proposal to the City seeking to rezone the lands known municipally as 722 and 724 Marlee Avenue (“Subject Lands”) to enable the development of a 4 storey residential apartment building.

2City staff recommended approval of the rezoning, and City Council passed site specific Zoning By-law No. 188-2022 (“ZBA”) to permit the proposed development.

3The Appellant appealed.

4The Applicant brought a Motion to dismiss pursuant to s. 34(25) of the Planning Act (“PA”) and s. 19(1) of the Ontario Land Tribunal Act, 2021 (“OLTA”).

5In the lead up to the motion hearing, the Appellant sought an adjournment, to which the Appellant did not consent. In the absence of consent, the Tribunal did not grant the adjournment request but rather indicated that a Motion could be brought at least 15 days before the hearing.

6No such Motion was brought.

7The Appellant did not file a Response to the Motion to Dismiss on a timely basis but only by email at 9:30 a.m. on the date of the hearing.

FURTHER ADJOURNMENT REQUEST

8At the hearing as a preliminary matter, counsel for the Appellant made a further oral request for an adjournment.

9Counsel for the Appellant advised that the purpose of the adjournment request was to enable his client to retain a land use planner, and a transportation expert for the hearing on the merits on the basis because his client had not had enough time to do so.

10Counsel for the Applicant objected on the basis that the Appellant has had months of time since the City Council decision in February 2022 to prepare; that the Appellant had previously requested an adjournment to which the Applicant had objected; that the Tribunal had denied the first adjournment request but had advised that a written motion could be brought but that too did not happen; thus the oral motion was simply renewing a request previously made and decided upon by the Tribunal, and that were the Tribunal to accede to this untimely request, his client would be prejudiced.

11Counsel for the City echoed the submissions by counsel for the Applicant and noted that the Tribunal had invited the Appellant to make the written motion but that had not been done.

12In reply, counsel for the Appellant argued that the delay to the developer might be for a couple of months, but if denied his client’s rights would be lost forever, and this prejudice outweighed the prejudice to the Applicant, and thus the Tribunal should adjourn.

13The Tribunal gave an oral decision.

14The Tribunal noted that counsel for the Appellant now requested the adjournment so his client could consult a land use planner, consult a transportation expert, and it appears that the counsel he intended to retain was not available. The requested adjournment would be for one or two months, or whatever the Tribunal found to be fair in the circumstances and could be peremptory.

15Counsel for the Applicant and the City both opposed the oral motion adjournment. Counsel pointed out that a previous adjournment request had been made by email (without the consent of the parties) and denied by the Tribunal with the direction that a written motion could be brought and heard at the hearing event.

16No such Motion was brought.

17The Tribunal’s Rules of Practice and Procedure (“Rules”) deal with adjournments.

18Rule 17.1 provides that hearing events will take place on the date set unless the Tribunal agrees to an adjournment.

19Rule 17.2 deals with adjournment requests where all the parties’ consent (not the case here) and then Rule 17.3 deals with requests for adjournments without consent and provides that the party requesting the adjournment must bring a motion at least 15 days before the hearing event (see Rule 10.3).

20Finally from the Rules, it is noted in Rule 17.4 that last minute adjournments will only be granted for unavoidable emergencies.

21In these circumstances the Tribunal finds that:

a. There was no consent for the adjournment request pursuant to Rule 17.2;

b. Although directed by the Tribunal, no written motion was brought by the Appellant for the adjournment (Rule 17.3);

c. That City Council made its decision in February 2022 and that the community consultation had taken place in 2020;

d. That the adjournment request does not qualify as an unavoidable emergency (Rule 17.4);

e. That the adjournment request simply comes too late in the process; and

f. Thus the adjournment request is denied.

MOTION TO DISMISS: PA AND OLTA

22The Applicant’s Motion to Dismiss is based on provisions in s. 34(25) of the PA and s. 19 of the OLTA.

23For ease of reference, the Tribunal will set these provisions out below.

24Section 34(25) of the PA states in part:

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:

1 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 purposes of delay, or

iv. The appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

2 The appellant has not provided written reasons for the appeal.

3 The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection…

25The Tribunal would note that the reference to s. 19.0.1 states:

If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or fails to confirm with an applicable official plan, the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document. (Emphasis added)

26Turning to the OLTA, s. 19(1)(c) provides this power to the Tribunal:

Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing, …

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success”…

PRELIMINARY MATTER: PUBLIC NOTICE

27Exhibit 3 is the (late) Response to the Motion Record by the Appellant. Served by email at 9:30 a.m. on the morning of the Motion hearing, it contains in part, an affidavit by Sandra Diaz that she did not receive notice of the passing of the Zoning By-law Amendment.

28As counsel for the City only received the Response on the morning of the hearing, he had time only to make telephone contact with the Clerk’s Office concerning the alleged notice issue, and could only pass on what he had been advised, which was that there had been two mailings from the Clerk’s Office, the second to correct a mistake and that there was also notice by email that went to Ms. Diaz, Salih Korkmaz, and to the Appellant.

29At the hearing, the Tribunal directed counsel for the City to file an affidavit confirming the information provided to the Tribunal, on or before July 20, 2022.

30This latter direction to the counsel for the City appears to have been mistakenly taken as an open invitation by counsel for the Appellant to file additional materials, as on July 14, 2022, he forwarded three more affidavits all contesting the notice by the City.

31Simply put these affidavits from the Appellant come after the hearing, and certainly far too late in the process to be considered. Any such material should have been part of the Appellant’s Response to the Motion Record and served and filed in a timely fashion. The Tribunal will not consider these documents.

32The Tribunal had the affidavit of Celeste Borghesani with the City dated April 20, 2022, and now has the affidavit of Julie Amoroso (also with the City) dated July 19, 2022 (and now Exhibit 4), which attests to the notice that was sent both by prepaid first class mail and secondly by email. The affidavit of Ms. Amoroso satisfies the Tribunal that notice by prepaid mail went out to the Wenderly Park Community Association Inc. c/o Joe Nobrega, Larry Clavel, Mr. Korkmaz and Ms. Dias. Further the Tribunal notes that email notice went to the Wenderly Park Community Association, and Mr. Clavel, and that Mr. Korkmaz had actual notice of the passing of the zoning by-law as evidenced by his email of April 11, 2022, to Ms. Amoroso.

33The Tribunal is satisfied that proper notice of the passing of the zoning by-law was given.

BACKGROUND AND CONTEXT

34The Subject Lands are located on the west side of Marlee Avenue and back onto Wenderly Park and contain two detached dwellings. The development proposal is to rezone and redevelop the Subject Lands with a 4 storey residential apartment building.

35The Subject Lands are about 335 metres (“m”) from the TTC Glencairn Station, and are in close proximity to the Allen Expressway. The immediate surrounding area contains a range of building types: from detached dwellings to walk-up apartments.

36The Subject Lands are designated Neighbourhoods in which 4 storey residential apartment buildings are a permitted use.

37The Subject Lands are located on a major street, and are within the defined area of a Major Transit Station Area (“MTSA”) as set out in A Place to Grow: the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). This MTSA is identified by the City as one MTSA that does not currently meet the minimum growth targets as set out in the Growth Plan.

38The original development proposal contained a conceptual site plan illustrating a 1.8 m south side yard; however the vehicular access was reconfigured and the south side yard revised to 1.0 m.

39City Planning Staff recommended the revised development proposal to City Council. City Council accepted the Planning Staff recommendation and adopted the impugned ZBA on February 2 and 3, 2022, which the Appellant appealed to the Tribunal.

APPEAL GROUNDS

40The Appellant’s grounds of appeal include the following:

• The proposed project does not provide a modest form of intensification because it is not consistent with the policies of the Official Plan for Neighbourhood residential designation;

• The proposed project does not provide a sensitive intensification because adjoining houses are single family residential homes;

• The proposed project has no significance to the Townhouse and Low Rise Apartment Guidelines as that built form is presently non-existent in the immediate Neighbourhood designation and would not be an appropriate transition to the adjoining one and two storey family residential homes;

• The proposed project does not increase the quality of housing options but would only impose an adverse impact on the character of the surrounding neighbourhood and built form;

• The proposed project’s massing and density consisting of 28 living units and 20 parking spaces equating to a density of 1.56 x lot area are inconsistent with the Official Plan Site and Area Specific Policy of 0.30 x lot area. The permitted density of 1.56 x lot area is a substantial increase also from the permitted densities under the Zoning By-law No. 7625 and No. 569-2013. With the proposed project, through its massing, is not in line with but offends the adjoining residential single family homes and would create an adverse effect in terms of privacy, shadows, noise and deprive the proposed project of any green space;

• The proposed project’s floor area does not conform with the existing development standards in the Zoning By-law.

• In light of the existing traffic problems along Marlee Avenue experienced especially during peak hours, the addition of 20 parking spaces, hence possible 20 vehicles existing onto and entering from Marlee Avenue, would not only further aggravate the existing traffic;

• The proposed project’s new property line is not in line with the existing property lines that would create an irregular standalone flow of the streetscape. The approved front set back extends 1.5 m closer to the front lot line than the neighbouring properties to the south (720 Marlee Avenue, recently constructed) and to the north (726 Marlee Avenue).

• The proposed project’s height is 17.2 m (including the mechanical penthouse) and does not closely conform to the maximum height requirements of 10 m as prescribed by the Zoning By-law No. 7625;

• The proposed project’s conveyance of 129 square metres of on-site parkland dedication to the existing Wenderly Park to the rear is of no benefit to the park or community;

• It takes needed green space away from the Subject Property;

• It creates a “nook” within the park, conducive for hiding and congregating that could give rise to dangerous conditions for users, especially children;

• The increase in parkland will not significantly add to the viability of the park;

• The City has not conducted a study as to the use of the park and how the additional 129 square metres will create any improvements to justify the potential negative impacts that would result from such a disruption; and

• The rear property line would be the only one not in line with all the existing rear property lines on this west side of Marlee Avenue.

MOTION GROUNDS

41The Applicant submits that the appeal should be dismissed without a hearing for the following reasons:

1. The appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal. The issues raised in the appeal are not genuine land use planning issues and are not supported by any relevant or qualified evidence or analysis but are rather mere apprehensions and are insufficient to warrant a full hearing.

2. The appeal is frivolous and vexatious. The appeal is not supported by any valid land use planning or technical reasons or grounds. The issues raised in the appeal are expressly raised by the Appellant in its letter to Council and addressed in the Recommendation Report of City Planning Staff before the Zoning By-law was approved by City Council.

3. The appeal fails to include the required explanations for Provincial Policy Statement (“PPS”) inconsistency and inconsistency with Growth Plan and Official Plan non-conformity.

4. Finally, the appeal has no reasonable grounds of success.

42Embellishing on these four grounds, counsel for the Applicant submitted:

• That there is no specific policy from the PPS, the Growth Plan, or the Official Plan that has been identified in the appeal with which to support the allegation that the ZBA is inconsistent with the PPS, fails to conform with the Growth Plan or fails to conform with the Official Plan as required by s. 35.19.01 of the PA.

• The grounds raised by the Appellant with regard to land use planning or planning are unsupported by any evidence or any affidavit from a land use planner or a transportation planner. Further, the Applicant notes that the Appellant is incorrect that the proposal is not consistent with the policies of the Official Plan for Neighbourhood Residential designation; as in fact a four storey apartment building is a permitted use in the neighbourhood’s designation and is encouraged on major streets such as Marlee Avenue.

• With regard to the comments made concerning the densities under the zoning by-laws in fact the development application must conform with the official plan and the PA does not require a site specific rezoning application to conform with the prevailing zoning by-law an to require the same would be illogical. Counsel for the Applicant notes that while the City is requiring a 3.44 m road widening, the building will be set back about 5.74 m from the sidewalk and will be in virtually the same position as the existing detached dwellings on the site.

• With respect to the proposed parkland dedication, it is submitted that those concerns are entirely without merit. The Appellant provides no valid reason or any expert evidence to challenge the decision by the City to add additional lands to the existing park.

• On this basis, counsel for the Applicant submits that the appeal is frivolous in that it is lacking a legal basis or legal merit, vexatious in that it is instituted without sufficient grounds for the purpose of causing trouble or annoyance for another party, that the appeal has no reasonable prospect of success and that the appeal should be dismissed.

43Counsel for the Appellant responded to indicate that were the Tribunal to dismiss this motion, then the Appellant would be in a position to retain a land use planner and a traffic consultant and provide the expert evidence in support of the Appellant’s position.

44Counsel for the Appellant placed heavy emphasis on the Staff Report of 2016 from the City with regard to Mr. Korkmaz’s severance application for 720 Marlee Avenue, where City Staff recommended a refusal of the severance which would have created two “undersized lots” from one parcel that had a 15.24 m frontage as inappropriate for the character of the area.

45Counsel for the Applicant also pointed to the change in the side yard setback for the south side of the Subject Lands from 1.8 to 1.0 m and indicated that this was a significant change decreasing the side yard setback by almost 50%.

46Further counsel submitted that the contribution of additional lands to the Wenderly Park should not be done as it would create an irregular shape and jog in the park shape. Counsel also submitted that this was a “rushed application” and not well thought through and it was “unruly intensification” which would set a precedent for the neighbourhood.

47He rejected the argument of the counsel for the Applicant that the motion was frivolous and vexatious, as the approval by the City of the apartment next to the single detached dwellings was unparalleled and that if the Tribunal were to dismiss the motion and allow the Appellant time to consult a planner and a traffic consultant, they would be able to prove that.

48In Reply, counsel for the Applicant pointed out that the Korkmaz’s minor variance application and consent applications, while refused at the Committee of Adjustment, were ultimately approved by the Ontario Municipal Board which allowed the appeals, including a side yard setback of 0.53 m to the north.

49Concerning the challenge to the side yard setback of 1.0 m, counsel for the Applicant called its land use planner who testified as to the change in the south side yard setback arising out of the reconfiguration of the ingress and egress. He pointed out that setback on the adjoining lands was only 0.53 m to the property line and it was 1.0 m with regard to the Subject Lands.

JURISPRUDENCE

50East Beach Community Assn. v. Toronto (City) 42 O.M.B.R. 505 (“East Beach”) the oft-cited leading case for motions to dismiss. There the Tribunal provided this guidance:

The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case. This does not allow the board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with ironclad reason for fear of being struck down. What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision and whether the issues are worthy of the adjudicative process.

51That decision was in 1996 and predates the further amendments to the PA, and also the introduction of the OLTA.

52Since then, the grounds for a motion to dismiss have been broadened in the PA by the introduction of s. 34(25)(3) and s. (19.01) that if the appellant intends to argue inconsistency with the PPS or failure to conform with a provincial plan or official plan, the notice of appeal must provide an explanation of how the zoning by-law is inconsistent with the PPS, and fails to conform to a provincial plan, and fails to conform to an official plan.

53In that regard the Tribunal has frequently stated that while anyone can give evidence about what they have seen or know, that “opinion” evidence in land use planning matters comes from experts who have been so qualified by dint of academic background and training and professional qualifications and experience. The well meaning expressions of beliefs and concerns are not sufficient grounds to maintain an appeal (see: Silvestri v. City of Hamilton (unreported), Tribunal Case No. OLT 22-002235).

54In addition to the amendments to the PA since East Beach, a new stand alone ground of appeal is found in s. 19(1)(c) of the OLTA, which provides that an appeal may be dismissed if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

COMMENTARY AND ANALYSIS

55The Tribunal would observe the following:

• The Subject Lands are ideally located for easy access to public transportation (with 335 m) and in close proximity to the Allen Expressway.

• The Subject Lands are located on a major road.

• The Subject Lands are well within the radius of a major transit station area and therefore appropriate for intensification.

• Four storey apartments are permitted uses in the City’s Official Plan for Neighbourhood’s designation.

• Since the 2016 Staff Report on the Korkmaz’s consent and minor variance applications, the Province has issued the PPS 2020 and also issued the Growth Plan 2020, both of which place a greater emphasis on optimizing the use of the existing land supply, better use of existing infrastructure, public service facilities and being transit supportive.

• In fact, the Growth Plan refers to this as “an intensification first” approach to development and city building.

• No expert evidence of any nature or kind was provided by the Appellant in support of the appeal, to contest the expert evidence in the materials of the Applicant and the City, and to contest the decision of City Council.

56While the Appellant seeks additional time to retain experts in the field of land use planning and in transportation to provide expert evidence in support of its position, the Tribunal finds that the Community Consultation Meeting was held in 2020, that the City Council adopted the impugned ZBA in February 2022, and there has been ample time for the Appellant to make such inquiries and make such retainers.

57The Tribunal has examined the grounds for the appeal and finds that there is no substantive basis by which any challenge of inconsistency with the PPS is advanced, there is no substantive basis for any lack of conformity with the Growth Plan to be advanced, and there is no substantive basis for any lack of conformity with the Official Plan of the City to be advanced.

58That finding alone is fatal to the Applicant’s appeal, and it is not necessary to consider whether the appeal is also frivolous and vexatious.

59Notwithstanding that finding, the Tribunal also finds pursuant to s. 19.1(c) of the OLTA that there is no reasonable prospect for success of this appeal as the development proposal is consistent with the PPS, conforms to the Growth Plan as being a modest form of intensification in close proximity to public transit, conforms to the City’s Official Plan as a 4 storey apartment building is a permitted use in the Neighbourhoods designation, and such an application does not have to comply with any existing zoning regulation. It is the zoning that must implement the Official Plan.

60On these grounds, the Tribunal finds that the appeal should be dismissed and that it is not an appeal that is worthy of the adjudicative process.

61Therefore the Tribunal will allow the Motion, and grant the request to relief and hereby dismisses the appeal without a further hearing.

62This is the Order of the Tribunal.

“Blair S. Taylor”

BLAIR S. TAYLOR

MEMBER

Ontario Land Tribunal

Website: www.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.