Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 15, 2022
CASE NO(S).: OLT-22-002588
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Palm One Investments LLC
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of a 23-storey mixed-use building
Reference Number: 21 232793 STE 10 OZ
Property Address: 18 Portland Street and 1-9 Niagara Street
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-22-002588
OLT Lead Case No.: OLT-22-002588
OLT Case Name: Palm One Investments LLC v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Palm One Investments LLC
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit the development of a 23-storey mixed-use building
Reference Number: 21 232800 STE 10 SB
Property Address: 18 Portland Street and 1-9 Niagara Street
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-22-002589
OLT Lead Case No.: OLT-22-002588
Heard: July 20, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Palm One Investments LLC | Mark Flowers Andy Margaritis |
| City of Toronto | Uttra Gautam Alexander Suriano, in absentia |
| Wellington Place Neighbourhood Association | Marina Vrzalkovski* |
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON JULY 20, 2022 AND ORDER OF THE TRIBUNAL
1Palm One Investments LLC (“Applicant”) filed appeals pursuant to s. 34(11) and s. 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”) regarding the failure of the City of Toronto (“City”) to make a decision with respect to applications for a Zoning By-law Amendment (“ZBA”) and a Draft Plan of Subdivision (“DPS”) (together referred to as the “Applications”) regarding the property located at 18 Portland Street and 1-9 Niagara Street, in the City (“Subject Property”).
2The ZBA and DPS are required to facilitate redevelopment of the Subject Property with a 23-storey mixed-use building that contemplates commercial uses and a total of 182 residential dwelling units and 54 parking spaces.
3The Applications were deemed complete by the City on November 25, 2021. City Staff did not advise the Applicant that an amendment to the City’s Official Plan was required.
4Official Plan Amendment No. 486 (“OPA 486”) was adopted by City Council on January 29, 2020 and includes an updated King-Spadina Secondary Plan within which the Subject Property is located. OPA 486 has been appealed to the Tribunal by several appellants. Consequently, OPA 486, including the updated King-Spadina Secondary Plan, is not currently in force.
5The Applicant is of the opinion that the Applications should be evaluated in the context of the City’s Official Plan and Secondary Plan that were in force when the Applications were submitted, not in the context of OPA 486. By letter to the Applicant, the City does not agree with this opinion.
6The Applicant filed an Official Plan Amendment application (“OPA Application”) on May 17, 2022, however, maintains that this is not required. A fee of $60,511.35 was paid under protest on June 16, 2022, in conjunction with the OPA Application. The Applicant filed an appeal to the Tribunal pursuant to s. 69(3) of the Act objecting to the levying of the fee.
7On July 20, 2022, the Tribunal held its first Case Management Conference (“CMC”) at which it addressed procedural matters, identification of Parties and Participants, and how to proceed to adjudication of the appeals.
Procedural Matters
8There was no issue with service of the Notice of this CMC, and no further notice is required. The Tribunal was in receipt of the Affidavit of Service, which was marked as Exhibit 1.
9The Applicant provided the Tribunal with a detailed summary of the applications and appeals relating to the Subject Property. As set out above, the Applicant has filed an OPA Application with the City, which it anticipates will be appealed to the Tribunal in October 2022. The Tribunal directed that any consolidation requests relating to the possible appeal of the OPA Application can be dealt with at the second CMC, which is further detailed below.
10The Applicant requested that the Tribunal hear the appeals related to the ZBA (OLT-22-002588) and DPS (OLT-22-002589) together with the appeal related to the protest of fees (OLT-22-003968) pursuant to Rule 16.3 of the Tribunal’s Rules of Practice and Procedure. The City agreed with the request and the Tribunal ordered that the appeals will be heard together.
Status Requests
11The Tribunal received a request for Party status from Wellington Place Neighbourhood Association (“WPNA”), which stated that it is an incorporated body and represents local residents who object to the Applications. It stated that the proposed development would have impacts on its members, including shadow and traffic impacts. It further stated that it has been working with the City throughout the process and will continue to do so. WPNA stated that it will raise issues that the City does not raise and is prepared to retain experts and legal Counsel if granted Party status. It did note that if Party status was not granted, it would like to be granted Participant status.
12The City did not object to WPNA’s Party status request and agreed that it is prepared to work together with WPNA to ensure an efficient process.
13The Applicant was opposed to WPNA being granted Party status but would consent to the granting of Participant status. The Applicant was concerned about the overlap of issues raised by WPNA with those of the City. The Applicant also had concerns about conflict if the intention of the WPNA was to call experts who were members of the WPNA. The Tribunal shared this concern. In response, the WPNA agreed that it would not call any experts who were members of their association.
14The Tribunal encouraged the WPNA and the City to work together to avoid duplication of evidence and ensure that the hearing process is efficient and timely. The Tribunal found that the WPNA has a genuine and direct interest in the proceeding, its members will be impacted by the Tribunal’s decision, and it will assist the Tribunal in adjudicating the matter effectively. The Tribunal granted WPNA provisional Party status based on the undertaking by WPNA to retain independent legal counsel and professionals. The Tribunal directed WPNA to provide the Parties and the Tribunal’s Case Coordinator with contact information of their legal counsel and an issues list on or before November 18, 2022. In the event WPNA has not retained legal counsel in advance of the second CMC, the Tribunal will re-visit the issue of Party status at that time.
Draft Procedural Order and Issues List
15Prior to the commencement of the CMC, the Applicant provided the Tribunal with a draft Procedural Order including a draft issues list of the City (“PO”). The Applicant submitted that an appeal of the OPA Application will result in minor changes to the draft PO. The Applicant was concerned about delay in scheduling a merit hearing and worked with the City on the PO in order to estimate the number of witnesses and hearing days required as it was the intention of the Parties to request hearing dates at the CMC.
16In response to the Tribunal’s questioning, the Parties confirmed that an appeal of the OPA Application would not require additional hearing days. Based on the submissions of the Parties, the Tribunal found that a 10-day merit hearing is appropriate.
Settlement / Mediation
17The Parties expressed an interest in engaging in settlement discussions and possibly mediation, however no formal discussions have yet commenced. The expectation of the Parties is that settlement discussions will occur towards the end of the calendar year.
18The Parties are aware of the availability of Tribunal-led mediation and that requests can be made through the Tribunal’s Case Coordinator.
Hearing Dates
19The Parties jointly requested that the Tribunal schedule a second CMC in February or March 2023, at which time the City anticipates having received instructions from City Council. The Parties agreed to work together prior to the second CMC to finalize the draft PO, including issues list.
20The Tribunal agrees with the Parties that a second CMC is appropriate in this case. The second CMC will provide a status update, potentially consider consolidation of the appeal of the OPA Application and review and approve the Procedural Order.
21The Tribunal directs the Applicant to submit to the Tribunal a draft Procedural Order on consent no later than February 14, 2023. Should there be questions remaining with respect to the Procedural Order, Parties will be prepared to discuss these at the second CMC.
22The Applicant and the City agree that a 10-day merit hearing is appropriate and will be sufficient even if there is an appeal of the OPA Application. The Parties requested that the Tribunal schedule the hearing in the summer of 2023.
ORDER
23The Tribunal orders that the appeals of File Nos. OLT-22-002588 and OLT-22-003968 be heard together in accordance with Rule 16.3 of the Tribunal’s Rules of Practice and Procedure.
24The Tribunal orders that Wellington Place Neighbourhood Association are granted provisional Party status in this proceeding.
25The Tribunal orders that a second Case Management Conference in this matter will be held by video hearing on Friday, February 17, 2023, commencing at 10 a.m.:
Friday, February 17, 2023 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/709076365 Access code: 709-076-365 Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 709-076-365
26The Tribunal directs the Applicant to submit a final draft Procedural Order to the Tribunal on or before February 14, 2023.
27The Tribunal orders that the hearing in this matter will be held by video hearing on Monday, July 24, 2023 commencing at 10 a.m. Ten days have been set aside. For clarity, the last day set aside for the hearing in this matter is Friday, August 4, 2023.
Monday, July 24, 2023 at 10 a.m. (Ten days) GoTo Meeting: https://global.gotomeeting.com/join/979388733 Access code: 979-388-733 Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 979-388-733
28Parties 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.
29Parties 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
30Persons 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.
31Individuals 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.
32The Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.
33There will be no further notice given.
34This 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.