The Cadillac Fairview Corporation Limited v. Toronto (City), 2023 CanLII 10080

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 09, 2023

CASE NO(S).: OLT-22-002175

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: The Cadillac Fairview Corporation Limited

Subject: Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment

Purpose: To permit nine tall buildings ranging in heights from 16 to 35 storeys and two, six-storey mid-rise buildings

Property Address: 25 The West Mall

Municipality: City of Toronto

Approval Authority File No.: 19 187348 WET 03 OZ

OLT Case No.: OLT-22-002175

OLT Lead Case No.: OLT-22-002175

OLT Case Name: The Cadillac Fairview Corporation Limited v. Toronto (City)

Heard: January 31, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Cadillac Fairview Corporation Limited	John A. R. Dawson Matthew Schuman Cynthia MacDougall (In Absentia) Brendan Smith (In Absentia)
City of Toronto	Laura Bisset Daniel Elmadany
SmartCentres REIT	Rodney Gill David Bronskill (In Absentia) Matthew Lakatos-Hayward (In Absentia)
Fima Development	Barry Horosko
CF Sherway Tru Rec Inc. (formerly Fairfax Financial Holdings Limited / Toys “R” Us)	Rodney Gill Roslyn Houser (In Absentia) Max Laskin (In Absentia)
Home Depot of Canada Inc.	David Tang Jesse White
Amexon Realty Inc.	Mary Flynn-Guglietti

MEMORANDUM ORAL DECISION DELIVERED BY BITA M. RAJAEE AND C. HARDY ON JANUARY 31, 2023 ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“Second CMC”) before the Ontario Land Tribunal, with respect to an appeal under subsection 22(7) of the Planning Act by Cadillac Fairview Corporation Limited (“Appellant”) from the failure of the City of Toronto (“City”) to make a decision within the statutory timeframes on an application for an Official Plan Amendment (“Site-Specific OPA Appeal”) with respect to lands located at 25 The West Mall in the City of Toronto (“Subject Property”).

2The purpose of the Site-Specific OPA Appeal is to permit redevelopment of the surface parking lots around the periphery of the CF Sherway Gardens mall with a mix of uses including retail, office, hotel, and residential uses.

3On October 30, 2019, the City adopted Official Plan Amendment No. 469 (“OPA 469”), the Sherway Area Secondary Plan by By-law No. 1535-2019 with respect to lands bounded by Highway 427, the Queen Elizabeth Way, the Canadian Pacific Rail line and the Etobicoke Creek ravine for the purpose of bringing forward the Sherway Area Secondary Plan, which contains a series of policies that reflect the outcomes of a comprehensive planning study for the lands in the Sherway Area of Etobicoke. Four existing Site Area Specific Policies (“SASPs”) applicable to the area are proposed to be removed under the plan. The Tribunal has received a number of appeals by entities and property owners that are affected by the plan, filed pursuant to s. 17(24) of the Planning Act against the City’s adoption of OPA 469 through By-law No. 1535-2019 (“Sherway Gardens Appeal”). The Appellant in the Site-Specific OPA Appeal is also an Appellant in the Sherway Gardens Appeal.

4The first CMC took place on December 12, 2022 (“First CMC”). Just prior to the First CMC, on December 9, 2022, the Appellant advised the Tribunal that there was an issue with the service of Notice of the CMC. Counsel for the Appellant became aware that the Notice Package may not have been received by some interested entities. Approximately 15 addresses were identified, and the Notice of the CMC was resent to those addresses. Due to the very short timing between the service of the Supplementary Notice to the 15 addresses indicated and the First CMC, the Tribunal determined that a second CMC would be scheduled out of an abundance of caution to account for any problems arising out of the discrepancy with respect to Notice. Accordingly, the Second CMC proceeded on January 31, 2023.

5The Affidavit of Service of Notice of the Second CMC, sworn by Juliana Tyndorf on December 21, 2022, is marked as Exhibit 1 to the Second CMC.

SUBSTITUTION OF A PARTY

6At the First CMC, Fairfax Financial Holdings Limited (“Fairfax”) was added as a Party. The lands under Fairfax’s prevue are known municipally as 690 Evans Avenue in the City (“Fairfax Lands”). The company 2637092 Ontario Inc. was the owner of the Fairfax Lands. The Lands had been managed on its behalf by Fairfax Financial Holdings Limited / Toys “R” Us.

7On January 9, 2023, the Tribunal was advised that the Fairfax Lands had been bought by CF Sherway Tru Rec Inc., who intends to maintain the Site-Specific OPA Appeal.

8At the Second CMC, subsequent to hearing the submissions of counsel, and with no objections from the other Parties, the Tribunal substituted 2637092 Ontario Inc./Fairfax Financial Holdings Limited with CF Sherway Tru Rec Inc., pursuant to Rule 8.2 of the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”).

PARTY/PARTICIPANT STATUS REQUESTS

9At the First CMC, Party Status was granted to SmartCentres REIT, Fima Development, and 2637092 Ontario Inc./Fairfax Financial Holdings Limited, which is now replaced by CF Sherway Tru Rec Inc.

10At the Second CMC, the Tribunal was tasked with adjudicating the following Party Status Requests:

a. Home Depot of Canada Inc. (“Home Depot”), who is the owner of the property municipally known as 193 North Queen Street in the City, located across the street (The Queensway) from the Subject Property.

b. Amexon Realty Inc. (“Amexon”), who is the owner of the property municipally known as 701 and 703 Evans Avenue in the City and within the Sherway Area Secondary Plan (OPA 469).

11Home Depot and Amexon are Appellants in the Sherway Gardens Appeal. In their submissions at the Second CMC regarding their request for Party Status, both indicated that their request for involvement arises from the Appellant’s desire to consolidate the Sherway Gardens Appeal with the Site-Specific OPA Appeal. The terms by which the Tribunal might allow such consolidation and the results of such a consolidated hearing, particularly if modifications specifically affecting lands other than the Subject Property are contemplated, could impact Home Depot and Amexon and their respective lands. Home Depot And Amexon wish to address both the motion for consolidation and any modifications to the Sherway Area Secondary Plan that could affect lands outside of the Subject Property.

12The Tribunal heard the submissions of each potential Party. The other Parties, including the Appellant, did not object to the addition of Home Depot and Amexon as Parties. The Appellant, however, indicated that the concerns raised by Home Depot and Amexon pertained to the Sherway Gardens Appeal, rather than to the Site-Specific OPA Appeal. The Appellant acknowledged that this was due to its proposal to consolidate its Site-Specific OPA Appeal with the Sherway Gardens Appeal, but indicated that it required Amexon and Home Depot to clarify their concerns with respect to the Site-Specific OPA Appeal so that it may adequately address same. Home Depot and Amexon agreed with this proposition and noted that they intended to engage in conversations with the Appellant as the matter progressed and especially after the consolidation question had been determined subsequent to the upcoming motion.

13The Tribunal concluded that Home Depot and Amexon have an interest in the matter and will assist it in adjudicating the issues effectively. Thus, Amexon and Home Depot were granted Party Status in these proceedings. The Tribunal directs the Parties to engage in conversations prior to the next CMC, scheduled for Tuesday, March 28, 2023 (“Third CMC”), and specifically, for Amexon and Home Depot to provide the Appellant with clarity regarding their issues with respect to the Site-Specific OPA Appeal.

14In response to the Notice, the Tribunal received no other requests for status (Party or Participant) at this time.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

15At the First CMC, it was determined that the drafting of a Procedural Order (“PO”) and Issues List (“IL”) remained premature until after the hearing of the upcoming motion on this matter. At the Second CMC, the Tribunal reminded the Parties to be prepared to discuss a draft PO and IL at the Third CMC.

MEDIATION AND SETTLEMENT

16The Tribunal raised the prospect of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties advised that this remained premature, and no discussions had yet taken place due to various outstanding issues.

17The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

MOTION DATE

18At the First CMC, the Appellant submitted that the Site-Specific OPA Appeal and the Sherway Gardens Appeal are intimately related and should be consolidated in accordance with Rule 16 of the Rules. The City opposed this request. As such, a motion has been scheduled to determine whether the two appeals should be consolidated. This motion date has also been reserved to deal with the Appellant’s scope of issues in the Sherway Gardens Appeal.

19At the Second CMC, the Parties were reminded that the motion has been scheduled to take place by video conference, starting on Wednesday, February 22, 2023, and three (3) days have been set aside.

20On Wednesday, February 22, 2023, at 10 a.m., Parties 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:

Wednesday, February 22, 2023 at 10 a.m. (three day motion)

GoTo Meeting: https://meet.goto.com/558205565

Audio-only telephone line: Toll Free1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 558-205-565

21Parties 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

22Persons 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: (Toll Free): 1-888-299-1889 or +1 (647) 497-9373. The access code is 558-205-565.

23Individuals 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 with carriage of this case.

THIRD CMC

24At the First CMC, the Parties submitted that, subsequent to the consolidation motion, a Third CMC would be required to address procedural matters arising from the motion, as well as to prepare this matter for a hearing. The Tribunal agreed and scheduled a Third CMC, wherein issues relating to an upcoming hearing will be addressed. At the Second CMC, the Parties were reminded of this Third CMC.

25On Tuesday, March 28, 2023, at 10 a.m., Parties 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:

Tuesday, March 28, 2023 at 10 a.m. (One day CMC) GoTo Meeting: https://meet.goto.com/558205565

Audio-only telephone line: Toll Free 1-888-299-1889 or +1 (647) 497-9373 Access code: 558-205-565

26The same instructions apply to the Third CMC as indicated at paragraphs [21] through [23] of this Decision.

ORDER

27The Tribunal Orders as follows:

a. CF Sherway Tru Rec Inc. has replaced 2637092 Ontario Inc./Fairfax Financial Holdings Limited/Toys “R” Us, pursuant to Rule 8.2 of the Ontario Land Tribunal’s Rules of Practice and Procedure.

b. The following are now a Party in this proceeding:

i. Home Depot of Canada Inc.; and

ii. Amexon Realty Inc.

c. A motion hearing is scheduled to take place by video conference on Wednesday, February 22, 2023, at 10 a.m., and three (3) days have been set aside. There will be no further notice.

d. A Third CMC is scheduled to take place by video conference on Tuesday, March 28, 2023, at 10 a.m., and one (1) day has been set aside. There will be no further notice.

28The Panel is not seized, but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE

MEMBER

“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.