Queenscorp (Evans) Inc. v Toronto (City), 2023 CanLII 106649

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 09, 2023

CASE NO(S).: OLT-23-000451

PROCEEDING COMMENCED UNDER subsection 114(7) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Applicant: Queenscorp (Evans) Inc.

Description: Queenscorp (Evans) Inc. - drive-through facility

Subject: Motion for Determination

Reference Number: 23 131342 WET 03 SA

Property Address: 170 Evans Avenue

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-23-000451

OLT Lead Case No: OLT-23-000451

OLT Case Name: Queenscorp (Evans) Inc. v Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(4.3) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Applicant: Queenscorp (Evans) Inc.

Description: Queenscorp (Evans) Inc. - drive-through facility

Subject: Motion for Determination

Reference Number: 23 131342 WET 03 SA

Property Address: 170 Evans Avenue

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-23-000452

OLT Lead Case No: OLT-23-000451

Heard: August 09, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Queenscorp (Evans) Inc.

I. Kagan K. Stitt S. Kagan

City of Toronto

G. Szobel J. Amey

DECISION DELIVERED BY C.I. MOLINARI AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is a Motion for Directions (“Motion”) in relation to a Site Plan Application (“SPA”) submitted by Queenscorp (Evans) Inc. (“Moving Party”/ “Applicant”) to the City of Toronto (“Respondent”/“City”) for the property located at 170 Evans Avenue (“Property”).

2The Moving Party filed a Motion Record complete with a Notice of Motion on July 25, 2023, followed by an amended Notice of Motion filed on August 1, 2023. The Respondent filed a Responding Motion Record on August 2, 2023, and the Moving Party followed with a Reply Motion Record filed on August 3, 2023.

3The materials before the Tribunal from the Moving Party include:

1. Motion Record of the Moving Party, containing the Notice of Motion, and an Affidavit of Mark Bozzo affirmed on July 25, 2023;

2. Amended Notice of Motion of the Moving Party; and

3. Reply Motion Record of the Moving Party, containing the Notice of Reply, and a supplementary Affidavit of Mr. Bozzo affirmed on August 4, 2023;

4The materials before the Tribunal from the Responding Party include:

1. Motion Record of the Respondent, containing the Notice of Response to Motion, an Affidavit of Jeffrey Light affirmed on August 1, 2023, and a Brief of Authorities of the Moving Party;

2. Curriculum Vitae (“CV”) of Mr. Light, Project Manager, Development Engineering, City of Toronto; and

3. CV of Pavel Kopec, Assistant Planner, Community Planning, City of Toronto.

THE MOTION

5The Moving Party brought the Notice of Motion originally under s. 41(4.2), or in the alternative s. 41(3.4), of the Planning Act (“Act”). The amended Notice of Motion revised references from the Act to the City of Toronto Act, 2006 (“CTA”) and changed the cited dates. In this respect, the Motion, as amended, was brought under s. 114(7), or in the alternative s. 114(4.3), of the CTA, seeking an Order of the Tribunal for:

1. A determination by the Tribunal, pursuant to subsection 114(7) of the City of Toronto Act, that the renovations proposed to be undertaken by the Applicant in respect of the property municipally known as 170 Evans Ave. (the “Site”) do not meet the definition of “development” in section 114(1) of the City of Toronto Act and, accordingly, are not subject to site plan control.

2. In the alternative to paragraph 1 above:

a. A determination by the Tribunal that the City of Toronto’s (“City”) request under subsection 114(4.3) for additional information is neither reasonable nor warranted;

b. A determination by the Tribunal that all of the applicable information and material required by subsections 114(4.2), 114(4.3) and 114(5) of the City of Toronto Act was provided to the City by the Applicant as of May 9, 2023; and

c. A determination by the Tribunal that the application for site plan approval (the “Application”) filed by the Applicant in respect of the Site, was complete as of May 9, 2023.

3. An Order of the Tribunal granting the costs of this motion to the Applicant; and

4. Such further and other relief as counsel may request and the Tribunal may permit.

6In its Reply Motion, the Moving Party gave notice that they were no longer advancing the first ground of relief, being a determination by the Tribunal that the proposed renovations do not meet the definition of ‘development’ in s. 114(1) of the CTA and, accordingly, are not subject to Site Plan Control. The Moving Party indicated that they agree with the Responding Party’s position that the determination of whether the drive-through facility (“Drive-Through”) constitutes ‘development’ is not for the Tribunal to adjudicate given the clear direction from the Divisional Court in Toronto (City) v. SheppBonn Ltd. [2015] O.J. No. 4271 (Div. Ct.). However, the Moving Party indicated that, by not advancing its first ground of relief, it should not be taken as agreeing with the Responding Party’s position, but that it is simply not a question for the Tribunal to determine.

7The final request in the amended Notice of Motion for an Order of the Tribunal granting costs of the Motion to the Moving Party, was not pursued through the submissions of the Moving Party.

8In it’s Responding Motion Record, the Respondent also requested an Order of the Tribunal dismissing the Moving Party’s Motion and an Order granting the costs of the Motion to the City, and “[s]uch further and other relief as counsel may request and the Tribunal may permit”. Similarly, the Respondent did not pursue the request for costs through their submissions.

9Accordingly, the Tribunal is not being asked to determine whether the proposed renovations meet the definition of ‘development’ in the CTA, or by extension, whether Site Plan Control applies. Rather, the Tribunal is tasked with determining three aspects of the Moving Party’s amended Notice of Motion:

1. Whether the City’s request for additional information, in particular the Storm Water Management Report (“SWMR”), is reasonable and/or warranted;

2. Whether all information and material required by s. 114(4.2), 114(4.3) and 114(5) of the CTA was provided to the City as of May 9, 2023; and, by extension,

3. Whether the SPA was a complete application as of May 9, 2023.

PRELIMINARY MATTERS

10The Tribunal is in receipt of an Affidavit of Service sworn on August 8, 2023, attesting to the giving of notice of the original Notice of Motion on July 25, 2023, being 15 days before the date of the hearing of the Motion, thereby meeting the timelines required by of Rule 10.5 of the Tribunal’s Rules of Practice and Procedure (“Rules”) for the service of notice of a Motion.

11The Tribunal is also in receipt of Affidavits of Service for the amended Notice of Motion of the Moving Party, the Motion Record of the Responding Party and the Reply Motion of the Moving Party, sworn on August 8, 2023, August 3, 2023 and August 8, 2023, respectively, attesting to the giving of notice on August 1, 2023, August 2, 2023 and August 4, 2023, respectively.

12While the Act and the CTA are substantively similar with regards to the cited sections, and the amendments to the Notice of Motion are technical in nature, the submission of the amended Notice of Motion does not meet the 15-day service timeline required by Rule 10.5 of the Rules.

13Rule 1.6 of the Rules provides the Tribunal the authority to grant exceptions from the Rules to ensure that the real questions at issue are determined in a fair, just, expeditious and cost-effective manner. In this respect, the Tribunal granted leave for the service of the amended Notice of Motion as the amendments are technical in nature and the referenced sections of the Act and the CTA are identical in all material respects.

BACKGROUND

14The Property is currently developed with a three-storey office building featuring a drive aisle wrapped around the exterior of the building and associated with a former ground floor cafeteria use. The remainder of the Property is occupied by parking and landscaping with access from Evans Avenue. The Property is bounded on the north by an off-ramp from the Gardiner Expressway and on the east by Islington Avenue. To the south and west are developed commercial properties.

15The Property is designated ‘Core Employment Area’ in the City of Toronto Official Plan (“TOP”) and zoned ‘Employment Industrial’ in Zoning By-law No. 569-2013. The zoning permits a Drive-Through at this location. Additionally, an Ontario Municipal Board decision from 2016, (Case No. PL150673) approved a minor variance permitting a private school with childcare, elementary education services and an outdoor play area on the Property for a period not extending beyond June 30, 2018.

16The office building is currently undergoing alterations and upgrades under City-issued building permits. The alterations and upgrades regulated by the building permits did not trigger the requirement for site plan approval.

17Upon completion of the interior renovations, the Property will continue to function as an office building with a café occupying approximately half of the ground floor and utilizing the drive aisle for the Drive-Through. The remainder of the Property will generally remain the same, with minor improvements to the parking area and landscaping.

THE SITE PLAN APPLICATION

18The SPA was required by the City for the proposed Drive-Through on the basis that it substantially increases the usability of the Property. The Moving Party asserts that the proposed Drive-Through “will be constructed within the existing building and by utilizing the existing drive aisle on the exterior of the building to accommodate vehicle queueing” and that the proposed Drive-Through “neither requires construction, erection or placing of one or more buildings or structures nor does it require the making of an addition or alteration to a building or structure that has the effect of substantially increasing the size or usability thereof” (the underlined wording being a reference to wording in the definition of ‘development’ in s. 114(1) of the CTA).

19The Moving Party and the Respondent dispute the requirement for the SPA. The Moving Party contends that the SPA is not required, but that it submitted the SPA on the basis that the City required it and that the SPA process “would be quicker than contesting the City’s position”. Further, the Moving Party asserted that the City requested that it be confirmed through the SPA, that the pre- and post-renovation conditions of the Property will have a neutral effect on the existing municipal storm sewer. In this respect, the Moving Party submitted a Stormwater Management Brief (“SWMB”) confirming such. The Respondent contended that the SPA is required as the renovations, namely the “transformation of the Site into a drive-through facility”, has the effect of substantially increasing the size or usability such that Site Plan Control applies, as per s. 114(1) of the CTA.

20Following discussions between the Applicant and the City, the City provided a list of requirements for the SPA via email dated March 1, 2023 (“City Email”) with a caveat that it “may not be a complete list and upon review, departments can request further information”. The list of requirements included the following items:

− Archaeological Assessment

− Transportation Operations Assessment

− Transportation Impact Study

− Architectural plans including, but not limited to, First-floor plan, Site and Building Elevations (as indicated by Urban Design during the meeting), Site plan, etc.

− Survey

− Concept Site and Landscape Plan including a Planting and Lighting Plan.

− Tree Preservation Plan with an Arborist /Tree Preservation Report

− Soil Volume Plan

− Toronto Green Standard including Checklist and Statistics Templates

21The SPA was filed on March 31, 2023.

22The City issued a Notice of Incomplete Application (“NIA”) on April 27, 2023, indicating that a SWMR and associated drawings (regarding Servicing, Grading, Erosion, and Sediment Control), a Hydrogeological Report (“Hydro-G Report”), Interior Floor Plans and a Lighting Plan were required in order to have the SPA deemed complete.

23The Moving Party submitted the Interior Floor Plans and Lighting Plan on May 9, 2023, and the City concluded that the Hydro-G Report would only be required if deemed necessary upon further review, leaving the SWMR as the only item outstanding as a requirement by the City to deem the SPA complete.

24The Moving Party and the Respondent have opposing views on whether the City Email constitutes the list of information and material required for a complete application, thus triggering the 60-day appeal timeframe provision in s. 114(15) of the CTA, and whether the City can require the submission of a SWMR as a requirement for a complete application, and whether the SPA was a complete application as of May 9, 2023 without the submission of a SWMR.

WHAT TRIGGERED THE SPA

Moving Party Submissions

25The Moving Party asserted that the City submitted in their Notice of Response to Motion, that the SWMR is required to justify the proposed parking expansion. The Moving Party submitted that the Tribunal should not accept this submission. The Moving Party advised that the works undertaken on the Property with respect to the paved areas did not trigger the need for a SPA, and that all works were done under building permits issued by the City. Mr. Kagan submitted that the modifications to the parking area could not trigger the SPA as per s. 114(1) of the CTA as, with respect to parking areas, it only applies to “the laying out and establishment of a commercial parking lot” [emphasis added] and therefore not to a parking area associated with the use of the building on the Property, as it is not a commercial parking lot.

26The Moving Party noted that the applicable Zoning By-law (“ZBL”) regulates the amount of impervious surface on the Property through parking and landscaped open space regulations, and that the Property complies with the ZBL. Mr. Kagan asserted that there is no by-law or municipal code requiring any permit or approval to pave the portion of the lot that was previously occupied by a former Toronto Hydro transformer and that the area was never pervious landscaped open space. He acknowledged that the area was paved over, but contended that it didn’t trigger the need for the SPA.

27The Moving Party contended that the proposed Drive-Through triggered the SPA and that this is borne out in the Affidavit of Mr. Kopec, wherein he states in paragraphs 31 to 33, titled: “A DRIVE-THROUGH SUBSTANTIALLY INCREASES USABILITY”, that:

31. The proposed addition of a drive-through facility on the subject site has the potential to substantially increase…,

32. In addition, the proposed addition of the drive-through facility on the subject site has the potential to substantially impact…, and

33. …the proposed building alterations for a new café with an associated drive-through facility has the effect of substantially increasing the usability of the site. As such, site plan approval is required.

28It was the Moving Party’s position that it is the Drive-Through alone (and not the café) that triggered the SPA. Without the Drive-Through, the Moving Party asserts that the City couldn’t ask for the SPA, as all other improvements to the Property have been undertaken through building permits issued by the City.

29The Moving Party also contended that, although paragraph 33 in Mr. Kopec’s Affidavit is with respect to the City’s argument that the renovations constitute ‘development’ under s. 114(1) of the CTA, which the Moving Party is no longer arguing, paragraph 33 is where the City addresses the Drive-Through as triggering the need for the SPA.

Respondent Submissions

30The Respondent asserted that the trigger for the SPA is found in s. 114(1) of the CTA in the wording of the definition of ‘development’. Development is defined, in part, as meaning “the construction, erection or placing of one or more buildings or structures on land or the making of an addition or alteration to a building or structure that has the effect of substantially increasing the size or usability thereof [emphasis added]…” and the Respondent contended that the addition of the Drive-Through will substantially increase the usability of the Property.

31The Respondent drew the Tribunal’s attention to Mr. Kopek’s Affidavit wherein he stated the following aspects of the Drive-Through that would introduce a substantial increase in usability of the Property:

31. The proposed addition of a drive-through facility on the subject site has the potential to substantially increase:

a. automotive traffic [emphasis added] on both the subject site and roads, as a drive-through facility can significantly increase the influx of vehicles visiting a site;

b. potential conflicts between pedestrians and vehicles [emphasis added] given the significant increase in vehicles on the subject site;

c. the noise and light pollution [emphasis added] on the subject site with the increase in lighting required for a drive-through facility, the increase of car queuing in the drive-through lane, and the general increase in automobiles visiting the site; and

d. the litter and waste [emphasis added] on the site as the subject site previously was not occupied or tenanted by an eating establishment.

32The Respondent proffered that the increase in usability of the site is not tied to any specific structure, but that the Drive-Through use will increase the usability of the parking lot. Mr. Szobel furthered that once a requirement for a SPA is triggered, the CTA does not bind the City to look only at the Drive-Through, but that the test is good planning and, based on s. 114 of the CTA, the City is within its statutory right to ask for certain information and requirements through a SPA with respect to the entire Property.

33The Respondent advanced the argument that there is a reasonable nexus between what the City is requiring and the SPA, but that the specific nexus of what triggers the SPA is not in the CTA, and by suggesting that it needs to be, is an attempt to read in a legal standard that does not exist.

34The Respondent submitted that, if the Tribunal were to determine that the City can make a request under the complete application provisions of the CTA for the SWMR, the only question is whether it is a reasonable request.

REQUIREMENT OF A STORMWATER MANAGEMENT REPORT

Moving Party Submissions

35The Moving Party asserted that the City is not entitled to require a SWMR for two disjunctive reasons:

1. The request was not included in the City Email which laid out the requirements for a complete application; and

2. The request is not reasonable.

The request for a SWMR was not included in the City Email

36With respect to the provisions in the TOP relating to other information requirements under s. 114(4.3) of the CTA, the Moving Party referred to Schedule 3 of the TOP, aptly titled “APPLICATION REQUIREMENTS”, which addresses the application requirements for various planning applications including Official Plan amendment, Zoning By-law amendment, Plan of Subdivision, Plan of Condominium, Consent to Sever, and Site Plan Control Approval applications. Further, Schedule 3 addresses the additional requirements of the TOP for non-prescribed required and requested information.

37The Moving Party drew the Tribunal’s attention to a version of Schedule 3 (“Old Schedule 3”) that was in force at the time of the submission of the SPA, and at the time the City Email was sent. The City replaced Old Schedule 3 with an updated version (“New Schedule 3”) which came into force on May 4, 2023, after the submission of the SPA and after the City Email was sent.

38With reference to Clergy Properties Ltd. V. Mississauga City, 1996 CarswellOnt 5704 (OMB), which states that an application must be tested against the policy documents in force on the date of the filing of the application (“Clergy Principle”), the Moving Party indicated that Old Schedule 3 should be the version to be relied on in this instance.

39Old Schedule 3 includes the following wording:

Additional Requirements of the Official Plan

In addition to the prescribed requirements of the Planning Act, the following non-prescribed information will also be required to evaluate a planning application, unless it is determined that certain studies, plans, drawings and reports are not applicable.

Provision of the additional information indicated under the Official Plan, Zoning By-law, Plan of Subdivision, Plan of Condominium and Consent to Sever headings is mandatory under the Planning Act and this Official Plan.

Provision of the additional information indicated under the Site Plan Control Approval heading is not mandatory but may be requested by the City in order to enable a site plan control application to be evaluated. [emphasis added]

40Old Schedule 3 further itemizes the additional requirements of the TOP for each application type, including SPAs. The Moving Party acknowledged that a SWMR is listed under the additional requirements section of Old Schedule 3 but contended that, as per the third sentence quoted in paragraph [39], it is “not mandatory but may be requested by the City”.

41The Moving Party noted that the City did not include the submission of a SWMR in the list of required information and material in the City Email dated March 1, 2023, as listed in paragraph [20].

42Further, the Moving Party contended that the City Email constitutes the requirements for a complete application, and that any further information or material requested by the City, including the SWMR, would constitute additional requested information and material it deems necessary to aid in a determination of the merits of the SPA, but not what the City may require for a complete application.

43The Moving Party noted that the CTA only allows for the City to require additional information if such requirements are set out in the TOP, and that Old Schedule 3 states that the items listed on the schedule are not mandatory for a SPA, and as of the date the SPA was filed with the City, unequivocally stated that no additional documents were required.

44The Moving Party asserted that the City Email serves as the checklist for all that is required to submit a complete application. Mr. Kagan proffered that the City can’t use the added words to the City Email advising that the list of requirements “may not be a complete list and upon review, departments can request further information” to keep it open ended, but that the City Email constitutes what the City required for a complete application.

Whether the request for a SWMR is reasonable

45S. 114(4.3) of the CTA provides for the City to require the Applicant to “provide any other information or material that the City considers it may need, but only if the official plan contains provisions relating to requirements under this subsection”.

46The Moving Party noted that the authority for the Tribunal to determine whether a request for information under s. 114(4.3) of the CTA is reasonable, flows from s. 114(4.6)(b), which reads:

(4.6) Within 30 days after a negative notice is given under subsection (4.5), the applicant or the City may make a motion for directions to have the Ontario Land Tribunal determine,…

(b) whether a requirement made under subsection (4.3) is reasonable. 2022, c. 12, Sched. 1, s. 1 (1).

47The Moving Party contended that the “unreasonableness of the request for the SWM Report should be viewed through the lens of it being the drive-through facility alone that the City says triggers site plan approval”.

48The Moving Party asserted that no grading, retaining walls, excavation, import or export of fill, new private catch basins, municipal services or earthworks of any kind (“Earthworks”) has been undertaken or is planned for the Property, and that the requirement for the SWMR is not reasonable. Mr. Kagan argued that, because there are no Earthworks being undertaken separate from, or in association with, the Drive-Through, there is no nexus between the provision of a Drive-Through, and the requirement for the SWMR.

49To illustrate this, Mr. Kagan proposed a hypothetical scenario of a Pizza Pizza restaurant operating on site without a Drive-Through, which he asserted would not require a SPA as it would be a permitted use with no operable changes to the Property. In the event the Pizza Pizza venture failed, and a Starbucks restaurant opened, Mr. Kagan submitted that if the Starbucks required a Drive-Through, the City may require a SPA. In this scenario, Mr. Kagan proffered that it would be unreasonable for them to require, for instance, a Hydro-G Report or a SWMR. He provided an analogy that the City was trying to use a tiny fish (the Drive-Through) as bait to catch a giant whale (the requirement for a SWMR).

50Mr. Kagan gave thought to what aspect of the Drive-Through triggered the requirement for a SPA, with a mind to determining whether a SWMR is reasonable. His suggestions included the menu board, the pick-up window, the drive aisle, and the curbing as the aspects that might trigger the requirement of a SPA, but with the suggestion that these aspects are not reasonable to trigger the requirement of the SWMR.

51The Moving Party addressed the Affidavit of Mr. Light wherein he outlined that the request for the SWMR (and the Hydro-G Report) was required to justify the design of the site, that it is a typical requirement for a SPA, and that it was the Drive-Through, as well as the expansion to the existing parking lot, that was the scope of the proposed works.

52Mr. Kagan submitted that Mr. Light explained in his Affidavit the rationale for requiring the associated servicing, grading, erosion and sediment control plans of the SWMR, and that every reason provided, relates to the works undertaken in the parking lot and not the Drive-Through. Mr. Kagan noted that such works have already been undertaken legally and currently exist on the Property. This led Mr. Kagan to the conclusion that there is no nexus between what the City asserts triggered the need for a SPA, and the request for the SWMR.

53Further, the Moving Party asserted, through the Affidavit of Mr. Bozzo, that for each of the servicing, grading, erosion and sediment control plans, the following facts hold true:

Servicing Plan

• no new municipal services are proposed,

• no new on- or off-site infrastructure is proposed, and

• no work is being undertaken below grade.

Grading Plan

• no grading changes are proposed,

• a SWMB was submitted confirming that the pre- and post-renovations were neutral from a stormwater perspective,

• the curbing for the Drive-Through is “far from the perimeter of the [s]ite” and located on an existing paved area, and

• there is a catch basin in the drive aisle.

Erosion and Sediment Control Plan

• no Earthworks are proposed, and

• nothing is being ‘constructed’.

It is the Moving Party’s contention that the rationale provided by Mr. Light regarding the need for the plans does not substantiate the request for the SWMR based on these facts.

Respondent Submissions

The request for a SWMR was not included in the City Email

54The Respondent submitted that the CTA clearly states what can be required for a complete application and, that reading s. 114 in its entirety, provides the City with the right to ask for a SWMR as part of a complete application. Specifically, Mr. Szobel contended that the request for a SWMR falls under the information and material prescribed in s. 114(4.2), regardless of the provisions in the TOP as per s. 114(4.3).

55Mr. Szobel explained his contention by proffering that the information and material prescribed as per s. 114(4.2) can be found in s. 114(5), with a reference to the wording in s. 114(4.4) which reads as follows:

Refusal and timing

(4.4) Until the City has received the plans and drawings referred to in subsection (5), the information and material required under subsections (4.2) and (4.3), if any, and any fee under section 69 of the Planning Act,

(a) the City may refuse to accept or further consider the application; and

(b) the time period referred to in subsection 114 (15) of this Act does not begin. 2022, c. 12, Sched. 1, s. 1 (1).

56Mr. Szobel asserted that s. 114(5), which addresses the approval of plans and drawings in respect of the merits of the SPA, requires plans including those related to “all facilities and works required under clause (11) (a)”. Mr. Szobel noted that the internal reference in s. 114(5) to clause (11)(a), which addresses conditions to approval of plans, contemplates that the plans and drawings must contain sufficient detail to enable the City to evaluate the SPA to determine the required conditions, if any. He further asserted that, in this section, the CTA is essentially directing the City to ‘do its homework’ before imposing conditions, and subsections (viii) and (ix) provide for conditions dealing with easements, grading and the provision for the disposal of storm, surface and waste-water. He suggested that, with the internal reference in s. 114(5) to clause (11)(a), the City is entitled to request the SWMR as part of a complete application in order to reasonably make a decision about whether the conditions under 114(11) should be imposed.

57Mr. Szobel cautioned the Tribunal that, to read the CTA in the way Mr. Kagan suggested, would require the City to justify the conditions without requiring any analysis of the necessity for those conditions. He furthered that the way the CTA is drafted, with the internal reference to clause (11)(a), allows for the City to request studies so that it can make an informed decision regarding the conditions to impose. Finally, Mr. Szobel suggested that even without referring to the ‘other information’ in the TOP, as provided for in s. 114(4.3), the City is within its right to request the SWMR as part of a complete application.

58Addressing the version of Schedule 3 in the TOP, the Respondent asserted that both Old Schedule 3 and New Schedule 3 are dispositive, and allow the City to make the request for the SWMR. Mr. Szobel argued that the third paragraph in Old Schedule 3, which states that, for a SPA, the material listed is “not mandatory but may be requested by the City in order to enable a Site Plan Control application to be evaluated” clearly speaks to a complete application because it speaks to evaluating the SPA and information required to do so. Further, he asserted that because the material listed is not mandatory does not mean it is not required.

59Mr. Szobel stressed that it is the City’s position that New Schedule 3 is applicable and should be applied in this instance, however, he concluded that the wording in Old Schedule 3 and the CTA both provide the City with the discretion to require the SWMR as part of a complete application. He also concluded that the wording in the City Email that the list may not be complete and that “departments can request further information” provides for the City to request the SWMR.

Whether the request for a SWMR is reasonable

60The Respondent submitted that the request for the SWMR is reasonable, and that the best evidence in relation to this is from the City’s witnesses, being a qualified land use planner and a qualified engineer versus the evidence from the Moving Party of the Applicant’s President and Chief Executive Officer, Mr. Bozzo, whose area of expertise is unknown due to his CV not having been submitted. Mr. Szobel asserted that there is no evidence before the Tribunal to determine Mr. Bozzo’s area of expertise which qualifies him to provide opinion evidence contained in his Affidavit, such as whether the Drive-Through substantially increases the usability of the Property.

61With respect to Mr. Light’s evidence in his Affidavit, the Respondent directed the Tribunal to the section of his Affidavit titled “JUSTIFICATION OF REQUIREMENTS FOR COMPLETE APPLICATION” which states that the Applicant must provide the SWMR for the SPA to be deemed complete and that the engineering drawing set to be provided as part of the SWMR is to consist of a servicing plan, a grading plan and an erosion and sediment control plan.

62In his Affidavit, Mr. Light put forth that the SWMR is required for the following reasons:

• Servicing Plan required to “show any proposed servicing related to storm, sanitary, or water infrastructure, as well as show existing servicing within and/or nearby the site”, “demonstrate compliance with the Design Criteria, the WWFMG as well as the Municipal Code”, and provide “the design of any proposed infrastructure”,

• Grading Plan required to “show the proposed works on the surface of the site, as well as the elevations of what is proposed”, show “where rainfall will drain during extreme events”, show “how the proposed elevations will join with the existing elevations on-site and adjacent to the site”, show “if drainage is conveyed to the property from adjacent lots, and how that drainage is managed”, show “elevations around existing and proposed trees”, show “if water will be pooling on-site (otherwise known as ponding) and whether the height of ponding will affect the use of the parking lot during rainfall events”, and show “any retaining walls proposed”,

• Erosion and Sediment Control Plan: required to “demonstrate that the correct steps will be taken to minimize dirt and mud generated during construction, as well as protecting trees and the environment”, show “all tree protection fencing”, show “the location of the mud-mat on-site which keeps mud from trucks and vehicles on-site instead of tracking onto Evans Avenue”, and show “the inlet filters that will be placed on surrounding catch basins within the Evans Avenue right-of-way”.

• SWMR report: required to “justify the engineering design shown on the Servicing Plan, the Grading Plan, and the Erosion & Sediment Control Plan”, demonstrate “whether the proposed works are in compliance with the WWFMG [Wet Weather Flow Management Guidelines (2006)], the Design Criteria, and the Municipal Code”, provide “information on how groundwater will be managed if encountered during or after construction” and to “confirm the quality and quantity of groundwater being discharged”.

63The Respondent submitted that the analysis in Mr. Bozzo’s Affidavit addressing the requirements of the SWMR as submitted by Mr. Light, does not address the adequacy of the existing servicing, or the proximity of works to existing infrastructure.

64In reading the evidence in Mr. Bozzo’s Affidavit, Mr. Szobel cautioned that the evidence seemed to transpose the two stages of the approval process, and appeared to provide the evidence that the conditions should not be imposed because no works have been or will be undertaken. Mr. Szobel submitted that this is what the City is trying to determine through the requirement of the SWMR.

65With respect to the parking lot extension, the Respondent submitted that the photographs in the Moving Party’s Reply Motion Record, showing the Property from Evans Avenue, illustrates that the area in the foreground of the former hydro building was landscaped as of 2009, and is paved as of today. It is the Respondent’s submission that this reduction in landscaping on the Property is reason enough to require the SWMR to show the impact this change might have in the evaluation of the SPA.

66Mr. Szobel asserted that the City is ‘doing its homework’, as required by the CTA, by requiring the SWMR as part of a complete application in order to determine if there is an issue related to the reduction in landscaping, and determining what conditions should be imposed at the approval stage.

67Mr. Szobel concluded that the request for the SWMR is reasonable for those reasons.

REQUIRED MATERIAL SUBMITTED / COMPLETE APPLICATION AS OF MAY 9, 2023

Moving Party Submissions

68The NIA itemized the requirement of the SWMR, a Hydro-G Report, Interior Floor Plans and a Lighting Plan in order for the SPA to be deemed complete. The Moving Party asserted that, since the requirement for the SWMR was not included as a requirement in the City Email, nor was it a reasonable request, and since the City subsequently deemed the Hydro-G Report not necessary for a complete application, all required material was submitted and the SPA was complete, as of May 9, 2023, being the date of the submission of the Interior Floor Plans and Lighting Plan.

69S. 114(4.2), (4.3) and (4.4) of the CTA provides as follows:

Prescribed information

(4.2) If information or materials are prescribed for the purposes of this section, an applicant shall provide the prescribed information and material to the City. 2022, c. 12, Sched. 1, s. 1 (1).

Other information

(4.3) The City may require that an applicant provide any other information or material that the City considers it may need, but only if the official plan contains provisions relating to requirements under this subsection. 2022, c. 12, Sched. 1, s. 1 (1).

Refusal and timing

(4.4) Until the City has received the plans and drawings referred to in subsection (5), the information and material required under subsections (4.2) and (4.3), if any, and any fee under section 69 of the Planning Act,

(a) the City may refuse to accept or further consider the application; and

(b) the time period referred to in subsection 114 (15) of this Act does not begin. 2022, c. 12, Sched. 1, s. 1 (1).

70The Moving Party submitted that s. 114(5) concerns the plans and drawings submitted by the Applicant on March 31, 2023 and May 9, 2023. Further, the Moving Party submitted that, as addressed in paragraphs [36] to [40], Old Schedule 3 lists SWMRs (and Hydro-G Reports) as not mandatory for SPAs, albeit they may be requested by the City, not as part of a complete application, but as additional material required to evaluate the merits of the SPA. Thus, it was the Moving Party’s submission that the City was not entitled under the CTA or the TOP to require the SWMR (or the Hydro-G Report) for the purposes of deeming the SPA a complete application.

Respondent Submissions

71The Respondent submitted that the City made its request for the SWMR within the prescribed timeline, and before it was required to issue a complete application. It was asserted that the City adhered to the statutory timelines and worked cooperatively with the Applicant, but for the disagreement over the SWMR. It was further submitted that the timing of the request for the SWMR should not impact on the Tribunal’s decision.

72The Respondent submitted that s.114 of the CTA is clear in its delineation of what can be required for a complete application.

73The Respondent contends that the items listed in the City Email does not constitute what is required for a complete application, as the City Email provides for the potential of further information to be required, and the SWMR does not constitute additional requested information and material the City deems necessary to aid in a determination of the merits of the SPA, but what the City requires for a complete application.

ANALYSIS AND FINDINGS

74What is at issue is a substantive disagreement over whether the SWMR is a valid requirement as part of a complete application. Also at issue is the interpretation of the CTA with respect to the provisions related to what may be included as prescribed information and material in s. 114(4.2) and (4.3).

75Additionally, at issue is whether it is the Drive-Through and/or the paved area where the former Toronto Hydro transformer was located that triggered the request for a SWMR.

76The Tribunal has carefully considered the material before it, as well as the submissions of the Parties and finds that the Motion, without a determination of whether Site Plan Control applies and whether the proposal is ‘development’ under s. 114(1) of the CTA, should succeed for the reasons that follow.

77The Tribunal finds that it was the Drive-Through that triggered the requirement by the City for the SPA. This is evidenced by the submissions and evidence of the Moving Party, and the actions of the City to require the SPA once the Drive-Through was proposed. Further, it is borne out by the submissions of the Responding Party and the Affidavit of Mr. Kopec, where he categorized the Drive-Through as substantially increasing the usability of the site, and as such, a SPA is required. In this respect, there is no need for a determination as to whether the Drive-Through use represents a ‘substantial increase in the usability of the site’.

78Further, the Tribunal finds that it is not at all clear or conclusive from s. 114 of the CTA as to whether the trigger for the requirement of the SPA allows the City to use a wide net to encompass all aspects of the Property, and any works undertaken (or not, in this case) through issued building permits in order to justify the need or scope of the SPA, or the related required information and material required to deem an application complete.

79The Tribunal finds that the determination of whether the requirement for the SWMR is reasonable, is found by the straightforward assessment that the Drive-Through has no bearing on the servicing aspects of the Property. The pavement is existing, the building is existing, the drive aisle is existing, and the use is permitted. The Drive-Through requires no Earthworks. It is difficult to find even a small nexus between the Drive-Through and the request for the SWMR. The request for the Hydro-G report, albeit deferred and not at issue in the determination of whether the SPA is a complete application or not, only weakens the City’s argument that what they are requesting or requiring is reasonable, at any stage of the SPA process, let alone at the complete application stage.

80The Tribunal finds that the determination of the Motion is found in a simple reading of s. 114(4.2), (4.3) and (4.4). Referring to s. 114(4.4), it is clear that, until the City has received the required plans and drawings as set out in s. 114(5), the prescribed information and any other required information set out in the TOP, the City may refuse to accept or further consider the SPA (i.e. deem it complete), and the appeal provisions in s. 114(15) are not triggered. It is also clear that the requirements set out in s. 114(11)(viii) and (ix) with respect to easements and “grading or alteration in elevation or contour of the land and provision for the disposal of storm, surface and waste water”, do not enable the City to require the SWMR in this instance for the simple reason that no easements, “grading or alteration in elevation or contour of the land and provision for the disposal of storm, surface and waste water” are proposed or have been undertaken.

Complete Application

81It is noted that neither the CTA nor the Act define or mention the term ‘complete application’. It is determinative however, that s. 114(4.4)(b) of the CTA addresses the timeline of when appeal rights commence for a SPA, thereby addressing the concept of a complete application.

82S. 114(4.4)(b) of the CTA states that the “time period referred to in subsection 114(15) of this Act does not begin” until the City has received the “information and material required under subsections (4.2) and (4.3)” among other requirements. S. 114(4.2) speaks to any prescribed information or material and s .114(4.3) speaks to any other information or material required by the City, but only if the TOP contains provisions related to requirements for SPAs.

83In this respect, one must seek to understand the specifics of the material allowed to be required by the City under s. 114(4.3) by referring to the TOP provisions relating to requirements for SPAs. As submitted by Mr. Kagan, Old Schedule 3 to the TOP specifically itemizes the non-prescribed application requirements for various planning applications including SPAs.

Schedule 3

84The Tribunal finds that the Clergy Principle applies with respect to the version of Schedule 3 in the TOP that applies in this case. Old Schedule 3 was in force at the time of the submission of the SPA, and at the time the City Email was sent. In this instance, the Tribunal finds that Old Schedule 3 applies to the SPA. In this respect, it is clear from the reading of Old Schedule 3 that the additional information listed for a SPA is not mandatory or required by the City, and therefore does not meet the requirements of s. 114(4.3) for the determination of a complete application.

85The Tribunal does not determine this to mean that the City cannot require items listed on Old Schedule 3 at any time after a SPA has been deemed complete. The Tribunal does determine that, in this instance, the City cannot require the SWMR or the Hydro-G Report for the consideration of the SPA. It simply does not follow from the works undertaken or proposed to be undertaken on the Property, whether or not a Drive-Through is proposed.

City Email as Checklist

86The Tribunal agrees with the Moving Party that the City Email serves as a checklist of what is required for a complete application. The wording in the City Email that the items listed is a “list of requirements for a site plan application for a drive-through facility” is reasonably interpreted to be a list of what is required to submit a complete application. The additional wording advising that the list “may not be a complete list and upon review, departments can request further information” is reasonably interpreted as an advisory that additional information and material may be required to be submitted upon further review of the submitted SPA, once deemed a complete application.

SWMR

87Further, the Tribunal finds that there is no nexus between the provision of the Drive-Through on the existing drive aisle and the City’s requirement for a SWMR, since there are no impacts on the stormwater management features of the site and no Earthworks are being undertaken. On this basis, the Tribunal finds that the requirement for the SWMR is neither reasonable nor warranted.

88As the requirement for a SWMR is determined to be neither reasonable nor warranted, and since the Moving Party has furnished the City with all other required and/or requested material, the Tribunal further finds that the SPA is deemed complete as of May 9, 2023, being the date of the submission of the last required and/or requested material to the City.

89To be clear, it is the Tribunal’s determination that, as there are no Earthworks associated with the development of the Property, the requirement/request for a SWMR is not reasonable, as part of a complete application, or for consideration of the merits of the SPA.

90It follows that the requirement for the Hydro-G Report is also not reasonable for the same reasons that the requirement for the SWMR is not reasonable.

91The Tribunal finds that the SWMR is not required as part of a complete application, since it was not made a requirement in the City Email which serves as a checklist for the submission of required information and material to deem the SPA complete, as well as for the reason that it is not a reasonable request. Although the Moving Party is not required to meet both grounds as they are disjunctive, both are met.

92The Tribunal therefore exercises its authority to grant the Motion. The Tribunal does so with due consideration of all submissions and aspects of the proposed development of the Property.

COSTS

93Regarding the request for costs by both the Moving Party and the Respondent, the Tribunal advised the Parties that a cost award would need to be pursued through a separate Motion request made within 30 days of the issuance of this Decision and Order, in compliance with Rule 23 of the Rules. It is noted that, as per Rule 23.9 of the Rules, the Tribunal may only order costs against a Party if the conduct or course of conduct of a Party has been unreasonable, frivolous or vexatious or if a Party has acted in bad faith.

ORDER

94THE TRIBUNAL ORDERS that the Motion is granted in the determination that: the City’s request under s. 114(4.3) of the City of Toronto Act for additional information, in the form of a Storm Water Management Report and a Hydro-geological Report, is neither reasonable nor warranted; that all of the applicable information and material required by s. 114(4.2), 114(4.3) and 114(5) of the City of Toronto Act was provided to the City by the Applicant as of May 9, 2023; and that the Site Plan Application was complete as of May 9, 2023.

“C. I. Molinari”

C. I. MOLINARI

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.