Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 06, 2023

CASE NO(S).: OLT-23-000018

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

Applicant/Appellant: Agricola Finnish Lutheran Church Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a 12-storey mixed use building Reference Number: 22 179212 NNY 15 OA Property Address: 25 Old York Mills Road Municipality: City of Toronto OLT Case No: OLT-23-000018 OLT Lead Case No: OLT-23-000018 OLT Case Name: Agricola Finnish Lutheran Church v. Toronto (City)

PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Agricola Finnish Lutheran Church Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a 12-storey mixed use building Reference Number: 22 179212 NNY 15 OA Property Address: 25 Old York Mills Road Municipality: City of Toronto OLT Case No: OLT-23-000019 OLT Lead Case No: OLT-23-000018

PROCEEDING COMMENCED UNDER section 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched A

Applicant/Appellant: Agricola Finnish Lutheran Church Subject: Site Plan Description: To permit a 12-storey mixed use building Reference Number: 22 179212 NNY 15 SA Property Address: 25 Old York Mills Road Municipality: City of Toronto OLT Case No: OLT-23-000020 OLT Lead Case No: OLT-23-000018

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: York Mills Valley Association and the Town Homes of Hoggs Hallow Community Association Request for: Request for Directions Heard: October 18, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Agricola Finnish Lutheran Church	John Alati Grace O’Brien
York Mills Valley Association	Ian Flett
Townhomes of Hogg’s Hollow Community Association	Ian Flett
City of Toronto	Lauren Pinder Jessica Braun (in absentia)
Toronto Region Conservation Authority	Barbara Montgomery (in absentia) Tim Duncan (in absentia)

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

Link to Order

INTRODUCTION

1Agricola Finnish Lutheran Church (“Respondent”) submitted official plan amendment, zoning by-law amendment and site plan applications (“Applications”) to the City of Toronto (“City”) on July 19, 2022. On January 4, 2023, the Respondent appealed the Applications to the Tribunal pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13., as amended (“Act”) and s. 114(15) of the City of Toronto Act (“COTA”) for the failure of the City to make a decision on the Applications within the statutory timelines set out in the Act and COTA, respectively. The Applications relate to the property municipally known as 25 Old York Mills Road, Toronto (“Property”).

2The purpose of the Applications is to facilitate the proposed redevelopment of the Property with a 12-storey mixed-use building comprising a total gross floor area of 9,476 square metres, including residential units, a church, a multi-function space, daycare and community space, and at-grade retail uses.

3On April 14, 2023, the Tribunal held a Case Management Conference (“CMC”), at which Toronto Region Conservation Authority (“TRCA”) and York Mills Valley Association (“YMVA”) were granted Party status and Rick Galbraith was granted Participant status. On June 27, 2023, the Tribunal held a second CMC, at which Townhomes of Hogg’s Hollow Community Association (“THHCA”) was granted Party status and Phillippa Perkins was granted Participant status.

4At the second CMC, the Tribunal set a 10-day video hearing to commence on November 15, 2023, continuing until November 30, 2023, and issued a Procedural Order (“PO”) governing the proceedings. Although not noted in the second CMC decision, the end date of November 30, 2023, was to accommodate the Tribunal not sitting on November 27 and 28, 2023.

5Since the second CMC, Mr. Flett advised the Tribunal that he was jointly retained by YMVA and THHCA (“Moving Parties”).

6Prior to the Motion hearing, the Respondent was engaged in settlement discussions with TRCA and the City resulting in revisions to the Applications (“Revised Proposal”).

7The Revised Proposal proposes to, among other things:

• Increase the western setback to the lands to be conveyed to TRCA from 1.5 m to 3 m;
• Reduce the building height from 12 storeys to 11 storeys;
• Add internal pick-up drop-off spaces at the P1 level; and
• Adjust the site access angle, but not the location.

8The Revised Proposal resulted in a settlement with TRCA and the submission of a settlement offer to the City. The City is expected to consider the settlement offer at its council meeting on November 8, 2023, ahead of the merit hearing. In this respect, the City does not intend to call any witnesses at the merit hearing.

9As there was some confusion related to the length of the hearing, given the assigned dates of November 15, 2023, to November 30, 2023, seemingly provided for a 12-day hearing event, the Tribunal confirmed during the Motion Hearing that it was to be a 10-day hearing event, with the exception of November 27 and 28, 2023, during which the Tribunal will not be sitting. It was then confirmed by the Moving Parties, the Respondent and the City that legal counsel and all witnesses would be available on both November 29 and 30, 2023.

10As described below, further to the settlement reached between the Respondent and TRCA, and the anticipated settlement between the Respondent and the City, three days of the scheduled hearing have been released and the hearing is now set to commence on November 20, 2023, and continuing until November 30, 2023, with the exception of November 27 and 28, 2023.

THE MOTION

11On September 19, 2023, the Moving Parties requested a hearing date to bring a motion before the commencement of the merit hearing, based on the Applicant having circulated revised plans and shadow studies on September 18, 2023. The Respondent opposed the adjournment request.

12The Moving Parties then filed a Motion Record complete with a Notice of Motion to the Tribunal on October 3, 2023, requesting an adjournment of the hearing and revisions to the exchange and filing dates for the merit hearing.

13The Respondent filed a Responding Motion Record to the Tribunal on October 11, 2023, requesting an Order of the Tribunal dismissing the Motion and confirming the merit hearing will proceed on the scheduled dates. The Responding Motion Record also requested an Order of the Tribunal confirming that at the conclusion of the motion hearing, the Tribunal will hear a motion for costs brought by the Respondent against the Moving Parties in respect of the bringing and arguing of this Motion.

14No Reply Motion Record was filed by the Moving Parties.

15The Tribunal is in receipt of the affirmed Affidavit of Service of Mr. Flett dated October 16, 2023, confirming that the Moving Parties had complied with its obligations as to service of the Motion Record, which was marked as Exhibit 1. Similarly, the Tribunal is in receipt of the affirmed Affidavit of Service of Ms. O’Brien dated October 13, 2023, confirming that the Respondent had complied with its obligations as to service of the Responding Motion Record, which was marked as Exhibit 2.

16The grounds for the adjournment request were based on the Respondent’s non-compliance with the PO, which, at paragraph 9, specified the conditions under which revisions could be considered, and reads as follows:

9. If the applicant intends to seek approval of a revised proposal at the Hearing, in the event that the revisions are not minor nor do they arise from changes requested by the City or another public authority, the applicant shall provide copies of the revised proposal, including revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other Parties on or before Friday, July 7, 2023. The applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the Hearing but that this paragraph may not be pleaded by the requestor as an implicit acceptance of the potential adjournment.

17The Moving Parties asserted that the Revised Proposal violates the conditions of paragraph 9 of the PO for the following four reasons:

1. There is not consent from all the parties;
2. The changes are not minor;
3. There has been no indication on the record that the Revised Proposal has been requested by the City or another public authority; and
4. Updated instruments, studies and reports have not been provided to the parties.

18The Tribunal notified the Parties that it had fixed October 18, 2023, to hear the Motion by video hearing.

19The materials before the Tribunal for the Motion were the following:

• The Motion Record dated October 3, 2023, including an affidavit of Terry Mills affirmed on October 3, 2023;
• The Responding Motion Record dated October 11, 2023, including an affidavit of Michael Goldberg affirmed on October 11, 2023.

20The City was in attendance at the Motion hearing as an observer and took no position on the Motion. TRCA was not in attendance, however Ms. Montgomery had communicated through Mr. Alati that he could confirm on her account that, as TRCA had entered into Minutes of Settlement with the Respondent, TRCA would not be calling any witnesses at the merit hearing.

21Due to significant dialogue between the Moving Parties and the Respondent ahead of the Motion hearing, the Parties were able to resolve the adjournment request and agree on revised exchange and filing dates for the witness statements, visual evidence, reply witness statements, sur-reply witness statements, if any, the Joint Document Book and the hearing plan, but were not agreeable on the start date of the merit hearing.

22The Moving Parties had requested a start date for the merit hearing of November 22, 2023, and indicated that a five-day hearing would suffice with the reduction in witnesses from 13 to six, given the settlement between the Respondent and TRCA and the City not calling any witnesses in any event.

23The Responding Party indicated that, with the resolution of TRCA’s issues and the City not intending to call any witnesses, the merit hearing required a total of seven days. The Responding Party preferred a start date of November 15, 2023, although indicated that a start date of November 20, 2023, would suffice. Mr. Alati proffered that, with the revised exchange and filing dates, any prejudice perceived by the Moving Parties related to the Revised Proposal would be resolved.

FINDINGS ON THE MOTION

24The starting point for a request for an adjournment is set out in Rule 17.1 of the Tribunal’s Rules of Practice and Procedure (“Rules”) which clearly emphasizes that hearing dates are fixed. The Rules provide that, even if all Parties consent, an adjournment may not be granted by the Tribunal. The Tribunal has the authority and discretion to control the adjudicative process, including the fixing of hearing dates, which will remain in place unless the Tribunal finds compelling reasons to grant an adjournment. The Tribunal’s calendar is valuable and reasons for adjourning a hearing must be compelling.

25On the adjournment request, the matter turns on prejudice on the Moving Parties due to the delay in the delivery of the Revised Proposal and the Tribunal finds that the Moving Parties, by the resolution of the matters between the Moving Parties and the Respondent, have sufficient time to compile its evidence in time to proceed to the hearing with a delayed start date. The Moving Parties did not proffer any evidence that would satisfy the Tribunal that prejudice would be suffered by the Moving Parties if the hearing proceeded as scheduled, with a delayed start date.

26As such, given the resolution of the matters leading to the filing of the Motion, other than the start date of the merit hearing, and after hearing the submissions of the Moving Parties and the Respondent related to the start date, the Tribunal issued an oral decision to deny the Motion and to schedule a start date to the merit hearing of November 20, 2023, providing for a seven-day hearing, if required.

27It is the Tribunal’s determination that any prejudice to the Moving Parties is mitigated by the delayed start date of the merit hearing by three hearing days and the revised exchange and filing dates, as proposed and agreed to by the Moving Parties and the Respondent.

28The Tribunal encourages Parties to engage in productive discussions leading up to a hearing event in an effort to facilitate reaching agreement on some or all issues. The Tribunal has not heard any submissions before it evincing that the Moving Parties or any other Party or Participant will suffer prejudice if the hearing takes place with revised exchange and filing dates and with a delayed start date. In this case, the Moving Parties and the Respondent are in agreement with the revised exchange and filing dates and are not far off in their respective hearing date requests.

29With respect to the proposed revised exchange and filing dates, the PO is an order of the Tribunal which is required to be complied with by the Parties. However, the Tribunal does have discretion in this regard and notes that a valid reason for non-compliance includes an impending settlement, albeit potentially contested. One of the purposes of the PO is to promote timely interactions between opposing Parties in advance of a hearing event. The intent of these interactions is to allow for the Parties to reach common ground on some or all of the issues in order to scope, or alternatively fully resolve, the matters to be adjudicated. Revisions to plans are often part of this process and may have the effect of settling all or part of an appeal. This is an important and encouraged step in the adjudicative process before the Tribunal.

30Given the Tribunal’s denial of the Motion, the timelines set out in Attachment 1 in the Procedural Order issued on September 23, 2022, are amended as proposed by the Moving Parties and the Respondent and as agreed to by the Tribunal, as follows:

DATE	EVENT
On or before Thursday, November 2, 2023	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
On or before Friday, November 3, 2023	Exchange of visual evidence
On or before Wednesday, November 8, 2023	Exchange of Reply Witness Statements
On or before Monday, November 13, 2023	Filing of Sur-Reply Witness Statements, if any
On or before Wednesday, November 15, 2023	Hearing Plan filed with the Tribunal
On or before Wednesday, November 15, 2023	Joint Document Book filed with the Tribunal
November 20, 2023	Hearing commences

31In making this decision on the Motion, the Tribunal makes no finding on the merits of the appeals.

COSTS

32The Tribunal advised the Respondent that any motion for costs is to be filed as a separate written motion to the Tribunal within 30 days of the issuance of this Decision and Order in compliance with Rule 23. It is noted that, as per Rule 23.9, 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. Further, the Tribunal is not bound to order costs as the Tribunal will consider the seriousness of the misconduct, if any.

ORDER

33THE TRIBUNAL ORDERS that the Motion brought by York Mills Valley Association and Townhomes of Hogg’s Hollow Community Association is denied and the hearing event will proceed as scheduled with a delayed start date, commencing on Monday, November 20, 2023, at 10 a.m. and ending on Thursday, November 30, 2023, with the Tribunal not sitting on Monday, November 27, 2023 and Tuesday, November 28, 2023, providing for a seven-day hearing, in accordance with the amended Procedural Order deadlines, as set out in paragraph [30] of this Decision.

“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.