CORRECTION NOTICE

OLT CASE NO(S).:

OLT-23-000739

DECISION ISSUE DATE(S):

November 16, 2023

CORRECTION NOTICE ISSUE DATE:

December 04, 2023

RE: Wildav International Developments Limited v. Pickering (City)

Correction to: The Title of Proceedings on page 1 to correctly identify the “Applicant”(On page 1) on the TOPs to reflect the correct from appellant to applicant

Originally:

Appellant: Wildav International Developments Limited

Corrected to:

Applicant: Wildav International Developments Limited

“Euken Lui”

EUKEN LUI REGISTRAR

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.

ISSUE DATE:

November 16, 2023

CASE NO(S).:

OLT-23-000739

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

Appellant:

5031718 Ontario Inc.

Appellant:

Wildav International Developments Limited

Subject:

By-law No. 8023/23

Description:

To permit a 48-storey mixed-use tower with a 6- storey podium

Reference Number:

A 07/22

Property Address:

1786 and 1790 Liverpool Road

Municipality:

Pickering/Durham

OLT Case No:

OLT-23-000739

OLT Lead Case No:

OLT-23-000739

OLT Case Name:

Wildav International Developments Limited v. Pickering (City)

PROCEEDING COMMENCED UNDER subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended, subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, and subsection 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

Request by:

Wildav International Developments Limited

Request for:

Dismissal Without a Hearing

Heard:

October 11, 2023 by Video Conference

APPEARANCES:

Parties

Counsel

Wildav International Developments Limited (“Applicant”)

S. Nadler W. Friedman

5031718 Ontario Inc.(“Appellant”/“503”)

L. Longo

City of Pickering (“City”)

C. Murkar

DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant filed a Motion seeking the Tribunal’s dismissal of the Appellant’s appeal to Zoning By-law Amendment 8023/23 (“ZBA”) passed by the City.

2The Tribunal received written and oral submissions, including planning affidavits and Tribunal (or its predecessor) Decisions, from the Applicant and Appellant. For ease of reference, the documents were marked as Exhibits (“Ex.”):

1. Applicant Motion Record
2. Applicant Book of Authorities
3. Appellant Responding Motion Record
4. Appellant Book of Authorities
5. Applicant Reply

3The City advised that it was not opposed to the Motion, did not file submissions, and was attending the hearing to observe and assist, if asked, but not to otherwise participate.

4This Decision grants the Motion and dismisses the appeal for the reasons that follow.

PARTY STATUS

5The Tribunal granted Party Status to the Applicant, without objection from the statutory Parties, being the City and the Appellant. As the owner of the affected lands and the Applicant for the passed but now appealed ZBA, the Applicant has an obvious and reasonable interest related to this appeal.

JURISDICTION

6The sections of the Planning Act (“Act”) and the Ontario Land Tribunal Act (“OLTA”) of particular applicability in this dispute are as follows (emphasis added).

7The Tribunal may dismiss an appeal for the reasons set out in the Act s. 34(25):

34(25) 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.

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

8The explanations required by s. 34(19.0.1) of the Act are as follows:

34(19.0.1) 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 conform 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.

9Under the OLTA, an appeal may be dismissed for the reasons given in s. 19(1):

19 (1) Subject to (notice), 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;

… or

(e) in any circumstance provided for under any other Act.

10As authorized by the Statutory Powers Procedure Act (“SPPA”) s. 4.6(1), the Tribunal’s Rules of Practice and Procedure (“Rules) address jurisdiction in Rule 15.4:

15.4 The Tribunal may dismiss a matter by adjudicative order where:

(b) the initiating matter deals with matters that are outside the jurisdiction of the Tribunal;

11From the foregoing legislative authorizations, the Tribunal may dismiss an appeal if only one of the cited reasons is found to be satisfied, in summary relevant to this Motion being: the absence of a valid planning ground; failure to explain how the ZBA is inconsistent or does not conform with applicable policies; no reasonable prospect of success; and/or outside the Tribunal’s jurisdiction.

12The Tribunal considers the relatively recent test in OLTA s. 19(1)(c) to complement the long-standing test in the Act s. 34(25)1.i. The second part of the Act’s test is whether there is any possibility that the Tribunal “could allow all or part of the appeal.” The test in the Act can be interpreted as – is there any chance of success? – akin to the OLTA’s test of “no reasonable prospect of success.”

13The Tribunal considers the relatively recent test in OLTA s. 19(1)(c) to complement the long-standing test in the Act s. 34(25)1.i. The second part of the Act’s test is whether there is any possibility that the Tribunal “could allow all or part of the appeal.” The test in the Act can be interpreted as – is there any chance of success? – akin to the OLTA’s test of “no reasonable prospect of success.”

17s. 34(25)1.i nevertheless requires the Tribunal to determine whether the grounds constitute genuine, legitimate and authentic planning reasons, and that the requirements of that section are satisfied. If, on a Motion to Dismiss, when the evidence presented is weighed, the appellant has failed to provide sufficient evidence to permit the Tribunal to affirmatively conclude that there is authenticity in the reasons, that there are issues that should affect a decision in a hearing and that the issues are worthy of the adjudicative process, the appeal should be dismissed without holding a full hearing.

SITE CONTEXT

14The ZBA under appeal would permit a 48-storey mixed-use building with 594 dwelling units and 190 square metres of commercial space at grade. The ZBA applies to 1786 and 1790 Liverpool Road (“Liverpool”), located to the northwest of Provincial Highway 401’s interchange (“401”) with Liverpool in Pickering (the “site”).

15To the south of the site, between the site and 401 lands, is privately owned land over which is planned an extension of the City’s road allowance for Walnut Lane (“Walnut”).

16The Appellant’s property, at 1305 and 1315 Pickering Parkway, is due west of the site across Liverpool (referred to herein as “503”). The south side of 503 abuts 401 lands containing exit lanes to Liverpool.

17While appearing to front onto Liverpool, both this site and 503 do not abut Liverpool directly (other than the northeast corner of this site). A narrow ribbon of land owned by the Ministry of Transportation (“MTO”) is located between this site and Liverpool, and a wider ribbon of land, also owned by MTO, is located between 503 and Liverpool (“MTO ribbons”).

SUBMISSIONS

18The Parties’ substantial written submissions were reviewed and are summarized here from their oral arguments at the hearing. Each Party filed an affidavit from a Registered Professional Planner whom the Tribunal qualifies to provide opinion evidence in land use planning.

APPLICANT

19The Applicant submits that the source of the appeal is not the ZBA per se, but the setbacks imposed on 503 by MTO, for which the Tribunal has no jurisdiction. When MTO commented on the proposed ZBA, it required no building setback for this site, although now, following MTO’s review of the Applicant’s site plan application (“SPA”) to the City, MTO mandates a 3 metre (“m”) setback at grade. The Applicant contends that MTO’s required setback of 14 m on the Appellant’s property across Liverpool has prompted this appeal.

[20] To illustrate, the Applicant emphasizes that the Appellant’s appeal has done “a complete 180 (degree turn).” The original appeal sought a 0 m setback at 503, equal to the setback understood to apply to this site, whereas the Appellant’s response to this motion now seeks a 14 m setback on this site, equal to what applies to 503. The Applicant contends that the Appellant may wish to pursue 503’s setbacks with MTO, but they fail to constitute grounds for appeal because 503 is not subject to this ZBA, the ZBA does not address setbacks for the Applicant’s site, and the Tribunal lacks jurisdiction to order MTO on its required setbacks.

21The Applicant concludes that the appeal is not worthy of the Tribunal’s precious resources given that MTO has the authority to mandate setbacks, which have and will be done on both sides of Liverpool as needs arise. Whether or not setbacks are included within this ZBA is of no relevance to 503 across Liverpool and is not worthy of the adjudicative process.

22The Applicant requests that the Motion to dismiss the appeal be approved.

Appellant

23The Appellant responds that the appropriate setback along the east side of the site is a valid ZBA issue. The ZBA has no minimum setback, and the parent Zoning By-law (“ZBL”) requires a minimum of 1 m and possibly 14 m, which, through this ZBA, should be assessed for conformity and consistency in accordance with the Act. The Appellant argues that “live issues” arise from this appeal that warrant review, including under the Provincial Policy Statement (“PPS”), A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”), and Official Plan (“OP”) as outlined in its planner’s affidavit.

24The Appellant notes the apparently inconsistent requirements of MTO through its successive communications to the City and Applicant of “no comments,” then requiring a 14 m setback, and appearing to now accept a 3 m setback. The extent and requirements of the 401 corridor, including these MTO ribbons on both sides of Liverpool, should be subject to full examination to arrive at suitable ZBA setbacks.

25The Appellant summarizes that a focussed hearing on the merits of the required setbacks is warranted. Liverpool will be widened for its interconnection with 401, and the equitable and fair treatment of affected properties should be considered fully. The Appellant accepts that the MTO’s highway designs and related requirements are outside the Tribunal’s jurisdiction, but argues that any resulting and necessary ZBA setbacks are squarely within the Tribunal’s powers.

26The Appellant requests that the Motion be dismissed and a hearing on the merits be scheduled.

FINDINGS

27The Tribunal finds that a ZBA setback, on its face, is a common, valid planning issue. However, in this case, the Appellant has failed to establish reasonable grounds upon which the Tribunal could grant all or part of the appeal. The ZBA establishes no special setback for this site, and the MTO has and will exercise its authority to require setbacks in accordance with any future plans for the 401-Liverpool-Walnut interconnection. The Tribunal is satisfied that MTO is aware of and has contributed to the ZBA process for this site, and the Tribunal requires no direct evidence from MTO on its future plans.

28Land ownership is not for the Tribunal to judge or evaluate in connection with this ZBA. The MTO ribbons exist, are different widths on either side of Liverpool, are contiguous with 401 (east side of Liverpool) or isolated from 401 (west side of Liverpool), and MTO in consultation with the City will determine if, when and how they are designed and developed for transportation purposes. The Tribunal is satisfied that a specified setback is not necessary in this ZBA given MTO’s involvement in this ZBA and its authority to impose setbacks in accordance with its land ownership, road plans, and statutory authority. The Appellant’s planner opines in his affidavit that the west ribbon is part of the 401 corridor and warrants a 14 m setback per MTO requirements. Again, the Tribunal will leave such determination to the MTO’s independent authority.

29Further, while addressed by the City planner’s letter submitted in the Applicant’s reply, the Tribunal finds that it is not before the Tribunal to determine whether s. 2.18 of the ZBL (the 14 m setback abutting the 401 corridor) applies to this site via the isolated MTO ribbon. The issue addressed in this motion Decision is the validity of the appeal, not whether the proposed site plan complies in all respects with the ZBL. The Tribunal accepts that this is a grey area, given that ZBL provisions can arise in a hearing on the merits of a ZBA. However, here the Tribunal finds that, related to this motion, compliance with the ZBL is a legal matter between the City and the Applicant, to which the Appellant may pursue, should it wish, through avenues outside the Tribunal.

30To the Appellant’s submissions and its planner’s affidavit regarding the consistency and conformity assertions of s. 34(19.0.1), the Tribunal finds in accordance with the above analysis. Consistency with the PPS and conformity with the GP, related to the 401 corridor through the policies addressing transportation and infrastructure, are achieved through the MTO’s review, comments, and future decisions. Similarly, to the Appellant’s assertion that the ZBA fails to conform with the OP’s policies for “road widenings being taken equally from both sides of the road” (Ex. 3, p. 21), the MTO owns and may/will use the MTO ribbons on either side of Liverpool. MTO will decide, in consultation with the City, if/how road widenings will occur, including consideration of using its owned ribbons along Liverpool. It is apparent from its correspondence that MTO does not require more land to the west of Liverpool (at this site), and, of interest, the Tribunal is not aware of evidence proffered that MTO might wish to acquire more land on the east side of Liverpool (at 503). The Tribunal accepts that the Appellant has expounded on its rationale related to the Act s. 34(25)3, but such explanation is found to not represent a planning ground upon which the Tribunal could allow an appeal under s. 34(25)1.

[31] As evidenced by MTO’s comments on the ZBA and the City’s adoption of the ZBA, it is clear that the transportation needs of these road authorities at this location are appropriately accommodated by the road rights-of-way, land ownership pattern, and setbacks for the 401, Liverpool, and Walnut, individually and combined. The Appellant’s implied assumption that more land may be needed or its position that possible road widenings should be distributed equally are not supported by the existence of the MTO ribbons or the positions of the road authorities. These findings underscore the Applicant’s contention that transportation issues do not arise from this ZBA, and no relevant matters pertaining to the intended development of this site have been raised in the appeal. As such, the Tribunal does not accept the Appellant’s argument that grounds have been established to sufficiently question the consistency and conformity of this ZBA to validate the appeal.

32Pursuant to s. 34(25)1.i of the Act and applying Vice-Chair Makuch’s rationale, the Tribunal finds that the apparent land use planning ground of the appeal is not one upon which the Tribunal could allow all or part of the appeal. As a corollary, under s. 19(1)(c) of the OLTA, the Tribunal finds that the proceeding has no reasonable prospect of success.

33The Tribunal accepts that the Appellant is genuinely concerned with MTO setbacks affecting 503’s lands and that differences in the MTO ribbons and setbacks exist when comparing the east and west sides of Liverpool. The Tribunal finds that while the appeal is misplaced, it does not fail to be made in good faith, is not frivolous (e.g., misleading) or vexatious (e.g., harassing), and thus, does not offend s. 34(25)1.ii of the Act.

34The Tribunal finds that this appeal is based solely on existing and potential MTO setbacks, for which the Tribunal has no authority to adjudicate. This appeal is “outside the jurisdiction of the tribunal” per SPPA s. 4.6(1)(b).

35Having found one or more failures to sustain the appeal under the Act and the OLTA, the Tribunal dismisses the appeal.

36On the affidavit of the Applicant’s planner and on the City planner’s fulsome planning report, the Tribunal finds that the ZBA, which will come into force upon issuance of this Order: has suitable regard for the provincial interests of the Act s. 2; conforms with and does not conflict with the GP; is consistent with the PPS; and conforms with the OP. The Tribunal makes these findings on the motion and the suitability of the ZBA having had regard to the related decisions of the City Council.

ORDER

37The Tribunal Orders that:

• the motion is granted, in part;

• the appeal is dismissed, pursuant to s. 34(25)1.i of the Planning Act, s. 19(1)(c) of the Ontario Land Tribunal Act, and s. 4.6(1)(b) of the Statutory Powers Procedure Act; and,

• the City of Pickering Zoning By-law No. 8023/23 is deemed to have come into force on the day it was passed, pursuant to s. 34(30) of the Planning Act.

“S. Tousaw”

S. TOUSAW VICE CHAIR

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.