Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
December 04, 2023
CASE NO(S).:
OLT-22-004661
PROCEEDING COMMENCED UNDER subsection 6(2) of the Expropriations Act, R.S.O. 1990, c. E.26
Claimant:
6524443 Canada Inc.
Expropriating Authority:
City of Toronto/Toronto Transit Commission
Property Address:
Bloor-Yonge Capacity Improvement Project
(Various Addresses)
Municipality/UT:
City of Toronto
OLT Case No.:
OLT-22-004661
OLT Lead Case No.:
OLT-22-004661
OLT Case Name:
6524443 Canada Inc. v. Toronto (City)
Heard:
July 6 to 7, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
City of Toronto
A. Kanner
A. Valela
6524443 Canada Inc.
F. Sperdutti
(“Brookfield”)
M. Grant
report of the tribunal DELIVERED BY d.s. colbourne
1This is a Report of a Hearing of Necessity held under s. 7 of the Expropriations Act, R.S.O. 1990, Chapter E. 26, as amended (the “Act”).
2Informal inquiries are held to determine whether the proposed taking by the Expropriating Authority of an owner’s land is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” as the Act states. The courts have interpreted this test to be whether the proposed taking is “reasonably defensible”.
3The lands to be taken in this matter are for the purposes of the Bloor-Yonge Capacity Improvement project (“BYCI”). This is to expand and modernize Bloor-Yonge Station, the main interchange station connecting Line 1 – Yonge-University Line 1 and Line 2, Bloor-Danforth Line, which is the busiest station on the Toronto Transit Commission (“TTC”) subway system. This served approximately 220,000 customers on an average weekday in 2019, and is anticipated to serve approximately 400,000 customers on an average weekday by 2056.
4The scope of the work outlined in the Notice of Grounds is extensive. For the purposes of this Hearing, it focuses on addressing passenger capacity at Bloor-Yonge station, by reducing platform overcrowding and distribution on the Bloor-Yonge platforms, all to provide for an optimal subway station operational design. As well, it is to commence construction in a timely and efficient manner, all the while maintaining station operations during the construction to the greatest extent possible.
5The TTC has established a timetable for all construction aspects.
6Contained within the exhibits is a Brookfield letter dated March 31, 2022, which sets out the background, in part. The letter reads:
By way of background, TTC approached Brookfield over two years ago with a proposal to expand capacity for the Yonge/Bloor subway line. It became readily apparent that a preliminary hurdle would need to be overcome before platform construction could proceed since the new TTC platform is proposed to be constructed through the space currently occupied by the existing “Chiller Plant”. The Chiller Plant houses critical infrastructure necessary to keep the Hudson’s Bay Complex open, including not just cooling equipment but also water services, sump pumps and related infrastructure. The Chiller Plant services not only those improvements owned by Brookfield but also other land interest across the Hudson’s Bay complex, including the 2 Bloor East office tower, the RBC Bank, and the majority of the Hudson’s Bay Podium. The platform in question is above the room/area which is presently housing the chiller plant serving the whole Brookfield building, which area is leased (Leasehold Lands) by Brookfield from the City. The platform alterations require that the chiller be moved and the City proposes to move it to an area next door to the current area.
7The current status as stated in Brookfield’s argument is:
The City of Toronto proposes to expropriate certain interests in Brookfield leasehold land, which is not opposed. The City also proposes to expropriate interests in Brookfield’s freehold lands, which is also not opposed. The City also proposes to expropriate interests in Brookfield’s freehold lands for a future platform and stairwell, which is also not opposed.
8Brookfield opposes the City’s Proposal to expropriate that portion of the Leasehold Lands occupied by the current chiller plant as premature (the Leasehold taking), and it further opposes the City’s proposal to expropriate the entirety of Brookfield’s independent freehold parcel at the corner of Yonge and Bloor (the full freehold taking), when a more modest taking is needed, according to some evidence.
9With the expansion, the TTC proposes to move the Chiller to the adjacent area, which is owned by the TTC. This relocation to next door has the advantage in that the present chiller pipes run through that location and it is described as “the most logical, efficient and optimal location.” The Landowner takes no issue with the need for expansion of the southbound platform on Line 1, but as this requires the relocation of the chiller and other equipment serving tenants in 2 and 90 Bloor Street, the control of this area by TTC is an issue for Brookfield. To review, the chiller is currently located on leasehold lands below Platform 2. It is to be moved from those lands of Brookfield to the adjacent area, which has piping and associated systems, and requires fewer modifications for the necessary services to allow for smooth integration.
10Over a number of years as the plan for improvement has developed, the Parties have been meeting to try to accomplish all the necessary arrangements. At one time, expansion of the whole building as proposed by Brookfield would have also required the relocation of the chiller. Brookfield abandoned that proposal and now only intends alterations to the podium of the building, which does not require the relocation of the chiller for that purpose. Subsequently, the effort has been solely to address the subway improvements and give effect to the relocation. No agreement has been accomplished and given its construction schedule the City decided it was necessary to expropriate the parts proposed. It still remains Brookfield’s obligation to provide the chiller and other services to the building occupants, and its concern is it won’t have control of the chiller area for access on City’s lands.
11Contained in a letter in Exhibit 1, Tab 11 is the following:
Recognizing the importance of this pre-platform construction work, Brookfield entered into an agreement with the TTC on March 18, 2021 styled the “Yonge-Bloor Station Expansion Project Chiller Plant Relocation Design Planning and Reimbursement Agreement”. Pursuant to that agreement, not only did Brookfield allow the TTC access to its facilities, Brookfield also assisted the TTC in facilitating the design for the new Chiller Plant by retaining consultants and engineers to study and design the reconstructed Chiller Plant.
12The existing Chiller plant cannot be eliminated until the new Plant is situated, constructed, reconnected and operational. Engineers have advised that the reconstructed Chiller Plant would optimally be situated on Brookfield’s adjacent freehold lands at the north-east corner of Yonge Street and Bloor Street. This would, however, forever eliminate the ability of Brookfield or successor owners to redevelop those lands.
13Brookfield has advised that it would be agreeable to accommodate the new Chiller Plant within its freehold lands, subject to an agreement with the City and TTC on terms, which it has proposed in a Term Sheet delivered to CreateTO and the TTC on July 26, 2021.
14That appears to be when cooperation ended.
15Brookfield now urges the Tribunal to recommend that:
(a) Staff investigate alternatives to the Full Freehold taking, including but not limited to finding alternative space within the leasehold lands to accommodate a new chiller plant; and,
(b) Alternatively, that the City take a temporary interest in the freehold lands sufficient to permit its investigations and to construct the new chiller plant in the theatre space if necessary without causing Brookfield to lose ownership of lands needed for the BYCI project. The Leasehold taking is premature and could follow when the new chiller plant is operational.
FINDINGS AND CONCLUSION
16The Tribunal finds that some of the evidence does not support the entire taking of Brookfield lands. This is why Brookfield suggested the leasehold taking is premature and further study is required. What is proposed can create significant operational problems for Brookfield, its tenants and others. A letter submitted by the City dated June 2, 2022, contains the following:
Brookfield has been aware from the start of the discussions that the expropriation of the lands on which the existing chiller is located necessitates its removal and the construction of a new chiller in a new location. There is no viable alternative for this. As a result, Brookfield needs to plan around this requirement for completion effective December 1, 2023, which is the date that the City requires possession of the property on which the existing chiller is located. Brookfield must take steps now to mitigate its losses.
17Time is of the essence, and it would seem to the Tribunal that to deny some or all of the takings as not fully supported may not afford the Parties sufficient time to cover all the ground for a potential agreement and commencement of construction. Time already spent has not been successful in this respect. It seems that there is no reason disclosed in the evidence why Brookfield cannot have control of the proposed area or a lease in order to fulfill its obligations to the other areas of the building.
18This proposed construction is for a critical and necessary public purpose and it has a critical schedule. Therefore, it is recommended that the expropriations proceed as proposed.
“D.S. Colbourne”
D.S. COLBOURNE
VICE-CHAIR
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.