Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 23, 2023
CASE NO(S).: OLT-21-001882
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Breck McFarlane Applicant: Block (Dufferin Dundas) Developments Limited Subject: Proposed Official Plan Amendment Description: To permit the development of an eight-storey mixed-use building at 1494-1502 Dundas Street West and an eight-storey residential building at 646-648 Dufferin Street and 1-3 Boland Lane Reference Number: OPA 530 Property Address: 646-648 Dufferin Street and 1-3 Boland Lane Municipality/UT: Toronto/Toronto OLT Case No: OLT-21-001882 OLT Lead Case No: OLT-21-001882 OLT Case Name: McFarlane v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Breck McFarlane Applicant: Block (Dufferin Dundas) Developments Limited Subject: Zoning By-law Reference Number: BL 952-2021 Property Address: 1494-1502 Dundas Street West Municipality/UT: Toronto/Toronto OLT Case No: OLT-21-001877 OLT Lead Case No: OLT-21-001882
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Breck McFarlane Applicant: Block (Dufferin Dundas) Developments Limited Subject: Zoning By-law Reference Number: BL 953-2021 Property Address: 1494-1502 Dundas Street West Municipality/UT: Toronto/Toronto OLT Case No: OLT-21-001878 OLT Lead Case No: OLT-21-001882
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Breck McFarlane Applicant: Block (Dufferin Dundas) Developments Limited Subject: Zoning By-law Reference Number: BL 950-2021 Property Address: 646-648 Dufferin Street and 1-3 Boland Lane Municipality/UT: Toronto/Toronto OLT Case No: OLT-21-001883 OLT Lead Case No: OLT-21-001882
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Breck McFarlane Applicant: Block (Dufferin Dundas) Developments Limited Subject: Zoning By-law Reference Number: BL 951-2021 Property Address: 646-648 Dufferin Street and 1-3 Boland Lane Municipality/UT: Toronto/Toronto OLT Case No: OLT-21-001885 OLT Lead Case No: OLT-21-001882
PROCEEDING COMMENCED UNDER subsection 17(45) and 34(25) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Motion By: Block (Dufferin Dundas) Developments Limited, Applicant Purpose of Motion: Request for an Order Dismissing the Appeal Heard: June 22, 2022 via Video Hearing
APPEARANCES:
Parties Counsel
City of Toronto K. Czajkowski M. Hardiejowski
Block (Dufferin Dundas) Developments Limited S. Tomasella M. Helfand
Breck McFarlane M. Kemerer
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN COOKE ON JUNE 22, 2022 AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal is a motion brought forward, with appropriate notice, to the Case Management Conference (“CMC”) by Block (Dufferin Dundas) Developments Limited (“Block”) and supported by the City of Toronto (“City”), under s. 17(45) and s. 34(25) of the Planning Act, R.S.O 1990, c. P. 13, as amended, to dismiss the appeals of Breck McFarlane (“Appellant”) without a hearing. This motion to dismiss relate to five planning instruments as followings: The Dufferin applications (“Dufferin Site”) for the passing, by City Council, of Zoning By-law Amendments Nos. 950-2021 and 951-2021; The Dundas applications (“Dundas Site”) for the passing, by City Council, of Zoning By-law Amendments Nos. 952-2021 and 951-2021, together with the adoption, by City Council, of Official Plan Amendment No. 530.
MOTION TO DISMISS WITHOUT A HEARING
2Prior to the CMC, the Tribunal received a Motion Record from Block to dismiss the appeals without a hearing and received reply materials from the Appellant, in response to the Motion.
3Sidonia Tomasella, counsel for Block, provided the Tribunal with a high-level overview of the proposed project. The project went through the municipal planning process that led to a final form for which the City Council approved the appropriate planning instruments to allow the development to proceed.
4Block’s application to amend Zoning By-law No. 438-86 was approved through the passing of Zoning By-law No. 952-2021, and the application to amend Zoning By-law No. 569-2013 was approved through the passing of Zoning By-law No. 953-2021, to construct an eight-storey, mixed-use building with 48 dwelling units and retail uses at grade at the Dundas Site.
5For the Dufferin Site, Block sought an application to amend Zoning By-law No. 438-86, which was approved through Zoning By-law No. 952-2021, and the application to amend Zoning By-law No. 569-2013 was approved through the passing of Zoning By-law No. 953-2021, to construct a 124-dwelling unit, comprising of a variety of one-bedroom, two-bedroom, and three-bedroom units. This site also included the adoption of Official Plan Amendment No. 530.
6In his appeals, the Appellant raised concerns that the applications are not consistent with the Provincial Policy Statement 2020 (“PPS”) and do not conform with the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) or the City’s Official Plan (“OP”). The concerns (as noted in the Appellant’s affidavit) are as follows:
a) is compatible with the adjacent neighbourhood, including by providing for a transition of scale and density;
b) maintains adequate light and privacy;
c) represents quality architecture which enhances the public realm and provides for attractive and comfortable spaces for pedestrians of all ages and abilities;
d) organizes vehicular parking service and access to improve the safety and attractiveness of adjacent streets (here on Boland Lane);
e) is appropriately massed and designed to fit inharmoniously with the planned context and neighbouring streets and to define the edge of Boland Lane;
f) reflects emerging City policies with respect to transitions in scale and heights;
g) meets the development criteria for Neighbourhoods and Mixed Use Areas;
h) contributes to the creation of a complete community;
i) promotes active transit; and
j) is properly characterized as a tall building or a mid-rise building and whether it meets the design guidelines/performance standards for same.
7Ms. Tomasella, submitted to the Tribunal that pursuant to s. 17(45) (1) (i – iii), s. 34(25) (1) (i – iii), s. 3 of the Planning Act, and s. 19(1) (c) of the Ontario Land Tribunal Act, that the Appellant has failed to provide the required explanations as to why the approved planning instruments are not consistent with the PPS, do not conform with the Growth Plan, and conflicts with the OP.
8It is the position of Block that the Appellant is making these appeals only for the purpose of delaying or frustrating the proposed development. Ms. Tomasella informed the Tribunal that the Appellant has no intention to call any expert land-use planning witnesses or to provide any technical rationale to support the appeals. As such, it was the position of Block that the appeals being made are frivolous and vexatious. Block has requested but has not been provided with any list of scoped issues or list of potential expert witnesses by the Appellant. It is the obligation of the Appellant to substantiate the grounds of reasons of appeal and to provide fulsome land-use planning issues. It was Ms. Tomasella’s submission that stating reasons in the appeal letter are not facts, evidence, or prospective evidence.
9The Appellant alleges that that the City’s approval “will set unsustainable, inhumane, unhealthy, and life endangering precedents for future development.” Despite the engineering analysis by Block that was reviewed to the satisfaction of the City Transportation Services and Solid Waste Staff, an example of this assertion is the use of the service vehicle access point. It is the Appellant’s opinion that the use of the public lane for servicing of the building is dangerous. Despite the professional expert analysis, in the personal view of the Appellant it remains dangerous. The Appellant has no intention to bring forward any evidence supporting his opinion.
10Ms. Tomasella presented the Tribunal with multiple other examples including balcony separation, the lack of ground related green space, building heights and design compatible with the neighbourhood. With the lack of contrary evidence or any intention to bring forward expert evidence to the contrary, there is no reasonable prospect for the success of the appeals.
RESPONSE
11Mr. Kemerer appeared as counsel for Mr. McFarlane. In response to the motion. Mr. Kemerer presented a Tribunal letter of direction, dated April 1, 2022. Mr. McFarlane appeal gave reason for the Tribunal to review the whether the appeal was valid because Mr. McFarlane did not participate in the municipal process. After reviewing the file the Tribunal was satisfied that there was enough effort to communicate his concerns to the City and gave direction that Mr. McFarlane’s appeal raised valid land use planning matters.
12It is the position of Mr. Kemerer that to allow the Motion to be granted would in essence overturn the previous direction letter of the Tribunal. If Block or the City had concerns regarding the Tribunal direction letter, they could have asked for a review under s. 23 of the Ontario Land Tribunal Act.
13In response to the Appellant not being prepared for the CMC, Mr. Kemerer stated that his client has no objections to the setting of a hearing date at the CMC and would be willing to provide an Issues List that would substantiate his appeals to the Tribunal and Parties no later than June 30, 2022.
14Through the Affidavit of Mr. McFarlane, counsel points out to the Tribunal that Mr. McFarlane should not be considered an ordinary lay witness. Mr. Kemerer refers to Mr. McFarlane as a “super lay witness” given his extensive record as a retired architect with significant experience of projects throughout Toronto. This experience has allowed for Mr. McFarlane to be familiar with the City's planning and policy process.
15It is the position of the Appellant that he has never been motivated to frustrate the process. Mr. McFarlane feels that his undertaking of these appeals has been based on professional principles to uphold the development of good urban design and planning principles. While not providing the Tribunal with expert opinion evidence, the Appellant believes that through his own testimony he would be able to provide the Tribunal with a perspective that City Council did not consider applicable planning guidelines and policies when approving the Block applications.
FINDINGS OF THE TRIBUNAL
16The Panel does not share the opinion that the current Decision would be overturning the previous direction letter of the Tribunal regarding the validity of the appeals, which should have been dealt with under s. 23 of the Ontario Land Tribunal Act.
17The Applicant’s motion to dismiss addresses the late submission of the Appellant to the City Clerk, Planning Staff and Ward Councillor only in the context of giving a chronological timeline of the events. At no point did the Applicant or City Counsel ask the Tribunal to take into consideration reversing the Tribunal’s previous direction. Simply allowing the application for appeal to proceed, does not vacate the Applicant’s ability to exercise their statutory rights to bring forward the motion to dismiss based on the insufficient planning grounds.
18Section 3 of the Tribunal’s Acknowledgement of Expert Duty form states:
I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:
a. to provide opinion evidence that is fair, objective and non-partisan;
b. to provide opinion evidence that is related only to matters that are within my area of expertise;
c. to provide such additional assistance as the Tribunal may reasonably require, to determine a matter in issue; and
d. not to seek or receive assistance or communication, except technical support, while under cross examination, through any means including any electronic means, from any third party, including but not limited to legal counsel or client.
19Despite the best efforts of Mr. Kemerer, there is no such thing as a “Super Lay Witness”. The Panel does not doubt that the Appellant has knowledge of planning and construction matters, with extensive knowledge of building design through his professional career as an architect. However, that does not qualify Mr. McFarlane as an expert witness in planning matters nor would he be able to provide the Tribunal independent expert opinion evidence. Furthermore, as the Appellant, Mr. McFarlane is not able to provide “fair, objective, and non-partisan” evidence to the Tribunal.
20Under s. 19(1) of the Ontario Land Tribunal Act, the Tribunal also has the authority to dismiss an appeal without a hearing if it is of the opinion that the proceeding has “no reasonable prospect of success”. With the Appellant’s intention not to call any expert witnesses other than Mr. McFarlane himself, the Tribunal does not find that there would be any reasonable prospect of success.
21The Tribunal’s jurisdiction to dismiss an appeal without a hearing is provided by meeting one of the following criteria under s. 17(45) of the Planning Act.
Despite the Statutory Powers Procedure Act and subsection (44), 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:
- 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 plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal,
ii. The appeal is not made in good faith or is frivolous or vexatious,
iii. The appeal is made only for the purpose of delay, or
iv. The appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.
22As the Appellant has indicated that the only intended witness is Mr. McFarlane himself, the appeals are not supported by any expert land use planning witnesses. The Appellant’s application for appeal continues to be vague in nature and does not adequately disclose the land use planning grounds for appeal.
23While Mr. Kemerer, stated that it was not unusual for an Issues List and draft Procedural Order to be considered at a later date by a Member, s. 8.1 a) of the Tribunal’s Rules of Practice and Procedure states:
Role and Obligations of a Party Subject to Rule 8.2 below, a person conferred party status to a proceeding before the Tribunal may participate fully in the proceeding, and by way of example may:
a) Identify issues raised in a notice of appeal for the approval of the Tribunal.
It is the Appellant’s duty and responsibility to be prepared and able to properly address these issues. The Tribunal is not satisfied that the Appellant has met these criteria.
ORDER
24THE TRIBUNAL ORDERS that the motion to dismiss without a hearing is granted.
“Steven Cooke”
STEVEN COOKE 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.