355 Adelaide Nominee Inc. v. Toronto (City), 2023 CanLII 13949

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 21, 2023

CASE NO(S).: OLT-22-004590

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

Applicant and Appellant: 355 Adelaide Nominee Inc.

Subject: Application to amend Zoning By-law - Refusal or neglect to make a decision

Purpose: To permit a 48-storey mixed-use building

Property Address/Description: 353 and 355 Adelaide St. W., 46 Charlotte St., and 16 Oxley St.

Municipality: City of Toronto

Municipality File No.: 20 160837 STE 10 OZ

OLT Case No.: OLT-22-004590

OLT Lead Case No.: OLT-22-004590

OLT Case Name: 355 Adelaide Nominee Inc. v. Toronto (City)

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

Applicant and Appellant: 355 Adelaide Nominee Inc.

Subject: Site Plan

Purpose: To permit a 48-storey mixed-use building

Property Address/Description: 353 and 355 Adelaide St. W., 46 Charlotte St., and 16 Oxley St.

Municipality: City of Toronto

OLT Case No.: OLT-22-004591

OLT Lead Case No.: OLT-22-004590

Heard: February 10, 2023 by video hearing

APPEARANCES:

Parties	Counsel
355 Adelaide Nominee Inc. (the “Appellant”)	J. Park
City of Toronto (the “City”)	M. Piel D. Elmadany
DevGreat Inc.	J. Cheng C. Lantz (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON FEBRUARY 10, 2023 AND ORDER OF THE TRIBUNAL

1This first Case Management Conference (“CMC”) was held to prepare for a hearing on the merits of the Appellant’s appeals to the Tribunal of the City’s failure to make a decision within the respective statutory time periods on an application for a Zoning By-law Amendment to the City’s Zoning By-law (the “ZBL Appeal”) and an application for Site Plan Approval (the “SPA Appeal”) to permit the redevelopment of the lands municipally known as 355 Adelaide Street West, 46 Charlotte Street, and 16 Oxley Street in the City of Toronto (the “Subject Lands”) with a 48 storey mixed use building comprised of residential, office, and commercial uses and a 12 storey building.

2The Tribunal entered into evidence as Exhibit 1 in these proceedings the Affidavit of Service of Christopher J. Drew affirmed on January 19, 2023 and is satisfied that same demonstrates proper notice such that no further notice is required in these proceedings.

PARTY AND PARTICIPANT STATUS

3DevGreat Inc. – Counsel for DevGreat Inc. appeared at this CMC requesting Party status in these proceedings. The Tribunal, the Appellant and the City were in prior receipt of the written request for party status filed by DevGreat Inc. (“DevGreat”) dated January 31, 2023. DevGreat is the owner of the lands municipally known as 101-105 Spadina Avenue and 363 Adelaide Street West (the “DevGreat Lands”) which are located adjacent to and immediately to the west of the Subject Lands. Counsel advised that the DevGreat Lands are the subject of certain applications for development approval and submitted that DevGreat has an interest in the ZBL Appeal and the SPA Appeal as same may impact the DevGreat Lands and proposed redevelopment including but not limited to land use planning considerations such as setbacks and separation distances. The Tribunal is satisfied that DevGreat is raising genuine land use planning issues regarding the ZBL Appeal and the SPA Appeal and, on consent of the other parties, the Tribunal granted Party status to DevGreat.

4The following persons also attended the CMC either on their own behalf, or by their representatives, to request Participant Status in the subject proceedings:

(a) Alexander Perel and Diana Petramala – A written request for joint participant status was submitted by Mr. Perel and Ms. Petramala dated February 6, 2023 and Ms. Petramala attended the CMC and spoke on behalf of both Mr. Perel and herself. Ms. Petramala advised that they reside at Townhouse 7, 25 Oxley Street which is at street level and faces the portion of the Subject Lands facing Oxley Street. The written and oral submissions of Mr. Perel and Ms. Petramala identified land use planning concerns including traffic, lighting, shadowing, density and servicing relating to the proposed redevelopment of the Subject Lands. The Tribunal is satisfied that Mr. Perel and Ms. Petramala are raising genuine land use planning concerns and, on the consent of the parties, granted joint Participant status to Mr. Perel and Ms. Petramala in the subject proceedings.

(b) Robert Davidovitz – Mr. Davidovitz submitted a written request for participant status dated February 3, 2023 and attended the CMC. Mr. Davidovitz advised that he resides at 36 Charlotte Street which is located adjacent to the Subject Lands on the southern and eastern sides. Mr. Davidovitz identified land use planning concerns including setbacks, stepbacks, proposed height and massing and separation distances of the proposed redevelopment, traffic volume and access, and heritage matters. The Tribunal is satisfied that Mr. Davidovitz is raising genuine land use planning concerns and, on consent of the parties, granted Participant status to Mr. Davidovitz in the subject proceedings.

(c) Sarah Merredew – Ms. Merredew submitted a written request for participant status the morning of this CMC and attended the CMC. Ms. Merredew indicated that she has been and is out of the country on vacation and the subject proceedings only came to her attention earlier this week. Ms. Merredew advised that she is the owner of a condominium unit at 36 Charlotte Street which is located adjacent to the Subject Lands on the southern and eastern sides. Ms. Merredew indicated that she has land use planning concerns including height and massing, servicing, separation distances, traffic, and heritage matters. Counsel for the City and DevGreat advised that they have no concerns with Ms. Merredew’s request for participant status. Counsel for the Appellant advised that he had not yet received a copy of Ms. Merredew’s written request and, as such, requested that a decision on Ms. Merredew’s request be deferred to the second CMC in the subject proceedings in order that the Appellant could have an opportunity to review and consider this written request. The Tribunal ordered that Ms. Merredew’s request for participant status be deferred to a second CMC in order to provide such opportunity to the Appellant.

CONSOLIDATION OR HEARING TOGETHER OF THE ZBL APPEAL AND THE SPA APPEAL

5Counsel for the parties were canvassed for submissions on the merits of an order for consolidation or hearing together of the ZBL Appeal and the SPA Appeal. Counsel for the City requested that consideration of such an order be deferred to a second CMC as there is current discussion underway between the City and the Appellant regarding confirmation of the status of the Appellant as owner of the entirety of the Subject Lands and, correspondingly, the Appellant’s statutory right of appeal as owner with respect to the site plan approval. The Tribunal concurs with the proposed deferral to a second CMC at which time the foregoing issue may be canvassed and resolved.

6Counsel for the parties were also canvassed with respect to what, if any, consideration should be given procedurally with respect to the hearing of the subject appeals and the separate appeal of the King-Spadina Heritage Conservation District Plan (OLT-22-002749) which includes an appeal relating to the Subject Lands. This appeal is described on page 12 of the Appellant’s Notice of Appeal. The Notice of Appeal also notes that a portion of the Subject Lands, namely 355 Adelaide Street West, is the subject of a designating by-law passed pursuant to the Ontario Heritage Act that is in full force and affect and not under appeal. Given the foregoing, counsel for the parties submitted that the ZBL Appeal and the SPA Appeal may be considered in the subject proceedings independent of the above-noted appeal OLT-22-002749 and the Tribunal concurs with this submission.

PROCEDURAL ORDER

7Counsel for the Appellant advised that it intends to submit plans pertaining to the revised proposed redevelopment (as was reflected in the notice provided of this CMC) to the City later in February, 2023. Further, counsel for the City advised that they require opportunity to review such submitted plans and seek instructions from the City’s Council prior to being in a position to provide submissions regarding the draft Procedural Order including the Issues List. Moreover, there is a new Party to the proceedings (DevGreat) who will be given opportunity to participate in the development of the draft Procedural Order including the Issues List to be submitted to the Tribunal for its consideration.

MEDIATION OR SETTLEMENT

8The Parties were encouraged to continue with discussions and information exchange as well as to consider opportunities for mediation, including Tribunal-facilitated mediation, in an effort to resolve or narrow the issues of the Appeals. The Tribunal’s Case Coordinator may be contacted in the event that the Parties wish to schedule mediation facilitated by the Tribunal.

ORDER

9The Tribunal orders as follows:

(a) DevGreat Inc. is granted Party status in the subject proceedings.

(b) Alexander Perel and Diana Petramala are granted joint Participant status in the subject proceedings.

(c) Robert Davidovitz is granted Participant status in the subject proceedings.

(d) The Parties will submit a draft Procedural Order including Issues List to the Tribunal on or before Wednesday, June 21, 2023.

(e) The agenda of the second CMC will include consideration of the participant request of Sarah Merredew, consideration of the statutory status of the Appellant in connection with the SPA Appeal, a possible order for consolidation or hearing together of the ZBL Appeal and the SPA Appeal, and consideration of the draft Procedural Order including Issues List together with submissions on an estimate of hearing length and potential hearing dates.

(f) The second CMC will take place by video on Wednesday, June 28, 2023 at 10 a.m.

10Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/638422541

Access code: 638-422-541

11Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

12Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free) 1-888-299-1889 or +1(647) 497-9373. The access code is 638-422-541.

13Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

14The Tribunal so orders and provides these CMC directives for the purposes of the case management of these appeals.

15The Member is not seized in this matter but will remain available for continued case management to the extent that the Tribunal calendar permits.

16No further notice is required or will be given.

“D. Arnold”

D. ARNOLD MEMBER

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.