Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 03, 2023
CASE NO(S).:
OLT-22-002588
OLT-22-004622
OLT-22-003968
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
Portland Corp.; 1 Niagara Street Limited Partnership; 2779317 Ontario Inc.; all c/o Density Group Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the development of a 23-storey mixed-use building
Reference Number:
21 232793 STE 10 OZ
Property Address:
18 Portland Street and 1-9 Niagara Street
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002588
OLT Lead Case No:
OLT-22-002588
OLT Case Name:
Density Group Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
Portland Corp.; 1 Niagara Street Limited Partnership; 2779317 Ontario Inc.; all c/o Density Group Limited
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description:
To permit the development of a 23-storey mixed-use building
Reference Number:
21 232800 STE 10 SB
Property Address:
18 Portland Street and 1-9 Niagara Street
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002589
OLT Lead Case No:
OLT-22-002588
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant
Portland Corp.; 1 Niagara Street Limited Partnership; 2779317 Ontario Inc.; all c/o Density Group Limited
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit the development of a 23-storey mixed-use building
Reference Number:
22-151499 STE 10 OZ
Property Address:
18 Portland Street and 1& 9 Niagara Street
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-004622
OLT Lead Case No:
OLT-22-004622
OLT Case Name:
Density Group Limited v. Toronto (City)
PROCEEDING COMMENCED UNDER section 69(3) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant
Portland Corp.; 1 Niagara Street Limited Partnership; 2779317 Ontario Inc.; all c/o Density Group Limited
Subject:
Protest the levying of fees in relation to an application for an official plan amendment
Description:
Payment of Fee under Protest
Reference Number:
22-151499 STE 10 OZ
Property Address:
18 Portland Street and 1-9 Niagara Street
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-003968
OLT Lead Case No:
OLT-22-003968
OLT Case Name:
Density Group Limited v. Toronto (City)
Heard:
February 17, 2023 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Density Group Limited. (“Appellant”)
Mark Flowers Andy Margaritis
City of Toronto (“City”)
Daniel Elmadany Lauren Pinder
Wellington Place Neighbourhood Association (“WPNA”)
Marina Vrzalkovski*
MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON FEBRUARY 17, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the second Case Management Conference (“CMC”) for this matter held as a video hearing.
2Appeals were filed pursuant to s. 34(11) and s. 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”) regarding the failure of the City of Toronto (“City”) to make a decision with respect to applications for a Zoning By-law Amendment (“ZBA”) and a Draft Plan of Subdivision (“DPS”) (together referred to as the “Applications”) regarding the property located at 18 Portland Street and 1-9 Niagara Street, in the City (“Subject Property”).
3The ZBA and DPS are required to facilitate redevelopment of the Subject Property with a 23-storey mixed-use building that contemplates commercial uses and a total of 182 residential dwelling units and 54 parking spaces.
4The first CMC dealt with a number of matters that related to appeals filed by the Appellant under the Planning Act s. 34(11), s. 51(34), and s. 69(3) which were directed to be heard together. The Appellant’s then imminent s. 22(7) appeal was left to the second CMC (February 17, 2023) for consideration on proposed consolidation/hearing together.
5At this second CMC, the Appellant informed the Tribunal that the Appellant had additionally filed an appeal against City’s designation of 18 Portland Street under the Ontario Heritage Act (“OHA”). This Appeal has been given a Tribunal file No. OLT-23-000086 (“OHA Appeal”). Mr. Flowers, Counsel for the Appellant requested the Tribunal to direct that this OHA Appeal, be consolidated or heard together with the current matters.
6Mr. Elmadany, Counsel for the City objected to the proposed consolidation of the OHA Appeal as for him, different tests are engaged in the OHA designation and for reason that a motion is required for the consolidation proposed as the City does not consent to same.
7After hearing submissions, the Tribunal directed that a motion is required since, the City objects to the consolidation/hearing together of the OHA appeal. Furthermore, the recent OHA Appeal was not scheduled before the Tribunal at the CMC. The Tribunal will schedule a third CMC for the motion to consolidate the OHA Appeal.
8Counsel did provide an agenda at the CMC which facilitated the determination of several items. However, the Tribunal clarified that matters raised in the agenda that pertain to the OHA Appeal which was not before the Tribunal will not be dealt with.
Party Substitution
9The Intitulement for the matter referred to “Palm One Investments LLC” as the Appellant.
10Mr. Flowers explained that his partner originally filed the appeals on the client’s behalf. Upon recent review of the files, he discovered the appeals referred to several entities namely, Portland Corp; 2779317 Ontario Inc.; 1 Niagara Street Limited Partnership and Palm One Investments LLC. He requested that the parties be substituted under Rule 8.2 of the Tribunal’s Rules with Portland Corp., 1 Niagara Street Limited Partnership, 2779317 Ontario Inc., all c/o the Density Group Limited, a related entity.
11Mr. Elmadany Counsel for the City has no objections.
12The Tribunal granted the party substitution subject to Mr. Flowers’s undertaking to filing an affidavit attesting to the facts and consent of the respective entities to the substitution. An affidavit by Sean Majerovic sworn February 28, 2023 has been filed.
OPA appeal (OLT-22-004622)
13As directed by the Tribunal, an affidavit of service of the CMC notice was filed in respect of the OPA matter. The affidavit was marked as Exhibit 1A.
14The Appellant requested that the OPA Appeal be heard together with the ZBA appeal and the OPA Fee appeal at the hearing commencing Monday, July 24, 2023.
15City counsel did not object and the Tribunal directed that the OPA Appeal be heard with the current appeals.
Withdrawal of Subdivision Appeal (OLT-22-002589)
16The Appellant has written to the Tribunal by letter dated February 6, 2023 to withdraw the subdivision appeal. Counsel stated that the application for subdivision continues at the City.
WPNA Party Status
17Counsel for the Appellant expressed consternation at WPNA (provisional Party status granted at the first CMC) which had indicated that it will not appoint legal counsel but will instead rely on a number of its members to act as agents on its behalf. Counsel fairly pointed out that although there is no requirement for WPNA to appoint legal counsel, the use of its indeterminate number of members to undertake its case would lead to procedural problems and delays.
18After hearing from WPNA’s representative, Ms. Vrzalkovski, on getting volunteer members for the hearing, the Tribunal directed WPNA to furnish a resolution naming two or three authorized representatives who must make themselves available for the full duration of the scheduled hearing. All authorized representatives need not appear at the same time but must familiarize themselves with every aspect of the matter and each day of the hearing that transpires.
19The Tribunal reminded WPNA of the rights and obligations of a Party and granted it full party status in the ZBA appeal. WPNA confirmed it will call expert witnesses.
20If WPNA wishes to request Party status in the OPA Appeal, it would need to submit a party status request.
Procedural Order and Issues List
21Counsel for the Appellant submitted a Procedural Order (“PO”) and Issues List that included proposed issues for the OHA Appeal. The Tribunal directed that the PO can only reflect matters of the ZBA appeal, the OPA Appeal and the OPA Fee appeal.
The consolidated draft Issues List.
WPNA’s issues
22Mr. Flowers took issue with WPNA’s issues that for him was not specific enough and which were further compounded by the addition of words “amongst others”. These words, he said, expand the reference to other policies, which defeat the efforts of focussing on “specific” sections in the policy.
23Ms. Vrzalkovski agreed that those words could be deleted, after the Tribunal directed that the issues must be scoped and that WPNA’s experts will be able to further scope the issues before the hearing. The Tribunal directed those words “amongst others” to be deleted.
Applicant’s OPA Fee appeal issue
24Mr. Elmadany informed the Tribunal that the Appellant’s Issue at No. 31 relating to the OPA Fee appeal should be struck. It reads: “In the event an OPA is not required to permit the proposed development, should the OPA application fee be refunded, either in its entirety or partially?”
25Mr. Flowers submitted that it was the Applicant’s view that an OPA was not required for the proposed development. However, in an abundance of caution, the Applicant filed the OPA and paid the application fee in protest. Subsequently an appeal of the OPA fee payment was filed pursuant to s. 69(3) of the Planning Act - payment under protest.
26Issue No. 31 in the Issues List is to ensure that the issue is ventilated and a full refund or a partial refund could be effected, in the event the OPA application was not necessary, Mr. Flowers said. He added that there was no need to file a motion to decide whether this Issue No. 31 may remain.
27Mr. Elmadany submitted that at no time, did the City advise the Applicant to submit such an application. The Applicant made the OPA application on its own accord and if it was confident that an OPA was not necessary, the Applicant could refrain from making the OPA application. He stressed that s. 69(3) was not meant for the Applicant’s purpose i.e. file the OPA, state it is not required, then turn around for a refund.
28Upon reviewing s. 69(4) of the Act, the Tribunal is of the opinion that the Issue No. 31, should be struck. The reason being, s. 69(4) has provided that when the Tribunal hears the Fee appeal, it shall dismiss the appeal or refund the application fee in such amount as it determines.
29Section 69(4) reads: “The Tribunal shall hear an appeal made under subsection (3) and shall dismiss the appeal or direct that a refund payment be made to the appellant in such amount as the Tribunal determines.”
30The Tribunal finds that the Issue No. 31 should be struck as it fetters the powers of the Tribunal granted under s. 69(4). The issue as drafted attempts to limit the Tribunal to giving a full refund or a partial payment. It must be noted that the Tribunal “refunds such amount as it determines”. The Tribunal - for any reason it finds appropriate - may well determine that no amount is refundable.
31Nevertheless, striking out Issue No. 31, does not prevent the parties from making submissions under s. 69(4) for dismissal or for an appropriate refund at the end of the OPA Fee appeal hearing. The Tribunal makes no prohibition against such submissions in the OPA Fee appeal. Issue No.31 is struck.
32The Tribunal directs counsels to forward the revised PO and Issues List to the case coordinator. The revised PO with Issues List is to be submitted by Friday, March 3, 2023.
33The ten (10)-day Hearing previously fixed from Monday, July 24, 2023 to Friday, August 4, 2023 by video hearing remain as scheduled.
34A one-day CMC is scheduled at 10 a.m. on Thursday, April 6, 2023 by video hearing.
35Parties 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/519389173
Access code: 519-389-173
36Parties 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.
37Persons 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 519-389-173.
38Individuals 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 video hearing 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.
ORDER
39The Tribunal orders as follows:
a. A one day CMC is scheduled on Thursday, April 6, 2023 at 10 a.m. by video hearing.
b. Palm One Investments LLC. is replaced by Portland Corp.; 1 Niagara Street Limited Partnership; 2779317 Ontario Inc.; all c/o Density Group Limited.
c. The OPA appeal OLT-22-004622 is to be heard together with the ZBA and OPA Fee appeals.
d. Wellington Place Neighbourhood Association (“WPNA”) is granted full party status in the ZBA appeal. WPNA shall forward to the Case Coordinator the names of its duly authorized representatives for the proceedings.
e. The parties shall forward a revised Procedural Order to the Case Coordinator on or before Friday, March 3, 2023.
f. The revised PO shall govern the proceedings.
40There will be no further notice.
41The Member is not seized.
42The Tribunal so orders.
“T.F. Ng”
T.F. Ng
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.