Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 02, 2023
CASE NO(S).: OLT-22-004369
PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: SOUTH JUNCTION TRIANGLE GROWS NEIGHBOURHOOD ASSOCIATION
Applicant: 2665100 Ontario Inc. et. al.
Subject: Zoning By-law
Description: Proposes an 18-storey mixed-use building at 1423-1437 Bloor Street West and 278 Sterling Road
Reference Number: 21 139658 STE 09 OZ
Property Address: 1423-1437 Bloor Street West and 278 Sterling Road
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-004369
OLT Lead Case No: OLT-22-004369
OLT Case Name: 2665100 Ontario Inc. v. Toronto (City)
Heard: January 26, 2023 by video hearing
APPEARANCES:
Parties 2665100 Ontario Inc. et. al. ("Applicants") SOUTH JUNCTION TRIANGLE GROWS NEIGHBOURHOOD ASSOCIATION ("Appellant"/"Association") City of Toronto ("City")
Counsel*/Representative Adam Brown* Cara Sweeny Derin Abimbola*
MEMORANDUM OF ORAL DECISION DELIVERED BY G.C.P. BISHOP ON JANUARY 26, 2023 AND ORDER OF THE TRIBUNAL
1The Applicants made an application to the City for a zoning by-law amendment to rezone property located at 1423-1437 Bloor Street West and 278 Sterling Road in the City of Toronto, to accommodate an 18-storey mixed-use building. Zoning By-law No. 927-2022 (the "By-law") was passed by Council, on July 22, 2022. The Appellant then appealed that decision on August 16, 2022.
2This Case Management Conference ("CMC") was conducted as a first appearance at a CMC but is not the first hearing event that has taken place. This first CMC follows a Motion to Dismiss, brought by the Applicants. The Motion to Dismiss was heard on January 19, 2023, by a differently constituted Panel of the Tribunal. The Decision arising from the Motion to Dismiss was reserved at that hearing event.
3The Tribunal reviewed and filed the Affidavit of Service for Notice of this CMC and has recorded same as Exhibit 1. There were no requests for Party or Participant status.
4The Tribunal heard from Adam Brown, counsel for the Applicant, who gave a brief outline of the thorough application and consultation process that took place, including the required public meetings, which ultimately led to the City's support of the proposed development and the passing of the By-law.
REPRESENTATION OF THE ASSOCIATION
5Cara Sweeny, although a Crown Attorney and licensed by the Law Society of Ontario, stated that she is not attending as legal counsel, and only appears in the capacity of a representative, on behalf of the Appellant. Ms. Sweeny stated that she is not being paid to represent the Association and the Tribunal does note that she is a director of the Association. Irrelevant of how Ms. Sweeny wishes to be recognized by the Tribunal in this proceeding, the Tribunal asked, more than once, whether she would be formally representing her Association pursuant to the Tribunal's Rules of Practice and Procedure ("Rules") and each time the response was that it was "not just her but others". The Tribunal then re-phrased the question as to who the representative would be cross-examining the expert witnesses, making submissions and essentially, performing the role and obligations of a Party under Rule 8.1 of the Tribunal's Rules. Eventually, despite a number of rather unresponsive answers to the Tribunal's inquiries, Ms. Sweeny confirmed that the intention is that she will be responsible for carrying the case at a potential future merit hearing.
6Ms. Sweeny is directed to provide the necessary Authorization confirming that she is, as represented to the Tribunal, the authorized representative of the Association in accordance with Rule 4.1 of the Tribunal's Rules. If, in any way, the Tribunal misread Ms. Sweeny, the Authorization will reflect the person or persons that will be the authorized representative(s) of the Association.
REQUESTS FOR SUBPOENAS OF CITY WITNESSES
7In the context of discussions regarding the issuance of a Procedural Order and Issues List, Ms. Sweeny requested of the Tribunal that it issue a subpoena of the City's expert witnesses so that they could be cross-examined by her, since the Association's case is based on testing these witnesses. The request, at this point, is likely premature but as the Association has made the request at this point, the Tribunal denies this request to subpoena witnesses from the City.
8It is incumbent on the Tribunal to run a fair hearing, but also an efficient hearing, and duplicating the number of experts in each of the fields that the Association wishes to cross examine, is not required for the Tribunal to effectively and efficiently assess the planning merits of this project. The expert witnesses to be presented by the Applicant are most intimate with the project and have already produced all of the necessary reports and studies, in great detail. The Tribunal is satisfied that the Applicant's expert witnesses will be in a position to give sufficient expert opinion in a fulsome and detailed manner, and Ms. Sweeny, as the authorized representative, will have full opportunity to conduct the cross-examination of these witnesses. There is no need to subpoena City witnesses, in the same fields.
9Ms. Sweeny appeared baffled that the City was not bringing a case forward and she referred to two other OLT cases where the City was advancing a case before the Tribunal. With further probing, it was determined that these other proceedings are ones where the City is at odds with the developer and therefore, the developer is both the Applicant and the Appellant, bringing a case against the position of the City. In these instances, the Association has been added as a third party, with the Association's case being aligned with the City. The Tribunal noted that the Association's appeal in this matter is the only appeal before the Tribunal, since the City and the Applicant are in agreement as to the planning merits of the proposed development.
10The ruling of the Tribunal, denying the subpoena of expert witnesses from the City, and the lack of submission of the Association's issues, then resulted in Ms. Sweeny indicating that the Association might wish to hire their own experts in the fields of Planning and Transportation Engineering.
11Derin Abimbola, counsel for the City, was troubled by the statements and concerns raised by Ms. Sweeny. She sees the focus of these concerns as clearly directed at the City and not the developer. Ms. Abimbola directed the Tribunal to portions of the City reports illustrating both the community consultation and the absence of any issues around Transportation, with imposed conditions, such as the installation of a controlled and signalized intersection.
12The Tribunal agrees with Ms. Abimbola's assessment. The Tribunal finds that the Association is attempting to use the Tribunal process as a means to conduct a further public meeting to provide answers to questions the Association feels were, in their opinion, either unanswered or not properly addressed by City staff. This is not appropriate, and it is incumbent upon the Association as the Appellant to constructively advance issues relating to the grounds for its Appeal.
13Nothing will prevent the Association from retaining an expert in planning or transportation as it may deem necessary to support its appeal, and if so, it will be required to comply with the terms of the Procedural Order with respect to pre-hearing service and filing of reports and/or witness statements.
PROCEDURAL ORDER
14Mr. Brown took the Tribunal through a series of emails, right up to, and including, the day before this CMC, demonstrating the Applicant's bona fide attempts to be in a position to present a draft Procedural Order and Issues List. This also included an offer to Ms. Sweeny to chat directly on the phone at any time. Ms. Sweeny stated that she did not engage as she was waiting for a response from Ms. Abimbola, counsel for the City, as to the case the City would be bringing to the hearing, which she did not receive until the day before this CMC. It was Ms. Sweeny's position that she was unable to prepare for this event without knowing the case that the City would present.
15To Ms. Sweeny's comments, Ms. Abimbola reiterated the City's position, that has previously been made public, that the City is in support of this proposed development and that the City will not be presenting a case at a hearing on the merits.
16Ms. Sweeny has placed some emphasis upon her lack of knowledge of the Tribunal process and the fact that all members of their Association are volunteers for this non-profit Corporation, and all have full-time jobs. This appeal was filed on August 16, 2022, over five months ago, giving the Appellant time to properly research the Tribunal process and formulate a proper Issues List. All appellants and parties that appear before the Tribunal are expected to familiarize themselves with the Tribunal's Rules, all procedural requirements, all applicable legislation and all matters of law relevant to the proceeding, whether self-represented, represented, or attending to represent a collective interest, as often occurs, and is occurring in this instance. The Tribunal does not find that Ms. Sweeny's explanations as to the Association's lack of preparedness at this CMC to be genuine or persuasive.
17In an effort to finalize the form of the Procedural Order, due to the lack of response on the part of the Association, the Tribunal inquired as to its proposed issues. Specifically, based upon Ms. Sweeny's email forwarded the day prior to the CMC, the Tribunal requested confirmation that the three issues listed in the email are the Association's issues for the hearing. In her email, dated January 25, 2023, Ms. Sweeny states the following:
The issues we intend to argue are reasonably articulated in the cover letter accompanying the notice of appeal. They are as follows:
Failure to respond to the issues and concerns raised by SouthJTGROWS on behalf of the residents and businesses in the area;
Failure to provide an explanation of the effect, in any, that the written and oral submissions made during public consultations and to City Council had on the decision to permit the amendment (pursuant to s. 34(18.1) of the Planning Act);
Failure to comply with Provincial Policy Statement (2020), the Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), the City of Toronto Official Plan and the council endorsed framework for the Bloor Street Study: St. Helen's Avenue to Perth Avenue (2021).
18The Tribunal determined that the first two issues are not worthy of adjudication. They do not point to any of the legislative framework, from the planning instrument regime, that will assist the Tribunal. These issues are part of the public process, during the vetting of the application for the proposed development. The third issue is a generalized statement, with no reference to any cited substance, from any of the planning instruments that can be appropriately considered by the Tribunal.
19Ms. Sweeny, wishing to further address the Association's issues in the Appeal, asked the Member to refer back to the original appeal letter, as the basis of their Issues List. The contents of this letter are squarely in front of the Panel Member that has heard, and reserved, on the Motion to Dismiss of this Appeal. The Association's motion material may have included the issues worthy of adjudication, but Ms. Sweeny was unable to supply the Tribunal any issues from the motion material. As set out below, the Association are directed to definitively provide their Issues List by the deadline set out in this Decision.
20In lieu of a Procedural Order and Issues List, in order that this Appeal may move forward, if the Appeal is not dismissed upon the Motion already heard, the Tribunal has provided Directives and Orders as set out below.
HEARING DATES
21The Tribunal does recognize that there is a pending Decision on the Motion to Dismiss. All directions contained within this Decision will be followed and only vacated in the event the Applicant is successful on a complete dismissal of this appeal. If successful on the Motion to Dismiss, it will be the date of the issuance of that Decision whereby all future dates in this Decision and Order will be null and void.
22Pending the Tribunal's determination of the Motion to Dismiss, and to ensure that this Appeal proceeds in an expeditious manner, the Tribunal has Ordered a hearing date.
23The hearing will begin on Tuesday, April 25, 2023, at 10 a.m. for four (4) days, by video hearing.
24Parties 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://meet.goto.com/996288525
Access code: 996-288-525
25Parties 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
26Persons 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: +1 (647) 497-9391 or Toll Free 1 888 455 1389. The access code is 996-288-525.
27Individuals 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.
28The Tribunal has also set aside a Telephone Conference Call ("TCC") on Friday, March 10, 2023, at 9 a.m. to review any disputes over the Issues List. The delivery of the Issues List forms part of the Order, later in this Decision.
29Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal's Case Coordinator having carriage of this case.
ORDER
30As stated in paragraph 23 above, the hearing will begin on Tuesday, April 25, 2023, at 10 a.m. for four (4) days, by video hearing.
31The Applicant's experts will testify in the fields of Land Use Planning and Transportation Engineering, consisting of one expert from each of these fields. The names of these two experts, together with copies of their Curriculum Vitae, will be filed with the Tribunal and served upon the other Parties on or before Friday, March 3, 2023. In the event the Association elects to call any expert evidence in the field of Land use Planning or Transportation it shall similarly provide, serve and file the information and Curriculum Vitae.
32The Appellant currently intends to call only three lay witnesses. The names of the three lay witnesses will be supplied to the Tribunal and the other Parties on or before Friday, March 3, 2023.
33An Issues List will be supplied, by the Appellant, to the Tribunal and other Parties on or before Wednesday, March 8, 2023.
34If there is any dispute over the Issues List, the Tribunal has set aside a Telephone Conference Call on Friday, March 10, 2023, at 9 a.m. If this TCC is not required, the Parties will inform the Case Coordinator no later than 4 p.m. on Thursday, March 9, 2023, so that the Tribunal Member is informed that the TCC is not required.
35On or before Tuesday, April 4, 2023, the Parties shall provide copies of their lay witness statements and expert witness statements, to the other Parties and the Tribunal Case Coordinator, in accordance with Rule 7, dealing with the delivery of electronic documents by email.
36The Parties shall cooperate to prepare a joint document book and hearing plan, which shall be shared with the Tribunal Case Coordinator on or before Tuesday, April 11, 2023.
37The order of evidence will see the Applicant proceed with their case, followed by the case from the Appellant and, if required, any reply from the Applicant.
38This Member is not seized.
39No further notice is required for the hearing on the merits. No further notice is required for the telephone conference call, unless the Tribunal is notified, as stated in paragraph 34, above.
"G.C.P. Bishop"
G.C.P. BISHOP ALTERNATE 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.