2715649 Ontario Inc. v. Toronto (City), 2023 CanLII 1719

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 12, 2023

CASE NO(S).: OLT-21-001318

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

Applicant and Appellant: 2715649 Ontario Ltd. Subject: Application to amend Zoning By-law No. 7625, as amended, of the former City of North York, and to amend Zoning By-law No. 569-2013, as amended, of the City of Toronto – failure to make a decision by the City of Toronto Existing Zoning: “General Commercial CI” under Zoning By-law No. 7625, as amended, of the former City of North York, and “Commercial Residential CR1.0 (c1.0; r1.0)SS3” under Zoning By-law No. 569-2013, as amended, of the City of Toronto Proposed Zoning: Site Specific (to be determined) Purpose: To permit the development of a 12-storey mixed-use residential building with 206 dwelling units Property Address/Description: 630-686 Finch Avenue East Municipality: City of Toronto Municipal File No.: 20 188104 NNY 17 OZ OLT Case No.: OLT-21-001318 OLT File No.: OLT-21-001318 OLT Case Name: 2715649 Ontario Inc. v. Toronto (City)

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

Subject: Site Plan Referred by: 2715649 Ontario Inc. Property Address/Description: 630-686 Finch Avenue East Municipality: City of Toronto OLT Case No.: OLT-21-001318 OLT File No.: OLT-21-001319

Heard: January 9, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative
2715649 Ontario Ltd. (“Applicant/Appellant”)	Jason Park Olivia Rasekhi
City of Toronto (“City”)	Kasia Czajkowski
Yi Zhou	Self-represented
Michael Lancefield	Self-represented

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON JANUARY 9, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) for these appeals, held as a video hearing, for the parties to update the Tribunal on their progress.

22715649 Ontario Ltd. (the “Applicant”), owner of lands municipally known as 630-686 Finch Avenue East (the “subject lands”) applied for Zoning By-law amendment to the City of Toronto (the “City”) for which the City failed to make a decision within the statutory timeframe. The Applicant made a site plan application to permit the development of a 12-storey mixed-use residential building with 206 dwelling units, for which the City also failed to make a decision within the statutory timeframe.

3Since the last CMC on March 28, 2022, the Applicant has resubmitted a revised site plan on October 14, 2022 and forwarded to the added parties (Yi Zhou and Michael Lancefield) the revised plan on October 17, 2022.

4The Applicant has forwarded its witness list to the City and the added parties on or before January 5, 2023 as required by the Procedural Order (“PO”). Since the City is not opposing the Applications, it did not provide a witness list.

5The added parties neglected or failed to forward their witness list to the Applicant and the City as required.

6In brief, Mr. Park for the Applicant contended that this failure by the added parties should not be condoned as it was through their (added parties) requests and agreement that the respective timelines have been set in the PO. He said that the ten months period intervening since March 28, 2022 until January 5, 2023 is sufficient time for the added parties to engage expert witnesses and to retain counsel if necessary. The hearing has been scheduled for seven days starting on March 20, 2023 and it would be unfair under the rules for the added parties not to follow the set timelines and further delay the provision of witnesses (especially the stated number of four expert witnesses that the added parties have jointly proposed to call). As the added parties have no witnesses, he moved that their issues list be struck and the matter proceed as if it does not have contrary evidence at the hearing.

7City’s counsel Ms. Czajkowski concurred that there is a failure by the added parties to provide a witness list and stated that the City had also lost the s.37 agreement benefit that the City secured on the achieved settlement between the Applicant and the City. When the added parties came on at the first CMC, and requested party status to contest, they undertook to fulfil party obligations fully. They should fulfil the PO requirements as their neglect or failure to furnish the witness list is a default.

8Mr. Yi Zhou and Mr. Lancefield explained their collective failure generally in the following terms. When they agreed to the timelines, they did not know that it would be unexpectedly difficult to engage experts or retain counsel willing to act for them; not through a lack of trying, according to them. Invariably the answers obtained were some forms of inability to take up the matter or a conflict of interest for the job. They are still searching for counsel and experts while not being successful to date. They are not familiar with the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”) though they believe that the Rules are not steeped toward rejecting their proper concerns at this early stage. Even if they have no witnesses, they believe that there will be provisions for them to present their case, to examine and cross-examine at the proceedings. They pleaded that they should not be shut out of the process in spite of the failure to forward the witness list.

9The Tribunal acknowledged that the added parties are lay people, self represented and unfamiliar with the Rules. The Tribunal stressed that, despite this, the added parties should familiarize themselves and practise due diligence in complying with the PO. The PO is there for a reason and the directives and deadlines are not suggestions. Nevertheless, as the parties in the proceedings have other dates for the meeting of experts and filing of witness statements that are later than January 5, 2023, the Tribunal is inclined to permit a short extension of the witness list deadline. It is not unheard of, for counsels among themselves to agree to short extensions, subject to the Tribunal’s approval. Further, Rule 22.3 of the Rules provides the Tribunal with the discretion to ensure disputes in issue are disposed of in a fair and just manner.

10In this instance, the Tribunal will consider the added parties’ reasons as sufficient to give a short extension for the purpose. The time to forward the expert witness/witness list will be January 20, 2023. This will entail, as counsel noted, a one-week extension of the experts’ meeting from January 20 to January 27, 2023.

11The Tribunal will add that this leeway is granted for this occasion and the added parties should not have similar expectations if there is failure to comply with the subsequent deadlines in the PO.

12The Tribunal cautions that future neglect or failures by the added parties in not complying with the PO may put the added parties at risk of costs being awarded against them and/or risk of motions for specific reliefs by the Applicant or the City.

ORDER

13The Tribunal orders as follows:

1. The Hearing is as previously scheduled for seven days by video from Monday, March 20, 2023 to Tuesday, March 28, 2023.

2. The added parties, Yi Zhou and Michael Lancefield shall provide the confirmed expert witnesses/witness list to the Applicant, the City and the Case Coordinator on or before Friday, January 20, 2023.

3. In the event no confirmed expert witnesses list from the added parties is received by January 20, 2023, the added parties shall not be permitted to add any expert witness to the witness list for the proceedings.

4. The experts’ meeting date of January 20, 2023 shall be extended to January 27, 2023.

5. The added parties shall strictly comply with the amended timelines and all other deadlines in the Procedural Order.

6. The Procedural Order, as amended, shall continue to govern the proceedings.

14There will be no further notice.

15The Member is not seized.

“T.F. Ng”

T.F. ng

MEMBER

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.