Augend189 Dundas West Village Properties Ltd. v. Mississauga, 2023 CanLII 21648

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 17, 2023

CASE NO(S).: OLT-22-004125

PROCEEDING COMMENCED UNDER Section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Augend189 Dundas West Village Properties Ltd. c/o Augend Investments Ltd.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Reference Number: OZ/OPA 219
Property Address: 189 Dundas Street West
Municipality/Upper Tier: Mississauga/Peel
OLT Case No.: OLT-22-004125
OLT Lead Case No.: OLT-22-004125
OLT Case Name: Augend189 Dundas West Village Properties Ltd. v. Mississauga (“City”)

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

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Reference Number: OZ/OPA 219
Property Address: 189 Dundas Street West
Municipality/Upper Tier: City of Mississauga/Peel
OLT Case No.: OLT-22-004126
OLT Lead Case No: OLT-22-004125

Heard: February 13, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Augend189 Dundas West Village Properties Ltd.	Jason Park Olivia Rasekhi
City of Mississauga	Michal Minkowski

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON FEBRUARY 13, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a second Case Management Conference (“CMC”) on an appeal filed by Augend189 Dundas West Village Properties Ltd. (“Applicant/Appellant”) against the City of Mississauga (“City”) Council’s failure to make a decision pursuant to an Official Plan Amendment (“OPA”) and to a Zoning By-law Amendment (“ZBLA”) application concerning 189 Dundas Street West (“Subject Lands”).

2The first CMC took place on November 7, 2022. The Tribunal determined that there should be another CMC for the Parties to continue work on the Hearing issues and/or be given time to obtain resolution of expected issues.

3The application under appeal is to facilitate three new residential towers of 32, 20 and 18 storeys in height with a total of 966 units and a total gross floor area of 59,020.78 square metres (“m²”), of which 530.7 m² will consist of at-grade accessory retail space.

4The Affidavit of Notice was marked as Exhibit 1.

PARTICIPANT STATUS REQUEST

5During the start of the CMC, six Participant Status Requests were received.

6There were no objections raised by the Parties to the requests for Participant Status. The Tribunal found the Participants had an interest in the proceedings and granted Participant Status to the following:

1. Fred Stradiotto
2. Lina Bottos
3. Manessia Sungelee
4. Mary Fedor and Bob Makuch
5. Soonalaraja Sungelee
6. Vincent Chiappino

MOTION

7In the lead up to the hearing, the Applicant/Appellant had filed a Motion to declare that the subject applications in this appeal be modified: (1) to include both parcels of land known municipally as 189 Dundas and 3061 Parkerhill in the City; and (2) to include the revised development proposal.

8Michal Minkowski, Counsel for the City, advised that in the Applicant/Appellant’s reply on the Motion, their Counsel inserted an alternative of a Contingent Order if the Tribunal determined that it does not have jurisdiction to grant relief requested by the Moving Party.

9Mr. Minkowski advised that the City preferred to have the Tribunal issue a Contingent Order pursuant to ss. 9(2) of the Ontario Land Tribunal Act, 2021 to grant relief and forgo the hearing on the Motion.

10Mr. Minkowski advised that the City does not oppose the other portion of the Applicant/Appellant’s motion (b) to include the revised development proposal as defined herein, and further detailed in the Affidavit of Jim Levac save and except for the element which pertains to 3061 Parkerhill Road.

11Jason Park, Counsel for the Applicant/Appellant opposes this recommendation due to the substantive grounds of the motion and the required time to bring the motion to the Tribunal.

12Subsequently, the Tribunal directs to hear the merits of the Motion.

EVIDENCE

13Mr. Park submits that after submission of development applications for the Subject Lands, the Applicant/Appellant acquired the nearby property known as 3061 Parkerhill Road (“3061 Parkerhill’) on May 2, 2022.

14The property included an additional 1,550 m² added to the Subject Lands (collectively with 189 Dundas, the “Property”). The Property now has an area of 1.57 hectares (3.87 acres).

15Mr. Park submits due to the addition of 3061 Parkerhill, the Applicant/Appellant developed a revised development proposal to modify access via a two-way private driveway on the portion of the property at 3061 Parkerhill. Under the Revised Development Proposal, the internal private driveway has also been modified so it no longer dissects through the piazza, creating a greater uninterrupted pedestrian space for residents and increasing pedestrian safety.

16Counsel also referred the Tribunal to the fact that on January 24, 2023, the Applicant/Appellant served notice of the second CMC along with a description of the Revised Development Proposal, to all parties and individuals as normally prescribed by the Tribunal and included all owners within a 120 metre (“m”) radius of the Property.

17The Tribunal has considered the appropriate Notice aspect and is satisfied that the Applicant/Appellant provided adequate Notice on January 24, 2023, of the second CMC along with a description of the Revised Development Proposal, to all parties and individuals.

18Mr. Park’s position is that the Tribunal would be acting within its jurisdiction to expand the boundaries of the applications to include 3061 Parkerhill as the Revised Development Proposal is reasonable, appropriate and within the spirit and essence of the original application.

19Thus Mr. Minkowski, proposes that the portion of the motion by the Applicant/Appellant to amend its appeal before the Tribunal to include the parcel of land known as 3061 Parkerhill Road, be adjourned until such time as the Applicant/Appellant files an appeal to the decision of City Council, dated January 18, 2023 to refuse the Applicant/Appellant’s additional development application.

20In this regard, Counsel for the City references subsection 17(50.1) of the Planning Act which reads;

(50.1) for greater certainty, subsection (50) does not give the Tribunal power to approve or modify any part of the plan that,

(a) is in effect; and

(b) was not added, amended or revoked by the plan to which the notice of appeal relates. 2017, c. 23, Sched. 3, s. 6 (26); 2019, c. 9, Sched. 12, s. 3 (23).

21Mr. Minkowski submits the 3061 Parkerhill Road lands and revised development proposal were not included in the original development application when it was submitted to the City on July 13, 2021 (deemed complete August 5, 2021).

22Mr. Minkowski contends when the original development application was appealed by the Applicant/Appellant for non-decision on July 7, 2022, this appeal did not include the Parkerhill lands and did not include the Revised Development Proposal.

23Mr. Minkowski notes that a CMC in respect of this appeal was held on November 7, 2022. It concerned only the original development application.

24Mr. Minkowski advised it was not until December 5, 2022 after the first CMC had been held, that the Applicant/Appellant amended its development application with the City, to include the Parkerhill lands and the Revised Development Proposal.

25Planning staff presented a planning recommendation report to Planning and Development Committee on January 16, 2023, recommending refusal of the development application. This report included the proposed amendments.

26On January 18, 2023, Council made a decision refusing the development application, including the proposed amendments.

27Counsel for the Applicant/Appellant cited several cases which predated ss. 17(50.1) wording which changed in 2018 from its original wording in 2006. Wording changes such as “dealt with” had been changed. These cases discussed the Tribunal’s authority in evaluating jurisdiction to consider and approve modifications to development proposals under consideration and ZBLA’s.

28Only two cases, 8 Elm Park Properties Inc. v. Toronto (City), 2018 CarswellOnt 23350 and One Piece Ideal (MS) Developments Inc. v. Markham (City), 2022 CanLII 3375 ON LT noted the current wording ss. 17(50.1) of the PA.

29In the 8 Elm Park case Counsel for the City highlighted paragraph 30 of its decision which states:

With regard to the City’s point about distinctions between the Board’s powers under s. 17 (50) of the Act for Official Plan Amendments and s. 34 (26) for Zoning By-law amendments, the Tribunal did not find significant differences between the two sections that would affect its authority to approve or amend planning instruments that are under appeal. Both sections gave the Board and now the Tribunal the authority to amend or modify the planning instrument as it may determine. The Tribunal found nothing in these sections that would restrict its authority in making a decision about an amended Zoning By-law application versus an amended Official Plan amendment application. In fact, the Tribunal may be more restricted in considering an amended Official Plan Amendment application because of s. 17 (50.1).

30Counsel for the City, contends in reading ss. 22(11) and ss. 17(50.1) of the PA together, in a purposive manner which gives an integrated meaning to these provisions, that where a request for an amendment to an official plan is appealed, there is no jurisdiction for the Tribunal to later amend the appeal by adding lands which were not “added, amended or revoked” in the original appeal before the Tribunal.

31Mr. Minkowski opines which the Tribunal agrees, the clause in ss. 17(50.1) which reads “to which the notice of appeal relates” is particularly instructive. The Tribunal’s jurisdiction is constrained by this statutory provision, such that the Tribunal cannot modify an appeal to include lands that were not part of the original development application nor part of the related “notice of appeal” as filed.

32Mr. Minkowski submits which the Tribunal agrees the original notice of appeal in this instance does not “relate” to “the plan” i.e., the development application which the Applicant now seeks to put before the Tribunal. The original notice of appeal only relates to the original development application.

33Mr. Minkowski advised it was only once the original development application was amended in December of 2022 that the Parkerhill lands were to be added to the development application. Mr. Minkowski contends, at that point, this change constituted a new request for an amendment of the official plan.

34Mr. Minkowski advised that new request for an amendment of the official plan was refused by Council on January 18, 2023.

35Mr. Minkowski submits with which the Tribunal agrees, that the proper procedure is for the Applicant/Appellant to file an appeal from the decision of Council dated January 18, 2023, in respect of the revisions to the development application.

36Mr. Minkowski advised should the Applicant/Appellant appeal the Council decision of January 18, 2023, the City will not oppose a consolidation of the original proceeding before the Tribunal together with the addition of the Parkerhill lands.

37Thus the Tribunal dismisses the Motion and issues the Contingent Order noted below.

CASE MANAGEMENT CONFERENCE

MEDIATION

38Mr. Park advised the Parties would be making an application for Tribunal led mediation in this case. The Tribunal advised the Parties that the Ontario Land Tribunal Case Coordinator could assist in this process.

39Mr. Park advised he may have up to four expert witnesses to attend the Hearing and on consent requests a nine (9) day hearing. Mr. Park advised that once a hearing date is set a Draft Procedural Order (“DPO”) and Issues List can be completed.

40Mr. Minkowski advised he may also have more than two experts testify at the Hearing and agreed with a nine (9) day Hearing and advised an in-person hearing would be preferable if possible. Mr. Park agreed with the in-person hearing request. The Tribunal advised the Parties that this request would be noted.

41The intent of the Parties is to set a nine (9) day Hearing in late Fall 2023. As noted above, according to the Parties, this proposed timeframe will allow for mediation and further discussions amongst the Parties.

HEARING DATE

42The Tribunal directs that a nine (9) day Hearing will be held in-person, commencing on Tuesday, November 14, 2023, at 10:00 a.m.at the Civic Centre Hearing Room, 300 City Centre Drive, 2nd Floor, Mississauga, ON, L5B 3C1 and will end on or before Friday, November 24, 2023.

43No further notice will be given.

THE FINALIZATION OF A PROCEDURAL ORDER AND ISSUES LIST

44The Parties requested an additional two weeks to provide a DPO including the Issues List with all dates to be included in the Draft Order.

45The Tribunal allowed the Parties to submit to the Tribunal the Draft of the Procedural Order including the Issues List by Monday, February 27, 2023.

46The Tribunal has since received the final draft of the Procedural Order including the Issues List. The Final Procedural Order as approved by the Tribunal is appended to this Order as Schedule 1.

ORDER

47THE TRIBUNAL ORDERS the Motion is dismissed and a Contingent Order is granted which upon receipt of a Notice of Appeal relating to the revised applications in respect of 3061 Parkerhill Road, that appeal shall be consolidated with the current appeal under OLT Lead Case No. OLT-22-004125.

48The Tribunal Member is not seized but may be spoken to for Case Management purposes, subject to the availability of the Tribunal’s calendar.

49The directions in this Decision are so Ordered.

“Eric S. Crowe”

ERIC S. CROWE
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.

SCHEDULE 1