Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 11, 2023

CASE NO(S).: OLT-22-001933 (Formerly PL190596), OLT-22-002175

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 2130254 Ontario Inc. Appellant: Amexon Realty Inc. Appellant: Cadillac Fairview Corporation Limited Appellant: Fima Development (Queensway and North Queen Street); and others Subject: Proposed Official Plan Amendment No. OPA 469 Municipality: City of Toronto OLT Case No.: OLT-22-001933 Legacy Case No.: PL190596 OLT Lead Case No.: OLT-22-001933 Legacy Lead Case No.: PL190596 OLT Case Name: Amexon Realty Inc. v. Toronto (City)

Heard: March 22, 2023 via Video Hearing

APPEARANCES:

Parties	Counsel
City of Toronto (“City”)	D. Elmadany, L. Bisset
690 Evans Ave Dev Nominee Inc.	R. Houser
Cadillac Fairview Corporation Limited (“CF”)	J. Dawson, M. Shuman
Home Depot of Canada Inc.	D. Tang, J. White
Amexon Realty Inc.	P. Pinho
Calloway REIT (Etobicoke) Inc. Calloway REIT (Etobicoke-Index) Inc.	M. Lakatos-Hayward
Fima Development	B. Horosko

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM MIDDLETON AND ORDER OF THE TRIBUNAL

1This fourth Case Management Conference (“CMC”) was convened by video hearing (“VH”) on March 22, 2023.

2The complex background to this matter was summarized in both the Tribunal Decision issued on September 9, 2022 and in the Tribunal Decision issued on January 25, 2023, and need not be reiterated.

3Prior to this CMC, the Parties had advised the Tribunal that Cadillac Fairview's appeal of OPA 469 would be scoped and adjourned. In addition, on consent as requested by correspondence to the Tribunal, the Parties requested the indefinite postponement of the City's motion to scope Cadillac Fairview's appeal and Cadillac Fairview's motion to consolidate its appeal of OPA 469 with its appeal pursuant to section 22(7) of the Planning Act (OLT File No. OLT-22-002175). Those motions had been previously scheduled to be heard on March 22, 23 and 24, 2023. By correspondence to the Parties, the Tribunal agreed to these adjournment requests and cancelled the March 23 and 24 hearing dates, thus converting the March 22 motions date to this CMC.

4As a result of several discussions described at this CMC by counsel for the City with the consent of all Parties’ counsel, the Parties have reached an agreement on an adjournment of one matter, the ‘scoping’ of certain matters, an overall shortened length for the merits hearing and a revised hearing commencement date.

5The bottom line is that the Parties’ consent proposal is for a reduction from the currently scheduled 46 hearing days to 13 hearing days commencing on November 20, 2023 and concluding on December 6, 2023. All other hearing dates, including dates from October 30 to November 17 and from December 7 to December 15, 2023 are no longer be required and can be released from the Tribunal's hearing calendar for this matter.

6To achieve clarity, the Parties also propose to revise the governing Procedural Order to reflect the results described above in paragraph [4] and paragraph [5].

7Another more minor matter concerns the identification of one Appellant. In the previous Decision issued January 25, 2023, the Tribunal had substituted 2637092 Ontario Inc. with CF Sherway Tru Rec Inc. However, counsel for that Party at this CMC advised that the title to the property owned by CF Sherway Tru Rec Inc. was actually held by “690 Evans Ave. Dev Nominee Inc.”. Thus, this entity should instead be identified as the Party.

8Upon hearing the consent submissions from all Parties, and after due consideration, the Tribunal agreed that the matters and proposals described above are reasonable and appropriate for the future conduct of these proceedings.

9As a result of the consent arrangements reached by the Parties, certain aspects of the Tribunal Decision issued on September 9, 2022 and of the Tribunal Decision issued on January 25, 2023 will also be revised as set out in the Orders made below.

ORDERS

THE TRIBUNAL ORDERS THAT:

10Certain sections, non-policy text, policies and maps of the City of Toronto Official Plan are in force and in effect as described in Table 1 below, except as those parts were appealed, as set out in Attachment "B" to the Order of the Tribunal in OLT-22-001933 dated September 9, 2022, as amended and now shown in Attachment "B" appended to this Order as follows:

(a) The parts of OPA 469 listed in Row 1 are in force by operation of subsection 17(27) of the Planning Act on a plan-wide basis;

(b) The parts of OPA 469 listed in Row 2 are in force by operation of subsection 17(27) of the Planning Act on a Sherway Gardens Precinct wide basis; and

(c) The parts of OPA 469 listed in Row 3, as previously modified by the Tribunal, are now approved, by operation of subsection 17(50) of the Planning Act, on a plan-wide basis;

(d) The parts of OPA 469 listed in Row 4, as previously modified by the Tribunal, are now approved, by operation of subsection 17(50) of the Planning Act, on a Sherway Gardens Precinct wide basis;

Table 1

Row	In Effect Date	Parts of OPA 469
1	November 29, 2019 (Plan wide)	2nd paragraph non-policy text in Section 2;
2	November 29, 2019 (Sherway Gardens Precinct-wide basis)	2.4.3, 2.4.4, 3.5, 4.5, 4.6.1, 4.6.2, 4.6.3, 4.6.4, 4.7, 4.8, 4.10, 4.11, 4.13, 4.16, 4.17, 4.18, 5.1 (except for the first sentence), 5.3, 5.7, 5.9, 5.15, 5.16, 1st paragraph non-policy text in Section 7, 7.3.1, 7.3.2, 7.3.3, 7.3.4, 7.3.5, 7.3.7, 7.4, 7.5, 7.6 (first sentence) 7.7, 7.8, 7.9, 7.11 (second and third sentences) 7.12, 7.14, 7.15 (except 3rd sentence), 8 non-policy text, 8.1, 8.2, 8.4, 8.5, 8.6, 8.7, 8.8, 9.3, 9.4, 9.5, 9.6, 9.7, 9.8.1, 9.8.2, 9.8.6, 9.9, 9.11, 9.14.2, 9.14.4, 9.14.5, 9.14.6, 9.15, 9.17, 9.19, 9.21, 9.22, 2nd paragraph non-policy text in Section 11, 11.2, 11.4, 11.5, 11.6, 11.7, 11.10, 11.11 (third sentence), 11.12, 11.13 (second sentence), 11.15, 11.16, 11.21, 11.23.1, 11.23.2, 11.24, Map 43-2, Map 43-5, Map 43-6, Map 43-7, Map 43-8, Map 43-9
3	March 22, 2023 (Plan-wide)	6.3, 6.4, 6.5
4	March 22, 2023 (Sherway Gardens Precinct-wide basis)	5.5, 5.6, 5.9A, 5.10, 5.11, 5.12A, 7.6 (second sentence), 7.11 (first sentence), 7.13, 7.15 (3rd sentence)

11The scope of the remaining appeal by The Cadillac Fairview Corporation (“CF”), of the non-policy text, policies and maps of OPA 469, is set out in Attachment "B" to this Order.

12Attachment "A" to the Order of the Tribunal in OLT-22-001933, dated September 9, 2022, is hereby replaced with the updated and consolidated version now appended as Attachment "A" to this Order to reflect the matters in force and in effect in accordance with the Order.

13For greater certainty, except as otherwise expressly provided for in paragraphs [10] to paragraph [12] inclusive, the Order of the Tribunal in OLT-22-001933, dated September 9, 2022, remains unchanged.

14The Procedural Order issued by the Tribunal for OLT-22-001933 on January 25, 2023, is hereby rescinded and replaced with the Procedural Order now appended as Attachment "C" to this Order, which shall now govern this proceeding.

15As set out in the Procedural Order in Attachment “C” hereto, the revised hearing dates for this matter shall commence on November 20, 2023 and conclude on December 6, 2023. The Tribunal hereby cancels and releases the former hearing dates comprising October 30 to November 17, 2023 inclusive, and December 7 to December 15, 2023 inclusive.

16The appeal of OPA 469 by CF for lands municipally known as 25 The West Mall is hereby adjourned sine die without prejudice to the rights of the City or CF regarding this appeal.

17Notwithstanding any other Order made above,

(a) The dark blue highlighted policy, non-policy text and/or maps that are asserted under appeal by the CF, which assertion is disputed by the City and which dispute will be adjudicated at a later date if and as necessary (“Future Adjudication”); and

(b) Any other disposition in this matter related to the Orders made above are without prejudice to such Future Adjudication and to the positions of the City and the CF which may be advanced in such Future Adjudication.

18These Orders shall be strictly without prejudice to, and shall not have the effect of limiting:

(a) The rights of all Parties to seek to modify, delete or add to the unapproved portions of OPA 469;

(b) The jurisdiction of the Tribunal to consider and approve modifications, deletions, or additions to the unapproved or deferred portions of OPA 469 on a plan-wide, precinct-specific or site-specific basis, as the case may be, or to render future decisions that deviate from or are inconsistent with those portions of OPA 469 partially approved, including on a plan-wide, precinct-specific or site-specific basis, in the future, as the case may be;

(c) The ability of the CF to seek to consolidate its appeal of OPA 469 with its appeal, pursuant to Subsection 22(7) of the Planning Act for a privately-initiated Official Plan Amendment for the lands municipally known as 25 The West Mall (OLT-22-002175); the ability of the City to take any position with respect to the consolidation of said appeals; and the jurisdiction of the Tribunal to make a determination in respect of the consolidation of said appeals; and

(d) The ability of the City to request that the Tribunal make a future ruling with respect to the scope of the appeal by CF of OPA 469, as identified in Attachment "B" hereto; the ability of CF to take any position with respect to such City request; and the jurisdiction of the Tribunal to make a determination of such City request.

19This Order is also without prejudice to the positions that may be taken by the Parties in respect of the appeals as scoped and referenced in Attachment "B" to the Order of the Tribunal in OLT-22-001933 dated September 9, 2022. This Order is modified as it relates to Appeal 4 therein described, so that in the event that those appeals proceed to a hearing, the City will not take the position that the Tribunal ought not to approve site-specific modifications to any portions of OPA 469 on the basis that they deviate from or are inconsistent with such approved portions of OPA 469 on a Plan-wide basis or Precinct basis (or as approved in respect of other lands). However, this does not affect the City's right to assert that the approved portions of OPA 469 should be applied to the specific sites or precincts without modification on the basis that they are consistent with the Provincial Policy Statement, 2020, conform with other provincial policies and that they constitute good planning.

20The Tribunal may be spoken to with respect to any matter relating to the implementation and effect of the Orders made herein.

“William Middleton”

WILLIAM MIDDLETON VICE CHAIR

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.