Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 18, 2023
CASE NO(S).: OLT-22-004193
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Broccolini HLS Limited Partnership
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Purpose: To permit 48-storey and 59-storey mixed use buildings
Property Address: 47-65 Huntley Street, 1-11 Selby Street and 2-18, [20, 22: TBD], 24 and 26 Linden Street
Municipality: City of Toronto
Municipal File No.: 21 227527 STE 13 OZ
OLT Case No.: OLT-22-004193
OLT Lead Case No.: OLT-22-004193
OLT Case Name: Broccolini HLS Limited Partnership v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Broccolini HLS Limited Partnership
Subject: Application to amend Zoning By-law - Refusal or neglect to make a decision
Purpose: To permit 48-storey and 59-storey mixed use buildings
Property Address: 47-65 Huntley Street, 1-11 Selby Street and 2-18, 24 and 26 Linden Street
Municipality: City of Toronto
Municipal File No.: 21 227527 STE 13 OZ
OLT Case No.: OLT-22-004194
OLT Lead Case No.: OLT-22-004193
Heard: February 6, 2023 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Broccolini HLS Limited Partnership (the “Appellant”) | D. Bronskill * M. Laskin (in absentia)* |
| City of Toronto (the “City”) | S. O’Connor * U. Gautam (in absentia)* |
| Catherine Berthiaume | Self-represented |
| Toronto Standard Condominium Corporation No. 2152 | I. Flett * |
MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON FEBRUARY 6, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This second Case Management Conference (“CMC”) was held to prepare for a hearing on the merits of the Appellant’s appeals to the Tribunal of the City’s failure to make a decision within the statutory time period on an application for an Official Plan Amendment to the City’s Official Plan (the “OPA Appeal”) and an application for a Zoning By-law Amendment to the City’s Zoning By-law (the “ZBLA Appeal”) to permit the redevelopment of certain lands, bounded by Huntley Street, Selby Street and Linden Street (the “Subject Property”), with 2 buildings being 48-storey and a 59-storey mixed use buildings.
PARTY AND PARTICIPANT STATUS
2At the first CMC, Toronto Standard Condominium Corporation No. 2152 (“TSCC No. 2152”) was granted Participant Status pursuant to a request made on its behalf by the President and Director of TSCC No. 2152, Slavisa Mijatovic. TSCC No. 2152 is located at 28 Linden Street on the northwest corner of the intersection of Linden Street and Sherbourne Avenue and is in close proximity to the Subject Property. Counsel for TSCC No. 2152 appeared at this second CMC to request that the status of TSCC No. 2152 be converted from Participant to Party Status. TSCC No. 2152 has a number of land use planning issues, as raised at the first CMC, including concerns relating to height and density, traffic, shadow, pedestrian and wind impacts of the proposed redevelopment and, moreover, TSCC No. 2152 seeks Party Status in order to participate in any negotiations or mediation pertaining to the OPA and ZBLA Appeals, including any potential revisions to the proposed redevelopment. The Tribunal is satisfied that TSCC No. 2152 is raising genuine land use planning concerns in respect of which Party Status is appropriate and, on the consent of the parties, the status of TSCC No. 2152 is converted from Participant to Party Status in the subject proceedings.
3Catherine Berthiaume appeared self-represented at this second CMC and indicated that she still intends to consult with counsel, as indicated by her at the first CMC, and also intends to consider whether she wishes to retain Party Status in the subject proceedings. Ms. Berthiaume indicated that, at this time, she does not intend to call any witnesses in the event of a hearing on the merits of the subject Appeals. Ms. Berthiaume was advised to contact the case co-ordinator in the event she wishes to change her status in the subject proceedings.
4Ms. Berthiaume had a number of questions pertaining to more recent signage erected by the City in the vicinity of her properties (20 and 22 Linden Street) that indicate a public consultation will be undertaken by the City which does not pertain to the subject Appeals but rather to a separate study being undertaken by the City concerning a larger area of the community that includes the Subject Property. Some background information through the City’s planner was provided to Ms. Berthiaume at the CMC and Ms. Berthiaume was advised that she may wish to contact the City’s counsel for further information.
DESCRIPTION OF THE PROPERTY THAT IS THE SUBJECT OF THE APPEALS
5As described in the Decision issued December 1, 2022, pertaining to the first CMC, there was a lack of clarity regarding the description of the properties that are the subject of the appeals as detailed below:
(a) The Notice of Appeal dated July 11, 2022, filed with the Tribunal refers to the following properties as being the subject of the OPA Appeal and the ZBL Appeal: 47-65 Huntley Street, 1-11 Selby Street, 8-26 Linden Street in the City of Toronto (the “Notice of Appeal Properties”);
(b) The copy of the (unsigned) Application by the Appellant’s agent Ilana Shteinberg dated October 12, 2021, the City’s staff report dated April 1, 2022, and the Affidavit of Service of Justin Niddrie, the Application Notice Clerk of the City, sworn July 25, 2022, all of which were filed with the Tribunal as part of the Municipal Record, all state that the subject properties are: 47-65 Huntley Street, 2-18, 24 and 26 Linden Street and 1-11 Selby Street in the City of Toronto (the “Application Properties”); and
(c) At the first (and second) CMC, the Appellant stated that it wished to proceed with the OPA Appeal with respect to 47-65 Huntley Street, 1-11 Selby Street and 2-26 Linden Street and with the ZBL Appeal with respect to 47-65 Huntley Street, 1-11 Selby Street and 2-18, 24 and 26 Linden Street in the City of Toronto. Counsel for the City expressed no concern with these descriptions of the respective subject lands.
6Catherine Berthiaume is the owner of 20 and 22 Linden Street (the “Berthiaume Properties”). Ms. Berthiaume stated in her Request for Party status that there is a “factual error or omission” in the notice that she received as her properties are “not part of the development proposal.” At this second CMC, Ms. Berthiaume expressed no concerns with her properties being included in the lands that are the subject of the OPA Appeal; however, she indicated that she has not yet conferred with counsel.
7At the second CMC, counsel for the Appellant further elaborated that a draft Official Plan amendment document was attached to the OPA Application filed with the City (but not included with the Municipal Record filed with the Tribunal) included the Berthiaume Properties. As such, it is contended by the Appellant that the OPA Application included this draft Official Plan amendment document and hence the Berthiaume Properties are included in the OPA Appeal.
8Given the lack of clarity regarding inclusion of the Berthiaume Properties as part of the Application which forms the basis for the OPA Appeal under the Planning Act, and the intention expressed by Ms. Berthiaume at this CMC that she intends to confer with counsel, the Tribunal directs that the issue of whether the Berthiaume Properties are part of the lands that are the subject of the OPA Appeal be included in the issues list forming part of the Procedural Order to be issued in connection with the hearing of the OPA Appeal.
HEARING DATES AND PROCEDURAL ORDER
9The parties estimate that 10 hearing days will be required in respect of a hearing on the merits of the OPA Appeal and the ZBLA Appeal. Although presently there are a number of issues which may entail upwards of 10 expert witnesses, the parties advised that they anticipate that meaningful and productive exchanges of information and discussions will be taking place in the near future with a view to narrowing or resolving some or all of the issues. Given the foregoing, the Tribunal agrees that 10 hearing days is a reasonable estimate.
10Counsel for the Appellant further noted that there is a separate appeal currently before the Tribunal (OLT-22-004784) pertaining to a designating by-law passed by the City’s Council pursuant to the Ontario Heritage Act affecting certain properties within the Subject Property (the “OHA By-law Appeal”). Counsel further noted that discussions are underway with a view to resolving the OHA By-law Appeal and that it would be efficient and prudent that the hearing of the subject OPA and ZBLA Appeals not be heard until such time as the OHA By-law Appeal is resolved. For this reason, Counsel suggested that the Procedural Order in respect of the OPA and ZBLA Appeals contain provision that the Tribunal must be advised by no later than May 31, 2023, whether the OHA By-law Appeal has been resolved and, if not, then the hearing dates for the OPA and ZBLA Appeals should be released. The other parties expressed no concerns with the foregoing proposed approach. The Tribunal concurs with this proposed approach and directs that the Procedural Order contain such provision.
11At the second CMC on February 6, 2023 the parties were directed to provide a further revised draft Procedural Order in accordance with the directives provided at the second CMC. To date, the parties have not done so despite a number of inquiries from the Tribunal’s case co-ordinator. The Tribunal orders that the further revised draft Procedural Order is to be provided to the Tribunal by no later than Friday May 5, 2023. The Tribunal may be spoken to should there be difficulties associated with fulfilling this directive.
12The hearing by video will commence on Monday, February 5, 2024, at 10 a.m. for 10 days and in accordance with the provisions of a Procedural Order to be approved by the Tribunal.
13Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/638422541
Access code: 638-422-541
14Parties 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 at: https://app.gotomeeting.com/home.html
15Persons 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) 497-9373 or (Toll-Free) 1(888) 299-1889. The access code is: 638-422-541.
16Individuals 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 hearing by video 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.
MEDIATION OR SETTLEMENT
17The Parties were encouraged to continue with discussions and information exchange as well as to consider opportunities for mediation, including Tribunal-facilitated mediation, in an effort to resolve or narrow the issues of the Appeals. The Tribunal’s Case Coordinator may be contacted in the event that the Parties wish to schedule mediation facilitated by the Tribunal.
ORDER
18The Tribunal so orders and provides these CMC directives for the purposes of the case management of the Appeals.
19The Member is not seized in this matter but will remain available for continued case management to the extent that the Tribunal calendar permits.
20No further notice is required or will be given.
“D. Arnold”
D. ARNOLD
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.