Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 27, 2023
CASE NO(S).: OLT-22-004843
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Edenshaw Queen Developments Limited
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the construction of two mixed-use residential buildings of 40 and 42 storeys
Reference Number: OZ/OPA 22-10 W1
Property Address: 88 Park Street E
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-22-004843
OLT Lead Case No.: OLT-22-004843
OLT Case Name: Edenshaw Queen Developments Limited v. Mississauga (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Edenshaw Queen Developments Limited
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the construction of two mixed-use residential buildings of 40 and 42 storeys
Reference Number: OZ/OPA 22-10 W1
Property Address: 88 Park Street E
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-22-004844
OLT Lead Case No.: OLT-22-004843
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Edenshaw Queen Developments Limited
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit the construction of two mixed-use residential buildings of 40 and 42 storeys
Reference Number: TM 22/02 W1
Property Address: 88 Park Street E
Municipality/UT: Mississauga/Peel
OLT Case No.: OLT-22-004845
OLT Lead Case No.: OLT-22-004843
Heard: March 30, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Edenshaw Queen Developments Limited (the “Appellant”) | M. Flowers, S. Lampert |
| City of Mississauga (the “City”) | L. Magi |
| Regional Municipality of Peel | R. Godley |
| Metrolinx | S. Leisk |
MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON MARCH 30, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This first Case Management Conference (“CMC”) was held to prepare for a hearing on the merits of the Appellant’s Appeals to the Tribunal of the failure or neglect of the City to make decisions with respect to the Appellant’s applications for an Official Plan Amendment, a Zoning By-law Amendment and a Draft Plan of Subdivision Approval within the respective prescribed statutory timelines (the “Appeals”) to permit the development of the lands municipally known as 88 Park Street East in the City of Mississauga (the “Subject Property”) with two mixed-use buildings including a total of approximately 1,140 residential dwelling units (the “Proposed Development”).
2The Tribunal entered into evidence as Exhibit 1 in these proceedings the Affidavit of Service of Keith Marshall affirmed on March 10, 2023, and is satisfied that same demonstrates proper notice such that no further notice is required in these proceedings.
PARTY AND PARTICIPANT STATUS
3There were two requests for party status in the subject proceedings as follows:
(a) The Regional Municipality of Peel (the “Region”) – Counsel for the Region appeared in furtherance of the Region’s written request for Party status. The Region seeks Party status in order to ensure that Regional interests with respect to servicing, waste management, affordable housing, and draft plan of subdivision conditions are addressed. The Tribunal is satisfied that the Region has genuine land use planning interests pertaining to the Appeals and, on consent of the Parties, grants Party status to the Region.
(b) Metrolinx – Counsel for Metrolinx appeared in furtherance of Metrolinx’s written request for Party status. Metrolinx is the owner of the property municipally known as 30 Queen Street East (which includes the Port Credit GO Station) and utilizes a rail corridor, both of which abut the Subject Property. Metrolinx seeks Party status in order to ensure that its land use planning concerns are addressed including rail-oriented design requirements and standards in relation to the proposed development. The Tribunal is satisfied that Metrolinx is raising genuine land use planning issues pertaining to the Appeals and, on consent of the Parties, grants Party status to Metrolinx.
4There were two requests for Participant status in the subject proceedings:
(a) MPCT DIF 70 Park Street East LP (“Dream”) – Counsel for Dream appeared (M. Lakatos-Hayward and D. Bronskill [in absentia]) in furtherance of Dream’s written request for Participant status. Counsel advised that Dream acts as agent for 70 Park Street East Inc. which is the owner of lands located immediately south of the Port Credit GO Station and one block to the west of the Subject Property and these lands are municipally known as 23, 25, 27, 29 and 31 Helene Street North, 53 Queen Street East and 70 Park Street East (the “Dream Lands”). Dream seeks Participant status in the subject proceedings in light of its official plan and zoning by-law amendment applications which have been submitted to the City in connection with a proposed mixed use development on a portion of the Dream Lands and its corresponding interest in the subject proceedings, particularly given the proximity of both the Dream Lands and the Subject Property to higher order transit. The Tribunal is satisfied that Dream is raising genuine land use planning issues and, on consent of the Parties, grants Participant status to Dream.
(b) Peel Standard Condominium Corporation 787 (“Condo Corp 787”) – A Director of Condo Corp 787 (M. Grace) attended the CMC as agent for Condo Corp 787 to speak in furtherance of its written request for Participant status. Condo Corp 787 is comprised of 50 townhouses located in close proximity to the Subject Property and through its Board of Directors has concerns relating to the impact of the proposed development with respect to shadowing, wind, parking, and existing infrastructure including sewers, schools, recreational and other amenities. M. Grace was directed to provide written authorization to act as agent on behalf of Condo Corp 787 to the Tribunal through the case co-ordinator. The Tribunal is satisfied that Condo Corp 787 is raising genuine land use planning issues and, on consent of the Parties, grants Participant status to Condo Corp 787.
ADDITIONAL LANDS TO BE ADDED TO THE SUBJECT PROPERTY
5At the CMC, counsel for the Appellant advised that it has recently acquired a relatively small parcel of land (a surplus portion of unopened/closed road allowance) abutting the northerly side of the Subject Property from the City (the “Recently Acquired Lands”). The Appellant proposes to develop the Proposed Development on the Subject Property together with the Recently Acquired Lands; however, these latter lands were not included as part of the original Planning Act applications that are the subject of the Appeals.
6On the issue of the jurisdiction of the Tribunal to consider the Recently Acquired Lands as part of the Appeals, counsel for the City directed the Tribunal’s attention to Subsection 17(50.1) of the Planning Act and recent Tribunal caselaw (Augend189 Dundas West Village Properties Ltd. v. Mississauga (City) issued on March 17, 2023, OLT File 22-004125) and submitted that the Tribunal does not have such jurisdiction. Counsel for the City further submitted that, in addition to the Tribunal lacking jurisdiction to consider the Recently Acquired Lands as part of the Official Plan Amendment Appeal, it flows from Subsection 17(50.1) and Subsection 24(1) of the Planning Act that the Tribunal does not have jurisdiction to consider the Recently Acquired Lands as part of the Zoning By-law Amendment Appeal as Subsection 24(1) provides that no by-law may be passed that does not conform with the official plan.
7Counsel for the Appellant did not dispute the City’s submissions regarding the Tribunal’s jurisdiction with respect to the Appeals and the Recently Acquired Lands.
8The Tribunal finds that, in accordance with Subsections 17(50.1) and 24(1) of the Planning Act, the Tribunal does not have jurisdiction to consider the Recently Acquired Lands in its adjudication of the Appeals.
9Counsel for the Appellant advised that it intends to file and complete new applications for an official plan amendment and a zoning by-law amendment which pertain to the Subject Property and the Recently Acquired Property collectively (the “Revised Subject Property”) and, in the fullness of time, it is anticipated that new appeals (either arising from refusals or neglect of decisions by the City with respect to the new applications) will be submitted to the Tribunal by the Appellant which will pertain to the Revised Subject Property. The Appellant advised that the new applications will reflect the Proposed Development with improvements to functionality of the site afforded by the acquisition of the Recently Acquired Property.
10The Appellant and the City expressed a willingness to act expeditiously so that the Tribunal may be in a position to consider an order that the new appeals in respect of the Revised Subject Property will be consolidated with (and essentially supersede and replace) the Appeals at a second CMC to be held in in September, 2023. As it is contemplated that the Proposed Development will not change substantially in the new applications and corresponding appeals, the Tribunal finds that it is appropriate to set hearing dates at this CMC, with the caveat that the Tribunal will require an update on this matter at the second CMC and, depending upon such update, may reconsider the scheduling of the hearing dates.
HEARING DATES AND PROCEDURAL ORDER
11The Parties estimated that 15 hearing days would be required for the adjudication of the Appeals and the Tribunal finds that this is a reasonable estimate of hearing length at this time. It may be that the issues are narrowed or resolved in advance of the commencement of the hearing, in which case the Parties may release hearing days. In this regard, the Tribunal directed that the draft Procedural Order include provision that the Parties advise the Tribunal at least 55 days prior to the commencement of the hearing if all of the hearing days are still necessary.
12The Tribunal directed that the Parties consult with each other in order to provide a draft Procedural Order including Issues List to the Tribunal for the Tribunal’s consideration at a second CMC to be held as ordered below.
MEDIATION OR SETTLEMENT
13The Parties indicated that they are receptive to discussions amongst themselves which may narrow or resolve issues of the Appeals. The Tribunal’s Case Coordinator may be contacted in the event that the Parties wish to pursue an opportunity for Tribunal-facilitated mediation.
ORDER
14The Tribunal orders as follows:
(a) The Regional Municipality of Peel and Metrolinx are granted Party status in the subject proceedings.
(b) MPCT DIF 70 Park Street East LP and Peel Standard Corporation 787 are granted Participant status in the subject proceedings.
(c) The Parties shall submit a draft Procedural Order to the Tribunal by no later than Friday September 8, 2023, for the Tribunal’s consideration. The Tribunal directs that the draft Procedural Order provide for at least 55 days’ prior notification to the Tribunal in the event that all of the Hearing days are not required for the Hearing on the merits of the Appeals.
(d) A second CMC is scheduled on Friday September 15, 2023, at 10 a.m. by video, in order to consider matters including an update on the status of the new applications and finalization of a Procedural Order including Issues List.
(e) A Hearing of the Appeals is scheduled to commence on Monday, February 26, 2024, at 10 a.m. by video, and to continue for 15 days.
15The CMC and Hearing are scheduled to proceed by video as follows:
September 15, 2023, at 10 a.m. (one-day CMC) GoTo Meeting: https://global.gotomeeting.com/join/709076365 Access code: 709-076-365 Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 709-076-365
February 26, 2024, at 10 a.m. (15-day Hearing) GoTo Meeting: https://global.gotomeeting.com/join/979388733 Access code: 979-388-733 Audio-only line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: 979-388-733
16Parties and Participants are asked to log into the Video CMC and Hearing at least 15 minutes before the start of the events to test their video and adio connections.
17Parties and Participants are asked to access and set up the application well in advance of the events to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
18Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the events can connect to the events by calling into an audio-only telephone line.
19Individuals are directed to connect to the events on the assigned date at the correct time. It is the responsibility of the persons participating in the CMC or Hearing by video to ensure that they are properly connected to the events at the correct time. Questions prior to the Hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
20The Tribunal so orders and provides these CMC directives for the purposes of the case management of the Appeals.
21The Member is not seized in this matter but will remain available for continued case management to the extent that the Tribunal calendar permits.
22No 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.