Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 03, 2023
CASE NO(S).: OLT-23-000018
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant Agricola Finnish Lutheran Church
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit a 12-storey mixed use building
Reference Number: 22 179212 NNY 15 OA
Property Address: 25 Old York Mills Road
Municipality: City of Toronto
OLT Case No: OLT-23-000018
OLT Lead Case No: OLT-23-000018
OLT Case Name: Agricola Finnish Lutheran Church v. Toronto (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant Agricola Finnish Lutheran Church
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit a 12-storey mixed use building
Reference Number: 22 179212 NNY 15 OA
Property Address: 25 Old York Mills Road
Municipality: City of Toronto
OLT Case No: OLT-23-000019
OLT Lead Case No: OLT-23-000018
PROCEEDING COMMENCED UNDER section 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched A
Applicant/Appellant Agricola Finnish Lutheran Church
Subject: Site Plan
Description: To permit a 12-storey mixed use building
Reference Number: 22 179212 NNY 15 SA
Property Address: 25 Old York Mills Road
Municipality: City of Toronto
OLT Case No: OLT-23-000020
OLT Lead Case No: OLT-23-000018
Heard: April 14, 2023 by video hearing
APPEARANCES:
Parties
Counsel / Representative*
Agricola Finnish Lutheran Church
John Alati Grace O’Brien in absentia
City of Toronto
Colin Dougherty Jessica Braun, in absentia
Toronto Region Conservation Authority York Mills Valley Association
Steven Heuchert* Barbara Montgomery, in absentia Ian Flett
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY AND STEVEN T. MASTORAS ON APRIL 14, 2023 AND ORDER OF THE TRIBUNAL
1This is the first Case Management Conference (“CMC”) conducted relating to appeals brought pursuant to s. 22(7), s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) and s.114(15) of the City of Toronto Act, 2006 S.O. 2006, c. 11, Sched A from the failure of the City of Toronto (“City”) to make a decision within statutory timeframes of the Act with respect to applications for an Official Plan Amendment (“OPA”), Zoning By-law Amendment (“ZBA”) and Site Plan Approval (“SPA”). The appeal has been filed by Agricola Finnish Lutheran Church (“Appellant”) regarding the property located at 25 Old York Mills Road, Toronto (“Subject Property”).
2The purpose of the OPA, ZBA and SPA applications is to facilitate the proposed redevelopment of the Subject Property with a 12-storey mixed-use building with a total gross floor area of 9,476 square metres (“m2”) which would include residential units, church and multifunction space, daycare space and community space, and incorporate retail uses at-grade (“Proposal”).
3The Tribunal was in receipt of the sworn Affidavit of Service of Keith Marshall dated March 21, 2023, confirming that Notice of this CMC was properly provided, which was marked as Exhibit 1.
CONSOLIDATION
4Although there was no motion before the Tribunal, the Appellant noted in its appeal letter that it would be appropriate to request that the Tribunal consolidate the hearing of the OPA (OLT-23-000018), ZBA (OLT-23-000019) and SPA (OLT-23-000020) appeals. At the CMC, John Alati, Counsel for the Appellant, confirmed that he is requesting that the appeals be consolidated, and the City was in support of the request to consolidate the appeals.
5The Tribunal directed that the three appeals had been administratively consolidated.
STATUS REQUESTS
Participant Status
6Prior to the CMC, the Tribunal received two requests for Participant status from David Short and Rick Galbraith.
7Mr. Short did not attend the CMC either by video or telephone despite the Notice stating that the requestor, or a representative, is required to attend the CMC to have their status request considered. The Tribunal did not grant Participant status to Mr. Short.
8Mr. Galbraith raised a number of concerns including but not limited to increased traffic, insufficient setbacks, height, shadowing and compatibility. Mr. Galbraith confirmed that he represents a number of “petitioners” who are opposed to the Proposal, and he is requesting Participant status in his personal capacity to ensure the concerns of the “petitioners” are raised. The Tribunal granted Participant status to Mr. Galbraith on consent of all Parties.
Party Status
9Prior to the CMC, the Tribunal received five requests for Party status from York Mills Valley Association (“YMVA”), Toronto Region Conservation Authority (“TRCA”), Anatol von Hanh, Peter Henderson and Phillippa Perkins. Each of these requests is addressed below.
10Ian Flett, Counsel for YMVA, appeared at the CMC to speak to the status request of YMVA. In its written request form, YMVA raised concerns related to built form, proposed at-grade uses and anticipated transportation impacts. The Tribunal granted Party status to YMVA on consent of all Parties.
11Steven Heuchert, Representative for TRCA, appeared at the CMC to speak to the status request of TRCA. Mr. Heuchert advised the Tribunal that Barbara Montgomery is Counsel for TRCA but was unavailable to attend the CMC. TRCA’s written request form was very detailed and raised a number of concerns relating to the floodplain being located on the Subject Property. The Tribunal granted Party status to TRCA on consent of all Parties.
12Mr. von Hanh lives approximately 150 metres from the Subject Property and raised concerns in his written request form related to floodplain infringement and compatibility. Mr. von Hanh failed to attend the CMC either by video or telephone despite the Notice requiring attendance and for the same reasons as set out in paragraph 7 above, the Tribunal did not grant Party status to Mr. von Hanh.
13Mr. Henderson is Chair of a Homeowners’ Committee established to represent residents of a townhome community in close proximity to the Subject Property. In his written request form, Mr. Henderson raised a number of concerns including but not limited to traffic, height, setbacks and flood risks.
14In response to the Tribunal’s inquiry, Mr. Henderson confirmed that he is requesting Party status on behalf of the Homeowners’ Committee and that the Homeowner’s Committee is not an incorporated entity. The Tribunal explained to Mr. Henderson that an unincorporated entity is not a person under the law and the Tribunal is only able to grant Party status to a person. Mr. Henderson indicated that he would like to pursue Party status in his personal capacity while he makes inquiries into incorporating the Homeowners’ Committee.
15The Appellant submitted that they would support the Party request of Mr. Henderson either in his personal capacity or on behalf of the Homeowners’ Committee, but not both. The City did not object to the Party status request and offered to speak with Mr. Henderson further about his concerns and his status request.
16The Tribunal noted that it has a mandate to provide an efficient and cost-effective hearing. Party status is awarded when the addition of a Party will assist the Tribunal in effectively adjudicating the matter without any repetition or duplicative evidence. As such, the Tribunal deferred its decision, and did not grant Mr. Henderson Party status at this CMC and will consider the request at the second CMC in the event Mr. Henderson continues to seek status.
17Ms. Perkins lives adjacent to the Subject Property and submitted a very detailed written request form. Ms. Perkins also raised a number of concerns including but not limited to built form, traffic and parking.
18The City did not object to the Party status request and similar to the offer to Mr. Henderson, offered to speak with Ms. Perkins further about her concerns.
19For the reasons noted in paragraph 16 above, the Tribunal deferred its decision, and did not grant Party status to Ms. Perkins at this CMC and will consider the request at the second CMC in the event Ms. Perkins continues to seek status.
20Furthermore, the Tribunal encouraged both Mr. Henderson and Ms. Perkins to fully understand the positions of the City, TRCA and YMVA and have discussions prior to the second CMC in order to identify any commonalities or areas of overlap. In the event Ms. Perkins continues to seek Party or Participant status after speaking to the statutory and added Parties, the Tribunal will consider such request at the second CMC. Similarly, in the event Mr. Henderson continues to seek Party or Participant status either in his personal capacity or as a representative of the Homeowners’ Committee, if incorporated, the Tribunal will consider such request at the second CMC. The Tribunal advised Mr. Henderson that if the Homeowners’ Committee does incorporate and Party status is requested, he will need to provide the Tribunal with proof of incorporation and confirmation of representation.
21TRCA, Ms. Perkins and Mr. Henderson requested that the Case Coordinator circulate the Party status request forms to allow them to review areas of like interest and common issues.
22In response to the Tribunal’s inquiry, there were no other persons or entities present at the CMC requesting Party or Participant status.
OPPORTUNITIES FOR SETTLEMENT
23The Appellant and the City jointly advised the Tribunal that the City anticipated receiving instructions from City Council following its meeting in May, 2023. Once instructions were received, the City would compile an Issues List and be in a better position to have discussions with the Appellant.
24The Tribunal reminded the Parties of the availability of Tribunal-led mediation and any requests could be made through the Case Management Coordinator.
DRAFT PROCEDURAL ORDER
25The Parties submitted a first draft of a Procedural Order in advance of the CMC, which was reviewed by the Tribunal.
26During the CMC, there was considerable discussion and submissions regarding the inclusion of paragraph 9. After considering all of the submissions, the Tribunal directed that paragraph 9 remain in the revised draft Procedural Order, without amendment, unless such amendment is on consent of all Parties.
NEXT STEPS
27Given the addition of two Parties to this proceeding, and the potential of two additional Parties, a second CMC is necessary to finalize a Procedural Order and establish an Issues List. The Tribunal scheduled a second CMC by video hearing on Tuesday, June 27, 2023 commencing at 10 a.m.
28Parties and Participants 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:
https://meet.goto.com/558205565
Access code: 558-205-565
29Parties 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: https://app.gotomeeting.com/home.html
30Persons 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 558-205-565 .
31Individuals 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 CMC 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.
32The Appellant requested the Tribunal schedule a 10-day hearing for the appeal. In response to the Tribunal’s inquiry, the Parties collectively advised the Tribunal that they intend to call 11 – 12 witnesses at the hearing. While the Tribunal understands the Appellant’s desire to proceed as expeditiously as possible, the Tribunal found it is premature to schedule a hearing at this CMC. It is unclear whether 10 days will be sufficient to hear the appeal given the lack of an Issues List and the potential to add Parties at the second CMC.
33The Tribunal stressed the importance of ensuring that the second CMC is productive and directed the Parties to submit a revised draft Procedural Order and Issues List on or before Thursday, June 22, 2023. The Parties are expected to attend the second CMC prepared to discuss all remaining procedural matters and set hearing dates.
34In the event the Parties encounter difficulty agreeing to issues on the Issues List, the Parties shall provide written submissions on the controversial issues to the Tribunal on or before June 22, 2023.
ORDER
35The Tribunal orders that the appeals of Case File Nos. OLT-23-000018, OLT-23-000019 and OLT-23-000020 are consolidated in accordance with Rule 16 of the Tribunal’s Rules of Practice and Procedure.
36The Tribunal orders that Rick Galbraith is a Participant in this proceeding.
37The Tribunal orders that York Mills Valley Association is a Party in this proceeding.
38The Tribunal orders that Toronto Region Conservation Authority is a Party in this proceeding.
39The Tribunal orders that a second Case Management Conference in this matter will be held by video hearing on Tuesday, June 27, 2023 at 10 a.m.
40The Tribunal directs the Appellant to submit to the Case Management Coordinator a final draft Procedural Order and Issues List on or before Thursday, June 22, 2023. If the Parties are unable to agree on certain issues on the Issues List, the Parties shall provide written submissions to the Tribunal on the controversial issues on or before June 22, 2023.
41The Panel is not seized, however, will remain available for case management subject to the Tribunal’s calendar.
42No further notice will be given.
“C. Hardy”
c. hardy
MEMBER
“Steven T. Mastoras”
sTEVEN T. mastoras
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.