Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 02, 2023
CASE NO(S).: OLT-22-002343
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 10 QEW Inc.
Appellant: 100 Metropolitan Portfolio Inc.
Appellant: 1095909 Ontario Limited (Wynn Group of Companies)
Appellant: 1107051 Ontario Ltd.; and others
Subject: Proposed Official Plan Amendment No. 231
Municipality: City of Toronto
OLT Case No.: OLT-22-002343
Legacy Case No.: PL140860
OLT Lead Case No.: OLT-22-002343
Legacy Lead Case No.: PL140860
OLT Case Name: A. Mantella & Sons Limited v. Toronto (City)
Heard: April 26, 2023 by video hearing
APPEARANCES:
Parties
Counsel
City of Toronto 2130254 Ontario Inc. Amexon Realty Inc. Cadillac Fairview Corporation Limited
A. Biggart L. Bisset C. McKeich A. DeBacker C. Kapelos in absentia D. Elmadany in absentia M. Flowers M. Flynn-Guglietti John Dawson
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY AND S. BRAUN ON APRIL 26, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION/BACKGROUND
1On December 18, 2013, By-law No. 1714-2013 was adopted by City of Toronto (“City”) Council, the purpose and effect of which was to adopt Official Plan Amendment 231 (“OPA 231”) to the City’s Official Plan (“OP”) regarding policies for economic health and policies, designations and mapping for Employment Areas. On July 9, 2014, OPA 231 was approved, with limited exceptions, by the Minister of Municipal Affairs and Housing (“MMAH”). Thereafter, a total of 178 appeals were filed, including appeals of the whole of OPA 231 and other appeals made on site-specific bases.
2In previous decisions, various panels of this Tribunal (and its predecessors) have provided extensive background on the history of the OPA 231 appeals, including detail with respect to how those 178 appeals were case-managed and grouped into specific Phases. On April 26, 2023, the Tribunal convened a settlement hearing, which was originally intended to deal with the last two remaining appeals in Phase 6C. The following is a brief procedural history in relation to Phase 6C and those two remaining matters.
3Phase 6C of the OPA 231 appeals is a geographic sub-grouping comprised of site-specific appeals in relation to lands located in the southwest Etobicoke area. Included in the 6C group were Appeal No. 27, filed by 2130254 Ontario Inc. (“Appeal No. 27”/“the 2130254 appeal”) in relation to the lands known municipally as 51 Manstor Road, and Appeal No. 57, filed by Amexon Realty Inc. (“Appeal No. 57”/“the Amexon appeal”) in relation to the lands known municipally as 701-703 Evans Avenue. All of the 6C appeals have been resolved or withdrawn, save and except for Appeal Nos. 27 and 57.
4At the most recent CMC, held on March 20, 2023 for the purpose of organizing the future Phases of the OPA 231 appeals, the Tribunal was advised that, although those remaining two appeals in Phase 6C had been scheduled to begin a 10-day hearing on April 24, 2023, the Parties to both had reached agreements to settle their respective appeals. At the request of those Parties, the Tribunal scheduled this one-day settlement hearing and released the balance of the dates previously set aside for that hearing.
Settlement Motion – Appeal No. 57: 701-703 Evans Avenue (Amexon Realty Inc.)
Preliminary Matter
5At the outset of the hearing, the Tribunal addressed a preliminary matter with respect to the proposed settlement of Amexon’s appeal. It was noted the Motion Record filed in support thereof (“Amexon Materials”) requested additional relief in relation to Tribunal file # OLT-22-001933, which is an appeal by Amexon of the Sherway Area Secondary Plan and associated amendments to the Official Plan (“OPA 469”), which the City adopted through By-law 1535-2019 on October 29 and 30, 2019. The Sherway Area Secondary Plan is a comprehensive planning framework for the lands bounded by Highway 427, the Queen Elizabeth Way, Etobicoke Creek and the CP rail corridor, the area in which Amexon’s lands are located.
6The totality of the relief requested in the Amexon Materials was as follows:
THIS MOTION IS FOR:
An Order of the Tribunal that the hearing of Appeal No. 57 to Official Plan Amendment No. 231 (“OPA 231”) and hearing of Appeal No. 1 to Official Plan Amendment No. 469 (“OPA 469”) be heard together;
An Order of the Tribunal modifying and approving OPA 231 as it relates to the lands municipally known as 701-703 Evans Avenue (“the Lands”) to re-designate the Lands from Core Employment Areas to Mixed Use Areas as set out in Exhibit “E” of the Affidavit of Janani Mahendran, affirmed on April 24, 2023;
An Order of the Tribunal modifying and approving OPA 469 as it relates to the Lands by identify (sic) the Lands as Mixed Use Areas B – Office Commercial instead of Core Employment Areas, modify Policy 10.35 to direct that the QEW Office Precinct be maintained as an area for employment uses where commercial office uses will be prioritized and to modify SASP 12.3.1 to permit residential and other sensitive uses on the northern portion of the Lands provided certain policies are met as set out in Exhibit “E” to the Affidavit of Janani Mahendran, affirmed on April 24, 2023;
Such further and other relief as counsel for the City may request and as the Tribunal may permit.
7The appeals of OPA 231 and OPA 469 are complex and involve a large number of Parties and counsel. The Panel raised concerns with respect to Amexon’s request to have its appeals of these matters heard together and for approval of a settlement of both which, in part, would include an Order of the Tribunal modifying OPA 469. The concern of the Panel was that Amexon’s Materials had not been served in accordance with the timelines set out in the Tribunal’s Rules of Practice and Procedure (“Rules”). The Panel noted that, in addition to the late filing, there had been no mention at the most recent CMC of Amexon’s settlement in relation to OPA 231 including/necessitating the Tribunal considering and/or making orders in relation to OPA 469.
8In response to the concerns of the Tribunal, counsel for the City, Mr. Biggart, described the proposed settlement of the Amexon appeals as being “layered”, insofar as settlements of both OPA 231 and OPA 469 have been inextricably linked, and explained that it was essential for Amexon’s appeals of both matters to be addressed simultaneously. He confirmed that OPA 469 was properly before the Tribunal, but not properly before this Panel. He further confirmed all Parties to OPA 231 and OPA 469 were advised on April 21, 2023, that motion materials were being finalized and all Parties were subsequently served with Amexon’s Materials on April 24, 2023. In an effort to satisfy the Tribunal that all Parties to the OPA 469 appeal had received notice of the settlement and today’s hearing event, Mr. Biggart offered to forward a copy of the corresponding Affidavit of Service following the hearing.
9Counsel for Amexon, Ms. Flynn-Guglietti, took the position that the Panel should proceed to hear the settlement proposal, submitting that the appeals have had a long history and it would be in the public interest to have Amexon’s settlements of these matters approved as soon as possible. She noted that no objections had been received from any of the Parties to the proposed settlement of both appeals.
10John Dawson, counsel for Cadillac Fairview Corporation Limited (an appellant to the OPA 469 appeal), attended this hearing event, having received Amexon’s Materials on April 24, 2023. He requested an opportunity to address the Panel with a request from his client with respect to the form of any Order approving the Amexon settlement, specifically in relation to OPA 469. Mr. Dawson advised the Tribunal that, as a practical matter, in late March 2023 the City had made the Parties aware of its intent to seek City Council’s approval to settle these matters. Mr. Dawson directed the Panel to the case of Claireville Holdings Limited v. Toronto (City), 2018 CanLII 6893 (“Claireville”), where the Local Planning Appeal Tribunal heard two cases together for efficiency. The Panel did not find the case to be instructive as the concern in this case is sufficiency of notice and notice was not addressed in Claireville.
11Notwithstanding all of the foregoing, the Panel remained concerned that any Order to be made in respect of OPA 469 in the context of Amexon’s appeal thereof could potentially affect other parties to that appeal.
12While the Rules provide that the Tribunal may abridge the time for service of notice and or Motion materials, the Panel was not persuaded that doing so would be appropriate under these circumstances. It was acknowledged that one part of the Tribunal’s mandate is to ensure matters proceed in an efficient manner and hearing the appeals together would align with same. It was further acknowledged that Amexon and the City worked diligently to resolve both appeals and attended the settlement hearing prepared to complete these matters.
13However, the Tribunal’s mandate also obliges it to ensure a fair and just process and the Panel found that, in this instance, while the Parties to the OPA 469 proceedings may have had informal notice of Amexon’s pending settlement, the timing of the service of Amexon’s Materials (which included the specific relief requested in relation to OPA 469) two (2) days in advance of the settlement hearing did not constitute sufficient notice which would afford the Parties to the appeals of both OPA 231 and OPA 469 a reasonable opportunity to respond to and/or attend to make submissions with respect to Amexon’s requested relief and in particular, for the Tribunal to approve a modification to OPA 469.
14It was noted that, in this instance, considerations of fairness outweighed efficiency and accordingly, out of an abundance of caution, the hearing of Amexon’s motion was deferred to allow the Parties to OPA 469 a reasonable opportunity to respond. The Panel directed that Amexon’s motion be brought forward at a Case Management Conference (“CMC”) already scheduled to address procedural matters in relation to Phase 6G of OPA 231, which will proceed by video hearing on June 8, 2023 at 10 a.m. For ease of reference, the hearing event details are as follows:
June 8, 2023 at 10 a.m.
GoTo Meeting: https://meet.goto.com/278736685
Access code: 278-736-685
Audio-only telephone line: +1 (647) 497-9391 or Toll-Free 1 888 455 1389
Audio-only access code: 278-736-685
15The Tribunal further directed the City to re-serve Amexon’s Materials on all Parties to OPA 231 and OPA 469 providing notice of the settlement hearing now scheduled for June 8, 2023. Mr. Biggart undertook to do so on or before May 3, 2023 and to provide the Tribunal with an Affidavit of Service. The Tribunal requested that the Case Coordinators assigned to the OPA 231 matters (Ryan Co) and the OPA 469 matters (Christopher Molnar) be copied on all correspondence relating to the Amexon settlement.
Settlement Motion – Appeal No. 27: 51 Manstor Road (2130254 Ontario Inc.)
16In light of the foregoing direction in respect of the Amexon matter and the fact that 2130254 is also a Party to the OPA 469 appeal (Appeal No. 8), the Panel sought input from the Parties with respect to whether it would be appropriate to proceed to hear the settlement proposal in relation to Appeal No. 27 or to similarly defer the matter to the June 8, 2023 CMC.
17Counsel for the City explained that, although 2132054’s lands are also subject to OPA 469 and 2131054 is a party to that appeal (Appeal No. 8), that appeal was previously adjourned sine die pending a number of matters, including a request to convert the subject lands to Mixed Use Areas (Request #63) submitted as part of the City’s current Municipal Comprehensive Review (“MCR”). He clarified for the benefit of the Panel that, unlike Amexon’s matter, the settlement proposal for Appeal No. 27 does not involve OPA 469 in any way and is independent of Amexon’s matter, such that no prejudice would be suffered if the Tribunal proceeded to hear the matter as scheduled.
18Following this clarification, the Panel proceeded to hear the City’s Motion for an Order of the Tribunal granting approval of OPA 231 as it relates to the lands at 51 Manstor Road (“subject lands”), which is identified as Appeal No. 27 to OPA 231, by modifying OPA 231 to redesignate the lands from Core Employment Areas to General Employment Areas.
19The subject lands are approximately 5.0 hectares and presently used for outdoor storage for a transportation business. It is located north of The Queensway, south of the Canadian Pacific (“CP”) rail corridor and in between The West Mall and Highway 427 and is within a larger Employment Area designated in OPA 231 as Core Employment Areas, which permits uses on the subject lands that include, but are not limited to, all types of manufacturing, processing, warehousing, wholesaling, distribution, storage and transportation facilities.
202130354 seeks to redesignate the subject lands to General Employment Areas, which allows business and economic activities and permits all of the same uses as Core Employment Areas but, in addition, permits restaurants, retail and services. Counsel for the City emphasized that the primary distinction to be focused on for the purpose of this settlement is that the change in designation will allow for retail uses on the subject lands.
21The City’s Motion was supported by the Affidavit of Registered Professional Planner, Janani Mahendran, affirmed on April 24, 2023. Ms. Mahendran is currently a Senior Planner within the Strategic Initiatives, Policy & Analysis section of the City Planning Division. The proposed settlement, as set out in Exhibit "E" to Ms. Mahendran’s Affidavit, would have the following effect: to modify Map 39, in Appendix 2, to re-designate the subject lands from Core Employment Areas to General Employment Areas.
22Ms. Mahendran affirmed that the approval of the proposed modification to OPA 231, specifically conversion of the subject lands from Core Employment Areas to General Employment Areas, represents good planning because it will:
retain all of the Lands as Employment Areas, while converting the lands from Core Employment Areas to General Employment Areas;
retain Employment Areas lands that are contiguous with Employment Areas to the north, south and east of the Lands within the City of Toronto, and employment areas to the west in the City of Mississauga;
not adversely affect the overall viability of the larger Employment Area and maintain a stable operating environment for business and economic activities;
not result in the reduced visibility of employment uses or impede access to these uses as the Lands would be retained exclusively for business and economic activities in a location with access to rail and major highways;
not result in the introduction of sensitive land uses adjacent to the rail corridor;
not plan for the introduction of additional uses that may be incompatible with existing and planned employment uses;
plan for uses that are permitted in the Core Employment Areas designation, as these uses would continue to be permitted by the General Employment Areas designation; and
maintain a diverse economic base accommodating and attracting a variety of employment uses and a broad range of employment opportunities in Toronto.
23In light of the foregoing, Ms. Mahendran affirmed that the proposed settlement has regard for matters of provincial interest in s. 2 of the Planning Act and is consistent with Provincial Policy Statement 2020.
24With respect to the requirement for conformity with the Growth Plan, Ms. Mahendran’s Affidavit explains the application of Ontario Regulation 305/19, which was filed by the Province and came into force on September 6, 2019. This regulation pertains to transitional matters for Growth Plans under the Places to Grow Act, 2005 and transitions OPA 231 under the 2006 Growth Plan, such that the 2020 Growth Plan, as amended, and the policies contained within it, including the Provincially Significant Employment Zones framework, are not applicable to those sites and policy matters that have appeal status under OPA 231, including matters related to site specific appeals.
25Ms. Mahendran affirmed that the proposed settlement conforms to the 2006 Growth plan, as required and further, maintains the intent and purpose of the OP and will resolve Appeal No. 27 of OPA 231 in its entirety.
26Based on the uncontested Affidavit evidence of Ms. Mahendran and the submissions of counsel, the Tribunal is satisfied that the proposed modification to OPA 231, as recommended by Ms. Mahendran satisfies the requisite legislative tests and is representative of good planning and accordingly approves of same.
ORDER
27In relation to Appeal No. 27: 51 Manstor Road (2130254 Ontario Inc.), THE TRIBUNAL ORDERS that:
a) the appeal by 2130254 is allowed in part and Official Plan Amendment 231 to the Official Plan for the City of Toronto is modified and approved as set out in Attachment 1 to this Decision;
b) this Order and the approval of the above-mentioned portions of OPA 231 is without prejudice to the disposition of the unapproved portions of OPA 231, including but not limited to positions taken by the Parties to any remaining site or area specific appeals. Thus, the Tribunal may render future Orders respecting such unapproved portions of OPA 231 which are inconsistent with one or more aspects of this Order, including without limitation approving site-specific modifications that deviate from or are inconsistent with this Order. However, this does not affect the City’s right to assert that the approved policies and non-policy text should be applied to the specific sites or areas without modification on the basis that they constitute good planning;
c) notwithstanding anything ordered above, the Tribunal hereby retains jurisdiction to consider and approve modifications to any policies, non-policy text, definitions, mapping approved herein as may be appropriate to dispose of any of the outstanding appeals before the Tribunal, in accordance with section 9 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 21, Sched. 6; and
d) the Panel may be spoken to should issues arise with respect to the implementation of this Order.
28In relation to Appeal No. 57: 701-703 Evans Avenue (Amexon Realty Inc.), THE TRIBUNAL ORDERS that:
a) the City of Toronto’s Motion to settle Appeal No. 57 of Official Plan Amendment 231 (Amexon Realty Inc.), shall be deferred, to be brought forward and heard immediately following the CMC for Phase 6G, which is scheduled to commence on June 8, 2023 at 10 a.m. by video hearing;
b) the City shall, on or before May 3, 2023, serve its Motion materials in respect of the aforementioned appeal on all Parties to the appeals of both OPA231 and OPA469 and shall submit to the Tribunal an Affidavit of Service copying Ryan Co and Christopher Molnar; and
c) the Panel will remain seized of the aforementioned June 8, 2023 hearing event.
“C. Hardy”
c. hardy
MEMBER
“S. Braun”
s. braun
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.
ATTACHMENT 1