Ontario Land Tribunal

Tribunal ontarien de l'aménagement du territoire

ISSUE DATE: May 17, 2023

CASE NO(S).: OLT-22-004314

PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Hollis Dev LP

Subject: Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment

Description: to permit a 45-storey, 596 unit development

Reference Number: 21 177934 WET 05 OZ

Property Address: 11-23 Hollis Street

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-004314

OLT Lead Case No: OLT-22-004314

OLT Case Name: Hollis Dev LP v. Toronto (City.)

PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: to permit a 45-storey, 596 unit development

Reference Number: 21 177934 WET 05 OZ

Property Address: 11-23 Hollis Street

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-004315

OLT Lead Case No: OLT-22-004314

PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: to permit a 45-storey, 596 unit development

Reference Number: 21 177934 WET 05 OZ

Property Address: 11-23 Hollis Street

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-004316

OLT Lead Case No: OLT-22-004314

OLT Case Name: Hollis Dev LP v. Toronto (City.)

Heard: April 21, 2023 by video hearing

APPEARANCES:

Parties Counsel

Hollis Dev LP ("Applicant") Michael Foderick Daniel Angelucci

City of Toronto ("City") Nathan Muscat Jessica Jakubowski

Metrolinx Katerina Vergis-Mayo Signe Leisk (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON APRIL 21, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Status Hearing/Case Management Conference ("CMC") was directed by the Tribunal in its CMC Decision issued February 10, 2023, following the first CMC that was conducted on November 23, 2022.

2On that day, the Parties were provided with dates for a five-day hearing of the Appeals, commencing at 10 a.m. on Monday, June 5, 2023. Those hearing dates were provided on the strength of the assurances of counsel that they would provide the Tribunal with a draft Procedural Order and Issues List based upon the revised proposal and populated with all dates in accordance with the hearing dates then provided. That document was to be delivered to the Tribunal for final review and approval on or before February 13, 2023 as provided for in the binding order and directive of the Tribunal in paragraph 13 of the CMC Decision.

3Following the general approach of the Tribunal, and certainly the approach of this Panel Member, hearing dates are not provided to Parties at a CMC unless a Procedural Order and Issues List is ready for issuance or assurances are provided by counsel as to the delivery of the Procedural Order and Issues List. The latter was the case in this instance when this Panel Member presided at the CMC on November 23, 2022. With some great measure of irony, at the CMC the Applicant brought a "Friendly Motion" at that CMC expressly for the purpose of securing a Procedural Order. This Panel addressed the lack of value or necessity of such a Motion since the Tribunal is vested with the mandate to ensure a Procedural Order and Issues List is in place – which it did under paragraph 13 of its CMC Decision. The Parties were provided with hearing dates on that basis, with the delivery of the Procedural Order and Issues List to follow.

NON-COMPLIANCE WITH TRIBUNAL CASE MANAGEMENT DIRECTIVES

4The Parties did not bother complying with the order and directive of the Tribunal and no Procedural Order or Issues List was provided to the Tribunal by the prescribed deadline date of February 13, 2023. Nor did the parties request any type of extension to the imposed deadline or communicate with the Tribunal as to why the parties were not complying with the order of the Tribunal.

5The only communication to the Tribunal before this hearing event indicated that Metrolinx was requesting Party status on consent and would be sheltering under the City's Issues. Bluntly stated - there were, and are, no issues properly before the Tribunal, identified in an Issues List, under which Metrolinx could or can shelter.

6As these Appeals were brought by the Applicant because of non-decisions on the Applications before the City, it was incumbent upon the City to provide its list of Issues based upon the updated proposal as provided by the Applicant in accordance with the prior CMC Decision. Essentially, without an issued Procedural Order there was, and is, no framework for procedural organization of the hearing. More importantly, technically the City has no identified issues with the Applicant's proposal. In the absence of a Procedural order and any issues of concern identified by the City in an approved Issues List, the Tribunal's mandate in these Appeals under the Planning Act thus requires only a consideration of matters of Provincial interest, consistency with the Provincial Policy Statement, conformity with any Provincial plan and with any Official Plan policies, and a consideration of good planning in the public interest. These matters, rather than specific issues raised by the City, would have, and will, guide the Tribunal at the hearing of the Appeals.

7The Panel is advised that the Parties reached a settlement only immediately prior to this Status Hearing/Case Management Conference. So "last-minute" that the Parties apparently had no time to advise the Tribunal.

8The fact that there may be ongoing settlement discussions does not obviate the necessity of compliance with case management directives or the cooperation and compliance of the Parties in establishing the procedural framework for the hearing of Appeals before the Tribunal. Timely communication with the Tribunal regarding case management is also mandatory. As this Tribunal has noted before, case management directives from the Tribunal are orders, not suggestions. They are to be complied with. If there are valid reasons for non-compliance (such as an impending settlement) it is incumbent upon the Parties to request approvals and extensions in accordance with s. 9(5) of the Ontario Land Tribunal Act and Rule 3.2 of the Tribunal's Rules of Practice and Procedure ("Rules").

9Counsel has explained why the Parties, over the course of five full months, failed to comply with the Tribunal's order or communicate with the Tribunal. They were apparently focused upon arguments about the sufficiency of the exchanged documents on the revised proposal and upon ongoing settlement discussions. In the Tribunal's view these are excuses and not acceptable reasons to validate non-compliance or unilateral "radio silence" from the parties, in the face of a Tribunal Order. Effective case management degenerates into a free-for-all when the Parties ignore Tribunal directives. The lack of responsiveness to Tribunal CMC directives in case management also negatively impacts the effective use and allocation of the Tribunal's Member resources and the Tribunal's scheduling Calendar.

10The Tribunal's case management processes under its Rules are expressly designed to be nimble and responsive to the specifics of each Planning Appeal, the issues raised as to a proposed development, the parties involved, the Tribunal's public interest mandate, and a myriad of factors. We manage the large body of Appeals before the Tribunal through individual Procedural Orders and Issues Lists tailored to each proceeding. This is in lieu of a substantial body of rigid procedural rules applicable, with minimal discretion, based upon pleadings. The system only works efficiently and effectively if the parties comply with the Tribunal's CMC directives and a Procedural Order and Issues List is issued by the Tribunal.

11Of necessity, where there are such incidents of non-compliance and lack of deference to the Tribunal's case management processes, the Tribunal may be required to make orders or give directions in proceedings in relation to such non-compliance, as it considers proper to prevent abuse of its processes. These are powers expressly granted to the Tribunal under s. 12(2) of the Ontario Land Tribunal Act and s. 23(1) of the Statutory Powers Procedure Act.

12In this instance the Parties have requested a one-day settlement hearing to consider the settlement that has been reached. In light of this request, no additional Order addressing the non-compliance of the parties is required. This does not however, remedy the non-compliance. The Settlement Hearing will proceed without any specific issues of the City before the Tribunal and in accordance with paragraph [6] above.

METROLINX - PARTY STATUS

13The request by Metrolinx to be granted party status is with the consent of the Applicant and the City. The Tribunal has reviewed the submission outlined in the correspondence from counsel for Metrolinx dated April 12, 2023 and has no difficulty in granting that request. Metrolinx is accordingly granted party status for the purposes of all further steps in this proceeding.

SETTLEMENT HEARING OF THE APPEALS – JUNE 9, 2023

14As requested, the Tribunal has scheduled the Settlement Hearing which is on the last of the five days set aside for the hearing of these Appeals. The remainder of the days set aside for the hearing are vacated and removed from the Tribunal's calendar.

15The one-day video Settlement Hearing of the Appeals will commence at 10 a.m. on Friday, June 9, 2023.

16The Parties 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/709076365

Access code: 709-076-365

17For the video hearing, all Parties, witnesses or observers 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.

18Persons 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: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The access codes are as indicated above.

19Individuals are directed to connect to the hearing events on the assigned dates at the correct time. It is the responsibility of the persons participating in the hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal's Case Coordinator having carriage of this case.

REQUIRED FILING OF DOCUMENTS BEFORE HEARING

20On or before Monday, May 29, 2023 the Parties are to submit to the Case Coordinator, the following documents:

(a) a copy of any executed Minutes of Settlement unless inapplicable or to be withheld at the election of the Parties;

(b) a copy of any applicable Council Resolution accepting an offer or approving the settlement for presentation to the Tribunal;

(c) a copy of all supporting documentation, materials, draft plans or specifications, reports or other documentary material which the Parties wish to submit as evidence in support of the settlement as well as relevant excerpts of the PPS, any applicable Provincial Plans, and municipal planning policy documents that will be relied upon in evidence;

(d) the Planning Affidavit or evidence outline of the qualified planner (or any other relevant expert) who will provide evidence in support of the settlement, together with a copy of his or her Curriculum Vitae and executed Acknowledgement of Expert's duty;

(e) any draft order submitted for consideration and approval by the Tribunal inclusive of any draft terms or conditions, the satisfaction of which are a re-requisite to the issuance of a Final Order (with the electronic version in Word format);

(f) a separate copy of each draft instrument(s) submitted for consideration and approval by the Tribunal (with the electronic version in Word format);

(g) any other materials which the Parties rely upon in support of the requested Interim or Final Orders of the Tribunal at the Settlement Hearing.

NOTICE AND DIRECTIVES

21There will be no further notice with respect to this Settlement Hearing and the Panel Member is not seized.

22The Tribunal so orders and provides these CMC directives for the purposes of the case management of these Appeals.

"David L. Lanthier"

DAVID L. LANTHIER

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.