Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 21, 2023
CASE NO(S).: OLT-22-002507 (Formerly PL210238)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Lamb Sterling Corp.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit an 18-storey, 326-unit mixed-use development
Reference Number: 20 199975 STE 09 OZ
Property Address: 1405, 1407, 1409 and 1409A Bloor Street West and 231, 231A and 229 Sterling Road
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-002507
Legacy Case No: PL210238
OLT Lead Case No: OLT-22-002507
Legacy Lead Case No: PL210238
OLT Case Name: Lamb Sterling Corp. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 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 an 18-storey, 326-unit mixed-use development
Reference Number: 20 1999975 STE 09 OZ
Property Address: 1405, 1407, 1409 and 1409A Bloor Street West and 231, 231A and 229 Sterling Road
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-002508
Legacy Case No: PL210239
OLT Lead Case No: OLT-22-002507
Legacy Lead Case No: PL210238
Heard: June 5, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Lamb Sterling Corp.
E. Costello
N. Mares
City of Toronto
L. Bisset
D. Abimbola
221 Sterling Road Holdings Inc.
D. Artenosi
N. Ast
South Junction Triangle Grows Neighbourhood Association
C. Sweeny*
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN COOKE ON JUNE 5, 2023 AND ORDER OF THE TRIBUNAL
1Lamb Sterling Corp. (the “Applicant”) has appealed the City of Toronto’s (the “City”) failure to adopt a request to amend the Official Plan (“OP”) and failure to make a decision for an application to amend a Zoning By-law (“ZBL”) pursuant to s. 22(7) and s. 34(11) of the Planning Act.
2The purpose for the requests to amend the OP and ZBL, is to allow for the Applicant to construct a proposed 18-storey, mixed-use building, that includes 326 residential units, for the properties known as 1405, 1407, 1409, 1409A Bloor Street West, and 229, 231, 231A Sterling Road.
3This is the fourth Case Management Conference (“CMC”), scheduled for the purpose of addressing outstanding matters in the Procedural Order, which require the direction of the Tribunal, and for the consideration of a request for an adjournment by the South Junction Triangle Grows Neighbourhood Association (the “Association”).
REQUEST FOR AN ADJOURNMENT
4The Association had submitted to the Tribunal a Request for an Adjournment form for consideration. Eileen Costello, Counsel for the Applicant, raised objections to the request for adjournment as there was no proper motion before the Tribunal. She also highlighted that the Request for Adjournment form being presented is only used when a written request for the adjournment is made on the consent of all Parties.
5Understanding the position of the Applicant’s objection, the Tribunal allowed the Association to provide brief submissions to the Tribunal on their request to adjourn.
6The Association was represented by Cara Sweeny. She informed the Tribunal that the request for the adjournment was primarily based on the fact that the City and the Applicant had negotiated a settlement agreement without disclosing the intent to settle to the Tribunal or the other Parties at the previous CMC.
7The Association stated that City Council gave instructions on March 29, 2023, yet the settlement was not brought to the attention of the Tribunal and other Parties until May 17, 2023, which is only six weeks before July 4, 2023, the scheduled hearing date. The Association contends that they are not in a position to properly prepare as they do not have the time or expertise. The Tribunal was advised that the Association had intended to rely on the City’s expert witnesses. However, as a settlement in principle has been reached, the City has indicated that they will no longer be calling their expert witnesses or making them available without a subpoena.
8Partway into her submissions to the Tribunal, Ms. Sweeny referred to the City and the Applicant’s settlement as “unethical”. At this point, the Panel Member stopped Ms. Sweeny, explained that this language was inappropriate and ruled that the request for an adjournment was denied. The Tribunal will not tolerate this type of accusation. The fact that the Association does not appreciate that the discussions between the City and the Applicant have successfully resulted in a settlement to be considered by the Tribunal, does not mean that the Parties acted in a manner that could be considered unethical. Parties coming to an agreement and bringing forward a settlement to the Tribunal is not only common practice, but is encouraged by the Tribunal, which is why potential mediation services are offered by the Tribunal.
9Rule 8 of the Tribunal’s Rules of Practice and Procedures (the “Rules”) outlines the “Role and Obligations of a Party”. As stated above, settlements are common in Tribunal proceedings. The Association’s dependence on the City to advance their case does not release them of their obligations should the City settle, nor is it the obligation of the City to call witnesses on behalf of another party. Should the Association wish to subpoena City staff to provide expert witness testimony they may do so by following Rule 13 of the Rules.
10The Association was made aware that the statutory Parties had come to an agreement on May 17, 2023. Ms. Sweeny stated that the Association had not filed those applications for subpoena as they awaited confirmation of whether an adjournment would be granted. Her assertation is that this has prevented the Association from preparing its case. The Tribunal finds that this assertion is not grounds for an adjournment. It is the responsibility of a party to be prepared.
11The Tribunal’s Rule 17.2 regarding a request for an adjournment states:
Requests for Adjournment if All Parties Consent If all of the parties agree, they may make a written request to adjourn a hearing event. The request must include the reasons, a suggested new date, and the written consents of all parties. However, the Tribunal may require that the parties attend in person or convene an electronic hearing to request an adjournment, even if all of the parties consent. The consenting parties are expected to present submissions to the Tribunal on the application of any prescribed time period to dispose of the proceeding.
12Rule 17.3 states:
Requests for Adjournment without Consent If a party objects to an adjournment request, the party requesting the adjournment must bring a motion at least 15 days before the date set for the hearing event. If the reason for an adjournment arises less than 15 days before the date set for the hearing event, the party must give notice of the request to the Tribunal and to the other parties and serve their motion materials as soon as possible. If the Tribunal refuses to consider a late request, any motion for adjournment must be made in person, at the beginning of the hearing event.
13It is the ruling of the Tribunal that the Association’s written request under Rule 17.2 for an adjournment was incorrectly submitted and procedurally wrong, as there was no consent by all parties. At the top of the Request for Adjournment form filled out by Ms. Sweeny, on behalf of the Association, it clearly states “Before submitting this form, rule 17 of the Ontario Land Tribunal’s Rules of Practice and Procedure should be reviewed.” The Association should have, under Rule 17.3, brought forward a motion to request an adjournment without consent. As no motion was before the Tribunal, the request is invalid and is denied.
14Ms. Sweeny repeated that the Association was not familiar with the Tribunal’s Rules and Procedures and that the Association lacks funds to hire their own expert witnesses. It is the position of the Tribunal that any party that appears before it is required to be prepared for all hearing events and to familiarize itself with the relevant Rules and legislation. Knowing that a Hearing of the Merits is scheduled for July 4, 2023, the Association should be prepared to present its case regardless of whether the other parties have come to an agreement.
LAY WITNESSES
15The Applicant raised concerns that the Association has failed to comply with the directions provided in the Procedural Order, as it has not provided witness statements for four lay witnesses within the required timelines. With the concurrence of the City and 221 Sterling Road Holdings Inc., counsel for the Applicant was amenable to allowing the statements to be submitted by Friday, June 9, 2023, in order that their reply statements would be submitted by Friday, June 16, 2023.
16The Association argued that a lay witness, under the Tribunal’s Rules, is not required to provide a full statement as is expected by an expert witness. The Tribunal notes that Rule 7.6 states:
Other Witnesses The Tribunal may also require that a witness who is not presenting expert evidence provide a witness statement. A witness statement should contain:
(a) a short written outline of the person’s background experience and interest in the matter;
(b) a list of the issues that they will discuss; and
(c) a list of reports or materials that they will rely on at the hearing.
The Tribunal may decline to allow the witness to testify if this statement is required by the Tribunal and has not been provided to the other parties.
17The Tribunal ordered that, per Rule 7.6, the Association is to provide the lay witness statements no later than 4 p.m. on Friday, June 9, 2023.
18The Association raised a concern that in the Tribunal’s previous Order (issued on May 31, 2023) there had been some confusion with some of the lay witnesses in question and requested a substitution of one witness who would not be able to be present. The Tribunal canvassed the other parties who agreed that they had the same understanding as the Association and consented to the substitution.
19For clarity, the Tribunal orders that the following individuals (provided that they have submitted their witness statement, per paragraph 14 above) may be called by the Association to provide lay witness testimony:
- Katarina Persad
- Irmina Ayuyao
- Christina Costa
- Julie Ford
ORDER
20THE TRIBUNAL ORDERS that the request for adjournment by South Junction Triangle Grows Neighbourhood Association is denied. That subject to the conditions noted in paragraph 17 of this Decision, the South Junction Triangle Grows Neighbourhood Association may call Katarina Persad, Irmina Ayuyao, Christina Costa, and Julie Ford to provide relevant non-expert evidence for the consideration of the Tribunal.
“Steven Cooke”
STEVEN COOKE
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.