Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 17, 2023
CASE NO(S).: OLT-22-001909
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: 1386072 Ontario Inc.
Subject: Application to amend the Zoning By-law and– neglect to make a decision
Description: To permit a 15-storey residential building
Reference Number: 21 196623 WET 02 OZ
Property Address: 4174 Dundas Street West
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-001909
OLT Lead Case No: OLT-22-001909
OLT Case Name: 1386072 Ontario Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: 1386072 Ontario Inc.
Subject: Request to amend the Official Plan
Proposed Designation: Site Specific (to be determined)
Purpose: To permit the redevelopment as a 15-storey residential use building
Property Address/Description: 4174 Dundas Street West
Reference Number: 21 196623 WET 02 OZ
Municipality: City of Toronto
OLT Case No.: OLT-22-004847
OLT Lead Case No.: OLT-22-001909
OLT Case Name: 1386072 Ontario Inc. v. Toronto (City)
Heard: July 5, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1386072 Ontario Inc. | Michael Nemanic Luke Johnston (in Absentia) Giouzelin Mutlu |
| City of Toronto | Kasia Czajkowski Uttra Gautam |
| Delmanor Prince Edward Inc. | Calvin Lantz |
| Toronto and Region Conservation Authority | Barbara Montgomery |
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON JULY 5, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the second Case Management Conference (“CMC”) after consolidation of appeals for the Official Plan Amendment (“OPA”) appeal by 1386072 Ontario Inc. (“Applicant”) pursuant to s. 22(7) of the Planning Act for the failure of the City of Toronto (“City”) to amend the Official Plan of the City; and an appeal for the failure of the City to make a decision regarding the Applicant’s application for a Zoning By-law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act. The subject property is known municipally as 4174 Dundas Street West, in the City.
2The applications under appeal are to facilitate a 15-storey residential development on the subject property, including 117 residential units with a gross floor area of 13,193 square metres (“sq m”)
3Delmanor Prince Edward Inc.(‘Delmanor”) stated that Applicant proposed development introduces an underground garage that extends beneath a portion of the mutual driveway shared between Delmanor and the Applicant, in contravention of a Reciprocal Agreement that secures mutual access as between the two landowners. Delmanor in this regard has initiated a “Notice of Arbitration”. Delmanor further submitted that in the absence of Dunpar obtaining the legal rights to develop within the mutual driveway, Dunpar’s application is premature. This is a threshold issue if not resolved between the Parties. The Tribunal was advised the Parties are working to resolve through appropriate changes to the proposed development and other means prior to the “Notice of Arbitration” proceeding.
Post First CMC Party Status Request
4Dundas Developments Limited (“Dundas”) made a request for Party Status in the matter through communication to the Tribunal around May 11, 2023. This request was made nearly three months after the consolidation of appeals, the setting a hearing in the matter and the approval of the Procedural Order by the Tribunal. All requests for granting of Participant Status or Party Status have already been completed prior to the request by Dundas at this CMC.
5Dundas provided the following rationale in their request:
Dundas Developments Limited is the owner of lands (4231-4241 Dundas Street West) which are located west of the subject property (4174 Dundas Street West). The owner wishes to ensure that any approved development on the subject property does not adversely impact the owner's lands or the owner's ability to redevelop its lands in the future. We are prepared to shelter under issues already raised by the other Parties, would not request any changes to the issued Procedural Order, and at this time do not intend to call witnesses in the merit hearing.
6The Tribunal informed Dundas about Rule 8.3 of the OLT Rules of Practice and Procedure. The direction provided in Rule 8.3 is as follows:
8.3 Non-Appellant Party A party to a proceeding before the Tribunal which arises under any of subsections 17(24) or (36), 34(19) or 51(39) of the Planning Act who is not an appellant of the municipal decision or enactment may not raise or introduce a new issue in the proceeding. The non-appellant party may only participate in these appeals of municipal decisions by sheltering.
The Tribunal concluded that the sheltering Rule is not applicable to the appeals in this matter which are based on subsections s.34(11) and s.22(7) of the Planning Act.
7Dundas sought a short break from their participation at the CMC to consult with their team and this was accommodated and other matters were continued to be reviewed. After the break, Dundas came back with a position that they would like to call evidence through witness(es). Dundas proposed that they would lead this evidence through City’s Issues List. Essentially walking away from their desire to protect their interest to a position to oppose the Applicant in the hearing.
8The Tribunal informed Dundas that it was inclined not to grant their request for Party Status based on the limited foundational information as well as their changing positions. Dundas requested that the Tribunal consider using Rule 8.2 and through its discretion make exceptions. The other Parties took no position on Dundas’s request.
9The Tribunal determined that it did not need to use its discretion to address Dundas’s request for Party Status. The Tribunal found that there already are well documented issues, the appropriate plans by the Parties to call their evidence. The Tribunal finds that Dundas’s participation at this stage is of no assistance to expeditiously and fairly adjudicate the matter before it. The request for granting of Party Status by Dundas was denied.
UPDATES
10The key other matter as identified in the previous CMC was the “Notice of Arbitration” proceedings initiated by Delmanor . The Tribunal notes that this activity is not before the Tribunal or in its jurisdiction to adjudicate upon but is underway anticipating processing to happen within three month of this CMC.
11The Applicant stated that they have revised their site plans and made other adjustments to the proposal to address the Delmanor issues. The Applicant added that they would like to bring forth possible partial settlement for the Tribunal’s review in about two months and through it, the issues of Delmanor as well as Toronto Region Conservation Authority (“TRCA”) are likely to be addressed. The Applicant requested that a follow-up CMC or Telephone Conference Call (TCC) for this aspect be set up in about two months and prior to the scheduled processing for the “Notice of Arbitration”.
12The City and TRCA were surprised by the Applicant’s activities vis-à-vis the “Notice of Arbitration”, or the assertion that partial settlement could be achieved. They informed the Tribunal that the Applicant neither informed nor engaged with them in this regard. More importantly, the City and TRCA stated that the Applicant’s suggestions that in under two months they will be presented with revisions, etc., that they would have to agree with and support the partial settlement. The City strongly informed the Tribunal that it simply would not be possible to accommodate the Applicant’s proposed timeline in this regard, as Counsel would likely need to seek the direction of City Council direction..
13The Tribunal informed the Applicant that whereas constructive working collaboratively for complete or partial settlement of issues is strongly urged, the Applicant has fallen afoul of the need to fully work with all Parties in the matter and not just Delmanor.
14Having regard for submissions received from all Parties, the Tribunal determined that the Applicant’s request to schedule another CMC in about two months was not appropriate. The Tribunal therefore denied Applicant’s request to set up a follow-up CMC in two months.
15The Tribunal again reminded all Parties to work together and be aware of using Tribunal led Mediation services if such could be of benefit. Additionally, it informed the Parties that if positive developments necessitate a beneficial CMC or TCC to be scheduled; the Parties should contact the Tribunal.
16This Member is not seized but will provide Case Management support should such need arise leading up to the hearing scheduled to commence on Monday, February 12, 2024 at 10 a.m.
17The directions in this decision are so ordered.
“Jatinder Bhullar”
JATINDER BHULLAR
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.