Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 23, 2023

CASE NO(S).: OLT-22-002386 (Formerly PL200541)

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

Appellant: 1319283 Ontario Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit a 10-storey residential condominium

Reference Number: 20 119591 WET 03 OZ

Property Address: 4161-4169 Dundas Street West and 18-26 Earlington Avenue

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-002386

Legacy Case No: PL200541

OLT Lead Case No: OLT-22-002386

Legacy Lead Case No: PL200541

OLT Case Name: 1319283 Ontario Inc. 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 a 10-storey residential condominium

Reference Number: 20 119591 WET 03 OZ

Property Address: 4161-4169 Dundas Street West and 18-26 Earlington Avenue

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-002387

Legacy Case No: PL200542

OLT Lead Case No: OLT-22-002386

Legacy Lead Case No: PL200541

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 a 10-storey residential condominium

Reference Number: 20 119591 WET 03 OZ

Property Address: 4161-4169 Dundas Street West and 18-26 Earlington Avenue

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-002388

Legacy Case No: PL200543

OLT Lead Case No: OLT-22-002386

Legacy Lead Case No: PL200541

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: 1319283 Ontario Inc.

Request for: Request for Directions

Heard: June 27, 2023 by Video Hearing and Written Submission July 05, 2023

APPEARANCES:

Parties	Counsel
1319283 Ontario Inc.	Luke Johnston, Michael Nemanic, Giouzelin Mutlu
City of Toronto	Cameron McKeich, Kasia Czajkowski

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This was a scheduled hearing of the Notice of Motion dated June 09, 2023 of the Applicant/Appellant, 1319283 Ontario Inc. (“Applicant”), after post approval conditions for its successful s. 22(7) and s. 34(11) Planning Act (“Act”) appeals (“OPA” and “ZBA”/the “Prior Appeals”) respecting properties located at 4161 – 4169 Dundas Street West and 18 – 26 Earlington Avenue (“subject property”/“subject site”) in the City of Toronto (“City”) were not signed off by the City.

2The City filed a Notice of Response to the Motion dated June 19, 2023.

3The Motion was heard orally on June 27, 2023 and Parties were directed to file written final argument submissions by July 05, 2023. Submissions were received and the Tribunal makes the following determination.

4The Tribunal allows the Applicant’s Motion for the reasons that follow.

Applicant’s Motion dated June 9, 2023 – Exhibit 1(Motion Record)

5The Applicant requested a decision from the Tribunal that the List of Pre-conditions (“pre-conditions”/“conditions”) to the Tribunal’s Interim Order issued October 04, 2022 have been satisfied and an order that the appeal is allowed in part in accordance with the draft Zoning By-law Amendment and the draft Official Plan Amendment.

6The Motion is supported by the affidavits of Charlie Smith, Nav Grewal and Dave Lukezic, all sworn on June 09, 2023.

City’s Response to Motion dated June 19, 2023 – Exhibit 2 (Response to Motion)

7The City’s Response requested the Applicant’s Motion be dismissed.

8The Response was supported by the affidavits of Ali Meghani (Exhibit 3) and Giovanni Baldessara (Exhibit 4), both sworn on June 19, 2023.

9The Applicant filed a Reply to Response to Motion, dated June 23, 2023 (Exhibit 5), supported by affidavits of Mr. Smith, Mr. Grewal, both sworn June 22, 2023, and Mr. Lukezic, sworn June 21, 2023.

10It is uncommon for parties to revert to the Tribunal to settle pre-conditions to a Final Order, which in the normal course, would be resolved by parties and their experts through meetings and discussions. Settling conditions would ordinarily be by consent, and not contested, as in the instant case.

Brief Background

11The Tribunal heard the Applicant’s OPA and ZBA appeals over several days from August 08, 2022, and allowed, in a written Decision of October 04, 2022, the Applicant’s appeals in part. The Tribunal rendered an Interim Order and withheld a final order until the Tribunal had been advised by the City Solicitor that certain pre-conditions/conditions have been satisfied.

12There were nine pre-conditions listed as follows: The final Order will be withheld until such time as the Tribunal has been advised by the City Solicitor that:

a. The final form and content of the Official Plan and Zoning By-law Amendments are satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

b. The owner has submitted a revised Functional Servicing Report to determine the stormwater run-off, sanitary flow and water supply demand resulting from the development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

c. The owner has provided a revised Traffic Impact Study and a Transportation Demand Management Plan, which addresses parking and loading requirements, satisfactory to the General Manager, Transportation Services and the Chief Planner and Executive Director, City Planning;

d. The owner has made satisfactory arrangements with the City and has entered into the appropriate agreements for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support the development, according to the accepted Functional Servicing Report and Traffic Impact Study/Transportation Demand Management Plan accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Transportation Services;

e. The owner has provided parking spaces and accessible parking spaces, as well as drive aisles widths, in accordance with the supply and dimensional requirements of city-wide Zoning By-law 569-2013 to the satisfaction of the General Manager of Transportation Services;

f. The owner has provided a revised Pedestrian Level Wind Study, including wind tunnel test, to the satisfaction of the Chief Planner and Executive Director, City Planning;

g. The owner has provided a revised Arborist Report, Tree Inventory and Preservation Plan and addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review as they relate to the Official Plan and Zoning By-law Amendment applications, to the satisfaction of the Supervisor, Tree Protection and Plan Review;

h. The owner has satisfied the requirements of the Toronto District School Board and the Toronto Catholic District School Board regarding signage; and

i. The owner shall provide a road widening along the frontage of the property on Dundas Street West to achieve a 2.1 metre wide sidewalk entirely within the City Right-of-Way, all to the satisfaction of the Chief Planner and Executive Director, City Planning, the General Manager, Transportation Services and the City Solicitor.

13At the hearing of the Motion, Parties informed the Tribunal, and the City conceded, that seven of those pre-conditions have been satisfied in principle or pending the City Solicitor’s notice that they were satisfied, leaving mainly two pre-conditions, b. and d., to be satisfied:

b. The owner has submitted a revised Functional Servicing Report to determine the stormwater run-off, sanitary flow and water supply demand resulting from the development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

d. The owner has made satisfactory arrangements with the City and has entered into the appropriate agreements for the design and construction of any improvements to the municipal infrastructure, should it be determined that upgrades are required to the infrastructure to support the development, according to the accepted Functional Servicing Report and Traffic Impact Study/Transportation Demand Management Plan accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Transportation Services;

14The Tribunal was asked by the Applicant to deem these two pre-conditions (and all other pre-conditions) as being satisfied by virtue of the revised Functional Service Report (“FSR”) having been submitted in December 2022 as described in the affidavit of Mr. Grewal of June 9, 2023 since there was no necessity for the municipal infrastructure to be further improved.

15The Tribunal had the benefit of oral and written submissions and the affidavit evidence. The Tribunal is persuaded by the Applicant with its experts’ fulsome affidavit evidence.

Tribunal’s Authority and Powers

16The Tribunal, in carrying out its responsibility under the Act, shall have regard to matters of provincial interest, such as:

• s. 2(f), the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems; and,

• s. 2(n), the resolution of planning conflicts involving public and private interests.

17A Decision of the Tribunal, in respect of the exercise of any authority that affects a planning matter shall be consistent with the 2020 Provincial Policy Statement (“PPS”) and conforms to the 2020 Growth Plan for the Greater Golden Horseshoe (“GP”). The Tribunal did, in the Prior Appeals, find that the Applicant’s appeals were consistent with the PPS and conform to the GP.

18Additional powers are granted to the Tribunal under s. 9 of the Ontario Land Tribunal Act 2021 (“OLTA”):

1. Section 9(1) - The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.

2. Section 9(2) - The Tribunal may include in an order conditions that it considers fair in the circumstances, including a condition that the order comes into force at a future fixed time or on the performance of terms imposed by the Tribunal.

Prior Appeals

19The intent of allowing the Prior Appeals and imposing some pre-conditions upon the OPA and ZBA was to ensure that the approved development would benefit from the additional matters that the Applicant was to undertake in support of the development’s implementation and to satisfaction of the final forms of the drafts OPA and ZBA.

20The pre-conditions were not attached to the order to invite or to enable the City to open up issues that were not brought in the hearing. Neither were the pre-conditions, once satisfied, meant to lead to a situation where the approved development or the OPA and the ZBA, were prevented from proceeding.

21In the instant case, the Tribunal is of the opinion that, at the site plan approval stage, the City will have the opportunity to ensure any servicing related issues be addressed before approving the site plan for the subject property.

Submissions

City

22The City conceded at the Motion Hearing on June 27, 2023 that pre-conditions f., g. and h. (revised Pedestrian Level Wind study etc.; revised Arborist Report etc.; and signage requirement of Toronto District School Board etc.) have been satisfied. Further, the pre-conditions relating to Transportation Services are satisfied in principle. The final form of the draft OPA and ZBA (pre-condition a.) has been largely satisfied. This leaves pre-conditions, b., c., d. e. in issue (pre-condition i., on road widening, was not in issue as the revised ZBL diagram at page 16 of Exhibit 5 achieves the cumulative 2.4 metre setback to the north property line requested by the City). The City’s arguments were mainly directed at pre-conditions b. and d., with pre-conditions c. and e. pending the City’s notice of satisfaction:

• It is the City's submission that demonstrating compliance with applicable provincial laws, regulations and procedures, including Ministry of the Environment, Conservation and Parks (“MECP”) Procedure F-5-5 (“F-5-5 Guideline”) is within the scope of condition b. agreed to on consent of the parties and imposed by the Tribunal in its Interim Order. It is fully consistent with the intent and purpose of the condition, in tandem with condition d., that additional technical analysis may be required to demonstrate the viability of the proposed development, and furthermore that additional measures may need to be addressed as a result of such further analysis.

• The Applicant is asking the Tribunal to deem a condition satisfied notwithstanding strenuous objections from City experts that doing so would place the City in violation of its obligations under provincial regulations governing combined sanitary/storm sewers.

• Until the issue of discharging into a combined sewer can be addressed to the City's satisfaction, it is premature to deem conditions b. and d. to be satisfied.

Applicant

23Counsel submitted that the general purpose and intent of the conditions of approval imposed on the ZBA and OPA as it relates to pre-conditions b. and d. is to ensure that the approved instrument will be capable of establishing appropriate use and performance standards, which in this case will not lead to unacceptable impacts on the capacity of existing municipal infrastructure to accommodate the increased stormwater run-off, sanitary flow and water supply demand resulting from the June 21, 2022 architectural plans.

24The revised FSR that Mr. Grewal submitted to the City in December 2022 concluded that the approved development concept per the June 21, 2022 architectural plans would not – despite its increased footprint, massing and density – impose unacceptable impacts upon the existing municipal sewer system, or if it did, the Applicant would be required to make improvements to this municipal infrastructure to ameliorate this elevated impact.

25The revised FSR is not required to demonstrate compliance with the F-5-5 Guideline because this guideline technically does not apply to the redevelopment of the subject site and instead only applies to the approval of municipal sewer infrastructure which requires the approval of a certificate of approval or where there is a proposed connection to a local combined sewer system. Here, the proposed sanitary service connection is exempt from having to obtain a certificate of approval as the proposed connection is to a local sanitary sewer system located on Earlington Avenue.

26There is no other principle of law which the City has raised which would prohibit the Applicant from developing and constructing the development should the proposed sanitary service lateral and by extension, the approved development not “comply” with the “requirements” of the F-5-5 Guideline, which is a guideline that does not impose binding requirements at any rate.

27However, regardless of whether the F-5-5 Guideline applies to the development or not, the approved development and the proposed sanitary service lateral nevertheless complies with criteria 1 and 2 of Table 6 (page 727 of Exhibit 1, paragraph 27 of Mr. Grewal’s affidavit June 09, 2023) of the City’s Sanitary Sewer Capacity Guidelines (“SSCG”), meaning that it also achieves the objective of the F-5-5 Guideline regarding the reduction of sewer surcharge and basement flooding.

FINDINGS

28The Tribunal is persuaded by the affidavit evidence of the Applicant’s experts.

29It is the affidavit evidence of Mr. Smith (paragraph 16, page 24 of Exhibit 1; page 12-14 of Exhibit 5) that the final form and content of the draft OPA and ZBA (pre-condition a.) attached to Mr. Meghani’s affidavit are appropriate and should be adopted in full, except that these planning instruments should be modified to decrease the north at-grade setback, the north condominium setback and the proposed parking supply of the development. The City has acknowledged that this has been agreed to in principle.

30It is the uncontradicted affidavit evidence of Mr. Lukezic (Exhibit 1, at paragraphs 11 and 12, page 1588 -1589) that the Applicant has “cleared” pre-conditions c., d., and e. as it relates to transportation improvements because:

1. the site-generated traffic is anticipated to have a minimal incremental impact on the studied network and that the future traffic can be readily accommodated by the existing road network;

2. the proposal provides an appropriate supply of parking spaces consistent with the requirements of the City-wide Zoning By-law, except that the recommended townhouse resident parking rates should be a maximum of 1.5 spaces per unit, and that the recommended townhouse visitor parking rate should be a maximum of 1 per unit for the first 5 units plus 0.1 per unit for any subsequent units and a minimum of 2 per unit plus 0.05 per unit, for a total parking supply of 174 spaces; and,

3. the proposed increase of 5 parking spaces from 169 spaces to 174 spaces is appropriate, represents good transportation planning, and no improvements are required to accommodate the development (page 24-25 of Exhibit 5).

The City has acknowledged that transportation servicing matters have been satisfied in principle.

31It is the affidavit evidence of Mr. Grewal (page 719-732 of Exhibit 1) that the revised functional servicing report (“FSR”) and response letter he prepared are adequate for pre-conditions b. and d. (as it relates to functional servicing) to be deemed satisfied and “cleared” because:

1. the revised FSR demonstrates that the dedicated 250 mm diameter local sanitary sewer at Earlington Avenue has the capacity to receive the 5.05 L/s net increase in flows from the development without the need for improvements to existing municipal infrastructure;

2. the proposed sanitary service lateral which will connect to the City’s dedicated local sanitary sewer system is consistent with the general purpose and intent of the SSCG, which require the sanitary service lateral connection to the existing sanitary sewer to satisfy two out of the three criteria included in Table 6, these being: Criterion 1, the absence of any surcharge (or flooding) in the local sewer system under proposed design flow conditions; and Criterion 2, the connection will not cause the hydraulic grade limit (or sewer water level) to increase under extreme wet weather flow conditions; and,

3. that the proposed sanitary sewer lateral is not required to satisfy the general purpose and intent of F-5-5.

32The Applicant’s experts’ evidence remains persuasive. This pre-condition matter, at its base, is about whether the revised reports completed by the Applicant’s experts are technically sufficient to satisfy specifically conditions a., b., c., d. and e. despite the concerns raised by the City and its experts.

33The Tribunal finds that the general purpose and intent of recommending the inclusion of the pre-conditions of approval in its Final Decision and Interim Order was that it represented good land-use planning to ensure that the Tribunal’s approval of the development architectural package dated June 21, 2022 would be supported by up-to-date technical reports and studies.

34The Tribunal acknowledges Mr. Grewal’s affidavit evidence and accepts that the revised FSR submitted to the City in December 2022 was an up-to-date report prepared for the purpose of confirming that the Tribunal’s approval of the intensified development concept in the June 21, 2022 architectural plans would not impose unacceptable impacts on the existing municipal sewer system. It is the evidence of Mr. Grewal that the revised FSR should be deemed as satisfying or clearing conditions b. and d. of the pre-conditions of approval because the December 2022 FSR demonstrates that existing municipal infrastructure has the capacity to accommodate the stormwater run-off, sanitary flow and water supply demand, resulting from the proposal approved in principle in accordance with the June 21, 2022 architectural plans without the need for the Applicant to make improvements to such infrastructure.

35The City did not in their Response or through their expert Mr. Baldessara’s affidavit (Exhibit 4) contest Mr. Grewal’s conclusion that the municipal sewer sanitary system of having the capacity to accommodate the proposed development’s sanitary flows, nor did the City furnish evidence or submissions to contradict Mr. Grewal’s particular calculations, that he made, to come to his conclusions that the existing municipal water system does have the capacity to accommodate the development’s water flows.

36Mr. Grewal’s report also determined that the subject site’s stormwater runoff complies with the general purpose and intent of the City’s Wet Water Flow Management Guidelines (“WWFMG”) dated November 2006. This is where the City contended that the F-5-5 Guideline applies to the subject property.

37Mr. Baldessara stated in his affidavit at paragraph 19 (page 6 of Exhibit 4), that the F-5-5 guidelines outline rules for treating municipal and private combined and partially separated sewage systems which include the requirements for sanitary and storm connections proposed to connect to existing combined sewer system. Mr. Baldessara goes on to state at paragraphs 20-21 that the F-5-5 Guideline states that no net increases to a combined sewer system will be permitted to ensure new development does not increase the likelihood or severity of combined sewer overflows.

38The Tribunal notes that a reading of the F-5-5 Guideline indicates that, contrary to Mr. Baldessara’s contention, it does not state that “no net new increases to a combined sewer system will be permitted to ensure new development does not increase the likelihood or severity of combined sewer overflows”; or that the guideline applies to both municipal and private combined and partially separated sewage systems. F-5-5 Guideline 11 - New sanitary conditions to combined sewer systems (page 1583 of Exhibit 1) states:

When and where significant combined sewer system deficiencies exist, the regional Office of the Ministry shall require the provision of sanitary servicing for additional development tributary to the deficient system be curtailed to prevent aggravation of the problem until the necessary upgrading, as outlined by a Pollution Prevention and Control Plan is carried out in keeping with the requirement of this Procedure. Some development is allowed as upgrading proceeds, conditional upon its progress. The staged upgrading should at a minimum provide for the transmission and treatment of all flows from the additional development. This provision applies to significant development i.e. not to simple, one lot infill cases.

39The F-5-5 Guideline, specifically Guideline 11, does permit net new increases to a combined sewer system, unless there are significant combined sewer deficiencies, in which case, “the provision of sanitary servicing for additional development tributary to the deficient system be curtailed to prevent aggravation of the problem until the necessary upgrading” and that in the interim period some development will be allowed.

40Mr. Grewal at paragraph 37 (page 730 of Exhibit 1) of his affidavit stated:

“F-5-5 permits new sanitary connections to combined sewer system, except “when and where significant combined sewer system deficiencies exist”. These circumstances do not (emphasis added) exist in respect of the site or the Humber Sanitary Trunk Sewer because my review indicates that the dedicated sewer is a sanitary sewer. F-5-5 does not (emphasis added) prohibit connections to sanitary sewers, only combined sewers under certain circumstances, i.e., where there are significant combined sewer deficiencies”.

41The Tribunal agrees with Mr. Grewal, that there is no evidence which would suggest that the local dedicated sanitary sewer, located at 26 Earlington Avenue or the combined Humber Trunk Sewer some kilometres away from the subject site, experience “significant combined sewer deficiencies.”

42Mr. Grewal, at paragraph 12 of his Reply affidavit, sworn June 22, 2023 (page 20 of Exhibit 5), provides the opinion that he disagrees with the opinion of Mr. Baldessara that the F-5-5 Guideline applies to private combined or partially separated sewage systems because guideline 13 clarifies that the F-5-5 Guideline only applies to servicing-related infrastructure which requires the approval of a certificate of approval to permit its development and construction.

43Mr. Grewal notes at paragraph 13 of his Reply affidavit (page 20 of Exhibit 5):

the re-development is proposing a sanitary service lateral to a dedicated sanitary, which does not require the issuance of a Certificate of Approval (CA), meaning that F-5-5 is not enforced or applied against the approval of the proposed sanitary service lateral.

He goes on to state in paragraph 14 of his Reply affidavit (page 20 of Exhibit 5), that the revised functional servicing report is not required to demonstrate compliance with the F-5-5 Guideline because this guideline technically does not apply to the subject site. The Tribunal accepts Mr. Grewal’s affidavit evidence that the F-5-5 Guideline does not apply to the subject site.

44As for the City’s legal arguments pertaining to the proposed sanitary lateral and the applicable law in relation to the issuance of a permit under the Building Code Act, such matter is not before the Tribunal. Similarly, matters pursuant to the Ontario Water Resources Act are strictly not before this Tribunal for a determination either and the Tribunal declines to make any determination thereof.

45Regardless of whether the F-5-5 Guideline legally applies to the development or not, it is Counsel’s submission (supported by the affidavit evidence of Mr. Grewal), on behalf of the Applicant, that the SSCG specifically state that an analysis of a trunk sewer is outside the scope of a functional servicing report; therefore, the revised functional servicing report was never required to conduct any analysis of the Humber River Combined Trunk Sewer (which the City concedes) and compliance with the general purpose and intent of the F-5-5 Guideline – although not required – is nevertheless achieved and secured by the approved development per the revised FSR through its compliance with criteria 1 and 2 of Table 6 of the SSCG.

46Mr. Grewal, at paragraph 29 (page 728 of Exhibit 1), stated:

Two central objectives of the Sewer Capacity Guidelines outlined in page 3 is to prioritize wet weather flow mitigation measures per the WWFMG and to “provide Combined Sewer Overflow (CSO) control in combined sewers, consistent with MECP Procedure F-5-5- 5 (1997)” while also “providing acceptable Hydraulic Grade Line (HGL) levels of service to support the objectives of the City’s Basement Flooding Protection Program”.

47The Tribunal agrees with Mr. Grewal – as supported by the SSCG – that the recommendations of these guidelines are consistent with the requirements of the F-5-5 Guideline and the satisfaction of criteria 1 and 2 would achieve these objectives.

48It is Mr. Grewal’s uncontested evidence at paragraph 31 of his affidavit (page 728 of Exhibit 1) that:

Based on the modelling results, the existing sanitary sewers have sufficient capacity to service the proposed re-development. In design conditions, all analyzed pipes operate under free-flowing conditions.

Flow monitoring completed for wet weather flow indicate an equivalent rate of 1.52L/s/ha for the contributing area. Applying this rate, all analyzed pipes operate under free flow conditions in wet weather flow. As such, the proposed development does not have a significant impact on the downstream sewer and does not increase the likelihood of basement flooding within the sewershed.

49Mr. Grewal provides the opinion at paragraph 8 of his Reply affidavit (page 20 of Exhibit 5) that “the actual nature or type of the trunk sewer is irrelevant, regardless of whether it is a dedicated sanitary trunk sewer or combined trunk sewer.” The Tribunal notes that a FSR does not include a capacity analysis of the trunk sewer per the SSCG. The Tribunal finds that the SSCG states at page 1552 of Exhibit 1, 1.3 Limitations, 2^nd Paragraph: “The capacity assessment of pumping systems, trunk sewers, and wastewater treatment plants are beyond the scope of this document.”

SUMMARY

50The Tribunal had granted an Interim Order in October, 2022 subject to several conditions to be fulfilled as confirmed by the City Solicitor.

51In these proceedings, it is not seriously disputed that all other conditions have been satisfied, save for conditions b. and d. because the City Solicitor had confirmed that other conditions in the Interim Order have been satisfied in principle.

52As indicated, the City Solicitor had acknowledged and confirmed that conditions a., c., e., f., g. and h. have been fulfilled in principle to its satisfaction at the motion hearing.

53The Tribunal is left to determine whether conditions b. and d. have similarly been fulfilled in a satisfactory manner, in this case, to the Tribunal’s satisfaction, standing in the stead of the deciding authority.

54The affidavit evidence is overwhelming that conditions b. and d. have been fulfilled with respect to the general purpose and the intent of the post approval conditions, as indicated. The conditions were imposed to ensure that the development that was approved will be supported by the further reports and studies and would not lead to unacceptable impacts to the community or to the municipal infrastructure when the subject site is developed. In this matter, the Tribunal is satisfied that the revised FSR has fulfilled the conditions stated in conditions b. and d. For the purposes of the OPA and the ZBA, the Tribunal finds that the development’s storm water, water and sanitary flows will not unacceptably impact the municipal sewer system and there is not a need to improve the municipal sewer system as capacity for the development’s storm water, water and sanitary flows is demonstrated.

55The Tribunal has jurisdiction and full authority to deem the conditions as being fulfilled. Section 9(1) of the OLTA permits the Tribunal to order or direct as may be necessary or incidental to the exercise of the powers conferred on the Tribunal. The Tribunal finds it fair and reasonable in the circumstances to consider the imposed conditions as being fulfilled and satisfied by the revised FSR submitted by the Applicant. The affidavit evidence supports the findings that the proposed development will have no unacceptable impacts on the sewer and sanitary municipal infrastructure capacity (see s. 9(2) of the OLTA).

56For conditions b. and d., these conditions are supported by the revised FSR and the affidavit evidence of the Applicant’s experts. These conditions are deemed fulfilled and satisfied.

57For those remaining conditions imposed by the Order of October 04, 2022, the City Solicitor has expressed that the conditions have been satisfied in principle, awaiting notification of their satisfaction, and are thus deemed fulfilled by the Tribunal.

ORDER

58THE TRIBUNAL ORDERS THAT:

(a) the Applicant’s Motion is granted in part. Pre-conditions b. and d. are deemed satisfied, as are all other listed pre-conditions in the Order of October 04, 2022;

(b) The City Solicitor shall within 7 days of the date of this Order furnish to the Tribunal the agreed final drafts of the Official Plan Amendment (“OPA”) and the Zoning By-law Amendment (“ZBA”) to the Case Coordinator; and

(c) Upon receipt of the final drafts of the OPA and the ZBA as described above in paragraph [58] (b) the Tribunal shall issue a Final Order approving those instruments.

59The Member may be spoken to with respect to any issue arising from the above Orders.

“T.F. Ng”

T.F. NG

MEMBER

Ontario Land Tribunal

Website: www.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.