Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 25, 2023
CASE NO(S).: OLT-22-001933
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 2130254 Ontario Inc.
Appellant: Amexon Realty Inc.
Appellant: Cadillac Fairview Corporation Limited
Appellant: Fima Development (Queensway and North Queen Street); and others
Subject: Proposed Official Plan Amendment No. OPA 469
Municipality: City of Toronto
OLT Case No.: OLT-22-001933
Legacy Case No.: PL190596
OLT Lead Case No.: OLT-22-001933
Legacy Lead Case No.: PL190596
OLT Case Name: Amexon Realty Inc. v. Toronto (City)
Heard: August 15, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Amexon Realty Inc. | M. Flynn-Guglietti |
| Calloway REIT (Etobicoke) Inc. and Calloway REIT (Etobicoke-Index) Inc. | M. Lakatos-Hayward D. Bronskill (in absentia) |
| 2637092 Ontario Inc. (assumed by 690 Evans Ave. Dev Nominee Inc.) | R. Houser M. Laskin |
| Cadillac Fairview Corporation Limited | J. Dawson M. Schuman C. MacDougall (in absentia) B. Smith (in absentia) |
| Home Depot of Canada Inc. | J. White D. Tang (in absentia) |
| City of Toronto | D. Elmadany L. Bisset (in absentia) |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN AND C. HARDY ON AUGUST 15, 2023 AND ORDER OF THE TRIBUNAL
BACKGROUND/PROCEDURAL HISTORY
1This decision and Order arises out of a motion by the City of Toronto (“City”) to settle two appeals of its decision to adopt the Sherway Area Secondary Plan (“Secondary Plan”), as filed by Calloway REIT (Etobicoke) Inc. and Calloway REIT (Etobicoke-Index) Inc., as well as 2637092 Ontario Inc. (assumed by 690 Evans Ave. Dev Nominee Inc.).
2On October 29-30, 2019, through By-law No. 1535-2019, the City adopted the Secondary Plan and associated amendments to its Official Plan (“OP”) through Official Plan Amendment 469 (“OPA 469”). The Secondary Plan is a comprehensive planning framework for the lands in the Sherway Area of Etobicoke bounded by Highway 427, the Queen Elizabeth Way, the Etobicoke Creek ravine and the Canadian Pacific Rail corridor. It directs anticipated growth to appropriate locations, secures public realm amenities and identifies community facilities necessary to meet the existing and future needs of residents and workers. The Secondary Plan is intended to transform this area from an auto-oriented, primarily retail destination into a complete mixed-use community.
3Given the overall size of the Secondary Plan area, which is approximately 136 hectares, a precinct-based planning approach was taken to respond to the specific conditions and desired character of each of the Plan’s six distinct precincts and the need to acknowledge existing uses and required phasing of development. The Secondary Plan will allow development to proceed in a predictable and consistent manner while ensuring precinct-specific conditions can be addressed.
4Nine appeals of the City’s decision to adopt OPA 469 were filed pursuant to s. 17(24) of the Planning Act. What follows is a brief procedural history of the matters which, since August 13, 2021, have been the subject of a number of Case Management Conferences (“CMC”) held before panels of the Tribunal, differently constituted. At those previous hearing events, certain matters were adjourned or settled, the unappealed portions of OPA 469 (along with certain modifications which resolved some of the Appellants’ issues) were confirmed as being in force and effect as of July 29, 2022, and, initially, a seven-week hearing commencing on October 30, 2023, was scheduled. At the most recent hearing event held on March 22, 2023, given the adjournment and scoping of certain matters, the previously scheduled hearing was reduced in length to 13 days and rescheduled to commence on November 20, 2023, at the request of the Parties.
5The following chart provides a helpful overview of the current status of all nine appeals.
| No. | Appellant | Property Address | Status of Appeal |
|---|---|---|---|
| 1 | Amexon Realty Inc. | 701-703 Evans Avenue | Settled – as reflected in Tribunal’s decision issued June 22, 2023 |
| 2 | Calloway REIT (Etobicoke) Inc. Calloway REIT (Etobicoke-Index) Inc. | 165-179 North Queen St. and 98 Index Road | Subject of the settlement proposal presently before the Tribunal. Pending approval, this appeal will be partially resolved, with the site-specific part of the appeal relating to 98 Index Road (150 and 162 North Queen Street) to be adjourned pending a decision by the Minister of Municipal Affairs and Housing on OPA 591 - Conversion request No. 91 |
| 3 | 690 Evans Ave. Dev Nominee Inc. | 690 Evans Avenue | Subject of the settlement proposal presently before the Tribunal. Pending approval, this appeal will be resolved in its entirety |
| 4 | Cadillac Fairview Corporation Limited | 25 The West Mall | Adjourned – as reflected in the Tribunal’s decision issued April 11, 2023 |
| 5 | FIMA Development | 200 Sherway Drive | Settled – as reflected in the Tribunal’s decision issued September 9, 2022 |
| 6 | FIMA Development | 1750-1900 The Queensway and 290-300 North Queen Street | Settled – as reflected in the Tribunal’s decision issued September 9, 2022 |
| 7 | Home Depot of Canada Inc. | 193 North Queen Street | Settled - as reflected in the Tribunal’s decision issued September 9, 2022 |
| 8 | Queens Walk Inc. | 2217 The Queensway | Withdrawn – February 2, 2022 |
| 9 | 2130254 Ontario Inc. | 51 Manstor Road | Adjourned pending a decision by the Minister of Municipal Affairs and Housing on OPA 591 – Conversion Request No. 63 (as reflected in the Tribunal’s decision issued September 9, 2022). |
MOTION TO SETTLE APPEALS NO. 2 AND 3
6As a result of further and ongoing discussions between the Parties, the Tribunal was advised that the City had reached an agreement with Calloway REIT (Etobicoke) Inc. and Calloway REIT (Etobicoke-Index) Inc. to resolve Appeal No. 2 and had also reached an agreement to resolve Appeal No. 3 with 2637092 Ontario Inc. (assumed by 690 Evans Ave. Dev Nominee Inc.).
7Counsel for the City advised that, should the proposed settlements of Appeal Nos. 2 and 3 be approved, Appeal No. 3 would be resolved in its entirety and Appeal No. 2 would be partially resolved, with the site-specific portion thereof relating to 98 Index Road (150 and 162 North Queen Street) being adjourned. Accordingly, he indicated that the 13-day hearing currently scheduled to commence on November 20, 2023, would no longer be required and could therefore be released from the Tribunal’s calendar.
8In support of the proposed settlement, the Tribunal heard testimony and received an affirmed Affidavit (Exhibit 1) from Melanie Melnyk, a Registered Professional Planner holding the position of Project Manager, Strategic Initiatives with the City’s Planning Division, who was qualified by the Tribunal to provide land use planning opinion evidence.
9Because Ms. Melnyk’s Affidavit and the previous decision of the Tribunal (dated September 9, 2022) provide a detailed summary of the history of OPA 469 and interrelated matters including, but not limited to, appeals of Official Plan Amendments 231 and 591, which relate to the conversion of land uses in this area from Employment Areas to Mixed Use Areas, it is unnecessary to reiterate same in this decision. However, it is noted that, as a result of a pending decision by the Minister of Municipal Affairs and Housing on conversion requests in relation to OPA 591, Appeal No. 9 in this matter was previously adjourned and, as part of the presently proposed settlement of Appeal No. 2, the site-specific portion of the appeal relating to 98 Index Road (150 and 162 North Queen Street) would also be adjourned.
10Ms. Melnyk testified that the present settlement proposal narrowly focuses upon modifications to Policy 5.9A, for which the Tribunal’s approval is required. She explained that the purpose of Policy 5.9A was to allow for consideration of residential and other sensitive land uses in areas designated as Mixed Use, provided it can be demonstrated through satisfactory analysis and mitigation measures that it is safe and appropriate to do so, given the nearby major transportation area, which includes two highways and a highway interchange.
11She provided a detailed overview of the proposed modifications to the wording of Policy 5.9A, characterizing same as minor changes intended to build in some measure of flexibility as well as to clarify the intent, and avoid misinterpretation, of Policy 5.9A. The proposed modifications include the addition of the phrase “including across a street”, the effect of which is to clarify that residential neighbourhoods or residential uses may continue across a street where it can be demonstrated that it is appropriate and safe to do so. In her Affidavit, Ms. Melnyk explains that, because public streets do not have a land use designation, a concern was raised that, as originally worded, it could be interpreted that an adjacent land use being separated by a public street would make Policy 5.9A inapplicable. A further minor wording modification replaces the word “and” with “and/or” in relation to mitigation measures. The effect of this modification would be to allow for mitigation measures to include either a land use buffer and/or appropriate distance separation from major transportation facilities.
12Ms. Melnyk testified that the proposed modifications to OPA 469 allow flexibility for potential land use changes over time to achieve a strong, sustainable and complete community, ensuring an efficient use of land and resources as well as the coordination of planning issues and the protection of public health and safety. Accordingly, she provided an overall opinion that the modifications proposed maintain the intent of the Secondary plan and the City’s OP, are representative of good planning in the public interest, have appropriate regard for matters of Provincial interest, are consistent with the Provincial Policy Statement 2020, and conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe.
ANALYSIS AND DISPOSITION
13Based upon the uncontradicted land use planning testimony and affirmed Affidavit of Ms. Melnyk, the Tribunal is satisfied that the proposed modifications to OPA 469 satisfy all requisite legislative tests and are representative of good planning in the public interest. Accordingly, the Tribunal approves the proposed settlement of Appeals No. 2 and 3, as reflected in the Order below.
14The Tribunal directed counsel for the City to provide an email status update to the Case Coordinator, no later than Thursday, February 15, 2024, with respect to the portion of Appeal No. 2 adjourned in accordance with the settlement proposal and the previously adjourned Appeal No. 9. With respect to Appeal No. 4, which was also previously adjourned, the Tribunal was advised that a CMC is currently scheduled in a related matter (OLT-22-002175) for March 8, 2024, and, at that time, the Tribunal will be provided with an update on both.
ORDER
THE TRIBUNAL ORDERS as follows:
15The appeals by Calloway REIT (Etobicoke) Inc. and Calloway REIT (Etobicoke Index) Inc. and 2637092 Ontario Inc. (assumed by 690 Evans Ave. Dev Nominee Inc.) are allowed in part and the Tribunal confirms certain sections, non-policy text, policies and maps of the City of Toronto Official Plan Amendment No. 469 (“OPA 469”) are in force and effect as of August 15, 2023, as described in Table 1 below, except as those parts were appealed, as set out in Attachment “B” to this Order of the Tribunal, as follows:
1a. The parts of OPA 469 listed in Row 1 are in force by operation of subsection 17(50) of the Planning Act on a plan-wide basis and approved as modified;
1b. The parts of OPA 469 listed in Rows 2 to Row 6, inclusive are in force by operation of subsections 17(30) and (30.1) of the Planning Act on a plan-wide basis, precinct-basis or site-specific basis, as the case may be, without modification;
Table 1
| Row | In Effect Date | Parts of OPA 469 |
|---|---|---|
| 1 | August 15, 2023 (Plan wide basis) | Policy 5.9A |
| 2 | August 15, 2023 (Plan-wide basis) | 4.6.5, 4.9, 6.1, 6.2, 7.18 |
| 3 | August 15, 2023 (Queensway Mixed Use Precinct Specific basis) | 5.5, 5.10, 5.15, 5.17, 5.18, 9.1.4, 9.4.1, 10.11, 10.11.1, 10.11.2 |
| 4 | August 15, 2023 (Sherway Gardens Precinct Specific basis) | 5.5 |
| 5 | August 15, 2023 (site-specific, 165-179 North Queen Street) | 5.7, 5.9, 5.9A, 5.12, 5.12A, 5.14, Map 43-5 |
| 6 | August 15, 2023 (site-specific, 690 Evans Avenue) | Section 12 (to add a policy for the site), Map 43-5 |
Attachment "A" to the Order of the Tribunal in OLT-22-001933, dated April 11, 2023, is replaced with the updated and consolidated version attached hereto as Attachment "A" to this Order to reflect the matters in force and effect in accordance with the above Order and Tribunal Decision and Order in OLT-22-002343/OLT-22-001933 issued June 22, 2023 respecting 701-703 Evans Avenue.
Attachment "B" to the Orders of the Tribunal in OLT-22-001933 dated September 9, 2022 and dated April 11, 2023, are replaced with the updated Attachment "B" to this Order reflecting the scope of the remaining appeals of certain non-policy text, policies and maps of OPA 469 as set out in Attachment "B" to this Order.
Appeal No. 2 to OPA 469 has been resolved in its entirety, except as adjourned on a site-specific basis as specified in Attachment "B" to this Order, and Appeal No. 3 to OPA 469 has been resolved in its entirety.
Notwithstanding Orders 1 and 3 above, the dark blue highlighted policy, non-policy text and/or maps are asserted as being under appeal by the Cadillac Fairview Corporation Limited, but which assertion is disputed by the City and which dispute will be adjudicated at a later date, if necessary; and such Orders or any other disposition in this matter related to such Orders are without prejudice to such later adjudication and to the positions of the City and the Cadillac Fairview Corporation Limited in such later adjudication.
This Order shall be strictly without prejudice to, and shall not have the effect of limiting:
a. the rights of all parties to seek to modify, delete or add to the unapproved portions of OPA 469;
b. the jurisdiction of the Tribunal to consider and approve modifications, deletions or additions to the unapproved or deferred portions of OPA 469 on a plan-wide, precinct-specific or site-specific basis, as the case may be, or to render future decisions that deviate from or are inconsistent with those portions of OPA 469 partially approved, including on a plan-wide, precinct-specific or site-specific basis, in the future, as the case may be;
c. the ability of the Cadillac Fairview Corporation Limited to seek to consolidate its appeal of OPA 469 with its appeal, pursuant to Subsection 22(7) of the Planning Act, of a privately-initiated Official Plan Amendment for the lands municipally known as 25 The West Mall (OLT-22-002175); the ability of the City of Toronto to take any position with respect to the consolidation of said appeals; and the jurisdiction of the Tribunal to make a determination in respect of the consolidation of said appeals; and
d. the ability of the City of Toronto to request that the Tribunal make a ruling with respect to the scope of the appeal by Cadillac Fairview Corporation Limited of OPA 469, as identified in Attachment "B"; the ability of the Cadillac Fairview Corporation to take any position with respect to said request; and the jurisdiction of the Tribunal to make a determination on said request.
This Order is without prejudice to the positions that may be taken by the parties in respect of the appeals, as scoped in Attachment "B" to this Order of the Tribunal so that if those appeals proceed to a hearing, the City will not take the position that the Tribunal ought not to approve site-specific modifications to the affected portions of OPA 469 on the basis that they deviate from or are inconsistent with such approved portions of OPA 469 on a Plan-wide basis or Precinct basis (or as approved in respect of other lands). However, this does not affect the City's right to assert that the approved portions of OPA 469 should be applied to the specific sites or precincts without modification on the basis that they are consistent with the Provincial Policy Statement, conform with provincial plans and that they constitute good planning.
Part of the appeal of OPA 469 as specified in Attachment "B" to this Order by Calloway REIT (Etobicoke) Inc., and Calloway REIT (Etobicoke-Index) Inc., for lands municipally known as 98 Index Road (150 and 162 North Queen Street), is adjourned sine die, until such time as the Minister of Municipal Affairs and Housing (the "Minister") has made a decision respecting Official Plan Amendment No. 591 (adopted by City Council on July 19-22, 2022 through By-law 1106-2022), which is before the Minister for a decision as the approval authority and for which the Minister has not rendered a decision at the time of this Order. This Order is without prejudice to the rights of the City or the Appellant regarding such appeal.
16Counsel for the City shall provide an email status update to the assigned Case Coordinator on adjourned Appeal Nos. 2 and 9 no later than Thursday, February 15, 2024.
17Pursuant to confirmation by Counsel for the City that the hearing currently scheduled to commence on November 20, 2023 is no longer required, the Tribunal will release all 13 days previously set aside for same.
18The Panel may be spoken to should any issues arise with respect to the implementation of this Order.
19There will be no further notice and the Panel is not seized.
“S. Braun”
S. BRAUN
MEMBER
“C. Hardy”
C. HARDY
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.