Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 25, 2023

CASE NO(S).: OLT-22-003830

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: CP REIT Ontario Properties Limited

Appellant: Danforth Euston Holdings Inc.

Appellant: Del Boca Vista Properties Inc.

Appellant: Maverick Development Corporation

Subject: Official Plan Amendment OPA 573

Reference Number: OPA 573

Property Address: (Danforth Avenue Study Area)

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-003830

OLT Lead Case No.: OLT-22-003830

OLT Case Name: CP REIT Ontario Properties Limited et al. v Toronto (city)

Heard: August 8, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
City of Toronto	M. Crawford
CP REIT Ontario Properties Limited	D. Bronskill (in absentia) Z. Fleisher
Del Boca Vista Properties Inc.	C. Lantz (in absentia) J. Cheng
Danforth Euston Holdings Inc.	M. Foderick (in absentia) D. Angelucci
Maverick Development Corp.	K. Sliwa (in absentia) I. Banach K. Pirak
Tzaf Developments Inc.	S. Leisk (in absentia) J. Evola
85 Danforth Inc.	C. Tanzola (in absentia) N. Ast
201099 Ontario Inc.	Not Represented
Cathy Tsialtas	Not Represented
1079268 Ontario Inc.	Not Represented
1258338 Ontario Inc.	Not Represented

DECISION DELIVERED BY BRYAN W. TUCKEY AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Ontario Land Tribunal (“Tribunal”) convened the second Case Management Conference (“CMC”) by Video Hearing for the above noted case file. There are four registered appellants and six entities with Non-Appellant Party status, as noted in the Tribunal Decision issued February 14, 2023. The appeals are pursuant to s. 17(24) of the Planning Act and requests for Party status are against the approval by the City of Toronto (“City”) of Official Plan Amendment (“OPA”) No. 573.

2The effect of the OPA is to enact Site and Area Specific Policy No. 772 (“SASP”) to provide planning policy and implementing urban design guidelines for a portion of Danforth Avenue extending from the Don Valley Parkway in the west, to Coxwell Avenue, in the east. This area is known as Segment 2 of the City initiated ‘Danforth Study’, completed by City staff.

3Danforth Avenue is a historic main street that is both a neighbourhood and regional destination. It is a key contributor to the quality of community life and the local economy by providing convenient, walkable opportunities for local shopping and public gathering spaces, as well as locations for small businesses to start up and thrive. The SASP intends to support Danforth Avenue’s existing historic character and provide for future growth. Lands within the study area are well served by existing transit and the proposed Ontario Line is planned to connect with the existing Toronto Transit Commission Line 2 at the Pape Avenue Subway Station.

4The Motion of Record of the City of Toronto dated July 26, 2023, is marked as Exhibit 2 to these proceedings.

BACKGROUND

5Jonathan Cheng, Counsel for Del Boca Vista Properties Inc. (“Del Boca”), advised the Tribunal that, in this proceeding, his firm is only representing Del Boca. Four entities that were given Non-Appellant Party status at the February CMC have not been responsive in Mr. Cheng’s efforts to determine if they remain clients in this matter. The four entities are: 1) 201099 Ontario Inc. - 627 - 629 Danforth Avenue; 2) Cathy Tsialtas - 636 – 638 Danforth Avenue; 3) 1079268 Ontario Inc. - 635 Danforth Avenue; and, 4) 1258338 Ontario Inc. - 730 Danforth Avenue. None of these entitles are represented at this CMC.

6Mr. Cheng committed to provide the Tribunal and all Parties with the contact information for the four entities so they can be notified of this Decision. The Tribunal will consider the status of the four Non-Appellant Parties listed in paragraph 5 at the next CMC.

7Mark Crawford, Counsel for the City, provided background information as to the status with respect of these proceedings. He first noted that he is unaware that the four Non-Appellant Parties are not to be represented at these proceedings. Mr. Crawford noted that some of the Parties are willing to enter into Tribunal-led mediation and that they are waiting for a date to be scheduled for this mediation.

8Mr. Crawford advised the Tribunal that there are two request that need to be considered at this CMC. The first is a consolidation request from Del Boca and the second is a motion from the City to adjourn the appeal of CP REIT Ontario Properties Limited (“CP REIT”).

CONSOLIDATION REQUEST FROM DEL BOCA

9Mr. Cheng advised the Tribunal that his client is seeking to consolidate their appeals of the OPA and a site specific Zoning By-law Amendment (“ZBA”), which has been submitted to the City and appealed to the Tribunal. (Tribunal Case No. OLT-23-000444). This request is in keeping with Rule 16.1 of the Ontario Land Tribunal Rules of Practice and Procedure. He noted that the first CMC on the ZBA appeal has not yet been convened.

10Mr. Cheng submitted a consolidation of the two matters is the most effective and efficient way for the Tribunal to adjudicate these matters on a go forward basis. He would like the Tribunal to give consideration for an Interim Order that is favorable to this consolidation request. At the CMC for the ZBA appeal, a similar request will be made allowing the Tribunal member at that proceeding to give similar consideration. A final determination on consolidation of the two matters would be an agenda item for the next CMC.

11Mr. Crawford noted that consolidating like matters in the City is not uncommon; however, he submitted that it would be appropriate for this request to be heard at the first CMC of the ZBA appeal, before a Final Order be issued in this proceeding. The Tribunal member in the ZBA matter would have the benefit of understanding the clear relationship between the OPA and ZBA appeals.

12While all other Parties present consented to this approach, it was noted that this is the first time any of the parties were made aware of this request; therefore, the other Parties want to receive any further communication between the City and Del Boca in this regard.

CITY MOTION TO ADJOURN THE APPEAL OF CP REIT

13The City submitted a Notice of Motion (“Motion”) to the Tribunal on July 26, 2023. The Motion requests an Order of the Tribunal adjourning the appeal of CP REIT in accordance with the Proposed Terms of Adjournment, as set out in the Affidavit of Helen Song found in Exhibit 2 at Tab 2, Exhibit D (“Proposed Terms”). Mr. Crawford submitted that the adjournment of CP REIT’s appeal of the OPA sine die “is the most efficient and effective use of the parties’ and the Tribunal’s resources and time in considering these matters.”

CP REIT will not be prejudiced by the requested adjournment on the Proposed Terms, but rather will benefit from increased certainty and clarity with respect to their proposed development application, reduce legal costs and increased transparency and fairness for all.

14Mr. Crawford reviewed the Proposed Terms for the benefit of the Tribunal and Parties. The Proposed Terms are a relatively comprehensive examination of alternative courses of action that may be taken by either the City or CP REIT, as discussions continue to a conclusion.

15Zachary Fleisher, Counsel for CP REIT, advised the Tribunal that his clients consent to this adjournment. All other Parties present also consented to this request.

GO FORWARD STRATEGY

16Mr. Crawford requested that the Tribunal convene a third CMC, late in 2023, to further manage this proceeding. A third CMC following this schedule would allow the Tribunal-led mediation to continue, time for the registered Appellants to provide the City with a draft Issues List and determine if the City initiated OPA No. 540 (which may be a consideration in this matter), as Official Plan Amendment No. 540 defines the policy framework in Protected Major Transit Station Areas in this location, is approved by the Province.

17Matters to be dealt with at the next CMC would include a determination of the status of the four unrepresented Non-Appellant Parties, any settlement proposals that may come from mediation, the finalization of a Procedural Order to manage a Merits Hearing, the scheduling of a Merits Hearing, a progress update on the adjournment of the CP REIT appeal and a disposition with respect to Del Boca’s request for consolidation.

TRIBUNAL DISPOSITION

18The Tribunal is prepared to convene a third CMC on Friday, December 8, 2023.

19The four entities listed as Non-Appellant Parties, being 201099 Ontario Inc. - 627 - 629 Danforth Avenue; Cathy Tsialtas - 636 – 638 Danforth Avenue; 1079268 Ontario Inc. - 635 Danforth Avenue; and 1258338 Ontario Inc. - 730 Danforth Avenue, must advise the Tribunal and all Parties of their requested status before the third CMC. The Tribunal will consider status at that time.

20The Tribunal finds that the consolidation of the Del Boca OPA and ZBA appeals, in keeping with Rule 16.1, is appropriate and provides “the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings”; however, it is inappropriate for the Tribunal to provide a Final Order with respect to this request until the member presiding over the complementary ZBA appeal has had the opportunity to evaluate this request within the context of that appeal, at the upcoming CMC for the ZBA appeal. Therefore, the Tribunal is prepared only to ‘approve in principle’ this request, contingent on the panel at the upcoming CMC, with respect to Tribunal Case No. OLT-23-000444, being comfortable with a similar finding. A final determination of this request in this proceeding will be made at the December 8, 2023 CMC.

21The Tribunal agrees with the motion request of the City that the CP REIT appeal against the OPA be adjourned sine die, in keeping with the Proposed Terms found in Exhibit 2 at Tab 2, Exhibit D. The City and CP REIT will provide a status update on the progress of this appeal at the December 8, 2023 CMC.

22All Parties will provide to the City and all other Parties draft Issues for the Procedural Order Issues List no later than 4:30 p.m. on Friday, September 15, 2023.

CMC TECHNICAL DETAILS.

23A full day CMC will convene on Friday, December 8, 2023, at 10 a.m. by Video Hearing.

GoTo Meeting Link: https://global.gotomeeting.com/join/979388733

Access code: 979-388-733

24Parties 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.

25Parties 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

26Persons 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: Audio -only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted above.

27Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

28Accordingly, the Tribunal Orders:

a. A one-day Case Management Conference is to convene on Friday, December 8, 2023.

b. The Non-Appellant Parties, being 201099 Ontario Inc. - 627 - 629 Danforth Avenue; Cathy Tsialtas - 636 – 638 Danforth Avenue; 1079268 Ontario Inc. - 635 Danforth Avenue; and 1258338 Ontario Inc. - 730 Danforth Avenue, must advise the Tribunal (through the Case Coordinator) and all Parties of their requested status before the next Case Management Conference.

c. The request by Del Boca Vista Properties Inc. for consolidation of its Official Plan Amendment (Tribunal Case No. OLT-22-003830) and Zoning By-law Amendment (Tribunal Case No. OLT-23-000444) appeals is approved in principle, contingent on the panel at the upcoming Case Management Conference, with respect of Tribunal Case No OLT-23-000444, being comfortable with a similar finding. This Tribunal will make its final finding with respect to this request at the December 8, 2023 Case Management Conference.

d. The appeal of CP REIT Ontario Properties Inc against the City of Toronto Official Plan Amendment No. 573 be adjourned sine die, in keeping with the Proposed Terms found in Exhibit 2 at Tab 2, Exhibit D.

e. All Parties will provide to the City and all other Parties draft Issues for the Procedural Order Issues List no later than 4:30 p.m. on Friday, September 15, 2023.

29The Member is not seized.

“Bryan W. Tuckey”

BRYAN W. TUCKEY 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.