Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 13, 2023

CASE NO(S).: OLT-22-004670

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

Applicant/Appellant: Toronto (Scarborough Junction) LP Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: OPA to facilitate redevelopment of subject property with a new master-planned community Reference Number: 20 211430 ESC 20 OZ Property Address: 641-663 Danforth Road Municipality/UT: City of Toronto OLT Case No: OLT-22-004670 OLT Lead Case No: OLT-22-004670 OLT Case Name: Toronto (Scarborough Junction) LP v. Toronto (City)

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

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: OPA to facilitate redevelopment of subject property with a new master-planned community Reference Number: 20 211392 ESC 20 OZ Property Address: 3585-3595 St. Clair Avenue East Municipality/UT: City of Toronto OLT Case No: OLT-23-000123 OLT Lead Case No: OLT-22-004670

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: ZBA to facilitate redevelopment of subject property with a new master-planned community Reference Number: 20 211392 ESC 20 OZ Property Address: 3585-3595 St. Clair Avenue East Municipality: City of Toronto OLT Case No: OLT-22-004671 OLT Lead Case No: OLT-22-004670

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: ZBA to facilitate redevelopment of subject property with a new master-planned community Reference Number: 20 211279 ESC 20 OZ Property Address: 411-415 Kennedy Road and 636-646 Danforth Road Municipality: City of Toronto OLT Case No: OLT-22-004672 OLT Lead Case No: OLT-22-004670

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: DPS to facilitate redevelopment of subject property with a new master-planned community Reference Number: 20 211336 ESC 20 SB Property Address: 3585-3595 St. Clair Avenue East and 641-663 Danforth Road Municipality/UT: City of Toronto OLT Case No: OLT-22-004673 OLT Lead Case No: OLT-22-004670

Heard: May 26, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Toronto (Scarborough Junction) LP

R. Gill D. Bronskill (in absentia)

City of Toronto

M. Crawford

Laurier Paradise CC 375 Kennedy Inc. and CC 347-357 Kennedy Inc. (“Laurier Paradise”)

M. Flowers

Metrolinx

J. Evola S. Leisk (in absentia)

1166370 Ontario Ltd. and 391300 Ontario Ltd.

G. Borean

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON MAY 26, 2023 AND ORDER OF THE TRIBUNAL

1This was the second Case Management Conference (“CMC”) held for the purpose of organizing appeals brought by Toronto (Scarborough Junction) LP (“Appellant”) against the failure of the City of Toronto (“City”) to make decisions on applications for: Official Plan Amendments in relation to the lands at 3585-3595 St. Clair Avenue East and 641-663 Danforth Road; Zoning By-Law Amendments in relation to the lands at 411-415 Kennedy Road, 636-646 Danforth Road and 3585-3595 St. Clair Avenue East; and approval of a draft plan of subdivision incorporating 3585-3595 St. Clair Avenue East and 641-663 Danforth Road to establish eight development blocks, a network of new streets and new parkland.

PARTY STATUS REQUESTS

2At a previous CMC held on February 16, 2023, before VC Vincent, Participant Status was granted to Roger Flaim, and K.C. Au (on behalf of Victoria Cheng). In addition, Party status was granted to Metrolinx and Laurier Paradise.

3The Tribunal deferred, for consideration at this hearing event, requests for Party Status received from Oazio Pizzimenti (owner of the business and property at 619-621 Danforth Road) and Angela and Frank Cordi (owners of 625 Danforth Road). The specific purpose of the deferral was “to allow the Requestors to speak to the representatives of the other Parties, including the City, in order to best understand the proposal so as to assess how or if it will directly impact their respective interests and to gain insights into the hearing process, and the iterative nature of the consultation and mediation processes”.

The Pizzimenti Request

4Following the previous hearing event Mr. Pizzimenti, principal of 1166370 Ontario Ltd. and 391300 Ontario Ltd., which owns the properties at 619-621 Danforth Road (the “Pizzimenti properties”), took steps to best understand the proposal before the Tribunal and retained legal counsel and a land use planner. On behalf of those numbered companies, the Tribunal was presented with an updated Party Status request on May 19, 2023, outlining specific concerns including but not limited to: ensuring the orderly development of the area and the potential for the proposed development to directly impact the future development potential of the Pizzimenti properties.

5All other Parties consented to the request which the Tribunal granted, as it was persuaded that 1166370 Ontario Ltd. and 391300 Ontario Ltd. have a genuine and direct interest in the proceeding, will be impacted by the Tribunal’s decision, and will assist the Tribunal in making its decision.

The Cordis’ Request

6While the Cordis and the other Parties did not communicate in advance of this CMC such that the Cordis could gain a better understanding how (or if) the proposed development would directly impact their interests, Ms. Cordi, nevertheless, submitted an updated request and attended at the CMC to seek Party Status. At the outset, she declared that she currently takes no issue with the proposed development but is generally concerned that it could, in some way, negatively impact the Cordis’ property leading to a loss of value. As such, she wished to be granted Party status in order to preserve a right to speak directly to the Tribunal at a hearing if it became clear to her that the proposed development would in some as yet unspecified way adversely impact the value of the Cordi property.

7The Tribunal engaged in lengthy discussion with Ms. Cordi in order to gain a better understanding of how she might assist the Tribunal in making a decision on the present appeals at a future hearing. In the course of this discussion, the Tribunal provided a protracted explanation with respect to Rule 8 of the Tribunal’s Rules of Practice and Procedure (“Rules”), highlighting in particular, the differences between the rights and obligations of Parties and Participants in addition to an explanation with respect to the types of issues within the jurisdiction of the Tribunal, noting that property values are not a planning consideration. Ms. Cordi indicated that she was not, at this stage, intending to retain counsel and/or expert witnesses. She explained that, should she be granted Party Status, it would not be her intention to present a full case but rather, her intention would be to participate in the hearing in what the Tribunal would term an “ad hoc” manner.

8While none of the other Parties took a position on this request, counsel for the Appellant did not consent to the granting of Party Status. He acknowledged that the Cordis’ property is located in close proximity to the proposed development but submitted that, based upon the information provided by Ms. Cordi, it would be more appropriate to grant the Cordis status as Participants.

9The Tribunal agreed with the submissions of the Appellant’s counsel, noting that a hearing is not a public meeting where those in attendance may, in an ad-hoc manner voice concerns on issues which come up for discussion. Rather, a hearing is a formal proceeding in which Parties are expected to identify specific land use planning issues for adjudication and introduce evidence to support their positions on those issues. In light of the information gleaned from Ms. Cordi, at this CMC, the Tribunal refused the request for Party Status and instead granted Participant Status to the Cordis who, at this time, stand more properly in the shoes of Participants.

10The Tribunal noted, for the benefit of the Cordis, that a more detailed written Participant Statement may be submitted in advance of a hearing and the deadline for such a submission will be set out in a future Procedural Order (“PO”) governing the proceedings. The Cordis might wish to revisit the earlier encouragement of VC Vincent and consider speaking to the representatives of the other Parties (including the City) and/or seek independent legal advice. The foregoing might aid them in identifying, with some degree of specificity, how the proposed development will impact their interests (either for the purposes of preparing a detailed written Participant Statement or alternatively, if appropriate, seeking to elevate their status from Participant to Party by way of a motion in accordance with the Rules).

NEXT STEPS

11Counsel for the Appellant requested that a further CMC be scheduled near the end of July for the purpose of presenting a PO and Issues List (“IL”). In addition, he requested that the matter be scheduled for a hearing, noting that any delay in providing hearing dates because the other Parties did not come to the CMC with identified issues, would be prejudicial to his client and contrary to the public interest, given the size of the proposed development and the current housing crisis.

12All Parties were in agreement that a subsequent CMC would be appropriate. However, in relation to the request to set the matter down for a hearing, counsel for the City objected, noting the absence of an IL and associated unknowns, including but not limited to, the number of witnesses the Parties might call and the number of days to set aside for a hearing. The remaining Parties took no position on setting a hearing but echoed, albeit somewhat less strenuously, the concerns raised by counsel for the City. Counsel for Laurier Paradise indicated that had he been alerted in advance of the CMC that the Appellant would be seeking hearing dates, he would have come prepared with a list of issues.

13The Tribunal scheduled a third CMC but declined to schedule hearing dates given the lack of even a general idea of what is at issue between the Parties, far less a detailed and agreed upon IL, the addition of the new Party (1166370 Ontario Ltd. and 391300 Ontario Ltd.) and a lack of clarity surrounding the number of anticipated witnesses and therefore the number of days which might be required for a hearing.

14Despite the foregoing ruling, counsel for the Appellant continued to express concern with respect to prejudice to his client should hearing dates not be set at this juncture. As has been repeatedly noted by the Tribunal on previous occasions, the hearing calendar is a public resource which must be carefully managed and, in the view of this Member, it would not be a responsible use of the Tribunal’s calendar to “earmark” dates as requested by counsel for the Appellant. In light of the reasons discussed above, the Tribunal declined to revisit its ruling in this regard.

15After some canvassing the availability of counsel to attend a subsequent CMC and available dates in the Tribunal’s calendar, the next hearing event was scheduled to proceed by way of video hearing in August. However, at the request of counsel for the Appellant who again expressed concern with respect to delay, counsel for the City agreed to make himself available during dates he will be on vacation and the Tribunal revisited the hearing calendar to accommodate an earlier date. Accordingly, a CMC is scheduled to proceed by video on Monday, July 10, 2023 at 10 a.m.

16Parties and Participants 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:

https://meet.goto.com/680885805

Access Code: 680-885-805

17Parties and Participants 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.

18Persons 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 +1 (647) 497-9373 or (Toll Free) 1 (888)-299-1889. The access code is 680-885-805.

19Individuals 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 CMC 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.

20In the interest of ensuring that the next hearing event be as productive and efficient as possible, the Tribunal directed the Parties to submit a draft PO and IL no later than one week prior to the CMC and arrive prepared to set the matter down for a hearing. Counsel for the Appellant undertook to draft a PO and IL, circulate same to the Parties for their consent/input and submit same to the Tribunal by Monday, July 3, 2023.

21The Tribunal further directed that, should there be disputes amongst the Parties with respect to items for inclusion on the IL which may require directions from the Tribunal, the Parties shall, set out clearly and file with the Tribunal along with the IL a list of the items which are being challenged and the Parties’ respective positions on the inclusion of those items on the IL and, if appropriate, include suggested alternative wording of the challenged items such that the Panel presiding over the Monday, July 10, 2023 CMC may be able to provide the necessary direction.

22As a final note, although the Tribunal recognizes that, given addition of a Party at this CMC and the lack of an IL, any discussion with respect to opportunities for settlement/mediation would be premature. Nevertheless, the Parties are reminded of the availability of Tribunal-assisted mediation and, should they wish to avail themselves of this resource in the future, they may reach out to the Case Coordinator for assistance in this regard.

ORDER

23The Tribunal orders as follows:

a) 1166370 Ontario Ltd. and 391300 Ontario Ltd. is a Party to the proceeding;

b) Angela and Frank Cordi are Participants to the proceeding;

c) The Parties shall submit to the Tribunal prior to Monday, July 10, 2023, a draft Procedural Order and Issues List in accordance with the directions provided at paragraphs 20 and 21 of the foregoing decision; and,

d) This Member is not seized but may be available for case management should scheduling permit.

“S. Braun”

S. Braun

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.