Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
CORRECTION NOTICE
OLT CASE NO(S).: OLT-24-000609 OLT-22-002213
DECISION ISSUE DATE(S): October 10, 2024
CORRECTION NOTICE ISSUE DATE: November 14, 2024
RE: 1322104 Ontario Inc. v. Toronto (City)
Correction to: the spelling of a Counsel’s name in the appearance section
Originally: Counsel Giouszelin Mutlu
Corrected to: Counsel Giouzelin Mutlu
“Euken Lui” EUKEN LUI REGISTRAR
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.
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 10, 2024
CASE NO(S).: OLT-24-000609 OLT-22-002213
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A
Appellant: 1322104 Ontario Inc. Subject: Site Plan Description: To permit development of 14 back-to-back, three (3)-bedroom townhouse units within a three (3)-storey built form Reference Number: 24 124733 WET 03 SA Property Address: 80 Thirtieth Street Municipality/UT: Toronto OLT Case No.: OLT-24-000609 OLT Lead Case No.: OLT-24-000609 OLT Case Name: 1322104 Ontario Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 1322104 Ontario Inc. Subject: Application to amend Zoning By-law No. 569-2013 and Etobicoke Zoning Code - Refusal or neglect of City of Toronto to make a decision Existing Zoning: Zoning By-law: 569-2013 - RM(u4)(x2) Etobicoke Zoning Code – RM-1 Proposed Zoning: Zoning By-law: 569-2013 - RM(u4)(x2) Site Specific Etobicoke Zoning Code – RM-1 Site Specific Purpose: To permit the redevelopment of the Site into 14, back-to-back, 3-bedroom townhouse units Property Address/Description: 80 Thirtieth Street Municipality: City of Toronto Municipality File No.: 19 262483 WET 03 OZ OLT Case No.: OLT-22-002213 Legacy Case No.: PL200396 OLT Lead Case No.: OLT-22-002213 OLT Lead Case No.: PL200396 OLT Case Name: 1322104 Ontario Inc. v. Toronto (City)
Heard: September 27, 2024 by Video Hearing (“VH”)
APPEARANCES:
Parties 1322104 Ontario Inc. (“Applicant”)
Counsel Giouszelin Mutlu Michael Nemanic
Parties City of Toronto (“City”)
Counsel Adam Ward Ray Kallio
MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON September 27, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the first Case Management Conference (“CMC”) respecting case no. OLT-24-000609. This matter is an Appeal regarding a non-decision by the City concerning Site Plan Approval to permit development of 14 back-to-back, three (3)-bedroom townhouse units within a three (3)-storey built form at 80 Thirtieth Street (the “Site”). The Site is notable insofar as it is located adjacent to the Metrolinx Rail Corridor.
2Also covered at this CMC were issues associated with case no. OLT-22-002213. This earlier matter involved conditional approval of a site-specific Zoning By-law Amendment (“ZBA”) associated with permitting the same development. At the present CMC, the Tribunal learned that a final order to approve said ZBA has not yet been issued, due to some of the conditions of approval being still unresolved (see: 2022 CanLII 37727 (ON LT) | 1322104 Ontario Inc. v Toronto (City) |). Of note, the following condition is still outstanding:
i. The owner has agreed to the peer review of the Derailment Protection Report by the City’s Peer Reviewer, at the owner’s expense, to determine the appropriate building setback from the rail corridor and mitigation measures to the satisfaction of Metrolinx, the Chief Planner and Executive Director, City Planning and the City Solicitor; [emphasis added]
3The Parties explained that the City’s agents are all satisfied, as required by the condition, but Metrolinx is withholding confirmation of satisfaction due to various expressed rail-safety concerns. Upon the request of the Applicant, the Tribunal reopened the ZBA matter to deal with the unresolved satisfaction of the above noted condition. Furthermore, upon finding that the issue associated with said condition is inextricably linked to issues associated with the present Site Plan Approval appeal, the Tribunal Orders that any remaining issues associated with case no. OLT-22-002213 be heard at the same time as case no. OLT-24-000609.
METROLINX’s ROLE IN THE PROCEEDINGS
4Discussions at the CMC quickly turned to Metrolinx’s role in the above-described proceedings, as a consequence of it being part of the above noted condition related to the ZBA matter, and also because it has expressed concerns about the suitability of rail-safety measures in relation to the Site Plan Approval process. Notably, Metrolinx was not involved in the ZBA appeal as a Party or Participant to express such concerns, and it did not appear at the present CMC despite the Tribunal being assured by the Parties that it was notified. Clearly, however, Metrolinx has an interest in the matter because the proposed development is adjacent to the rail corridor, and further by virtue of it holding authority over the clearing of one ZBA condition in relation to case no. OLT-22-002213, as well as in relation to its comments associated with the Site Plan Approval application process.
5The Tribunal finds that these circumstances present a serious conundrum. Normally, the Tribunal would not be motivated to encourage any particular entity to become involved in a proceeding. However, in the present circumstances, there is enough information before the Tribunal to suggest that Metrolinx has serious unresolved rail-safety concerns, despite its apparent reluctance to formally participate in the proceedings. Such concerns are, to put it frankly, of a life-or-death nature, and the Tribunal is therefore reluctant to sit idly by while such concerns remain unexplored. Consequently, the Tribunal is not just motivated to suggest Metrolinx be involved in the proceedings, it finds itself compelled to obligate Metrolinx’s involvement.
6As a means to this objective, the Tribunal elects to summon Luka Medved, author of Metrolinx’s comments to the City, dated April 12, 2024, on the subject of rail-safety associated with the Site Plan Approval application, to appear before the Tribunal at a Special Hearing (see details below). At his appearance, the Tribunal expects him to be prepared to provide viva voce evidence about the concerns expressed by him on Metrolinx’s behalf, about the proposed Site Plan Approval, as well as confirming Metrolinx’s reasons for withholding clearance of the ZBA condition described above.
7Additionally, the Tribunal shall communicate with Richard Missaghie, Counsel for Metrolinx, requesting that he or another representative of Metrolinx attend the Special Hearing to speak to the above-described issues, as Metrolinx’s representative. To be clear, the Tribunal expects that, whoever attends the hearing on behalf of Metrolinx must be prepared with instructions to either seek Party status or decline the Tribunal’s invitation for Party status. Importantly, the record shall show that the Tribunal is making extraordinary efforts to invite Metrolinx to seek Party status as a means to provide Metrolinx with an opportunity to raise and prove any and all rail-safety concerns that it might have in relation to the proposed development. Furthermore, if Metrolinx does not seek Party status, or no counsel attends the Special Hearing on Metrolinx’s behalf, the Tribunal will note these circumstances on the record, insofar as Metrolinx was provided with an opportunity to present its rail-safety concerns to the Tribunal, together with evidence, and that it declined to do so – leaving the Tribunal with no basis to question such rail-safety concerns from Metrolinx’s standpoint.
Special hearing and SECOND CMC
8For the purposes described above, the Tribunal set a Special Hearing concerning case nos. OLT-22-002213 and OLT-24-000609, commencing on Tuesday, November 19, 2024, at 10 a.m. by VH. At the same time, a second CMC will take place concerning case no. OLT-24-000609. No further Notice is required.
GoTo Meeting: https://global.gotomeeting.com/join/638422541
Access Code: 638-422-541
9Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay, and log into the video hearing no later than 15 minutes before the start of the event to test their video and audio connections. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
10Persons 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: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.
11Individuals 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
12The Tribunal Orders that:
Any remaining issues associated with case no. OLT-22-002213 shall be heard at the same time as case no. OLT-24-000609;
The date and particulars of the Special Hearing concerning case nos. OLT-22-002213 and OLT-24-000609, and the second CMC concerning case no. OLT-24-000609, are set out above;
Pursuant to the Summons issued to Luka Medved, he is to attend said Special Hearing at the behest of the Tribunal, and is expected to be prepared to provide evidence about rail-safety concerns from Metrolinx’s standpoint, as it relates to the proposed Site Plan Approval. Additionally, he is expected to confirm why Metrolinx has refused to clear the ZBA condition, insofar as Metrolinx is apparently dissatisfied with the conclusions of the peer review of the Derailment Protection Report, to determine the appropriate building setback from the rail corridor and associated rail-safety mitigation measures;
Counsel for Metrolinx is requested to attend the same Special Hearing to speak on Metrolinx’s behalf;
For the Purpose of the above noted Special Hearing, the present Parties may submit evidence which speaks to the matter, either through oral testimony or in writing by way of a sworn Affidavit; and,
For the purpose of the second CMC regarding case no. OLT-24-000609, the Parties shall file a draft Procedural Order in advance of the CMC. If Metrolinx intends to seek Party status at the CMC, it shall provide the present Parties with its Issues List (if any) at least two weeks prior to the hearing.
13The Member is seized for the purpose of conducting the November 19, 2024, Special Hearing and CMC.
“K.R. Andrews”
K.R. ANDREWS 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.