Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 15, 2024

CASE NO(S).: OLT-24-000660 (Formerly: PL011117–O010191)

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

Applicant and Appellant: Transmetro Properties Limited

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

Description: To permit an expansion of the boundary of the City Centre uses designation and associated amendments thereto

Reference Number: SC-P 2000 0014

Property Address: 1750 Brimley Road and 350 Progress Avenue

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000660

Legacy Case No.: PL011117-O0010191

OLT Lead Case No.: OLT-24-000660

Legacy Lead Case No.: PL011117-O0010191

OLT Case Name: Transmetro Properties Limited 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: Transmetro Properties Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of the subject lands for residential, office and secondary commercial uses, and a public park

Reference Number: SC-Z 2000 0023

Property Address: 1750 Brimley Road and 350 Progress Avenue

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000661

Legacy Case No.: PL011117-Z010160

OLT Lead Case No.: OLT-24-000660

Legacy Lead Case No.: PL011117-O0010191

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

Applicant and Appellant: Transmetro Properties Limited

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit a proposed plan of subdivision

Reference Number: SC-T 2000 0002

Property Address: 1750 Brimley Road and 350 Progress Avenue

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000662

Legacy Case No.: PL011117-S010072

OLT Lead Case No.: OLT-24-000660

Legacy Lead Case No.: PL011117-O0010191

Heard: August 27, 2024 by Video Hearing

APPEARANCES:

Parties Counsel

Transmetro Limited Sidonia Tomasella Kim Kovar

City of Toronto Leslie Forder

Kraft Canada Inc. Dennis Trinaistich (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON AUGUST 27, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This event was a Status Hearing before the Tribunal with respect to an Order of the Tribunal dated July 11, 2007 regarding an appeal under s. 51(34) of the Planning Act (“Act”) by Transmetro Limited (previously known as Transmetro Properties Limited) (“Applicant”) against the City of Toronto (“City”). The draft plan of subdivision (“Draft Plan”) was approved on an interim basis, subject to the clearing of Conditions of Approval, and relates to lands located at 1750 Brimley Road (“Subject Lands”).

2The Draft Plan is to permit the development of the Subject Lands with residential (1797 units), office, and secondary commercial uses, as well as a public park.

3This is an ongoing appeal, which included an Official Plan Amendment and Zoning By-law Amendment. The appeals had been filed pursuant to ss. 22(7)(c), 34(11), and 51(34) of the Act, regarding City Council’s failure to make a decision on the applications within the statutory timeframes of the Act. The Ontario Municipal Board (“OMB”), this Tribunal’s predecessor, approved the instruments on July 11, 2007 (“OMB’s 2007 Order). Conditions were imposed by the OMB in a previous interim December 31, 2003 decision, and the Applicant has been engaged in satisfying the Conditions since then.

4Of note, the initial appeal included both the Subject Lands and 350 Progress Avenue. However, the Draft Plan only pertains to the Subject Lands and not to 350 Progress Avenue.

5This matter has two Participants, Glen Andrew Community Association and Sanmina Inc., neither of whom attended the Status Hearing. Kraft Canada Inc. (“Kraft”) also did not attend the Status Hearing. The other Parties were not sure whether Kraft was aware of this Status Hearing, and had not communicated with Kraft about it. The City’s Counsel offered to follow up with Kraft subsequent to the Status Hearing.

BACKGROUND TO THE STATUS HEARING

6On June 26, 2024, the Tribunal received a letter from Schick Court Inc. (“Schick”), the developer of the proposal. Schick’s involvement in this matter is explained in more detail below. In the June letter, Schick asked the Tribunal to reopen this dormant file. Schick explained that the OMB’s 2007 Order had indicated that the City has the authority to clear the Conditions of Draft Plan Approval, pursuant to s. 51(56.1) of the Act, but in the event that the City failed to carry out this obligation, the Board (now the Tribunal) may be spoken to. The City had advised that redline revisions to the original Draft Plan were necessary and that the Conditions needed to be modified. The City had further advised Schick that it did not have the authority to do either of these things based on its interpretation of the OMB’s 2007 Order. The City’s interpretation was that only the Tribunal could authorize changes to the Draft Plan or the Conditions at this present stage. Schick disagreed, and believed the City did have the authority to make changes because the modifications were related to the implementation of the Conditions and not the Conditions themselves, and because the changes were minor revisions. As such, Schick requested that the Tribunal schedule a Status Hearing to give directions on this issue. Of note, the Conditions are not subjected to a lapsing date. Moreover, Schick has been consistently working through the Conditions and provided a matrix of the work completed prior to the Status Hearing.

7On July 4, 2024, the City responded. The City’s position was that the OMB’s 2007 Order states that if changes to the Draft Plan are required, the Board may be spoken to. Significant changes are required, including block restructuring to reflect the realignment of the existing Schick Court (to which a new road will connect), as well as a related private conveyance, and a recent but unrelated expropriation of a segments of the Subject Lands. Moreover, the City asserted that some Conditions must be modified because the supporting reports and studies are now more than 20 years old. These studies, and specifically the engineering reports, which formed the basis of the original approval, are now outdated and are not reflective of the current standards and requirements.

APPLICANT’S NAME CHANGE

8The Applicant’s current name is Transmetro Limited. It was formerly known as Transmetro Properties Limited. The Applicant requested that its name be updated. The Tribunal granted this request, relying on Rule 8.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”).

INVOLVEMENT OF SCHICK COURT INC.

9Schick Court Inc. is the developer of this proposal, acting on behalf of the Applicant.

10In a letter to the Tribunal dated July 3, 2024, the Applicant’s Counsel advised:

We hereby confirm that Schick is authorized by the owner to handle all planning matters related to the Subject Property pursuant to an Agreement of Purchase and Sale as between our client and Schick. We note that the subject Agreement of Purchase and Sale with our client specifically pertains to 1750 Brimley Road; it does not include 350 Progress Avenue, lands which are also referenced in the above referenced OMB File. 350 Progress Avenue will remain in our client’s ownership. For greater clarity, pursuant to the terms of the Agreement of Purchase and Sale, our client will not object to amendments to the draft plan of subdivision sought by Schick.

Given our client’s continued interest in this matter, we are writing to request that Transmetro Limited be included on the Tribunal’s notification list for any future proceedings in connection with the above matter. We also wish to advise the Tribunal and the parties that our client intends to request an ability to maintain a watching brief throughout any future proceedings.

[Emphasis added by the Tribunal.]

11At the Status Hearing, the Tribunal raised the issue of how best to include Schick in the proceeding since currently Schick was not a Party. Moreover, if Schick were to be simply added as a Party, it would not have the same rights and abilities as the Applicant. If the Applicant decided to withdraw or not be involved in this matter any longer, Schick as an added Party might not be able to continue with the Appeal and, at the very least, might not have the same rights and responsibilities. Thus, the Tribunal proposed that Schick be substituted for the Applicant (in accordance with Rule 8.2 of the Rules). Then, the Applicant, who had expressed a “continued interest in this matter” (quoted from the letter at paragraph [10] of this Decision) could be added as a Party.

12However, the Applicant’s Counsel explained that, while an Agreement of Purchase and Sale had been signed, a transfer of lands had not occurred. Thus, the Applicant did not wish to be replaced by Schick at this juncture. It simply wanted to provide them with the authority to pursue this matter on its behalf.

13The Tribunal is satisfied that Schick is fully authorized to act on behalf of the Applicant. As discussed below, the Tribunal has scheduled a Case Management Conference (“CMC”). Should the status of Schick in these proceedings need to be revisited, the Parties are invited to make formal submissions at the upcoming CMC.

STATUS OF THE CASE BEFORE THE TRIBUNAL

14The OMB’s 2007 Order was an Interim Order approving the Draft Plan along with Conditions of Draft Plan Approval. As a result, the Tribunal is not re-opening a closed case. Rather, it is exercising its retained jurisdiction over a case that has not concluded in full as the City has yet to clear the Conditions of the Draft Plan. Specifically, s. 51(56.2) of the Act provides the Tribunal with the following authority:

If the final approval of a plan of subdivision is to be given under subsection (56.1), the Tribunal may change the conditions of the approval of the draft plan of subdivision under subsection (44) at any time before the approval of the final plan of subdivision by the approval authority.

15Thus, the Tribunal is simply exercising its retained authority over an existing but dormant case. The Parties disagreed as to whether it is the Tribunal that must make a decision on the revisions required (if any) or if it is the City that can do so. The purpose of the Status Hearing was to develop a process strategy for working towards a revised Draft Plan and updated Conditions. The City wanted the Tribunal to provide final approval on this, while the Applicant wanted the City to maintain its authority to approve same.

16A lengthy discussion ensure wherein it became clear that:

a. Schick did not understand the exact changes that the City required, as the City had never made those clear. It believed that it was progressing through the Conditions appropriately and many of the supporting expert reports were from recent years. Moreover, the redline revisions it had made to the Draft Plan were minor. Thus, Schick required the City to clarify what changes it was proposing.

b. The City’s planner explained that this application / approval is very old and the City does not have a proper process to deal with it. Thus, the Applicant should either submit a new application to allow the City to properly consider it, or the Tribunal should get involved. The City’s Counsel clarified that the main report of concern was the Functional Servicing Report from 2002, which is more than 20 years old. Thus, an updated engineering report was required to address current capacity issues. Moreover, other changes were required, which the City would clarify to Schick now that the Tribunal is involved.

17The Tribunal directed that the City could not rely on a lack of procedure to force the Applicant to submit a new application or to avoid reviewing the application. Ultimately, a second CMC was scheduled to require the Parties to work together, answerable to the Tribunal. It was agreed that Schick and the City (and the other Parties if they so should choose) would meet soon after the CMC. At this meeting, the City would advise Schick as to exactly what engineering and detailed reports are required. In fact, the City’s Counsel advised that a list would be given to Schick detailing what was required. Schick would then provide a resubmission to the City as soon after that as possible (which, according to Schick’s Counsel, could be done imminently). Once that resubmission was done, then the City could consider it and come to the second CMC prepared to discuss revisions to the Conditions. In fact, they could be presented to the Tribunal for approval if warranted. A CMC was scheduled, with the details indicated below.

UPCOMING CASE MANAGEMENT CONFERENCE

18As mentioned above, the City’s Counsel indicated that, soon after this Status Hearing, the City would provide a list to Schick of what was required (such as engineering plans and so on). Schick’s Counsel indicated that it would make a resubmission to the City of the revised Draft Plan. The City’s Counsel indicated that the City would require approximately six (6) weeks to consider this resubmission. Thus, a timeline of 3 months was proposed until the next CMC. The CMC has now been scheduled to take place on December 6, 2024 at 10 a.m. by video.

19The Parties were directed to provide a status update to the Tribunal’s Case Coordinator by December 2, 2024. This update can include a draft agenda for the upcoming CMC, an update on discussions that have occurred between the Parties, and whether revisions to Conditions are proposed to be addressed at the CMC.

20On Friday, December 6, 2024, the Parties and Participants are asked to log in to the Hearing by video at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/638422541

Access Code: 638-422-541

21Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above in paragraph [20].

22Parties 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

23Individuals 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.

ORDER

24THE TRIBUNAL ORDERS as follows:

a. A Case Management Conference is scheduled, as described above in this Decision.

b. A status update is to be provided to the Tribunal’s Case Coordinator by December 2, 2024.

25This Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE

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.