Carlyle Investments Inc. v. Toronto (City), 2024 CanLII 120315

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 26, 2024

CASE NO(S).: OLT-23-000374

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

Applicant and Appellant: Carlyle Investments Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the construction of a 49-story residential building
Property Address: 33-37 Maitland Street
Reference Number: 22 203333 STE 13 OZ
Municipality: City of Toronto
OLT Case No.: 23-000374
OLT Lead Case No.: 23-000374
OLT Case Name: Carlyle Investments 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: Carlyle Investments Inc.
Subject: Request to amend the Zoning Bylaw – Refusal or neglect to make a decision
Description: To permit the construction of a 49-story residential building
Property Address: 33-37 Maitland Street
Reference Number: 22 203333 STE 13 OZ
Municipality: City of Toronto
OLT Case No.: 23-000375
OLT Lead Case No.: 23-000374

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Applicant and Appellant: Carlyle Investments Inc.
Subject: City of Toronto Site Plan Approval
Description: To permit the construction of a 49-story residential building
Property Address: 33-37 Maitland Street
Reference Number: 22 203332 STE 13 SA
Municipality: City of Toronto
OLT Case No.: 23-000376
OLT Lead Case No.: 23-000374

Heard: November 15, 2024 by Video Hearing

APPEARANCES:

Parties
Carlyle Investments Inc.

Counsel*/Representative
Daniel Artenosi*
Rowan Barron*
Hilary Spriggs
Michael Cara (in absentia)

Parties
City of Toronto
OEF Village Green Nominee Inc.

Counsel*/Representative
Amanda Hill*
Jason Davidson* (in absentia)
Alexander Suriano*
Jonathan Marun-Batista*
Maggie Bassani* (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY J. CAMPBELL ON NOVEMBER 15, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the fifth Case Management Conference (“CMC”) before the Ontario Land Tribunal (“Tribunal”) with respect to appeals under sections 22(7) and 34(11) of the Planning Act (“Act”) and section 114(15) of the City of Toronto Act, 2006 (collectively, “Appeals”) by Carlyle Investments Inc. (“Applicant”) resulting from the failure of the City of Toronto (“City”) to make a decision within the statutory timeframe on applications for an Official Plan Amendment (“OPA”), a Zoning By-law Amendment (“ZBA”), and Site Plan Approval (“SPA”) pertaining to lands municipally known as 33-37 Maitland Street, in the City of Toronto (“Subject Property”). The purpose of the OPA, ZBA, and SPA is to allow for a 49-storey residential building on the Subject Property.

2At the CMC, the Parties requested the substitution of certain Parties in this matter, and the scheduling of an amended date for a settlement hearing.

SUBSTITUTION OF APPELLANT

3Counsel for the Applicant submitted that the OPA, ZBA, and SPA were originally filed by the Applicant as an unregistered landowner as agent on behalf of the future owner of the lands. The Subject Property was subsequently acquired by Carlyle Young Maitland GP Inc. (“Carlyle GP”) on December 1, 2022, and Carlyle GP remains the registered owner of the Subject Property as of the date hereof. Accordingly, counsel for the Applicant requested that the Applicant be substituted as the Appellant in this matter by Carlyle GP. The request was unopposed.

4The Applicant submitted that the applicable legislative provisions relating to the addition or substitution of a Party are set forth in sections 17(44.1)-(44.2) and 34(24.1)-(24.2) of the Act and Rule 8.2 of the Ontario Land Tribunal Rules of Practice and Procedure (“OLT Rules”), each of which are reproduced below:

Restriction re adding parties

17 (44.1) Despite subsection (44), in the case of an appeal under subsection (24) or (36), only the following may be added as parties:

1. A person or public body who satisfies one of the conditions set out in subsection (44.2).

2. The Minister.

3. The appropriate approval authority. 2006, c. 23, s. 9 (7).

Same

(44.2) The conditions mentioned in paragraph 1 of subsection (44.1) are:

1. Before the plan was adopted, the person or public body made oral submissions at a public meeting or written submissions to the council.

2. The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party. 2006, c. 23, s. 9 (7); 2017, c. 23, Sched. 5, s. 80

Restriction re adding parties

34 (24.1) Despite subsection (24), in the case of an appeal under subsection (11) that relates to all or part of an application for an amendment to a by-law that is refused, or in the case of an appeal under subsection (19), only the following may be added as parties:

1. A person or public body who satisfies one of the conditions set out in subsection (24.2).

2. The Minister. 2006, c. 23, s. 15 (12).

Same

(24.2) The conditions mentioned in paragraph 1 of subsection (24.1) are:

1. Before the by-law was passed, the person or public body made oral submissions at a public meeting or written submissions to the council.

2. The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party. 2006, c. 23, s. 15 (12); 2017, c. 23, Sched. 5, s. 80.

Rule 8.2 Power of Tribunal to Add or Substitute Parties

The Tribunal may add or substitute a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their interest may be transferred or transmitted to another party to be added or substituted provided their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.

5The Tribunal disagrees that sections 17(44.1)-(44.2) and 34(24.1)-(24.2) of the Act are applicable to these proceedings. Sections 17(44.1)-(44.2) are applicable only to an appeal under sections 17(24) or 17(36) of the Act, while these Appeals have been brought under sections 22(7) and 34(11) of the Act. Furthermore, sections 34(24.1)-(24.2) are applicable only to an appeal under subsection 34(11) “that relates to all or part of an application for an amendment to a by-law that is refused…”, however, the ZBA was not refused, and instead, the Appeals are based upon the failure of the City to make a decision within the requisite 90 day time period set forth in section 34(11) of the Act.

6However, the Tribunal accepts the Applicant’s submissions that it was acting as agent on behalf of Carlyle GP as the future owner of the Subject Property in connection with the OPA, ZBA, and SPA, and that the requested substitution is essentially clerical in nature. Further, pursuant to Rule 8.2 of the OLT Rules, the Tribunal finds that the substitution of the Applicant by Carlyle GP as the Appellant in this matter is necessary to enable the Tribunal to adjudicate effectively and completely given that Carlyle GP is the registered owner of the Subject Property.

SUBSTITUTION OF GREENROCK

7The first CMC in respect of this matter took place on August 10, 2023, at which, amongst other matters, Greenrock Investment Limited and The Second Greenrock Corporation (collectively, “Greenrock”) were granted Party status as a single entity. At the time, Greenrock was the owner of 55 Maitland Street and 40 and 50 Alexander Street, in the City of Toronto (“OEF Lands”), which are the adjacent lands located to the east of the Subject Property.

8On September 5, 2024, Greenrock sold the OEF Lands to OEF Village Green Nominee Inc. (“OEF”).

9As a result of the sale of the OEF Lands to OEF, counsel for OEF and Greenrock requested that Greenrock be substituted as a Party to these proceedings by OEF due to the fact that OEF was effectively “stepping into the shoes” of Greenrock in respect of the Appeals. The Applicant originally opposed this proposed substitution, in part on the basis that OEF has raised additional issues unrelated to the planning matters currently before the Tribunal (“Additional Issues”), which would expand the scope of the proceedings. OEF disputed that the scope of the proceedings would be expanded.

10Following further discussions between OEF and the Applicant in advance of the CMC, they agreed that: (i) Greenrock may be substituted as a Party to these proceedings by OEF; and (ii) while the Additional Issues remained live, they shall not be addressed in, or have any effect on, the proceedings currently before the Tribunal (which position, OEF noted, was without prejudice to any other proceedings or remedies which it may pursue with respect to the Additional Issues). The City did not take a position with respect to the matter but confirmed it had no objection to the proposed substitution.

11As noted above, sections 17(44.1)-(44.2) and 34(24.1)-(24.2) of the Act are inapplicable to these proceedings. However, pursuant to Rule 8.2 of the OLT Rules, the Tribunal finds that the substitution of Greenrock by OEF as Party in this matter is necessary to enable the Tribunal to adjudicate effectively and completely given that OEF is now the registered owner of the OEF Lands.

AMENDED SETTLEMENT HEARING

12The Applicant provided an update to the Tribunal that it had filed a With Prejudice offer with the City to settle the Appeals (“Settlement Offer”). City Council accepted the Settlement Offer on October 9, 2024 and authorized the City Solicitor to attend the Tribunal hearing in support of the Settlement Offer and accompanying revised plans. OEF also agreed that it was in agreement with the Settlement Offer.

13A settlement hearing date of January 20, 2025 had previously been set by the Tribunal with respect to this matter, however, given the current status and desire to conclude the Appeals as soon as possible, the Parties requested an accelerated date for the final hearing to approve the Settlement Offer. In order to facilitate an accelerated hearing date, the Parties each agreed that they were amenable to a written hearing.

14After further discussion, the Tribunal cancelled the original hearing date of January 20, 2025 and scheduled a written hearing in respect of this matter for Thursday, December 5, 2024. As the Hearing will be for the purpose of considering the Settlement Offer, no procedural order is required.

ORDER

15The Tribunal orders that Carlyle Investments Inc. be substituted as the Appellant in these proceedings by Carlyle Young Maitland GP Inc.

16THE TRIBUNAL FURTHER ORDERS that Greenrock Investment Limited and The Second Greenrock Corporation be substituted as Party in these proceedings by OEF Village Green Nominee Inc.

17THE TRIBUNAL FURTHER ORDERS that the hearing in respect of this matter, which was previously scheduled for January 20, 2025, be cancelled, and that a written hearing will be held on Thursday, December 5, 2024 commencing at 10 a.m.

18THE TRIBUNAL FURTHER ORDERS that the final Settlement Offer in respect of this matter be submitted to the Tribunal by Wednesday, December 4, 2024.

19There will be no further notice.

20This Member is not seized.

“Jennifer Campbell”

JENNIFER CAMPBELL
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.