Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
November 25, 2024
CASE NO(S).:
OLT-24-000808
OLT-23-000996
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Toronto (Bayview Car Wash) LP
Subject:
Request to amend the Official Plan – Refusal of request
Description:
To permit the development of a 46-storey mixed use building
Reference Number:
24 120678 NNY 15 OZ
Property Address:
1802 Bayview Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-24-000808
OLT Lead Case No.:
OLT-24-000808
OLT Case Name:
Toronto (Bayview Car Wash) LP v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Toronto (Bayview Car Wash) LP
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit the development of a 46-storey mixed use building with retail at ground level and 419 residential units
Reference Number:
23 163199 NNY 15 OZ
Property Address:
1802 Bayview Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-23-000996
OLT Lead Case No.:
OLT-23-000996
OLT Case Name:
Toronto (Bayview Car Wash) LP v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11 Sched A.
Applicant/Appellant:
Toronto (Bayview Car Wash) LP
Subject:
City of Toronto Site Plan Approval
Description:
To permit the development of a 46-storey mixed use building with retail at ground level and 419 residential units
Reference Number:
23 163207 NNY 15 SA
Property Address:
1802 Bayview Avenue
Municipality/UT:
Toronto/Toronto
OLT Case No.:
OLT-23-000997
OLT Lead Case No.:
OLT-23-000996
Heard:
October 16, 2024 by video hearing
APPEARANCES:
Parties
Counsel
Toronto (Bayview Car Wash) LP
Michael Foderick
Daniel Angelucci
City of Toronto
Jessica Braun
Michelle LaFortune
Metro Ontario Real Estate Limited
Leah Cummings
Conner Harris (in absentia)
Broadway Area Residents
Marc Kemerer
Association
MEMORANDUM OF ORAL DECISION DELIVERED BY C. I. MOLINARI ON october 16, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened a first Case Management Conference (“CMC”) in respect of an appeal filed pursuant to s. 22(7) of the Planning Act (“Act”) by Toronto (Bayview Car Wash) LP (“Appellant”) against the City of Toronto (“City”) for its refusal of an Official Plan Amendment (“OPA”) application for the property known municipally as 1802 Bayview Avenue(“Property”).
2The OPA appeal is related to previous appeals filed against Zoning By-law Amendment (“ZBA”) and Site Plan Approval (“SPA”) applications pursuant to s. 34(11) of the Act and s. 114(15) of the City of Toronto Act, 2006 respectively, under Tribunal file number OLT-23-000996.
3Two CMCs have been held related to the ZBA and SPA appeals under Tribunal file number OLT-23-000996, and the current CMC was scheduled for the Tribunal to consider a consolidation request of the appeal of the OPA application with the appeals of the ZBA and SPA applications (altogether “Applications”).
4Parties to the ZBA appeal are the Appellant, the City, Broadway Area Residents Association (“BARA”), and Metro Ontario Real Estate Limited (“Metro”).
5Parties to the SPA appeal are limited to the statutory Parties, being the Appellant and the City.
6Participants to the ZBA appeal are Leaside Residents Association (“LRA”), South Eglinton Davisville Residents Association (“SEDRA”), Toronto Standard Condo Corporation 1542, Laurie Sims, Sarah Coombs, and Mary Lou Wojick.
7A merit hearing for the ZBA and SPA appeals was previously scheduled for 10 days, commencing on Monday, December 2, 2024.
NOTICE
8An Affidavit of Service, sworn on October 8, 2024, attesting to the giving of notice for this proceeding, was marked as Exhibit 1. There were no concerns raised regarding the notice, but as addressed below in paragraph [23], the service of notice became a potential issue after the CMC, and as such, no further notice is required for the OPA application as appealed, but the OPA application as expanded and the notice requirements thereof are not yet determined.
PARTY AND PARTICIPANT STATUS REQUESTS
9The Tribunal was in receipt of a request for Party status from Metro for the OPA appeal. The Tribunal granted Party status to Metro, as it is currently a Party to the ZBA appeal, and the other Parties consented to the request.
10The Tribunal was in receipt of a request for Participant status from EL Terra Glenavy LP (“EL Terra”), being the owner of 17 to 29 Glenavy Avenue. The Participant status request cited no concerns, but Counsel for EL Terra noted that it had recently submitted OPA and ZBA applications for its properties and wants to monitor the current proceedings, make submissions to the Tribunal, if required, and participate in any mediation that may occur regarding potential revisions to the Applications. There were no objections to the request.
11The Tribunal granted EL Terra Participant status as, being a neighbouring landowner, it has a particular interest in the appeals and could aid the Tribunal in making its decision.
12No further requests for Party or Participant status were received during the CMC.
CONSOLIDATION REQUEST
13The Appellant requested the Tribunal to consolidate the OPA appeal with the ZBA and SPA appeals under Tribunal file number OLT-23-000996, in accordance with Rule 16 of the Ontario Land Tribunal Rules of Practice and Procedure (“OLT Rules”).
14There were no objections to the consolidation request. Given that the OPA appeal is directly related to the ZBA and SPA appeals, the Tribunal finds it appropriate for the OPA and ZBA appeals to be consolidated, and the SPA appeal to be heard together with the OPA and ZBA appeals. The Parties to the SPA appeal are limited to the Appellant and the City.
15Rule 16.2 of the OLT Rules provides that, on consolidation, the statutory procedural requirements for each proceeding apply, where appropriate, to the consolidated proceeding, Parties to each proceeding are Parties to the consolidated proceeding, and evidence to be presented in each proceeding is evidence in the consolidated proceeding. By extension, Participants of each proceeding are also Participants to the consolidated proceeding.
16Rule 16.3 of the OLT Rules provides that, for proceedings heard together, the statutory requirements for each proceeding apply only to that particular proceeding and not to the others. Parties to the hearing are Parties to their individual proceedings only and not Parties to the other proceedings and, unless otherwise ordered by the Tribunal, evidence in the hearing is evidence in each proceeding to which it applies.
STATUS OF THE OPA APPEAL AS EXPANDED
17It was brought to the Tribunal’s attention by Counsel for the Appellant that the lands subject to the OPA application had been expanded post-appeal (“Expandesd OPA”) to include 590 to 592 Roehampton and 7 to 15 Glenavy Avenue, and that notice for this CMC had also been expanded to include 10 additional properties in this regard. There were no issues raised in this respect from the other Parties, including the City. Counsel for the Appellant contended that the expansion was intended to assist in the transition of the development by expanding the ‘Mixed Use Areas’ designation, and that there is no development planned for the Expanded OPA lands.
POST-CMC STATUS OF EXPANDED OPA
18After the CMC, it was determined by the Tribunal that the Expanded OPA includes lands that were not the subject of the municipal decision or the notice of appeal. It was therefore uncertain whether the Expanded OPA met the requirements of s. 17(50.1) of the Act, which expressly “does not give the Tribunal power to approve or modify any part of the plan [or OPA as under s. 22(11) of the Act] that, (a) is in effect; and (b) was not added, amended, or revoked by the plan to which the notice of appeal relates”.
19The Tribunal has no authority to create an appeal and, as such, the legitimacy of the Expanded OPA as part of the OPA appeal before the Tribunal requires determination before it can form part of the merit hearing. The Appellant has the option to move forward with the OPA as appealed with respect to the Property itself at the scheduled merit hearing, but a motion hearing is required for determination of the status of the Expanded OPA.
Notice of Motion Hearing
20Given this emerging issue, and pursuant to Rule 10.11 of the OLT Rules, the Tribunal gave notice to the Parties via email on Wednesday, October 30, 2024, directing a motion hearing be held to determine the Tribunal's jurisdiction to hear an appeal of the Expanded OPA as currently before it, or whether a new OPA application addressing the area subject to the Expanded OPA is required to be filed with the City. The Tribunal directed the Parties to provide their respective positions as to whether the motion should be heard in writing, and in accordance with Rule 10.3 of the OLT Rules, by no later than end of day, Wednesday, November 6, 2024.
21The Appellant and the City responded with arguments as to whether a motion is necessary, rather than on their positions on the motion to be heard in writing. It is noted that BARA agrees with the submissions made by the City and Metro takes no position on the matter.
22As the Tribunal has initiated a motion to inquire into the matter, the necessity of the motion hearing is not up for debate.
Potential Notice Deficiency
23Further, there is a potential deficiency with respect to notice, as the Expanded OPA includes lands that were not contemplated by the municipality, not addressed in the public meeting, and not referenced in the notice of appeal, other than in the Explanatory Note on pages 38 and 39 of 70. The Parties were instructed that the issue of notice should also be addressed by the Parties at the motion hearing.
Potential Need for Adjournment of Merit Hearing
24The Tribunal directed the Parties to provide their respective positions on an adjournment of the merit hearing by no later than end of day, Wednesday, November 6, 2024. The Appellant submitted that it would lead to significant delay and unnecessary expense to all Parties and the Tribunal. The City submitted that it will be prejudiced if it must prepare for both a motion and merit hearing.
25The Tribunal requires determination of the status of the Expanded OPA through a motion hearing prior to the consideration of the appeals, and now holds that a motion by video hearing is the preferred format to consider the submissions by the Parties. As such, the Tribunal directs the motion hearing to be held on the first day of the merit hearing, as scheduled, providing for the Parties to make submissions on the Expanded OPA and the potential adjournment of the merit hearing.
SUMMARY ISSUES LIST
26At the first CMC for Tribunal file number OLT-23-000996, the Tribunal directed the representatives of LRA, SEDRA and BARA to submit a summary issues list. As a Party, BARAs issues are included in the Procedural Order (“PO”), but the Tribunal is not in receipt of such a list from LRA or SEDRA.
27Mr. Kettel, representing LRA, indicated that he has collaborated with SEDRA, who was not present at the CMC. They are both in agreement with BARAs issues in the PO and advised that there is therefore no need for them to submit a summary issues list.
28Subsequent to the CMC, the Tribunal received a revised Participant statement from LRA.
29The Tribunal found that the submission of a summary issues list is not required from either LRA or SEDRA in addition to their Participant statement.
PROCEDURAL ORDER
30A final PO was previously approved by the Tribunal at the second CMC for Tribunal file number OLT-23-000996. The Parties submitted an updated PO in advance of the current CMC to include the OPA appeal, and to update the Issues List (“IL”) to address both the OPA appeal and the Provincial Planning Statement, 2024 (“PPS”).
31BARA indicated that they would adopt the City’s IL in addition to BARA’s issue #30. BARA noted that there was no need to further update the IL to explicitly reference adopting the City’s issues as their own. Both BARA and Metro confirmed that they are satisfied with the updated PO and IL.
32The updated PO was reviewed and approved by the Tribunal to replace the previously approved PO.
33After the CMC, the Parties resubmitted the updated PO with minor edits to include EL Terra as a Participant. The Tribunal subsequently approved the resubmitted PO, appended as Schedule 1.
34It is noted that the resubmitted PO may require further amendments, contingent on the determination of the status of the Expanded OPA at the motion hearing.
MEDIATION
35The Tribunal reminded the Parties of the option of Tribunal-led mediation and to contact the Case Coordinator to determine next steps if the need for mediation arises.
MERIT HEARING
36The Tribunal advised the Parties to ensure that s. 2 of the Act, the PPS, and the Participants concerns are addressed in the witness statements for the merit hearing, and that the coordinates and access code for the merit hearing are as listed in the Decision issued on Monday, May 6, 2024 for Tribunal file number OLT-23-000996.
ORDER
37THE TRIBUNAL ORDERS that:
i. the Official Plan Amendment and Zoning By-law Amendment appeals under Tribunal file numbers OLT-24-000808 and OLT-23-000996 are consolidated;
ii. the Site Plan Approval appeal under Tribunal file number OLT-23-000996 is to be heard together with the Official Plan Amendment and Zoning By-law Amendment appeals;
iii. Toronto (Bayview Car Wash) LP, the City of Toronto, Metro Ontario Real Estate Limited, and Broadway Area Residents Association are Parties to the consolidated proceedings;
iv. Toronto (Bayview Car Wash) LP and the City of Toronto are Parties to the proceedings with respect to the Site Plan Approval appeal;
v. Leaside Residents Association, South Eglinton Davisville Residents Association, Toronto Standard Condo Corporation 1542, Laurie Sims, Sarah Coombs, Mary Lou Wojick, and EL Terra Glenavy LP are Participants to the consolidated proceedings;
vi. a motion hearing be held on the first day of the merit hearing scheduled to commence on Monday, December 2, 2024; and
vii. the merit hearing is governed by the Procedural Order, appended as Schedule 1.
38No further notice is required for the OPA application as appealed. Notice of the Expanded OPA is to be addressed at the motion hearing.
39The Member is seized of the motion hearing and the merit hearing.
“C. I. Molinari”
C. I. MOLINARI
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.
SCHEDULE 1