Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
February 27, 2024
CASE NO(S).:
OLT-23-000051
PROCEEDING COMMENCED UNDER section 6(2) of the Expropriations Act, R.S.O. 1990, c. E.26.
Claimant 1:
Laurie Price
Claimant 2:
Cecile Saccoia and Alex Pavone
Claimant 3:
Donna and Chris Krawczyk
Claimant 4:
Toronto Standard Condominium Corporation
Expropriating Authority:
City of Toronto
Property Address:
2662 Bloor Street West
Municipality:
City of Toronto
OLT Case No.:
OLT-23-000051
OLT Lead Case No.:
OLT-23-000051
OLT Case Name:
Price v. Toronto (City)
Heard:
September 25-29, 2023, by video hearing
APPEARANCES:
Parties
Counsel
City of Toronto
M. Piel
J. Amey
Toronto Condominium Corporation No. 1473
(“2662”)
F. Sperduti
M. Grant
Report of the Tribunal Delivered by D.S. Colbourne
1This is a Report to the Expropriating Authority, the City of Toronto, following requests, by some owners and the Toronto Condominium Corporation No. 1473 ("2662”), for a hearing on the taking of certain areas of the condominium’s property, municipally numbered 2662 Bloor St. W., on a fee simple basis and others as temporary easements for construction purposes, for the installation of elevators at the Old Mill Subway Station. The individual owners withdrew their requests prior to the hearing. Also involved in the project are lands to be taken similarly, some lands on a permanent basis and some lands on a temporary basis, from the adjacent property, municipally numbered 39 Old Mill Road (“39"). That property owner did not request a hearing and did not participate in this hearing.
22662 Bloor St. W. fronts on the north side of Bloor St. W., just west of the Humber River bridge, and extends to the intersection with Old Mill Trail. The property at 39 is set back from Old Mill Trail, to the north of the subway station, and its access road is north of the station.
3This inquiry was held, pursuant to section 7 of the Expropriations Act, RSO 1990. c. E.26 (‘the Act’), to determine whether the proposed Takings by the City of Toronto ("City”) are “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority”, the test, as the Act states, is whether they are “reasonably defensible” as the courts have interpreted this test.
4The Takings are for the purpose of improvements to the Old Mill Subway Station to improve customer safety and convenience by constructing two new elevators to provide passenger accessibility to below grade subway platforms. This is part of the Toronto Transit Commission’s ("TTC”) Easier Access Phase 111 Project ("Project”).
5Currently, the station is a stand alone building and is not universally accessible. The Project will allow and facilitate increased accessibility and barrier-free travel for TTC commuters and employees.
6These objectives are strongly supported by;
the TTC, in making transit seamless by providing system-wide accessibility; and
the City Official Plan policies that direct its transportation system be accessible and inclusive of the needs for people of all ages, abilities and means, by modifying stations and facilities to become accessible.
7Accessibility is also required by means of Accessibility for Ontarians with Disabilities Act, 2005, (“AODA”) and the Integrated Accessibility Standards Regulation under the AODA.
8The TTC Board approved the new 2019-2023 TTC Multi-year Accessibility Plan on May 8, 2019. This plan includes 52 initiatives to improve and expand the accessibility and availability of services and facilities over the following five years. This involves upgrading 21 subway stations with elevators.
9For the subject station, there will be two elevators, both to connect platform level to street level, one elevator for the west-bound platform and the other elevator for the east-bound platform.
10The fee simple taking will enable the TTC to construct, to permanently house and to maintain the surface portion of the elevator structures and access corridors. The temporary easements are required for construction purposes and to enable the TTC to enter, excavate and construct the various elements of the Project.
11The requestor, 2622, is not opposed to the overall purpose of the expropriation.
12The issue of concern, to the requestor, is construction access through the middle of its building, which is also its own main pedestrian and vehicle access, and its walkway, between its main building entrance on the east side of the building and the garage entrance on the west side of the building. It is also over the roof of its underground parking garage.
13The issue is the impact on vehicle and pedestrian traffic and overall general impact during construction. 2662’s garage roof load capacity is up to 37,200 kilograms ("kg”).
14To set the context, there will be two construction accesses.
15The one construction accesses in contention is through the middle of 2662, the other is the driveway for 39, which accesses from Old Mill Trail north of the station. The subway building also fronts onto Old Mill Trail. There are bus bays between Old Mill Trail and the station. There are two major bus routes using the bays from this station, both going west and south. The present building access driveways for 2662 and 39 meet behind the subway station.
16The 2662 access from Bloor St. W. is to handle the heavier construction vehicles. Its garage roof design load capacity is for vehicles up to 37,200 kg, and that is at a speed no greater than 15 kph. The 39 driveway also passes over its underground garage. Its roof has a lighter design load capacity for vehicles of up to 16,000 kg. All construction vehicles using both accesses are to be controlled by contractor’s flag men and TTC employees.
17From the written closing argument, on behalf of 2662:
The owner is opposed to the [temporary] taking of the Breezeway Easement for three primary reasons:
a. Continuous heavy vehicle traffic over the breezeway threatens the structural stability of the parking garage roof slab, on which the breezeway driveway sits;
b. Continuous heavy vehicle traffic through the breezeway poses significant risks to the Owner’s residents, their guests, and their service providers; and,
c. The proposed expropriation ignores a reasonable and preferable alternative to the use of the breezeway as a construction access as illustrated in Exhibit 5, which would allow the TTC to complete [sic] accomplish its objective without courting risk to the parking garage’s structural stability or to the safety of residents, [or] pedestrians users of the breezeway.
18The Tribunal was provided with opinion evidence with respect to the weight bearing ability of the 2662 garage roof, proposed to be the heavy construction vehicle access.
19The figures in kilograms and design load kilopascals did not differ between the parties, but the combination of factors involved in assuring the weight capacity due, to vehicle speed, the impact load, the ability to control traffic and the assurance of only one vehicle at a time on the breezeway, all gave rise to widely differing opinions on the ability to use that area for construction access and hence unimaginable problems as between the evidence of Mr. Nixon and Mr. Woit.
20The TTC proposal is to have contractor’s flagmen and TTC employees controlling construction traffic for both accesses. This, and other features, will be included in the site management agreements with the ultimate contractor, which obviously were not before the Tribunal, giving rise to more uncertainty for the requestors.
21The structural capabilities of the 2662 garage and its cracks and its replacement plug in the crane area produced different scenarios about the soundness of this 22 year old building, which, by the way, has been monitored over the years by some of the witnesses giving evidence on behalf of the 2662 Condo Board. Witnesses of the requestor were involved in the regular condition reports for the Condo Board. On this, the evidence of Mr. Nixon was “that he did not believe the cracking to be superficial, and that the cracking around the crane cut led him to question the quality of the repair that was completed.” and that the concealed conditions of the slab are often “orders of magnitude worse than the conditions seen on the visual inspection”. None of these issues were raised by the experts involved in 2662’s last condition report.
22He did admit that currently garbage trucks, which are at the high end of weight scale, are and have been using the breezeway regularly, without control or direction.
23As to the disruption and dirt for the residents, there is no doubt, given the size of the breezeway, that it will be present, and as to inconvenience, care would have to be taken by all traversing the area.
24The obvious alternative was the 39 driveway, but its weight capacity was determined to be too low over its garage roof for the heavy construction vehicles.
25On the issue of other alternatives Mr. Hamedi, on behalf of the TTC, gave viva voce evidence on an alternative access route for construction vehicles which he says they examined without making a formal report and or a comparison with the breezeway proposal.
26The alternative access route was to have the driveway to the north of the subway station involving more of the 39 lands, in the middle of the area between the station and 39’s road. It was rejected by the TTC for reasons of the base stability of any road constructed in that area, drainage issues, proximity to the garage roof of 39 and further significant impact on other 39 amenities. Depending upon where it accessed Old Mill Trail, there could be concern over its impact on the bus bays off Old Mill Trail.
27The alternative proposed by 2662 was to construct the road right against the north wall of the station, extending from the bus bay area of the station toward the north-east corner of the rear wall. Each of the elevators is proposed to be constructed at the rear wall on each side. This access suffers apparently from potential impact on the buses and the turning movements of construction vehicles accessing the road in the bus bay area. It also suffers from the fact that one of the current 2662 surface parking areas will be used for a lay by for construction materials.
28Concerns about this proposal, raised by the TTC, were the potential width of the road necessary to carry construction vehicles, its constructability (ground and base) and the fact that only one elevator could be constructed at a time, thereby doubling the construction time, and increasing impact and cost.
Findings and Conclusion:
29On the evidence the Tribunal is not convinced that the alternatives are satisfactory physically, they will provide different and increased impacts on the other property. The 2662 alternative doubles the construction time and cost and, given those factors, it was roundly rejected by the TTC.
30After considering all of the evidence and arguments, the Tribunal concludes that the proposal presented by the TTC meets the test in the Act and the summation of it as set out by the courts. The test in section 7 of the Act and the summation of it as set out by the courts is whether the proposed taking is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority.”
31Court decisions, such as Parkins v. the Queen in right of Ontario et al, 1978 CanLII 1254 (ON CA), determined that the test that the inquiry officer must apply can be expressed as whether the proposal is “‘reasonably defensible’ […] ‘in the achievement of the objectives of the […] authority”.
32For the reasons given above, the Tribunal finds that the Takings attached to the Notice of Grounds are reasonably defensible in the achievement of carrying out the accessibility of the TTC at this Old Mill Station.
“D.S. Colbourne”
D.S. COLBOURNE
VICE-CHAIR
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.