630 The East Mall Inc. v. Toronto (City), 2024 CanLII 30613

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 02, 2024

CASE NO(S).: OLT-23-001259

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 630 The East Mall Inc.

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

Description: To permit a residential development, containing one tall building with two 24-storey towers and one 10-storey mid-rise building

Reference Number: 22 207881 WET 02 OZ

Property Address: 630 The East Mall

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-23-001259

OLT Lead Case No.: OLT-23-001259

OLT Case Name: 630 The East Mall Inc. v. Toronto (City)

Heard: March 20, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

City of Toronto

Nathan Muscat

Jamie Dexter

630 The East Mall Inc.

Barry Horosko

MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST ON MARCH 20, 2024 AND ORDER OF THE TRIBUNAL

1The Tribunal convened a first Case Management Conference (“CMC”) for the above noted matter. 630 The East Mall Inc. (“East Mall”) has appealed against the City of Toronto (“City”) for failing to make a decision within statutory timeframes for a Zoning By-law Amendment (“ZBA”) pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”).

2The property is municipally known as 630 The East Mall and is located on the west side of The East Mall, approximately 270 metres (“m”) northwest of the intersection of The East Mall and Rathburn Road (“Subject Lands”). The Subject Lands are approximately 0.81 hectares (“ha”) in size and occupy approximately 135 m of frontage along The East Mall, with a depth of approximately 90 m. The Subject Lands contain a low-rise building and an electric vehicle charging station.

3The Subject Lands are located in the West Deane Neighbourhood, which is bounded by Rathburn Road to the south, Martin Grove Road to the east, Highway 401 and Eglinton Avenue West to the north, and Highway 427 to the west.

4The Subject Lands are designated Apartment Neighbourhoods as identified on in the City Official Plan (“TOP”). Apartment Neighbourhoods are made up of apartment buildings and parks, local institutions, cultural and recreational facilities, and small-scale retail, service, and office uses that serve the needs of area residents.

5The proposed ZBA seeks to amend the City’s Comprehensive Zoning By-law 569-2013 (“ZBL”). The ZBA is required to rezone the Subject Lands from the Commercial Local (CL 0.4 (x271)) Zone to a Site Specific Residential Apartment (RA (f164.0; d6.7)) (XXXX) Zone. The ZBA will allow for residential apartment use, which the Commercial Local (CL 0.4 (x271)) Zone does not permit. The ZBA will provide site-specific exceptions for maximum building height, maximum lot coverage, minimum setbacks, minimum landscaped open space, and minimum parking requirements.

6The proposal under appeal is to redevelop the Subject Lands with one residential building consisting of two 24-storey towers, and one residential 12-storey mid-rise building, containing a total of 839 apartment units, ranging from one-bedroom to three-bedroom units. The total gross floor area (“GFA”) proposed is 53,356.80 square metres (“m²”) and an amenity space of 1,749.2 m² indoors and 1,660 m² outdoors. A total of 532 vehicular parking spaces (485 resident parking spaces and 47 visitor parking spaces), and 652 bicycle parking spaces (80 short-term spaces and 572 long-term spaces) are proposed. The proposal is phased to proceed with the two 24-storey towers as Phase 1 and the 12-storey mid-rise as Phase 2.

7The Affidavit of Service sworn on February 16, 2024 meets the requirements of the Tribunal and was marked as Exhibit 1. No further notice will be required for the appeals.

8There was one Party status request from Mr. Peter Turano, an adjacent landowner to the Subject Lands, received by the Tribunal and the Parties on March 19, 2024. Mr. Turano had been unable to respond prior to this date as he was out of the country.

9The Tribunal recognized that Mr. Turano, as a self-represented person, may not be familiar with the procedures of the Tribunal. To assist Mr. Turano, the Tribunal reviewed Rule 8 of the Tribunal’s Rules of Practice and Procedure (“Rules”) regarding the roles and obligations of a party. The Tribunal explained the difference between a party and a participant.

10Mr. Turano is seeking Party status as he is interested in keeping the current ZBL to remain in effect. He advised that he is a long-term resident of the community and that the current zoning was established to promote a pedestrian friendly neighbourhood. He also expressed concerns related to increased carbon dioxide emissions per year and environmental impacts on West Deane Park, the Mimico Creek ravine, and wildlife.

11The Tribunal asked Mr. Turano if he intended to seek legal counsel and expert witnesses to address his concerns. Mr. Turano advised that he will not be seeking legal counsel and was looking at conducting his own research and consult with experts in the field.

12The Tribunal advised Mr. Turano that Tribunal decisions are based on objective evidence provided by expert witnesses, reports or studies that can be tested.

13The Tribunal asked the Parties for submissions of Mr. Turano’s request for Party status. The City advised of no objections to the request, submitting that it is beneficial for the Tribunal to hear an area resident’s perspective. The Tribunal notes that only one resident, Mr. Turano is seeking Party status, and that he does not represent anyone else.

14Counsel for East Mall opposed the request primarily due to the scope of the environmental issue(s) and lack of clarity on the calling of expert witnesses. Counsel submitted that the environmental issues could affect the number of anticipated days for a merit hearing and that without a scoping of the issues, this could be prejudicial to his client. Counsel also submitted that it is not satisfactory for a Party to merely ask questions and that a proper case is needed to be presented with expert witnesses that can be subject to cross-examination. Counsel stated no objections in granting Mr. Turano Participant status.

15Counsel for East Mall submitted that the Counsel for the City had not yet received direction from City Council on the appeal and that would occur in the latter part of April 2024. Counsel for the City acknowledged that the application was still required to go to the Community Council in early April 2024, with recommendations forwarded to City Council for consideration later in April 2024.

16Counsel for East Mall advised whether a second CMC could be scheduled shortly after these recommendations were forwarded to City Council, where a decision on Mr. Turano’s Party status request could be reserved until that time.

17Counsel for East Mall advised that there have been without prejudice discussions between the Parties in the development of an Issues List (“IL”) to be incorporated into a Procedural Order (“PO”). Counsel for the Parties advised the Tribunal they could work with Mr. Turano in the interim, prior to a second CMC, to scope the IL.

18Upon considering the above submissions, the Tribunal is persuaded to defer Mr. Turano’s Party status request until the next CMC.

19The Tribunal acknowledges that Mr. Turano may have legitimate planning issues that require adjudication; however, his lack of understanding of his role and obligations as a party, and inability to scope his concerns in his request were impacted by his absence from the country.

20The Tribunal acknowledges that while area residents’ distinct perspectives will often provide positive contributions to the fair and just resolution of a given matter, it is also acknowledged that adding parties will almost always add time, costs, and otherwise, lengthen proceedings. As a result, when considering a request for Party status, the Tribunal must balance the expected positive contributions of a proposed party (i.e., that which comes from a distinct perspective) with the expected negative consequences associated with decreased efficiency (i.e., added time and costs).

21Due to the lack of direction on the appeal from City Council and lack of a PO and IL, a second CMC is warranted and will be scheduled. Since there will likely be continued without prejudice discussions, there is an opportunity for Mr. Turano to reach out to both Counsels to assist in his refining of his concerns, which both Counsels have consented to do.

22Prior to the next CMC, if Mr. Turano is still seeking Party status, it is an expectation that he will obtain clarity on the Rules and the duties and obligations of a party. He will be required to articulate and scope his land-use planning issues and present a case plan on how he will provide objective evidence to support his position with expert witnesses.

23The Tribunal grants Participant status to Mr. Turano as his involvement as a Participant will not measurably affect the efficiency of the proceedings, and the concerns regarding his Party status request do not apply because, as a Participant, Mr. Turano cannot call any witnesses. Furthermore, as an area resident, the Tribunal finds that Mr. Turano has a genuine interest in the matter and deserves the opportunity to express his concerns, in writing, even if his Party status request is not granted at the next CMC.

24One request for Participant status was received by Barry Bruce. There were no objections from the Parties to the request for Participant status.

25The Tribunal finds that the request from Mr. Bruce is reasonable and appropriate since he is an area resident, has a genuine interest in the matter, and deserves the opportunity to express his concerns, in writing. Accordingly, Participant status is granted to Barry Bruce for the appeal.

26The Tribunal explored the possibility of mediation and settlement with the Parties. The Parties are of the opinion it is premature to request such mediation but that this may be a path for this matter and understand that they may request this mediation at their convenience. The Parties have met to discuss the appeals, confidentially and off the record. The Parties will continue their private discussions in an attempt to reduce, eliminate and/or scope issues.

27As previously identified, the Tribunal was advised that counsel for the City has not yet had an opportunity to seek instructions from City Council. On consent, the Parties have agreed to finalize an IL for inclusion in a draft PO to be considered by the Tribunal at the next CMC.

28Counsel for East Mall requested that a hearing date be set later this year, for five days. Counsel for the City could not consent to setting a hearing date until City Council instructions are received. The Tribunal was not inclined to set a merit hearing date until a draft PO and IL were submitted for consideration by the Tribunal and Mr. Turano’s Party status request was determined by the Tribunal.

29Based on the foregoing, a second CMC has been scheduled to commence at 10 a.m. on Wednesday, May 8, 2024.

30The CMC is scheduled to proceed by Video Hearing as follows:

GoTo Meeting: https://global.gotomeeting.com/join/719383509

Access Code: 719-383-509

31Parties and Participants are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections.

32Parties 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

33Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted above.

34Individuals 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 Video Hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the Hearing may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

35THE TRIBUNAL ORDERS the directions contained in this Decision.

36The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“W. Daniel Best”

W. DANIEL BEST

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.