Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 11, 2024
CASE NO(S).: OLT-23-000964
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: 17 Elm GP Inc.
Subject: Zoning By-law Amendment Application – failure to make a decision
Description: To permit the development of a 30-storey mixed use building consisting of 216 dwelling units
Reference Number: 22 202864 STE 11 OZ
Property Address: 15-17 Elm Street
Municipality: City of Toronto
OLT Case No.: OLT-23-000964
OLT Lead Case No.: OLT-23-000964
OLT Case Name: 17 Elm GP Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto, 2006, S.O. 2006, c. 11, Sched. A, as amended
Applicant/Appellant: 17 Elm GP Inc.
Subject: City of Toronto Site Plan Approval
Description: To permit the development of a 30-storey mixed use building consisting of 216 dwelling units
Reference Number: 22 202863 STE 11 SA
Property Address: 15-17 Elm Street
Municipality: City of Toronto
OLT Case No.: OLT-23-000968
OLT Lead Case No.: OLT-23-000964
Heard: January 26, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
17 Elm GP Inc.
Matthew Lakatos-Hayward
David Bronskill (in absentia)
Rodney Gill (in absentia)
City of Toronto
Michael Mahoney
Toronto Community Housing Corporation
Jennifer Evola
Signe Leisk (in absentia)
Westerkirk Capital Inc.
Stephanie Brazzell
Andrew Jeanrie (in absentia)
Hospital for Sick Children
Brett Davis
Isaac Tang (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON JANUARY 26, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the first Case Management Conference (“CMC”) before the Tribunal with respect to appeals under section 34(11) of the Planning Act and s. 114(15) of the City of Toronto Act, 2006, by 17 Elm GP Inc. (“Applicant”) resulting from the failure of the City of Toronto (“City”) to make a decision within the statutory timeframes on applications for a Zoning By-Law Amendment and a Site Plan Approval (“Applications”) with respect to lands located at 15-17 Elm Street in the City (“Subject Site”).
2The purpose of the Applications is to facilitate the development of a 32-storey mixed-used building.
3Additionally, City Council passed Designation By-law 742-2023 on July 19 and 20, 2023 with respect to the property at 15 Elm Street, designating it as a property of cultural heritage value or interest. The Applicant is appealing this designation pursuant to section 29(11) of the Ontario Heritage Act (“OHA Appeal”), and this appeal is before the Tribunal under file number OLT-23-000881. The Parties agreed that the appeal with respect to the Applications should proceed separately from the OHA Appeal, as the issues do not overlap. The Tribunal agreed with the submissions made by Counsel, and these matters are being treated separately by the Tribunal.
4At the CMC, the Tribunal canvassed Counsel who confirmed that there was no issue with the service of the Notice of CMC. The Tribunal is in receipt of the Affidavit of Service, sworn by Linda Roberts on December 27, 2023, which was marked as Exhibit 1, and confirms that Notice was adequately provided. As such, no further notice is required.
PARTY / PARTICIPANT STATUS REQUESTS
5The Tribunal was tasked with adjudicating a number of requests for Party status, as follows:
a. Toronto Community Housing Corporation (“TCHC”), who owns 25 Elm Street (“TCHC Lands”), located west of and adjacent to the Subject Site. TCHC has an interest in ensuring that the development facilitated by the Applications does not negatively impact the existing and planned context of the development block, and the future redevelopment potential of the TCHC Lands.
b. Westerkirk Capital Inc., who owns 18 Elm Street, the property directly north of the Subject Site, and is impacted by any redevelopment that is being considered for the Subject Site. Moreover, it has submitted a redevelopment application for its own property which may be impacted by the Applications.
c. The Hospital for Sick Children: The development facilitated by the Applications is within the flight path of the hospital’s heliports, and the Hospital’s interest in this matter is to ensure that the flight path remains accessible despite the proposed development.
6Upon hearing submissions from Counsel, and receiving no objection from the other Parties, the Tribunal granted Party status to those seeking status, as they had an interest in the matter, met the “obvious factor” requirements for being a Party in the proceeding, and will assist the Tribunal in adjudicating the issues effectively.
7The Tribunal received a Party status request from TSCC2920, whose members collectively raised concerns with the Applications, mainly relating to privacy, lighting, and the design aspects of the changes made to the Applications. The Tribunal provided the representative of TSCC2920, Mr. Willow Cheng, with a fulsome explanation of the differences between a Party and Participant, after which Mr. Cheng advised that TSCC2920 would revise its status request to a Participant status request instead. The Parties did not object to TSCC2920’s Participant status request. The Tribunal found that TSCC2920 had an interest in the matter and will assist the Tribunal in understanding the potential impacts of the Applications on the local community. The Tribunal granted Participant status to TSCC2920.
DRAFT PROCEDURAL ORDER AND ISSUES LIST
8The Parties provided a draft Procedural Order (“PO”) prior to the CMC, but no Issues List (“IL”).
9The Tribunal explained that a Merit Hearing could not be scheduled without at least a draft IL or an understanding of the scope of issues to be addressed at a future Merit Hearing. The Counsels for the added Parties provided a summary overview of the type of issues that they may raise. The Applicant’s Counsel guided the Tribunal to a report prepared by the City’s Staff (“Staff Report”) pertaining to these Applications, which outlined the type of issues that the City had raised. The City’s Counsel explained that this Staff Report had yet to be adopted by City Council as it was to be considered at the Council Meeting scheduled for January 26, 2024. However, the City’s Counsel did confirm that the issues that would be identified on the IL may arise from this Staff Report and that the Tribunal could rely on it for the sole purpose of being able to schedule the Merit Hearing. The Tribunal acknowledged that the Staff Report had not been adopted by City Council, but it provided the Tribunal with an understanding of the type of pertinent issues that may be raised at a future Merit Hearing, and allowed the Tribunal to proceed with scheduling a Merit Hearing despite the lack of an IL.
10The Applicant’s Counsel undertook to revise and re-submit the PO and to provide an IL on or before Monday, February 26, 2024 for the Tribunal’s approval. Moreover, the Parties were directed to update the Tribunal as soon as possible, and by Monday, February 26, 2024, based on their discussions regarding the IL, as to whether the number of estimated dates for the Merit Hearing is accurate.
11To date, the Parties have failed to produce the PO / IL, despite the Tribunal’s inquiries regarding its status. The Parties are directed to provide the final PO / IL at their earliest convenience and by no later than Tuesday, April 30, 2024, at 12 p.m.
MEDIATION AND SETTLEMENT
12The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties were directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Merit Hearing, and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.
HEARING
13The Parties requested that, based on the draft PO they had provided and the submissions regarding the IL they had made at the CMC, a Merit Hearing for this matter be scheduled. Given the number of Parties, potential issues, and potential witnesses, the Tribunal agreed that a 10 day Merit Hearing was sufficient.
14Accordingly, a Video Hearing will commence at 10 a.m. on Monday, January 13, 2025 until Friday, January 24, 2025 for 10 days, at the following coordinates:
GoTo Meeting: https://global.gotomeeting.com/join/709076365
Access code: 709-076-365
15On those dates, the Parties and Participant are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections. The Parties and Participant 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
16Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into 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 at paragraph [14] of this Decision.
17Individuals 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 event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
18THE TRIBUNAL ORDERS as follows:
a. The following are now a Party to these proceedings:
i. Toronto Community Housing Corporation;
ii. Westerkirk Capital Inc.; and
iii. The Hospital for Sick Children.
b. TSCC2920 is now a Participant to these proceedings.
c. The Procedural Order and Issues List are to be provided to the Tribunal by no later than Tuesday, April 30, 2024.
d. The Merit Hearing in this matter will commence on Monday, January 13, 2025 at 10 a.m., by Video Hearing, and 10 days have been set aside.
19There will be no further notice.
20The Member is not seized, but may be available for case management, should procedural issues arise and scheduling permit.
“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.