Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
April 11, 2024
CASE NO(S).:
OLT-23-000881
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended
Appellant:
17 Elm GP Inc.
Subject:
Objection to Designation By-law 742-2023
Property Address:
15 Elm Street
Municipality/UT:
City of Toronto
OLT Case No.:
OLT-23-000881
OLT Lead Case No.:
OLT-23-000881
OLT Case Name:
17 Elm GP Inc. v. Toronto (City)
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
Jennifer Evola
Corporation
Signe Leisk (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 an appeal under section 29(11) of the Ontario Heritage Act (“OHA Appeal”) by 17 Elm GP Inc. (“Appellant”), who is appealing Designation By-law 742-2023, passed by the Council of the City of Toronto (“City”) on July 19 and 20, 2023. Designation By-law 742-2023 designates the lands, buildings, and structures known municipally as 15 Elm Street (“Subject Site”) as a property of cultural heritage value or interest.
2The Appellant has submitted other appeals pursuant to section 34(11) of the Planning Act and section 114(15) of the City of Toronto Act, 2006, which are currently before the Tribunal under file numbers OLT-23-000964 and OLT-23-000968 (“Zoning By-law Amendment and Site Plan Approval Appeals”). The Parties agreed that the Zoning By-law Amendment and Site Plan Approval Appeals 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.
3At 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
4The Tribunal was tasked with adjudicating a Party status request by Toronto Community Housing Corporation (“TCHC”), owners of 25 Elm Street (“TCHC Lands”), west of and adjacent to the Subject Property. TCHC has an interest in ensuring that the development that the Appellant is proposing for its lands, which includes the Subject Site, does not negatively impact the existing and planned context of the development block and the future re-development potential of the TCHC Lands. With respect to the heritage matter specifically, TCHC explained that, as the properties are adjacent to each other, this designation impacts TCHC’s development as well. The other Parties did not object to this request. The Tribunal found that TCHC had an interest in the matter and would assist the Tribunal in understanding the potential impacts of the Appellant’s proposed development on the local community, including the impact of the heritage designation. As such, the Tribunal granted TCHC Party status.
5The Tribunal received a Party Status request from TSCC2920, whose members collectively raised concerns with the Appellant’s development proposal in the Zoning By-law Amendment and Site Plan Approval Appeals. The concerns related mainly to privacy, lighting, and the design aspects of the changes made to the development application. Regarding the OHA Appeal specifically, the group wishes to protect the valuable heritage characteristics within the community specifically pertaining to the heritage designation of the Subject Site. 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 would assist the Tribunal in understanding the potential impact on the local community of this heritage designation. The Tribunal granted Participant status to TSCC2920.
DRAFT PROCEDURAL ORDER AND ISSUES LIST
6The Parties provided a draft Procedural Order (“PO”) and Issues List (“IL”) prior to the CMC for the Tribunal’s consideration and approval. The PO was accepted, with the sole direction that the timeline by which the Parties provide the Joint Document Book be increased from five days before the Merit Hearing to 10 days before.
7With respect to the IL, the Tribunal was advised that it was in draft form, and would be updated, especially as a new Party had been added at the CMC, whose issues were to be added to the IL. However, subsequent to the CMC, the Tribunal received a letter from TCHC’s Counsel, dated February 26, 2024, which stated the following:
This letter is to confirm that TCHC will not be adding issues to the Issues List for the Heritage Appeal, nor does it intend to file Witness Statements or expert reports in the Heritage Appeal. TCHC intends to maintain a watching brief over the Heritage Appeal in order to ensure its rights are not prejudiced as this matter proceeds through the Tribunal. TCHC reserves the right to respond to any witness statements or reports filed by others, including through filing reply witness statements and providing oral evidence, as necessary to protect its interests as provided in the Procedural Order.
8At the CMC, the Appellant undertook to revise and re-submit, on or before Monday, February 26, 2024, for the Tribunal’s approval, a revised PO and IL in accordance with the Tribunal’s directions and any agreement made amongst the Parties.
9To 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
10The Tribunal raised the possibility of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties advised that they were open to this. 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. 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
11The Parties requested that, based on the draft PO and IL they had provided, a Merit Hearing for this matter be scheduled. While TCHC’s issues were not on the IL, TCHC’s Counsel confirmed that TCHC’s involvement in the heritage matter was limited enough that it would not impact the length to be considered for the Merit Hearing. This was accepted. Given the number of potential issues and witnesses, the Tribunal agreed that a three (3) day Merit Hearing was sufficient.
12Accordingly, a Video Hearing will commence at 10 a.m. on Wednesday, June 26, 2024 until Friday, June 28, 2024 for three (3) days, at the following coordinates:
GoTo Meeting: https://global.gotomeeting.com/join/979388733
Access code: 979-388-733
13On 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.
14Persons 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 [12] of this Decision.
15Individuals 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
16THE TRIBUNAL ORDERS as follows:
a. Toronto Community Housing Corporation is now a Party to these proceedings.
b. TSCC2920 is now a Participant to these proceedings.
c. The Procedural Order and Issues List is to be provided to the Tribunal by no later than Tuesday, April 30, 2024.
d. The Merit Hearing will commence on Wednesday, June 26, 2024 at 10 a.m., by Video Hearing, and three (3) days have been set aside.
17There will be no further notice.
18The 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.