Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 18, 2024
CASE NO(S).: OLT-22-003830
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: CP REIT Ontario Properties Limited
Appellant: Danforth Euston Holdings Inc.
Appellant: Del Boca Vista Properties Inc.
Appellant: Maverick Development Corporation
Subject: Official Plan Amendment OPA 573
Reference Number: OPA 573
Property Address: (Danforth Avenue Study Area)
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-003830
OLT Lead Case No: OLT-22-003830
OLT Case Name: CP REIT Ontario Properties Limited et al. v Toronto (city)
PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Toronto
Request for: Request for Directions
Heard: March 15, 2024 in writing
APPEARANCES:
Parties
Counsel
City of Toronto
Mark Crawford
CP REIT Ontario Properties Limited
David Bronskill Zachary Fleisher
Danforth Euston Holdings Inc.
Michael Foderick
Del Boca Vista Properties Inc.
Jonathan Cheng
Maverick Development Corporation
Katarzyna Sliwa
DECISION DELIVERED BY jackie denyes and douglas s. colbourne ON march 15, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Motion comes before the Panel as a result of an appeal pursuant to s. 17(24) of the Planning Act, R.S.O. 1990, c.P.13 as amended (“Act”) filed against the City of Toronto (“City”) by four registered Appellants after the adoption by City Council of Official Plan Amendment No. 573 (“OPA 573”)
BACKGROUND
2The effect of OPA 573 establishes Site and Area Specific Official Plan No. 772 to provide planning policy and implement urban design guidelines for a portion of Danforth Avenue extending from the Don Valley Parkway in the west, to Coxwell Avenue, in the east.
3The Motion before the Panel is requesting an order to adjourn sine die, the OPA 573 appeal of Del Boca Vista Properties Inc. in accordance with the Proposed Terms of Adjournment set out in Exhibit “D” to the Affidavit of Helen Song sworn on January 11, 2024, and specifically outlined in paragraph [15] of this Order.
4The Tribunal held a second Case Management Conference (“CMC”) on August 8, 2023, and the City brought a Motion to Adjourn the appeal of CP REIT Properties Limited on consent on similar terms that are proposed for Del Boca Vista in this current Motion. The “CP REIT” Motion was granted by the Tribunal.
5On December 8, 2023, a third CMC was held, and the Panel removed the status of the four unrepresented Non-Appellant Parties at the request of Mr. Crawford, due to their unresponsiveness of this Tribunal process in accordance with Rules 15 and 19 of the Ontario Land Tribunal Act specifically:
201099 Ontario Inc. – 627-629 Danforth Avenue;
Cathy Tsialtas – 636-638 Danforth Avenue;
1079268 Ontario Inc. – 635 Danforth Avenue;
1258338 Ontario Inc. – 730 Danforth Avenue; and
85 Danforth Inc. (an added party) withdrew from the appeal
6A 10-day Merit Hearing is scheduled to commence on December 2, 2024. Further, the Del Boca Vista and CP REIT appeals will proceed as set out in their respective Proposed Terms of Adjournment.
7City Council at its meeting on December 13, 2023, accepted a settlement offer (“Settlement”) for the site-specific Zoning By-law Amendment appeal of Danforth Holdings Inc. for the property at 975 Danforth Avenue, who will be withdrawing their appeal of OPA 573 once the Tribunal approves the Settlement.
8The City has proposed that appeals that are scoped to Site-Specific and for which a complete application has been received prior to the date of this Motion, be adjourned sine die in accordance with the proposed terms to allow for the Site-Specific application processes to unfold.
9Del Boca Vista has consented to having its appeal adjourned in accordance with the Proposed Terms set out in this Motion.
EVIDENCE
10On this Motion, the Panel received as Exhibit One, the Affidavit of Helen Song, Community Planner for the City of Toronto, sworn on January 11, 2024 with its attached Exhibits as follows:
Exhibit “A” – Curriculum Vitae
Exhibit “B” – Executed Acknowledgement of Expert’s Duty
Exhibit “C” – OPA 573
Exhibit “D” – Proposed Terms of Adjournment
11Ms. Song’s Affidavit sets out a background wherein City Council adopted a Motion to request the Chief Planner and Executive Director of City Planning to undertake a planning study of Danforth Avenue in two segments from the Don Valley Parkway to Coxwell Avenue, (July, 2014) and from Coxwell Avenue to Victoria Park Avenue (July, 2018) and to report back to Council on funds necessary to complete these studies (OPA 573).
12She testified the proximity of the planning study area to the Line 2 Bloor transit line, its historic main street character, and unique building types, which have made it a desirable mixed-used community and cultural destination in the City.
13OPA 573, comprised of five policy areas, addresses area-specific strategies for heritage conservation, the improvement and expansion of the public realm, and built form that provides a framework for development with a full mix of uses that are designed to be compatible with their existing and planned context, and conserve cultural heritage resources.
14On February 16, 2022, Toronto and East York Community Council considered the final report, recommending the adoption of OPA 573 dated January 31, 2022. On April 6, 2022, City Council adopted OPA 573. The City then received the four appeals in respect to OPA 573 as forementioned.
15Ms. Song supports the Proposed Motion as Del Boca Vista, being one of the larger proposed developments, will benefit from increased certainty and clarity with respect to its proposed development application, allow for the resolution of site-specific issues outside of the Tribunal process or in other site specific proceedings before the Tribunal, result in reduced legal costs by avoiding a multiplicity of proceedings on the same issues for the same property, avoid having inconsistent findings and orders from different Tribunal members, and will result in increased transparency and fairness. This also ensures that Del Boca Vista has an appropriate opportunity to participate, and have its matter adjudicated before the Tribunal.
16While the Tribunal is cognizant that the issue before it in this Written Motion is only dealing with the Proposed Terms of Adjournment in the matter of Del Boca Vista, it would be beneficial for the Tribunal to have a succinct outline of all remaining appeal issues to be dealt with prior to the December 2, 2024, 10-day Merit Hearing in order to assess the appropriateness of the length of time required for the Merit Hearing, given the consensus, in part, of the Appellants, as it is not clear from the Affidavit of Ms. Song.
ORDER
17THE TRIBUNAL ORDERS THAT the Motion is granted, and the Del Boca Vista Properties Inc. site-specific appeal of OPA 573 is adjourned sine die subject to the following Proposed Terms of Adjournment listed below as follows:
PROPOSED TERMS OF ADJOURNMENT
Del Boca Vista Properties Inc. (Del Boca) whose appeal is adjourned sine die in accordance with the below terms shall scope its appeal geographically to the lands which are the subject of its complete development application.
Del Boca is at liberty to raise issues with respect to Official Plan Amendment 573 (OPA 573), and to make an argument about the relevance of and weight to be given to OPA 573 at the Ontario Land Tribunal (OLT) hearing of its site-specific appeal as may be appropriate.
The City and Del Boca may jointly request a disposition from the OLT, in the hearing of the site-specific appeal, as to whether relief from the provisions of OPA 573 would be appropriate for the proposal.
Within 31 days of the Date of Final Approval of the site-specific zoning by-law, Del Boca will withdraw its appeal of OPA 573. If Del Boca does not withdraw its appeal of OPA 573 as it relates to the site within such 31 days, the City will ask the OLT to dismiss the appeal and Del Boca shall not object.
In the event Del Boca's site specific zoning by-law amendment appeal is dismissed by the OLT, and the OLT makes a finding in the hearing of the site specific zoning by-law amendment appeal as to whether relief from the provisions of OPA 573 would be appropriate as it relates to the proposal before the OLT, and all appeal periods have expired without appeal, neither Del Boca nor the City will attempt to relitigate such finding in subsequent proceedings, including at the general hearing of OPA 573. Del Boca will withdraw its appeal of OPA 573 as it relates to the site within 31 days of the OLT's final order dismissing its site-specific zoning by-law amendment appeal. If Del Boca does not withdraw its appeal of OPA 573 as it relates to the site within such 31 days, the City will ask the OLT to dismiss Del Boca's appeal of OPA 573 and Del Boca shall not object.
In the event Del Boca's site-specific zoning by-law amendment appeal is dismissed by the OLT, and the OLT does not make a finding with respect to whether relief from the provisions of OPA 573 would be appropriate as it relates to the proposal before the OLT:
a. If a Procedural Order identifying the parties, issues and order of evidence for the hearing of the general OPA 573 appeal has been issued, Del Boca will withdraw its site-specific appeal of OPA 573; or
b. If no Procedural Order identifying the parties, issues and order of evidence for the hearing of the general OPA 573 appeals has been issued, Del Boca may elect to participate in the general OPA 573 hearing.
At any point prior to the issuance of a Procedural Order identifying the parties, issues and order of evidence for the hearing of the general OPA 573 appeals, Del Boca may choose to participate in the general hearing, provided that the hearing of its site-specific zoning by-law amendment appeal is deferred until the OPA 573 general hearing has concluded and the OLT has issued a decision in respect of the general appeal. In the event that Del Boca participates in the general hearing and the OLT makes a finding in the general hearing as to whether the provisions of OPA 573 are appropriate for the area to which OPA 573 apply generally, or Del Boca's site specifically, neither Del Boca nor the City will attempt to relitigate such finding in the hearing of Del Boca's site-specific zoning by-law amendment appeal.
Any decision made or partial approval granted with respect to OPA 573 in the general proceedings shall be without prejudice to Del Boca's deferred site-specific appeal of OPA 573 (where Del Boca did not participate in the general hearing) or its site-specific zoning by-law amendment appeal, and shall not have the effect of limiting Del Boca's rights to litigate OPA 573 as it relates to Del Boca's site in the context of the site specific Proceeding
"Date of Final Approval" means the first day upon which all of the provisions of the site specific zoning by-law amendment has come into force and in effect, with all applicable appeal periods having lapsed with no appeals nor rehearing requests to the OLT, and/or application to court having been commenced with respect thereto or with any such appeal or rehearing requests to the OLT and/or application to court having been finally determined so that a building permit could be issued by the Chief Building Official, permitting the construction contemplated by the site specific zoning by-law amendments, upon the owner obtaining all requisite approvals, submitting the appropriate applications for a building permit and paying the requisite application fees.
“Jackie Denyes”
JACKIE DENYES
MEMBER
“Douglas Colbourne”
DOUGLAS 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.