Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 29, 2024

CASE NO(S).: OLT-21-001810 (Formerly PL190545)

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

Applicant and Appellant: Bara Group (Whitby) Inc.

Subject: Application to amend Zoning By-law No. 2585-Refusal of Application by Town of Whitby

Existing Zoning: R2-Residential Type 2

Purpose: To permit the use of an 8-storey mixed use building with 92 apartment units and 282.7 square metres of commercial space on ground

Reference Number: Z-31-18

Property Address: 1201+1207 Brock St. South & 1200+1202 Green St.

Municipality: Town of Whitby

OLT Case No.: OLT-21-001810

Legacy Case No.: PL190545

OLT Lead Case No,: OLT-21-001810

Legacy Lead Case No.: PL190545

OLT Case Name: Bara Group (Whitby) Inc. v. Whitby (Town)

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: Bara Group (Whitby) Inc.

Subject: Site Plan

Property Address: 1201+1207 Brock St. South & 1200+1202 Green St.

Municipality: Town of Whitby

OLT Case No.: OLT-21-001813

Legacy Case No.: PL190546

OLT Lead Case No.: OLT-21-001810

Legacy Lead Case No.: PL190545

Heard: April 10, 2024 (Motion Hearing)

APPEARANCES:

Parties

Counsel

Bara Group (Whitby) Inc. ("Moving Party/Applicant")

Matthew Helfand Andrea Skinner (in absentia)

Town of Whitby ("Town")

Andrew Biggart

DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The previous history of this proceeding is as described in the Decisions issued on March 7, 2022 and December 7, 2023, respectively, and need not be repeated here.

2This matter concerns a Motion for Directions brought by the Applicant in pursuant to s.10.3 of the Tribunal’s Rules of Practice and Procedure made by Bara Group (Whitby) Inc. (“Applicant”). The matter relates to an Interim Order of the Ontario Land Tribunal (“OLT”/ “Tribunal”) dated March 7, 2022, pursuant to a settlement reached by the Parties on 11 February 2022.

3The Applicant’s Motion for Directions sought the following from the Tribunal:

• a determination that the Tribunal has the jurisdiction to adjudicate and rule on proposed modifications to the zoning by-law amendment and site plan control applications which were approved, in principle, by the Tribunal in its Interim Order in matter OLT-21-001810, dated March 7, 2022 (“the “Interim Order”).
• an interpretation of the Tribunal’s pre-condition for issuance of the final Order on the site plan application, as contained in paragraph 36 of the Interim Order.
• further to paragraph 2, a determination that the final Order on the site plan control application shall be released once the site plans and drawings are in a final form satisfactory to the parties and the Tribunal has been advised of the same.
• An order adjourning the balance of the Hearing (with respect to the land-use planning merits of the proposed modifications to the Zoning By-law Amendment and site plan control application) scheduled for March 14-15, 2024, and fixing new dates as soon as the Tribunal’s calendar permits.
• such further and other relief as Counsel may advise and the Tribunal may permit.

4The Town responded to the Motion for Directions made by the Applicant and requested relief. The Town seeks an order in the following:

• dismissal of the Applicant’s Motion for Directions due to lack of jurisdiction of the Tribunal to adjudicate upon the contract matters;
• in the alternative, approval of the ZBA and the Site Plan strictly in accordance with the terms of the executed Minutes of Settlement (“MOS”);
• such further and other relief as Counsel may advise and the Tribunal may permit.

5The Applicant’s Reply to Response to Motion for Directions, grounds for reply in the following:

• this is not a contractual dispute
• the Town’s threat to file a lawsuit against the Applicant is highly inappropriate
• the Applicant cannot sign a site plan agreement (“Site Plan Agreement”) before the instruments have been finalized

MOTION FOR DIRECTIONS HEARING

6Upon commencement of the Motion, the following materials were identified as Exhibits in respect of this motion:

1. Motion for Directions of Applicant, comprising 402 pages;
2. Responding Motion Record of Town, comprising 114 pages;
3. Reply to Response to Motion for Directions, of Applicant, comprising 73/comprised of 73 pages; and
4. Applicant’s Book of Authorities.

7As a result of the Order by teleconference on December 7, 2023, Counsel for the Applicant advised the Applicant made several attempts to contact the Town’s legal counsel to organize for the Merit Hearing of March 14 and 15, 2024. This correspondence included direction/s to confirm the issue list and establish witness statement exchange dates for the hearing and to work with the Town towards an efficient resolution of this matter.

8Counsel for the Applicant advised that, on February 15, 2024, the Applicant’s legal counsel received a letter from counsel for the Town that stated:

[…] the Town demands that [Bara] proceed strictly in accordance with the terms of the Minutes of Settlement and immediately cease actions of trying to obtain an approval that is not in accordance with the terms of the Minutes [] [t]he threshold legal issue is whether your client is in breach of the Minutes of Settlement. That is the contractual matter that must be decided by the courts and not the Tribunal.

9Town counsel submitted that in preparing an issues list for the Merit Hearing it became clear that there were issues concerning jurisdiction of the Tribunal and enforcement of the MOS.

10The Parties explained that a Motion for Directions would be required to settle these outstanding issues.

OPA 126 – Removal of Density Limit For the Lands

11According to the Applicant, when this settlement was reached and the subject development (“Development”) was approved, the Town Official Plan imposed a density limit on the Lands of 300 units per hectare. That has changed.

12On March 20, 2023, Town Council adopted OPA 126. OPA 126 applies to an area of the City which includes the site.

13OPA 126 policy 11.3.7.8.6, as approved by Town Council, removes the density limit applicable to the Lands, and provides instead that “density will be a product of the built form requirements for height, setbacks, step backs and angular plane”.

14OPA 126 was approved for the Region of Durham by Town Council on December 21, 2023. According to the Parties, the Region’s approval of OPA 126 is subject to appeals filed by landowners in January 2024 and is not yet in full force and effect.

15According to the Applicant, because of Council’s removal of density limits through OPA 126, and in response to broader shifts at the Provincial level which encourage more residential units, the Applicant now seeks to modify the Development in a manner that will result in an increased unit count and a corresponding reduction in the parking and amenity ratios. The Applicant does not propose to make any changes to the Development’s building envelope (“Proposed Revisions”).

16The Proposed Revisions are internal modifications to the building which result in:

a) an additional 30 dwelling units, resulting in a total of 122 dwelling units compared to the original 92 dwelling units; b) an increase in the overall site density from 300 units per hectare to 398 units per hectare; c) an increase in the total amount of parking from 129 spaces to 150 spaces; and d) a decrease in the minimum ratio of amenity space from two (2) square meters per unit to 1.5 square meters per unit for both indoor and outdoor amenity space.

17In April of 2023, according to the Applicant, discussions between the Applicant and Town staff were held about the Proposed Revisions. In emails at the end of April and beginning of May 2023, Town staff invited the Applicant to submit a written description and justification for the Proposed Revisions, which it proceeded to do.

18According to the Applicant, Town Staff did not support the Applicant’s plan to advance the Proposed Revisions through a minor variance application (“MVA”) as noted above.

ISSUES

19The Tribunal does not view the issues as exactly as the Parties have set out. However, the Tribunal can provide directions to some aspects of the issues of the parties.

20The Tribunal will also comment on its interpretation of the wording in paragraph 36 of the Interim Order and on the Final Order being released.

21Finally, the Tribunal finds itself obligated to comment on cost award and litigation arguments of the Parties which were contained in both of their respective submissions and evidence.

ISSUE #1

22According to the Town’s counsel, its main argument is that the Applicant is reneging on a contractual agreement on its obligations to construct the Building on the Site in accordance with the terms of the executed MOS. The Town views the actions of the Applicant as a breach of contract and abuse of process.

23The Town’s position is that the Applicant’s intention was to secure the issuance of the Tribunal’s Final Order for the sole purpose of seeking a minor variance application to revise the Tribunal-approved development, rather than to abide by the terms of the contract

24The Applicant asserts that it is not in breach of the MOS. Therefore, the Town contends there is a contract dispute in existence that can only be decided by the Courts.

25In response, the Applicant submits that the MOS generally, and the MOS in this case specifically, are not ordinary, bilateral commercial contracts; MOS are land use planning instruments which must be interpreted and applied within the broader land use planning context.

26Both Parties provided case law for their respective arguments.

27Counsel for the Applicant submits that the Tribunal possesses broad exclusive powers to hear and determine questions of fact and law with respect to matters within its jurisdiction, and to make Orders and give directions as may be necessary or incidental to the exercise of its powers.

FINDINGS

28As both Parties have acknowledged, this is a unique and rare Motion concerning the facts of this case. Although there have been previous cases with different fact patterns regarding jurisdiction of the Tribunal or whether the MOS are contractual agreements, neither Party could provide this Tribunal any jurisprudence involving specifically proposing a Revision to an Interim Order.

29The Tribunal has considered the evidence before it as well as the submissions of Counsel. The Tribunal finds that it is simply unnecessary for the Tribunal to make any expansive rulings on its jurisdiction as requested by the Parties.

30The Tribunal defines the issue in this Motion, as it pertains to a settlement, is that the Parties provided settlement materials to the Tribunal at the Settlement Hearing on February 15, 2022, which were fully agreed to but for the conditions (“Conditions”) captured in the Interim Order.

31The settlement materials on consent were sworn affidavits of two planning witnesses – Ms. Lindsay Dale-Harris for the Applicant and John Austin for the Town testifying to the planning instruments and their compliance with the Act, with the Provincial Policy Statement, 2020, with the Growth Plan for the Greater Golden Horseshoe, and with the Region of Durham Official Plan and the Town’s Official Plan. This is common practice in Settlement Hearings brought in accordance with Rule 12.1.

32Based on the uncontroverted evidence of both Ms. Dale-Harris and Mr. Austin, and pursuant to the unequivocally conveyed consent submissions of Counsel for the Parties, the Tribunal was satisfied that the Parties’ proposed resolution of this proceeding met the requirements of the Act, was consistent with the Provincial Policy Statement, 2020, conformed with the Growth Plan for the Greater Golden Horseshoe, 2019 and also conformed to the applicable provisions of the Region of Durham Official Plan and the Town’s Official Plan.

33Therefore, in the March 7, 2022 Interim Order, the Tribunal allowed the Applicant’s appeal in part and approved in principle the Draft ZBA and the Draft Site Plans. The March 07, 2022 Interim Order and Decision therefore constituted the Tribunal’s full consideration of the Parties’ proposed settlement in discharge of its duties and powers set out in OLTA and in the Act, pursuant to Rule 12.1 which states:

Procedure if Settlement Before Hearing Event The Tribunal may hold a hearing on the terms of a settlement if the parties in the proceeding agree to a settlement prior to a hearing event. The Tribunal may issue any directions to the parties necessary to ensure compliance with all statutory requirements, or to assist the Tribunal, prior to convening the settlement hearing. If all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.

34The Tribunal acknowledges that the settlement achieved a form of development satisfactory to the Town staff and Council which caused the proposed development to have a reduced height, a relocation of upper massing of the proposed building, an increase in the angular plane of the proposed building and increased setbacks and step backs, in keeping with the Town’s High Density Residential Policies contained in its Official Plan in effect at that time.

35The Town settled on specific criteria which were agreed upon by the Applicant. The Town contends to now change this agreement through a contested hearing would be a means of circumventing the procedural process to seek a minor variance or any other planning instrument from the Town in accordance with s.45 of the Planning Act.

36Although the Applicant originally requested this process despite the objection of the Town, through this Motion process, the Town is now recanting its original position and acknowledges that the Applicant is not statutorily barred from making an application for a minor variance nor from making a zoning application.

37Therefore, the Tribunal does not find it necessary to consider the Proposed Revision to the Interim Order in this case nor to make any expansive ruling on its jurisdiction.

ISSUE #2

38The Parties requested the interpretation of the Tribunal’s pre-condition for issuance of the Final Order on the site plan application, as contained in paragraph 36 of the Interim Order, and, in addition, a determination that the Final Order shall be released once the site plans and drawings are in final form satisfactory to the Parties and the Tribunal has been advised of the same.

39The Tribunal will briefly comment on the interpretation contained in paragraph 36 of the Interim Order and a determination of the Final Order being released.

40The Applicant submits that Town staff advised them that they would consent to the Tribunal’s release of the Final Order on the site plan approval (“Site Plan Approval”) only once the “Site Plan Agreement is executed and the financial (securities) are provided to the Town”, contrary to paragraph 36 of the Interim Order.

41According to the Applicant, the Town’s insistence that the agreement must be signed prior to release of the Tribunal’s final Order approving the site plans and drawings imposes a significant financial burden to the Applicant and the Town’s position is tantamount to forcing the Applicant to prematurely sign a site plan agreement before the plans and drawings have been finalized.

42During the course of the Motion, Town counsel clarified that the Town would not be seeking a cash-in-lieu payment of the parkland dedication fee.

43John Austin, a land use planner for the Town, submits through his affidavit that it is normal practice of the Town that, that an executed Site Plan Agreement and associate financial documents to secure certain aspects of the development proposal, as agreed upon by the Parties, be provided by a developer prior to the Town signing off on a ZBA or Site Plan to be confirmed by the Tribunal

44In Mr. Charezenko’s affidavit, he opines that it is not ordinary municipal practice to execute a site plan agreement, including making financial contributions and payments, prior to the ZBA being in force and effect. A Municipality is required to ensure site plan applications comply with the force-and-effect ZBL prior to site plan approval, and therefore impractical to execute a site plan agreement prior to the Tribunal releasing its Final Order approving the ZBA.

FINDINGS – PARAGRAPH 36 INTERPRETATION AND RELEASE OF FINAL ORDER

45The Tribunal agrees with the Applicant that the wording in paragraph 36 contained in the Interim Order is plain and express language, that the Final Order on the Site Plan approval will be released when the Site Plans and drawings are in a final form and the Tribunal has been advised by the Parties of the same. This is a common practice and wording in Settlement Hearings before the Tribunal.

46The Tribunal prefers the evidence of Mr. Charezenko in regard to the Town’s position in which the Town is asking the Applicant to sign an incomplete agreement.

47Although it may be normal practice for the Town to receive an executed Site Plan Agreement and associated financial documents before signing off on a ZBA or Site Plan, the Tribunal finds the direction of the Tribunal takes precedence over any “normal practice” of the Town.

48Therefore, in this case, the Tribunal’s Interim Order does not require execution of a site plan agreement before release of the final order on the ZBA and Site Plan.

RELEASE OF FINAL ORDER

49The Applicant originally proposed that the Tribunal approve the Final Order as set out in the previous teleconference, and, if required, the Applicant could request a minor variance to satisfy the ZBA.

50The Applicant submits that, on the one hand, the Town refused to consent to the Applicant’s request to have the Tribunal issue a Final Order on the ZBA that was approved in principle so that it might proceed with a minor variance application, in accordance with its statutory rights; and, on the other hand, the Town now suggests that the Applicant may not seek a modification through the Tribunal process, notwithstanding that the Town expressly consented to the Tribunal’s scheduling of a hearing in March of 2024 for this very purpose.

51Even though the Town consented to a Hearing of the merits of the Proposed Revisions which was set down by the Tribunal for a hearing then retracted that position, there is now before it a Motion for Directions which was requested by the Moving Party – in this case, the Applicant.

52Although the Applicant, in its view, was in an untenable position of not having received cooperation from the Town in its view, including the Town’s objections to the process, the Town did concede to the originally proposed course of action for the Applicant – that the Applicant could provide for a minor variance application after the Final Order is issued.

53In the Town’s submissions in this Motion they seek an Order in the alternative approving the ZBA and the Site Plan strictly in accordance with the terms of the executed Minutes of Settlement.

54Counsel for the Town conceded that there is no bar preventing the Applicant from filing a minor variance after the Final Order has been issued, but did add that, at this point, it might be a rezoning application.

55Therefore, based on the evidence and submissions of the Parties, the Tribunal approves the Final Order as previously proposed by the Applicant for the Draft ZBLA (Schedule 1) and Site Plans (Schedule 2).

56The Tribunal would note that the Applicant’s apparent intention to seek a minor variance or some other planning instrument to pursue their Revised Proposal is not a matter properly before the OLT for determination on this Motion.

ISSUE #3

COST AWARD

57The Tribunal will comment briefly herein on the award of cost and litigation issues to the Applicant from the Parties.

58Mr. Austin’s affidavit, para. 37, advises that, should the Applicant be successful on its Motion for Directions, the Town will file a draft Statement of Claim to the Ontario Superior Court of Justice seeking specific performance in regard to the MOS the Applicant is successful on its Motion.

59During the course of the Hearing, the Applicant submitted that it was inappropriate for the Town to threaten to file a lawsuit, and in response, put the Town on notice that it may file a cost award application with the Tribunal.

60The Town contends that it has been put in a position where it cannot go anywhere else but to Court.

61The Tribunal advised both Parties that no cost award application is before the Tribunal and that a proper and separate cost award application be submitted to the Tribunal pursuant to 23.1 of the Tribunal’s Rules of Practice and Procedures.

SUMMARY OF FINDINGS

62The Tribunal finds it unnecessary to make any expansive rulings on jurisdiction as requested by the Parties.

63The Interim Order dated March 7, 2022 does not require the Applicant to provide an executed Site Plan Agreement or associated financial documents to the Town until such time as the ZBA is in full force and effect.

64The Final Order is approved for the Draft ZBLA (Schedule 1) and Draft Site Plan (Schedule 2).

65No cost award was considered or issued for this Decision.

ORDER

66THE TRIBUNAL ORDERS that the Motion for Directions is granted in part, in respect of the Final Order referenced in the Tribunal’s Interim Order dated March 7, 2022.

67THE TRIBUNAL ORDERS that By-law 2585 of the Town of Whitby is hereby amended as set out in Schedule 1 to this Order (“ZBA”). The Tribunal authorizes the Municipal Clerk of the Town of Whitby to assign a number to this By-law for record-keeping purposes.

68THE TRIBUNAL ORDERS that the Site Plan prepared by RAW Design Inc. dated 2022-01-31 is approved subject to the conditions set out in Schedule 2 to this Order.

69The Tribunal Member remains seized and may be spoken to about any issues that might arise in the course of implementing this Order.

"Eric S. Crowe"

ERIC S. CROWE 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.

SCHEDULE 1

SCHEDULE 2