Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 30, 2024

CASE NO(S).: OLT-23-000975

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Regent Revival Inc.

Subject: Minor Variance

Description: To permit the renovation and partial reconstruction of the existing theatre with a three-storey rear addition.

Reference Number: A0185/23NY

Property Address: 551 Mount Pleasant Road

Municipality/UT: North York/Toronto

OLT Case No: OLT-23-000975

OLT Lead Case No: OLT-23-000975

OLT Case Name: Regent Revival Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S. O. 2006, c. 11 Sched A.

Applicant/Appellant: Regent Revival Inc.

Subject: City of Toronto Site Plan Approval

Description: To permit the renovation and partial reconstruction of the existing theatre with a three-storey rear addition.

Reference Number: 23 110086 NNY 15 SA

Property Address: 551 Mount Pleasant Road

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-23-000901

OLT Lead Case No: OLT-23-000975

IN THE MATTER OF subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, as amended, and Rule 10 of the Tribunal’s Rules of Practice and Procedure

Request by: Mt. Pleasant Village Revival Residents Association

Request for: Motion for Directions

Heard: April 10, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Agent*
Regent Revival Inc.	David Bronskill
City of Toronto	Jamie Dexter
Mount Pleasant Village Revival Residents Association	David Hirsh* Andy Wilson*

MEMORANDUM OF ORAL DECISION DELIVERED BY J. INNIS ON APRIL 10, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision dismisses the Motion presented by the Mount Pleasant Village Revival Residents Association (“MPVRRA”) in relation to an Appeal of the City of Toronto’s (“City”) Committee of Adjustment (“COA”) refusal of a minor variance (“MV”) application to permit the renovation and partial reconstruction of the existing theatre with a three-storey rear addition on lands known municipally as 551 Mount Pleasant Road (“Subject Property”).

2The Motion sought to bifurcate the five-day Hearing scheduled to commence on Monday, July 15, 2024, requesting that the Tribunal use this hearing date only to determine the issue of Acquired Development Rights (“ADR”) and Legal Non-Conforming (“LNC”) use of the Subject Property; and that any remaining issues, such as the MVs, be adjourned by the Tribunal sine die following the decision relating to this Motion.

3The MPVRRA asserts that the Appeal by Regent Revival Inc. (“Appellant”) rests entirely on the assumption that the Theatre use is LNC with ADR and that this matter must be determined prior to the commencement of an appeal for MVs or Site Plan. Further, that by hearing this matter separately, it would reduce the length of hearing time by approximately two days and thus reduce the costs associated with a full Merit Hearing of the Appeal that would include the MVs.

4The Appellant contended that the Motion was not in accordance with Rule 10 of the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”); that the approach requested through the Motion is inconsistent with the Planning Act (“Act”), and would not represent a fair, just, expeditious, and cost-effective resolution of the appeals; and lastly that the relief requested in the Motion would delay the appeals and thus prejudice the Appellant.

PROCEDURAL ORDERS

5At the one-day Hearing, the Tribunal rendered two oral Orders related to procedural matters prior to hearing submissions on the Motion.

6Firstly, given that Mr. David Hirsh (“Agent” for the MPVRRA) may be required to participate as a witness during the Motion Hearing, he requested that the Secretary and a Director of the MPVRRA, Mr. Andy Wilson act as the Agent. Neither the Appellant nor the City objected to this request, and as such, the Tribunal granted this request.

7Secondly, the Appellant objected to the Reply to Response to Motion dated Monday, April 8, 2024, stating that it was provided to the Tribunal in a prejudicial manner. The Appellant purports that the MPVRRA provided three affidavits, all of which could and should have been included with the Notice of Motion, dated Friday, March 1, 2024, and/or the Notice of Additional Evidence, dated Wednesday, March 27, 2024. Further, the Appellant purports that it was not a proper reply to now have an affidavit from a Land Use Planner and others that were available at the time the Notice of Motion and the Notice of Additional Evidence were filed. The MVRRA stated that they did not intend to rely upon this information at this stage in the Motion but would be using it as evidence at the Merit Hearing. The City held no position on the matter. Rule 10 of the Rules on Motions is as follows (emphasis underlined):

10.4 Content of Motion Material The notice of motion to be heard in person, electronically, or in writing shall:

a. state the day, time and location of the hearing of the motion;

b. state the precise relief sought;

c. state the grounds to be argued, including a reference to any statutory provision or Rule to be relied on;

d. list the documentary evidence to be used at the hearing of the motion;

e. be accompanied by an affidavit setting out a brief and clear statement of the facts upon which the moving party will rely; and

f. state the names and addresses of the responding parties or their representatives and all persons to whom the notice of motion is to be given.

10.5 Service of the Notice of Motion A notice of motion and all supporting material, as set out in Rule 10.4, shall be served at least 15 days before the date of the motion to be held in person or by electronic hearing unless the Tribunal orders otherwise. A notice of motion shall be served on all parties, on any other person as directed by the Tribunal, and on the Registrar. An affidavit of service shall be filed with the Tribunal prior to or at the hearing of the motion.

8All three affidavits provided within the Reply to Response Motion could have been provided to the Tribunal prior to the Notice of Response to Motion by the Appellant and not in accordance with 10.4 and 10.5 of the Rules, as such, in accordance with procedural fairness, the Tribunal accepted the Appellant’s position and ordered that the Reply to Response to Motion, dated Monday, April 8, 2024, not be considered during this Motion Hearing and instructed the MPVRRA that they may provide oral testimony from their Reply to Response to Motion provided that it does not include evidence resulting from the three affidavits contained therein.

LEGISLATION

9Under s. 12(2) of the Ontario Land Tribunal Act,

Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.

10The Appeal before the Tribunal is pursuant to s. 45(12) of the Act and is as follows:

(12) The applicant, the Minister or a specified person or public body that has an interest in the matter may within 20 days of the making of the decision appeal to the Tribunal against the decision of the committee by filing with the secretary-treasurer of the committee a notice of appeal setting out the objection to the decision and the reasons in support of the objection accompanied by payment to the secretary-treasurer of the fee charged by the Tribunal as payable on an appeal from a committee of adjustment to the Tribunal.

11The Appeal is seeking permission under the following subsections of the Act:

45 (1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained.

45(2) In addition to its powers under subsection (1), the committee, upon any such application,

(a) where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit,

(i) the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed, or a use permitted under subclause (ii) continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed.

SUBMISSIONS

Mount Pleasant Village Revival Residents Association

12The MPVRRA submits the following based on their Notice of Motion dated Friday, March 1, 2024, Notice of Additional Evidence dated Wednesday, March 27, 2024, and submissions provided at the Motion Hearing:

a. As the subject appeal hinges on the assumption that the Theatre use is a LNC use with ADR, it is the position of the MPVRRA that this should be determined prior to a merit hearing on the MVs.

b. The Regent Theatre was built in 1927, and the MPVRRA asserts there has not been a continued use as a theatre. Further, that the presumed ADR of LNC use for the property were never permitted for much of the eastern portion of the property, and thus, the proposed intended use of the Subject Property is greater than the presumed existing ADR. Therefore, it is the position of the MPVRRA that any such rights that may have existed on the Subject Property are no longer in effect.

c. The MPVRRA maintains that the evidentiary onus of such continued use is the responsibility of the Appellant.

d. The City passed By-law No. 10884 on June 14, 1926, which established the permitted use of a ‘moving picture theatre’ on the Subject Property to allow for the construction of the Theatre. No such permissions were granted to the portion of the property east of the 75-foot delineation in the residential lots, established in the By-law. Following the construction of the Theatre, on December 10, 1928, the City passed By-law No. 11915, enabling the City to expropriate lands to create a public laneway to service the commercial uses on Mt. Pleasant Road. To this day, the residential land use designation remains on Hadley Road. As such, the ADR are limited to those rights granted in By-law No.10884.

e. The Tribunal granted the request from the Appellant that the related Site Plan Approval Appeal be consolidated for administrative purposes with the MVs Appeal but be adjourned sine die. This, too, may cause delay and yet was requested by the Appellant.

f. A three-day merit hearing would be required to determine the ADR and LNC use of the Subject Property and could create efficiencies and be done at a reduced cost to all Parties, particularly to the MPVRRA, which is a resident’s association with limited resources.

Appellant

13The submissions provided in support of the Appellant’s position on the Motion Hearing were as follows:

a. Contrary to the Rules, the Motion seeks relief without supporting affidavit evidence or without providing any witness who could be cross-examined regarding the materials/evidence to support the Motion submitted by the MPVRRA. “It is premature to consider the merits of the Motion without any supporting affidavit evidence or evidence that can be tested under cross-examination”.

b. The Mert Hearing scheduled to commence on Monday, July 15, 2024, will address both the MVs requested by the Applicant pursuant to s. 45(1) of the Act and permission requested pursuant to s. 45(2)(A)(i) of the Act.

c. An adjournment of a portion of the Appeal, as sought by the MPVRRA, would unreasonably cause months of prejudicial delay to the Appellant. Further, bifurcating the hearing will result in the duplication of evidence, resulting in additional time and costs for both the Appellant and the Tribunal. This is not an efficient use of the Tribunal’s time or resources. There is no meaningful benefit to splitting the hearing, as it only shortens the duration by two days.

d. In regard to the adjournment sine die of the Site Plan Approval Appeal, that is a matter between the City and the Appellant and would be premature to deal with until the zoning is determined through a merit hearing.

e. Rule 1.3 of the Rules states,

These Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.

And this can best be implemented by conducting one hearing on the Appeal.

f. The Motion is alleging that the threshold issue is that of the LNC use and ADR. However, the Appeal is pursuant to s. 45(12); which began as one Application to the City’s COA, resulted in one decision by the City’s COA, and is now one Appeal before the Tribunal. This is no different than the adjudication by the Tribunal on appeals consisting of consents and MVs; consents to severe are not a threshold issue but rather are heard together with MVs under s. 45(12), as one appeal.

City

14The City held no position on the Motion.

ISSUES AND FINDINGS

15The Tribunal finds that the MPVRRA Motion centres around the determination of the LNC use and the ADR for the Subject Property as a threshold planning issue. The Tribunal prefers the position of the Appellant, as an appeal under s. 45(12) of the Act does not distinguish between 45(1) and 45 (2) but rather refers to the whole of the decision made by the City’s COA.

16The MPVRRA capably articulated their concerns, including references to City By-laws and COA decisions for the Subject Property, however, the Tribunal concurs with the Appellant that the evidence provided to justify bifurcating the hearing lacks the ability to be tested under cross-examination, was not in accordance with the Tribunal’s Rule 10, and is premature as these issues may be evaluated at the Merit Hearing.

17The Tribunal concurs with the Appellant that bifurcating the hearing would not result in efficiency and/or cost savings. While the Tribunal appreciates the financial concerns raised by the MPVRRA, the duplication of evidence that may be required if the Motion were granted would result in additional costs and would cause unnecessary prejudicial delay to the Appellant.

18In making this Decision, the Tribunal has considered the related decision of the City’s COA and the materials it had on hand.

19For the above-noted reasons, the Tribunal dismisses the Motion. The Parties provided the Tribunal on consent with the Procedural Order, and the Hearing scheduled to commence on Monday, July 15, 2024, shall be governed by it.

ORDER

20THE TRIBUNAL ORDERS that

1. the Motion is dismissed;
2. the five-day Merit Hearing scheduled to commence Monday, July 15, 2024, at 10 a.m., shall proceed; and
3. the Procedural Order and Issues List appended as Attachment 1 shall govern the proceedings.

21The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“J. innis”

j. innis

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.

ATTACHMENT 1