11250396 Canada Inc. & Whitby Brock Estates v. Whitby (Town), 2024 CanLII 40943

ISSUE DATE: April 29, 2024

CASE NO(S).: OLT-24-000115

PROCEEDING COMMENCED UNDER subsection 17(24) and 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 11250396 Canada Inc. (Cacoeli Whitby LP)

Appellant: Whitby Brock Estates

Subject: Proposed Official Plan Amendment No. 126

Description: To appeal the approval by the Region of Durham of Amendment No. 126 to the Town of Whitby Official Plan

Reference Number: OPA 2020-W/03

Property Address: 132 & 146 Brock St N and 423-435 Brock St N

Municipality/UT: Whitby/Durham

OLT Case No.: OLT-24-000115

OLT Lead Case No.: OLT-24-000115

OLT Case Name: 11250396 Canada Inc. & Whitby Brock Estates v. Whitby (Town)

Heard: April 15, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

11250396 Canada Inc. (132 & 146 Brock Street North (Cacoeli Whitby LP)

Russell D. Cheeseman Stephanie Fleming

Whitby Brock Estates (423-435 Brock Street North)

Michael Cara Chris Tanzola (In absentia)

Town of Whitby

Andrew Biggart

Region of Durham

Cindy Boyd Robert Woon (In absentia) Adam Patel (Student-at-Law)

Bara Group (Whitby) Inc. (1200 and 1202 Green Street)

Matthew Helfand Andrea Skinner (In absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON APRIL 15, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is a first Case Management Conference (“CMC”) relating to two separate appeals under sections 17(24) and 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) of Official Plan Amendment No.126 (“OPA 126”) approval by the Town of Whitby (“Town”) and the approval of OPA 126 by the Region of Durham of (“Region”), respectively (the “Appeals”). The Appeals have been filed individually by 11250396 Canada Inc. (“Cacoeli Whitby LP”) as the owners of 132 & 146 Brock Street North (“Appellant A” / “Site A”) under section 17(24) of the Act. Whitby Brock Estates has appealed as the owners of 423-435 Brock Street North (“Appellant B” / “Site B”) under section 17(36) of the Act.

2The purpose of the Town-initiated OPA 126 is to replace Section 11.3 - Downtown Whitby Secondary Plan 1989 (“DWSP”) and introduce updated policies and land use development in the Downtown Whitby Community Secondary Area (“DWCSA”) to reflect the Town’s growing population forecasted to reach approximately 193,000 people by 2031.

3Site A consists of a total of 0.35 hectares (“ha”) and frontage of approximately 70 metres (“m”) with a depth of 50 m, with single storey commercial automotive sales/service uses and heritage buildings that provide similar commercial uses, along with a single two-storey concrete building for storage.

4Site B contains four parcels of land (423, 425,427 and 435 Brock Street North), on the east side of the street, and consists of a total of 0.36 ha, a frontage of 60 m and a depth of 60 m. Each parcel of land on Site B consists of a single storey detached bungalow, with private driveway access to Brock Street North.

5The Tribunal was in receipt of a sworn Affidavit of Service dated March 7, 2024, by Alexander Harras confirming that Notice of this CMC was properly provided, which was marked as Exhibit 1.

COUNSEL SUBMISSIONS

6Counsel for Appellant A submitted that they are generally opposed to OPA 126 in its entirety, and were recently before the Tribunal with Site-Specific Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) applications (#OLT-22-004776) proposing a mixed-use redevelopment. A previously scheduled 10-day hearing which was to commence on Monday, March 11, 2024, was adjourned on consent and the rescheduling of the matter was held in abeyance, awaiting the Tribunal’s determinations from this first CMC.

7Appellant A, the Town and Region agreed that this recent adjournment was prudent allowing the Parties an opportunity to dialogue further regarding OPA 126 and the scoping of issues. They concurred that the Tribunal, in its discretion, should schedule a further CMC allowing enough time for these ongoing discussions, and an opportunity to present options to Town Council at a regularly scheduled meeting on or before Monday, June 24, 2024.

8Counsel for Appellant B submitted that they are generally supportive of OPA 126 as approved, and termed this to be a “protective” appeal measure which is intended to ensure that the policies of OPA 126, as approved, are not modified to alter the prospects directly or indirectly for redevelopment of Site B. Appellant B is also in discussions with Town planning and intends to submit a Site-Specific ZBA with their own mixed-use redevelopment proposal, and concurred with the suggested further CMC.

STATUS REQUESTS

9The Tribunal was in receipt of a Party Status Request by Bara Group (Whitby) Inc. (“Bara”) on Monday, April 1, 2024, stating that Bara is the owner of properties at 1200 and 1202 Green Street, located within the DWCSA (OPA 126) area. Counsel for Bara informed the Tribunal that its property is the subject of a Site Specific ZBA and Site Plan Application (“SPA”) (#OLT-21-001810). An Interim Order issued by the Tribunal following a hearing on March 7, 2022 is currently in place. The Bara OPA/ZBA matter is awaiting the issuance of a Final Order, and Bara is separately seeking an order under subsection 17(39) of the Act, bringing into force part of OPA 126, consisting of the geographic areas not specifically under these Appeals.

10There were no concerns or objections from other Parties in the matter and the Tribunal granted Party Status to Bara, as represented by Counsel present at the CMC. No further decision was made with regard to Bara’s separate request to bring into force OPA 126, with recommended exclusions, as the Tribunal felt it would be more appropriate to defer this request and allow time for further dialogue with the Town in the lead up to a second CMC. Counsel on behalf of the Town, assured the Tribunal that this could occur and there was general agreement that a brief CMC could be scheduled in late June 2024.

11There were no other Status requests presented at the CMC.

12After careful consideration of the respective calendars of Parties, and a preference for an earlier start time in order to avoid other overlapping matters, the Tribunal scheduled a second CMC to commence on Friday June 28, 2024, by Video Conference with the noted start time of 9:00 a.m.

13Parties and participants 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:

https://global.gotomeeting.com/join/687587165

Access code: 687-587-165

14Parties and participants 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

15Persons 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: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is same as mentioned above.

16Individuals 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 hearing by video 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.

17Finally, the Tribunal was encouraged by efforts to maintain active dialogue in relation to each matter between the Parties, and reminds the Parties that Tribunal-led mediation is available if mutually agreed upon and if requested.

ORDER

18THE TRIBUNAL ORDERS that:

a) A further Case Management Conference is scheduled as described above; and,

b) Directions in the Decision above are so ordered.

19There will be no further notice.

20The Member is not seized on this matter.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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.