Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
May 7, 2024
CASE NO.:
OLT-22-003472
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellants:
See Schedule 1
Subject:
Proposed Official Plan Amendment No. 536
Municipality:
City of Toronto
OLT Case No.:
OLT-22-003472
OLT Lead Case No.:
OLT-22-003472
OLT Case Name:
578602 Ontario Inc. v. Toronto (City)
BEFORE:
F. LAVOIE
Monday, the 22nd
MEMBER
day of April, 2024
THIS MATTER, in respect of City Council’s adoption of an amendment to the City of Toronto’s Official Plan relating to development within the area of influence of rail facilities, Official Plan Amendment No. 536 (“OPA 536”) having come for a Case management Conference on July 21, 2022 before the Ontario Land Tribunal (the “Tribunal”) and the Tribunal having issued a Decision on August 26, 2022;
THE TRIBUNAL having been advised by the Parties on April 18, 2024 that a full uncontested settlement had been reached, on consent and are therefore requesting the issuance of a final order approving a modified version of OPA 536;
AND THE TRIBUNAL, having conducted a hearing, in writing, on April 22, 2024, and having read the materials filed, on consent of the parties;
AND THE TRIBUNAL, having considered the materials filed, finds the modifications to OPA 536 maintain its intent to address public safety concerns arising from derailments in relation to development in proximity to rail facilities, provides greater certainty with respect to the area of influence subject to OPA 536, being 30 metres of a rail corridor, and clarifies when a rail safety mitigation report must be revised following subsequent applications for the same property, among other things;
AND THE TRIBUNAL, noting the City of Toronto has agreed in the Minutes of Settlement that if required by the City of Toronto for a development, the indemnity referenced in Policy 3.6.3(c) in the modified version of OPA 536 would be added to one of the agreements, authorized by legislation, that would be entered into as part of the approvals of a development proposal, such as a site plan agreement or a subdivision agreement, for the development. The provisions would include the following:
(a) The City will provide prompt written notice to the landowner of any claim that could give rise to damages;
(b) The City will allow the landowner to assume the control of the defense of a claim and any settlement thereof;
(c) The City will secure written consent from the landowner before settling all or any part of such claims; and
(d) Where a landowner sells its interest in the applicable property, the City will release the former landowner from the indemnity in respect of any claim arising as a result of a subsequent owner constructing, altering or failing to maintain rail safety mitigation measures after the date of sale, provided the City is satisfied that the new landowner is bound by the agreement specifying the owner’s obligations.
AND THE TRIBUNAL, noting further that the City of Toronto has reached a site-specific settlement with DK Victoria Park Inc. in respect of its property at 411 Victoria Park Avenue, whereby this property will generally be exempted from OPA 536 for the purpose of future applications, provided they are in accordance with the approved zoning by-law which includes a rail safety mitigation approach;
AND THE TRIBUNAL, having decided that the modified version of OPA 536 is consistent with the Provincial Policy Statement, 2020, conforms to the Growth Plan for the Greater Golden Horseshoe, 2020, and represents good planning;
NOW THEREFORE
THE TRIBUNAL ORDERS, having read the Motion Record of the City of Toronto, including the uncontradicted affidavit evidence of Brooke Marshall, affirmed April 18, 2024, and the exhibits attached thereto, regarding the appeals to Official Plan Amendment No. 536 (“OPA 536”) in relation to all lands within the City of Toronto and having read the submissions from the parties, that:
OPA 536 is hereby modified and approved in accordance with Attachment “1” to this Order and that the modifications are hereby in full force and effect as it applies to all lands City-wide; and,
All appeals are resolved, in their entirety;
AND THIS TRIBUNAL ORDERS that it may be spoken to in the event some matter should arise in connection with the implementation of this Order.
“Euken Lui”
EUKEN LUI
ACTING REGISTRAR
Ontario Land Tribunal
Website: 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 to Title of Proceeding
Appeal No.
Appellant
Representative
Association of Consulting Engineering Companies – Ontario (ACEC-Ontario)
Annik Forristal
Ontario Society of Professional Engineers (OSPE)
Annik Forristal
Craft Kingsmen Rail Corp.
CKF Rail Development LP
Jason Park
Pinnacle International Ltd.
Andrew L. Jeanrie
Minto Communities Inc.
Andrew L. Jeanrie
Choice Properties
Andrew L. Jeanrie
Dunpar Homes
2530507 Ontario Inc.
Michael Nemanic and Luke Johnston
m.nemanic@dunpar.ca; l.johnston@dunpar.ca
Lanterra Management Ltd.
Mark Flowers
Laurier Paradise CC 347-357 Kennedy Inc. Laurier Paradise CC 375 Kennedy Inc.
Mark Flowers
Dream Unlimited
Great Gulf
Max Laskin and Anne Benedetti
mlaskin@goodmans.ca; abenedetti@goodmans.ca
G&N Developments
Max Laskin
Castlepoint Weston LP
Max Laskin
Cityscape Holdings Inc., Dream Distillery District Commercial (GP) Inc., Ribbon East Corp., Ribbon West Corp., and OTP Management Ltd.
Joe Hoffman
Weston Road LP
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
DK Victoria Park Inc.
Jason Park
2470347 Ontario Inc.
Calvin Lantz
RioCan Holdings Inc., 2075936 Ontario Ltd., 2076031 Ontario Ltd.
Calvin Lantz
Junction Road Nominee Inc. on behalf of Diamond Corp.
Calvin Lantz
St. Clair Caledonia Partnership, 2501882 Ontario Ltd.
Calvin Lantz
Talus (Bathurst) Ltd.
Calvin Lantz
Dun West Properties Ltd. on behalf of Lormel Homes Ltd.
Calvin Lantz
VANDYK Properties Inc.
Maggie Bassani
Canadian National Railway Company
Katarzyna Sliwa and Katryna Vergis-Mayo
kat.sliwa@dentons.com; katy.vergismayo@dentons.com
OTT 33 Development Inc.
Peter Van Loan
Limen Developments Ltd.
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
i2Developments (Old Weston) Inc.
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
HTC Sterling Road Property 3 Ltd., HTC Sterling Road Property 4 Ltd., and HTC Sterling Road Property 5 Ltd.
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
H&R REIT
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
1077558 Ontario Ltd.
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
1289777 Ontario Ltd.
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
578602 Ontario Inc.
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
1573416 Ontario Inc
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
1057100 Ontario Limited
Michael Foderick and Daniel Angelucci
mfoderick@mccarthy.ca; dangelucci@mccarthy.ca
Entuitive Corp.
Joe Hoffman
Johnson Sustronk Weinstein & Associates
Joe Hoffman
Arup Canada Inc.
Joe Hoffman
Hatch Ltd.
Joe Hoffman
Cadillac Fairview Corp. Ltd.
Max Laskin
Aukland Residences Inc.
David Bronskill
TAS Tecumseth Niagara LP and 888DS TAS LP
David Bronskill
Campont Developments Ltd., Sterling 4B Developments Ltd., and Sterling Developments Ltd.
David Bronskill
500 MacPherson Avenue Holdings Limited
David Bronskill
City Front Developments Inc.
David Bronskill
Northcrest Developments
Max Laskin
WDL 20 GP Inc.
Joe Hoffman
Tricon Residential Inc.
David Bronskill
ATTACHMENT “1”
AMENDMENT NO. 536 TO THE OFFICIAL PLAN OF THE CITY OF TORONTO
The following unshaded text, policies and schedule constitute Amendment No. 536 to the Official Plan for the City of Toronto:
- Section 3, BUILDING A SUCCESSFUL CITY, is amended by adding a new section 3.6, Rail Infrastructure, Mitigating Derailment and Public Safety as follows:
3.6 Rail Facilities, Mitigating Derailment and Public Safety (unshaded text)
Transportation of people and goods by rail continues to be an important component of the transportation network that supports Toronto's economic health. It is the City's responsibility to balance the interests of protecting public health, transportation corridors, and the viability of transportation corridors, while supporting intensification. In particular, this section 3.6 addresses physical rail safety and mitigation associated with the potential for derailment.
When new development proposes to introduce new or intensified land uses in proximity to rail facilities, risk is introduced to both the users of the development and the rail facilities. For the purpose of this Plan, rail facilities are rail corridors, rail sidings, train stations, inter-modal facilities, rail yards and associated uses, including designated lands for future rail facilities.
Because development sites near rail facilities can vary in size, orientation to rail facilities and/or proposed land uses, proponents shall design solutions tailored to the applicable unique local context, which may include the appropriate separation of uses from rail facilities and the provision and construction of risk mitigation design solutions on site such as crash walls or structures, as proposed through a Rail Safety and Risk Mitigation Report for Derailments (RSRM). Terms of reference prepared by the City will inform the content of these reports.
Policies
- For the purposes of this section 3.6 and Schedule 3, the area of influence of rail (for the purpose of mitigating physical risk arising from potential derailments) means the area within 30 metres of the property line of a rail facility. These policies will apply where any portion of a development site subject to the planning application falls within this area of influence.
Sidebar note: Nothing in these policies will preclude the City from raising rail safety concerns in response to an application.
Subject to policies 3.6.4 and 3.6.5, an application for a zoning bylaw amendment, subdivision or site plan application seeking to introduce, develop or intensify land uses within the area of influence of rail will include a RSRM prepared, signed and stamped by a qualified engineer, which will be subject to a third party peer review retained on behalf of the City at the applicant's expense.
If the RSRM is accepted by the City and reviewed by the applicable rail operator, and the application is approved:
(a) construction, ongoing maintenance, and replacement of the approved rail safety mitigation measures will be secured through an agreement between the City and the landowner;
(b) warning clauses in all relevant documents will be registered on title to provide notice for future purchasers; and
(c) as part of an agreement between the landowner and the City to be registered on title, the landowner will be required to assume responsibility for the construction and maintenance of the approved rail safety mitigation measures, and will be required to indemnify the City from claims relating to damages incurred on the property arising from a failure to construct and/or maintain the approved rail safety mitigation measures in accordance with the aforesaid agreement, where such damage is caused by a derailment.
- If an RSRM report was submitted, peer reviewed and accepted by the City in conjunction with a planning application:
(a) a revised RSRM report will not be required for a subsequent application if a professional engineer has confirmed in writing to the City that the subsequent application does not propose to do any of the following within the area of influence:
i. change the location of land uses;
ii. remove or alter buildings or structures that would have acted as a rail safety protection feature;
iii. reduce the rail setback distances of building(s); or
iv. change the proposed site grading;
from what was identified in the accepted RSRM report, in a manner that would adversely impact the effectiveness of the risk mitigation measures.
(b) If a revision to the accepted RSRM report is required because the confirmation in policy 3.6.4(a) is not provided, the revised RSRM report will demonstrate how the adverse impacts referenced in policy 3.6.4(a) will be mitigated as necessary to ensure the required level of rail safety is achieved in accordance with the rail safety standards applied in the accepted RSRM report.
(c) Notwithstanding the foregoing, the construction specifications for approved rail safety mitigation measures shall be revised at the time of a complete application for site plan control, if applicable, to reflect current engineering standards.
- If a change to the zoning permissions has been approved or approved in principle, or a draft plan of subdivision has been approved or approved in principle, as a result of a decision by the Ontario Land Tribunal or the Province, then:
(a) Where the RSRM report was accepted by a City peer reviewer through that process, then policy 3.6.4 will apply; or
(b) Where the approval occurred in the absence of the acceptance of an RSRM report by a City peer reviewer, then:
i. Any rail safety mitigation measures required as part of the approval will be integrated and secured in subsequent applications as necessary, and no RSRM report will be required in connection with subsequent applications;
Sidebar note: A Provincial approval that addresses rail safety mitigation measures, as referred to in Policy 3.6.5, includes circumstances where the Province addresses rail safety mitigation through contractual arrangements in connection with the approval. An applicant will provide details respecting the manner in which rail safety mitigation measures have been addressed as a part of the Provincial approval and the City will require that any required rail safety mitigation measures be reflected and secured through the site plan process.
ii. If, as part of the approval, it is determined that the development does not require rail safety mitigation measures, no RSRM report will be required in connection with subsequent applications; and
iii. If, as part of the approval, there is no determination as to whether rail safety mitigation measures are required, an RSRM report will be required in connection with subsequent applications.
- If an application has been deemed complete for a development prior to section 3.6 coming into effect, and:
(a) an RSRM report is peer reviewed and accepted by the City in relation to that application, then policies 3.6.1 to 3.6.5 and the portion of Schedule 3 relating to RSRMs will not apply to that application and any related subsequent application will be processed in accordance with policy 3.6.4; or
(b) the application is approved or approved in principle as a result of a decision of the Ontario Land Tribunal, then policies 3.6.1 to 3.6.5 and the portion of Schedule 3 relating to RSRMs will not apply to that application and any related subsequent application will be processed in accordance with policy 3.6.5.
- Schedule 3, Application Requirements is amended by adding the following additional requirement of the Official Plan: