Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 07, 2024
CASE NO(S).: OLT-23-001313
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Terry Cassaday
Applicant: Tribute (Av & Dav) Limited
Subject: Zoning By Law Amendment – Appeal of Decision
Description: To facilitate the development of a 35-storey mixed use building
Reference Number: 21 178720 STE 11 OZ
Property Address: 148-158 Avenue Road and 220-234 Davenport Road
Municipality: City of Toronto
OLT Case No.: OLT-23-001313
OLT Lead Case No.: OLT-23-001313
OLT Case Name: Cassaday v. Toronto (City)
Heard: March 19, 2024 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Tribute (Av & Dav) Limited (Moving Party/Applicant) | David Bronskill |
| Terry Cassaday (Responding Party/Appellant) | Ian Flett |
| City of Toronto (Responding Party) | Kasia Czajkowski |
| ABC Residents Association (Responding Party) | Christina Kapelos |
DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This is a Motion brought by the Applicant, Tribute (Av & Dav) Limited, to dismiss the Appeal brought by Terry Cassaday concerning the City of Toronto’s (“City”) passing of Zoning By-law 1107-2023 (“ZBA”). The purpose of the subject By-law is to permit the proposed development at 148-158 Avenue Road and 220-234 Davenport Road (the “Subject Lands”), being a 35-storey mixed use building, containing 330 dwelling units and 500 square meters of non-residential gross floor area.
2The Appellant filed his appeal contending (in very general terms) that the Application is not consistent and does not conform with the applicable provincial and municipal policies, nor does it generally represent good planning. Furthermore, the Appellant asserts that the Application fails to satisfy the intent of the City’s Tall Building Design Guidelines, claiming that it does not represent an appropriate transition with other existing mid-rise and high-rise buildings in the surrounding neighbourhood. A more detailed summary of the Appellant’s stated grounds of appeal are listed at paragraph 16 below.
3The Applicant now brings a motion to dismiss the Appellant’s Appeal, contending that he has not disclosed valid land use planning grounds as contemplated at subsection 34(25)1.i of the Planning Act, and/or has no reasonable prospect of success as contemplated at subsection 19(1)(c) of the Ontario Land Tribunal Act, 2021 (“OLT Act”).
Preliminary matters
4With this hearing being the first event of the proceedings, the Tribunal is obliged to deal with certain case management matters prior to the motion. This includes confirmation of service of the Notice of Hearing, as well as requests for Party and Participant status.
5The Tribunal finds no issue with service of the Notice of this hearing, and so no further notice is required.
6The Tribunal has also decided to defer all participant status requests to a subsequent hearing event because participants have no standing to participant in the present motion (the holding of such a hearing will depend on the outcome of the present motion).
7Turning to a request for Party status from ABC Residents Association (“ABC”), the Tribunal finds that their Party status request should be dealt with now, prior to the hearing of the motion. Unlike a Participant, a Party may have standing as part of a Motion. Additionally, in the present case, ABC has had the foresight to submit responding motion materials, just in case it is granted Party status. As a result, the Tribunal finds that there will be no prejudice suffered to the existing parties if ABC is added as a party at this late juncture before the motion is heard.
8ABC explained that they are an incorporated rate-payer association who are very active in the geographic area of the subject development proposal, and they are sophisticated in terms of understanding how planning processes work and being familiar with the Tribunal’s rules of practice and procedure. ABC further confirmed that they made submissions to council with respect to the present planning matter and submitted that they are uniquely positioned to add value to the Tribunal’s proceedings by providing the perspective of community residents on a broad scale. Lastly, ABC assured the Tribunal that, if the matter goes to a Merit Hearing, they intend to call their own expert(s) to testify. To be clear, however, regarding the present motion, ABC confirmed that they’re involvement will be limited to adopting and relying upon the evidence and submissions of the moving party. In other words, they support the motion to dismiss without having anything further to add (this is reflected in their responding materials).
9Council for the Applicant and the City both confirmed that they do not oppose ABC’s request for Party status. The Appellant, however, opposes the request because he claims that ABC adds no value to the motion proceedings.
10Despite finding that ABC does not significantly contribute to the present motion, the Tribunal nevertheless accepts ABC’s submissions and correspondingly grants them Party status. While ABC will contribute very little to the present motion, the Tribunal grants them Party Status now because it finds value in simply knowing where ABC stands with respect to the motion.
Motion to dismiss
Overview of the Subject Property and Application
11The Applicant is the owner of the Subject Lands, which are located at the northwest corner of the intersection of Avenue Road and Davenport Road. The Subject Lands are rectangular in shape and are approximately 1,961 square metres (“sq m”) in size with approximately 33.8 metres (m) of frontage on Avenue Road and 57.6 m on Davenport Road. The Subject Lands are currently occupied by a number of low-rise residential and commercial buildings at various municipal addresses. The Subject Lands are designated as “Mixed Use Areas – 3” under the City of Toronto Official Plan (“City OP”).
12To the North of the Subject Lands, at 164-170 Avenue Road, is a 20-storey residential building known as “Pears on the Avenue”. The Appellant owns a unit in this building.
13The subject Application was originally filed with the City in 2021. At that time, the plan proposed a 35-storey mixed-use building containing 355 residential units and 375.9 sq m of non-residential gross floor area. The plan was subsequently subjected to City review, reports, and community consultation, as well as staff and community meetings. As part of these meetings, the relationship between the proposed building and the Appellant’s building, Pears on the Avenue, was considered.
14In an apparent response to City and community concerns, the Applicant’s proposal was revised to relocate the tower further west on the Subject Lands, the tower floor plate was reduced from 798 sq m to 750 sq m, and design changes were also made in an effort to mitigate interference with sky views from Pears on the Avenue. The Tribunal understands that these revisions resulted in the current proposal which is now before the Tribunal.
15Following the Applicant’s resubmission, as described above, the East York Community Council recommended approval, City staff issued a Final Report recommending approval, and eventually City Council enacted By-law 1107-2023 to permit the revised proposal. Upon the passing of this By-law, the Appellant filed his appeal.
Stated Grounds for Appeal
16The stated grounds for the Appeal are:
The Development fails to conform to the intent of the Tall Building Design Guidelines as it does not fit in nor represent an appropriate transition with existing mid-rise and high-rise buildings in the surrounding neighbourhood;
The Development is not consistent with Policies 1.1.1, 1.1.3.2, 1.1.3.3, and 1.1.3.4 of the Provincial Policy Statement, which require that development be contextually appropriate in terms of land use patterns, density, transit, and intensification. The Appeal alleges that the Development’s mass and scale are incompatible with the established character of the community and that the Development is not suitable or appropriate in terms of height, massing, scale, and built form;
The Development is not consistent with the Growth Plan for the Great Golden Horseshoe. As the Subject Lands are outside of a Major Transit Station Area, the Subject Lands should be developed at a lesser density, consistent with the existing buildings in the surrounding neighbourhood;
The Development does not conform with the City OP. The Appeal states that while the Subject Lands are located within the Downtown and Central Waterfront areas, which are suitable for growth, the Property is also designated as Mixed Use.
The Appeal references the following policies in the City OP:
a) Policy 4.5(2): the Development will destabilize and undermine the established identity and physical character of the existing community. The height of the Development exceeds all other immediate adjacent buildings and does not represent an appropriate transition;
b) Policies 3.1.2(1) and 3.1.2(2): the Development fails to provide appropriate setbacks from the development to the north;
c) Policies 3.1.2(5), 3.1.2(6), and 3.1.2(7): the Development fails to conform to these policies by not respecting the character of the neighbourhood, proposing excessive height and mass impacting sunlight within the public realm and by ignoring the need to properly transition in scale between buildings of different heights and densities; and
d) Policies 3.1.3.1, 3.1.3.3., and 3.1.3.5: the Development fails to conform to policies relating to contextual integration. The Development is not a harmonious fit between developments of different scales in terms of streetwall heights and setbacks. The Development does not have adequate setbacks and stepbacks, particularly from the north, and disregards the existing built form context and the existing and proposed relationship between buildings; and,
- The Development does not conform with Policies 6.20 and 6.21 of OPA 406, as it fails to conform to the planned context within Mixed-Use Areas – 3, which plans to include buildings having a mid-rise scale.
Grounds for Motion
17The Applicant has taken a two-pronged approach to its motion. First, the Applicant contends that the Notice of Appeal does not disclose any apparent land use planning grounds on which the Tribunal could allow all or part of the Appeal, and accordingly requests that the Appeal be dismissed pursuant to s. 34(25)1.i of the Planning Act (“s. 34(25)1.i Motion”). In the alternative, the Applicant contends that the Appeal has no reasonable prospect of success, and thus requests that the Appeal be dismissed pursuant to s. 19(1)(c) of the OLT Act (“s. 19(1)(c) Motion”). For ease of reference, the relevant excerpts of these sections are copied below:
Planning Act s. 34(25)1.i
Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:
- The Tribunal is of the opinion that,
i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,
OLT Act s. 19(1)(c)
[…] the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,
(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;
Analysis and findings
18Under both s. 34(25)1.i of the Planning Act and s. 19(1)(c) of the OLT Act, the Tribunal recognizes that the onus is on the Appellant to prove that the Appeal has planning merit. However, the Tribunal finds that the scope of that proof, while often very similar, is potentially different between the two statutory sections.
19Under a s. 34(25)1.i Motion, the Appellant must first show that the Notice of Appeal includes cogent language illustrating legitimate planning grounds, and include sufficient particulars to explain how the subject Application fails to meet the requisite legislative tests necessary to be approved (i.e. satisfaction of s. 3(5) and/or s. 24(1) of the Planning Act).
20Additionally, jurisprudence of both the Tribunal and the Divisional Court has repeatedly confirmed that an Appellant must also prove that the stated planning grounds are not mere apprehensions or concerns about planning issues, by demonstrating, through their conduct, diligent efforts to pursue the appeal to a degree which justifies a hearing. An example of such efforts/conduct includes the compilation of evidence (i.e. expert evidence) which supports the Appellant’s position. This is what is meant by authenticating the stated reasons for the appeal and/or determining whether the stated issues are worthy of the adjudicative process (see: Toronto (City) v. East Beach Community Assn., 1996 CarswellOnt 5740 (O.M.B.), at para. 9).
21The Tribunal emphasizes that, for the purpose of responding to a s. 34(25)1.i Motion, the Appellant need not prove the merits of their Appeal. A fully contested merit hearing is reserved for such a purpose. Instead, as stated above, it is sufficient for the Appellant to merely prove that the Notice of Appeal sets out cogent planning grounds, includes sufficient particulars, and they have conducted diligent efforts in pursuit of their appeal from an evidentiary standpoint.
22Moving on to consider the Applicant’s s. 19(1)(c) Motion, the Tribunal recognizes that the interpretation and scope of a s. 19(1)(c) Motion has not yet been subject to the same well-settled jurisprudence by the Tribunal or the Courts, compared to a s. 34(25)1.i Motion. Nevertheless, the Tribunal finds that the plain meaning of the words of the section may open it up to greater potential grounds to dismiss an Appeal, compared to what is covered by a s. 34(25)1.i Motion.
23For example, where a municipality refuses to provide necessary measures to enable services that are required to proceed with a proposed development, a related ZBA appeal could be dismissed under s. 19(1)(c) of the OLT Act, even if it cannot be dismissed under s. 34(25)1.i of the Planning Act (see, for example: Aragon (Hockley) Development (Ontario) Corporation v Mono (Town), 2024 CanLII 16985 (ON LT).
24While finding that the scope of the potential grounds may be greater for a s. 19(1)(c) motion compared to a s. 34(25)1.i motion, the Tribunal finds that, in the present case, the moving party has not distinguished between the two statutory sections when stating its motion-grounds or making its submissions. The Tribunal concludes, as a result, that the grounds that they are bringing in support of their Motion are essentially the same for each statutory basis. Consequently, the following analysis will examine the Applicant’s grounds and submissions interchangeably with respect to the applicability of both s. 34(25)1.i of the Planning Act, and 19(1)(c) of the OLT Act.
25Moving on to said analysis, the Tribunal notes that the Applicant acknowledges that the Notice of Appeal deploys cogent planning language, and the Tribunal comes to the same conclusion. However, the Applicant nevertheless submits that the stated grounds lack authenticity, are not legitimate, are unsubstantiated, and are otherwise “made without providing any indication of what evidence would be presented or how their issues would be adjudicated”. To address these assertions, both parties presented expert evidence on the subject of Land Use Planning.
26The Tribunal finds that the purpose of the parties’ respective presentations of Land Use Planning evidence serves different purposes for each party. The purpose for the Appellant is to prove that he is diligently pursuing his Appeal, and he has evidence supporting his appeal. On the other side, the Applicant’s purpose is clearly to undercut the utility of the Appellant’s evidence.
27In this regard, the Applicant takes the position that the Appellant’s evidence is so full of errors that it amounts to no evidence at all. Consequently, despite it being generally evident that the Appellant has made efforts to support his appeal with expert evidence, the Applicant submits that the Appeal has nevertheless failed to demonstrate ‘authenticity’ or ‘worthiness of the adjudicative process’ because it remains unsupported by bono fide Land Use Planning evidence.
28On these points, the Tribunal finds in favour of the Appellant in two ways. First, the Tribunal finds that the Appellant has proven that he is diligently pursuing his Appeal by obtaining evidence in support of his position. The Tribunal notes that both parties’ Land Use Planning witnesses were duly qualified as experts. Secondly, while the Applicant managed to elicit certain acknowledgments from the Appellant and/or his witness regarding errors within the Appellant’s evidence, the Tribunal is not persuaded to find that the Appellant’s evidence has been completely undermined to a degree whereby the evidence should be disregarded entirely.
29To be clear, the Tribunal makes no findings with respect to any preference of one parties’ evidence over the others. A motion to dismiss is not the proper forum for such a contest. What the Tribunal does find now is that there exists a lively and adequately founded debate between the parties with respect to the merits of the Appeal. Both parties vigorously defended their respective positions and tendered opposing evidence in support of their contrary submissions. Having found this, the Tribunal concludes that the applicant’s motion is effectively doomed because the motion proceedings have demonstrated that the case warrants a proper merit hearing to fully test the parties’ respective evidence and submissions.
30In summary, the Tribunal finds that the Appellant has successfully proven that it has diligently pursued his appeal from an evidentiary standpoint. As a result, the Tribunal concludes that the Notice of Appeal discloses land use planning grounds on which the Tribunal could allow all or part of the Appeal. The Tribunal further does not find that the Appeal has no reasonable prospect of success, given that the Appellant has demonstrated that he is prepared to bring legitimate contesting Land Use Planning evidence. Consequently, the Tribunal finds that the Motion to Dismiss has failed on the bases of both. 34(25)1.i of the Planning Act and s. 19(1)(c) of the OLT Act.
31To be clear again, this does not mean that the Tribunal has considered whether the appeal is more likely to succeed as opposed to fail; it just means that the Appellant has successfully overcome the relatively low threshold necessary to show that the matter warrants a merit hearing.
Other grounds of the motion
32The Tribunal notes that the Applicant made submissions contending that the Motion to Dismiss should be granted, at least in part, because the Appellant is insincere as it relates to his stated grounds of Appeal. Thus, the Applicant contends, the Appeal lacks the necessary ‘authenticity’ to warrant a merit hearing. More specifically, the Applicant claims that the Appellant listed a number of planning grounds that do not genuinely concern him, while his true motivation to defeat the Application is to protect his views of the downtown City-skyline from his unit at Pears on the Avenue.
33On this point, the Tribunal finds that it received insufficient evidence to assess the Appellant’s motivation, and furthermore that a determination of the Appellant’s motivation for filing the appeal is not a factor in deciding whether the Appeal is ‘authentic’, as it may be contemplated through an analysis concerning s. 34(25)1.i of the Planning Act and/or s. 19(1)(c) of the OLT Act. The Tribunal notes that the Tribunal may consider the motivation of an Appellant through a Motion to Dismiss within the context of the provisions set out in s. 34(25)1.ii, s. 34(25)1.iii, and/or s. 34(25)1.iv of the Planning Act, or s. 19(1)(d) of the OLT Act; however, consideration of these sections were not raised within the context of the present motion and clearly do not apply. As a result, the Tribunal finds that the motivation of the Appellant is both unproven and irrelevant as it pertains to determining the present motion.
Scheduling of a CMC
34At the conclusion of the hearing of the motion, the Tribunal scheduled a Case Management Conference (“CMC”) hearing on a precautionary basis to take place in the event that the Motion to Dismiss the Appeal is dismissed. Given that the Tribunal has now found the motion to be unsuccessful, the Tribunal confirms that this CMC will take place as scheduled on Thursday, May 23, 2024 at 10 a.m. by VH. No further Notice is required.
35Parties 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/927921077
Access code: 927-921-077
36Parties 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
37Persons 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) 497-9391. The access code is as indicated above.
38Individuals 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.
ORDER
39THE TRIBUNAL ORDERS that:
ABC Residents Association is granted Party status;
The Applicant’s Motion to dismiss the Appeal, on the basis that the Notice of Appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal, and/or the proceeding has no reasonable prospect of success, is dismissed; and
The date and particulars of a subsequent CMC are set out above. All outstanding participant status requests shall be dealt with at that time. The Parties shall also have a draft Procedural Order prepared and filed in advance of this CMC.
40The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.
“K.R. Andrews”
K.R. ANDREWS
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.