Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 05, 2024
CASE NO(S).: OLT-23-000374
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Carlyle Investments Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit the construction of a forty-nine-storey residential building Reference Number: 22 203333 STE 13 OZ Property Address: 33-37 Maitland Street Municipality/UT: Toronto/Toronto OLT Case No: OLT-23-000374 OLT Lead Case No: OLT-23-000374 OLT Case Name: Carlyle Investments Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Carlyle Investments Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the construction of a forty-nine-storey residential building Reference Number: 22 203333 STE 13 OZ Property Address: 33-37 Maitland Street Municipality/UT: Toronto/Toronto OLT Case No: OLT-23-000375 OLT Lead Case No: OLT-23-000374
PROCEEDING COMMENCED UNDER section 114(15) of the City of Toronto Act, 2006, S. O. 2006, c. 11 Sched A
Applicant/Appellant: Carlyle Investments Inc. Subject: City of Toronto Site Plan Approval Description: To permit the construction of a forty-nine-storey residential building Reference Number: 22 203332 STE 13 SA Property Address: 33-37 Maitland Street Municipality/UT: Toronto/Toronto OLT Case No: OLT-23-000376 OLT Lead Case No: OLT-23-000374
Heard: December 5, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Carlyle Investments Inc. | Daniel Artenosi, Michael Cara |
| City of Toronto | Amanda Hill, Jason Davidson |
| Greenrock Investments Limited and The Second Greenrock Corporation | Maggie Bassani, Alexander Suriano (“in absentia”) |
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON DECEMBER 5, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the second Case Management Conference (“CMC”) before the Tribunal with respect to appeals under sections 22(7) and 34(11) of the Planning Act (“Appeals”) by Carlyle Investments Inc. (“Applicant”) resulting from the failure of the City of Toronto (“City”) to make a decision within the statutory timeframe on applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) pertaining to lands municipally known as 33-37 Maitland Street, in Toronto (“Subject Property”). The purpose of the OPA and ZBA is to allow for a forty-nine-storey residential building on the Subject Property.
2The Applicant has also submitted an appeal pursuant to s. 114(15) of the City of Toronto Act, seeking Site Plan Approval. However, that appeal was not before the Tribunal at the CMC. The Site Plan Approval has been administratively consolidated by the Tribunal with the OPA and ZBA Appeals. However, at the CMC, the Parties, unaware of the administrative consolidation, specifically indicated that they had no desire for the three appeals to be consolidated as Greenrock is not a Party in the Site Plan appeal. As discussed below, a Third CMC has been scheduled in this matter to address procedural issues leading to the Hearing, including but not limited to the administrative consolidation.
3The first CMC took place on August 10, 2023 (“First CMC”), wherein it was confirmed that adequate Notice for this matter had been provided and no further Notice was required. Moreover, at the First CMC, Greenrock Investment Limited and The Second Greenrock Corporation was granted Party status as one entity (“Greenrock”).
DRAFT PROCEDURAL ORDER AND ISSUES LIST
4A Procedural Order (“PO”) and Issues List (“IL”) were submitted prior to the CMC. It was not on consent, with the City and the Applicant advising that there was one point of contention between them with respect to one provision in the PO.
5At the Second CMC, the Applicant’s Counsel explained that the two dwellings currently located on the Subject Property have been designated by City Council under Part 4 of the Ontario Heritage Act (“OHA”). The appeal period has not expired, and an appeal may be filed regarding these designations. The City’s position was that the Applicant’s OPA/ZBA Appeals could only proceed after the OHA appeal(s), if any, were resolved. The Applicant’s position was that the OPA/ZBA Appeals could proceed independently of or simultaneously with the OHA appeal(s). This was a legal question, which, according to the Applicant’s Counsel, had not been extensively discussed or determined in the jurisprudence. The Tribunal stood down for 1.5 hours, at the request of the Parties, to provide them with the opportunity to discuss and attempt to reach a resolution.
6Ultimately, the Applicant and the City agreed that this legal question hinged on whether an OHA appeal was even filed, which remained unclear at this time. Moreover, the Parties requested to have additional time to discuss, as they may also be able to resolve the OPA/ZBA Appeals, rendering this legal issue moot. The Parties agreed to ask the Tribunal to schedule a Hearing, based on the issues listed in the draft IL (which included issues pertaining to heritage conservation matters), but also to schedule a third CMC well in advance of the Hearing. The Parties explained that this would allow them to update the Tribunal regarding the OHA matter, to request a motion date for the determination of the legal question if required, and request changes to the scheduled Hearing if needed.
7The Tribunal, after hearing submission from Counsel to both Parties, and the Counsel to Greenrock consenting as well, found this to be an appropriate course of action in the circumstances, and agreed to organize the upcoming steps in this proceeding as requested. It is noted that, while a Hearing has been scheduled, its timing and duration may be impacted by a potential OHA appeal(s). This is to be further discussed at the upcoming CMC.
8With respect to the PO and IL, while a draft was provided prior to this CMC, in light of the various issues that arose with respect to a potential OHA appeal, the Tribunal directed that the Parties provide an updated PO and IL, containing any required changes, prior to the third CMC. The Applicant’s Counsel undertook to submit those documents, or a status update, to the Case Coordinator by Tuesday, February 20, 2024. The Tribunal also directed that a provision be added to the PO to indicate a minimum amount of time (preferably thirty (30) or forty-five (45) days in advance of the Hearing) by which time the Tribunal is to be advised whether all Hearing dates are required.
MEDIATION AND SETTLEMENT
9The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties were directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.
THIRD CMC AND HEARING DATE
10As indicated above, the Parties requested that a Third CMC be scheduled well in advance of the Hearing, to allow the Parties to address procedural matters arising from a potential OHA appeal(s), such as any required motions or addressing any changes to the Hearing as scheduled. As such, the Tribunal scheduled a Third CMC to take place on Tuesday, February 27, at 10 a.m. by video hearing.
11The Applicant’s Counsel suggested that if an OHA appeal is filed, a first CMC for that appeal could proceed on the same day as the Third CMC for the subject Appeals. As there is currently no OHA appeal before the Tribunal, the Tribunal did not make a determination with respect to that suggestion. Rather, the Tribunal directed the Parties to make that request to the Tribunal’s Case Coordinator if and when an OHA appeal is filed, and, if appropriate, it may be considered by the Tribunal.
12With respect to the Hearing date, the Parties advised that, due to the timelines indicated in the PO, a Hearing in late Fall of next year would be appropriate. With respect to the type of Hearing, the Applicant suggested that an in-person Hearing may be appropriate but was open to a video hearing as well. The other Parties expressed a willingness to schedule a video hearing but would have to obtain further instructions if the hearing was to proceed differently. The Tribunal determined that a video hearing would be scheduled, and that if the Parties wished to proceed differently (either in-person or hybrid), they could make that request to the Tribunal’s Case Coordinator as soon as possible, and not less than sixty (60) days in advance of the Hearing. Lastly, with respect to the number of Hearing days, based on the IL, the Tribunal agreed that a fifteen (15) day Hearing would be sufficient. A video hearing has now been scheduled for fifteen (15) days, to take place commencing at 10 a.m. on Monday, November 4, 2024, continuing to Wednesday, November 27, 2024, and excluding November 11, 18, and 19, 2024.
13On the applicable dates, the Parties and Participants are to use the following coordinates:
Tuesday, February 27, 2024, at 10 a.m. (One-day Third CMC Hearing)
GoToMeeting: https://global.gotomeeting.com/join/909787981
Access code: 909-787-981
Audio-only line: (Toll-Free) or 1-888-455-1389 or +1 (647) 497-9391
Audio-only access code: 909-787-981
Monday, November 4, 2024, at 10 a.m. (Fifteen-day Merit Hearing, excluding November 11, 18, and 19, 2024)
GoToMeeting: https://global.gotomeeting.com/join/979388733
Access code: 979-388-733
Audio-only line: (Toll Free) 1-888-299-1889 or +1(647) 497-9373
Audio-only access code: 979-388-733
14Parties 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.
15Parties 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
16Persons 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 as indicated above.
17Individuals 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
18The TRIBUNAL ORDERS as follows:
a. The Parties are to provide a Procedural Order and Issues List, or a status update, to the Case Coordinator by Tuesday, February 21, 2024.
b. A Third Case Management Conference is scheduled to take place by video hearing on Tuesday, February 27, 2024.
c. The video hearing in this matter is scheduled to commence on Monday, November 4, 2024, for fifteen (15) days, excluding November 11, 18, and 19, 2024.
19The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“Bita M. Rajaee”
BITA M. RAJAEE
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.