630 The East Mall Inc. v. Toronto (City), 2024 CanLII 48176

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 22, 2024

CASE NO(S).: OLT-23-001259

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 630 The East Mall Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a residential development, containing one tall building with two 24-storey towers and one 10-storey mid-rise building

Reference Number: 22 207881 WET 02 OZ

Property Address: 630 The East Mall

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-23-001259

OLT Lead Case No.: OLT-23-001259

OLT Case Name: 630 The East Mall Inc. v. Toronto (City)

Heard: May 8, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

630 The East Mall Inc.

Barry Horosko

City of Toronto

Nathan Muscat

Jamie Dexter

MEMORANDUM OF ORAL DECISION DELIVERED BY KURTIS SMITH ON May 8, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“CMC”) regarding the Zoning By-law Amendment (“ZBA”) appeal sought by 630 The East Mall Inc. (“East Mall”) due to the failure of the City of Toronto to make a decision within the statutory timeframe.

2The background of the appeal is found in the first CMC decision issued on April 2, 2024 by Member Best, and need not be repeated.

3The purpose of this CMC was to consider the deferred Party status request of Mr. Peter Turano, review the draft Procedural Order (“PO”) and Issues List (“IL”), and schedule the merit hearing.

PARTY STATUS REQUEST

4At the first CMC to this matter, Member Best granted Participant status to Mr. Turano, as “the Tribunal finds that Mr. Turano has a genuine interest in the matter and deserves the opportunity to express his concerns, in writing, even if his Party status request is not granted at the next CMC.” Additionally, the Tribunal provided direction to Mr. Turano, as outlined in the first CMC as follows:

[21] … Since there will likely be continued without prejudice discussions, there is an opportunity for Mr. Turano to reach out to both Counsels to assist in his refining of his concerns, which both Counsels have consented to do.

[22] Prior to the next CMC, if Mr. Turano is still seeking Party status, it is an expectation that he will obtain clarity on the Rules and the duties and obligations of a party. He will be required to articulate and scope his land-use planning issues and present a case plan on how he will provide objective evidence to support his position with expert witnesses.

5Mr. Turano communicated to the Tribunal that he was of the understanding that this CMC would be the forum to discuss his concerns about the ZBA. Mr. Horosko and Mr. Muscat confirmed that they had offered to speak with Mr. Turano following the first CMC to move the matter forward. Mr. Turano provided the Parties and the Tribunal with email correspondence prior to this CMC that outlined his concerns, and he indicated that he had contacted an “Environmental Educator and Author” to be a potential expert witness.

6Mr. Muscat submitted that the City takes no position on the Party status request.

7Mr. Horosko continued to object to Mr. Turano’s Party status request on the basis that:

a. Mr. Turano addresses his two issues in general terms and has not proposed triable issues;

b. Mr. Turano has not confirmed that he has/will retain a witness(es) or the nature of any report or investigation that will be carried out; and

c. The lone email communication from Mr. Turano is insufficient and Participate status is a more appropriate role.

8He reiterated his position at the first CMC, which is reflected in paragraph [14] of the Tribunal’s decision:

[14] Counsel for East Mall opposed the request primarily due to the scope of the environmental issue(s) and lack of clarity on the calling of expert witnesses. Counsel submitted that the environmental issues could affect the number of anticipated days for a merit hearing and that without a scoping of the issues, this could be prejudicial to his client. Counsel also submitted that it is not satisfactory for a Party to merely ask questions and that a proper case is needed to be presented with expert witnesses that can be subject to cross-examination. Counsel stated no objections in granting Mr. Turano Participant status.

9The Tribunal asked Mr. Turano if had reviewed the written Decision of the first CMC and understood the direction and expectations of the Tribunal. Mr. Turano advised that he had reviewed the Decision and believed he had fulfilled these obligations. He went on to state that he is the only individual seeking Party status and is not in the financial position retain legal counsel or expert witnesses.

10Upon considering the above submissions, the Decision of the first CMC and the “obvious factors”, as set out by former Vice-Chair S.J. Stefanko in 1137528 Ontario Ltd. v. Oakville, 2010 CarswellOnt 18558 (OMB), the Tribunal confirmed Participant status for Mr. Turano, ultimately refusing the Party status request. As Mr. Turano did not see through his obligations of the first CMC, being: communicating with the City and/or East Mall, clearly articulating and scoping his land-use planning issues, and presenting a case plan on how he will provide objective evidence to support his position with expert witnesses, the Tribunal finds he has no genuine interest and would not assist the Tribunal in the making its decision.

NEXT STEPS

11Prior to the commencement of this CMC, the Parties submitted the draft PO and IL, on consent, indicating that four to five days would be required to fully address the appeal.

12In addition to scheduling the hearing dates, Mr. Muscat requested that a third CMC be scheduled in mid-July, to be used as a Settlement Hearing in the event a full resolution is obtained, following the City’s June Council session.

13The Tribunal advised that five consecutive days are available for the Merit Hearing in respect of this matter. In the event the Parties come to a resolution of the appeal, the Tribunal directed the Parties to contact the Case Coordinator to request a prompt Settlement Hearing date. The Merit Hearing is scheduled to commence on Monday, November 4, 2024, at 10 a.m. by Video Hearing.

14Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/909787981

Access code: 909-787-981

15Parties 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.

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: +1 (647) 497-9391 or (Toll-Free) 1-888-455-1389. The access code is the same as the access code noted 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 Video Hearing 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. That the Merit Hearing is scheduled for five-days, commencing on Monday, November 4, 2024, at 10 a.m. by Video Hearing, as set out above.

b. That the Procedural Order included as Schedule 1 of this Order shall govern the proceedings leading up to and including the Merit Hearing for this matter.

19The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Kurtis Smith”

Kurtis Smith

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.

SCHEDULE 1