70 Park Street East Inc. v. Mississauga (City), 2024 CanLII 48193

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 22, 2024

CASE NO(S).: OLT-23-000684

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 70 Park Street East Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit a 38-storey mixed use tower with 530 residential units

Reference Number: OZ/OPA 23-3 W1

Property Address: 23, 25, 27, 29 and 31 Helen Street North, 53 Queen Street East and 70 Park Street East

Municipality/UT: Mississauga / Mississauga

OLT Case No.: OLT-23-000684

OLT Lead Case No.: OLT-23-000684

OLT Case Name: 70 Park Street East Inc. v. Mississauga (City)

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

Applicant/Appellant: 70 Park Street East Inc.

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

Description: To permit

Reference Number: OZ/OPA 23-3 W1

Property Address: 23, 25, 27, 29 and 31 Helen Street North, 53 Queen Street East and 70 Park Street East

Municipality/UT: Mississauga / Mississauga

OLT Case No.: OLT-23-000684

OLT Lead Case No.: OLT-23-000684

Heard: May 15, 2024, by Video-Hearing

APPEARANCES:

Parties

Counsel

70 Park Street East Inc.

Rodney Gill

City of Mississauga

Andrew Biggart Lia Magi Baiqing Luo

MEMORANDUM OF ORAL DECISION DELIVERED ON MAY 15, 2024, BY N. EISAZADEH AND ORDER OF THE TRIBUNAL

1This Decision arises from a Case Management Conference (“CMC”) convened on the Appeal filed by 70 Park Street East Inc. (“Applicant”) in respect to both the Official Plan Amendment and Rezoning Applications to facilitate the development of a 38-storey residential building with ground floor commercial space (“Original Proposed Development”), that was refused by Council for the City of Mississauga (“City).

2A 15-day Merit Hearing was set at the first CMC held in October of 2023, and was scheduled to proceed on May 6, 2024. As a result of the cooperation of the Parties and their respective witnesses in narrowing the issues, the first five days were vacated and the Hearing was reduced to 10 days, set to commence on May 15, 2024. In the weeks and days leading to the scheduled start of the Hearing, as a result of the exchange of witness statements, without-prejudice settlement offers, and the issuance of other Tribunal settlement decisions respecting developments in the neighbourhood, as well as through the continued cooperation and settlement discussion among the Parties, an adjournment of the Hearing was administratively sought and granted in order that the Parties be afforded an opportunity to determine if settlement could be reached through further revisions of the Development Proposal that the Applicant expected it would make. At the same time, the Parties advised that their discussions had also helped scope the Hearing further down to seven days, and so a seven-day Hearing was rescheduled to commence on Monday, August 26, 2024.

3While the City consented to the Applicant’s Motion for Adjournment in order to entertain settlement discussions, Counsel for the City requested that the present CMC be convened in order to deal with an outstanding issue between the Parties which ultimately pertains to the necessary revisions to the timetable within the Procedural Order (“PO”) issued on April 10, 2024, on account of the adjourned Hearing.

4At paragraph 23, the PO sets out that any revisions to the Development Proposal including all drawings, plans, proposed instruments, etc., be delivered to the City by March 15, 2024. This is reiterated in the first entry on the timetable entitled “Summary of Dates” found on page 7 of the PO, wherein it is stated that March 15, 2024 “is the last date to provide copies of revised proposal, including all revised plans and drawings (if any).”

5On March 15, 2024, the Applicant did in fact submit a revised proposal to the City, and based on that proposal, all further steps ensued including the exchange of witnesses lists, experts meetings, agreed facts and witness statements that have already either been exchanged or taken place. The outstanding items remaining prior to the Hearing are only the exchange of reply witness statements and visual evidence, preparation of a joint book of documents, and a final hearing plan.

6In brief, the City submitted that its consent to the adjournment request to engage in settlement discussions did not constitute an agreement to allow the Applicant to further revise its Development Proposal for the purpose of the Hearing, that the Parties ought to be bound by the procedurally ordered timetable in this regard, and that the deadline for the final revised proposal has come and gone. In other words, the adjourned Hearing is still a continuation of the same Hearing and should be unchanged, simply by virtue of the settlement discussions taking place regarding revisions to the proposed development.

7The City argued that allowing the Applicant to revise its Development Proposal at this late stage of the proceeding would create a negative precedent of prejudicing a Municipality for agreeing to adjournment in order to engage in settlement discussions only to then be faced with proceeding to a Hearing that is fundamentally different. The City stated this creates prejudice as it would necessitate undue resources being expended in re-evaluating revised proposals which would involve new, updated or revised documents including witness statements, visual evidence, experts meetings, agreed facts, etc. The City submitted that from a procedural fairness perspective, this result is to be avoided.

8Notwithstanding that the Applicant’s revisions would seek only to reduce building height through a reduction of storeys, Counsel for the City submitted that the issue of height has been known from the outset and therefore is not an issue that only reasonably came to the attention of the Applicant through exchange of witness statements. In addition, what may appear to be a minor change addressing some key issues still has ramifications on all other elements of the Development Proposal and would still necessitate a re-evaluation of the Proposal in its entirety as well as for adjacent properties, the “Community Node” within which it exists, and its context within the City as a whole.

9The City concluded that had the revisions been delivered before the March 15, 2024, deadline set out in the PO, there would be no issue and that there must be some accountability for that agreed upon deadline. Without conceding its position, Counsel for the City added that if the Tribunal was so inclined to allow the Applicant to proceed to a Hearing with a revised Proposal, that a further short adjournment would be required to allow the City to respond to the revised Proposal with updated documents, witness statements, and other such evidence that would be filed and relied upon at the Hearing.

10Counsel for the Applicant made submissions in support of why it ought to be permitted to proceed to a Hearing on a revised Development Proposal. Namely, Counsel submitted that the revisions pertained only to a reduction in height by way of a reduction in storeys and the Applicant would agree to an Order setting out that limitation. He further submitted that these revisions were likely to narrow the issues in dispute and not expand them. He questioned the City’s argument of procedural fairness stating the City’s experts would already be required to opine on height which would necessarily include the relevant context, background and ability to opine on what height, in their opinion, was appropriate or went beyond appropriate. Further, that if the City is in a position to evaluate whether a Settlement Proposal is good planning during this period of adjournment, then it ought to be able to also evaluate a revised Proposal for the purposes of the Hearing within the same timeframe and resources. Applicant’s Counsel refused the notion that a reduction in height would necessitate a re-evaluation of the development as a whole, and stated it is rather part and parcel of the work already done leading to the present point.

11Counsel for the Applicant also stressed that this Appeal is the Applicant’s case regarding a Development Proposal that is supposed to be evaluated through a public process in terms of what constitutes good planning and not an adversarial one. He pointed to Rules 1.3, 1.4, and 1.6 of the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”) stating they speak to the Tribunal disposing of matters in the most fair, just, expeditious and cost-effective manner. The Applicant’s position is that the revisions are not fundamentally altering the Proposal and are limited to the issue of height alone. Counsel for the Applicant pointed to the language of the PO stating non-compliance with the March15, 2024, date regarding submission of revised Proposals could give rise to an adjournment, and not that it was bound to the Proposal submitted. Finally, while the Monday August 26, 2024 Hearing return date was agreed to at the insistence of the City, and in the Applicant’s view, this timeline affords the same opportunity for a review of the revised Proposal if delivered by the Applicant by early July, the Applicant was not opposed to a further short adjournment in order to accommodate the City’s review and preparation for a Hearing on its revised Development Proposal.

FINDINGS

12The issue is whether the Applicant ought to be permitted to proceed to the currently scheduled Merit Hearing on Monday, August 26, 2024, with a revised Development Proposal, having already passed the deadline within the PO for such final revisions to have been submitted to the City by March 15, 2024.

13Having considered the submissions of both Parties, the Tribunal found that in this instance, the Applicant shall be permitted to proceed to the Hearing with a revised Development Proposal that shall be limited and restricted to only a decrease in stories and height for the key reasons that follow.

14First, it was appreciated that the Motion for Adjournment was only consented to by the City in order to engage in settlement discussions, and acknowledged that in so doing, the City was not conceding to the amendment of the deadline within the PO for submission of final revisions to the Development Proposal. The City’s position is correct that the Monday, August 26, 2024, date is still the same Hearing. The City’s position was not lost, that to allow a change to the Development Proposal at this stage wherein litigation preparation has been underway and where witness lists, statements and meetings have already been exchanged and/or taken place would necessitate revisions to those statements, and to some extent, a reworking of each respective Party’s case. There is some prejudice that arises in having to conduct additional work to proceed to a Hearing with a revised Proposal.

15However, the prejudice arising from additional work to respond to limited revisions to the Development Proposal in this instance does not outweigh the prejudice to an Applicant who would otherwise be forced to proceed to a Hearing on an iteration of its Proposal in a form it no longer wished to pursue, otherwise withdraw its Appeal. Ultimately, this Appeal is the Applicant’s case and if the Applicant so wishes, it could withdraw this Appeal and submit a new Application with the revised Proposal. If this new Application was again denied by the City at first instance, which may be the logical conclusion if settlement discussions fail between the Parties here, then ultimately the Parties may end up back before this Tribunal. This outcome runs contrary to the Tribunal’s Rules and the Ontario Land Tribunal Act¹ which set out that matters are to be adjudicated in the most fair, just, efficient and cost effective manner.

16Significantly, it is imbedded in the PO directly at paragraph 23 that “the applicant acknowledges that any revisions to the proposal after that date [March 15, 2024] without the consent of the parties may be grounds for the Tribunal to adjourn the hearing”. In other words, the most practical remedy that addresses the prejudice to the City and which adheres to the Tribunal’s mandate to adjudicate in a fair and efficient manner is already outlined within the PO, that being an adjournment.

17Finally, the Tribunal found that the revisions sought by the Applicant, as stated by its Counsel to be limited to a reduction in height only, while may necessitate some reevaluation of the Development Proposal by the City, does not change the development so significant to constitute a fundamental change. It also ultimately does go to a key issue in dispute which is likely to narrow and scope the issues on the Hearing. To deny the Applicant an ability to revise its Proposal in this limited way, even at this stage, may also send the wrong message to future Parties appearing before this Tribunal that they are better advised to proceed to a Hearing on all issues despite that some may be settled or narrowed through reasonable revisions.

18As to the submissions made in respect of a further adjournment, while the tentative revised timetable proposed by Counsel for the Applicant was not unreasonable, given the Applicant’s consent, a further short adjournment was granted to allow the City to more reasonably deal with the logistics and mechanics of the deliverables within the PO prior to the Hearing. The details of the new Hearing date and log-in details are set out further below.

19Finally, the Parties advised that with this key issue now resolved by the Tribunal, they were confident they could work together in coming to a mutually agreeable revised timetable and PO without the assistance of the Tribunal. The Parties were directed to file the revised PO by no later than Tuesday, June 4, 2024.

NEXT EVENTS AND DETAILS

20A revised Procedural Order with updated timetable is to be filed no later than Tuesday, June 4, 2024.

21A six (6) day Merit Hearing has been scheduled to commence on Friday, October 18, 2024, at 10 a.m. by Video Hearing:

GoToMeeting: https://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

22Parties 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:

23Parties 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

24Persons 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.

25Individuals 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

26THE TRIBUNAL ORDERS that:

a. A six (6) day Merit Hearing has been scheduled to commence on Friday, October 18, 2024, at 10 a.m. by Video Hearing;

b. A revised Procedural Order with updated timetable is to be filed no later than Tuesday, June 4, 2024; and,

c. The Applicant shall be permitted to revise its Development Proposal in advance of the new Hearing date, which revisions shall be limited and restricted to only a decrease in stories and height.

27This Member is not seized.

28No further notice is required.

“N. Eisazadeh”

n. eisazadeh

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.

Footnotes

1. 1Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched.6, s.12(2).