ISSUE DATE:

September 13, 2024

CASE NO(S).:

OLT-24-000494

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

1000439324 Ontario Inc.

Appellant:

Pamela Harakh and Harry Harakh

Appellant:

Darryl and Teresa Davis

Subject:

Proposed Official Plan Amendment No. 18.6

(Village Local Centre)

Municipality:

City of Richmond Hill

OLT Case No.:

OLT-24-000494

OLT Lead Case No.:

OLT-24-000494

OLT Case Name:

Davis v. York (Regional Municipality)

Heard:

August 29, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Regional Municipality of York

Samantha Whalen (in absentia)

City of Richmond Hill

Raj Kehar Carlton Thorne

1000439324 Ontario Inc.

Aaron Platt

Pamela Harakh and Harry Harakh

Jason Cherniak

Teresa Davis and Darryl Davis

Paul De Melo

1277773 Ontario Ltd. Aaron Platt

Sunnup Realty Inc. Katarzyna Sliwa Max Reedijk

Lalu 26 Benson Holding Inc. David Bronskill

MEMORANDUM OF ORAL DECISION DELIVERED BY A. MASON ON AUGUST 29, 2024, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1A first Case Management Conference (“CMC”) was held on August 29, 2024, in respect of a number of Appeals pursuant to s. 17(36) of the Planning Act, R.S.O., c. P.13, as amended (“Act”), of the decision of the Council of the Regional Municipality of York (“Region”) to approve Amendment No. 18.6 (“OPA 18.6”) to the Official Plan of the City of Richmond Hill (“City OP”).

2OPA 18.6 provides a more detailed planning policy and schedules related to the Village Local Centre as part of the City OP update process. OPA 18.6 addresses matters such as the long-term planning visions for the area, permitted land use, design elements, public realm, mix of land use density of development and adjustments to boundaries. OPA 18.6 incorporates direction from the Region’s Official Plan regarding Protected Major Transit Station Areas within and surrounding the Village Local Centre and proposes technical changes to the City OP re-designating certain lands to “Regional Mixed-Use Corridor”.

3Two Parties appealed OPA 18.6 within the statutory timeframe as follows:

a. 1000438324 Ontario Inc. (“1000438324”) is the owner of 10006-10030 Yonge Street that is within the Village Local Centre in OPA 18.6 and who oppose policies generally related to limitations on building height, density, housing mix and site specific features; and

b. Pamela Harakh and Harry Harakh are the owners of 66 Major Mackenzie Drive West that is within OPA 18.6 area and generally oppose policies related to road extensions and density.

NOTICE

4An Affidavit of Service sworn on July 29, 2024, attesting to the giving of Notice for this proceeding, was marked as Exhibit 1.

ROLE OF THE REGION

5In advance of the CMC, counsel for the City advised that the Region would not be participating in the hearing event despite being the Approval Authority for OPA 18.6 at the time it was adopted. Counsel for the City stated that the Region and the City took the position that, as a result of Bill 23 and Bill 185 coming into force as of July 1, 2024, the Region is no longer the Approval Authority with respect to amendments to the City OP and is not required to participate in the matter before the Tribunal. Counsel for the City advised that they presume to be taking carriage of the matter and to step into the role of Respondent for the purposes of the CMC and any future hearing events. The Region was not in attendance at the CMC and provided no correspondence to the Tribunal in advance.

6At the CMC, the Tribunal agreed that as of July 1, 2024, the Region is no longer the Approval Authority for amendments to the City OP; however, the Tribunal did not agree that the Region could be released from its role as Respondent to the Appeals at this time. In anticipation of submissions to be made at the CMC with respect to alleged defective service of the Notice of Decision by the Region and specific entities seeking to have Appellant status recognized, the Tribunal directed that the Region would continue as the Respondent for the time being. The result of the discussion of those status requests at the CMC is set out below.

STATUS REQUESTS

a. Appellant Status Confirmation

7Teresa Davis and Darryl Davis (“Davis”), submitted an Appeal of OPA 18.6. In the appeal submission cover letter to the Tribunal dated April 26, 2024 (“Cover Letter”), the Region queried whether Davis had filed the Appeal within the statutory time frame. In the Cover Letter, the Region noted that counsel for Davis filed an email with their client’s Notice of Appeal on April 15, 2024, being the last day of the statutory appeal period. However, the Region’s Notice of Decision stipulates that a Notice of Appeal may not be sent by email and must be received in writing. In the Cover Letter, the Region states that the written Notice of Appeal along with the Region’s processing fee were filed and received on April 16, 2024, the day after the statutory time period set out in s. 17(36) of the Act. The Cover Letter asks the Tribunal to determine the validity of the Davis Appeal in accordance with Rule 5.5 of the Rules of Practice and Procedure (“Rules”)

8At the outset of the CMC, the Tribunal heard submissions from counsel for Davis that the Appeal was valid as the email containing the Notice of Appeal was filed within the statutory time frame in the Act and that the Region had recently accepted appeals in the same manner with the couriered copy and fee following without dispute. Counsel for the Region was not in attendance at the CMC to provide its position and no correspondence beyond the Cover Letter itself from the senior planner for the Region was received by the Tribunal on the matter. Despite having taken the position that it is the Approval Authority going forward, the City advised the Tribunal they took no position on the validity of the Davis appeal.

9The Tribunal considered the submissions of counsel for Davis, the lack of submissions from the Region and that the City was mute on the issue and confirmed the validity of the Appeal and the Appellant status of Davis.

b. Participant Status Request

10In advance of the CMC, the Tribunal received one request for Participant status from the Village Core Residents Association submitted by Brian Chapnik. Prior to the CMC, Mr. Chapnik advised the Tribunal that the Village Core Residents Association was not incorporated and that he would instead be seeking Participant status on his own behalf. A second Participant status request to that effect was provided to the Tribunal. Mr. Chapnik was not in attendance at the CMC; however, Anthony Faccia was in attendance on his behalf.

11The Parties provided no objection to the request and the Tribunal granted Participant status to Brian Chapnik.

c. Party Status Request

12In advance of the CMC, the Tribunal received a Party status request from 1277773 Ontario Ltd. (“1277773”), that has a joint interest in the lands municipally known as 10006-10030 Yonge Street with 1000439324. Counsel advised the Tribunal that the interests of 1277773 are aligned with 10000439324 and that granting Party status would not add issues or extend the length or complexity of a hearing. The Parties provided no objection to the request and the Tribunal granted Party status to 1277773.

d. Appellant Status Confirmation Request

13In advance of the CMC, Sunup Realty Inc. (“Sunup”) and Lalu 26 Benson Holdings Inc. (“Lalu”) each provided correspondence to the Tribunal advising that they did not receive the Notice of Decision from the Region. Sunup and Lalu both requested the Tribunal order the Region to re-issue the Notice of Decision pursuant to s. 17(35) of the Act or, in the alternative, grant them Party status. No correspondence was received in advance of the CMC from the Region responding to the claim that the Notice of Decision was not provided or a position on the request for Appellant or Party status by Sunup and Lalu.

14Sunup is the owner of 10350 Yonge Street, which is located within the boundaries of OPA 18.6. Lalu is the owner of 10366 Yonge Street, which is also located within the boundaries of OPA 18.6 and adjacent to the Sunup property. In their correspondence to the Tribunal, Sunnup and Lalu both take the position that they duly provided comments on OPA 18.6 to the City during the public process through their respective urban design and land use planning consultants and requested that the Notice of Decision be provided to their consultant.

15At the CMC, counsel for the City advised the Tribunal that due to Bill 23 and Bill 185 and their new role as the Approval Authority, they asserted that the Region did correctly provide the Notice of Decision to the appropriate consultant for Sunup and Lalu. As a result, the City opposed the request for confirmation of Appellant status.

16Without sworn affidavit evidence attesting to the facts in dispute regarding the Notice of Decision and legal submissions thereon, the Tribunal determined that a Motion is required in order to determine whether the Notice of Decision was properly given pursuant to the requirements in the Act. The Tribunal set down a date for a written Motion in accordance with Rule 10 of the Rules, wherein Sunup and Lalu will be the Movers and the Region the Respondent, unless submissions are incorporated into the responding Motion record that persuade the Tribunal responsibility lies with the City and not the Region. The Motion shall consider:

a. The Movers of the Motion request the Respondent demonstrate that full and proper Notice of Decision approving OPA 18.6 was provided to them by the Region pursuant to the requirements in the Act;

b. In the alternative, the Respondent is to provide options to the Tribunal on how to remedy the Notice of Decision and whether such remedy is properly provided by the Region or the City in consideration of the changes to the Approval Authority brought about by Bill 23 and Bill 185.

17Counsel for the City requested that it be allowed to provide submissions on all matters to be adjudicated at the Motion and the Tribunal agreed.

18Counsel for Sunup and Lalu requested that Party status be conferred on their clients at the CMC without prejudice to the results of the Motion to determine their request to confirm Appellant status. The City had no objection to the request and the Tribunal conferred Party status on Sunup and Lalu noting that such status was without prejudice to the results of the Motion.

MOTION

19The Tribunal set down a date for a written Motion to consider the issues set out in paragraph [16] above on Friday, October 4, 2024.

20The Member will remain seized of the matter for the purposes of the Motion and no further notice is required.

SECOND CMC

21Counsel for the City requested another CMC to further refine the issues between the Parties (“Second CMC”) and the Tribunal set down Friday, November 27, 2024, for the hearing event.

22The Second CMC is scheduled to proceed by video as follows:

GoTo Meeting: https://global.gotomeeting.com/join/638422541

Access Code: 638-422-541

23Parties are asked to log into the Video Case Management Conference at least 15 minutes before the start of the event to test their video and audio connections. Parties 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 the same as mentioned 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 Case Management Conference by video to ensure that they are properly connected to the event at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

NEXT STEPS BEFORE SECOND CMC

26In advance of the Second CMC, the Tribunal directs the following to be carried out by the Parties:

a. City to circulate a marked-up version of OPA 18.6 that identifies the portions of the City OP that are under appeal based on the Notices of Appeal received pursuant to s. 17(37)(a) of the Act by Friday, September 13, 2024;

b. Appellants to confirm whether the City has accurately identified the policies under appeal and the geographic scope of the appeal of those policies by Monday, November 4, 2024;

c. Appellants to provide their final draft Issues List to the City by Monday November 4, 2024;

d. Subject to determination of the Motion, non-Appellant Parties to identify the issues they will shelter under in accordance with Rule 8.3 of the Rules, by Wednesday November 20, 2024; and

e. A draft Procedural Order and Issues List to be provided to the Tribunal by

Friday, November 22, 2024.

27The City advised that, at the Second CMC, it expects to request the Tribunal to acknowledge those policies of OPA 18.6 not under appeal are in effect by operation of s. 17(27) of the Act.

28The City advised the Tribunal that, depending on the outcome of discussions with the Parties in advance of the Second CMC, other motions may be necessary at that hearing event.

OPPORTUNITIES FOR SETTLEMENT

29The City advised the Tribunal that it expects to discuss settlement opportunities with each of the Appellants in advance of the Second CMC.

ORDER

30The Tribunal orders the above directives.

31No further notice will be given.

32This Member is not seized but may be spoke to for case management purposes.

“Ashley Mason’

A. MASON 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.

CORRECTION NOTICE

OLT CASE NO(S).:

OLT-24-000494

DECISION ISSUE DATE(S):

September 13, 2024

CORRECTION NOTICE ISSUE DATE:

October 08, 2024

RE: Davis v. York (Regional Municipality)

Correction to: the date mentioned for the upcoming hearing event in paragraph 21

Originally:

Corrected to:

21Counsel for the City requested another CMC to further refine the issues between the Parties (“Second CMC”) and the Tribunal set down Friday, November 27, 2024, for the hearing event.

21Counsel for the City requested another CMC to further refine the issues between the Parties (“Second CMC”) and the Tribunal set down Wednesday, November 27, 2024, for the hearing event.

“Euken Lui”

EUKEN LUI 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.