7553 Islington Holding Inc. v. Vaughan (City), 2025 CanLII 21788

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 13, 2025

CASE NO(S).:

OLT-22-002608 (Formerly PL170151)

OLT-21-001787 (Formerly PL111184)

OLT-22-002104

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

Applicant and Appellant: 7553 Islington Holding Inc.

Subject: Request to amend the Official Plan - Failure of the City of Vaughan to adopt the requested amendment

Existing Designation: “Low Density Residential” and “Open Space”

Proposed Designation: “Medium Density Residential”

Purpose: To permit the development of a multi-storey residential building containing 490 residential units with variable heights of 12-storeys and 17-storeys, inclusive of a 7-storey podium

Property Address/Description: 7553 Islington Avenue & 150 Bruce Street/ Part of Block 88, Registered Plan 65M-2059, Lots 4 and 5, Concession 7

Municipality: City of Vaughan

Approval Authority File No.: OP.08.017

OLT Case No.: OLT-22-002608

Legacy Case No.: PL170151

OLT File No.: OLT-22-002608

Legacy File No.: PL170151

OLT Case Name: 7553 Islington Holding Inc. v. Vaughan (City)

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

Applicant and Appellant: 7553 Islington Holding Inc.

Subject: Application to amend Zoning By-law No. 1-88, as amended – Neglect of application by the City of Vaughan

Existing Zoning: “A - Agricultural Zone”, “OS1 - Open Space Conservation Zone” and “R1 9(643) – Residential Zone”

Proposed Zoning: “RA3 – Apartment Residential Zone” and “OS1 – Open Space Zone” with site specific exceptions

Purpose: To permit the development of a multi-storey residential building containing 490 residential units with variable heights of 12-storeys and 17-storeys, inclusive of a 7-storey podium

Municipality: City of Vaughan

Municipal File No.: Z.16.022

OLT Case No.: OLT-22-002608

Legacy Case No.: PL170151

OLT File No.: OLT-22-002611

Legacy File No.: PL170152

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1042710 Ontario Limited (aka Royal Centre)

Appellant: 1096818 Ontario Inc.

Appellant: 11333 Dufferin St et al

Appellant: 1191621 Ontario Inc.; and others

Subject: Failure to announce a decision respecting Proposed Official Plan Amendment No. New Official Plan

Municipality: City of Vaughan

OLT Case No.: OLT-21-001787

Legacy File No.: PL111184

OLT File No.: OLT-21-001787

Legacy File No.: PL111184

OLT Case Name: Duca v. Vaughan (City)

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: 1042710 Ontario Limited (aka Royal Centre)

Appellant: 1096818 Ontario Inc. Jordan, Ryan, and Brittany Fisch

Appellant: 1150 Centre Street GP Inc.

Appellant: 1163919 Ontario Ltd., 1888836 Ontario Ltd., and 1211612 Ontario Ltd.

and others

Subject: Zoning By-law

Description: New City-wide comprehensive zoning by-law

Reference Number: By-law 001-2021

Property Address: City Wide

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-002104

OLT Lead Case No: OLT-22-002104

OLT Case Name: D'Aversa v. Vaughan (City)

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: 1042710 Ontario Limited (aka Royal Centre)

Appellant: 1096818 Ontario Inc. Jordan, Ryan, and Brittany Fisch

Appellant: 1150 Centre Street GP Inc.

Appellant: 1163919 Ontario Ltd., 1888836 Ontario Ltd., and 1211612 Ontario Ltd.

and others

Subject: Zoning By-law

Description: Transitional by-law

Reference Number: By-law 039-2022

Property Address: City Wide

Municipality/UT: Vaughan/York

OLT Case No: OLT-22-003554

OLT Lead Case No: OLT-22-002104

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Joint request by the Toronto and Region Conservation Authority and the City of Vaughan

Request for: Request for Directions to seek a determination regarding the scoping of the Phase 2 Hearing

Heard: January 29, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

7553 Islington Holding Inc.

City of Vaughan

Toronto and Region Conservation Authority

Armando Rosano, Elisa Testa, Vaughanwood Ratepayers Association

Regional Municipality of York

Sarno Holdings Corporation

Matthew Helfand

Patrick Harrington (in absentia)

Bruce Engell

Raj Kehar (in absentia)

Denise Baker (in absentia)

Tim Duncan

Matthew Rutledge (in absentia)

Amber Stewart

Alexis Alyea (in absentia)

Alexandra Egi (articling student)

Meaghan McDermid (in absentia)

Grace O’Brien (in absentia)

DECISION DELIVERED BY A. Mason AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This fifth Case Management Conference (“Fifth CMC”) was held with respect to the above captioned appeals (“Appeals”) pursuant to the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), by 7553 Islington Holding Inc. (“Appellant”) regarding the lands municipally known as 7553 Islington Avenue and 150 Bruce Street in the City of Vaughan (“Subject Lands”). The Appellant’s applications facilitate the development of a single 21-storey residential building (“Proposed Development”).

2Through the Tribunal’s CMC process between 2017 and 2022, the Appeals were consolidated, and the hearing of the Appeals was administratively split into two phases, at the request of the Parties, to ensure an efficient adjudication of the facts and evidence.

3At the fourth CMC, held on February 24, 2021, the Tribunal adopted the Procedural Order that established the issues to be tried at the Phase 1 Hearing (“Phase 1 Procedural Order”), among other actions. The Phase 1 Procedural Order sets out 13 issues related to natural heritage and natural hazard land features and designations, the delineation of the limits of designations, and questions applying relevant policies to the environmental designations and the Proposed Development.

4A Phase 1 Hearing of the Merits of the Appeals took place between November 4, 2023, to November 23, 2023, and May 23, 2024, to May 31, 2024 (“Phase 1 Hearing”). The Decision of Member T. F. Ng with respect to the Phase 1 Hearing was issued on July 29, 2024 (“Phase 1 Decision”).

5In the Phase 1 Decision, Member Ng comes to key findings as follows:

1. The Subject Lands are significant Woodlands, significant Valley lands, may contain significant wildlife habitat and are within Hazardous Lands (together, “Environmental Designations”);

2. There is a permissible policy structure available for the Appellant to demonstrate that the Proposed Development may not negatively impact the Environmental Designations under the relevant policies and tests; and

3. The Subject Lands are developable for the purposes of the Phase 1 Hearing.

6This Fifth CMC was convened as ordered in the Phase 1 Decision that required that the Parties contact the case coordinator to arrange for the Phase 2 hearing of the Appeals (“Phase 2 Hearing”) to adjudicate the remaining issues in dispute between the Parties. However, in advance of the Fifth CMC, the Toronto and Region Conservation Authority (“TRCA”) and the City of Vaughan (“City”) (together, the “Moving Parties”) filed a Notice of Motion of their intention to seek an order of the Tribunal that the natural heritage and natural hazard issues that the Tribunal had not yet determined from the Phase 1 Procedural Order and provided by the Moving Parties (“Proposed Phase 2A Issues”) be scheduled as a scoped “Phase 2A Hearing” with remaining planning issues to follow as a “Phase 2B Hearing”. The Moving Parties and the Appellant provided oral and written submissions in support of the Motion.

7Having considered the submissions of the Parties, the Tribunal finds that the most just and expeditious resolution of the Appeals will be achieved by further phasing where a Phase 2A Hearing shall proceed to hear the unresolved natural heritage and hazard land issues generally as set out as the Proposed Phase 2A Issues. The objective of the Phase 2A Hearing will be to decide those environmental threshold issues that establish the permissible building envelope for the Proposed Development in consideration of the Environmental Designations. A subsequent Phase 2B Hearing will be convened to consider remaining planning issues in dispute with respect to the Proposed Development, if necessary.

MOTION FOR DETERMINATION OF PHASING

8The Notice of Motion from the Moving Parties seeks an Order from the Tribunal:

1. To hold a scoped “Phase 2A Hearing” of the natural heritage issues and natural hazard issues that the Tribunal has not yet determined, being a hearing on the issues of whether the Proposed Development can occur despite the identification of the Environmental Designations on the Subject Lands;

2. Issue an order that any remaining issues associated with the Appellant’s appeal of its official plan amendment and zoning by-law amendment applications that are not related to natural heritage and natural hazards be dealt with in a “Phase 2B Hearing” if deemed to be required by the Tribunal (Items 1 and 2 together, “Requested Phasing Relief”).

9The Appellant provided a Notice of Response to Motion taking the position that granting the Requested Phasing Relief would not result in a more expeditious resolution of the Appeals, should be denied for reasons set out below in this Decision and a single 12-day Merit Hearing should be schedule as soon as soon as possible.

10The Parties do not dispute that the Tribunal has the authority to order further phasing of the Appeals should it see fit under s. 12(2) of the Ontario Land Tribunals Act, 2021 (“OLTA”) and Rule 22.3 of the Tribunal’s Rules of Practice and Procedure (“Rules”).

IS THE RELIEF SOUGHT IN THE MOTION BARRED BY ISSUE ESTOPPEL??

11Before evaluating the merits of the Motion, the Tribunal considers the position put forth by counsel for the Appellant that the Requested Phasing Relief sought in the Motion is barred from consideration by operation of the legal principle of issue estoppel since it is purportedly the same relief as requested in an earlier review process that constituted a final decision of the Tribunal.

12Specifically, counsel for the Appellant asserted that the Motion must be denied as it is an attempt to obtain the same relief that was requested by the Moving Parties in their request for review of the Phase 1 Decision that was filed with the Tribunal on August 28, 2024 (“Review Request”) pursuant to s. 23 of the OLTA. The Review Request sought to set aside the direction in the Phase 1 Decision that there is a “permissible structure, that is, to demonstrate to the approval authority that the proposed development and alteration do not negatively impact the [Environmental Designations] under the relevant policies” and that “the subject lands are developable for the purpose of the Phase 1 Hearing”.

13Also relevant to this Motion, the Review Request asked for an Order that a hearing of the natural heritage issues and natural hazard issues that the Tribunal has not yet determined be heard in a scoped Phase 2A Hearing, being a hearing on the issue of whether the Proposed Development can occur despite the identification of the Environmental Designations. The Review Request also sought an Order for any remaining planning issues related to the Official Plan and Zoning By-law applications not related to the natural heritage issues be dealt with in a Phase 2B Hearing.

14On November 13, 2024, the Executive Chair of the Tribunal issued a disposition with respect to the Review Request (“Review Disposition”). The Review Disposition finds that the Review Request fails to raise a convincing and compelling case sufficient to warrant the exercise of his review powers under s. 23 of the OLTA and Rule 25 of the Rules, and that the Phase 1 Decision remains in full force and effect.

15The Review Disposition acknowledges that Member Ng defers adjudicating certain issues pertaining to natural heritage and natural hazards from the Phase 1 Procedural Order to a future Phase 2 Hearing. However, the Executive Chair finds that such deferral is authorized under s. 12(2) of the OLTA and does not violate the rules of natural justice or procedural fairness by prejudicing the Moving Parties or permitting the Appellant to re-litigate issues. The Review Disposition finds that Member Ng was entitled to defer issues and that such deferral was not an abrogation of his responsibility to grapple with all of the central issues for adjudication in the Phase 1 Hearing by electing to proceed in this manner and, as such, was not a reviewable error of law.

16In the Notice of Response to Motion and at the Fifth CMC, counsel for the Appellant took the position that the Requested Phasing Relief in the current Motion is largely identical to the relief requested by the Moving Parties in the Review Request. Counsel relied on the legal principle of issue estoppel that precludes the re-litigation of a previously decided issue if certain preconditions are met. Counsel provided the case of Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 to demonstrate the preconditions to find issue estoppel as: (1) the issue must be the same as the one decided in a prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings are the same.

17Counsel for the Appellant relied on s. 22 of the OLTA that states “except as provided for in sections 23 and 24, orders and decisions of the Tribunal are final and binding” to stand for proposition that the Review Decision constituted a “final decision”. To that end, counsel for the Appellant characterized the Review Disposition as a final decision of the Tribunal on the issue of the Requested Phasing Relief by the Moving Parties seeking a Phase 2A Hearing on unanswered natural hazard and natural heritage issues from the Phase 1 Procedural Order and a Phase 2B Hearing on remaining planning matters. Counsel asserted that the Review Disposition articulates the Executive Chair’s decision that there will not be another phase. As such, it was counsel’s assertion that the Requested Phasing Relief cannot be granted in the Fifth CMC since all three preconditions for issue estoppel are met.

18Relying on the proposition that issue estoppel bars the Motion, counsel for the Appellant further claimed that costs should be awarded in this matter under Rule 23.9 of the Rules. They asserted that the Motion constitutes an example of “continuing to deal with issues” and therefore opens the way for an award of costs under Rule 23.9. Counsel characterized the Motion further as the continued attempts by the Moving Parties to delay the hearing of the Appeals and concluded that it is highly unreasonable for the Moving Parties to bring the Motion for relief previously denied in the Review Disposition and to expect that the Appellant to bear the costs for same.

19Counsel for the Moving Parties disagreed with the claim that the Review Disposition and the Motion addressed the same issue. Counsel for the TRCA acknowledged that the Requested Phasing Relief of a “Phase 2A” and “Phase 2B” hearing was also suggested relief in the Review Request. However, counsel distinguished that the Review Disposition only decides that the Phase 1 Decision does not constitute a reviewable error of law or violate the principles of procedural fairness such that the Executive Chair declined to exercise his powers of review under s. 23 of the OLTA and Rule 25. Counsel took the position that the Review Disposition was not a determination about the remedy of a Phase 2A Hearing and Phase 2B Hearing and that it is clear on the face of the Review Disposition that the issues that were decided in it are not the same as what the Moving Parties are asking the Tribunal to decide in this Motion. Counsel for the City supported the TRCA’s submissions.

20Counsel for the TRCA drew the Tribunals attention to Fraser v. Rideau Lakes (Township), 2019 CanLII 55265 (ON LPAT) (“Fraser”) to demonstrate an instance where a development proposal was brought separately under two different provisions of the Act over time. In that case, the Local Planning Appeal Tribunal, as it was then known, clarified that where an application is made for a development proposal under s. 45(1) of the Act and then also subsequently under s. 45(2) of the Act, the approval authority is not issue estopped from consideration of the application since the tests under the Act and issues decided are different, even if the proposal is essentially the same. Applying this to the facts in the current case, counsel took the position that the issues decided in the Review Disposition are not the same as in the Motion, even if the Requested Phasing Relief is the remedy sought in both actions. As such, counsel asserts that the Tribunal is not issue estopped from considering the Motion and granting the Requested Phasing Relief.

21Having considered the submissions of the Parties, the Tribunal agrees with counsel for the Moving Parties that the issues considered and resulting decision in the Review Disposition and the Motion are not the same and do not invoke the principle of issue estoppel. The Review Disposition finds that the Review Request fails to raise a convincing and compelling case of an error of law or a violation of procedural fairness sufficient to warrant the exercise of the Executive Chair’s review powers under s. 23 of the OLTA and Rule 25 and that the Phase 1 Decision remains in full force and effect. The Review Disposition does not evaluate the Requested Phasing Relief that is the objective of the Motion. The Review Disposition focused on a review of the Phase 1 Decision and did not stipulate the procedure or conduct of the Phase 2 Hearing going forward. As such, the Tribunal finds the Moving Parties are not issue estopped from bringing the Motion seeking the Requested Phasing Relief and the Tribunal is not precluded from considering same.

REQUEST FOR COSTS IF ISSUE ESTOPPEL

22Finding that the Tribunal is not barred from considering the Motion due to issue estoppel, the Tribunal concludes the Moving Parties do not reach the threshold for “continuing to deal with issues” under s. 23.9 of the Rules such that costs may have been considered. Further, counsel for the Appellant did not duly file a Notice of Motion for Costs with supporting documentation and the Tribunal therefore makes no finding on costs.

ARE THE PROPOSED PHASE 2A ISSUES THRESHOLD ISSUES?

23Having decided that the Motion is not barred by issue estoppel, the Tribunal turns to consider whether the Requested Phasing Relief will result in a more fair, just, expeditious and cost-effective hearing and resolution of the Merits of the Appeals in accordance with s. 12(2) of the OLTA and Rule 22.3 of the Rules. To answer this question, the Tribunal first considers whether the unanswered natural heritage and natural hazard issues in the Proposed Phase 2A Issues are threshold issues, the resolution of which is necessary before the remaining planning issues related to the Proposed Development may be considered.

24To decide whether the unanswered environmental issues set out in the Proposed Phase 2A Issues are threshold issues the Tribunal must understand how they would impact the resolution of the remaining “planning issues”. To do so, the Tribunal turns to the language in the Phase 1 Decision and the Appellant’s Response to Notice of Motion to understand what the Parties meant when they refer to the “planning issues” that would be adjudicated in the theoretical Phase 2B Hearing.

25The Phase 1 Decision characterizes the Appellant’s understanding of the planning issues as “height and density and built form and layout and screening”. The Appellant’s Notice of Response to Motion notes that the “land use planning, urban design and transportation merits of the Appellant’s proposal” still need to be tested. The City’s understanding of the planning issues in the Phase 1 Decision speaks to “land use planning issues associated with the Proposed Development [and]…the appropriate land use designation, and zoning in Vaughan Official Plan and Zoning By-law No. 001-2021”. In sum and for the purposes of this Motion the Tribunal considers the “planning issues” that remain to be adjudicated as matters pertaining to land use designations, height, density, urban design, transportation, and the details of the implementing planning instruments (“Planning Issues”).

Position of the Moving Parties Regarding Threshold Issues

26The Proposed Phase 2A Issues provided by the Moving Parties are generally the same issues that were in the original Phase 1 Procedural Order but were not addressed in the Phase 1 Decision, other than those issues that have been made irrelevant by the coming into force of the Provincial Planning Statement, 2024 (“PPS”) and by the findings in the Phase 1 Decision. The Proposed Phase 2A Issues ask whether the Proposed Development is:

1. consistent with specific policies of the PPS;

2. conforms to the 2010 York Regional Official Plan including the Chapter 2 Sustainable Natural Environment policies;

3. conforms with the environmental related policies of the Vaughan OPA 240 (Woodbridge Community Plan) as amended by OPA 269;

4. conforms with the 2010 City of Vaughan Official Plan;

5. has appropriate regard for The Living City Policies for Planning and Development in the Watersheds of the TRCA (2014); and

6. whether the City of Vaughan Comprehensive Zoning By-Law proposes appropriate zoning categories and restrictions for the Subject Lands, and if not, what site-specific amendments are needed.

27Counsel for the Moving Parties took the position that the Proposed Phase 2A Issues are not intended to question the Environmental Designations or their limits that were the findings in the Phase 1 Decision. Rather the Proposed Phase 2A Issues are intended to address the question of no negative impact (and/or related tests) that exist in the governing policy documents and whether the proposed development can occur despite the Environmental Designations.

28Counsel for the City explained that adjudication of the Proposed Phase 2A Issues will answer the question of what is the “allowable building envelope” for the Proposed Development in light of the Environmental Designations. Counsel went on to lay out three possible scenarios that could unfold through the adjudication of the Proposed Phase 2A Issues before moving to a Phase 2B Hearing on the remaining Planning Issues:

1. Scenario 1: no constraints are found from the Environmental Designations and policies and there are no impediments to the Proposed Development. In such case, the Parties would then bring forward the Planning Issues to a Phase 2B Hearing;

2. Scenario 2: adjudication of the Proposed Phase 2A Issues results in a modest encroachment into the Environmental Designation areas. In this case, the determination of the appropriate revisions required to the Proposed Development to “fit” within the permissible building envelope, such as through set-backs and built-form modifications, would need to be addressed and incorporated into the evidence and submissions of the Parties with respect to the Planning Issues before being adjudicated by the Tribunal; and

3. Scenario 3: adjudication of the Proposed Phase 2A Issues results in no permissible building envelope on the Subject Lands for the Proposed Development. In this case, the Phase 2B Hearing would not be necessary.

29Counsel for the City highlighted that, in each scenario above, adjudication of the Proposed Phase 2A Issues would lead to establishing a building envelope after which the Parties would be in a position to refine the Planning Issues, modify elements of the Proposed Development’s built-form, like step-backs and setbacks, and negotiate a resolution or partial resolution to the Planning Issues that would likely be narrowed, or possibly fully resolved.

30Counsel for the Moving Parties relied on two cases to demonstrate the Tribunal’s reasoning for granting phasing where issues are determined to be threshold issues that should be adjudicated first before moving on to the remainder of issues in dispute. Counsel relied on Dunpar Developments Inc. et al v Toronto (City), 2023 CANLII 116946 (ON LT) (“Dunpar”) to demonstrate a case where the Tribunal considered issues to be threshold issues. In Dunpar, the Tribunal characterized threshold issues as distinct and requiring different and discrete evidence to be heard to dispose of certain Development Charge Act appeals. Further, the Tribunal considered that upon rendering a decision on the threshold issues, the Parties would need time with their respective experts to prepare for the subsequent hearing matter on the remaining contingent issues.

31In Dunpar, the Tribunal also considered that expecting the Parties to make adjustments to their evidence on the contingent issues while in an active hearing runs afoul of the principles of procedural fairness. In that case, the Tribunal found that “the balance of convenience lies in favour of a phased hearing since the number of issues, evidence and experts to be called will most likely be reduced” by adjudicating the issues in phases.

32Clublink Corporation ULC v Oakville (Town), 2019 CANLII 55265 (ON LPAT) (“Clublink”) was provided by counsel for the Moving Parties as an example of where the Tribunal did not find threshold issues and thus did not grant a phased hearing. In that case, the municipal authority sought an order of phasing to determine cultural heritage landscape issues and questions related to the urban structure expansion for the redevelopment of a golf course, before moving to the detailed technical issues raised by the development proposal. The approval authority advocated the position that if the development proposal cannot pass the threshold of permission to go forward, there would be considerable efficiency of time and cost. The Appellant took the position that, in order to understand the development proposal in light of the existing policies, the full scope of the project must be put in front of the Tribunal through the various technical disciplines to demonstrate how the proposal will conform with applicable policy. The Tribunal found that the proposed phasing was not appropriate since it may artificially truncate the evidence to be brought before the Tribunal and prevent the Appellant from fully and fairly advancing their planning position while also not reducing the overall hearing length.

Position of the Appellant Regarding Threshold Issues

33Counsel for the Appellant did not dispute that the Proposed Phase 2A Issues need to be adjudicated by the Tribunal but disagreed strongly that a further separation of phases is required to do so. Counsel took the position that the Proposed Phase 2A Issues are not threshold issues and that separating the hearing into two further phases will not shorten the overall Hearing length.

34Counsel did not provide submissions or authorities to support the proposition that the Proposed Phase 2A Issues were not threshold issues. Counsel considered the Phase 1 Decision as definitive that the remaining natural heritage and hazard land questions are most appropriately advanced in conjunction with the Planning Issues and evidence. Counsel took the position that the Phase 1 Decision establishes that it is not possible to separate what are now the Proposed Phase 2A Issues from the remaining Planning Issues and relied on the Review Disposition as being a final decision that no further phasing of the Appeals is to be considered.

Analysis of the Threshold Question

35In considering whether the Proposed Phase 2A Issues constitute threshold issues requiring determination in advance of consideration of the Planning Issues, the Tribunal examined the Phase 1 Decision to understand the relative positions of the Parties leading up to, and in, the Phase 1 Hearing. According to the Phase 1 Decision, the Appellant was of the position that “the Tribunal’s mandate in the Phase 1 Hearing was to review the applicable policy, regulatory and guideline context to determine whether a buildable envelope exists in the context of [the Subject Lands]”. Further, the Phase 1 Decision recounts that the Appellant asserted that “once the development envelope is set, the question of what goes into that envelope in terms of height and density and built form and layout and screening, are all questions for Phase 2”.

36Conversely, in the Phase 1 Hearing, the TRCA and City took positions that can be summarized as no development envelope on the Subject Lands was permissible under the relevant environmental policies.

37The Phase 1 Decision finds that the Subject Lands are covered by the Environmental Designations and also that there is a permissible structure to demonstrate the lands are developable. However, the question of “what is the development envelope?” that is carved out of the Environmental Designations is not answered although such was the apparent expectation of the Appellant according to the Phase 1 Decision. As the Executive Chair confirmed in the Review Disposition, Member Ng was entitled to provide findings on some but not all of the Phase 1 Issues and such is not a reviewable error of law or contravention of procedural fairness.

38Counsel for the TRCA noted that the Motion seeks the same phasing the Parties agreed to in the initial CMC process where it was understood that determination of any permissible building envelope must be adjudicated before a Phase 2 Hearing can be convened to consider the Planning Issues. While the Appellant takes the position in the Motion that the Tribunal has found this cannot be answered without also considering the Planning Issues at the same time, the Tribunal does not find this to be settled given the formative nature of the questions.

39The Appellant did not provide grounds as to why the Proposed Phase 2A Issues are no longer threshold questions, despite their previous position that a permissible building envelope needs to be determined before hearing the Planning Issues. Furthermore, the Appellant did not provide submissions to the Tribunal to explain how hearing the Proposed Phase 1 Issues and the Planning Issues in the same hearing event would unfold as a practical matter if the latter were likely to be impacted by a decision on the former.

40Generally, in cases where the Parties agree on the boundaries of natural heritage and hazard land designations along with related set-backs and other modifications to the built-form to situate the project within a buildable envelope, the limits of those designations are codified in the Official Plan and Zoning By-law instruments. In this case, the Environmental Designations have been found to apply to the Subject Lands by the Tribunal and also that there is a possibility to establish a building envelope. The next practical step is to reconcile those two findings and adjudicate the submissions of the Parties to determine the permissible building envelope on the ground. Without doing so, the Tribunal will be faced with receiving evidence on the relative merits of the instruments, height, built-form, and the implementing instruments, but also need to adjudicate the precondition of the land area that they fit within under the environmental policy regime at the same hearing event.

41In the case at hand, the Environmental Designations found to apply to the Subjects Lands in the Phase 1 Decision are the critical constraints on the Subject Lands. The Environmental Designations come with policies that require the Appellant to demonstrate that the Proposed Development satisfies what Member Ng refers to as the “no negative impact” tests. In this Motion, the Tribunal agrees with counsel for the Moving Parties that the Appellant must demonstrate that the Proposed Development satisfies the applicable tests associated with the Environmental Designations in order to “carve out” a permissible building envelope on the Subject Lands within which it can be situated.

42In the Phase 1 Decision Member Ng, stated what he envisioned as a comprehensive next hearing phase:

“the suitability and appropriateness of the proposed development is to be evaluated against the whole Provincial and Municipal policy framework and tested against the full force of empirical studies and evidence at the Phase 2 Hearing. The emphasis is on the fulsome test on whether the proposed development is permissible in the current scale, form and level of intensification.”

The Tribunal on this Motion agrees that the next “test” should be whether the Proposed Development is permissible in the current scale, form and level of intensification. The most expeditious and practical way to do so is through a Phase 2A Hearing that will test the Proposed Development against the policies attached to the Environmental Designations in order to determine the permissible building envelope the development may fit within. The Tribunal finds this to be the essence of a threshold issue.

43Site-specific planning questions, for example entrance locations, should first be proven to be permissible given the Environmental Designations before they can be supported by empirical traffic studies and tested under policies on road hierarchies among other details. To continue the example, providing transportation evidence that a given location is superior for car turning movements or the flow of traffic into the existing street pattern could in theory be moot if the proposed location, or the development as a whole, is not permissible in light of the Environmental Designations.

44The Tribunal finds the Dunpar case somewhat persuasive, but not on all fours with the current case, to demonstrate the characteristics of threshold issues that warrant an order of phasing. As in Dunpar, the Proposed Phase 2A Issues will need to be answered in a practical manner by the Tribunal before the Planning Issues can be refined and advanced. It is highly probable that whatever the findings on a permissible building envelope, refinement to the Proposed Development will be necessary to respect the environmental constraints.

WOULD A PHASE 2A AND PHASE 2B HEARING PROVIDE A MORE EXPEDITIOUS AND JUST RESOLUTION OF THE APPEALS?

45Having found that the Proposed Phase 1 Issues are threshold issues that need to be determined by the Tribunal before moving to consideration of the Planning Issues, the Tribunal also considers the other positions of the Parties advanced in the Motion.

46Counsel for the Moving Parties took the position that the Proposed Phasing Relief will result in the most expeditious, cost effective and just resolution of the matter for following reasons:

1. The length of the Hearing will almost certainly be reduced since, by establishing the building envelope, the remaining Planning Issues will likely be narrowed or potentially fully resolved. At worst, if there are found to be no constraints on the Proposed Development from answering the Proposed Phase 2A Issues and therefore no changes to the Planning Issues, the hearing length will be the same as it would be in a single hearing;

2. By resolving the Proposed Phase 2A Issues first, the Parties will avoid the risk of preparing evidence on the Planning Issues which may be revised, refined or rendered moot resulting in added expense and time;

3. If the hearing is not phased, the Proposed Phase 2A Issues will still need to be addressed before the Planning Issues;

4. The Proposed Phase 2A Issues are of mixed fact and law that the Parties have already prepared witnesses and evidence for the Phase 1 Hearing, such that these can be used for a Phase 2A Hearing with limited additional cost;

5. The Proposed Phasing Relief constitutes a continuation of the previously agreed phased Hearing approach where the Planning Issues are only addressed after a permissible building envelope is established; and

6. Preparation of submissions and evidence by some of the Added Parties will be more efficiently served by further phasing since their interest is only in the Planning Issues for the Phase 2B Hearing.

47In opposition, counsel for the Appellant strongly disagreed with the Requested Phasing Relief on the additional grounds that:

1. The overall length of hearing will be the same whether it is phased or not, thus no efficiency is achieved.

2. The Motion is an attempt by the Moving Parties to continually use an earlier agreement to phase the hearing of the Appeals to endlessly ask for additional phases to delay resolution of the Appellant’s proposal.

3. The Moving Parties are simply unhappy with the findings in the Phase 1 Decision and are using the Motion as a route to challenge those findings.

4. It is inappropriate for the Moving Parties to ask the Tribunal in the Motion to overturn the direction in the Phase 1 Decision and the Review Disposition.

48The Tribunal finds that the Proposed Phasing Relief will serve to assist the Tribunal in providing a more fair, just and expeditious resolution of the Appeals. The Tribunal agrees with the Moving Parties that determining the permissible building envelope for the Proposed Development has a high probability of reducing the remaining Planning Issues between the Parties. Further, there is a strong likelihood that aspects of the Proposed Development will need to be adjusted, revised and refined for the Phase 2B Hearing if necessary.

49The Tribunal does not find the Motion a disingenuous request by the Moving Parties to stall the resolution of the Appeals or an attempt to challenge the Phase 1 Decision. The Tribunal is satisfied that the Moving Parties are seeking the most practical resolution of the Appeals and the continuation/fulfillment of phasing that was previously agreed to between the Parties. The Proposed Phasing Relief will provide the best opportunity to resolve the threshold dispute of whether a permissible building envelope exists on the Subject Lands.

SUMMARY OF FINDINGS

50Having considered the submissions presented by the Parties as set out above, the Tribunal summarizes its findings as follows:

1. The Motion is not barred by the legal principle of issue estoppel and may be considered by the Tribunal in this Fifth CMC.

2. Having found no issue estoppel, the Tribunal makes no findings on the matter of costs.

3. The Proposed Phase 2A Issues are threshold issues the adjudication of which will inform and scope the adjudication of the Planning Issues that will follow in Phase 2B Hearing if required.

4. The Requested Relief of a Phase 2A Hearing to determine the permissible building envelope for the Proposed Development and Phase 2B Hearing to consider the remaining Planning Issues will deliver the most fair, just, expeditious and cost-effective resolution of the Appeals.

51The Tribunal makes no findings with respect to the merits of remaining portions of the Appellant’s Appeals, which is left for determination of the Tribunal, as constituted, at the future Phase 2A Hearing and Phase 2B Hearing if required.

ORDER

52The Tribunal exercises its discretion under s. 12(2) of the OLTA and Rule 22.3 and grants the Motion and Orders that the hearing be further divided into a Phase 2A Hearing to determine the permissible building envelope in consideration of the Environmental Designations as generally set out in the Proposed Phase 2A Issues provided by the Moving Parties and a Phase 2B Hearing to consider the remaining Planning Issues, if required.

53The Parties shall prepare a Procedural Order setting out those issues to be adjudicated in the Phase 2A Hearing (“Phase 2A Procedural Order”) and provide same to the Tribunal for consideration by Monday, April 14, 2025.

54The Parties shall contact the case coordinator to schedule a Telephone Conference Call to review and adopt the Phase 2A Procedural Order and to schedule the Phase 2A Hearing by Monday, April 28, 2025.

55The Member is available for further case management assistance to the Parties.

“A. 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.