Amexon Realty Inc. v. Toronto (City), 2025 CanLII 2768

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 14, 2025

CASE NO(S).: OLT-22-002175, OLT-22-001933

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 2130254 Ontario Inc. Appellant: Amexon Realty Inc. Appellant: Cadillac Fairview Corporation Limited Appellant: Fima Development (Queensway and North Queen Street); and others Subject: Proposed Official Plan Amendment No. OPA 469 Municipality: City of Toronto OLT Case No.: OLT-22-001933 Legacy Case No.: PL190596 OLT Lead Case No.: OLT-22-001933 Legacy Lead Case No.: PL190596 OLT Case Name: Amexon Realty Inc. v. Toronto (City)

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

Applicant and Appellant: The Cadillac Fairview Corporation Limited Subject: Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment Purpose: To permit nine tall buildings ranging in heights from 16 to 35 storeys and two, six-storey mid-rise buildings Property Address: 25 The West Mall Municipality: City of Toronto Approval Authority File No.: 19 187348 WET 03 OZ OLT Case No.: OLT-22-002175 OLT Lead Case No.: OLT-22-002175 OLT Case Name: The Cadillac Fairview Corporation Limited v. Toronto (City)

Heard: December 9, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
City of Toronto	Daniel Elmadany Laura Bisset (in absentia)
Cadillac Fairview Corporation Limited	Cynthia MacDougall Brendan Smith
Multiple Appellants	Refer to Schedule 1

DECISION DELIVERED BY A. Snowdon AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal concerns appeals filed pursuant to s. 22(7) for OLT-22-002175 and s. 17(24) for OLT-22-001933 of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) by multiple Appellants, relating to Official Plan Amendment 469 (“OPA 469”) and the Sherway Area Secondary Plan which was adopted by the City of Toronto (“City”) in October 2019.

2The Appeal for File No. OLT-22-001933 concerns appeals of the City of Toronto’s adoption of OPA 469 and Sherway Area Secondary Plan with respect to the lands bounded by Highway 427, the Queen Elizabeth Way, the Canadian-Pacific Rail Line, and the Etobicoke Creek ravine.

3The Appeal for File No. OLT-22-002175 concerns the appeal of the Site-Specific Official Plan Application with respect to the property known as 25 The West Mall.

4The Tribunal, under rule 19.6 of the Tribunal’s Rules for Practice and Procedure, converted the Case Management Conference scheduled for OLT-22-002175 to a hearing to be heard together, but not consolidated, with OLT-22-001933.

5The matter before the Tribunal is specific to Cadillac Fairview Corporation Limited (“Appellant 1”). The only other Appellant that appeared for the hearing was Home Depot of Canada Inc. (“Appellant 4”).

6Appellant 1 and the City stated that they have brought a settlement proposal (“proposal”) to the Merit Hearing. All the other Parties indicated that they were not opposed to the proposal between the City and Appellant 1.

SUBMISSIONS

7Appellant 1 and the City submitted an Affidavit for Leigh McGrath, marked as Exhibit 1, a Revised Attachment A, marked as Exhibit 2, and a Revised Attachment B, marked as Exhibit 3.

8Exhibit 2 details City By-Law No. 1535-2019 which adopts the Official Plan (“OP”) and details any amendments relevant to these appeals. The Parties have stated that Exhibit 2 is an update to Attachment A for the OLT-22-001933 decision dated August 25, 2023.

9Exhibit 3 specifies the outstanding appeals still remaining in File No. OLT-22-001933 following this hearing. It notes that appeals are still outstanding for Calloway REIT (Etobicoke) Inc. and Calloway REIT (Etobicoke-Index) Inc. (together, “Appellant 3”) and 2130254 Ontario Inc. (“Appellant 8”). The Parties have stated that Exhibit 3 is an update to Attachment B for the OLT-22-001933 decision dated August 25, 2023.

10Leigh McGrath, a partner with Urban Strategies Inc. and a Registered Professional Planner, testified with respect to the evidence set out in their Affidavit, dated December 5, 2024. Ms. McGrath was qualified by the Tribunal to provide expert evidence in land use planning matters.

11On November 13-14, 2024, the City’s Council accepted the proposal of Appellant 1 regarding the Site Area Specific Policy (“SASP”). Policy 5.16 (“P516”) is a modification of the SASP that increases density from 0.8 to 1. This also updates the extents of the lands that are designated as Mixed-Use A.

12Ms. McGrath testified that the proposal has regard for provincial interest matters with respect to s. 2 of the Act, is consistent with the Provincial Planning Statement 2024 (“PPS”), and maintains the OP.

Section 2 of the Act

13Ms. McGrath stated that the proposal has appropriate regard for s. 2 as follows:

1. P516 provides a framework for the lands intensification.
2. It preserves the mall for economic wellbeing and jobs.
3. It is an efficient use of water and energy.
4. The proposal provides for an orderly development of the lands.
5. Both phases of development include public park creation.
6. There will be a mixed of housing sizes.

PPS

14Ms. McGrath spoke to how the proposal is consistent with the PPS as follows:

1. It uses all types of residential lands including the mall
2. It increases the range of housing in the area
3. It meets the emphasis for strategic growth
4. It meets employment goals with all developments having ground floor retail
5. It is appropriate development

OP

15Ms. McGrath stated that the proposal conforms of the OP as follows:

1. It meets the general intent of the OP
2. It improves the City’s urban structure
3. It is an appropriate area for intensification
4. It will form a complete community

16It is the professional opinion of Ms. McGrath that the proposal has regard to s.2 of the Act, is consistent with the PPS, conforms with the OP, is good planning, and is in the public interest.

17The City did not oppose or present any evidence in contestation to the proposal.

18The details of the proposal are summarized below and within Table 1 in Attachment C, except the parts that were appealed as outlined in Exhibit 3.

19Proposal criteria:

1. The parts of OPA 469 listed in Rows 1 and 2 of Table 1 are in force by operation of s. 17(27) of the Act on a Sherway Gardens Precinct wide basis, including the lands municipally known as 21 and 25 The West Mall;
2. The parts of OPA 469 listed in Row 3 of Table 1 are in force by operation of ss. 17(30) and (30.1) of the Act on a Plan-wide basis, without modification;
3. The parts of OPA 469 listed in Row 4 of Table 1 are in force by operation of s. 17(50) of the Act and are approved as modified, on a Sherway Gardens Precinct-wide basis, including 21 and 25 The West Mall; and
4. The parts of OPA 469 listed in Rows 5 to 6 of Table 1, inclusive are in force by operation of ss. 17(30) and (30.1) of the Act on a Sherway Gardens Precinct-wide basis, including 21 and 25 The West Mall without modification.

20Furthermore, the Parties have stated that this proposal will resolve Appellant 1’s OPA 469 appeal for File No. OLT-22-001933 in its entirety and Appellant 1’s appeal under s. 22(7) of the Act for File No. OLT-22-002175.

21Finally, Appellant 1 has stated that this proposal does not limit the rights of all Parties to seek to modify, delete, or add to the unapproved portions of OPA 469.

FINDINGS

22The Tribunal finds that the proposal has regard for s.2 of the Act, is consistent with the PPS, conforms to the OP, is good planning, and has the public interest.

23The Tribunal finds that the Parties’ submissions in conjunction with Attachment C and Exhibits 2 and 3 resolve the appeals for both File Nos. OLT-22-001933 and OLT-22-002175 with respect to Appellant 1.

Order

24The Tribunal orders THAT the appeals are allowed in part, and that:

1. a. The parts of OPA 469 listed in Rows 1 and 2 of Table 1 in Attachment C are in force by operation of s. 17(27) of the Planning Act on a Sherway Gardens Precinct wide basis, including the lands municipally known as 21 and 25 The West Mall. b. The parts of OPA 469 listed in Row 3 of Table 1 in Attachment C are in force by operation of ss. 17(30) and (30.1) of the Act on a Plan-wide basis, without modification. c. The parts of OPA 469 listed in Row 4 of Table 1 in Attachment C are in force by operation of s. 17(50) of the Act and are approved as modified, on a Sherway Gardens Precinct-wide basis, including 21 and 25 The West Mall. d. The parts of OPA 469 listed in Rows 5 to 6 of Table 1 in Attachment C, inclusive are in force by operation of ss. 17(30) and (30.1) of the Act on a Sherway Gardens Precinct-wide basis, including 21 and 25 The West Mall without modification.

2. Attachment "A" to the Order of the Tribunal in OLT-22-001933, dated August 25, 2023, is replaced with the updated and consolidated version attached hereto as Attachment A to this Order to reflect the matters in force and effect in accordance with the above Order and Tribunal Decision and Order in OLT-22-002343/OLT-22-001933 issued June 22, 2023 respecting 701-703 Evans Avenue.

3. Attachment "B" to the Orders of the Tribunal in OLT-22-001933 dated August 25, 2023, are replaced with the updated Attachment B to this Order reflecting the scope of the remaining appeals of certain non-policy text, policies and maps of OPA 469 as set out in Attachment B to this Order.

4. The appeal by Cadillac Fairview Corporation Limited pursuant to s. 22(7) of the Act in OLT-22-002175 has been disposed of by this Order.

“A. Snowdon”

A. SNOWDON 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

Appellant	Counsel
1. Cadillac Fairview Corporation Limited	Matthew Schuman (in absentia) Brendan Smith Cynthia MacDougall John Dawson (in absentia)
2. Amexon Realty Inc.	M. Flynn-Guglietti (in absentia)
3. Calloway REIT (Etobicoke) Inc. and Calloway REIT (Etobicoke-Index) Inc.	Matthew Lakatos-Hayward (in absentia) David Bronskill (in absentia)
4. Home Depot of Canada Inc.	David Tang (in absentia) Jesse White
5. CF Sherway Tru Rec Inc.	Roslyn Houser (in absentia)
6. Fima Development	Barry Horosko (in absentia)
7. Smart Centres REIT	Matthew Lakatos-Hayward (in absentia) David Bronskill (in absentia)
8. 2130254 Ontario Inc.	Mark Flowers (in absentia)
9. Queens Walk Real Estate LLP	Aaron Platt (in absentia)

ATTACHMENT A

(UPDATED & CONSOLIDATED)

ATTACHMENT B

(UPDATED)

ATTACHMENT C

Table 1

Row	In Effect Date	Parts of OPA 469
1	November 29, 2019 (Sherway Gardens Precinct-wide basis)	10.29, 10.30, 10.33, 10.34
2	November 29, 2019 (Site specific, 21 and 25 The West Mall)	2nd paragraph non-policy text in Section 2; 2.4.3, 2.4.4, 3.5, 4.5, 4.6.1, 4.6.2, 4.6.3, 4.6.4, 4.7, 4.8, 4.10, 4.11, 4.13, 4.16, 4.17, 4.18, 5.1 (except for the first sentence), 5.15, 1st paragraph non-policy text in Section 7, 7.3.1, 7.3.2, 7.3.3, 7.3.4, 7.3.5, 7.3.7, 7.4, 7.5, 7.7, 7.8, 7.9, 7.12, 7.14, 8 non-policy text, 8.1, 8.2, 8.4, 8.5, 8.6, 8.7, 8.8, 9.3, 9.4, 9.6, 9.7, 9.8.1, 9.8.2, 9.8.6, 9.9, 9.11, 9.14.2, 9.14.4, 9.14.5, 9.14.6, 9.15, 9.17, 9.19, 9.21, 9.22, 2nd paragraph non-policy text in Section 11, 11.2, 11.4, 11.5, 11.6, 11.7, 11.10, 11.11 (third sentence), 11.12, 11.13 (second sentence), 11.15, 11.16, 11.21, 11.23.1, 11.23.2, 11.24, Map 43-2, Map 43-8, Map 43-9
3	December 9, 2024 (Plan-wide)	Paragraph 2 of OPA 469 (regarding repeal of SASP 13); Paragraph 3 of OPA 469 (regarding repeal of SASP 19)
4	December 9, 2024 (Sherway Gardens Precinct Specific basis, including 21 and 25 The West Mall)	5.16, Section 12 (to add a site specific policy for the site), Map 43-5
5	December 9, 2024 (Sherway Gardens Precinct Specific basis)	10.31, 10.32
6	December 9, 2024 (Site Specific, 21 and 25 The West Mall)	4.6.5, 4.9, 5.3, 5.5, 5.6, 5.7, 5.9, 5.9A, 5.10, 5.11, 5.12A, 6.1, 6.2, 6.3, 6.4, 6.5, 7.6, 7.11, 7.13, 7.15, 7.18, 9.5, Map 43-3 (only as it relates to private streets to become public), Map 43-4 (as it relates to new parks), Map 43-6, Map 43-7