86 RVW & 100-108 RVW Inc. v. City of Toronto, 2025 CanLII 2779

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 13, 2025

CASE NO(S).: OLT-24-000371

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

Applicant/Appellant: 86 RVW & 100-108 RVW Inc.

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

Description: To permit a 59-storey mixed-use building containing 480 residential units, 7 floors of office space and ground floor retail space

Reference Number: 22 192723 STE 13 OZ

Property Address: 86, 100-108 Lombard Street and 103 Richmond Street East

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000371

OLT Case Name: 86 RVW & 100-108 RVW Inc. v. City of Toronto

Heard: November 8, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
86 RVW Inc. and 100-108 RVW Inc.	Daniel Artenosi, Michael Cara
City of Toronto	Adam Ward, Daniel Elmadany (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON NOVEMBER 8, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This event was the second Case Management Conference ("CMC”) before the Tribunal with respect to an appeal pursuant to section 34(11) of the Planning Act (“Act”) by 86 RVW Inc. and 100-108 RVW Inc. (“Applicant”) resulting from the failure of the City of Toronto (“City”) to make a decision within the statutory timeframes of the Act on an application for a Zoning By-law Amendment (“ZBA”), which relates to lands located at 86 Lombard Street, 100-108 Lombard Street, and 103 Richmond Street East in the City (“Subject Property”). The purpose of the ZBA is to allow for the development of a 59-storey mixed-use building on the Subject Property.

2The Applicant has also submitted a Site Plan Application to the City, which has not been appealed and is not before the Tribunal.

3The first CMC took place on July 9, 2024, wherein it was confirmed that Notice had been adequately served, and no further Notice was required. Additionally, Participant Status was granted to: MTCC 784; St. Lawrence Neighbourhood Association; Colleen Farrell; Eleanor Evans; and Kate Rossi. A Party Status request had been received from Warren Sorensen, which was deferred to the second CMC.

STATUS REQUESTS

4The Tribunal was tasked with adjudicating two status requests.

5Warren Sorensen had submitted a Party Status request form prior to the first CMC. At the first CMC, the Applicant objected on the basis that Mr. Sorensen should more appropriately be granted Participant Status. Mr. Sorensen asked to be able to attend the upcoming mediation and then decide whether to proceed as a Party or Participant. As a result, his status request was deferred. At the second CMC, Mr. Sorensen indicated that he wished to maintain his Party Status request, as the mediations had yet to conclude. As discussed below, a third CMC has been scheduled, and Mr. Sorensen asked whether his status could remain in abeyance until then.

6The Applicant’s Counsel maintained the objection to Mr. Sorensen’s request to be a Party. He also objected to Mr. Sorensen’s status continuing to remain unclear. The Tribunal agreed that Mr. Sorensen’s status would need to be addressed at the second CMC to allow the Parties to proceed with some certainty. As such, the Tribunal requested submissions on this issue. The City took no position on Mr. Sorensen’s status request.

7Mr. Sorensen stated that he had believed that, through the process of mediation, his concerns with the proposal would be addressed. However, that has not been the case. He acknowledged that the mediations had not concluded, but he was expecting alterations to the proposal that would remove his concerns. Moreover, Mr. Sorensen did not want to put his faith in the City entirely, in the event that the City did not push for the alterations that he was seeking. Mr. Sorensen felt that if the City did not push for the specific revisions that he was seeking, as a Participant he would not be able to push for them either. Thus, he wanted to be a Party. Mr. Sorensen’s intention at the upcoming Hearing was to cross-examine the witnesses and to make his own submissions to the Tribunal. He did not intend to bring his own witnesses. While he understood the cost consequences of proceeding as a Party, he did not believe that his involvement would prolong the Hearing.

8The Applicant’s Counsel had a number of concerns with Mr. Sorensen’s request. First, he submitted that Mr. Sorensen was raising the same issues that the City had already raised. Moreover, the Condominium Board of the building that Mr. Sorensen lives in has already been added to these proceedings as a Participant. Thus, Mr. Sorensen would not bring anything to the Hearing that would further assist the Tribunal in its adjudication of the issues. Moreover, Mr. Sorensen had stated that he did not intend to make a case apart from cross-examining the witnesses. The role of a Party entails making a case before the Tribunal. Mr. Sorensen will not be able to make submissions without providing evidence to back those submissions. Rather, he would be able to make his submissions and raise his concerns in his own voice freely as a Participant, which would ensure a fair, just, and expeditious proceeding. Most importantly, the City is raising the same concerns as Mr. Sorensen, and is responsible for presenting the view of its citizens (Mr. Sorensen included). The City is currently engaged with the Applicant in working hard to achieve a settlement. Mr. Sorensen’s addition as a Party could negatively impact the ability to resolve this matter, which will be highly prejudicial to the statutory Parties. The Applicant’s Counsel emphasized that the Participants are fully involved in the mediation process; for example, they have been attending same and have received materials pertinent to the ongoing discussions.

9Upon hearing these submissions and reviewing the information before it, the Tribunal determined that Mr. Sorensen did not meet the “obvious factor test” of being a Party, outlined in 1137528 Ontario Ltd. v. Oakville (Town) 2010 CarswellOnt 18558. While Mr. Sorensen met some of those factors, the Tribunal found that he did not meet two important ones. First, Public Interest would not be advanced if Mr. Sorensen’s Party Status is granted as the City is already raising similar issues, and the Board of his condominium building is already a Participant in the proceeding. Moreover, Mr. Sorensen is able to participate fully in the mediations and advance his concerns in that way. Secondly, the Parties would be prejudiced by his addition in this proceeding, as it could impede the ability to achieve a settlement or prolong the proceeding unnecessarily. Lastly, the Tribunal’s ability to make a Decision on this matter would not be further assisted through Mr. Sorensen’s addition as a Party. As a result, Mr. Sorensen was granted Participant Status instead.

10Mr. Sorensen was reassured that the Tribunal takes Participant Statements very seriously, and that witnesses at a future Hearing of this matter would address concerns raised by Participants.

11The Tribunal received a Participant Status request form from Sandra Piperias prior to the second CMC. In her request, Ms. Piperias stated as follows:

…The proposed zoning amendment and subsequent development proposed for 86, 100-108 Lombard Street and 103 Richmond Street, will have a significant impact on Lombard Street and particularly for condo owners in the surrounding area. The concerns have already been presented by other participants. As a board member it is important to keep the condominium owners up to date with developments and therefore request the opportunity to listen in on the next hearing scheduled for November 8, 2024.

[Emphasis added by Tribunal.]

12Ms. Piperias did not raise concerns in her request, and seemed to imply that she wanted to be an observer of the proceedings. Ms. Piperias did not attend the second CMC and could not speak to her Participant Status request. The Tribunal found that her request did not raise concerns that would be helpful to the Tribunal’s ability to adjudicate this matter. As such, the Tribunal did not grant Participant Status to Ms. Piperias. However, she is noted as an Interested Person and will receive information regarding the upcoming events.

PROCEDURAL ORDER AND ISSUES LIST

13At the first CMC, the Parties had been directed to provide a draft Procedural Order (“PO”) or Issues List (“IL”) by November 1, 2024. Prior to the second CMC, the Parties requested that the deadline to submit the PO and IL be extended to November 22, 2024. The mediations were ongoing (with one scheduled for November 6, 2024), and the Parties hoped to narrow some of the issues before submitting an IL for issuance. The Tribunal granted this request.

14At the second CMC, the Parties requested that a Hearing be scheduled. The Tribunal was hesitant to schedule a Hearing without an IL and asked for an overview of the issues, which the Parties provided. The Tribunal was persuaded to schedule a Hearing as requested, with the details provided below. The Tribunal directed the Parties to provide a draft PO and IL to the Case Coordinator by Friday, November 29, 2024. The Tribunal further directed that if the PO and IL were not provided by this date, without a satisfactory explanation, the Hearing dates may be vacated.

15On November 29, 2024, the Applicant’s Counsel provided a draft PO and IL to the Tribunal. However, he explained that there was a disagreement between the Parties regarding the wording of Provision 22 of the PO. As discussed below, a third CMC has been scheduled for this matter. The Tribunal was satisfied that the draft IL supported a 10-day Hearing as requested. However, the Tribunal will not issue the PO and IL at this point. The Parties are directed to continue their discussions in advance of the third CMC, and to file an updated PO and IL by February 27, 2025 (two weeks prior to the third CMC). If they continue to disagree on Provision 22 of the PO by that time, they can advise the Tribunal, and this provision can be considered at the third CMC.

THIRD CMC

16There is a Heritage component to this matter as the building currently at 86 Lombard Street has been designated under the Ontario Heritage Act (“OHA”). The Parties advised that the Applicant was required to submit a Heritage Permit Application to the City under the OHA. The Applicant’s Counsel indicated the Applicant’s intention to do this imminently.

17The Parties requested that a third CMC be scheduled. The City’s Counsel explained that the purpose of this CMC is to ensure that the Applicant has submitted all the required permit application(s), and either a decision of the City’s Council has been made to approve it, or the Council’s decision on the permit application(s) has been appealed to the Tribunal. If the latter, a decision would need to be made at the third CMC regarding having the heritage component be heard together with the current appeal. The Applicant’s Counsel clarified that heritage issues were already considered in the current IL, and the Hearing timeline of 10 days would not be extended if the Heritage matter was added to the appeal.

18In addition to the Heritage issues, the Applicant’s Counsel added that, as mediation were ongoing, a potential settlement may be likely. If a full settlement was achieved, it could be heard and addressed by the Tribunal at the third CMC.

19The Tribunal agreed and scheduled a third CMC with the details indicated below. Of note, on November 29, 2024, the Applicant’s Counsel advised the Tribunal that the Heritage Permit Application has been submitted to the City.

MEDIATION AND SETTLEMENT

20The Parties have been engaged in a series of mediations and indicated that they intend to continue their discussions. The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the Hearing, and should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

THIRD CMC AND HEARING INFORMATION

21A third CMC has been scheduled to take place by Video Hearing on Thursday, March 13, 2025 at 10 a.m.

22Given the number of Parties, potential issues, and potential witnesses, the Tribunal agreed that a 10-day Merit Hearing would be sufficient. A Hearing has been scheduled to take place by video commencing on Monday, October 27, 2025, at 10 a.m. to and including Monday, November 10, 2025.

23The Parties and/or Participants are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

Thursday, March 13, 2025 at 10 a.m. (1-day CMC Hearing)

GoToMeeting: https://global.gotomeeting.com/join/656004293

Access Code: 656-004-293

Audio-Only Telephone Line: +1 (647) 497-9373 or (toll-free) 1-888-299-1889

Audio-Only access Code: 656-004-293

Monday, October 27, 2025 at 10 a.m. (10-day Merit Hearing)

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

Access Code: 519-389-173

Audio-Only Telephone Line: +1 (647) 497-9373 or (toll-free) 1-888-299-1889

Audio-Only access Code: 519-389-173

24The Parties and/or 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html

25Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line indicated above.

26Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

ORDER

27THE TRIBUNAL ORDERS as follows:

a. Warren Sorensen is a Participant in this proceeding.

b. A third Case Management Conference is scheduled as described above in this Decision.

c. A Hearing is scheduled as described above in this Decision.

d. The Procedural Order and Issues List, or a status updated, are to be provided to the Tribunal’s Case Coordinator by February 27, 2025.

28This Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE 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.