Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 13, 2025

CASE NO(S).: OLT-24-000837

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

Appellant: 2856973 Ontario Inc.

Subject: Proposed Official Plan Amendment No. 727

Description: OPA 727- Townhouses and small-scale apartment buildings

Reference Number: 24 122626 STE 10 OZ

Property Address: Specific lands within the boundaries of the Major Street Zoning By-law

Municipality/UT: City of Toronto

OLT Case No.: OLT-24-000837

OLT Lead Case No.: OLT-24-000837

OLT Case Name: 2856973 Ontario Inc. v. Toronto

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

Appellant: 2856973 Ontario Inc.

Subject: By-law No. 608-2024

Description: ZBA - 608-2024- Townhouses and small-scale apartment buildings

Reference Number: 20 175353 STE 10 TM

Property Address: Specific lands within the boundaries of the Major Street Zoning By-law

Municipality/UT: City of Toronto

OLT Case No.: OLT-24-000838

OLT Lead Case No.: OLT-24-000837

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

Request by: City of Toronto

Request for: Request for Directions

Heard: November 13, 2024 by video hearing

APPEARANCES:

Parties

Counsel

2856973 Ontario Inc.

Andrew Jeanrie Stephanie Brazzell

City of Toronto

Laura Bisset Gabe Szobel

Amnon Fisch and Gabor Koltai

Katryna Vergis-Mayo Aaron Platt (in absentia)

KMK Trading Company Limited

Amber Stewart

DECISION DELIVERED BY S. Dixon AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision and Order arises from the first case management conference (“CMC”) held regarding appeals filed by 2856973 Ontario Inc. (“Appellant”) pursuant to ss. 22(7) and 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning the adoption of Official Plan Amendment No. 727 (“OPA 727”) and Zoning By-law No. 608-2024 (“ZBL 608”) by the City of Toronto (“City”).

2OPA 727 proposes to amend the City’s Official Plan to enable townhouses and small-scale apartment buildings up to six storeys in height to be built on lands designated “Neighbourhoods” along major streets throughout the City.

3ZBL 608 proposes to amend City-wide Zoning By-law No. 569-2013 to permit, and introduce built form standards for, townhouses and small-scale apartment buildings along major streets in the RD, RS, RT, and RM Residential Zone categories.

4Together, OPA 727 and ZBL 608 (“Instruments”) are intended to facilitate the construction of low-rise housing in the City’s neighbourhoods to accommodate a diversity of household sizes and compositions across the City.

5The Instruments were enacted by City Council on June 27, 2024. The last day to appeal the Instruments was July 29, 2024.

NOTICE

6The Tribunal was in receipt of an Affidavit of Service sworn by Trecy Manuela on September 18, 2024, which was marked as Exhibit 1. There were no concerns with the service of notice for the CMC and as such, no further notice is required in these proceedings.

STATUS REQUESTS

7The Tribunal received two requests for party status and two requests for participant status in advance of the CMC.

Party Status Requests

8The first party status request was jointly filed by Amnon Fisch and Gabor Koltai, the owners of land municipally known as 362 Lawrence Avenue West in the City. Counsel for Messrs. Fisch and Koltai submitted that their clients retain an interest in neighbouring lands as well, restricted in scope to the block bounded by Lawrence Avenue West to the south, Avenue Road to the east, Wilson Avenue to the north and Bathurst Street to the west.

9Messrs. Fisch and Koltai support and are sufficiently satisfied with the adopted versions of the Instruments. However, the Appeals prevent them from advancing with certainty what, in their submission, would otherwise be plans for an “as of right” proposal for the lands to which they retain an interest.

10The second party status request was filed by KMK Trading Company Limited (“KMK”). KMK has an ownership interest, through holding corporations, in properties located along major streets in the City, including along Ossington Avenue, Gerrard Street East, and Broadview Avenue. Counsel for KMK submitted that KMK shares the concerns of the Appellant, that their interest in the Appeals is reflected in the issues raised by the Appellant in its notices of appeal, and that they would be able to appropriately shelter under said issues.

11The party status requests were not opposed by either the City or Appellant and were granted by the Tribunal subject to the sheltering provisions of Rule 8.3 of the Tribunal’s Rules of Practice and Procedure.

Participant Status Requests

12The Tribunal received participant status requests from Craig Race and Marilyn Miller.

13Mr. Race generally agrees with the position of the Appellant. In his opinion, there should be no limit on the number of permitted units, and side yard setbacks should be a maximum of 0.9 metres in all instances.

14Ms. Miller represents the Junction Heritage Conservation District Board. They are concerned with preserving the heritage character and legibility of the West Toronto Junction area and are in favour of certain development criteria contained within the Instruments pertaining to massing, setbacks, and architectural articulation.

15There were no objections by any of the parties for either participant status request. Accordingly, the requests were granted and both Mr. Race and Ms. Miller were conferred participant status to these proceedings by the Tribunal.

OPPORTUNITIES FOR SETTLEMENT

16The City and Appellant advised the Tribunal that they are engaged in without prejudice settlement discussions and will continue in that regard prior to requesting Tribunal-led mediation, should they feel that the latter is necessary.

MOTION FOR SCOPING AND PARTIAL APPROVAL

17Prior to the CMC, the City filed a Motion for Scoping and Partial Approval (“Motion”) with the Tribunal, which was marked as Exhibit 3. The Motion seeks to scope the Appeals in two ways, by:

Geographically scoping the Appeals to only the lands known municipally as 417-419 Burnhamthorpe Road (owned by the Appellant); and
Scoping the Appeals to only those policies and provisions of the Instruments identified by the Appellant as being at issue.

18The Motion further seeks an Order of the Tribunal:

Confirming that those sections of OPA 727 not subject to appeal came into effect for all lands not subject to appeal as of the day after the last day for filing a notice of appeal (being July 30, 2024), by operation of s. 17(27) of the Act; and
Deeming that those sections of ZBL 608 that are not in issue came into effect for all lands not subject to appeal as of the day they were passed, being June 27, 2024, pursuant to s. 34(31) of the Act.

Geographic Scoping

City Submissions

19To support their position that the Appeals should be scoped geographically to only 417-419 Burnhamthorpe Road, the City directed the Tribunal to 2014707 Ontario Inc. v. Guelph (City), [2024] LNONLT No. 146 (QL), (See also: Ferrovia Investments Inc. v. Guelph (City), 2024 CanLII 9790 (ON LT)) (“Guelph Decision”), in which the City of Guelph brought a motion before the Tribunal to have two appeals of the City of Guelph comprehensive zoning by-law geographically scoped from city-wide to site- or area-specific on the grounds that the appeals only identified concerns related to the appellants’ respective properties.

20Beginning at Paragraph 23 of the Guelph Decision, the Tribunal found that, with respect to the first appellant, the notice of appeal, accompanying appeal letter, and subsequent correspondence submitted by the appellant referenced concerns only related to a single property, with the exception of a single statement in the appeal letter that, “This notice of appeal applies to the entirety of the New Zoning By-law.”

21Beginning at Paragraph 30 of the Guelph Decision, the Tribunal set out similar findings with respect to the second appellant, including that the notice of appeal, accompanying appeal letter, and subsequent correspondence all referenced concerns related only to a single property, again with the exception of a single statement in the appeal letter declaring the appeal of the by-law in its entirety.

22At Paragraph 38 of the Guelph Decision, the Tribunal found that the single statement was insufficient, and “cannot now be used to expand on the grounds for the appeal when no indication was provided, until the Motion was brought, to justify, explain or legitimize the appeal to apply to the entirety of the City.”

23In both instances, the Tribunal found that, without reasons in the respective appeal letters indicating the bases for the proposed city-wide appeals (and with numerous stated reasons indicating the site- or area-specific nature of the appeals), the appeal letters confirmed the limited geographic scope of each appeal, with no reasons in support of the need or justification to maintain the appeals on a city-wide basis being provided in the appeal letters.

24For both appeals, the Tribunal found at Paragraphs 26 and 38 of the Guelph Decision that, “The reasons provided at the hearing of the Motion do not rise to the level of providing legitimacy to a City-wide basis of the appeal.” Accordingly, the Tribunal ordered the geographic scoping of both appeals.

25Drawing parallels to the Guelph Decision, the City submitted that the Appellant in the case currently before the Tribunal has identified itself as the owner of only 417-419 Burnhamthorpe Road, has not listed any other properties in the City that it may have an interest in, and “surely does not have an interest in all property in the City on which [townhouses and small-scale apartment buildings] might be developed” (Exhibit 3, p. 7). It is therefore, in the City’s submission, difficult to ascertain why a City-wide appeal is justified or needed.

26The City further submitted that the effect of the Appellant having appealed the Instruments on a City-wide basis is that as-of-right permissions for townhouses and small-scale apartment buildings in all of the City’s neighbourhoods will remain unavailable until the current proceedings have concluded, thereby delaying the delivery of the intended supply and diversity of housing. In the City’s view, it is not in the public interest to delay the implementation of the Instruments because one landowner objects to aspects of same.

Appellant Submissions

27The Appellant’s position is that, as a developer specialising in low density gentle infilling within urban environments, they are well positioned to identify how certain provisions and regulations of the Instruments, in practice, may fail to achieve the objectives outlined by City staff, and may limit opportunities to have more homes built faster.

28To that end, the Appellant wrote to City Council on May 17, 2024, prior to the adoption of the Instruments, outlining their concerns with same. In their letter (contained in the Appellant’s Responding Motion Record, marked as Exhibit 4), the Appellant notes that they “own and have developed numerous parcels of land across the City (and GTA). Our client is very familiar with the policy needs to successfully implement, in a timely manner, low density gentle infilling in an urban environment” (Exhibit 4, p. 74).

29The letter does not reference or identify the Appellant as an owner of any particular parcel of land in the City. However, a subsequent letter was sent to the City by the Appellant on June 6, 2024, indicating that the Appellant is the registered owner of 417-419 Burnhamthorpe Road (Exhibit 4, p. 76).

30The Appellant’s Responding Motion Record (Exhibit 4) notes that the Instruments were adopted by City Council without addressing any of the concerns raised in the May 17, 2024 letter, and the Appeals were filed on that basis.

31Counsel for the Appellant submitted that the Act does not limit the ability of a registered landowner to file an appeal beyond the geographic scope of their property. The Tribunal was directed to s. 17(24) of the Act, which states in part (following emphasis added):

Right to appeal

(24) If the plan is exempt from approval, any of the following may, not later than 20 days after the day that the giving of notice under subsection (23) is completed, appeal all or part of the decision of council to adopt all or part of the plan to the Tribunal by filing a notice of appeal with the clerk of the municipality:

1.2 The registered owner of any land to which the plan would apply, if, before the plan was adopted, the owner made oral submissions at a public meeting or written submissions to the council.

32Counsel for the Appellant submitted that while the Guelph Decision is indeed relevant, the Tribunal must conduct a similar examination of the appeal materials in the case at hand to determine the appropriate scope of the Appeals.

33In the Guelph Decision, the Tribunal examined the notices of appeal, accompanying appeal letters, and related correspondence of the appellants and determined that, with the exception of one blanket statement in each of the appeal letters, all referenced concerns with the comprehensive zoning by-law in that case related only to each of the appellants’ specific properties. Accordingly, the appeals were found to be site-specific.

34In the case at hand, counsel submitted that the exact opposite is true. They proffered that their client filed City-wide appeals for very specific matters based on global concerns for how the proposed Instruments might not achieve their stated objectives. To that end, counsel submitted that the notices of appeal, accompanying appeal letter, and related correspondence all demonstrate that the Appellant’s concerns have always been, and continue to be, City-wide.

35The notice of appeal form for OPA 727 states that the address and/or legal description of property subject to the appeal is “Specific policies across the entire Major Street OPA coverage” (Exhibit 4, p. 78) and refers to the accompanying appeal letter for the reasons for appeal.

36The notice of appeal form for ZBL 608 states that the address and/or legal description of property subject to the appeal is, “Specific lands within the boundaries of the Major Street Zoning By-law” (Exhibit 4, p. 85) and refers to the accompanying appeal letter for the reasons for appeal.

37The opening paragraph of the Appellant’s appeal letter, found at Page 70 of the Appellant’s Responding Motion Record (Exhibit 4), states the following:

We act on behalf of 2856973 Ontario Inc. which is:

a) an owner of lands located along Burnhamthorpe Road in the City of Toronto;

b) but also, is a long time developer of infill development within the City of Toronto.

38Counsel for the Appellant submitted that the above reference to Burnhamthorpe Road (which notably does not reference a precise address) is the only instance in which a particular property is referenced in the appeal letter, and that is because the Appeals are not about that site. Rather, the reference to the Appellant being “an owner of lands located along Burnhamthorpe Road in the City of Toronto” is to indicate that the Appellant meets the “threshold issue” of being a registered owner of any land to which the Instruments would apply, and they are therefore permitted to appeal the Instruments as set out in ss. 17(24) and 34(19) of the Act.

39The appeal letter goes on to state that, while the Appellant supports the overall direction of OPA 727 to encourage respectful infill development, the Appellant objects to the individual and cumulative impact of a number of policies and sections “on infill development along Major Streets.”

40With regards to ZBL 608, the appeal letter states the Appellant’s objection to the provisions regarding the Residential Townhouse (RT) zone, as well as all policies related to the as of right permissions for apartment buildings in any zone, noting that the provisions will unnecessarily and systematically stifle responsible growth for apartment buildings and “all development within the RT zone”.

41Counsel for the Appellant noted that, with respect to their stated concerns with the RT zone, that portion of ZBL 608 “has nothing to do with the Burnhamthorpe property.” Rather, counsel proffered that the Burnhamthorpe Road property is already the subject of separate rezoning and site plan applications that have been appealed to the Tribunal and that will be addressed through those proceedings, which supports the Appellant’s position that the Appeals are not for the benefit of 417-419 Burnhamthorpe Road.

42Accordingly, counsel submitted “there would be no point in allowing the Appeals” for the limited geographic scope of 417-419 Burnhamthorpe Road, as doing so would defeat the Appellant’s objective of improving the Instruments for the benefit of future infill development projects along major streets in the City.

43The appeal letter concludes by stating that, pursuant to s. 17(24) of the Act, “we are appealing OPA 727 as noted above (not site specific, but City wide)” and that, pursuant to s. 34(19) of the Act, “we are appealing ZBL 608-2024 as noted above (not site specific, but City wide)” (Exhibit 4, p. 72).

Fisch and Koltai Submissions

44Paragraph 29 of the Appellant’s Responding Motion Record (Exhibit 4, p. 6) states the following:

The Appellant has no desire to delay development by other landowners where such landowner would like to have the ZBA apply as adopted by the City. Accordingly, the Appellant has proposed that it would scope its appeal of the ZBA from the property of any landowner that approaches the Appellant with such request. Doing so will ensure that no such landowner is delayed in using the ZBA as approved by the City should they so choose.

45In response to the above, the Tribunal received a letter on behalf of Messrs. Fisch and Koltai (Exhibit 6) in advance of the CMC requesting that the lands to which they hold an interest (described in Paragraph [8], above) be “scoped out” of the ZBL 608 Appeal. At the CMC, counsel for Messrs. Fisch and Koltai reiterated their request to be scoped out of the ZBL 608 Appeal, noting that their client wished to maintain their party status for the OPA 727 Appeal.

46Counsel for the Appellant took no issue with the request and, following the CMC, submitted a draft order to the Tribunal (hereby marked as Exhibit 8) listing 12 sites or areas from across the City proposed to be excluded from the ZBL 608 Appeal. The draft order further seeks confirmation that ZBL 608 came into force and effect, in full and unamended, for the 12 listed sites or areas as of the day it was passed by City Council.

47Included in the list of sites/areas are “The properties identified as ‘Neighbourhood Designed [sic] Parcels on Major Streets’ on the block bounded by Lawrence Avenue West to the south, Ledbury Street to the west, Glengarry Avenue to the north and Grey Road to the east […]” (Exhibit 8, p. 2).

48The Tribunal notes that the geographic area described above is located within, yet significantly smaller than, the geographic area described in Exhibit 6 and Paragraph [8], above. Presumably, this reflects a geographic scoping of the area of interest of Messrs. Fisch and Koltai, though explicit confirmation of same has not been received by the Tribunal.

KMK Submissions

49Counsel for KMK agreed with the position taken by the Appellant and further submitted that the Appeals seek to eliminate barriers to housing. In their submission, it is in the public interest and good planning to support an opportunity for the Tribunal to hear evidence at a hearing on how the Instruments might be improved on a City-wide basis.

Findings

50The Tribunal agrees with the Appellant’s submissions that their Appeals, while limited in scope on a policy and regulation basis, apply to the Instruments on a City-wide basis.

51The Tribunal is satisfied that the reference to the Appellant being an owner of lands located along Burnhamthorpe Road in the City of Toronto in the Appellant’s appeal letter is not a suggestion that the concerns outlined therein are solely in relation to that site.

52The Guelph Decision sets out a helpful rationale for determining the scope of an appeal based on an examination of a notice of appeal and accompanying appeal letter, and whether an appellant is attempting to expand the scope of an appeal after the filing of same. In the case at hand, the Tribunal finds that the Appellant’s notices of appeal, accompanying appeal letter, and prior submissions to City Council indicate that the Appellant’s concerns have and continue to be in relation to the application of the Instruments on a City-wide basis, and not in relation to any one particular site.

53The Appellant’s concerns regarding the individual and cumulative impacts of the application of certain provisions of the Instruments on the intensification of major streets were raised with the City as early as May 17, 2024. Those concerns were reiterated and referenced in the Appellant’s appeal letter accompanying their notices of appeal. Neither of those documents suggest to the Tribunal that the Appeals are site-specific in nature. Rather, they broadly refer to global concerns pertaining to infill development along major streets and all development within specific (and multiple) zones.

54Accordingly, the Tribunal finds that the scope of the Appeals can reasonably be interpreted as pertaining to all lands impacted by the Instruments and are not limited to 417-419 Burnhamthorpe Road. In that regard, the City’s requested relief is denied.

55With respect to the Appellant’s proposed geographic scoping of the ZBL 608 Appeal to exclude sites or areas owned by other landowners (including Messrs. Fisch and Koltai) in response to Paragraph 29 of the Appellant’s Responding Motion Record (Exhibit 4), the Tribunal notes that the proposed scoping does not include a corresponding geographic scoping of the OPA 727 Appeal. Accordingly, the Appellant and Messrs. Fisch and Koltai are requesting that the appealed portions of ZBL 608 be brought into effect for certain lands within the City, but that the appealed portions of OPA 727 remain under appeal for those same lands.

56While the Tribunal appreciates the Appellant’s attempt to reduce the geographic scope of their Appeal so as not to “delay development by other landowners where such landowner would like to have the ZBA apply as adopted by the City” (Exhibit 4, p. 6), the Tribunal has heard no evidence to date on the planning merits of the Instruments and cannot make a determination that the appealed portions of ZBL 608 will conform to the City’s Official Plan absent a corresponding approval of the appealed portions of OPA 727.

57In other words, should the OPA 727 Appeal be successful and result in the modification or repeal of certain policies thereto, the Tribunal must be satisfied that there will not be a resulting conformity issue with those portions of ZBL 608 that are requested to be approved on a site- or area-specific basis.

58The requested geographic scoping by the Appellant and Messrs. Fisch and Koltai of only the ZBL 608 Appeal is therefore denied. However, the Tribunal’s current ruling in this regard does not preclude any of the Parties from bringing a more fulsome motion requesting similar relief, with supporting submissions to address the Tribunal’s concerns, at a future date.

Policy and Provision Scoping

59Counsel for the Appellant submitted that, following additional time to review the Instruments and as a result of productive discussions with the City, the Appellant is in a position to further scope the policies and regulations under appeal on a City-wide basis to a subset of the policies and regulations initially raised in their notices of appeal.

60Following the CMC, the Appellant and City confirmed for the Tribunal that the extent of the OPA 727 policies and the ZBL 608 regulations subject to appeal are reflected in Attachments “A” and “B”, respectively, to the City’s Reply Motion Record (Exhibit 5).

61Accordingly, the unhighlighted sections, non-policy text, and policies of OPA 727 attached hereto as Schedule 1 are not subject to appeal and are confirmed by the Tribunal to have come into effect on the day after the last day for the filing of a notice of appeal, being July 30, 2024, by operation of s. 17(27) of the Act. All highlighted sections in Schedule 1 remain under appeal on a City-wide basis.

62Further, the unhighlighted provisions of ZBL 608 attached hereto as Schedule 2 are not in issue in the Appeal and are hereby deemed by the Tribunal to have come into force on the day the by-law was passed, being June 27, 2024, pursuant to s. 34(31) of the Act.

NEXT STEPS

Second CMC

63Following the CMC, the Tribunal canvassed the parties’ availability for a second CMC for the purposes of finalising a procedural order and issue list, confirming which issues the added parties intend to shelter under, and to schedule dates for a hearing on the merits of the Appeals.

64Having received submissions from all four parties, the Tribunal scheduled a one-day CMC to proceed by video on Thursday, February 27, 2025 at 10 a.m.

65Parties are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

GoTo Meeting: https://meet.goto.com/996288525

Access Code: 996-288-525

66Parties 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

67Persons 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: +1-647-497-9391 or (toll-free) +1-888-455-1389. The access code is: 996-288-525.

68Individuals 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.

Draft Procedural Order and Issues List

69The parties are to submit a draft procedural order and issues list by no later than Friday, February 21, 2025 for the Tribunal’s consideration in advance of the second CMC.

Sheltering

70KMK and Messrs. Fisch and Koltai are to identify which of the draft issues they intend to shelter under, in accordance with Rule 8.3 of the Tribunal’s Rules of Practice and Procedure, by no later than Friday, February 21, 2025 for the Tribunal’s consideration in advance of the second CMC.

ORDER

71THE TRIBUNAL ORDERS that Amnon Fisch and Gabor Koltai are granted party status and are hereby a party to these proceedings.

72THE TRIBUNAL ORDERS that KMK Trading Company Limited is granted party status and is hereby a party to these proceedings.

73THE TRIBUNAL ORDERS that Craig Race and Marilyn Miller are each granted participant status and are hereby participants to these proceedings.

74THE TRIBUNAL ORDERS that the added parties above shall identify which issues they intend to shelter under by no later than February 21, 2025.

75THE TRIBUNAL ORDERS that the parties are to provide the Tribunal with a draft procedural order and issues list by no later than February 21, 2025.

76THE TRIBUNAL ORDERS that, by operation of s. 17(27) of the Planning Act, the parts of Official Plan Amendment No. 727 to the Official Plan for the City of Toronto that are not the subject of an appeal, being the unhighlighted sections, non-policy text, and policies shown in Schedule 1 to this Order, are deemed to have come into effect as of July 30, 2024.

77THE TRIBUNAL ORDERS that, pursuant to s. 34(31) of the Planning Act, the parts of By-law No. 608-2024 of the City of Toronto not in issue in the appeal, being the unhighlighted parts of the by-law shown in Schedule 2 to this Order, are deemed to have come into force on June 27, 2024.

78No further notice is required.

79This Member is not seized.

“S. Dixon”

s. dixon

membeR