4949 Bathurst GP Limited v. Toronto (City), 2026 CanLII 46881

du territoire

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

ISSUE DATE: May 14, 2026

CASE NO(S).: OLT-25-000904

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

Appellant: 4949 Bathurst GP Limited

Subject: By-law No. 1114-2025

Description: Zoning By-law Amendment for a 39-storey mixed-use building

Reference Number: 24 207996 NNY 18 OZ

Property Address: 4949 Bathurst Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-25-000904

OLT Lead Case No.: OLT-25-000904

OLT Case Name: 4949 Bathurst GP Limited v. Toronto (City)

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

Motion for: Directions

Heard: April 14, 2026 by Video Hearing

APPEARANCES:

Parties	Counsel
4949 Bathurst GP Limited ("4949 Bathurst/Appellant")	Mark Flowers, William George (student-at-law)
City of Toronto ("City")	Ariel Lo-Wong, Michael Mahoney

MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN ON APRIL 14, 2026 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision provides a written disposition of an oral Decision given to dismiss a Motion to Adjourn brought by the City which was heard by video hearing on April 14, 2026.

2At the first Case Management Conference held on February 20, 2026, the Tribunal set a 5-day Merit Hearing to commence on May 25, 2026, based on the availability of the Tribunal and at the request of Counsel for the Parties. No mention was made at that time by the City of any intention to bring this Motion forward.

3The Motion before the Tribunal seeks to adjourn the Merit Hearing on the appeal filed by 4949 Bathurst arising from the City’s passing of Zoning By-law Amendment No. 1114-2025 (“ZBA”). The City takes the position that the hearing of the appeal on the days set aside would prejudice the City in the absence of its land use planner and urban design specialist.

4The Motion Record and the Notice of Response to Motion also requested an Order of the Tribunal abridging time for service. Having heard no objections to the abridging of time for service of the materials received, the Tribunal heard the Motion.

5In light of the rapidly approaching exchange of documents, experts’ meetings and Hearing dates, the Tribunal provided an oral Decision after reviewing the Motion records, written materials and hearing the oral submissions of Counsel. The Tribunal dismissed the Motion to Adjourn and ordered that the Merit Hearing proceed as scheduled. The Tribunal ordered that the Procedural Order be amended to reflect:

a. April 20, 2026, as the deadline date for the exchange of Witness Statements, summonsed witness outlines, and expert reports;

b. May 8, 2026 as the deadline date for the exchange of Reply Witness Statements.

EXHIBITS LIST

6In consideration of the Motion, the Tribunal heard fulsome submissions from Counsel to the Parties, all written Witness Statements by sworn Affidavits, associated Curriculum Vitae, and Acknowledgements of Expert’s Duty, respectively, all contained within the Exhibits marked below:

Exhibit 1: Motion Record

Exhibit 2: Responding Motion

Exhibit 3: Response to the Responding Motion

Exhibit 4: Book of Authority – 4949 Bayview

Exhibit 5: OLT-25-000485 Decision – City

7In addition, the Tribunal received and considered authorities from Counsel reflecting decisions made by the Tribunal, its predecessors and the Courts.

BACKGROUND FACTS

8In August and September of 2024, an application to amend the City of Toronto Zoning By-law 569-2013, for the property at 4949 Bathurst Street, was submitted to the City to permit a mixed-use development with a height of 39-storeys. In May 2025, the Appellant made a resubmission of the application.

9Through an approval report to North York Community Council dated August 29, 2025, City staff recommended approval of a zoning-law amendment for the Lands, permitting less height and density differing from the Application. The Appellant provided a responding written submission to North York Community Council dated September 15, 2025, recommending support for the Application, as submitted by the Appellant.

10At the meeting of City Council on October 8 and 9, 2025, after a further amendment to the by-law by the Ward Councillor, City Council enacted Zoning By-law No. 1114-2025 on October 9, 2025.

11On November 10, 2025, the Appellant appealed the ZBA.

THE CITY’S MOTION

12The City requests:

1. An Order of the Ontario Land Tribunal (“OLT”) under Rule 17.3 of the Ontario Land Tribunal Rules of Practice and Procedure adjourning without consent the Hearing and procedural order dates of the ZBA appeal by 4949 Bathurst GP Limited (the “Appellant”) are scheduled to commence on May 25, 2026, until at least June 30, 2026;

2. An Order of the Tribunal rescheduling the Hearing to a future date for which the City may have the services of its experts, with attendant modification to procedural order dates;

3. An Order abridging the time of service of this Notice of Motion, as necessary; and

4. Such further or other relief as Counsel may advise and the Tribunal may deem just.

THE GROUNDS FOR THE MOTION

13The City submits the following grounds for its Motion:

1. Illness of Expert Witness: The City’s expert witness for urban planning requires medical treatment that will prevent her from being able to participate in the hearing scheduled to begin on May 25, 2026;

2. No Urban Design Witness for the City: The City’s expert witness for urban design is not available for a Hearing commencing May 25, 2026. City Counsel had raised that it did not have staff availability at the first Case Management Conference (“CMC”) in this appeal as the planner (who was responsible for coordinating availability of City staff for the hearing) was ill at the time, notwithstanding that the Tribunal scheduled a Hearing to commence on that date;

3. The City would suffer extreme prejudice to its case should the Hearing be allowed to proceed on the scheduled dates; and

4. The adjournment provides for a just, fair, expeditious and cost-effective determination of the real questions in issue for the hearing.

LEGISLATIVE FRAMEWORK

14Both the City and the Appellant reviewed the relevant legislation in relation to their position.

TRIBUNAL RULES OF PRACTICE AND PROCEDURE

RULE 17 - ADJOURNMENTS

17.1  Hearing Dates Fixed Hearing events will take place on the date set unless the Tribunal agrees to an adjournment. Adjournments will not be allowed that may prevent the Tribunal from completing and disposing of its proceedings within any applicable prescribed time period.

17.3  Requests for Adjournment without Consent If a party objects to an adjournment request, the party requesting the adjournment must bring a motion at least 15 days before the date set for the hearing event. If the reason for an adjournment arises less than 15 days before the date set for the hearing event, the party must give notice of the request to the Tribunal and to the other parties and serve their motion materials as soon as possible. If the Tribunal refuses to consider a late request, any motion for adjournment must be made in person, at the beginning of the hearing event.

17.4  Emergencies Only The Tribunal will grant last minute adjournments only for unavoidable emergencies, such as illnesses so close to the hearing date that another representative or witness cannot be obtained. The Tribunal must be informed of these emergencies as soon as possible.

17.5  Powers of Tribunal upon Adjournment Request The Tribunal may,

e. direct that the hearing proceed as scheduled but with a different witness, or evidence on another issue;

ONTARIO LAND TRIBUNAL ACT

Orders

9 (1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.

The City’s Position

1) Illness of Expert Witness

15City Counsel stated that the planning witness for this appeal had sustained an injury and had been advised by her doctor to take immediate medical leave. Mr. Matthew, Manager of Community Planning, North York District, was provided a medical leave note on March 9, 2026. On March 13, 2026, Counsel stated that they had informed the Appellant’s legal Counsel of the planner’s injury and that she (the planner) is working through the process of assessment of her medical treatment.

16The City’s submission to the Tribunal is that the injury to their planning witness occurred “close enough” to the Hearing commencement date for the Tribunal to consider an adjournment of the Hearing until a further date. The City emphasized that the Staff Report authored by the planner should not be solely relied on at the hearing. Counsel stated that there is no “perfect play book” when responding to a progressive illness.

17Counsel informed the Tribunal that due to their planner’s injury an outside planner would have to be engaged, which would require City Council’s approval as the City does not have a large planning department, and as a practice the City’s witnesses are not interchangeable. Counsel proffered there is insufficient number of working days before the deadline of April 10, 2026, for the witness statement to be filed, and to provide an outside planner with enough time to competently prepare for the Hearing.

18Counsel emphasized that any new planner assigned to this file would not have enough time to meet the remaining requisite deadlines set out in the Procedural Order (“PO”) for this appeal.

19Counsel submitted that it would similarly be unfair and contrary to the public interest for the Hearing to proceed on May 25, 2026, as the City would be severely prejudiced by the absence of planning evidence. Counsel stated that there would be a breach of procedural fairness and natural justice if it were not provided the opportunity to fulfil the basic components of retaining witnesses and receiving instructions from Council to do so.

2) No Urban Design Witness

20On March 13, 2026, the City lawyers wrote to the Tribunal advising that the City’s urban design witness had scheduled vacation travel from May 25 to May 29, 2026, and, as a result, that the City would be requesting the rescheduling the Hearing to a later date. The urban design witness assigned to this matter, a unionized City employee, requested the leave, which was approved on February 13, 2026, by City Urban Design (Program) Manager Dawn Hamilton.

21Following a request from the City for a teleconference or videoconference, and upon review by the Vice Chair, it was determined that a second CMC would not be convened. Instead, the immediate priority was to establish the timeline for finalizing the draft Procedural Order and Issues List.

4949 Bathurst Reply Submissions

22Counsel agreed that as per Tribunal Rule 17.4, the Tribunal will grant last-minute adjournments but only for unavoidable emergencies, which are of the nature that physically prevents the participation of counsel or a witness arising so close to the Hearing that replacements cannot be secured. He emphasized that this is not applicable to this case.

23In this case, the City was aware of the circumstances surrounding the planner’s injury as of March 9, 2026, when the planner advised her manager of her injury and resulting medical leave. Counsel submitted that the City knew, or ought reasonably to have known, that the planner might not be well enough to participate in the Hearing, and should therefore have ensured that a suitable replacement witness was available. Counsel further argued that the City, as an experienced participant in Tribunal proceedings, ought to have developed a contingency plan in light of the planner’s progressive symptoms.

24On February 13, 2026, one week prior to the CMC, Ms. Hamilton, Manager to the urban design witness, approved the witness’s request for vacation during the week of May 25, 2026. Counsel submitted that, when the City attended the CMC on February 20, 2026, it knew that the urban design witness might be unavailable during the week of May 25, 2026. Council maintained that, while the urban design witness might be entitled to request time off, she has no entitlement to insist that such time off coincide with the scheduled Hearing week. Counsel argued that, if the City intends to rely on the urban designer’s evidence at the Hearing, it may ask her to alter her vacation plans, arrange for her to attend part of the Hearing remotely from her vacation location, or issue a summons compelling her attendance.

25Counsel further emphasized that Mr. Matthew’s written submission outlined the need to seek City Council’s authority at its meeting of April 22, 2026 to retain an external planning witness, if necessary. However, the Tribunal was informed that City Council had met on March 25 and 26, 2026, approximately one week after Mr. Matthew indicated that the planner had attended a medical appointment due to ongoing symptoms, yet no authority or direction was sought from City Council although that date represented a clear and timely opportunity to seek instructions, authority, or contingency approval (for example, to retain a replacement witness, adjust strategy, or raise scheduling concerns). In Counsel’s view, the City’s failure to seek such authority at that point indicates that the issue was not treated as urgent or material while a meaningful opportunity existed to address it.

26Counsel noted that 32 days before the original deadline for the delivery of witness statements (i.e., April 10, 2026, a date which the City agreed to when it submitted the draft PO to the Tribunal on March 18, 2026), the City did not propose or seek an extension of the deadline for the delivery of witness statements to accommodate a potential new City planning witness. Counsel advised that, not only was the City’s planning witness and the urban design witness present at the meeting of expert witnesses on April 1, 2026, but both Mr. Matthew and (Manager) Ms. Hamilton also attended and participated in the meeting.

27As of March 9, 2026, Counsel noted, the start of the Hearing remained 77 days away. By contrast, the City is seeking the Tribunal to adjourn the Hearing until at least June 30, 2026, which turns out to be a period that is likewise 77 days.

28Council argued that the City did not act efficiently as it had plenty of opportunities to seek both an alternate planner and urban design specialist from the onset, Counsel for the city did not object to the timeline of end of May for the Merit Hearing and was aware through the Notice of the first CMC to be ready to discuss a start date for the Hearing.

Ruling on the Motion

29The primary role of the Tribunal is to ensure a fair and just hearing. To ensure this, it must be emphasized that the basis for the Motion to Adjourn before the Tribunal at this stage is not to make a decision on the outcome of the Appeal but to consider whether granting the adjournment is necessary. The timeline of events leading to the Motion to Adjourn is relevant and unique in each appeal and has led the Tribunal to exercise its discretion to interpret its Rules in order to ensure the fairness of the proceedings.

30The Tribunal’s Rules on adjournment make it clear at the starting point that all hearing dates are fixed. A request for an adjournment must be based on supportable reasons as to why the Party seeking the adjournment cannot present their case on the Hearing date for an adjournment to be granted.

31Prior to the CMC of February 20, 2026, the scheduling of the Hearing had been expressly identified to the Parties as one of the main purposes of the CMC (Tribunal Rule 19.1(i)). In scheduling the Hearing to commence on May 25, 2026, the Tribunal properly exercised its authority, bearing in mind that it is under no obligation to arrange its hearing events to accommodate the availability of Counsel or witnesses for any Party to the proceeding.

32The Tribunal agrees with the City’s Counsel that hearing dates constitute milestone dates. However, the Tribunal also notes that, following the CMC on February 20, 2026, and up to March 6, 2026, City Counsel did not raise any outstanding concerns regarding the scheduled Hearing dates.

33On March 24, 2026, the Tribunal issued the PO, confirming that it had been agreed to between the Parties and shall be in force and effect for the purpose of governing the required procedures leading up to and including the Hearing. By submitting the Procedural Order, the Parties jointly agreed to the timelines governing all pre‑Hearing deliverables.

34The Tribunal dismisses the Motion, noting that there are no exceptional circumstances warranting deviation from Tribunal Rule 17 and that alternate representation or other reasonable alternatives remain available to the City, who have failed to explore the possibility. This is evident in Mr. Matthew’s written Affidavit, in which he concludes that he would not have enough time to prepare and meet the requisite deadlines of the PO as he has other obligations regarding development files, attendance at scheduled OLT mediation sessions, and Hearings prior to the scheduled May 25, 2026, Merit Hearing. Being too busy to prepare is not a valid basis upon which the Tribunal will adjourn the scheduled Hearing.

35The Tribunal did not hear any clear evidence that the City had explored reasonable alternatives should the absence of their land use planner have been extended. Had the City considered a contingency plan as an early identification of foreseeable issues affecting witness availability upon learning of their land use planner’s injury and initial condition, the City could have pre-emptively considered the prospect that they would have to identify and prepare a qualified replacement witness who could address the same subject matter if the primary witnesses continued to be unavailable. From the Tribunal’s perspective, the delay suggests reactive rather than proactive conduct, which weighs against granting relief that would disrupt established hearing dates and prejudice the opposing party.

36Knowing that their urban design witness would be unavailable during the week of May 25, 2026, the City could have raised this concern at the CMC so that the Tribunal and Parties could address it transparently, either by adjusting dates or confirming alternative arrangements. Unlike sudden or unforeseeable circumstances, this unavailability arose from a discretionary vacation request that was affirmatively approved by the witness’s manager. That approval occurred at a time when Hearing scheduling was imminent, placing responsibility for the conflict squarely within the City’s control.

37Because the City did not disclose nor address the issue at the CMC, the later claim that the witness’s vacation necessitates an adjournment appears avoidable and self‑created, rather than unavoidable or emergent. The timing supports the conclusion that any prejudice arising from the witness’s absence results from the City’s own decisions and should not be shifted onto the opposing party through an adjournment.

38The Tribunal is not convinced by the City’s submission that witnesses are not interchangeable. Having heard that both Mr. Matthew and Ms. Hamilton were present and contributed to the meeting of expert witnesses on April 1, 2026, and understanding that both of these individuals had previously been qualified by the Tribunal to provide expert opinion evidence, they both should be very familiar with Tribunal Rules regarding summonses, adjournments, substitution of witnesses and readiness and be prepared at all times to invoke those mechanisms if required.

39In weighing the potential prejudice to each Party, the Tribunal finds that granting the City’s requested adjournment would unfairly prejudice 4949 Bathurst. An adjournment would result in delay and additional costs, as, most importantly, the Hearing date was set based on the availability of the Tribunal and Counsel. Rescheduling might also conflict with Counsel’s availability, potentially requiring 4949 Bathurst to retain new Counsel and incur further expense.

40In summary, for the reasons articulated above, the Tribunal dismisses the City’s Motion and orders that the Merit Hearing will proceed as scheduled with the Summary of Dates contained in the Procedural Order to be amended as per paragraph [42] below.

ORDER

41THE TRIBUNAL ORDERS THAT the motion to adjourn brought by the City of Toronto is dismissed and that pursuant to s. 34(19) of the Planning Act the Merit Hearing will proceed as scheduled.

42THE TRIBUNAL ORDERS THAT the Summary of Dates contained in the Procedural Order be amended to reflect:

a) April 20, 2026: the exchange of Witness Statements, summonsed witness outlines, Expert Reports and Participant Statements

b) May 8, 2026: the exchange of Reply Witness Statements

“D. Chipman”

D. CHIPMAN

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.