Montclair Developments LP v. Toronto (City), 2021 CanLII 105796

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 19, 2021

CASE NO(S).: PL210016

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

Applicant and Appellant: Montclair Developments LP

Subject: Application to amend Zoning By-law Nos. 438-86 and 569-2013 - Refusal or neglect of the City of Toronto to make a decision

Existing Zoning: Residential

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a 21 storey and 23 storey residential tower connected by a 5-8 storey podium

Property Address/Description: 63-91 Montclair Avenue

Municipality: City of Toronto

Municipality File No.: 20 160786 STE 12 OZ

OLT Case No.: PL210016

OLT File No.: PL210016

OLT Case Name: Montclair Developments LP vs. Toronto (City)

Heard: June 18, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Montclair Developments LP	David Bronskill
Metropolitan Toronto Condominium Corporation No. 769, 775, 785 (“Lower Village Gate”) (“MTCC”)	Raj Kehar
South Forest Hill Residents Association (“SFHRA”)	Johanna Shapira, Monica Poremba
City of Toronto	Joanna Wice, Jason Davidson

MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON JUNE 18, 2021 AND ORDER OF THE TRIBUNAL

1This was the first Case Management Conference (“CMC”) in this matter. Montclair Developments LP (“Applicant/Appellant”) appealed under s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) for the failure of the City of Toronto (the “City”) to make a decision regarding their application for a Zoning By-law Amendment (“ZBA”).

2The Applicant/Appellant has properties located at 63-91 Montclair Avenue in the City. The ZBA application proposes two residential towers with an east tower at 21 storeys (72.65 metres including mech penthouse) and a west tower at 23 storeys (80 metres including mech penthouse) with a shared 5-storey base building increasing to 8-storeys between the towers. The proposal has a GFA of 39,003 square metres representing a density of 11.3 times the lot area.

3The Affidavit of Service for this first CMC was marked as Exhibit 1.

PARTIES AND PARTICIPANTS

4There were two requests for party status. MTCC has properties in the neighbourhood and indicated possible direct impacts because of the proposed development and the possible approval of the ZBA. SFHRA requested party status as they represent large number of residents in the immediate vicinity of the proposed development. Both requestors indicated plans to bring forth evidence at a future hearing.

5The Applicant/Appellant and the City found purpose and consented; the Tribunal granted party status to MTCC and SFHRA.

6Prior to this CMC, the Tribunal has received number of requests for participant status. These requests were reviewed at the CMC and after review of due submissions by all the parties, the Tribunal granted participant status to Johnathan Zamir, Kuok Kei Hong, Stanley and Marlene Stein and Linda Tuck Chapman and Tom Ashbourne.

UPDATES

7The parties advised the Tribunal regarding evidence to be called and possible engagement of experts. All parties were expected to call a land use planner. The City and the Applicant/Appellant planned to call matching experts in the areas of urban design, transportation, and forestry. After further discussion it was agreed between the parties that a twelve day hearing is to be set

8The parties agreed to provide the Tribunal with a draft Procedural Order for its review and issuance. This was since received and the approved Procedural Order is issued as Attachment 1 in this decision.

9The matter of Tribunal lead mediation was discussed. The parties informed that they were already privately engaged in discussions towards resolving their differences and issues. The parties took note to contact Sandra Chan at the Tribunal should they find it appropriate to seek Tribunal assisted mediation.

10The Tribunal set a hearing for a duration of twelve days to commence on Tuesday, April 14, 2022 to commence at 10 a.m. to be conducted using video.

11Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/203777501

Access code: 203-777-501

12Parties and 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 GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

13Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (647) 497-9391 or Toll Free 1-888-455-1389. The access code is 203-777-501.

14Individuals 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 hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

15There will be no further notice.

16This Member is not seized.

17This Member may be contacted for case management purposes.

18The directions in this Decision are so ordered.

“Jatinder Bhullar”

JATINDER BHULLAR

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.

Case No. PL210016

ONTARIO LAND TRIBUNAL

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

Applicant and Appellant: Montclair Developments LP

Subject: Application to amend Former City of Toronto By-law 438-86 and City of Toronto By-law 569-2013 – Refusal or neglect of the City of Toronto to make a decision

Existing Zoning: Residential.

Proposed Zoning: Site-Specific (to be determined).

Purpose: To permit a 21-storey and 23-storey residential tower connected by a 5-8 storey podium

Property Address/Description: 63-91 Montclair Avenue

Municipality: City of Toronto

Municipality File No.: 20 160786 STE 12 OZ

OLT Case No.: PL210016

OLT File No.: PL210016

PROCEDURAL ORDER

The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the Parties’ request or its own motion.

Organization of the Hearing

The video hearing will begin on April 12, 2022 at 10:00 a.m.
The Parties’ initial estimation for the length of the hearing is 12 days. The Parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues, where possible. The procedural order deadlines are generally found in Attachment 1.
The Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order.
The order of evidence is set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
The Issues are set out in the Issues List attached as Attachment 4 to this Order. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.
If the hearing is to proceed electronically, any person who intends to participate in the hearing, including Parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

Expert witnesses in the same discipline(s) should have at least one meeting before the exchange of witness statements to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the parties and the Tribunal at least fifteen (15) days prior to the hearing date (March 28, 2022) if this meeting takes place and if agreement is reached.
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses, curriculum vitae, and the intended order in which they will be called. This list must be delivered at least seventy (70) days before the hearing date (February 1, 2022). For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties at least fifty-five days before the hearing date (February 16, 2022).
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing, the acknowledgement of expert's duty and curriculum vitae. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement, but the party calling them must file a brief outline of the expert’s evidence. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence.
At least forty (40) days before the hearing (March 3, 2022), the Parties shall provide copies of their witness and expert statements to the other Parties, the City Clerk, and to the case co-ordinator.
At least forty (40) days before the hearing (March 3, 2022), Participants shall provide copies of their written Participant to the other Parties, the City Clerk, and to the case co-ordinator.
At least forty (40) days before the hearing (March 3, 2022), the Parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with Rule 10 of the OLT Rules, which requires that the moving party provide copies of the motion to all other parties at least fifteen (15) days before the Tribunal hears the motion.
The Parties may provide to all other Parties, the City Clerk, and the case co-ordinator a written response to any written evidence at least twenty-one (21) days before the hearing date (March 21, 2022).
The Parties shall cooperate to prepare a joint document book which shall be shared with the case co-ordinator at least ten (10) days before the hearing date (April 4, 2022).
If the hearing is being held virtually, then any documents that may be used by a party in cross-examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the case co-ordinator, on or before the end of business day before the witness is to testify.
A Party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence unless the Party notifies the Tribunal at least seven (7) days before the hearing date (April 5, 2022) that the written evidence is not part of their record.
At least ten (10) days before the hearing date, (April 4, 2022), the Parties shall prepare and file a preliminary hearing plan that identifies, at a minimum: the Parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any). The Parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan throughout the Hearing Event.
All filings shall be submitted to the Tribunal both electronically and in hard copy, and service to the Parties may be done electronically. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents email shall be governed by Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. This section applies regardless if the hearing event is in-person or electronic.
If the Applicant intends to seek approval of a revised proposal at the hearing, the Applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other Parties at least one hundred (100) days before the exchange of witness and expert statements (November 23, 2021). The Applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by the hearing plan. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member ) Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
November 23, 2021	Last date to provide copies of revised proposal, including all revised plans, drawings and reports (if a revised proposal is made)
February 1, 2022	Exchange of witness lists (names, disciplines and order to be called)
February 16, 2022	Last date to challenge identification of expert witness
March 3, 2022	Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements, Visual Evidence
March 21, 2022	Exchange of Reply Witness Statements (if any)
March 28, 2022	Agreed upon Statement of Facts
April 4, 2022	Joint Document Book and Hearing Plan
April 12, 2022	Hearing commences

Attachment 2 – List of Parties/Participants

PARTIES

Montclair Developments LP
City of Toronto
South Forest Hill Residents Association
Metropolitan Toronto Condominium Corporation No. 769, 775, 785 (“Lower Village Gate”)

PARTICIPANTS

Johnathan Zamir
Kuok Kei Hong
Stanley and Marlene Stein
Linda Tuck Chapman and Tom Ashbourne

Attachment 3 – Order of Evidence

Montclair Developments LP
City of Toronto
South Forest Hill Residents Association
Lower Village Gate
Montclair Developments LP (Reply)

Attachment 4 – Issues List

City of Toronto

Do the tall buildings' proposed setbacks, height, massing and transition as contained in the proposed zoning by-law amendment represent good planning? In particular:

(a) Do they have regard for the matters of provincial interest, particularly subsections 2(o), (p), (q), (r) and (s)?

(b) Are they consistent with the Provincial Policy Statement, 2020?

(d) Do they have appropriate regard for the Tall Building Design Guidelines?

(e) Do they conform with the following sections of the City of Toronto Official Plan:

(i) Healthy Neighbourhoods (2.3.1)

(ii) Public Realm (3.1.1)

(iii) Built Form (3.1.2)

(iv) Apartment Neighbourhoods (4.2.2)

(v) Height and/or Density Incentives (5.1.1)

(vi) Implementation Plans and Strategies for City-Building (5.3.2)

(f) Do they conform to OPA 479 and 480?

Would the approval of the proposed development represent good planning with particular regard to the shadow, skyview, and privacy impacts of the proposed development on the adjacent low-rise Neighbourhood? In particular:

(a) Does it have regard for the matters of provincial interest, particularly subsections 2(o), (p), (q), (r) and (s)?

(b) Is it consistent with the Provincial Policy Statement, 2020?

(d) Does it have appropriate regard for the Tall Building Design Guidelines?

(e) Does it conform with the following sections of the City of Toronto Official Plan:

(i) Healthy Neighbourhoods (2.3.1)

(ii) Public Realm (3.1.1)

(iii) Built Form (3.1.2)

(iv) Apartment Neighbourhoods (4.2.2)

(v) Height and/or Density Incentives 5.1.1

(vi) Implementation Plans and Strategies for City-Building (5.3.2)

(f) Does it conform to OPA 479 and 480?

Does the proposed site organization, layout, building siting and orientation of the buildings represent good planning? In particular:

(a) Does it have regard for the matters of provincial interest, particularly subsections 2(o), (p), (q), (r) and (s)?

(b) Is it consistent with the Provincial Policy Statement, 2020?

(d) Does it have appropriate regard for the Tall Building Design Guidelines?

(e) Does it conform with the following sections of the City of Toronto Official Plan:

(i) Healthy Neighbourhoods (2.3.1)

(ii) Public Realm (3.1.1)

(iii) Built Form (3.1.2)

(iv) Apartment Neighbourhoods (4.2.2)

(f) Is the size, layout and design of the POPS appropriate?

Does the proposed development's relationship with the public realm, streetscape and streetscape improvements represent good planning? In particular:

(a) Does it have regard for the matters of provincial interest, particularly subsections 2(o), (p), (q), (r) and (s)?

(b) Is it consistent with the Provincial Policy Statement, 2020?

(d) Does it have appropriate regard for the Tall Building Design Guidelines?

(e) Does it conform with the following sections of the City of Toronto Official Plan:

(i) Public Realm (3.1.1)

(ii) Built Form (3.1.2)

(iii) Apartment Neighbourhoods (4.2.2)

(f) Does it meet the requirements of the Toronto Green Standard?

(g) Does it meet the requirements of the Accessibility for Ontarians with Disabilities Act?

Does the proposed development appropriately and sensitively respond to the existing and planned neighbourhood context and character, such that it represents good planning? In particular:

(a) Does it have regard for the matters of provincial interest, particularly subsections 2(o), (p), (q), (r) and (s)?

(b) Is it consistent with the Provincial Policy Statement, 2020?

(d) Does it have appropriate regard for the Tall Building Design Guidelines?

(e) Does it conform with the following sections of the City of Toronto Official Plan:

(f) Public Realm (3.1.1)

(g) Built Form (3.1.2)

(h) Apartment Neighbourhoods (4.2.2)

Does the proposed development's provision and configuration of amenity space as contained in the proposed zoning by-law amendment represent good planning? In particular:

(a) Does it provide an adequate amount of indoor and outdoor amenity space?

(b) Is the configuration of proposed amenity space appropriate and represent good design?

(d) Is it consistent with the Provincial Policy Statement, 2020?

(e) Does it conform with the Growth Plan for the Greater Golden Horseshoe, 2019?

(f) Does it conform with the following sections of the City of Toronto Official Plan:

(i) Built Form (3.1.2.11 and 3.1.2.13)

(ii) Apartment Neighbourhoods (4.2.2 (f) and (h))

(g) Does it have appropriate regard for the Pet Friendly Design Guidelines?

Does the proposed development provide appropriate transportation-related design, such as site access, circulation, parking and loading as well as resident, visitor and delivery? Does the proposed development's provision of these elements represent good planning? In particular:

(a) Does it have regard for the matters of provincial interest, particularly subsections 2(o), (p), (q), (r) and (s)?

(b) Is it consistent with the Provincial Policy Statement, 2020?

(d) Does it conform with the following sections of the City of Toronto Official Plan:

(i) Healthy Neighbourhoods (2.3.1)

(ii) Public Realm (3.1.1)

(iii) Built Form (3.1.2)

(iv) Apartment Neighbourhoods (4.2.2)

Does the proposed development adequately preserve and protect City-owned and private trees as per Municipal Code Chapter 813 – Trees, Articles II (Trees on City Streets) and III (Private Tree Protection), Municipal Code Chapter 608 – Parks, Article VII (Trees), and the Toronto Green Standards? Do the proposed tree removals represent good planning? In particular:

(a) Do they have regard for the matters of provincial interest, particularly subsections 2(o), (p), (q), (r) and (s)?

(b) Is it consistent with the Provincial Policy Statement, 2020?

(d) Does it conform with the following sections of the City of Toronto Official Plan:

(i) Healthy Neighbourhoods (2.3.1)

(ii) Public Realm (3.1.1)

(iii) Built Form (3.1.2)

(iv) Natural Environment (3.4)

(v) Apartment Neighbourhoods (4.2.2)

(e) Does it conform to OPA 479 and 480?

Does the proposed development have appropriate regard for the Growing Up Guidelines? In particular:

(a) Does it provide an appropriate unit mix, including adequate family-sized units?

(b) Are the proposed 2 and 3-bedroom units within an appropriate size range?

Does the design of the proposed privately-owned publicly accessible space (POPS) represent good planning? In particular:

(a) Do the proposed the size, function, and design of the proposed POPS, provide a safe, comfortable and accessible space and mid-block pedestrian connection?

(b) Does the proposed POPS appropriately relate to and interface with the western façade of the proposed development?

(d) Does it have regard to the Privately-Owned Publicly Accessible Space Guidelines?

In the event that the Tribunal allows the appeal in whole or in part, is it appropriate to use section 37 of the Planning Act to secure community benefits, the proposed POPS, and the proposed parkland dedication?
In the event the proposed development is approved in whole or in part, what conditions would be appropriate and should the Tribunal Order be withheld until the City Solicitor has indicated that the following conditions have been satisfied:

(a) the final form of the Zoning By-law Amendments are satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor;

(b) the owner has submitted an updated Transportation Study and a Transportation Demand Management Plan to the satisfaction of the General Manager, Transportation Services;

(c) the owner has addressed all outstanding issues raised by Engineering and Construction Services as they relate to the Zoning By-law Amendment Application, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

(d) the owner has submitted a revised Functional Servicing and Stormwater Management Report and associated financial securities, if required, for improvements to the existing municipal infrastructure satisfactory to the Chief Engineer and Executive Director, Engineering and Construction Services, and the General Manager, Toronto Water;

(e) community benefits and other matters in support of the development are secured in a Section 37 Agreement executed by the owner and registered on title to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor; and,

(f) the Chief Planner and Executive Director, City Planning has approved the Rental Housing Demolition Application for the demolition.

South Forest Hill Residents Association

Does the proposed massing (including density and heights) fit within the context of the surrounding area? Is this an appropriate amount of intensification for the subject site?
Does the proposed development fit with the character of the surrounding neighbourhood and area? If no, what impacts would permitting this development have on the immediate and broader context, from a planning perspective?
Is the proposed development appropriate from the following urban design, public realm and capacity perspectives:

(a) setbacks and treatment of the public realm in and around the subject site, including buffering and relationship with the neighbouring sites and Montclair Avenue;

(b) shadow impacts on both the public realm and other private amenity areas;

(d) vehicular and pedestrian circulation, from a safety perspective;

(e) traffic capacity on the immediate street and broader network; and

(f) public safety (roads and sidewalks)?

Do the applications / the proposed development conform with the policies of the Toronto Official Plan, including but not limited to sections 2.3.1, 2.4, 3.1.1, 3.1.2, 3.1.3, 3.2.2, 3.2.3, 4.2 and related definitions and policies?
Do the applications / the proposed development adequately maintain the city-wide Tall Building Guidelines, including but not limited to guidelines 1.1, 1.3, 1.4, 2.1, 2.3, 2.4, 2.6, 3.1.1, 3.1.5, 3.2.1, 3.2.2, 3.2.3, 4.1, 4.2, 4.3, and 4.4?
Do the applications / the proposed development conform with the Growth Plan for the Greater Golden Horseshoe 2019 as amended?
Are the applications / proposed development consistent with the Provincial Policy Statement 2020?
Does the proposed development have regard to sections 2 (o), (p), (q), and (r) of the Planning Act?
Is the proposed development appropriate and does it represent good planning?

Lower Village Gate

Does the proposed development have appropriate regard for the matters of provincial interest in section 1.1 of the Planning Act?
Does the proposed development have regard for City Council’s decision regarding the subject application pursuant to section 2.1 of the Planning Act?
Is the proposed development consistent with the Provincial Policy Statement, 2020 including, but not limited to: Part 1, Part V policies 1.1, 1.4, 1.7 and 4.0?
Does the proposed development conform to, and not conflict with, the Growth Plan, 2020, including, but not limited to: sections 2.1, 2.2 and 5.2?
Does the proposed development appropriately implement and conform with the City of Toronto’s Official Plan, including, but not limited to: policies 2.2.2, 2.3.1, 3.1.1, 3.1.2, 3.1.3, 3.2.1, 3.2.2, 3.4.1, 4.2, 5.6.1 and 5.6.13?
Does the proposed development have regard for all applicable urban design guidelines including the City of Toronto Tall Building Design Guidelines?
Is the proposed height, massing and scale of the development appropriate for the subject site? Does it cause any adverse impacts on surrounding properties? Are the proposed setbacks appropriate?
Does the proposed development fit the character of the surrounding community?
Is there an appropriate transition between the proposed development in an Apartment Neighbourhood and the immediately adjacent Neighbourhood?
Does the proposed development appropriately preserve any existing trees on and/or adjacent to the subject property including specifically certain boundary trees?
Are there any concerns with the proposed pedestrian walkways associated with the proposed development? Is it appropriate to plan for pedestrian access for the proposed development through the public part of Lower Village Gate road??
Are there any concerns with the proposed development from a traffic capacity, pedestrian connectivity and public safety perspective?
Is the proposed development appropriate and does it represent good planning?