Manulife Investment Management v. Toronto (City), 2021 CanLII 63293

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 14, 2021

CASE NO(S).:

PL210148

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

Applicant and Appellant:

Manulife Investment Management

Subject:

Application to amend Zoning By-law No. 438- 86 and Zoning By-law 569-2013 - Refusal or neglect of City of Toronto to make a decision

Existing Zoning:

CR T4.0 C1.0 R4.0 (Zoning By-law No. 438- 86) CR 4.0 (c1.0; r4.0) SS1 (x2550) (Zoning By-law 569-2013)

Proposed Zoning:

Site Specific (To be determined)

Purpose:

To permit a 59-storey mixed use development

Property Address/Description:

625 Church Street

Municipality:

City of Toronto

Municipality File No.:

19 263839 STE 11 OZ

LPAT Case No.:

PL210148

LPAT File No.:

PL210148

LPAT Case Name:

Manulife Investment Management v. Toronto (City)

Heard:

June 28, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Manulife Investment Management

D. Bronskill

City of Toronto

N. Muscat

MEMORANDUM OF ORAL DECISION DELIVERED BY N.P. ROBINSON ON JULY 12, 2021 AND ORDER OF THE TRIBUNAL

1Manulife Investment Management (the “Applicant”) seeks a Zoning By-law Amendment in order to construct a 59-storey mixed-use development (“Proposal”). Appeals were lodged pursuant to section 34(11) of the Planning Act after the City of Toronto failed to make a decision within 90 days as required by that section.

2The Ontario Land Tribunal (“Tribunal”) convened a case management conference (“CMC”) on June 28, 2021. The Applicant satisfied notice requirements in advance of this CMC.

3Several individuals, and one incorporated non-profit association, from the neighbouring community requested and were granted participant status with the consent of the statutory parties:

1. Allison Chong;
2. Carolyn Bucksbaum
3. Cesidio Cellucci
4. Bloor East Neighbourhood Association (Linda Brett)

4Bloor East Neighbourhood Association (“BENA”) sought participant status given its concerns with respect to height, massing, shadowing and the potential canyon effect of the Proposal. Allison Chong expressed the concern that the Proposal will alter the distinct character of the neighbourhood. The other individuals who were granted participant status echoed the concerns of the BENA and Allison Chong.

5There were no other requests for status beyond the above noted participants and the statutory parties identified no lingering disclosure issues to be resolved before proceeding to a hearing.

6The parties indicated that they intend to explore formal mediation through the Tribunal but desired to set hearing dates beforehand.

7The parties indicated that eight days would be required to effectively adjudicate the matter given the significant issues involved.

8The parties provided the Tribunal with a final draft Procedural Order (“PO”) shortly after the CMC. The Tribunal is content that this PO creates a reasonable timeline to ensure that the matter proceeds expeditiously and sufficiently narrows the issues to be adjudicated. A copy of the PO is attached as Schedule 1 to the within decision.

9That PO shall issue in the form set out at Schedule 1 and the matter shall be set for an eight-day hearing commencing at 10 a.m. on Wednesday, March 30, 2022 to April 8, 2022. The PO shall be in effect and in force as of the date of issuance of this decision.

10Parties 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/914365629

Access code: 914 365 629

11Parties 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.

12Persons 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: (Toll Free): 1 888 455 1389 or +1 (647) 497-9391. The access code is 914 365 629.

13Individuals 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.

14This Member is not seized.

15The Tribunal so orders.

“N.P. Robinson”

N.P. ROBINSON

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.

SCHEDULE 1

LOCAL PLANNING APPEAL TRIBUNAL

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

Applicant and Appellant:

Manulife Investment Management

Subject:

Application to amend Zoning By-law No. 438-86 and Zoning By-law 569-2013 – Refusal or neglect of City of Toronto to make a decision

Existing Zoning:

CR T4.0 C1.0 R4.0 (Zoning By-law 438-86) CR 4.0 (c1.0; r4.0) SS1 (x2550) (Zoning By-law 569-2013)

Proposed Zoning:

Site Specific (To be determined)

Purpose:

To permit a 59-storey mixed use development

Property Address/Description:

625 Church Street

Municipality:

City of Toronto

Municipality File No.:

19 263839 STE 11 OZ

LPAT Case No.:

PL210148

LPAT File No.:

PL210148

LPAT Case Nmae:

Manulife Investment Management v. Toronto (City)

PROCEDURAL ORDER

1. 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

2. The video hearing will begin on March 30, 2022 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is eight 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.

4. The parties and participants identified at the Case Management Conference are listed in Attachment 2 to this Order.

5. 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.

6. 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, other than the deletion of or scoping of issues.

7. 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.

8. 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

9. 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 on or before November 26, 2021. 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 on or before December 17, 2021.

10. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing 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 on or before January 14, 2022.

11. 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. Copies of this must be provided as in Section 14. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same as the delivery of expert witness statements, as in Section 14.

12. Participants must provide to the Tribunal and the parties a copy of their written participant statement on or before January 28, 2022. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise ordered by the Tribunal.

13. 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, as in Section 14.

14. On or before January 28, 2022, the parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other parties and the Tribunal.

15. On or before February 11, 2022, the parties may provide to all other parties and the Tribunal a written response to any written evidence.

16. On or before February 25, 2022, the parties shall provide copies of their visual evidence to all of the other parties. The Tribunal and all parties shall be notified if a model will be used, all parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

17. 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 the Tribunal’s Rule 10, which requires that the moving party provide copies of the motion to all other parties at least 15 days before the Tribunal hears the motion.

18. A party who provides a witness’ written evidence to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

19. On or before March 18, 2022, the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified 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 “Work Plan”). The Work Plan will be adhered to guide the Hearing Event to the best ability of all the parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.

20. The Parties shall prepare a Joint Document Book and circulate to all parties on or before March 18, 2022, and the appellant shall file (1) hard copy with the Tribunal as soon as practicable in advance of the Hearing. All parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with Section 22.

21. 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 no later than October 29, 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.

22. All filing of documents and materials shall be electronic to the Tribunal and the Parties. The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable but in any event at least seven days before the hearing commences. 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 the 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. Section 22 applies regardless if the hearing event is in-person or electronic.

23. Any documents which 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 Tribunal.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness or as permitted by Section 21. The Tribunal’s Rule 17 applies to such requests.

25. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member: N.P. Robinson Date: July 14, 2021

TRIBUNAL REGISTRAR

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

October 29, 2021

Last date to provide copies of revised proposal, including all revised plans and drawings (if any)

November 26, 2021

Exchange of witness lists (names, CVs, disciplines and order to be called)

December 17, 2021

Last date to challenge identification of expert witnesses

January, 14, 2022

Experts’ meeting prior to this date and last date to file agreed statement of facts and remaining issues

January 28, 2022

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

February 11, 2022

Exchange of Reply Witness Statements (if any)

February 23, 2022

Exchange of visual evidence (if any)

March 18, 2022

Work Plan filed with the Tribunal

March 18, 2022

Joint Document Book filed with the Tribunal

March 30, 2022

Hearing commences

Attachment 2 – List of Parties/Participants

PARTIES

Manulife Investment Management

David Bronskill Goodmans LLP 333 Bay Street, Suite 3400 Toronto, Ontario M5H 2S7

E-mail: dbronskill@goodmans.ca

City of Toronto

Mark Piel City of Toronto, Legal Services 55 John Street, 26^th Floor (Metro Hall) Toronto, Ontario M5V 3C6

E-mail: mark.piel@toronto.ca

PARTICIPANTS

Bloor Street East Neighbourhood Association (BENA)

c/o Linda Brett (info@blooreast.org)

Caroline Bucksbaum (carolinebb@rocketmail.com)

Cesidio Cellucci (cesidiocelucci@gmail.com)

Alison Chong (alisontchong@gmail.com)

Attachment 3 – Order of Evidence

1. Manulife Investment Management

2. City of Toronto

3. Manulife Investment Management (reply, if any)

Attachment 4 – Issues List

City of Toronto

Provincial Statutory & Policy Requirements

Planning Act

1. Are the proposed development and the Zoning By-law Amendments consistent with the purposes of the Planning Act as set out in Section 1.1, in particular paragraphs (f)?

2. Do the proposed development and the Zoning By-law Amendments have regard for the matters of provincial interest as set out in Section 2 of the Planning Act, in particular Section 2 (d), (f), and (r)?

3. Would the approval of the proposed development and the Zoning By-law Amendments have regard for the decisions of City Council as required by Section 2.1 of the Planning Act?

Provincial Policy Statement (2020)

4. Are the proposed development and the Zoning By-law Amendments consistent with the Provincial Policy Statement (2020) as required by Section 3 of the Planning Act, in particular Sections 1.1 (Managing and Directing Land Use to Achieve Efficient and Resilient Development and Land Use Patterns), 1.1.3 (Settlement Areas), 1.7.1 (Long-term Economic Prosperity), 2.6 (Cultural Heritage and Archaeology), and 4.0 (Implementation)?

A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), as amended

5. Do the proposed development and the Zoning By-law Amendments conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020), as amended, as required by Section 3 of the Planning Act, in particular Sections 1.2.1 (Guiding Principles), 2.2.2 (Delineated Built-Up Areas), 3.2.1 (Policies for Infrastructure to Support Growth), and 4.2.7 (Cultural Heritage Resources)?

City of Toronto Official Plan

6. Do the proposed development and the Zoning By-law Amendments conform to the City of Toronto Official Plan with respect to Built Form (3.1.2 & 3.1.3), Heritage Conservation (3.1.5), Mixed Use Areas (4.5), Implementation (5.1.1, 5.2.1, 5.3.1, & 5.3.2)?

7. Do the proposed development and the Zoning By-law Amendments conform to the City of Toronto Official Plan with respect to Site and Area Specific Policy (SASP) 211?

8. Do the proposed development and the Zoning By-law Amendments conform to the City of Toronto Official Plan with respect to the Downtown Plan Secondary Plan, in particular How to Read this Plan (Section 1), Goals (Section 3), Directing Growth (Section 4), Linking Growth and Infrastructure to Achieve Complete Communities (Section 5), Land Use and Economy (Section 6), and Built Form (Section 9)?

Official Plan Amendment 480

9. Do the proposed development and the Zoning By-law Amendments have appropriate regard to the City of Toronto Official Plan, section 3.1.2 – Built Form, as amended by OPA 480, including the following amended policies 3.1.2.3; 3.1.2.6; and 3.1.2.7?

10. Do the proposed development and the Zoning By-law Amendments have appropriate regard to the City of Toronto Official Plan, section 3.1.3 – Built Form Tall Buildings, as amended by OPA 480, including the following amended policies 3.1.3.10 and 3.1.3.11?

Official Plan Amendment 352 & Implementing Zoning By-laws

11. Do the proposed development and the Zoning By-law Amendments have appropriate regard to the City of Toronto Official Plan with respect to Site and Area Specific Policy (SASP) 517 and City of Toronto By-laws Nos. 1105-2016 and 1106-2016?

Guidelines and Other Implementation Documents

12. Does the proposed development meet the intent and purpose of the Tall Building Design Guidelines, particularly the guidelines: 1.1; 1.3; 1.4; 1.6; 3.2.1; 3.2.3; 3.2.5?

13. Does the proposed development meet the intent and purpose of the Downtown Tall Buildings: Vision and Supplementary Design Guidelines, particularly guidelines 1.1; 1.2; 1.3; 1.5; and 3.4?

Zoning By-law

14. Is the proposed maximum height for the building on the site appropriate?

15. Is the proposed maximum gross floor area and corresponding maximum permitted density (FSI) for the site appropriate?

16. Are the minimum required setbacks for the proposed tall building appropriate?

17. Are the community benefits proposed to be secured by the zoning by-law amendments appropriate, and if not, what are the appropriate community benefits to be provided in connection with the proposed development?

Heritage

18. Does the proposed development conserve the adjacent Part IV designated heritage properties, in particular the properties municipally known as:

a. 628 Church Street (including the convenience addresses at 68 and 70 Charles Street East) (designated pursuant to Part IV of the Ontario Heritage Act through By-law 1025-2017 and amended through By-law 1404-2017); and

b. 634 and 636 Church Street (designated pursuant to Part IV of the Ontario Heritage Act through By-law 1025-2017 and amended through By-law 1404-2017)?

19. Does the proposed development conform to the principles set out in the Standards and Guidelines for the Conservation of Historic Places in Canada?

20. Does the proposed development conserve the Part IV designated heritage property, subject to a Notice of Intention to Designate by City Council, municipally known as 625 Church Street?

Urban Design

21. Does the proposed development fit appropriately within the existing and planned context, with regard to its height, density, setbacks, stepback, floorplate size, and stepbacks?

22. Does the proposed development provide a transition between areas of different intensity and scale?

23. Does the proposed development create appropriate transitions in scale to neighbouring existing and/or planned buildings?

24. Does the height and mass of the proposed development ensure adequate light or, as the case may be, adequately limit resulting shadowing of neighbouring streets and properties?

25. Does the proposed development represent good urban design?

Site Servicing

26. Does the proposed development adequately comply with the City of Toronto's requirements for solid waste management services including appropriate access for waste collection vehicles?

27. Is the proposed development supported by a satisfactory Functional Servicing and Stormwater Management Report that demonstrates that any capacity and servicing concerns respecting the proposed development are addressed in a manner consistent with the procedures set out by the Province and the City such as:

a. Design Criteria for Sewers and Water Mains (2009) prepared by the City of Toronto;

b. Water Supply for Public Fire Protection (1999) prepared by Fire Underwriters Survey;

c. Wet Weather Flow Management Guidelines (2006) prepared by the City of Toronto; and

d. Toronto Municipal Code, Chapter 681, Sewers?

28. Is the proposed development supported by a satisfactory Hydrogeological Report that demonstrates the potential groundwater issues, such as, but not limited to, dewatering, long-term discharge, water levels, storm water and ground water infiltration impacts, wet weather conditions have been considered and addressed in accordance with applicable guidelines, the Toronto Municipal Code and applicable provincial regulations or statutes?

29. Is the proposed development supported by a satisfactory Functional Servicing and Stormwater Management Report that demonstrates that the subject site can be adequately serviced by existing City municipal infrastructure?

30. If no in answer to the immediately preceding issue, has the appellant demonstrated what upgrades and/or improvements are required to the City’s municipal infrastructure to accommodate the proposed development and addressed payment for, design and construction of, such upgrades and improvements, including providing financial securities, entering into and registering an agreement with the City?

Good Planning and Public Interest

31. In light of the foregoing issues, are the proposed Zoning By-law Amendments good planning and would their approval be in the public interest?

Matters to Be Completed Prior to Tribunal Orders

32. If the proposed development is approved in whole or in part, should the Tribunal Order(s) on the Zoning By-law amendments be withheld until the following conditions are satisfied and the Tribunal receive confirmations from the City Solicitor that:

a. the amending zoning by-law amendments be finalized, in a form and content acceptable to the City Solicitor and Chief Planner and Executive Director, City Planning, that implement the proposed development;

b. the City and the owner have entered into a heritage easement agreement, to the satisfaction of the Senior Manager, Heritage Planning and such agreement has been registered on title to the satisfaction of the City Solicitor;

c. the owner has submitted a revised Functional Servicing and Stormwater Management Report, and Hydrogeological Report to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

d. the owner has addressed all outstanding issues in relation to site servicing that may be identified in the above-mentioned revised report, including the design of site services, the provision of financial securities for any upgrades or requirement improvements to existing infrastructure to support the development, and entering into an agreement(s) with the City to design, financially secure, construct, and make operational all improvements and upgrades prior to the first above-grade building permit for the development, at no cost to the City and to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; and

e. the owner and the City have agreed upon community benefits to be provided in accordance with Section 37 of the Planning Act, and the owner has entered into an agreement with the City to secure appropriate services, facilities, and/or matters pursuant to Section 37 of the Planning Act as my be required to the satisfaction of the Chief Planning and Executive Director, City Planning in consultation with the Ward Councillor, and registered said agreement on title to the site, to the satisfaction of the City Solicitor?