2457182 Ontario Inc. v. Toronto (City), 2022 CanLII 60844

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

CORRECTION NOTICE

OLT CASE NO(S).:

OLT-22-002206 (Formerly PL210014)

DECISION ISSUE DATE(S):

July 7, 2022

CORRECTION NOTICE ISSUE DATE:

July 28, 2022

RE: 13388201 Canada Inc. v. Ottawa (City)

Correction to: Appearances Section

Originally:

Corrected to:

Parties Counsel

Parties Counsel

Times Group Corporation K. Stitt (“Times Group”

Times Group Corporation K. Stitt (“Times Group” I. Kagan

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 07, 2022

CASE NO(S).:

OLT-22-002206

(Formerly PL210014)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

2457182 Ontario Inc. (Times Group Corporation)

Subject:

Request to amend the Official Plan - Failure of The City of Toronto to adopt the requested amendment

Existing Designation:

Mixed-Use Areas

Proposed Designated:

Mixed-Use Areas

Purpose:

To permit the development of a mixed use building containing residential and commercial elements and two towers of 25 and 34-storeys tall

Property Address/Description:

Various Addresses

Municipality:

City of Toronto

Approval Authority File No.:

17 136251 STE 22 OZ & 20191099 STE 12 OZ

OLT Case No.:

OLT-22-002206

Legacy Case No.:

PL171228

OLT File Nos.:

OLT-22-002206 & OLT-22-002212

Legacy File Nos.:

PL171228 & PL210014

OMB Case Name:

2457182 Ontario Inc. v. Toronto (City)

Heard:

April 12, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Times Group Corporation (“Times Group”

K. Stitt I. Kagan

City of Toronto (“City”)

K. Czajkowski

MEMORANDUM OF ORAL DECISION DELIVERED WILLIAM R. MIDDLETON ON APRIL 12, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This appeal concerns a proposed development of two residential apartment buildings (“Development”) located at the properties municipally known as 1913, 1915, 1919, 1921, 1923, 1925-1927, 1941, 1951 Yonge Street, 17 & 21 Millwood Road and 22 Davisville Road (“Subject Lands”) in the City of Toronto (“City”). The appeal related to former City of Toronto Zoning By-law No. 438-86 and new City-wide Zoning By-law No. 569-2013 and the Appellant sought the amendment of City Zoning By-law No. 569-2013 (“ZBA”).

2This matter proceeded by videoconference Hearing on April 12, 2022 (“VH”) as a settlement hearing since the parties have reached an overall resolution of all matters in dispute concerning this proceeding (“Settlement”). As part of the Settlement, the Appellant withdrew its appeal relating to its Official Plan Amendment application.

3Times Group, with the consent of counsel for the City, called Mr. Peter Smith to provide planning evidence concerning the Development and the ZBA. Mr. Smith has over 40 years of professional experience as a Registered Land Use Planner in Ontario. He was qualified by the Tribunal to provide opinion evidence on land use planning matters at the VH.

4Mr. Smith provided to the Tribunal an ‘Outline of Evidence’ comprising 25 pages, and the Parties also provided a Document Book totaling 596 pages and a brief of Visual Evidence comprising 25 pages.

5Mr. Smith testified at the VH as follows:

(a) The Development will contribute to the achievement of numerous policy directions supporting intensification and a range of housing options through the optimization of an underutilized site within the built up area, particularly in a location which is well-served by municipal infrastructure, including higher order public transit;

(b) The Subject Lands are within approx. 60 metre radius of the Davisville subway station and approx. 675 metres from the future Eglinton-Yonge subway-LRT interchange station and are also located along a major arterial (Yonge Street), well served by transit;

(c) The Subject Lands are also located within a “strategic growth area” and a “major transit station area”, within the meaning of the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”);

(d) In addition, the Subject Lands are strategically located at a major intersection within an area that is planned for transit-supportive intensification and this Development proposal would provide new housing and transit riders that would support the public infrastructure investment that is being made in the surrounding midtown area of the City;

(e) The Development site is located along an Avenue as identified by the City Official Plan, (“OP”), where growth is anticipated in the form of mixed-use development, with an emphasis on residential growth and is also identified for growth and intensification pursuant to its Mixed Use Areas designation, which is one of four land use designations intended for growth and to accommodate the increase in jobs and population anticipated by the OP;

(f) The proposed buildings from a built form perspective represent an appropriate design response, given their location in proximity to the Davisville subway station, and along Yonge Street and the proposed height and massing would fit harmoniously within its existing and planned context;

(g) The Development will provide a continuous and appropriately-scaled street wall with active retail street frontages that will enhance the pedestrian environment along Yonge Street, Davisville Avenue and Millwood Road;

(h) The proposed buildings will from a public realm perspective provide for a privately-owned publicly accessible space, generally located along the southern frontage of the Subject Lands and will also provide a publicly accessible vehicular and pedestrian access easement over the north-south driveway, which would provide pedestrian and cycling connections between Davisville Ave. and Millwood Road;

(i) The Development represents good land use planning, and reflects an important opportunity to intensify a strategically located site with a new mixed-use development within immediate proximity of the Davisville subway station;

(j) The Development has regard to matters of provincial interest set forth in Section 2 of the Planning Act, R.S.O. 1990, c. P13 (“PA”) as it would further the achievement of the following matters of provincial interest, among others: the efficient use of transportation services; the orderly development of safe and healthy communities; the adequate provision of a full range of housing; the appropriate location for growth and development; the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians; the promotion of built form that is well designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;

(k) The Development is consistent with the Provincial Policy Statement, 2020 (“PPS”) as it will promote the efficient use of land and infrastructure, support the use of active transportation and transit, and facilitate compact form, intensification and transit-supportive development;

(l) The Development will conform to the Growth Plan’s direction to contribute to a “complete community”, including a diverse range and mix of housing options and to optimize use of land and infrastructure and to encourage growth and intensification in “strategic growth areas”;

(m) The Development conforms with the OP Policies 5.6(1) and 5.6(1.1) which direct that the OP is to be read as a whole and all appropriate policies are to be considered in each situation, including but not limited to the Growth Management Policies, the Avenues Policies, the Healthy Neighbourhoods Policies, the Transportation Policies, its Land Use Policies, Built Form Policies, the Housing Policies, the Heritage Policies and Implementation Policies, Yonge-Eglinton Secondary Plan (OPA 405), Transit Station Areas, Public Realm and Mobility policies;

(n) In terms of zoning, the new City-wide ZB 569-2013 now previously almost entirely approved by the OLT and for those aspects that are not yet approved, City of Toronto By-law 438-86 remains in force for a small portion of the Subject Lands although the majority of the site is subject to ZBL 569-2013; and

(o) The proposal represents good planning and is in the public interest as the proposed ZBA appropriately implements the development.

6Based on the unchallenged expert evidence of Mr. Smith as described above in paragraph [5], the Tribunal is satisfied that the settlement reached by the Parties is fair, reasonable and in the public interest. Moreover, the ZBA satisfies the matters of provincial interest set out in the PA; is consistent with the relevant provisions of the PPS; conforms to the Growth Plan and to the City’s OP; and represents good planning.

INTERIM ORDER

7Therefore, the Tribunal Orders on an interim basis, contingent upon confirmation of the pre-requisite matters described in paragraph [7] (a) to [7] (i), inclusive, THAT the appeal is allowed in part and that the ZBA set out in Attachment 1 hereto is hereby approved in principle:

(a) The Tribunal will withhold issuance of its Final Order contingent upon confirmation of the pre-requisite matters described in paragraph [7] (b) to (h), inclusive, below;

(b) The Tribunal is advised that the ZBA is in a final form that is satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

(c) The Tribunal is advised that Times Group has submitted an updated Transportation Study and a Transportation Demand Management Plan to the satisfaction of the General Manager, Transportation Services;

(d) The Tribunal is advised that Times Group has addressed all outstanding comments by Engineering and Construction Services as they relate to the ZBA application, including submitting a revised Functional Servicing and Stormwater Management Report to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water;

(e) The Tribunal is advised that Times Group has entered into an agreement (or agreements) or otherwise secured the design, construction and the provision of financial securities for any required upgrades or improvements to the existing municipal infrastructure should it be determined that improvements or upgrades are required to support the development as may be identified in the accepted Functional Servicing and Stormwater Management Report, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water;

(f) The Tribunal is advised that Times Group and the City have entered into a section 37 Agreement to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, and such agreement has been executed and registered on title to the Property to the satisfaction of the City Solicitor, securing community benefits and matters of legal convenience to support the development as more particularly described in Part 5 of the February 2, 2022 Council Resolution contained in Attachment 2 hereto;

(g) The Tribunal is advised that Times Group has submitted and received approval from City Council regarding a Rental Housing Demolition and Conversion Application pursuant to section 111 of the City of Toronto Act with respect to the existing rental dwelling units being demolished on the Subject Lands;

(h) The Tribunal is advised that Times Group has, as applicable, submitted and received approval from City Council under section 33 of the Ontario Heritage Act R.S.O. 1990, O.18 for the proposed alterations to the heritage building known municipally as 1913 Yonge Street and Times Group has fulfilled all conditions of such approval; including entering into a Heritage Easement Agreement with the City substantially in accordance with the Heritage Impact Assessment Addendum by GBCA Architects dated December 24, 2021, included as Public Attachment 5 to the report (January 25, 2022) from the City Solicitor, all to the satisfaction of the Senior Manager, Heritage Planning and the City Solicitor; and

(i) The Tribunal is advised that Times Group has fulfilled the conditions for applying the Over-Dedication Credit to the Applicant’s parkland dedication requirements pursuant to Section 42 of the PA, to the satisfaction of the City Solicitor, as more particularly described in Part 7 of the February 2, 2022 Council Resolution contained in Attachment 3 hereto.

8The Tribunal Member shall remain seized for the purpose of reviewing and approving the final form of the ZBA and issuance of the Final Order and with respect to all outstanding matters relating to this Interim Order, and may be spoken to concerning the matters described in paragraph [7] (b) to (i) above.

9The Tribunal may convene a further hearing event or telephone conference call attendance in the event that the Parties require assistance in implementing the provisions of this Interim Order or with respect to issuance of the Final Order.

“William R. Middleton”

WILLIAM R. MIDDLETON

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.

ATTACHMENT 2

Exhibit #1, Tab 13D: Council Resolution dated February 2, 2022 [Excerpt]

Section 5

5. City Council authorize the Chief Planner and Executive Director, City Planning to enter into an Agreement pursuant to Section 37 of the Planning Act to secure the following to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor:

a. the community benefit recommended to be secured in the Section 37 Agreement

are as follows:

i. an indexed cash contribution of ten million dollars ($10,000,000.00) to be paid by the Applicant prior to the issuance of the first above-grade building permit for the proposed development, to be allocated for local area improvements in the vicinity of the Site, to the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor; or

ii. the transfer by the Applicant to the City, at no cost to the City, of the property municipally known as 1909 Yonge Street and 2A Davisville Avenue, with such transfer to be on terms and conditions acceptable to the City Solicitor, the Executive Director, Corporate Real Estate Management, the Chief Planner and Executive Director, City Planning, and the Senior Manager, Heritage Planning, in consultation with the Ward Councillor, with the election between the community benefits described in Parts 5.a.i. and 5.a.ii. above, to be made by the City Solicitor. in consultation with the Ward Councillor, the Executive Director, Corporate Real Estate Management, the Chief Planner and Executive Director, City Planning and the Senior Manager, Heritage Planning;

b. the following matters are also recommended to be secured in the Section 37

Agreement as a legal convenience to support development:

i. the Applicant shall provide, at its own expense, all to the satisfaction of the

Chief Planner and Executive Director, City Planning and the City Solicitor, a

privately-owned publicly accessible space generally located along the southern frontage of the Site and behind the retained heritage building known municipally as 1913 Yonge Street and as generally shown on the Public Easement Plans by Core Architects Inc. dated January 13, 2022, in Public Attachment 4 to the report (January 25, 2022) from the City Solicitor; prior to the issuance of Site Plan approval, the Applicant shall convey for nominal consideration an easement along the surface of the privately-owned publicly accessible space lands to the City; the specific size, location, configuration, and design of the privately-owned publicly accessible space area shall be determined through the Site Plan approval process and shall be secured in a Site Plan Agreement with the City to the satisfaction of the Director, Community Planning, Toronto and East York District; the Applicant shall own, operate, maintain, and repair the privately owned

publicly accessible space and shall be required to install and maintain a

sign stating that members of the public shall be entitled to use the privately owned publicly accessible space area, all at the Applicant's own expense;

ii. the Applicant shall provide, at its own expense, all to the satisfaction of the

Chief Planner and Executive Director, City Planning and the City Solicitor,

publicly accessible vehicular and pedestrian access easements over the north south driveway and pedestrian and cycling connection running along the eastern boundary of the Site and connecting Davisville Avenue and Millwood Road as generally shown on the Public Easement Plans by Core Architects Inc. dated January 13, 2022, in Public Attachment 5 to the report (January 25, 2022) from the City Solicitor and having a minimum depth of not less than 6 metres wide for the driveway connection and 3 metres for the pedestrian and cycling connection; the specific size, location, configuration, and design of the driveway and pedestrian and cycling connection shall be determined through the Site Plan approval process and shall be secured in a Site Plan Agreement with the City to the satisfaction of the Director, Community Planning, Toronto and East York District; the Applicant shall own, operate, maintain, and repair the driveway and

the pedestrian and cycling connection, all at the Applicant's own expense;

iii. the Applicant shall provide, at its own expense, all to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, a publicly accessible pedestrian access easement over the building setback at grade along Yonge Street between the building face and the western property line as generally shown on the Public Easement Plans by Core Architects Inc. dated January 13, 2022, in Public Attachment 4 to the report (January 25, 2022) from the City Solicitor and having a varied depth but with a minimum depth of not less than 1.9 metres; the specific size, location, configuration, and design of the pedestrian access easement shall be determined through the Site Plan approval process and shall be secured in a Site Plan Agreement with the City to the satisfaction of the Director, Community Planning, Toronto and East York District; the Applicant shall own, operate, maintain, and repair the pedestrian access easement, all at the Applicant's own expense;

iv. the Applicant shall, prior to Site Plan approval for the proposed development of the Site, in relation to the heritage property municipally known as 1913 Yonge Street, shall complete the following all to the satisfaction of the Senior Manager, Heritage Planning:

a. provide a detailed Conservation Plan prepared by a qualified heritage consultant, that is consistent with the conservation strategy set out in the Heritage Impact Assessment Addendum , all to the satisfaction of the Senior Manager, Heritage Planning.

b. provide final site drawings substantially in accordance with the approved Conservation Plan required in Part 5.b.iv.a. above to the satisfaction of the Senior Manager, Heritage Planning;

c. provide a Heritage Lighting Plan that describes how the exterior of the property at 1913 Yonge Street will be sensitively illuminated to enhance its heritage character to the satisfaction of the Senior Manager, Heritage Planning and thereafter shall agree to implement such Heritage Lighting Plan to the satisfaction of the Senior Manager, Heritage Planning;

d. provide a detailed Landscape Plan for the property at 1913 Yonge Street to the satisfaction of the Senior Manager, Heritage Planning;

e. submit a Signage Plan for the property at 1913 Yonge Street to the

satisfaction of the Senior Manager, Heritage Planning;

f. provide an Interpretation Plan for the property at 1913 Yonge Street, to the satisfaction of the Senior Manager, Heritage Planning thereafter shall implement such Plan to the satisfaction of the Senior Manager, Heritage Planning;

g. provide a Letter of Credit upon such terms and conditions, including

provision for upward indexing and in a form and amount and from a bank satisfactory to the Senior Manager, Heritage Planning, to secure all work included in the approved Conservation Plan required in Part 5.b.iv.a. above, all to the satisfaction of the Senior Manager, Heritage Planning; and

h. provide full documentation of the existing property at 1913 Yonge Street, including two (2) printed sets of archival quality 8” x 10” colour photographs with borders in a glossy or semi-gloss finish and one (1) digital set on a CD in tiff format and 600 dpi resolution keyed to a location map elevations and measured drawings, and copies of all existing interior floor plans and original drawings as may be available, to the satisfaction of the Senior Manager, Heritage Planning; and

v. the Applicant shall provide prior to Site Plan approval for the Site a Pedestrian Level Wind Study to the satisfaction of the Chief Planner and Executive Director, City Planning, and the Applicant shall agree to implement any wind mitigation measures required therein to the satisfaction of the Chief Planner and Executive Director, City Planning.

Exhibit #1, Tab 13D: Council Resolution dated February 2, 2022 [Excerpt]

Section 7

7. City Council approve the use of the over-dedication credit of 185.5 square metres of off-site parkland (the "Over-Dedication Credit"), which is related to the off-site parkland dedication of the properties municipally known as 70, 72, 74, 76 Soudan Avenue for the rezoning approval for the property municipally known as 55-65 Broadway Avenue and that was secured in Section 4 of the Section 37 Agreement dated September 5, 2019 between Times 5565 Inc. and the City (Instrument No. AT5232244) (the "55-65 Broadway Section 37 Agreement"), with such Over-Dedication Credit to be applied to the Applicant's parkland dedication requirements pursuant to Section 42 of the Planning Act for the proposed redevelopment of the Site, which is located within the boundaries of the Yonge Eglinton Secondary Plan; City Council requires that any parkland dedication remaining after the application of the Over-Dedication Credit shall be satisfied by the Applicant through payment of cash-in-lieu or off-site parkland dedication, to the satisfaction of the General Manager, Parks, Forestry and Recreation; and City Council requires, pursuant to section 4.3 of the 55-65 Broadway Section 37 Agreement, that as a condition of the application of the Over-Dedication Credit the Applicant must complete the following prior to any final approval of the Applicant's Zoning By-law Amendment for the Site, all the satisfaction of the City Solicitor:

a. if the Applicant still owns the property municipally known as 55-65 Broadway

Avenue, the Applicant shall enter into an agreement, amending the 55-65 Broadway Section 37 Agreement, (the "Amending Agreement") to be registered on title to 55-65 Broadway Avenue at the sole cost and expense of the owner and to the satisfaction of the City Solicitor, to document the extent to which the Over-Dedication Credit has been applied and to identify any remaining parkland credit; or

b. if the Applicant no longer owns the property municipally known as 55-65

Broadway Avenue, the Applicant shall:

i. if the Applicant is not Time 5565 Inc., provide a solicitor's corporate opinion confirming that it is a Times Group of Companies entity, authorized to benefit from the Over-Dedication Credit by Time 5565 Inc., to the satisfaction of the City Solicitor;

ii. provide a sworn acknowledgement to the General Manager, Parks, Forestry and Recreation confirming the amount of the Over-Dedication Credit that has been used; and

iii. acknowledge in a Development Agreement (with the appropriate agreement to be determined by the City Solicitor) for the Zoning By-law Amendment application for the Site the extent to which the Applicant has drawn on the Over-Dedication Credit.