Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 22, 2022
CASE NO(S).:
OLT-22-002205
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
53 Yonge Portfolio Inc. 55 Yonge Portfolio Inc.
Subject:
Application to amend the Zoning By-law – Neglect to make a decision
Description:
To amend Citywide Zoning By-law 569-2013 to permit an increase in the overall height and density on the site.
Reference Number:
BL 569-2013
Property Address:
53 & 55 Yonge Street
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002205
OLT Lead Case No:
OLT-22-002205
OLT Case Name:
53 Yonge Portfolio Inc. & 55 Yonge Portfolio Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Application to amend the Zoning By-law – Neglect to make a decision
Description:
To permit a 67-storey mixed-use building
Reference Number:
BL 438-86
Property Address:
53 & 55 Yonge Street
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002207
OLT Lead Case No:
OLT-22-002205
Heard:
May 27, 2022 by video hearing
APPEARANCES:
Parties
Counsel*/Representative
53 Yonge Portfolio Inc. and 55 Yonge Portfolio Inc.
M. Foderick*
City of Toronto
S. O’Connor*
Calloway Real Estate Investment Trust Inc and Halmont Properties Corp.
R. Gill*
bcIMC Realty Corporation
C. Lantz*
CREC Commercial Fund LP
A. Margaritis*
Toronto Standard Condominium Corporation No. 2665
C. Brown and N. Zamir
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON MAY 27, 2022 AND ORDER OF THE TRIBUNAL
1This decision arises from a Case Management Conference (“CMC”), which was held on May 27, 2022 regarding appeals brought by 53 Yonge Portfolio Inc. and 55 Yonge Portfolio Inc. (“Appellants”) of the failure of the City of Toronto (“City”) to make decisions on the Appellants’ applications for zoning by-law amendments to facilitate a development on the lands located at 53 and 55 Yonge Street (“subject property”).
2At the CMC, the Tribunal addressed requests for Party status, the preparation of a draft Procedural Order and Issues List, the identification of opportunities for settlement discussions, and the scheduling of a further CMC and the hearing.
Requests for PARTY Status
3Calloway Real Estate Investment Trust Inc. and Halmont Properties Corp. (“Calloway and Halmont”) requested Party status. They own lands immediately to the south of the subject property, which are the subject of a separate development application. Neither the City nor the Appellant objected to their request for status. The Tribunal found that Calloway and Halmont have a genuine interest in the proceeding, would be directly impacted by its outcome, and could assist the Tribunal in making its decision. The Tribunal found that there are reasonable grounds for adding Calloway and Halmont as Parties and granted them Party status as requested.
4bcIMC Realty Corporation also requested Party status. It owns lands in the immediate vicinity of the subject property, which are also the subject of a separate development application. None of the Parties objected to its request for status. The Tribunal found that bcIMC Realty Corporation has a genuine interest in the proceeding, would be directly impacted by its outcome, and could assist the Tribunal in making its decision. The Tribunal found that there are reasonable grounds for adding bcIMC Realty Corporation as a Party and granted it Party status as requested.
5The Tribunal also heard a request for Party status from CREC Commercial Fund LP (“CREC”). It is the beneficial owner of a laneway and building that is adjacent to the subject property. None of the Parties objected to its request for status. The Tribunal found that CREC has a genuine interest in the proceeding, would be directly impacted by its outcome, and could assist the Tribunal in making its decision. The Tribunal found that there are reasonable grounds for adding CREC as a Party and granted it Party status as requested.
6Toronto Standard Condominium Corporation No. 2665 (“TSCC No. 2665”) also requested Party status. It is the condominium corporation for an adjacent residential building. Its members would share use of a laneway with the proposed development. None of the Parties objected to TSCC No. 2665’s request for status. The Tribunal found that TSCC No. 2665 has a genuine interest in the proceeding, would be directly impacted by its outcome, and could assist the Tribunal in making its decision. The Tribunal found that there are reasonable grounds for adding TSCC No. 2665 as a Party and granted it Party status as requested.
Identification of Issues
7The Parties stated at the CMC that they had not yet identified the issues to be adjudicated at the hearing of the appeals. They requested that they be permitted to file a draft Procedural Order and Issues List subsequent to the CMC for the Tribunal’s consideration.
8On July 11, 2022, the Parties filed a draft Procedural Order and Issues List and, on July 15, 2022, they provided submissions on the witnesses to be called at the hearing and on the time needed for the hearing.
9The Tribunal has now reviewed and revised these materials. It approves the Procedural Order and Issues List attached as Attachment 1 to this Order and Decision and orders the scheduling of a 5-day hearing commencing in February 2023.
Identification of Opportunities for Settlement Discussions
10The Parties expressed an openness to holding discussions to resolve or narrow the issues, which the Tribunal encouraged. They do not envision the need for Tribunal-facilitated mediation at this time.
ORDER
11The Tribunal orders that Calloway Real Estate Investment Trust Inc and Halmont Properties Corp., bcIMC Realty Corporation, CREC Commercial Fund LP, and Toronto Standard Condominium Corporation No. 2665 are Parties in this proceeding.
12The Tribunal orders that the hearing of the appeals will be held by video hearing commencing on Monday, February 27, 2023 at 10 a.m. Five days have been set aside.
13The Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/979388733
Access code: 979-388-733
14The Parties 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
15Persons 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: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889. The access code is 979-388-733.
16Individuals 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 video hearing 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.
17There will be no further notice.
18This Member is not seized.
“Hugh S. Wilkins”
Hugh s. wilkins
MEMBER
Ontario Land Tribunal
Website: www.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.
PROCEDURAL ORDER
ISSUE DATE: CASE NO(S).: OLT-22-002205, OLT-22-002207
PROCEEDING COMMENCED UNDER: subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
53 Yonge Portfolio Inc. & 55 Yonge Portfolio Inc.
Subject:
Application to amend the Zoning By-law – Neglect to make a decision
Description:
To amend Citywide Zoning By-law 569-2013 to permit an increase in the overall height and density on the site.
Reference Number:
BL 569-2013
Property Address:
53 & 55 Yonge Street
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002205
OLT Lead Case No:
OLT-22-002205
OLT Case Name:
53 Yonge Portfolio Inc. & 55 Yonge Portfolio Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER: subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject:
Application to amend the Zoning By-law – Neglect to make a decision
Description:
To permit a 67-storey mixed-use building
Reference Number:
BL 438-86
Property Address:
53 & 55 Yonge Street
Municipality/UT:
Toronto/Toronto
OLT Case No:
OLT-22-002207
OLT Lead Case No:
OLT-22-002205
- 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 Monday, February 27, 2023 at 10 a.m. by video hearing.
The length of the hearing will be 5 days. The length of the hearing may be shortened as issues are resolved or as settlement on individual issues is achieved. The procedural order deadlines are found in Attachment 1.
The parties and participants identified at the case management conference are set out in Attachment 2 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 3. 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.
The order of evidence is set out in Attachment 4. 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 or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
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.
Requirements Before the Hearing
- 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 and the order in which they will be called. This list must be delivered on or before Monday, October 31, 2022 (119 days before the hearing is scheduled to commence) and in accordance with Section 24. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is proposed to be qualified.
Expert witnesses in the same field shall have a meeting on or before Tuesday, November 29, 2022 (90 days before the hearing is scheduled to commence) and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and the remaining issues to be addressed at the hearing with the OLT case co-ordinator on or before Monday, January 9, 2023 (49 days before the hearing is scheduled to commence).
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.
Copies of this must be provided as in Section 12 below. 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 as in Section 13. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in Section 13. 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/they 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 13.
On or before Monday, January 9, 2023 (49 days before the hearing is scheduled to commence), the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator in accordance with Section 22.
On or before Monday, January 9, 2023 (49 days before the hearing is scheduled to commence), a participant shall provide copies of their written participant statement to the other parties in accordance with Section 22. A participant cannot present oral submissions at the hearing on the content of their written statement, unless permitted by the Tribunal.
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal to the other parties on or before Monday, October 31, 2022 (119 days before the hearing is scheduled to commence). The applicant acknowledges that any revisions to the plans after that date without the consent of the parties may be grounds for a request to adjourn the hearing unless the revisions are reasonably minor.
On or before Friday, January 27, 2023 (31 days before the hearing is scheduled to commence), the parties shall provide copies of their visual evidence to all of the other parties in accordance with Section 22. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
On or before Friday, January 27, 2023 (31 days before the hearing is scheduled to commence), parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with Section 22.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
The parties shall cooperate to prepare a Joint Document Book which shall be shared with the OLT case co-ordinator in accordance with Section 22 on or before Monday, February 13, 2023 (14 days before the hearing is scheduled to commence).
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 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, January 27, 2023 (31 days before the hearing is scheduled to commence), with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the preliminary hearing plan. Any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal or on consent of parties. The Tribunal may, at its discretion, change or alter the preliminary hearing plan at any time in the course of the hearing.
All filings shall be submitted 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 by email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. 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
Monday, October 31, 2022 (119 days prior to hearing)
Exchange of witness lists (names, disciplines and order to be called)
Monday, October 31, 2022 (119 days prior to hearing)
Last date to provide copies of revised proposal, including all revised plans and drawings (if any)
Tuesday, November 29, 2022 (90 days prior to hearing)
Experts meeting prior to this date
Monday, January 9, 2023 (49 days prior to hearing)
Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements
Monday, January 9, 2023 (49 days prior to hearing)
Statement of Agreed Facts
Friday, January 27, 2023 (31 days prior to hearing)
Exchange of Reply Witness Statements (if any)
Friday, January 27, 2023 (31 days prior to hearing)
Exchange of visual evidence (if any)
Friday, January 27, 2023 (31 days prior to hearing)
Hearing Plan filed with the Tribunal
Monday, February 13, 2023 (14 days prior to hearing)
Finalize Joint Document Book
Monday, February 27, 2023
Hearing commences
ATTACHMENT 2
LIST OF PARTIES AND PARTICIPANTS
Parties:
53 Yonge Portfolio Inc. & 55 Yonge Portfolio Inc.
bcIMC Realty Corporation
Calloway Real Estate Investment Trust Inc. and Halmont Properties Corp.
TSCC 2665
CREC Commercial Fund LP
City of Toronto
ATTACHMENT 3
LIST OF ISSUES
General:
The identification of an issue on this list does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.
bcIMC Realty Corporation
bcIMC Realty Corporation will adopt the issues of the other parties and are raising no new issues. It reserves the right to raise new issues if the proposal is modified.
Calloway Real Estate Investment Trust Inc. and Halmont Properties Corp.
Calloway Real Estate Investment Trust Inc. and Halmont Properties Corp. will adopt the issues of the other parties and are raising no new issues. They reserve the right to raise new issues if the proposal is modified.
TSCC 2665
TSCC 2665 will adopt the issues of CREC Commercial Fund LP and is raising no new issues. It reserves the right to raise new issues if the proposal is modified.
CREC Commercial Fund LP
- Have the vehicular turning movements associated with the proposed Type C and G loading bays been appropriately considered and assessed in the context of:
a. Pedestrian movements through the private laneway, including pedestrians exiting or entering 88 Scott St. and 20 Wellington St. E.;
b. Movements to and from the bicycle rooms located internal to 88 Scott St.
c. Movements to and from the external bicycle stackers at 88 Scott St; and
d. Vehicle and garbage bin movements in/out from the existing parking ramp that services 88 Scott St. and 20 Wellington St. E.?
In the event all proposed and existing loading bays and ramps are occupied, is there sufficient space available for a vehicle to wait on the application site without blocking the private laneway or safely exit back on to Colborne St. without the need to enter onto private property?
Are the locations and number of proposed Type C and G loading bays appropriate and supportable in the context of the following:
a. The potential for queuing of vehicles on Colborne St. to accommodate the maneuvering of vehicles into and out of a loading bay(s) or ramps.
b. The potential for queuing of vehicles on Colborne St. if some or all of the proposed or existing loading bay(s) or ramps are occupied.
c. The potential for safety concerns associated with the potential increased conflicts with pedestrian, bicycle, garbage tractor and service, delivery and passenger vehicular movements through the private laneway.
Has the traffic consultant for the proponent undertaken appropriate analysis of the potential of vehicles queuing on Colborne St. or stacking of vehicles in the private laneway as a result of the intended number, type and location of loading bays proposed to come off of the private laneway to serve the proposal.
If vehicular queuing on Colborne St. was to occur, will it result in other unexpected impacts to users, residents, tenants and property owners who rely on Colborne St. for ingress/egress?
Has the applicant provided a full accounting of pick-up/drop-off activity related to passengers (vehicular and cyclists) and goods for both residential and commercial uses, as well as an analysis of site circulation to demonstrate that the proposed site access and loading bays, in addition to existing on-street loading areas, are sufficient to serve all uses (both proposed and existing) within the site and private laneway to ensure there are no conflicts?
City of Toronto
- Ground Floor Setback
Do the proposed development and zoning by-law amendment provide appropriate ground floor setbacks and a resulting high quality public realm? In particular:
a) Does the proposal have appropriate regard for the Tall Building Design Guidelines (2013)?
b) Does the proposal conform with Toronto Official Plan, particularly sections 2.2.1, 3.1.1, 3.1.2, and 4.5?
c) Does the proposal conform with the Downtown Plan, particularly section 3, 6, 7, 8 and 9?
- Shadow Impact
Do the proposed development and the zoning by-law amendment adequately limit shadow impacts on St. James Cathedral? In particular:
a) Does the proposal conform with the Toronto Official Plan, particularly policy 3.1.5.26?
b) Is the proposed development and Zoning by-law Amendment contrary to Objective 9 of the St. Lawrence Heritage Conservation District Plan?
c) Is the proposed development and Zoning By-law Amendment consistent with policy 5.5 of the St. Lawrence Heritage Conservation District Plan?
d) Has the proposed development been designed to conserve the cultural heritage values, attributes and character of the St. James Cathedral, and to mitigate visual and physical impact on it?
- TTC Setback
Do the proposed development and the zoning by-law amendment adequately provide appropriate setbacks from TTC infrastructure?
- Other
Does the proposed development and zoning by-law amendment adequately address all transportation and engineering issues? In particular:
a) Should a direct connection to the adjacent PATH underground pedestrian network be provided?
b) Has the proposed development and zoning by-law satisfactorily addressed all outstanding servicing issues and all site access, loading and solid waste issues, as outlined in the Engineering & Construction Services Memorandum dated June 3, 2021?
- Implementation/Order if approved
In the event the proposed development is approved in whole or in part, should the Tribunal Order be withheld until the City Solicitor has confirmed:
a) the draft Zoning By-law Amendment is in a form satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;
b) the owner has addressed all outstanding issues raised by Transportation Services as they relate to the Zoning By-law Amendment application to the satisfaction of the General Manager, Transportation Services;
c) the owner has provided confirmation of water, sanitary and stormwater capacity to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, or the determination of whether holding provisions are required in the Zoning By-law amendment;
d) the owner has addressed all outstanding issues raised by the TTC as they relate to the Zoning By-law Amendment application, including no portion of the building being within 3.0 metres of all TTC infrastructure, to the satisfaction of the TTC.
- Do the proposed development and zoning by-law amendment represent good planning?
ATTACHMENT 4
ORDER OF EVIDENCE
IN CHIEF:
53 Yonge Portfolio Inc. & 55 Yonge Portfolio Inc.
bcIMC Realty Corporation
Calloway Real Estate Investment Trust Inc. and Halmont Properties Corp.
TSCC 2665
CREC Commercial Fund LP
City of Toronto
REPLY:
- 53 Yonge Portfolio Inc. & 55 Yonge Portfolio Inc.