Sun Life Assurance Company of Canada v. Toronto (City.), 2022 CanLII 75896

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 16, 2022

CASE NO.: OLT-22-004035 (formerly PL171103)

EFFECTIVE DATE: August 12, 2022

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

Applicant/Appellant: Sun Life Assurance Company of Canada

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a 59-storey mixed-use building

Reference Number: 16 192792 STE 20 OZ

Property Address: 100 and 130 Simcoe Street, 99 Pearl Street, and 203 and 211 Adelaide Street West

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-004035

Legacy Case No: PL171103

OLT Lead Case No: OLT-22-004035

OLT Legacy Case No: PL171103

OLT Case Name: Sun Life Assurance Company of Canada v. Toronto (City.)

BEFORE:

G.C.P BISHOP ALTERNATE CHAIR

Friday, the 12th day of August, 2022

WHEREAS Sun Life Assurance Company of Canada (“Appellant”) appealed the refusal of the City of Toronto (“City”) to amend the zoning by-law (“ZBLA”) to allow for the redevelopment of properties located at 100 and 130 Simcoe Street, 99 Pearl Street, and 203 and 211 Adelaide Street West (“subject property”);

THESE MATTERS, in respect of the lands at 100 and 130 Simcoe Street, 99 Pearl Street, and 203 and 211 Adelaide Street West in the City of Toronto, having come for public hearings on June 3, 2021 before the Ontario Land Tribunal (the "Tribunal") and the Tribunal having issued a Decision and Interim Order on June 22, 2021 allowing the Applicant/Appellant’s appeals of the request to amend the City of Toronto Official Plan and application to amend City of Toronto Zoning By-law 438-86; in principle, with the final Order withheld pending the Tribunal being advised by the City Solicitor that the conditions contained in that Order have been satisfied; and

THE TRIBUNAL HAVING BEEN ADVISED by the Parties on August 12, 2022 that these above-noted conditions have otherwise been addressed to the satisfaction of the City, inclusive of the arrangements for the execution and registration of a section 37 Agreement to the City’s satisfaction, and that the City and the Applicant and Appellant are thus jointly requesting that the Tribunal proceed to issue its Final Order on that basis;

AND THE TRIBUNAL having received, considered and determined the request for the Final Order on Friday, the 12th day of August, 2022;

AND THE TRIBUNAL having received confirmation from the Appellant and the City of Toronto that the provisions in City of Toronto By-law 569-2013 applicable to the Subject Property are in force and that as per Article 1.5.6 of City of Toronto By-law 569-2013, By-law 569-2013 supersedes former municipal zoning by-laws, including former City of Toronto By-law 438-86, where it applies;

AND THE TRIBUNAL BEING SATISFIED that the prior conditions to the Final Orders previously imposed by the Tribunal, upon the consent of the parties, have been satisfied or will now be appropriately addressed and that it is accordingly appropriate that the Tribunal issue its Final Order amending the City’s Official Plan and the identified Zoning By-law(s) through the revised instruments now submitted for final approval upon the joint request of the City and the Applicant and Appellant;

NOW THEREFORE

THE TRIBUNAL ORDERS that the Appeals are allowed in part and:

1. Zoning By-law No. 569-2013 of the City of Toronto is amended in accordance with the zoning by-law amendment attached hereto as Attachment "A"; and

THE TRIBUNAL authorizes the municipal clerk to format, as may be necessary, and assign a number to these by-laws for record keeping purposes.

THE TRIBUNAL ORDERS THAT, pursuant to Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, notwithstanding the eventual date of the formal issuance of this Order, it shall be, and was, effective as of Friday, August 12, 2022 which is the date that the Tribunal received, considered and determined the request for the Final Order in this proceeding.

“Euken Lui”

EUKEN LUI

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.

ATTACHMENT A

Authority: Ontario Land Tribunal Decision and Order issued on June 22, 2021, and Order issued on August 16, 2022 in OLT File No. PL171103

CITY OF TORONTO

BY-LAW ~ - 2022 (OLT)

To amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2021 as 90 and 100 Simcoe Street, 130 Pearl Street, and 203, 207 and 211 Adelaide Street West.

Whereas the Ontario Land Tribunal, in its Decision and Order issued on June 22, 2021 and Order issued on August 16, 2022 in Tribunal File No. PL171103, in hearing an appeal under Section 34(11) of the Planning Act, R.S.O. c. P.13, as amended, ordered the amendment of Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2021 as 90 and 100 Simcoe Street, 130 Pearl Street, and 203, 207 and 211 Adelaide Street West; and

Whereas the Official Plan for the City of Toronto contains provisions relating to the authorization of increases in height and density of development; and

Whereas pursuant to Section 37 of the Planning Act, a By-law under Section 34 of the Planning Act may authorize increases in the height and density of development beyond those otherwise permitted by the By-law and that will be permitted in return for the provision of such facilities, services or matters as are set out in the By-law; and

Whereas subsection 37(3) of the Planning Act provides that where an owner of land elects to provide facilities, services and matters in return for an increase in the height or density of development, the municipality may require the owner to enter into one or more agreements with the municipality dealing with the facilities, services and matters; and

Whereas the owner of the aforesaid lands has elected to provide the facilities, services and matters hereinafter set out; and

Whereas the increase in height permitted beyond that otherwise permitted on the aforesaid lands by By-law 569-2013 as amended, is permitted in return for the provision of the facilities, services and matters set out in this By-law which is secured by one or more agreements between the owner of the land and the City of Toronto;

The Ontario Land Tribunal, by Order, amends By-law 569-2013 as follows:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to this By-law.

2. The words highlighted in bold type in this By-law have the meaning provided in Zoning By-law 569-2013, Chapter 800 Definitions.

3. Zoning By-law 569-2013, as amended, is further amended by amending the zone label on the Zoning By-law Map in Section 990.10 respecting the lands subject to this By-law from a zone label of CRE (x74) to a zone label of CRE (x63) as shown on Diagram 2 attached to this By-law.

4. Zoning By-law 569-2013, as amended, is further amended by adding Article 900.12.10 Exception Number (63) so that it reads:

(63) Exception CRE 63

The lands, or a portion thereof as noted below, are subject to the following Site Specific Provisions, Prevailing By-laws and Prevailing Sections:

Site Specific Provisions:

(A) On 90 and 100 Simcoe Street, 130 Pearl Street, and 203, 207 and 211 Adelaide Street West, if the requirements of By-law [Clerks to insert By-law ##] are complied with, a building or structure may be constructed, used or enlarged in compliance with Regulations (B) to (X) below:

(B) Despite Regulations 50.5.40.10(1) and (2), the height of a building or structure is the distance between the Canadian Geodetic Datum of 87.05 metres and elevation of the highest point of the building or structure;

(C) In addition to the uses permitted in Regulations 50.10.20.10(1) and 50.10.20.20(1), public parking is also permitted;

(D) Despite Regulation 50.10.40.10(1) and (2), the permitted maximum height of a building or structure is the number in metres following the letters 'HT' as shown on Diagram 3 of By-law [Clerks to supply By-law ##];

(E) Despite Regulations 50.5.40.10(4) to (8), 50.10.40.10(3), and (D) above, the following equipment, structures, and parts of a building may project beyond the permitted maximum height shown on Diagram 3 of By-law [Clerks to supply By-law ##]:

(i) equipment used for the functional operation of the building, such as electrical, utility, mechanical and ventilation equipment; enclosed stairwells, roof access, maintenance equipment storage, chimneys, and vents, by a maximum of 3.0 metres;

(ii) structures that enclose, screen or cover the equipment, structures and parts of a building listed in (i) above, by a maximum of 3.0 metres;

(iii) architectural features, parapets, and elements and structures associated with a green roof, by a maximum of 3.0 metres;

(iv) building maintenance units, window washing equipment, and light poles and fixtures, by a maximum of 6.0 metres;

(v) planters, landscaping features, guard rails, and divider screens on a balcony and/or terrace, by a maximum of 3.0 metres; and

(vi) trellises, pergolas, canopies, and unenclosed structures providing safety or wind protection to rooftop amenity space, by a maximum of 3.0 metres;

(vii) Despite (i) to (vii) above, no equipment, structures or parts of a building may project beyond the permitted maximum height of 209.6 metres as shown on Diagram 3 of By-law [Clerks to supply By-law ##], except for:

(a) enclosed stairwells, roof access, chimneys, pipes, and vents, which may project above the permitted maximum height of 209.6 metres by a maximum of 3.0 metres; and

(b) elevator shafts inclusive of overrun, which may project above the permitted maximum height of 209.6 metres by a maximum of 4.6 metres, if the total area covers no more than 90 square metres measured horizontally;

(F) The permitted maximum gross floor area is 67,750 square metres subject to the following:,

(i) the permitted maximum gross floor area for residential uses is 60,000 square metres; and

(ii) the required minimum gross floor area for non-residential uses is 8,000 square metres.

(iii) In addition to the areas in a building listed in Regulation 50.5.40.40(3), the gross floor area of a mixed use building is further reduced by the area in the building at the ground level used for loading areas, staging areas, storage rooms, and driveways and passageways providing access to parking spaces and bicycle parking spaces.

(G) Despite Regulation 50.10.40.30(1), a portion of the building may be set back more than 50.0 metres from a lot line that abuts a street.

(H) Despite Regulation 50.10.40.50(1), a building with 20 or more dwelling units must provide amenity space at the following rate:

(i) at least 2.0 square metres for each dwelling unit as indoor amenity space;

(ii) at least 1.44 square metres of outdoor amenity space for each dwelling unit, of which 40 square metres must be in a location adjoining or directly accessible to the indoor amenity space; and

(iii) no more than 25 percent of the outdoor component may be a green roof;

(I) Despite Clause 50.10.40.70, and Regulation 50.10.40.80(3), the required minimum building setbacks and the required separation of main walls are as shown in metres on Diagram 3 of By-law [Clerks to supply By-law ##];

(J) Despite Regulations 50.10.40.80(1) and (2), and 600.10.10(1), the required separation between main walls is 3 metres. [Clerks to supply By-law ##];

(K) Despite Clauses 50.5.40.60 and 50.10.40.60, and (I) and (J) above, the following elements may encroach into the required minimum building setbacks and main wall separation distances on Diagram 3 of By-law [Clerks to supply By-law ##] as follows:

(i) canopies and awnings, by a maximum of 3.0 metres;

(ii) architectural features, such as a pilaster, decorative column, cornice, sill, belt course, or chimney breast, by a maximum of 0.6 metres;

(iii) window projections, window washing equipment, mechanical and privacy screens, fences, trellises, railings by a maximum of 3.0 metres;

(iv) balconies located above a height of 54.6m, to a maximum of 1.8 metres;

(v) lighting fixtures, window sills, eaves, chimneys, pipes and vents, by a maximum of 1.0 metres; and

(vi) platforms, decks or terraces situated upon a roof, may encroach to the extent of the roof upon which they are located.

(L) Despite Regulation 200.5.10.1(1), Table 200.5.10.1, and Article 200.20.10, parking spaces must be provided in accordance with the following:

(i) a minimum of 0.17 residential occupant parking spaces for each dwelling unit;

(ii) a minimum of 40 parking spaces for the shared use of residential visitors and non-residential users of the building, which may be provided as public parking.

(iii) despite Regulation 50.5.80.1(1), the parking spaces required by (ii) above may be exclusively reserved and signed for a non-residential user provided a minimum of 2 parking spaces remain available for the shared use of residential visitors and non-residential users.

(M) Despite Regulation 200.5.10.1(1), and (L) above, "car-share parking spaces" may replace parking spaces otherwise required for residential occupants, subject to the following:

(i) a reduction of 4 resident occupant parking spaces will be permitted for each "car-share parking space" provided that the maximum reduction permitted be capped by the application of the following formula:

(a) 4 multiplied by (total number of dwelling units divided by 60), rounded down to the nearest whole number;

(ii) for the purpose of this exception, "car-share" means the practice whereby a number of people share the use of one or more motor vehicles and such "car-share" motor vehicles are made available to at least the occupants of the building for short-term rental, including hourly rental; and

(iii) for the purpose of this exception, "car-share parking space" means a parking space exclusively reserved and signed for a vehicle used only for "car-share" purposes;

(N) Despite Regulation 200.5.1.10(2), a maximum of 10% of the provided parking spaces required pursuant to (L) above may have the following minimum dimensions:

(i) length of 5.0 metres;

(ii) width of 2.4 metres; and

(iii) vertical clearance of 1.9 metres.

(O) Despite Regulation 200.5.1.10(2)(A)(iv), thirteen (13) of the parking spaces required pursuant to (L) above, excluding any spaces with reduced size as permitted in (N) above, may be obstructed as described in Regulation 200.5.1.10(2)(D) without being required to provide additional width for the obstructed sides of the parking space;

(P) Despite Regulation 200.5.1.10(12)(C), the required minimum setback for a vehicle entrance and exit from the lot line abutting the street is 2.1 metres.

(Q) Despite Regulation 200.15.1(1), an accessible parking space must have the following minimum dimensions:

(i) Length of 5.6 metres;

(ii) Width of 3.4 metres;

(iii) Vertical clearance of 2.1 metres; and

(iv) The entire length of an accessible parking space must be adjacent to a 1.5 metre wide accessible barrier free aisle or path as shown on Diagram 1 and Diagram 2 of By-law 579-2017.

(R) Despite Regulation 230.5.1.10(4) and (5), the required minimum dimensions of a bicycle parking space are:

(i) For a stacked bicycle parking space, a minimum length of 1.8 metres, a minimum width of 0.4 metres and a minimum vertical clearance of 2.4 metres; and

(ii) For a bicycle parking space that is not a stacked bicycle parking space, a minimum length of 1.2 metres, a minimum width of 0.4 metres and a minimum vertical clearance of 1.9 metres;

(S) Despite Regulation 230.5.1.10(7), one (1) gender neutral shower and change facility is required;

(T) Despite Regulation 230.5.1.10(9), required "long-term" bicycle parking spaces may be located:

(i) on the first storey of the building;

(ii) on the second storey of the building;

(iii) within a secured weather-protected enclosure outside the building; and

(iv) on any level of the building below-ground, provided that no more than 50% of the required bicycle parking spaces are located below the first level below-ground.

(U) Despite Regulation 230.5.1.10(10), "short-term" bicycle parking spaces may also be located in a stacked bicycle parking space;

(V) Despite Regulation 230.50.1.20(2), a "short-term" bicycle parking space may be located more than 30 metres from a pedestrian entrance to the building on the lot, provided that it is located:

(i) on the first storey of the building in a publicly-accessible room, area or enclosure;

(ii) on the first below-ground level of the building in a publicly-accessible room, area or enclosure; or

(iii) outside the building, on the lot.

(W) Despite Regulations 50.10.90.10(1), 220.5.10.1(2) to (11), and Article 220.20.1, a minimum of one Type "G" loading space, one Type "B" loading space and two Type "C" loading spaces must be provided and maintained on the lot.

(X) The provision of dwelling units is subject to the following:

(i) A minimum of 30 percent of the total number of dwelling units on the lot must have two or more bedrooms;

(ii) A minimum of 10 percent of the total number of dwelling units must have three or more bedrooms; and

(iii) Any dwelling units with three or more bedrooms provided to satisfy (X)(ii) above are not included in the provision required by (X)(i) above.

Prevailing By-laws and Prevailing Sections: (None Apply)

5. Despite any severance, partition or division of the lands, the provisions of this By-law shall apply as if no severance, partition or division occurred.

6. Section 37 Provisions:

(A) Pursuant to Section 37 of the Planning Act, and subject to compliance with this By-law, the increase in height and density of the development is permitted beyond that otherwise permitted on the lands shown on Diagram 1 attached to this by-law in return for the provision by the owner, at the owner's expense of the facilities, services and matters set out in Schedule A attached to this by-law and which are secured by one or more agreements pursuant to Section 37(3) of the Planning Act that are in a form and registered on title to the lands, to the satisfaction of the City Solicitor;

(B) Where Schedule A attached to this By-law requires the owner to provide certain facilities, services or matters prior to the issuance of a building permit, the issuance of such permit shall be dependent on satisfaction of the same; and

(C) The owner shall not use, or permit the use of, a building or structure erected with an increase in height and density pursuant to this By-law unless all provisions of Schedule A are satisfied.

Ontario Land Tribunal Decision & Order issued on June 22, 2021 and Ontario Land Tribunal Order issued on August 16, 2022 in OLT File No. PL171103.

SCHEDULE A

Section 37 Provisions

The facilities, services and matters set out below are required to be provided to the City at the owner's expense in return for the increase in height and density of the proposed development on the lands as shown in Diagram 1 in this By-law and secured in an agreement or agreements under Section 37(3) of the Planning Act whereby the owner agrees as follows:

1. The owner shall provide community benefits having a value of $10,200,000 to be allocated to the following:

(A) Prior to the issuance of the first above-grade building permit, the owner shall pay to the City the sum of $4,000,000.00 (the “Cash Contribution”) to be allocated towards one or more of the following:

(i) provision of affordable housing in the local Ward;

(ii) capital improvements for new or existing cultural and/or community space in Ward 10, to be determined and announced at a later date; and

(iii) local streetscape and/or public realm improvements located within Ward 10 and within the vicinity of the subject lands;

to the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor and the owner.

(B) The owner shall provide and maintain on the lot at least 28 new affordable rental housing dwelling units at a value not to exceed $6,200,000.00 distributed throughout the lot with rents that remain at an AMR that is equal to the gross monthly rent no greater than one (1) times the average City of Toronto rent multiplied by unit type (number of bedrooms), as reported annually by the Canadian Mortgage and Housing Corporation in its fall Rental Market Report: Greater Toronto Area for at least 40 years. The affordable rental units will be comprised of the following:

(i) at least 21 one-bedroom units having a minimum size of at least 39 square metres;

(ii) at least 4 two-bedroom units having a minimum size of at least 59 square metres;

(iii) at least 3 three-bedroom units having a minimum size of at least 85 square metres; and

(iv) average unit sizes will be higher than the minimum sizes.

2. The Cash Contribution set out in Subsection 1(A) above shall be indexed upwardly in accordance with the Statistics Canada Non-Residential Construction Price Index for the Toronto Census Metropolitan Area, reported quarterly by Statistics Canada in Building Construction Price Indexes Table: 18-10-0135-01, or its successor, calculated from the date of execution of the Section 37 Agreement to the date of payment of the Cash Contribution by the owner to the City.

3. In the event the Cash Contribution in Subsection 1(A) has not been used for the intended purpose within three (3) years of the By-law coming into full force and effect, the Cash Contribution may be redirected for another purpose(s), at the discretion of the Chief Planner and Executive Director, City Planning, in consultation with the Ward Councillor, provided that the purpose is identified in the Official Plan and will benefit the community in the vicinity of the Property.

4. The affordable rental units set out in Subsection 1(B) above shall be maintained as rental housing for at least a 40-year period and the owner shall not apply to convert any of the units to any non-rental housing purposes, nor to demolish the rental housing without replacement as rental housing on the site, during this period. The owner shall also not apply for approval of a Description with respect to any portion of the rental housing, nor register any of the rental housing under the Condominium Act or for any other form of ownership tenure, such as but not limited to, life lease or co-ownership as defined in Chapter 667 of the Toronto Municipal Code that provide a right to exclusive possession of a unit.

5. The affordable rental units set out in Subsection 1(B) shall be maintained on terms satisfactory to the Chief Planner and secured in an agreement pursuant to the Planning Act, including but not limited to the location of the units, and access to the facilities and amenities in the new building.

6. The Owner shall construct and maintain the Development in accordance with Tier 1, Toronto Green Standard, and the Owner will be encouraged to achieve Tier 2, Toronto Green Standard or higher, where appropriate.

7. Prior to the issuance of the first Building Permit (excluding a Demolition Permit) on the lands, including a conditional building permit, or a portion thereof, the Owner shall provide at its expense to the satisfaction of the Chief Planner and the Chief Engineer, a construction management plan .

8. As part of the Development Review Process, the Owner shall submit and thereafter secure the implementation of the following matters to the satisfaction of the Senior Manager, Heritage Preservation Services:

(A) final site plan drawings;

(B) a Heritage Lighting Plan;

(C) a signage plan (the “Signage Plan”); and

(D) an interpretation plan (the “Interpretation Plan”), substantially in accordance with the conservation measures set out in the approved Conservation Plan.

9. Prior to the issuance of any Building Permit for the Development, excluding permits for repairs and maintenance and usual and minor works for the existing heritage buildings as are acceptable to the Senior Manager, Heritage Preservation Services, the Owner shall:

(A) obtain final approval for the Amending By-laws required for the alterations to the Lands, such amendments to have come into effect in a form and with content acceptable to the Chief Planner, and the Executive Director, City Planning Division, in consultation with the Senior Manager, Heritage Preservation Services;

(B) provide building permit drawings that are consistent with the conservation measures set out in the approved Conservation Plan, including a description of materials and finishes, to be prepared by the project architect and a qualified heritage consultant to the satisfaction of the Senior Manager, Heritage Preservation Services; and,

(C) provide a Letter of Credit, including provision for upwards indexing, in a form and amount and from a bank satisfactory to the Senior Manager, Heritage Preservation Services to secure all work included in the approved Conservation Plan, Heritage Lighting Plan, Signage Plan, and Interpretation Plan, all as may be further detailed and secured through the Development Review Process.

10. Prior to the release of the Letter of Credit the owner shall:

(A) have obtained Site Plan Approval, issued by the Chief Planner;

(B) provide a letter prepared and signed by a qualified heritage consultant confirming that the required works set out in the approved Conservation Plan, Heritage Lighting Plan, Signage Plan and Interpretation Plan have been substantially completed, all to the satisfaction of the Senior Manager, Heritage Preservation Services; and,

(C) provide replacement Heritage Easement Agreement photographs to the satisfaction of the Senior Manager, Heritage Preservation Services.