DASH (QS) Inc. v. Toronto (City), 2023 CanLII 19217

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 09, 2023

CASE NO(S).:

OLT-22-004232

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

Applicant/Appellant

DASH (QS) Inc.

Subject:

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

Description:

To permit a 31-storey mixed-use building

Reference Number:

21 235108 STE 13 OZ

Property Address:

120-134 Sherbourne Street, 225-229 Queen Street East

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-22-004232

OLT Lead Case No:

OLT-22-004232

OLT Case Name:

DASH (QS) Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER section 114(15) of the City of Toronto Act, 2006, S. O. 2006, c. 11 Sched A.

Applicant/Appellant

DASH (QS) Inc.

Subject:

City of Toronto Site Plan Approval

Description:

To permit a 31-storey mixed-use building

Reference Number:

21 235109 STE 13 SA

Property Address:

120-134 Sherbourne Street, 225-229 Queen Street East

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-22-004233

OLT Lead Case No:

OLT-22-004232

Heard:

February 27, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel*/Representative

DASH (Q&S) Inc.

(Appellant / Applicant)

Jennifer Evola

City of Toronto

Kasia Czajkowski

Cameron McKeich

MEMORANDUM OF ORAL DECISION DELIVERED BY Kurtis Smith AND K.R. ANDREWS ON February 27, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) before the Tribunal, with respect to an appeal by DASH (Q&S) (“Appellant”). The appeal is regarding an application to permit a 31-storey mixed-use building with ground floor retail and 340 dwelling units. The subject property is located at 120-134 Sherbourne Street and 225-229 Queen Street East, in the City of Toronto.

2The purpose of this CMC is to finalize the draft Procedural Order (“PO”) and Issues List (“IL”) for the hearing of the merits scheduled to begin on Tuesday, November 14, 2023.

MEDIATION AND SETTLEMENT

3The Appellant advised that Tribunal led mediation is scheduled for May 1, 3, and 15,2023. At the request of the Parties, upon agreement with the St. Lawrence Neighbourhood Association (“SLNA”), who were previously granted participant status, the SLNA shall be treated as a Party during the mediation process.

PROCEDURAL ORDER AND ISSUES LIST

4The Tribunal received and reviewed a draft PO and IL from the Appellant on consent. The Tribunal finds it acceptable, and the proceedings shall be governed by it (see Schedule 1).

ORDER

5The Tribunal Orders that:

1. The Procedural Order appended as Schedule 1 shall govern the proceedings; and

2. St. Lawrence Neighbourhood Association shall be treated as a party for the purpose of Tribunal led mediation only.

6The Members are not seized but may be spoken to through the Case Coordinator if any issues arise.

“Kurtis Smith”

Kurtis Smith

Member

“K.R. Andrews”

K.R. ANDREWS

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.

Schedule 1

ONTARIO LAND TRIBUNAL Tribunal ontarien de l’aménagement du territoire

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

Applicant and Appellant:

DASH (Q&S) Inc.

Subject:

Application to amend the Zoning By-law No. 569-2013 – Refusal or neglect to make a decision

Existing Zoning:

Commercial Residential Zone CR 3.0

Proposed Zoning:

To permit a 31-storey mixed use building

Purpose:

To permit the proposed height and density and provide site specific development standards

Property Address/Description:

120-134 Sherbourne Street, 225-229 Queen Street East

Municipality:

City of Toronto, City of Toronto

Municipal File No.:

21 235108 STE 13 OZ

OLT Case No.:

OLT-22-004232

OLT Lead Case No.:

OLT Case Name:

OLT-22-004232

DASH (Q&S) Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER section 114(15) of the City of Toronto Act, 2006, S. O. 2006, c. 11 Sched A.

Applicant and Appellant:

DASH (Q&S) Inc.

Subject:

City of Toronto Site Plan Approval

Description

To permit a 31-storey mixed-use building

Property Address/Description:

120-134 Sherbourne Street, 225-229 Queen Street East

Municipality:

City of Toronto, City of Toronto

Reference Number:

21 235109 STE 13 SA

OLT Case No.:

OLT-22-004233

OLT Lead Case No.:

OLT Case Name:

OLT-22-004232

DASH (Q&S) Inc. v. Toronto (City)

DRAFT 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.

2. The meaning of terms used in the Procedural Order are set out in Attachment 1.

Organization of the Hearing

3. The video hearing will begin on November 14, 2023 at 10:00 am. Videoconference details have been confirmed by the Tribunal and are as follows:

https://global.gotomeeting.com/join/909787981

4. No further notice shall be required. All Parties shall attend the first day of the hearing.

5. The parties’ initial estimation for the length of the hearing is 7 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 2.

6. The parties and participants identified at the case management conference are set out in Attachment 3.

7. The issues are set out in the Issues List attached as Attachment 4. 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.

8. The order of evidence shall be as set out in Attachment 5 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 the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

9. 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.

10. 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

11. 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, July 24, 2023 (at least 113 days prior to the start of the hearing) and in accordance with paragraph 24 below. 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 prepared to be qualified. Any challenges to an expert 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 (date Friday, August 4, 2023 at least 102 days prior to the start of the hearing).

12. Expert witnesses in the same field shall have a meeting on or before Friday, August 18, 2023 (at least 88 days prior to the start of the hearing) 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 Issues with the OLT case co-ordinator on or before Friday, September 8, 2023 (at least 67 days prior to the start of the hearing)

13. 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 paragraph 13 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.

14. 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 paragraph 14 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

15. On or before Friday, September 22, 2023 (at least 53 days prior to the start of the hearing), the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 24 below.

16. On or before Friday, September 22, 2023 (at least 53 days prior to the start of the hearing), a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 24 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

17. On or before Friday, October 6, 2023 (at least 39 days prior to the start of the hearing), Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 23 below.

18. On or before Wednesday, October 25, 2023 (at least 20 days prior to the start of the hearing), the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

19. On or before Monday, October 30, 2023 (at least 15 days prior to the start of the hearing), the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, November 3, 2023 (at least 11 days prior to the start of the hearing).

21. 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 at least 15 days before the Tribunal hears the motion.

22. 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 on or before Tuesday, November 7, 2023 (at least 7 days before) the hearing that the written evidence is not part of their record.

23. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, October 30, 2023 (at least 15 days prior to the start of the hearing) 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 hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

24. All filings shall be submitted electronically and in hard copy. 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.

25. 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 on or before Friday, June 16, 2023 (at least 151 days prior to the start of the hearing). 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.

26. 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.

ATTACHMENT 1

MEANING OF TERMS USED IN THE PROCEDURAL ORDER

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.

ATTACHMENT 2

SUMMARY OF DATES

DATE

EVENT

Friday, June 16, 2023

At least 151 days prior to the start of the hearing

Applicant to provide revised materials (if any) for the hearing

Monday, July 24, 2023

At least 113 days prior to the start of the hearing

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

Friday, August 4, 2023

At least 102 days prior to the start of the hearing

Last date to challenge identification of expert witnesses

Friday, August 18, 2023

At least 88 days prior to the start of the hearing

Experts meeting prior to this date

Tuesday, September 8, 2023

At least 67 days prior to the start of the hearing

Agreed Statement of Fact

Friday, September 22, 2023

At least 53 days prior to the start of the hearing

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

Friday, October 6, 2023

At least 39 days prior to the start of the hearing

Exchange of Reply Witness Statements (if any)

Wednesday, October 25, 2023

At least 20 days prior to the start of the hearing

Parties to advise Tribunal whether all hearing dates are required

Monday, October 30, 2023

At least 15 days prior to the start of the hearing

Exchange of visual evidence (if any)

Friday, November 3, 2023

At least 11 days prior to the start of the hearing

Finalize Joint Document Book

Tuesday, November 7, 2023

At least 7 days prior to the start of the hearing

Preliminary Hearing Plan filed with the Tribunal

November 14, 2023

Hearing commences

ATTACHMENT 3

PARTIES

City of Toronto

City of Toronto Legal Services

Metro Hall, 55 John Street, 26th Floor

Toronto, ON M5V 3C6

Kasia Czajkowski / Cameron McKeich

Email: kasia.czajkowski@toronto.ca / cameron.mckeich@toronto.ca

Applicant/Appellant (DASH (Q&S) Inc.)

Cassels Brock & Blackwell LLP

Suite 2100, Scotia Plaza, 40 King St. W.

Toronto, ON M5H 3C2

Signe Leisk / Jennifer Evola Email: sleisk@cassels.com / jevola@cassels.com

ATTACHMENT 4

ISSUES LIST

The identification of an issue does not mean that all parties agree that such issues, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

CITY OF TORONTO

Planning Act

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

Provincial Policy Statement (2020)

2. Are the proposed development and Zoning By-law Amendment consistent with the Provincial Policy Statement, 2020 including Sections 1.1.1, 1.1.3, 1.3.1, 1.4, 1.7.1, 2.6, and 4.6?

Growth Plan for the Greater Golden Horseshoe (2020)

3. Do the proposed development and Zoning By-law Amendment conform with the Growth Plan for the Greater Golden Horseshoe, 2020 including Sections 2.2.1, 2.2.3, 2.2.6, 4.2.7 and 5.2.5.6?

City of Toronto Official Plan

4. Do the proposed development and Zoning By-law Amendment conform with the policies of the City of Toronto Official Plan, including: 2.2 (Structuring Growth in the City), 2.2.1 (Downtown: the Heart of Toronto), 3.1.1 (Public Realm), 3.1.3 (Built Form), 3.1.4 (Built Form – Tall Buildings), 3.1.6 (Heritage Conservation), 3.2.1 (Housing), 3.2.3 (Parks and Open Space), 3.4.1 (The Natural Environment), and 4.5 (Mixed Use Areas)?

Downtown Secondary Plan

5. Do the proposed development and Zoning By-law Amendment conform with the policies of the City of Toronto Downtown Plan, including Sections: 6 (Land Use and Economy), 7 (Parks and Public Realm), 8 (Mobility), 9 (Built Form), and 11 (Housing)?

King-Parliament Secondary Plan

6. Do the proposed development and Zoning By-law Amendment conform with the policies of the City of Toronto King Parliament Secondary Plan?

7. Do the proposed development and Zoning By-law Amendment maintain the general intent and purpose of the policies of the City of Toronto King Parliament Secondary Plan Update as adopted by Council?

City of Toronto Guidelines

8. Does the proposed development meet the general intent and purpose of the City of Toronto Tall Building Design Guidelines?

9. Does the proposed development meet the general intent and purpose of the Downtown Tall Building Design Guidelines?

10. Does the proposed development meet the general intent and purpose of the Growing Up Guidelines?

11. Does the proposed development meet the general intent and purpose of the Pet Friendly Guidelines?

Site-specific Issues

Land Use Planning and Urban Design

12. Is the site organization and built form of the proposed development appropriate, including:

i. Are the proposed building configuration/orientation, heights, setbacks, step backs and separation distances appropriate?

ii. Does the proposal provide an appropriate transition to surrounding land uses and built form?

iii. Are the shadow impacts from the proposed development acceptable?

iv. Are the wind impacts from the proposed development acceptable?

v. Does the proposed development represent principles of good planning and urban design?

13. Is the Zoning By-law Amendment good planning and in the public interest?

14. Does the proposed development adequately limit net new shadows on Moss Park, particularly with respect to Downtown Plan Policy 9.18 and the TBDG?

15. Does the proposed development ensure adequate access to or, as the case may be, limit and minimize the impact on, considerations such as overlook and privacy, wind effects, shadow and loss of skyview?

16. Does the proposed development establish appropriate relationships at grade, including provision of an appropriate pedestrian realm, streetscape and enhanced public space?

17. Does the proposed development provide an adequate amount of outdoor amenity space with appropriate wind conditions?

Heritage Impact

18. Does the proposed development conserve the cultural heritage values, attributes and character of the Part IV designated heritage properties located at 229 Queen Street East, and 120 and 122 Sherbourne Street?

Implementation

19. In the event the proposed development is approved in whole or in part, should the Tribunal withhold its Order(s) on the Zoning By-law Amendment until the Tribunal receives confirmation from the City Solicitor that the following conditions have been satisfied:

a. the final form and content of the draft Zoning By-law Amendments are to the satisfaction of the Chief Planner and Executive Director, City Planning, and the City Solicitor;

b. the owner has resubmitted the Functional Servicing and Stormwater Management Report and Hydrogeological Report, which includes confirmation of water, sanitary, and stormwater capacity, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, or the Chief Engineer and Executive Director, Engineering and Construction Services has determined that holding provisions are required in the Zoning By-law amendment;

c. the owner has addressed all outstanding issues outlined in the Urban Forestry memo dated March 17, 2022 as they relate to tree planting, soil volume, utility conflicts, tree protection, and Toronto Green Standards, to the satisfaction of the Supervisor, Tree Protection and Plan Review;

d. the owner has addressed the loss of residential dwelling rooms in accordance with Official Plan policy 3.2.1.11, and entered into one or more agreements to secure the replacement of the gross floor area found to comprise the residential dwelling rooms, and provided tenant relocation and assistance, as appropriate, all to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning;

e. the owner has submitted a Revised Heritage Impact Assessment that includes a conservation strategy for the properties at 229 Queen Street East and 120-122 Sherbourne Street, to the satisfaction of the Senior Manager, Heritage Planning;

f. the owner has entered into a Heritage Easement Agreement with the City for the properties at 229 Queen Street East and 120-122 Sherbourne Street, to the satisfaction of the Senior Manager, Heritage Planning, including execution and registration of such agreement to the satisfaction of the City Solicitor; and

g. the owner has provided a detailed Conservation Plan, prepared by a qualified heritage consultant, that is substantially in accordance with the conservation strategy set out in the Revised Heritage Impact Assessment required by Part (e) above, to the satisfaction of the Senior Manager, Heritage Planning.

20. In the event the proposed development is approved in whole or in part, should the Tribunal withhold its Order(s) on the Site Plan Control application until the Tribunal receives confirmation from the City Solicitor that the following conditions have been satisfied:

a. the City has issued Notice of Approval Conditions to the satisfaction of the Chief Planner and Executive Director, City Planning; and

b. the owner has completed all required lane widenings and conveyances to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services.

ATTACHMENT 5

ORDER OF EVIDENCE

1. DASH (Q&S) Inc.
2. City of Toronto
3. Reply by DASH (Q&S) Inc. (if any)