Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 09, 2023

CASE NO(S).: OLT-22-002502 (Formerly PL190357), OLT-22-004189, OLT-22-004696

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

Applicant and Appellant: 415 Yonge Holding Ltd. (originally by Artis Yonge Street Ltd.) Subject: Application to amend Zoning By-law No. 438-86 - Refusal of Application by the City of Toronto Existing Zoning: CR T7.8 C2.0 and R7.8 under By-law No. 438- 86; and CR 7.8 (c2.0; r7.8) SS1 (x1934) under By-law No. 569-2013 Proposed Zoning: Site Specific (To be determined) Purpose: To permit a 42-storey addition (450 residential dwelling units) on top of the existing 19-storey building Property Address/Description: 409-415 Yonge Street and 9-17 McGill Street Municipality: City of Toronto Reference No.: 17 278848 STE 27 OZ OLT Case No.: OLT 22-002502 Legacy Case No.: PL190357 OLT Lead Case No.: OLT 22-002502 Legacy Lead Case No.: PL190357 OLT Case Name: Artis Yonge Street Ltd. v. Toronto (City)

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

Applicant and Appellant: 415 Yonge Street Limited Partnership Subject: Request to amend the Official Plan - Failure of City of Toronto to adopt the requested amendment Existing Designation: Mixed Use Areas and Parks Proposed Designation: To redesignate the portion of the lands from Parks to Mixed Use Areas in the Official Plan, as well as delineate that same portion of the lands to Mixed Use Areas - 2 within OPA 406 (the Downtown Plan). Purpose: To permit a 42-storey addition (450 residential dwelling units) on top of the existing 19-storey building Property Address/Description: 409-415 Yonge Street and 9 and 17 McGill Street Municipality: City of Toronto Reference No.: 21 252006 STE 13 OZ OLT Case No.: OLT-22-004189 Legacy Case No.: PL190357 OLT Lead Case No.: OLT-22-002502

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

Applicant and Appellant: 399Y Corporation Subject: Application to amend Zoning By-law No. 569-2013 - Neglect to make a decision by the City of Toronto Existing Zoning: CR T4.0 C4.0 Rl.5" under the "old" Zoning By-law No. 438-86, and zoned CR (c4.0; rl.5) 551 (x2154) under the "new" Zoning By-law 569-2013 Proposed Zoning: CR 4.0 (c4.0; r1.5) SS1 (x2154) with exception CR (XXX) Purpose: To permit a 75-storey mixed-use building having 828 units Property Address/Description: 399-405 Yonge Street Municipality: City of Toronto Reference No.: 22 162248 STE 12 OZ OLT Case No.: OLT-22-004696 Legacy Case No.: PL190357 OLT Lead Case No.: OLT-22-002502

Heard: January 20, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
399Y Corporation	Adam Brown and Jennifer Smuskowitz
415 Yonge Holding Ltd.	Calvin Lantz and Donya Yardamadi
City of Toronto	Mark Piel and Daniel Elmadany
Jencel 407 Yonge Street Inc.	Christopher Tanzola and Natalie Ast
Covenant House	Michael Foderick and Daniel Angelucci
McGill-Granby Village Residents’ Association	Rick Kubowicz* (in absentia)
MTCC 565 (The Lexington)	Paul Normandeau*

MEMORANDUM OF ORAL DECISION DELIVERED BY SHARYN VINCENT ON JANUARY 20, 2023 AND ORDER OF THE TRIBUNAL

BACKGROUND

1This was the first Case Management Conference (“CMC”) for the Appeal filed by 399Y Corporation (“399Y”), which pursuant to the Tribunal’s decision issued on January 13, 2023, was consolidated with the Appeals subject of Tribunal File Nos. OLT-22-002502 and OLT-22-004189, which respectively seek to redevelop lands known municipally as 399-405 Yonge Street and 415 Yonge Street, located on the east side of Yonge Street running north from Gerrard Street. The consolidation of the Appeals allows for the Parties and the Tribunal to deal with the merit of the proposals on a block basis and acknowledges the nexus of geography, interests and legislative regime against which the merits must be determined.

2By virtue of the consolidation, all Parties to the 415 Yonge Limited Partnership Appeals become Party to the 399Y Appeal. No additional requests for Party or Participant Status were filed in response to the Notice of the proceeding subject of this disposition. The Affidavit of Service was marked as Exhibit 1.

3The principal purpose of the CMC was to deal with disputes between the Parties with respect to the draft Procedural Order and associated consolidated Issues List.

4The Tribunal is aware that the Parties are involved in ongoing without prejudice Tribunal-led mediation.

DRAFT PROCEDURAL ORDER

5Counsel for 399Y raised concerns over the interpretation of para. 22, which as drafted reads as follows:

22. If either 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 (on or before January 13, 2023). Each applicant acknowledges that any revision to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

6Concern was expressed about the potential that the paragraph would be interpreted to prevent revisions to conceptual development plans submitted by the date specified, thereby truncating the normal and expected, iterative process driven by the circulation and consultative process typical of the approval process contemplated by the Planning Act (“Act”).

7It was the submission of Counsel for 399Y that the paragraph ran contrary to facilitating the desirable resolution of identified issues.

8Counsel for the City rebutted, contending that a ‘hard’ date is required to ensure that Counsel for the City is able to report on the proposal subject of the Appeal in order to seek and receive direction from council, and to, in the extreme, avoid ‘hearing by ambush’.

9The Tribunal acknowledges the merit of both perspectives, but would remind all Parties that the clause deliberately uses the word, may be cause for adjournment [emphasis added]. It is highly routine for the Tribunal to be advised, either through the exchange process, or right up to and including opening submissions by the Parties, that issues related to built form, have been resolved, generally through revisions to the conceptual development plan, and are no longer matters of contention, provided the Tribunal concurs. The Tribunal strongly encourages bi-party resolution, particularly with the approval authority, and views one of the purposes of the procedural order and exchange dates therein as promoting focused, timely discourse between opposing Parties well in advance of the scheduled hearing. All aspects of case management directed through the Procedural Order, from the required meeting of like disciplines, the generation of Statement of Agreed Facts, to the exchange of reply evidence, are all intended to scope matters to be adjudicated, by acknowledging areas of common opinion as well as points of contention. The template for the Procedural Order requires that the exchange of witness statements and any reply be concluded a minimum of 35 days before the commencement of the scheduled hearing. This timeframe, and associated obligation to the Parties to confirm, at that time, that all of the scheduled hearing time is required, is stipulated by the Tribunal, and driven by years of institutional knowledge, experience and intention, that issues do get resolved as the hearing date approaches, and while not always resulting in full settlement, are certainly allowed to come into evidence for the consideration of the Tribunal. Where the revisions are not seen to resolve an area of contention, or are demonstrated to be prejudicial to an opposing Party, the Decision remains with the Tribunal as to whether the revision will be allowed and considered as the subject of the Appeal.

REVISED OFFICIAL PLAN AMENDMENT

10In August 2021, 415 Yonge filed an appeal of Council’s failure to make a decision with respect an Official Plan Amendment (OLT-22-004189), which was then consolidated with the Zoning By-law Amendment Appeal (OLT-22-002502) at the October 25, 2022 CMC.

11At the December 15, 2022 CMC, the expected Motion to consolidate brought by 399Y was granted. At that CMC, it was also determined that 415 Yonge would work toward a deadline of January 13, 2023, for a resubmission of its plans in support of the OPA and ZBA appeals incorporating revisions responding to comments from City departments and any resolutions worked out at the first of several Tribunal-led mediation sessions scheduled for January 9. January 13, 2023 was the ‘hard date’ stipulated by the City, as discussed above in this decision.

12In keeping with the January 13 deadline, the consolidation of the two proposals and the prior direction from the City to address and assess the cumulative impacts of the development proposals through the lens of a block planning exercise, 415 Yonge filed a resubmission package including revised instruments wherein the footprint of the OPA was expanded to include Covenant House lands at 20 Gerrard Street, in a very limited way in order to protect unrealized development potential by stipulating minimum tower setbacks, in other words, the proposed interfaces between potential towers on adjacent properties.

13As set out in the sworn Affidavit of Service (Exhibit 1 – OLT-22-004696), Notice to the CMC held on January 20, 2023, the first hearing event for the 399Y application, was given via both electronic and regular first class mail on December 22, 2022, to all known Parties to the consolidated matters, and all property owners within the circulation area based of the revised limit, complete with a full explanatory note including a map clearly showing the three parcels subject of the proposed OPA as required, in the Notice.

14The limited effect of the revised OPA is to stipulate the minimum tower setbacks for the interfaces of the 415 Yonge proposal to the Jencel 407 Yonge Street property (“Jencel”), the 399Y proposal to Jencel, and to a potential tower on Covenant House, in order to protect the prospect of a future tower on the Covenant House lands.

15The City and Jencel took issue with the revised OPA limits, for different reasons. The Notice attracted no other interested individuals or entities.

16While Jencel raised issue with adequacy of notice, upon hearing the submissions of Counsel for Jencel, it became clear that the principal concern lay not in the inclusion of Covenant House, but rather the omission of Jencel, and the disputed draft issues addressing the interface relationships of the proposed tower subject of the 399Y appeal.

17Through submissions, Counsel for both Jencel and 399Y agreed to work to resolve the wording of the proposed issues in the draft Issues List provided for the consideration of the Tribunal, (absent the City’s issues, which are expected following the February 6-8th Council meeting) addressing the interface issues attributable to the proposed positioning of the tower on the 399Y lands. The direction from the Tribunal was that the final form of said issues is to be limited to address the questions squarely within the jurisdiction of the Tribunal and appropriately posed as questions.

18The City took the position that, despite the direction from the City which invoked the Official Plan policy requiring a block plan, the inclusion of Covenant House required a fully supported application for a site-specific OPA, with particular concern expressed about the failure to file a Heritage Impact Assessment, given that the existing building housing Covenant House is designated pursuant to the Ontario Heritage Act.

19Counsel for Covenant House, in concert with Counsel for 399Y, re-emphasized the limited scope and purpose of the single policy to firstly, protect for the future possibility of a tower building on 20 Gerrard Street East, all to be evaluated if and when in the future, through the normal rigours of a site specific application; and secondly, to establish a basis against which to evaluate the interface of the tower proposed on 399 Yonge Street, on both 407 Yonge Street and 20 Gerrard Street East.

20The Tribunal accepts the merit of the rationale supporting the limited addition of 20 Gerrard Street in order to assist the presiding Member in distilling and assessing the interface and associated implications to both the Jencel and Covenant House lands respectively.

FINALIZATION OF DRAFT PROCEDURAL ORDER AND ISSUES LIST FOR CONSOLIDATED HEARING

21Counsel for the City confirmed that they would receive direction from Council on the 399Y appeal at the February 6-8 meeting of Council, and therefore in concert with other Counsel, would be in a position to provide the issues list related to both the 415 Yonge, and the 399Y appeals following the meeting.

ORDER

22THE TRIBUNAL HEREBY ORDERS the Parties to submit a final draft Procedural Order, complete with a consolidated Issues List to the Tribunal following the February 2023 Council meeting.

23The Member is not seized but may assist in case managing any aspect of the implementation of this Order, including the Procedural Order, which will issue under separate Order, and which shall govern the hearing of the merits on the consolidated Appeals for OLT Case Nos. OLT-22-002502, OLT-22-004189, and OLT-22-004969, scheduled to commence Monday, May 8, 2023.

24No further Notice is required.

“Sharyn Vincent”

SHARYN VINCENT VICE-CHAIR

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.