Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 30, 2023

CASE NO(S).: OLT-22-004312

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

Applicant and Appellant: 2599302 Ontario Ltd.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the construction of a 13-storey hotel

Reference Number: 20 126617 WET 03 OZ

Property Address: 2157 Lakeshore Boulevard West

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-004312

OLT Lead Case No.: OLT-22-004312

OLT Case Name: 2599302 Ontario Ltd. v. Toronto (City)

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

Applicant and Appellant: 2599302 Ontario Ltd.

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

Description: To permit the construction of a 13-storey hotel

Reference Number: 20 126617 WET 03 OZ

Property Address: 2157 Lakeshore Boulevard West

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-004313

OLT Lead Case No.: OLT-22-004312

Heard: March 7, 2023, by video hearing

APPEARANCES:

Parties	Counsel
2599302 Ontario Ltd.	Aaron Platt
City of Toronto	Mark Piel

MEMORANDUM OF ORAL DECISION DELIVERED BY N. EISAZADEH AND jATINDER bHULLAR on March 7, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) respecting an appeal filed by 2599302 Ontario Ltd. (“Appellant”) of the failure by the City of Toronto (“City”) to make a decision within the legislative time frame of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”). The appeal under s. 22(7) of the Act is regarding an application to amend the Official Plan (“OPA”); and the appeal under s. 34(11) of the Act is for amendment to the Zoning By-law (“ZBA”).

2The subject property is municipally known as 2157 Lakeshore Boulevard West, Toronto. The Appellant seeks to construct a 13-storey hotel consisting of 154 suites and amenities typical of a hotel, including a lobby and restaurant on the ground level.

3The Parties indicated that they are aware of Tribunal-led mediation services. They informed that they are engaged in private discussions aimed at reaching a settlement or to achieve narrowing of the issues. Thus, at the present time, they will not engage in Tribunal-led mediation.

PROCEDURAL ORDER AND SETTING OF A HEARING

4The Parties provided the Tribunal with a draft Procedural Order (“PO”) inclusive of an Issues List (“IL”). The Parties requested Tribunal assistance in reviewing the language at paragraph 24 of the draft PO, on which the Parties had some disagreement. The Tribunal reviewed it at the CMC and provided direction which led to minor amendment. The final PO as approved by the Tribunal is included in this decision as Schedule 1.

5In reviewing the setting of a merits hearing in the matter, the Parties advised that, collectively, there would be a total of between 6-10 witnesses which could include planners, urban designers, servicing engineers, and possible forestry experts. The Parties stated that not all witnesses would be examined at length, as some witnesses would require more time than others. It was agreed that a 10-day hearing was reasonable for the subject appeals.

6The Tribunal Orders that a 10-day Hearing is set which will be held by video hearing commencing on Monday, January 15, 2024, at 10:00 a.m.

7Parties are asked to log into these video hearings at least 15 minutes before the start of the event to test their video and audio connections.

https://global.gotomeeting.com/join/692665589 Access Code: 692-665-589

8Parties and Participants are asked to access and set up the application well in advance of the events to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available at: https://app.gotomeeting.com/home.html

9Persons 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. (Toll-Free) 1(888) 299-1889 or +1 (647) 497-9373. The access code is: 692-665-589.

10Individuals are directed to connect to the events on the assigned dates at the correct times. It is the responsibility of the persons participating in hearing events by video to ensure that they are properly connected at the correct time. Questions prior to these hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

11No further notice will be given.

12This Panel is not seized but remains available through the Case Coordinator should the need arise.

13The Tribunal so Orders.

“N. Eisazadeh”

N. Eisazadeh MEMBER

“Jatinder Bhullar”

JATINDER bhullar 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

ISSUE DATE: Date of Decision

CASE NO(S).: OLT-22-004312

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

Appellant and Appellant: 2599302 Ontario Ltd.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the construction of a 13-storey hotel

Reference Number: 20 126617 WET 03 OZ

Property Address: 2157 Lakeshore Boulevard West

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-004312

OLT Lead Case No.: OLT-22-004312

OLT Case Name: 2599302 Ontario Ltd. v. Toronto (City)

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

Applicant and Appellant: 2599302 Ontario Ltd.

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

Description: To permit the construction of a 13-storey hotel

Reference Number: 20 126617 WET 03 OZ

Property Address: 2157 Lakeshore Boulevard West

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-004313

OLT Lead Case No.: OLT-22-004312

OLT Case Name: 2599302 Ontario Ltd. v. Toronto (City)

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.

Organization of the Hearing

2. The video hearing will begin on January 15, 2024 at 10 a.m./p.m. at Toronto.

3. The parties’ initial estimation for the length of the hearing is ten (10) 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. 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.

6. The order of evidence shall be as set out in Attachment 3 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.

7. The purpose of this Procedural Order and the meaning of the terms used in it are set out in Attachment 4.

8. 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.

9. 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

10. 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 September 18, 2023 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, signed Acknowledgement of Expert’s Duty Form, and the area of expertise in which the witness is prepared to be qualified. In the event a Party files a list of witnesses that does not include a witness with the technical expertise to address such Party’s technically-related issues, upon written request to the Tribunal by any Party, said issues shall be struck from the Issues List set out in Attachment 2.

11. Expert witnesses in the same field shall have a meeting on or before October 27, 2023 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 November 1, 2023.

12. 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 14 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.

13. 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 14 below.

14. On or before November 16, 2023, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 24 below.

15. On or before November 16, 2023, 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.

16. On or before December 20, 2023, the parties shall provide copies of their responding witness statements to the other parties and to the OLT case co-ordinator.

17. On or before December 11, 2023,the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

18. On or before January 5th, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 5, 2024.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 8, 2024 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.

23. 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. Hard copies shall be provided to the Tribunal upon request.

24. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of a substantially revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports, to the other parties before September 15, 2023. The applicant acknowledges that any substantial revisions to the proposal after that date without the consent of the parties may be grounds for an adjournment to be decided on its merits by the Tribunal.

25. 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.

ATTACHMENT 1 LIST OF PARTIES AND PARTICIPANTS

PARTIES

• DAVIES HOWE LLP The Tenth Floor 425 Adelaide Street West Toronto, ON M5V 3C1

Aaron Platt aaronp@davieshowe.com Tel: (416) 977-7088 Fax: (416) 977-8931 Lawyer for 2599302 Ontario Ltd.

• CITY OF TORONTO Metro Hall 55 John Street, 25th Floor Toronto, ON M5V 3C6

Mark Piel Mark.Piel@toronto.ca

Adrienne DeBacker Adrienne.deBacker@toronto.ca

Tel: (416) 392-2124 (Piel) Tel: (416) 397-5412 (DeBacker) Fax: (416) 397-5624 Lawyers for the City of Toronto

PARTICIPANTS

• NIL

ATTACHMENT 2 ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a Party indicates that Party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other Parties the case they need to meet.

CITY OF TORONTO

Planning Act

1. Does proposal have regard to the matters of provincial interest set out in Section 2 subsection (r) of the Planning Act?

2. Does the proposal have appropriate regard for the decision of City Council as required by Section 2.1 of the Planning Act?

Provincial Policy Statement (2020)

3. Is the proposal consistent with policies 4.2 and 4.6 of the Provincial Policy Statement, 2020?

A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020

4. Does the proposal conform with the following policies of the Growth Plan:

a. Guiding Principles (1.2.1);

b. Transit Corridors and Station Areas (2.2.4.10); and

c. Transportation – General (3.2.2.3, 3.2.3.4)?

5. Does the proposal, the proposed Official Plan Amendment, and the proposed Zoning By-law Amendment maintain the intent and purpose of the Protected Major Transit Station Area, Park Lawn GO Station, Site and Area Specific Policy 757, ("SASP 757") as adopted by City Council?

6. If the Minister approves the Protected Major Transit Station Area, Park Lawn GO Station, SASP 757, instead of issue 5 above, does the proposal, the proposed Official Plan Amendments, and Zoning By-law Amendments conform to, Policies 2.2.4.8 of A Place to Grow: Growth Plan for the Greater Golden Horseshoe, and SASP 757?

City of Toronto Official Plan

7. Does the proposed development conform with the following policies of the City of Toronto Official Plan:

a. Structuring Growth in the City: Integrating Land use and Transportation (2.2);

b. Maintaining streets and laneways to support growth management (2.2.5);

c. Bringing the City Together: A Progressive Agenda of Transportation Change (2.4);

d. The Public Realm (3.1.1);

e. Built Form (3.1.3);

f. Built Form – Building Types (3.1.4); and

g. Mixed Use Areas (4.5)?

Urban Design Guidelines

8. Does the proposed development meet the intent and purpose of the Humber Bay Shores Urban Design Guidelines Update & Public Realm Plan with respect to:

a. Pedestrian Circulation (4.3.2.1);

b. Building Base Design (4.4.2);

c. Pedestrian Walkways (4.5.1);

d. Streetscapes (4.5.2); and

e. The Lake Shore Boulevard Block (4.6.1.1)?

9. Does the proposed development meet the intent and purpose of the Avenues and Mid-rise Buildings Study and Performance Standards and Addendum with respect to

a. Minimum Sidewalk Zones (7A);

b. Streetscapes (7B);

c. Front Façade: Pedestrian Perception Step-back (Performance Standard 4B);

d. Side Property Line: Limiting Blank Side Walls (Performance Standard 8B); and

e. Side Property Line: Step-backs at Upper Storeys (Performance Standard 8C)?

Park Lawn Lake Shore Transportation Master Plan

10. Does the proposed development have appropriate regard for the Park Lawn Lake Shore Transportation Master Plan?

Site-Specific Issues

11. Does the proposed development fit appropriately within the existing and planned context including with regard to proposed building setbacks, stepbacks, and massing?

12. Does the proposed development appropriately identify levels of comfort, areas of concern and suitable mitigation for pedestrian level wind? Will the proposed development create undue wind impacts?

13. Does the proposed development represent an appropriate building placement with respect to developing the transportation system in a supportive manner which prioritizes walking, cycling, and transit over other passenger transportation modes and the Council-endorsed Park Lawn Lake Shore Transportation Master Plan?

14. Does the proposed development provide sufficient area to contain the necessary soil volumes to support the objective of Toronto Green Standard?

15. Can the proposed development comply with the City's private and public (street) tree planting requirements?

16. Does the Zoning By-law Amendment require and permit, as the case may be, the appropriate provision of on-site parking spaces having regard to the minimum and maximum number of parking spaces for the proposed uses?

Site Servicing

17. Is the proposed development supported by a satisfactory Functional Servicing and Stormwater Management Report that demonstrates all capacity and servicing concerns respecting the proposed development are addressed in a manner consistent with the procedures set out by the Province and the City such as:

a. Design Criteria for Sewers and Water Mains (2021) prepared by the City of Toronto; and

b. Toronto Municipal Code, Chapter 681, Sewers?

18. Is the proposed development supported by a satisfactory Functional Servicing and Stormwater Management Report that demonstrates that the subject site can be adequately serviced by existing City municipal infrastructure?

19. If the answer to issue 18is negative, has the appellant demonstrated what upgrades and/or improvements are required to the City’s municipal infrastructure to accommodate the proposed development and addressed payment for, design and construction of, such upgrades and improvements, including providing financial securities, entering into and registering an agreement with the City?

20. If the answer to issue 18is negative, is it appropriate to include in the Zoning By-law Amendment a Holding symbol and, if so, what are the appropriate conditions for lifting the Holding symbol which would be included in the Zoning By-law Amendment?

Planning and Public Interest

21. Is the proposed Official Plan Amendment good planning and in the public interest?

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

Matters to be Completed Prior to Tribunal Orders

23. If the proposed development, is approved in whole or in part, should the Tribunal Order(s) on the Official Plan Amendment and Zoning By-law Amendment be withheld until the following conditions are satisfied and the Tribunal receive confirmation from the City solicitor that:

a. The Official Plan Amendment and the Zoning By-law Amendment be finalized, in a form and content acceptable to the City Solicitor and Chief Planner and Executive Director, City Planning, in order that they implement the proposed development;

b. The owner has submitted a revised Functional Servicing Report to determine the storm water runoff, sanitary flow and water supply demand resulting from this development and whether there is adequate capacity in the existing municipal infrastructure to accommodate the proposed development, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; and

c. The owner has entered into and registered in priority against title to the lands, to the satisfaction of the City Solicitor, an agreement pursuant to Section 37 of the Planning Act as it read the day before the More Homes, More Choice Act, 2019 came into force which secures facilities, services or matters to be provided with the development, to the satisfaction of the Chief Planning and Executive Director, City Planning?

ATTACHMENT 3 ORDER OF EVIDENCE

1. 2599302 Ontario Ltd.
2. City of Toronto
3. 2599302 Ontario Ltd. (Reply)

ATTACHMENT 4 PURPOSE OF PROCEDURAL ORDER AND MEANING OF TERMS

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. If an unincorporated group wishes to become a party, 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, group 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). Subsection 33.2 of the Local Planning Appeal 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 the witness’ opinions on those issues; and a list of reports 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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

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

Additional Information

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

The order of examination of witnesses: is usually:

• 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-direct examination by the Party presenting the witness; or

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

ATTACHMENT 5 SUMMARY OF PROCEDURAL DATES

DATE	EVENT
September 18, 2023	Exchange of list of witnesses and the order in which they will be called
October 27, 2023	Meetings of expert witnesses to be completed
November 1, 2023	Filing of agreed statement of facts from meetings of expert witnesses
November 16, 2023	Exchange of expert reports/expert witness statements/witness statements, evidence outlines for witnesses under summons, participant statements
December 11, 2023	Confirm with the Tribunal if all the reserved hearing dates are still required
December 20, 2023	Exchange of responsive evidence
January 5, 2023	Exchange of visual evidence
January 5, 2023	Completion of joint document book
January 8, 2023	Parties to prepare and file hearing plan
January 15, 2023	Hearing commences