Menfor Dundas Developments Inc. v. Toronto (City), 2023 CanLII 43696

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 17, 2023

CASE NO(S).: OLT-22-004433

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended:

Applicant/Appellant: Menfor Dundas Developments Inc.

Subject: Zoning By-law

Description: By-laws 1093-2022 and 1094-2022 permitting the development of a 41-storey mixed use development

Reference Number(s): BL 1093-2022

Property Address: 212-218 Dundas Street East and 279 1/2 George Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-004433

OLT Lead Case No.: OLT-22-004433

OLT Case Name: Menfor Dundas Developments Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Menfor Dundas Developments Inc.

Subject: Zoning By-law

Description: By-laws 1093-2022 and 1094-2022 permitting the development of a 41-storey mixed use development

Reference Number: BL 1094-2022

Property Address: 212-218 Dundas Street East and 279 1/2 George Street

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-004434

OLT Lead Case No: OLT-22-004433

Heard: February 28, 2023 and continued on May 2, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Menfor Dundas Developments Inc.

John Alati Kyle Gossen

City of Toronto

Ray Kallio Adam Ward

MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON MAY 2, 2023 AND ORDER OF THE TRIBUNAL

1This was the first Case Management Conference (“CMC”) relating to the enactment by the City of Toronto (the ”City”) of two zoning By-law amendments as these relate to Menfor Dundas Developments Inc. (“Appellant”). The Appellant’s subject property is known by the municipal addresses 212 & 218 Dundas St East and 279 1/2 George Street in the City.

2The Tribunal reviewed the Affidavit of Service for the first CMC sworn by Mandy Tran on January 26, 2023. Having determined that the Notice of the CMC was duly served, the Affidavit was marked for the record as Exhibit 1 by the Tribunal.

3There were no requests for the granting of status and no additional participants or parties were granted status.

4The parties informed the Tribunal that the key issue is the sign-off of previously agreed s.37 agreements.

5The Tribunal informed the parties about Tribunal led mediation. The parties informed that they continue to hold private discussions in order to resolve or minimize the issues. The parties requested time to further continue their discussions and come back with an Issues List as well as draft Procedural Order (PO) at the next sitting. The Tribunal set continuation of the CMC to May 2, 2023.

6The parties provided updates on May 2, 2023, indicating that they were relatively optimistic to reach a settlement. The parties shared a draft PO with the Tribunal which provides an initial view of possible issues to be adjudicated upon by the Tribunal. The parties also on consent requested that the Tribunal allow the setting of a second CMC in 60 days as well as a hearing on merits in early 2024. The parties estimated that the hearing will require about 3 days to complete.

7Having reviewed the submissions of the parties, the Tribunal scheduled the following two events to be conducted by video conference:

• a second CMC to be held on Tuesday, July 11, 2023 at 10 a.m.; and

• a hearing on merits to be held for a duration of three days, commencing on Wednesday, January 24, 2024 starting at 10 a.m.

8The Tribunal received final draft PO from the parties on consent. The Tribunal directs that the approved PO will govern the hearing and is attached as Schedule 1 in this decision.

9The hearings are scheduled to proceed by video as follows:

Second CMC Tuesday, July 11, 2023, at 10 a.m. GoTo Meeting: https://meet.goto.com/558205565 Access code: 558-205-565 Audio-only telephone line: (Toll Free) 1 888 299 1889 or +1 (647) 497-9373 Audio-only access code: 558-205-565

Hearing on Merits Wednesday, January 24, 2024, at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/927921077 Access code: 927-921-077 Audio-only line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9391 Audio-only access code: 927-921-077

10Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.

11Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

12Persons 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.

13Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

14There will be no further notice,

15The Member is not seized, but Tribunal calendar permitting will be available to provide case management support should any difficulties arise.

16The directions in this decision are so Ordered.

“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

Procedural Order OLT-22-004433

CASE NO(S).: OLT-22-004433 and OLT-22-004434

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended:

Applicant/Appellant: Menfor Dundas Developments Inc.

Subject: Zoning By-law

Description: By-laws 1093-2022 and 1094-2022 permitting the development of a 41-storey mixed use development

Reference Number(s): BL 1093-2022

Property Address: 212-218 Dundas Street East and 279 1/2 George Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-004433

OLT Lead Case No.: OLT-22-004433

OLT Case Name: Menfor Dundas Developments Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Menfor Dundas Developments Inc.

Subject: Zoning By-law

Description: By-laws 1093-2022 and 1094-2022 permitting the development of a 41-storey mixed use development

Reference Number: BL 1094-2022

Property Address: 212-218 Dundas Street East and 279 1/2 George Street

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-004434

OLT Lead Case No: OLT-22-004433

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 24, 2024 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 3 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. A further case management conference will occur on July 11, 2023 at 10:00 a.m. by video hearing.

6. 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. An issue can be removed from the issues list without a formal order of the Tribunal with the consent of all Parties.

7. 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.

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 October 6, 2023 and in accordance with paragraph 23 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.

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 January 9, 2024.

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 17, 2023, 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 23 below.

15. On or before November 17, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 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 19, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before December 15, 2023, 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.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before December 8, 2023 and in accordance with paragraph 23 below.

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 12, 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 December 19, 2023 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 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.

24. 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

John Alati johna@davieshowe.com

Kyle Gossen kyleg@davieshowe.com

Tel: 416-977-7088 Fax: 416-977-8931

Lawyers for Menfor Dundas Developments Inc.

CITY OF TORONTO Toronto City Hall 100 Queen Street West Toronto, ON M5H 2N2

Ray Kallio ray.kallio@toronto.ca

Adam Ward adam.ward@toronto.ca

Tel: 416-392-8047 Fax: 416-397-5624

Lawyers for the City of Toronto

ATTACHMENT 2

ISSUES LIST

• Note: The identification of an issue on this Issues List does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the appeal. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

Section 37 Provisions

1. Did By-laws 1093-2022 and 1094-2022 (the “ZBAs”) fall within the transition provisions in section 37.1 of the Planning Act such that the City had the authority to impose requirements in the ZBAs that Menfor Dundas Developments Inc. (the “Applicant”) enter into a Section 37 Agreement and provide benefits pursuant to section 37 of the Planning Act?

2. Should section 2(j) (and accordingly section 2(a)) of Appendix 1 to By-law 1093-2022 and section 2(j) (and accordingly section 2(a)) of Schedule A to By-law 1094-2022 be deleted on the basis that they are:

   1. Subject to unchecked discretion and not specific enough to ensure compatibility of uses and good land use planning; and/or
   2. Not grounded in fair, clear, transparent, predictable and specific requirements set out in the City of Toronto (the “City”) Official Plan?

3. Do section 2(j) (and accordingly section 2(a)) of Appendix 1 to By-law 1093-2022 and section 2(j) (and accordingly section 2(a)) of Schedule A to By-law 1094-2022 have regard to s. 2(n) of the Planning Act?

4. Do section 2(j) (and accordingly section 2(a)) of Appendix 1 to By-law 1093-2022 and section 2(j) (and accordingly section 2(a)) of Schedule A to By-law 1094-2022 conform with policies 5.1.1.1(a) and 5.1.1.6 of the City’s Official Plan?

5. In the event the Tribunal determines that space should be conveyed by the Applicant to the City as a benefit pursuant to section 37 of the Planning Act:

   1. Is the City required to use the space only as “office space”, including because:

   i. The space is identified as “Office Space” in the ZBAs; and/or

   ii. The Applicant relied on the expectation and understanding that the space would be used as office space, and the Applicant was entitled to know the section 37 benefits the City would seek before the City approved the application in principle and/or before the City passed the ZBAs?

   2. Is there an appropriate planning nexus between the uses the City proposes to permit in the space and the increases in height and density permitted in return for the provision of the space?
   3. Are the uses the City proposes to permit in the space compatible with or do they conflict with the residential and non-residential uses in the proposed mixed use development with ground floor commercial uses and approximately 490 dwelling units (the “Development”) at 212-218 Dundas Street East (the “Subject Lands”) and the existing and/or proposed uses in the vicinity of the Subject Lands?
   4. Are section 2(j) of Appendix 1 to By-law 1093-2022 and section 2(j) of Schedule A to By-law 1094-2022 grounded in fair, clear, transparent, predictable and specific requirements set out in the City’s Official Plan such that any use other than “office space” may be permitted in the space?
   5. Which uses of land should be permitted in the space based on good land use planning, compatibility, appropriateness for the Development and the Subject Lands, the public interest, regard to s. 2(n) of the Planning Act, and conformity with policies 5.1.1.1(a) and 5.1.1.6 of the City’s Official Plan?
   6. Should certain uses of land be prohibited in the space based on good land use planning, compatibility, appropriateness for the Development and the Subject Lands, the public interest, regard to s. 2(n) of the Planning Act, and conformity with policies 5.1.1.1(a) and 5.1.1.6 of the City’s Official Plan, including but not limited to:

   i. Any noxious use that would have a negative impact on the quiet enjoyment of the residential units or non-residential spaces in the Development or on the Subject Lands;

   ii. Any use that would not be in keeping with the first-class nature of the Development;

   iii. Community health care offices;

   iv. Any type of controlled substance dispensary or safe drug use site;

   v. Treatment centre or clinic for the observation of, treatment of, or consultation regarding alcoholism, addiction or any mental health issue;

   vi. Any type of correctional services use or any related use; and

   vii. Homeless shelter or any related services that serve the homeless population.

6. In the event the Tribunal determines that the Applicant should provide a benefit to the City pursuant to section 37 of the Planning Act, should the benefit be paid in cash, and if so, what is the appropriate quantum and use of the cash contribution?

7. In relation to the draft Section 37 Agreement (and its proposed schedules) between the Applicant and the City:

   1. Is the form and substance of the proposed “Conveyance of Office Space as Section 37 Benefit” and “Community Improvement Benefits” clauses fair, appropriate and warranted?
   2. Is the form and substance of the proposed “Fair Wage Policy and Labour Trades Contractual Obligations in the Construction Industry” clauses fair, appropriate and warranted?
   3. Is the form and substance of the proposed “Conveyances of Land to City” clauses and other clauses regarding taxes fair, appropriate and warranted?
   4. Is the form and substance of the proposed “Environmental Conditions of Conveyance of Community Space” and other environmental clauses fair, appropriate and warranted?
   5. For any other clause which may be contested between the Applicant and the City based on forthcoming comments from the City, is the form and substance of the clause fair, appropriate and warranted?

Holding Provisions

1. Should the holding symbol be lifted or deleted from the Subject Lands and the applicable map and diagram in the ZBAs and/or should the holding provisions be deleted from the ZBAs, including because:
   1. It was not fair, reasonable or appropriate to apply a holding symbol to the Subject Lands and include the holding provisions in the ZBAs under the circumstances leading up to the City’s passing of the ZBAs;
   2. The placement of a holding symbol on the Subject Lands and the inclusion of holding provisions in the ZBAs do not conform with policies 5.1.2.1 and 5.1.2.2 of the City’s Official Plan;
   3. The preconditions to lift the holding symbol were not fair, reasonable or appropriate, and were unnecessary and redundant;
   4. The preconditions to lift the holding symbol were met before the ZBAs were passed, were contemplated for inclusion in the Section 37 Agreement, and/or are capable of immediately being met upon final approval of the ZBAs;
   5. The preconditions to lift the holding symbol are unclear, vague and subject to the application of unchecked discretion, create uncertainty, do not represent good planning, and are not in the public interest;
   6. The preconditions to lift the holding symbol do not conform with policies 5.1.2.1 and 5.1.2.2 of the City’s Official Plan; and/or
   7. The preconditions to lift the holding symbol do not align with the intended and permitted uses of holding by-laws established in policy 5.1.2 of the City’s Official Plan or with the spirit of policy 5.1.2.

ATTACHMENT 3

ORDER OF EVIDENCE

1. Menfor Dundas Developments Inc.
2. City of Toronto
3. Menfor Dundas Developments Inc. (Reply)