Double Diamond Capital Inc. v. Toronto (City), 2023 CanLII 58611

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 26, 2023

CASE NO(S).: OLT-22-002705

PROCEEDING COMMENCED UNDER section 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: 333 Sheppard Avenue East Ltd. Appellant: Double Diamond Capital Inc. Appellant: LBS Group Ltd. Appellant: SheppBonn Ltd. Subject: Proposed Official Plan Amendment Description: To replace the eastern segment of the existing Sheppard Avenue Commercial Area Secondary Plan Reference Number: OPA 560 Property Address: All lands within the Sheppard Willowdale Secondary Plan Municipality/UT: Toronto/Toronto OLT Case No: OLT-22-002705 OLT Lead Case No: OLT-22-002705 OLT Case Name: Double Diamond Capital Inc. v. Toronto (City)

Heard: June 19, 2023 by video hearing

APPEARANCES:

Parties	Counsel
333 Sheppard Avenue East Ltd.	S. Kagan, K. Stitt, I. Kagan (in absentia)
Double Diamond Capital Inc.	Michael Cook
LBS Group Ltd.	Sarah Turney
SheppBonn Ltd.	Lee English, Isaac Tang (in absentia)
City of Toronto “City”	Daniel Elmadany, Yasmeen Peer

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON JUNE 19, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1Pursuant to the Decision issued March 27, 2023, in this proceeding, this matter was scheduled for a full hearing to commence on July 24, 2023, for a period of 10 days. However, the Parties’ counsel recently notified the Tribunal that they had reached a resolution and that they wished to have the Tribunal consider their settlement proposal in a Video Hearing event scheduled for June 19, 2023 (“VH”). The history of this appeal was recounted in the Decision issued March 27, 2023 and need not be reiterated here.

2The materials before the Tribunal was the “CITY OF TORONTO MOTION RECORD APPROVAL OF OFFICIAL PLAN AMENDMENT 560, SHEPPARD WILLOWDALE SECONDARY PLAN” (“Motion”) comprising 487 pages and which included the affidavit of Jenny Choi, affirmed June 2, 2023. The Motion by the City was to seek the Tribunal’s approval of the settlement reached by the Parties and was not opposed by any Party.

EVIDENCE AND ANALYSIS

3The Parties consented to the evidence provided to the Tribunal by Jenny Choi, the City’s Senior Planner who had carriage as lead planner with the development project at issue in this appeal. Ms. Choi was qualified by the Tribunal to provide opinion evidence on land use planning matters. Although two of the Parties had retained land use planners who were in attendance at the VH, neither were called to testify at the VH since those Parties did not dispute any of the opinions proffered by Ms. Choi in her affidavit in support of the Motion or in her oral testimony.

4Ms. Choi, in her affidavit and viva voce testimony at the VH, opined as follows:

(a) She was the lead land use planner as part of an interdisciplinary team involved in Official Plan Amendment No. 560 ("OPA 560") and resulting Sheppard Willowdale Secondary Plan (the "Secondary Plan"). The Sheppard Avenue Commercial Area Secondary Plan (“SACASP”) originated in 1987 and was brought forward as a Secondary Plan with amalgamation into the City's Official Plan in 2002. The SACASP provided policies for land use, density, built form, and streetscape, with the goal of creating a commercial district accommodating primarily office and health care uses in house form buildings;

(b) In 2016, City Planning recommended to North York Community Council to proceed with the study scope in a phased approach. It was determined by the City that two separate Secondary Plans would be created, one for the area west of Yonge Street and one for the area east of Yonge Street. The review of the SACASP proceeded in three different phases;

(c) North York Community Council's direction initiated the review to expand the permitted uses with a mix of residential and retail uses, as well as to incorporate angular planes and other appropriate and desirable measures to protect adjoining Neighbourhoods, that would abut the desired mix of residential and retail uses on Sheppard Avenue East and Sheppard Avenue West of the North York Centre Secondary Plan area;

(d) The Sheppard Lansing Secondary Plan was supported by Council on January 31, 2017 and adopted as Official Plan Amendment No. 367 ("OPA 367") on February 16, 2017. OPA 367 was subsequently appealed to the former Local Planning Appeal Tribunal and approved by the Tribunal on September 9, 2019;

(e) On February 2 and 3, 2022, City Council adopted OPA 560 and established the new Sheppard Willowdale Secondary Plan contained in Chapter 6, Section 29 of the City's Official Plan. This replaced the remainder of the former SACASP. The Sheppard Willowdale Secondary Plan review updated the vision and planning framework for this section of Sheppard Avenue East which includes an expanded boundary for the Secondary Plan Area, land uses for Mixed Use Areas, density, heights, and transitions to Neighbourhoods, public realm, and streetscape improvements on Sheppard Avenue East;

(f) The Notice of Adoption of OPA 560 was given by the City Clerk on February 17, 2022. The last day to appeal in accordance with the Notice of Adoption of OPA 560 was March 9, 2022. There were 4 appeals of Council's decision to adopt OPA 560 confirmed by the Tribunal. On May 10-12, 2023, City Council had directed support for modifications to OPA 560, which resolve all appeals of OPA 560;

(g) The Secondary Plan is intended to achieve a balanced level of intensification on lands that front onto Sheppard Avenue East that are bounded by stable Neighbourhoods to the immediate north and south of the Secondary Plan Area. Some portions of Sheppard Avenue East are designated Apartment Neighbourhoods and Parks and Open Space Areas;

(h) The Secondary Plan’s Vision will build upon the existing commercial district by creating a vibrant corridor that provides accessible services, shops, and restaurants for the local community. Sheppard Avenue East will be generally framed by mid-rise buildings that will contribute to the commercial activity and the visual quality of the public realm at the street level. The creation of the Sheppard Avenue East Promenade will connect and enhance the network of private and public spaces to contribute to an attractive and safe pedestrian and cycling environment that incorporates green infrastructure. Appropriate land uses and built form on Sheppard Avenue East will be compatible with adjacent residential neighbourhoods, and parks and open spaces;

(i) The Secondary Plan is the outcome of public consultations with local residents, businesses, and stakeholders, in addition to input and feedback from various City Divisions, City commenting partners and agencies;

(j) The updated policy framework addresses the provincial policies and the City’s Official Plan, in particular, to establish complete communities and provide for intensification on Sheppard Avenue East while creating an attractive public realm that is supported by Complete Street principles, in accordance with the City’s Complete Street Guidelines;

(k) The proposed modifications to OPA 560 pursuant to the proposed settlement are minor in nature and maintain the key objectives of the Secondary Plan, which are to guide appropriate intensification redevelopment of the area for mid-rise building development by promoting a balanced mix of land uses, a strong focus on non-residential and retail uses at grade, creating a green and cohesive new environment, and supporting community vitality and mobility;

(l) OPA 560 continues to provide for clear direction for development and will achieve balanced intensification along Sheppard Avenue East, with mixed-use buildings generally at the mid-rise scale that frame Sheppard Avenue East while providing clear and appropriate transition to adjacent Neighbourhoods. The Secondary Plan provides a framework for active commercial uses at grade and direction for an improved high quality public realm and streetscape along Sheppard Avenue East;

(m) The policies in OPA 560, under the proposed settlement for which the City is seeking approval, meet the necessary legislative tests for approval by the Tribunal, as they: i) have regard matters of Provincial interest as set out in Section 2 of the Planning Act R.S.O. 1990, c. P13 (“Act”); ii) are consistent with the Provincial Policy Statement 2020 (the "PPS"); iii) conform to, and do not conflict with, the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) (the "Growth Plan"); iv) are consistent with the general intent of the Official Plan; and v) constitute good planning; and

(n) The non-policy text, policies and maps for which approval of OPA 560 pursuant to section 17(50) of the Planning Act is sought are as set out in Ms. Choi’s Affidavit in the attached Exhibit “N” thereto (appended to this Decision as Attachment A). There will be no remaining Appellants of OPA 560, if this Order is granted by the Tribunal.

CONCLUSIONS

5Based on the uncontested evidence of Ms. Choi and a review of the relevant provisions of the Act, the PPS, the Growth Plan, the City’s OP and the Secondary Plan and OPA 560, this Tribunal is satisfied that the proposed settlement has:

(a) due regard for all applicable matters under section 1 and 2 of the Act;

(b) is consistent with the relevant sections of the PPS and conforms to the applicable provisions of the Growth Plan;

(c) conforms to the applicable sections of the City’s OP; and

(d) is fair and reasonable, respects principles of good planning and is in the public interest.

ORDER

6THE TRIBUNAL ORDERS that:

(a) The un-highlighted sections, non-policy text, policies and maps of Official Plan Amendment No. 560 (“OPA 560”) to the City of Toronto Official Plan included in Attachment “A” appended hereto, came into force and effect on March 10, 2022, by operation of subsection 17(27) of the Planning Act, R.S.O. 1990, c. P13 (“Planning Act”).

(b) Pursuant to subsection 17(50) of the Planning Act:

(i) The appeals by Double Diamond Capital Inc., 333 Sheppard Avenue East Limited, LBS Group Ltd, and SheppBonn Ltd., are allowed, in part, and those appeals are resolved in their entirety; and

(ii) It is confirmed that the non-policy text, policies and maps, or parts thereof of OPA 560 as shown in Attachment "A" highlighted in green are hereby modified and approved and came into effect on June 19, 2023, for all lands subject to OPA 560.

(c) The City’s municipal clerk is authorized to format the by-law shown in Attachment “A” to this Order as may be necessary and to assign a by-law number for record keeping purposes.

“William R. Middleton”

WILLIAM R. MIDDLETON

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.

Attachment “A”