221 Sterling Road Holdings Inc. v. Toronto (City), 2023 CanLII 71680

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

August 3, 2023

CASE NO.:

OLT-22-003932

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

Applicant/Appellant:

221 Sterling Road Holdings Inc.

Subject:

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

Description:

to permit a three building, 892 unit development

Reference Number:

21 151444 STE 09 OZ

Property Address:

221-227 Sterling Road

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-22-003932

OLT Lead Case No:

OLT-22-003932

OLT Case Name:

221 Sterling Road Holdings Inc. v. Toronto (City.)

PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject:

Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description:

to permit a three building, 892 unit development

Reference Number:

21 151438 STE 09 SB

Property Address:

221-227 Sterling Road

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-22-003933

OLT Lead Case No:

OLT-22-003932

BEFORE:

G.C.P BISHOP

Thursday, the 3^rd

ALTERNATE-CHAIR

day of August, 2023

THIS MATTER having come before the Tribunal for a Case Management Conference, and the Tribunal in its Decision issued September 7, 2022, having directed the Parties to submit a draft Procedural Order and Issues List on consent to the Case Coordinator on or before end of day Wednesday January 11, 2023;

AND the Parties having been unable to reach agreement resulting in an inability to submit a draft Procedural Order and Issues List on consent in accordance with the Tribunal’s previous direction;

THE TRIBUNAL ORDERS that the Procedural Order attached to this Order as Schedule “A” shall be issued and the attached Procedural Order shall be in force and effect for the purposes of governing the procedures leading up to and including the hearing, which is scheduled to commence on Tuesday, October 17, 2023 at 10:00 AM for 9 days to proceed by video as follows:

Go To Meeting: https://global.gotomeeting.com/join/927921077

Access Code: 927-921-077

Audio-only telephone line: Toll Free 1-888-299-1889, or (647) 497-9391

Audio-only access code: 927-921-077

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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 “A”

ISSUE DATE: August 3, 2023 CASE NO(S).: OLT-22-003932; OLT-22-003933

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

Appellant:

221 Sterling Road

Subject:

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

Description:

To permit a three building, 892 unit development

Reference Number:

21 151444 STE 09 OZ

Property Address:

221-227 Sterling Road

Municipality/UT:

Toronto/Toronto

OLT Case No.:

OLT-22-003932

OLT Lead Case No.:

OLT-22-003932

OLT Case Name:

221 Sterling Road Holdings Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

221 Sterling Road

Subject:

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

Description:

To permit a three building, 892 unit development

Reference Number:

21 151438 STE 09 SB

Property Address:

221-227 Sterling Road

Municipality/UT:

Toronto/Toronto

OLT Case No.:

OLT-22-003933

OLT Lead Case No.:

OLT-22-003932

OLT Case Name:

221 Sterling Road Holdings Inc. v. Toronto (City)

Appellant:

221 Sterling Road

Subject:

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

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 Tuesday, October 17, 2023 at 10:00 a.m. at

GoTo Meeting: https://global.gotomeeting.com/join/927921077

Audio-only telephone line: +1 (647) 497-9391 or (Toll-Free) 1(888) 299-1889

Access code: 927-921-077

3. The parties’ initial estimation for the length of the hearing is 9 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 (see the sample procedural order for the meaning of these terms).

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. 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.

8. 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

9. 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 Tuesday, September 5, 2023 and in accordance with paragraph 21 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.

10. 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 12 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.

11. 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 12 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 12 below.

12. On or before Tuesday, September 12, 2023 (35 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 21 below.

13. On or before Tuesday, September 12, 2023 (35 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 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

14. On or before Friday, September 29, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before Monday, October 2, 2023 (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 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fifteen (15) days after the evidence is received, on Wednesday, September 27, 2023 and in accordance with paragraph 21 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Tuesday, October 10, 2023.

18. 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.

19. 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 5 days before the hearing that the written evidence is not part of their record.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Thursday, October 12, 2023 (5 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.

21. 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.

22. 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.

BEFORE:

Name of Alternate Chair: G.C.P. Bishop

Date: August 3, 2023

_Euken Lui

TRIBUNAL REGISTRAR

Attachment 1

List of Parties

City of Toronto

City of Toronto Legal Services

55 John Street, 26th Floor, Metro Hall

Toronto, ON M5V 3C6

Derin Abimbola Laura Bissett

Email: derin.abimbola@toronto.ca / laura.bissett@toronto.ca

221 Sterling Road Holdings Inc.

Overland LLP

5255 Yonge Street, Suite 1101

Toronto ON M2N 6P4

Daniel Artenosi / Natalie Ast

416.730.0320 / 416.730.0387

Dartenosi@overlandllp.ca / nast@overlandllp.ca

South Junction Triangle Grows

Email: info@southjtgrows.org

Cara Sweeny (Representative) / Cristina Costa (Agent)

Tel: (416) 277-1873 / (416) 333-7037

Email: cara.sweeny@gmail.com / cristina.peter@utoronto.ca

Lamb Sterling Corp.

Aird & Berlis LLP

Brookfield Place, 181 Bay Street, Suite 1800

Toronto ON M5J 2T9

Eileen P.K. Costello / Naomi Mares

Tel: (416) 865-4740 / (647) 426-2842

Fax: (416) 863-1515

Email: ecostello@airdberlis.com / nmares@airdberlis.com

Participants:

TSCC2174, Angola Murdoch, Camille Dziewurski, Gillian Kotras, James Costa, Julie Ford, Kimberley Betz, Kris Erickson, Laura Pallotta, Matthew Michels, Robert Foerster, Andrea Lothrop, Irmina Ayuyao, Brock Van Dijk, Tomas Hachard, Rebecca Leonard, Anna Sapershteyn, Brittany Nahous, Corry Nicholls, Julia Douglas, Pia Bouman, and Sarah Owen.

Attachment 2

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the OLT or any Party that such issue, or the manner in which the issue is expressed, is either appropriate or relevant to the determination of the OLT at the hearing. The extent to which these issues are appropriate or relevant to the determination of the OLT at the hearing will be a matter of evidence and argument at the hearing. The identification of an issue on this list by a Party indicates that Party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet and shall not be construed as the OLT having jurisdiction over such matters in each circumstance. Accordingly, no Party shall advance an issue not identified on the Issues List without leave of the OLT.

ISSUES LIST OF

SOUTH JUNCTION TRIANGLE GROWS NEIGHBOURHOOD ASSOCIATION

Planning Act

1. The proposed development and Zoning By-law Amendment does not have appropriate regard for the matters of provincial interests set forth in Section 2 of the Planning Act, particularly:

a. 2(h) – orderly development of safe and healthy communities;

b. 2(r) – the promotion of built form that is well-designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive, and vibrant.

Provincial Policy Statement (2020)

2. The proposed development and Zoning By-law Amendment are not consistent with the Provincial Policy Statement (2020) as required by Section 3(5)(a) of the Planning Act, including, but not limited to, Sections 1.1 and 4.0, reading the Provincial Policy Statement (2020) in its entirety and applying the relevant policies?

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

3. The proposed development and Zoning By-law Amendment does not conform with and/or conflicts with, A Place to Grow: Growth Plan for the Greater Golden Horseshoe, including, but not limited to, Sections 1.2.1, 2.2.2, and 5.2.5, reading A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) in its entirety and applying the relevant policies?

Redesignation of a Portion of the Site

4. The proposed redesignation of land from Neighbourhoods to Mixed Uses Areas is not consistent with the general intent of the Official Plan. The proposed development is grossly out of proportion for the surrounding neighbourhood, all of which are low rise, low density and historical buildings.

City of Toronto Official Plan

5. The proposed development is not consistent with the general intent of the Official Plan, nor does the proposed Zoning By-law Amendment conform to the policies of the City of Toronto Official Plan, including, but not limited to, the following Sections:

a. 2.2.3 Avenues: Reurbanizing Arterial Corridors;

b. 2.3.1 Healthy Neighbourhoods;

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

d. 3.1.1 The Public Realm;

e. 3.1.2 Built Form;

f. 3.1.3 Built Form- Building Types;

g. 3.1.5 Heritage Conservation;

h. 3.2.1 Housing;

i. 3.2.2 Community Services & Facilities;

j. 4.1 Neighbourhoods;

k. 4.5 Mixed Use Areas; and

l. 5.1.1 Height and/or Density Incentives.

Planning Framework & Design Guidelines

6. The proposed development does not have appropriate regard to the Bloor Street Study Planning Framework.

7. The proposed development does not have appropriate regard for and/or meet the intent and purposes of the applicable City of Toronto Guidelines, particularly:

a. Tall Building Design Guidelines;

b. Mid-rise Building Performance Standards;

c. Townhouse & Low-Rise Apartments Guidelines;

d. Growing Up: Planning for Children in New Vertical Communities;

e. Retail Design Manual;

f. Streetscape Manual;

g. Pet Friendly Design Guidelines for High Density Communities;

h. Development Infrastructure Policy and Standards (DIPS); and

i. Complete Streets Guidelines Built Form and Public Realm

8. The proposed development does not represent good and appropriate land use planning and urban design, having regard to matters such as:

a. The provincial and municipal policy framework identified in this issues list;

b. Fit with the existing and planned context; and

c. The built form, massing and scale, building heights and design, including the impact on:

i. gradual transition in relation to the scale and character of the surrounding area, including the Neighbourhoods to the west and mixed residential to the north and east; and

ii. sky-view and sunlight penetration into the public realm;

d. The proposed setbacks and stepbacks;

e. The proposed height of the towers;

f. The proposed size of the tower plates for of the towers;

g. The proposed shadow impacts on the abutting Neighbourhoods areas, surrounding Mixed-Use areas that are primarily residential, and on the public realm.

9. The proposed built form is not in keeping with the Neighbourhoods designation, or the character of the neighbourhood.

10. The proposed development creates an inappropriate built form precedent for other developments in the South Junction Triangle and which may result in a cumulative impact on the character of this area in the form of tower separation, privacy and overlook issues, and shadow and wind impacts?

11. The proposed development does not contribute to a well-connected, walkable community with a comfortable, attractive and vibrant, and safe and accessible public realm Ruttan Street. The proposed development does not have appropriate public frontage for access/address purposes?

12. The proposed development does not provide for appropriate transition to adjacent Neighbourhood areas in terms of height and scale as required in the Official Plan?

13. The proposed development does not provide for appropriately sized two and three bedroom units. The average sizes for 2 and 3 BR units are well below the Growing Up Guidelines minimum size.

Orderly Development of the Site and Coordination with Adjacent Landowners

14. Does the proposed development enhance and expand the public realm through the conveyance of land to the City to widen and extend Ruttan Street south to Sterling Road, in coordination with the redevelopment application at 1405, 1407, 1409 and 1409A Bloor Street West and 229, 231 and 231A Sterling Road?

15. How does the proposed extension of Ruttan Street south to Sterling Road impact the already overstressed traffic on Sterling Road? Is the exit on to Sterling Road appropriate for traffic flow improvement?

Heritage Conservation

16. As a result of the Bloor Street Study the property at 221, 225, 227 Sterling Road was identified as having significant cultural, historical and contextual value. As such city council designated this property under Part iv, Section 29 of the Ontario Heritage Act. Objections were heard and dismissed by the City council. This property is a rare and unique example of an evolved manufacturing complex that has been adaptively reused to support the arts. It is one of the last such facilities remaining in Toronto.

17. How does the destruction of this building and the eviction of the numerous residents: visual artists, dancers, circus performers and the dislocation of the community studios, rehearsal spaces (including the Pia Bouman School for Dance) comply with the Ontario Heritage Act and the provincial policy regimes, the Planning Act that instruct that “cultural heritage resources are considered irreplaceable and valuable assets that must be wisely protected.”

18. How does the proposed development intend to replace the irreplaceable?

Transportation and Parking

19. The proposed development does not provide sufficient (realistic) vehicular parking for residents and visitors. The proposed development has reduced proposed parking spaces from 330 resident spaces to 117 spaces; 87 visitor spaces to 84 visitor spaces. There is already a shortage of available parking in the neighbourhood. Is the significant reduction in residential parking supportable in this area (outside of the Downtown Core)?

20. The Ruttan street extension will exacerbate pre-existing traffic flow problems on Sterling Road. How can the traffic flow be improved to handle the enormous increase in traffic from this proposal?

21. The staggered intersection at Sterling-Bloor-Symington has been identified as problematic. Only a few cars can get through at a time, causing back ups the length of Sterling Road. There is no signal possible at Ruttan and Bloor. The development will overstress the already overtaxed Sterling Road.

New Affordable Housing

22. Affordable housing is a strategic priority for both the City of Toronto and the Province of Ontario. Given the transit-rich location of the subject site there is a need for including affordable housing in this proposed development. How does the proposal address the affordable housing crisis?

Public Interest and Good Planning

23. The proposed development and Zoning By-law Amendments is not in good planning or urban design.

24. The proposed development and Zoning By-law Amendment is not in the public interest.

25. The proposed development does not provide new affordable housing so desperately in need in the City of Toronto.

Community Services and Facilities

26. The Bloor Street Area Study identified a number of pre-existing shortages of community services in the neighbourhood? (eg, childcare, green space, public schools, and lack of public space)? The additional of 892 units of residential housing will further strain the failing system. How does the proposal address these inadequacies?

Parkland

27. The subject site is in an area with the lowest level of parkland per person (as of 2016). This is further reduced as a result of the already approved developments and population growth within the area. Although a public park is proposed at the required 1200 square metres it does not ADD any additional parkland per person in the area. The small square of parkland is barely enough for the proposed residents to use for a pet relieving area let alone provide space for children to play.

28. A proposed park is being constructed to assist with the shortage for the existing residents. How will the proposed development improve the existing deficit?

Construction

29. What will impact of construction be on the abutting and neighbouring properties? What issues might arise and how will those be addressed? What will the impact of construction noise and debris be on the neighbouring properties?

30. How will construction of the proposed development impact traffic and parking in the neighbourhood?

Attachment 3

Order of Evidence

1. 221 Sterling Road Holdings Inc.

2. SJTG

3. 221 Sterling Road Holdings Inc. (in reply)

Attachment 4

Summary of Dates

Issues List July 20, 2023

List of Witnesses September 5, 2023

Witness Statements September 12, 2023

Reply Evidence September 27, 2023

Confirmation of Hearing Dates September 29, 2023

Visual Evidence October 2, 2023

Joint Document Book October 10, 2023

Hearing Plan October 12, 2023

Commencement of Hearing October 17, 2023

Attachment to Sample Procedural Order

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.