Lamb Sterling Corp. v. Toronto (City), 2024 CanLII 102756

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 18, 2024

CASE NO(S).: OLT-22-002507 (Formerly PL210238)

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

Applicant/Appellant: Lamb Sterling Corp.

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

Description: To permit an 18 storey, 326-unit mixed-use development

Reference Number: 20 199975 STE 09 OZ

Property Address: 1405, 1407 1409 and 1409A Bloor Street West and 231, 231A and 229 Sterling Road

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-002507

Legacy Case No: PL210238

OLT Lead Case No.: OLT-22-002507

Legacy Lead Case No: PL210238

OLT Case Name: Lamb Sterling Corp. v. Toronto (City)

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

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

Description: To permit an 18 storey, 326-unit mixed-use development

Reference Number: 20 1999975 STE 09 OZ

Property Address: 1405, 1407 1409 and 1409A Bloor Street West and 231, 231A and 229 Sterling Road

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-22-002508

Legacy Case No: PL210239

OLT Lead Case No.: OLT-22-002507

Legacy Lead Case No: PL210238

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Motion By: South Junction Triangle Grows Neighbourhood Association

Purpose of Motion: Request for Directions

Heard: July 04, 2023 to July 21, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Lamb Sterling Corp.

E. Costello

N. Mares

City of Toronto

L. Bisset

D. Abimbola

221 Sterling Road Holdings Inc.

D. Artenosi

N. Ast

South Junction Triangle Grows

C. Sweeny*

Neighbourhood Association

DECISION BY STEVEN COOKE AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1Lamb Sterling Corp. (“Applicant”) has appealed the City of Toronto’s (“City”) failure to adopt a request to amend the City Official Plan (“OP”) and failure to make a decision for an application to amend a Zoning By-law (“ZBL”) pursuant to s. 22(7) and 34(11) of the Planning Act (“Act”).

2The purpose for the requests to amend the OP and ZBL is to potentially allow for the Applicant to construct a proposed 18-storey mixed-use building, that includes 326 residential units, for the properties collectively known as 1405, 1407, 1409, and 1409A Bloor Street West, and 229, 231, and 231A Sterling Road (“Subject Site”).

EXHIBITS LIST

3In consideration of this matter, the Tribunal reviewed the 15 exhibits filed by the various Parties. On consent of all the Parties, the Applicant kept track of the Exhibits List throughout the proceedings and shared it with the Parties and Tribunal daily. Attachment 1 to this Decision is a copy of the Exhibits List.

PROCEDURAL ISSUES

Request for an Adjournment

4The South Junction Triangle Grows Neighbourhood Association (“Association”) submitted a request for an adjournment to the Tribunal. The Association’s representative, Ms. Sweeny, stated that the adjournment was requested because at the previous Case Management Conference (“CMC”) on June 5, 2023, the Tribunal did not adequately hear the request for an adjournment, and the Association needed more time to prepare.

5The Association’s position is that they were not adequately informed about a settlement reached by the City Council on March 29, 2023, and it was not brought to the attention of the Tribunal and other Parties until May 17, 2023, which was only six weeks before the scheduled date of this Hearing on the Merits (“Hearing”), July 4, 2023. The Association stated that they intended to rely on the City’s expert witnesses, but due to the settlement, the City indicated that they would no longer be making their expert witnesses available, without a subpoena. While the Association did subpoena those witnesses, there was no meeting between the subpoenaed witnesses and the Association. Ms. Sweeney stated that due to this, the Association would not be adequately prepared.

6The Tribunal pointed out that a settlement is common in Tribunal proceedings and depending on the City to advance their case does not release the Association from their obligations when the City settles. The Tribunal also explained that if the Association wishes to subpoena City staff to provide expert witness testimony, they may do so by following the Tribunal Rules of Practice and Procedures (“Rules”).

7The Association should have brought forward a motion to request an adjournment without consent under Rule 17.3 of the Rules, but as no motion was before the Tribunal, the request was considered invalid and denied.

Apprehension of Bias

Motion from the Association

8In a Motion of Recusal from the Association (“Motion”), it was their position that the Panel Member’s conduct was biased for refusing to hear the Association on several relevant issues, ruling against the Association, and failing to provide reasons for the decisions.

9The Panel Member was previously involved in a CMC for this matter. He did not allow the Association to make full submissions on their request for adjournment and ruled against the Association without providing reasons for the decision.

10After that CMC, the Association lodged a formal complaint against the Panel Member with the Ontario Land Tribunal (“OLT”). The OLT declined to consider the complaint.

11The Panel Member refused the second request for adjournment at the beginning of this Hearing. Once again, the Panel Member did not provide reasons for the refusal or apply the “fairness” test required pursuant to the Rules.

12The Panel Member prevented the Association from cross-examining Peter Smith on his qualifications, particularly his independence. The Panel Member did not permit Ms. Sweeny to raise an objection to Mr. Smith’s qualifications pursuant to the law in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

13The Panel Member did not allow the Association to record the proceedings and did not provide reasons for the refusal.

14The Panel Member initially allowed the Association to record the proceedings on the second day of the Hearing. However, on the morning of the third day, he revoked that permission without providing reasons. The Association was not allowed to respond to the allegations that the recording was made “public”. The Panel Member suggested alternatives to recording but did not allow time for the Association to implement any of the suggestions.

15The Panel Member repeatedly interrupted the Association during their cross-examination, limited cross-examination on relevant areas, and attempted to impose artificial time limits on cross-examination.

16The Panel Member did not extend the courtesy and fairness required to assist the Association, the only self-represented Party before the Tribunal. The Panel Member repeatedly demonstrates an apprehension of bias towards the Association, which gave the appearance of unfairness towards the Association.

17The OLT requires fairness at each and every step of the proceedings before it. Not only must justice be done, but justice must also be seen to be done. Fairness requires that decisions be based only on the information and evidence related to the decision, and not on other factors such as the maker’s personal belief system, past knowledge, or previous relationships with a Party. The public deserves full, fair, and transparent proceedings.

18The failure to provide reasons for a decision is seen by a reasonable observer to be unfair. How does one know what considerations went into making that decision if the adjudicator does not express those reasons either orally, or later, in a written decision?

19As a result of this appearance of unfairness, the Association asked the Panel Member to recuse himself and strike the proceedings. It was also the opinion of Ms. Sweeny that in order to make this decision the Tribunal should stand the down and reschedule at a later date.

Response from the Applicant

20The Association has filed a Motion requesting the recusal of the Panel Member due to apprehension of bias. The Motion relates to the Panel Member’s actions in two instances: (a) the CMC held on June 5, 2023; and (b) the Panel Member’s conduct during the Hearing which began on July 4, 2023.

21In Geneen v. Toronto (City), [1999] O.J. No. 149 (Div. Ct.), the Divisional Court ruled that a party was estopped from claiming bias after participating in an Order, even if they were aware of the facts giving rise to a reasonable apprehension of bias.

22The Association has alleged bias on the part of the Panel Member and the Tribunal, both before and during these proceedings. The Association waited until the fifth day of this Hearing to announce its intention to bring the Motion.

23On June 12, 2023, nearly a month prior to the start of this proceeding, the Association published a blog on its website claiming that “Large development firms have the OLT stacked with real estate insiders adjudicating cases”.

24On July 4, 2023, the first day of this Hearing, Ms. Sweeny alleged bias during the proceedings in response to the Panel Member’s refusal to allow her to continue questioning the Applicant’s expert planning witness’ (Mr. Smith’s) qualifications.

25The Association’s Instagram account (@southjtgrows) made a post on July 4, 2023 regarding the Hearing, stating “Appearance of Bias on Day 1 – surprise!”.

26Despite such statements and allegations, the Association continued to participate in the Hearing and failed to indicate it would bring its Motion until the second week of the Hearing, and only after the Applicant had called its entire case in chief.

Decision of the Tribunal on the Motion

27After considering the arguments from both Parties, the Panel Member has decided that there is no reasonable apprehension of bias towards any Party. The Tribunal is committed to conducting fair and efficient hearings. During the hearing process, the Tribunal intervened with all counsel, except for Ms. Ast at one point, as appropriate. It is important to note that the Association, being a group of individuals not practicing Municipal Planning Law, was given more flexibility than the counsel.

28The Association brought forward a request to the Tribunal, without notice, that the Tribunal record the Hearing and provide a copy to the Association. The Panel Member informed the Association that the Tribunal does not record its own proceedings. Should the Association have wanted to record the proceedings, they should have followed Rule 22.5 of the Rules, that states:

22.5 Photographic, Audio or Video Recording No person shall take or attempt to take a photograph, motion picture, video recording, or other recording capable of producing audio or visual representations by electronic means, or otherwise, at any proceedings of the Tribunal otherwise open to the public, unless the presiding Tribunal Member authorizes the recording. The following conditions must be satisfied by the person making the request:

(a) the Tribunal Member determines that the proceedings will not be disrupted or delayed if approval is given;

(b) the Tribunal Member determines that the approval will not result in any prejudice to any party to the proceedings;

(c) the equipment must be of a type approved by the Tribunal and be placed in locations approved by the Tribunal Member so as to be unobtrusive; and

(d) a photograph or visual recording may only take place in such a manner that will not disrupt or interrupt the proceedings.

29On the second day of the proceedings, Ms. Sweeny requested permission to personally record the proceedings for her own note-taking purposes. The other Parties agreed to her request solely for the purpose of note-taking and not for any other reasons. Ms. Sweeny confirmed that she understood these conditions and was granted permission to record.

30During a recent session, the City’s counsel informed the Tribunal that the Association had started posting recordings of the proceedings on a publicly accessible website. Ms. Sweeny objected, arguing that the website was not intended to be public and that sharing the recordings within the Association was no different from speaking to them in the back of a courtroom. The Tribunal ruled that this action was a clear violation of its Rules and directions. As a result, Ms. Sweeny was informed that she could no longer record the proceedings and was provided with alternative options for taking notes.

31Regarding the claim that the Panel Member was biased due to a formal complaint to the OLT about the previous CMC, the Panel Member was not even aware of such a complaint until the time of this Motion. Although the Association included a copy of the complaint email, the Panel Member did not review it.

32The Panel Member was very clear in its Decision not to adjourn the proceedings at the previous CMC, emphasizing that it was the responsibility of a Party to be prepared for a hearing, and should not just rely on other Parties to make their case for them. During the CMC, the Tribunal had heard a substantial amount of submissions from Ms. Sweeny before she was ruled out of order for hurling insults at other counsel. While Ms. Sweeny repeatedly stated that this was not a real court proceeding, this Panel Member takes the decorum of its hearings.

33The Association contested the Panel Member’s decision regarding the restriction on questioning the qualifications of Mr. Smith as an expert in land-use planning. The Association aimed to demonstrate that Mr. Smith could not provide impartial evidence because he was hired by the Applicant. However, instead of focusing on qualifications, the line of questioning shifted to the planning merits. Despite the Tribunal allowing the Association some flexibility, Ms. Sweeny continued to ask questions about the merits of the Hearing rather than Mr. Smith’s qualifications. Eventually, the Tribunal intervened, instructing Ms. Sweeny to focus her questions on Mr. Smith’s qualifications. Despite this direction, Ms. Sweeny persisted in asking questions about the Hearing’s merits. The Tribunal halted the proceedings and requested Ms. Sweeny to present arguments as to why Mr. Smith should not be qualified. Ms. Sweeny refused to comply, and after the fifth request for submissions, the Tribunal ruled that Mr. Smith was indeed qualified to provide expert opinion evidence in land-use planning.

34During Mr. Smith’s cross-examination, the Association claimed that the Panel Member interfered with or restricted the questioning of the witnesses. The Tribunal’s interventions were related to questions that had already been asked multiple times. When the Panel Member was satisfied that a question had been answered by any Party, it was their practice to ask the Parties to move on to the next question. Additionally, the Association had lines of questioning that were not relevant to the matters before the Tribunal for adjudication.

35While the Association repeated that the Tribunal was making a decision without explanation, the Tribunal on multiple occasions referenced s. 18(3) of the Ontario Land Tribunal Act, 2021. The Tribunal has at its discretion, and may impose, such limitations on cross-examination:

Limits on examination

(3) The Tribunal may limit any examination or cross-examination of a witness,

(a) if the Tribunal is satisfied that all matters relevant to the issues in the proceeding have been fully or fairly disclosed; or

(b) in any other circumstances the Tribunal considers fair and appropriate.

36For the above stated reasons that Panel Member did not recuse himself.

Question of Privilege

37At the end of the Hearing, the Association raised a question of privilege about gaining access to all City documents related to settlement discussions of the subpoenaed City witnesses. The other Parties objected, stating that a proper motion should have been made, but the Tribunal continued with brief submissions. The purpose was to help the Association understand why the new proposed development was now acceptable to City staff.

38After considering the matter, the Tribunal informed the Parties that it has been their practice to encourage settlement discussions. The Tribunal will be cautious and avoid interfering with the Parties’ ability to have open and honest discussions among themselves. The Tribunal did not see the relevance of the settlement communications to the issues raised during the Hearing.

PLANNING EVIDENCE

Position of the Applicant

39As mentioned earlier, the Applicant called Mr. Smith to provide expert opinion evidence in land-use planning. Additionally, the Applicant called the expert opinion evidence in transportation planning from Mr. Kenneth Chan.

Provincial Matters

40Section 2 of the Planning Act requires decision-makers to consider various factors while fulfilling their responsibilities under the Act, including matters of provincial interest. Mr. Smith expressed the view that the Revised Proposal adequately addresses these provincial interests, particularly in the following areas:

• The provision and efficient use of communication, transportation, sewage, and water services, as well as waste management systems.

• The orderly development of safe and healthy communities.

• The availability of a full range of housing options, including affordable housing.

• The appropriate location for growth and development.

• The promotion of sustainable development that supports public transit and is pedestrian-oriented.

• The encouragement of well-designed built forms that foster a sense of place and provide high-quality public spaces that are safe, accessible, attractive, and vibrant.

41In the expert opinion of Mr. Smith, the proposed development aligns with the Provincial Policy Statement, 2020 (“PPS”), particularly regarding residential intensification, and the efficient use of land and infrastructure.

42He noted that the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), building on the priorities outlined in the Act and the PPS, directs development to optimize land and infrastructure use. It encourages growth and intensification in strategic growth areas, especially in locations that have access to higher-order transit, such as the Subject Site in question.

43Regarding the housing policies outlined in the Growth Plan, Mr. Smith provided evidence that the proposal complies with Policies 2.2.6(1) and (2). These policies urge municipalities to support a variety of housing options and densities, including additional residential units and affordable housing, to meet the projected needs of both current and future residents. They also call for establishing targets for affordable ownership and rental housing.

44Mr. Smith further indicated that the proposal includes a diverse range of housing types, featuring low-rise townhomes, as well as mid-rise and high-rise condominium units. These units come in various sizes, including one-bedroom, two-bedroom, and three-bedroom configurations.

City OP

45With regards to the OP, Mr. Smith stated to the Tribunal that the Subject Site is situated in an area expected to experience development and expansion, along a section of Bloor Street West identified as an Avenue in the OP. The northern third of the Subject Site facing Bloor Street West is designated as Mixed Use Areas, while the southern portion is designated as Neighbourhoods. The Subject Site is irregular in shape, with approximately 25.3 metres (“m”) of frontage along Bloor Street West, 73.8 m along Ruttan Street, and 34.7 m along Sterling Road, with a depth of about 179 m, resulting in a site area of 4,002.3 square metres (“sq m”).

46Mr. Smith opined that, in his view, the OP permits minor adjustments to land-use plans without necessitating an amendment, as long as the intent of the OP is preserved. Mr. Smith noted that the OP Amendment was submitted as a precautionary measure.

47The Subject Site is currently underutilized, with one- to two-story automotive repair shops, service shops, and industrial buildings, as well as multiple driveways to Ruttan Street and Bloor Street West. Mr. Smith stated that these existing uses reflect its previous industrial zoning. He further explained that the current uses on the Subject Site are not in line with either the Mixed Use Areas or Neighbourhoods designations in the OP.

48Mr. Smith informed the Tribunal that the proposed development consists of a 19-storey mixed-use residential building, reaching a height of 69.8 m. The design features a step-down approach, decreasing to 14, nine, and four storeys towards the south. The total proposed gross floor area is 21,298 sq m, which includes 20,948 sq m dedicated to residential use and 350 sq m for retail space, amounting to approximately 325 residential units.

49The Tribunal was informed by the witnesses that the podium of the proposed development has been reduced from six storeys to three storeys, plus a mezzanine, to better align with the existing context. Both Mr. Smith and Mr. Chan believe that this reduced height responds effectively to the current street wall on Bloor Street.

50Additionally, the tower portion has been modified to feature a longer and narrower floor plate. The north-south dimension has increased from approximately 26.9 m in the Original Proposal to 46.5 m in the Revised Proposal, while the east-west dimension has decreased from 18.1 m in the Original Proposal to 14.7 m in the Revised Proposal.

51Along the western property line, a 5.5 m setback above the podium and an increased tower setback of 7.5 m at the uppermost levels provide a better transition to the adjacent lands to the west. Mr. Smith stated that this adjustment also accommodates planned intensification in line with the existing OP policies.

52Concerning ZBL 569-2013, Mr. Smith presented evidence that the proposed uses, building height, and setbacks for this section of the Revised Proposal comply with the as-of-right zoning regulations applicable to the portion of the Subject Site designated as Neighborhoods.

53Mr. Smith explained that the tallest section of the tower is positioned along Bloor Street West, within the Mixed Use Areas designation. This tower transitions southward, stepping down to a 14-storey element, and then further down to a nine-storey mid-rise component at the southern edge of the Mixed Use Areas designation. Finally, a low-rise component of four storeys is planned, which will include at-grade townhouse units in the Neighbourhoods section of the Subject Site, to the south.

54Mr. Smith highlighted that the Bloor Street corridor has undergone several large-scale redevelopment projects in recent years, transforming major intersections along Bloor Street into higher-density nodes. He identified several proposed and approved developments in the immediate vicinity of the Subject Site, ranging from 18 to 31 storeys.

55Mr. Smith indicated that the proposed development includes the southern extension of Ruttan Street. This extension would satisfy the parkland requirement through a combination of on-site dedication (85.35 sq m) and off-site dedication (276.3 sq m), contingent on the City’s feasibility assessment.

56The Tribunal was informed that the proposed plan intends for the on-site parkland to be consolidated with an existing parkland dedication on the Subject Site located at 221-227 Sterling Road, resulting in a total area of 1,580 sq m. This aligns with the objectives of the Bloor Street Study to create an enlarged community park in this area.

57It was pointed out to the Tribunal that City staff had requested the coordinated provision of public parkland in the region. However, the Applicant’s settlement offer stipulates that if the 276.3 sq m cannot be provided on the Subject Site at 221-227 Sterling Road, the City may choose to utilize the portion of the Subject Site dedicated to the extension of Ruttan Street as additional on-site parkland.

Shadow Impact

58Mr. Smith expressed the opinion that the shadow effects from the proposed development on the adjacent homes, businesses, and neighborhood would be adequately limited. He noted that the shadow impact on properties to the west along Sterling Road, which is designated as Neighbourhoods, would be minimal. The shadow from the four-storey section would begin at 9:18 a.m. and would clear those properties by 11:18 a.m. in March and September, and by 12:18 p.m. in June.

59Mr. Smith informed the Tribunal that the proposed development has mitigated shadow by positioning the tallest portion along Bloor Street West, “stepping” down in height towards the south.

60In assessing the shadow impact to the north, Mr. Smith confirmed that the Neighbourhood areas would experience minimal effects, with only a few houses being affected and the shadows moving off those properties quickly. He also opined that the shadows cast by the revised proposal on the Mixed Use Areas to the north and south of Bloor Street were consistent with what might be expected in such designations. Although these areas are not subject to any shadow policies in the OP, the shadow impacts were nonetheless adequately limited.

Transportation

61Mr. Chan’s evidence was based on his Transportation Impact Study, dated September 16, 2020, with updates conducted on January 5, 2023.

62He indicated that the proposed residential parking supply rate is 0.36 spaces per unit, and that no parking is required for retail uses or visitors.

63Mr. Chan opined that the proposed development would provide sufficient parking for residents, and he believes that the surrounding area can accommodate the minimal short-term parking needs of the proposed development. This expectation is based on the nature of the retail and the availability of non-auto transportation options for visitors.

64As to the method for calculating trip generation, Mr. Chan testified that he utilized a combination of the Institute of Transportation Engineers (ITE) Trip Generation Manual to assess the number of trips related to the existing auto repair and service uses on the Subject Site, as well as a study of comparable sites to estimate the number of trips expected from the proposed development.

65Mr. Chan provided evidence indicating that, as part of the Revised Proposal, an extension of Ruttan Street is now feasible in collaboration with 221 Sterling Road Holdings Inc.’s (“221 Sterling”) development. He stated that the extension of Ruttan Street is not necessary to support the proposed development on the Subject Site. Mr. Chan specifically noted that all access for loading and parking on the Subject Site would come from the existing frontage on Ruttan Street, and that the extension of Ruttan Street is not required to accommodate the traffic that would be generated by the proposed development.

66Mr. Chan presented evidence from local residents regarding the current traffic on Sterling Road. He stated that the proposed development on the Subject Site is not anticipated to negatively impact safety in the area, as it is expected to generate fewer than one vehicle per minute, during both the a.m. and p.m. peak hours.

67Mr. Smith explained the Growth Plan defines “strategic growth areas” as locations that will focus on accommodating intensification and higher density mixed uses in a more compact built form. These areas also include Major Transit Station Areas. Mr. Smith stated that the Subject Site is situated within three Protected Major Transit Station Areas: 1) Bloor GO; 2) Bloor-Lansdowne GO; and 3) Lansdowne.

68Mr. Chan described the Subject Site as part of the Dundas West-Bloor Mobility Hub, which is served by five modes of public transport: 1) subway service; 2) streetcar service; 3) bus service; 4) the UP Express; and 5) GO Commuter rail services. The Metrolinx Regional Transportation Plan indicates that mobility hubs represent a significant opportunity to maximize the advantages of transit investments, create a well-connected regional transit network, and promote transit-oriented development.

Position of the City

69The City supported the expert testimony of Mr. Smith and Mr. Chan that the Revised Proposal represents good planning. While the City did not call any witnesses of their own, numerous City staff, through their subpoena testimony, supported the settlement agreement.

70Ms. Victoria Fusz, the City Planner, agreed with the expert opinions of Mr. Chan and Mr. Smith. Although she did not support the Original Proposal, she noted that the Revised Proposal represents an overall improvement and meets the criteria for good land-use planning.

71In her testimony, Ms. Fusz described the proposed development as “squash and spread”. She believes that a mixed-use building and tower along Bloor Street, transitioning to mid-rise and low-rise four-storey apartments to the south, is appropriate.

72Additionally, she supports the extension and connection of Ruttan Street, along with a combined park dedication from both the Applicant and 221 Sterling, as beneficial for the public realm.

73Mr. Roberto Lonescu, a City Transportation Engineer, provided evidence that he had reviewed Mr. Chan’s work and confirmed that the methodology and trip calculations generated are acceptable and a general practice used throughout North America.

Position of 221 Sterling

74221 Sterling appeared before the Tribunal due to their proposed development on the property adjacent to the Applicant’s. Coordination between the two proposed developments led to the creation of a large, consolidated public park. This collaboration effectively maximizes the individual parkland dedications associated with each development.

75221 Sterling submits that the collaborative efforts of the Applicant and 221 Sterling align with the purpose of the Act, as well as the goals and principles outlined in the PPS and the Growth Plan.

76The Applicant and 221 Sterling’s efforts are consistent with the PPS’s directive for a comprehensive and integrated approach to planning matters, particularly concerning infrastructure planning as outlined in Policy 1.2.1. The design coordination of the Ruttan Street Extension and the combined New Public Park aligns with the objectives specified in Policies 1.5.1 and 1.6.1 of the PPS, as well as Policies 2.2.1, 3.2.1, 3.2.2, and 4.2.5(2) of the Growth Plan. These policies relate to creating healthy, active communities through the planning of public streets, spaces, and parks, and the efficient coordination and integration of infrastructure and public service facilities.

Position of the Association

77While the Association attempted to discredit the expert witnesses and identify flaws in the settlement proposal between the Applicant and the City to give the Tribunal reason for hesitation, it was unable to present any contrary expert opinion evidence regarding the claims related to the proposed development. The closing submission of the Association gives opinions that are simply not supported with adequate evidence or contrary expert opinion.

78The Association called upon four lay witnesses; three who live in the immediate area and one who resides in a building with a garage elevator similar to the one being proposed.

79Ms. Julie Ford addressed several concerns regarding the proposed development, including its impact on sunlight and shadows, safety and security, increased density, traffic flow and safety on Ruttan Street, bike lane access, the size and composition of the units (which fall well below City guidelines), the absence of affordable units, and the overall design, which does not fit within the existing and planned context. She also highlighted the potential negative effects on small businesses in the Subject Site.

80Ms. Irnina Ayuyao spoke about the environmental impact of the proposed development, the effects of construction on current structures, the livability of adjacent homes, as well as the impacts on privacy and safety for neighbouring properties.

81Ms. Cristina Costa raised concerns about the proposed development obstructing sunlight and increasing shadow, as well as pre-existing traffic issues on Sterling Road, Perth Avenue, and Bloor Street. She noted and presented a video of traffic safety concerns, including speeding and access for emergency service vehicles, along with daily traffic congestion on Sterling Road and parking shortages in the area.

82Ms. Katrian Persad shared her experience regarding car elevators, mentioning the lack of repair services due to a worldwide shortage, the potential consequences for the community if the car elevators fail, the implications for building residents in such an event, practical issues related to car elevators, and the lack of alternatives to on-site parking.

FINDINGS OF THE TRIBUNAL

83In considering this matter, the Tribunal has accepted and adopted the uncontested land-use planning evidence and expert opinions provided by Mr. Smith, as well as the transportation planning and engineering expert opinions of Mr. Chan. Although the Association called a number of City staff under subpoena, their evidence did not contradict the evidence, but rather, further supported that the Revised Proposal was appropriate. The Tribunal particularly took note of City Planner Ms. Fusz’s opinion, stating that while she did not recommend the Original Proposal, the Revised Proposal has components overall that make it more acceptable and represent good planning.

84The Tribunal is persuaded by the evidence that the proposal promotes efficient development of land, accommodates a range of appropriate mixed uses, intensifies uses within the settlement area, and contributes to the range of housing options, particularly with the increase in housing options within a walkable distance of multiple existing and planned major transit stations as desired by the City.

85The Tribunal has considered the concerns raised by the lay witnesses, but was not persuaded that the concerns they have raised are either sustainable, given the evidence offered in support of the proposed development, or otherwise bear relevance to the land-use planning merits of the Revised Proposal.

86The Tribunal finds that the Revised Proposal is consistent with the policy direction established by the PPS, conforms to the relevant directives established by the Growth Plan, and as maintained by the OP. The Tribunal is further satisfied that the Revised Proposal has due regard for matters of provincial interest, is consistent with the principles of good land-use planning, and is in the greater public interest. More significantly, the proposal furthers the goals and objectives of the provincial planning regime to increase housing opportunities.

INTERIM ORDER

87THE TRIBUNAL ORDERS THAT the Motion for Recusal by South Junction Triangle Grows Neighbourhood Association is dismissed.

88The Tribunal FURTHER Orders that the appeal is allowed in part, on an interim basis, and the City of Toronto Official Plan and Zoning By-law are hereby amended and approved in principle substantially in accordance with Attachment 2 attached to this Decision, respectively. The Final Order of the Tribunal is being withheld pending confirmation from the City Solicitor that all of the following conditions, accepted as conditions on consent by the Applicant, have been satisfied:

a. The Tribunal has received, and approved, the final form of the Zoning By-law Amendments to the satisfaction of the Director, Community Planning, Toronto East York District and the City Solicitor, in consultation with other appropriate Divisions, and that they provide for, among other matters:

i. a minimum of 10 percent of all units on the Subject Site as 3-bedroom units and a minimum of 15 percent of all units on the Subject Site as 2-bedroom units;

ii. maximum tower height of 19-storeys fronting Bloor Street West that steps down to nine and four storeys as the building extends south;

iii. no projecting balconies; and

iv. any mitigation measures that will have bearing on the approved building envelope or performance standards, arising from any of the accepted plans and studies listed in paragraph [88]b., below;

b. the Tribunal is advised that the Applicant has, at the Applicant's expense:

i. submitted a revised Functional Servicing and Stormwater Management Report, Hydrogeological Report and supporting documents (the "Engineering Reports"), including confirmation of water and fire flow, sanitary and storm capacity, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services in consultation with the General Manager, Toronto Water;

ii. addressed all outstanding engineering issues, and any other comments that may arise further to the review of materials submitted as part of the process to address the issues set out in the memorandum from Engineering and Construction Services, and the General Manager, Transportation Services;

iii. secured the design and the provision of financial securities for upgrades or required improvements to the existing municipal infrastructure and/or new municipal infrastructure identified in the accepted Engineering Reports to support the development, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, should it be determined that improvements or upgrades and/or new infrastructure are required to support the development;

iv. submitted a revised Transportation Impact Study acceptable to, and to the satisfaction of, the General Manager, Transportation Services;

v. submitted a revised Landscape Plan, including any necessary financial securities, to the satisfaction of the Chief Planner and Executive Director, City Planning and the General Manager, Parks, Forestry and Recreation;

vi. submitted a Land Use Compatibility Study for peer review, at the Applicant's sole expense, to the satisfaction of the Chief Planner and Executive Director, City Planning, and that such matters arising from such Land Use Compatibility Study be secured if required;

vii. submitted a Transportation Demand Management Plan, including any necessary financial securities to the satisfaction of the General Manager, Transportation Services and the Chief Planner and Executive Director, City Planning, and that such matters arising from such Transportation Demand Management Plan be secured if required, and the Plan shall include:

1. mode share targets intended on shifting travel away from passenger cars and required parking;

2. method(s) by which the target mode share and parking rates will be reached (for example -future implementation of a bike share station, car-share or transit pass program);

3. the level of commitment to implement, enforce and maintain the plan moving forward;

4. expected short-term and long-term outcomes; and

5. should the accepted Transportation Demand Management Plan include any cash contribution toward Transportation Demand Management measures, such cash contribution shall be paid by the Applicant prior to the issuance of any building permit, including a conditional building permit, for the development and allocated in accordance with the Transportation Demand Management Plan, and such cash contribution shall be indexed upwardly in accordance with the Statistics Canada Non-Residential Construction Price Index for the Toronto Census Metropolitan Area, reported quarterly by Statistics Canada in Building Construction Price Indexes Publication 18-10-0135-01, or its successor, calculated from the date of any Ontario Land Tribunal Order, allowing the appeal in whole or in part, until the date of payment.

89The Panel Member may be spoken to should any issues arise.

90The Panel Member will remain seized for the purposes of reviewing and approving the final draft instrument(s) and the issuance of the Final Order.

“Steven Cooke”

STEVEN COOKE

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.

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