137 Isabella Street Ltd. and 141 Isabella Street Ltd. v. City of Toronto, 2024 CanLII 126179

ISSUE DATE: December 13, 2024 CASE NO(S).: OLT-24-000923

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

Applicant/Appellant: 137 Isabella Street Limited and 141 Isabella Street Limited Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit the development of a 69-storey residential building Reference Number: 24 119153 STE 13 OZ Property Address: 137-141 Isabella Street Municipality/UT: Toronto/Toronto OLT Case No.: OLT-24-000923 OLT Case Name: 137 Isabella Street Ltd. and 141 Isabella Street Ltd. v. City of Toronto

Heard: December 6, 2024 by video hearing

APPEARANCES:

Parties	Counsel
137 Isabella Street Limited and 141 Isabella Street Limited	J. Park, S. Kagan
City of Toronto (“City”)	J. Davidson, A. Sandhu

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON december 6, 2024 AND ORDER OF THE TRIBUNAL

1This matter came on for a first Case Management Conference (“CMC”) on December 6, 2024. The Affidavit of Service of Notice of the CMC dated November 15, 2024 was made Exhibit 1 to this CMC.

2Mr. Robert Bernstein appeared at the CMC seeking status in this proceeding. After learning the general differences between party and participant status, he was content to seek Participant status. He lives in a condominium complex across the street from the site for which the Applicant seeks a zoning by-law amendment in this appeal, known municipally as 137-141 Isabella Street, in the City (“Subject Site”). He expressed concerns regarding this proceeding due to the large residential project planned for the Subject Site.

3There was no objection from either Party to Mr. Bernstein’s request for Participant status and the Tribunal was satisfied that it should be granted. Mr. Bernstein spoke of his condominium association’s possible interest in being a party to this proceeding and the Tribunal recommended that he tell his association that it must act very quickly to pursue this if so.

4The Parties had prepared a draft Procedural Order (“PO”) and sought an eight-day hearing, and subsequent to the CMC, submitted a final version of that PO. The Tribunal has scheduled the Hearing to commence on Monday, June 2, 2025 for a period of eight days, ending Wednesday, June 11, 2025.

5The Hearing is scheduled to proceed by video on Monday, June 2, 2025 at 10 a.m.

6Parties, Participants, and Observers are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

GoTo Meeting: https://meet.goto.com/278736685

Access code: 278-736-685

7Parties 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html

8Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497-9391 or (toll free) 1-888-455-1389. The access code is: 278-736-685.

9Individuals 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 event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

ORDER

10THE TRIBUNAL ORDERS THAT:

(a) The Procedural Order appended as Schedule 1 shall govern the conduct of this proceeding; and

(b) Robert Bernstein shall be granted Participant status.

11This Vice-Chair shall remain available to assist with case management of this matter, subject to the Tribunal’s calendar.

“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.

SCHEDULE 1

CASE NO(S).: OLT-24-000923

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

PROCEDURAL ORDER

The Tribunal may vary or add to these rules at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.
Further refinement of this Procedural Order is anticipated as the positions of the parties are refined.

Organization of the Hearing

The hearing will commence on June 2, 2025 at 10am and will be conducted virtually.
The length of the hearing will be 8 days.
The parties and participants to the hearing are set out in Attachment 1.
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 consent or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal and the other parties as soon as possible. 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.

Requirements Before the Hearing

If the Applicant intends to seek approval of a revised proposal at the hearing, the Applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, updated supporting documents and reports which it intends to rely upon, to all the Parties on or before Friday, February 14, 2025. The Applicant acknowledges that any revisions to the proposal after that date without the consent of the parties or which do not seek to scope or resolve concerns expressed in the Witness Statement(s) filed by another party, may be grounds for a request to adjourn the hearing.
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, their professional qualifications, their areas of expertise, completed Acknowledgements of Expert’s Duty, the precise area and discipline in which they will seek to be qualified to provide expert testimony, and the intended order in which the witnesses will be called during the hearing. This information must be delivered on or before Friday, January 31, 2025. Any challenge by a Party to the qualifications or expertise of a witness must be filed with the Tribunal with supporting reasons within 30 days.
Expert witnesses in the same field shall have a meeting on or before Friday, February 28, 2025 to try to resolve or reduce the issues for the hearing. Expert meetings and discussions are to be held on a without prejudice and confidential basis, except insofar as it may be necessary for an expert to seek out resources or information (e.g. consult with other experts or counsel) that may be required in order for the expert witness to comply with the duties and obligations outlined in this section. The without prejudice and confidential nature of the discussions includes not being cross-examined or examined, by any party, regarding any statements or positions that may have been made or taken during an expert meeting or discussion. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the parties by no later than Friday, March 14, 2025.
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 section 22. 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. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7.4 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other parties at the same time as the delivery of expert witness statements, as in section 22.
On or before Friday, March 28, 2025, a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing or the participant may not give oral evidence at the hearing on the content of their written statement, unless ordered by the Tribunal.
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 section 22. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section 15.
On or before Friday, March 28, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties.
On or before Friday, May 2, 2025, the parties shall provide any reply witness statements responding to any written evidence received to the other parties.
On or before Friday, May 16, 2025, the parties shall provide copies of their visual evidence to the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
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. If either party seeks to exclude or limit any written evidence, including any witness statement, it shall bring a written motion for that relief on or before Friday, May 16, 2025.
A party who provides a witness’ evidence 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 the record.
The parties shall prepare and file a hearing plan with the Tribunal on or before Friday, May 23, 2025 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.
The parties shall cooperate to prepare and file a Joint Document Book with the Tribunal on or before Friday, May 23, 2025. If a party wants a printed copy of the electronic Document Book for its own use it shall print it themselves at their own cost. It is not anticipated that the Tribunal will require a printed copy for itself but if it does, the Tribunal will print its own copy. Each party shall also provide a Book of Witness Statements by the same date.
All filings shall be submitted electronically. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. Documents may be delivered by personal delivery, registered or certified mail or email, or otherwise as the Tribunal may direct. The delivery of documents by email shall be governed by the Tribunal’s Rules (Rule 7) on this subject. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness, and except as contemplated in paragraph 9 of this Order. The Tribunal’s Rule 17 applies to such requests.
The purpose of the Procedural Order and the meaning of the terms used in the Procedural Order are set out in Attachment 4.
A summary of the various procedural dates is set out in Attachment 5.

ATTACHMENT 1

LIST OF PARTIES and participants

Parties

137 Isabella Street Ltd & 141 Isabella Street Ltd.

KAGAN SHASTRI DeMELO WINER PARK LLP 188 Avenue Road Toronto, ON., M5R 2J1 Jason Park/ Sarah R. Kagan Tel: 416- 645- 4572/ 416-368-2100 x243 jpark@ksllp.ca / skagan@ksllp.ca

City of Toronto

Legal Services Division 55 John Street, 26th Floor Station 1260 Toronto, Ontario M5V 3C6 Amrit Sandhu/ Jason Davidson Tel: 416- 338- 1617 / 416- 392- 4835 Amrit.sandhu@toronto.ca / Jason.davidson@toronto.ca

ParTICIPANTS

Robert Bernstein bernstein.bob@gmail.com

ATTACHMENT 2

ISSUES LIST

Planning Act

Do the proposed development and Zoning By-Law Amendment have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including 2(d), (j) and (r)?
Would the approval of the proposed development and Zoning By-law Amendment have regard for the decisions of City Council as required by Section 2.1 of the Planning Act?

Provincial Planning Statement

Are the proposed development and Zoning By-Law Amendment consistent with the Provincial Planning Statement (2024) as required by Section 3(5) of the Planning Act, including policies 2.1.6, 2.2, 2.3.1.2, 2.3.1.3, 3.1, 3.6.1 and 3.6.8.

City of Toronto Official Plan

Do the proposed development and Zoning By-Law Amendment conform with the policies of the City of Toronto Official Plan, including policies related to: o Public Realm 3.1.1 (3.1.1.13, 3.1.1.16) o Built Form 3.1.3 (3.1.3.1, 3.1.3.3, 3.1.3.4, 3.1.3.5, 3.1.3.6, 3.1.3.9) o Built Form – Building Typologies 3.1.4 (3.1.4.9, 3.1.4.10, 3.1.4.11) o Housing (Section 3.2.1) o Apartment Neighbourhoods (4.2) o Implementation (5.2, 5.6)?
Do the proposed development and Zoning By-Law Amendment conform with Chapter 6, Section 41 of the Official Plan being the Downtown Secondary Plan, including policies related to: o Interpretation (1.5, 1.6) o Complete Communities (3.3, 3.5, 3.18) o Built Form (9.1, 9.2, 9.3, 9.4, 9.7, 9.8, 9.9, 9.10, 9.11, 9.13, 9.14, 9.16, 9.21, 9.22, to 9.27, 9.33, 9.36) o Housing (11.1, 11.4, 11.5)?
Does the proposed development conform with Chapter 7, Site and Area Specific Policy 517 of the Official Plan, including policies B(i) (ii) and (iv)?

Land Use Planning and Urban Design

Does the proposed development meet the intent and purpose of the Tall Building Design Guidelines (2013) and the Downtown Tall Building Vision and Supplementary Design Guidelines (2012); Pet Friendly Design Guidelines and Best Practices for New Multi-Unit Buildings (2019); Growing Up Guidelines – Planning for Children in new Vertical Communities (2020).
Do the proposed development and Zoning By-Law Amendment represent a height, type massing, density and scale of development that is appropriate for the surrounding area?
Do the proposed development and Zoning By-Law Amendment provide for an appropriate transition to adjacent areas, including the lower scale Neighbourhoods to the south?
Do the proposed development and Zoning By-Law Amendment provide for appropriate separation distances to adjacent areas to mitigate issues of overlook and loss of privacy?
Do the proposed development and Zoning By-law Amendment fit appropriately within the existing and planned built form context, with regard to setbacks, step backs, scale, separation distances, street wall heights, density and building base height?
Do the proposed development and Zoning By-law Amendment appropriately mitigate wind impacts from the increased height of the development on the public realm, adjacent properties and amenity areas?
Do the proposed development and Zoning By-law Amendment appropriately mitigate shadow impacts from the increased height of the development on the public realm and St. James Town Park?

Heritage Conservation

Do the proposed development and Zoning By-law Amendment ensure that the development will be designed to conserve the heritage attributes and character of adjacent properties and to mitigate visual and physical impact on them?

Housing

Does the development have appropriate regard to Official Plan policies 3.2.1 (Housing) with respect to form, tenure, affordability and preservation of affordable and mid-range rental units?
Have satisfactory arrangements been made to comply with Section 3.2.1 of the Official Plan with respect to Rental Housing Demolition and Replacement?
Do the proposed development and Zoning By-Law Amendment provide an appropriate size of dwelling units?
Do the proposed development and Zoning By-Law Amendment provide an appropriate mix of dwelling unit types in conformity with the Downtown Secondary Plan?
Does the proposed development meet the intent and purpose of the Growing Up: Planning for Children in New Vertical Communities, Urban Design Guidelines (2020)?
Does the proposed development meet the intent and purpose of the Pet Friendly Design Guidelines and Best Practices for New Multi-Unit Buildings (2019)?

Amenity Space

Do the proposed development and Zoning By-law Amendment provide for sufficient indoor and outdoor amenity space?

Servicing, Access and Loading

Do the proposed development and Zoning By-Law Amendment have adequate municipal services in place to support the development, including the availability of adequate sanitary, storm and water capacity, including water pressure, and the implementation of appropriate stormwater management measures and groundwater management measures?
Should any improvements to the municipal infrastructure be required to support the proposed development, should the Zoning By-Law Amendment contain a (H) provision to that effect?
Does the proposed development provide appropriate and adequate amount of accessible parking spaces and car share spaces?
Does the proposed development provide appropriate and adequate access to the loading/servicing area?
Does the proposed development provide for adequate loading to support the development?

Public Interest, Good Planning, and Good Urban Design

Is the proposed Zoning By-law Amendment good planning and in the public interest?
Is the proposed Zoning By-law Amendment good urban design and in the public interest?

Implementation

If the requested Zoning By-law Amendment is approved by the Tribunal, in whole or in part, should the Tribunal's final order be withheld until it has been advised by the City Solicitor that:

a. the proposed Zoning By-law Amendment is in a final form and content satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor; and

b. the Owner has, at its sole expense:

i. submitted a revised Functional Servicing Report and Stormwater Management Report, Hydrogeological Review, including the Foundation Drainage Report ("Engineering Reports") to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services, in consultation with the General Manager, Toronto Water;

ii. secured the design and provision of financial securities for any upgrades or required improvements to the existing 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 and the General Manager, Toronto Water, should it be determined that improvements or upgrades are required to support the development, according to the accepted Engineering Reports, accepted by the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Toronto Water;

iii. implemented the accepted Engineering Reports and any required changes have been made to the proposed amending By-laws to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, including the use of a Holding ("H") By-law symbol regarding any new or upgrades to existing municipal servicing infrastructure, as may be required;

iv. submitted a revised Pedestrian Level Wind Study, acceptable and satisfactory to the Director, Community Planning, Toronto and East York District;

v. City Council has approved Rental Housing Demolition Application 24 119156 STE 13 RH under Chapter 667 of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006 to permit the demolition of the existing rental housing, and the owner has entered into, and registered on title to the lands, one or more agreements with the City, to the satisfaction of the City Solicitor, and the Chief Planner and Executive Director, City Planning, securing all rental housing-related matters necessary to implement City Council’s decision including:

(i) replacement of the existing 61 rental dwelling units, including the same number of units, bedroom type and size and with similar rents; and

(ii) an acceptable Tenant Relocation and Assistance Plan addressing the right for existing tenants to return to a replacement rental unit on the lands at similar rents, the provision of rent gap assistance, and other assistance to lessen hardship, all to the satisfaction of the Chief Planner and Executive Director, City Planning.

ATTACHMENT 3

ORDER OF EVIDENCE

137 Isabella Street Ltd. & 141 Isabella Street Ltd.
City of Toronto
137 Isabella Street Ltd. & 141 Isabella Street Ltd. In reply

ATTACHMENT 4

Purpose of the Procedural Order and Meaning of Terms

The Tribunal recommends that the parties meet to discuss this sample Order before the Case Management Conference to try to identify the issues and the process that they want the Tribunal to order following the conference. The Tribunal will hear the parties’ comments about the contents of the Order at the conference.

Case Management Conferences usually take place only where the hearing is expected to be long and complicated. If you are not represented by a lawyer, you should prepare by obtaining the Guide to the Ontario Land Tribunal, and the Tribunal’s Rules, from the Tribunal Information Office, 15th Floor, 655 Bay Street, Toronto, M5G 1E5, 416-212-6349, or from the Tribunal’s website at https://olt.gov.on.ca/about-olt/.

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 authorization 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.

ATTACHMENT 5

Summary of Filing Dates

EVENT	DATE
Case Management Conference	Friday, December 6, 2024
Final Issues List due	Friday, December 6, 2024
Parties to exchange their List of Witnesses	Friday, January 31, 2025
Deadline to file revised plans	Friday, February 14, 2025
Deadline for Meeting of Like Experts	Friday, February 28, 2025
Deadline to file Statement of Agreed Facts and Issues	Friday, March 14, 2025
Parties to exchange their Witness and Expert Witness Statements Participants to provide their Participant Statements	Friday, March 28, 2025 Friday, March 28, 2025
Parties to exchange their Reply Witness Statements	Friday, May 2, 2025
Parties to exchange their Visual Evidence	Friday, May 16, 2025
Parties to File Joint Document Book Parties to File Preliminary Hearing Plan	Friday, May 23, 2025 Friday, May 23, 2025
Hearing commences	June 2, 2025