Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 21, 2024

CASE NO(S).: OLT-23-000869 OLT-23-000872

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

Applicant/Appellant: Casa Loma Residents Association Subject: Proposed Official Plan Amendment No. 658 Description: To permit the development of an 8-storey residential building Reference Number: 22 137948 STE 12 OZ Property Address: 555 Davenport Rd. Municipality/UT: Toronto/Toronto OLT Case No: OLT-23-000869 OLT Lead Case No: OLT-23-000869 OLT Case Name: Casa Loma Residents Association v. Toronto (City)

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

Applicant/Appellant: Casa Loma Residents Association Subject: By-law No. 738-2023 Description: To permit the development of an 8-storey residential building Reference Number: 22 137948 STE 12 OZ Property Address: 555 Davenport Rd. Municipality/UT: Toronto/Toronto OLT Case No: OLT-23-000870 OLT Lead Case No: OLT-23-000869

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

Appellant: Casa Loma Residents Association Subject: By-law No. 438-86 Description: To permit the development of an 8-storey residential building Reference Number: 22 137948 STE 12 OZ Property Address: 555 Davenport Rd. Municipality/UT: Toronto/Toronto OLT Case No.: OLT-23-000871 OLT Lead Case No.: OLT-23-000869

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

Applicant/Appellant: Casa Loma Residents Association Subject: Proposed Official Plan Amendment No. 657 Description: To permit the development of an 8-storey residential building Reference Number: 22 137948 STE 12 OZ Property Address: 500 Macpherson Avenue Municipality/UT: Toronto/Toronto OLT Case No: OLT-23-000872 OLT Lead Case No: OLT-23-000872 OLT Case Name: Casa Loma Residents Association v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: 500 Macpherson Avenue Holdings and 555 Davenport Road Holdings Limited Request for: Request for Directions

Heard: January 9, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Casa Loma Residents Association (Appellant)

Richard Macklin Haya Sardar (Articling Student)

555 Davenport Holdings Ltd. (Applicant) City of Toronto

David Bronskill Caroline Jordan Cameron McKeich Jessica Braun (in absentia)

DECISION DELIVERED BY G.A. CROSER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) to be heard on the appeals by the Casa Loma Residents Association (“CLRA”) of the City of Toronto (“City”) adoption of Official Plan Amendments and Zoning By-law Amendments that were required to permit the redevelopment of two properties located at 500 Macpherson Avenue (“Macpherson Property”) and 555 Davenport Road (“Davenport Property”).

2The Appellant, CLRA, originally filed six appeals (“Appeals”): three for the Macpherson Property, and three for the Davenport Property. Prior to the CMC, the CLRA withdrew its appeals of the Zoning By-law Amendments for the Macpherson Property. On the day before the CMC, the CLRA notified the Tribunal of its intent to withdraw its appeal of the Official Plan Amendment for the Macpherson Property, OLT File No. OLT-23-000872. This was confirmed by the Appellant’s Counsel, Mr. Richard Macklin, at the CMC. Thus, the following are the subject of the Appeals to the Tribunal:

a. Official Plan Amendment No. 658 regarding 555 Davenport Road; and

b. Zoning By-law Amendments No. 738-2023 and No. 739-2023 regarding 555 Davenport Road.

BACKGROUND

3The Davenport Property is located on the southeast corner of Davenport Road and Kendal Avenue, across the street from the Casa Loma grounds. The existing two- to three-storey (2 – 3-storey) building on site was completed in or around 1930, and was originally occupied by Baker’s Bread Limited. More recently, the building was part of the George Brown College Casa Loma campus before being sold off as surplus. The site is zoned Institutional.

4555 Davenport Holdings Ltd. (the “Applicant”) filed an application with the City to facilitate the redevelopment of the site with an 8-storey residential building (the “Application”). A second 8-storey building is planned for the Macpherson Property. The Application required an Official Plan Amendment, that being OPA 658, to change the zoning from Institutional to Apartment Neighbourhood and Zoning By-law Amendments Nos. 738-2023 and 739-2023 to the City’s Zoning By-laws 569-2013 and 438-86. City staff provided a report recommending approval of the Applications, the Toronto and East York Community Council recommended the approval which was subsequently adopted by the City.

REQUESTS FOR STATUS

5A request for Participant Status was made by Adam Wynne on the eve of the CMC. Counsel for the Applicant, Mr. David Bronskill, noted that Mr. Wynne raised questions of heritage significance and asked that the consideration of status for Mr. Wynne be paused until the second CMC to provide opportunity to consider and review the request. There were no objections to this request and the Tribunal found it appropriate to delay its consideration of this request.

MOTION TO DISMISS

6On or about December 15, 2023, the Applicant provided notice of its intention to bring a Motion to Dismiss (“Motion”) at the CMC. Notice of this Motion was made in accordance with the Tribunal’s Rules of Practice and Procedure (“Rules”). The Motion was heard at the CMC and the Tribunal reserved its decision.

7The Applicant/Moving Party seeks an Order of the Tribunal dismissing the Appellant’s Appeals without a full Hearing pursuant to s.17(45) and s.34(25) of the Planning Act (“Act”). The Applicant brings this Motion on the grounds that the Appeals:

a. do not disclose any apparent land use planning ground on which the Tribunal could allow all or part of the Appeals; and

b. are not made in good faith or are frivolous or vexatious.

8In the alternative, the Applicant seeks an Order of the Tribunal pursuant to subsection 19(1)(c) of the Ontario Land Tribunal Act (“OLTA”) dismissing the Appeals on the basis that they have no reasonable prospect of success.

9The Tribunal heard oral submissions from Counsel and the following materials were filed as Exhibits at the CMC:

• Exhibit 1: Affidavit of Service of Raneisha Hemmings dated December 7, 2023
• Exhibit 2: Motion Record of 555 Davenport Holdings Inc.
• Exhibit 3: Book of Authorities of 555 Davenport Holdings Inc.
• Exhibit 4: Responding Motion Record of Casa Loma Residents Association
• Exhibit 5: Responding Book of Authorities of Casa Loma Residents Association
• Exhibit 6: Email confirming CLRA withdrawal of its appeal of the Official Plan Amendment for the Macpherson Property, dated January 8, 2024.

Statutory Regime

10The Act and the OLTA establish criteria for the consideration of dismissing appeals without a full hearing. The relevant sections are set out in paragraph 11 below.

11Section 17(45) of the Act provides the following:

Despite the Statutory Powers Procedure Act and subsection (44), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that, i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal, ii. the appeal is not made in good faith or is frivolous or vexatious, iii. the appeal is made only for the purpose of delay, or iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.
2. The appellant has not provided written reasons with respect to an appeal under subsection (24) or (36).
3. The appellant intends to argue a matter mentioned in subsection (25.1) or (37.1) but has not provided the explanations required by that subsection.
4. The appellant has not paid the fee charged by the Tribunal.
5. The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.

Section 34(25) of the Act provides the following:

Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that, i. the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all of part of the appeal, ii. the appeal is not made in good faith or is frivolous or vexatious, iii. the appeal is made only for the purpose of delay, or iv. the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.
2. The appellant has not provided written reasons for the appeal.
3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.
4. The appellant has not paid the fee charged by the Tribunal.
5. The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.

Section 34(19.0.1) of the Act provides the following:

If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the decision is inconsistent with, fails to conform with or conflicts with the other document.

Section 19(1) of the OLTA states:

Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing, (c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

12The grounds for dismissing an appeal are disjunctive. In other words, only one of the several grounds set out in the Act and the OLTA must be satisfied to warrant dismissing an appeal.

13The submissions made at the Motion focused on three issues:

a. The protection of scenic view to and from the Escarpment and the Casa Loma/Spadina House Complex.

b. The lack of conformity with the City’s Mid-Rise Building Performance Standards.

c. The heritage value and protection of the existing building at 555 Davenport.

14The Appellant also raised concerns over the City’s process in reaching a decision on the proposed redevelopment, breaches of natural justice, and allegations of “back-room dealing”. However, the Tribunal was clear that such matters were not issues rooted in specific provisions of the Act or planning policy documents and as such would not be considered by the Tribunal, nor was it appropriate for Counsel to question City staff’s motives and internal processes.

Issue 1: Protection of Scenic Views

15A point of contention between the Parties at the Motion related to the interpretation and scope of City protected views. Chapter 7 of the City’s OP contains site and area specific policies, known as SASPs, that apply to specifically delineated areas in the City. SASPs generally vary from one or more of the provisions of the City’s Official Plan and often require a further layer of local policy direction for a specific area. B1 of Schedule 4 of the City OP describes the protected skyline views identified in Maps 7a and 7b of Chapter 7. The views listed in Schedule 4 are subject to the policies set out in s.3.1.1 of the City OP, which addresses ‘The Public Realm.’

16The Applicant’s position was that the CLRA had made inconsistent and inaccurate claims regarding the protection of scenic views to and from the Escarpment and Casa Loma/Spadina House complex. The Applicant stated that Site and Area Specific Policy 264 (“SASP 264”) must be read in conjunction with Schedule 4 of the City’s Official Plan (“City OP”). Mr. Bronskill submitted that Schedule 4 specifies which views require protection which included skyline views in the vicinity of the Escarpment and Casa Loma/Spadina House. The Applicant’s position was that the Schedule 4 protected views would not be negatively impact by the redevelopment of the Davenport Property with an 8-storey building.

17Mr. Bronskill also noted that the City had confirmed during its Application review process that the Application had no impact on protected views and that the proposed massing was appropriate. Mr. Bronskill stated that if a particular view from a particular vantage point is to be protected, then the Tribunal was not the vehicle for that desire.

18The Applicant pointed out that the Appellant’s planner, Mr. Terry Mills, acknowledged that the procedure for protecting a specific view is to apply for an Official Plan Amendment. Mr. Bronskill took the Tribunal to policy 3.1.1(25) in the City OP which states,

Views from the public realm to prominent, buildings, structures, landscapes and natural features identified on Maps 7a and 7b are important and are described in Schedule 4. Additional views from the public realm to prominent buildings, structures, landscapes and natural features may be added to Maps 7a and 7b and Schedule 4 through amendment to the Official Plan.

19Mr. Bronskill then drew the Tribunal’s attention to the sidebar in policy 3.1.1(24) of the City OP that acknowledges that Maps 7a and 7b “identify a selection of important views across the City” and that these maps are “living documents, which may be added to or modified from time-to-time through an Official Plan Amendment.”

20The Appellant described the Casa Loma area as unique, and that Casa Loma was an iconic city symbol that was important to local tourism and business. Mr. Macklin’s view was that SASP 264 was not obviated by Schedule 4 of the City OP, and that there was no case law to suggest otherwise. It was the Appellant’s submission that Schedule is a baseline; the core of the protected views and that those are immutable and cannot be blocked. Mr. Macklin submitted that SASP 264 had been “glossed over” by the City, and that the views protected by SASP 264 were not restricted to those from the Baldwin Steps or from the South Terrace of Casa Loma.

21The Appellant’s argument was that buildings in this area must be of a low to moderate scale that respects and does not detract from the views of the downtown skyline or of Casa Loma. The Appellant’s planner in his written material opined that SASP 264 applied to the redevelopment of the Davenport Property and that the proposed building would block views and the skyline that were protected by SASP 264. The Appellant’s position was that Schedule 4 was a general document that they considered to be non-exhaustive, and that a general policy document cannot obviate a site-specific policy.

Issue 2: The lack of conformity with the City’s Mid-Rise Building Performance Standards

22Mr. Bronskill posited that the CLRA had fundamentally misapplied the City’s Mid-Rise Building Performance Standards (“Mid-Rise Guidelines”). That the Mid-Rise Guidelines were not a zoning by-law and therefore could not be used to establish a maximum height requirement for the proposed development. Further, Mr. Bronskill submitted that the proposed development did, in fact, meet the intent of the requisite performance standards, that Davenport was a major street with a planned right of way width of 20 metres.

23The Appellant took the view that this was a cumulative effect and disagreed with the Applicant’s classification of Davenport Road. Mr. Macklin submitted that if SASP 264 was breached, then the Mid-Rise Guidelines should not be breached. The Appellant’s position was that the proposed redevelopment would be 50% higher than what was permissible by policy. That the maximum height set in the applicable zoning bylaw was 14 metres and that the proposed building height of 30.5 metres was over 50% higher than what was permitted.

24With respect to proposed height of the new residential building and the preservation of City views, Mr. Macklin argued that these grounds are linked. The proposed building was too high, and it would block views in an area of the City where views are protected by City policy. Mr. Macklin submitted that the issues with respect to height and view were not mere apprehensions but were based on real planning instruments that were supported by an expert planner.

Issue 3: The heritage value and protection of the existing building at 555 Davenport.

25The Tribunal was informed that the existing building was not listed on the City’s Heritage Register and that no appeal had been made to the Tribunal with respect to provisions of the Ontario Heritage Act (“OHA”). The Applicant submitted that the CLRA has suggested that the Building merited designation. However, the Applicant pointed out that the Tribunal does not have the authority to make such a designation and cannot compel the City to pass a designating by-law. Mr. Bronskill pointed out that the consultant who evaluated the Building under the applicable regulation was of the view that preservation of the entire building was not warranted. In the City’s Staff Report preservation was contemplated; however, based on the condition of the Building it was determined that, under Part IV of the OHA, the designation of the Building was not appropriate. The Applicant argued that Policy 3.1.6.2 in the City OP sets out the process for determining cultural heritage value or interest. It is not a standalone policy and further, as the Building is not listed in the Heritage Register, those policies in Policy 3.1.6 of the City OP concerning Heritage Conservation do not apply.

26The Appellant’s position was that heritage is a live issue, that is in the OP and forms part of planning. Mr. Macklin noted that heritage was “front and centre” in the City Staff Report and that the Appellant was challenging the “cumulative effect of the errors” made by the City with respect to the proposed development. Mr. Macklin stated that the planned commemoration of the original building was insufficient and that the role of the Tribunal was to act as a “check” in the planning process. The Applicant’s position was that the Building did not need to be a heritage designated structure to form part of the planning process. Mr. Macklin also pointed out that the Appellant did not have to “win” the Appeal at the CMC, only demonstrate that there was substantive evidence in support of the issues raised that were worthy of the adjudicative process.

Position of the City

27Mr. Cameron McKeich spoke on behalf of the City and stated that the City was not taking a formal position on the appeal. Mr. McKeich made some general comments on the Application. He stated that for every application the staff evaluate and review the reports provided to them and provide advice to Council in the form of a report. The focus should be on the decision of Council and the materials before it and that it was not appropriate to speculate on internal processes and staff technical review process as “views can evolve on any development.”

ANALYSIS

28The Tribunal’s authority for dismissing an official plan amendment appeal and/or a zoning by-law amendment appeal can be found in s. 19(1) of the OLTA, s. 17(45) and s. 34(25) of the Act, which are set out above. The moving party in a Motion to Dismiss need only demonstrate that one of the grounds for dismissal have been satisfied.

29When deciding whether to dismiss an appeal without a hearing, the Tribunal is guided by the oft-cited decision in East Beach where, in considering s. 17(45)(a)(i) and s. 34(25)(a)(i) of the Act, the Ontario Municipal Board (“OMB”) provided the following guidance:

… The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case. This does not allow the Board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with ironclad reason for fear of being struck down. What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process.

… it is our finding that it is not good enough to simply raise apprehension. It would not constitute apparent planning ground by saying that further expert study is required with the hope that once a hearing is convened, more real issues can come forth. Such an approach will never lead to any finality, no matter how careful and sound an opinion is founded.

30The East Beach Case established that the threshold to dismiss is a high one and that the decision to dismiss an appeal requires serious consideration of the circumstances of each case. At the same time, for an appeal to have merit it must disclose whether any apparent planning grounds on which an appeal may be allowed or refused.

31It is clear to the Tribunal that the Appellant’s appeal was not made in bad faith and this avenue was not pursued by the Applicant at the Motion. The CLRA is represented by experienced legal counsel and have retained a land use planning expert to assist with the appeal. It was mentioned during the CMC that the CLRA has been in communication with the Applicant, provided timely materials in response to the Motion, attended the CMC, and made oral submissions on the Motion. The Tribunal finds that the CLRA has not acted in a frivolous or vexatious manner with respect to the Appeals. The questions then that the Tribunal must consider are these: Has the Appellant raised any valid land use planning grounds to ground their appeal and/or do those grounds have any reasonable prospect of success?

32The Tribunal acknowledges that the conservation of the Building and the proposed heritage alteration is important to the Appellant. However, there are no OHA matters before the Tribunal and Mr. Macklin acknowledged during the CMC that the “ship had sailed” with respect to the heritage designation of the Building. The Appellant was unable to point the Tribunal towards policies in the OP or in any provincial policy document that suggest that the planned degree of commemoration of a structure - not protected by a heritage designation - was a valid land use planning ground. There was no s.29(5) objection under the OHA to the Tribunal. If such an objection had been filed, then the decision still lies with the City; the Tribunal cannot compel the City to enact a designating by-law. In short, the Appellant cannot use an appeal under the Act to secure a right under the OHA.

33The question then turns to the proposed height of the new development and whether new buildings constructed in the vicinity of Casa Loma should be built solely at a scale that maintains the views of the downtown skyline from any public vantage point in that area. The position of the Applicant is that the Appellant is seeking to protect a view that is not required to be protected by policy. Whereas the Appellant’s position is that SASP 264 is not obviated by Schedule 4 and that there is no case law on this point.

34While alleged inconsistency in policies or questions of statutory interpretation should be tested at a hearing on the merits, the Tribunal was not convinced that was warranted in this case. The Tribunal finds that there is an existing framework in place to protect and secure scenic views from certain vantage points in the City. While the Davenport Property may be located within a SASP, that reason alone does not provide blanket protection of every view from every single vantage point in that area.

35The Appellant may be presenting a novel legal argument with respect to the protection of views of the downtown skyline; however, the issue lacks substance if it is not grounded in the applicable policies. Further, the lack of definitive case law on the matter does not necessary equate with a valid land use planning issue. In this case, the Appellant’s planner acknowledged that the specific view the Appellant wants to preserve is not currently protected by City policy and that the addition or modification of protected views in the City is achieved through an Official Plan Amendment application. While Mr. Mills may find that an ‘oversight’, it does not change the factual matrix before the Tribunal. Tribunal finds that SASP 264 must be read with Schedule 4 of the City OP, which specifies which views require protection.

36The Tribunal also notes that the CLRA produced no evidence that it had applied to the City for an Official Plan Amendment to protect different views of the downtown skyline from the area around Casa Loma, or views of Casa Loma from lower vantage points along Davenport Road that were not already specifically listed in Schedule 4. Nor did the CLRA point to any inconsistencies within the applicable City OP policies. All concerns raised by the Appellant were extensively studied and analyzed as reflected in various plans and reports filed by the Applicant and the City. The Tribunal accepts the position of the Applicant and the City, that no protected views will be impacted by the planned redevelopment of the Davenport Property.

37The Tribunal was provided no written or oral submissions from the Appellant with respect to its appeal of OPA 658, being the rezoning of the Davenport Property from Institutional to Apartment Neighbourhoods.

FINDINGS

38After careful consideration of the materials presented by the Parties and their submissions, the Tribunal finds that the appeal of OPA 658 was not based on a valid land use planning ground and that the appeals of Zoning By-law Amendments Nos 738-2023 and 739-2023 were not based on demonstrably substantive evidence and had no reasonable prospect of success. As such, these files are appropriate for dismissal pursuant to s. 17(45)(1)(i), (2) and (3), s. 34(25)(1)(i), (2) and (3) of the Act and s. 19(1)(c) of the OLTA.

39Based on this finding the Tribunal will release the Hearing Dates that were scheduled at the CMC, as it is no longer required.

ORDER

40UPON APPEALS to this Tribunal by the Casa Loma Residents Association of the passing of Official Plan Amendment 658 by the City of Toronto and the passing of Zoning By-law Amendments No. 438-86 and No. 739-2023 of the City of Toronto.

41AND UPON the motion to the Ontario Land Tribunal for an Order dismissing the appeal(s) without holding a public hearing under subsection 19(1) of the Ontario Land Tribunal Act, and the Tribunal having provided the appellant(s) with the opportunity to

provide the information requested in accordance with subsection 19(2) of the Act, and

the Tribunal having considered the response by the Appellant;

THE TRIBUNAL ORDERS that the Appeals by Casa Loma Residents Association are dismissed.

“G.A. Croser”

G.A. CROSER MEMBER

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.