Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 08, 2024

CASE NO(S).: OLT-24-000092, OLT-24-000400

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A

Applicant/Appellant: Sherbourne Community Clinic Inc.

Subject: Site Plan

Description: To permit a 42-storey mixed-use building

Reference Number: 21 235164 STE 13 SA

Property Address: 410 Sherbourne Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000092

OLT Lead Case No.: OLT-24-000092

OLT Case Name: Sherbourne Community Clinic Inc. v. City of Toronto

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

Appellant: Sherbourne Community Clinic Inc.

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

Description: ZBA - Amend ZBA application to permit construction of 42-storey mixed use building

Reference Number: 21 235163 STE 13 OZ

Property Address: 410 Sherbourne Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000400

OLT Lead Case No.: OLT-24-000400

OLT Case Name: Sherbourne Community Clinic Inc. v. Toronto (City)

Heard: June 6, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Sherbourne Community Clinic Inc.	Christopher Tanzola, Michael Cara
City of Toronto	Jyoti Zuidema, Adam Ward
The Governing Council of the Salvation Army in Canada	Max Reedijk
Toronto Catholic District School Board	Tara Piurko

MEMORANDUM OF ORAL DECISION DELIVERED BY ASTRID J. CLOS AND N. ALLAM ON JUNE 6, 2024 AND ORDER OF THE TRIBUNAL

1This was the first Case Management Conference (“CMC”) convened for appeals brought by Sherbourne Community Clinic Inc. (“Applicant/Appellant”) pursuant to s. 34(11) of the Planning Act of the Zoning By-law Amendment (“ZBA”) and pursuant to s. 114(15) of the City of Toronto Act of the Site Plan (“SP”) for the property municipally addressed as 410 Sherbourne Street in the City of Toronto (“Subject Property”).

2The Subject Property has approximately 50.38 metres (“m”) of frontage on the west side of Sherbourne Street and is located south of Wellesley Street East and north of Carlton Street. The Subject Property has an approximate area of 2,316 square metres (“m²”). The Subject Property is currently occupied by a four-storey medical office building and a music venue (Phoenix Concert Theatre).

3The purpose of the ZBA and SP is to permit a 42-storey mixed-use building with approximately 240 m² of ground-level commercial space and residential uses above (“Proposed Development”). Approximately 473 residential units are proposed. The ZBA application proposes to amend the City of Toronto Zoning By-law 569-2013, and the former City of Toronto Zoning By-law 438-86 to permit building height, density and other site-specific development standards to implement the Proposed Development.

4The ZBA was deemed complete by the City on December 13, 2021. The City Decision Report dated October 25, 2023 recommended approval of the ZBA.

5The Applicant subsequently appealed the ZBA and SP as the approval authority refused the ZBA application and did not make a decision within the statutory timeline for the SP application.

6Christopher Tanzola advised that the settlement offer made by the Applicant to the City was approved by City Council on May 6, 2024.

7The Affidavit of Service sworn on May 16, 2024 was entered as Exhibit 1.

STATUS REQUESTS

8In response to the notice, requests for Party status were filed by the Toronto Catholic District School Board (“School Board”) and The Governing Council of the Salvation Army in Canada (“Salvation Army”).

9Christopher Tanzola, Counsel for the Applicant/Appellant, advised that his client does not object to these requests based on the issues raised in the Party status requests filed with the Tribunal. The Parties agreed to work together to create an Issues List based on these documented issues. Mr. Tanzola also advised that the settlement offer made by his client to the City had been approved by Council on May 6, 2024. On that basis, Jyoti Zuidema, Counsel for the City, confirmed that her client would not have any issues to include in the Issues List.

10A request for Party status for both the ZBA and SP was filed by Tara Piurko, Counsel for the School Board. Ms. Piurko advised that her client’s property is located to the north of the Subject Property. Ms. Piurko submitted that if a settlement cannot be reached she does intend to call expert evidence, potentially co-retained with the Salvation Army if their objectives are in alignment. At this time, Ms. Piurko was requesting that the ZBA Party status be granted. The Panel reviewed the request and determined that reasonable grounds and genuine land use planning issues were being raised and with no opposition from the other Parties granted the requested Party status to the Toronto Catholic District School Board related to the ZBA. The SP Party status request may be considered prior to the SP Merit Hearing being scheduled.

11The request for Party status for the ZBA was filed by Max Reedijk, Counsel for the Salvation Army. Mr. Reedijk advised that his client’s property is located directly to the north of the Subject Property. Mr. Reedijk confirmed that co-retained expert evidence with the School Board may be led at the Merit Hearing. However, Mr. Reedijk wished to be very clear that his client retains the ability to call their own expert witnesses should they deem that to be necessary to fully make their case. The Panel reviewed the request and determined that reasonable grounds and genuine land use planning issues were being raised and with no opposition from the other Parties granted the requested Party status to The Governing Council of the Salvation Army in Canada related to the ZBA.

12In response to the notice, no requests for Participant status had been filed with the Tribunal.

SITE PLAN APPEAL

13Mr. Tanzola requested that the Site Plan appeal be adjourned until the determination of the ZBA. Once the Tribunal has adjudicated the ZBA matter, Mr. Tanzola advised that his client then would request that a Hearing be scheduled for the SP.

14The Tribunal canvassed the Parties who confirmed that their clients have no objection to the SP appeal being adjourned until the determination of the ZBA. The Panel considered the request and ordered that the SP be adjourned until the ZBA has been adjudicated, in accordance with Rule 16.1 of the Ontario Land Tribunal Rules of Practice and Procedure.

MERIT HEARING

15The Parties jointly requested that a four-day Merit Hearing be scheduled. The Panel canvassed the availability of Counsel and accordingly scheduled a four-day Merit Hearing to commence at 10 a.m. on Tuesday September 10, 2024, and continue to Friday, September 13, 2025 by Video Hearing. If issues are scoped or further settlements are achieved resulting in fewer hearing days being required, please advise the Case Coordinator as soon as this is known. Hearing dates are a scarce public resource that must be carefully assigned.

16Parties are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:

GoTo Meeting: https://global.gotomeeting.com/join/656004293

Access code: 656-004-293

17Parties 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 GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

18Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is the same as the access code noted above.

19Individuals 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 Video Hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

DRAFT PROCEDURAL ORDER

20The Parties filed the draft Procedural Order (“PO”) on Friday, June 21, 2024. The Panel approved the PO, attached as Schedule 1 to the Order.

21The Panel reminded the Parties that Tribunal-led mediation is available at their convenience by contacting the Case Coordinator.

ORDER

22The Tribunal orders THAT:

a. Site Plan appeal (OLT Case File No. OLT-24-000092) is adjourned until the determination of the Zoning By-Law Amendment appeal (OLT Case File No. OLT-24-000400);

b. Party status for the Zoning By-Law Amendment appeal is granted to the Toronto Catholic District School Board and The Governing Council of the Salvation Army in Canada;

c. The Procedural Order appended as Schedule 1 is approved; and

d. A four-day Merit Hearing commencing at 10 a.m. on Tuesday, September 10, 2024, continuing to Friday, September 13, 2024 by Video Hearing is scheduled.

23This Panel is not seized.

24No further notice will be provided.

“Astrid J. Clos”

ASTRID J. CLOS MEMBER

“N. Allam”

N. ALLAM 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.

SCHEDULE 1

CASE NO(S).: OLT-24-000400

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

Appellant: Sherbourne Community Clinic Inc.

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

Description: ZBA - Amend ZBA application to permit construction of 42-storey mixed use building

Reference Number: 21 235163 STE 13 OZ

Property Address: 410 Sherbourne Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000400

OLT Lead Case No.: OLT-24-000400

OLT Case Name: Sherbourne Community Clinic Inc. v. Toronto (City)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the Parties’ request or its own motion.

Organization of the Hearing

2. The virtual hearing will begin on Tuesday September 10, 2024 at 10:00 a.m. at:

GoTo Meeting: https://global.gotomeeting.com/join/656004293

Access code: 656-004-293

Audio-only telephone line: +1 (647) 497-9373 or (Toll Free) 1-888-299-1889

Access code: 656-004-293

3. The length of the hearing will be 4 days. The Parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues, where possible. The procedural order deadlines are generally found in Attachment 1.

4. The Parties identified at the Case Management Conference are listed in Attachment 2 to this Order.

5. The Issues are set out in the Issues List attached as Attachment 3 to this Order. The Parties will attempt to resolve the issues prior to the hearing on the merits of the appeal. There will be no changes to the Issues List unless the Tribunal permits, and a Party who asks for changes may have costs awarded against it.

6. The order of evidence is set out in Attachment 4 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, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.

8. If the hearing is to proceed electronically, any person who intends to participate in the hearing, including Parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website. (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

9. A Party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other Parties a list of the witnesses and the order in which they will be called. This list must be delivered at least sixty (60) calendar days before the hearing (on or before Friday July 19, 2024). For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and is to provide a copy of their curriculum vitae. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal's Rules and notice of same must be served on the other Parties (on or before Wednesday July 24, 2024). [10 days after witness lists are exchanged]

10. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing, the acknowledgement of expert's duty and curriculum vitae. Copies of this must be provided, as in paragraph 12. 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 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 Town, such report(s) shall be provided to the other parties at the same time as the delivery of expert witness statements, as in paragraph 12.

11. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence, as in paragraph 12.

12. At least thirty-five (35) calendar days prior to the scheduled commencement of the hearing (on or before Tuesday August 13, 2024), the Parties shall provide copies of their witness and expert witness statements to the other Parties and to the Tribunal case coordinator and in accordance with paragraph 20 below.

13. At least thirty (35) calendar days prior to the scheduled commencement of the hearing (on or before Tuesday August 13, 2024), the Parties shall confirm with the Tribunal if all the hearing dates are still required.

14. At least twenty (20) calendar days prior to the scheduled commencement of the hearing (on or before Friday August 23, 2024), the Parties shall provide copies of their written response(s) to any written evidence to the other Parties and to the Tribunal in accordance with paragraph 20 below.

15. At least fifteen (15) calendar days prior to the scheduled commencement of the hearing (on or before Monday August 26, 2024), the Parties shall file with the Tribunal a detailed Work Plan that identifies the following, at a minimum: the Parties participating in the hearing, preliminary matters to be addressed (if any), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for examination in chief, cross-examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event. In the event of a disagreement between the Parties about the Work Plan, the Tribunal may be spoken to.

16. The Parties shall prepare a Joint Document Book on or before (on or before Thursday August 29, 2024), (15 days before the hearing is scheduled to commence). All Parties must be served with the Joint Document Book in paper or an accessible electronic format in accordance with paragraph 20 below.

17. At least fifteen (15) calendar days prior to the scheduled commencement of the hearing (on or before Thursday August 29, 2024), the Parties shall provide copies of their visual evidence to the other Parties and the Tribunal in accordance with paragraph 20 below.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with Rule 10 of the Tribunal’s Rules.

19. A Party who provides a witness' written 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 their record.

20. All filings shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal will be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable should it request same. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7 of the Tribunal’s Rules. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, or as may be amended.

21. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. Rule 17 of the Tribunal’s Rules shall apply to such requests.

22. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

23. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF DATES

DATE	EVENT
Friday July 19, 2024 (53 days prior to hearing)	Exchange of Witness Lists
Wednesday July 24, 2024 (48 days prior to hearing)	Deadline to Challenge Witnesses or Qualifications
Tuesday August 13, 2024 (28 days prior to hearing)	Exchange of Witness Statements and Experts Reports, and summoned witness outlines (if any)
Tuesday August 13, 2024 (28 days prior to hearing)	Parties to Advise if Hearing Dates Can be Released
Friday August 23, 2024 (18 days prior to hearing)	Exchange of Reply Witness Statements (if any)
Thursday August 29, 2024 (12 days prior to hearing)	Filing of Work Plan and Joint Document Book
Thursday August 29, 2024 (12 days prior to hearing)	Exchange of Visual Evidence (if any)
Tuesday September 10, 2024 – Friday September 13, 2024	Hearing

ATTACHMENT 2

LIST OF PARTIES

A. PARTIES	Counsel/*Agent

1. Sherbourne Community Clinic Inc. | Chris Tanzola / Michael Cara
   Overland LLP
   Yonge Norton Centre
   5255 Yonge Street, Suite 1101
   Toronto, ON M2N 6P4
   Email: ctanzola@overlandllp.ca / mcara@overlandllp.ca
   Tel: 416.730.0645 / 416.730.8844
2. City of Toronto | Jyoti Zuidema / Adam Ward
   The City of Toronto, Legal Services
   Metro Hall, 55 John Street 26th Floor Toronto, ON M5V 3C6
   Email: jyoti.zuidema@toronto.ca / adam.ward@toronto.ca
   Tel: 416.338.0800 / 416.394.2787
3. Toronto Catholic District School Board | Tara Piurko
   Miller Thomson LLP
   Scotia Plaza
   40 King Street West, Suite 5800
   Toronto, ON M5H 3S1
   Email: tpiurko@millerthomson.com
   Tel: 416.595.2647
4. The Governing Council of the Salvation Army in Canada | Joseph Debono / Max Reedijk
   Dentons Canada LLP
   77 King Street West, Suite 400
   Toronto, ON M5K 0A1
   Email: joseph.debono@dentons.com / max.reedijk@dentons.com
   Tel: 416.863.4726 / 416.361.2338

ATTACHMENT 3

ISSUES LIST

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

Toronto Catholic District School Board (“TCDSB”):

1. Has the proposed development been designed to adequately limit new-net shadow on the school yard located at 444 Sherbourne Street as necessary to maintain its utility?

Net-new shadow means shadow cast by a proposed development in excess of the shadow already cast by existing buildings and structures, including those permitted by in-force Zoning By-laws.

2. Has the proposed development been designed to protect access to sunlight and does it adequately limit shadowing on 444 Sherbourne, including its school yard?

The Governing Council of the Salvation Army in Canada (the “Salvation Army”):

3. Does the proposed Zoning By-law Amendment provide for an appropriate tower setback from the north property line which abuts the lands municipally known as 416 Sherbourne Street, 418 Sherbourne Street, 422 Sherbourne Street and 432 Sherbourne Street which are owned by the Salvation Army? Does the proposed reduced tower setback of 10.8 m conform to the requirements in OPA 352, which requires that impacts to light, view, and privacy have been appropriately limited and the development potential of adjacent sites has been considered?

4. Will the outdoor amenity space that is proposed on the 2nd and the 5th floor and the associated proposed 0 m setbacks of the building result in an unacceptable privacy impact for the adjacent lands owned by The Salvation Army?

5. Will the proposed building have an unacceptable shadow impact on the lands owned by The Salvation Army or have the new net shadows of the proposed building been adequately limited? Does the development proposal conform to the policies governing shadow impacts in the City of Toronto Official Plan?

ATTACHMENT 4

ORDER OF EVIDENCE

NOTE: Where Parties of like interest have issues in common, they shall make reasonable efforts to coordinate their examinations-in-chief and cross-examinations so as to minimize any duplication or overlap of evidence. The Order of Evidence will be described in greater detail in the Work Plan that is filed with the Tribunal.

1. Sherbourne Community Clinic Inc. (Applicant/Appellant)
2. City of Toronto (if necessary)
3. Toronto Catholic District School Board
4. The Governing Council of the Salvation Army in Canada
5. Reply by Sherbourne Community Clinic Inc. (if necessary)

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

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. If an unincorporated group wishes to become a party, 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, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as parties can.

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party 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 intends to present as evidence at the hearing.

Witness Statements:

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 the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (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 for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

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.