A. Mantella & Sons Limited v. Toronto (City), 2024 CanLII 74375

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 01, 2024

CASE NO(S).: OLT-22-002343 (Formerly PL140860)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 10 QEW Inc. Appellant: 100 Metropolitan Portfolio Inc. Appellant: 1095909 Ontario Limited (Wynn Group of Companies) Appellant: 1107051 Ontario Ltd.; and others Subject: Proposed Official Plan Amendment No. 231 Municipality: City of Toronto OLT Case No.: OLT-22-002343 Legacy Case No.: PL140860 OLT Lead Case No.: OLT-22-002343 Legacy Lead Case No.: PL140860 OLT Case Name: A. Mantella & Sons Limited v. Toronto (City)

Heard: June 3–7, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Leslie-Lakeshore Developments Inc.	I.T. Kagan, S.R. Kagan
City of Toronto	R.A. Biggart, A. DeBacker (in absentia), C. Kapelos (in absentia), C. McKeitch (in absentia)

DECISION DELIVERED BY S. BRAUN AND C. HARDY AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1Following a 2010 Official Plan Review and concurrent Municipal Comprehensive Review (“2010 MCR”) undertaken as part of a conformity exercise pursuant to the 2006 Growth Plan for the Greater Golden Horseshoe (“2006 GP”), the City of Toronto (“City”) adopted Official Plan Amendment 231 (“OPA 231”) in December 2013. OPA 231 updated economic health and Employment Area policies and mapping in the City’s Official Plan (“OP”).

2Broadly speaking, OPA 231 created two distinct designations for Employment Areas in the OP – Core Employment Areas (“Core Employment”) and General Employment Areas (“General Employment”). Importantly, residential uses are not permitted in either of these two designations. Permitted within Core Employment are all types of manufacturing, processing, warehousing, wholesaling, distribution, storage, transportation facilities, vehicle repair and services, offices, research and development facilities, utilities, waste management systems, industrial trade schools, media, information and technology facilities, and vertical agriculture.

3Permissions for General Employment are broader, encompassing those uses permitted within Core Employment in addition to restaurants, fitness centers, retail and service uses. The Tribunal heard that typically, General Employment can be found on the periphery of Employment Areas on major roads where uses like retail, service and restaurants can benefit from visibility and transit access to draw the broader public and serve workers in the Employment Area. During the Hearing, one of the witnesses helpfully described the permitted uses in General Employment as ‘Core Plus’.

4The Minister of Municipal Affairs and Housing (“MMAH”) approved OPA 231 with limited modifications in June 2014. Thereafter, a total of 178 appeals were filed, including appeals of the whole of OPA 231 and appeals made on site-specific bases. The Tribunal ordered the appeals to be heard in six phases, grouped together by subject matter. A number of site-specific appeals were previously determined as part of Phase 6, which further sorted matters into sub-phases based on identified geographic areas. The remaining site-specific appeals which did not fit into any of those identified geographic groupings were ordered to be heard in Phase 6G. Through the various phases of these proceedings, several appeals have resulted in settlements, whereby the City has supported the conversion and redesignation of Core and General Employment lands to allow residential uses.

SUBJECT SITE AND RELEVANT HISTORY

5This was a Phase 6G Hearing of Appeal #115 by Leslie-Lakeshore Developments Inc. (“Appellant”), to determine the appropriate land use designation for the property at 731 Eastern Avenue (“subject site”). The subject site is approximately 3.5 acres and is located on the northwest corner of Leslie Street and Lakeshore Boulevard East, within the South of Eastern Employment Area (“SOEE”). The Parties are in dispute as to the optimal use of these lands.

6Prior to OPA 231, the subject site was designated in the OP on Map 2 (Urban Structure) and Map 21 (Land Use) as Employment Areas. Following OPA 231, it continued to be designated Employment Areas on Map 2 but was redesignated to General Employment on Map 21. It is currently zoned Industrial Districts I2-D5 in former City Zoning By-law 438-86. The I2 Zone permits 88 uses, including a variety of light industrial and retail/service uses. A density of five times the lot area is permitted.

7At present, the subject site is occupied by a large surface parking lot, a grocery store and two fast-food restaurants (each with separate drive through windows). It was purchased by the Appellant in the 1990s and, at the time, was mostly vacant. The restaurants were built in 1998 and the grocery store was built in 2003. Little has changed since then, with density remaining at approximately 0.23 times the lot area.

8In 2012, as part of the 2010 MCR, the Appellants requested conversion of the subject site from Employment Areas to either Regeneration Areas or Mixed Use Areas to broaden the range of permitted uses on the subject site, including residential. The subject site was retained as Employment Areas and designated General Employment under OPA 231, leading to the present appeal.

9The City embarked upon a subsequent OP review and Municipal Comprehensive Review in 2020 (“2020 MCR”), and although the City entertained employment land conversion requests as part of that process, the Appellant did not file for same, having been advised by City staff that consideration of a request as part of the 2020 MCR required withdrawal of the ongoing OPA 231 appeal.

10In July 2022, the City adopted Official Plan Amendment 591 (“OPA 591”) which again updated City-wide employment policies, and through that process, several Employment Conversion Requests (“ECR”) were granted resulting in the redesignation of some General and/or Core Employment lands to other uses, including but not limited to Mixed Use Areas and Regeneration Areas. In January 2023, the Appellant submitted comments to MMAH requesting a modification to OPA 591 to redesignate the subject site from General Employment to Mixed Use Areas. In December 2023, MMAH approved OPA 591 with no modifications and did not redesignate the subject site.

PROPOSAL

11The Appellant seeks to modify OPA 231, deleting Employment Areas from the subject site on Map 2 and redesignating the subject site to Mixed Use Areas on Map 21. The proposal includes a Site and Area Specific Policy (“SASP”), which, similar to those in effect for other sites previously converted through OPA 231 and related settlements, is intended to guide future development of the subject site through policies requiring, inter alia, the completion of further land use compatibility studies which address employment uses to be developed prior to/concurrent with residential uses; a minimum amount of non-residential replacement gross floor area (“GFA”) of 3,440 square metres (“sq m”); and a minimum amount of residential GFA secured for affordable housing.

12For illustrative purposes, the Appellant provided a concept plan representing one possibility for development depicting residential and retail at grade uses in five buildings ranging in height from 12 to 16 storeys. Consistent with several other OPA 231 conversions, a future Zoning By-law Amendment (“ZBA”) is contemplated to come forward, with height, density, massing, etc., to be determined at that time along with the completion of further compatibility studies in accordance with the proposed SASP.

13The subject site is located within the Lower Don Special Policy Area. Pursuant to s. 3.1.4 of the Provincial Policy Statement, 2020 (“PPS”), changes to official plan policies, land use designations or boundaries applying to Special Policy Area lands are required to be approved by MMAH and the Ministry of Natural Resources and Forestry (“MNRF”) prior to the approval authority approving such changes or modifications.

14The Parties agreed that if the proposal were to be approved, a Final Order should be withheld pending receipt of the requisite dual Ministerial approval. Counsel for the City noted that this approach has been taken previously by the Tribunal in the context of other OPA 231 settlements.

KEY ISSUE AND POSITIONS OF THE PARTIES

15The Panel was tasked with deciding the appropriate land use designation of the subject site. Beyond usual considerations of potential land use conflicts arising from locating sensitive uses near businesses whose activities are by nature, impactful, determination of the Appeal required careful consideration of overlapping needs for the same lands along with competing policies concerned with, for instance, the provision of housing (including affordable housing) and protection of employment lands to achieve the economic development objectives of the City and Province.

16The Panel was provided with evidence and authorities totaling approximately 10,000 pages and heard testimony over five days from the following individuals, qualified to provide opinion evidence in their respective fields of expertise, as noted below. On behalf of the City: Russell Mathew – Land Use Planner with expertise in Land Economics; Matthew Premru – Land Use Planner with expertise in Land Economics; and Kyle Fearon – Land Use Planner. On behalf of the Appellant: Doug Annand – Land Economist; Michael Goldberg – Land Use Planner.

17The City submitted that there are more than sufficient lands designated residential to accommodate the forecasted population growth to 2031 and beyond, whereas data shows low vacancy rates and high demand in relation to employment lands. Given the foregoing, it is the City’s position that there is no need to convert the subject site for residential uses, whereas there is a need to maintain the General Employment designation in furtherance of economic objectives and policies which speak to protecting and preserving lands designated for employment uses.

18It was submitted that permitting residential uses on the subject site, characterized by the City as prime, rare, and pivotal, would put existing and future employment uses, and related jobs at risk, adversely affecting the viability of the SOEE. From the City’s perspective, conversion and redesignation would prompt land value speculation and potential land use conflicts, leading not only to the disruption of existing business operations, but creating a disincentive for new businesses to locate in the area. Beyond consequences specific to the SOEE, it was submitted that the proposal would result in an overall reduction in the available inventory of land designated for employment uses, creating a more challenging landscape in terms of attracting new businesses to the City, in general.

19The Appellant takes the position that the requested conversion satisfies the necessary legislative tests and represents good planning, as it appropriately balances competing policies by making efficient use of the subject site (which, while zoned for a density of five times the lot area for decades, has remained developed at a density of 0.23 times the lot area), retaining a minimum amount of non-residential GFA to match the current employment uses and permitting the development of much needed housing and affordable housing.

20Contrary to the contention that residential uses on the subject site would negatively impact surrounding businesses and the overall viability of the Employment Area, it was submitted that residential uses already exist within and around the SOEE with little to no evidence of land use conflicts. It was also noted that no surrounding businesses requested status of any kind in this Appeal. Based on the foregoing, it was argued that the City’s concerns in relation to impacts upon existing businesses and the future viability of the Employment Area amount to little more than unsubstantiated apprehensions.

REQUESTED RELIEF AND DECISION OF THE TRIBUNAL

21The City opposes conversion and redesignation of the subject site and requests the Panel dismiss the Appeal in its entirety. The Appellant requests the Panel remain seized and issue an Interim Order allowing the Appeal, in part, and approving the requested modification and SASP, contingent upon:

a) approval of the conversion by MMAH and MNRF, given the requirement of s. 3.1.4 (a) of the PPS and the subject site’s location within the Lower Don Special Policy Area; and

b) the Tribunal receiving, for its review and approval, the modification and proposed SASP in a final form acceptable to the Parties, so as to allow for minor wording and formatting modifications.

22The following are the Panel’s reasons for allowing the Appeal and providing the Interim Order requested by the Appellant.

SURROUNDING CONTEXT

23As previously mentioned, the subject site is located within an Employment Area known as the SOEE, which encompasses approximately 60 hectares (“ha”) of land designated both General and Core Employment. The SOEE is bounded generally by Eastern Avenue to the north, Lakeshore Boulevard to the south, Don Valley Parkway (“DVP”) to the west, and Woodfield Road to the east.

24The subject site is close to downtown, existing transit, major local roads and highways, as well as Billy Bishop Airport, and Toronto’s only functioning port. It is surrounded by existing and planned public roads, with Eastern Avenue to the north, Leslie Street to the east and Lakeshore Boulevard East to the south. To the west is a planned public road which will connect Eastern Avenue and Lakeshore Boulevard and separate the subject site from the abutting property at 721 Eastern Avenue. That abutting property is owned by General Motors, designated Core Employment, and planned for a large facility (“GM Mobility Campus”) consisting of office uses, a retail showroom, and dealership.

25To the immediate northeast of the subject site is a two and three-storey office and retail building. Further north across Eastern Avenue are existing residential dwellings within the Neighbourhoods designation. To the east across Leslie Street are General Employment lands containing a Loblaws grocery store and Starbucks café. To the south across Lakeshore Boulevard East is a large retail development that includes a Farmboy grocery store, Canadian Tire, and Shoppers Drug Mart.

26Several strategic City assets and other industrial/manufacturing uses are located within the SOEE and near to the subject site, including but not limited to: a TTC streetcar storage facility (“TTC Leslie Barns”), Ashbridges Bay Wastewater Treatment plant (the largest facility of its kind in Canada, currently undergoing expansion), as well as cement and asphalt shingle manufacturers. The foregoing businesses operate under Environmental Compliance Approvals (“ECA”) from the Ministry of Environment Conservation and Parks (“MECP”) and are subject to MECP D-Series Guidelines, which aim to minimize/prevent adverse effects from impacts (i.e. noise, vibration, odour, and other emissions) on surrounding properties through suggested buffer distances and mitigation measures.

27The SOEE and lands to the south of the SOEE host a cluster of film and television production studios and other related businesses. A large film studio is located on the lands immediately to the west of the planned GM Mobility Campus. Activities associated with film/television production require large amounts of space (both indoor and outdoor) for 24-hour operations, which can often be impactful, especially in terms of noise.

28Approximately 1.5 kilometers (“km”) west of the subject site, within the SOEE, is a 24 ha area designated General Employment, known as East Harbour. East Harbour is located near the DVP and has been identified as a Major Transit Station Area (“MTSA”), planned to be developed with a large Transit facility (“Transit Hub”) housing subway, rail, streetcar, and bus terminals. This represents a substantial infrastructure investment around which a large Transit-Oriented Community (“TOC”) has recently been approved by Ministerial Zoning Order and supported by the City. The TOC contemplates a mix of uses which include roughly 10 million square feet of office space and 4,000 residential units. The residential units are planned for the easterly end of the TOC rather than at the edge of the SOEE along the DVP.

29Between the planned TOC/Transit Hub and the subject site is a large residential development surrounding Morse Street Playground (“Morse Area”) consisting of approximately 195 residential dwellings. The Morse Area pre-dates the SOEE and OPA 231, and the properties there have been designated Core Employment with a SASP legitimizing residential uses. The Panel heard uncontested evidence that the Morse Area residences are not treated as legal non-conforming, but rather are zoned Residential and can be replaced/added onto, suggesting that the uses are not intended to cease in the long term.

LAND ECONOMICS

30The Panel heard that the City’s biggest challenge when competing to attract and retain business is demand for available space, and that encroachment of residential uses into Employment Areas can lead to uncertainty and instability for those areas, and for the businesses that operate within them. Many businesses located in Employment Areas are not easily able to locate elsewhere due to the impactful nature of their operations. Spatial separation from sensitive uses is one way to decrease the potential for land use conflicts, the resolution of which can drive up the cost of doing business as a result of the need for costly mitigation measures. Space is also important for the cluster business model, whereby companies in a specific industry locate close together to capitalize on linkages and synergies. In addition to the foregoing, the Tribunal heard that because land with residential use permissions has a higher market value than business use, conversion can prompt land speculation impacting the affordability of employment lands.

31The Panel also heard uncontested evidence that the City is unable to expand its urban boundary, that employment lands are a finite resource, characterized by their high demand and low vacancy rates, that there is pressure to convert employment lands to non-employment uses, including residential, and in general, once converted, such lands do not later revert to their former uses.

LEGISLATIVE FRAMEWORK

32In determining the present Appeal, the Panel must have regard for matters of provincial interest in s. 2 of the Planning Act (“Act”) and for the decision of City Council (which, in this instance, is the December 2013 decision to adopt OPA 231 designating the subject site as General Employment), as well as the information considered by it in the course of making that decision.

33The Panel’s decision must be representative of good land use planning in the public interest, must be consistent with the PPS and conform with the applicable version of the Growth Plan for the Greater Golden Horseshoe (“GP”). In this instance, for the purposes of determining conformity, Ontario Regulation 305/19 transitions OPA 231 under the 2006 GP. As such, the 2020 version of the GP (“2020 GP”), and policies contained within it (including the Provincially Significant Employment Zones “PSEZ” framework, which provides enhanced protection from conversion to non-employment uses) are not applicable to sites and policy matters that have appeal status under OPA 231.

APPLICABLE POLICIES – EVIDENCE AND FINDINGS

34There were a few areas of disagreement between the planning witnesses with respect to the applicability and interpretation of some PPS and 2006 GP policies arising from differing stances on the appropriateness of allowing residential uses on the subject site.

35Mr. Goldberg provided a thorough evaluation of the proposal against the entirety of the PPS and 2006 GP, noting that the only way to strike the correct balance between competing planning objectives is to consider the policy documents in their entirety, rather than focusing on one set of policies to the exclusion of others. He opined that the proposal, which contemplates continuation/expansion of existing employment uses along with housing and affordable housing, contributes to a complete community with options for living close to work, leveraging existing transit/active transportation, and the planned Transit Hub to reduce automobile dependency and the impacts of climate change. Mr. Goldberg characterized the TOC and Transit Hub as “transformational elements” within the SOEE, and while he acknowledged the subject site is not within the MTSA, he opined that it nevertheless makes sense to locate residential uses nearby to make optimal use of such a significant investment in infrastructure.

36Following this evaluation, he concluded that conversion and redesignation results in a more appropriate balancing of provincial policies and objectives than the current designation. He reminded that, despite permitted uses and a density of five times the lot area, the subject site has been developed for more than a decade in a low intensity, automobile-oriented, suburban plaza format.

37Mr. Fearon approached the matter differently, noting that he did not analyze the requested conversion and proposed SASP against policies which speak, for example, to residential intensification and provision of a mix of housing, including affordable housing. He explained that he did not consider such policies relevant in light of his stance on residential uses, drawing the Panel’s attention to PPS s. 1.3.2.3 and opining that such uses are prohibited on the subject site.

1.3.2.3 Within employment areas planned for industrial or manufacturing uses, planning authorities shall prohibit residential uses and prohibit or limit other sensitive land uses that are not ancillary to the primary employment uses in order to maintain land use compatibility.

Employment areas planned for industrial or manufacturing uses should include an appropriate transition to adjacent non-employment areas.

38Mr. Goldberg vehemently disagreed, noting the Appellant seeks to have the designation of Employment Areas removed from the subject site, followed by a redesignation to Mixed Use Areas, which does permit residential uses. He explained that, once removed from the Employment Area, s. 1.3.2.3 would cease to be applicable to the subject site. He noted that the City has, with regularity through OPA 231, OPA 591, and other OPAs, converted many other sites within Employment Areas to designations that permit residential uses, and opined that such conversions would not have been possible, were Mr. Fearon correct in his interpretation of the applicability of this policy.

39The application of s. 1.3.2.3 advanced by Mr. Fearon was found by the Panel to be untenable. The policy does not prohibit the conversion and redesignation of employment lands to allow residential uses, as evidenced by the many conversions approved by the City through OPA 231 and OPA 591, and previous decisions of this Tribunal which have approved conversions that allow residential uses in proximity to industrial and manufacturing uses. The foregoing is also confirmed in the November 5, 2013 final report of City staff on OPA 231 (“2013 Staff Report”) referred to repeatedly by both Parties throughout the Hearing. That report states that “where lands are removed from an Employment Area designation to permit residential uses, in most instances development is also required to result in a net gain of employment space” (emphasis added).

Conversion Criteria

40Despite the foregoing areas of disagreement, the planning witnesses did agree that, if certain criteria set out in ss. 1.3.2.4 and 1.3.2.5 of the PPS, and s. 2.2.6.5 of the 2006 GP are met, employment land conversions are permitted.

1.3.2.4 Planning authorities may permit conversion of lands within employment areas to non-employment uses through a comprehensive review, only where it has been demonstrated that the land is not required for employment purposes over the long term and that there is a need for the conversion.

1.3.2.5 Notwithstanding policy 1.3.2.4, and until the official plan review or update in policy 1.3.2.4 is undertaken and completed, lands within existing employment areas may be converted to a designation that permits non-employment uses provided the area has not been identified as provincially significant through a provincial plan exercise or as regionally significant by a regional economic development corporation working together with affected upper and single-tier municipalities and subject to the following:

a) there is an identified need for the conversion and the land is not required for employment purposes over the long term;

b) the proposed uses would not adversely affect the overall viability of the employment area; and

c) existing or planned infrastructure and public service facilities are available to accommodate the proposed uses.

2.2.6.5 Municipalities may permit conversion of lands within employment areas, to non-employment uses, only through a municipal comprehensive review where it has been demonstrated that:

a) there is a need for the conversion

b) the municipality will meet the employment forecasts allocated to the municipality pursuant to the Plan

c) the conversion will not adversely affect the overall viability of the employment area, and achievement of the intensification target, density targets, and other policies of this Plan

d) there is existing or planned infrastructure to accommodate the proposed conversion

e) the lands are not required over the long term for the employment purposes for which they are designated

f) cross-jurisdictional issues have been considered.

41Given the significant amount of overlap in the policies, the Parties were in agreement that if the 2006 GP criteria are satisfied so, too, are the criteria in the PPS. Consequently, the Panel focused upon the conversion criteria in s. 2.2.6.5 of the 2006 GP.

42The planning witnesses further agreed that:

• consideration of the requested conversion is occurring in the context of the 2010 MCR;

• infrastructure can accommodate the proposed conversion; and

• cross-jurisdictional issues would be addressed through the conditions of an Interim Order were the Appeal to be allowed.

Beyond these areas of agreement, the Panel heard uncontested evidence that there are sufficient employment lands to meet the 2006 GP employment forecast and heard no evidence that conversion of the subject site would in any way prevent the attainment of that forecast. The Panel therefore finds that criterion b) is met, leaving questions of need, long term requirements for the subject site and viability to be determined.

Is there a need for the conversion?

43Messrs. Premru and Fearon opined that there is no need for the conversion because there is more than sufficient land designated for residential uses, whereas there is an identified need to preserve the City’s finite supply of employment lands, which are in high demand. They drew attention to s. 2.2.6.2 of the 2006 GP which speaks to the promotion of economic development and competitiveness through, inter alia, protecting and preserving Employment Areas for current and future uses, and noted the absence of similar policy protections for residential lands.

44They referenced the 2013 Staff Report, which concludes, based on analysis of housing capacity, that the City is on track to meet the 2006 GP forecast for the population and has more than sufficient housing capacity to accommodate forecasted growth to 2031. The report goes on to state:

…there is no shortage of sites for residential development in the city and there is no need to place residential and other sensitive uses in proximity to impactful uses.

45With respect to the 2006 GP employment forecast, the 2013 Staff Report indicates the City is on track to meet same, but notes this may be contingent upon promoting and incenting office growth and preserving Employment Areas for business and economic activities rather than converting large areas of employment lands for residential development.

46The Panel was also taken to an April 13, 2023 City Staff Report (“2023 Staff Report”) summarizing findings of a Land Needs Assessment (“LNA”) conducted as part of the 2020 MCR and OPA 591 process. Acknowledging that this report is not determinative, they commended its findings as relevant and supportive of the position that the need criterion is not met. That 2023 Staff Report concludes there is more than sufficient potential housing to accommodate the 2020 GP population forecasts to 2051, and surplus housing stock after accommodating this target is equivalent to over 50 years of potential housing supply. It also concludes that the City can accommodate the 2020 GP employment forecast to 2051, subject to retention and intensification of currently designated Employment Areas, noting that conversions should only occur strategically and include secured employment.

47Mr. Goldberg acknowledged all the foregoing but opined that logically it must represent only one input into the determination of need. Otherwise, conversions supported by the City and approved by the Tribunal through various settlements of OPA 231, which continued well beyond the date of the 2023 Staff Report, as recently as January 2024, could not have occurred. As such, he approached the question of need, broadly taking into account other planning policies and objectives.

48He opined that conversion is needed in order to realize optimal use of the subject site, which has remained underutilized for many years, despite its density, use permissions, and other characteristics, which, in the view of the City, make this an attractive site for businesses. He added that the proposed SASP ensures maintenance/expansion of the current employment use, while contributing affordable housing units in the City, drawing attention to recent legislative and policy changes aimed at providing needed housing units as quickly as possible, as well as the City’s own Housing Pledge to provide 285,000 new housing units by 2031.

49The Panel prefers Mr. Goldberg’s broader evaluation of need and finds this criterion is met, having been persuaded by the available evidence that removing the subject site from Employment Areas and redesignating to allow residential in addition to employment uses offers a better opportunity to make optimal use of land, resources, and infrastructure, while contributing to a range of housing including affordable housing. The 2023 Staff Report, which was considered relevant but not determinative, states:

…despite the housing supply potential, there is a mismatch between the types of housing sought and types anticipated to be built in the short term and that the Housing Action Plan seeks to help address the mismatch…by prioritizing a broader mix of rental, affordable, and ground-oriented homes. (emphasis added)

50This confirms that Mr. Goldberg is correct in his assessment that forecasts and LNAs are not a complete answer to the question of need, and that there remains an outstanding need for housing and affordable housing, which conversion can help to fulfill.

51In relation to concepts of need and optimal use of the subject site, the Panel notes the City’s suggestion that the Appellant has failed to appropriately market it for other, or more intense, employment uses, and its argument that conversion to permit residential uses would not guarantee actual construction of housing. However trite, it bears mentioning that, under the current planning regime, no landowner can be forced to build on/market a site in a specific manner, and assurances to do so are not prerequisites to planning approvals. In the view of the Panel, the requested conversion creates the conditions for the construction of housing, including needed affordable housing. It is also noted that the proposed SASP includes clauses annually increasing the required percentage of affordable housing if a ZBA is not requested prior to January 1, 2027. In the Panel’s view, the foregoing provides at least some level of confidence that the requested conversion and redesignation will result in the subject site contributing to housing and affordable housing.

Is the subject site required over the long term for employment purposes?

52The City’s witnesses expressed the view that the subject site is required over the long term for employment purposes and recommended maintaining the current designation. In support of this recommendation, Mr. Premru described the subject site as a “prime and rare, highly sought after business location”, noting its proximity to major goods movement facilities along with its density and expanded use permissions. Mr. Fearon agreed, testifying that the subject site is in a pivotal location for economic prosperity given the proximity to downtown, major goods movement facilities, highways, and major local roads, as well as transit routes.

53Mr. Fearon noted that the SOEE has been the subject of extensive study, planning and investment and drew attention to recent legislative and policy changes aimed at strengthening protections for Employment Areas to support long term planning and economic development. In his view, repeated decisions of the City and MMAH to retain the current designation correctly align with those changes and support the stance that the subject site is required over the long term for employment purposes. Overall, he opined that approval of the proposal would “reduce the quality, quantity and range/mix of sites in Toronto to meet its long term needs”, contrary to s. 2.2.6.2 of the 2006 GP which speaks to providing opportunities for a diversified economic base, including maintaining a range and choice of suitable sites for employment uses, which support a wide range of economic activities.

54In contrast, Messrs. Annand and Goldberg opined that, despite its locational context and broad use/density permissions, there is nothing about this small, currently occupied site surrounded by public roads and mainly retail uses, that would be uniquely attractive to businesses. Mr. Goldberg disagreed that the subject site is highly sought after, noting that although the landowner has made previous efforts to market the site, it has remained developed at a low intensity with a plaza and parking lot for many years.

55He also pointed out that the City has repeatedly approved conversions of employment lands totaling hundreds of hectares, despite the following statement in the 2013 Staff Report:

The existing supply of Employment Areas is sufficient to meet the 2031 Provincial employment forecasts in Toronto and it is anticipated that the City will meet the employment forecasts allocated to the municipality pursuant to the Growth Plan. It should be noted however that while no single conversion request would affect this outcome, multiple conversions could affect Toronto’s ability to meet the employment forecast.

56No evidence was led to suggest that the cumulative impact of previous conversions has resulted in the City now finding itself unable to entertain any further requests, and that conversion of the subject site would impact the City’s ability to meet its employment forecasts in the short or long term. Although long term is not defined, analysis of land needs and forecasts through the 2051 planning horizon show there are sufficient lands designated employment to meet the 2020 GP employment forecast to 2051 provided employment lands are intensified.

57The Panel was persuaded by the opinions of Messrs. Annand and Goldberg and finds that the subject site is not likely to intensify with employment uses under the current designation considering its history, size, and context (surrounded by public roads and mainly commercial uses). In any case, a minimum amount of non-residential replacement GFA is mandated by the proposed SASP, ensuring employment uses will remain and be capable of expansion while at the same time allowing for the construction of housing and affordable housing. Based on the evidence presented, the Panel finds the case has not been met that the subject site is required over the long term for employment purposes.

58It is noteworthy that MMAH identified the entirety of the SOEE, save and except for the subject site, as a PSEZ, which provides enhanced protections for employment lands under the 2020 GP. While not determinative, this suggests the subject site was distinguished as serving a different function.

Will conversion adversely affect the overall viability of the employment area?

59Some evidence was presented in relation to a recent shift in work patterns resulting from the pandemic, including the emergence of remote/work from home jobs (“WFH”). Mr. Annand prepared an Employment Area Impact Analysis Report to estimate the number of jobs that could result from the proposed conversion and SASP. He concluded that in a post-conversion redevelopment scenario, the subject site would generate roughly 100 additional jobs over and above current numbers, given that some occupants of the residential units would be employed in WFH. He opined that the proposal would result in a positive impact for the Employment Area and achievement of targets based upon the resulting increase in the total number of jobs and contribute to the attainment of the overall 2006 GP employment forecast.

60Mr. Mathew did not take issue with the analysis or mathematical conclusions of Mr. Annand but disagreed with the notion that WFH is relevant for the purposes of assessing the impact of the proposed conversion and SASP upon the SOEE. It was Mr. Mathew’s opinion that Employment Area policies are intended to preserve land for certain types of economic activities (and related jobs), which are incapable of being located outside of Employment Areas due to the impactful nature of their operations, as distinct from business activities such as office and WFH. As such, he opined that the matter ought not to be decided based on an increase in job numbers owing to WFH.

61While it is acknowledged that, for the purposes of employment forecasts, “a job is a job”, the Panel finds merit in Mr. Mathew’s opinion that assessment of the impact upon Employment Areas should relate back to the policies aimed at protecting the types of businesses and related jobs which are intended to be located there. In any event, because the proposed SASP mandates a minimum amount of non-residential replacement GFA and because the subject site would no longer be designated Employment Area in a post-conversion scenario, the Panel found nothing turned on the WFH issue. Consequently, the Panel’s decision on the question of viability was driven by consideration of the available evidence in relation to land use compatibility and the appropriateness of permitting sensitive uses on the subject site.

62Notwithstanding his opinion on the applicability of PPS s. 1.3.2.4, Mr. Fearon addressed the question of residential uses on the subject site, opining that allowing same would fragment what he characterized as a contiguous Employment Area, adding that the dictionary defines “contiguous as unbroken and being in actual contact”. In his view, permitting residential uses would create a wedge between businesses that rely on a stable operating environment, likely resulting in land use compatibility complaints, reducing the operational flexibility of nearby businesses engaged in film/television production and those operating under ECAs, including City assets of strategic importance, such as the wastewater treatment facility and TTC Leslie Barns.

63Similarly, Mr. Premru expressed the view that the requested change would be “an anomaly within this local context” and would introduce sensitive land uses fragmenting the SOEE in two, contrary to policies aimed at the protection and promotion of employment lands. He also warned of a land speculation “ripple effect” frustrating the City’s goals for long term economic health and growth.

64Given their views on the potential for land use conflicts, Messrs. Fearon and Premru took the Panel to PPS ss. 1.2.6.1 and 1.2.6.2, opining that these policies prioritize avoidance over mitigation:

1.2.6.1 Major facilities and sensitive land uses shall be planned and developed to avoid, or if avoidance is not possible, minimize and mitigate any potential adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and to ensure the long-term operational and economic viability of major facilities in accordance with provincial guidelines, standards and procedures.

1.2.6.2 Where avoidance is not possible in accordance with policy 1.2.6.1, planning authorities shall protect the long-term viability of existing or planned industrial, manufacturing or other uses that are vulnerable to encroachment by ensuring that the planning and development of proposed adjacent sensitive land uses are only permitted if the following are demonstrated in accordance with provincial guidelines, standards and procedures:

a) there is an identified need for the proposed use;

b) alternative locations for the proposed use have been evaluated and there are no reasonable alternative locations;

c) adverse effects to the proposed sensitive land use are minimized and mitigated; and

d) potential impacts to industrial, manufacturing or other uses are minimized and mitigated.

65They revisited the 2013 Staff Report statement that “there is no need to place residential and other sensitive uses in proximity to impactful industries” and opined that refusal of the proposal would align with the foregoing and the primary goal of avoidance outlined above.

66Mr. Goldberg opined that the proposal would not adversely affect the viability of individual businesses and major facilities or the SOEE in general. He pointed out that the proposed SASP mandates a minimum amount of non-residential replacement GFA, ensuring that existing employment uses will not only continue, but are capable of expansion. The proposed SASP also contemplates phased development, allowing existing employment uses to experience little to no interruption in their operations.

67He characterized the subject site as being at the edge of the Employment Area, given the surrounding existing and planned uses and public roads. In light of this context, he opined that residential uses are appropriate, noting the subject site is:

• an appropriate size and configuration for housing;

• close to downtown, the lake, parks, recreational trails, and retail uses;

• supported by different modes of active transportation;

• already well-served by existing transit, which operates seven days a week; and

• located relatively close to the planned Transit Hub

68With respect to compatibility and the potential for land use conflicts, he noted public rights of way serve to transition and buffer sensitive land uses from employment uses, pointing out that Eastern Avenue has, for many years, served as a buffer between the SOEE and residential Neighbourhoods. He also called attention to a report filed with the Appellant’s request for redesignation (“Terrapex Report”), which examined compatibility of the proposed residential use with area businesses, including those operating under ECAs.

69The Terrapex Report indicates that the subject site is, for the most part, located outside of the MECP D-Series Guideline (“Guideline”) recommended minimum separation distances from nearby Class II and III (more impactful) industrial and manufacturing facilities, and is outside the recommended minimum separation distance of 150 metres (“m”) from the Ashbridges Bay Sewage Treatment Plant. It further indicates that while the subject site is located within the recommended minimum separation distance of some facilities, those businesses already have mitigation measures in place to reduce adverse effects on surrounding sensitive land uses. The Terrapex Report also considered the potential for future land use compatibility issues with businesses that might locate on nearby vacant industrial land within 1000 m of the subject site, in conjunction with the City’s plans for such areas. Ultimately, it was concluded that there would be “…no land use compatibility issues with respect to residential development at the subject site”.

70With respect to PPS ss. 1.2.6.1 and 1.2.6.2, Mr. Goldberg expressed the view that avoidance is one option, pointing out that despite the recommendations in the 2013 and 2023 Staff Reports, the City has repeatedly chosen to utilize mitigation over avoidance in its approval of previous conversions situating residential land uses in proximity to major facilities.

71Mr. Goldberg noted the proposed SASP requires further studies at zoning to address any new or outstanding potential land use compatibility issues. Having discussed mitigation, he briefly addressed the remainder of PPS s. 1.2.6.2, noting that despite the existence of other locations for housing throughout the City, the subject site is nevertheless an appropriate location for both employment and housing, including much needed affordable housing.

72Witnesses for the Appellant opined that the SOEE, contrary to its depiction on Land Use Maps and its characterization by the City’s witnesses, is not a contiguous Employment Area at risk of fragmentation. During closing submissions, counsel for the Appellant drew attention to the Land Use Map 21, which depicts the SOEE in a relatively linear and unbroken swath of purple. The Panel was urged to imagine the map with purple removed from certain areas within the SOEE to reflect actual existing and planned non-employment uses, including the Morse Area and the planned residential uses in the East Harbour TOC.

73The Panel finds the proposal would not be an anomaly, introducing sensitive land uses into the Employment Area, as such uses have always existed both within the SOEE and along the northern border thereof, across Eastern Avenue. Many residences are located within MECP D-Series Guideline potential areas of influence, and minimum separation distances of businesses operating under ECAs, including the second largest wastewater treatment plant in Canada. Despite this, the Panel heard no evidence of a history of land use conflicts/complaints in the SOEE, save and except for a statement by Mr. Fearon that, in the last seven years the wastewater treatment plant has logged 50 odour complaints, 13 of which were attributed to their operations. While not determinative, it was considered significant that there were no added parties/participants to the Appeal, despite the City’s apprehensions that the proposal would put the operations and/or ECAs of several businesses in the area at risk.

74No compelling evidence was presented to challenge the Terrapex Report (which Mr. Fearon admitted was never peer reviewed by the City, despite its responsibility to do so), or to persuade the Panel that residential uses on the subject site would result in adverse effects on the viability of the SOEE. While it is acknowledged that the Terrapex Report did not address the issue of noise from the use of sound cannons at TTC Leslie Barns, the use of sound cannons is relatively recent, and the report specifically indicates that its conclusions are based on data collected at a specific time.

75In his closing argument, counsel for the City submitted that conversion and redesignation would adversely affect an Employment Area which is currently working, as demonstrated by large recent investments, including the GM Mobility Campus, and the addition of a large film production studio. The Panel agrees that the SOEE is currently working and notes that those investments have occurred despite existing and planned residential uses within and near the SOEE. The Panel also notes that it did not hear evidence that the new residential uses planned for the East Harbour TOC has prompted land speculation in the area.

76On the available evidence, the Panel is satisfied that conversion to allow residential use of the subject site will not adversely affect the overall viability of the Employment Area and accepts that the proposed SASP, which requires further land use compatibility study at zoning, provides additional assurance in this regard. In light of findings made throughout this decision, the Panel is not persuaded that conversion would affect the achievement of intensification and density targets or the other policies of the 2006 GP, as is required under criterion c) of s. 2.2.6.5 thereof.

CONCLUSION

77In Satin Finish Hardwood Flooring Limited v. Toronto (City), 2021 CarswellOnt 19021, a panel of the Tribunal differently constituted decided a similar site specific appeal of OPA 231 and approved conversion, noting:

More than one land use choice may be appropriate for a particular property. Context is key to assessing the planning merits of land uses within the built environment. The physical, economic and social characteristics of the immediate area may lead to one or more suitable end uses.

…A request for land use conversion from Employment to Residential (“conversion”) reveals strengths and weaknesses for both land uses. Either use may be found appropriate for the planning context and either use is likely to adapt and contribute to the area’s success over the long term. However, one use may rise in preference over another through its relative planning merits based on the particulars of context.

78Similarly in this instance, there is more than one appropriate land use choice for the subject site, which is clearly capable of fulfilling competing needs and planning objectives, especially given the fact that the witnesses for both Parties cited similar attributes and locational characteristics in support of different designations. Based on the arguments and evidence presented, and on the foregoing findings, the Panel finds the use which rises in preference is Mixed Use, subject to the proposed SASP.

79The City relied upon a previous decision from Phase 6B of the OPA 231 appeals namely, A. Mantella & Sons Limited v. Toronto (City), 2022 CanLII 14006 (ONLT), and in particular, the determination of Appeal No. 119 by Loblaw Properties Limited (“Loblaw Case”). In that case, a panel of the Tribunal differently constituted dismissed Loblaw’s request for conversion from General Employment to Mixed Uses, finding applicable conversion tests were not met. This Panel notes what it considers to be significant distinguishing factors, including the considerably larger size of the Loblaw site and the finding in the Loblaw Case that there were ECAs which would be at risk if the conversion was allowed.

80As previously mentioned, this Panel did not hear compelling evidence that any ECAs would be at risk, or that allowing a sensitive land use on the subject site would result in land use compatibility issues requiring the introduction or increase of mitigation measures. Distinct from the Loblaw Case, this Panel was also not presented with compelling evidence to demonstrate that residential use of the subject site would disrupt the stable operating environment of existing businesses, or would constrain future investment in this Employment Area.

81In this instance, there is policy support for the proposed conversion and redesignation, which will optimize a relatively small and underutilized site that is currently developed with a low intensity, automobile-oriented use. The subject site is in an appropriate location for growth and development, and the requested redesignation will aid in the achievement of a complete community, which supports existing/planned transit and provides a range of housing, including affordable housing, while also protecting the financial well-being of the City and Province by maintaining and potentially expanding employment opportunities on the subject site. On the foregoing findings the Panel is satisfied that the requested conversion and redesignation, subject to the proposed SASP, has appropriate regard for matters of provincial interest, is consistent with the PPS, conforms to the 2006 GP, and is representative of good planning in the public interest.

82In closing, the Panel notes the City’s concern that allowing the requested conversion and redesignation sets a precedent for future employment land conversions and further notes the Appellant’s case relied, in part, on an entire volume of the eight-volume joint document book solely devoted to previous OPA 231 settlement decisions converting employment lands to non-employment uses. All the Panel took from the volume of settlement decisions is that previous conversions have, in fact, been supported by the City and approved by the Tribunal in the context of the same policy framework, forecast numbers, and LNA conclusions. Ultimately, each development application is decided on its own merits, and as with any decision of the Tribunal, the Panel’s determination of this matter was based on a consideration of the evidence and context specific to the subject site and the surrounding area.

INTERIM ORDER

83THE TRIBUNAL ORDERS that Appeal #115 of OPA 231 by Leslie-Lakeshore Developments Inc. is allowed, and the requested modification to OPA 231 and proposed Site and Area Specific Policy are approved, in principle, on an interim basis.

84The issuance of a Final Order will be withheld, contingent upon the Tribunal:

a) being advised that the requested conversion has received the necessary approvals from the Ministry of Municipal Affairs and Housing and the Ministry of Natural Resources and Forestry, pursuant to s. 3.1.4(a) of the Provincial Policy Statement, 2020, given the location of the subject site within the Lower Don Special Policy Area; and

b) receiving, for its review and approval, the text of the modification to Official Plan Amendment No. 231 and proposed Site and Area Specific Policy in a final form acceptable to the Parties, which may include minor wording and formatting modifications from the drafts presented to the Panel during the Hearing.

85If the contingent pre-requisites referred to above in paragraph 84 are not satisfied, and a Final Order is not requested within six months of this issuance of this Order, the Parties shall provide the Tribunal with a written status update outlining the expected timing for same upon that date.

86THE TRIBUNAL FURTHER ORDERS that this Decision and Order is strictly without prejudice to the position any Party may take in respect of any issue or matter which remains to be adjudicated in the remainder of appeals to Official Plan Amendment No. 231.

87This Panel will remain seized and may be spoken to should issues arise in the implementation of this Order.

“S. Braun”

s. braun

vice-chair

“C. Hardy”

c. hardy

vice-chair

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.