Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City), 2025 CanLII 18353

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 25, 2025

CASE NO.: OLT-24-000676 OLT-24-000198

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

Applicant and Appellant: Nipigon Investments Inc. and Nipigon Property Limited Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a 50-storey residential building Reference Number: 23 198805 NNY 18 OZ Property Address: 26, 28, 30, 32 and 34 Nipigon Ave Municipality/UT: Toronto OLT Case No.: OLT-24-000676 OLT Lead Case No.: OLT-24-000676 OLT Case Name: Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City)

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

Applicant and Appellant: Nipigon Investments Inc. and Nipigon Property Limited Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a 50-storey residential building Reference Number: 23 198805 NNY 18 OZ Property Address: 26, 28, 30, 32 and 34 Nipigon Ave Municipality/UT: Toronto OLT Case No.: OLT-24-000677 OLT Lead Case No.: OLT-24-000676 OLT Case Name: Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City)

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

Appellant: Nipigon Investments Inc. and Nipigon Property Limited Subject: Site Plan Description: To permit a 50-storey residential building Reference Number: 23 212767 NNY 18 SA Property Address: 26, 28, 30, 32 and 34 Nipigon Avenue Municipality/UT: City of Toronto OLT Case No.: OLT-24-000198 OLT Lead Case No.: OLT-24-000198 OLT Case Name: Nipigon Investments Inc. and Nipigon Property Limited v. Toronto (City)

BEFORE: STEVEN T. MASTORAS MEMBER Tuesday, the 25th day of February, 2025

THESE MATTERS HAVING COME BEFORE THE TRIBUNAL as a written Settlement hearing (“Settlement”) scheduled on February 24, 2025, with the consent of Nipigon Investments Inc. and Nipigon Property Limited (“Applicant”/ “Appellant”) and the City of Toronto, consisting of appeals pursuant to subsections 22(7) and 34(11) of the Planning Act (“Act”), and including a more recently combined appeal under s.114(15) of the City of Toronto Act;

AND THE TRIBUNAL HAVING BEEN PROVIDED by Affidavit, a written Witness Statement from Tyler Grinyer, a Partner with Bousfields Inc. (“Bousfields”), and qualified expert in Land-Use Planning, submitted on consent of the Parties (signed February 12, 2025) and marked as Exhibit 1;

AND THE TRIBUNAL HAVING BEEN PROVIDED with details of the proposed development as described in Exhibit 1, including detailed architectural plans prepared by Kirkor Architects and Planners (dated September 17, 2024) as filed in Exhibit 1 “E” (“Revised Proposal”) (pgs.194-216) which represents the basis of the Settlement between the Applicant/Appellant and the City of Toronto;

AND THE TRIBUNAL being advised by the Parties that Metrolinx neither supports nor opposes the above-noted appeals and being advised by the Parties that Metrolinx’s position on the above-noted appeals is without prejudice to any position it may take in any proceeding under the Expropriations Act;

AND THE TRIBUNAL BEING ADVISED THAT the Applicant/Appellant does not seek, nor will it accept any costs in relation to the above-noted appeals;

THEREFORE, THE TRIBUNAL FINDS THAT having considered the written materials filed, and the uncontroverted opinion evidence of Tyler Grinyer (Exhibit 1), and having accepted those opinions, is satisfied that the Settlement as presented: has regard to those applicable matters of provincial interest found in Section 2 of the Planning Act; is consistent with the Provincial Planning Statement 2024; conforms to the City of Toronto Official Plan; and represents good planning in the public interest;

THE TRIBUNAL ORDERS THAT:

1. The appeals filed pursuant to subsections 22(7) and 34(11) of the Planning Act are allowed, in part, on an interim basis, and the draft Official Plan Amendment set out in Attachment 1, and the draft Zoning By-law Amendment set out in Attachment 2 to this Interim Order, are hereby approved in principle;

2. The Tribunal will withhold the issuance of its Final Order contingent upon written confirmation from the Parties of the following prerequisite matters:

   1. the Tribunal has received, and approved, the final form and content of the draft Official Plan Amendment and Zoning By-law Amendment confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor and does not preclude or impact Metrolinx’s ability to proceed with its proposed bus loop and related infrastructure and works;
   2. the Tribunal is advised that the Applicant has withdrawn its appeal of the Yonge Street North Secondary Plan (OPA 615) (By-law 1016-2022) in Ontario Land Tribunal Case OLT-22-004346;
   3. the Tribunal is advised that the Applicant has submitted revised sun/shadow and wind studies reflecting the Revised Proposal as approved in whole or in part, to the satisfaction of the Chief Planner and Executive Director, City Planning, in consultation with the Executive Director, Development Review;
   4. the Tribunal is advised that the Applicant has demonstrated that the Revised Proposal meets Tier 1 of Version 4 of the Toronto Green Standard;
   5. the Tribunal is advised that the Applicant has addressed all outstanding issues raised by Urban Forestry and Tree Protection and Plan Review as they relate to the Official Plan and Zoning By-law Amendment application, to the satisfaction of the General Manager, Parks, Forestry and Recreation;
   6. the Tribunal is advised that the Applicant has submitted a Functional Servicing Report, Stormwater Management Report, Hydrogeological Report and associated plans to the City for review and acceptance, to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;
   7. the Tribunal is advised that the Applicant has submitted a revised Transportation Impact Study to the City for review and acceptance, to the satisfaction of the General Manager, Transportation Services;
   8. the Tribunal is advised that should it be determined that upgrades are required to the infrastructure to support the Revised Proposal according to the accepted Functional Servicing and Stormwater Management Report and/or the accepted Transportation Impact Study, then either:

   i. a Holding Provision should be included in the final form of the site-specific Zoning By-law Amendment, as the case may be, not to be lifted until such time as the owner has made satisfactory arrangements, including entering into appropriate agreement(s) with the City for the design and construction of any improvements to the municipal infrastructure and the provision of financial securities to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Transportation Services; or

   ii. prior to the issuance of a Final Order, the Applicant has entered into an agreement or agreements or has otherwise secured for the design, construction, and the provision of financial securities for any required upgrades or improvements to the existing municipal infrastructure, all to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and the General Manager, Transportation Services;

   iii. the Chief Planner has approved the Rental Housing Demolition application (24 103481 NNY 18 RH) under Chapter 667 Residential Rental Property Demolition and Conversion Control of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006, which allows for the demolition of the existing rental units on the sites, and the Applicant has entered into, and registered on title to the lands, one or more agreements with the City, to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, securing all rental housing-related matters necessary.

3. The above-noted Site Plan appeal pursuant to subsection 114(15) of the City of Toronto Act, 2006 is adjourned sine die;

4. The Member will remain seized for the purposes of reviewing and approving the final draft of the Official Plan Amendment and Zoning By-law Amendment and the issuance of the Final Order; and

5. The Applicant will provide the Tribunal with an update on the status of the matters on or before August 29, 2025;

6. The Tribunal may be spoken to in the event that there are difficulties in satisfying the above conditions for the issuance of the Tribunal's Final Order in respect of the above mentioned appeals.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR 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.

Attachment 1

Authority: Ontario Land Tribunal Decision issued on [insert date] and Ontario Land Tribunal Order issued on [insert date] in Tribunal File OLT-24-000676

CITY OF TORONTO

BY-LAW No. XXXX-2025(OLT)

To adopt Amendment No. XXX to the Official Plan of the City of Toronto with respect to lands municipally known in the year 2024 as 26, 28, 30, 32 and 34 Nipigon Avenue.

Whereas the Owner of the lands appealed a proposed Official Plan Amendment to the Ontario Land Tribunal pursuant to subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended; and

Whereas the Ontario Land Tribunal, by its Decision issued on [insert date] and its Order issued on [insert date], in respect of Tribunal File OLT-24-000676, approved amendments to the Official Plan for the City of Toronto with respect to the lands municipally known in the year 2024 as 26, 28, 30, 32 and 34 Nipigon Avenue.

The Ontario Land Tribunal Orders:

1. The attached Amendment No. XXX to the Official Plan is hereby adopted pursuant to the Planning Act, R.S.O. 1990, c P.13, as amended.

Pursuant to Ontario Land Tribunal Decision issued on [insert date] and Ontario Land Tribunal Order issued on [insert date] in Tribunal File OLT-24-000676.

AMENDMENT NO. XXX TO THE OFFICIAL PLAN

LANDS MUNICIPALLY KNOWN IN THE YEAR 2024 AS 26, 28, 30, 32 and 34 NIPIGON AVENUE

The following text and map constitute Amendment No. XXX to the City of Toronto Official Plan.

The Official Plan of the City of Toronto is amended as follows:

1. Map 16, Land Use, is amended by redesignating the lands known municipally in the year 2024 as 26, 28, 30, 32 and 34 Nipigon Avenue from Neighbourhoods to Mixed Use Areas, as shown on the attached Schedule 1.

2. Chapter 7, Site and Area Specific Policies, is amended by adding Site and Area Specific Policy No. XXX for the lands known municipally in the year 2024 as 26, 28, 30, 32 and 34 Nipigon Avenue, as follows:

“XXX. 26, 28, 30, 32 and 34 Nipigon Avenue

A 48-storey building is permitted.

3. Chapter 7, Map 27, Site and Area Specific Policies, is amended by adding the lands known municipally in 2024 as 26, 28, 30, 32 and 34 Nipigon Avenue as shown on the key map above as Site and Area Specific Policy XXX.

Attachment 2

Authority: Ontario Land Tribunal Decision issued on [insert date] and Ontario Land Tribunal Order issued on [insert date] in Tribunal File OLT-24-000676

CITY OF TORONTO

BY-LAW XXXX-2025(OLT)

To amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2024 as 26, 28, 30, 32 and 34 Nipigon Avenue.

Whereas the Ontario Land Tribunal, by its Decision issued on [insert date] and its Order issued on [insert date], in respect of Tribunal File OLT-24-000676, upon hearing an appeal under Section 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, determined to amend Zoning By-law 569-2013, as amended, with respect to the lands municipally known in the year 2024 as 26, 28, 30, 32 and 34 Nipigon Avenue; and

Whereas the Ontario Land Tribunal has the authority pursuant to Section 34 of the Planning Act, as amended, to pass this By-law; and

Whereas pursuant to Section 39 of the Planning Act, as amended, the council of a municipality may, in a by-law passed under Section 34 of the Planning Act, authorize the temporary use of land, buildings or structures for any purpose set out therein that is otherwise prohibited in the by-law;

The Ontario Land Tribunal Orders:

1. The lands subject to this By-law are outlined by heavy black lines on Diagram 1 attached to this By-law.

2. The words highlighted in bold type in this By-law have the meaning provided in Zoning By-law 569-2013, as amended, Chapter 800 Definitions.

3. Zoning By-law 569-2013, as amended, is further amended by amending the zone label on the Zoning By-law Map in Section 990.1 respecting the lands outlined by heavy black lines from a zone label of RD (f12.0; a370) and RD (12.0; a370) (x217) to a zone label of CR (c1.0; r1.0) SS2 (xXXX) as shown on Diagram 2 attached to this By-law.

4. Zoning By-law 569-2013, as amended, is further amended by amending Article 900.7.10 Exception Number (~) so that it reads:

(~) Exception CR (xXXX)

The lands, or a portion thereof as noted below, are subject to the following Site Specific Provisions, Prevailing By-laws and Prevailing Sections:

Site Specific Provisions:

(A) On lands municipally known as 26 to 34 Nipigon Avenue, if the requirements of By-law [Clerks to insert By-law number] are complied with, a building or structure may be constructed, used or enlarged in compliance with Regulations (B) to (T) below;

(B) Despite regulations 40.5.40.10(1) and (2), the height of a building or structure is the distance between the Canadian Geodetic Datum of 193.65 metres and the elevation of the highest point of the building or structure;

(C) Despite Clause 40.10.30.40, the maximum lot coverage for the lands shall be 60 percent;

(D) Despite Regulation 40.10.40.10(2), the permitted maximum height of a building or structure is the number in metres following the letters "HT" as shown on Diagram 3 of By-law [Clerks to insert By-law number];

(E) For the purpose of this exception, mezzanines do not constitute as a storey;

(F) Despite Regulations 40.5.40.10(3) to (8) and (D) above, the following equipment and structures may project beyond the permitted maximum height shown on Diagram 3 of By-law [Clerks to insert By-law number]:

(i) equipment used for the functional operation of the building, including electrical, utility, mechanical and ventilation equipment, as well as enclosed stairwells, roof access, maintenance equipment storage, elevator shafts, chimneys, and vents, by a maximum of 6.5 metres;

(ii) structures that enclose, screen, or cover the equipment, structures and parts of a building listed in (i) above, by a maximum of 6.5 metres;

(iii) architectural features, parapets, and elements and structures associated with a green roof, by a maximum of 3.5 metres;

(iv) building maintenance units and window washing equipment, by a maximum of 7.5 metres;

(v) planters, landscaping features, guard rails, railings, privacy and wind screens, and divider screens on a balcony and/or terrace, by a maximum of 3.5 metres;

(vi) antennae, flagpoles and satellite dishes, by a maximum of 3.5 metres; and

(vii) trellises, pergolas, and unenclosed structures providing safety or wind protection to rooftop amenity space, by a maximum of 3.5 metres;

(G) Despite Regulation 40.10.40.40(1), the permitted maximum gross floor area of all buildings and structures is 36,000 square metres of which:

(i) a minimum gross floor area of 92.9 square metres shall be for non-residential uses;

(H) For the purposes of this exception, a car-share and car-share parking spaces may be provided for the purposes of car-sharing;

(I) The provision of dwelling units is subject to the following:

(i) a minimum of 30 percent of the total number of dwelling units must have 2 or more bedrooms; and

(ii) a minimum of 10 percent of the total number of dwelling units must have 3 or more bedrooms;

(J) In accordance with Regulation 40.10.40.50(1), amenity space shall be provide at a minimum rate of 4.0 square metres for each dwelling unit, of which,

(i) at least 2.0 square metres for each dwelling unit is indoor amenity space;

(ii) at least 40.0 square metres is outdoor amenity space in a location adjoining or directly accessible to the indoor amenity space; and

(iii) no more than 25% of the outdoor component may be a green roof;

(K) Further to the definition of amenity space set out in Regulation 800.50(15), pet amenities shall be considered amenity space.

(L) Despite Regulation 40.10.40.70(2), the required minimum building setbacks are as shown in metres on Diagram 3 of By-law [Clerks to insert By-law number];

(M) Despite Regulation 40.10.40.80(2), the required separation of main walls are as shown in metres on Diagram 3 of By-law [Clerks to insert By-law number];

(N) Despite Regulation 40.5.40.60(1), Clause 40.10.40.60, and (L) above, the following elements may encroach into the required minimum building setbacks and main wall separation distances as follows:

(i) balconies, canopies and awnings by a maximum of 2.5 metres;

(ii) notwithstanding (i) above, balconies are not permitted within the 7.5 metre west setback, as shown on Diagram 3 of By-law [Clerks to insert By-law number];

(iii) exterior stairs, access ramps and elevating devices, by a maximum of 2.0 metres;

(iv) cladding added to the exterior surface of the main wall of a building, by a maximum of 2.0 metres;

(v) architectural features, such as a pilaster, decorative column, cornice, sill, belt course, or chimney breast, by a maximum of 2.0 metres;

(vi) window projections, including bay windows and box windows, by a maximum of 2.0 metres;

(vii) eaves, by a maximum of 2.5 metres;

(viii) dormers, by a maximum of 2.0 metres;

(ix) air conditioners, satellite dishes, antennae, vents, and pipes, by a maximum of 2.0 metres; and

(x) guardrails, railings, parapets, terraces, privacy, wind and divider screens, and terrace platforms to a maximum extent of the main wall of the storey below;

(O) Despite Regulation 40.10.90.10(1)(C), a loading space may be located in a side yard that abuts a lot in the Residential Zone category;

(P) Despite Regulation 200.15.1(1), an accessible parking space must have the following minimum dimensions:

(i) length of 5.6 metres;

(ii) width of 3.4 metres;

(iii) vertical clearance of 2.1 metres; and

(iv) the entire length of an accessible parking space must be adjacent to a 1.5 metre wide accessible barrier free aisle or path;

(Q) For the purposes of this By-law, accessible parking spaces must be the parking spaces closest to a barrier free:

(i) entrance to a building; and

(ii) passenger elevator that provides access to the first storey of the building; and

(iii) within 40 metres of the entrances referred to in (i) and (ii) above;

(R) Despite Regulation 230.5.1.10(10) and notwithstanding Regulation 230.10.1.20(1), “long-term” and “short-term” bicycle parking spaces may be located in a stacked bicycle parking space and may be located in an enclosed room;

(S) For the purpose of this exception, each word or expression that is in bold font will have the same meaning as such word or expression as defined in Chapter 800 of Zoning By-law 569-2013, as amended, except for the following except for the following:

(i) “Car-share” or “car-sharing” means the practice where a number of people share the use of one or more cars that are owned by a profit or non-profit car-sharing organization and where such organization may require that use of cars be reserved in advance, charge fees based on time and/or kilometres driven, and set membership requirements of the car sharing organization, including the payment of a membership fee that may or may not be refundable.

(ii) “Car-share parking” means a parking space that is reserved and actively used for car-sharing.

(T) “Construction Office/Sales Office” means buildings, structures, facilities or trailers, or portions thereof, used for the purpose of the administration and management of construction activity and/or for selling or leasing dwelling units;

(U) Prevailing By-laws and Prevailing Sections: None Apply

5. Despite any severance, partition or division of the lands, the provisions of this By-law shall apply as if no severance, partition or division occurred.

6. Temporary Use(s):

(A) None of the provisions of Zoning By-law 569-2013, as amended, or By-law [Clerks to insert By-law number] shall apply to prevent the erection and use of a “Construction Office/Sales Office” on the lands to which this By-law applies for a period of 3 years from the date this By-law comes into full force and effect, after which this temporary use permission expires;

Pursuant to Ontario Land Tribunal Decision issued on [insert date] and Ontario Land Tribunal Order issued on [insert date] in Tribunal File OLT-24-000676