1989627 Ontario Inc. v. Toronto (City), 2025 CanLII 24798

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 18, 2025

CASE NO(S).:

OLT-24-001076

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

Applicant/Appellant

1989627 Ontario Inc.

Subject:

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

Description:

To propose a 26-storey mixed-used residential development.

Reference Number:

23 228917 WET 03 OZ

Property Address:

210 Islington Avenue and 99 Birmingham Street

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-24-001076

OLT Case Name:

1989627 Ontario Inc. v. Toronto (City)

Heard:

January 28, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

1989627 Ontario Inc.

Rowan Barron Chris Tanzola Michael Cara Daniel Teichman (articling student)

City of Toronto

Sarah O'Connor

MEMORANDUM OF ORAL DECISION DELIVERED BY C. I. MOLINARI ON january 28, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a Case Management Conference ("CMC") with respect to appeals filed pursuant to s. 34(11) of the Planning Act ("Act") by 1989627 Ontario Inc. against the City of Toronto ("City") for its failure to make a decision on a Zoning By-law Amendment application ("Application") within the timeframe prescribed by the Act.

2The purpose of the Application is to facilitate the development of a 26-storey mixed-used building with 352 residential units on the properties located at 210 Islington Avenue and 99 Birmingham Street ("Property").

NOTICE

3An Affidavit of Service sworn on January 3, 2025, attesting to the giving of notice for this proceeding, was marked as Exhibit 1. There were no concerns raised regarding the notice, and the Tribunal was satisfied that proper notice of this CMC had been provided. In this regard, no further notice is required for the appeals.

PARTY / PARTICIPANT STATUS REQUESTS

4The Tribunal was in receipt of a request for Participant status from Juanita Forde McDermott, a neighbouring property owner, citing concerns related to the proposed use of the Property for a mixed use building with retail uses at grade, and the proposed height.

5There were no objections to the Participant status request and Ms. Forde McDermott was granted Participant status as she has a genuine and direct interest in the matter and could assist the Tribunal in making its decision.

6There were no additional requests for Party or Participant status either before or during the CMC.

7The Tribunal advised the Parties to ensure that their witnesses address the concerns of the Participant in their evidence.

DRAFT PROCEDURAL ORDER

8Ahead of the CMC, the Parties advised the Tribunal that the City requires direction from City Council in order to finalize the Issues List and that this item will not be considered by City Council until February 5, 2025. Ms. O'Connor indicated that the draft Procedural Order ("DPO") could be finalized and submitted to the Tribunal by February 12, 2025.

9After the CMC, the Tribunal received the final DPO with the merit hearing and filing dates included, based on the hearing dates set out below. The Tribunal is satisfied with the final DPO.

HEARING EVENTS

10At the request of the Parties, the Tribunal scheduled a ten-day hearing commencing on Monday, September 15, 2025, at 10 a.m., by video hearing through to Friday, January 26, 2025.

11Parties are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:

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

Access Code: 656-004-293

12Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoTo Meeting or a web application is available at: https://app.gotomeeting.com/home.html.

13Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to the 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.

14Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Case Coordinator having carriage of this case.

15The Parties are reminded to ensure their witnesses address s. 2 of the Act and the Participant's concerns in their witness statements.

MEDIATION / SETTLEMENT

16The Tribunal advised the Parties of the option of Tribunal-led mediation and/or a written hearing if a settlement is reached, and to contact the Case Coordinator to determine next steps as required.

ORDER

17THE TRIBUNAL ORDERS THAT:

a) Participant status is granted to Juanita Forde McDermott;

b) a ten-day hearing will be held by video as scheduled above; and,

c) the Procedural Order set out in Schedule A shall govern the proceedings.

"C. I. Molinari"

C. I. MOLINARI

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 A

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunaux de l’aménagement du territoire Ontario 655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca

CASE NO(S).:

OLT-24-001076

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

Applicant/Appellant

1989627 Ontario Inc.

Subject:

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

Description:

To propose a 26-storey mixed-used residential development.

Reference Number:

23 228917 WET 03 OZ

Property Address:

210 Islington Avenue and 99 Birmingham Street

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-24-001076

OLT Case Name:

1989627 Ontario 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 video hearing will begin on September 15, 2025 at 10:00 am.

3. The parties' initial estimation for the length of the hearing is 10 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 and participants identified at the case management conference are set out in Attachment 2.

5. The issues are set out in the Issues List attached as Attachment 3. With the exception of removal or narrowing of the issues, there will be no changes to this list unless the Tribunal permits and/or the parties consent to the changes. A party who asks for changes to this list may have costs awarded against it.

6. The order of evidence is set out in Attachment 4. 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 the parties' 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 and the other parties. Any person who will be retaining a representative shall advise the Tribunal and the other parties of the representative's name, address, email address and the phone number.

8. 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.

Requirements Before the Hearing

9. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal to the other Parties on or before May 30, 2025. The applicant acknowledges that any revisions to the proposal after that date without the consent of the parties may be grounds for a request to adjourn the hearing.

10. 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 on or before July 4, 2025 and in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness' Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified. Any challenges to a 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 July 14, 2025.

11. Expert witnesses in the same field shall have a meeting on or before July 21, 2025 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts' meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before August 4, 2025.

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 14 below. 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.

13. 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 14 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness' evidence, as in paragraph 14 below.

14. On or before August 18, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties and the Tribunal and in accordance with paragraph 23 below.

15. On or before August 18, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before August 11, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before September 5, 2025, the parties shall provide copies of their written response(s) to any written evidence to the Tribunal and the other parties in accordance with paragraph 23 below.

18. On or before September 9, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal on or before September 9, 2025.

20. 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.

21. A party who provides written evidence of a witness 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 9, 2025 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7 of the Tribunal's Rules.

24. 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 applies to such requests.

25. 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.

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

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

May 30, 2025

Last date to provide revised plans and drawings (if any)

July 4, 2025

Exchange of Witness Lists

July 14, 2025

Challenge of any witnesses to be brought by this date

July 21, 2025

Experts meeting(s) prior to this date

August 4, 2025

Deadline to File Any Agreed Statement(s) of Facts

August 18, 2025

Exchange of Witness Statements and Experts Reports, Participant Statements (if any), and summoned witness outlines (if any)

August 22, 2025

Parties to Advise if Any Hearing Dates Can be Released

September 5, 2025

Exchange of Reply Witness Statements (if any)

September 9, 2025

Filing of Work Plan and Joint Document Book

September 9, 2025

Exchange of Visual Evidence (if any)

September 15-26, 2025

Ontario Land Tribunal Hearing (10 days total)

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

A. PARTIES

Counsel/*Agent

1989627 Ontario Inc. (Applicant/Appellant)

Christopher Tanzola / Michael Cara / Rowan Barron Overland LLP 5255 Yonge Street, Suite 1101 Toronto, ON M2N 6P4 Email: ctanzola@overlandllp.ca / mcara@overlandllp.ca / rbarron@overlandllp.ca Tel: 416-730-0645 / 416-730-8844 / 647-678-7727

City of Toronto

Sarah O'Connor/ Rachel Godley The City of Toronto, Legal Services Metro Hall, 55 John Street 26th Floor Toronto, ON M5V 3C6 Email: Sarah.OConnor@toronto.ca Rachel.Godley@toronto.ca Tel: 416-397-5378 / 416- 338-3946

B. PARTICIPANTS

Counsel/*Agent

Juanita Forde McDermott

Email: mcdermott.juanita@gmail.com Tel: 416-579-6924

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.

City of Toronto:

Issue 1 – Planning Act. Does the proposed Zoning By-law Amendment have regard for the matters of provincial interest set out in Section 2 of the Planning Act, including subsections 2(f), (h), (j), (k), (q) and (r)?

Issue 2 - Provincial Policy Statement. Is the proposed Zoning By-law Amendment consistent with the Provincial Policy Statement, 2024, including sections 2.1 (6), 2.2 (1), 2.3.1 (1), (2), and (3), 2.8.1 (3), and 3.5?

Issue 3 – City of Toronto Official Plan. Does the proposed Zoning By-law Amendment conform with the applicable policies of the City of Toronto Official Plan including:

Structuring Growth in the City: Integrating Land use and Transportation (2.2), including 2.2 (2) and 2.2.4 (5);

The Public Realm (3.1.1), including 3.1.1 (2), (13), (14), and (16);

Built Form (3.1.3 & 3.1.4), including 3.1.3 (1), (5), (6), (7), (9), (11), and (13) and 3.1.4 (4), (5), (7), (8), (9), (10), (11), and (12);

Mixed Use Areas (4.5), including 4.5 (2);

Implementation (5.3.1, 5.3.2, and 5.6); and

Site and Area Specific Policy 784?

Issue 4 – City of Toronto Guidelines. Does the proposed development have appropriate regard for and meet the intent and purpose of applicable City of Toronto Guidelines and standards including but not limited to Mid-Rise Building Design Guidelines and Tall Building Design Guidelines?

Issue 5 – Height and Density. Is the proposed development's height and density appropriate in the existing and planned context?

Issue 6 – Transition in scale. Does the proposed development provide good transition between areas of different intensity and scale, particularly to areas of low-rise to mid-rise residential, employment, and mixed-use along Birmingham Street and Islington Avenue?

Issue 7 – Shadow Impacts. Does the proposed development's shadow impacts on Parks, nearby Neighbourhoods, adjacent streets and sidewalks represent good planning? Does the proposed development locate and mass new buildings and provide built form transition to adequately limit shadow impacts to maintain sunlight on adjacent streets, sidewalks and nearby Neighbourhoods, particularly during the Spring and Fall equinoxes?

Issue 8 – Streetscape and Public Realm. Is the proposed development's relationship with the public realm and resulting streetscape appropriate, and does it represent good planning? Is the proposed building envelope, including building setbacks and stepbacks from the property lines, adequate to provide for:

a. appropriately sized pedestrian clearways;

b. adequate tree planting and soil volume area ;

c. adequate pedestrian weather protection;

d. appropriate ground floor animation as per the Midrise Building Design Guidelines, the Tall Building Design Guidelines and the Retail Design Manual;

e. adequate space for pedestrian and cycling infrastructure;

f. the standards and requirements of the City's Streetscape Manual; and

g. the standards and requirements of the Toronto Green Standard.

Issue 9 – Traffic Impact, Access, Parking, and Loading. Is the proposed development designed in accordance with accepted transportation engineering principles, zoning performance standards and City of Toronto Guidelines as they relate to appropriate site circulation, access, parking, parking functionality, parking supply and dimensions, bicycle parking, loading, vehicle maneuvering, and functionality of surrounding intersections?

Issue 10 – Amenity Space. Does the development provide appropriate consideration of pet-friendly amenities commensurate with a development with greater than 200 units and meet the intent of the City of Toronto Pet Friendly Design Guidelines for High Density Communities?

Issue 11 – Servicing. Has it been demonstrated that there are adequate municipal services in place to support the proposed development? Is there adequate sanitary, storm and water capacity available to allow for adequate water pressure, and appropriate stormwater and groundwater management?

Issue 13 – Public Interest and Good Planning. Does the proposed Zoning By-law Amendment provide for good planning and good urban design and is it in the public interest?

Issue 14 - Implementation. In the event the proposed Zoning By-law Amendment is approved in whole or in part, should the Tribunal's Order be withheld until the following conditions are satisfied and the Tribunal has received confirmation from the City Solicitor that:

1. The final form and content of the Zoning By-law Amendment is satisfactory to the Executive Director, Development Review, and the City Solicitor;

2. The owner or applicant, at their sole cost and expense, has submitted a revised Functional Servicing and Stormwater Management Report to demonstrate that the existing sanitary sewer system and watermain and any required improvements to them, have adequate capacity and supply to accommodate the development of the lands to the satisfaction of the Director, Engineering Review;

3. If the accepted Functional Servicing and Stormwater Management Report requires any new municipal infrastructure or upgrades to existing municipal infrastructure to support the development, then either:

4. The owner or applicant has secured the design, construction, and provision of financial securities for any new municipal infrastructure, or any upgrades or required improvements to the existing municipal infrastructure identified in the accepted Functional Servicing and Stormwater Management Report, to support the development, in a secured financial agreement, all to the satisfaction of the Director, Engineering Review; or,

5. The required new municipal infrastructure or upgrades to existing municipal infrastructure to support the development in the accepted and satisfactory Functional Servicing and Stormwater Management Report are constructed and operational, all to the satisfaction to the Director, Engineering Review;

6. The owner has addressed all outstanding issues identified in the Engineering and Construction Services' correspondence, dated June 28, 2024, to the satisfaction of the Director, Engineering Review;

7. The owner has provided a revised Transportation Impact Study to the satisfaction of the Director, Engineering Review;

8. The owner has provided a revised Pedestrian Level Wind Study including a Wind Tunnel Study, with mitigations validated and incorporated into the provisions of the Zoning By-law Amendment to the satisfaction of the Executive Director, Development Review and Chief Planner and Executive Director, City Planning;

9. The submitted Compatibility/Mitigation Study and Roadway Traffic Noise Feasibility Assessment, both dated September 20, 2023, and prepared by Gradient Wind Engineering Inc. have been peer-reviewed by a third-party consultant retained by the City at the owner's expense, and the owner agrees to implement any necessary control measures and recommendations identified by the peer review, with the control measures to be secured through the Site Plan Control process, to the satisfaction of the Executive Director, Development Review; and

10. The owner has addressed all outstanding issues raised by Urban Forestry, Tree Protection and Plan Review, as they relate to the application, to the satisfaction of the General Manager of Parks, Forestry and Recreation.

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. 1989627 Ontario Inc. (Applicant/Appellant)
2. City of Toronto
3. 1989627 Ontario Inc. (if necessary)

ATTACHMENT 5

MEANING OF TERMS USED IN THE PROCEDURAL ORDER

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person's background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness' opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert's duty.

A participant statement is a short written outline of the person's or group's background, experience and interest in the matter; a statement of the participant's position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness' evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.