Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 15, 2025

CASE NO(S).: OLT-22-004824 OLT-22-002785 (Formerly PL140743)

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

Applicant and Appellant: Dorsay (Residential) Developments Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the development of 18-storey and 20-storey residential buildings with a ground floor community facility and/or ground floor retail space on the West Parcel and a 17-storey residential building with ground floor retail on the East Parcel for a total of 661 residential units in both parcels

Reference Number: PLAN 20 127887

Property Address: East and west sides of Circa Drive, north of Highway 7 East and legally described as Part of Lot 11, Concession 4 and Part of Block 3 of 65M-2503

Municipality/UT: City of Markham/ Regional Municipality of York

OLT Case No.: OLT-22-004824

OLT Lead Case No.: OLT-22-004824

OLT Case Name: Dorsay Development Corporation v. Markham (City)

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

Applicant/Appellant: Dorsay (Residential) Developments Inc.

Subject: Application to amend the Zoning By-law – Neglect to make a decision

Description: To permit the development of 18-storey and 20-storey residential buildings with a ground floor community facility and/or ground floor retail space on the West Parcel and a 17-storey residential building with ground floor retail on the East Parcel for a total of 661 residential units in both parcels

Reference Number: PLAN 22 260438

Property Address: East and west sides of Circa Drive, north of Highway 7 East and legally described as Part of Lot 11, Concession 4 and Part of Block 3 of 65M-2503

Municipality/UT: City of Markham/ Regional Municipality of York

OLT Case No.: OLT-23-000151

OLT Lead Case No.: OLT-22-004824

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: Dorsay (Residential) Developments Inc.

Subject: Site Plan

Description: To permit the development of 18-storey and 20-storey residential buildings with a ground floor community facility and/or ground floor retail space on the West Parcel and a 17-storey residential building with ground floor retail on the East Parcel for a total of 661 residential units in both parcels

Reference Number: SPC 23-121041

Property Address: East and west sides of Circa Drive, north of Highway 7 East and legally described as Part of Lot 11, Concession 4 and Part of Block 3 of 65M-2503

Municipality/UT: City of Markham/ Regional Municipality of York

OLT Case No.: OLT-23-000889

OLT Lead Case No.: OLT-22-004824

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

Appellant (jointly): Angus Glen Holdings Inc., Angus Glen North West Inc. & North Markham Landowners Group

Appellant (jointly): Beechgrove Estates Inc., Minotar Holdings Inc., Cor-Lots Developments, Cherokee Holdings & Halvan 5.5 Investments Ltd.

Appellant (jointly): Brentwood Estates Inc., Colebay Investments Inc., Highcove Investments Inc., Firewood Holdings Inc., Major McCowan Developments Ltd. & Summerlane Realty Corp.

Appellant: And others (see attached Schedule 1)

Subject: Proposed New Official Plan – Part 1 (December 2013) – for the City of Markham

Municipality: City of Markham

OLT Case No.: OLT-22-002785

Legacy Case No.: PL140743

OLT Lead Case No.: OLT-22-002785

Legacy Lead Case No.: PL140743

OLT Case Name: Angus Glen Holdings Inc. v. Markham (City)

Heard: July 17-19 & 23-26, 2024 by Video-Hearing, November 8, 2024 by Written Submissions

APPEARANCES:

Parties	Counsel
Dorsay (Residential) Developments Inc.	Meaghan McDermid Liam Valgardson
City of Markham	Andrew Biggart Maggie Cheung-Madar

DECISION DELIVERED BY N. EISAZADEH AND ORDER OF THE TRIBUNAL

Link to Final Order/Decision

INTRODUCTION

1This Decision arises from the Merit Hearing disposing of four Appeals brought by Dorsay (Residential) Developments Inc. (“Applicant”) pursuant to s. 22(7) of the Planning Act¹, (“Act”) for an Official Plan Amendment (“OPA”), s.34(11) of the Act for a Zoning By-law Amendment (“ZBA”), and s. 41(12) of the Act for a Site Plan Application (“SPA”) due to the failure of Council of the City of Markham (“City”) to make a decision within the statutory timeframes. The Decision also arises from s. 17(36) of the Act pertaining to a related Appeal by the Applicant (Appeal #21) regarding the approval of a new Official Plan for the City (“MOP 2014”). The four Appeals pertain to the land parcels legally described as Part of Lot 11, Concession 4 and Part of Block 3 of 65M-2503 (‘Subject Lands”) located in the City.

2For the reasons that follow below, the Tribunal determines that the Appeals are allowed, and the requested relief is granted.

BACKGROUND

Undisputed Facts: Subject Lands, Surroundings, Historical Context and Proposal

3The Subject Lands are currently vacant, measure approximately 1.05 hectares (“ha”) or 2.59 acres (“ac”) in size and are located on the north side of Highway 7, bisected by Circa Drive. The Subject lands are located within the Markham Centre, an Urban Growth Centre, a Major Transit Station Area (“MTSA”), and the emerging downtown of the City. They are comprised of:

i. The western parcel totalling 0.72 ha or 1.77 ac (“Parcel D”); and ii. The eastern parcel totaling 0.33 ha or 0.82 ac (“Parcel C”).

4The land uses surrounding the Subject Lands include:

i. To the North: public parkland abutting the Subject Lands and low-density three-storey residential townhouses; ii. To the East: a high-density 16-storey apartment building and George Coalthup Park (developed as part of Phases 1 & 2 of the “Circa Development” as defined below), and the Markham Civic Centre; iii. To the South: vacant lands (approved for a mixed-use and residential high-rise development in-progress) and employment uses; and iv. To the West: Hydro corridor, employment uses west of Rodick Road and St. Maurice & St. Verena Coptic Church.

5The Subject Lands represent the last phase (Phase 3) of a development in a master planned community known as the “Circa Development” that includes 155 existing townhomes and two 16-storey high-rise buildings to the north and east completed as Phases 1 and 2 in 2010. As part of these earlier phases of development, and the intended development of the Subject Lands, the Applicant and City entered into a Master Site Plan and Development Agreement dated December 11, 2003 (“Development Agreement”). The Development Agreement set out various development criteria and conditions including, namely:

i. the dedication of a linear park located immediately north of the Subject Lands (“Park Lands”); and, ii. permission for a private parking structure below the Park Lands and the strata conveyance of that below grade portion of the Park Lands back to the Applicant.

6Under the Development Agreement, the Park Lands have already been dedicated to, and are now owned by the City. The Park Lands north of Parcel D is 0.49 ha and the Park Lands north of Parcel C are 0.17 ha in size.

7From the outset of the Development Agreement, it was always anticipated that Phase 3 would develop the Subject Lands with multi-storey buildings. Initially, the plan intended two mixed-use office commercial buildings and a potential seniors’ home with an adjacent strata park that encompassed underground parking beneath the Park Lands. Over the course of the 20-year period following the Development Agreement and completion of Phases 1 & 2 to present day, it was determined that commercial offices originally intended for Phase 3 was no longer viable nor fulfilling community needs. During this time, planning policies evolved as did the surrounding area and context, including the occurrence of the global COVID-19 pandemic, change in transit infrastructure, the closure of Buttonville Airport which eliminated certain development height restrictions, as well as the development of other high-rise buildings in the area.

8In response to the shifting landscape, and after multiple iterations of a revised proposal for the Phase 3 development, the Applicant now proposes two mixed-use residential buildings at heights of 34 and 35 storeys consisting of 849 residential units and 1,569.9 square metres (“sq m”) of ground floor commercial and retail space on Parcel D; and one mixed use building of 25 storeys consisting of 312 residential units with 725 sq m of ground floor commercial and retail space on Parcel C; collectively totalling 1161 residential units. In addition, a total of 3,173.4 sq m of indoor and outdoor amenity area is provided on Parcel D and a total of 1,898.4 sq m is provided on Parcel C (“Revised Phase 3 Development Proposal” or “Proposed Development”).

9The Revised Phase 3 Development Proposal proposes a podium and tower built-form comprised of a four-storey podium with terraces and stepbacks on the third and fourth storeys, and a residential tower portion above with an average tower floorplate of 769 sq m. A second storey bridge is proposed to connect the two buildings on Parcel D. The outdoor amenity areas are proposed to be located at the rear of the buildings on the mezzanine and second floors facing toward, and with connection to, the Park Lands.

10In support of the Revised Phase 3 Development Proposal, the OPA, ZBA and SPA are required. The OPA facilitates the Proposed Development by amending the Markham Centre Secondary Plan (“MCSP”) by replacing the site-specific policy for the Subject Lands to permit the heights and densities proposed. The ZBA implements the Proposed Development by amending the existing site-specific exceptions for the Subject Lands to permit the density, height, setbacks and parking requirements as well, it includes a site-specific exception for the Park Lands to permit the below grade parking structure in accordance with the Development Agreement. Proposed modifications to the City’s MOP 2014 have also been prepared to implement policy and mapping changes required to permit the Proposed Development by updating the land use designations for the Subject Lands and adding a site-specific policy to permit the heights and densities proposed.

LEGISLATION, PLANS AND POLICIES

11During the course of the Hearing, the respective Planners for the Parties agreed that the relevant legislative and policy scheme applicable on the Appeal at that time included: the Act, the Provincial Policy Statement, 2020 (“PPS 2020”), A Place to Grow, Growth Plan for the Greater Golden Horseshoe 2019 as modified in 2020 (“Growth Plan”), the City’s OP 1987 (‘MOP 1987”, in particular Official Plan Amendment 21 or the MCSP and Official Plan Amendment 96 except as proposed to be amended), the MOP 2014; the York Region Official Plan 2010 (“YROP”); and the City of Markham Urban Area Zoning By-law No. 177-96 (“MZBL”).

12Following the conclusion of the Hearing and before this Decision issued, on October 20, 2024, the Province of Ontario replaced the PPS 2020 and Growth Plan with the Provincial Planning Statement, 2024 (“PPS 2024”). There are no transition policies for the PPS 2020 or Growth Plan and all Tribunal Decisions issued after October 20, 2024 must be consistent with the PPS 2024 pursuant to s.3(5) of the Act. Accordingly, on November 8, 2024, the Tribunal received additional Affidavit evidence from the respective Parties’ Planning experts to support their agreed position that the PPS 2020 and Growth Plan policies which are relevant to the issues on this Appeal have been incorporated into the PPS 2024 without significant change in their direction or intent. Both Parties and their respective Planning experts agree that their respective written and oral evidence regarding consistency and conformity of the Proposed Development with the PPS 2020 and Growth Plan policies continue to apply to the PPS 2024. Both Parties and their respective Planning experts further agree that there is no need to reopen the Hearing for further evidence and submissions to be received by the Tribunal, as the implementation of the new PPS 2024 has not resulted in any change to the respective Planning experts’ original opinions.

13The Tribunal accepts the position of the Parties in respect of the PPS 2024, accepts the additional Affidavit evidence of Matthew Cory (sworn November 7, 2024) and Adrian Litavski (sworn November 8, 2024), and enters them as Exhibit 17 and Exhibit 18, respectively. On the agreed upon Planning evidence and positions of Counsel for the Parties, the Tribunal accepts that there is no need to reopen the Hearing for additional oral evidence or submissions beyond the limited purpose of allowing the additional two aforementioned Affidavits to be entered into evidence.

EVIDENCE AND ANALYSIS

The Core Issues

14There is no dispute among the Parties that mixed-use residential development is a better use of the Subject Lands than the originally intended office/commercial development. There is also no dispute regarding the overall density, nor height of the tower portion of the buildings. Indeed, through cooperation among the Parties and their respective expert witnesses, many of the issues outlined in the Procedural Order governing this Hearing were resolved or narrowed leaving only the following four key issues in dispute:

i. Shadows cast on the adjacent Park Lands by the podium of the proposed buildings; ii. Future grading and design of the adjacent Park Lands and associated site plan conditions; iii. Adequacy of affordable housing offered through the Proposed Development; iv. Adequacy of the proposed unit mix of the Proposed Development.

The Evidence

15The Tribunal received and entered voluminous documentary and visual evidence, and heard oral testimony from the following witnesses:

On Behalf of the Applicant

i. Matthew Cory, Registered Professional Planner (“RPP”), qualified without objection to provide expert opinion evidence in the area of Land Use Planning; ii. Mark Schollen, Registered Landscape Architect qualified without objection to provide expert opinion evidence in the area of Landscape Architecture; and, iii. Mark Sterling, RPP and retired Architect qualified without objection to provide expert opinion evidence in the area of Urban Design;

On Behalf of the City

i. Jyoti Pathak, Project Manager for the City’s Parks Planning and Open Space Development Division within the Planning and Urban Design Department, qualified without objection to provide expert opinion evidence in the area of Parks Planning inclusive of Landscape Architecture; ii. Lawrence Yip, Supervisor of Development Review with the City’s Planning and Urban Design Department, qualified without objection to provide expert opinion evidence in the area of Urban Design; and, iii. Adrian Litavski, RPP qualified without objection to provide opinion evidence in the area of Land Use Planning.

Participant Statements

16By prior Orders of this Tribunal dated September 21, 2023 and December 27, 2023, and by a Panel differently constituted, Participant status was granted to the following (whose Participants Statements and associated documents were entered as Exhibits at the present Hearing, as noted):

i. Aamir Jeewa, on behalf of the Board of Directors of York Region Standard Condominium Corporation (“YRSCC”) 1043 (Exhibit 10); ii. Connie Chan, on behalf of the Board of Directors of YRSCC 1072 (Exhibit 11); iii. Kelvin Shao (Exhibit 12); iv. Patricia Lee (Exhibit 13); and, v. Wai Che Regina Chan (Exhibit 14)

Motion for Recusal

17At the outset, The Tribunal shall address a motion for recusal (“Motion”) brought by the City. On the second day of Hearing, the Tribunal received evidence from the Applicant’s Planner, Mr. Cory. Following approximately an hour of his testimony, Counsel for the City, Andrew Biggart, flagged an issue for which he requested that the matter be stood down, recognizing the unconventional request, however stating that Counsel required time to discuss an issue arising from Mr. Cory’s testimony. The request was granted, and the Hearing reconvened the following day on Friday July 19, 2024. On that morning, the Tribunal received Motion material from the City requesting, inter alia, an Order that the Presiding Member recuse herself and direct a new Hearing be convened before a different Tribunal member. The basis for the request was that, in the City’s view, there was inappropriate disclosure by Mr. Cory of without prejudice information that was protected by settlement privilege. The City argued that disclosure of such information caused irreparable prejudice to the City which could only be cured by way of the appointment of a new Hearing before a different Tribunal Member who did not hear the privileged information. Given the short service of the City’s Motion materials, Counsel for the Applicant, Ms. McDermid, requested an indulgence of time until that afternoon to be permitted to prepare for and respond to the Motion. The request was granted, and an in camera Motion was convened that afternoon at 1:00 p.m.

18After a considerable and careful review of the arguments and materials submitted on the Motion, the Tribunal concluded that the Motion be dismissed.

19The impugned testimony, that which was alleged to be protected under settlement privilege and revealed within the approximate one-hour duration of testimony by Mr. Cory on Thursday July, 18, 2024, was never specifically identified. While Mr. Biggart argued that the Tribunal must accept the uncontroverted evidence before it that in fact information protected by settlement privilege was revealed, it must be reinforced that the ultimate determination of such privilege rests with the trier of fact, and not with one witness’s say-so over another. Given the circumstances of this case and the manner in which the Motion was argued, which is appreciated to have been done to avoid compounding the potential issue or inadvertently waive the privilege, it nonetheless rendered the task of determining privilege impossible. Notwithstanding, even if accepted for the purposes of the Motion that the information revealed was indeed “without prejudice” and protected under settlement privilege, the Tribunal found that the City had not satisfied its onus of establishing that there is an actual bias, or an apprehension of bias by a reasonably informed person in the circumstances of this case.

20To Begin, there was no evidence heard in the course of the one-hour of testimony from Mr. Cory that was so highly prejudicial or that had tainted the Hearing such that it could not be completely disabused from mind or that would consciously or unconsciously affect the ability to discharge the public duty owed to fairly adjudicate the material issues in dispute. Indeed, in a way quite different from Superior and Criminal Courts, Decisions from which were cited by Mr. Biggart on the Motion, Members of this Tribunal have a unique experience in their understanding of the iterative processes that precede every planning matter that comes before the Tribunal. In addition, they have a unique understanding of where in that process the boundaries are as to what constitutes privileged settlement discussion compared to those discussions which respond to multiple commenting agencies along the iterative process, often times leading right up to the Hearing of the Appeal. As stated by Vice Chair Tousaw in the 386823 Ontario Ltd. V. Windsor (City)² Decision cited by the City, “[t]he normal diet of the Tribunal is to digest correspondence, positions, facts and law in arriving at a decision, all within the context of land use disputes and often with significant implications.” As in that case, there is no reason why a Member in the circumstance of the present Appeal too cannot disabuse her mind of the alleged potentially prejudicial information and proceed to a determination on the merits impartially.

21Secondly, the test for reasonable apprehension of bias should not be conflated with whether the reasonable person would believe that the fundamental principles of settlement privilege are being upheld. That is not the test. Rather, the analysis required asks whether the “informed person, viewing the matter realistically and practically, and having thought the matter through, thinks it is more likely than not that the decision-maker, whether unconsciously or consciously, would not decide the matter fairly” ³, notwithstanding the revelation of potentially privileged information. Ms. McDermid is correct, this test imposes that the reasonable person be informed – “one who has knowledge of all of the relevant circumstances, including knowledge of the judicial process and the nature of judging”⁴ and is not simply “the average person from the street” as suggested by Mr. Biggart. A reasonably informed person who understands the nature of the judicial process and nature of judging would be well attuned to the reality that Judges and Adjudicators must, as a result of the function of their role, make determinations on the admissibility of evidence which includes disabusing their mind of potentially privileged information in coming to a fair determination on the merits of a case. Such evidentiary rulings are not limited predominantly to relevance, as suggested by Mr. Biggart. Rather, they can and do include instances when potentially privileged or privileged information is revealed; and it is precisely for the public policy reasons protecting settlement privilege that such evidence is stricken from the record, directed inadmissible and disabused from one’s mind in the circumstances of such an event – to protect that information. In other words, dismissing a Motion to recuse oneself in the circumstances of such a case does not equate to the notion that the fundamental principles of settlement privilege would be in disrepute; not where the moving Party has failed to satisfy its burden of proving the high threshold of an actual or reasonable apprehension of bias would result (for instance, that the information would actually be used consciously or unconsciously against a Party).

22This Decision on the merits of the present Appeal has been made on the basis of the consistency and conformity tests of the relevant legislation and policies in place, without reference or consideration for any of the testimony of Mr. Cory heard on Thursday July 18, 2024. In this regard, the Tribunal directed that the entire testimony of Mr. Cory heard on Thursday July 18, 2024, be stricken from the record, not be referred to by any other witnesses, nor in the closing argument of either Counsel.

Issue #1: Shadows on the Park Lands

23In connection with the Proposed Development, the Applicant submitted Shadow Studies prepared by Turner Fleisher Architects (Exhibit 7, Tab 10) to the City.

24The City points to the “crucial months” of March and September of the Applicant’s own Shadow Studies as demonstrative of the significant shadow impact to the Park Lands (see Figures from the Turner Fleisher Studies on next page):

25The evidence of the City’s Urban Design expert, Mr. Yip, is that other than the significant shadow impacts on the Park Lands, the Proposed Development generally represents good urban design. Mr. Yip admits that shadowing is inevitable from the proposed buildings and agrees that the proposed tower-built form would generally cast shadows that are relatively thin and which would sweep across the Park Lands quickly. However, he opines that the proposed bulk of the podiums would “keep much of the proposed public park in shade for most of the day”. As such and unless the podiums are redesigned, Mr. Yip opines that the Proposed Development has insufficient regard for the “Markham Built Form, Height and Massing Study Built Form Principles” with respect to Tall Buildings.

26Mr. Yip suggests that to mitigate the shadow impacts to the Park Lands, the proposed podiums should include further setbacks and stepbacks from the northern property line that abuts the proposed park. Mr. Yip generated his own rendering, included as Attachment C to his written witness statement (Exhibit 6), for demonstrative purposes only, not intended to be accurate from a massing perspective:

27Mr. Yip states that reducing the podium depth by pushing the fifth and sixth storey of the podium southward would further reduce the shadow impacts to the Park Lands. The development could recoup some of its Gross Floor Area lost from the stepbacks on the lower floors by extending the fifth and sixth storey massing towards the western property line.

28In reliance on the evidence of Mr. Yip, Mr. Litavski, the City’s planning expert, testified that the Applicant “can do better” to limit the shadows on the park through tiering the podium’s-built form. Independent of Mr. Yip’s analysis, Mr. Litavski states his opinion of the actual shadow impact is based on the Turner Fleisher Shadow Studies themselves. Mr. Litavski states the March and September shoulder seasons are crucial because that is where a building’s design and built form can have the most impact by nature of the earth’s latitude in relation to the natural shadow casting by season. He states that the Turner Fleisher figures depict that for the Spring and Fall Equinox (March 21 and September 21 as depicted in the replicated figures at paragraph [24] above), while the shadows cast from the tower portion of the building are sweeping, the podium casts a shadow over large portions of the Park Lands throughout the day. Mr. Litavski opined that a change in proposed use from commercial to high-density residential increases the importance of the Park Lands, and its number of users, making it incumbent to ensure the enjoyment, viability and usability of the proposed park is maximized.

29The evidence of the Applicant’s Urban Design expert, Mr. Sterling, explains that the Turner Fleisher Shadow Studies depict shadows cast by the previous April 2023 iteration of the Proposed Development (outlined in red), the approved multi-building development on the south side of Highway 7 (shaded in grey with an orange outline, the “Orange Buildings”), and the shadows attributable to the current Proposed Development (shaded in blue). With respect to the Spring and Autumn Equinox (March 21 and September 21) Mr. Sterling explains that the shadows cast at 9:18 a.m. generally overlap with those cast by the Orange Buildings. At 11:18 a.m., the shadows cast to the northwest by Buildings 2 and 3 (as marked on the figures) partially overlap with those cast by the Orange Buildings, with shadows cast by Building 1 over only a portion of the north of the Park Lands. At 1:18 p.m. and 3:18 p.m., shadows by the Proposed Development can be seen being cast onto a portion of the Park Lands to the north. Following this review, Mr. Sterling opined that that the proposed towers all have relatively small floor plates which cast narrow shadows that move quickly across the north and west of the Subject Property in all periods of the study. He states that the Turner Fleisher Shadow Studies illustrate that the Orange Buildings contributed their own shadow onto the Park Lands north of the Subject Property during the Spring, Autumn and Winter periods, many of which overlap with those cast by the Proposed Development. In his opinion, the shadows cast by the Proposed Development are minor in nature, relatively quick moving and acceptable with regard to the use or purpose of any buildings or open spaces on nearby lands.

30Mr. Sterling criticizes Mr. Yip’s modelling of a tiered podium alternative. He states that Mr. Yip’s figures are not accurate in terms of the height and stories of the podium, nor its setbacks. He further states that podiums on Parcel D already incorporate stepbacks of the second to fourth storey, and that further tiering would create inefficient floorplates such that would affect the quality of the units that could be designed. Already, Mr. Sterling states, the current proposed podium has quite a deep floorplate and is already stretching an appropriate depth for development. The discrepancies noted in Mr. Yip’s depiction of the shadows cast by the current proposal, says Mr. Sterling, results in the appearance of increased shadows cast on the Park Lands than would actually be the case. He concludes that the shadows cast by the podium elements of the Proposed Development do not significantly shade the Park Lands to the north.

31The Applicant’s planner, Mr. Cory, opines that the Turner Fleisher Shadow Studies demonstrate incremental shadows from the Proposed Development in the most shadow intensive months of March and September that are only periodic. Given the shadows already cast by the Orange Buildings over the Subject Lands and the lands north thereof, Mr. Cory states the Proposed Development contributes only incremental shadow impacts to the park and residents to the north. He states that during June when the Park Lands and private outdoor amenity areas are more regularly used, there are no shadow impacts on the existing townhomes and minimal shadows on the park. Mr. Cory notes that the MCSP permits buildings on the Subject Lands between four and seven storeys, therefore as-of-right development of buildings at this height would inevitably also shadow the park. Notwithstanding, Mr. Cory states the Proposed Development was designed to maximize any negative impacts to neighbouring lands and outdoor space through appropriate separation distances between towers and setbacks for the podium portions which meet zoning requirements.

Findings on Issue #1: Shadows on the Park Lands

32The Tribunal prefers the evidence of Messrs. Sterling and Cory to that of Messrs. Yip and Litavski. Mr. Yip’s evidence did not withstand the scrutiny of cross-examination. While it was his opinion, having reviewed the Turner Fleisher Shadow Studies, that the proposed podiums “would keep much of the park in shade most of the day” and “for most of the year”, it became clear that his concerns related only to the areas he marked within the red circles on his diagram replicated at paragraph [26] above – a far reach from the majority of the Park Lands as originally claimed. Indeed, Mr. Yip admitted on cross examination that he had no concerns with Parcel D, his concerns being limited to only the two circled areas on Parcel C. His suggestion on how to mitigate the shadows cast were equally unconvincing once tested on cross-examination. Mr. Yip confirmed that his approach would involve tiered stepbacks at 3 metres (“m”) for each of the podium levels, the first storey starting at the property line. Applying this approach, Mr. Yip confirmed this would place a four-storey podium building at a setback of 9 m from the property line. When compared to the development as proposed, this would equate to a total of 6.95 m closer to the Park Lands. Even Mr. Litavski could not explain how the Proposed Development could cast greater shadows than that suggested by Mr. Yip despite having a larger setback from the Park Lands.

33The Tribunal further found Mr. Yip’s evidence on his proposed model to lack reliability as he admitted that he did not calculate the number of units in his model, prepare floorplates, or determine the location of outdoor amenity areas, other than to state they could placed on top of a tiered podium to the side of the building. While Mr. Yip did explain that his model was for demonstrative purposes only and not meant to replicate the exact massing, his evidence in support of his approach fell short. In contrast, Mr. Sterling testified that Mr. Yip’s suggested tiering produced inefficient floorplates due to deeper floorplates being created from excessive tiering which is not practical. The Tribunal does not agree with the submission of the City that the Applicant is against tiering the podium because floorplate inefficiency equates to less profit.

34The Tribunal finds the Shadow Studies prepared by Turner Fleisher to be reasonable and appropriate. They confirm that the shadowing over the Park Lands is minimal, occurring only at certain times a day, and limited within certain points in the year. As confirmed by Mr. Sterling, whom the Tribunal found to be a strong and credible witness, the proposed built form of the proposed buildings minimizes shadows on the Park Lands through slender point form towers with less than 800 sq m floor plates, large separation distances between towers and by having the podium at a height of four storeys with 15.95 m setback from the Park Lands.

Issue #2: Design, Grading and Site Plan Conditions of the Park Lands

35Appended as Schedules to the Development Agreement in 2003, the Parties had previously agreed upon, inter alia, a Master Plan Showing Phasing (Schedule J), an Overall Landscape Plan (Schedule K), an Overall Streetscape Plan (Schedule L) and a Concept Park Plan (Schedule M1).

36It is the evidence of the Applicant’s landscape architect, Mr. Schollen, that his firm prepared a Landscape Master Plan which illustrates the landscape design for the Proposed Development including the adjacent Park Lands based on the prior iteration of architectural plans in April 2023. He states the revisions to what is now before the Tribunal, being the Revised Phase 3 Development Proposal did not affect the concept landscape drawings and consequently a new iteration of the landscape drawings was not produced. Mr. Schollen’s testimony is that the Concept Park Plan does not include information related to the proposed grading of the Park Lands, however, it does demonstrate at-grade walkway connections to the adjacent townhomes north of the park. He states that during the detailed design stage for the park, a final Grading Plan, which will be subject to review and approval by the City, will be generated that will demonstrate the appropriate grading at the interface between the park and the existing townhomes, and will ensure accessibility objectives are achieved.

37While the Concept Park Plan does not include grading information, a Grading Plan was prepared on behalf of the Applicant by engineering firm GHD Ltd, which Mr. Schollen states adopts conservative grading and remains predominantly unchanged (Exhibit 1, Tab 57):

38Mr. Schollen explains that this Grading Plan shows elevation ranges and grade transition within the Park Lands that do not exceed a 3:1 slope in gradient, and that the slope with a gradient of 30.9% only occurs at one isolated location. It was Mr. Schollen’s evidence that the grade change is permissible under the base park grading technical requirements pursuant to s. 4.4.1 of the City’s Park Planning and Development Terms of Reference, July 2023 (“Park TOR”, Exhibit 1, Tab 16, PDF Pg. 723, emphasis added):

4.4. Base Park Grading

The goal of the base park grading works is to ensure the grading will be designed and constructed to suitably transition to existing and proposed grades surrounding the park block while also ensuring positive surface drainage and appropriate stormwater management infrastructure is provided.

4.4.1. Technical Requirements:

i. The base park block grading plan should provide a slope between 2% and 4% across the entire park block to provide positive surface drainage. ii. Park grading shall avoid steep slopes greater than 3:1 and retaining walls to transition/match grades along park property lines. iii. The park block shall be graded to capture all runoff within the park boundary and direct it to catch basins connected to the municipal storm water system. iv. Parks adjacent to greenways should ensure that all surface runoff is captured on site and does not surface drain into the greenway. v. All slopes, including side slopes of swales, shall not exceed than 3:1 vi. Where perimeter cut-off swales are utilized in the grading plan, the swale centreline should be setback 5 metres from the park property line. vii. The base park block grading must accommodate a 300mm depth of topsoil spread over the entire park and include drawings notes confirming this is provided for in the grading plan. viii. Any trail connections to the park blocks should avoid steep slopes as per the City’s Design Guidelines for Separated Cycling Facilities, Multi-Use Paths and Trails. Generally, a slope less than 4% is preferred where no major constraints are present.

39Mr. Schollen testified that the GHD Grading Plan illustrates the general grading of the Park Lands to achieve compatibility with the existing townhomes, the streets, the Hydro Corridor, the Proposed Development, and to address practical drainage requirements. He states that these grades will be further refined during the process of designing the proposed park and will be designed to comply with the City’s Access for Ontarians with Disabilities Act and the Ontario Building Code to ensure accessibility requirements are achieved. It was his evidence that the elevation ranges and grade transition was not an impediment to accessibility, pedestrian access, or the ability to successfully design both active and passive park uses. He states that the slope could accommodate an angled (meandering) path compliant with accessibility requirements. He also states that through the skill of an experienced landscape architect, a good park design would use slopes as a feature of the park and incorporate them to enhance the user experience. While he had not considered a playground specifically for the Park Lands, Mr. Schollen testified that a 3:1 slope was not uncommon and in his professional opinion, it was feasible that one could be constructed even here as he had designed a tiered playground himself in Aurora.

40Mr. Schollen opines that, given the Concept Plan and Overall Landscape Plan were approved components of the Development Agreement and the Park Lands were conveyed to the City, it is reasonable to conclude that the Park Lands conform with the City’s standards with respect to grading and public use.

41It is the evidence of the City’s parks planner and landscape architect, Ms. Pathak, that the change in grade on the Park Lands poses significant concern for the residents of the Proposed Development and their ability to utilize the park because of design limitations. Ms. Pathak’s evidence is centered around designing a children’s playground which she states is made impossible because of the change in grading (the 3:1 slope) in the middle of the park which negatively impacts the ability to design and construct a parks facility. Ms. Pathak emphasized that the Concept Park Plan was incorporated into the Development Agreement at the time when commercial use was proposed for the Subject Lands, and that with the change in use, the designs must now meet the outdoor recreational needs of the future residents on site.

42Ms. Pathak states that the Landscape Master Plan (Exhibit 7, PDF Pg. 67) which was included as Schedule K to the Master Site Plan and Development Agreement depicts a playground and therefore, the Development Agreement which states that the developer shall complete the landscaping as shown in Schedule K, mandates one. Ms. Pathak adds that a playground would also be required for the Proposed Development per recommendation #34 within the Integrated Leisure Master Plan Update for the City that was adopted by Council in 2019. She states that the recommendation is to provide playgrounds within 400 m radius (or five-minute walking distance) within built-up areas and requires playgrounds in new residential buildings.

43Using the GHD Grading Plan, Ms. Pathak outlines the Park Lands in green stating there is insufficient evidence that the design will not exceed a gradient of 4% across the entire stratified park block, and highlights in orange the location of the proposed 3:1 slope, opining that it would create two separate levels of park areas and impact accessibility (Exhibit 5):

44Ms. Pathak’s evidence is that the standard practice in landscape architecture is that you cannot have slopes in the middle of a park where a children’s playground will be located. She states slopes of 3:1 may be acceptable on table lands or terra firma parks because the grades can be filled and raised; however, this is not the case for small strata parks where the elevation variances with respect to grades cannot later be changed. This is part of the reason why she says the design of strata parks must be considered in conjunction with the underground structure and not after.

45Ms. Pathak states it would be impossible to design and construct a playground on the Park Lands at the grades currently proposed, because pursuant to City standards, it cannot be made to fit anywhere on the Park Lands. She states the City requirement is typically 500-600 sq m and can be in any shape, round, oval, rectangular or square, but must have accessible paths all around with seating and adequate buffering between the existing homes. She states these requirements are currently in the process of being developed into formal standards but are not yet published in written form; though she states one can see these standards by observing other urban playgrounds within the City.

46In this case, Ms. Pathak opines there has not been adequate consideration of the design of the Park Lands. She points out that the GHD Grading Plan currently lacks consideration for such things as live loads, dead loads, soils, planting materials, and play equipment all above the parking garage. She adds that she could see no direct path from the Proposed Development to the park. She opines that the designs maximize the development but does nothing for the City. City design standards are not law which can hold up building permits if the Park design is not to the satisfaction of the City, and therefore, Ms. Pathak states, it is important that these design details are ironed out at site plan approval to deal with any necessary changes or modifications to the design to ensure compatibility with the provisions of the intended playground.

47Ms. Pathak concludes that the entire park blocks need to be regraded to remove the 3:1 slope at a minimum in order to allow the design and construction of a children’s playground. As currently proposed, she states the development creates a substandard park that does not meet the needs of the proposed residential users or the technical requirements to build a playground. She therefore recommends a refusal of the ZBA and SPA, stating that the Applicant’s proposed conditions are not reasonable or appropriate. In the alternative, Ms. Pathak sets out her own proposed site plan conditions at paragraph 29 of her written witness statement (Exhibit 4).

Findings on Issue #2: Grading, Design and Site Plan Conditions of the Park Lands

48On the issue of the grading, design and site plan conditions of the Park Lands, the Tribunal favours the evidence of Mr. Schollen to that tendered by Ms. Pathak. Ms. Pathak’s evidence hinges entirely on the point that a children’s playground is a requirement for the subject Park Lands. Her first reason for this is the Landscape Master Plan (Exhibit 7, PDF Pg. 67) included as Schedule K to the Master Site Plan and Development Agreement which depicts a playground. She states because s.5.3(1) of the Development Agreement requires the developer to compete the landscaping in accordance with Schedule K, that a playground is a requirement, the Tribunal disagrees. On a plain and ordinary reading of s.5.3(1), to which Ms. Pathak took this Tribunal, it refers specifically to the “landscaping” for the development, and not the completion of the park design or construction, which is discussed specifically in reference to the “Final Park Plan” and “Concept Park Plan” elsewhere in the same section of the Development Agreement. Indeed, the Concept Park Plan that is included as Schedule M1 to the Development Agreement is more conceptual, having removed the words “play area” and is entirely ambiguous about what elements specifically the park will entail. As is typically the case, and as reflected in the Development Agreement itself, the Concept Park Plan is just that, a conceptual plan subject to change in its finalization at the later stages of the development process and prior to construction. “therefore do not accept that because the Landscape Master Plan contemplated a potential play area, that a playground is thus a requirement.

49Ms. Pathak’s second stated reason for her opinion that a playground is a requirement is in relation to her oral testimony that the Integrated Leisure Master Plan Update for the City requires it, which document was adopted by Council in 2019. The document to which Ms. Pathak refers was not referred to in her written witness statement, nor contained within the Joint Document Book, nor introduced as an independent document tendered as evidence during the course of the hearing. Beyond the practical implications this raises respecting the inability for the Applicant’s witnesses to properly respond to and opine on the document, the Tribunal accepts that the document is a recommendation and implementation strategy document only, for which regard may be had, and is not official plan policy requiring conformity. As admitted to by Ms. Pathak herself during her cross-examination, the document contains recommendations approved by Council and is not a by-law or official plan policy carrying the equivalent standard. Significantly, Ms. Pathak recognized that Millenium Park, which contains open space, a children’s playground and a splashpad, is between approximately 400-600 m away from the Proposed Development. While it was her opinion that the distance is contrary to the recommended 400 m unobstructed maximum, the Tribunal finds that even an approximate 600 m distance remains a reasonable walking distance from the Proposed Development site. Accordingly, the nearby Millenium Park inclusive of playground satisfies that sufficient regard is had for the recommendation of playgrounds within walking distance to residential buildings under the circumstances of this case.

50Notwithstanding the Tribunal’s findings on the requirement for a children’s playground, or lack thereof, it cannot be denied that additional parks, open space and children’s playgrounds are good planning particularly when increased density including units designed for families and children is proposed. On this point, the Tribunal accepts the expert evidence of Mr. Schollen and his professional opinion that it remains feasible to design and construct a playground on the Subject Park Lands should the City choose to do so, and that a good landscape architect will find ways to incorporate the grade change in its overall design. In this regard, the Tribunal does not accept Ms. Pathak’s absolute statement that a playground was impossible on the entirety of the Park Lands as a result of the change in grade. The Tribunal agrees with the submissions of Ms. McDermid that Ms. Pathak relied on unwritten City standards not yet fully developed or published in support of her position.

51Mr. Schollen is a decorated landscape architect with over 30 years of experience working with both private and public clients having received awards of excellence for his designs including two from the City of Markham as recently as in the past two years. The Tribunal accepts his evidence that the GHD Grading Plan does not demonstrate significant slopes that would lack sufficient regard for the City’s own Park TOR. It demonstrates that, at its highest, the slope ranges from 1.85 m on the west, to 1.54 m on the east. The Tribunal further accept the evidence of Mr. Cory who states that the one 3:1 slope will take up approximately 300 sq m equating to only an approximate 4.5% of the total Park Lands. Even Ms. Pathak herself acknowledges that the proposed grades do not exceed 4% across the entire Park Lands, the upper end being within the permissible range of the City’s Park TOR. The Tribunal agrees that the City’s Park TOR itself states in its introduction, that the document aims to ensure Applicants and their consultants have access to consistent information required to streamline preparation of plans, and that Ms. Pathak’s evidence which runs contrary to the Park TOR, is not only unsupported by any other plan or policy but is also inconsistent with the terms of reference itself.

52The Tribunal accepts the evidence of Mr. Schollen that the details of the grading and slope will be further refined at the detailed designed phase. Ms. Pathek’s opinion that this stage would be too late to address grading would be inconsistent with the expectations of the City’s standard development process and contrary to its own site plan conditions which contemplates the final grading plans to be prepared through detailed design prior to finalizing the site plan (Exhibit 9, Consolidated Site Plan Conditions). This being the typical process is further demonstrated by the initial Development Agreement which contemplates a future detailed design phase and additional agreements between the Parties, as well, is evidenced by Phase 2 of the Circa Development as documented through the Phase 2 Construction Agreement (Exhibit 1, Tab 70). The Tribunal finds that the City’s witnesses, namely Ms. Pathak, could provide no reason to suggest that a similar process would not be followed for development of the current Phase of the project.

53Finally, the Tribunal finds the site plan conditions proposed by Ms. Pathak relate to matters covered by the Development Agreement or to those properly covered within the condominium approval process and therefore not reasonable or necessary. The Consolidated Site Plan Conditions (Exhibit 9) are more relevant, reasonable, necessary, and equitable and accordingly, are found to be sufficient for the purposes of the approvals sought in this matter.

Issue #3: Adequacy of Proposed Affordable Housing

54With respect to affordable housing, it is the City’s position that the Proposed Development lacks regard for the Act⁵, is not consistent with the PPS 2024⁶, and does not conform with the YROP⁷ nor the MOP 2014⁸. On the other hand, the Applicant submits that there is no policy or statutory basis to compel a particular or single development to provide affordable housing units since the statutory and policy framework is directed at Regions, Municipalities and Areas – not specific sites.

55It is the evidence of the Applicant’s Planner, Mr. Cory, that policies under the PPS 2024 that relate to affordable housing, including those referred to by the City, are directed to “Planning Authorities” and not individual development applications. He states that the Region and City’s affordable housing targets within their OP’s, being the Regional target of 25% and Regional Center target of 35%, are Region and Area-wide policies and cannot necessarily be achieved on each or one individual site.

56Mr. Cory adds that the relevant policies and implementation documents which have been prepared pursuant to them, intend that affordable housing be delivered through a combination of incentives and partnerships between the various levels of government. Specifically, Mr. Cory refers to a June 2024 Staff Report received by the City’s Development Services Committee entitled “Options to Secure Affordable Housing Long Term” (Exhibit 1, Tab 80 PDF Pg. 2721-2729, the “Affordable Housing Staff Report”), and highlights that the report itself identifies that affordable housing is to be delivered in partnership with the City, Region, the not-for-profit sector, and the development industry. Mr. Cory states that the Affordable Housing Staff Report itself identifies the ways in which affordable housing can be secured including Inclusionary Zoning, agreements under the Municipal Act, Community Planning Permit System, restrictions under the Land Titles Act, grants, community improvement plans, fee exemptions and reductions and community benefits charge agreements outlining terms of affordability. Mr. Cory states that no such incentives or tools have been proposed by Mr. Litavski or the City with respect to the Proposed Development.

57In regard to the YROP, and in particular ss 3.5.6 and 3.5.7, Mr. Cory states that those affordable housing goals require financial assistance and collaboration between private developers, housing providers and the public sector as contemplated in ss 3.5.9 and 3.5.10, none of which have been proposed or provided as options to the Applicant in this case.

58Notwithstanding the foregoing, Mr. Cory states that the Proposed Development would offer some more affordable housing in the way of the smaller one bedroom and one bedroom plus den units, which may meet the threshold definition of affordable housing that is set out within the Region’s 2022 Report on Affordable Housing ($564,326, see Exhibit 1, Tab 79, PDF Pg. 2710). Mr. Cory’s evidence is that such units are more inherently affordable than the larger units and existing ground-oriented dwelling types in the area, and while it is not possible to confirm the anticipated prices of the units at this time, the provision of a range of smaller units allow for those portions of the Proposed Development to be within or close to the affordable threshold. This, in turn, would contribute to the Region-wide goal of 25% affordable units. Mr. Cory admitted that to maintain these units at the threshold affordable housing rates, custodianship may need to be contemplated involving not-for-profit housing organizations and/or implementing restrictions beyond the first sale, which adds further to his point that other tools and agreements are typically necessary to ensure long term availability and viability of affordable housing. Mr. Cory states that approval of the applications before the Tribunal on the present Appeal would not prevent further discussions from taking place with the City and other levels of government and agencies to secure affordable housing if that is possible.

59On the other hand, it was the evidence of the City’s Planner, Mr. Litavski, that other developers in the City have provided affordable housing of between 1-2% of their total developments, to the satisfaction of the City, and as part of the planning approvals process contrary to Mr. Cory’s assertion that this is not possible without financial assistance and government collaboration. Mr. Litavski was forthcoming by stating that it was not up to one particular development alone to provide the entire target of 35% of units as affordable housing, but that each new development should contribute towards meeting the targets by providing a minimum amount, such as the 1-2% that have been offered in other developments. He states that the YROP policy target of 25% should similarly be considered when evaluating development applications and it would represent good planning to consider providing a reasonable portion of proposed units as affordable housing in keeping with the policy directions.

60Mr. Litavski concedes that neither the YROP, MOP 2014 nor MOP 1987 requires that the Applicant provide affordable housing as part of its development, and that there are no applicable zoning provisions nor other regulation that compels the Applicant to do so. However, he states that given the many policies that articulate the importance of ensuring the adequate supply of affordable housing, it still represents good land use planning to do so, and that it is the intent of the MOP 2014 that new development should consider contributing to the affordable housing targets.

61Mr. Litavski rejects Mr. Cory’s opinion that the Proposed Development may contribute to affordable housing in the way of the smaller one-bedroom units that may meet the threshold definition of affordable housing set out within the Region’s 2022 Report on Affordable Housing. Mr. Litavski states that we cannot know how many of these units would meet the definition, if any, nor would this address the larger unit mix that should also contribute to affordable housing for larger families encompassing complete communities.

62Mr. Litavski and Mr. Cory agree that the former PPS 2020 and Growth Plan policies regarding affordable housing have been mostly carried forward through the new PPS 2024. Mr. Litavski highlights policy 2.2.1(a) of the PPS 2024 which states that Planning Authorities shall provide for an appropriate range and mix of housing options by establishing and implementing minimum targets for housing that is affordable-to-low and-moderate income households, as well as coordinate land use planning to address the full range of housing options including affordable housing needs. He highlights the definitions of “housing options”, “affordable” and “low and moderate income households”, to emphasize that these objectives are not being secured within the Proposed Development.

63Mr. Litavski concludes that since the Proposed Development offers no assurances of an adequate range of affordable housing, it does not meet nor address the objectives identified by each level of government to provide affordable housing within the YROP, MOP 2014 nor MOP 1987, nor is consistent with the polices set out in the PPS 2024 regarding affordable housing. In the event that the Tribunal should allow the appeal in whole or in part, Mr. Litavski opines that it would be in the interests of good planning and in keeping with the policy directive on affordable housing that the Final Order should be withheld pending, inter alia, that the City be “…satisfied with the form and tenure of proposed affordable housing and has entered into any agreements required to secure affordable housing with the appellant”. Mr. Litavski also opines that it would be necessary and appropriate to include the following condition of approval on granting the requested OPA and ZBA:

That, should the Tribunal decide to approve this development proposal, the Tribunal should require the developer, as a condition of the approval of the OPA and ZBLA, to enter into an Agreement, in a form satisfactory to the City, which will result in securing 2% of the units within the proposed development as affordable units in conformity with the definition of affordable as defined in the [PPS 2024], as amended. The Tribunal should withhold its final order approving the OPA and ZBLA until it has received confirmation from the City that the required Agreement addressing affordable units has been finalized.

Findings on Issue #3: Adequacy of Proposed Affordable Housing

64On the issue of affordable housing, the Tribunal favours the evidence of Mr. Cory to that of Mr. Litavski. It is true, there is a clear intent in the policies and plans which direct Regions and Municipalities to set affordable housing targets and approaches to achieving those targets – it is undeniably good planning to do so. However, and as conceded by Mr. Litavski, there is ultimately no policy or statutory basis that compels any one single development to provide affordable housing on a site-specific basis such that could reasonably hold up Planning Act approvals where other good planning objectives are met.

65Mr. Biggart submits that Mr. Cory’s testimony presents itself more as an advocate for the Applicant, rather than an objective Planner concerned with the broader public interests. In support, he points to Mr. Cory’s evidence which recounts numerous policy documents to justify the increased height and density for the Proposed Development citing a housing crisis and the need for development within the City Center and MTSA. However, Mr. Biggart suggests that Mr. Cory’s evidence borders advocacy in addressing the need for affordable housing by glossing over the various affordable housing policy directives and stating that it is virtually impossible without public sector assistance. He states this is patently wrong and relies on Mr. Litavski’s evidence as well as the Affordable Housing Staff Report which demonstrates that developers can, and do, provide affordable housing voluntarily. With respect, the Tribunal does not accept this submission.

66The Tribunal does not find Mr. Cory’s evidence to be impartial or stray into advocacy. Mr. Cory did not dispute that some developers have voluntarily offered affordable housing in the process of obtaining their planning approvals. However, Mr. Cory added that, typically, other agreements or land titles restrictions are also required to maintain the affordability of such units in the long term and beyond initial purchasers. The Tribunal accepts that it was Mr. Cory’s evidence that there is no policy or plan that mandates affordable housing on a site-specific basis. Indeed, not only did Mr. Litavski concede to this himself, but so too does Mr. Biggart in his closing submissions when he states (emphasis added):

Strictly, speaking, Mr. Cory is correct. However, as noted by Mr. Litavski, it is Mr. Cory’s client that is seeking permission to change the permitted uses on the site… There is no requirement upon this Tribunal to grant such permission unless the Tribunal is satisfied that the proposed development has regard for matters of Provincial Interest, is consistent with the policies of the PPS and conforms to the policies of the Growth Plan and of the Official Plans of the municipalities.

67The choice of a developer to include the provision of affordable housing on a voluntarily basis does note import a positive obligation on all developers to do so as part of the planning approvals process, nor does it mean that Mr. Cory’s opinion is incorrect. Put differently, the Tribunal accepts that while affordable housing constitutes good planning, the reverse does not hold that developments without mandated affordable housing represent “bad planning”. The Tribunal also agrees with Mr. Cory that structuring sound affordable housing for the long term does requires the cooperation and assistance of the public sector to implement the necessary tools in order to realize those goals in a significant and meaningful way. Finally, to assess planning applications against the consistency and conformity exercises within the statutory and policy framework does not import the voluntary actions of other developers as a standard of review where no such mandatory site-specifics requirement in plan or policy exists.

68The Tribunal further accepts Mr. Cory’s evidence that the Proposed Development, as an entirely private and market-based development, and in the absence of financial assistance and collaboration from or with the public sector, will contribute to achieving the Region’s housing goals to the current extent possible through the provision of inherently more affordable one bedroom and one bedroom plus den units than what is currently available with existing ground-oriented dwelling types in the area. The Tribunal also accepts Mr. Cory’s evidence that approval of the applications before the Tribunal on the present Appeal do not restrict or prevent further discussions from taking place with the City and other levels of government and agencies to secure affordable housing including larger units; indeed, the Applicant is strongly encouraged to do so.

69Mr. Biggart submits that the Tribunal ought to ask itself, whether the approval of the Proposed Development without affordable housing have regard to matters of Provincial interest, be consistent with the PPS 2024 and conform with the applicable municipal Official Plans? The Tribunal finds that the answer to this question must unequivocally be yes, as any answer other than the affirmative would impugn all other developments that do not provide for the provision of affordable housing, but which otherwise do constitute good planning and work towards resolving the Province’s overall housing crises. To find otherwise would result an untenable outcome, along with further bureaucratic delays, if every development were required to incorporate affordable housing options on a site-specific basis in the absence of mandatory zoning, plan or policy provisions. This would import a requirement that steps beyond the intent of the plans and policies which only direct the enactment and implementation tools to realize the affordable housing targets within plans and policy for new development.

70To be clear, the Tribunal is not endorsing the notion that it is impossible to provide affordable housing without financial and public sector assistance. It acknowledges and encourages those developments where this is done on a voluntary basis. The Tribunal’s findings here simply acknowledge that it is not for the Tribunal to import into the requisite analysis a mandatory requirement onto developers that does not otherwise exist in the statutory and policy framework. This has been recognized by this Tribunal before, as the issue of mandating affordable housing is not a novel one. In Consulate Developments (Ontario) Inc. v. Collingwood (Town)⁹, this Tribunal considered this issue and stated (emphasis added):

106[…] With respect to Mr. Dyment's assertion that the wording of PPS policy 1.4.3 compels the OLT to include a provision for AH in the ZBA, the Tribunal is not persuaded that this policy requires the provision of AH on a site-specific basis, especially since this policy is based on a 'regional market area', which is a defined term in the PPS generally equating to the extent of the County.

71In summary and in relation to the issue of affordable housing, the Tribunal finds that there is conformity, or no conflict with, either of the YROP nor MOP 2014, that there is consistency and no conflict with the PPS, and that there is sufficient regard to the Provincial Interests under s.2 of the Act as well as the Public interest.

72Given the Tribunal’s findings that there is no mandatory requirement to secure affordable housing on a site-specific basis, the Tribunal finds that the City’s suggestion of withholding a Final Order pending the City’s satisfaction with the form and tenure of proposed affordable housing to be unreasonable and not necessary. Similarly, the Tribunal finds Mr. Litavski’s suggested condition of approval for the requested OPA and ZBA, regarding entering into agreements to secure 2% of units as affordable housing, to also be unreasonable and not necessary.

Issue #4: Adequacy of the Proposed Unit Mix

73With respect to the provision for a full range of housing and mix of units, it is the evidence of Mr. Cory that the Proposed Development has sufficient regard for matters of Provincial Interest under the Act¹⁰, the PPS 2024¹¹, the YROP¹², and the MOP 2014¹³.

74Mr. Cory provided a breakdown of the types of units proposed. Of the total 1161 units proposed (subject to finalization through the building permit process), approximately 59% (or 683 units) are proposed to be one bedroom, 22% (or 256 units) are proposed to be one bedroom plus den, 17% (or 192 units) are proposed to be two bedrooms, 2% (or 18 units) are proposed to be two bedroom plus den, and approximately 1% (or 12 units) are proposed to be three bedroom units.

75Mr. Cory explains that the area surrounding the Proposed Development site is primarily occupied by ground-oriented homes, including townhomes completed in 2010 as part of Phases 1 and 2 of the overall master planned Circa Development community. Setting the boundaries for the context of the surrounding neighbourhood that he was referring to, Mr. Cory uses Highway 7 to the South, Warden Avenue to the East up to 16th Avenue, and Roddick Avenue to the west. Within this context, Mr. Cory states the housing consists predominantly of single family and low-rise townhomes. In his opinion, the proposed high-density residential units provide an alternative housing type than that available in the area, which contributes to a full range of housing types and mix. Put differently, the proposed unit mix provides a form of housing that would diversify the existing housing stock. Mr. Cory states that the proposed range of housing adds to the housing available in the way of compact form development with high density to address the Provincial Housing crisis in a transit-supportive form and adjacent to a Regional Priority Transit corridor. In his opinion, the mix of housing options at the density proposed will accommodate residential growth and contribute to the City’s intensification target while supporting a minimum overall density target of 2.5 Floor Space Index per the YROP and MOP.

76Mr. Cory disagrees with Mr. Litavski’s assertion that an increased percentage of larger multi-bedroom units within the development would increase the unit mix in the community as larger multi-bedroom housing already dominate the surrounding area. Reviewing the relevant policy and statutory scheme, Mr. Cory opines that policies promoting healthy and safe communities with a full range and mix of housing, including affordable housing are directed to communities as a whole, and arguably the entire Secondary Plan area. He says they are not intended to apply to individual projects on a site-specific basis.

77In contrast, Mr. Litavski states that the unit mix offered by the Proposed Development is skewed too heavily with one-bedroom or one-bedroom-plus-den units, and therefore fails to meet the objectives of the PPS 2024¹⁴ (as well as the former PPS 2020 and Growth Plan), the YROP¹⁵, and the MOP 2014¹⁶. Mr. Litavski emphasizes that the policies and plans speak to building complete communities with a full range of housing types and mixes with the intent to accommodate an increasing number of smaller households, as well as a significant number of households with children requiring dwelling units of sufficient size to accommodate families. Accordingly, Mr. Litavski opines that it would be appropriate to offer a greater number of larger units that could address the needs of families and multi-person households.

78In response to Mr. Cory, Mr. Litavski states that the boundaries of the surrounding neighbourhood context that should be the focus of appropriate unit mix should not be so broad, but rather limited to the Markham Center area where the Proposed Development will be located. Limited to the Markham Center area, Mr. Litavski states high-rise development with small units are becoming increasingly dominant. While he was unable to offer a threshold percentage of what particular unit-mix he considered would be appropriate, Mr. Litavski opined that this could be addressed through the imposition of approval conditions.

Findings on Issue #4: Adequacy of Proposed Unit Mix

79On the issue questioning the adequacy of the proposed unit mix, the Tribunal agrees with the submissions of Ms. McDermid that the planning policies reviewed and relied on by Mr. Litavski relate mainly to the provision of a mix of housing types, including multi-unit housing, which Mr. Litavski concedes is provided under the current proposal. Policies and plans which address unit sizes or unit mix are further directed to Planning Authorities, and not individual development applications. Nor do the planning policies or statutory framework specify any particular formula requirement for unit mix.

80With respect to the evidence tendered on the issue, the Tribunal prefers the evidence of Mr. Cory to that of Mr. Litavski. There was no compelling basis provided to support Mr. Litavski’s assertion that the analysis ought to be confined to the Markham Centre area. Under cross-examination, Mr. Litavski was also unable to provide evidence as to the existing unit mix in the Markham Centre area where he suggested the analysis be confined to. He further confirmed that the City’s Urban Area Zoning By-Law does not regulate unit mix and was not able to point to any other ZBA or exception which had done so previously. Finally, Mr. Litavski conceded it was appropriate for a high-density development to consist predominantly of smaller units such as the one-bedroom and one-bedroom-plus-den under the Proposed Development that is before the Tribunal on this Appeal.

81The Tribunal accepts that the unit mix offered by the Proposed Development to be adequate in the context of the surrounding area which is primarily occupied by larger ground-oriented low-rise homes consisting of multiple bedrooms. The Tribunal accepts Mr. Cory’s opinion that given the lack of one-bedroom units in the existing area, in combination with the limited vacant land available for further high-density development in the surrounding neighbourhood, the unit mix offered by the Proposed Development will provide an alternate housing form and mix which will balance the existing housing stock and promote transit-supportive development.

CONDITIONS

82The Parties have arrived at agreed upon Site Plan Conditions which were entered as Exhibit 9 (“Exhibit 9 Conditions”). For the reasons set out in this Decision, the Tribunal does not find the additional conditions requested by the City, namely that the podium of the buildings be tiered down, that a minimum 2% of units be provided as affordable housing, that the two-bedroom and greater units be increased, and the additional conditions in relation to the strata-park at paragraph 29 of Ms. Pathak’s witness statement, to be reasonable or necessary. The Tribunal finds that the Site Plan Application should be approved subject only to the Exhibit 9 Conditions.

CONCLUSION

83The Tribunal finds that the Proposed Development appropriately balances competing planning objectives to minimize shadows and to maximize density on otherwise vacant lands in an MTSA and Urban Growth Centre. The Proposed Development provides an additional housing type in the community with an appropriate range of unit sizes and types in a compact form with a mix of uses within the buildings. The development promotes the integration of land use planning, intensification, and transit-supportive development by providing significant density for the area. The Proposed Development has sufficient regard for matters of Provincial Interest under s.2 of the Act, is consistent with the PPS 2024, conforms to the YROP, the MOP 2014 and MOP 1987, represents good planning, and is in the public interest.

ORDER

84THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, and:

i. The proposed modifications to the City of Markham Official Plan 2014 shall be amended as set out in Attachment 1 to this Order. ii. The Official Plan Amendment to the 1987 Markham Official Plan and the Markham Centre Secondary Plan shall be amended as set out in Attachment 2 to this Order. iii. The Zoning By-law Amendment to the City Zoning By-law No. 177-96 shall amended as set out in Attachment 3 to this Order. The Tribunal authorizes the municipal clerk of the City of Markham to assign a number to this by-law for record keeping purposes. iv. The Site Plan prepared by Turner Fleischer Architects dated June 27, 2024, and set out in Attachment 4 to this Order is approved, subject to the conditions set out in Attachment 5 to this Order.

85The Tribunal will withhold the issuance of its Final Order contingent upon confirmation by the City Solicitor that the Tribunal has received and approved the OPA and ZBA (“Instruments”) submitted in a final form, confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor.

86If the Parties do not submit the final drafts of the Instruments, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order have been satisfied, and do not request the issuance of the Final Order by Monday, June 30, 2025 , the Applicant and the City shall provide a written status report to the Tribunal by that date as to the timing of the expected confirmation and submission of the final form of the Instruments and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.

87The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of Instruments, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

"N. Eisazadeh"

N. Eisazadeh

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.

ATTACHMENT 1

ATTACHMENT 2

ATTACHMENT 3

ATTACHMENT 4

ATTACHMENT 5

Footnotes

1. 1Planning Act, R.S.O. 1990, c. P.13, as amended ["The Act"].
2. 2386823 Ontario Ltd. V. Windsor (City), 2020 ONSC 2406, 2019 CanLII 114467 at para 113.
3. 3Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25 at paras. 20-21 as cited by Rogerson et al. v. Havergal College et al., 2020 ONSC 2164 at para 30 ["Rogerson"].
4. 4Duca Financial Services Credit Union Ltd. v. Smith, 2016 ONSC 6289 at para. 18 as cited by Rogerson, Ibid at para 31.
5. 5The Act, supra, note 1 at s.2(j) regarding the adequate provision of a full range of housing, including affordable housing.
6. 6PPS 2024, at s.2.2.1(a) and s.2.2. The City also submitted the Proposed Development does not conform with the former Growth Plan, which it acknowledges has now been replaced by the PPS 2024.
7. 7YROP, at s.3.5 (third paragraph respecting Housing our Residents), s.3.5.5, s.3.5.5(c) (respecting the reference to affordable larger sized family units), s.3.5.6 (respecting minimum 25% of new housing to be affordable across the Region), s.3.5.7 (respecting min of 35% of new housing in Regional Centers), s.3.5.8, s.3.5.10 and s.3.5.16.
8. 8MOP 2014, at s.4.1, s.4.1.1.2, s.4.1.3 (first paragraph), s.4.1.3.1, and s.4.1.3.6.
9. 9Consulate Developments (Ontario) Inc. v. Collingwood (Town), 2023 CarswellOnt 11674 (OLT) at para 103.
10. 10The Act, supra, note 1 at s.2(j) regarding the adequate provision of a full range of housing.
11. 11PPS 2024, at s. 2.1.4; 2.1.6(a), 2.3.1.3, 2.2, and 8 (definition of "Housing Options" and "Complete Communities"). Mr. Cory opined there is also conformity with the Growth Plan which he acknowledges has now been replaced by the PPS 2024.
12. 12YROP, at s.3.5.4.
13. 13MOP 2014, at ss.2.2.2.1, 4.1.1, 4.1.2.
14. 14PPS 2014, at ss. 2.1.4, 2.1.6, 2.2.1(a), 2.2, 2.3.1.3
15. 15YROP, at ss. 3.5.4, 3.5.6.
16. 16MOP 2014, at ss.2.2.2.1, 4.1.1, 4.1.1.2, 4.1.2.