Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 09, 2025

CASE NO(S).: OLT-24-000923

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

Applicant/Appellant: 137 Isabella Street Limited and 141 Isabella Street Limited

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

Description: To permit the development of a 69-storey residential building

Reference Number: 24 119153 STE 13 OZ

Property Address: 137-141 Isabella Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000923

OLT Case Name: 137 Isabella Street Ltd. and 141 Isabella Street Ltd. v. City of Toronto

Heard: May 16, 2025 by video hearing

APPEARANCES:

Parties

Counsel

137 Isabella Street Limited 141 Isabella Street Limited

Jason Park

City of Toronto

Jason Davidson Amrit Sandhu

Non-Party

MTCC 780

Rajiv Joshi

DECISION DELIVERED BY F. LAVOIE AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal concerns the settlement of an appeal filed by 137 Isabella Street Limited and 141 Isabella Street Limited (“Appellants”) pursuant to 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”), regarding the City of Toronto’s (“City”) refusal of their Zoning By-Law Amendment (“ZBA”) application, for the property municipally known as 137 – 141 Isabella Street in the City (“Subject Property”).

WEIGHT OF WRITTEN STATEMENT OF DENIED PARTICIPANT STATUS REQUEST

2Before the Settlement Hearing, the Tribunal dealt with a preliminary matter to address the weight of a written statement submitted by Mr. Joshi, counsel for the Municipal Toronto Condominium Corporation (“MTCC 780”). MTCC 780 manages the condominium property located at 38 Earl Street, which is directly south of the Subject Property.

3MTCC 780’s Participant Status Request dated April 24, 2025 was denied by this Tribunal, differently constituted, in a Decision rendered May 2, 2025. The Order of that Decision provided for the Tribunal Member presiding at the Settlement Hearing to determine what, if any, consideration should be given to MTCC 780’s written submissions. MTCC 780 also sent a letter dated May 9, 2025 which alleged the May 2, 2025 Decision was procedurally flawed.

4As counsel for MTCC 780 was in attendance at the Settlement Hearing, the Tribunal explained that submission of the May 9, 2025 letter was not the appropriate process by which the May 2, 2025 Decision could be changed. Notwithstanding this, the Tribunal also addressed MTCC 780’s arguments that Rule 7.7 (Participant Statements) does not specify a timeline for filing a Participant Statement, and that a Tribunal’s ruling “vacating deadlines” meant any deadlines applying to MTCC 780 would have been vacated, in any event.

5The Tribunal directed counsel to MTCC 780 to review the Tribunal’s Notice of the December 6, 2024 Case Management Conference (“CMC”), which set out the instructions that Participant Status Requests be provided at least 10 days in advance of the CMC and stated only persons who are granted Party or Participant status by the Tribunal at the CMC are permitted to participate in any further Hearing event convened by the Tribunal for this appeal. Further, the CMC decision issued December 13, 2024 advised MTCC 780, through Mr. Bernstein, that it “must act very quickly” to seek status in this proceeding, should it desire to do so. More than four months later, MTCC 780 filed its request for Participant status.

6With regards to MTCC 780’s argument on “deadlines” being “vacated”, the Tribunal clarified that the April 3, 2025 Tribunal’s adjournment letter did the following:

a. adjourned the merit hearing scheduled for June 2, 2025;

b. scheduled the settlement hearing for May 16, 2025; and

c. dispensed with the “Procedural Order exchange dates”.

7Reviewing the Procedural Order and the exchange dates which were dispensed, it is explicitly stated that these deadlines were for Parties and Participants. As previously mentioned, MTCC 780 is neither a Party nor a Participant. Accordingly, dispensing exchange dates for Parties and Participants had no effect whatsoever on MTCC 780’s requirement to seek Participant status at the first CMC of December 2024, or “very quickly [thereafter].”

8As to the weight of MTCC 780’s statement, the Tribunal sought submissions from the Appellants and the City. The City did not take a position on this issue. Counsel for the Appellants submitted that no weight should be given to MTCC 780’s statement, because they are not a Participant and it would not be fair to give weight to a statement provided by a person with no status in a proceeding. The Tribunal agrees with the Appellant’s submission and therefore finds no weight should be given to MTCC 780’s statement. Out of an abundance of caution, if the Tribunal is wrong on this point, the Tribunal would still find that the Appellant’s evidence during the proceeding adequately addressed the parts of MTCC 780’s statement which relate to legitimate land use planning concerns.

THE PROPOSED SETTLEMENT

9The Subject Property is an assemblage of two lots, with a total area of 0.18 hectares, 43.64 m deep, with 41.95 metres (“m”) frontage on Isabella Street and is currently developed with a seven-storey apartment building and a 3-storey single-detached dwelling.

10The proposed settlement would redevelop the Subject Property with a 69-storey residential building with a maximum of 823 dwelling units. The proposal includes a podium height of 6 to 7 storeys, a tower floor plate size of 756.3 metres squared (“m²”), and a gross floor area (“GFA”) of 49,107.2 m². Minimum tower setbacks are 9.1 m from the Isabella Street curb to the north, 6.0 m from the east property line, and 10.0 m from both the south and west property lines. The current 61 rental units will be replaced in the proposal and are secured through a Council-approved Section 111 Agreement (Application No. 24 119156 STE 13 RH).

11One of the notable changes to the proposal arising from this settlement is the reduction of ceiling height on the 7^th floor from 5 m to 4 m to improve the massing of the base building and which improves the northwest corner by creating a 3.5 m by 3.8 m podium cutout between the 4^th and 7^th floors flush with the 3^rd, 2^nd and ground floors.

12The Subject Property is currently zoned Residential (R) by the city-wide Zoning By-law 569-2013. The proposed ZBA would amend Zoning Bylaw 569-2013 to change the use, setbacks, GFA, permitted projections, and building height, in order to implement the proposal.

13For the reasons set out below, the Tribunal allows the appeal in part, and approves in principle the ZBA found at Attachment 1 of this decision.

LEGISLATIVE TESTS

14When considering appeals under s. 34(11) of the Act, the Tribunal shall:

a. have regard for matters of provincial interest pursuant to s. 2 of the Act;

b. ensure its Decision is consistent with the Provincial Planning Statement, 2024 (the “PPS 2024”), as set out in s. 3(5) of the Act;

c. ensure its Decision conforms with the City’s Official Plan (“City OP”) and any applicable guidelines.

APPELLANTS’ SUBMISSIONS

15Evidence in support of the ZBA was provided by the Appellant’s Planner, Michael Goldberg. Mr. Goldberg is a Registered Professional Planner in the Province of Ontario, a full member of the Canadian Institute of Planners, and has been practising as a land use planner for approximately 42 years. He was duly qualified by the Tribunal to provide expert opinion evidence in the field of land use planning.

16The Tribunal marked the Affidavit of Michael Goldberg, sworn May 12, 2025, as Exhibit 1.

17Mr. Goldberg testified that, in his opinion, the proposed ZBA has regard for the applicable matters of provincial interest as a transit-oriented development which contributes to the efficient use of transportation, sewage and water services; that will add a range of residential units to the existing stock of housing; which is an appropriate location of growth and development; and which has a built form which includes a well-designed streetscape that is accessible and attractive, contributing to a vibrant sense of place.

18With respect to consistency with the PPS 2024, Mr. Goldberg explained that the Subject Property is located within a Strategic Growth Area, which is serviced by higher order transit and frequent transit. It is therefore within an area where the PPS 2024 policies, specifically policies 2.3.1.1 to 2.3.1.6. and 2.4.1.1 to 2.4.1.3, direct more intensive form of growth. He stated that the Subject Property’s proximity to three subway stations (350 m from Sherbourne Station, 750 m from Wellesley Station, and 800 m from Bloor-Yonge station), the introduction of new residential housing providing a mix of housing options and densities, and the efficient use of land base and infrastructure, all advance provincial policy direction and are consistent with the policies of the PPS 2024.

19Mr. Goldberg testified the Subject Property is part of the Downtown and Central Waterfront on Map 2 – Urban Structure of the City OP and designated as Apartment Neighbourhoods on Map 18 – Land Use. In particular, he references Section 2.2.1, “Downtown: the Heart of Toronto”, which recognizes that growth will be accommodated in the Downtown area. He opines that the location and form of the proposed development supports this objective and conforms with the policies for growth in the Downtown. It is also well-designed and set back to respect the low-rise character and scale of the small lower-density house forms to the south. The 6-storey podium element to the south has been scaled and set back from the south lot line to transition and separate from the lower-density built form to the south, with 5.5 m and 10.0 m setbacks from south lot line to the podium and tower element, respectively.

20Mr. Goldberg opined the existing buildings on the Subject Property are of a low height and density use compared to existing and approved buildings in the immediate area. Indeed, Mr. Goldberg’s evidence was that the immediate area has approved tall buildings ranging from 28 to 69 storeys, including an approved 69-storey building at 135 Isabella Street immediately to the west of the subject site, and a 58-storey building at 561 Jarvis Street. He outlined how the proposed development conforms with Policy 4.2.2 (development criteria in Apartment Neighbourhoods), namely through appropriate setbacks and separation distances, massing to adequately limit shadow impacts on adjacent Neighbourhoods, the conclusions of the Pedestrian Level Wind Study that wind conditions will be suitable, the new indoor and outdoor amenity space, and the use of the 6 to 7-storey podium to enhance the public realm.

21Mr. Goldberg further provided evidence that the proposal conforms with the following plans: OPA 352 (Downtown Tall Buildings Setback Site and Area Specific Policy 517); the Downtown Plan (OPA 406); Tall Building Design Guidelines; the Growing Up: Planning for Children in New Vertical Communities; and with the Pet Friendly Design Guidelines and Best Practices for New Multi-Unit Buildings.

22Mr. Goldberg concluded by opining that the proposed development represents reasonable, appropriate and good planning that is in the public interest. He accordingly recommends that the ZBA be approved in principle.

PARTICIPANT STATEMENT

23Dr. Robert M. Bernstein, who resides in the low-rise condominium managed by MTCC 780 and who was previously granted Participant status by the Tribunal, submitted his statement in opposition to the proposed development. He raises the following five points:

a. that a 70-storey tower with tiny units is not a solution to the housing crisis and ought to instead be developed as low-rise units suitable for families;

b. that tall buildings with small condos are not sustainable;

c. that previous tall building approvals should not pave the way for more tall building approvals;

d. that infrastructure is deficient to support this proposal; and

e. that if approved, the developer should mitigate adverse effects arising from the construction.

24Mr. Goldberg responded to Dr. Bernstein’s points in his affidavit, wherein he opines the following:

a. With regards to the first and second points, the Subject Property can comfortably accommodate the height and density proposed, which will contribute to new housing supply in an area of the city with excellent proximity to transit, services, and facilities. He also highlighted that it is outside of his scope to comment on Mr. Bernstein’s points relating to market conditions.

b. Addressing precedent, he clarified that the existing and evolving character of the neighbourhood provides context; each site must support a tall building on its own merit, which, he opines, he has shown from his evidence.

c. Addressing infrastructure, other experts retained by the Appellant have provided reports and plans demonstrating the adequacy of the infrastructure, such as the Functional Servicing Report, Stormwater Management Report, and Transportation Impact Study. In any event, part of the conditions supporting this settlement will require resubmissions of all servicing related reports (as required), to the satisfaction of City Staff.

d. On adverse effects during construction, Mr. Goldberg explained that a Traffic and Construction Management Plan must be submitted and approved to the satisfaction of the City as a requirement of the Site Plan Approval application.

25The Tribunal finds that Mr. Goldberg addressed aspects of Mr. Bernstein’s points which relate to land use planning concerns. The Tribunal appreciates Mr. Bernstein’s thoughtful and reasoned Participant statement. In his conclusion, Mr. Bernstein asks the Tribunal to challenge the practice of adding “shoeboxes in the sky” when increasing the housing stock. However, the Tribunal’s role is to adjudicate land use planning disputes between Parties in accordance with the legal framework set out in the Act and the land use planning policies which apply to the proposed development.

CONCLUSION

26The Tribunal accepts the above evidence and uncontroverted professional opinions of Mr. Goldberg.

27The Tribunal finds that the ZBA has appropriate regard for matters of Provincial interest under s. 2 of the Act, is consistent with the PPS, 2024, conforms to the City OP and applicable City plans and guidelines, represents good planning, and is in the public interest.

INTERIM ORDER

28THE TRIBUNAL ORDERS THAT the appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph 29 below, and the Zoning By-law Amendment set out in in Attachment 1 to this Interim Order, is hereby approved in principle.

29The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor, of the following pre-requisite matters:

a. that the Tribunal has received, and approved, the Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to the Executive Director, Development Review and the City Solicitor;

b. that the Tribunal is advised that City Council has approved Rental Housing Demolition Application 24 119156 STE 13 RH under Chapter 667 of the Toronto Municipal Code pursuant to Section 111 of the City of Toronto Act, 2006, to permit the demolition of the existing rental housing and the owner has entered into, and registered on title to the lands, one or more agreements with the City, to the satisfaction of the City Solicitor and the Chief Planner and Executive Director, City Planning, securing all rental housing-related matters necessary to implement City Council’s decision, including:

i. replacement of the existing 61 rental dwelling units, including the same number of units, bedroom type and size (including overall GFA) and with similar rents; and

ii. an acceptable Tenant Relocation and Assistance Plan addressing the right for existing tenants to return to a replacement rental unit on the lands at similar rents, the provision of rent gap assistance (or acceptable alternative unit), and other assistance to lessen hardship, all to the satisfaction of the Chief Planner and Executive Director, City Planning;

c. that the Tribunal is advised that the Appellant has submitted a Functional Servicing Report for review and acceptance to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; the report will determine whether the municipal water, sanitary and storm sewer systems can support the proposed development and whether upgrades or improvements of the existing municipal infrastructure are required; and

d. that the Tribunal is advised that the Appellant has entered into a financially secured agreement for the construction of any improvements to the municipal infrastructure should it be determined that upgrades and road improvements are required to support the development, according to the transportation report accepted by the General Manager, Transportation Services, and to the Functional Servicing Report accepted by the Chief Engineer and Executive Director, Engineering and Construction Services.

30This Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendment and the issuance of the Final Order.

31If the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph 29 above have been satisfied, and do not request the issuance of the Final Order by December 5, 2025, the Appellant 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 draft Zoning By-law Amendment and issuance of the Final Order by the Tribunal.

32The 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 the instrument, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“F. Lavoie”

F. LAVOIE 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.