Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 26, 2025

CASE NO(S).: OLT-24-000567 OLT-24-000590

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

Applicant and Appellant: 2606545 Ontario Inc.

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

Description: To permit the redevelopment of the subject site with a 28-storey, mixed-use building including 258 residential units

Reference Number: 24 109932 STE 13 OZ

Property Address: 68, 70, 72, 74, 76, 78 and 78A Wellesley Street East and 505, 507, 509 and 509 ½ Church Street

Municipality: City of Toronto

OLT Case No.: OLT-24-000567

OLT Lead Case No.: OLT-24-000567

OLT Case Name: 2606545 Ontario Inc. v. Toronto (City)

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

Applicant and Appellant: 2606545 Ontario Inc.

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

Description: To permit the redevelopment of the subject site with a 28-storey, mixed-use building including 258 residential units

Reference Number: 24 109932 STE 13 OZ

Property Address: 68, 70, 72, 74, 76, 78 and 78A Wellesley Street East and 505, 507, 509 and 509 ½ Church Street

Municipality: City of Toronto

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

Applicant and Appellant: 2606545 Ontario Inc.

Subject: Site Plan

Description: To permit the redevelopment of the subject site with a 28-storey, mixed-use building Including 258 residential units

Reference Number: 24 109939 STE 13 SA

Property Address: 68, 70, 72, 74, 76, 78 and 78A Wellesley Street East and 505, 507, 509 and 509 ½ Church Street

Municipality: City of Toronto

OLT Case No.: OLT-24-000569

OLT Lead Case No.: OLT-24-000567

PROCEEDING COMMENCED UNDER subsection 33(9) of the Ontario Heritage Act, R.S.O. 1990, c. O.18

Applicant and Appellant: 2606545 Ontario Inc.

Subject: Refusal of Heritage Alteration

Description: To permit the redevelopment of the subject site with a 28-storey, mixed-use building including 258 residential units

Property Address: 68, 70, 72, 74, 76, 78 and 78A Wellesley Street East and 505, 507, 509 and 509 ½ Church Street

Municipality: City of Toronto

OLT Case No.: OLT-24-000590

OLT Lead Case No.: OLT-24-000590

OLT Case Name: 2606545 Ontario Inc. v. Toronto (City)

Heard: June 17 to 27, 2025 by Video Hearing;

APPEARANCES

Parties: Counsel:

2606545 Ontario Inc. (“Applicant/Appellant”) Eileen Costello Naomi Mares

City of Toronto (“City”) Jessica Braun Rachel Godley

Church Wellesley Neighbourhood Association Inc. (“CWNA”) Ian Flett

DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1The Tribunal held an eight-day hearing regarding Case No. OLT-24-000567 appeals pursuant to s. 22(7) Official Plan Amendment (“OPA”) and s. 34 (11) Zoning By-law Amendment (“ZBA”), both of the Planning Act (“Act”), in addition to the Consolidated Case No. OLT-24-000590 appeal pursuant to s. 33 Heritage Alteration Permit of the Ontario Heritage Act (“OHA”), collectively herein referred to as the “Appeals”, pertaining to the lands municipally known as 68, 70, 72, 74, 76, 78 and 78A Wellesley Street East, and 505, 507, 509 and 509 ½ Church Street (“Subject Site”), in the City of Toronto.

2The Applicant/Appellant Development Proposal is to redevelop the Subject Site with a 28-storey mixed-use building in the Church Street Village Character Area (“CSVCA”) in the City.

BRIEF CHRONOLOGY OF THE APPLICATIONS

3City Staff recommended refusal of the Applications and at the City Council meetings on April 17 and 18, 2024, the City refused the applications.

4On March 28, 2024, City Staff submitted a refusal report dated March 12, 2024 to the Toronto Preservation Board (“TPB”) with respect to the Heritage Alteration Permit Application. The refusal report was considered at the City Council meeting on April 17 and 18, 2024, at which time City Council adopted the report without amendment.

5On March 28, 2024, the City issued a Notice of Refusal of the Site Plan Approval Application.

6On May 17, 2024, the Applicant/Appellant filed an appeal to the Ontario Land Tribunal (“OLT”) in response to City Council decision to refuse the OPA/ZBA Application, and concurrently filed an appeal of the refusal of the Site Plan Approval Application. The Applicant/Appellant appealed the refusal of the Heritage Alteration Permit Application on May 23, 2024.

7Revised plans were submitted to the City on February 19, 2025 and on March 6, 2025 (the “Current Proposal”). The Current Proposal is dated March 3, 2025.

8The Current Proposal is similar to the original proposal in a number of respects, consisting of a 28-storey, tower-and-base form, mixed-use development with non-residential uses on the ground floor and residential uses above. The proposed number of residential units has remained the same from the original proposal, with 258 residential units proposed.

9Heritage Planning issued a report dated April 28, 2025, which recommends that City Council consent to the application to alter the designated heritage property at 68 Wellesley Street East, in accordance with s. 33 of the OHA, to allow for the construction of a new mixed-use building in conjunction with an appeal to the OLT, comprised of the plans and drawings prepared by BDP Quadrangle, dated March 3, 2025.

10The TPB adopted the recommendations of staff and, on May 21 and 22, 2025, City Council consented to the revised OHA Application subject to the recommended conditions. On May 26, 2025, counsel for the City advised the Tribunal that they had formally resolved the following issues on the Issues List and no longer proposed to call their heritage witness.

DECISION

11For the reasons set out below, the Tribunal will not approve the development application as the Tribunal finds the proposed built form and massing is not consistent with the CSVCA policies of North Downtown Yonge Site and Area Specific Policy (“SASP 382”) in the City Official Plan (“OP”). The proposed development does not constitute good land use planning and approval of such a development proposal would not be in the public interest. Since the Appeals are dismissed, the OHA permit appeal also must be dismissed.

12Thus, the Tribunal dismisses the Appeals and the instruments are not approved.

THE APPLICATIONS

The Original Development Proposal (February 2024)

13The original application was submitted on February 1, 2024, and deemed complete on February 23, 2024. The original proposal on the Subject Site was for a 28-storey residential and mixed-use building, providing 258 dwelling units (including 17 rental replacement units), 387.6 square metres (“m²”)of retail space, 232.3 m² of community space, and 435.4 m² of indoor amenity space.

Revised Development Proposal (February 2025)

14A revised proposal was submitted in February 2025 and was used for the purposes of this Hearing.

15The revised proposal on the Subject Site continues to be for a 28-storey residential and mixed-use building with the same metric height as the original proposal. A total of 258 dwelling units (including 17 rental replacement units) are proposed with an increase to 427.1 m² of retail space, up from 387.6 m², mostly due to the removal of the community space originally provided.

SUBJECT SITE AND SURROUNDING AREA

16The Subject Site is located at the northeast corner of Church Street and Wellesley Street East, in the CSVCA. The site is rectangular with an area of 1,299.8 m² and has frontages of 34.4 metres (“m”) on Church Street and 38 m on Wellesley Street East. The north property line of the site abuts Anvil Alley, which is a small public lane that connects to Church Street.

17The Subject Site is currently developed with a two-and-a-half-storey mixed-use building with grade related retail uses and rental residential units above. The building, referred to as the William McBean Terrace, was constructed in 1878 and is designated under Part IV of the OHA (By-law No. 914-2014).

18There are a total of 17 rental residential units on the Subject Site, all of which are currently tenanted, which consist of one studio unit, 12 one-bedroom units and four two-bedroom units.

19North: Immediately to the north of the Subject Site is Anvil Alley. On the north side of Anvil Alley is a semi-detached house form building that is currently occupied by commercial retail uses. North of this building is the 519 Community Centre which is housed in a designated heritage building (the Granite Curling Club, 1906) with a modern addition on its south side and Barbara Hall Park.

20Barbara Hall Park wraps around the 519 Community Centre and is organized into several different segments, including: a “plaza” adjacent to Church Street that features benches; passive green spaces to the north and northeast that feature a tree canopy; the AIDS Memorial in the central portion; a splash pad and children’s play equipment in the south-central portion; and an off-leash dog area in the southeast portion of the park.

21East: To the east of the Subject Site are residential apartment buildings built in the 1960s and 1970s. Immediately adjacent to the site is 80 Wellesley Street, which is a 13-storey 76-unit residential building.

22South: On the southeast corner of the intersection of Church Street and Wellesley Street East is a four-storey building with commercial and retail units on the ground floor and residential units above. To the east of this building is a 28-storey residential building at 81 Wellesley Street East, that was approved by the Ontario Municipal Board in 2015. Through that approval, the property was removed from the CSVCA of SASP 382. Further east are residential apartment buildings ranging from seven to nine storeys.

23West: On the northwest corner of the intersection of Church Street and Wellesley Street east is an approved but not yet constructed development known as 66 Wellesley Street East that is comprised of a nine-storey base building along Church Street, and a 31-storey tower element further west along Wellesley Street East and located outside of the CSVCA. To the north of that project is the approved but not constructed 10-storey project at 572 Church Street. On the southwest corner of the intersection is a five-storey commercial building with retail units on the ground floor.

24In addition to the approvals referenced above, there is another recent approval along this portion of Church Street located at 506-516 Church Street in the CSVCA, which is the location of Crews and Tangos that is an entertainment destination in the neighbourhood. That project was approved as a 14-storey mid-rise building in June 2022. That applicant has since made a new development application for OPA and ZBA for a 48-storey tower which has been refused by City Council and appealed to the OLT to be heard in early 2026.

SUBJECT SITE (Applicant/Appellant Visual Evidence Book, Exhibit 6)

LEGISLATIVE TEST

25When considering appeals filed pursuant to ss. 22(7) and 43 (11) of the Act, the Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act, and to the Decision, if any, of the approval authority and the information considered in making the Decision, as required by s. 2.1 (1) of the Act. These appeals relate to City Staff recommended refusal of the Applications and subsequently the City’s refusal of the Applications.

26Further, s. 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with policy statements and conform, or not conflict, with provincial plans that are in effect on the date of the Decision. In this respect, the Tribunal must be satisfied that the Applications are consistent with the Provincial Planning Statement, 2024 (“PPS 2024”).

27The Tribunal must also be satisfied that the ZBA conforms with the OP, that the Applications represent good land use planning, and are in the public interest.

ORDER OF EVIDENCE AND WITNESS

28It was agreed upon by the Parties that the following Order of Evidence and Witnesses would govern the Hearing:

For the Applicant/Appellant:

1. Michael McClelland, Heritage Architecture

2. Ralph Bouwmeester, Sun and Shadow Position Modelling

3. Peter Smith, Land Use Planning

For the City:

4. Joseph Luk, Urban Design

5. Kevin Friedrich, Parks Planning

6. Jeremy Humphry, Land Use Planning

For CWNA:

1. Dr. Gary Davidson, Land Use Planning

29Evidence in support of the Application was provided by the above noted witnesses. All experts were duly qualified to provide expert opinion evidence in their above noted field.

AGREED STATEMENT OF FACTS

30The Parties’ experts entered into an Agreed Statement of Facts (“ASF”) dated

March 6, 2025, and agree on several issues as described below. The experts agree that:

1. The Subject Site is located in a Protected Major Transit Station Area;

2. Policy 2.3.1.5 of the PPS 2024 is not applicable as the Subject Site is within a Strategic Growth Area and Issue 3 on the Issues List can be scoped accordingly;

3. Conformity with policy 3.2.1.6 of the OP is not in dispute, provided that appropriate conditions are secured and agreed upon regarding s. 111 approval as noted within item 25(g) of the Issues List prior to the issuance of the final Tribunal Order and that Issue 5(f) on the Issues List is resolved;

4. Issues 6(h) and 6(i) are issues that can be dealt with as conditions of the Tribunal’s Order as identified in item 25(c) of the Issues List, and Issue 6 can be scoped accordingly; and

5. The Parties agree that the conditions at Issue 25 on the City’s Issues List are appropriate preconditions to the issuance of any final order in this matter, should the proposed development be approved in whole or in part.

ISSUES

31The core issue in this hearing involves the CSVCA with a planned context of low scale to mid-rise scaled buildings and the proposed tall building form (28 storeys), and whether the proposed development would better achieve the policy objectives related to transit-supportive intensification and the creation of new housing supply. Evidence on the policies in the SASP 382 were also presented. The matters of SASP 382 new net shadow, angular plane policies and Major Transit Station Area (“MTSA”) policies were preeminent issues throughout the Hearing.

32Evidence pertaining to heritage, culture or otherwise of the CSVCA to the 2SLGBTQ+ community, was also presented by the Parties.

EVIDENCE / ANALYSIS / FINDINGS

Official Plan Amendment No. 183 (North Downtown Yonge) – SASP 382

33In 2013 City Council adopted OPA 183, thereby implementing SASP 382, along with the North Downtown Yonge Urban Design Guidelines (“NDYUDG”). SASP 382 includes the area of Bay Street to the west, the south side of Charles Street to the north, properties on both sides of Church Street to the east, and the north side of College/Carlton Street to the south (see CSVCA map below).

CSVCA (Exhibit 6, pg.16, Bousfields Visual Evidence Book )

34The site is within the CSVCA as identified in SASP 382. The SASP 382 sets out polices for specific “Character Areas” within the North Downtown Yonge Area, as well as area-wide policies addressing heritage, parks and open space, public realm, and urban design. The CSVCA establishes performance standards related to built form, including building setbacks, step backs, height, and retail store widths, in addition to regulating the impact of shadows on parkland.

35The CSVCA was first adopted in 2013 portions of SASP 382 that were not under appeal came into force and effect in December 2016.

36Section 5.7 of the SASP 382 deals with the CSVCA. By s. 5.7.1, the only redevelopment permitted within the Mixed-Use Areas and Apartment Neighbourhoods designations in the CSVCA will be sensitive low scale infill and: respects and reinforces the general physical character, pattern, scale, massing setbacks and cultural heritage value of the Character Area; respects and reinforces the fine grain retail at grade; and the low-rise scale of existing development.

37The CSVCA is in the Mixed Use Areas 3 designation called “Main street.”

38Mixed Use Areas 3 – Main Street:

The areas contained within Mixed Use Areas 3 will have a main street character and include a diversity of uses such as retail, services, restaurants and small shops at grade with residential and commercial uses above. These areas are generally along surface transit corridors, often contain a large number of heritage buildings and are mostly located adjacent to Downtown’s low-rise neighbourhoods. Mixed Use Areas 3 is often associated with the villages and neighbourhoods that make up and serve the local Downtown communities. The planned context will include buildings up to a mid-rise 3 scale with good access to mid-day sunlight in the spring and fall to support a comfortable public realm.

39The Applicant/Appellant advised that the approval of the remainder of SASP 382 in 2024 is instructive and relevant to this proceeding in a number of important aspects:

a. In respect of the Yonge Street Character Area (“YSCA”):

i. The angular plane provisions within the YSCA were expressly removed;

ii. The requirements for a 20 m tower setback for designated heritage properties and a 10 m tower setback for non designated properties were removed;

iii. The policies in respect of low rise street wall remained; and

iv. The policies in respect of the store frontage width had been modified to provide more flexibility.

b. In respect of the other policies in SASP 382 that were held under appeal:

I. All of the references to “heritage” were modified to “cultural heritage value”

40The PPS 2024 instructions for development are qualified: “[i]dentify the appropriate type and scale of development in strategic growth areas…” (policy 2.4.1.3(b)) and “promote development and intensification within major transit station areas, where appropriate by … planning for land uses and built form that supports the achievement of minimum density targets”. (policy 2.4.2.3(a)).

41The City contends through SASP 382 that the City has identified the appropriate type and scale of development and promotes development and intensification where it is appropriate in this overperforming MTSA; destabilizing that direction is ultimately inconsistent with PPS 2024.

42The City submits all City planning witnesses agreed growth on the site was possible and appropriate, and all agreed a mid-rise development would significantly increase density on the site, be transit supportive while balancing other policies in SASP 382, the Downtown Plan, the OP, and the PPS 2024.

43All witnesses acknowledge that there is currently a 26-storey hotel at 620 Church Street and an existing 23- to 26- storey building at 66 Isabella Street all within the CSVCA before SASP 382 was adopted and approved (as shown on the map below).

44All witnesses acknowledged no tall buildings have been approved in the CSVCA since SASP 382 came into force.

Building Heights in CSVCA (Exhibit 15, pg.30 City of Toronto Graphic Evidence Book)

45Mr. McClelland, on behalf of the Applicant/Appellant, testified that the Heritage Impact Assessment, prepared in support of the Proposal, showed the area began as a residential community which evolved into a commercial main street as house form buildings were adapted over time.

46Mr. Smith, on behalf of the Applicant/Appellant, advised Mixed Use Areas 3 and made modifications to the Downtown Plan which introduced permission for some tall buildings based on compatibility. According to Mr. Smith the result is that unshaded text of the policy language is out of step with operative policies and is inappropriate to rely on the unshaded text to understand the vision and function of the designation.

47Mr. Smith advised it is necessary to study the incremental impacts of the proposed 28-storey building versus a 14-storey building, and to then balance those impacts against policy objectives that are being furthered. The creation of more residential units and height and scale will facilitate improvements to the heritage building and public realm.

48Mr. Smith contends that the City has approved and supported the OPA to permit significant taller buildings around the CSVCA and from a policy and first principles perspective, that the logical implication is that the CSVCA should too be permitted to evolve rather than rigidly restricted to sensitive low-scale infill. Mr. Smith opined that both the SASP 382 and the NDYUDG are outdated.

49The Applicant/Appellant has provided evidence of other character areas in which tall buildings have had the OPA approved or approved in principle including three in the CSVCA citing the draft OPA for the property located at 64-66 Wellesley Street East, 552-560 Church Street, and 564-570 Church Street, located immediately across the street from the Subject Site and within the CSVCA.

50Mr. Luk, on behalf of the City, testified that the proposed development is an incompatible built form in the context of CSVCA, which supports sensitive low-scale infill development/redevelopment in the form of low- to mid-rise buildings. Approval would erode the village atmosphere and low-scale character that the SASP 382 aims to preserve.

51Mr. Humphry, on behalf of the City, acknowledges that there have been other approved OPAs within CSVCA that have sought relief from these policies, but these amendments were not blanket in nature in the same way the Applicant/Appellant is proposing, and instead resulted in minor protrusions into the angular plane in a manner that still upheld and supported the policies and built form outcomes of the CSVCA.

52Mr. Davidson, on behalf of CWNA, testified the non policy text at the beginning of s. 5.7 of the SASP 382 sets a framework which the policies then seek to implement.

Finding

53Mixed Use Areas 3 is to protect and enhance the diversity of uses in these areas; modest intensification is anticipated with most growth occurring in the form of sensitive additions or mid-rise development on sites that can accommodate this scale of development.

54The Mixed Use Areas 3 designation was changed in an explicit recognition that in some Mixed Use Areas 3 designated lands, towers may be appropriate if compatible.

55The Tribunal agrees with the Applicant/Appellant that policy direction can be read with the policies of SASP 382 in policy 5.7.1 that provides criteria for what has to be considered in evaluating development (i.e. physical character, pattern, scale, massing, setbacks, and cultural heritage value) together with the acknowledgement that tall buildings may occur within the CSVCA as per policy 5.7.5.

56However, in addition to the tests under s. 2.1 and 3.5 of the Act, it rests on the applicant to demonstrate, in accordance with sub-s. 24(1) of the Act that any ZBA to be approved by this Tribunal conforms to the City OP which it has failed to do.

57Even though the Tribunal acknowledges the expertise and experience of Mr. Smith and his many years as a Land Use Planner, it disagrees that certain SASP 382 policies are rigidly restricted and outdated. SASP 382 is in full force and effect for the lands at the Subject Site.

58The Tribunal prefers the evidence of the City witnesses that this application seeks to effectively exempt the Subject Site from every applicable policy in s. 5.7 of the SASP 382. The Character Areas are effectively the pillars of SASP 382, but even if you remove the Character Area from SASP 382, Mr. Humphrey testified the balance of the remaining policies also support mid-rise development, meaning the ZBA application would fail the conformity test under the surviving portions of SASP 382.

59Mr. Smith has acknowledged that wording could be more targeted and less blanket in nature when he testified that this is the first time the Planning Staff have raised a concern with the drafting of the OPA and that he would be willing to work with Mr. Humphry to revise the wording to make it more targeted and less blanket in nature.

60The Tribunal agrees with the City, in that irrespective of future drafting exercises, this is not a simple amendment to the SASP 382 policies. It cannot be said that it meets the general intent of those policies, because it seeks to disregard them outright.

61In regard to the SASP 382, policy 5.7.4 development/redevelopment must require store frontage widths at grade along Church Street to be consistent with the average width of at grade retail, that is currently found within 2 blocks to the north and south of a given site along either side of Church Street in the North Downtown Yonge Area.

62The Tribunal heard evidence from Mr. Smith who advised the OPA would exempt the development of the Subject Site from policy 5.7.4., amongst other policies.

63Mr. Davidson, on behalf of CWNA, asserts that Mr. Smith is seeking a blanket exemption on these policies without even completing a proper analysis. The Tribunal agrees with Mr. Davidson who provided a simple analysis to determine store frontage width by a simple measurement. The other specific policy exemptions are analysed further in this Decision.

64The Tribunal agrees with the Applicant/Appellant submission that the OP includes the parent OP document itself, as well as the Secondary Plans like the Downtown Secondary Plan and Site and Area Specific Policies like SASP 382. Conformity with the OP is judged by reference to all these documents.

65Notwithstanding, the Tribunal agrees with the Applicant/Appellant in some Mixed Use Areas 3 designated lands, towers may be appropriate if compatible, however, the Tribunal finds that a 28-storey tower is incompatible with the mid-rise development within the CSVCA.

66The Tribunal agrees with the City that the draft OPA does not conform with the City, OP which discourages amendments that are inconsistent with the general intent of the OP.

67Therefore, the Tribunal finds the application does not conform to the City OP, specifically the SASP 382 or to the development that respects and reinforces the existing and planned context of the area.

No New Net Shadow

68Staff report dated March 13, 2024, noted a Sun and Shadow Study was submitted in support of this Application. The study demonstrates new shadows from the proposal on Barbara Hall Park and 519 Church Street Community Hub to the north of the site. The Downtown Secondary Plan lists Barbara Hall Park as a Sun Protected Park, and policy 9.18 of the Downtown Plan specifies that development will adequately limit net-new shadow as measured from March 21, 2024 to September 21, 2024 from 10:18 a.m. – 4:18 p.m. on Sun Protected Parks.

69Policy 5.7.3 of SASP 382 states that redevelopment will cast no new net shadows on the parkland forming part of the 519 Community Hub. The City contends, a reduction in the amount of net shadowing is required to meet the intent of the Downtown Plan and CSVCA policies in SASP 382.

70Mr. Smith demonstrated, and Mr. Friedrich (for the City) confirmed that SASP 382 has been previously amended to allow for net new shadow on both Dr. Lillian McGregor Park and Barbara Hall Park.

71Mr. Bouwmeester on behalf of the Applicant/Appellant, provided a Sun/Shade Area & Duration Analysis dated May 2, 2025 (“Shadow Study”) providing data about the size and speed of the additional shadow impact on Barbara Hall Park from the Proposal. His analysis indicated potential shadowing resulting from the Proposal from 10:18 a.m. to 4:18 p.m. through the March 21 to September 21 period. The addition of the Proposal would represent a 3% change in the Sun Access Factor for Barbara Hall Park and would cast additional shadow on the AIDS memorial only for 26 days between March 21 to September 21. Mr. Bouwmeester concluded that the shadow impact from the Proposal on Barbara Hall Park was acceptable.

72Mr. Smith detailed the actual impact of the Proposal with reference to this analysis, indicating that the additional shadow impact of the tall building was very minor, casting shadow on Church Street during the same times as a mid-rise building would during the spring and fall equinoxes, but for a minor additional sliver of shadow at 12:18 p.m. on March 21 only.

73The City contends Mr. Bouwmeester’s study was skewed in ways that make his evidence far less probative: notwithstanding that the test in SASP 382 says March 21 to September 21, Mr. Bouwmeester looked at the weighted averages that look at March and September instead of the equinox dates. Mr. Bouwmeester provided his opinion that sun access factor was an appropriate measure of shadow impacts despite there being no policy or guideline document. The City argues that stating a “balance” of sun and shade as 50-50 is not supported anywhere in the policy context and doesn’t track with ‘no new net shadow’ or ‘adequately limit’ requirements.

74The City submits that Mr. Bouwmeester used the test for shadow in the Downtown Plan but used a different delineation of the park in his analysis, not including half the playground and the walkway. Mr. Frederick testified Mr. Bouwmeester chose arbitrary representative locations or “test points” throughout the park that were more northerly in the playground and lawn resulting in an appearance of reduced shadow impacts.

75The City contends, even if the test was changed to an “adequately limit” test, Mr. Friedrich opined that the proposed tower would not adequately limit shadow, because it casts shadow on 4 out of 6 and 5 out of 6 of the required hours on March 21 and Sept 21.

76Mr. Friedrich opined that the proposed development casts unacceptable shadows on Barbara Hall Park. The proposal results in new net shadows on this park, contrary to City OP policies. The proposal would cast the AIDS memorial in shadow.

77Mr. Friedrich testified during the spring and fall colder seasons, the temperature difference between sunlit and shadowed areas of the park is notably different. Access to sunlight during these cooler periods is essential to maintaining both the comfort and usability of the park. According to Mr. Friedrich, the proposed shadows would diminish the park’s overall comfort, utility, and appeal during these critical transitional seasons.

78Mr. Luk, on behalf of the City, also testified the new net shadows on Barbara Hall Park will negatively impact the utility and desirability of the public parkland and does not align with the no new net shadows policies in SASP 382 that protect Barabara Hall Park from incremental new shadows.

Finding

79Although the City submits that the issue of shadow on Barbara Hall Park is not the foundational basis of the City’s case, the Tribunal finds it important to analyze and make a determination on the most salient issues in this proceeding which may impart a fuller understanding on the disposition of this case. The Tribunal agrees with the City submission that what the discussion of shadow does, is provide one other way in which to measure the proposal against the in-force policy regime for the Subject Site.

80The Tribunal agrees with the City that Mr. Bouwmeester’s study using a sun/shade balance is not supported in the policy context. Even though in Mr. Bouwmeester’s opinion, the shadows cast by the proposed building move quickly and are minimized due to the design of the proposed building, notwithstanding that there is no policy or guideline document in the City that directs sun access factor to be an appropriate measure of shadow impacts related to development.

81In regard to reference points or test points in Mr. Bouwmeester’s Shadow Study, the Tribunal accepts Mr. Bouwmeester’s reasonable explanation in mapping the Park and finds it is not misleading.

82The Tribunal does caution the Applicant/Appellant’s witness and the City’s witness, Mr. Luk, concerning his photographic comparison in being more precise in reference points or taking photos to ensure accuracy of their maps in the future for the Tribunal.

83Notwithstanding, the Tribunal gives less weight to Mr. Bouwmeester’s Shadow Study with the highlighted inconsistencies described above.

84In regard to the Applicant/Appellant’s counsel submissions on subjective evidence to articulate “impact” from Mr. Friedrich, the Tribunal heard evidence that the proposed development does not reflect sound parks planning and is inconsistent with provincial and municipal policies, guidelines and studies that emphasize the preservation of public park utility and the creation of vibrant, accessible public spaces. In this context, according to Mr. Friedrich and which the Tribunal agrees with, a tower topology that casts significant shadow on Barbara Hall Park is not an appropriate fit for the site.

85In regard to the Applicant/Appellant’s counsel submissions of subjective notions of safety for a publicly accessible park, the Tribunal heard evidence from Mr. Friedrich that Barbara Hall Park is a vital urban park that serves as an important refuge or safe haven within the CSVCA and is a gathering place for many, particularly the 2SLGBTQ2+ community. It is described as a cultural and community hub. Mr. Friedrich testified historically, vulnerable members of society, including the homeless and the transgendered, use the park.

86Even though the impacts involve climate or temperature conditions caused by shadowing, impacts the utility of the park and, as the Applicant/Appellant’s counsel noted, ‘subjective impacts on safety’, the Tribunal agrees the safety aspect is subjective and puts more weight to the climatic conditions as described in the various reports and studies, and relies on the policy itself and the Public Realm policies of no new net shadow, which the proposed development is not an appropriate fit for the site.

87Several City reports have recommended reviews of the no new net shadow policies which the City has defined as being used sparingly and only in areas of high intensity development, such as the downtown core for “signature parks/open spaces”.

88Mr. Smith advised the no new net shadow language of SASP 382 is a product of its time. Notwithstanding, the various city reports on no new net shadow that in the Toronto climate direct sunlight is especially important and can extend the period of comfortable conditions outdoors by several months.

89The Tribunal disagrees with Mr. Smith that these background reports concerning shadowing are not policy and should be unheeded. Similar to the grey text on the policy, these reports and studies provide context and background to assist in better understanding the intent of the Area specific policies and may be considered in that sphere.

90Mr. Smith contends the evaluation of the appropriateness of new net shadow impacts should take into account the shadows created by buildings outside the CSVCA. In terms of impact, a shadow created by a building outside the CSVCA is the same as a shadow created by a building inside the CSVCA in a functional sense.

91Mr. Friedrich acknowledged the previous Local Planning Appeal Tribunal Decision where staff worked with the developer of 66 Wellesley Street East to adequately limit shadow on Barbara Hall Park while not legalistically holding them to the no new net shadow policy of the CSVCA.

92In reference to Mr. Smith’s argument that the extent and duration of shadow is consistent with that found by the Tribunal in its prior decision with respect to 66 Wellesley to be adequately limited, the Tribunal agrees with Mr. Friedrich that from a planning policy perspective, the shadow resulting from 66 Wellesley Street East is distinguishable from the present Application as the shadowing is a result from a tower outside the CSVCA.

93Therefore, based on the evidence of the no new net shadow policies above, the Tribunal finds the proposed development is not compatible for the Subject Site.

Angular Plane

94Section 5.7.2 of the SASP 382 states that development within the CSVCA between Wood Street and Charles Street East must ensure that no part of any building is located above the angular plane drawn from the Church Street lot line, commencing at a height of 16 m above street level, angling upwards at an angle of 44 degrees away from Church Street over the site.

95Angular planes are used to effect transition, to ensure the maintenance of a pedestrian scale in the public realm and to mitigate shadow.

96The Church Street angular planes were approved in 2016-2017; the Yonge Street angular planes were removed through modifications to OPA 183 as part of the more recent approval in July 2024.

97Mr. Smith testified the removal of angular planes is also reflected in recent amendments to other policies and guidelines, notably the Mid-Rise Building Design Guidelines. Mr. Smith advised the proposed OPA includes an amendment to the built form policies in SASP 382 applying to the CSVCA to remove the requirement for an angular plane.

98Mr. Smith contends the angular plane policy is “outdated”, is overly restrictive, and does not appropriately balance considerations of built form impacts with transit supportive intensification. He highlights the City removal angular plane from Yonge Street, and therefore it should be removed from Church Street.

99The City acknowledges that incursions into the angular plane have been permitted but have been extremely minimal, for things like guardrails and balconies

100Mr. Luk testified that due to the limited size of the Subject Site, the proposed development does not meet the angular plane policy of SASP 382, specifically designed to protect the low- to mid-rise built form within the CSVCA. This results in a significant projection and does not respect and reinforce the general physical character of the CSVCA.

101Mr. Luk advised the amendments to the Mid-Rise Design Guidelines and the adoption of removing the angular planes should not be interpreted as a wholesale rejection of angular planes. Angular planes are the only tools that ensures development responds appropriately to the scale of existing neighbourhoods and public realm conditions.

102Mr. Humphry testified that the angular plane is crucial to achieve the village character, and shape development to achieve the built form and public realm objectives for this portion of Church Street. In the City OP, the use of an angular plane is referenced as a tool to apply transition from development to the public realm. In his opinion, the use of the angular plane in the CSVCA is appropriate and represents good planning.

Finding

103The Applicant/Appellant’s counsel submits the evidence of Mr. Smith was that the scale of the podium is responsive to the intent of s. 5.7.1 of the SASP 382 and that the shadows resulting from the proposal on the public realm (i.e. Church Street) was comparable to a mid-rise proposal with minimum additional shadow impact; further visual evidence confirmed it was comparable to the extent of shadow on Church Street from the proposal at 66 Wellesley Street.

104In addition, according to counsel’s submissions, Mr. Bouwmeester’s evidence showed that when the proposed development did shadow Barbara Hall Park, it would be limited in area, move quickly across the areas affected, and be for a limited duration.

105The CWNA’s counsel submits that the evidence with regard to angular plane demonstrates that the policy remains both relevant and operative. It’s continued application was affirmed in the approval at 66 Wellesley Street, which upheld a mid-rise character along Church Street, with a tall building permitted only on the Wellesley Street frontage. The goal of that change was not to facilitate the building of tall buildings or to repudiate angular planes in general. Angular planes are still encouraged where appropriate, including in the CSVCA.

106The Tribunal prefers the evidence of the City witnesses and agrees with CWNA’s counsel and finds the use of the angular plane in the CSVCA is appropriate and represents good planning, specifically in regard to the CSVCA, and to shape development to achieve the built form and public realm objectives.

107Even though in Mr. Smith’s opinion this policy is out of date, as noted by Mr. Luk, the angular plane policy is still in effect and its core intent remains valid and highly relevant to manage transitions between different scales of development and protect the public realm, particularly the quality of light, sky view, and pedestrian experience on the street for this unique CSVCA.

Protected Major Transit Area (“PMTSA”)

108Policy 2.4.2.1 of the PPS 2024, in the section on Major Transit Station Areas, states:

Planning authorities shall delineate the boundaries of major transit station areas on higher order transit corridors through a new official plan or official plan amendment adopted under section 26 of the Planning Act. The delineation shall define an area within an approximately 500 to 800 metre radius of a transit station and that maximizes the number of potential transit users that are within walking distance of the station.

109In addition, OPA 524 entitled “Major Transit Station Areas and Protected Major Transit Station Areas” has been passed under the provisions of s. 16 (15) of the Act. This section of the Act allows municipalities to set special provisions around major transit stations (i.e. subway stations), as long as the OPA identifies the minimum number of residents and jobs, permitted land uses, and minimum densities.

110The experts agreed in the ASF that the Subject Site is located in a PMTSA, and the Province has yet to approve the PMTSAs.

111The policy is an instruction to the municipality on how to delineate the PMTSAs and it has been in the Growth Plan since 2017. Mr. Smith contends that the PPS 2024 policies support the optimization of land and infrastructure in MTSAs, consistent with those policies is an important planning policy consideration in evaluating the appropriateness of the proposed amendment.

112The City contends that according to Mr. Smith, it is not that the mid-rise development does not fulfill the policy objectives related to transit-oriented intensification, it’s that a tall building would do it better.

113Mr. Humphry testified that the planning framework established within the OP, Downtown Plan, and SASP 382 permit transit supportive intensification in the form of a mid-rise building on the Subject Site that will provide a range of housing options and development of a scale that is more intensive than is present on the Subject Site, while also being sensitive to the existing and planned context. The City has also established MTSA policies and has outlined that the existing land use planning framework within those delineated areas are sufficient to meet the minimum densities prescribed within each station area.

114Mr. Humphry testified policy 2.4.2.1, applicable to MTSA, is the direction that planning authorities delineate the boundaries of MTSAs, which will be a 500-800 m radius of a transit station and that delineation shall maximize the number of potential transit users within walking distance of the station. This policy is dealing with the geographic delineation of the PMTSAs and isn’t providing policy guidance with regards to development within that delineation. That policy guidance comes in later policies, such as policies 2.4.2.2 and 2.4.2.3. In his opinion, it is not appropriate to consider policy 2.4.2.1 as instruction to disregard applicable municipal policies and maximize the development potential of all lands within the geographic delineation of the MTSA boundary. The operative word is delineation, not designation.

115The Applicant/Appellant’s counsel submits the proposed development responds to the clear provincial direction to maximize the number of transit users within the Wellesley Street MTSA and to do so in a manner that accords with the City’s direction to do so in a manner that responds to the existing context, which includes a 28-storey building directly across the street.

116The Applicant/Appellant’s counsel submits the City’s planning for the MTSA has materially supressed the density targets to below what was planned for back in 2021 and that is not responsive to the clear provincial direction to optimize and maximize.

117The City submits that PPS 2024 does not demand maximization and towers on every lot near a subway entrance. It calls for context-sensitive intensification respecting local plans such as SASP 382, even when subject to amendment that shape where and how growth occurs.

118The City asserts that it is a well established that the provincial objective of intensification is not an objective to be pursued at all costs. There is no policy, in the PPS 2024 or anywhere, that says that maximizing intensification trumps all other planning considerations. The City has delineated PMTSAs and has planned for densities that far exceed the 200 persons and jobs per hectare (“ha”) minimum.

Finding

119The Tribunal agrees with the City witnesses that the PPS 2024 speaks to optimizing the urban land supply but not maximizing, and the Tribunal finds the difference is that optimizing incorporates good land use planning and good urban design.

120The Tribunal finds the City did establish policies for MTSAs and PMTSAs. These policies provide minimum density targets for residents and jobs combined per ha. The targets established by the City exceed the minimum requirements within policy 2.4.2.2. In the Wellesley Station PMTSA, the minimum density is 1000 persons and jobs per ha, and the existing land use permissions within the Wellesley Station PMTSA delineated area will already achieve this minimum density which includes the policies of the CSVCA to permit a mid-rise form of development on the Subject Site.

121Therefore, the Tribunal finds the proposed applications are not consistent with the PPS 2024.

Cultural Heritage / Cultural Identity of the CSVCA

122The Tribunal finds, as noted before, that it important to analyze and make a determination on the most salient issues in this proceeding which may impart a fuller understanding on the disposition of this case. The Tribunal finds that what the discussion of cultural heritage value does; it provides one other way in which to measure the proposal against the in-force policy regime for the Subject Site.

123The Applicant/Appellant’s counsel highlighted that the SASP 382 was modified through the OPA 183 appeal process specifically to include the term “cultural heritage value”. This change was made throughout the SASP 382 document where heritage had been engaged as a criterion for assessing appropriate built form.

124Mr. Smith asserts there is no policy requirement to provide or replace cultural/social spaces which have been lost over time on other sites within the North Downtown Yonge area. Section 5.7 of the SASP 382 and the related policies do not “envision” a specific built form which is tied to the cultural identity of the CSVCA. Additionally, there is no stated policy requirement to “reinforce” or even to maintain cultural identity.

125Mr. Humphries, Mr. Luk, and Mr. Davidson contend that SASP 382’s goals and objectives are part of the planning process, and the non-policy text are required to be read which provides context and intent of the policies of the City OP. These policies referenced cultural heritage and heritage context.

126Mr. Smith highlighted introductory language side bar comments or preambles in reference to the Downtown Plan Policy 1.3 states “text within the shaded boxes for the policies of this plan” and that “text without shading provides the context for the policies only and are not policies.”

127Dr. Davidson, on behalf of CWNA, relies upon the term “historic” in s. 2 of the Act as support for his contention that policy 5.7.1d) requires the conservation of the low-rise scale form of the area to preserve the history of the area’s association with the “cultural heritage value” of the 2SLGBTQ+ community.

128The Applicant/Appellant’s counsel submits relying on the non-statutory introductory text in s. 5.7 of the SASP 382 as noted in the section with respect to cultural heritage and is clearly not supported by the clear legislative intent of the term “cultural heritage value”. The term “cultural heritage value” is not “cultural identity” and it is not open to new or area specific definitions.

129The Applicant/Appellant’s counsel submits, the term “cultural identity” is nebulous. It is not a term that is used or defined in the SASP 382. Accordingly, it may mean different things to different people. The “cultural identity” of the CSVCA is not dependent on maintaining a particular built form in perpetuity; the “cultural identity” can be maintained as the physical environment continues to evolve.

130Notwithstanding, the Applicant/Appellant’s counsel does not dispute that the area of Church and Wellesley is associated with many in the 2SLGBTQ+ community. It is recognized that the presence of the 519 Community Centre and the AIDS Memorial provide important community services and spaces.

Finding

131The Tribunal finds that culture identity is not nebulous. The Tribunal disagrees with the Applicant/Appellant’s counsel that there is a false assumption; there is a singularity to the “cultural identity” associated with the 2SLGBTQ2+ community and that the cultural identity is specific to the area delineated as the CSVCA area in SASP 382 to the exclusion of other areas. In addition, the 2SLGBTQ2+ community’s attendance in the specific area is related to or influenced by the built form.

132The 2SLGBTQ2+ community is an exclusive view of the group’s cultural identity, similar to other groups that have a strong sense of cultural identity. Through the evidence, there is no dispute that the 2SLGBTQ2+ cultural identity is specific to the area of the CSVCA although it does not exclude all others. Notwithstanding, all witnesses have acknowledged that the Church and Wellesley Street intersection is the “epi center” of the 2SLGBTQ+ community and is recognized for its yearly Pride week celebrations.

133Mr. McClelland on behalf of the Applicant/Appellant testified that the intersection of Church and Wellesley Street is designated as a “gateway” in the North Downtown Yonge area and that a tower might be an appropriate way to mark a gateway.

134In regard to the argument that there is a false assumption the 2SLGBTQ2+ community’s attendance in the specific area is related to or influenced by the built form, the Tribunal has heard evidence through Mr. Luk In this area.

135Mr. Luk described that there is a unique horizontal and vertical mix of uses with multi-leveled commercial spaces with second-storey bars and retail spaces which further animate and encourage foot traffic throughout the day and night. Outdoor patios and terraces line many frontages in the village, creating a distinctively lively atmosphere in the vibrant and eclectic neighbourhood. These buildings create a unique concentration of commercial spaces in the area with 2SLGBTQ2+ friendly retail, bars, cafés, and community spaces, frequented by the community and visitors. In addition, in the public realm, community improvements such as rainbow crosswalks, murals, Pride-themed decorative pillars, and seasonal lighting features reinforce the village’s identity and sense of place.

136Mr. Luk testified that the proposed development does not fully consider the impact to the cultural fabric of the village neighbourhood, the 2SLGBTQ+ community, and their needs.

137The Tribunal notes the City’s submission that the CSVCA is not trying to preserve nostalgia, it’s trying to preserve the conditions of access, affordability, visibility and safety. The built form, with its narrow shops, human scale, shadow-protected gathering spaces is not the culture, it’s what enables the culture.

138Although the Tribunal agrees with the City and CWNA witness’s on cultural identity and the geographical context of the 2SLGBTQ+ community in the CSVCA and the City’s submissions of preserving conditions of access for gathering spaces, the Tribunal, however, takes note of the other false assumption the Applicant/Appellant’s counsel highlighted in the City’s case, specifically that the 2SLGBTQ2+ community’s attendance in the specific area is related to or influenced by the built form and the policies as drafted seek to achieve this connection or require it to be reinforced.

139Although the Tribunal agrees with the submissions of the City’s counsel that the CSVCA’s built form and planned context of modest heights, its careful transitions, and open sky is the spotlight that allows its unique culture to be seen, the Tribunal has difficulty with the continuing comment that “looking at totality of the policy regime gives us a clear and cohesive vision of what is appropriate for this site”.

140The question remains: does the cultural identity depend on maintaining a particular built form and can the 2SLGBTQ+ community be maintained as the physical environment continues to evolve?

141The Tribunal agrees with the Applicant/Appellant’s counsel; the term “cultural heritage value” is not “cultural identity” and it is not open to new or area specific definitions. The Tribunal finds City policy on “cultural heritage value” on built form does not give clear and cohesive vision specifically in relation to the 2SLGBTQ+ community in the CSVCA. The Tribunal finds the 2SLGBTQ+ community is intrinsically linked to the CSVCA; however, City policies are nebulous in regard to cultural heritage value, cultural identity, and built form to the 2SLGBTQ+ community.

142The Tribunal agrees with the Applicant/Appellant’s counsel: there is no requirement in the legislation or policies to provide or replace displaced cultural/social spaces and entertainment venues which have been lost over time to development as suggested by the City’s witness.

143Nevertheless, even though the proposed Application regarding cultural heritage value policies on built form do not conflict for the Subject Site, other policies noted above have shown that the applications fail to conform or be compatible in other areas.

Ontario Heritage Act Alteration Permit Appeal

144City Heritage Planning issued a report dated April 28, 2025, which recommends that City Council consent to the Application to alter the designated heritage property at 68 Wellesley Street East in accordance with s. 33 of the OHA to allow for the construction of a new mixed-use building in conjunction with an appeal to the OLT, comprised of the plans and drawings prepared by BDP Quadrangle, dated March 3, 2025.

145The City Staff report dated March 13, 2024, notes that Heritage: 68 Wellesley Street East is designated under Part IV of the OHA, pursuant to By-law No. 914-2014, as being of cultural heritage value or interest. The Application proposes to retain the primary elevations (south and west) at the second-storey and mansard roof, and to partially dismantle and reconstruct the north elevation second-storey brick wall, dormer, and mansard roof.

146City Council consented to the revised OHA Application subject to the recommended conditions. On May 26, 2025, counsel for the City of Toronto advised the Tribunal that they had formally resolved the following issues on the Issues List and no longer proposed to call their heritage witness.

147The Applicant/Appellant submit that granting the OHA appeal, the OHA permit and resolution of those issues should be seen as an implicit acceptance of the ZBA and OPA appeals and will fully respond to and implement the Decision of City Council to accept the recommendation of Heritage Planning staff, based on the revised proposal for a 28-storey tower, and allow the alteration of the existing building on the Subject Site.

148The City contends with respect to the OHA permit appeal, that it must also be rejected if the ZBA and OPA are dismissed. The Applicant/Appellant’s Heritage approval is not an implied endorsement of the proposed 28-storey tower. The City’s approval under the OHA was about conserving heritage attributes. It was not about waiving the scale, massing, and character protections embedded in the SASP 382.

Finding

149The OPA and ZBA, are all applications under the Act over which the Tribunal has exclusive jurisdiction to determine all questions of law and fact; unless limited by legislation, this authority arises from s. 8 of the Ontario Land Tribunal Act.

150Any determinations made on the planning applications with an OHA alteration permit application are two distinct applications. Therefore, the Tribunal may determine the merits of a development proposal and whether it conforms with the applicable policies and constitutes good planning within the limited and strict context of the applicable planning framework alone.

151Even though the OHA alteration permit application is before the Tribunal and there are no issues from the City on that application itself, The Tribunal agrees with the City that these applications are distinct applications, and the OHA permit appeal must also be rejected if the ZBA and OPA are dismissed. The Tribunal finds the Heritage approval does not equal the endorsement of the proposed tower’s appropriateness and the tests that apply for these two distinct applications are not the same and are not to be conflated.

152The Tribunal agrees with the submissions of CWNA’s counsel that Heritage approval is not Planning approval. Section 33 of the OHA approval only addresses alterations to designated heritage attributes. Heritage approval scope was limited as it focused on retention in situ of façades, the only protected heritage elements, increased step backs, and cantilever removal. Heritage approval was not implicit approval of a tower.

153Therefore, the Tribunal finds the Heritage review is separate and distinct from Planning approval processes and the OHA permit appeal is dismissed since the ZBA and OPA are dismissed.

BOOK OF AUTHORITIES

154The City presented 10 cases of jurisprudence for the Tribunal to consider. The Applicant/Appellant provided seven cases for the Tribunal to consider.

155Although determinations in other cases are neither binding nor do they fetter the discretion exercised by the Tribunal, the Tribunal has exercised its discretion in referencing seven cases from the City and six cases from the Applicant/Appellant (noted below) based on similar fact patterns or relevance. The other cases not referenced did not have similar fact patterns or only minimal relevance to the current case.

City Book of Authorities

Optimizing v. Maximizing

156In the case, 64 Prince Arthur Limited Partnership v. Toronto (City), January 26, 2021, PL180019, regarding MTSA or subway lines, the City highlights state:

195Both the PPS and the Growth Plan speak to optimizing the urban land supply but not maximizing, and to the Tribunal the difference is that optimizing incorporates good land use planning and good urban design.

157Even though this was an earlier PPS (2020) and Growth Plan, the word “optimizing” remains relevant in regard to MTSA. Several cases below highlight optimizing the use of land compared to maximizing.

158In 1756392 Ontario Ltd. V. Toronto (City), the Tribunal stated:

48The parties do not dispute that the 2014 PPS and Growth Plan provide directive policies relating to intensification and the optimization of land and infrastructure. However, optimizing the use of land and infrastructure is not necessarily the same as maximizing the built form on a given site. The question arises as to whether the proposal before the Tribunal optimizes the use of land and infrastructure…

159In Burlington 2020 Lakeshore Inc. v. Burlington (City), 2025 LNONLT 13, the Tribunal states:

79The Tribunal prefers the perspective as set out in Mr. Lo's Witness Statement:

The 2020 Lakeshore (Property) and the Pearl lands represent an appropriate location for intensification and redevelopment as they are located in a strategic growth area. However, in accordance with the policies of the Halton Region OP, such intensification and redevelopment should be implemented at a scale appropriate for their context, commensurate with the level of existing and planned transit and in accordance with the hierarchy established by the Halton Region OP (ROP). [emphasis added by Tribunal].

The Tribunal finds that the objective should not be to "maximize" the number of persons (and jobs) that can be accommodated on any particular parcel of land, but rather it is about finding the "right balance" as to what represents good planning.

160In Edenshaw Elizabeth Developments Limited v. Mississauga (City), 2023 LNONLT 1173, the Tribunal states:

100The Subject Property is underutilized in its current form and given that housing is a Municipal, Provincial and Federal priority, the Tribunal finds that the Subject Property should be intensified. However, the Proposed Development is too ambitious for the Subject Property and the proposal seeks to maximize the site, as opposed to optimize the site. One must look at what is best on a site, not what is the most and, in this case, the Tribunal finds that the Proposed Development is too large for the size of the site. The Tribunal was persuaded by the City’s evidence that it can meet and/or exceed the minimum density target of 160 pj/h without the need for an amendment to the policies in the PCLAP on a site specific basis.

109The Tribunal finds that the Applications seek to maximize the location of the Subject Property but fail to address other important land use planning considerations. This is a case where the Appellant is attempting to maximize, rather than optimize, the Subject Property. The Tribunal agrees with the Appellant that the Subject Property can support a building, this is but one consideration in the assessment of a development application. There are other important factors which must also be considered, including but not limited to, the size of the lot, the existing context of the entire area and the planned context. In this regard, the Proposed Development is too ambitious for the Subject Property.

161In the 2010 case of Losani Homes Ltd. v. Hamilton (City), [2010] OMBD No. 683, the Tribunal noted that:

37The Provincial mandate for intensification is not a licence to abandon sound planning principals, or to diminish appropriate land use planning standard in search of more density. Alternatively, intensification requires sensitive design as stated in the City of Hamilton’s Official Plan “that recognize and enhance the scale and character of the existing residential areas by having regard to natural vegetation, lot frontages and areas, building height, coverage, mass, setbacks and privacy of overviews”.

162The Tribunal agrees with the Members in these above noted case the key word is to ‘optimize’ and there are other important factors which must also be considered, and finding the "right balance" as to what represents good planning.

MIXED USE AREAS

163In the case, Dundas Residences Inc. v. Toronto (City), 2015 CarswellOnt 20983,

regarding mixed-use areas which is in the Toronto’s Downtown for a different site designated ‘Mixed Use Areas’ that is a block away from Dundas Station on the Yonge line (now Line 1):

70The PPS (2014) and the GP both encourage intensification, but not intensification at all costs. It is not necessary or desirable to over-intensify individual development sites in order to accommodate growth projections.

71In this regard, the Board is persuaded by the opinions of Mr. Freedman and Mr. Gagnon that the application, as it stands, represents over-intensification, and in so doing, undermines the policies of the PPS, the GP and, specifically, the OP as it relates to Built Form and development within Mixed Use areas.

164The Tribunal agrees with the Member that to maximize or over intensify individual development sites, in this case close to a MTSA without considering other planning considerations, it would undermine policies such as SASP 382 and policies within the CSVCA Mixed Use Areas, such as angular plane and no new net shadow policies.

66 Wellesley Street East and 552-570 Church Street

165In the Ontario Municipal Board (“OMB”) decision, WAM Montez C & W Inc. v. Toronto (City), June 8 2021, PL171453, the City submits that in 2021, the Tribunal rejected a proposal for a 36-storey tower in the Wellesley Woods Character Area (“WWCA”), in part because of its proximity to the CSVCA.

48… Mr. Kasprzak testified, in that the policies applicable to the WWCA are indeed distinct from those for the CSVCA, as described below. He emphasized that the tower potion of the proposed building falls entirely within the WWCA.

54… As explained by Mr. Smith, a proposed OPA would provide an exception to s. 5.7.2 to permit balcony railings on the Church Street portion to encroach slightly within the described angular plane.

100From an urban design perspective, Mr. Smith’s opinion is that the proposal is an appropriate response to the two Character Areas, as it is located on either side of their boundary. He stressed that this site is at an important crossroad, two streets with very different existing and planned contexts. It is, as stated, within a designated Urban Growth Centre, in proximity to a subway station. The building height would fit harmoniously within the range of existing and approved building heights in this portion of the Downtown, where there are many tall buildings of up to 62 storeys. Mr. Smith emphasized the other tall buildings along the north side of Wellesley East, west of Paul Kane Parkette, as set out by Mr. Kasprzak.

101The incremental shadow impacts on BHP are adequately limited and would not adversely affect the utility of the park. He repeated that the “no new net shadow” test in Policy 5.7.3 of SASP 382 does not apply to the tower location and massing within the WWCA, but only to the mid-rise portion of the proposed development along Church in the CSVCA. For this mid-rise, the shadow analysis by Mr. Bouwmeester (below) demonstrates that the incremental shadows (if any) will satisfy the “no new net shadow” policy test.

166The City submits that the Decision of the Tribunal and, more crucially, the evidence of Mr. Smith in this case is distinguished heavily between character areas. It was Mr. Smith’s position that the building was supportable from a planning perspective because the tower portion was outside the CSVCA which meant that it was over 30 m from Church Street. In 2020, when the hearing took place, Mr. Smith distinguished between these two character areas and supported a low profile in the CSVCA. At paragraph 127 of the Decision, the Tribunal quotes Mr. Smith:

Given that this portion of the site has appropriate size and configuration to accommodate the location and massing of a tall building without unacceptable built form impacts, it would be contrary to principles of good planning, in particular the optimization of land and infrastructure, to restrict development on the site to a low-rise height.

167The City asserts that Mr. Smith is speaking here not about the CSVCA, but about the tower portion of the site that fell outside it. He did not, in this case, take the position that in order to properly address the policies of the Province that the portion of the site abutting Church Street had to be a tower, instead he opined that mid-rise was acceptable and appropriate in that it respected the Character Areas.

168In this case, the applicant came back with a revised proposal and worked with the City to get an approval for a development with a more modest tower where, once again, the rationale of adherence to the intent of the Character Areas was utilized. In 2023, City Council approved a proposal, for which Mr. Smith was the planner, which again featured a mid-rise form within the CSVCA and a tower of 31 storeys outside of it. The City claims that in 2023, Mr. Smith’s position was that a mid-rise tower within the CSVCA was appropriate and did not run afoul of provincial directives, contrary to his evidence he presented at this hearing. Notwithstanding the findings of the Tribunal in this case, the no new net shadow policies only applied within the CSVCA:

196… Policy 9.24 of the Downtown Plan requires development to provide transition in scale to achieve built form compatibility, if adjacent to lands with a planned context that does not anticipate tall buildings, including Mixed Use Areas 3. Both the Downtown Plan and SASP 382 recognize that areas and sites designated as Mixed Use Areas have varied characteristics and constraints. Thus the anticipated scale and intensity of development will vary based on the local context. Further, “areas where the existing and planned context is low in scale require a modest and measured approach to intensification.”

214It is principally the height of the tower that is excessive, in both the existing and planned context. The tower does not “fit” the planned context of this site, so close to Church Street, even though it might be very close in height to the existing structures further west. It is proposed to be PART OF a structure on Church Street, it must be recalled. The streetscape of Church Street in Ex. 10 shows an average maximum of five storeys. The Tribunal agrees with the City that the tower at its present height is too close to Church physically, and to the different OP designation there, for it to be a “fit”. Adjustments in the design in last resubmission do lessen its impact overall, especially with respect to setbacks and shadowing.

217The proposed two-component structure in the subject application is factually different. A portion of the structure itself would be directly on Church, but would be attached to and thus part of a tall tower which also would be “on Church’, even if it is in another OP designation. At the risk of much repetition, s. 5.7.1 of SASP 382 dealing with the CSVCA, states that the only redevelopment permitted within the MUA designation in the CSVCA will be “sensitive low scale infill”. The DP seems to differ,

although it does not apply here. Church Street is designated as MUA 3, which by Policy 6.28 would have mid-rise buildings, “…with some low-rise and tall buildings permitted based on compatibility”.

225…The Tribunal accepts that the “no new net shadow” test in section 5.7.3 of SASP 382 does not apply to a tower location and massing within the WWCA. It would apply only to the mid-rise portion of the proposed development, which is along Church Street in the CSVCA. No shadow impact was proven as a result of the proposed built form on Church Street

233Again, the NDY - UDG do appear to deal differently with the CSVCA (s. 4.5, p.610). There are no height limits there, it is stated, but base buildings of mid-rises here should be no less than three storeys and no taller than four, to reinforce the low-rise main street character. This does give the Tribunal pause, as it finds that the massing proposed on Church Street would not comply with this and seems excessive. The Tribunal does not engage in redesign, but would find better compliance with the existing and planned context if this component were reduced in height and mass.

169The Tribunal agrees with the City’s counsel, this case is distinguished between character areas. It was Mr. Smith’s position that the building in this case was supportable from a planning perspective because the tower portion was outside the CSVCA. The WWCA allowed for tall buildings; however, the Tribunal panel found the proposed two-component structure in that application was factually different, “[t]hus the anticipated scale and intensity of development will vary based on the local context. Further, areas where the existing and planned context is low in scale require a modest and measured approach to intensification”. The Tribunal agrees with this statement from the OMB panel.

Applicant/Appellant Book of Authorities

Have Regard To - S.2 Planning Act

170The Applicant/Appellant’s counsel provided Ottawa (City) v. Minto Communities Inc., 2009 CanLII 65802 (ON SCDC) case, which was an appeal by the City of Ottawa on a question of law under s. 96 of the Ontario Municipal Board Act. The leave to appeal regraded whether the OMB erred in failing to have regard to the decision of Council pursuant to s. 2.1 of the Act.

171The City submits that, in the context of s. 2.1 of the Act, the words "have regard to" impose an obligation on the Board to afford considerable deference to municipal councils’ land planning decisions. It submits that the OMB, as an appellate body, ought to apply the deferential standard of "reasonableness" described in Dunsmuir v. New Brunswick.

172Counsel submits that in the case Keswick Sutherland School IN. v. Halton (Region) and Halton Hills (Town), 2009 CarswellOnt 4670, the Board’s obligation is better articulated in paragraph 30 of the Keswick Sutherland decision:

30Therefore, notwithstanding a level of inherent deference contained in s.2.1, the Board does, and should, for obvious reasons, retain its independent decision-making authority. When considering the decisions made by Town Council and Regional Council, it is incumbent upon me to scrutinize those decisions to the extent possible. In that regard, I have reviewed the transcript of discussions held by council members and the reasons given for rejection

173In addition, counsel submitted case, 2697331 Ontario Inc. v. Aurora (Town), which states:

93The Tribunal acknowledges that in deciding matters, it shall have regard to decisions of Municipal Council pursuant to s. 2.1 of the Act. In this case, there were three reasons provided by Town Council for the refusal of the applications, two of which have been resolved/are no longer issues. The remaining reason for refusal was the proposed density was not appropriate for the subject property. The Tribunal was persuaded by the Appellant that Town Council had insufficient information before it to make a determination to refuse the applications. Upon carefully scrutinizing Town Council's decision, the Tribunal finds that it was premature and uninformed for Town Council to refuse the applications without the benefit of staff recommendation report. The Tribunal determines that sending the Appellant "back to the drawing board" would be inefficient and cause undue expense when the evidence demonstrated that a 7 storey building is consistent with and conforms to relevant planning policies.

174The Tribunal has regard to the City staff recommendation and City Council's decision of refusal. Notwithstanding, the Tribunal understands that while the Tribunal should carefully consider the decision of City Councils and the material before it, the Tribunal retains jurisdiction to render a decision on the evidence before it during a proceeding, which it has done in this case. Given this, the Tribunal finds that the Planning applications in their current form do not satisfy the statutory requirements.

SUMMARY OF DISPOSITION

175The Tribunal finds based on the evidence, findings, and reasons summarized, and after due consideration for all of the arguments set forth in the opening and closing submissions of the Parties, the proposal is not consistent with the applicable policies of the City OP, the Downtown Secondary Plan, and SASP 382. The proposal does not meet the intent of the applicable built form design guidelines. The proposed tower height does not reinforce the core village area as a low- to mid-rise pedestrian oriented main street, as specified in SASP 382, and creates an unacceptable shadow impact on Barbra Hall Park.

176The Applicant/Appellant has not demonstrated that the requested Applications have appropriate regard for matters of provincial interest pursuant to s. 2 of the Act, and it does not represent good planning, good parks planning, or good urban design. The evidence demonstrates that the planned function of the CSVCA as an area of growth predicated on a mid-rise form, which supports a vibrant main street, has not been fulfilled.

177Even though there is evidence that Character Areas around the CSVCA, as well as neighbourhoods to the north, east, and south, are all experiencing tall building intensification, it does demonstrate that the policies of a low scale form of the CSVCA are unique and merits the continued application of the built form policies to secure that intended form of development.

178For the reasons set out above, the Tribunal will not approve the development application as the Tribunal finds that the development proposal does not have sufficient regard to the Provincial Interest in orderly development and does not conform to the height and mass requirements, is not compatible with the CSVCA, and fails to conform to the planned context.

179Even though Mr. Smith views SASP 382, angular plane, and no new net shadow policies as old and outdated, these policies cannot be a blanket exemption or a reason to disregard the policy context. These various policies are clear and in force relevant policies that apply to this Subject Site. As noted by City counsel which the Tribunal agrees, these policies ensure a low-rise development to protect the character of the area and guide future growth in a manner that will allow it to continue to serve its planned function and to create a sense of place for the people who live, work and visit the CSVCA.

Precedent

180The Applicant/Appellant’s counsel submitted case, Enbridge Gas Inc. v Arnold and St. Clair (Township), 2024 CanLII 7624 (ON LT) regarding precedent. It states:

26It is prudent to add that it is not within the mandate of this Tribunal to set precedent, even of the kind that Ms. Fraser alludes might be in the public interest regarding the protection of rights under similar GSLAs against competing interests. Not only does this raise a question as to whether the protection of such contractual property rights is even within the jurisdiction of this Tribunal, it is also trite that each appeal before it must be decided on its own merits.

181In addition, Tribute (Queensway) Limited v. Toronto (City) 2023 CarswellOnt 16319, is cited, which states:

143While the Tribunal acknowledges that this Proposal will inform the existing context of the area and future applications may be informed by such a context, the Proposal before the Tribunal was approved in part on the basis that it fit harmoniously within the context of the area. Thus, even if future applications are informed by the approval and future existence of this Proposal, they would not, theoretically, be outliers within the context of the area as a result. Moreover, each application before the Tribunal is considered on its own merits, and the particular aspects of each case are considered. In this particular case, the location of the Site, the features of the design of the Proposal, and its relation to the adjacent properties, including the KingSett Development, were all considered. Future applications, by virtue of being located on different sites in the area, will have their own particular hurdles to overcome. In short, the Tribunal is not persuaded that this ZBA approval will set a negative precedent for the area.

182In Oben Flats Sherbourne GP Inc. v. Toronto (City), the Applicant/Appellant’s counsel highlighted that the Tribunal rejected the City’s invocation of precedent as a reason to refuse the appeals:

121“The Tribunal is not impressed with that argument as it takes absolutely no account of the reasons that inform this decision about the context and facts here and the matter of properly interpreting OP policy. There may well be other applications where, in the interest of achieving worthy and necessary OP goals some reconciliation of this policy will be required and some minimal shadow permitted. The world will turn and the sun will shine.”

183The counsel asserts that further, the precedent of a tall building in the CSVCA has already been set by the City’s approval of the proposal at 66 Wellesley Street and the distinction which the City relies upon, that the tower component of the building is within the WWCA, has been rejected by the Tribunal in the context of the earlier ruling for the site:

“The proposed two-component structure in the subject application is factually different. A portion of the structure itself would be directly on Church, but would be attached to and thus part of a tall tower which would also be “on Church”, even if it is in another OP designation […] Thus the proposed tower, even if the tower portion is entirely designated AN as the proponent would have it forms part of a structure within the MU3 designation on Church. It would be acceptable to this panel only if shorter.”

184The City’s counsel submits no one is arguing that decisions of this Tribunal are legally binding on subsequent decision makers, which they are not. Nevertheless, this Decision will set what Mr. Davidson called a “planning precedent”, which will impact the planning context and the future of the entire village. It was the evidence of Mr. Humphrey and Mr. Davidson that an approval in this case would signal to other developers that towers are allowed.

185The Tribunal notes the City’s submission; that this Hearing itself, with the volumes of evidence lead on other development sites, other decisions, particularly 66 Wellesley Street on which the Applicant/Appellant relies, show that significant weight can be given to similar applications in making a final determination of a case on its merit. If a tower is allowed here, it is certain that other developments within the village (most immediately Cruz & Tango development) will rely on it to support their applications. If this development is approved and becomes part of the planned context, the carefully planned framework designed to protect one of the most unique neighborhoods in the City will be completely undermined.

186The City’s counsel submits case 1540 BSW Developments Inc. v. Toronto (City), 2010 CarswellOnt 1673, 64 O.M.B.R. 464, where the Applicant proposed a 27-storey mixed-use building at 1540 Bloor Street West which significantly exceeded existing zoning permission. The Tribunal rejected the proposal and stated:

31The Developer insists that the contemplated development would not, if approved, lead or give rise to similar structures westerly along Bloor Street because no one, other than the Developer, has appealed the Avenue By-law. This argument assumes, incorrectly, that any party who did not appeal the Avenue By-law is somehow precluded from attempting to change it in the future. Approval of the proposal before me would, in my view, provide the motivation necessary to bring, in the future, a zoning by-law amendment application to amend the Avenue By-law and, in turn, could lead to and provide the justification for a building of similar height, mass, density and built form. I agree therefore that approval of the development proposed could indeed be precedent setting.

187The City also provided case Sansanwal v. Markham (Town), [2011] O.M.B.D. No. 405, which states;

41There is the issue of precedent, always a difficult one for the Board to deal with since each application is to be considered on its own merit. Its merit can however sometimes be dictated by what went before. If one application to create two 50 foot lots from one 100 foot lot on the same street, under the same circumstances, is approved, then what is the argument for not approving the next application, or the one after that? The fact that, as Counsel for the Applicant/Appellant pointed out, there has been no rush to subdivide lots despite the fact that two smaller lots at 1 and 3 Grandview Boulevard were created back in the 70s is really not that relevant. Those lots are not in the most desirable location on the street and, until recently, there has been no great emphasis on intensification with its attendant rationale for creating smaller lots. It defies logic to suggest that approval of this application would not eventually lead to similar applications along Grandview Boulevard.

42Interestingly, both Parties offered a recent decision by Member Rossi related to 10 Hughson Drive in the Town of Markham (2010 CarswellOnt 6045, 66 O.M.B.R, 162) as a case brief. The circumstances were similar, but not the same. Counsel for the Applicant/Appellant assured the Board that he was not presenting this as a precedent. But, what else could its purpose be? In this instance, the Board believes that approval of the applications would indeed set a precedent, if possibly only for Grandview Boulevard.

188The Tribunal has considered the submissions and jurisprudence in regard to precedent for this proceeding and agree with respect to these decisions that planning applications that are determined are based on their individual merits. The Tribunal understands there is a legal precedent and a planning precedent. The Tribunal is not unmindful to the fact that planning authorities in future planning applications will use Tribunal decisions as comparable to influence their planning rationales. However, determinations in other cases are neither binding nor do they fetter the discretion exercised by the Tribunal. The Tribunal can exercise its discretion to cases which it has done in this case.

Order

189THE TRIBUNAL ORDERS THAT:

(a) The Appeals are dismissed;

(b) The requested amendments to the Official Plan for the City of Toronto are refused;

(c) The requested amendments to Zoning By-law No. 569-2013 are refused.

“Eric S. Crowe”

ERIC S. CROWE 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.