Item - 2021.NY26.2

City Council on November 9, 10 and 12, 2021, adopted the following:

1. City Council amend the Official Plan, Central Don Mills Secondary Plan, for the lands at 966 Don Mills Road, substantially in accordance with the draft Official Plan Amendment in Attachment 5 to the report (August 23, 2021) from the Acting Director, Community Planning, North York District.

2. City Council amend North York Zoning By-law 7625, as amended, for the lands at 939 Lawrence Avenue East, 966, 1030 and 1090 Don Mills Road, and 49 and 75 The Donway West, substantially in accordance with the draft Zoning By-law Amendment in Attachment 6 to the report (August 23, 2021) from the Acting Director, Community Planning, North York District.

3. City Council authorize the City Solicitor to make such stylistic and technical changes to the draft Official Plan Amendment and/or draft Zoning By-law Amendment as may be required.

4. Before introducing the necessary Bills to City Council for enactment, City Council require the owner to revise the existing Section 37 agreement for Don Mills Centre or enter into a new agreement pursuant to Section 37 of the Planning Act to the satisfaction of the City Solicitor as follows:

a. the indexed $17 million provided for in the Don Mills Centre Section 37 Agreement shall be utilized for the construction and outfitting of the Celestica community recreation centre. The money shall be paid to the City prior to the earlier of:

i. condominium registration for building B2 or D at the Shops of Don Mills;

ii. the issuance of any building permit for 169 the Donway West;

iii. the issuance of any building permit for Buildings E or G at the Shops at Don Mills; or

iv. the "Land Exchange" as described below;

b. the owner will be entitled to convey the lands at 966 Don Mills Road to the City in exchange for the Civitan Arena lands (the "Land Exchange"); in the event the owner triggers the Land Exchange, the lands at 966 Don Mills Road shall be cleaned by the owner at its sole expense in accordance with the City's Policy for Accepting Potentially Contaminated Lands, prior to conveyance of the Civitan Arena lands to the owner;

c. the Land Exchange may be triggered by the owner at its sole discretion provided that the owner provides the City with 12 months' notice; in any event, the Land Exchange shall occur no more than 12 years after the registration of the revised Section 37 agreement for the Don Mills Centre development unless otherwise agreed to between the parties. In the event that the owner triggers the Land Exchange prior to the end of the 2022 to 2023 winter hockey season, the owner will continue to permit the City to operate the Civitan Arena for ice hockey purposes following the Land Exchange, until May 15, 2023, in order to accommodate the completion of the 2022 to 2023 winter hockey season;

d. at any time prior to the Land Exchange and after May 15, 2023 the City may give the Owner 12 months' notice and the owner will be required to demolish the Civitan Arena, remove all the demolition debris, restore the site to a safe condition to the City's satisfaction and enclose the site with fencing, all at no cost to the City; if the City requires the demolition prior to the Land Exchange, then following demolition, the owner may be entitled to use the site for parking and/or construction staging upon execution of any lease or licence required by the City which will require, among other things, market value fees to be paid;

e. until the completion of the Land Exchange, the Civitan Arena will be utilized by the City at its discretion, for the purposes of a hockey arena, or other community oriented uses, such as arts, crafts, social, charitable and educational activities, as well as recreational purposes and recreational programming, seniors services, and other community uses as agreed to by the Parties; and

f. the owner shall have a right of first refusal to purchase the 966 Don Mills Road lands in the event the City elects to dispose of the lands within 20 years of acquiring them (the "ROFR"); and the Right of First Refusal will not apply to any transfer or leasing of the 966 Don Mills Road lands to any Federal, Provincial or Municipal governmental or quasi-governmental agency, board, commission, body or any not-for-profit entity/organization/body or the transfer of small amounts of the 966 Don Mills Road lands for road widenings, easements, or similar transactions.

5. City Council direct CreateTO and the Executive Director, Corporate Real Estate Management, in consultation with other City divisions, to consider the feasibility of a not-for-profit long-term care facility as a potential future use for the 966 Don Mills Road site and to work with the principals of the Thompson House on a business case, including fit and requisite funding.

6. City Council direct CreateTO, the Executive Director, Corporate Real Estate Management, the Chief Planner and Executive Director, City Planning and the General Manager, Parks, Forestry and Recreation to report back on the findings and the feasibility of a potential for a new, not-for-profit long-term care facility on the City-owned property at 966 Don Mills Road.

7. City Council direct CreateTO and the Executive Director, Corporate Real Estate Management, in consultation with other City divisions, to continue to consider other public community uses that may be accommodated at 966 Don Mills Road.

8. City Council adopt the confidential instructions to staff in Confidential Attachment 1 to the supplementary report (November 7, 2021) from the City Solicitor.

9. City Council authorize the public release of the confidential instructions to staff in Confidential Attachment 1 to the supplementary report (November 7, 2021) from the City Solicitor and City Council direct that the balance of Confidential Attachment 1 to the supplementary report (November 7, 2021) from the City Solicitor remain confidential, as it contains advice that is subject to solicitor-client privilege.

10. City Council direct that Confidential Attachment 1 to the supplementary report (September 1, 2021) from the City Solicitor remain confidential in its entirety as it contains advice or communications that are subject to solicitor-client privilege and it pertains to litigation or potential litigation.

The confidential instructions to staff in Confidential Attachment 1 to the supplementary report (November 7, 2021) from the City Solicitor were adopted by City Council and are now public as follows: 

1.  City Council accept the with-prejudice settlement offer dated September 20, 2021 attached to the supplementary report (November 1, 2021) from the City Solicitor as Appendix A, (the "Settlement Offer"), provided that within 10 business days of the adoption of this City Council decision, the Don Mills Residents Inc. elects either a. or b. below as follows:

a. within 10 business days of the adoption of this City Council decision, the Don Mills Residents Inc. withdraws its appeal to the Court of Appeal in the matter CV-19-623680; and provides a written communication to the City Solicitor, undertaking that the organization will not appeal or cause to be appealed the Rezoning and Official Plan Amendment for the lands at 966 Don Mills Road as recommended in the August 23, 2021 report from the Chief Planner and Executive Director, City Planning to the Ontario Land Tribunal; or

b.  within 10 business days of the adoption of this City Council decision, the Don Mills Residents Association enters into Minutes of Settlement with the City, to the satisfaction of the City Solicitor, in which it agrees that:

i.  the Don Mills Residents Inc. will modify its appeal to the Court of Appeal in the matter CV-19-623680, to withdraw its request for injunctive relief/specific performance requiring the construction of the community centre at 966 Don Mills Road and regarding the use of the $17 million dollars (indexed) in Section 37 money related to the community centre;

ii.  the Don Mills Residents Inc.'s requests for declaratory relief and a trial to determine consequential (monetary) damages would continue, but an upper limit would be set on the maximum amount of consequential damages that could be claimed by the Don Mills Residents Inc., to the satisfaction of the City Solicitor; and

iii.  the Don Mills Residents Inc. will not appeal or cause to be appealed the Rezoning and Official Plan Amendment for the lands at 966 Don Mills Road as recommended in the August 23, 2021 report from the Chief Planner and Executive Director, City Planning to the Ontario Land Tribunal.

2.  City Council authorize the City Solicitor to advise the Ontario Land Tribunal that the City supports the request by owner that the Ontario Land Tribunal revise its decision in matter PL160225 to allow the development proposal proceed as generally described in the Settlement Offer.

3.  Should the Ontario Land Tribunal agree to revise its decision in this matter, that City Council authorize the City Solicitor to request the Ontario Land Tribunal to withhold the issuance of any final Order(s) until such time as the Ontario Land Tribunal has been advised by the City Solicitor that:

a.  the final form and content of the Zoning By-law Amendments are to the satisfaction of the Chief Planner and Executive Director, City Planning and the City Solicitor, in consultation with the Chief Engineer and Executive Director, Engineering and Construction Services, and other appropriate divisions;

b.  the owner has entered into an agreement pursuant to Section 37 of the Planning Act (the "Section 37 Agreement"), and any other necessary agreements, satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor, with such agreement(s) registered on title to 169 The Donway West, in a manner satisfactory to the City Solicitor to secure the community benefits and matters of legal convenience at the owner's expense, as set out in Part 4 below;

c.  the owner has, at the owner's expense provided an updated Functional Servicing and Stormwater Management Report; to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services; and

d.  the owner has submitted a complete Site Plan Application to the City.

4.  City Council authorize the entering into of an agreement pursuant to Section 37 of the Planning Act as follows, satisfactory to the City Solicitor:

a.  the community benefits offered in the Settlement Offer and recommended to be secured in the Section 37 Agreement are as follows:

i.  a contribution of four million dollars (indexed) to be put toward a community space of approximately 1,766 square metres (19,000 square feet) of gross floor area to be provided on the first storey of the proposed building at 169 The Donway West (the " Community Space"); the owner shall construct and finish the Community Space at its own cost, inclusive of all fixtures, and shall also provide furnishings and equipment for the Community Space, to a maximum cost of $350,000.00; the Community Space will be conveyed to the City at a nominal cost upon the earlier of completion of the Community Space; registration of a condominium corporation at 169 the Donway; or first occupancy of 169 the Donway and will be operated by the City or a third party operator; and

ii. the Community Space will be finished with flexible meeting/fitness spaces, gymnasium/auditorium area and associated changing rooms and washrooms, administrative space, and an integrated walking track; the facility will be fully accessible for people with disabilities and will have visible frontage and signage;  the City and the owner shall work together to finalize the details of the design, construction and finishes of the Community Space that is acceptable to both parties, prior the issuance of any above grade permits for the building at 169 The Donway West, to the satisfaction of General Manager, Parks, Forestry and Recreation;

b.  the matters to be secured as a legal convenience in the Section 37 Agreement are as follows:

i.  a minimum of 10 percent three bedroom units and 20 percent two bedroom units shall be provided; and

ii.  the parking rate as set out in the Settlement Offer will be supplemented by three additional Travel Demand Management measures agreed to by the owner:

A.  one Bikeshare station will be provided (financial contribution of $50,000);

B.  preloaded Presto Cards with a value of $150 shall be provided to each unit; and

C.  five dedicated carshare spaces which shall be located on P1 Level and accessible to the public.

5.  City Council approve a development charge credit against the Parks, Forestry and Recreation component of the Development Charges for the constructing and finishing by the owner of the Community Space at 169 the Donway West to the satisfaction of the General Manager, Parks, Forestry and Recreation; the total Parks, Forestry and Recreation component of overall Development Charges for 169 The Donway West is currently estimated at up to $2.89 million based on November 2020 rates; that amount shall be indexed to the date of the pulling of the first above grade building permit (the "Indexed Amount"); if the Parks, Forestry and Recreation component of the Development Charges payable at the time is more than the Indexed Amount, CF/Lanterra shall receive credits equivalent to the actual costs of constructing and finishing the Community Space (less the indexed $4 million section 37 contribution to be paid by the owner), to a maximum of the total available Parks, Forestry and Recreation credit;  if the Parks, Forestry and Recreation component of the Development Charges payable at the time is less than the Indexed Amount, the difference between the Indexed Amount and the Parks, Forestry and Recreation component will be paid to owner by Parks, Forestry and Recreation from a Section 42 Reserve Fund to offset the actual costs of constructing and finishing the Community Space.

6.  City Council direct staff to form a working group on the potential future uses of the public lands at 966 Don Mills Road; the group shall be formed after the City takes possession of the lands and shall include at a minimum 3 members of the executive of the Don Mills Residents Inc. and other members of the community; the working group shall be consulted at least 3 times before a report on the future use of the lands at 966 Don Mills Road is presented to City Council.

7.  City Council authorize the City Solicitor and necessary City staff to take such necessary steps, as required, to implement City Council's decision.

The balance of Confidential Attachment 1 to the supplementary report (November 7, 2021) from the City Solicitor remains confidential in accordance with the provisions of the City of Toronto Act, 2006, as it contains advice that is subject to solicitor-client privilege.

Confidential Attachment 1 to the supplementary report (September 1, 2021) from the City Solicitor remains confidential in its entirety in accordance with the provisions of the City of Toronto Act, 2006, as it contains advice that is subject to solicitor-client privilege and it pertains to litigation or potential litigation.

City Council on October 1 and 4, 2021, deferred consideration of Item NY26.2 to the November 9 and 10, 2021 meeting of City Council.