Guglietti v. Toronto (City), 2022 CanLII 71618

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 02, 2022

CASE NO(S).: OLT-22-002223

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicants: 101 Heath Holdings Inc. 103 Heath Holdings Inc.

Appellants: Michael Guglietti, Steven Guglietti, and Thomas Rahilly

Subject: Minor Variance

Property Address/Description: 101-103 Heath Street West

Variance from By-law Nos.: 569-2013 and 438-86

Municipality: City of Toronto

Municipal File No.: A0266/21TEY

OLT Case No.: OLT-22-002223

OLT Lead Case No.: OLT-22-002223

OLT Case Name: Guglietti v. Toronto (City)

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

Subject: Site Plan

Referred by: 101 Heath Holdings Inc. 103 Heath Holdings Inc.

Property Address/Description: 101-103 Heath Street West

Municipality: City of Toronto

OLT Case No.: OLT-22-002444

OLT Lead Case No.: OLT-22-002223

Heard: June 13, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

Steven Guglietti (“Appellant”)

Christopher Tanzola

Michael Guglietti and Katherine Fuda (“Appellants”)

Christopher Tanzola

Thomas Rahilly and Jean Fraser (“Appellants”)

Patrick Welsh Chris Barnett (in absentia)

101 Heath Holdings Inc. and 103 Heath Holdings Inc. (“Applicants”)

David Bronskill

City of Toronto

Daniel Elmadany

MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL ON JUNE 13, 2022 AND ORDER OF THE TRIBUNAL

Introduction

1This is the first Case Management Conference (“CMC”) conducted with respect to appeals from Steven Guglietti, Michael Guglietti (and Katherine Fuda) and Thomas Rahilly (and Jean Fraser) pursuant to s. 45(12) of the Planning Act resulting from the City of Toronto’s Committee of Adjustment approval of a Minor Variance application for 101-103 Heath Street West.

2The subject properties, municipally known as 101 and 103 Heath Street West in the City of Toronto (“City”), presently contain a two-storey and a two-and-a-half-storey detached dwelling.

3The application under appeal proposes to demolish the two-storey detached dwelling at 101 Heath Street West and partially demolish the two-and-a-half -storey detached dwelling at 103 Heath Street West, and construct a three-storey, 10-unit, apartment building on the consolidated lot. The plans on file propose to retain the front main wall and front 10.6 metres of the side walls of the building at 103 Heath Street West.

4The Tribunal marked the Affidavit of Service of the Notice of the CMC sworn by Sabrina Salatino on January 12, 2022, as Exhibit 1 to the Hearing.

Opportunities for Settlement Discussion

5When questioned regarding the possibility of a settlement, the Parties advised that there have been ongoing discussions towards a potential settlement on a without prejudice basis. The Parties will advise the Tribunal on the status of discussions.

Procedural Order and Issues List

6A draft Procedural Order was submitted to the Tribunal in advance of the CMC.

7The Parties are requesting a five-day Hearing. They are working cooperatively to finalize the Procedural Order and Issues List and have suggested that the final version of the same will be submitted to the Tribunal within two weeks.

Party and Participant Status

8Cathie Macdonald, representing the Deer Park Residents Group, requested the Tribunal for Participant status. Ms. Macdonald is the President of this group, which is incorporated.

9Ms. Macdonald provided written correspondence to the Committee of Adjustment in opposition to the proposed variances in December 2021, on behalf of the residents’ group.

10There was some confusion as to whether all the Parties had received a copy of Ms. Macdonald’s Participant statement. She was requested to forward a copy to the Tribunal’s Case Coordinator for distribution.

11After consideration of Ms. Macdonald’s request and on consent of the Parties, the Deer Park Residents Group was granted Participant status.

Scheduling of the Minor Variance Hearing

12A five-day Hearing has been scheduled for Monday, February 27, 2023.

13Parties are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

14Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

15Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free): 1 (888) 299-1889 or +1 (647) 497-9373. The access code is 709-076-365.

16Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the Hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

Site Plan Appeal

17The Tribunal notes there is an active site plan appeal by the Applicants with the City pursuant to s. 45(12) of the Planning Act.

18It was suggested by the Applicants’ counsel, and agreed to by the Parties, that this appeal be adjourned until such time as the Minor Variance appeals are dealt with. If the Minor Variance appeals are allowed, then the site plan appeal with the City would be moot.

19It was further agreed that, if the Minor Variance appeals are dismissed, the Parties to this Hearing would be granted Party status for the site plan appeal.

Order

20The Tribunal received the final Procedural Order and Issues List, which is attached as Schedule 1 to this Decision. As such, it is in full force and effect.

21The Hearing is scheduled to proceed by video hearing on Monday, February 27, 2023, at 10 a.m. for five (5) days.

22The Deer Park Residents Group is granted Participant Status.

23The site plan appeal by the Applicants pursuant to s. 45(12) of the Planning Act is adjourned until such time as the results of the above Hearing are determined.

24The Member is not seized, however, may assist with case management, schedules permitting.

25No further notice will be given.

“T. Prevedel”

T. PREVEDEL

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

CASE NO.: OLT-22-002223

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicants: 101 Heath Holdings Inc. 103 Heath Holdings Inc.

Appellants: Michael Guglietti, Steven Guglietti, and Thomas Rahilly

Subject: Minor Variance

Property Address/Description: 101-103 Heath Street West

Variance from By-law Nos.: 569-2013 and 438-86

Municipality: City of Toronto

Municipal File No.: A0266/21TEY

OLT Case No.: OLT-22-002223

OLT Lead Case No.: OLT-22-002223

OLT Case Name: Guglietti v. Toronto (City)

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

Subject: Site Plan

Referred by: 101 Heath Holdings Inc. 103 Heath Holdings Inc.

Property Address/Description: 101-103 Heath Street West

Municipality: City of Toronto

OLT Case No.: OLT-22-002444

OLT Lead Case No.: OLT-22-002223

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the Parties’ request or its own motion.

Organization of the Hearing

2. The video hearing for the variance appeals will begin on Monday, February 27, 2023 at 10a.m. The site plan appeal will be adjourned pending a decision regarding the variance appeals.

https://global.gotomeeting.com/join/709076365

Access Code: 709-076-365

Audio-only Telephone Line: (Toll Free) 1 (888) 299-1889/ +1 (647) 497-9373

Access Code is as indicated above.

3. The length of the hearing will be five (5) days. The Parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues, where possible. The procedural order deadlines are generally found in Attachment 1.

4. The Parties and Participants identified at the Case Management Conference are listed in Attachment 2 to this Order.

5. The Issues are set out in the Issues List attached as Attachment 3 to this Order. There will be no changes to this list unless the Tribunal permits, and a Party who asks for changes may have costs awarded against it.

6. The order of evidence is set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the Parties' consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing shall provide a mailing address, email address and a telephone number to the Tribunal. Any such person who retains a representative must advise the other Parties and the Tribunal of the representative’s name, address, email address and the phone number.

8. If the hearing is to proceed electronically, any person who intends to participate in the hearing, including Parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

9. If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide copies of the revised proposal, including all revised plans, drawings, proposed instruments, supporting document and reports, to the other Parties on or before October 28, 2022. The applicant acknowledges that any revisions to the proposal after that date without the consent of the Parties may be grounds for a request to adjourn the hearing.

10. A Party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other Parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before November 18, 2022. For expert witnesses, a Party is to identify the area of expertise in which the witness is proposed to be qualified and must include a copy of the witness's curriculum vitae and Acknowledgment of Expert's Duty Form. Any challenges to the witness, including qualifications of a witness to give opinion evidence in the area of expertise proposed shall be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or before December 2, 2022.

11. Expert witnesses in the same discipline(s) shall have at least one meeting before the hearing to try to resolve or reduce the issues for the hearing. The experts shall prepare a list of any agreed facts and the remaining issues to be addressed at the hearing, and provide this list to all of the Parties and the Tribunal on or before December 16, 2022.

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in Section 15. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony. For greater certainty, each expert witness statement must comply with the minimum content requirements specified in Rule 7 of the Tribunal’s Rules of Practice and Procedure. If the expert witness has prepared any report(s) that he/she intends to rely on at the hearing, and which did not form part of the submissions made to the City, such report(s) shall be provided to the other Parties at the same as the delivery of expert witness statements, as in Section 15.

13. A witness or participant must provide to the Tribunal and the Parties a witness statement or participant statement, respectively, on or before January 13, 2023, or the witness or participant may not give oral evidence at the hearing. Participants are only permitted to provide written evidence to the Tribunal, unless otherwise permitted by the Tribunal.

14. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the Party calling them must file a brief outline of the expert’s evidence, as in Section 15.

15. On or before January 13, 2023, the Parties shall provide copies of their witness statements and expert witness statements (full disclosure including reports) to the other Parties and to the OLT case co-ordinator in accordance with Section 22 below.

16. On or before January 27, 2023, the Parties may provide to all other Parties a written response to any written evidence.

17. On or before February 10, 2023, the Parties shall provide copies of their visual evidence to all of the other Parties. The Tribunal and all Parties shall be notified if a model will be used, all Parties must have a reasonable opportunity to view it before the scheduled commencement of the hearing.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. Such a motion shall be in accordance with the Tribunal’s Rule 10, which requires that the moving Party provide copies of the motion to all other Parties at least 15 days before the Tribunal hears the motion or unless otherwise on a timeline agreed to by the parties.

19. A Party who provides a witness’ written evidence to the other Parties must have the witness attend the hearing to give oral evidence, unless the Party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

20. On or before February 17, 2023, the Parties shall prepare and file a detailed Work Plan that identifies the following, at a minimum: the identified Parties participating in the Hearing Event, preliminary matters (if any to be addressed), the date a witness is intended to attend the Tribunal, the identified witness name/expertise, and the approximate time allotted for Examination in Chief, Cross Examination and any re-examination (if any) (the “Work Plan”). The Work Plan should be adhered to guide the Hearing Event to the best ability of all the Parties, and any and all witnesses shall be available on the identified date(s), unless otherwise directed by the Tribunal. The Tribunal may, at its discretion, change or alter the Work Plan throughout the Hearing Event.

21. The Parties shall prepare a Joint Document Book on or before February 10, 2023. One hard copy of the Joint Document Book shall be filed with the Tribunal as soon as possible in advance of the hearing. All Parties must be served by the appellant with the Joint Document Book in paper or an accessible electronic format in accordance with Section 22.

22. At the time of cross-examination, the Parties shall provide to all Parties and the Tribunal, in a password protected format, any documents that will be used by the Party in cross-examination of an opposing Party's witness, unless the presiding Member directs otherwise. The password protected documents shall only be accessible to the Tribunal and the other Parties if they are introduced as evidence at the hearing.

23. All filing of documents and materials shall be electronic to the Tribunal, the Parties and Participants (if any). The Tribunal shall be provided a hard copy of documents and materials in advance of the hearing event as soon as practicable. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7. All documents to be filed with the Tribunal shall be organized, tabbed and digitally searchable and such materials will be filed in accordance with directions contained in the Tribunal’s Video Hearing Guide, dated July 2, 2020, or as may be amended. Section 22 applies regardless if the hearing event is in-person or electronic.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

25. The Tribunal may conduct mediation on consent of all Parties, on consent of those Parties who wish to participate in mediation, or if the Tribunal sees fit.

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

This Member is [not] seized.

So orders the Tribunal.

ATTACHMENT 1

SUMMARY OF DATES

DATE

EVENT

November 18, 2022

Exchange of witness lists (names, disciplines and order to be called)

December 2, 2022

Last date to challenge identification of expert witness

December 16, 2022

Experts Meeting and Agreed Statement of Facts

January 13, 2023

Exchange of Witness Statements, summoned witness outlines, Expert Reports and Participant Statements

January 27, 2023

Exchange of Reply Witness Statements (if any)

February 10, 2023

Exchange of visual evidence (if any)

February 10, 2023

Preparation of Joint Document Book

February 17, 2023

Final Work Plan filed with the Tribunal

February 27, 2023

Hearing commences

ATTACHMENT 2

LIST OF PARTIES/PARTICIPANTS

PARTIES

1. 101 Heath Holdings Inc./103 Heath Holdings Inc. (the “Applicant”)

   David Bronskill, Goodmans LLP dbronskill@goodmans.ca 416.597.4299

2. City of Toronto

   Daniel Elmadany, City of Toronto Legal Services daniel.elmadany@toronto.ca 416.397.5709

3. Michael Guglietti/Steven Guglietti

   Christoper Tanzola, Overland LLP ctanzola@overlandllp.ca 416.730.0645

4. Thomas Rahilly/Jean Fraser

   Chris Barnett, Osler, Hoskin & Harcourt LLP cbarnett@osler.com 416.885.3680

PARTICIPANTS

ATTACHMENT 3

ISSUES LIST

Without limiting the scope of Section 45(1) of the Planning Act, do the proposed variances and does the proposed development appropriately address matters of:

a. sun/shadowing on neighbouring properties, including amenity areas for those properties;

b. privacy, overlook, and interface (including noise) with neighbouring properties, including from the outdoor amenity areas and balconies of the proposed development;

c. the built form relationship with neighbouring properties arising from the proposed development’s height, length, depth, frontage, coverage, floor space area, landscaped area, and setbacks;

d. compatibility regarding the location of the proposed driveway and ramp and the neighbouring properties; and,

e. the loss of mature trees, both on the subject property and neighbouring properties?

ATTACHMENT 4

ORDER OF EVIDENCE

1. The Applicant
2. City of Toronto
3. Michael Guglietti/Steven Guglietti
4. Thomas Rahilly/Jean Fraser
5. The Applicant in reply (if any)

ATTACHMENT 5

Meaning of Terms Used in the Procedural Order

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

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

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

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

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

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

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

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

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

Additional Information

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

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

5. direct examination by the party presenting the witness;

6. direct examination by any party of similar interest, in the manner determined by the Tribunal;

7. cross-examination by parties of opposite interest;

8. re-examination by the party presenting the witness; or

9. another order of examination mutually agreed among the parties or directed by the Tribunal.