Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 29, 2022
CASE NO(S).: OLT-22-002151
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Trevor D'Souza
Applicant: Crown (Scarborough) Developments Inc.
Subject: Zoning By-law
Description: Proposed Zoning By-Law 1087-2021
Reference Number: BL 1087-2021
Property Address: 7437, 7439 and 7441 Kingston Road
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-22-002151
OLT Lead Case No.: OLT-22-002151
OLT Case Name: D’Souza v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 34(25) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Motion by: Crown (Scarborough) Developments Inc.
Purpose of Motion: Request for an Order Dismissing the Appeal
Appellant: Trevor D’Souza
Subject: By-law No. 1087-2021
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-22-002151
OLT Lead Case No.: OLT-22-002151
Heard: April 29, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Trevor D’Souza (“Appellant”) | Self-Represented |
| Crown (Scarborough) Developments Inc. (“Applicant”) | Matthew Helfand |
| City of Toronto (“City”) | Jason Davidson |
MEMORANDUM OF ORAL DECISION DELIVERED BY D.S. COLBOURNE AND P. TOMILIN ON APRIL 29, 2022 AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal was a Motion to dismiss the Appeal by Trevor D’Souza without a hearing, brought by the developer Crown (Scarborough) Developments Inc. (“Applicant”). Orally, the Tribunal granted the Motion and dismissed the Appeal with reasons to follow.
2Although not raised by the Appellant in the hearing of the Motion, his affidavit indicates that he had requested that the Applicant agree to an adjournment of this matter, claiming he had only three days to respond as against the Applicant whom he said has had three years to prepare. He also added that he was not a lawyer and could not prepare as quickly as the Applicant. Frankly a review of the timing set out in the affidavits and his continuous involvement suggests that he has had the time to regularize and fulfill his responsibilities as an Appellant, and he must be prepared at all times to respond to the process. He was also advised of what matters were to be considered in the hearing of the Motion, but he chose to continue to argue the case and not the substance of the Motion.
3The Applicant is the owner of lands municipally know as 7437, 7439 and 7141 Kingston Road, located near the easterly boundary of the City of Toronto in the Rouge neighbourhood. The site is bounded by Kingston Road to the north and Highway 401 to the south. To the west of the site is a MacDonald’s restaurant and its associated parking, and to the east is a Pioneer Gas Station.
4To the north of the site beyond Kingston Road is a low-rise residential neighbourhood in which the Appellant resides. To the south of this beyond Highway 401 is a three and a half storey townhouse development and other commercial and institutional uses.
5The Applicant applied for a zoning by-law amendment (“ZBLA”) to permit development of 128 stacked townhouses and 175 spaces of below grade parking. That application was deemed complete on June 25, 2018.
6The application was supported by a number of technical reports, including a Geotechnical Investigation Report prepared by Soil Engineers Ltd. and a Hydrogeological Report prepared by Cole Engineering Group Ltd. These reports analyzed the site and supported the feasibility of the proposed townhouse development.
7Four subsequent submissions and considerable consultation occurred. The final proposal is for two eleven (11) storey buildings with three levels of below grade parking. The City planning board recommended approval on August 23, 2021. City Council enacted ZBL 1087-2021, to permit the development. The site was already zoned Mixed Use Area, which permits a broad range of commercial, residential and institutional uses. No Official Plan amendment is necessary to permit the proposed development.
8A previous owner had filed an application for commercial uses, which was approved. As a result, this proposal is subject to Site Plan Control, which will occur for the current application. The site is also subject to the Township of Pickering By-law, since it has not been encompassed in the city-wide zoning by-law.
9The proposal has been the subject of continuously updated technical reports starting from those submitted for the first proposal.
10There was a virtual Community Consultation on December 9th, 2021, following an in-person Community Consultation meeting held on December 12th, 2021. Community Council considered the Planning Staff Report at the statutory Public Meeting on September 17, 2021. They adopted the report, subject to submission of a Construction Management Plan for Council’s approval.
11The Appellant’s first e-mail to Council occurred September 14, 2021. It indicated concerns with respect to soil stability, erosion hazards, density impacts on the Rouge valley community, traffic, disparaging comments about future resident types and criticism of the park dedication.
12During the period September 19th to January 12, 2021, his e-mails continued, focusing on the issue of the engineering properties of the soil, and safety of construction. On several occasions he was advised that the reports had been reviewed and accepted by Engineering Staff.
13On January 2022, he was advised by Mr. Baron as follows:
I appreciate and note that you are still concerned that City of Toronto Engineering staff have signed off on the Engineering materials/studies provided by the applicant for the purposes of the Zoning by-law amendment. This zoning by-law application dates back to 2018 and the geotechnical and hydro studies that were submitted in June 2018 have undergone five rounds of review and circulation by the City of Toronto engineering staff. Since 2018 Engineering staff have had multiple rounds of circulation to review the accuracy of the aforementioned studies and for the purposes of the zoning by-law approval are satisfied with the materials/studies provided. I will provide your emails to the assigned Engineer on this proposal if you wish.
14The City’s submission continues: “The appellant expressed an intense and escalating dissatisfaction and distrust with the City’s planning process, and those involved including the Ward Councilor.”
15Continuing e-mail quotes in the City’s submission exhibit over-the-top criticisms of staff and Council.
16The Appellant’s affidavit responding to the Motion repeats the issue of soil, based on his experience on his lot adjacent to the Conservation Authority lands in the Rouge Valley. He criticizes the conclusion of all the reports of the City, he also opines on water tables he suggests exist on the site.
17He continues to outline his background as a Marine Engineer, which he argues eminently qualifies him to deal with the subject. The Tribunal does not view his background as qualifying him in any way to adjudge the present issues, and it does not make him an expert in the matters he has raised. The affidavit also adds concerns on removal of trees, bird-friendly buildings, transportation issues, schools and dedication of parkland.
18His affidavit does not respond to the grounds (statutory and common law) to be addressed in a motion for dismissal of an appeal. As set out above the Appellant continues to argue his personal soils experience on his lot and continues his dissatisfaction with actions of City staff and Councilors.
19As the Applicant points out, the grounds set out for dismissal of an appeal relate to disclosure of an apparent land use planning ground, whether the appeal is frivolous and vexatious, and whether the appeal has a reasonable prospect of success. These are set out in subsection 34(25) of the Planning Act, and clause 19(1)(c) of the Ontario Land Tribunal Act. A negative conclusion on any one of the grounds is sufficient to allow the Motion.
20On the ground of “No reasonable prospect of success”, Mr. D’Souza indicated that at the Hearing he would be his own witness. In response to the Tribunal’s question, he indicated that he would not be providing any other person/expert related to the issue of the soils or ground water. As the expert reports on his issue in support of the development have been reviewed several times by City Engineers, who are satisfied, the only expert evidence provided to the Tribunal will be that of the Applicant. Mr. D’Souza, a marine engineer, who is not an expert in the field he is arguing. He is an advocate with what appears to be his own issues, not in any way satisfactorily as related to the subject property. On that ground alone the appeal is dismissed.
21The recent Tribunal decision in Wenderley Park Community Association Inc. v Toronto (City), 2022 CanLII 75895 (ON LT), stated:
[53] In that regard the Tribunal has frequently stated that while anyone can give evidence about what they have seen or know, that “opinion” evidence in land use planning matters comes from experts who have been so qualified by dint of academic background and training and professional qualifications and experience. The well meaning expressions of beliefs and concerns are not sufficient grounds to maintain an appeal (see: Silvestri v. City of Hamilton (unreported), Tribunal Case No. OLT 22-002235).
22On the issue of a vexatious appeal, his communications with the City exhibit an unacceptable approach to a rational appeal.
23On the issue of an apparent land use issue: the Appellant agreed that safety in building construction is a matter covered by the Building Code. That will be dealt with at the time of issuance of the building permit. He still has not accepted that for planning purposes (the rezoning), the reports submitted and reviewed are sufficient for that purpose.
24The Tribunal allowed the Motion and dismissed the Appeal, and the Tribunal so orders.
“D.S Colbourne”
D.S. COLBOURNE
VICE-CHAIR
“P. Tomilin”
P. TOMILIN
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.