Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 25, 2024

CASE NO(S).: OLT-23-000965

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant / Appellant: Fouad Badour Subject: Consent Description: Consent for the conveyance of the subject land to create a new lot (Lot B) Reference Number: B-033/23 Property Address: 991 Morand Street (Lots 31 and 32, RP 1579) Municipality/UT: City of Windsor OLT Case No.: OLT-23-000965 OLT Lead Case No.: OLT-23-000965 OLT Case Name: Badour v. Windsor (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant / Appellant: Fouad Badour Subject: Consent Description: Consent for the conveyance of the subject land to create a new lot (Lot C) Reference Number: B-034/23 Property Address: 991 Morand Street (Lots 31 and 32, RP 1579) Municipality/UT: City of Windsor OLT Case No.: OLT-23-000966 OLT Lead Case No.: OLT-23-000965

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

Applicant / Appellant: Fouad Badour Subject: Minor Variance Description: Relief from the provisions of the By-law 8600 Reference Number: A-048/23 Property Address: 991 Morand Street (Lots 31 and 32, RP 1579) Municipality/UT: City of Windsor OLT Case No.: OLT-23-000967 OLT Lead Case No.: OLT-23-000965

Heard: January 8, 2024 and March 22, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Fouad Badour	R. Jabbour*
City of Windsor	A. Farough
David and Annemarie Toldo, Carolyn Ozimek, Mary Paniccia, Doris Roback, Claudio Silvaggi, Barry Heeny, and Anna Bodnar	J. Nanson

MEMORANDUM OF ORAL DECISION DELIVERED BY S. GOPIKRISHNA ON MARCH 22, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference in regard to appeals submitted by Fouad Badour ("Appellant") resulting from the refusal by the Committee of Adjustment ("COA") of the City of Windsor ("City") of Applications for Provisional Consent and Minor variances, pursuant to s. 53(19) and 45(12) of the Planning Act ("Act"). The purpose of the Applications is to facilitate the creation of three new lots, labelled A, B, and C respectively, from the existing single lot, through conveyance of two parcels of land from the existing lot at 991 Morand Street (collectively referred to as the "Subject Lands" or "Site"), in the City. The Appeal also requests the approval of minor variances to recognize a reduced minimum side yard for the retained parcel (Lot A), a reduced minimum side yard width for the conveyance identified as Lot B, and a reduced minimum lot width and side yard width for the conveyance identified as Lot C. By way of an editorial comment, the diagram in Attachment 1, attached to this Decision illustrates the proposal to sever the land, together with the labels assigned to the lots. The Site has a lot width of 47 metres and a total lot area of 3,114 square metres, and is presently occupied by a single unit dwelling, with an accessory pool structure, and garage, and is located at the corner of Morand Street and Barton Street.

2The COA considered the Applications on August 24, 2023, and refused the consent to sever Applications, as well as the minor variances.

3The Appellant appealed the COA's refusal of the Applications to the Ontario Land Tribunal ("Tribunal") on September 7, 2023. The Tribunal scheduled a Hearing on January 8, 2024.

THE HEARING HELD ON JANUARY 8, 2024

4At the Hearing held on January 8, 2024, the following individuals requested and were granted Party status: David and Annemarie Toldo, Carolyn Ozimek, Mary Paniccia, Doris Roback, and Claudio Silvaggi.

5When the Tribunal asked the above individuals about why they wanted to be made Parties to the Appeal, they replied by saying that they lived in the immediate vicinity of the Site and would be impacted negatively by the proposed development. They summarized their opposition to the proposal by highlighting why the proposed buildings would be out of character with what existed in the community.

6Ms. Jabbour, the Representative for the Appellant, objected to the granting of Party status to the above individuals because their objections were already on record as they had participated in the COA hearing. Mr. Nanson, counsel for the individuals in opposition to the proposal, including the individuals referred to in Paragraph 4 of this Decision, argued that the individuals should be given Party status, because it was imperative to give them a voice to participate in decision making that impacted them the most. Counsel for the City, Mr. Farough said that he supported the granting of Party status to the individuals, because the City supported the notion of providing a voice to all residents participating in decision making.

7After hearing the Parties express their thoughts about whether these individuals should be granted Party status, the Tribunal accepted the reasoning of Mr. Nanson and ruled that all of the individuals named in paragraph [4] above are granted Party status in the proceedings.

8The Tribunal then elaborated on the roles of Representative, Witness, and Expert Witness to the Parties, and how the roles of an Expert Witness and a Representative were mutually exclusive because no individual could simultaneously be a Representative and an Expert Witness in the same proceeding. The Tribunal specifically explained to Ms. Jabbour that as the Representative for the Appellant, she was entitled to make submissions to support the Application, as well as cross-examine the witnesses presented by the other Parties, while the role of an Expert Witness, precluded her from questioning other Parties.

9The Tribunal encouraged Ms. Jabbour to have a conversation with the Appellant, if necessary, to decide which role would be appropriate for her in this proceeding, given the mutual exclusivity alluded to earlier in paragraph [8]. After a brief recess, Ms. Jabbour stated that she had decided to be a Representative, as opposed to an Expert Witness.

10Ms. Jabbour was affirmed before providing evidence. At the onset of her testimony, she stated that the Appellant wanted to change some of the variances requested for the construction of the houses. She specifically referenced the variances respecting side-yard width for all three lots, and the width of one of the lots. When the Tribunal asked Ms. Jabbour if the modified variances, as proposed, had been circulated to the community such that the other Parties were aware of the changes, she replied in the negative.

11When the Tribunal asked Ms. Jabbour if the proposed changes to the variances were minor, and that there was no need for further, as stated in s. 45(18.1.1) of the Act, she asserted that the proposed changes were minor, but did not provide a planning rationale about why she considered the changes to be minor, other than providing a numerical comparison of the variances, as proposed originally to the COA, and the new variances.

12When the Tribunal asked Mr. Nanson, counsel for the Parties opposing the Application, if they were in agreement about the requested changes to the variances, being minor, per s. 45(18.1.1) of the Act, he said that he needed time to consult his clients. Mr. Farough, counsel for the City, stated he too needed to consult his colleagues in the Planning Department to get their opinion on whether the changes were minor, as suggested by the Appellant.

13After a fifteen minute break, which enabled counsel to have a discussion with their clients, both Mr. Nanson and Mr. Farough stated they were unclear about how the proposed changes could be considered to be minor. They also stated their preference for new Notice that included the updated Plans, and a clear recitation of the new variances: As a result of the need for new notice, the Tribunal adjourned the Proceeding, and instructed that new notice be circulated by the City. With the help of Mr. Farough, Counsel for the City, the following email was circulated to the residents living in the neighbourhood, who had to be given notice, under the City's By-laws, together with the updated Plans, and appended to this Decision:

Please be advised you are receiving this message as you are on the notice list for the above noted matter and received the previous notice of hearing attached.

The Ontario Land Tribunal hearing scheduled for January 8, 2024 on this matter was adjourned as the applicant has amended its application as follows:

• Side Yard setback for Lot A between the dwelling and the proposed easterly side lot line is changed from 0.9 metres to 1.2 metres,

• Side Yard setback for Lot B between westerly side lot line and proposed dwelling is changed from 1.5 metres to 1.2 metres, and,

• Lot width for Lot B is reduced from 18 metres to 17.7 metres. This change results in the need for an additional variance to accommodate a reduction of 0.3 metres in the minimum lot width for Lot B.

A copy of the updated sketch of the property showing these changes is attached for your reference. The amended application will be before the Tribunal when the hearing for this matter resumes, at a later date to be scheduled by the Tribunal.

14The Tribunal was made aware that after Notice had been provided, some neighbours had expressed interest in becoming Parties, and wanted to obtain more information on the responsibilities, and expectations, of Parties.

THE HEARING OF MARCH 22, 2024

15A subsequent Hearing was held on March 22, 2024, where Barry Heeney and Anna Bodnar requested for Party status. Given that no other Party objected to the participation of the above individuals, the Tribunal granted both Mr. Heeney and Ms. Bodnar Party status.

16In the interests of an efficient Proceeding, the Tribunal provided information about what was expected of a party, and a participant, including being cross-examined on their evidence, and the procedure to be followed to become a party, or a participant. When it was suggested that all Parties "may want to give evidence", the Tribunal stated that while it welcomed more participation in the interest of a fair, thoughtful and inclusive process, it was also important that witnesses not repeat each other, and reiterate the same grounds for opposition to the proposal, in the interests of an efficient Proceeding. The Tribunal also encouraged the Parties to identify common issues and select spokespersons who could present the concerns in the form of evidence to the Tribunal.

17After a discussion with the Parties about the number of days needed to complete the proceeding, it was decided that two days of hearing time would be sufficient. A two-day Hearing has been scheduled to begin by video at 10 a.m. on Thursday, June 27, 2024, and continue on Friday, June 28, 2024.

18Parties 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:

GoTo Meeting: https://global.gotomeeting.com/join/638422541

Access code: 638-422-541

19Parties 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.

20Persons 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: +1 (647) 497-9373 or (Toll Free) 1-888-299-1889. The access code is the same as the access code noted above.

21Individuals 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 Video Hearing 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.

22New notice needs to be given, where the Appellant makes changes to the variances, such that they are not minor, under Section 45.18.1. of the Act. In this case, the Tribunal was unclear that the requested changes to the variances were minor, resulting in an adjournment of the Hearing, and the instructions for new Notice.

23The Tribunal satisfied itself that adequate notice had been given that at the second hearing held on March 22, 2024. Given that there were no objections to the Appellant's changes to the updated variances from any of the Parties, including those who were granted Party status on that occasion, the Tribunal rules that the proceeding can proceed on the basis of the updated variances, which are recited in Attachment 2, appended to the Order.

ORDER

24The Tribunal will hear the Appeal on Thursday, June 27, 2024 and Friday, June 28, 2024.

25THE TRIBUNAL, having been asked to consider an application which has been amended from the original application, and the Tribunal having provided notice of the amended application in accordance with subsection 45(18.1) of the Planning Act, and no person having provided the Tribunal with a notice of intention to appear, finds that there is no need for further notice.

26With the Consent of the Parties, the Proceeding will rely on the diagram provided in Attachment 1, and the Table of variances recited in Attachment 2, both of which are appended to this Order, to make findings about the Consent to sever, and the variances respectively.

27The following individuals are given Party status in the proceeding:

• David Toldo;
• Annemarie Toldo;
• Carolyn Ozimek;
• Mary Paniccia;
• Doris Roback;
• Claudio Silvaggi;
• Barry Heeney; and
• Anna Bodnar.

28The Panel Member is not seized, but may be consulted by the Tribunal where necessary.

"S. Gopikrishna"

S. GOPIKRISHNA

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.

ATTACHMENT 1

ATTACHMENT 2

Category	Lot A	Lot B	Lot C
Minimum side yard width	1.2 metres proposed versus 1.8 metres required (on both sides)	1.5 metres proposed versus 1.8 metres required (west side only) 1.5 metres proposed versus 1.8 metres (east side only)	1.2 metres proposed versus 1.8 metres (on both sides)
Minimum Lot Width	None	17.7 metres proposed versus 18 metres required	17.41 metres proposed versus 18 metres required