Simmons v Markham (City), 2025 CanLII 29974

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 02, 2025

CASE NO(S).: OLT-24-001239

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

Appellant: Darryl Simmons Subject: Minor Variance Description: To permit an addition containing two suites Reference Number: A/106/23 Property Address: 86 John Street Municipality/UT: Markham/York OLT Case No: OLT-24-001239 OLT LeadCase No: OLT-24-001239 OLT Case Name: Simmons v Markham (City)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Elena Cesaroni Request for: Request for Directions Heard: February 27, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
Darryl Simmons (“Applicant/Appellant”)	Jeffrey Streisfield
City of Markham (“City”)	Maggie Cheung-Madar
Elena Cesaroni	Adrian Frank

DECISION DELIVERED BY L.P. YOU ON FEBRUARY 27, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This merit hearing was originally scheduled respecting an appeal by Darryl Simmons (“Applicant/Appellant”) under s. 45(12) of the Planning Act, R. S. O. 1990, c. P. 13, as amended regarding the refusal of the Committee of Adjustment (“COA”) of the City of Markham ("City”) of Minor Variance application (“Application”). The intent of the Application is to permit an addition containing two suites on the lands municipally known as 86 John Street (“Subject Lands”).

2Mr. Frank, on behalf of Ms. Cesaroni, filed a Notice of Motion to the Tribunal for the matter. Therefore, the hearing was converted to a Motion hearing (“Motion”).

3The City advised the Tribunal in writing and verbally at the hearing that the City took no position in the matter before the Tribunal.

MOTION

4Ms. Cesaroni’s Notice of Motion requested the following:

1. The Tribunal grants Party status to Ms. Cesaroni; and,
2. The Tribunal adjourns the hearing and orders a new hearing for the merits and a Procedural Order to govern the process for this matter.

MATERIALS

5The materials before the Tribunal on the Motion are:

1. Original Municipal Record marked as “Exhibit 1a” and paginated Municipal Record masked as “Exhibit 1b”;
2. Minor Variance Justification Letter by Mr. Litavski, Applicant presentation and City’s Minutes, marked as “Exhibit 2a, 2b, 2c”, respectively;
3. Nine Participant Statements marked as “Exhibit 3a, 3b, 3c, 3d, 3e, 3f, 3g, 3h, and 3i”, respectively;
4. Motion Record of Elena Cesaroni marked as “Exhibit 4”;
5. Appellant’s Notice of Response to Motion (to Cesaroni Party status request and request to convert the hearing to CMC) marked as “Exhibit 5”; and,
6. Reply Motion of Elena Cesaroni marked as “Exhibit 6”.

FINDINGS AND DIRECTIONS

Party Status Request from Ms. Cesaroni

6Counsel for Ms. Cesaroni indicated that Ms. Cesaroni’s property shares the rear lot line with the Subject Lands and is designated under the Ontario Heritage Act (“OHA”). Further, Counsel for Ms. Cesaroni noted that the Cesaroni property is part of the OHA Part V designated Thornhill Markham Heritage Conservation District.

7The proposal includes an attached rear addition containing two suites and a garage. The addition is proposed to be connected to the existing dwelling by an enclosed walkway.

8Counsel for Ms. Cesaroni stated that Ms. Cesaroni’s property is immediately adjacent to the Subject Lands and would be directly impacted by the proposed location, size, scale massing of the proposed development.

9Counsel for Ms. Cesaroni indicated that Ms. Cesaroni had prior interest in the Application and retained two professional experts, who submitted concerns about the Application to the COA of the City.

10Counsel for Ms. Cesaroni held the opinion that Ms. Cisaroni has direct interest in the matter before the Tribunal and the heritage value of Cesaroni property was demonstrably impacted by the development.

11Counsel for Ms. Cesaroni requested Ms. Cesaroni to be granted Party status to avoid prejudice and to ensure the Tribunal meets its mission to provide a full, fair, expeditious and cost-effective resolution of the merits of the Application.

12The Appellant objected to Ms. Cesaroni’s request for Party status and argued that Ms. Cesaroni did not provide evidence how her property would be impacted by the proposal.

13The Appellant’s consultant, Mr. Litavski, who prepared the Application materials to the City, stated in his affidavit that there would be no unacceptable impacts to Cesaroni property and additional screening required by City Heritage Planning staff to ensure there would be no negative impact to Cesaroni property.

14The Appellant requested the Tribunal to direct Ms. Cesaroni to submit affidavit services from her witnesses in her Motion to verify the impacts of the development to Cesaroni property.

15Counsel for Ms. Cesaroni argued that the intent of this hearing was to discuss the Motion itself and detailed evidence of the impacts of the development to Cesaroni property would be presented at the future merit hearing.

16Counsel for Ms. Cesaroni also argued that the current evidence of the potential impacts of the development was sufficient, and affidavit of services were unnecessary at this time. However, Counsel for Ms. Cesaroni agreed to submit affidavit of services prior to the new hearing should this hearing be adjourned.

17Given the fact the location of the proposed addition and the proximity of the subject lands to Ms. Cesaroni’s property, the Tribunal finds that granting Ms. Cesaroni Party status is fair without prejudice both to the Appellant and the public.

18At the hearing, Counsel for Ms. Cesaroni requested to strike the following materials from the record:

1. Document included as Exhibit “B” to the Affidavit of Adrian Litavski (“Affidavit”) attached to Exhibit “5” to this order;
2. The first part of Paragraph 8 of the Affidavit, up to and including the words “…as Exhibit’B’””;
3. Paragraph 9 of the Affidavit; and,
4. Paragraph 10 of the Affidavit.

19Counsel for Ms. Cesaroni indicated that the document referred to in the Affidavit in Paragraph [18] was directly addressed to the Tribunal without attention to Ms. Cesaroni.

20Counsel for Ms. Cesaroni stated that the hearing length for the merits is beyond Mr. Litavski’s expertise as a Land User Planner.

21The Tribunal finds that the request to strike the items in Para. [18] from Counsel for Ms. Cesaroni is acceptable and hereby approves the request.

Adjourn the hearing and schedule a new hearing with a Procedural Order to govern the process

22Counsel for Ms. Cesaroni noted that Ms. Cesaroni planned to call two expert witnesses and at least three lay witnesses in addition to two City staff on summons to be called by the Appellant. Counsel for Ms. Cesaroni requested the merit hearing to be scheduled a minimum of four to five days in length based on the number of the witnesses to be called and cross examined.

23Counsel for Ms. Cesaroni requested to the Tribunal for directions on Procedural Order to govern the process of the hearing for instruments of the matter before the Tribunal and to ensure the hearing to be efficient and productive.

24The Appellant objected to the request of Counsel for Ms. Cesaroni to reschedule the merit hearing and the length of the new hearing. The Appellant argued that it would take the Appellant less than a day to present the evidence for the matter before the Tribunal and the remainder of the scheduled hearing was sufficient.

25The Appellant held the opinion that a Procedural Order was unnecessary as the issues were clear to both Parties and all the information had been exchanged.

26The Tribunal finds that the number of witnesses from Ms. Cesaroni’s side were not considered when this hearing was scheduled, and the balance of this hearing time was insufficient to allow both Parties to present evidence and cross examination. Therefore, the Tribunal directs that:

1. The hearing dated on February 27 and 28, 2025 is adjourned;
2. a new hearing in the length of four days will be scheduled;
3. the Parties shall prepare and submit a Procedural Order with an Issue List with consents from the parties prior to the new hearing; and,
4. the Parties shall provide affidavit of services prior to the new hearing.

Service of Notice of hearing

27There is no issue with service of the Notice of this merit hearing, and so no further notice is required.

Requests for Status

28The following individuals requested and were granted Participant status on consent from Parties:

• Barbara Belsito;
• Dianne Berwick;
• Anthony Farr;
• Joan Honsberger;
• Richard Kercz;
• Cintia Nardi and Rodolfo Mure;
• Barry Nelson;
• Audrey Simpson (c/o Napier Simpson); and
• Lister and Susan Smith

OPPORTUNITIES FOR SETTLEMENT DISCUSSIONS

29The Tribunal explored the possibility of mediation and settlement with the Parties and encouraged Parties to narrow down the scope of the issues for a future hearing. The Parties agreed to keep the Tribunal apprised of any resolution efforts, which the Tribunal finds satisfactory.

PROCEDURAL ORDER AND ISSUES LIST

30The Tribunal received a Draft Procedural Order from the Parties and approved the Procedural Order attached to the Order dated Monday, March 3, 2025, to govern the proceedings for the hearing commencing on Friday, March 14, 2025 to Wednesday, March 19, 2025 at 10 a.m. by video hearing.

ORDER

31UPON MOTION to the Tribunal brought by Ms. Cesaroni for directions and after the hearing of the motion, THE TRIBUNAL ORDERS That:

1. The motion to grant Ms. Cesaroni Party status is approved; and,
2. The motion to adjourn this hearing, schedule a new hearing for the merits and direct a Procedural Order to govern the process for this matter is granted.

32THE TRIBUNAL ORDERS That: City Staff under summons will appear on Day one of the new hearing and no new summons request will be issued.

33The Member is not seized but may be spoken to through the Case Coordinator if any issues arise.

“L.P. You”

L.P. You 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.