Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9
Date: 2023-02-06 File: 21 250427 S45 14 TLAB Citation: 1299298 Ontario Ltd. v. Toronto (City) et al., 2023 ONTLAB 1
ORDER ON AN ORAL MOTION
Issuance Date: February 6, 2023
PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant: 1299298 Ontario Ltd. Applicant: C2 Planning Land Use Planners Property Address: 818 Eastern Ave, Unit 2 COA File No.: 21 161035 STE 14 MV (A0706/21TEY) TLAB Case File No.: 21 250427 S45 14 TLAB Hearing Date(s): January 20, 24 and 30, 2023 Delivered By: TLAB Panel Member Yao
Registered Parties and Participants:
| People Type | Name | Representative(s) |
|---|---|---|
| Applicant | C2 Planning Land Use Planners | |
| Appellant | 1299298 Ontario Ltd. | D. Koev |
| Party | City of Toronto | A. Abimbola G. Dedelli J. Dexter |
| Party | T. Fagan | |
| Party | N. Ngo | T. Fagan |
| Expert Witness | C2 Planning Land Use Planners | C/O C. Chan |
| Expert Witness | S. Guenther | For City of Toronto |
| Expert Witness | T. Busch | For Appellant |
| Participant | L. Hancock | T. Fagan |
| Participant | J. Van Wyck |
The Motions
1This is a two-part oral motion by Ms. Abimbola (lawyer for the City) for:
a. An order to block the introduction of a letter dated January 25, 2023, as evidence in this hearing. The letter is from Mr. Busch, the sound engineer that sets out the construction details of a proposed sound barrier.
b. In the event that she is unsuccessful on the first motion, Ms. Abimbola requests an adjournment for her to retain a sound engineer of her own to test the contents of the Busch letter.
2Both motions are opposed by Ms. Koev, lawyer for Soulmutts.
Background
3We are now in the third day of an expected three-day hearing and completed Soulmutts’ case, consisting of evidence from Ms. Fodero, Mr. Busch and Mr. Chan. Both were subject to a complete cross examination by Ms. Abimbola and Mr. Fagan. Ms. Abimbola is now ready to introduce her evidence, which consists of one witness, Mr. Guenther, planner for the City. Mr. Fagan, resident and a party1 to this hearing, has yet to testify as well.
4To step back, Soulmutts seeks a variance for a “doggie daycare” and boarding facility at 818 Eastern Ave, Unit 2. This is not a permitted use under the City’s zoning by-law. The City and neighbours expressed concern about the noise and other issues. On December 1, 2021, the Committee of Adjustment refused Soulmutts’ application; Soulmutts appealed this decision to the TLAB.
5In the course of the Committee of Adjustment filings, Soulmutts’ planner wrote to the Committee:
Regarding screening, Soulmutts has committed, along with the adjacent Brewery operation, to the construction of a wall in the rear yard of their lots to mitigate any potential and/or actual impact of noise arising from both businesses. Soulmutts has engaged Toronto Buildings2 for the construction of the wall and should the Committee wish to secure as a condition of approval, we recommend the Committee to require that the Applicant construct an acoustic wall at the rear of the property. Details of the wall construction will be provided by the Applicant [in] the Supporting Documents that will be submitted to COA
6The letter was accompanied by a diagram of the wall, designed by Toronto Buildings. All this was before Mr. Busch was retained.
Disposition of motions and the resulting procedural orders
7Soulmutts prefiled Mr. Busch’s Expert Witness Statement in September 2021. Content requirements for experts’ statement are minimal3 and Mr. Busch’s report far exceeded minimum requirements. Once Soulmutts appealed, the City and the residents could not have been surprised that a sound barrier was a live issue. However Soulmutts understandably will not construct it before it obtains a variance.
8Mr. Busch was qualified to give opinion evidence in the area of noise and spoke at length about the framework of measurement of noise in both a Provincial and municipal context. To date he was the only person to do so.
9Mr. Busch said that a superior sound wall could be built, and at lower cost than the one shown to the Committee, which was apparently designed without benefit of noise engineering advice. I asked Ms. Koev to obtain the wording of a condition regarding Mr. Busch’s superior wall, in the event I found in Soulmutts’ favour. The request was similar to 1474 St Clair West, another TLAB case, in which the proponent wished to cut down on the space allotted for apartment dwellers’ bicycle storage by using a bike rack that stores bicycles very compactly. To explain the design, it gave the City the pictures supplied by the manufacturer. In that case, the City was satisfied and consented to the variance on this basis. I am not suggesting that the City should consent just because the proponent proposes a technical solution.
10My instructions of one week ago were as follows: Soulmutts was to provide to Ms. Abimbola with the letter it has now furnished. Ms. Abimbola and Mr. Fagan were to be given an opportunity to cross examine, if need be. Mr. Busch was available that day (Jan 30, 2023). However, Ms. Abimbola now wishes first to exclude the letter on the basis that it should have been in the Witness Statement of September 2021. I decline to do, since I asked for the new letter. It is relevant and I specifically preserved the City’s right to cross examine on it.
I direct Ms. Koev to file the letter and it will be Exhibit 10.
11In the alternative, Ms. Abimbola’s second motion was to request an adjournment to cross examine Mr. Busch on Exhibit 10. I accede to this second request. The hearing is adjourned to March 30 and 31, 2023. New notices are to be sent. Should Ms. Abimbola wish to call a second sound expert, that person must file a Witness Statement by March 9, 2023. Should she need to refer to any document not already in evidence, that document must also be filed by March 9, 2023.
12I now turn to Mr. Fagan, who appears to be the only resident who intends to testify. I refused to allow him to cross examine Mr. Busch on the basis of Mr. Fagan’s private noise logs, because he had failed to prefile his logs (that is, email them to the TLAB, Ms. Abimbola and Ms. Koev, etc.) by an earlier deadline in December 2022. Since Mr. Busch has to return in March, I will allow Mr. Fagan to also use that document in his second cross examination of Mr. Busch, provided Mr. Fagan prefiles his private noise logs by February 17, 2023. Mr. Fagan is not to use this opportunity to introduce private noise logs by other persons who are not in his immediate household.
13If there are questions arising from this Order would the parties please contact me at tlab@toronto.ca.
T. Yao Panel Member
Footnotes
- [Footnote 1 missing in original text]
- This appears to be an inadvertent typo. The company is North York Renovations and has nothing to do with the City of Toronto Buildings Department.
- 16.13 An Expert Witness Statement shall include: a) the expert’s name, address and area of expertise; b) the expert’s qualifications, employment and educational experiences in his or her area of expertise; c) the instructions provided to the expert in relation to the Proceeding; d) the nature of the opinion being sought and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s opinion within that range; and e) the expert’s reasons for his or her opinion, including a description of the factual assumptions, research and any Documents relied upon by the expert in forming his or her opinion.