Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
2023-10-19
23 165528 S53 02 TLAB
23 165529 S45 02 TLAB
23 165530 S45 02 TLAB
Sadry (Re), 2023 ONTLAB 145
INTERIM DECISION AND ORDER
Issuance Date:
October 19, 2023
PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s):
M. SADRY
Applicant(s):
URBANSCAPE ARCHITECTS INC
Property Address:
49 Bywood Dr.
COA File No.:
23 123467 WET 02 CO (B0009/23EYK)
23 123477 WET 02 MV (A0117/23EYK)
23 123479 WET 02 MV (A0118/23EYK)
TLAB Case File No.:
23 165528 S53 02 TLAB
23 165529 S45 02 TLAB
23 165530 S45 02 TLAB
Hearing Date(s):
October 12, 2023
Decision Delivered By:
TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Owner/Appellant
M. Sadry
M. Mazierski
Applicant
URBANSCAPE ARCHITECTS INC
Party
N. De Francesco
Expert Witness – Late
S. Matveeva
Expert Witness
D. Igelman
INTRODUCTION AND CONTEXT
1This is an Appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of applications for a consent to sever and variances for two proposed new detached houses on the resultant lots.
2The property is located at 49 Bywood Dr (subject property) in the former City of Etobicoke.
3The property is designated Neighbourhoods and Zoned RD (f15.0; a555; 0.45) (x37) under the City of Toronto Zoning Bylaw 569-2013.
4The Toronto Local Appeal Body (TLAB) issued a Notice of Hearing for this matter, setting the Hearing date for October 12, 2023, and setting out the required submission dates for Applicant Disclosure, Expert Witness Statements, Witness Statements, etc.
5At the outset of the Hearing on October 12, 2023, Mr. Mazierski, representing the Applicant/Appellant, raised a preliminary matter to be dealt with prior to the hearing of evidence. He wished to identify for the TLAB changes which had been made to the application following the COA Decision.
6What transpired in the discussion with Mr. Mazierski was that the Applicant had made the Applicant’s Disclosure on July 31, 2023, (in accordance with the requirements set out in the Notice of Hearing), stating that the proposal to be pursued was the same as that which was considered and refused by the COA. However, the Expert Witness Statement of Mr. Igelman presented a revised proposal and evidence in support of that revised proposal.
7The revised proposal revealed in the Expert Witness Statement differed from the application described in the Applicant’s Disclosure in two significant respects: the side yard setbacks had been adjusted, eliminating the need for two variances and; the Applicant proposed two duplexes (four units) instead of the detached dwellings that had previously been described.
8The duplexes had been introduced at this stage of the process as the Applicant wished to avail himself of the wider permissions for multiplexes recently approved by City Council.
9The Expert Witness Statement of Mr. Igelman (revealing the revised proposal) was due and delivered at the same time as that of Ms. Matveeva (Expert for the Opposing Party) on September 8, 2023. Ms. Matveeva, having no knowledge of the intent of the Applicant, responded, as she ought, to the Applicant’s Disclosure and the proposal and variances described in that document.
10Much to my frustration, Mr. Mazierski did not recognize the procedural challenges inherent in introducing shifting changes to the request before the TLAB. He conveyed that in his opinion the changes were not consequential.
ISSUES AND ANALYSIS
11The Planning Act sets out specific requirements for notice of a proposed development to the surrounding Area. For variances, s. 45(18.1) of the Planning Act states that:
(18.1) On an appeal, the Tribunal may make a decision on an application which has been amended from the original application if, before issuing its order, written notice is given to the persons and public bodies who received notice of the original application under subsection (5) and to other persons and agencies prescribed under that subsection.
12In s. 45(18.1.1), the Act provides latitude such that:
(18.1.1) The Tribunal is not required to give notice under subsection (18.1) if, in its opinion, the amendment to the original application is minor.
13The Applicant had not requested the TLAB’s consideration to waive notice under the above provisions in any of the prior submitted materials. In an abundance of confidence, the proposal was changed and the evidence (the Witness Statement and document books) was prepared on the basis of a revised proposal that sought to take advantage of recent changes in City Zoning provisions.
14The choice of the Applicant to proceed in this manner figuratively put all their eggs in an unsecured basket. Changes to a proposal that are incrementally beneficial to the proposal and otherwise reduce the variances requested, or are supported by those opposing the application, are sometimes allowed in the course of a Hearing. There are, however, multiple considerations with respect to the Applicant’s attempt to change the number of units and housing form proposed that would mitigate against waiving of notice under s.45(18.1.1).
- It is an open question whether the TLAB would consider the substitution of two duplexes for two detached dwellings as a minor change for the purposes of waiving notification.
This is not to debate the desirability or legitimacy of the City’s change in policy, but simply to acknowledge that the proposed change is potentially not a minor difference from that which was circulated under the notice provisions. Whether the change would be considered good planning or not, the affected neighbours made a decision on whether to participate in the COA process (and subsequent Appeal) on the basis of what they were told in the notice that was circulated.
- The Clergy principle1 states that generally, land use planning applications should be tested against the law and policy documents in place at the date of the application.
The application in this case was submitted prior to the policy and zoning changes permitting multiplex housing. Had the Applicant intended to propose multiple units at that time, they would have required additional land use planning permissions.
- Potential compromise of principles of procedural fairness.
The TLAB requirements for Notice and Disclosure reflect the fundamental legal principle that all persons with an interest in a matter are entitled to fair notice and disclosure (clarity and certainty) about the proposed development. A foundation of the TLAB’s Rules and processes is that all concerns, issues and evidence are to be shared in advance of a Hearing so that there are no surprises or “ambushes” and that all of those involved have a reasonable and fair opportunity to respond to issues.
The submissions required preceding a hearing before the TLAB are considered and purposeful. The purpose of the required Applicant’s Disclosure is to clarify for all of those with an interest in the matter exactly what is being proposed. The purpose of an Expert Witness Statement from the Applicant is to provide evidence in support of the proposal as previously disclosed, not to change the proposal. The TLAB Rules allow for some forty days between the Applicant’s Disclosure and the deadline for an opposing Party to prepare evidence and compile an (Expert) Witness Statement. As she was preparing and submitting her Expert Witness Statement, Ms. Matveeva had no knowledge that the Applicant intended to pursue a proposal that introduced a different housing form as well as some smaller changes.
15Given the procedural concerns outlined above, Mr. Mazierski understood that the Hearing would not proceed on the basis of the revised proposal contained in Mr. Igelman’s Expert Witness Statement. An alternative open to Mr. Mazierski was to proceed on the basis of the disclosed proposal described in the July 31, 2023 Applicant’s Disclosure.
16The opposing Party, Mr. De Francesco, wanted to proceed on this basis of the disclosed proposal as his Expert Witness had prepared her evidence on that basis. He said that he felt that he and his neighbours had prepared and followed the rules (unlike the Applicant) and he wanted to get on with it.
17Mr. Mazierski did not want to proceed at the Hearing on the basis of the disclosed proposal (July 31, 2023) as he was of the opinion that the eliminated side yard setback variances were beneficial to the overall outcome and should be considered an improvement, from the neighbours’ perspective.
18Mr. Mazierski requested an adjournment of the matter so that he might have an opportunity to correct the procedural problems. He requested an opportunity to provide a proposal that reverted to the original proposal for two detached houses on two proposed lots, but which would eliminate the request for side yard setback variances that had been part of that disclosure.
19Proceeding with the Hearing with evidence and Witness Statements that respond to different proposals would be confusing for all Parties and would not be an efficient use of the Tribunal’s time. While I understand the neighbours’ desire to have the matter dealt with and concluded, in the interests of resolving the matter in the most just, expeditious and cost-effective way, I will accede to Mr. Mazierski’s request for an adjournment.
20In order to ensure that there is clarity, fairness and due notice to all Parties, a new Notice of Hearing will be issued, setting new submission dates for Applicant’s Disclosure, Witness Statements, Expert Witness Statements, Response to Witness Statements, and Reply to Response to Witness Statements, (as set out in the Order below).
CONCLUSION
21The Applicant amended their proposal, and request for variances, in the course of preparing their evidence for this Hearing, potentially compromising important legal principles. Reversion to the proposal and variances requests disclosed according to TLAB Rules and protocol on the day of the Hearing would have been challenging, not only for the Applicant but also for an efficient Hearing process.
22A new Hearing with revised submission dates will be scheduled for this matter.
DECISION AND ORDER
23A new Notice of Hearing will be issued for this matter as follows:
Two Hearing days, February 13 and 14, 2024.
Applicant Disclosure (Form 3) DUE no later than November 6, 2023.
Document Disclosure DUE no later than December 18, 2023.
Witness Statement (Form 12) DUE no later than December 18, 2023.
Response to Witness Statement (Form 19) DUE no later than January 24, 2024.
Reply to Response to Witness Statement (Form 20) DUE no later than February 5, 2024.
Expert Witness Statement as (Form 14) DUE no later than December 18, 2023.
24Response to Expert Witness Statement (Form 21) DUE no later than January 24, 2024.
25Reply to Response to Expert Witness Statement (Form 22) DUE no later than February 5, 2024.
26Notice of Motion as per Rule 17 (Form 7) DUE no later than January 29,2024.
A. Bassios
Vice-Chair, Panel Member
1 Clergy Properties Ltd v. Mississauga (City) (1996) OMBD 1840 (OMB).